R v Vinayagamoorthy

IN THE SUPREME COURT OF VICTORIA	Not Resticted
AT MELBOURNE CRIMINAL DIVISION
No. 1628 of 2007
THE QUEEN
v
ARURAN VINAYAGAMOORTHY	Accused
SIVARAJAH YATHAVAN ARUMUGAM RAJEEVAN

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF PRELIMINARY	30 March 2009
RULING:
CASE MAY BE CITED AS:	R v Vinayagamoorthy & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 112

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Criminal law – Offences pursuant s. 21 to the Charter of the United Nations Act 1945 (Cth) – Offences alleged to have been committed between 2002 – 2007 – Consideration of the words “directly or indirectly making an asset available” - Consideration of Clauses 9.3 and 9.4 of the Criminal Code.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.E. Dean S.C. with	Commonwealth Director of
Mr K. Armstrong and Mr S.	Public Prosecutions
Johns
For the Accused	Mr B.E. Walters S.C. with	Robert Stary & Associates
Vinayagamoorthy	Ms P. Murphy
For the accused Yathavan	Mr M. O’Connell S.C.
For the accused Rajeevan	Mr P. Boulten S.C.
HIS HONOUR:

The Crown filed over an indictment which contains only five of the counts which were on the original indictment.
Three of the counts relate to the accused, Vinayagamoorthy, and one each of the remaining counts relate to the accused Yathavan and Rajeevan respectively.
The counts allege a breach or breaches of the Charter of the United Nations Act 1945 (Cth) (“the Act”).
Each of the accused is charged with making an asset, namely moneys, available to a proscribed entity, namely, the Liberation Tigers of Tamil Eelam (“LTTE”).
In addition, the accused Vinayagamoorthy is charged, in a separate count, with making available assets, namely, electronic components and boat design software, to the LTTE.
All of the offences are said to have been committed between the range of dates 13 December 2002 and 6 July 2007, with different dates alleged as to the commission of each offence.
Apart from the evidentiary significance of the dates, the conduct alleged is covered by s 21 of the Act, as it then was. The significant difference between that and the Act as it now is the maximum penalty was then five years as against ten years now.
There are three elements of the offence and, stated briefly, they are:

(i) directly or indirectly making an asset available to a person or entity;
(ii) that the person or entity to whom the asset is made available is a proscribed
organisation or entity; and
(iii) no notice has been given by the Minister in accordance with s 22 of the Act.

The last element does not appear to be in issue in this case.
The two remaining elements each contain a number of matters. The first element involves “directly or indirectly making an asset available”. That involves dealing with what the expression “making available” means and the extent, if any, to which it is qualified by the expression “directly or indirectly”.
The last aspect of the first element is that the asset would need to have been made available to a person or entity. It would follow that to be guilty of an offence under this section, an accused must know to whom an asset is being “made available” and intend that the asset be “made available” to that person or entity.
For the purpose of this ruling I am satisfied that items set out in the counts are “assets” within the meaning of the Act.
The Crown has submitted in revised opening that –
“8. To make an asset available to a proscribed entity it is not necessary that the accused give or supply the asset to the entity or pass possession of it to the entity. It is sufficient for the prosecution to prove that the asset can be accessed or used by the entity if it elects to do so. This may be done by the accused by direct or indirect means.
9. It is not necessary to prove that the asset is connected to terrorist activity; there is no element of utility in the offence. The use which may be made of the asset by the entity is not an element that the prosecution is required to prove. The actual use of the moneys made available to the entity is not an element of the offence. It is not a defence to the charge that the accused believes that the asset would be used by the entity for humanitarian or other such purposes.”
In additional submissions provided on behalf of the prosecution, the additional two paragraphs appear:
“11. It is the Prosecution submission that the expression ‘make available’ where it appears in the Act means the accused performed an act of wide import. It is not necessary for the Prosecution to prove that the accused passed possession of the asset to the LTTE. As the Act makes clear, the asset may be made available by direct or indirect means.
12. The use of the expression ‘make available’ suggests that the legislature intended to capture a wide range of conduct including giving, providing, sending, making capable of or giving access to, supplying and making capable of being used. The meaning of the word ‘available’ is of wide import.” (Reliance is placed upon the definition in the Australian Concise Oxford Dictionary 3rd ed.)
If the Crown prove that any of the accused sent an asset which came into the possession of the LTTE or was used by the LTTE, will that satisfy the first element?
Although it does go some way to doing so, it does not do so. It would be necessary that the accused knew that the asset was going to the LTTE and intended to make the asset available to the LTTE either directly or indirectly.
The fact that funds might pass through the hands of the LTTE will not be determinative of the matter. If any particular accused was shown to have forwarded an asset to Sri Lanka intending that the funds were to be made available to a non- LTTE humanitarian organisation, the mere fact that the asset had to pass through the hands of the LTTE would not make the asset available to the LTTE. It would not be a defence, however, to show that the motive for the provision of an asset was humanitarian if that humanitarian entity was operated by the LTTE (either directly or indirectly). The distinction may be a fine one, but it is nonetheless there.
The example of the funds passing through the hands of the LTTE may raise the question of recklessness if it be shown that the LTTE applied the funds for its own purposes. Perhaps, ironically, the history that any accused had of dealing with entities in Sri Lanka prior to proscription might be a strong indication of what intention, whether reckless or not, could be made out.
There are a large number of authorities which have looked at the words “make available”. None of them, however, help much in the interpretation of this section and ordinary definitions of the words will suffice. It is important to note that there will be both a physical and mental element, the first being the physical act of putting an entity in possession of an asset, and the mental element, for what purpose. It seems to me that unless the purpose is such that it is intended that an entity would have the use of it or be able to use it, then it would have been “made available”. If, however, the asset has been physically given to one entity for the passing to another entity, then it will not have been made available unless the two entities are, to the knowledge of the provider, linked either directly or indirectly.
Some consideration of the next element is necessary. Any entity to whom an asset is provided either directly or indirectly must be shown to be a proscribed entity. The LTTE is such an entity by reference to subordinate legislation. Without going into all the details, the LTTE was proscribed by entry in the Commonwealth Gazette following the making of the Charter of the United Nations (Anti-terrorism Measures) Regulations 2001. The Minister was required to list persons and entities mentioned in paragraph 1(E) of Resolution 1371 (United Nations) in the Gazette. Such persons and entities then became proscribed. The LTTE and Tamil Tigers were included in that list and were Gazetted accordingly.
At that time, the equivalent of the present offence was included in that Regulation.
In subsequent regulations (Charter of the United Nations (Terrorism and Dealing with Assets) Regulations 2002). Those regulations were made on 12 December 2002 and at about that time the present offence (s 21) was included in the Act. The earlier regulations were repealed, but the following transitional provision applied:
“4(1) A person who, or an entity that, was a proscribed person or entity under the Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 immediately before the repeal of the effected by Regulation 3 is taken, on commencement of these Regulations, to have been listed under s 15 of the Charter of the United Nations Act 1945.”
Section 15 of the Act is as follows:
“15 Listing persons, entities and assets
(1) The Minister must list a person or entity under this section if the Minister is
satisfied of the prescribed matters.
(2) The Governor-General may make regulations prescribing the matters of which the Minister must be satisfied before listing a person or entity under subsection (1).
(3) The Minister may list an asset, or class of asset, under this section if the
Minister is satisfied of the prescribed matters.
(4) The Governor-General may make regulations prescribing the matters of which the Minister must be satisfied before listing an asset under subsection (3).
(5) A matter must not be prescribed under subsection (2) or (4) unless the
prescription of the matter would give effect to a decision that:
(a) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(b) Article 25 of the Charter requires Australia to carry out; and
(c) relates to terrorism and dealings with assets.
(6) A person or entity is listed by notice in the Gazette.
(7) An asset or class of asset is listed by notice in the Gazette.”
The question then arises as to what the Crown must prove to show that a person or entity is proscribed.
Since the statute is penal, leading counsel for the prosecution has submitted that the matter would need to be shown to be known by the accused or in relation to which they can be shown to have been reckless. What needs to be established is the legal status of the LTTE.
The Criminal Code deals with those matters as follows:
“9.3 Mistake or ignorance of statute law
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.
9.4 Mistake or ignorance of subordinate legislation
(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence of content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2) Subsection (1) does not apply, and the person is not criminally responsible
for the offence in those circumstances, if:
(a) the subordinate legislation is expressly to the contrary effect; or
(c) at the time of the conduct, the subordinate legislation:
(i) has not been made available to the public (by means of the Register under the Legislative Instruments Act 2003 or otherwise); and
(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence.
(3) In this section:
available includes available by sale.”
It seems to me that by the operation of 9.4 in particular, but perhaps a combination of 9.3 and 94 after the 2002 Regulations, the Crown does not have to prove knowledge by the accused of the proscription.
I have not heard argument on the matter and my view should be treated as a preliminary one. I draw it to the attention of the parties so that argument may be advanced.
At the time the offence was as a result of the 2001 Regulations. I would not have doubted the above reasoning. Now the offence (for present purposes) carries five years. The question, however, does raise the hardy perennial about mistake of fact or mistake of law.

[2009] VSC 112

30 March 2009