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.
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.
The indictment remained in that form until the amendment was made virtually at the end of the trial.
Between 25 February 2019 and 8 March 2019 there was a pre-trial hearing in which a number of evidentiary rulings were made. [1] The fault element, and the complications and confusion that reliance on recklessness might create, was raised in the course of the pre-trial argument. [2] Senior Counsel then appearing for the prosecution (who came into the matter quite late and had not drafted the indictment) said that indictments in this form "has been used in other prosecutions" but that the prosecution "will turn our mind to it." The pre-trial hearing concluded on Friday 8 March 2019, the last working day before the jury was scheduled to be (and, as it turns out, was) empanelled. The question of the indictment, and the inclusion of recklessness as a fault element, was raised again, and Senior Counsel confirmed that the indictment would remain in that form and the fault element relied on would be recklessness. [3]
The issue also arose in the course of the evidence. Queens Counsel elicited evidence from the accused that he did "not intend" to engage in warfare, shoot anybody, become a soldier or bring down any government. [4] The fault element, and the statutory complications surrounding the concept of recklessness, was raised the following morning. [5] In short, it was suggested that lacking an intention may not be sufficient given the identification of the fault element as intention. Again, on the fifteenth day of the trial, the question of the fault element was ventilated. [6] This was in a similar context - that is, the accused presenting a case and arguments directed towards intention rather than recklessness. It was also in the context of attempting to fashion a summing up, including directions on recklessness, that made a modicum of sense to the jury. In that context, a prize was offered to any counsel who arrived the following Monday with "a written direction that makes sense". [7]
Neither counsel claimed the prize. Rather, on the sixteenth day of the trial, shortly before the accused case was to close, the prosecution indicated that "over the weekend we had a look at the question of recklessness under the section particularly in terms of the way the evidence has fallen out last week" and they sought to amend the indictment to replace recklessness with intention.
I did not understand the suggestion that the evidence had "fallen out" in such a way as to change the approach to the fault element. However, that question was not ventilated in detail because Queens Counsel for the accused embraced and supported the amendment.
The application was governed by s 15C of the Crimes Act 1914 (Cth). That section provides:
15C Form of indictments, information and summonses
(1) At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.
(2) If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.
(3) The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant
The accused was charged with an offence under s 119.4 of the Criminal Code. There are three physical elements to that offence:
1. The accused is an Australian citizen.
2. The accused engaged in conduct, particularised in the indictment as under paragraphs (a)-(g).
3. The conduct was "preparatory to the commission of an offence under section 119.1" (that is a foreign incursion offence).
Absolute liability applies to the first physical element: s 119.4(6) of the Criminal Code. Accordingly, there is no applicable fault element: s 6.2(1) of the Criminal Code.
Section 119.4 is silent on the fault element that applies to the second and third physical elements. Accordingly, s 5.6 applies:
5.6 Offences that do not specify fault elements
(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
Recklessness is defined by s 5.4:
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
The fault element in respect of the second physical element, which consists only of conduct, is intention: s 5.6(1).
The fault element in respect of the third element (that the act be preparatory to the commission of a foreign incursion offence) is more difficult to discern. The Prosecutor initially inclined to the view that the third physical element consisted of "a result" (rather than a circumstance) so that s 5.4(2) applied. [8] When making the application for the amendment, he submitted that the physical element consisted of conduct so that s 5.6(1) applied. It was on that basis that the amendment sought to be made.
The chronology of the matter, and the failure to address earlier what is a difficult issue created by the complexity of the terms of the Criminal Code and the unusual nature of an offence that criminalises conduct that is preparatory to another offence, was a matter militating against allowing the amendment. However, there was no unfairness to the accused in circumstances where his case was conducted, and his evidence in chief was elicited, on the basis that he did not intend to commit the offence under s 119.4.
However, as I have said, there was no objection to the amendment and (it might be thought) the amendment was beneficial to the accused. Queens Counsel for the accused submitted:
I agree with the Crown's submissions. I agree that the amendment should be made.
There were three other significant factors in favour of allowing the amendment. First, the amendment facilitated a summing up that was readily understood by the jury. There would have been real difficulty in explaining to the jury that the prosecution had to establish that the accused was aware of a substantial risk that his conduct was preparatory to the commission of a foreign incursion offence, when the prosecution case was that Mr Taleb intended to commit the foreign incursion offence at the time he did the acts said to be in preparation to commit that offence. Second, the Criminal Code provides that proof of intention satisfies the fault element of recklessness. Third, establishing intention presents a higher bar for the prosecution than establishing recklessness.
It was unnecessary to come to any conclusion whether the offence under s 119.4 can be established by proving recklessness. [9]
For those reasons I formed the view that the amendment was desirable and necessary to enable the real questions in dispute to be before the jury. There was no potential injustice to Mr Taleb. Accordingly, the application was granted.
[2]
Endnotes
See R v Taleb [2019] NSWSC 241.
Pre-trial transcript 1 March 2019, pp 215-216.
Transcript (T), 8 March 2019, pp 2-3.
T 742.
T 752-753.
T 910-912.
T 912.
T 752. The Prosecutor suggested it might be both a result and a circumstance.
Compare with the submission made in Jarratt v The Queen [2018] VSCA 150; (2018) 333 FLR 371 where the fault element was framed as intention.
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Decision last updated: 10 April 2019