Director of Public Prosecutions (Cth) v Brookman (Ruling No 1)
[2018] VSC 749
•4 December 2018
| IN THE SUPREME COURT OF VICTORIA | REDACTED |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0100
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Crown |
| v | |
| ADAM MATHEW BROOKMAN | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6-7 June 2018 |
DATE OF RULING: | 4 December 2018 |
CASE MAY BE CITED AS: | DPP (Cth) v Brookman (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 749 |
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CRIMINAL LAW – Pre-trial ruling – Elements of offence – Providing support or resources to a terrorist organisation – Performing services in support or promotion of the commission of an offence – Number of physical elements – Number of fault elements – Criminal Code Act 1995 (Cth), s 102.7(1) – Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 7(1)(e) – Criminal Procedure Act 2009 (Vic) s 199 – R v Mohamed (No 1) [2015] VSC 290.
CRIMINAL LAW – Pre-trial ruling – Duplicity – Providing support or resources to a terrorist organisation – Performing services in support or promotion of the commission of an offence – Whether charges bad for patent or latent duplicity –Single criminal enterprise – Charges not bad for duplicity – Criminal Code Act 1995 (Cth), s 102.7(1) – Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 7(1)(e) – Walsh v Tattersall (1996) 188 CLR 77.
CRIMINAL LAW – Pre-trial ruling – Further and better particulars of charges – Providing support or resources to a terrorist organisation – Performing services in support or promotion of the commission of an offence – Complaint that specific acts not sufficiently particularised – Adequate particulars provided – Criminal Code Act 1995 (Cth), s 102.7(1) – Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 7(1)(e) – Benbrikav R (2010) 29 VR 593.
CRIMINAL LAW – Pre-trial ruling – Between dates charges – Providing support or resources to a terrorist organisation – Performing services in support or promotion of the commission of an offence – Determination as to minimum requirements for satisfaction of between dates charges – Criminal Code Act 1995 (Cth), s 102.7(1) – Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 7(1)(e) – Criminal Procedure Act 2009 (Vic) s 199.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Rapke QC and Ms A Ellis on 6 and 7 June 2018 | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC and Ms G Morgan | Stary Norton Halphen |
HER HONOUR:
Introduction
The accused is indicted on one charge of providing support or resources to a terrorist organisation under s 102.7 (1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) (‘Charge 1’), and one charge of performing services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment)Act 1978 (Cth) (‘the CFIR Act ‘), contrary to s 7(1)(e) of that Act (‘Charge 2’).[1]
[1]Indictment number S CR 2017 0100, signed 8 November 2018.
Charge 1 is laid as a between dates charge, alleging that the accused did in Syria between about the 11 August 2014 and 30 November 2014, intentionally provide to a terrorist organisation support or resources that would help the organisation engage in an activity of directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act, knowing it was a terrorist organisation.
The particulars supplied for Charge 1 allege that the terrorist organisation was Islamic State. At the relevant time, Islamic State was a ‘listed’ terrorist organisation, a fact relied on to assist proof of that charge.[2]
[2]An organisation that was specified by the regulations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in the Criminal Code, s102.1.
Charge 2, laid under distinct legislation, is substantively different to Charge 1. It charges that the accused did, in Syria between about 8 May 2014 and 29 July 2014, perform services for any other person or any body or association of persons, with the intention of supporting or promoting the commission of an offence against s 6 of the CFIR Act. Charge 2 alleges that the recipient of the services performed by the accused was ‘a group or groups of men of predominantly Chechen and North Caucasian origin’ (‘the Chechen group(s)’).
The current indictment was filed over by the Crown on 9 November 2018, following questions being raised by the Court about the form of the previous indictment.[3]
[3]On 3 October 2018 the Court sought clarification from the CDPP and Defence regarding the indictment and previously filed documents and submissions.
The previously filed indictment contained three charges, with Charges 1 and 2 constituting charges of providing support or resources to a terrorist organisation contrary to s 102.7(1) of the Criminal Code, and Charge 3 being a charge of performing services in support or promotion of an offence against s 6 of the CFIR Act, contrary to s 7(1)(e) of that Act.[4]
[4]Indictment signed 8 September 2017.
In the previous indictment Charges 1 and 2 were laid in the alternative, with Charge 1 specifying Islamic State as the recipient of support or resources, and Charge 2 specifying ‘a group or groups of men of predominantly Chechen and North Caucasian origin’ (the Chechen group(s)) as the recipient of support or resources.
The new indictment simplifies the Crown’s position by specifying only Islamic State as the recipient of the support or resources for the offence under s 102.7(1) of the Criminal Code. The date period for Charge 1 remains the same as in the previous indictment.
Charge 3 on the previous indictment has become Charge 2 on the present indictment, and the recipient of the services allegedly performed by the accused has been specified as ‘a group or groups of men of predominantly Chechen and North Caucasian origin’. Previously, Charge 3 had pleaded the recipient of the services as ‘a group or groups of men of predominantly Chechen and North Caucasian origin; and/or Islamic State’.
A further alteration to the charge brought under the CFIR Act is that the date period has been truncated, so that there is now no date overlap with the charge brought under s 102.7(1) of the Criminal Code.[5]
[5]The previous indictment alleged a between dates period of ‘between about 8th day of May 2014 and 30th day of November 2014’.
Written submissions and legal argument were advanced by the parties on the previously filed indictment. At a mention held on 9 November 2018, the Defence indicated that a number of arguments and other matters raised in respect of the previous indictment were still pressed in respect of the new indictment.
This ruling is in response to the Defence application for a ruling on matters still requiring resolution by the Court. Much of this ruling will refer to arguments put on the previous indictment, which are maintained in respect of the present indictment.[6] Pursuant to s 199 of the Criminal Procedure Act 2009 (Vic) (‘the CPA’), the Defence applies for:
[6]The parties requested that the Court adopt this approach on 9 and 13 November 2018. In agreeing to this approach the court has necessarily treated some aspects of the parties submissions as having been superseded by the filing of the new indictment.
(a) the indictment to be quashed on the basis that each charge is bad for duplicity, both patent and latent;
(b) further and better particulars for each charge; and
(c) determination of certain questions as to what is required to be proved, given the ‘between dates’ nature of the charges.[7]
[7]Defence, ‘List of Applications for Determination pursuant to s 199 CPA’, 21 May 2018.
For the following reasons I have concluded that Charges 1 and 2 on the current indictment are not bad for duplicity.
Additionally, regarding each of the charges, I have concluded that whilst the Crown does not need to prove concurrence of the elements of each offence throughout the whole charge period, the Crown must establish a degree of persistent conduct sufficient to prove the continuing criminal enterprise alleged for each charge.
I have also concluded that the Crown need not provide further particulars for Charges 1 and 2.
Procedural background to the Defence Applications
Charges were originally laid in this matter on 24 July 2015 following the execution of an arrest warrant at Sydney airport.[8] Prior to committal proceedings being commenced [*Redacted],[9],[10] committal proceedings went ahead on 5 - 7 June 2017. The accused was committed for trial to this court on 7 June 2017 with his first appearance for post committal directions on 13 June 2017.
[8]The original charge sheets contained Charge 1 (a charge under s 102.7(1) of the Criminal Code) and Charge 2 (a charge under s 7(1)(e) of the CFIR Act).
[9][*Redacted].
[10][*Redacted].
The Crown filed the previous indictment, containing Charges 1 and 2 (providing support or resources to a terrorist organisation) and Charge 3 (performing services in support or promotion of the commission of an offence against s 6 of the CFIR Act ) on 8 September 2017.[11] On the same date, the Crown filed and served a ‘Summary of Prosecution Opening’ (‘SPO’).[12] The SPO, comprising 129 pages and 25 paragraphs, detailed how the case was put in respect of the three charges on the previous indictment.
[11]Indictment No. S CR 2017 0100, signed 8 September 2017.
[12]In compliance with the requirements of the CPA.
On 19 November 2017, the Defence filed a document headed ‘Outline of Issues with respect to the Current Indictment’, complaining of the need for clarification as to how the Crown case was put, disputing that the Criminal Code charges (Charges 1 and 2) were true alternatives, and seeking further particulars of each of the three charges. On 28 November 2017, the Defence filed a ‘Defence Response to Prosecution Opening’, and on 20 December 2017 a ‘List of Pre-trial issues’.
The Crown complained in writing that the Defence Response to Prosecution Opening was in breach of the letter or intent of s 183(2) of the CPA, having put virtually every aspect of the Crown case in issue, and that ‘[n]o basis upon which every piece of evidence in the Crown case is disputed is stated’.[13] The Crown submitted that the Defence response did not identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken. Further, the Crown complained that the list of pre-trial issues merely replicated the complaints contained in the Defence response. Whilst not conceding the need for any further particularisation beyond that which had already been provided in the indictment, SPO and depositions, the Crown provided a further document headed ‘Particulars of Charges’,[14] which contained further particulars of each of the three charges.
[13]Crown, ‘Crown response to Defence list of Pre-trial issues’, 19 January 2018, [2].
[14]Crown, ‘Particulars of Charges’, 19 January 2017.
At a subsequent mention conducted on 1 February 2018, pre-trial argument was adjourned at the request of the parties and a new timetable fixed for the Defence to file and serve a response to the Crown SPO, a list of pre-trial issues and submissions in support of the pre-trial issues.[15] The Crown were directed to file a response to the further Defence material by 11 May 2018.
[15]To be filed by 30 March 2018.
A further ‘Preliminary Defence Response to Prosecution Opening‘ was filed by the Defence on 2 April 2018, and a further list of pre-trial issues was filed on 11 April 2018.[16] The latter states that: ‘[i]n all cases, and in the particular circumstances of this case, determination of the elements of each of the charges is fundamental, it should occur before any other step’.[17] The Defence submitted that such determination ‘dictates subsequent arguments concerning duplicity and uncertainty, the provision of particulars, orders to stay or quash and evidentiary rulings on authenticity, relevance and discretionary exclusion’.[18]
[16] Defence, ‘R v Brookman –List of Pretrial issues’, 11 April 2017.
[17]Ibid [1].
[18]Ibid.
On 10 May 2018, the Crown complained in writing that neither of the documents filed by the Defence on 2 April 2018 or 11 April 2018 complied with the requirements of s 182(2) of the CPA, and that whilst the list of pre-trial issues foreshadowed a challenge to the indictment along with a series of evidentiary challenges that may or may not be brought, it contained no substantive submissions nor any concessions as to any matters that might be admitted.[19] The Crown argued that there was no defect in the indictment and that a document setting out the Crown’s statement of the elements of each of the offences had been provided on 18 April 2018.[20] The Crown complained that the Defence refused to engage with the prosecution on the real, as opposed to the illusory or theoretical issues, made no concessions and admitted nothing, and that ‘such an uncooperative stance will have significant consequences for the length and complexity of the trial’.[21]
[19]Crown, ‘Crown response to Further Preliminary Defence Response and List of Pre-trial issues’, 10 May 2018.
[20]Crown, ‘The Queen v Adam Matthew Brookman : Elements of the Offences, see Ibid [8] and Annexure C.
[21]Crown, ‘Crown response to Further Preliminary Defence Response and List of Pre-trial issues’, 10 May 2018 [10].
On 15 May 2018 the Defence filed a lengthy document outlining the Defence submission as to the elements of the charges and indicating that application would be made to have the court quash the indictment as bad for duplicity, or otherwise order that adequate particulars be provided by the Crown for each charge.[22] Appended to these submissions were two tables relating to the particulars of the charges as understood by the Defence.[23] A list of authorities relating to duplicity and particulars was also provided.
[22]Defence, ‘Submissions in relation to the elements, particularization and duplicity’ dated 10 May 2018 but actually filed on 15 May 2018 (‘Defence Written Submissions’).
[23]Ibid, Annexure A and B.
Upon hearing from the parties as to the appropriate order and ambit of pre-trial issues, a date was fixed for oral argument to be advanced on the form of the indictment and on the issue of duplicity. On 6 and 7 June 2018, following the filing of further written submissions by the parties, oral argument was heard.[24] Subsequent to the presentation of oral argument on the form of the indictment, counsel appearing on behalf of the Crown became unavailable. Further clarification sought by the Court about the form of the indictment and related matters,[25] led to the filing over of a new indictment on 9 November 2018 containing only two charges.
[24]Crown, ‘Crown submissions on pretrial issues relating to the indictment, 4 June 2018 (‘Crown Written Submissions’); Crown, ‘List of Authorities’; Defence Written Submissions; Defence, ‘List of Applications for Determination pursuant to s 199 CPA’, 21 May 2018; Defence supplementary response: ‘Response to Prosecution Submissions filed 4 June 2018’, 5 June 2018.
[25]On 3 October 2018 written questions were posed for the parties to address in further oral argument.
On 13 November 2018, further submissions were made by the parties as to the manner in which the documents filed pursuant to the CPA and the written and oral submissions of the parties should be interpreted to apply to the new indictment. Clarification was sought from the Crown as to whether the allegation of providing support or resources to Islamic State in Charge 1 on the new indictment was founded on an allegation that the Chechen group(s) were the ‘link’ or ‘funnel’ to Islamic State, or were part of Islamic State, or were merely participating with or alongside the accused in providing support and resources to Islamic State.
The Crown submitted on 13 November 2018 that Charge 1 should be interpreted as alleging that the accused provided himself as a resource to Islamic State, and that he did so whilst the Chechen group(s) that he was participating with were also providing themselves as a resource to Islamic State.[26] In light of this submission and a point raised about the application of defences to Charge 1, the Crown was directed to review the previously filed SPO,[27] Crown submission on the elements of the charges,[28] Particulars of Charges[29] and Crown submissions on pre-trial issues.[30] The Crown was given until 21 November 2018 to notify the Court of any significant changes to the position previously advanced, with the Defence to respond by 26 November 2018.
[26]Transcript of Proceedings, DPP (Cth) v Brookman (Ruling No 1) (Supreme Court of Victoria, S CR 2017 0100, Dixon J, 13 November 2018) 4 (‘Transcript, 13 November 2018’) 4.
[27]Crown, Summary of Prosecution Opening, 8 September 2017.
[28]Crown, ‘The Queen v Adam Matthew Brookman : Elements of the Offences, 18 April 2018;, see Crown, ‘Crown response to Further Preliminary Defence Response and List of Pre-trial issues’, 10 May 2018, [8] and Annexure C.
[29]Crown, ‘Particulars of Charges’, 19 January 2017.
[30]Crown Written Submissions, 4 June 2018.
Revised documents were filed by the Crown on 21 November 2018,[31] including a revised SPO (‘the Revised SPO’). The Defence response filed on 26 November 2018[32] led to further documents being filed by the Crown on 27 November 2018.[33]
[31]Crown, Elements of the offences (of filed-over Indictment), 21 November 2018; Crown, Summary of Prosecution Opening (Filed-over), 21 November 2018 (‘Revised SPO’); Crown, Particulars of Charges (Filed-over indictment), 21 November 2018 (‘Revised Crown Particulars’).
[32]Defence, Response to CDPP Documents filed 18 November 2018, dated 18 November 2018.
[33]Crown, Elements of the offence (of filed over Indictment) revised version, 27 November 2018 (‘Crown, Elements of Offences’) and Crown Reply, 27 November 2018.
The Crown submitted that for Charge 1, their case as to the role of the Chechen group had not changed from that which was expressed in paragraph 4 of the SPO filed on 8 September 2017, and the Crown did not wish to alter the position put forward in their written submissions of 4 June 2018 regarding the expression of the role of the Chechens group(s) for Charge 1.[34]
[34]On 27 November 2018.
Ultimately, the central complaint as to duplicity, inadequacy of particulars, and the request for determination of questions under s 199 of the CPA Act were submitted to remain on foot in respect of the new indictment, and the parties have asked the Court to rule on these arguments as they apply to the new indictment.
Factual Background to the charges
The introductory paragraphs of the Revised SPO allege that:
[the accused] was in Syria between March 2014 and January 2015. In the period May – November 2014 he was involved with armed jihadi militant groups who were fighting against the Syrian government and other State and non-State actors in the Syrian conflict, and in relation to the period of August to November 2014, in support of Islamic State.
When [the accused] travelled to Syria in March 2015, there is evidence to suggest he was initially providing medical services in Aleppo. In early May 2014, [the accused] attended boot camp training including weapons training and religious classes. From at least mid-May 2014, it is alleged that [the accused] joined a group of predominantly Chechen and North Caucasian fighters located in Syria. He is alleged to have resided with them primarily in Atmeh, Syria and performed tasks including guard duty, maintenance of weaponry and the provision of medical services.
In July 2014, [the accused] travelled with his group to the Latakia region of Syria, where he assisted in an operation and participated in a reconnaissance mission.
From early August 2014, it is alleged that [the accused] relocated to Manbij, an area that was held by Islamic State, with a group of Chechen and North Caucasian foreign fighters. It is alleged that by at least mid-August 2014, the Chechen group which [the accused] joined was fighting as part of or alongside Islamic State, and was engaged in supporting the activities of Islamic State. In late August 2014, the Chechen group fought as part of the Islamic State offensive in the battle at Tabqa Airport. A video captured on 25 September 2014 depicts [the accused] with a number of other armed militants at a base at Manbij Driving School, assembling then leaving the location in trucks and vehicles marked with Islamic State flags.
In around January 2015, [the accused] left Syria and entered Turkey. He travelled back to Australia in July 2015 and was arrested upon his arrival.[35]
[35]Revised SPO [1] – [5].
The accused was taken into custody in Sydney on 24 July 2015 and extradited to Melbourne. He has remained in custody since that time.
The Revised SPO provides a detailed narrative of social media communications allegedly conducted between the accused and others, and [*Redacted]. There are Facebook and Instagram posts, [*Redacted]. The accused allegedly identified himself online as ‘Abu Sufyaan’ and ‘Iron-Clad’ on various social media platforms.
The Revised SPO alleges that between mid-May and mid-August 2014, the accused was based near the Turkish border, and frequently undertook guard duty. It is alleged that in May 2014 he undertook military training in Bishqatin, Syria and joined a group of foreign fighters of largely Chechen and North Caucasian origin.[36] [*Redacted].[37] During May 2014 he allegedly posted images on Instagram of weaponry and of his associates including an American Muhaajir.[38] Images posted during May 2014 referred to performance of ribat (guard duty).
[36]The Crown allege that the accused was associating with and participating with a group of predominantly Chechen and North Caucasian soldiers who in turn were or became affiliated with ‘Jamaat Ahadun Ahad’, Revised SPO [222] – [231].
[37]Revised SPO [63].
[38]Alleged to be a known American foreign fighter (identity suppressed).
The Revised SPO explains that Crown expert witness, Charles Lister, defines ‘ribat’ as follows:
‘[t]o be on ribat’, would be to stand guard and to be on duty in such a frontline position. Jihadists frequently refer to being ‘on ribat’ as a sincere but challenging posting, given the need for remaining alert amid long periods of inaction.[39]
[39]Revised SPO [73].
According to the Revised SPO, [*Redacted].[40] On 20 May 2014 he communicated with user ‘Abdul Salam Mahoud’, saying that he ‘arrived this week from halab’.[41] It is alleged that the accused was in Atmeh[42] around this time. The Revised SPO alleges that on 21 May 2014 the accused said to Facebook user with the profile name ‘Abu Khattab Al Australi’ that he ‘was in halab now in Atmah’.[43] The same day he posted on Instagram a photograph of a meal with the tag ‘[w]ell guess what we had for dinner today? Chechen brothers brought around some horse meat! And cooked in true Chechen style only meat! Alhamdulillah tasted alright’.[44] Also on the same day in answer to a Facebook question as to who he was fighting with, the accused is alleged to have replied ‘I’m with an independent group who fights in halab n latakia [sic]’.[45]
[40]Ibid [72].
[41]Ibid [77](c).
[42]Sometimes referred to by different spelling such as ‘Atmeh’.
[43]Revised SPO [87](b).
[44]Ibid [87] (c).
[45]Ibid [87](d).
On 2 June 2014, the accused is alleged to have communicated via his Abu Sufyaan Facebook with ‘Sarah’ as follows:
[the accused]:
Lots of shooting today. Syrians being stupid. Need ur quality of sabr and open mindedness
SARAH:
SubhanAllah I'd always think twice before I pull a trigger. How are we to know who's going to get impacted, how guilty or innocent they are and how Allah swt will reward or punish us for that one thing which we have done in haste
[the accused]:
Saheeh. They have an argument n get arrogant.
SARAH:
SubhanAllah.. Always remind them to purify their intentions InshaAllah
[the accused]:
Theu arent from the mujaahideen. Either locals or fsa.[46]
[46]Ibid [89].
The same conversation refers to being up at 2.00 am doing ribat and gives explanations relating to weapons and training for the task of guard duty.
The Revised SPO refers to the accused posting or participating in many social media communications from mid-May through to mid-August, referring to performing ribat.
It alleges that on 5 June 2014, the accused communicated with a Facebook user with profile name ‘Abu Talha’ saying that he was in Atmah with a Chechen group. He states he is ‘[i]n rivat [sic] and waiting Inshallah soon’.[47]
[47]Ibid [93].
On 7 June 2014, it is alleged that the accused used his Abu Sufyaan Facebook account to communicate with ‘Chillie Padie’ that he was ‘in atmah with the group of abu umbaydah shishani’, and ‘they are independent but aligned with other Chechen uzbek and turk groups including Taliban’.[48]
[48]Ibid [95].
On 8 June 2014 the Revised SPO alleges that the accused communicated on Facebook with ‘Hamza Thaqib’ as follows:
THAQIB:
how did the initiative with the Chechen groups go? You were talking about a possible police force and secure area?
[the accused]:
Yes but btalks continue.
THAQIB:
talk is better than nothing. I think it’s a great idea. Helps to win the hearts and minds of the people inshALLAH.
[the accused]:
Inshallah. Took bayah from a couple syrian smaller groups.
THAQIB:
that’s excellent alhamdulillah. How many guys do you all have now?
[the accused]:
We plan to use aa local police force. Better to use Syrians.
THAQIB:
true, through sometimes that backfires with corruption. Sometimes better to pair up one muhājir with one ansar.
[the accused]:
We r watching them closely, To make sure they r of their wors [sic].
THAQIB:
That’s great, so long as you mete out public justice to corruption to show the people you won’t accept any deprivation of their rights….that’ll stop corruption quick smart and build public confidence.
[the accused]:
We’ll take over the mahkama n use the police to enforxe [sic] inshallah.
THAQIB:
what’s the mahkama? Sorry lol my arabic is crappy
[the accused]:
Court house.[49]
[49]Ibid [96].
The Revised SPO alleges that on 14 June 2014 the accused told ‘Lina [M]’[50] on Facebook that he ‘might be going to latakia [sic]’[51] and that on 15 June 2014 he told ‘Abdurrahman Ibn Hussein’ via Facebook that his group ‘lost’ Kasab in Latakia, but the ‘bros’ got out safely.[52] The report of Charles Lister states that on 15 June 2014, the town of Kessab, its border crossing and several surrounding villages fell back under the control of the Syrian regime.[53]
[50]Alleged to be the wife of the accused.
[51]Revised SPO [102].
[52] Ibid [105](i); On the same date the accused also allegedly sent ‘Abdurrahman Ibn Hussein’ a number of photographs depicting various weapons including grenades and RPG launchers.
[53]Revised SPO [102](i).
The Revised SPO indicates that on 16 June 2014, the accused communicated via his Abu Sufyaan Facebook account that he was making charity packs today accompanied by images of such: ‘[u]nloading food for the food packs for our refugee camp should feed 240 families for a month inshallah’.[54]
[54]Ibid [107](d).
He also said: ‘[o]ur group is made of chechen and over kavkaz brothers. Mashallah very strong brothers’.[55] At 14:59, he allegedly made the following status update:
Mashallah a mujaahids role isn't just about fighting kuffar but it's also helping out the poor and needy from the people. Today we began unloading different food products to make food charity packs that will inshallah feed 240 families for a period of one month.[56]
[55]Ibid [107](c)a.
[56]Ibid [107](e).
According to the Revised SPO, ‘on 29 June 2014, Islamic State of Iraq and the Levant (ISIL), a listed terrorist organisation, changed its name to Dawla al-Islamiya or Islamic State (IS) and proclaimed the territory under its control in Syria and northern Iraq to be ‘the Caliphate’.[57] The declaration also included the recognition of Abu Bakr al-Baghdadi as the ‘Khilafah’ or head of the new Islamic State’.[58]
[57]Ibid [113].
[58]Ibid.
The Revised SPO alleges {*Redacted].[59]
[59]Ibid [126].
Between 19 July 2014 and 20 July 2014, the accused allegedly posted images and text on his Abu Sufyaan Instagram account including ‘sunset on our way to #latakia’ and ‘deep in the #latakia (town in Syria) forests’.[60] It appears from the Revised SPO that [*Redacted].[61]
[60]Ibid [131].
[61]Ibid [134].
The Revised SPO alleges that [*Redacted].[62]
[62]Ibid.
The Revised SPO alleges that [*Redacted],[63],[64].[65]
[63]Ibid [149].
[64]Ibid [150].
[65]Ibid [151] and [152].
The Revised SPO refers to contextual explanation by Crown expert Charles Lister,[66] that the battle for Tabqa Airbase was initiated by Islamic State on 10 August 2014 and intensified on 19 August and 20 August, and that between 22 and 24 August Islamic State managed to break the airbase defences and enter the facility itself.
[66]Crown, Report of expert witness Charles Lister, August 2017, 24; Revised SPO [160].
Around one month later, on 25 September 2014 the accused is said to have been captured on film at a former driving school compound at Manbij in northern Syria participating in an assembly of military personnel (‘the Manbij Driving School video footage’).[67]
[67]This evidence was obtained as a result of an investigation that was conducted by the Norwegian Police Security Service; Revised SPO [165] – [166].
There are two videos of this event. The footage is relied on as showing an estimated 40 people in military fatigues, some holding weapons, and vehicles with the black insignia allegedly associated with Islamic State. The first video depicts a number of men who, when approached by the person filming the group, raise their right index finger in the form of the ISIS salute. The accused is said to be identifiable wearing military fatigues and at times holding a gun.[68] In the second video, he is said to be observable walking out of a building and into an ambulance where he remains for the duration of the video. A Chechen commander known to foreign governments as Akhmed Chataev is also alleged to be identifiable in this sequence. The ambulance vehicle that is visible on the video leaves the compound bearing the insignia of the Islamic State. A number of other vehicles leave the compound at the same time, including one with a large-calibre weapon mounted on the back.
[68]Revised SPO [170].
Subsequently, according to the Revised SPO, [*Redacted].[69]
[69]Ibid [181] and [182].
In late November 2014, the Revised SPO alleges that [*Redacted].[70] The accused is also said to be depicted with two other males in a video created 18 November 2014, in which a male preaches his ideology before two males converse regarding those who have ‘pledged allegiance’.[71] In January 2015, the accused left Syria to Gaziantep, Turkey. On 27 January, he contacted the Australian consular staff in Istanbul to seek a replacement passport.
[70]Ibid [187].
[71]Ibid 186A.
The elements of Charge 1 under s 102.7(1) of the Criminal Code
It is necessary to address the parties’ submissions on the elements of each charge first, as this assists in determining the pre-trial issues that have been raised.[72]
[72]The Queen v Robert Cerantonio (Rulings 1 – 11) (2017) 327 FLR 302, 311 [31].
Section 102.7 of the Criminal Code provides:
102.7 Providing support to a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
(2) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.
Penalty: Imprisonment for 15 years.
‘Terrorist organisation’ is defined in s 102.1(1) as:
(a)an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs);[73] or
[73]The phrase: ‘whether or not a terrorist act occurs’ was in force before 1 December 2014 when the provision was amended by Act No 116 of 2014, at which time section 102.1(20) was inserted into the Criminal Code Act 1995 (Cth).
(b)an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).
Section 100.1(1) provides that:
organisation means a body corporate or an unincorporated body, whether or not the body:
(a) is based outside Australia; or
(b) consists of persons who are not Australian citizens; or
(c) is part of a larger organisation.
Crown submissions on the elements of Charge 1
The Crown submits that for Charge 1:
The prosecution must prove beyond reasonable doubt that -
1. Between 11 August 2014 and 30 November 2014, the accused intentionally provided support or resources to an organisation that would help the organisation engage in an activity of directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act.
2. The organisation to which the accused provided support or resources was a terrorist organisation.
3. The accused knew that it was a terrorist organisation.
Terrorist organisation
The prosecution must prove beyond reasonable doubt:
1. The accused provided support or resources to an 'organisation', and
2. The organisation was a terrorist organisation.
The organisation to which the accused provided support or resources was Islamic State.
Islamic State was a 'terrorist organisation'.[74]
[74] On 10 July 2014, the Criminal Code (Terrorist Organisation-Islamic State) Regulation 2014 (Cth) specified Islamic State to be a terrorist organisation for a period of 3 years commencing from that date.
Support or resources
The prosecution alleges that the accused provided support or resources to Islamic State by-
(i) making himself available as a source of support, labour or assistance; and/or
(ii) undertaking guard duty; and/ or
(iii) providing medical services.
Intention of the accused
Intention means the accused intended to engage in that conduct, that is - he intended to provide support or resources to Islamic State.[75]
[75]Criminal Code, Division 5 –Fault elements 5.2 (1): A person has intention with respect to conduct if he or she means to engage in that conduct.
Knowledge of the accused
The prosecution must prove that at the time the accused provided the support or resources to Islamic State he knew it was a terrorist organisation.
'Knowledge' means the accused knew or was aware that in the ordinary course of events Islamic State was a terrorist organisation.[76] This can be proved by either:
[76]Criminal Code, Division 5 –Fault elements 5.3: A person has knowledge of a circumstance or result if he or she is aware that it exists or will exist in the ordinary course of events.
(a) knowledge that the Australian government had determined it to be a terrorist organisation; or
(b) knowledge that in the ordinary course of events the organisation was one that was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurred).
Help engage in a terrorist act
The prosecution must prove that the support or resources were of the kind that would help Islamic State in directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs). The prosecution need not prove that the support or resources did actually help Islamic State. The prosecution also need not prove that the support or resources would help Islamic State in relation to any specific terrorist act. It is sufficient if the prosecution proves that if the accused provided support or resources to Islamic State and such support or resources were capable of being of help to Islamic State in engaging in or preparing or planning or assisting in or fostering the doing, of any kind of terrorist act.
Terrorist act
A 'terrorist act' is defined in subsection 100.1 of the Criminal Code to mean an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
An action falls within subsection (2) of section 100.1 of the Code if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public.[77]
[77] Although the Criminal Code also includes potential conduct in 100.1(2)(f), the Crown have not alleged those matters in the indictment.
An action falls within subsection (3) of section 100.1 of the Code if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.[78]
[78]Crown, Elements of the Offences, 27 November 2018. As originally submitted, the Crown also identified as part of the elements of Charge 1 an inclusive definition of the ‘doing of a terrorist act’. This submission appeared to be derived from wording in s 102.1(20), which did not come into force until 1 December 2014 in Act No. 116 of 2014. On 5 October 2018 the Crown accepted that an error had been made regarding the applicable version of the Criminal Code.
For Charge 1 the Crown submits that it need only be proved that at some point between 11 August and 30 November 2014 the accused provided support or resources to the named terrorist organisation (Islamic State).
Defence submission on the elements of Charge 1
The Defence has summarised that the essential elements of the offence under s 102.7 are as follows:
Physical conduct accompanied by intention
(1)The accused intended to do the act or acts pleaded as 'providing support or resources'; AND
(2)The accused intended to provide that support or resources to an 'organisation', namely a group of persons with:
a. Some form of combination of persons (with a common interest or purpose); AND
b. A degree of organisation with continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members; AND
c. Which was the same organisation throughout the charge period; AND
(3)The accused intended that support or resources would help the organisation engage in[79] preparing, planning, assisting in or fostering the doing of a terrorist act.
[79]The wording on the indictment is slightly different referring to ‘engage in an activity of directly or indirectly engaging in, preparing, planning , assisting in or fostering the doing of a terrorist act’.
Physical circumstance accompanied by knowledge
(1) The organisation to which the accused provided support or resources was a terrorist organisation:
a. an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
b. an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)); and
(2) The accused knew that the organisation to which he provided support or resources, was a terrorist organisation (s102.7(1)); or
(3) The accused was reckless to whether the organisation, to which he provided support or resources, was a terrorist organisation (s102.7(2)).
The prosecution must disprove any defence raised on the evidence, which in this case will likely include defence of another, duress and/or sudden and extraordinary emergency.[80]
[80]Defence Written Submissions, [50].
The Defence also submits that the offence contains two physical elements,[81] each with an accompanying fault element, and that the fault element for the physical element of conduct described in s 102.7(1)(a) is intention, whereas the fault element for the physical element of circumstance described in s 102.7(1)(b) is knowledge.[82]
[81]Ibid [30].
[82]Pursuant to s 102.7(1)(c).
The Defence further submits regarding proof of the physical conduct element that the support or resources were provided to an organisation, that it would not be sufficient to prove support or resources were provided to an individual or done for the accused’s own purposes, and proof that the support or resources were provided to an organisation requires directions on this element in accordance with the directions given by the trial judge in R vBenbrika,[83] which were approved on appeal in Benbrika v R.[84]
[83]R v Benbrika (Rulings No 35.01 – 35.11) [2009] VSC 142, [97] – [105] (‘R v Benbrika’).
[84]Benbrika v R (2010) 29 VR 593 (‘Benbrika v R’), the trial of which will be referred to as ‘the Benbrika trial’.
This would include explanation of the term 'organisation' given by Bongiorno J in R v Benbrika, by reference to the ‘Kibby criteria’ of 'unincorporated association', in assessing whether the support or resources pleaded were provided to an 'organisation'.[85] This would entail directing the jury about the Kibby criteria in their consideration of whether the support or resources were provided to ‘an organisation’, that the organisation must be shown to involve:
a. [s]ome form of combination of persons (with a common interest or purpose) with a degree of organisation; and
b. [c]ontinuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.[86]
[85]In R v Benbrika, the directions of Bongiorno J were based in part on the characteristics of unincorporated associations identified by Mandie J in Kibby vRegistrar of Titles [1999] 1 VR 861, 872 see R v Benbrika [2009] VSC 142, [99] – [104].
[86]Defence Written Submissions, [37].
The Defence accepts that proof of the physical circumstance that the organisation was at the relevant time a terrorist organisation can be established by reference s102.1(b) of the Code definition of ‘terrorist organisation’.[87]
[87]Ibid [46].
Consideration
There appear to be six key differences in the way in which the parties have approached the respective elements, aside from the order in which the elements have been set out.
First, the Defence has added an additional step to proof of intention accompanying the physical element of conduct, requiring proof that the accused intended to do an act or acts pleaded as ‘providing support or resources’.
Second, the Defence have listed as a separate component of the fault element that the accused intended that the support or resources would help the organisation engage in preparing, planning, assisting in or fostering the doing of a terrorist act. The Defence have elaborated on this aspect arguing that whilst the Crown need not plead a specific terrorist act, it would be insufficient to prove that the support could or might help the organisation in preparing, planning, assisting in or fostering the doing of a terrorist act. Therefore, the support must be tied to an act of particularity according to the Defence formulation.[88]
[88]Ibid [43].
Third, the Defence, in referring to the necessity to prove that the accused intended to provide support or resources to an ‘organisation’, submit that it must be proved that the accused intended to provide the support or resources to a group of persons having the characteristics of ‘an organisation’, as explained in R v Benbrika, as a prelude to proof of knowledge that the alleged organisation was a terrorist organisation.
Fourth, the Defence have referred to a requirement that the accused be proved to have intended that the specified organisation remained the same organisation throughout the charge period.[89]
[89]The Court has assumed that this argument, although remaining relevant, has less application to the re-drafted indictment where the Crown relies only on Islamic State as the intended recipient of support and resources.
Fifth, the Defence has treated the necessity for the prosecution to rebut any defence raised on the evidence as an element of the offence.
Sixth, the Defence have included the statutory alternative of reckless knowledge that the organisation was a terrorist organisation under s 102.7(2).
The Crown's listing of the elements for Charge 1 appears to largely reflect the way the elements are set out in the text of s 102.7 (1) of the Criminal Code. The Crown have listed the first element to accord with s 102.7(1)(a), bringing together both the fault element of intention and the accompanying physical element of conduct. The Crown have next listed the physical element of circumstance in relation to the prohibited conduct, namely, the circumstance that the organisation was a terrorist organisation. This approach accords with the structure of the provision listing this physical circumstance element in 102.7(1)(b). The Crown have then listed a fault element for the physical element of circumstance, being knowledge that the organisation was a terrorist organisation in accordance with the requirement in s 102.7(1)(c).
For Charge 1, the Crown seeks to prove as a matter of fact that the accused provided support or resources to Islamic State, that Islamic State was an organisation and was a listed terrorist organisation,[90] at the time alleged in the charge.
[90]The term ‘listed terrorist organisation’ (sometimes referred to as a prescribed terrorist organisation) is used as a way of referring to an organisation specified in the Regulations to the Criminal Code as a terrorist organization.
The Crown submit that proof of knowledge that Islamic State was a terrorist organisation must be proved by establishing that the accused knew, or was aware, that in the ordinary course of events Islamic State was a terrorist organisation,[91] either because he knew that the Australian government had determined Islamic State to be a terrorist organisation, or because he knew that in the ordinary course of events Islamic State was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.[92]
[91]Using the language of 5.3 of the Schedule to the Criminal Code, Knowledge: A person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.
[92]The former circumstance aligning with 102.1(b) of the Criminal Code definition of a terrorist organisation and the latter circumstance aligning with s 102 .1 (a) within the same definition.
Regarding the first key difference between the parties to charting the elements, the Crown has not listed that the accused must be proved to have intended to do an act or acts pleaded as providing support or resources. I see no warrant for dissecting the fault and conduct elements of providing support or resources in the way contended by the Defence. The charge is not one of intending to do an act or acts of providing support or resources.
As to the second difference between the parties, where the Crown has not included as an additional component of the fault element of intention for the physical element of conduct that 'the accused intended that the support or resources would help the organisation engage in preparing, planning, assisting in or fostering the doing of a terrorist act', the difference in approach may turn on a matter of semantics. The Crown’s approach, mirroring the structure of s 102.7(1), is to the effect that the Crown need only establish that the accused intended to provide support or resources of a character such as would help the organisation in the ways particularised. This, in my view, is the correct approach.
The physical element that must be established is conduct (that the accused provided support or resources to an organisation), the support or resources being of a character that would help the organisation engage in the activity described in the remainder of clause (a). This characteristic of the support or resources is an objective characteristic, but since the fault element for the physical conduct is intention, the accused must intend to provide support or resources of that character.
Going to the third difference in the parties’ approach to charting the elements of Charge 1, the Defence submit that directions as to the legal meaning of an ‘organisation’ will be required regarding the physical conduct element of providing support or resources to an organisation and the accompanying fault element of intention to provide support or resources to an organisation. The Crown seeks to rely on s102.1(b) of the Code definition of ‘terrorist organisation’ and the listing of Islamic State as a terrorist organisation to establish the physical circumstance that the support or resources were provided to an organisation that was a terrorist organisation.
In my view, the jury would need to be directed as a matter of law that Islamic State was a listed terrorist organisation at the time of Charge 1. This would obviate the need for the jury to be instructed about the legal meaning of an organisation in accordance with the approach adopted in R v Benbrika[93] in considering the physical conduct and physical circumstance element of Charge 1 and accompanying fault elements. I accept the Crown’s submission about what must be proved to show knowledge of the physical circumstance that Islamic State was a terrorist organisation at the relevant time.
[93][2009] VSC 142.
Regarding the fourth difference, where the Defence submits that it must be proved that the accused intended the recipient of the support or resources to be the same organisation throughout the charge period, this is really just a matter for evidentiary directions rather than being an element of the offence.
Going to the fifth difference of approach to the elements, where the Defence have included the necessity to rebut any defence raised on the evidence: if the Defence met the evidential onus for raising a defence such as duress or sudden and extraordinary emergency, then the Crown would be obliged to negative any such defence beyond reasonable doubt.[94] I accept the Defence submission that it is open to treat the requirement to negative any defence for which the evidential onus is met as an essential element of proof.
[94]Criminal Code, Div 13, s 13.1(1) provides that the prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged and s 13.1(2) provides that the prosecution bears a legal burden of disproving any matter in which the defendant has discharged an evidential burden of proof imposed on the defendant. Further, subsection (1) of s 13.3 provides subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only, and subsection (2) states that a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter. Part 2.3 provides for circumstances in which there is no criminal responsibility.
Regarding the sixth difference in approach to listing the elements, where the Defence has included the statutory alternative of recklessness pursuant to s 102.7(2),[95] instruction on reckless knowledge may be necessary if the requirements of s 102.10 (alternative verdicts) are met.
[95]As to the accused's knowledge that the organisation to which he provided support or resources was a terrorist organisation.
In considering the elements of Charge 1, I have been assisted by reference to the trial and appeal proceedings for Benbrika and others. The Court of Appeal in Benbrika v R considered the elements of offences prosecuted under s 102.7(1), during examination of the conviction and sentences of the applicants for being members of a terrorist organisation, and related offences.[96] The court considered the Criminal Code definition of ‘organisation’ in s 100.1 and the definition of ‘terrorist organisation’ in Section 102.1, observing that those definitions also necessitated reference to the definition of ‘terrorist act’ in s 100.1(1). The court reviewed and upheld the additional directions given to the jury by the learned trial judge as to how to interpret and understand the Code reference to an ‘organisation’. However, in that case the Crown had to establish the existence of the terrorist organisation directed by Benbrika through reliance on the extended definition of a terrorist organisation under s 102.1(a) of the Criminal Code.
[96](2010) 29 VR 593.
Regarding the membership charges, the court observed that the trial was conducted on the basis that the charge of membership of an organisation gave rise to two separate issues: firstly, whether the Crown could prove the existence of an ‘organisation’, and secondly, whether each accused could be shown to be a member of the organisation. It was in that context that the trial judge then provided extensive directions to the jury as to the meaning of the term ‘organisation’, identifying various indicia for finding the existence of an ‘organisation‘.[97]
[97]Derived from indicia laid down by Mandie J in considering the word ‘association’ in Kibby v Registrar of Titles [1999] 1 VR 861.
Aimen Joud, Fadl Sayadi, and Ahmed Raad, were each charged with and convicted of intentionally being a member or a terrorist organisation, pursuant to s 102.3(1), as well as intentionally providing resources to a terrorist organisation, pursuant to s 102.7(1).
Taking the example of Fadl Sayadi, he was convicted on Count 1: intentionally being a member of a terrorist organisation (pursuant to s 102.3(1)) and Count 5: (pursuant to s 102.7(1)), that between 1 July 2004 and 8 November 2005, at Melbourne and elsewhere, he intentionally provided resources to a terrorist organisation, in that he made himself available to the organisation as a source of supply, support, information, aid or encouragement that would help the organisation directly or indirectly foster or prepare the doing of a terrorist act, by undertaking a leadership and administrative role in the organisation, knowing that it was a terrorist organisation.
Count 5 for Sayadi was further particularised in the indictment:
[t]he organisation was a terrorist organisation in that it was an organisation that was directly or indirectly engaged in fostering or preparing the doing of a terrorist act.
The ‘terrorist act’ was an action or threat of action involving the detonation of an explosive or incendiary device or the use of weapons.
The action or threat of action was to be done or threatened with the intention of advancing a political, religious or ideological cause, namely the pursuit of violent jihad, and with the intention of either:
(a)Coercing or influencing by intimidation the Government of the Commonwealth or a State, Territory or foreign country or a part of a State, Territory or foreign country; or
(b)Intimidating the public or a section of the public.
The action, if carried out, would:
(a)Cause serious harm that is physical harm to a person; or
(b)Cause serious damage to property; or
(c) Cause a person’s death; or
(d) Endanger a person’s life, other than the person taking the action; or
(e) Create a serious risk to the health or safety of the public or a section of the public.
The action or threat of action was not to be done as advocacy, protest, dissent or industrial action. Alternatively, if the action or threat of action were advocacy, protest, dissent or industrial action, it would not be of a kind not intended to:
(a) Cause serious harm that is physical harm to a person; or
(b) Cause a person’s death; or
(c) Endanger the life of a person, other than the person taking the action; or
(d) Create a serious risk to the health or safety of the public or a section of the public.[98]
[98]Benbrika v R (2010) 29 VR 593, 680 – 1.
Review of the framing of the indictment against Fadl Sayadi for the offence under s 102.7(1) supports the Crown's approach to framing the indictment for Charge 1 in the present case and assists with consideration of the essential elements of the charge.
In summary, I accept that the Crown document setting out the elements of Charge 1 does so in accordance with the Criminal Code.
I consider that it is not necessary to further disaggregate the fault and conduct elements by reference to the doing of an act or acts, nor is it necessary to expand the fault element by listing a separate requirement that the accused intended that the support or resources would help the organisation engage in preparing, planning, assisting in or fostering the doing of a terrorist act.
I am satisfied that the Crown’s listing of the physical conduct and physical circumstance and accompanying fault elements for Charge 1 is in accordance with what is required for an offence alleged under s 102.7(1) of the Criminal Code.
It is not an element of the offence that the Crown prove that the accused intended that the organisation was the same organisation throughout the charge period, but concurrence of the elements of the offence is a matter for evidentiary directions. Defence arguments about the need to show concurrence of the elements for a charge framed as a continuing criminal enterprise are dealt with in response to the substantive arguments below.
In setting out the elements of proof for Charge 1, if the evidential onus for a specific defence is met the jury would need to be told that the Crown must negate such defence beyond reasonable doubt.[99]
[99]The Queenv Khazaal (2012) 246 CLR 601.
It might also be necessary to direct the jury about the statutory alternative of reckless knowledge that the organisation to which he provided support or resources was a terrorist organisation pursuant to s 102.7(2).
Elements of Charge 2
Turning to consideration of the parties approach in listing the elements of Charge 2, it is first necessary to set out the sections of the CFIR Act that were in force at the time of the alleged offence.
When in force, ss 6 and 7 of CFIR Act provided:
6 Incursions into foreign States with intention of engaging in hostile activities
(1) A person[100] shall not:
[100] Although s 6 refers to a prohibition on a person (singular) engaging in a hostile activity this usage is capable of being applied to the plural ‘persons’ consistently with the Acts Interpretation Act 1901 (Cth) s 23(b).
(a) enter a foreign State with intent to engage in a hostile activity in that foreign State;
or
(b) engage in a hostile activity in a foreign State.
Penalty: Imprisonment for 20 years.
(2) A person shall not be taken to have committed an offence against this section unless:
(a) at the time of the doing of the act that is alleged to constitute the offence, the person:
(i) was an Australian citizen; or
(ii) not being an Australian citizen, was ordinarily resident in Australia; or
(b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose.
(3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State;
(aa) engaging in armed hostilities in the foreign State;
(b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury;
(c) causing the death of, or bodily injury to, a person who:
(i) is the head of state of the foreign State; or
(ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or
(d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State.
(4) Nothing in this section applies to an act done by a person in the course of, and as part of, the person’s service in any capacity in or with:
(a) the armed forces of the government of a foreign State; or
(b) any other armed force in respect of which a declaration by the Minister under subsection 9(2) is in force.
(5) Paragraph (4)(a) does not apply if:
(a) a person enters a foreign State with intent to engage in a hostile activity in that foreign State while in or with an organisation; and
(b) the organisation is a prescribed organisation at the time of entry.
(6) Paragraph (4)(a) does not apply if:
(a) a person engages in a hostile activity in a foreign State while in or with an organisation; and
(b) the organisation is a prescribed organisation at the time when the person engages in that hostile activity.
(7) For the purposes of subsections (5) and (6), prescribed organisation means:
(a) an organisation that is prescribed by the regulations for the purposes of this paragraph; or
(b) an organisation referred to in paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.
(8)Before the Governor-General makes a regulation prescribing an organisation for the purposes of paragraph (7)(a), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering:
(a) a serious violation of human rights; or
(b) armed hostilities against the Commonwealth or a foreign State allied or associated with the Commonwealth; or
(c) a terrorist act (as defined in section 100.1 of the Criminal Code); or
(d) an act prejudicial to the security, defence or international relations of the Commonwealth.
7 Preparations for incursions into foreign States for purpose of engaging in hostile activities
(1) A person shall not, whether within or outside Australia:
(a) do any act preparatory to the commission of an offence against section 6, whether by that person or by another person;
…
(e) give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6;
…
(1A)A reference in subsection (1) to the commission of an offence against section 6 is a reference to the doing of an act that would constitute, or would but for subsection 6(2) constitute, an offence against section 6.
(1B)A person shall not be taken to have committed an offence against this section merely because of doing an act by way of, or for the purposes of, the provision of aid of a humanitarian nature.
(2)A person shall not be taken to have committed an offence against this section in respect of the doing of an act outside Australia unless:
(a) at the time of the doing of that act, the person:
(i) was an Australian citizen; or
(ii)not being an Australian citizen, was ordinarily resident in Australia; or
(b) the person was present in Australia at any time before the doing of that act and, at any time when the person was so present, his or her presence was for a purpose connected with that act, or for purposes that included such a purpose.
Penalty: Imprisonment for 10 years.
‘Foreign State’ was defined in s 3 to mean ‘a place outside Australia that is:
(a) an independent sovereign state; or
(b)an area of land (whether or not it is self‑governing) that is not part of an independent sovereign state’.
Finally, s 3A applied Chapter 2 of the Criminal Code.
Crown submissions
The Crown submits that the elements of Charge 2 are as follows:
The prosecution must prove beyond reasonable doubt that -
1. Between about 8 May 2014 and about 29 July 2014, the accused performed services for another person or any body or association of persons; and
2. The services were provided with the intention of supporting or promoting a person or persons to engage in hostile activity in a foreign State.[101]
[101]It should be noted that although s 6 uses the words ‘engage in a hostile activity … ’, the Crown have omitted the indefinite article in their summary of the elements.
The person, body or association of persons
The prosecution must prove beyond reasonable doubt that the accused performed services for any other person, any body or association of persons. The prosecution alleges the accused performed services for another person or persons who were part of a group or groups of men of predominantly Chechen and North Caucasian origin.[102]
[102]The Crown’s charting of this element previously referred to ‘and/or Islamic State’ in accordance with the previous indictment, but this is no longer relevant to the redrawn charge.
Services performed
The prosecution must prove beyond reasonable doubt that the accused performed a service or services for any person, body or association of persons.
The prosecution alleges that the accused performed the following services:
(i) carrying out guard duty; and/or
(ii) undergoing training; and/or
(iii) undertaking reconnaissance; and/or
(iv) maintaining weapons; and/or
(v) providing medical services.
The prosecution need only prove that, at some point between 8 May 2014 and 29 July 2014 the accused provided services for a person, body or association of persons.
Intention to support another person to engage in hostile activity
The prosecution must prove beyond reasonable doubt the accused provided services with the intention of supporting or promoting another person or persons to engage in hostile activity in Syria.
A person will have engaged in hostile activity where they do an act with the intention of achieving any one or more of the following objectives:
(a) the overthrow by force or violence of the government of Syria or a part of Syria, or
(b) engaging in armed hostilities in Syria, or
(c) causing by force or violence the public in Syria to be in fear of suffering death or personal injury, or
(d) causing the death of, or bodily injury to, a person who was the head of state of Syria or who held or performed any of the duties of a public office of Syria or of a part of Syria, or
(e) unlawfully destroying or damaging any real or personal property belonging to the government of Syria or of a part of Syria.
The prosecution does not need to prove that the services provided by the accused did in fact support or promote another person or persons to engage in hostile activity in Syria or that any of the above objectives were achieved. The prosecution only needs to prove that the accused provided services with the intention of supporting or promoting another person or persons to engage in hostile activity.
Australian citizen or resident
The prosecution must prove that at the time the accused did the act outside Australia, he was an Australian citizen.[103]
[103] The accused was an Australian citizen at the time of the offence; Crown, Elements of the Offences, 8.
Defence submission as to the elements of Charge 2
The Defence submits that the elements of Charge 2 are:
The Accused performed services
a. Intending to do the relevant acts particularised as ‘the services’;
b. Intending to provide those services to the person or body or association of persons particularised;
c. Intending that those services would support or promote the commission of an offence against s 6, namely:
i.that the person or body or association of persons particularised;
ii.would do an act or acts (particulars required) in the foreign state;
iii.with the intention of achieving one or more of the objectives of:
(a) overthrowing by force or violence the government of the foreign state of a part of the foreign state;
(aa) engaging in armed hostilities in the foreign state;
(b) causing by force or violence the public in the foreign state to be in fear of suffering death or personal injury;
(c) causing the death of, or bodily injury to, a person who:
(i) is the head of state of the foreign state; or
(ii) holds, or performs any of the duties of, a public office of the foreign state or part of the foreign state; or
(d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign state or of a part of the foreign state.[104]
[104]Defence Written Submissions, [65].
The prosecution must disprove any defence raised on the evidence.
Consideration
I have considered the parties listing of the elements in light of R v Alqudsi,[105] R v Mohamed (No 1)[106] and Alqudsi v R.[107]
[105](2015) 328 ALR 517.
[106][2015] VSC 290 (‘R v Mohamed (No 1)’).
[107](2015) 91 NSWLR 92.
The main differences in approach between the parties listing of the elements of Charge 2 include firstly, that the Defence have disaggregated the first physical element of conduct by referring to 'performance of relevant acts particularised as the services'.
Secondly, the Defence have disaggregated the fault element by separately listing an intention to perform services for the person, body or association of persons particularised. Both parties are agreed that the Crown must prove that the accused performed services for the particularised recipient. However, the Defence submit that the fault element of intention requires proof of an intention to perform the services for the particularised recipient.
The Defence submit that ‘[t]he single physical element of conduct must be accompanied by an intention to do the conduct, and an intention that the conduct be of a certain quality’.[108]
[108]Defence Written submissions, [64].
Therefore, whilst both parties agree that the physical conduct that must be proved is that the accused performed services for the particularised recipient with the accompanying fault element that the accused had the intention of supporting or promoting the commission of an offence under s 6 of the CFIR Act (ie. supporting or promoting a person or persons to engage in a hostile activity in a foreign state ),[109] the Defence contends for a direction regarding the fault element of intention that the accused must be shown to have intended to perform the conduct (including by implication intending all of the physical components of the conduct).
[109]Although the indictment does not specify s 6(1)(b), the elements chart provided by the Crown does make it clear that s 6(1)(b) is being relied on.
Section 7(1) requires that the person performing the services for any other person or any body or association of persons have the accompanying intention to support or promote the commission of an offence against s 6. In the present case, the putative s 6 offence allegedly intended to be supported or promoted is particularised in the indictment as the engagement by another person or persons[110] in a hostile activity in a foreign state, namely Syria, by doing an act or acts with the intention of achieving one or more of the objectives listed thereunder.
[110](who were part of a group or groups of men of predominantly Chechen or North Caucasian origin).
The conduct of engaging in a hostile activity in a foreign state is exhaustively defined in s 6(3) of the CFIR Act as doing an act with the intention of achieving any one or more of the objectives listed in s 6(3)(a) to (d) (whether or not such an objective is achieved). The indictment is drafted by reference to this inclusive definition.
I interpolate here that when comparing the Crown's charting of the elements of Charge 2 with the filed over indictment the Court observed an anomaly that was not addressed by the parties in their submissions. The Crown’s revised elements chart contained a change to the wording of the description of the ‘person, body or association of persons’ for whom the services were allegedly performed compared to the original Crown elements chart. The revised elements chart added the words ‘another person or persons who were part of a group or groups of men of predominantly Chechen and North Caucasian origin’. This wording differs from the wording in the indictment. The indictment would need to be further amended if the Crown sought to encompass the additional words adopted in its revised elements chart. Amending the indictment in this way would make it congruent with the wording used to describe the putative s 6 offender(s) in the filed over indictment in the ‘Particulars of the offence against section 6’. Although the offence does not require that the putative s 6 offender is, or derives from the same entity as the recipient of the services, in this instance the Crown appears to be alleging that they were.[111]
[111]Charge 2 was amended following questions from the court including a question whether it was alleged that the recipient of the services was the same entity as the putative s 6 offender, since this was implicit in the Crowns written submissions but was not explicit in the wording of the indictment.
The description in the indictment of the recipient of the services as ‘a group or groups of men of Chechen and North Caucasian origin’, falls within the ambit of the language of s 7(1)(e), ‘a body or association of persons’, although a person (singular), as used in the Crown’s elements chart, would not appear to fall within this description.
If the pleading in the indictment of the ‘Particulars of the person or body or association of persons’ for whom services were performed were amended to state ‘another person or persons who were part of a group or groups of men..’ consistently with the Crown’s charting of the elements, this description would also conform with the broad language used in s 7(1)(e).
In reviewing the parties submissions on the elements of Charge 2, I am satisfied that the offence creating provision entails one physical element of conduct (the performance of services for the particularised recipient) and one accompanying fault element of intention, being intention to perform services of a particular character (supporting or promoting the commission of an offence against s 6). However, the fault element is open to be described as a composite fault element incorporating the intention to perform the services.
The elements of an offence under a related provision, s 7(1)(a) of the CFIR Act, were considered by his Honour Lasry J in R v Mohamed (No 1).[112]
[112][2015] VSC 290.
His Honour noted that the CFIR Act was created in 1978 in response to a perceived need for law reform concerning the related issues of incursions into foreign countries by Australian citizens and the recruitment in Australia of persons to serve in armed forces in foreign countries. Section 6 dealt broadly with incursions into foreign countries and s 7 with preparations for incursions. His Honour reviewed the history of amendments to the Act and observed that in 2001 Parliament passed the Law and Justice Legislation Amendment (application of Criminal Code ) Act 2001 (Cth), harmonising the CFIR Act with general principles of criminal responsibility, which by then were set out in Chapter 2 of the Second Schedule of the Criminal Code. The amending Act inserted s 3A into the CFIR Act providing that Chapter 2 of the Criminal Code applied to offences under the CFIR Act. The amending Act also amended many of the offence provisions in the CFIR Act in line with Criminal Code conventions.
One question considered by his Honour was the nature of the intention required to be proved under s 7(1)(a) at the time of doing an act preparatory to the commission of an offence against s 6 of the CFIR Act. Section 7(1)(a) provided that: ‘[a] person shall not whether within or outside Australia: (a) do any act preparatory to the commission of an offence against section 6 , whether by that person or by another person…’.[113]
[113]CFIR Act, s7(1)(a).
His Honour noted that the accused’s submission was that s 7(1)(a) consisted of one physical element of conduct with the relevant accompanying fault element of intention; the accused must intend to do an act preparatory to an offence against s 6 whilst intending it to be so. The Crown submitted that the offence created a physical element of conduct; doing an act, along with a physical element of circumstance; that the act be preparatory to the commission of an offence against s 6. The accused submitted that it was artificial to disaggregate the act in preparation in this manner and that the reference to the preparatory nature of the proscribed act merely imbued the act with a particular character. His Honour accepted the Defence submission, holding that the provision did not read naturally in two parts. His Honour referred to the Explanatory Memorandum to the 2001 amending Act, noting that the failure to clearly indicate a separate physical element of result or circumstance, which would entail an accompanying presumptive fault element, supported an interpretation that s 7(1)(a) was not meant to contain more than one fault element.
Although the charge Lasry J considered differs from the present case by alleging an act preparatory to the commission of an offence against s 6, rather than performing services with the intention of supporting or promoting the commission of an offence against s 6, both offences are included under the title to s 7: ‘Preparations for incursions into foreign states for the purpose of engaging in hostile activities’. The reasons given by his Honour for interpreting s 7(1)(a) as involving one physical and fault element appear applicable to the s 7(1)(e) offence before me. The s 7(1)(e) offence also reads more naturally as one composite offence with one physical element and one fault element, rather than being composed of two parts.
In R vAlqudsi, Adamson J agreed with Lasry J’s interpretation in response to a submission that s 7(1)(e) involved two fault elements stating:
The Defence submits that since multiple potential acts and categories of conduct have been particularised between dates for each charge, uncertainty arises as to the nature of the conduct relied on and as to when within the charge periods certain actions are alleged to have begun and ended. The Chechen group(s) that the accused is alleged to have performed services for in Charge 2 may have changed over the period of the charge, and differing defences may be available at different times within the charge periods and in relation to different categories of conduct for each of the charges.
In considering the complaint of latent duplicity, the case of Benbrika v R[277] provides helpful guidance. In that case, the Court of Appeal considered an argument put on behalf of Merhi that his conviction on the charge of membership was affected by latent duplicity because the evidence established a break in membership for some period in mid-2005, so that it was reasonably possible that there were two distinct periods of membership. The argument was made that the Crown did not elect to rely on one period, rather than the other, and the trial judge did not direct the jury that they must be unanimous regarding the point in time at which Merhi had to be found to be a member. The court rejected the submission, noting that it was never suggested at trial that Merhi may have become a member, and then ceased to be one, since the defence case was that he had never become a member. The Crown case was that he became a member late in 2004 and remained a member until his arrest in late 2005. The court said:
[o]ne may conjure up all sorts of theoretical possibilities, some of them quite fanciful, as to the basis upon which the jury’s verdict regarding Merhi on count 1 rested. However, the only sensible interpretation of that verdict is, we consider, that the jury accepted the Crown’s case.[278]
[277](2010) 29 VR 593.
[278]Ibid, 690 [466].
The court also rejected an argument put on behalf of Merhi that the trial judge erred in not directing the jury that, because the Crown’s case was that Merhi was a member throughout the entire period from late 2004, until his arrest in November 2005, the Crown had to prove that he was a member throughout that whole period. The court said that although the Crown alleged that Merhi had been a member for the entire period, it was open to convict him of the offence charged if satisfied beyond reasonable doubt that he had been a member at any time within that period.
The Court of Appeal also considered a complaint put on behalf of Sayadi firstly that various particulars provided to the Defence were not included in the indictment and secondly that inadequate particulars were provided. The court found 'no basis for thinking that Sayadi did not know precisely what case he had to meet'.[279] In the case of Sayadi, the court was required to consider whether his convictions on the charge of membership and the charge of providing resources to a terrorist organisation were unsafe and unsatisfactory. The court summarised a number of items of evidence that demonstrated that they were not. The range of matters referred to by the court shows that a number of items of evidence led to establish the provision of resources to the organisation, also went to establishing the membership offence. Indeed, in considering the sentence appeals the court treated the offences of providing resources as involving an overlap with the membership offence. The items of evidence referred to comprised a range of different actions committed by the accused with the accompanying state of mind required to be proven to establish each offence.
[279]Ibid, 682 [413].
As with my conclusion in respect of patent duplicity, I have concluded that latent duplicity does not arise from the Crown’s reliance on differing categories of conduct being carried out at different times over the charge periods. The physical conduct of the accused relied on to establish each charge is appropriately subsumed within each of the charges without giving rise to latent duplicity.
The Defence asserts that the Crown must prove that the offending continued throughout the period of each charge since the charges are brought as continuing offences. As submitted by the Crown, however, Benbrika v R is authority for the proposition that charges of the kind put forward here may be laid between dates and if laid as such, are capable of being established by proof of the offending at any time or for a period of time within the between dates charge period.[280]
[280]Benbrika v R (2010) 29 VR 593, 686 [445] and [446].
A central feature of the continuing criminal enterprise alleged by the Crown for each charge however, is the accused’s intention in performing the specified conduct. Therefore, the framing of each charge as a continuing enterprise requires satisfaction by the jury that the Crown has proven concurrence of the elements of the offence in a sufficiently ongoing manner to meet the description of a continuing criminal enterprise. Some degree of persistence in the prohibited conduct would need to be shown within the charge periods, rather than an isolated act or acts, although the conduct would not need to be shown to have subsisted throughout all or even the majority of the charge periods. Given the way the case is put by the Crown as set out in the Revised SPO, it is apparent that the Crown do allege continuing conduct by the accused for each charge.
In approaching the complaint that the Defence will suffer prejudice by being unable to locate the alleged offending within the between dates period, or by being unable to advance a defence for some conduct within that period where the defence may not be available for other conduct within that period, the nature of the Crown case disclosed in the Revised SPO must be considered.
Benbrika v R underlines the importance of viewing complaints about duplicity and particulars in a realistic context, giving proper consideration to the scope of available evidence relied on by the Crown to establish the continuing conduct alleged. In considering the examples of conduct specified for each charge, it must be remembered that the Defence presently denies performing any such conduct. Therefore, the consideration of the availability of defences is at this stage quite preliminary. Regarding Charge 1, for the evidential burden to be met under s 13.3 of the Criminal Code, the accused must adduce or point to some evidence in support of a claimed defence of the kind foreshadowed in their submissions.[281] The framing of the charges as a single continuing criminal enterprise does not prevent a defence being raised to specific conduct if the evidential onus is met.
[281]The Queen v Khazaal (2012) 246 CLR 601, 606 [12].
In approaching a claim of latent duplicity, a prominent consideration is whether the Defence has adequate notice of how the evidence will be used to prove the continuing criminal enterprise alleged for each charge.
In answer to the request for particulars as to how the support or resources would help the organisation in preparing, planning, assisting in or fostering the action or threat of action constituting a terrorist act, the Crown stated by way of example :
‘[m]aking himself available to the organisation as a source of support, labour or assistance, including by undertaking guard duty and providing medical services’ would help the terrorist organisation to pursue its political, religious and strategic aims by:
-protecting the personnel and assets of the terrorist organisation, contributing to the essential defensive activities of a group engaged in armed conflict;
-freeing up fighters or insurgents to engage actively in combat and other activities necessary for the achievement of the organisation’s aims;
-participating in and supporting the activities of the terrorist organisation in preparation for, and engagement in, battles or operations; and
-providing medical services to members of the organisation, allowing them to engage in combat and other activities necessary for the achievement of the organisation’s aims.[282]
[282]Revised Crown Particulars, [4](d).
The conduct referred to in Charge 1 was allegedly committed by the accused whilst intentionally present in Syria, offering assistance and support in an ongoing way in strategic locations where military operations were being carried out by the alleged organisation.
In reviewing the charts annexed to the Defence submission, which are intended to demonstrate the lack of certainty as to the precise physical conduct subsumed in each charge, it is apparent that much depends on how the alleged admissions to conduct made by the accused are interpreted and used. As with cases involving ongoing trafficking of illicit drugs or fraudulent activity, assertions about available inferences from conversations, online postings or other communications may be disputed. Nevertheless, the Crown relies on this material as evidence supporting ongoing physical conduct of providing support or resources to Islamic State with the accompanying intention required for Charge 1, and ongoing performance of services for the Chechen group(s) with the intention required for Charge 2. The fact that each instance of the alleged physical conduct or accompanying intent may be disputed by the Defence does not lead to the need to quash the indictment because of uncertainty or duplicity.
As already mentioned by reference to patent duplicity, it is open for the Crown to allege the three categories of conduct in Charge 1 as demonstrating the ways in which the accused continuously made himself available to Islamic State as a human resource and the five categories of services referred to in Charge 2 as demonstrating the ways in which he performed services in support or promotion of the putative s 6 offence.
The distinctions highlighted by the Defence as to the disparate categories of support or resources or services allegedly provided by the accused are ephemeral in the light of the factual circumstances elaborated in the Revised SPO. The Defence does have sufficient information to know what case must be met for each charge.
Regarding the argument as to latent duplicity based on procedural unfairness that different jurors might rely on only some of a number of examples of conduct, rather than being unanimous on the same instances of conduct in reaching their verdicts, the authorities do not require unanimity regarding every act or kind of act relied on by the Crown to prove a continuing criminal enterprise. It is not necessary for the jury to be unanimous as to the proof of every incident of alleged ‘support or resources’ or ‘services’, or as to whether all or only some of the categories apply to the conduct.
As to the argument about procedural fairness where the continuing criminal enterprise is pleaded on a between dates basis leading to a risk that a defence will only be available for some acts within the time span but not others, the jury will need to be directed to be unanimous regarding concurrence of the elements of proof for each charge, and as to proof of each charge as a continuing criminal enterprise, including excluding any applicable defence beyond reasonable doubt.
This approach is consistent with the reasoning in R v Hamzy and R v Moussad,[283] and aligns with other cases charging continuing criminal enterprise offences such as drug trafficking, fraud and the like.
[283]R v Moussad (1999) 152 FLR 373; R v Hamzy (1994) 74 A Crim R 341.
Regarding the complaint of the risk of uncertain verdicts in respect of each charge, there may be some complexity arising from the charges alleging multiple potential acts of provision of support or resources or performance of services, but this complexity arises in part from the nature and scope of the underlying continuing criminal enterprise allegedly involving ongoing presence in Syria in locations occupied by foreign fighters or by Islamic State. Throughout the periods of the charges the Crown alleges that the accused maintained a commitment to jihad. After the declaration of the Caliphate the Crown case is that the accused expressly supported Islamic State and the Caliphate. This conduct is best suited to single continuing enterprise charges rather than charging multiple distinct acts on individual dates or date ranges. The latter approach could give rise to a valid complaint about an overloaded indictment.[284]
[284]See R v Smart [1983]VicRp 22;[1983] 1VR 265.
Whilst the precise acts upon which the jury might reach a verdict would not be known, any verdict would need to be interpreted in light of each charge being framed as an enterprise offence. I accept the approach adopted by the New South Wales Court of Criminal Appeal in R v Moussad[285] that the risk of complexity in fact finding on sentencing for any convictions obtained by the Crown should not necessarily lead to a charge being held to be bad for uncertainty or duplicity.
[285](1999) 152 FLR 373.
Charge 1 comprises conduct involving ongoing provision of support or resources to Islamic State and as such the conduct captured within the charge has a sufficient connection to be regarded as the one criminal enterprise. It is not bad for latent duplicity as a result of unfairness or uncertainty.
I have also concluded that the conduct relied on for Charge 2 is not bad for latent duplicity. It is the intention governing the conduct under s 7(1)(e) which is central to treating the offence as a single criminal enterprise. The title to s 7, ‘Preparations for incursions into foreign states for the purpose of engaging in hostile activities’, signifies the potentially preliminary nature of offences brought within the provision. The range of services allegedly performed by the accused are connected by a unity of purpose and are appropriately subsumed in a single charge based on a continuing criminal enterprise. The accused is alleged to have performed the conduct including the different categories of services with the intention of promoting or supporting the commission of a s 6 offence.
Regarding the Defence argument that the recipient of the services (the Chechen group(s)) may have changed over the period of Charge 2 , giving rise to uncertainty or latent duplicity, the obligation is on the Crown to establish the performance of services for the specified recipient(s) particularised in the charge.
The Crown alleges that the accused’s performance of services for the Chechen group(s) occurred in the context of armed conflict being conducted against the government forces in Syria at that time. If the services were performed for the Chechen group(s) intending to support or promote the commission of a s 6 offence by another person or persons who were part of the Chechen group(s), then that conduct would fall within the offence provision without offending the rule against latent duplicity. This is so even if the putative s 6 offence or offender was not precisely known by the accused at the time of performance of the services.
Regarding each of the two charges, I do not consider that the indictment as framed is procedurally unfair to the accused. It is likely that the evidence relied on in proof of the charges would be largely cross-admissible. For each of the charges, segregating the different occasions of provision of support or resources or provision of services based on categories of conduct, daily, weekly or monthly time periods, or any other such constructs, would introduce an unnecessary degree of complexity and artificiality into the proceeding.
The accused will not be deprived of the opportunity to advance a defence or lawful excuse to each charge. The Defence has referred to this risk arising because of the ongoing periods over which the charges are framed whereby duress or emergency may arise for certain time periods with the charge periods. Certain aspects of alleged conduct might align more closely to ‘humanitarian aid’ within certain time periods. However, in my view, the Defence is presently entitled to seek to raise a defence or ‘avoidance of doubt provision’ for each charge.
Having considered the Defence submission that for Charge 1 there is a structural obstacle to reliance on the defences under 10.2 and 10.3 of the Criminal Code because they relate to an offence, I accept the submissions advanced by the Crown. Consideration of the wording of the defences set out on 10.2 and 10.3 within the wider context of the Criminal Code supports the construction that a person is not criminally responsible for conduct constituting the offence if the defence applies to that conduct. Any conduct relied on by the Crown as going towards proof of a continuing offence under s 102.7(1) would need to be put aside by the jury if the Crown could not disprove the application of the defence to that conduct beyond reasonable doubt.[286]
[286]The above discussion of the Criminal Code is predicated on the evidential onus having been met by the Defence.
Regarding each of the charges on the indictment, the jury would be required to apply directions regarding any such defences or avoidance of doubt provisions in their decision as to whether the Crown have established all the elements of each charge and negatived any available defence or ‘avoidance of doubt provision’. By way of example this may require instructing the jury as to what is encompassed by the defence of humanitarian aid for Charge 2, without the need for the Defence to meet an evidential onus for that charge. The jury must be directed that if a defence or avoidance of doubt provision is found to apply to conduct relied on by the Crown within the charge periods, failure by the Crown to negate the application of the defence or avoidance or doubt provision for that conduct would require exclusion of that conduct from their consideration of the continuing criminal enterprise alleged.
Ultimately, the Defence complaint about duplicity regarding Charges 1 and 2 is not sustained.
The text of both s 102.7(1) of the Criminal Code and s 7 of the CFIR Act afford the charging of a single offence constituted by one or more acts, and each of the charges is appropriately framed as a continuing criminal enterprise.
Should the Court order further and better particulars?
Separately to the issue of duplicity, the Defence seeks further and better particulars of the charges. Specifically, orders are sought that for Charge 1 the Crown identify each incidence of conduct relied on by date, paragraph of the Revised SPO, and category of conduct by reference to each of the three categories whether:
(i).making himself available as a source of support, labour or assistance; and/or
(ii).undertaking guard duty; and/or
(iii).providing medical services.
The Defence contends that the particulars lacking in the present case are precise particulars of the physical conduct of the accused for each charge, linking that conduct to a specific organisation at a particular point in time. The Defence complains that there are many paragraphs of the Revised SPO cited in the Crown’s particulars, in which conduct that might ultimately be relied on as evidencing provision of support or resources is included, but the Defence does not know whether the conduct will ultimately be alleged to fall within one or more of the categories of support or resources.
The Defence also submits that the particularisation of Charge 2 is inadequate. Again the Defence seeks an order that the prosecution identify each incidence of conduct relied upon to establish the provision of services, by date, paragraph of the Revised SPO and category of conduct pleaded in the indictment under the description of:
-carrying out guard duty
-undergoing training
-undertaking reconnaissance
-maintaining weapons: and
- providing medical services.
Regarding each of the charges the Crown disputes the need for further particulars to be supplied, submitting that sufficient particulars have been provided so that the accused knows what case must be met in respect of each charge. The further particulars provided by the Crown sufficiently indicate what is alleged for each charge, and the Revised SPO elaborates the conduct relied on in support of the charges in intricate chronological detail.
The Crown submits that the accused is not deprived of a fair trial if each instance of physical conduct is not specified by reference to a chosen category of ‘support or resources’ or ‘services’, and required to be established as having occurred at a specified location on a particular date in accordance with a detailed pre-trial template. Such an approach is inconsistent with the way the case is put, where the whole of the evidence available for each charge, including the accused’s movements and location in conflict zones within Syria, is sought to be led to establish the single continuing criminal enterprise alleged in each charge.
Consideration
I am not persuaded of the necessity to order that the Crown provide further particulars of the charges.
On 19 January 2018 the Crown filed a written response to a Defence request for particulars of the charges in respect of the previous indictment. That document was revised and updated on 21 November 2018 after the new indictment was filed (‘the Revised Crown Particulars’). The Revised Crown Particulars refer to the topics itemised in the Defence request for particulars, responding by reference to evidence summarised in the Revised SPO under various topic headings.
Regarding the lack of precise identification of each and every act of support or resources or services relied on to prove each charge, and the lack of precise identification of each individual allegedly involved in that conduct as a beneficiary or recipient of the support or of the resources or services, or in the case of Charge 2, the specification of the putative s 6 offender(s), the nature of the criminal enterprise alleged in each charge must be borne in mind.
Regarding Charge 1, Lodhi demonstrates that offences under Part 5.3 of the Code are frequently composed of an interplay of elements involving multiple characteristics as a result of the complex definitions attaching to terrorism related offences. Charge 1 has been adequately particularised to make clear how the case is put by the Crown.
Charge 2 also involves complex elements, but the particularisation of the alleged conduct is sufficiently plain from the particulars provided.
As already discussed,[287] the indictment is sufficiently detailed and the further particulars and detailed Revised SPO make plain what is alleged. The Defence knows what case must be met in respect of each charge.
[287]See [295] above.
Defence Application for determination of certain questions pursuant to s199 CPA
The Defence applies for determination of certain questions pursuant to s 199 of the CPA, namely:
- Is it enough to sustain a charge for the prosecution to prove that 'at some point' during the charge periods the accused provided support or resources (Charges 1) or services (Charge 2) to the persons, body or organization particularized?
- If not, what requirements must be satisfied to sustain a charge put on a between dates basis?
- Must the individual instances where it is alleged that the accused ‘provided support or resources’ be proven beyond reasonable doubt?
- Must the existence and statutory characteristics of the pleaded organization persist throughout the charge period?
- Can the statutory defences operate in respect of an individual incident within such a charge, to any less standard than beyond reasonable doubt?
As already indicated, the Defence disputes that each of the offences can be established if all of the elements are proven to be in place at some point in time within the between dates period, rather than the whole or the majority of that period.
Whilst Benbrika v R supports the proposition that it is sufficient if the elements of the offence co-exist at any time within the charge period,[288] the principles regarding the limitations on what must be established for a continuing criminal enterprise are not settled. As already indicated however, in line with R v Moussad, I consider that in the present case because each offence is charged as a continuing criminal enterprise, the jury would need to be directed that satisfaction beyond reasonable doubt of isolated occasions of offending would not suffice to establish each charge.[289] The Crown would need to prove beyond reasonable doubt persistent or repeated behaviour meeting the description of a continuing criminal enterprise in respect of each charge, with concurrence of all the elements of the offence for the conduct so found. Whilst not every act relied on by the Crown must be proved beyond reasonable doubt to establish the charge, sufficient acts must be proved to this standard to establish the continuing criminal enterprise alleged.
[288]Benbrika v R (2010) 29 VR 593, 686 [445] and [446].
[289](1999) 152 FLR 373; see discussion at [287].
For Charge 1, in proving concurrence of the elements of the continuing criminal enterprise alleged, the organisation to which the accused is alleged to have provided support or resources is Islamic State, and there is no dispute that the existence and statutory characteristics of Islamic State persisted throughout the charge period.
For Charge 2, the existence of the recipient(s) of the services specified in the charge must be established for the period relied on by the jury as establishing concurrence of the elements of the continuing enterprise offence. This need not be established for the whole period of the charge.
The operation of any defence or avoidance of doubt provision is capable of being raised for individual acts within the charge period, or the whole charge period. If any such defence or avoidance of doubt provision is available the prosecution would be required to negate it’s operation beyond reasonable doubt. However, the operation of any such defence, or avoidance of doubt provision, to exonerate conduct carried out at discrete times within the between dates charge would not necessarily negate proof of a continuing criminal enterprise arising from conduct carried out at some other stage within the between dates period of the relevant charge. The operation of defences under the Criminal Code is otherwise dealt with in these reasons in addressing the substantive arguments above.[290]
[290]See [80], [92], [297] and [307] – [308] above.
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