R v Benbrika & Ors

2 Against the opposition of the Crown, the court ruled that Benbrika would be permitted to make a submission of no case to answer without making his defence to the Crown case and before each of his co-accused had announced their proposed course in response to the statutory question prescribed by sub-s 418(d) of the Crimes Act 1958 (Vic). That ruling and the reasons for it have been published. This ruling is concerned with the no case submission itself, which was argued on 11 June 2008.

3 Count 12 of the indictment, which Benbrika faces alone, was laid pursuant to sub-s 101.4(1) of the Criminal Code Act 1995 (Cth). As far as is material to this ruling, that section creates an offence which consists of the possession of a thing connected with preparation for a terrorist act, the person charged knowing of such connection. It also provides a statutory alternative verdict of reckless possession of such a thing, and a defence based upon a lack of intention in the accused to facilitate preparation for a terrorist act. An evidentiary burden is cast upon the accused in respect of that defence by s 13.3 of the Code.

4 In count 12, Benbrika was accused of having been in possession of a compact disc containing what might be succinctly described as jihadi material on 27 June 2005 when police executed a search warrant at the home in which he lived with his wife and seven children at 1 Colac Street, Dallas. Federal Agent Wayne Ardley gave evidence that on that day a number of items were found in a green suitcase under the right hand bed in the right hand bedroom. These items included a number of audios cassettes, a handwritten letter addressed to the Ministry of Housing, 15 CDs, and one VHS tape. Among the CDs were two CDs each with a handwritten label entitled, 'Supporters of shariah, Islamic info lectures, Mansura, movies of shuuhaddah, and heaps more'. Although each label bore the same words, they were not identical copies of each other. CDs having identical content were also found in the possession of the accused, Joud, and at the home at which the accused, Majed Raad, lived with other members of his family. The CD has generally been referred to as the 'Mansura CD'.

5 Each of the Mansura CDs contains identical data. That data includes pictures, videos and articles which, the Crown argues, are intended to encourage violent jihad. They also contain an electronic copy of the Mujahid's Handbook, a collection of written material which, the Crown submits, provides a course of military training or military type training, including instruction on camouflage, sniper shooting, combat skills, including references to the use of explosives and survival skills in the field.

6 The offence created by s 101.4 with which Benbrika has been charged involves, in his case, the following elements:

1. That he possessed the Mansura CD on 27 June 2005;

2. That it was a thing connected with preparation for a terrorist act; and

3. That he knew it was a thing connected with a terrorist act.

7 There is no need in the present context to analyse further the complex definition of terrorist acts set out in sub-ss 100.1(1), (2) and (3) to its component elements or to analyse it further. No argument was put on Mr Benbrika's behalf which depended on any such analysis.

8 Mr Benbrika's attack on the Crown case was based upon an argument that the Crown had not proved that he was in possession of the Mansura CD on 27 June 2005 and/or that the Mansura CD was not proved to have been connected with the preparation of a terrorist act.

9 In the form in which it was finally enacted, sub-s 101.4(1)(a) of the Code provided no fault element for the physical element of possession of the thing having the attributes proscribed by sub-ss 101.4(1)(b) and (c). The lack of such an express fault element of s 101.4 of the Code does not mean, however, that the section imposes a form of absolute liability.

10 There are a number of reasons for this. First, in the context of a statutory provision imposing criminal liability, the concept of possession carries with it a mental element. Possession implies a state of mind with respect to the thing possessed.[1] In He Kaw Teh v The Queen, Dawson J said:

Possession may be an intricate concept for some purposes, but the intricacies belong to the civil rather than the criminal law. As was observed in Director of Public Prosecutions v Brooks,[2] the technical doctrines of the civil law which separate proprietary and possessory rights in chattels are generally irrelevant for the purposes of the criminal law. There the concept is a basic one involving the intentional exercise of physical custody or control over something. Knowledge is the basis of the necessary intent. There may be a sense in which physical custody or control can be exercised over something in ignorance of its presence or existence, but there has never been considered sufficient to amount to possession in law. This is what Griffith CJ meant in Irving v Nishimura[3] when he said:

If a man has something put into his pocket without his knowledge, he cannot be charged with having it unlawfully in his possession, if that fact appears.

Although intent must be based upon knowledge, it is the degree of knowledge required which poses the difficult question. When, as in the present instance, the exercise is one of statutory interpretation, the answer to the question will in the end depend upon the nature and form of the legislation.[4]

11 Reliance on the judicial dicta to which reference has been made was submitted by the Crown in this case to be prohibited by the Code. The prosecutor referred to s 2.1, a provision which proclaims the purpose of Chapter 2 of the Code as being 'to codify the general principles of criminal responsibility under laws of the Commonwealth'.

12 But whatever may be the scope of this provision, the concept of intention as being inherent in possession is, it is suggested, no more than the giving of a legal meaning to a term used in a provision creating criminal liability, which term is otherwise undefined. However, in this case, as the Crown's submission as to the proper construction of sub-s 101.4(1) must be accepted, the argument as to whether s 2.1 of the Code goes as far as to preclude reliance upon pre-Code judicial decisions is, in this context, sterile and need not be pursued further.

13 The second reason that intention is a necessary ingredient of possession in sub-s 101.4(1) derives directly from the Code itself. The physical element of having possession of a thing in sub-s 101.4(1)(a) consists only of conduct, so that sub-s 5.6(1) of the Code provides the fault element, namely that of intention.[5]

14 Thus, to satisfy sub-s 101.4(1), the Crown must prove that the accused intentionally possessed the thing, the subject of the charge. That this was the legislative intention of the provision is clear, not only from the Code itself, and in particular sub-s 5.6(1), but from an explicit statement to that effect in a supplementary explanatory memorandum circulated with a number of government amendments to the Security Legislation Amendment (Terrorism) Bill 2002 (Cth), by which s 101.4 was introduced into the Code in its present form. Prior to those amendments, it had been proposed that the offence of possession of a thing connected with preparation for a terrorist act would be an offence of absolute liability, not requiring proof of a fault element at all and not being subject to the defence of mistake of fact provided by s 92 of the Code. The amendment altered this situation.

15 Thirdly, were intention not a necessary ingredient of possession, the requirement of knowledge in sub-s 101.4(1)(c) would, of necessity, make it one. It is difficult to see how an accused could know of a connection between a thing of which he has merely unintentional de facto possession, and preparation for a terrorist act. Thus, as a matter of practical reality, the fault element of intention or a necessary mens rea is imported into sub-s 101.4(1)(a).

16 Given the necessity for the Crown to prove beyond reasonable doubt that the accused, Benbrika, intentionally possessed the Mansura CD found by the police at his home on 27 June 2005 in the circumstances already described, it is necessary to examine the evidence put forward by the Crown as being capable of supporting that proposition. In order to defeat the submission of no case to answer, there must be:

evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and [if] that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. [6]

17 The intention of Benbrika to possess the Mansura CD must be an available inference from the evidence led, if the Crown is to sustain a conviction on count 12. The fact that the CD was found in Benbrika's home, even if not in his study; that it was identical to CDs found in the possession of one other accused and found in premises associated with another; that it contained a large quantity of jihadi material, including training material directly relevant to violent jihad; that jihad and violent jihad and engagement in it were frequent topics of conversation between Benbrika and his co accused over whom he assumed or was accorded leadership status; that he had two copies of the CD; and that he had conversations with various of the other accused concerning the necessity to educate themselves concerning jihad, are all facts relied upon by the Crown.

18 There is no conversation in which it is ever suggested by Benbrika or anyone else that his wife or any of his children has any connection or concern with jihadi material or, indeed, with violent jihad, itself. She and they are never heard to take part in any such conversations or in conversations about such matters.

19 It would be appropriate to direct a verdict of acquittal on this count only if there was no evidence available to permit rejection of a hypothesis consistent with Benbrika's innocence. Such is not the case here. This circumstantial case is of the cable variety.[7] There is no single fact capable of proving Benbrika's guilt. But there are many facts which, when considered together, would permit the jury to be satisfied beyond reasonable doubt that he possessed the CD intending to do so, and in so doing, to exclude any hypothesis consistent with his innocence.

20 Further, it would not be necessary for the jury to exclude possession in some other person, such as Benbrika's wife or any of the seven children. The statute does not require 'actual possession' as that phrase was interpreted in Moors v Burke[8] in relation to what is now s 126 of the Summary Offences Act 1966 (Vic). The exercise of custody and control sufficient to constitute possession by Benbrika does not necessarily involve exclusive possession. The fact that one or more of them could have removed the CD or one of the CDs or either of them from the suitcase to look at their contents, or even to give them to someone else, does not preclude a finding that Benbrika had possession of them within the meaning of sub-s 101.4(1)(a) of the Code.

21 The accused, Benbrika's, application for a directed verdict of acquittal does not succeed on this ground.

22 The second ground argued by Mr van de Weil concerned the question of the connection between the Mansura CD and preparation for a terrorist act - the elements set out in sub-s 101.4(1)(b) of the Code. In Lodhi v The Queen [2007] NSWCCA 360, the New South Wales Court of Criminal Appeal was considering a charge under sub-s 101.4(1) of the Code where the thing in question was a 15-page document in Urdu, handwritten by the accused, described by the Crown as 'A terrorism manual for the manufacture of homemade poisons, explosives, detonators and incendiary devices.' At the date he possessed the document, the accused had not made any decision as to what terrorist act he or someone else would commit, what means the perpetrator would use, when the act would be carried out, where it would be carried out or what type or kind of terrorist act it would be. An application for a directed verdict of not guilty was heard and rejected by the trial judge, Whealy J, which rejection was upheld by the Court of Criminal Appeal (Spiegelman CJ, Barr and Price JJ).[9]

23 The argument put by the accused was that the Crown had not proved that he had formed the intention to prepare a terrorist act at the time he possessed the relevant document. As the Crown's evidence at best established a future, conditional intention and not an intention concurrent with the actus reus alleged, the accused argued that the relevant document was not connected with a terrorist act.

24 In upholding the trial judge's ruling, the Court of Criminal Appeal, in a judgment written by Barr J, adopted the reasoning and conclusions of the Chief Justice in an earlier interlocutory appeal by the same accused in the same case.[10] In that judgment, Spiegelman CJ (with whom McClellan CJ at CL and Sully J agreed) said, referring to sub-s 101.4(1):

Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified 'part' of the electricity system.

Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.[11]

25 Upholding Whealy J's ruling, Barr J said that it did not matter that the Crown could not prove that Lodhi had determined how, when, where or by whom the terrorist act might be carried out. The offence charged was proved if the Crown proved that the relevant act, that is to say possession of the relevant document, was done with the state of mind pleaded, that is, knowledge of the necessary connection.[12]

26 Mr van de Wiel submitted that Lodhi was distinguishable from the present case, although he didn't elaborate on this submission to any great degree. If there is any distinction, it is in the fact that Lodhi presented no problem for the Crown on the issue of possession. The accused himself had written the relevant document and it was found in his desk at his place of work. His possession of it was beyond argument. Apart from that point, however, the case is remarkably similar, particularly perhaps in the fact that the document written by Lodhi in Urdu, although much less extensive than the Mansura CD, provided instruction and information of value to someone who wished to engage in terrorist activity. The Mansura CD provided similar instruction, as well as extensive training on weapons, et cetera, which could be used in a terrorist attack.

27 It is well established that when an appellate court in another State construes a federal statue, a trial court of this State should not usually depart from the construction of that statute applied by that appellate court: R v Parsons,[13] R v Abbrederis,[14] and Australian Securities Commission v Marlborough Gold Mines Limited.[15] There is as yet no Victorian Court of Appeal decision on s 101.4 of the Code. In the circumstances, I consider this court should apply the reasoning and conclusion of the New South Wales Court of Criminal Appeal in the two Lodhi cases as governing its interpretation of that section.

28 Mr van de Wiel relied upon a recent decision of the United Kingdom the Court of Appeal concerned with s 57 of the Terrorism Act 2000 (UK).[16] Sub-section 57(1) provides:

A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

In particular, he relied upon a statement by the Lord Chief Justice, Lord Phillips of Worth Matravers, that s 57 should be interpreted in such a way as to require a direct connection between the object possessed and the act of terrorism alleged. But the drafting of s 57, which may be designed to achieve a similar purpose to s 101.4, is far removed from the Australian provision, the principal difference being that here no specific act of terrorism needs to be alleged or proved.[17]

29 This results in there being no reason to give any meaning to the words 'connected with' beyond their ordinary meaning as was done in Lodhi by the New South Wales Court of Criminal Appeal. It would be difficult to imagine words of wider import as they are used in the Australian provision. There is no reason to give them a narrower construction than that which the New South Wales Court of Appeal accepted as arising from the nature of the document possessed by Lodhi, namely a document of an instructional nature for the making of explosives and the like.

30 The CD in this case contains similar, if more extensive, material. It will be a matter for the jury to determine whether the Crown has proved beyond reasonable doubt that this material is connected with a terrorist act and that Benbrika knew of the connection, in all the circumstances which they consider the evidence discloses.

31 The application by Mr Benbrika for a directed verdict on count 12 is refused.

32 I turn then to the no case submissions which were foreshadowed by counsel for Aimen Joud and Haddara. It will be recalled that argument was heard on those applications following the argument put on behalf of Benbrika, with the question of whether they should be decided now or deferred being itself deferred pending a consideration of those arguments. In the event I have decided, essentially for the same reasons I gave for hearing Benbrika's application before all counsel had indicated their course in defence of their client's charges, that I should hear and decide Joud and Haddara's applications for directed verdicts on the counts in which they are involved before proceeding further.

33 Aimen Joud faces two counts laid pursuant to sub-s 101.4(1) of the Code, counts 7 and 8. Each count concerns the possession of a CD on 17 September 2005. One is the Mansura CD; the other, another CD sometimes called the Vortex Cookbook containing much material, including recipes or instructions for making various devices or explosives which could be connected with a terrorist act. Each of those CDs also has much other material which, taken alone, would probably not bespeak of connection with a terrorist act. This material is mainly of a religious nature, such as spiritual songs and the like, called nasheeds.

34 Mr Wraight, for Joud, has submitted that he has no case to answer in respect of either of these counts. He does so relying upon the reasoning of the UK Court of Criminal Appeal in Zafar, to which reference has already been made and which has already been relied upon by Mr van de Wiel for Benbrika. Mr Wraight argued that, as Joud is alleged to have breached sub-s 101.4(1) on 17 September 2004, the evidence relating to events after this date cannot be used to determine whether he committed the offence on that date. In the form enunciated by Mr Wraight, such a submission cannot be accepted. It is too wide. Whether any particular event or conversation in which Joud was involved after 17 September 2004 is admissible in proof of the elements of the sub-s 101.4(1) offences laid against him will depend, not on the date upon which they occurred, but on their probative relevance to the facts in issue.

35 Mr Wraight's argument as to sub-s 101.4(1) came down in the final analysis to a submission that the connection required to be proved by the Crown by sub-s 101.4(1)(b) had to be with a particular terrorist act. There had to be a plan. As he put it, 'It's got to be connected to something, and a terrorist act means something that is tangible, actual, real in fact, and that is not here.'

36 The Crown argument as put by Mr Maidment was that having regard to the 'garage conversation' to which Joud was a party, a jury would be entitled to infer that Joud and the others involved in that conversation were engaging in car theft for the purpose of financing the purchase of weapons or a terrorist purpose. The reference to Chechnya, to guns and the whole tenor of the conversation suggests as much. The subsequent finding of the CDs in Joud's possession permits the inference that he knew of their connection with a terrorist act, namely, whatever was going to be done with weapons or other things purchased with the proceeds of the stolen car racket.

37 The Crown submitted that the English cases of Zafar and R v Rowe[18] concerned a different legislative scheme. It submitted that the connection is proved here because of the content of the material on the CDs, themselves, an appropriate source of evidence on this issue.

38 Whilst there may be cases where the necessary connection could not be proved in this way, this is not such a case. At this stage of this case, the Crown is obliged only to produce evidence capable of sustaining a conviction on the counts charged. It has done that. The English cases are irrelevant. They concern a different legislative scheme and, even if it was appropriate to qualify the word 'connected' in sub-s 57(1) of the UK Act by the adverb 'directly', as Lord Phillips held it was, there is no similar warrant to be found in the Australian Criminal Code. The word 'connected' is not qualified in sub-s 101.4(1)(b), nor is the word 'connection' in sub-s 101.4(1)(c). Had Parliament intended that they be so qualified, it could have added the qualification. All that is required in the Australian legislation is that there be some nexus between the thing possessed and a terrorist act, whether such act ever occurs, whether it is a specific terrorist act or whether it is in fact more than one terrorist act. The reasoning in Lodhi is to be preferred to that of Rowe and Zafar, mainly because the legislation is so different and because of Lord Phillips' judgment.

39 The application by Aimen Joud for a directed verdict on counts 7 and 8 is refused.

40 Amer Haddara has been charged with the same offence as Benbrika and Joud with respect to a computer found in his possession on 8 November 2005. The charge is laid as count 13 on the indictment in this case.

41 The argument put by Mr Trood on Haddara's behalf raised most of the matters already dealt with in Benbrika and Joud's applications and they will not be repeated here. However, there were some differences on the facts which need to be briefly addressed.

42 The specific items relied upon by the Crown as being connected to a terrorist act found on Haddara's computer were two copies of a publication entitled 'Al-Battar Bimonthly Publication No 22'. This document is a military or quasi-military publication in the nature of a training guide or manual. It was found in each of two files, a Word document file and a PDF file called '22.doc' and '22.pdf', respectively, both contained within a zip archive file, '10.11.04 b22.zip'. The path to each of these files gave no clue as to their contents or why they might have been stored in the positions they were in on Haddara's computer in a file called 'Other/'. The file was at the end of a chain, all other limbs of which appear to have been directed to Haddara's business, which was one of organising trips to Mecca for Australian Muslims under the name El-Haramaine Travel. Mr Trood argued that there is no evidence that Haddara ever read the publication held in his computer file in this way.

43 The Crown responded to this submission by pointing out that the computer's own internal records reveal that the files were on the computer on 15 July 2005, some four months before the computer was seized. Access to those files was not able to be demonstrated otherwise.

44 Finally, the Crown referred to sub-s 101.4(6), which creates a statutory alternative to the charge faced by the accused, namely the offence created by sub-s 101.4(2) in which the element of intention required by sub-s 101.4(1) is replaced by recklessness. He put this as a fallback position.

45 The storage of this material on Haddara's computer might be likened to a chapter in a book in a library. The library's owner would be in de facto possession of chapter. The question of possession the for the purposes of sub-s 101.4(1), however, would depend on all the relevant circumstances of the case, not just those going directly to the storage of, or access to, the chapter. The same applies here. As Aickin J said in Williams v The Queen, in an analogous case concerning drugs:

It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances. [19]

46 The Crown has alleged that Haddara hid these files in his business records so as to disguise the fact that he had them. Support from this situation, however slight, can be drawn from the depth at which they were stored, discernible by the file path chosen by him. In the circumstances, including those to which I have referred, there is no warrant for withdrawing this count from the jury's consideration and directing an acquittal.

[1] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, especially Gibbs CJ at 539, Brennan J at 585, and particularly Dawson J at 599.

[2] Director of Public Prosecutions v Brooks [1974] AC 862, 867.

[3] Irving v Nishimura [1907] HCA 50; (1907) 5 CLR 233, 237.

[4] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 599.

[5] For the purposes of the Code, conduct includes a state of affairs: sub-s 4.1(2). Brennan J, in He Kaw Teh v The Queen, describes possession as being more akin to a state of affairs than to an act or omission of the alleged possessor: [1985] HCA 43; (1985) 157 CLR 523, 564.

[6] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214-15.

[7] See Sheppard v The Queen [1990] HCA 56; (1991) 170 CLR 573, 579 (Dawson J).

[8] [1919] HCA 32; (1919) 26 CLR 265.

[9] Lodhi v The Queen [2007] NSWCCA 360.

[10] Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303.

[11] Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, 318.

[12] Lodhi v The Queen [2007] NSWCCA 360, [207].

[13] [1983] VicRp 109; [1983] 2 VR 499, 506 (Young CJ).

[14] (1981) 1 NSWLR 530, 542 (Street CJ).

[15] [1993] HCA 15; (1993) 177 CLR 485, 492.

[16] R v Zafar [2008] EWCA Crim 184.

[17] Criminal Code Act 1995 (Cth) sub-s 101.4 (3).

[18] [2007] EWCA Crim 635.

[19] [1978] HCA 49; (1978) 140 CLR 591, 610.