R (Cth) v Alqudsi (No 7)

HIS HONOUR: During the course of the trial of Mr Alqudsi on a charge of directing a terrorist organisation, the Court discussed with counsel whether there was, in the circumstances of the case presented, a need for an extended unanimity verdict. As a consequence of that discussion, written submissions were filed by the accused and by the Crown. The accused submitted that an extended unanimity direction was required, and the Crown submitted that it was not.

On the basis of the submissions, the Court advised the parties that it would not decide the matter until the evidence in the proceedings had been closed, as it was only after the completion of the evidence that the Court would be in a position to determine the factual pathway that was required to establish guilt.

The principles on the need for an extended unanimity direction are relatively easy to recite, but sometimes difficult to apply. In any event, prior to the addresses by Counsel, the Court indicated that it would not direct the Jury in a manner that required the Jury to be unanimous on at least one of the particulars of the terrorist attack that was said to be planned (hereinafter “the extended unanimity direction”). This was notwithstanding that the Crown relied upon planning and fostering of a terrorist attack which included four specific terrorist acts, namely: a naval base at Woolloomooloo in Sydney; one or more of the courthouses (either inside or outside) in which the Court was sitting to deal with the matters involving the then charges against the accused; the Mardi Gras; and the Israeli Embassy. Other aspects of possible terrorist attacks were also the subject of evidence being the random murder of tourists and/or non-believers and the provision of personnel for an unspecified attack requested by what, in the proceedings, has been called the “Soldier Letter”.

Two witnesses were called, amongst others, who were all alleged to be, one for a very short time, members of the organisation (which was referred to in the proceedings as the Shura). The membership of the Shura altered over time as members were admitted and/or departed. Some evidence was adduced relevant to motive and the organisation of the Shura and the position of the accused in the Shura, as well as relating to conduct of the Shura in sending people to be involved in a foreign incursion in Syria. That activity is not relied upon as a terrorist act in and of itself for the purposes of these proceedings. However, it may be that the act of sending persons overseas to fight for an ideological or religious cause against a government may, in and of itself, be a terrorist act. The accused had already been charged and convicted of the foreign incursion offences.

Returning to the principles on an extended unanimity direction, it is both trite and a fundamental principle to say that each factual ingredient necessary to constitute an offence must be established beyond reasonable doubt, and the verdict of the Jury (subject, in relation to State offences, to legislative provision) must be unanimous.

Where numerous factual assertions are made and specified in a charge, which together constitute one ingredient in the offence that any one of the factual assertions is capable of proving, then, in order to establish guilt, it is sufficient to establish only one of them beyond reasonable doubt on the unanimous view of the Jury. In other words, if a number of factual circumstances are said to give rise to a single ingredient necessary to constitute an offence and any one of those factual circumstances would, by itself, prove the ingredient, the Jury must be unanimous on the factual basis for proving the ingredient.

It should be reiterated that there is a distinction between alternative factual bases for liability and alternative legal formulations of liability based upon the same or substantially the same facts. The most obvious example is where an accused has killed a victim and relies upon one or more of the “partial defences”. Thus, where the factual basis for the killing is established, it is unnecessary for the Jury to be unanimous on whether the accused in such a trial had a substantial impairment of the mind or was acting unreasonably in self-defence et cetera.

Thus, it is not alternative legal bases or formulations of liability that give rise to the need for an extended unanimity direction; it is alternative factual bases for liability.

In R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, the Victorian Court of Appeal dealt with charges, relevantly, of conspiring with three others to defraud the victim by dishonestly inducing it to invest money. In determining whether an extended unanimity direction was required, the Court said:

The foregoing comments reiterate the distinction between the bases of legal liability and the proof of one of a number of discrete facts, any one of which would entitle the Jury to convict. It also clarifies that the discrete acts that require an extended unanimity direction must go to the proof of an essential ingredient of the crime charged and, when that occurs, the Jury must be unanimous on the act which, in their opinion, constitutes the essential ingredient.

This approach was adopted and applied by the Court of Appeal in Western Australia in Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84.

The issue in these proceedings is whether the factual pathway to the proving of the elements gives rise to two distinct bases for factual liability, the effect of which is that the Court is, in accordance with the foregoing principles, required to provide an extended unanimity direction.

The elements of the offence with which the accused is charged have been dealt with on a number of occasions. It is necessary to briefly reiterate those elements. First, between the dates alleged, being 30 August 2014 and approximately 31 December 2014, the accused intentionally directed the activities of an organisation. Secondly, the organisation was a terrorist organisation, and, thirdly, the accused knew that it was a terrorist organisation.

In order for the organisation to be a terrorist organisation, it must fit the definition of organisation and not be an ad hoc or loose association of individuals. Secondly, it must fit the definition of terrorist organisation, which includes that it is an “organisation”, but limits that to one that is directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act. In this case, the Crown relies upon preparing and planning only.

It is then necessary to refer to the definition of a “terrorist act”. A terrorist act is one done or a threat of action made with the intention of advancing a political, religious or ideological cause and is done or threatened to be done with the intention of coercing or influencing by intimidation a government, in this case in Australia. Further, the action (or threat of action) must be done with an intention to cause serious harm to a person, serious damage to property or a serious risk to the health and safety of the public.

There are other aspects but they are irrelevant for present purposes. The action excludes advocacy, protest, dissent or industrial action that is not intended to cause serious harm, death or a serious risk to health and safety.

Thus, in the present circumstances, the accused is charged with directing an organisation of this particular kind. The accused submits, with some force, that one of the factual pathways to guilt is to prove the planning or fostering of attacks on Woolloomooloo Naval Base. Another factual pathway is to prove the planning or fostering of an attack on the Court or, separately on the Mardi Gras et cetera.

The difficulty with the submission of the accused relates to the evidence of OA. There is a need to describe, in very general terms, the nature of the evidence before the Court.

The Court has been provided evidence relating to the operation of the Shura during 2013 and 2014. That evidence was for the purpose of proving, if one were to accept the evidence of OA and some other evidence, the motivation behind the alteration of the Shura’s operations from foreign incursion to domestic terrorism. The evidence on the operation of the Shura in 2013 and 2014 is also adduced for the purpose of proving the role of the accused in the Shura.

The evidence of the Crown on the operation of the Shura during the relevant time and related to domestic terrorism is essentially the evidence of OA. That evidence includes an oath of allegiance to ISIS; discussion of random acts of terrorism related to individual members of the public; the provision of personnel to another organisation or group for the purpose of other terrorist activities; and obedience to direction from Syria or Türkiye, being directions relating to the carrying out of terrorist activity for the purpose of furthering the public identification of ISIS and its causes.

The elements of the offence may be proved without proving a specific discussion or identification of any particular target. Planning and fostering of a terrorist activity can occur before any target is identified or discussed. Thus, the identification of certain targets particularised by the Crown does not form the pathway to the proof of the elements; it is merely evidence of the activities and discussions of the Shura, which, in turn, give the context of its operations and the knowledge of the accused.

When the Court, as presently constituted, raised with the parties whether an extended unanimity verdict was necessary, [1] the Court was enquiring as to the requirement of an extended unanimity direction, without the benefit of all the evidence and without yet determining the pathway to the offence charged. In this instance, the offence is the directing of a terrorist organisation.

It is the organisation that must be a terrorist organisation and, in order for it to be a terrorist organisation, it must be involved in, relevantly, planning or fostering a terrorist act. Further, the director, in this case allegedly the accused, must know that the organisation he or she directs is a terrorist organisation, i.e. one that is so involved. I reiterate, the target need not have been discussed or determined in order for the organisation to be a terrorist organisation or in order for the accused to have directed a terrorist organisation, knowing it to be a terrorist organisation. The particulars of possible targets are not different factual pathways to guilt and none of them are essential to the establishment of guilt.

At the time the matter was raised by the Court and submissions invited, those submissions dealt, in part, with the timing of any such determination. I accepted the Crown submission that the determination of whether an extended unanimity direction ought to be given could not be made until all the evidence had concluded.

I have now heard all the evidence, and over and above the foregoing, it seems to me that a modified Shepherd direction [2] needs to be given in relation to the evidence of OA.

If the Jury were not satisfied, beyond reasonable doubt, of the substance of the evidence of OA, in its entirety, the Jury could not convict. The remainder of the evidence, while supportive of the evidence of OA, would not, in and of itself, prove either the role of the accused or the role of the Shura.

In those circumstances, I intend to direct the Jury that unless it can be so satisfied, beyond reasonable doubt, having regard to the issues raised by the Court in relation to warnings and any other matter raised by the accused as to the reliability of the evidence, it could not find the accused guilty of the offence. In those circumstances, an extended unanimity verdict would amount to an unnecessary complication and is unnecessary.

These are the reasons for the ruling on the extended unanimity direction.