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) 1. 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 all of the particular acts alleged in the indictment? 1. Based on the decision of the Court of Criminal Appeal in Pratten v R [2014] NSWCCA 117 and its approval at [37]-[40] of the approach taken by the English Court of Appeal in R v Brown (1984) 79 Cr App R 115, the case will be put to the jury on the basis that it must be satisfied of at least one, but not all, of the particulars in the indictment. It will be emphasised that the jury needs to be unanimous with respect to the act (or acts) relied on, and this includes being satisfied that it was a preparatory act, and that the accused intended it to be so. In respect of each of those three matters – the two physical elements and the fault element – the jury will be required to be unanimous in relation to the same act or acts. 2. In spite of the use of the conjunctive "and" in the indictment, which is unfortunate, the acts nominated are really particulars of the "conduct" said to contravene s 119.4 of the Criminal Code Act 1995 (Cth). Accordingly, the case will not be put to the jury on the basis that the prosecution needs to prove all seven of the acts. Rather, the prosecution is required to prove that there was conduct, that the conduct was preparatory to committing an offence under s 119.1 of the Criminal Code, and that the preparatory conduct was done with the requisite fault element (that is, following an amendment to the indictment, intention). Should the jury be directed to return a verdict of not guilty? 1. No. In the course of argument over the elements of the offence, Queen's Counsel for Mr Taleb put that the jury needed to be satisfied of all seven acts nominated as (a) to (g) in the indictment as constituting the conduct alleged to be preparatory to a foreign incursion offence: cf. ss 119.1 and 119.4 of the Criminal Code. Further, it was submitted that there was no evidence of the act nominated in (f). [1] If both of these submissions were correct, the prosecution case would fail as a matter of law. Accordingly, there would be a directed verdict of not guilty. When that was raised, Queen's Counsel made an application for a directed verdict of acquittal. 2. I have already given my conclusion as to the first part of that submission – the prosecution does not need to prove all seven acts nominated in the indictment. Rather, it has to prove preparatory conduct constituted by one or more of those acts. Further, there is evidence capable of establishing the acts nominated in (f). That act is that the accused attempted to obtain money from a relative (for the purpose of funding a proposed trip to fight with ISIS in Syria). There is evidence that the accused attempted to obtain money from his cousin Jamal El Haouli. That evidence comes from Mr El Haouli, from the listening device recordings and messages between the accused and the undercover officer, and from the accused himself. The evidence is inconsistent as to the purpose of the loan (or gift). The accused's evidence is that it was to help him pay for his marriage and honeymoon. However, in conversations with the undercover officer, he said he was attempting to obtain money from a relative, and one inference is that this was for the purpose of travelling to Syria to join Islamic State forces. 3. The application for a directed verdict of acquittal, such as it was, fails on both limbs and is dismissed. What is the appropriate direction on the fault element (intention)? In particular, should I direct the jury in accordance with the approach urged by Queen's Counsel for the accused, namely that the prosecution is required to prove that at the time he did the act or acts, the accused "had an intention to carry out one of the acts of terrorism...in Syria"? 1. On the basis of the text of the Criminal Code ss 3.1, 5.6, 119.1 and 119.4, and in accordance with the judgment of Maxwell ACJ in Jarratt v The Queen [2018] VSCA 150; (2018) 333 FLR 371 at [29]-[34] and [45], the jury will be directed in accordance with the revised draft written directions that will presently be marked for identification as MFI VD32. Should the jury be directed, as the Prosecutor submitted, based on the decision of the High Court in Hawkins v R (1994) 179 CLR 500; [1994] HCA 28 at 516-517, that it should consider the question of mental impairment first and then move on to consider whether the fault element (be it recklessness or intention) has been established? 1. No. Hawkins was decided under the common law and the Criminal Code provisions in s 7.3(6), makes a significant change to the law. In particular, the mental impairment cannot be used to deny a fault element. Hawkins proceeded on the assumption that a mental illness that "fell short of insanity" could inform the question of whether the accused had the requisite intent or mens rea. In any event, I doubt that the passage in Hawkins relied on by the learned Prosecutor purports to authorise a direction that the jury should approach their task in any particular way or order. Rather, it is a jurisprudential analysis of the fact that mental illness, if established, means that a person is not criminally responsible for their acts and so issues of intention do not arise. 2. In Stanton v R [2003] HCA 29; (2003) 198 ALR 41; (2003) 77 ALJR 1151, the High Court made it clear that the jury is free to undertake its task and deliberations in any order it considers appropriate: see at [35] (Gleeson CJ, McHugh and Hayne JJ) and [70] (Gummow and Callinan JJ). See also Blackwell v R (2011) 81 NSWLR 119, Abdallah v R [2016] NSWCCA 275 at [46]-[47] (Hoeben CJ at CL) and [106] (Button J). Should the Prosecutor be permitted to put to the jury that the accused acted with a consciousness of guilt when he told police on arrest that he was going to Bosnia as a tourist? 1. No. Given that at least one of the versions given by the accused in evidence is that his intention was to go to Bosnia as a tourist, there is circularity in the reasoning process that he lied about going to Bosnia as a tourist because he knew he was guilty. To conclude he was lying, the jury would have to be satisfied that the prosecution has made out its case (that his intention was to travel to Syria to fight with ISIS). And yet, the Prosecutor would seek to make out that case by relying on the fact that he lied. That reasoning is circular: cf. for example, Mercer v R (1993) 67 A Crim R 91 at 97-98; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 199 (Brennan J dissenting in the outcome); and Zoneff v R (2000) 200 CLR 234; [2000] HCA 28 at [63] (Kirby J dissenting in the outcome). 2. Accordingly, the Prosecutor is not permitted to put to the jury that the statement to the police that the accused intended to go to Bosnia on holidays was a lie or was conduct that demonstrated a consciousness of guilt. However, the Prosecutor is permitted to refer to the conflicts in the versions provided by the accused and to rely on the fact that the version concerning Bosnia was a matter discussed between the accused and the undercover officer as a version he could give if stopped at the airport. 3. I should just clarify. When I say the Prosecutor is not permitted to put that it was a lie, the Prosecutor can certainly put that it was a lie but cannot go on to submit that it was a lie told because he knew he was guilty. Is it appropriate to direct the jury that there is no defence of entrapment in Australia? 1. Not at this stage. Depending on how the accused's case is put in final addresses, it is unnecessary in spite of the nature of the opening statement made by Queen's Counsel for the accused. It introduces an unnecessary complication to the trial. However, if the closing address suggests in any way that there is such a means of exoneration in Australia, it will be necessary in the summing-up to address the issue head-on and to instruct the jury clearly that there is no defence of entrapment. ********** Endnote 1. See Transcript pp 947-948. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2019