R v Taleb

Judgment

1. On 4 April 2019, Moudasser Taleb was found guilty by a jury of engaging in conduct preparatory to committing a foreign incursion offence: ss 119.1 and 119.4 of the Criminal Code Act 1995 (Cth). On Monday 1 April 2019, the sixteenth day of his trial, the prosecution made an application to amend the indictment so that the fault element of the central physical element of the offence was changed from recklessness to intention. The application was granted and the indictment was amended shortly before the addresses commenced on Tuesday 2 April 2019. These are my reasons for allowing the amendment.
2. An indictment was presented (before the list Judge) on 15 March 2018 in the following terms: The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty, charges on 15 March 2018 that: Moudasser Taleb Between about 6 February 2017 and about 15 June 2017 at Sydney in the state of New South Wales did, contrary to section 119.4(1) of the Criminal Code (Cth), while being at the time an Australian citizen, intentionally engage in conduct, namely: (a) Meet, plan and consult with a person who he believed could assist him to travel overseas (b) Participate in long distance training exercises wearing walking boots and carrying a backpack; (c) Purchase thermal tops, a solar powered phone charger, and a sleeping bag; (d) Purchase military style clothing, gloves and a belt; (e) Attempt to send $300 to a person he believed was a contact in Syria who could facilitate his travel there; (f) Attempt to obtain money on loan from a relative; and (g) Attempt to depart Australia on a flight from Sydney International Airport being reckless as to the fact that the conduct was preparatory to the commission of an offence under section 119.1 of the Criminal Code (Cth). Particulars of the offence against section 119.1 That he, as an Australian citizen, would enter a foreign country, namely Syria, with intent to engage in a hostile activity in that or any other foreign country with the intention of achieving one or more of the following objectives: (a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country); (b) the engagement, by that or any other person, in action that: (i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3), namely action: a. causing serious harm that is physical harm to a person; or b. causing serious damage to property; or c. causing a person's death; or d. endangering a person's life; other than the life of the person taking the action; or e. creating a serious risk to the health or safety of the public or a section of the public; and (ii) if engaged in in Australia, would constitute a serious offence; (c) intimidating the public or a section of the public of that or any other foreign country; (d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country); (e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country). Contrary to subsection 119.4(1) of the Criminal Code.