R v Taleb (No 4) - [2019] NSWSC 398

Supreme Court

New South Wales

Medium Neutral Citation: R v Taleb (No 4) [2019] NSWSC 398
Hearing dates: 1 and 2 April 2019
Decision date: 02 April 2019
Jurisdiction: Common Law
Before: Hamill J
Decision:
See paragraphs [1], [2], [4], [7], [8], [10] and [13].

Catchwords: CRIMINAL LAW – application for a directed verdict of acquittal – whether jury need to be satisfied of all seven acts nominated in the indictment – submission that there is no evidence of one of those acts – whether individual acts are particulars of conduct alleged – directions to the jury – unanimity – jury must be unanimous in relation to the same act or acts – offence of doing acts preparatory to foreign incursion offence – fault evidence – prosecution not required to prove an intention to carry out acts of terrorism in Syria – order of deliberation – whether mental impairment should be considered before the fault element – jury free to undertake its task in order of its choice – consciousness of guilt – lies – where alleged lies also part of accused’s defence to charges – circularity in reasoning process – limited use prosecutor may make of statements to police – entrapment – where defence counsel opens on undercover officer encouraging accused to commit acts – unnecessary to direct jury – unnecessary complications
Legislation Cited: Criminal Code Act 1995 (Cth), ss 3.1, 5.6, 7.3, 119.1 and 119.4
Cases Cited: Abdallah v R [2016] NSWCCA 275
Blackwell v R (2011) 81 NSWLR 119
Edwards v R (1993) 178 CLR 193; [1993] HCA 63 Zoneff v R (2000) 200 CLR 234; [2000] HCA 28
Hawkins v R (1994) 179 CLR 500; [1994] HCA 28
Jarratt v The Queen [2018] VSCA 150; 333 FLR 371
Mercer v R (1993) 67 A Crim R 91
Pratten v R [2014] NSWCCA 117
R v Brown (1984) 79 Cr App R 115
Stanton v R [2003] HCA 29; (2003) 198 ALR 41; (2003) 77 ALJR 1151
Category: Procedural and other rulings
Parties: Commonwealth Director of Public Prosecutions
Moudasser Taleb
Representation:
Counsel:
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.

ex tempore Judgment (revised)

HIS HONOUR: At the close of the evidence in Mr Taleb's trial, a number of legal issues were ventilated in advance of the addresses of counsel. I will address those issues by posing the questions that arose and then answering them. I will provide very brief reasons in view of the fact that the jury has been waiting for some time while these legal submissions were canvassed and are awaiting the benefit of counsel's addresses. The answers to the questions as posed will guide counsel in their addresses and they will need a little bit of time, once I deliver it, before commencing the addresses.

Does the prosecution need to establish…

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 4)

Details

AGLC: R v Taleb (No 4) [2019] NSWSC 398
Case: [2019] NSWSC 398
Decision Date: 02 April 2019

CaseChat Overview and Summary

The case of R v Taleb (No 4) involved a defendant who was charged with offences related to engaging in acts preparatory to a foreign incursion. The court was tasked with considering several legal issues, including whether the jury needed to be satisfied of all the acts nominated in the indictment, the requirement for unanimity among the jurors, the fault element in the charge, the order of deliberation for the jury, the use of statements made to police by the defendant, and the defence of entrapment. The central issue was whether the prosecution had to prove that the defendant intended to commit acts of terrorism in Syria, and whether the jury needed to be unanimous on the same act or acts.

The court addressed the requirement for unanimity, clarifying that the jury must be unanimous in relation to the same act or acts, but they did not have to agree on which specific acts were preparatory to the foreign incursion. The court further explained that the prosecution was not required to prove that the defendant intended to carry out acts of terrorism in Syria, but rather that they intended to commit the acts preparatory to the foreign incursion. The court also held that the jury was free to deliberate in the order of their choice, including considering the fault element before determining which acts were preparatory. Additionally, the court discussed the limited use the prosecutor could make of statements made by the defendant to police, and that entrapment was not a necessary complication in this case as the defence counsel had already opened on the conduct of the undercover officer.

The court ultimately directed the jury that they could deliberate in any order they chose and that they did not need to be unanimous on which specific acts were preparatory to the foreign incursion. The court also held that the prosecution was not required to prove an intention to commit acts of terrorism in Syria, and that the limited use of statements made by the defendant to police was permissible. The court found that the defence of entrapment was not relevant in this case, given the defence counsel's opening statement. The court's reasoning and outcome provided clarity on several complex issues, ensuring that the jury was properly directed in their deliberations.

Orders