procedural. Application to sever counts 2 and 3 from count 1 refused; joinder upheld as compliant with Rule 2 and s.371. Discretionary severance under s.372(3) refused. Witness A's evidence admitted only in...
Key principles
Joinder of offences is lawful under rule 2 of the Presentment Rules (and s.371 Crimes Act) where there is sufficient nexus between the charges so that they are founded on the...
Section 372(3) confers a discretionary power to order severance where an accused may be prejudiced or embarrassed by being charged with more than one offence in the same...
Evidence of attendance at a foreign military training camp (al Farooq) is admissible to prove that attendance was a resource to the local organisation and to explain the...
Evidence of particularly horrific materials (the so-called beheading videos) is admissible where the Crown must prove knowledge and intention and the material is probative of...
Issues before the court
Whether counts 2 and 3 (relating to al-Qaida-connected conduct) were properly joined with count 1 (membership of a local terrorist organisation) on...
Plain English Summary
Bongiorno J refused the accused's application to sever two counts concerning al-Qaida-related conduct from a membership count concerning a local terrorist group. The Court held there was sufficient nexus and cross-admissible evidence of the accused's jihadi state of mind to justify joinder under the presentment rules and s.371. Discretionary severance under s.372(3) was refused because cross-admissibility and jury directions could manage prejudice. Witness A's evidence about attendance at the al Farooq training camp was allowed only in accordance with an earlier ruling (excluding references to bin Laden) and the Court added a prohibition on describing the Taliban as a lawful government. The Crown's beheading videos were held admissible as probative of knowledge and intention, on the terms of a prior ruling.
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Deep Dive
1,814 words · generated 18/07/2026
Whether the indictment should be severed under s. 372(3) because joinder would cause unfair prejudice or embarrassment to the accused.
Admissibility of Witness A's evidence regarding attendance at the al Farooq training camp and whether the Crown may expand that evidence to include...
Admissibility of the beheading videos sought to be led by the Crown against the accused; whether prejudice outweighs probative value and whether...
Cited legislation
No linked legislation citations have been extracted yet.
What happened
Shane Kent faces a re‑instated three‑count indictment: (1) knowingly being a member of a terrorist organisation (the Benbrika organisation), (2) intentionally providing support to an organisation connected with al‑Qaida, and (3) making a document connected with a terrorist act. Counts 2 and 3 had been severed from an earlier multi‑accused trial because of potential prejudice to other co‑accused, and the Crown later re‑instituted those counts on a fresh indictment after the earlier jury hung on the membership count. Kent challenged the joinder and sought severance and exclusion of Crown evidence which the Crown wished to lead to prove the counts (notably Witness A’s evidence of attendance at the al Farooq training camp in Afghanistan, material relating to alleged meetings with Osama bin Laden, and so‑called beheading videos). Bongiorno J heard pre‑trial submissions on the joinder/severance issues and admissibility and delivered an interlocutory ruling refusing severance and admitting the contested evidence subject to limits (Severance paras 1–8; Admission of evidence paras 1–8).
Why the court decided this way
Two principal strands of reasoning determined the result.
Joinder and nexus (Rule 2 / s.371). Bongiorno J applied the Presentment Rules (rule 2) and s.371 of the Crimes Act: charges may be joined where they are "founded on the same facts or form or are part of a series of offences of the same or similar character." The Crown established that the three counts are terrorism offences in the same statutory part of the Criminal Code and that they are concerned with fostering or being connected to terrorist acts. Critically, the Crown produced a detailed annex of material demonstrating cross‑admissible evidence that could establish Kent's state of mind, approval of violent jihad and support for the central tenets of the Benbrika organisation, which is probative for all three counts (Severance paras 2–3, 6–7). The Court concluded this evidence established the necessary nexus: "I am satisfied that there is more than sufficient nexus..." (Severance para 1). That finding answers the statutory joinder test and disposes of the misjoinder challenge.
Discretionary severance (s.372(3)) and management of prejudice. Kent argued that association with al‑Qaida would cause impermissible propensity reasoning and prejudice on the membership count (or vice versa). The Court recognised the risk but emphasised the limited availability of severance when evidence is cross‑admissible. The Court relied on authorities warning that severance is seldom appropriate where there is cross‑admissibility and where directions and trial management can address prejudice (Severance paras 3, 6–7; citing R v TJB, R v GAE, R v Papamitrou). Thus, rather than sever, the judge resolved to manage prejudice through limiting rulings and directions: "Any possible or perceived prejudice ... will be addressed by appropriate directions to the jury" (Severance para 7). Consequently, the application for discretionary severance under s.372(3) was refused (Severance para 8).
On admissibility, the judge reaffirmed prior interlocutory rulings (Ruling No.10 and Ruling No.15) that had constrained Witness A’s evidence and the beheading videos. The Court refused to permit expansion of Witness A’s testimony to the previously excluded matters (including meetings with bin Laden or explicit references to al‑Qaida) and added a specific prohibition on describing the Taliban as a lawful government (Admission paras 1–4). The beheading videos were held admissible because they are probative of the Crown’s required proof of knowledge and intention; horror alone does not render them inadmissible when they materially assist proof (Admission paras 5–8).
Before and after state of the law
Before this ruling, the established framework for joinder and severance in Victoria (and more broadly in common law jurisdictions) required a nexus between joined offences and permitted severance where joinder risked unfairness or prejudice. Authorities such as R v Kray and Ludlow had emphasised the need for a nexus and accepted that cross‑admissibility of evidence can supply it.
After this ruling, the decision reaffirms that:
Cross‑admissible evidence of state of mind, common purpose or factual overlap is a legitimate basis for joinder under rule 2 and s.371 (Severance paras 2–3, 6–7).
Discretionary severance under s.372(3) will not be lightly granted where evidence is cross‑admissible; jury directions and other trial management tools are ordinarily the appropriate response to potential propensity prejudice (Severance paras 6–7).
Prior interlocutory rulings limiting the scope of sensitive evidence should be respected on re‑trial, and trial judges may add further targeted prohibitions (Admission paras 3–4).
Horrific or repellent material will not be excluded merely because it is upsetting; admissibility turns on probative value (particularly for knowledge and intent) and on the availability of limiting measures (Admission paras 5–8).
The ruling therefore consolidates an approach that privileges efficient trial management and the admitted probative connection between counts where that connection is demonstrable, while leaving open the trial judge’s capacity to prevent unfairness by limiting evidence and providing directions.
Key passages with plain-English translation
"I am satisfied that there is more than sufficient nexus between these counts to enable them to be lawfully and appropriately joined in the one indictment." (Severance para 1)
Plain English: The judge found enough factual and evidential overlap between the three charges to lawfully try them together.
"Whilst the jurisdiction ... to prevent material unfairness ... is undoubted, a specific power to sever counts ... is conferred by s. 372(3) of the Crimes Act." (Severance para 3)
Plain English: The judge acknowledged the statutory power to split trials if necessary to avoid unfairness, and that the accused may rely on that statutory procedure.
"Any possible or perceived prejudice to the accused created by any particular piece of evidence will be addressed by appropriate directions to the jury." (Severance para 7)
Plain English: Instead of separating the trials, the court will manage any unfair risk by telling the jury how to use (or not use) certain evidence.
"The relevance of the evidence of Kent's military training is at least as to his being a resource for the Benbrika terrorist organisation ... and ... to explain his having described himself as 'al Farooqi' ... a matter relevant to counts 2 and 3." (Admission para 4)
Plain English: The judge explains why the training camp is important: it helps show Kent had skills valuable to the local group and explains how he used an alias in digital material linked to the other counts.
"These videos, horrendous as they are, assist in that proof. They will be admitted ... as were expressed in Ruling No. 15." (Admission para 8)
Plain English: The Court accepted that, notwithstanding their shocking nature, the videos can help prove what the Crown must prove about Kent’s knowledge and intentions, and they will be allowed under earlier terms.
What fact patterns trigger this precedent
This ruling will be directly relevant where:
Multiple terrorism-related offences arise from overlapping conduct, and the Crown relies on a large body of evidence showing a consistent ideological state of mind or shared purpose across counts.
The prosecution seeks to join offences that nominally implicate different organisations, but where the defendant’s conduct or material (e.g. training, digital artefacts) is alleged to indicate a single motive or role across those organisations.
The defence seeks severance on propensity/prejudice grounds arising from highly charged allegations (terrorism, links to internationally notorious groups) while the Crown contends evidence is cross‑admissible to prove state of mind across counts.
The prosecution seeks to lead repugnant or harrowing materials (videos, executions) that may be strongly prejudicial but the Crown says they are probative of knowledge/intention.
Under such fact patterns, Bongiorno J’s ruling signals that a showing of cross‑admissible evidence connecting the counts will usually defeat a misjoinder/severance challenge, and the court will prefer tailored evidentiary limitations and jury directions to severance.
How later courts have treated it
This ruling itself cites and follows prior authorities on joinder and severance (R v Kray, Ludlow; R v TJB; R v GAE; R v Papamitrou) and earlier interlocutory rulings in the same prosecution (Ruling No.10, Ruling No.15) (see Severance paras 3–6; Admission paras 1, 5). The decision reaffirms established lines of authority in Victoria and emphasises the trial judge’s discretion to manage prejudice rather than order severance where cross‑admissibility exists. Practitioners should expect later courts to treat this ruling as consistent with established principles rather than a novel shift: it applies the accepted approach that nexus and cross‑admissibility are central, and that severance is exceptional. Any appellate departure from this approach would likely require a demonstration that the trial judge abused discretion in assessing either nexus or the capacity of directions to prevent unfairness.
(Practitioners should consult subsequent appellate decisions in the same prosecution and any appellate treatment of the R v Benbrika related rulings for more authoritative developments in the same fact matrix.)
Still-open questions
Limits of cross-admissibility: How granular must the Crown’s demonstration of cross‑admissible evidence be to satisfy joinder rules in more attenuated factual matrices? In this ruling Bongiorno J accepted a nine‑page annex and prior findings; lower thresholds in different factual circumstances may produce closer disputes.
Jury directions sufficiency: What form and content of jury directions will be considered adequate to neutralise a strong propensity inference from association with internationally notorious groups? The ruling endorses directions in principle (Severance para 7) but does not specify form; future appellate scrutiny could identify minimum standards.
Handling of particularly inflammatory material: The judge admitted beheading videos because they were probative of knowledge and intent (Admission paras 5–8). However, the ruling does not formulate a detailed balancing test or specify precise limiting conditions for similar materials in other cases. There remains a live question about how to calibrate rulings on highly prejudicial materials when their probative value is contested.
Relevance of foreign training where multiple organisations are implicated: The judge admitted al Farooq training to show the accused as a "resource" and to explain an alias (Admission para 4). The extent to which foreign training linking an accused to one international movement can be used to infer membership of a different local organisation will require careful fact sensitivity in later cases.
Interaction with jury impartiality in highly publicised terrorism trials: While the ruling privileges directions over severance, in highly publicised matters the practical capacity of directions to cure prejudice may be limited; appellate courts may further develop criteria for when severance is necessary in such contexts.
Conclusion: Bongiorno J’s ruling in R v Kent (Ruling No.1) underscores the centrality of cross‑admissibility and nexus to joinder in terrorism prosecutions, affirms the primacy of trial management and jury directions over severance where evidence overlaps, and confirms that even horrific materials may be admissible when directly probative of the elements the Crown must prove. Practitioners should prepare detailed evidential maps when seeking joinder, and defence counsel must be ready to identify concrete features of prejudice that cannot be cured by directions if they are to secure severance.
Judgment (20 paragraphs)
[1]
Office of the Commonwealth Director of Public Prosecutions
[2]
Shane Kent, the accused in this case, stood trial last year with 11 others on an indictment which originally contained three counts against him: one of intentionally being a member of a terrorist organisation (s. 102.3(1) of the Commonwealth Criminal Code); one of intentionally providing support to a different terrorist organisation (s. 102.7(1) of the Code); and one of making a document connected with a terrorist act knowing of that connection (s. 101.5(1) of the Code). Before that trial commenced, the two latter charges were severed from the indictment for reasons connected with possible prejudice to 10 of the accused's co-accused. The Court was concerned with the connection between the substance of those counts and al-Qaida: see R v Benbrika (Ruling No. 6).[1] The accused, together with another then accused, Aimen Joud, were the only two of the 12 accused in that trial who were the subjects of these counts which were counts 12 and 13 on the indictment.
As events transpired, the jury in that trial did not agree on a verdict in respect of the only count the accused then faced, that of knowingly being a member of a terrorist organisation, thus necessitating a new trial on that count. However, the Crown has now reinstated the two severed counts and filed a new indictment, re-numbering those counts as counts 2 and 3 on that indictment after the membership count.
Questions of the joinder of these two counts to the membership count on the new indictment and of the admissibility of certain pieces of evidence sought to be led by the Crown have been raised by the accused and must now be determined before the trial can proceed.
[3]
Although argued after the admissibility questions, it is convenient to rule first on the challenge by the accused to the indictment he faces on the ground that he should not have to face counts 2 and 3 at the same time as count 1. He contends that counts 2 and 3 ought not to have been joined with count 1 because such joinder offends the rules as to presentments prescribed by s. 363 of the Crimes Act 1958. Specifically, he says that it offends rule 2 of the Presentment Rules and hence s. 371 of the Act. Rule 2 requires that for charges to be joined in the same presentment they must be ". . . founded on the same facts or form or are part of a series of offences of the some or similar character".
At the accused's first trial, Merhi, one of the other accused, argued that the counts now under consideration, then counts 12 and 13, ought not to have been joined with other counts alleged against him (that is to say Merhi) particularly, perhaps, the membership count. The Court held that the joinder of those counts with the membership count did not breach the joinder rule because both counts were of a similar nature and the necessary nexus between them was not broken merely because count 12 concerned al-Qaida and count 1, the membership count, concerned a local organisation led by Benbrika. However, the Court severed the indictment by deleting counts 12 and 13 because of their connection with al-Qaida and their irrelevance to counts against the then accused other than Kent and Joud. The application now before the Court is to sever those same counts from count 1 on this indictment, even though only Kent is now involved.
Mr. Champion of Senior Counsel, for Kent, developed his argument as to the misjoinder of these two counts by referring the Court to R v Kray[2] and Ludlow v The Metropolitan Police Commissioner[3]. The first of these cases concerned the three notorious Kray brothers and six of their associates. All of the accused were charged in connection with two murders committed some 18 months apart, some as principals and some as accessories. The Court of Appeal upheld the trial judge's refusal to sever the indictment. It held that, because of the nexus it considered existed between the two murders, joinder was permissible, indeed, desirable. The murders had "unusual common features". They were each cold blooded murders without obvious motive, each bore the stamp of a gang leader asserting his authority, and neither killing would have been possible had it not been for the capacity of the gang members to ensure the silence of witnesses. The Court found it desirable in the public interest that the two cases should be "examined together".
[4]
Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.[4]
[5]
Lord Pearson also specifically approved a statement of the Court of Appeal in Kray to the effect that such nexus would always be established if the offences were so connected that evidence of one would be admissible on the trial of the other.
[6]
Mr. Champion argued that the condition precedent for lawful joinder of these counts was not present because they did not form or were not part of a series of offences of the same or a similar character. He argued that, although the offences charged in counts 2 and 3 are alleged by the Crown to have been committed whilst the accused was a member of the terrorist organisation alleged in count 1, they concerned a different terrorist organisation. He also submitted that no cross admissibility of evidence could be established by the Crown with respect to these counts.
The Crown responded by pointing to the fact that the three offences concerned are all found in the same part of the Code, they are all terrorism offences, and they are all concerned with fostering a terrorist act or are said to be connected to a terrorist act. Specifically the Crown relied upon the cross admissibility of a large body of evidence which, it argued, will establish the accused's state of mind at the relevant time with respect to advancing the Islamic cause through violent jihad, a state of mind relevant to all three counts. That evidence was detailed in a nine page annexure to its submissions on this point.
Even if it could be argued that some specific items of evidence may not be admissible on all counts because of their specific relevance to one or other of those counts, there was enough demonstrated by the Crown's document to establish its point that evidence of the accused's state of mind in producing part of the video which is the subject of count 2 and producing the document that is the subject of count 3 is relevant and admissible on count 1. As I said in the ruling on severance, in the first trial about both Kent and his then co-accused, Joud:
[7]
Their having engaged in the conduct now alleged in counts 12 and 13 demonstrates their state of mind as being jihadis, that they approved of and supported the central tenets of the Benbrika organisation, that they advocated violence in pursuit of the Islamic cause, and that they were not on some frolic of their own, isolated from the organisation.[5]
[8]
I am satisfied that there is more than sufficient nexus between these counts to enable them to be lawfully and appropriately joined in the one indictment. The indictment falls within rule 2 of the presentment rules and accordingly complies with s. 371 of the Crimes Act. The accused's challenge to the indictment on the ground of misjoinder fails.
However, the matter does not end there. Mr. Champion also put an argument that to permit the indictment to be tried in its present form would expose the accused to such a risk of prejudice in his defence as to render the trial unfair, so that the Court should sever counts 2 and 3 from count 1 as the only practicable way to avoid an unfair trial.
Whilst the jurisdiction (scil. the power) of the Court to make such procedural orders as are necessary to prevent material unfairness to an accused in the trial process is undoubted, a specific power to sever counts from a presentment for unfairness in their joinder is conferred by s. 372(3) of the Crimes Act. The conditions precedent for the exercise of the power thus conferred are that an accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment, or for some other reason it is desirable that there be separate trials on joint counts.
Here the accused seeks discretionary severance because he says there is a danger of the jury reasoning impermissibly to his guilt on count 1 because he is accused of association with the notorious al-Qaida. In other words, there is a danger of propensity reasoning tainting the jury's deliberations on count 1. Alternatively, he argues that if he is found guilty of count 1 there is a danger that the jury will use propensity reasoning to find him guilty of counts 2 and 3.
Mr. Champion referred to a number of authorities on the issue of prejudice and the joinder of counts. In R v TJB,[6] Callaway JA warned against placing undue reliance upon warnings by trial judges as a safeguard against propensity reasoning, particularly with respect to alleged conduct of an unnatural or repellent character. Such cases are peculiarly liable to arouse prejudice, His Honour said. Mr. Champion sought to draw an analogy between the sexual assault of young children, with which Callaway JA was then dealing, and the activities of alleged or proved terrorists. Like most analogies, that contended for by Mr. Champion falls down at some point short of perfection. Undoubtedly, the community has an understandable antipathy towards terrorists and would be terrorists, so also against murderers, rapists and, perhaps, also robbers and burglars, particularly home burglars. The recognition of this antipathy leads to the careful warning against propensity reasoning judges give in appropriate case.
[9]
The Crown seeks to lead evidence against Kent in this trial in respect of all counts on the indictment of his attendance at a military training camp called al Farooq in Afghanistan in 2001. The evidence will come from Witness A, an American, who was at the camp at the same time as Kent. It is virtually the same evidence which was the subject of a ruling in the earlier trial, Ruling No. 10.[10]
The Crown now seeks to widen the scope of Witness A's evidence from that permitted by Ruling No. 10 to include a previously excluded piece of evidence concerned with Kent's meeting with or at least being present in the same place as Osama bin Laden on one or more occasions. The accused, on the other hand, now seeks to exclude Witness A's evidence in its entirety as being irrelevant to his membership of Benbrika's organisation and his alleged activity in support of al-Qaida, including the making of the document referred to in count 3. As already noted, this evidence has already been the subject of a ruling which permitted the Crown to lead some evidence from Witness A, but not any evidence referring to Osama bin Laden, al-Qaida and some other matters.
Having listened to the argument for exclusion of the evidence and for widening its ambit, I can see no reason to depart from the ruling given in the earlier trial. For the reasons given in that ruling, the Crown will be permitted to lead Witness A's evidence in accordance with paragraph 14 of it, that is to say paragraph 14 of Ruling No. 10. Restrictions on that evidence will remain as set out in Ruling No. 10.
If it is not already implicit in that ruling, I will add a prohibition on any mention of the Taliban as having been a lawful government of Afghanistan or otherwise. The relevance of the evidence of Kent's military training is at least as to his being a resource for the Benbrika terrorist organisation because of that training and, if it is eventually proved, to explain his having described himself as "al Farooqi" in a JPEG file saved on 16 July 2005 - a matter relevant to counts 2 and 3.
The second matter which needs to be addressed is the question of the so called beheading videos. They have also been the subject of an earlier ruling, Ruling No. 15. The Crown wishes to lead evidence of these videos in the same way as it did on the previous trial.
Application to sever counts 2 and 3 from count 1 refused; joinder upheld as compliant with Rule 2 and s.371. Discretionary severance under s.372(3) refused. Witness A's evidence admitted only in accordance with Ruling No.10, with an added prohibition on any mention of the Taliban as a lawful government and exclusion of evidence of meetings with bin Laden; beheading videos admitted on the same terms as Ruling No.15.
In reaching its conclusion, the Court held that it was undesirable that the relevant rule, that is to say rule 3 of the Indictment Rules 1915, the then English equivalent of the current Victorian rule 2, should be given an unduly restricted meaning as any risk of injustice could be avoided by the exercise of the trial judge's discretion to sever the indictment if he thought it necessary to do so.
In Ludlow the House of Lords refused to disturb a trial judge's refusal to sever two counts on an indictment when one count concerned an attempted larceny and the other concerned a robbery, each committed at public houses in proximity to each other. Again, the Court referred to the necessity of a nexus between the counts joined, having regard both to the law and to the facts. Lord Pearson said that
Here, for reasons already given, both above and in Ruling No. 6 in the previous trial,[7] at least some of the evidence relevant to proof of counts 3 and 4 will also be relevant to the accused's state of mind with regard to his membership of the Benbrika organisation alleged in count 1. As Callaway JA pointed out in R v TJB, severance will seldom be appropriate where there is cross admissibility of evidence between counts: see R v GAE[8] and R v Papamitrou[9].
The decision as to whether a propensity warning will be necessary in this case, as distinct from a direction that the jury must consider each count separately on the evidence relevant to it, can be deferred until all the evidence is in. Whether any of that evidence will be properly characterised as propensity evidence may be then debated, as well as what safeguards with respect to it are necessary. Its relevance to more than one count, and hence its admissibility on each such count, will depend not upon its quality as propensity evidence but, rather, on the fact that it is logically probative of the accused's state of mind at the relevant time and with respect to a relevant act or situation. It is thus admissible by virtue of s. 398A of the Crimes Act 1958 even if it could be characterised as propensity evidence. Any possible or perceived prejudice to the accused created by any particular piece of evidence will be addressed by appropriate directions to the jury.
I am satisfied that there should be no severance of the counts on this indictment.
Mr. Champion submitted, largely as Ms. Karapanagiotidis did previously, that because of the horrific nature of these videos their prejudicial effect far outweighs their probative value. He developed this argument as a propensity argument: that the possession of them did no more than suggest that the possessor was the sort of person who would commit the crimes alleged.
This argument must be rejected. Like much else in this case, this material is relevant to the accused's state of mind in much the same way as his assisting in the production of the video in counts 2 and 3 are indicative of his state of mind and so relevant to prove count 1.
The examples relied upon by Mr Champion of murderers and rapists being in possession of various killing or pornographic materials do not illustrate the point. The Crown case here must prove knowledge and intention in the accused at almost every point. These videos, horrendous as they are, assist in that proof. They will be admitted on the same terms and on the same basis as were expressed in Ruling No. 15.