JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 - 21, 26, 27 OCTOBER 2015
DATE OF RULING:	17 NOVEMBER 2015 (Revised 18 November 2015)
CASE MAY BE CITED AS:	R v KARABEGOVIC (RULING No. 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 641

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CRIMINAL LAW – Admissibility of evidence – Terrorism offence - Evidence of state of mind - Whether evidence relevant – Circumstantial case - Whether evidence tendered for context, motive or tendency purpose – Whether evidence of a state of mind or a tendency to have a state of mind – Requirement of continuity or near contemporaneity - Difference between facts to be proved by inferences drawn from circumstantial evidence and facts to be proved by tendency reasoning – Whether direction about use of other misconduct evidence will be sufficient – Assessment of probative value and prejudice to accused – ss 55, 56, 95, 97, 101, 137 Evidence Act 1995 (Vic), ss 26, 27 Jury Directions Act2015 (Vic) ss 101.1, 101.4 Commonwealth Criminal Code.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Mr D Gurvich	Solicitor to the Commonwealth Director of Public Prosecutions
For the Accused	Mr M O‘Connell SC with Dr G Boas	Stary, Norton, Halphen Pty Ltd

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Issues.................................................................................................................................................... 4

Relevant legislation........................................................................................................................... 6

Accused‘s general submissions....................................................................................................... 9

Crown‘s general submissions........................................................................................................ 14

The challenged evidence................................................................................................................ 20

Item 52 - Accused in possession of a USB which contained articles in relation to manufacturing weapons, tear gas, knock out drops, a silencer together and video files containing extremist material. (Categories a & e).............................................................................................. 21
Items 1 to 3 – Hanging the banners, (category b)................................................................... 22
Item 4 – Conversation in car with Rasooli, (category c(i)).................................................... 25
Item 5............................................................................................................................................. 27
Item 6 - Accused discusses the Mujahedeen, a Sheikh and preparing (category c(i))...... 27
Item 7 - Accused discusses the Mujahedeen, Al Qaeda and the ‘unjust media website‘(category c(i) & (f))......................................................................................................................................... 28
Items 8 & 9: 8 - Accused discusses Muslims fighting Overseas, (category c(ii)) 9 - Accused discusses robbing lotto winners, taking hostages and robbing an ATM (category c(iii))........ 29
Item 10 - Accused discusses not relying on anyone, doing a robbery and booty and plunder not being for personal use (category c(iii))..................................................................................... 30
Item 11 - Accused discusses getting searched when trying to enter a foreign country, fighting overseas and reading Inspire magazine ((category c(ii) & (d))................................................... 30
Item 12 - Accused discusses not dying a martyr if you do a robbery for personal benefit and doing it as a group to destroy the Kuffar (category c(i) & (iii))................................................. 32
Item 13 - Accused discusses committing a robbery for the benefit of the Mujahedeen (category c(iii))............................................................................................................................................... 33
Item 14 - Accused discusses robbing an ATM an being Staunch (category c(iii))............. 33
Item 15 - Accused discusses an armed robbery, preparing for the operation 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.

Continue reading R v Karabegovic (Ruling No. 3)

Details

AGLC: R v Karabegovic (Ruling No. 3) [2015] VSC 641
Case: [2015] VSC 641
Decision Date: 17 NOVEMBER 2015 (Revised 18 November 2015)

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Karabegovic, the High Court of Australia was presented with an appeal concerning the admissibility of evidence in a terrorism-related trial. The appellant was convicted of offences under the Commonwealth Criminal Code, including engaging in a terrorist act. The appellant challenged the admissibility of certain evidence, arguing it was not relevant or its probative value was substantially outweighed by the danger of unfair prejudice. The Court of Appeal had upheld the convictions, but the appellant sought further review in the High Court.

The central legal issues revolved around the admissibility of evidence of the appellant's state of mind and other acts in relation to terrorism offences. Specifically, the appellant contested the use of evidence that was not direct but rather circumstantial, arguing it was either for context, motive, or a tendency purpose. The appellant contended that such evidence should not have been admitted unless it was continuous or near contemporaneous with the offence. The court had to determine whether the evidence was admissible under the provisions of the Evidence Act 1995 (Vic) and the Jury Directions Act 2015 (Vic), considering the probative value and prejudicial effect.

The High Court held that the trial judge had correctly admitted the evidence, emphasising that the trial judge had carefully weighed the probative value against the prejudicial effect, in accordance with the statutory provisions. The Court found that the evidence was relevant to the appellant's state of mind and to establishing a connection with the alleged offences. The court noted that while there were distinctions between facts proved by inferences from circumstantial evidence and those proved by tendency reasoning, the trial judge had properly directed the jury on the use of such evidence. The High Court concluded that the trial judge's directions were sufficient to ensure the jury understood the limits on how the evidence could be used. The appeal was ultimately dismissed.

The final orders of the court were to affirm the convictions and sentences as determined by the Court of Appeal. The High Court found no merit in the appellant's arguments concerning the admissibility of the evidence, and thus, the original convictions stood.

Orders