R v Vinayagamoorthy - [2009] VSC 276

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1628 of 2007

THE QUEEN
v
ARURAN VINAYAGAMOORTHY SIVARAJAH YATHAVAN ARUMUGAM RAJEEVAN	Accused

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF PRELIMINARY RULING:	04 May 2009
CASE MAY BE CITED AS:	R v Vinayagamoorthy & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 276

RULING NO. 2

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.E. Dean S.C. with Mr K. Armstrong and Mr S. Johns	Commonwealth Director of Public Prosecutions
For the AccusedVinayagamoorthy	Mr B.E. Walters S.C. with Ms P. Murphy	Robert Stary & Associates
For the accused Yathavan	Ms Fiona Todd
For the accused Rajeevan	Mr P. Boulten S.C.

HIS HONOUR:

Each of the accused has applied for a permanent stay of proceedings in relation to the indictment now before me. The three accused have been charged with one count of making money available to a proscribed entity and the accused Vinayagamoorthy has been charged with two other counts of making available electronic components and boat design software to a proscribed organisation. The offences are contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) (“the Act”).

I delivered a preliminary ruling on the fault elements of this crime. It is sufficient to say that the fault element of making an asset available is intent and the fault element for knowledge that the entity to whom the asset is made available is a proscribed entity is recklessness (see Criminal Code Commonwealth s 5.1 – s 5.6) (“the Code”). That is, the Crown is obliged to prove that the accused made assets available to the LTTE (a proscribed organisation) intending that the asset be made available to the LTTE and that the assets were made available to the LTTE, not some other organisation. I am satisfied that the words “make available” mean, in all the circumstances, given to for the use of (including control of). It would be a defence to this offence if an accused was able to show that it was not his intention that the assets were made available to the LTTE, even if the assets did come into the hands of and were used by the LTTE or alternatively that the assets were not made available to the LTTE. More appropriately the Crown would be obliged to disprove either of these propositions.

The Crown would also have to prove that each of the accused knew that the LTTE was a proscribed organisation or at least was reckless to that circumstances. Recklessness is defined in the Code.

“(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur;…

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 Vinayagamoorthy

Details

AGLC: R v Vinayagamoorthy [2009] VSC 276
Case: [2009] VSC 276
Decision Date: 04 May 2009

CaseChat Overview and Summary

In the Supreme Court of Victoria, the accused, Vinayagamoorthy, Yathavanam, and Rajeevan, have applied for a permanent stay of proceedings on charges related to making money and assets available to the Liberation Tigers of Tamil Eelam (LTTE), a proscribed entity under the Charter of the United Nations Act 1945. The accused argued that the prosecution would be unfair due to the unavailability of evidence from Sri Lanka, where the alleged activities took place, and the difficulty in investigating those activities. The court considered the legal principles surrounding the stay of proceedings and the concept of a fair trial, emphasizing that a trial is considered unfair only in exceptional circumstances where a fundamental defect exists that cannot be remedied. The court concluded that the potential disadvantage to the accused did not amount to the necessary unfairness required to stay the trial, as the prosecution must still prove each element of the offence charged. The accused's inability to call witnesses from Sri Lanka did not, in the court's view, create an irretrievable unfairness that would necessitate staying the proceedings. The court also noted that the publicity surrounding the case, while significant, might have diminished by the time the trial could proceed, further mitigating against a stay.

Orders