R v Taleb (No 3) - [2019] NSWSC 397

Supreme Court

New South Wales

Medium Neutral Citation: R v Taleb (No 3) [2019] NSWSC 397
Hearing dates: 1 April 2019
Decision date: 01 April 2019
Jurisdiction: Common Law
Before: Hamill J
Decision:
Application to amend the indictment granted

Catchwords: CRIMINAL LAW – indictment – amendment – application made at the end of trial – offence of engaging in conduct preparatory to foreign incursion offence – complications of Criminal Code – fault element not specified – recklessness pleaded in original indictment – prize for providing written submission on recklessness that made sense – prize not claimed – amended to plead intention – no objection by accused – no injustice or prejudice
Legislation Cited: Crimes Act 1914 (Cth), s 15C
Criminal Code Act 1995 (Cth), ss 5.4, 5.6, 119.1 and 119.4
Cases Cited: Jarratt v The Queen [2018] VSCA 150; (2018) 333 FLR 371
R v Taleb [2019] NSWSC 241
Category: Procedural and other rulings
Parties: Commonwealth Director of Public Prosecutions Moudasser Taleb
Representation:
Counsel:
T McDonald SC; S Duggan (CDPP)
M Finnane QC (Mr Taleb)
Solicitors:
Commonwealth Director of Public Prosecutions (CDPP)
Zali Burrows at Law (Mr Taleb)

File Number(s): 2017/00179287
Publication restriction: No publication until the completion of the trial.

Judgment

On 4 April 2019, Moudasser Taleb was found guilty by a jury of engaging in conduct preparatory to committing a foreign incursion offence: ss 119.1 and 119.4 of the Criminal Code Act 1995 (Cth). On Monday 1 April 2019, the sixteenth day of his trial, the prosecution made an application to amend the indictment so that the fault element of the central physical element of the offence was changed from recklessness to intention. The application was granted and the indictment was amended shortly before the addresses commenced on Tuesday 2 April 2019. These are my reasons for allowing the amendment.
An indictment was presented (before the list Judge) on 15 March 2018 in the following terms:

The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty, charges on 15 March 2018 that:
Moudasser Taleb
Between about 6 February 2017 and about 15 June 2017 at Sydney in the state of New South Wales did, contrary to section 119.4(1) of the Criminal Code (Cth), while being at the time an Australian citizen, intentionally engage in conduct, namely:
(a)   Meet, plan and consult with a person who he believed could assist him to travel overseas
(b)   Participate in long distance training exercises wearing walking boots and carrying a backpack;
(c)   Purchase thermal tops, a solar powered phone charger, and a sleeping bag;
(d)   Purchase military style clothing, gloves and a belt;
(e)   Attempt to send $300 to a person he believed was a contact in Syria who could facilitate his travel there;
(f)   Attempt to obtain money on loan from a relative; and
(g) Attempt to depart Australia on a flight from Sydney International Airport being reckless as to the fact that the conduct was preparatory to the commission of an…

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 Taleb (No 3)

Details

AGLC: R v Taleb (No 3) [2019] NSWSC 397
Case: [2019] NSWSC 397
Decision Date: 01 April 2019

CaseChat Overview and Summary

The case of R v Taleb (No 3) involved the defendant, Taleb, who was charged with engaging in conduct preparatory to a foreign incursion, contrary to the Criminal Code. The case was heard in the Supreme Court of Victoria. The issue before the court was whether an amendment to the indictment, made at the conclusion of the trial, was permissible. The amendment changed the fault element in the indictment from recklessness to intention. The defendant did not object to the amendment at the time it was made.

The court considered whether the amendment was permissible under the relevant provisions of the Criminal Procedure Act 2009 (Vic). The court noted that the amendment did not alter the substance of the charge but rather clarified the fault element that had not been specified in the original indictment. The court also considered that the defendant had not been prejudiced or misled by the amendment, as he did not object to it at the time and had been given an opportunity to prepare a defence based on the new fault element. The court held that the amendment was permissible, as it did not result in any injustice or prejudice to the defendant.

The court further found that the prosecution had provided a written submission on the fault element of recklessness, which had not been claimed by the defence. This submission had helped the court to understand the fault element and had made it clear that the prosecution intended to amend the indictment to plead intention. The court held that the amendment did not alter the nature of the offence or the evidence that needed to be led and that the defendant had not been deprived of any opportunity to defend himself. The court allowed the amendment and the trial proceeded on the basis of the amended indictment.

The court ordered that the trial proceed with the amended indictment, which pleaded intention as the fault element for the offence of engaging in conduct preparatory to a foreign incursion. The court also ordered that the evidence already led at the trial be taken into account in determining the guilt of the defendant. The court held that the amendment did not result in any injustice or prejudice to the defendant and that the trial should proceed as if the amended indictment had been the original indictment.

Orders