| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0066
| R |
| V |
| 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…
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- AGLC
- R v Karabegovic (Ruling No 1) [2013] VSC 566
- Case
- [2013] VSC 566
- Decision Date
CaseChat Overview and Summary
The court was tasked with deciding whether it should rule on the proper construction of the charge at that stage of the proceedings or whether it should reserve the matter for determination by the Court of Appeal. The issue hinged on the discretionary considerations outlined in the Criminal Procedure Act 2009 (Vic), specifically sections 199 and 302. The respondent contended that the court should exercise its discretion to reserve the question for the Court of Appeal, while the prosecution argued for an immediate ruling to expedite the trial process.
The County Court of Victoria ruled that it should exercise its discretion to determine the proper construction of the charge. The court reasoned that the matter involved a significant issue of principle with potential implications for the fairness of the trial and the proper application of the law. It found that the issue was appropriate for resolution at the trial stage to ensure a fair trial and to avoid unnecessary delay. The court further held that the Benbrika approach was the correct interpretation of the relevant statutory provisions, and provided detailed directions to the jury accordingly.
The court issued a ruling in favour of the prosecution's interpretation of the relevant statutory provisions, directing the jury to apply the Benbrika approach in determining whether the respondent was guilty of the charged offence. This ruling ensured that the trial could proceed with clear and consistent legal directions for the jury to follow.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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