CRIMINAL LAW – Conviction – Conspiring to do acts in preparation for or planning of terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code (Cth) – Reconnoitring Holsworthy Barracks and seeking Islamic fatwa for armed attack on barracks – Whether convictions unsafe and unsatisfactory or otherwise unreasonable – Whether open to find accused committed acts in furtherance of conspiracy – Trial – Whether trial unfair by reason of Crown alleging lies evidencing consciousness of guilt against one accused but not another – Jury directions – Whether judge sufficiently directed jury as to need for Crown to prove intent to advance Islam through violence – Whether judge erred by creating new arguments for Crown – Inconsistent verdicts – Whether acquittal of some co-accused inconsistent with conviction of others – Indictment – Severance – Whether strength of Crown case against one co-accused so much weaker than strength of Crown case against another as to require that indictment be severed – Possible alternative verdicts – Whether judge bound to leave State offence as possible alternative verdict to Commonwealth offence charged – Constitutional law – Freedom of religion – Whether proscription of advancement of religious causes by violent means a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution – Evidence – Whether evidence of accused’s hostility towards Australia and her citizens to be excluded as evidence of which the probative value was outweighed by prejudicial effect – Whether judge sufficiently directed jury that evidence admissible against one accused not admissible against another – Whether judge erred in directing jury that some aspects of evidence important and others peripheral – Criminal Code (Cth), ss 11.5(1) and 101.6(1) – Commonwealth Constitution, s 116.
CRIMINAL LAW – Sentence – Each offender sentenced to 18 years’ imprisonment with a non-parole period of 13 years and six months – Whether sentence manifestly excessive – Amateurish operation – Application of three-quarters rule in determining parole period – Lodhi v The Queen (2007) 179 A Crim R 470, R v Elomar (2010) 264 ALR 759, and
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DPP (Cth) v Fattal [2013] VSCA 276
Case
[2013] VSCA 276
Decision Date
CaseChat Overview and Summary
In the case of DPP (Cth) v Fattal, the appellants were convicted of conspiring to do acts in preparation for or planning of a terrorist act. The conspiracy involved reconnoitring Holsworthy Barracks and seeking an Islamic fatwa for an armed attack on the barracks. The High Court was required to determine the validity of the convictions, the adequacy of the jury directions, and the constitutionality of the proscription of religious advancement through violent means.
The Court examined whether the convictions were unsafe and unsatisfactory or otherwise unreasonable. It considered whether it was open to find that the accused committed acts in furtherance of the conspiracy, and whether the trial was fair given the Crown's allegations of lies evidencing consciousness of guilt against some but not all accused. The Court also assessed whether the judge sufficiently directed the jury on the intent to advance Islam through violence, and if there were any errors in the judge's directions. Furthermore, the Court looked into the inconsistency of verdicts, severance of the indictment, and the admissibility of evidence of hostility towards Australia.
The Court found that the convictions were safe and satisfactory, and that the trial was fair. It held that the proscription of religious advancement through violent means was not contrary to the freedom of religion guaranteed by the Commonwealth Constitution. The Court also determined that the judge adequately directed the jury on the necessary intent and the admissibility of evidence. The Court found no errors in the judge's directions and concluded that the verdicts were not inconsistent. The Court further held that severance of the indictment was not required and that the judge was not bound to leave the State offence as a possible alternative verdict to the Commonwealth offence charged.
The Court also considered the sentences imposed on the appellants and found that they were not manifestly excessive. It applied the three-quarters rule in determining the parole period, taking into account the seriousness of the offence and the need for general and specific deterrence and protection of the community. The Court also considered the Director's appeal and held that the sentences were not manifestly inadequate.