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R v Karabegovic (Ruling No 1)

R v Karabegovic (Ruling No 1)

Case [2013] VSC 566 22 October 2013

Terrorism offences

Statutory Construction

Jurisdiction

Criminal Law

Criminal Procedure

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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…

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.

Continue reading R v Karabegovic (Ruling No 1)

Details

AGLC: R v Karabegovic (Ruling No 1) [2013] VSC 566
Case: [2013] VSC 566
Decision Date: 22 OCTOBER 2013

CaseChat Overview and Summary

The case of R v Karabegovic (Ruling No 1) involved the respondent, Karabegovic, who was charged with possession of a thing connected with assistance in a terrorist act, knowing of the connection. The dispute centred on the interpretation of the phrase ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’ as it appeared in the relevant sections of the Criminal Code. The matter was before the County Court of Victoria, which was required to determine whether the jury directions on this matter should align with the precedent set by Benbrika & Ors v The Queen or The Queen v Khazaal. The respondent argued for the application of the Khazaal approach, while the prosecution maintained the applicability of the Benbrika approach.

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