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R v Mohamed (Ruling No.1)

R v Mohamed (Ruling No.1)

Case [2015] VSC 290 19 June 2015

Criminal Liability

Mens Rea & Intention

Statutory Interpretation

Criminal Law

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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)…

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 Mohamed (Ruling No.1)

Details

AGLC: R v Mohamed (Ruling No.1) [2015] VSC 290
Case: [2015] VSC 290
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of R v Mohamed (Ruling No.1) before the court involved the defendant, Mohamed, who was charged with various offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 and the Criminal Code Act 1995. The primary issue was whether Mohamed could be held criminally liable for preparatory acts related to entering a foreign state with the intent to engage in hostile activities, and whether the provision of humanitarian aid could be considered an exemption or justification for these actions. The court was required to determine whether certain issues were suitable for a pre-trial ruling under the Criminal Procedure Act 2009 and the appropriate legal standards for proving the necessary fault elements.

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