R v Karabegovic (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0066

ADNAN KARABEGOVIC

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 OCTOBER 2013
DATE OF JUDGMENT:	22 OCTOBER 2013
CASE MAY BE CITED AS:	R v KARABEGOVIC (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2013] VSC 566

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CRIMINAL LAW – Terrorism offences – Possession of a thing connected with assistance in a terrorist act, knowing of the connection contrary to s 101.4(1)(b) – meaning of the phrase ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’ – Jury directions – Whether directions should be in accordance with Benbrika & Ors v The Queen (2010) 29 VR 593 or The Queen v Khazaal (2012) 246 CLR 601 – Part 5.3 of Schedule to Criminal Code Act 1995 (Cth), ss 101.4, 101.5 Criminal Code.

CRIMINAL PROCEDURE – Question arising before trial commences as to proper construction of an element of the offence – Whether court should rule under s 199(1) of the Criminal Procedure Act 2009 (Vic) or reserve the question for determination by the Court of Appeal under s 302 of the Criminal Procedure Act 2009 (Vic) – Discretionary considerations – Ruling given - Criminal Procedure Act 2009 (Vic) ss 199, 302.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Rapke QC with Mr D. Gurvich	Mr D. Bahlen, Commonwealth Director of Public Prosecutions
For the Accused	Mr M. O’Connell SC with Ms G. Morgan	Robert Stary Lawyers

HIS HONOUR:

Introduction

Adnan Karabegovic is charged with six counts of possession of a thing connected with assistance in a terrorist act, contrary to s 101.4(1) of the Criminal Code Act 1995 (Cth). The indictment has come on for trial although the accused is yet to be arraigned.

Both the prosecution and the defence agree that there is an issue of law that arises or is anticipated to arise in the trial. The particular legal question that arises is defined by the direction I will have to give to the jury at the end of the trial about the law and its application to the particular facts of this case[1] concerning the meaning of the phrase ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’ where it appears in s 101.4(1)(b) of the Code. This is one of the elements of the offence to be proved by the Crown beyond reasonable doubt.
[1]Alford v Magee (1952) 85 CLR 437, 466; [1952] HCA 3. See also Huynh v The Queen; Duong v The Queen; Sem v The Queen (2013) 87 ALJR 434, 441 [31]; 295 ALR 624, 631-632; [2013] HCA 6; Criminal Procedure Act, 2009 (Vic), s 238; Director of Public Prosecutions (Cth) v JM, (2013) 298 ALR 615, 622; [2013] HCA 30 [28].

In short, the need for a ruling about the proper interpretation of the sub-section and the manner in which I propose to direct the jury arises from a suggested conflict between the decision of the Court of Appeal in Benbrika & Ors v The Queen[2] and the more recent decision of the High Court in The Queen v Khazaal.[3] The accused submits that I am bound to follow Benbrika and that Khazaal should, properly, be distinguished. The jury should be directed in accordance with the principles set out in the joint judgment of the court in Benbrika. The Crown contends directly that Benbrika was wrong, or, alternatively that it should be distinguished. The jury should be directed in similar terms to the direction of Latham J in Khazaal which was approved by the High Court.
[2](2010) 29 VR 593; [2010] VSCA 281.
[3](2012) 246 CLR 601; [2012] HCA 26.

Procedural issues

At this stage of the proceeding, two distinct procedures are available under the Criminal Procedure Act 2009 (Vic) to determine this issue. One procedure is to state a case reserving the question for determination by the Court of Appeal under Division 5, Chapter 6 of the Criminal Procedure Act. Without immediately traversing the reasons for the following conclusion, it is open to me to be satisfied that it may be in the interests of justice to state a case for the Court of Appeal and, as the constraints set out in s 302(3) are inapplicable because the trial has not commenced, that course is pressed on me by the Crown.

An alternative procedure is available under Division 4 of Chapter 5 of the Criminal Procedure Act. Section 199(1) provides that the court may hear and decide any issue with respect to the trial that the court considers appropriate including an issue of law or procedure that arises or is anticipated to arise in the trial. The accused submits that I should rule upon this issue as a preliminary matter using the s 199 procedure.

A party to a s 199 ruling may, subject to the relevant procedural requirements, seek leave to appeal against an interlocutory decision of the Trial Division of the court in a proceeding for the prosecution of an indictable offence under Division 4, Chapter 6 of the Criminal Procedure Act.

Which of these procedures is adopted is, I consider, a matter within my discretion. That discretion is to be exercised having regard to the objectives of the Criminal Procedure Act, the nature of the question raised, the stage which the trial has reached, the comparative likely impact on the future conduct of the trial of each procedure, the accepted practices of the court and the discretionary considerations relevant to the exercise of the separate discretions to state a case or determine, before trial, an issue of law that is anticipated to arise.

The case stated procedure is not the common path for determining interlocutory issues arising in criminal trials. The s 199 procedure is usually adopted where a ruling as to the applicable law is sought in order that counsel may properly prepare and run the trial consistently with the manner in which the judge proposes to direct the jury. Some of the pitfalls in the case stated procedure can be seen in the course of the case stated by Weinberg JA (sitting in the trial division) in the prosecution of JM on charges of market manipulation contrary to s 1041A of the Corporations Act, 2001 (Cth).[4]
[4]See DPP (Cth) v Jacobson [2011] VSC 527R (Weinberg JA); Director of Public Prosecutions (Cth) v JM (2012) 267 FLR 238; [2012] VSCA 21 (Nettle & Hansen JJA, Warren CJ dissenting); and Director of Public Prosecutions (Cth) v JM [2013] HCA 30.

In Director of Public Prosecutions (Cth) v JM[5] the majority of the Court of Appeal observed concerning the preferable procedure:

To begin with, although it may be that the overriding objective of the Criminal Procedure Act is to ensure, so far as practicable, that all issues are identified at the earliest possible stage and resolved, the only essential respects in which the text of the scheme of case stated established by ss 302 and 305 of the Act departs from the form which was provided for in s 446(2) of the Crimes Act 1958 are that it enables the Crown, and the court of its own motion, as well as an accused, to move to have a case stated; and it removes an accused’s right to apply to have a case stated following conviction.
Secondly, while we agree that the Act should be construed, as far as possible, in favour of the early determination of questions of law and otherwise the facilitation of expeditious and economic determination of criminal proceedings, there is no reason to strain the language of the Act in order to achieve that objective. Section 199(1) of the Criminal Procedure Act gives adequate power to a judge to make such early determinations, including power to make assumptions as to relevant facts for the purpose of the determination of the admissibility of evidence and the formulation of jury directions. In appropriate cases, an interlocutory appeal from any such determination would lie to this court under Division 4 of Part 6.3 of the Act. Thus, for example, there would have been nothing to prevent the judge in this case making a determination under s 199(1) as to the directions which he proposed to give the jury concerning sole or dominant purpose or, subject to the leave of this court, an interlocutory appeal being brought to this court from the judge’s determination. Indeed, that would have been a preferable way to proceed, because it would have afforded this court the benefit of his Honour’s reasoning on the point.[6]

[5][2012] VSCA 21.

[6]Ibid [295]-[296] (citations omitted).

Although the decision of the Court of Appeal was overturned in the High Court, the observations that I have quoted were not the subject of comment, possibly because the High Court had the benefit of the Court of Appeal’s reasoning. In support of the last proposition expressed in the passage quoted, the Court of Appeal noted its earlier decision in R v Wei Tang[7], but the reference is equivocal in that respect.
[7]R v Wei Tang (2009) 23 VR 332, 333 [5] (Maxwell P, Buchanan and Vincent JJA).

It is clear that the Court of Appeal recognises that the intention of the Criminal Procedure Act is to enable questions of fundamental importance to a trial to be decided, and where necessary considered by the Court of Appeal, before the trial begins. Conflict at appellate level as to the proper construction of an element of an offence or the meaning being attributed to the statutory language necessarily makes the task facing a trial judge and trial counsel one of considerable difficulty. But that recognition does not, of itself inform the choice between a case stated and a s 199 ruling.

A trial court may reserve the question for determination by the Court of Appeal if satisfied that it is in the interests of justice to do so.[8] The court is directed to have regard to the extent of any disruption or delay to the trial process that may arise and to other matters including, relevantly in this matter, whether the determination of the question of law may reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. A case stated in this matter on the issue proposed is unlikely to render the trial unnecessary, substantially reduce the time required for the trial, or resolve a novel question of law that is necessary for the proper conduct of the trial.
[8]s 302, Criminal Procedure Act.

Although the question of law is not novel because the Court of Appeal has in Benbrika explained the proper construction of the relevant section, the inconsistency asserted by the Crown as to the proper directions to be given to a jury about the connection element required by s 101.4(1)(b) at appellate court level between Benbrika and Khazaal could, if it be accepted, raise afresh a novel question, increasing the prospect of a successful appeal.

In this context, I refer to DPP v BCR,[9] an application for leave to appeal an interlocutory decision concerning the admissibility of tendency and coincidence evidence. The Crown contended that its case was significantly weakened by the ruling and one of the grounds proposed for argument was that there was inconsistency between decisions of the Victorian and NSW courts of appeal. The court stated:[10]

We do not consider that leave to appeal should be granted to enable the bench hearing the appeal to consider the correctness of the decisions said by the Crown to be wrong. All these decisions are very recent. Although the Court of Appeal is not bound by its own previous decisions, ‘the doctrine of stare decisis remains important’. To depart from principles laid down in its previous decisions the Court must be satisfied that those decisions are ‘plainly wrong’. In our view, an appeal against an interlocutory decision would only be an appropriate vehicle for challenging an existing line of authority in exceptional circumstances.

Before me, the Crown relied on this statement in support of the application for a case stated. However, the Crown’s submissions in this case do not challenge an existing line of authority in that sense. Rather, it is contended, as I will shortly explain, that on a proper analysis, by the doctrine of stare decisis, I must follow the High Court in Khazaal in preference to the Court of Appeal in Benbrika.

[9][2010] VSCA 229.

[10]Ibid, at [44] (citations omitted).

I note that the post-committal directions hearing was held on 29 April 2013, the initial indictment was signed on 28 June 2013, and the Summary of Prosecution Opening was served the same day, and that there have been further directions hearings before a judge on 21 August 2013, and 2 October 2013. The explanation for a failure to raise the matter at an earlier stage appears to be that it was only immediately prior to the hearing of the application that the Director elected to press for a case stated. I am satisfied that there is a greater prospect of delay in the trial process if I adopt the case stated process for three reasons.

First, the Commonwealth Director has not prepared a draft of the case stated and the proposed questions of law for consideration by the accused’s legal advisers or the court. That process must occasion some delay, although of itself, the delay in preparing the case stated may not by significant in the overall scheme of things.

Second, there is the prospect of procedural issues arising before the case stated is argued and determined in the Court of Appeal. Although the President of the Court of Appeal may determine to sit a bench of 5 judges, because the correctness of Benbrika is the central issue, that issue would equally arise on an interlocutory appeal from a ruling under s 199. I had in mind issues about the Court of Appeal’s satisfaction with the detail of the case stated and the precision of the questions of law identified, issues exemplified by the progress of the case stated in JM.[11] In the absence of a draft of the case stated and the questions proposed, no practical assessment of delay in this respect can presently be made.
[11]See footnote 4 above.

Third, it is evident from two circumstances that the Crown is likely to seek special leave to appeal an adverse decision of the Court of Appeal on a case stated. The first is the nature of the question of law being raised. The Crown may ultimately contend that only the High Court can now authoritatively pronounce the proper construction of s 101.4(1)(b). Secondly, the Crown drew attention to the policy of the High Court[12] to not grant special leave to appeal from interlocutory appeals in criminal matters even though they raise important questions for consideration in support of its contention that this question should be resolved by a case stated. That policy is expressed to be based in an evident legislative intention to give greater weight to the timely dispatch of criminal trials than to protecting the prosecution’s ability to appeal against rulings which it considers to be incorrect.[13] It is speculative to attribute a prospect of delay in the trial process from what might happen on application to the High Court when there is not yet a judgment from which leave to appeal might be sought, but some delay can reasonably be anticipated should the Director, following reflection on the reasons of the Court of Appeal, make an application for special leave.
[12]R v Elliott (1996)185 CLR 250, at 257; Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen; Agius v The Queen [2011] HCATrans 171, at 18; Aubrey (AKA Albury) v The Queen [2013] HCATrans 110, at 5.
[13]Ibid.

I consider that there is a greater delay to the trial process if I now adopt the case stated procedure and for that reason I will provide my ruling under s 199.

I accept the submission of counsel for the Crown, with which counsel for the accused agreed, that the proper construction of this essential element of the statutory offence will be significant in terms of the preparation and presentation of each party’s case and of the arguments to be made to the jury. The proposed ruling will be particularly important for the Crown in determining what it must prove to secure convictions.

In the present circumstances, the only other matter that bears on the choice of procedure is that the argument to be raised is classically one for an appellate court. Unless the decision in Benbrika is distinguishable from this matter, I am bound to interpret the requirements of s 101.4(1)(b) in accordance with it. In my view, that is not a sufficient reason for this court not to consider for itself the issue that has been raised.

Although the competing considerations are finely balanced, I will proceed by way of a ruling under s 199, affording the parties the opportunity to consider whether any further step should be taken under Division 4 of Chapter 6 of the Civil Procedure Act before the trial commences.

The issue for preliminary determination

Must the jury be instructed in relation to the connection element of the offence in accordance with Benbrika which requires that directions to the following effect, in part be given.

In order to prove beyond reasonable doubt that the magazine was connected with assistance in a terrorist act, the Crown must satisfy the jury that, at the time of the accused’s possession:

(a)someone (whether or not the accused) was preparing or contemplating preparing for a proposed or contemplated terrorist act;
(b)someone (whether or not the accused) intended that the magazine be used in, or in aid of, that preparatory activity.

The jury will be informed that the question for them is whether the connection between the thing and assistance in a terrorist act, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term ‘connected with’. Those circumstances could not be encompassed within the confines of the thing, the magazine, although its characteristics bear very significantly on whether the requisite connection exists. If the Crown has done no more than identify the magazine as the kind of magazine that a terrorist might read, that is insufficient. It will be necessary for the jury to determine, by examining the circumstances of the accused’s possession, whether his purpose with respect to the use of the magazine was that it provide assistance in a terrorist act. The jury directions will provide guidance about the circumstances of the case which inform that issue, as they emerge in the evidence.

The issue presently in dispute does not require that I deal with proposed directions concerning what the Crown must prove to establish that the nature of the activities being assisted are ‘a terrorist act’.

Alternatively, must the jury be instructed in relation to the connection element of the offence in accordance with Khazaal, which approved as adequate directions to the following effect.

The focus of the connection element is on the connection between the thing, that is the magazine, and assistance in an act of terrorism. This element depends upon an examination of the contents of the magazine, nothing more, nothing less; what objectively the magazine says. It is a matter for the jury to determine objectively whether the contents of the magazine are connected with assistance in a terrorist act? The phrase 'connected with assistance in a terrorist act' has no special or technical meaning and is to be interpreted according to its plain English meaning. If the jury is satisfied beyond reasonable doubt that any part of the magazine is connected with assisting a terrorist act, then the Crown has proved that element of the offence. It does not matter if the thing is not connected with a specific action or threat of action, or if it is connected with more than one action or threat of action. As long as the Crown has proved beyond reasonable doubt that the thing is connected with an action or threat of action of the kind specified in the charge, that is sufficient to prove this element.

The relevant background
The charges

The accused is charged with six counts of possession of a thing connected with assistance in a terrorist act, contrary to s 101.4(1) of the Code. The section reads:

101.4   Possessing things connected with terrorist acts
(1)       A person commits an offence if:
(a)       the person possesses a thing; and
(b)the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

The thing in each of the six counts is a different edition of ‘Inspire’ magazine, a publication produced by Al-Qaeda in the Arabian Peninsula. A section of each magazine describes it as ‘a resource manual for those who loath the tyrants; includes bomb making techniques, security measures, guerrilla tactics, weapons training and all other jihad related activities. Informal – A disaster for the repressive imperialistic nations: The open source jihad is America’s worst nightmare. It allows Muslims to train at home instead of risking a dangerous travel abroad: Look no further, the open source jihad is now at hand’s reach.’ As an example, the Crown took me to the magazine which is the subject of charge 1. This is the edition, Summer 1431, 2010 and the Crown directed my attention to an article "Make a bomb in the kitchen of your Mom" as an example. That article provides a step-by-step description of how to construct a bomb from readily available ingredients. The article recommends that for an effective explosive device, the device should be placed in a crowded area, camouflaged with something, such as cardboard, that will not hinder the shrapnel.

The Summary of Prosecution Opening refers to other activities alleged against the accused including banners publically displayed with protest messages about the presence of Australian troops in Muslim lands, intercept evidence of conversations in which the accused is alleged to have made relevant statements about his intentions to defend Islam and the duties of jihad and discussed bombs and bushfires and to other materials alleged to have been found on a USB device in the accused’s possession.

The elements of the offence

In determining the elements of an offence under the Code it is necessary to refer back to Part 2.2 of the Code, dealing with physical elements and fault elements of offences. When that is done, it can be seen that there are four elements of the offence, as identified in Regina v Lodhi,[14] about which the jury will ultimately require instruction.
[14][2006] NSWSC 584, [81]-[82] (Whealy J, whose analysis of the elements of the offence was accepted by the Court of Appeal, Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121).

The elements to be proved are:

(a)The accused possessed the thing alleged. This is a physical element of the offence (conduct).[15]
(b)The accused did so intentionally. This is a fault element.[16]
(c)The thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. This circumstance is the second physical element of the offence.[17] I have reproduced the language of the section. The indictment is more limited. It is alleged that ‘the thing is connected with assistance in a terrorist act’.
(d)The accused knew of the connection between the thing and the preparation for, or the engagement of a person in, or assistance in a terrorist act. This is the second fault element.[18]
(e)If the accused adduces or points to evidence that suggests a reasonable possibility that the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act, the prosecution must negative that defence beyond reasonable doubt. This is the defence element.[19]

[15]See ss 4.1 and 101.4(1)(a) of the Code.

[16]See ss 5.6(1) and 5.2 of the Code.

[17]See s 101.4(1)(b) of the Code.

[18]See ss 101.4(1)(c) and 5.3 of the Code.

[19]See s 101.4(5) and s 13.3(3) of the Code.

In any analysis of the elements of a statutory offence, the parliamentary intention, properly understood, must be respected and in Khazaal[20] the plurality approved of the following passage in the judgment of Spigelman CJ in Lodhi v The Queen:[21]

Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.

[20](2012) 246 CLR 601, 614 [32]; see also Thomas v Mowbray (2007) 233 CLR 307.

[21](2006) 199 FLR 303, 318 [66] (McClellan CJ at CL, 324 [96] and Sully J, 327 [111] agreeing).

In Benbrika, although the court did not engage in an elemental analysis of this offence it noted that there are three elements of that offence: possession, connection and knowledge.[22] The court was only relevantly concerned with the connection element.
[22](2010) 29 VR 593, 660 [311].

In my view, nothing turns upon the generic description by the Court of Appeal in Benbrika of the three requirements of the statutory offence as elements. This categorisation follows the text of the three sub-sections of s 101.4(1). Nowhere in the judgment is it suggested that the identification by Whealy J in Regina v Lodhi,[23] of the four elements to be proved by the Crown is erroneous. To the contrary, the decision in Lodhi (No 1)[24] which affirmed on appeal Whealy J’s decision in Lodhi is referred to with apparent approval by the court in Benbrika.[25] The distinction between these elemental descriptions is found in the conflation of the first and second elements set out above that comprise the possession requirement for the offence. In Benbrika there was no question on appeal of error in the directions given by the trial judge concerning the elements of possession. The jury directions correctly addressed both of the first physical and fault elements set out above in respect of possession and the issues on appeal neither warranted an elemental analysis of the offence nor an analysis of the possession requirement of the offence.
[23][2006] NSWSC 584
[24]Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121; Khazaal v The Queen (2011) 265 FLR 276; [2011] NSWCCA 129.
[25]Benbrika, VR at 659, [308]-[309], 660 [312].

However, the complexity of the connection element requires further analysis. As French CJ pointed out in Khazaal[26] there are two subjects of the requisite connection which are, on the one hand, the thing possessed by the accused and, on the other hand, the activities of preparation for, engagement in, or assistance in a terrorist act. The activities are in relation to a terrorist act, which is a defined term. Section 100.1(1) states –
[26]CLR at 614, [34].

terrorist act means 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.

(2)Action falls within this subsection 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; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i)     an information system; or
(ii)    a telecommunications system; or
(iii)   a financial system; or
(iv)a system used for the delivery of essential government services; or
(v)a system used for, or by, an essential public utility; or
(vi)a system used for, or by, a transport system.

(3) Action falls within this subsection 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.

Sub-paragraphs (b) and (c) of that definition refer to an intention. In Lodhi (No 1)[27] Spiegelman CJ held that the definition of terrorist act is part of the offence created by s 101.4(1) and the matters set out in the definition do constitute an essential element of the offence. Those matters, in part, define the second subject of the connection element. As Spiegelman CJ explained –

The references to “intention” in each of paras (b) and (c) of the definition of “terrorist act” are not fault elements of the offence. Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being a “circumstance” within s4.1(1)(c) of the Criminal Code Act. Accordingly, it is not, in my opinion, an essential element of the offence that an accused charged with doing any one of the acts identified in s 101.4, s 101.5 or s 101.6 must himself or herself have the intention that the act advances a particular cause or is done with the requisite purpose of coercion or intimidation. Nevertheless, as an essential physical element, each of paras (b) and (c) should be pleaded, but no particularity is required as to the person who had the relevant “intention”. Of course, if the Crown was to assert that it was the applicant who had the intention, it could plead or particularise that aspect of the case. The relevant fault element is knowledge of the connection, as specified in s101.4(1)(c) …

[27]FLR at 323 [90] – [91].

McClelland CJ at CL added to his concurrence in the judgment of the Chief Justice. He said –

The definition of terrorist act is complex and applies to action or threat of action which has any one of a number of physical consequences (sub s (2)). However, the action or threat of action must also be motivated by the intention identified in (b) and (c). Even if the relevant motivation is present the action will not constitute a terrorist act if it has the character described in subs (3).

What Benbrika held

In Benbrika, the principal contention before the Court of Appeal concerning the construction of s 101.4(1) was that the Crown was required to establish a direct connection between the possession of the thing and the preparation for a terrorist act. The court said:

The question is not, as the English cases suggest, whether there is a direct connection between the thing and the act of preparation. It is rather whether the connection, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term ‘connected with’.

It may be that what was required was a real and substantial connection, not one that was peripheral, but that was not a question which needed further consideration on the appeal, which dealt with the nature, rather than the quality, of the connection.

The Court of Appeal expressed the test for the connection element in these terms:

What will determine whether the requisite connection exists? It seems to us that, as a matter of ordinary language, a thing cannot be said to be ‘connected with preparation for a terrorist act’ unless:
(a)a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be);
(b)some activity in preparation for that terrorist act is under way, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) (‘preparatory activity’); and
(c)the thing is being used, or is intended to be used, in aid of that preparatory activity.

The court emphasised that the characteristics of the thing will bear very significantly on whether the requisite connection is held to have existed. Mere characterisation of the thing possessed as the kind of thing which a terrorist would be likely to use will never be sufficient in itself. Later, the court stated:

On this analysis, two conditions had to be satisfied before the Mansura CD could be proved to have been ‘connected with preparation for a terrorist act’. First, it had to be shown that, at the time of the defendant’s possession, someone (whether or not the defendant) was preparing (or contemplating preparing) for a proposed or contemplated terrorist act. Secondly, it had to be shown that – once again at the time of the defendant’s possession – someone (whether or not the defendant) intended that the CD be used in, or in aid of, that preparatory activity.

The Court of Appeal determined that the trial judge’s error was a failure to identify what had to be proved for the requisite connection to be established.

Benbrika requires that a trial judge direct the jury as to how to determine whether the thing had the requisite connection with a terrorist act for which preparatory activity was underway or in contemplation. The connection element requires that the thing must be shown to have been connected with preparation for a terrorist act by virtue of some persons having the purpose of using the thing in, or in aid of or preparation for, the terrorist act. That requires that the jury be directed as to the two conditions, identified above, in the context of the evidence adduced at trial.

To understand the present debate, two further preliminary observations are appropriate. Firstly, in Benbrika, the connection element was expressed as ‘connected with preparation for a terrorist act’. In the present case, the connection element is expressed as ‘connected with assistance in a terrorist act’. This distinction founds some of the submissions and is discussed below. What must be construed in this case is not the phrase ‘connected with’ but the broader phrase ‘the thing is connected with assistance in a terrorist act’.[28]
[28]Benbrika, 660 [311]. Khazaal, CLR 614 [34] (French CJ); 627 [90] (Gummow, Crennan and Bell JJ); 634 [118] Heydon J.

The second matter that needs to be borne in mind is the nature of the ‘thing’ that is the subject of the connection. This distinction becomes important because Khazaal involved prosecution for an offence under s 101.5(1) of the Code. That section reads:

101.5   Collecting or making documents likely to facilitate terrorist acts
(1)       A person commits an offence if:
(a)       the person collects or makes a document; and
(b)the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

It can be seen that the offence created by s 101.5(1) is not concerned with ‘a thing’ but with ‘a document’ and the first physical element of the offence collecting or making a document is materially different in character from possessing a thing. The category ‘things’, which is not defined in the Code, is plainly much wider that the category ‘documents’, although a document is a thing. One distinction, evident in the facts of both Benbrika and Khazaal, is that the requisite connection for the purposes of offences under s 104.1(1) and s 105.1(1) may more readily be evident from a document while a thing may have been innocuously possessed and be incapable, of itself, of revealing the requisite connection. So the characteristics of the thing will bear very significantly on whether the requisite connection is established. In Benbrika,[29] the court said -

The characteristics of the article will, of course, bear very significantly on whether the requisite connection is held to have existed. The more obviously appropriate and adapted to terrorist activity the particular thing is – for example, a suicide bomber’s belt – the more readily will the jury be able to conclude, beyond reasonable doubt, that the thing was connected with preparation for a terrorist act and, moreover, that the person in possession knew of that connection. However, for the reasons we have given, merely to identify the thing possessed as the kind of thing which a terrorist would be likely to use will never be sufficient in itself.

[29]Benbrika VR 661 [319].

Another distinction is that while collecting a document may be conduct that is closer in character, if not the same in many situations, as possessing a thing (assuming it be a document), making a document may result in a thing that directly speaks of the requisite connection. Although that was not the case with the material on the Mansura CD in Benbrika, in Khazaal the document included advice on techniques of assassination and listed categories of targets for assassination, including holders of public offices, including "diplomats, ambassadors and the military", of "enemy nationalities" or of the Jewish, Christian, Hindu and Buddhist religions, a group called "Arab atheists", and "[h]olders of key positions" in "original countries of atheism", the list of which included Australia. The plurality in Khazaal observed:[30]

Because the e-book contained information and instructions to possessors and others in methods of assassination of identified persons described in the e-book as "targets", on any view the e-book had an obvious and direct connection with assistance in the terrorist act particularised in the indictment.

The terrorist act particularised in the indictment was ‘an action or threat of action [done or threatened] against any one or more of a number of persons identified in the document including diplomats, military personnel and holders of public office’.
What Khazaal decided

[30]Khazaal CLR at 627 [88].

There are two relevant aspects to an analysis of Khazaal. The first aspect is how the court considered Benbrika and the second aspect is what the court said about the proper construction of the connection element in s 101.5(1) of the Code.

In Khazaal, the accused was convicted of an offence against s 101.5(1) of the Code in that he did make a document connected with assistance in a terrorist act knowing of that connection. The document in question was an electronic book, which I have described. The Crown contended that Khazaal selected, compiled, and edited downloaded material from the internet and added his own text to it by way of a dedication and a foreword. His conduct in so doing was said to constitute intentionally making a document for the purposes of that offence. The trial judge declined to leave to the jury the defence under s 101.5(5) of the Code, that the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

On conviction, Khazaal appealed, contending that the trial judge should have imposed a qualification on the words of the statute so that the jury were instructed that "more than a remote connection was required." By majority, the appeal was dismissed. McClelland CJ at CL distinguished Benbrika on its facts. McCallum J held that Benbrika was wrong and should not be followed. Hall J followed Benbrika.

The appeal to the High Court raised two issues:

(a)Had the respondent discharged the evidential burden necessary to enliven the defence under s 101.5(5) of the Code?
(b)Was the trial judge’s direction to the jury in relation to the requirement that the document be ‘connected with’ assistance in a terrorist act sufficient?

The appeal succeeded on the first ground but failed on the second ground. It is the second ground that is presently relevant. In their reasoning on the second ground, the members of the High Court gave no indication of any concerns that Benbrika might be wrongly decided or that it should not, in appropriate circumstances, be followed by trial courts.

Benbrika first came to the attention of the Court of Criminal Appeal in Khazaal after argument and was the subject of supplementary submission. In the Court of Criminal Appeal, McClellan CJ at CL agreed with and adopted the observation in Benbrika, that the question is whether the connection, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term ‘connected with’. McClellan CJ at CL distinguished Benbrika because the relevant thing was an inanimate object and Benbrika’s possession of it may have been innocuous. The thing alone could not determine whether there was the relevant connection. Thus, before Benbrika could be found to have committed an offence against the statute there had to be a terrorist act for which preparatory activity was, at least, in contemplation.

In Khazaal, the prosecution’s identified connection was said to be found within Khazaal’s document itself. It described methods of assassination, being terrorist acts, or organisation of effective assassination teams and identified prospective targets for assassination, sufficient to identify the fact that the document itself described the variety of terrorist acts from which the jury could conclude that the document was connected with assistance in a terrorist act. In this way, the acts contemplated by Khazaal were identified.

In the High Court, French CJ held that the nature and breadth of a relational term such as ‘connected with’ depends upon its statutory context and purpose, citing, with apparent approval, Spigelman CJ’s description in Lodhi, set out above. French CJ concluded that the subjects of the requisite connection under s 101.5(1)(b) are, on the one hand, the document collected or made by the respondent and, on the other hand, the activities of preparation for, engagement in or assistance in a terrorist act. French CJ was satisfied that the document in question answered the statutory description. It is implicit from his Honour’s conclusion about the sufficiency of the trial judge’s direction and the absence of any detailed analysis of Benbrika that he accepted that the Court of Criminal Appeal had properly distinguished Benbrika from the circumstances of Khazaal.

The plurality (Gummow, Crennan, and Bell JJ) held that McClellan CJ at CL was right to distinguish Benbrika in the manner that he did.[31] Heydon J drew attention to the distinction between possession of a thing and collecting or making a document. Although the connection element was in identical terms, Heydon J considered that the issues which the words of sub-s (1)(b) in each of ss 101.4 and 101.5 might raise may be different in each context.
[31]Khazaal CLR at 626 [83].

The High Court concluded that the appeal was not to be resolved by considering whether the reasoning in Benbrika, on a different section of the Code, should be applied by analogy to s 101.5(1)(b) but, rather, whether the trial judge’s directions adequately put the issues raised on the evidence when explaining the connection element required for an offence under s 101.5(1).

None of the justices of the High Court expressed any criticism of the reasoning of Benbrika, an issue that plainly was before the court. As I have noted McClellan CJ at CL distinguished Benbrika, but the other members of the court took a different approach. Hall J[32] was of the opinion that the reasoning and approach in Benbrika in relation to s.101.4(1)(b) equally applied to the interpretation and application of the provisions of s.101.5(1)(b) and there was no basis for a different approach to be taken with respect to s.101.5(1)(b). However, McCallum J stated that Benbrika was plainly wrong and should not be followed.[33] Although the plurality were most succinct in declaring that Benbrika was rightly distinguished, the reasons of McClellan CJ at CL to which they refer accept that its reasoning was correct. Moreover, in declaring that the proper resolution of the appeal was not to determine whether to apply by analogy reasoning in respect of a different section of the Code, it must be supposed that the court would not have entertained at all a submission based on the reasoning of Hall J were they disposed to accept a submission based on the reasoning of McCallum J.
[32]Khazaal FLR at 340, [347].
[33]Ibid, 358 [454] – 361 [467].

The Crown’s submissions

The Crown submitted that Benbrika is plainly wrong. Alternatively, it is to be distinguished on the basis that there is a practical and conceptual difference between ‘preparation for’ and ‘assistance in’. The Crown submitted that whether the thing is relevantly connected with a terrorist act is a question for the jury, applying its understanding of the relevant words. Because the issue of connection, like other elements of the offence, is a jury question, the jury should be directed consistently with the directions given by Latham J in the Khazaal trial.[34]
[34]The relevant direction is set out in the judgment of the plurality in Khazaal, at 625[80].

The Crown submitted that Benbrika is wrong and should not be followed because:

(a)Khazaal correctly states the connection element and as a decision of the High Court should be followed in preference to Benbrika, which is inconsistent with the New South Wales line of authority constituted by Lodhi and Khazaal.
(b)Although Khazaal concerned s 101.5 of the Code, the similarity in the language of the two provisions requires a similar approach in interpretation of the connection element. The only difference between the two sections is that one is concerned with collecting or making a document, the other is concerned with possessing a thing, but the critical provision, sub-s.(b) of sub-s.(1) of each provision, is identical, and a document is as inanimate as a CD. It is not right that an object cannot objectively have a connection with a terrorist act irrespective of the circumstances of possession. There is no compelling reason for attributing different interpretations to the same words in contiguous sections in the same division of the Code.
(c)Benbrika is incorrect in its analysis of the elements of the offence as is demonstrated by the judgment of Spigelman CJ in Lodhi[35] and McCallum J in Khazaal..[36] The Crown contended that, having failed to reason correctly about the elements of the offence, the Court in Benbrika added an additional element of intention as part of a physical element when it reasoned that to make the connection, the Crown must prove what a person is intending to do with the thing. The Crown adopted the reasoning of McCallum J in Khazaal.
(d)Further, the Court of Appeal was led into error by its reliance on Regina v Zafar,[37] and its assumption that s 57 of the Terrorism Act 2000 was a cognitive offence when the cognitive offence is found in s 58. The Crown referred me to R v G; R v J, [38] where the House of Lords explained –
Obviously, the scope of section 57 is different from the scope of section 58 in a number of ways. First, section 57 applies only to possession, while section 58 applies also to collecting or making a record. Secondly, section 57 applies to the possession of any "article", widely defined. By contrast, section 58 applies to the collection of information of a certain kind and to the possession of a "document or record" containing that information.
Thirdly, precisely because section 57(1) covers any "article", the section only bites on the defendant's possession of the article in certain circumstances, viz "circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism." It is not the possession of the article as such which is criminal, but its possession in those particular circumstances. By contrast, section 58 is directed at information of a particular kind, viz, "information of a kind likely to be useful to a person committing or preparing an act of terrorism." So, while section 57 focuses on the circumstances of the defendant's possession of the article, section 58 focuses on the nature of the information which the defendant collects, records or possesses in a document or record. Subject to the defence in section 58(3), the circumstances in which the defendant did these things are irrelevant. So, unless it amounts to a reasonable excuse under subsection (3), his purpose in doing them is irrelevant. In particular, there is nothing in the terms of section 58(1) that requires the Crown to show that the defendant had a terrorist purpose for doing what he did.
(e)The essential error identified in Benbrika possibly flowed from its particular facts, which established that the accused was at a reasonably advanced stage in his preparation for carrying out a terrorist act. That circumstance enabled the Court of Appeal to posit a test for ‘connection’ that required a terrorist act to be proposed or contemplated and preparatory activity for that terrorist act to be underway and an intention that the thing was being used or was intended to be used in that preparatory activity or, presumably, the terrorist act itself. In particular, requiring that the Crown establish that preparatory activity for that terrorist act was underway unduly restricted the scope of the offence created by the language of the statute while requiring an intention or purpose that the thing be used in that preparatory activity introduced an additional fault element that was not required by the statutory language. Further it is inconsistent with the statutory purpose. The Crown submitted that the legislation was intended to cover very early embryonic conduct discovered when police investigators swooped much earlier. Failing to confine the reasoning of Benbrika to circumstances where the accused was at a reasonably advanced stage in his preparation for carrying out a terrorist act, unlike the present case, fails to have regard to the requirements of s 101.4(3) that a person commits an offence even if the terrorist act does not occur or the thing is not connected to a specific terrorist act.
(f)The effect of the reasoning in Benbrika is to convert an offence under s 101.4 into an offence under s 101.6. The latter section which carries a maximum penalty of imprisonment for life provides that a person commits an offence if ‘the person does any act in preparation for, or planning, a terrorist act’. The effect of Benbrika is that it becomes necessary for the Crown, in order to prove a connection, to establish all the prerequisites for an offence under 101.6 - that a terrorist act was proposed or contemplated, that some activity in preparation for that terrorist act was underway, was proposed or contemplated, and that there was an intention to use the thing in aid of that preparatory activity.[39] Parliament must have intended that each of these sections created offences that deal with different conduct albeit there may be overlapping conduct, which supports the submission that s.101.4 ought to be interpreted in a way that gives it an independent operation to s 101.6.
(g)The reasoning in Benbrika cuts across the defence element in s 101.4(5), because the requirement that the prosecution prove that at the time of the accused’s possession of the thing someone was preparing or contemplating preparing for a proposed or contemplated terrorist act and the thing is intended to assist in that activity obviates the defence that there was no intention to facilitate assistance in a terrorist act. One would struggle to find a factual situation in which an accused could discharge that, or even raise the evidentiary burden. Thus, Benbrika inappropriately extends the character of the connection beyond a thing possessed that has a capacity to assist a terrorist act to require that possession of the thing may facilitate a terrorist act. The defence element under s 101.4(5) should operate to permit an accused person to say there might be a capacity in my possession of this thing, to assist a terrorist act but I didn't possess it to facilitate an act of terrorism.

[35]At [90]-[91].

[36]FLR, 359 [455] – 361 [466].

[37][2008] QB 810; [2008] EWCA Crim 184.

[38]See [2009] UKHL 13; [2010] 1 AC 43 at 80 [57] - [58].

[39]See R v B; sub nom B v R [2008] NSWCCA 85;(2008) 76 NSWLR 533

The Crown submitted that Benbrika should be distinguished because there are qualitative differences between the concepts of ‘assistance in’ and ‘preparation for’ a terrorist act. The Crown contended that ‘preparation for’ is a different concept to ‘assistance in’. Preparation, it submitted, is more proximate to the ultimate outcome, that is the terrorist act, than assistance. The Crown submitted that while the concept of preparation requires something intended to advance the implementation of the projected, or contemplated, terrorist act, the concept of assistance in a terrorist act did not require a temporal or actual connection with a contemplated terrorist act.

The submissions for the accused

Directing the court’s attention to the charges and their particulars, counsel for the accused drew attention to the contrast between the generality in the present case, which replicates the language of the Code and the particulars of the charges against Khazaal,[40] which demonstrates that the terrorist act particularised links back to the document that he is alleged to have made. Counsel contended that a material distinction between Khazaal and this indictment is the content of the document that Khazaal made that identified the terrorist act. The connection was the fact that he wrote it, that he edited it and he published it, and all of that was apparent on the face of the indictment and its particulars. On examination of the present indictment, the connection between the terrorist act particularised, the magazine and the possession of it is by no means immediately apparent. Although the magazine may provide assistance in how to make a bomb to be used to advance extremist religious causes, these charges deal with possession of that magazine not with the person who made the magazine that provides that assistance. The critical point that distinguishes Khazaal from Benbrika and from this indictment is that the former did not concern an inanimate object because by the document Khazaal spoke in the manner just described.[41]
[40]Khazaal (HCA) CLR, 619 [53]; Khazaal (CCA) FLR, 315 [185]-[186].
[41]See also the discussion by Hall J in Khazaal (CCA) FLR, at 336 [321]–[338].

Accordingly it was appropriate for Latham J to direct the jury that they needn’t go beyond the document, but should objectively assess its content. What the High Court said was that the directions were appropriate in the circumstances of that particularised indictment and the way in which the Crown had put its case. But that is not this case and it provides a strong ground for distinguishing Khazaal.

The accused submits that the construction of s 101.4(1) contended for by the Crown is wider than allowed for by the legislation properly construed. The reasoning in Benbrika is plainly correct and, with appropriate adaption, binding on this court. The need for ‘appropriate adaption’ arises from the distinction, referred to above, between preparation for a terrorist act and assistance in a terrorist act.

The analysis of McCallum J in Khazaal is incorrect and should be disregarded.

The accused submitted that the fundamental distinction is found in the requirement of purpose that Benbrika requires for the thing possessed. It is not the inclusion of an additional fault element, a state of mind of intention to assist. An activity in the nature of assistance requires that there must be some activity underway or contemplated. What Benbrika requires[42] is that, as part of the physical element, the circumstance required by the connection element, the thing being possessed must have a purpose, and that purpose must be for its use in assistance in a terrorist act. The purpose does not necessarily attach to the accused, it may do, but it must attach to someone.
[42]VR 661 [316]-[318].

The connection element of the offence encompasses, broadly, three concepts, preparation, engagement and assistance. Little assistance is gained in textual analysis of these words for they are very broad descriptors of conduct. Conceptually, preparation for, engagement in, and assistance in a terrorist act may not be mutually distinct activities. Depending upon the particular circumstances, significant overlap in the application of these descriptors to the content of the activities being undertaken is likely. With such broad statutory language, the purpose and context evident from the statute is relevant.

The accused contended that the shift of emphasis from the charge in Benbrika, which was concerned with ‘preparation for’ to the charge in the present case, which is concerned with ‘assistance in’, leaves unaffected the Benbrika exposition of the connection element of the offence. It follows that if this submission be accepted, the jury should be directed that they would need to be satisfied beyond reasonable doubt that at the time of possession of the magazine that is the subject of each count, a terrorist act was either proposed or contemplated by someone, and that the possession of the magazine was for a purpose connected with assistance in that which was proposed or contemplated.

In his response to the summary of prosecution opening, the accused complains that the summary does not provide specific guidance on the characterisation of the relationship between the magazine and a terrorist act.

Conclusion

I am not persuaded by the Crown that Khazaal requires the conclusion that Benbrika was wrongly decided.

The Crown adopted the reasoning of McCallum J in the Court of Criminal Appeal in Khazaal. McCallum J accepted, as do I, that the intentions specified in the definition of a terrorist act are not fault elements of the offence but identify the character of the action that will fall within the definition. McCallum J reasoned that when the court in Benbrika held that the connection required under s 101.4(1)(b) is not a property of the thing itself but rather a function of the intention or purpose which must be shown to have existed with respect to both the terrorist act and the use of the thing, the Court of Appeal fell into error. That approach erroneously imported a fault element into a physical element of the offence. McCallum J concluded that the requirements of the kind identified in Benbrika (at [315]) are contained in the definition of a terrorist act and there can be no offence under s 101.5(1) unless the circumstances of the connection with an action of that character (including the aspects of intention that define its character) is established. McCallum J’s analysis acknowledged that in some cases, and her Honour referred to the cheque book example from Zafar, proof of the physical element of ‘connection with’ will require proof of a particular terrorist act in the contemplation of a person.

In my view, consistently with Benbrika, in Khazaal the connection between the document and assisting in an act of terrorism was not a property of the document per se. In Khazaal, the intention or purpose with respect to the document that Benbrika requires to be shown to exist for the connection element was revealed by examining its contents. The distinction between the thing itself and the function of the intention or purpose that Benbrika requires to prove the connection element in respect of an inanimate thing is neither rejected nor criticised by the High Court. Rather, the High Court concluded that in the circumstances of that trial, the direction was adequate and the resolution of the appeal did not require the application by analogy of the reasoning in Benbrika. Neither Hall J nor McCallum J’s reasoning was adopted by the High Court. Apart from preferring the reasoning of the Court of Appeal in Benbrika, I am bound by it unless bound by an applicable ratio of the High Court has overruled it, whether expressly or impliedly. In my view, that has not occurred.

The Khazaal direction would be inadequate in the present matter for the reasons given in Benbrika. Aspects of the material on the CDs were described by the court that demonstrate that its reasoning, rather that that of the High Court in approving the direction in Khazaal, is what must apply in this trial. The introductory remarks in the following passage apply to describe those parts of the ‘Inspire’ magazine to which I have been referred.

Some of the material on the CDs was clearly capable of being used in preparation for a terrorist act. We refer, in particular, to the explosives manuals and the violent jihadist propaganda intended to incite hatred against the kuffar. No doubt that material was designed, in part, to encourage others to engage in terrorist acts. However, s 101.4(1)(c) provides, as an element of the possession offence, that the person in possession of a thing ‘connected with’ preparation for a terrorist act must ‘know’ of that connection. It is difficult to see how a person can ‘know’ of such a connection unless the thing possessed is connected sufficiently closely to what is, in essence, the impugned purpose. The more tenuous the link, the more difficult it will be to infer the requisite knowledge.
Whether, in any given case, the relevant connection – and knowledge – can be inferred must inevitably involve questions of fact and degree. In some situations, possession of material such as was contained on the two CDs in Joud’s possession will, when viewed in the light of the evidence as a whole, give rise to an offence under s 101.4(1). For example, if there had been evidence that Joud had played the CDs, or either of them, to any of the other accused, and that he had done so with a view to furthering the proscribed object, namely, preparation for a terrorist act, we would have had no hesitation in ordering a retrial. There was no such evidence.
There was nothing in any of the recorded conversations, or otherwise, to indicate that Joud had acquired the Manuals CD in order to learn bomb-making techniques, or to teach those techniques to others. Had there been any such evidence, that too would have been sufficient to warrant an order for retrial, at least on the count relating to the Manuals CD. The same conclusion would have followed had there been any evidence, in any of the recorded conversations or otherwise, that Joud had acquired the Mansura CD in order to ‘desensitise’ himself, or others, to the brutality of violence towards the kuffar, as the Crown contended. But, once again, there was no such evidence.[43]

[43]Benbrika VR 676 [389]-[391].

I do not accept that the effect of the reasoning in Benbrika is to convert an offence under s 101.4 into an offence under s 101.6. The distinction remains that s 101.6 directly relates the action of the accused to a terrorist act.

The reasoning in Benbrika does not, in my view, cut across the defence element in s 101.4(5). The requirement that the prosecution prove that at the time of the accused’s possession of the thing someone was preparing or contemplating preparing for a proposed or contemplated terrorist act and the thing is intended to assist in that activity does not obviate the defence that the accused had no intention to facilitate assistance in a terrorist act. The distinction is that the defence element is concerned with the absence of a subjective purpose linking possession of a thing and assistance in a terrorist act. Benbrika explains why that is so.[44]
[44]Ibid, at 662 [321]

I am not persuaded that either submission made by the Crown, as I understand each of them, that Benbrika is distinguishable from the present circumstances should be accepted. There is no meaningful distinction between preparation and assistance to be derived from the perspective of proximity to the terrorist act. The actual proposition being advanced is obscure. I do not understand it to flow from anything said in Khazaal and I prefer the clarity of the Benbrika analysis.

While these concepts of preparation, engagement and assistance can be interpreted in the context that the legislative intention requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, that is, as descriptions of activities, it is also pertinent that legislative policy also addressed the particular nature of terrorism that involves organisations as is evident from other divisions of Part 5.3 of the Code. The breadth of the concepts of preparation, engagement and assistance may also be interpreted as descriptions of relationships in the same context that the legislative intention requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct. The concept of connection is a relationship context. As French CJ stated in Khazaal,[45] about the words ‘connected with’ -

They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.

[45]At 613 [31] (citation omitted).

In any event, even accepting for the purposes of argument that there are relevant distinctions between the concepts of preparation and assistance, the reasoning of the Court of Appeal in Benbrika stands unaffected. In the case of a thing connected with a terrorist act, any distinction between assistance and preparation will not be relevant in directing the jury as to the circumstances of the connection with a terrorist act. The kind of activity that constitutes that circumstance does not affect the reasoning in Benbrika that there will not be a sufficient connection unless the three matters identified are established. Whether a sufficient connection between the thing and an activity in relation to a terrorist act is established in the circumstances of the accused’s possession or, as in Khazaal, by virtue of the thing’s own characteristics, any distinction between preparation activities and assistance activities is not likely to be relevant.

For these reasons, I consider that the reasoning of Benbrika that explains the connection element of the offence is unaffected by any distinction between activities of ‘preparation for’ and ‘assistance in’ a terrorist act.

In conclusion, I am not persuaded to distinguish Benbrika. As I have explained, there is no inconsistency between Khazaal and Lodhi on the one hand and Benbrika on the other hand. Nothing said by the High Court in Khazaal persuades me that it might, on an appropriate occasion, declare that Benbrika was wrongly decided.

On the other hand, the circumstances facing this accused can be distinguished from those facing Khazaal in that the magazines, which constitute the things alleged to be in his possession, do not, on their face, establish a connection between the thing and a circumstance of assistance in a terrorist act. For this reason, a direction in like terms to that approved in Khazaal, is likely on the reasoning of Benbrika to be held to be in error. I am satisfied that the relevant ratio of Benbrika is applicable in the present circumstances and that I am bound to apply it.

Proposed direction

I propose to direct the jury in the manner set out above at paragraph [24].

The summary of prosecution opening does not directly outline the manner in which the prosecution will put its case that the magazine is connected with an act of terrorism against the accused or identify what acts, facts, matters and circumstances will be relied on to support a finding of guilt in relation to the connection element of the offence. As the summary of prosecution opening does not, as it should, outline how the prosecution intends to establish that:

(a) a terrorist act was proposed or contemplated;
(b)some activity by way of assistance or help was underway, in respect of that proposed or contemplated terrorist act; and

(c) that the magazine was used, or intended to be used, in that activity;

I am presently unable to more directly relate the proposed direction to the facts and circumstances of this matter.

Subject to any submission from counsel, I will stand the trial over to enable the parties to digest this ruling and take appropriate instructions.

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[2013] VSC 566

22 OCTOBER 2013