| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0205
| THE QUEEN | |
| v | |
| AMIN MOHAMED | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 May 2015 |
DATE OF JUDGMENT: | 19 June 2015 |
CASE MAY BE CITED AS: | R v Mohamed (Ruling No.1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 290 |
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CRIMINAL LAW – Pre-trial ruling – Whether issues are issues ‘with respect’ to trial – Whether appropriate to determine at this preliminary stage – Criminal Procedure Act 2009, s 199.
CRIMINAL LAW – Acts preparatory to entering a foreign state with intent to engage in hostile activities in that state – Nature of fault element required to be proved – ‘Engage in hostile activities’ – ‘Engage in armed hostilities’ – Meaning and scope – Whether section concerning provision of humanitarian aid an ‘exception, exemption, excuse, qualification or justification’ within the meaning of the Criminal Code – Whether evidential burden – Crimes (Foreign Incursions and Recruitments) Act 1978 (Cth), ss 6, 7 – Criminal Code Act 1995 (Cth), Sch 2, ss 2.1, 3.1, 4.1, 5.1, 13.3(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms W. Abraham QC | Office of Public Prosecutions |
| Mr M. Gibson | ||
| For the Accused | ||
| Mr M. O’Connell | Stary Norten Halphen | |
| Ms G. Morgan |
TABLE OF CONTENTS
The Crimes (Foreign Incursions and Recruitments) Act 1978 (Cth).............................................. 2
The application for pre-trial determination.............................................................................. 5
Question 1 – What is the nature of the intention required to be proved by the prosecution at the time of the doing of the act in preparation?............................................................................. 6
The Elements of an Offence under the Code..................................................... 7
Submissions............................................................................................................ 8
Suitability for Preliminary Determination....................................................... 10
Determination....................................................................................................... 11
Question 2 – What is the meaning and scope of the expressions ‘…to engage in hostile activity in that foreign state’ in particular ‘engaging in armed hostilities’ as those words appear in s 6(1)(a) and s 6(3)(aa) of the Act?........................................................................................................... 18
Suitability for Preliminary Determination....................................................... 19
Determination....................................................................................................... 19
Question 3 –Are the terms of s 7(1B) an “exception, exemption, excuse, qualification or justification” within the meaning of s 13.3(3) of the Criminal Code 1995 (Cth) such as to require the accused to discharge an evidential burden?..................................................................................... 23
Defences and Evidential Burdens under the Criminal Code........................ 23
Submissions.......................................................................................................... 24
Suitability for Preliminary Determination....................................................... 26
Determination....................................................................................................... 26
Conclusion......................................................................................................................................... 29
HIS HONOUR:
The accused, Amin Mohamed, is charged with three charges of doing an act preparatory to the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (‘the Act’). Among other things, section 6 of the Act prohibits the entering of a foreign State with intent to engage in a hostile activity in that state. These preparatory offences are charged under s 7 of the Act.
In summary, the Crown case is that in mid-late September 2013 the accused applied for a passport (Charge 1), booked plane tickets from Australia to Turkey (Charge 2)…
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- AGLC
- R v Mohamed (Ruling No.1) [2015] VSC 290
- Case
- [2015] VSC 290
- Decision Date
CaseChat Overview and Summary
The court examined whether the issues raised were "with respect" to the trial and if it was appropriate to decide them at a preliminary stage. This involved an interpretation of section 199 of the Criminal Procedure Act 2009, which governs pre-trial rulings. The court also delved into the definitions and scope of terms such as "engage in hostile activities" and "engage in armed hostilities," as well as the role of humanitarian aid in potentially qualifying or justifying the defendant's actions. The court considered whether the provision of humanitarian aid could serve as an exception, exemption, excuse, qualification, or justification under the Criminal Code Act 1995, and assessed whether the evidential burden lay with the prosecution.
The court concluded that some issues could be appropriately determined at the preliminary stage, while others required further evidence at trial. It held that the nature of the fault element required for proving the offences involved a subjective intent to engage in hostile activities, which needed to be proven beyond reasonable doubt. The court further determined that the provision of humanitarian aid did not constitute a justification or exemption for engaging in hostile activities. It ruled that the evidential burden was on the prosecution to establish the defendant's intent and actions.
The court ordered that certain issues be decided at trial, while others could be addressed in preliminary hearings. The defendant was to be informed of the specific charges and the nature of the evidence required to prove the offences. The ruling ensured that the trial would proceed with clarity on the legal standards and the scope of the charges against Mohamed.
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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