R v Kent (Ruling No 1)
[2009] VSC 300
•10 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE CRIMINAL DIVISION | |
| No. 1544 of 2006 |
| THE QUEEN |
| v |
| SHANE KENT |
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JUDGE OF THE COURT: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 8 July 2009 | |
DATE OF RULING: | 10 July 2009 | |
CASE MAY BE CITED AS: | R v Kent (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 300 | |
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CRIMINAL LAW — Trial — Indictment — Misjoinder — Severance — Cross‑admissibility of evidence — Discretion — ss. 363 and 371, and Rule 2, Presentment Rules, Crimes Act 1958 (Vic)
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Appearances: | Counsel: | Solicitors: |
For the Crown | Mr. N. Robinson S.C. with | Office of the Commonwealth Director of Public Prosecutions |
For the Accused | Mr. J. Champion S.C. with | James Dowsley & Associates |
HIS HONOUR:
Shane Kent, the accused in this case, stood trial last year with 11 others on an indictment which originally contained three counts against him: one of intentionally being a member of a terrorist organisation (s. 102.3(1) of the Commonwealth Criminal Code); one of intentionally providing support to a different terrorist organisation (s. 102.7(1) of the Code); and one of making a document connected with a terrorist act knowing of that connection (s. 101.5(1) of the Code). Before that trial commenced, the two latter charges were severed from the indictment for reasons connected with possible prejudice to 10 of the accused’s co-accused. The Court was concerned with the connection between the substance of those counts and al-Qaida: see R v Benbrika (Ruling No. 6).[1] The accused, together with another then accused, Aimen Joud, were the only two of the 12 accused in that trial who were the subjects of these counts which were counts 12 and 13 on the indictment.
[1] [2007] VSC 416
As events transpired, the jury in that trial did not agree on a verdict in respect of the only count the accused then faced, that of knowingly being a member of a terrorist organisation, thus necessitating a new trial on that count. However, the Crown has now reinstated the two severed counts and filed a new indictment, re-numbering those counts as counts 2 and 3 on that indictment after the membership count.
Questions of the joinder of these two counts to the membership count on the new indictment and of the admissibility of certain pieces of evidence sought to be led by the Crown have been raised by the accused and must now be determined before the trial can proceed.
Severance
Although argued after the admissibility questions, it is convenient to rule first on the challenge by the accused to the indictment he faces on the ground that he should not have to face counts 2 and 3 at the same time as count 1. He contends that counts 2 and 3 ought not to have been joined with count 1 because such joinder offends the rules as to presentments prescribed by s. 363 of the Crimes Act 1958. Specifically, he says that it offends rule 2 of the Presentment Rules and hence s. 371 of the Act. Rule 2 requires that for charges to be joined in the same presentment they must be “. . . founded on the same facts or form or are part of a series of offences of the some or similar character”.
At the accused’s first trial, Merhi, one of the other accused, argued that the counts now under consideration, then counts 12 and 13, ought not to have been joined with other counts alleged against him (that is to say Merhi) particularly, perhaps, the membership count. The Court held that the joinder of those counts with the membership count did not breach the joinder rule because both counts were of a similar nature and the necessary nexus between them was not broken merely because count 12 concerned al-Qaida and count 1, the membership count, concerned a local organisation led by Benbrika. However, the Court severed the indictment by deleting counts 12 and 13 because of their connection with al-Qaida and their irrelevance to counts against the then accused other than Kent and Joud. The application now before the Court is to sever those same counts from count 1 on this indictment, even though only Kent is now involved.
Mr. Champion of Senior Counsel, for Kent, developed his argument as to the misjoinder of these two counts by referring the Court to R v Kray[2] and Ludlow v The Metropolitan Police Commissioner[3]. The first of these cases concerned the three notorious Kray brothers and six of their associates. All of the accused were charged in connection with two murders committed some 18 months apart, some as principals and some as accessories. The Court of Appeal upheld the trial judge’s refusal to sever the indictment. It held that, because of the nexus it considered existed between the two murders, joinder was permissible, indeed, desirable. The murders had “unusual common features”. They were each cold blooded murders without obvious motive, each bore the stamp of a gang leader asserting his authority, and neither killing would have been possible had it not been for the capacity of the gang members to ensure the silence of witnesses. The Court found it desirable in the public interest that the two cases should be “examined together”.
[2] [1969] 3 WLR 831.
[3] [1971] AC 29.
In reaching its conclusion, the Court held that it was undesirable that the relevant rule, that is to say rule 3 of the Indictment Rules 1915, the then English equivalent of the current Victorian rule 2, should be given an unduly restricted meaning as any risk of injustice could be avoided by the exercise of the trial judge’s discretion to sever the indictment if he thought it necessary to do so.
In Ludlow the House of Lords refused to disturb a trial judge’s refusal to sever two counts on an indictment when one count concerned an attempted larceny and the other concerned a robbery, each committed at public houses in proximity to each other. Again, the Court referred to the necessity of a nexus between the counts joined, having regard both to the law and to the facts. Lord Pearson said that
Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.[4]
Lord Pearson also specifically approved a statement of the Court of Appeal in Kray to the effect that such nexus would always be established if the offences were so connected that evidence of one would be admissible on the trial of the other.
[4][1971] AC 29, 39. In De Jesus v The Queen [1986] HCA 65, at para. 9, Dawson J said that that statement contained “an element of circumlocution”.
Mr. Champion argued that the condition precedent for lawful joinder of these counts was not present because they did not form or were not part of a series of offences of the same or a similar character. He argued that, although the offences charged in counts 2 and 3 are alleged by the Crown to have been committed whilst the accused was a member of the terrorist organisation alleged in count 1, they concerned a different terrorist organisation. He also submitted that no cross admissibility of evidence could be established by the Crown with respect to these counts.
The Crown responded by pointing to the fact that the three offences concerned are all found in the same part of the Code, they are all terrorism offences, and they are all concerned with fostering a terrorist act or are said to be connected to a terrorist act. Specifically the Crown relied upon the cross admissibility of a large body of evidence which, it argued, will establish the accused’s state of mind at the relevant time with respect to advancing the Islamic cause through violent jihad, a state of mind relevant to all three counts. That evidence was detailed in a nine page annexure to its submissions on this point.
Even if it could be argued that some specific items of evidence may not be admissible on all counts because of their specific relevance to one or other of those counts, there was enough demonstrated by the Crown’s document to establish its point that evidence of the accused’s state of mind in producing part of the video which is the subject of count 2 and producing the document that is the subject of count 3 is relevant and admissible on count 1. As I said in the ruling on severance, in the first trial about both Kent and his then co-accused, Joud:
Their having engaged in the conduct now alleged in counts 12 and 13 demonstrates their state of mind as being jihadis, that they approved of and supported the central tenets of the Benbrika organisation, that they advocated violence in pursuit of the Islamic cause, and that they were not on some frolic of their own, isolated from the organisation.[5]
[5] [2007] VSC 416, para. 32.
I am satisfied that there is more than sufficient nexus between these counts to enable them to be lawfully and appropriately joined in the one indictment. The indictment falls within rule 2 of the presentment rules and accordingly complies with s. 371 of the Crimes Act. The accused’s challenge to the indictment on the ground of misjoinder fails.
However, the matter does not end there. Mr. Champion also put an argument that to permit the indictment to be tried in its present form would expose the accused to such a risk of prejudice in his defence as to render the trial unfair, so that the Court should sever counts 2 and 3 from count 1 as the only practicable way to avoid an unfair trial.
Whilst the jurisdiction (scil. the power) of the Court to make such procedural orders as are necessary to prevent material unfairness to an accused in the trial process is undoubted, a specific power to sever counts from a presentment for unfairness in their joinder is conferred by s. 372(3) of the Crimes Act. The conditions precedent for the exercise of the power thus conferred are that an accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment, or for some other reason it is desirable that there be separate trials on joint counts.
Here the accused seeks discretionary severance because he says there is a danger of the jury reasoning impermissibly to his guilt on count 1 because he is accused of association with the notorious al-Qaida. In other words, there is a danger of propensity reasoning tainting the jury’s deliberations on count 1. Alternatively, he argues that if he is found guilty of count 1 there is a danger that the jury will use propensity reasoning to find him guilty of counts 2 and 3.
Mr. Champion referred to a number of authorities on the issue of prejudice and the joinder of counts. In R v TJB,[6] Callaway JA warned against placing undue reliance upon warnings by trial judges as a safeguard against propensity reasoning, particularly with respect to alleged conduct of an unnatural or repellent character. Such cases are peculiarly liable to arouse prejudice, His Honour said. Mr. Champion sought to draw an analogy between the sexual assault of young children, with which Callaway JA was then dealing, and the activities of alleged or proved terrorists. Like most analogies, that contended for by Mr. Champion falls down at some point short of perfection. Undoubtedly, the community has an understandable antipathy towards terrorists and would be terrorists, so also against murderers, rapists and, perhaps, also robbers and burglars, particularly home burglars. The recognition of this antipathy leads to the careful warning against propensity reasoning judges give in appropriate case.
[6] [1998] 4 VR 621.
Here, for reasons already given, both above and in Ruling No. 6 in the previous trial,[7] at least some of the evidence relevant to proof of counts 3 and 4 will also be relevant to the accused’s state of mind with regard to his membership of the Benbrika organisation alleged in count 1. As Callaway JA pointed out in R v TJB, severance will seldom be appropriate where there is cross admissibility of evidence between counts: see R v GAE[8] and R v Papamitrou[9].
[7] [2007] VSC 416R (as at 10 July 2009, restricted from publication).
[8] (2000) 1 VR 198.
[9] (2004) 7 VR 375.
The decision as to whether a propensity warning will be necessary in this case, as distinct from a direction that the jury must consider each count separately on the evidence relevant to it, can be deferred until all the evidence is in. Whether any of that evidence will be properly characterised as propensity evidence may be then debated, as well as what safeguards with respect to it are necessary. Its relevance to more than one count, and hence its admissibility on each such count, will depend not upon its quality as propensity evidence but, rather, on the fact that it is logically probative of the accused’s state of mind at the relevant time and with respect to a relevant act or situation. It is thus admissible by virtue of s. 398A of the Crimes Act 1958 even if it could be characterised as propensity evidence. Any possible or perceived prejudice to the accused created by any particular piece of evidence will be addressed by appropriate directions to the jury.
I am satisfied that there should be no severance of the counts on this indictment.
Admission of evidence
The Crown seeks to lead evidence against Kent in this trial in respect of all counts on the indictment of his attendance at a military training camp called al Farooq in Afghanistan in 2001. The evidence will come from Witness A, an American, who was at the camp at the same time as Kent. It is virtually the same evidence which was the subject of a ruling in the earlier trial, Ruling No. 10.[10]
[10] [2007] VSC 559R (as at 10 July 2009, restricted from publication).
The Crown now seeks to widen the scope of Witness A’s evidence from that permitted by Ruling No.10 to include a previously excluded piece of evidence concerned with Kent’s meeting with or at least being present in the same place as Osama bin Laden on one or more occasions. The accused, on the other hand, now seeks to exclude Witness A’s evidence in its entirety as being irrelevant to his membership of Benbrika’s organisation and his alleged activity in support of al-Qaida, including the making of the document referred to in count 3. As already noted, this evidence has already been the subject of a ruling which permitted the Crown to lead some evidence from Witness A, but not any evidence referring to Osama bin Laden, al-Qaida and some other matters.
Having listened to the argument for exclusion of the evidence and for widening its ambit, I can see no reason to depart from the ruling given in the earlier trial. For the reasons given in that ruling, the Crown will be permitted to lead Witness A’s evidence in accordance with paragraph 14 of it, that is to say paragraph 14 of Ruling No. 10. Restrictions on that evidence will remain as set out in Ruling No. 10.
If it is not already implicit in that ruling, I will add a prohibition on any mention of the Taliban as having been a lawful government of Afghanistan or otherwise. The relevance of the evidence of Kent’s military training is at least as to his being a resource for the Benbrika terrorist organisation because of that training and, if it is eventually proved, to explain his having described himself as “al Farooqi” in a JPEG file saved on 16 July 2005—a matter relevant to counts 2 and 3.
The second matter which needs to be addressed is the question of the so called beheading videos. They have also been the subject of an earlier ruling, Ruling No. 15.[11] The Crown wishes to lead evidence of these videos in the same way as it did on the previous trial.
[11] [2007] VSC 545.
Mr. Champion submitted, largely as Ms. Karapanagiotidis did previously, that because of the horrific nature of these videos their prejudicial effect far outweighs their probative value. He developed this argument as a propensity argument: that the possession of them did no more than suggest that the possessor was the sort of person who would commit the crimes alleged.
This argument must be rejected. Like much else in this case, this material is relevant to the accused’s state of mind in much the same way as his assisting in the production of the video in counts 2 and 3 are indicative of his state of mind and so relevant to prove count 1.
The examples relied upon by Mr Champion of murderers and rapists being in possession of various killing or pornographic materials do not illustrate the point. The Crown case here must prove knowledge and intention in the accused at almost every point. These videos, horrendous as they are, assist in that proof. They will be admitted on the same terms and on the same basis as were expressed in Ruling No. 15.
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