07 October 2013


The Supreme Court of Victoria, Court of Appeal in Director of Public Prosecutions (DPP) (Cth) v Fattal [2013] VSCA 276 has dismissed applications for leave to appeal against conviction and sentence of three people convicted of conspiracy to do acts in preparation for or planning of a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth).

According to the Crown in R v Fattal & Ors [2011] VSC 681 the proposed terrorist act was to attack the Holsworthy Army Base in south-west Sydney, killing as many soldiers and other people as possible.

Among other matters the Court of Appeal considered whether judge of first instance sufficiently directed the jury as to the need for the Crown to prove intent to advance Islam through violence, whether the strength of the Crown case against one co-accused was so much weaker as to require that the indictment be severed, whether proscription of advancement of religious causes by violent means is a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution, and whether evidence of the accused’s hostility towards Australia and her citizens should be excluded as evidence of which the probative value was outweighed by prejudicial effect.

In relation to religious freedom the Court stated that
125 The argument advanced under Ground 9 was that El Sayed had a constitutional right to freedom of religion under s 116 of the Commonwealth Constitution and thus that he was free to seek the fatwa.
126 That argument fails in limine. Section 116 of the Constitution forbids the making of any law ‘for prohibiting the free exercise of any religion’. It does not confer an absolute freedom of religion. As Gummow J said in Kruger v The Commonwealth, the preposition ‘for’ directs attention to the objective purpose of the law in issue and, as McTiernan J observed in Adelaide Company of Jehovah’s Witnesses’ Inc v The Commonwealth, the section is most likely not aimed at executive action. The question for the purposes of s 116 is whether the Commonwealth has, by passing s 101.6 of the Criminal Code, made a law in order to prohibit the free exercise of any religion.
127 Clearly it has not. The proscription of the advancement of religious causes by violent means restricts the freedom of an individual to advance a religious cause by violent means. But, as Starke J observed in Adelaide Company of Jehovah’s Witnesses’ Inc v The Commonwealth, s 116 does not confer an unlimited licence to propagate or disseminate subversive doctrines or, we add, to inflict violence upon others. It leaves Parliament empowered within the scope of its constitutional authority to enact laws reasonably necessary for the protection of the community and the interests of social order. There is no right in the name of religion or in pursuance of some perceived religious duty to the Almighty to disobey those laws; the ‘critical question is whether a law is reasonably necessary for the protection of the community and in the interests of social order’. We think it plain beyond argument that s 101.6 of the Criminal Code is just that.
128 Finally, we note that, although there was a suggestion in El Sayed’s written submissions that this matter attracted the operation of the Charter of Human Rights and Responsibilities, the notion was rightly abandoned in the course of oral argument. Clearly, as a State enactment, the Charter cannot affect the proper interpretation of Commonwealth legislation any more than any other Act of the Victorian Parliament can affect the interpretation of Commonwealth legislation. To the extent of any inconsistency between the two, the latter, if otherwise valid, will necessarily prevail by reason of s 109 of the Constitution.
The Court also dismissed a Crown appeal against the sentences imposed, ie a term of 18 years’ imprisonment with a minimum term of 13 years and six months’ imprisonment, with the Cth Director of Public Prosecutions contending that those sentences (less than life imprisonment) were manifestly inadequate.