Director of Public Prosecutions (Cth) v Karabegovic

[2014] HCATrans 179

[2014] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M9 of 2014

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Applicant

and

ADNAN KARABEGOVIC

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 2014, AT 12.33 PM

Copyright in the High Court of Australia

MR J.W. RAPKE, QC:   If the Court pleases, I appear with my learned friend, MR D.D. GURVICH, for the applicant.  (instructed by Director of Public Prosecutions (Cth))

MR M.G. O’CONNELL, SC:   If the Court pleases, I appear with my learned friend, MS G.M.E. MORGAN, on behalf of the respondent, Mr Karabegovic.  (instructed by Robert Stary Lawyers)

HAYNE J:   Yes, Mr Rapke.

MR RAPKE:   If the Court pleases. Your Honours, the application invites the Court to consider the nature of the connection required by section 101.4(1)(b) of the Criminal Code, before it could be said that a thing possessed by an accused is connected with assistance in a terrorist act.  Now, we acknowledge that the first thing we need to grapple with is the reluctance of this Court to grant special leave to appeal from interlocutory decisions.  We set out in our submissions a number of factors which we contend favour the grant of special leave, albeit that the Court has expressed from Elliott onwards a disinclination to do so.

We want to make, if we may, two or three additional points in respect of that issue though.  Terrorism and the appropriate legislative response to it are matters which are presently being considered by security agencies and the Government of Australia ‑ ‑ ‑

KIEFEL J:   How does that affect our consideration?

MR RAPKE:   Because it is very likely – in fact, it is almost inconceivable – that in the course of that consideration that there will not be consideration of the adequacy of the present laws.  Now, it will be of assistance ‑ ‑ ‑

KIEFEL J:   But the question which might be for this Court, as you would contend, is a question of construction of the Act as it presently is.

MR RAPKE:   That is so, but we contend that the construction of the Act in Victoria as given by the Court of Appeal in Karabegovic, following the Court of Appeal in Benbrika, so constrains the effectiveness of the legislation and is contrary to the intention of Parliament, as identified in the authorities, that if it were to stand the legislative response would presumably be one to amend the legislation, to reflect the legislative intent.

HAYNE J:   If it be the fact that these are matters of current interest to the executive branch of government, does not that fact militate against a grant of leave?  If they do not like the decisions, they are in the position considering the legislation.

MR RAPKE:   The question is, what do the decisions actually say, and that is what this application is about.  It is contended by the applicant that the High Court in Khazaal – certainly the reasoning of the High Court in Khazaal does not sit comfortably alongside the reasoning of the Victorian Courts of Appeal.  So when the government ‑ ‑ ‑

KIEFEL J:   Khazaal was concerned with an unusual fact where the thing itself provided the connection.

MR RAPKE:   That is what we have here.  The contention of the applicant is that that is precisely what we have here.  The thing here is this document, the magazines, and it is contended that if one looks at the content of the magazines, which was what the jury was invited to do in Khazaal and which the High Court said was the appropriate way to approach it, that connection is found within the contents.  But the gloss that has been put on that in Karabegovic, and before that in Benbrika by our Courts of Appeal, is that no, you do not look at the content, what you look at is the intention of some person to use it.  That is the intention, the subjective intention to use which gives carry to the connection, which in fact defines the connection.

KIEFEL J:   Is that a fair reading of what the Court of Appeal said?  It said that, as I had understood it, there has to be a connection with a terrorist act, and that requires something to be either planned or in being, that there actually be a terrorist act.  One may infer that that must be so, because otherwise the offence is mere possession of a magazine, and that cannot possibly be what the offence requires.

MR RAPKE:   With respect, we agree with that, but in Karabegovic, the decision which is the subject of this application, at application book 56 in paragraph 16, they essentially just adopted the tripartite test for connection as set out in Benbrika.  You have three things you need to prove, and the third one of those is that:

the thing is being used, or is intended to be used, in aid of that preparatory activity –

and lest there be any doubt that that was their position, they end up by saying that, at page 64 of the application book in paragraph 40:

For the requisite connection to exist, it must be shown either that the thing is being used in the activity of assisting in a terrorist act or that some person . . . intends that it be so used –

The connection is defined not by the thing itself, not by its contents, but by the intention of some person, not even the accused, to use it in a terrorist act.

HAYNE J:   Does this not perhaps point up quite plainly what may be a large part of the root of the difficulty about these interlocutory appeals, that the court ends up dealing with the matter on hypotheses, and the court does not grapple, and cannot grapple, with facts as they are established at trial, or allegedly established at trial?  We end up uttering judicial glosses on statutory words where the glosses then themselves take on some canonical status and we depart from the legislation and the application of the legislation to the facts as they are established at a trial.

MR RAPKE:   We would agree, with respect, that that is a hypothetical possibility in some cases, but what we are dealing with in this case is pure statutory interpretation for which no foundation of fact is required.  What is now being asked of this Court is to determine what is the nature of the connection which the Crown must establish in order to make out the offence under 101.4.  What is put on behalf of the applicant is that what the High Court said in Khazaal, certainly what the Chief Justice said very plainly – and the plurality, we would contend, is no different – is that it is the nature of the thing itself, its intrinsic nature of the thing possessed by the accused, which establishes the connection.

KIEFEL J:   But that was not a test for all purposes.  It was a test, having regard to the facts of that particular case, where the ebook was made by the accused himself and identified persons as a target for assassination.  That is a long way from magazines which contain recipes which might be used in a terrorist attack.  If you are focusing upon the magazines as a thing themselves here, you are identifying as no more than a mere possibility that what is contained in them, and the instructions, might be used in relation to a terrorist attack.  That seems to be something of a departure from the language of the Act.

MR RAPKE:   Well, certainly we appreciate Khazaal was concerned with a different section, 105, but the wording is substantially ‑ ‑ ‑

KIEFEL J:   And very different facts relating to the thing.

MR RAPKE:   Well, the difference in the facts, with respect, Justice Kiefel, is that in Khazaal, Khazaal had collected from the internet a number of articles, downloaded them, compiled them into a book and had written a commentary or some introduction or some commentary on what he had collected, so he was charged with the making of a document.  The making of the document or the downloading and the creation of the document in that fashion invested him with knowledge of its contents and therefore acknowledged with a connection; we understand that.

But if one possesses a magazine which on its face must be connected to terrorist acts because it encourages terrorist acts, it tells one how to go about carrying them out, how to make bombs, how to shoot guns, how to pick targets, not dissimilar to what was in the Khazaal book, if one has that material in one’s possession, one knows that is the content of the magazines, then we contended that the connection is made out.

The fact of the making is irrelevant.  Provided that one can establish knowledge on the part of the possessor of the item of the accused of the content of the magazines, then that is sufficient, in our submission, for the connection.  The connection is an objective test, in our submission.  That is what, with respect, we put the Chief Justice said in Khazaal, we know they are different facts, but in Khazaal the words of the Chief Justice are broad enough to encompass the possession of any item which the person who possesses it knows contains that sort of material because the connection is apparent on its face.

Now, we understand that one goes with extremes on this spectrum and we get the chequebook example that we find sprinkled throughout the case, examples which I think the cases talk about, anodyne objects.  We understand that when one gets to anodyne objects, which on themselves do not spell the connection, one then looks, as the cases have said, to all the circumstances and one Australian circumstance is the possession, and one Australian circumstance of possession that one would look at in those circumstances is intention. 

So we do not say it does not have any part to play but to suggest, as it has been in Karabegovic and Benbrika, that it is a prerequisite for making out the connection is, first of all, to create, as Justice McCallum said in the dissenting judgment in Khazaal, creation of the new fault element into the offence, but secondly, it is an unwarranted element because the document on its face establishes the connection by nature of the material. 

Now, what this application is all about is to say, well, is the approach of the High Court which we contend is apparent in Khazaal consistent with that in Karabegovic and Benbrika where one has to look at the subjective intent of the use rather than simply objective nature of the material which is being possessed.  To deal, if I may, with the question of whether or not one needs a substratum of facts to determine that, the determination of what connection is required does not require a consideration of the facts in the case, and if there did require any consideration the court has before it the material, the thing possessed by the accused, by the respondent.

That was before the Court of Appeal, annexures to affidavits now before this Court, and this Court is quite capable, as the jury would be in due course, of looking at and saying on its face is it capable of creating that connection with a terrorist act.  Now, your Honours will appreciate that we conceded in the Court of Appeal and we do not come to the contrary here, that on the tripartite test in Benbrika adopted in Karabegovic the first two of those are not in contention.

KIEFEL J:   Does not your construction of section 101.4(1) come down to the addition of these words:

A person commits an offence if:

(a)       the person possesses a thing; and

(b)the thing [might in the future be] connected with preparation for –

MR RAPKE:   Well, the cases have two approaches to this problem.  The first is that the thing is connected, it is capable of being used or is suitable for use in connection with a terrorist act and, therefore, the connection is found within the nature of the very thing itself or, alternatively, the second approach, and this is the Karabegovic/Benbrika approach, the connection is determined by the intention of someone, not necessarily the possessor of the thing but that intention must exist at the same time as possession, to use the thing in aid of a contemplated terrorist act and there must be some preparatory activity for that act underway.  So you have got three things that need to be established in order to establish that connection. 

So they are the two lines that seem to emerge from an examination of the cases.  It is certainly true that what we are contending for is the former of those two, namely, that if the thing is possessed with the first two aspects of Benbrika satisfied, the thing is and is capable of being used, or is suitable for use, then yes, then that would satisfy the statutory requirement of connection.

KIEFEL J:   But on that approach you would not have to identify a terrorist act.

MR RAPKE:   Yes ‑ no, a contemplated terrorist act.  The legislation is very specific, that one does not have to have a specific act in contemplation.  That is one of the problems with this formulation.  If you have got to have some act in contemplation, some preparatory activity for that contemplated act is undertaken, and an intention to use the thing in that act, you are very far down the track to the terrorist act.  That was the intent of this legislation.  That was clearly identified by Justice Whealy, Chief Justice Spigelman and

the other judges who looked at this, what the intention of the legislation was.  It is to attack at the very early stages, very, very early stages, terrorist activity. 

So one is, in fact, undermining, we would say, the legislative intent to stop these things at a very early stage.  So if you have got this material, if you have got this material and there is talk and contemplation of a terrorist act that some people are doing some things and perhaps to put that ultimately into fruition, then whether or not you have an intention to use what you have got, if you know that it is connected or capable of being connected with a terrorist act, you should not have it and if you can maintain it then you are committing an offence.  That is the position of the applicant on this application.  If your Honours please.

HAYNE J:   Thank you, Mr Rapke.  We will not call on you, Mr O’Connell.

The Commonwealth Director of Public Prosecutions seeks special leave to appeal against an interlocutory judgment of the Court of Appeal of the Supreme Court of Victoria about the construction of section 101.4(1)(b) of the Criminal Code (Cth). This Court has often pointed out how undesirable it is to fragment the process of criminal justice. Especially is that so where, as here, the question is presented as one of statutory construction substantially separated from the facts of the particular case. We express no concluded view about the correctness of the conclusions reached by the Court of Appeal in this matter. It is enough to say that the applicant does not enjoy such prospects of disturbing those conclusions as would warrant the grant of special leave to appeal. Special leave is refused.

MR O’CONNELL:   Might we seek costs?

HAYNE J:   What do you say about costs, Mr Rapke?

MR RAPKE:   It would be hard to resist, your Honour.

HAYNE J:   With costs.  The Court will adjourn till 1.45 for the balance of the list.

AT 12.51 PM THE MATTER WAS CONCLUDED