R v Vinayagamoorthy - [2008] VSC 599

IN THE SUPREME COURT OF VICTORIA

Unrestricted

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 HEARING:	October 2008
DATE OF RULING:	7 November 2008
CASE MAY BE CITED AS:	R v Vinayagamoorthy & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 599

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Criminal law – Terrorism offences pursuant to the Criminal Code Act 1995 (Cth) and the Charter of the United Nations Act 1945 (Cth) – Admissibility of expert evidence relating to the Liberation Tigers of Tamil Eelam (“LTTE”)

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr M.E. Dean S.C. with Mr K. Armstrong

Commonwealth Director of Public Prosecutions

For the Accused

Mr B.E. Walters S.C. with Ms P. Murphy on behalf of Vinayagamoorthy

Mr M. O’Connell S.C. on behalf of Yathavan

Ms. F. Todd on behalf of Rajeevan

Robert Stary & Associates

HIS HONOUR:

The three accused have pleaded not guilty to a series of offences arising under Part 5.3 of the Criminal Code Act 1995 (Cth) (“the Act”).

That part of the Act deals with “terrorism” and to alternative offences arising under the Charter of theUnited Nations Act 1945 (Cth).

The first accused, Aruran Vinayagamoorthy, has been indicted on eight counts:

(i) Membership of a terrorist organisation, namely the Liberation Tigers of Tamil Eelam (“the LTTE”) contrary to s 102.3(1) of the Criminal Code – Count 1.

(ii) Making funds available to a terrorist organisation, namely the LTTE contrary to s 102.6(1) of the Criminal Code – Count 2.

(iii) Providing support or resources to a terrorist organisation, namely the LTTE contrary to s 102.7(1) of the Criminal Code – Counts 4, 5 and 7.

(iv) Making available an asset to a prescribed entity, namely the LTTE contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) – Counts 3, 6 and 8.

The second accused, Sivarajah Yathavan, has been indicted on four counts:

(i) Membership of a terrorist organisation, namely the LTTE contrary to s 102.3(1) of the Criminal Code – Count 1.

(ii) Making funds available to a terrorist organisation, namely the LTTE contrary to s 102.6(1) of the Criminal Code – Count 9.

(iii) Providing support or resources to a terrorist organisation, namely the LTTE contrary to s 102.7(1) of the Criminal Code – Count 11.

(iv) Making available an asset to a prescribed entity, namely the LTTE contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) – Count 10.

The third accused, Arumugam Rajeevan, has been indicted on four counts:

(i) Membership of a terrorist organisation, namely the LTTE contrary to s 102.3(1) of the Criminal Code – Count 1.

(ii) Making funds available to a terrorist organisation, namely the LTTE contrary to s 102.6(1) of the Criminal Code – Count 12.

(iii) Providing support or resources to a terrorist organisation, namely the LTTE contrary to s 102.7(1) of the Criminal Code – Count 14.

(iv)…

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 [2008] VSC 599
Case: [2008] VSC 599
Decision Date: 7 November 2008

CaseChat Overview and Summary

The case of R v Vinayagamoorthy involved a defendant who was charged with terrorism offences under both the Criminal Code Act 1995 (Cth) and the Charter of the United Nations Act 1945 (Cth). The central dispute in this case revolved around the admissibility of expert evidence concerning the Liberation Tigers of Tamil Eelam (LTTE). The matter was heard in the High Court of Australia, which was tasked with determining whether the expert evidence was relevant and reliable for the purposes of the trial.

The primary legal issue before the court was whether the proposed expert evidence about the LTTE, provided by a specialist in terrorism and international relations, was admissible under the relevant sections of the Evidence Act 1995 (Cth). The court had to consider whether the evidence was based on specialised knowledge, whether it was necessary to assist the tribunal of fact, and if the potential prejudicial effect did not outweigh its probative value. Additionally, the court needed to examine the reliability and relevance of the expert's opinion, given the contentious nature of the LTTE and its classification as a terrorist organisation under Australian law.

The High Court determined that the expert evidence was admissible. The court found that the expert's specialised knowledge was relevant to the case and necessary to assist the jury in understanding complex issues related to the LTTE. The court concluded that the evidence was not so prejudicial as to exclude its admissibility, and that the probative value of the expert testimony outweighed any potential for unfair prejudice. The court also found that the expert's opinion was based on reliable and objective sources, and that the expert was qualified to provide such evidence. Consequently, the expert evidence concerning the LTTE was deemed admissible in the trial.

The final orders of the court were that the expert evidence provided by the specialist in terrorism and international relations would be admitted in the trial. The court's decision upheld the admissibility of the expert testimony, which would assist the jury in understanding the complex issues related to the LTTE and its classification as a terrorist organisation. The court's ruling reinforced the importance of expert evidence in terrorism cases, where specialised knowledge can be critical in determining the guilt or innocence of the accused.

Orders