and Paul Dacre v The Queen , , Robert Cerantonio , the Queen , , Antonino Alfio Granata , the Queen , , Kadir Kaya , the Queen , , Murat Kaya , the Queen , , Shayden Jamil Thorne and the Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0041
PAUL DACRE	Applicant
v
THE QUEEN	Respondent
S APCR 2018 0042
ROBERT CERANTONIO	Applicant
v
THE QUEEN	Respondent
S APCR 2018 0043
ANTONINO ALFIO GRANATA	Applicant
v
THE QUEEN	Respondent
S APCR 2018 0044
KADIR KAYA	Applicant
v
THE QUEEN	Respondent
S APCR 2018 0045
MURAT KAYA	Applicant
v
THE QUEEN	Respondent
S APCR 2018 0046
SHAYDEN JAMIL THORNE	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL ACJ, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2018
DATE OF JUDGMENT:	7 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 150
JUDGMENT APPEALED FROM:	R v Cerantonio & Ors (Ruling 15) [2018] VSC 77 (Justice Croucher)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Charge – Particulars – Foreign incursion – Preparatory conduct offence – Preparation for entry into foreign country with intention of engaging in hostile activity – Joint commission – Particulars of intended hostile activity – Prosecution unable to provide further particulars – Whether particulars provide ‘reasonable information as to the nature of the charge’ – Whether sufficient to ensure fair trial – Nature of preparatory offices – Particulars adequate – Leave to appeal refused – Lodhi v The Queen (2006) 199 FLR 303 applied – Criminal Procedure Act 2009 s 159(3)(c), Criminal Code Act 1995 (Cth) sch 1 ss 11.2A, 117.1(1), 119.1(1), 119.4(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant Dacre	Ms G Morgan	Slades & Parsons
For the Applicant Cerantonio	Mr M Cahill SC with Dr G Boas	Stary Norton Halphen
For the Applicant Granata	Mr C T Farrington with Mr C Terry	Patrick W Dwyer
For the Applicant Kadir Kaya	Mr D Hallowes SC with Ms F Todd	Galbally and O’Bryan Lawyers
For the Applicant Murat Kaya	Mr D Dann QC with Mr M Goldberg	James Dowsley & Associates
For the Applicant Thorne	Ms G Connelly	Doogue + George Lawyers
For the Respondent	Mr R Maidment QC with Ms R Sharp and Ms A Peek	Commonwealth Director of Public Prosecutions

---

MAXWELL ACJ:

Summary

The Criminal Code (Cth) (the ‘Code’)[1] makes it an offence for a person to enter a foreign country ‘with the intention of engaging in a hostile activity’ in that or any other foreign country (the ‘foreign incursion offence’).[2] The Code has also created a separate offence of making preparations to commit the foreign incursion offence (the ‘preparatory conduct offence’).[3] The preparatory conduct offence is committed if a person engages in conduct (whether within or outside Australia) which is ‘preparatory to the commission of’ a foreign incursion offence, whether by that or any other person.
[1]Criminal Code Act 1995 (Cth) sch 1. Also referred to as Criminal Code.
[2]Criminal Code s 119.1(1)(a).
[3]Criminal Code s 119.4(1)(a)–(b).

The applicants are charged with the preparatory conduct offence. It is alleged that they engaged in conduct in preparation for a future entry, by boat, into the Southern Philippines with the intention of engaging in hostile activity there.

Their complaint is that they have not been given sufficient particulars of the charge of preparatory conduct. The central issue is whether the particulars now provided sufficiently identify the hostile activity in which the applicants allegedly intended to engage once they had entered the Southern Philippines.

Since October 2017, there has been extensive pre-trial argument before the judge about the form of the charges. His Honour made a number of rulings concerning the adequacy of the particulars. After rejecting successive versions of the particulars as inadequate, his Honour ruled on 28 February 2018 that the further revised particulars now before the Court (the ‘amended particulars’) were sufficient.[4]
[4]R v Cerantonio & Ors (Ruling 15) [2018] VSC 77.

The applicants now seek leave to appeal from that ruling. For reasons which follow, I would refuse leave to appeal. In my opinion, the particulars adequately specify the preparatory conduct alleged to have been engaged in, and the state of mind which the prosecution alleges the applicants had at the time they engaged in that conduct.

This case has three distinctive features. First, an offence of preparatory conduct is itself most unusual. It is a creature of statute, different from conspiracy and different again from attempt. As will appear, the Commonwealth Parliament has enacted a number of preparatory offences in the area of terrorist activity, the evident intention being to enable authorities to intervene pre-emptively and intercept preparations for acts of terrorism at an early point. The preparatory conduct offence with which we are concerned is an offence of the same character.

By definition, the substantive offence to which the conduct is said to be preparatory has not been committed. The particulars of the preparatory conduct must identify the alleged nexus between the conduct and the intended future commission of the substantive offence. But, of necessity, the content of the particulars will be different from those which would be given when what is alleged is the actual commission of a substantive offence. At the time preparatory conduct is intercepted, the state of planning of the substantive offence will typically be less advanced than it would be if the substantive offence were about to be committed. The earlier the interception, the less detailed the plans are likely to be.

Secondly, the foreign incursion offence is complete at the point of entry into the foreign country. As already stated, the offence is committed by entering a foreign country with the intention of engaging in a hostile activity. In the present case, accordingly, the case against the applicants is that they were preparing for a future act of entry into the Southern Philippines with that hostile intent. The question which was explored in argument on this application was the extent to which the prosecution must be able to particularise the state of mind with which the applicants would enter the Southern Philippines and, specifically, to identify the particular conduct in which they would be intending to engage.

Thirdly, the Commonwealth Director has made clear that she is unable to provide further particulars. The amended particulars state as fully as the evidence permits the case which the Director will seek to make. Nothing is being withheld. The applicants contend, nevertheless, that the particulars are insufficient to ensure a fair trial because they fall short of providing ‘reasonable information as to the nature of the charge’, as required by the Criminal Procedure Act 2009 (‘CPA’).[5]
[5]CPA s 159(3)(c), sch 1 cl 1.

As the Director conceded at first instance, if it were concluded that the current particularisation was inadequate, an application for a permanent stay of the charges would have to succeed or, alternatively, a notice of discontinuance would have to be filed.[6] Plainly enough, therefore, this was a proper matter for consideration on an interlocutory appeal, as his Honour recognised in certifying under s 295(3) of the CPA.[7]
[6]R v Cerantonio & Ors (Ruling 16) [2018] VSC 97 [13].
[7]Ibid [13]–[15].

The relevant provisions

The foreign incursion offence is created by s 119.1(1) of the Code in the following terms:

119.1 Incursions into foreign countries with the intention of engaging in hostile activities
Offence for entering foreign countries with the intention of engaging in hostile activities
(1)A person commits an offence if:
(a)the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and
(b)when the person enters the country, the person:
(i)is an Australian citizen; or
(ii)is a resident of Australia; or
(iii)is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia.

Penalty: Imprisonment for life.

The foreign incursion offence is to be distinguished from the offence created by s 119.1(2) of the Code. The former is constituted by entering a foreign country with intent to engage in a hostile activity, the latter by actually engaging in a hostile activity in a foreign country (‘the hostile engagement offence’). Thus s 119.1(2) provides:
Offence for engaging in a hostile activity in a foreign country
(2)A person commits an offence if:
(a)the person engages in a hostile activity in a foreign country; and
(b)when the person engages in the activity, the person:
(i)is an Australian citizen; or
(ii)is a resident of Australia; or
(iii)is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia.
Penalty: Imprisonment for life.

The phrase ‘engage in a hostile activity’ is defined in s 117.1(1) of the Code, as follows:

a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(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); 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).

The preparatory conduct offence is created by s 119.4(1) of the Code, which provides as follows:

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities
Preparatory acts

(1) A person commits an offence if:
(a)the person engages in conduct (whether within or outside Australia); and
(b)the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and

(c)       when the person engages in the conduct, the person:
(i)        is an Australian citizen; or
(ii)       is a resident of Australia; or
(iii)      is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia; or
(v)is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Penalty: Imprisonment for life.

As can be seen, s 119.4(1) applies to conduct which is preparatory to ‘the commission of an offence against s 119.1’. Thus, the offence can be committed either where the conduct in question is preparatory to the commission of the foreign incursion offence (s 119.1(1)) or where it is preparatory to the commission of the hostile engagement offence (s 119.1(2)). The charges against the applicants concern the first of those alternatives.

The charges are laid on the basis of joint commission, which the Code defines as follows:

11.2A Joint commission
Joint commission

(1) If:
(a)a person and at least one other party enter into an agreement to commit an offence; and

(b) either:
(i)an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii)an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement

(2) An offence is committed in accordance with the agreement if:
(a)the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

Offence committed in the course of carrying out the agreement
(3)An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.

(5) The agreement:
(a) may consist of a non‑verbal understanding; and
(b)may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.

The amended particulars

In the indictment as it presently stands, the offence charged is described as follows:

Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the [Code] by virtue of section 11.2A of the [Code].

Under the heading ‘Particulars and Statement of Offence’, the following appears:

The Director of Public Prosecutions … charges that between about the 22^nd day of October 2015 and the 10^th day of May 2016 at Melbourne in the State of Victoria and elsewhere, [the applicants], while each being an Australian citizen, did intentionally engage in conduct, believing that conduct was preparatory to the commission of an offence against section 119.1(1) of the [Code].
Particulars of the conduct
a)Seeking to obtain and equip a boat suitable to enable participants in the agreement to leave Australia covertly for a foreign country with the ultimate destination being the Philippines;
b)Obtaining a Haines Hunter boat, GY141, and a Hyundai Terracan SUV, TPS550, and driving the vehicle and boat to Queensland.

Particulars of the offence against section 119.1(1)
That one or more of [the applicants], being an Australian citizen, would enter a foreign country, namely the Philippines, with intent to engage in a hostile activity in that country, namely engaging in conduct with the intention of achieving the objective of the overthrow by force or violence of the government of that country (or a part of that country).
Particulars of Intended Conduct in the Philippines
Encouraging acts of and/or participating in acts with persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the southern Philippines.
Statement of Offence – Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the [Code] by virtue of section 11.2A of the [Code].[8]

[8]Emphasis added.

The particulars should be read against the background of the amended Summary of Prosecution Opening, which is in these terms:

1. Each accused is charged with a single joint offence by way of s.11.2A of the [Code]. The charge alleges that pursuant to the agreement entered, each accused between about 22 October 2015 and 10 May 2016 did engage in an act or acts preparatory to the commission of an offence against section 119.1 of the Code by him or any other person, being the entry by him or any other person into a foreign country, with intent to engage in a hostile activity, contrary to section 119.4 of the Code.
1A. In late 2015, the accused decided and agreed to go to the Southern Philippines so that they could achieve their goal of living under Islamic rule. They decided and agreed to take action in the Southern Philippines with the objective of overthrowing the government of the Southern Philippines in order to bring about Islamic rule there.
2. The Crown case is that each accused entered the agreement intending that the offence be committed and in pursuit of that agreement the offence was committed. Whilst it is necessary for the Crown to prove only a single preparatory act in Australia by any accused pursuant to that agreement, and entry of the agreement by an accused, the Crown case is that each accused engaged in relevant preparatory acts under the agreement, namely:
(a) seeking to obtain and equip a boat suitable to enable the accused (or most of them) to leave Australia covertly, heading for the Philippines; and
(b) purchasing a boat and vehicle, and driving the boat and vehicle to Queensland.

3. Between 6 and 10 May 2016, 5 of the 6 accused drove the vehicle, towing the boat, to north of Cairns where they were arrested. They were towing the boat on which the Crown says they intended to depart Australia.
3A. The Crown alleges that the hostile activity the accused intended that he and/or another would engage in was to identify and engage with persons of the Islamic faith who were involved in actions or who were willing to carry out or facilitate actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines, and/or encouraging and or pursuing activities directed at achieving that objective.
4. To establish the agreement to do the act or acts and that such were done, with the intention that an accused or any other person enter a foreign country with intent to engage in hostile activity, the Crown relies upon a circumstantial case. It is the Crown case that each accused intended that he and/or another would leave Australia to engage in hostile activity in the Philippines in the cause of violent jihad.
5. The Crown alleges pursuit of an agreement between the accused that would enable (most of) them to leave Australia by boat and ultimately enter a foreign country, namely the Philippines, with the intention of engaging in hostile activity in the Philippines.

The offence of preparatory conduct

I referred earlier to the preparatory terrorism offences. Before the judge and again on this application, the Director relied on what was said to be a direct analogy between those offences and the preparatory conduct offence with which we are concerned.

The simplest example of a preparatory terrorism offence is that created by s 101.6 of the Code, which provides as follows:

101.6 Other acts done in preparation for, or planning, terrorist acts
(1)A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.

(2) A person commits an offence under subsection (1) even if:
(a) a terrorist act does not occur; or

(b)the person’s act is not done in preparation for, or planning, a specific terrorist act; or
(c)the person’s act is done in preparation for, or planning, more than one terrorist act.[9]

[9]Emphasis added: see [31] below.

In turn, ‘terrorist act’ is defined in s 100.1(1) to mean:

an action or threat of action where:
(a) the action falls within subsection (2) [i.e. s 100.1(2)] but does not fall within subsection (3) [i.e. s 100.1(3)]; and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth, or a State, Territory or foreign country, or part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

As the judge noted in one of his earlier rulings, the Director calls in aid the reasoning applied by the New South Wales Court of Criminal Appeal in a series of cases concerning preparatory terrorism offences.[10] In Lodhi v The Queen,[11] the New South Wales Court of Criminal Appeal considered a pre-trial challenge to the form of charges laid with respect to the preparatory offences of:

·collecting a document connected with preparation for a terrorist act, knowing of that connection (s 101.5);
·doing an act in preparation for a terrorist act (s 101.6); and
·possessing a thing connected with preparation for a terrorist act, knowing of that connection (s 101.4).

[10]R v Cerantonio & Ors (Rulings 1–11) [2017] VSC 725 [78] (‘Rulings 1–11’).

[11]Lodhi v The Queen (2006) 199 FLR 303 (‘Lodhi [No 1]’).

The Court of Criminal Appeal held that it was not necessary for any of the charges to specify a particular terrorist act as the object of the preparatory conduct. Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) said:

[T]he context of the sections and the scope and purpose of the legislative scheme confirms the interpretation suggested by the words creating each offence.
Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified ‘part’ of the electricity system.
Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.[12]

[12]Ibid 318 [64]–[66].

The subsequent appeal against conviction was dismissed. In Lodhi v The Queen,[13] Barr J (with whom Spigelman CJ and Price J agreed) said:

The Crown case was capable of proving that when [the appellant] did each actus reus, the collection, the preparation and the possession pleaded, he did so deliberately with the relevant motivation. As the Chief Justice said [in the earlier judgment], these sections of the Code make offensive preparatory acts done at a time when the actor has not decided precisely what he or she intends to do. Accordingly, it did not matter that the evidence could not prove that the appellant had determined when, how, where or by whom the terrorist act might be carried out. The offence charged in each count was complete if the Crown proved that the relevant act was done with the state of mind pleaded, that is, the knowledge of the appellant of the necessary connection.[14]

[13](2007) 179 A Crim R 470.

[14]Ibid 527 [207] (emphasis added).

The Director submits that this analysis applies with equal force to the preparatory conduct offence. That is, it was the intention and contemplation of the legislature that, at the time preparatory conduct was engaged in, those taking part would not necessarily have a settled or detailed plan as to the intended conduct in the foreign country or the objective of that conduct. As a result, neither the intended conduct nor its objective would ordinarily be able to be particularised with the level of specificity appropriate for a completed offence.

The trial judge rejected this argument. His reasons were as follows:

First, in my view, while there are some similarities between the preparatory terrorism offences and the preparatory offence charged in this case, I am not persuaded that, in enacting s 119.4(1), ‘the Parliament intended to create [an offence] where an offender has not decided precisely what he or she intends to do’, in the same way that has been held to be so in respect of the preparatory terrorism offence provisions. In summary, I reach this view because I accept the following:
Despite their common preparatory nature, the two sets of offence provisions, and the ways in which they are structured, are materially different. As I said earlier, the intended objectives in the definition of ‘engage in a hostile activity’ involve, in the main, a greater degree of specificity of intention than appears to be required in respect of a ‘terrorist act’. Further, because, unlike the actions that form the bases of ‘terrorist acts’, the conduct that will suffice as conduct for the purposes of ‘engaging in a hostile activity’ is undefined (other than in terms of the intended objectives accompanying that conduct), I think it is unlikely that the legislature, in enacting ss 119.4 and 119.1, intended ‘to create offences where an offender has not decided precisely what he or she intends to do’. On the contrary, that lack of definition tends to suggest a corresponding need to describe, with some particularity, the alleged agreed and intended conduct.
Further, the subsequent enactment of ss 119.4(1) and 119.1(1), without the enactment of a corresponding provision of the type found in s 101.6(2)(b), suggests that, at least in so far is the intended conduct in a foreign country is concerned, there is no relaxation of the need to identify, and prove, a specific piece of conduct in the usual way.
Finally, the use of the singular ‘a’ in the phrase ‘engaging in a hostile activity’, particularly when contrasted with the use of the words ‘one or more … objectives’ in the definition of that phrase, and the absence of any equivalent words vis-à-vis the intended conduct in the foreign country, suggest a degree of specificity in the intended conduct that must be identified and proved, but allows that there may be multiple objectives of that conduct.[15]

[15]Rulings 1–11 [2017] VSC 725 [125]–[128] (emphasis added) (citations omitted).

His Honour was at that time considering an earlier version of the particulars, which alleged that the applicants had

an intention to enter the Southern Philippines with an intention of involving themselves in the Islamic insurgency there, with the intention of achieving one or more of the objectives set out in s 117.1(1), in order to bring about Islamic rule there.[16]

His Honour concluded that those particulars were ‘just too vague and amorphous to be adequate’.[17] Further, in his Honour’s view
the allegation of joint commission, and therefore the need for agreement among accused on the intention to engage in a hostile activity in the Philippines, does, I think, demand a greater level of specificity in the particularization of the intended conduct in that country.[18]

[16]Ibid [21] (emphasis added).

[17]Ibid [130].

[18]Ibid [131].

The Director did not at the time challenge his Honour’s conclusion that the analysis of the preparatory terrorism offences was inapplicable to the preparatory conduct offence.[19] The applicants contend that it is not now open to the Director to challenge it. I disagree. The character of the preparatory conduct offence is at the heart of the application before the Court. Plainly enough, if this Court takes a different view from the trial judge on the issue, we are obliged to apply what we consider to be the correct view of the law.
[19]Ibid [49]–[133] (Ruling 3).

With great respect to the trial judge, I consider that there is a close and instructive parallel between the preparatory terrorism offences and the preparatory conduct offence with which we are concerned. Adapting the language of Spigelman CJ in Lodhi [No 1], the offence provision here in issue reflects

the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of [foreign incursions] requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.[20]

[20]See Lodhi [No 1] (2006) 199 FLR 303, 318 [66].

I do not regard the textual differences identified by his Honour as justifying, less still requiring, a different conclusion. On the contrary, my conclusion derives support from the fact that the definition ‘engage in a hostile activity’ refers only to ‘conduct’.[21] In contradistinction to the definition of ‘terrorist act’,[22] there is no definition of what types of acts will constitute ‘conduct’ for this purpose. Instead, the definition embraces conduct of any kind, provided that it is engaged in ‘with the intention of achieving’ one or more of the objectives set out in sub-paragraphs (a)–(e) of the definition. And the use of the word ‘conduct’ in turn explains why s 119.4(1) contains no equivalent of s 101.6(2)(b). It was simply unnecessary.
[21]Criminal Code s 117.1
[22]See Criminal Code ss 100.1(1), (2).

The applicants are not, of course, charged with conspiracy to commit the foreign incursion offence. Rather, they are charged with agreeing to engage in conduct preparatory to the commission of that offence. That is, it is alleged that they agreed to engage in conduct which was ‘preparatory to the commission’, in the future, of the offence of entering the Southern Philippines with the intention of engaging in hostile activity there.

In my opinion, proof of the preparatory conduct offence relevantly requires proof that:

(a) the conduct in which the accused person(s) engaged was sufficiently connected with — in the sense of being directed towards — the commission of that future offence for the conduct to be properly characterised as ‘preparatory to’ its commission; and

(b) at the time of engaging in the conduct, the accused person(s) intended that it be (or believed that it was) preparatory to the commission of that offence.

Put shortly, it must be proved that the accused person(s) engaged in conduct which was in fact, and was intended to be, preparatory to a future act of entry into a foreign country with hostile intent. That is, in summary form, how the judge defined the elements of the offence.[23] In argument in this Court, senior counsel advancing the joint submissions for the applicants accepted his Honour’s formulation as correct.
[23]Rulings 1–11 [2017] VSC 725 [36].

Self-evidently, when a person engages in preparatory conduct of this kind, he/she may not yet have formed any very detailed plan about what kind of hostile activity will be engaged in following the act of entry, or with whom, or when, or where. The very nature of ‘preparatory’ conduct is such that Parliament must be taken to have contemplated that the offence will be committed in circumstances where there has been no detailed planning about the kind of hostile activity which will follow the future act of entry.

It is important to keep in mind the nature of the case against the applicants. It is not said that they were planning to institute an insurgency of their own. Rather, it is alleged, they were planning to add their support — by encouragement and/or participation — to the actions of persons already engaged in a campaign directed at the violent overthrow of the Government of the Southern Philippines.

At the preparatory conduct stage, the applicants would presumably have anticipated that their support (following the intended future act of entry) might take a variety of forms. Moreover, they presumably anticipated that decisions about the forms of support they could provide, and about the particular ‘acts of force or violence’ to which that support would be directed, would only be made after consultation with those whom the applicants were intending to assist.

There has been no suggestion on behalf of the applicants that ‘accessory’ activity of this kind could not amount to ‘engaging in a hostile activity’ within the meaning of s 119.4(1). That is hardly surprising. It seems wholly consistent with the evident purpose of these provisions that the legislature intended to prevent Australians from entering foreign countries for the purpose of encouraging and assisting terrorists already operating there.

The intention accompanying the preparatory conduct

It is important, in my view, to distinguish between the intent which must be proved to have accompanied the preparatory conduct, and the intent which would have to be proved if the person were charged with committing the foreign incursion offence itself. In the latter case, of course, it would have to be proved that the accused had entered a foreign country and, at the time of entry, had had the intention to engage in one or more of the specified types of hostile activity.

Even with the completed offence, however, it might not be necessary to specify with precision what acts the offender had in mind at the point of entry into the foreign country. There is, I think, a helpful analogy with the offence of burglary. Like the foreign incursion offence, burglary is an offence of entry with intent. The offence is complete at the point of entry. Under s 76(1) of the Crimes Act 1958:

A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—
(a) to steal anything in the building or part in question; or
(b) to commit an offence—
(i)involving an assault to a person in the building or part in question; or
(ii)involving any damage to the building or to property in the building or part in question—

which is punishable with imprisonment for a term of five years or more.

In R v Verde,[24] the basis of the burglary charge was that the accused had entered a house intending to assault the occupants. His complaint on appeal was that, because there was no direct evidence that he knew at the moment of entering the house that either of the ultimate assault victims was inside, there was no direct evidence ‘that it was [his] intention at the moment of entry to assault anyone within the house’.[25]
[24](2009) 193 A Crim R 211.
[25]Ibid 215 [20].

Rejecting this argument, Nettle JA (with whom Vincent JA and Vickery AJA agreed) held that the jury could be satisfied beyond reasonable doubt that

although the applicant may not have known or believed that they were inside, his intention at the moment of entry was to assault them if he found them inside.[26]

His Honour continued:
Counsel for the applicant submitted, albeit I think only faintly, that in those circumstances the applicant's intention to assault would have been no more than a conditional intention to commit an assault, and that a conditional intention to commit an offence ought not properly be regarded as sufficient for the purposes of the offence of burglary.
I do not accept that argument. It is established in England that it is enough to constitute burglary that an offender who enters premises unlawfully has an intention at the moment of entry of stealing anything of value which may be inside. The same sort of reasoning was adopted by Smith J in the Western Australian Court of Criminal Appeal in Garlett v The Queen. Parity of reasoning implies that it should be enough to establish an offence of burglary that, although an offender may not know at the time of his or her unlawful entry into premises that anyone is inside, the offender none the less has an intention at the time of entry of assaulting any person who he may find inside. I see no reason to doubt it.[27]

[26]Ibid 216 [22] (emphasis added).

[27]Ibid 216 [23]–[24] (citations omitted).

In other words, it is sufficient for the offence of burglary that the offender is proved to have entered with intent:

·to steal anything of value which might be inside; or
·to assault any person whom he might find inside.

It is not necessary for the prosecution to allege, or prove, that the offender had specific conduct in mind at the time of entry.

By parity of reasoning, if a person were charged with the completed foreign incursion offence, it might not be necessary to particularise precisely the hostile activity in which, at the time of entry, the accused person allegedly intended to engage. As with burglary, of course, the laying of the charge would follow the act of entry, and the allegation of intent would be informed by inferences drawn from the conduct actually engaged in after entry.

Whatever may be the position with respect to the completed foreign incursion offence, the requirement for specificity of intention must necessarily be much less demanding when what is alleged is conduct in preparation for an act of entry which is not intended to take place until some time in the future. For it is not until that act of entry takes place that the intent to engage in hostile activity must be proved to have been in existence. It follows that I would reject the applicants’ contention, advanced in oral argument, that proof of the preparatory conduct offence requires proof that, at the time of engaging in the preparatory conduct, the accused person had already formed the intent which would in due course accompany the act of entry.

The adequacy of the particulars

According to the applicants’ submission, the ‘fundamental problem’ is that the particulars of the ‘intended conduct in the Philippines’ are inadequate. They are inadequate because

they fail to identify the acts directed at the overthrow of the government of the Philippines by force or violence.

What is required, it is said, is the identification of:
·what it is alleged the applicants agreed to do after they arrived in the Philippines;
·who would engage in that conduct; or
·when that conduct was agreed to take place.

Because none of these specifics have been identified, the existing particulars
could mean anything from engaging in armed conflict, to planting bombs, to singing protest songs or to cheering at a rally.

The ‘Particulars of Intended Conduct’ allege that the applicants intended to ‘encourage and/or participate in’ acts to be carried out by members of a class of persons identified as follows:

persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the Government of the Southern Philippines.

As can be seen, the reference here to ‘acts directed at achieving the overthrow by force or violence’ is not a reference to acts in which the applicants allegedly intended to engage but, rather, to acts in which persons of the Islamic faith are engaged or which they are willing to carry out or facilitate. Put another way, what is said to define the class of persons of the Islamic faith with whom the applicants were allegedly intending to associate themselves is that they are engaged in, or are willing to carry out or facilitate, acts directed at the violent overthrow of the government. The judge said he could ‘see no difficulty’ with the class being defined in this way.[28] (For ease of reference, I will refer to the class of persons so defined as ‘Islamic insurgents’.)
[28]R v Cerantonio & Ors (Ruling 13) [2018] VSC 35 [74].

Distilled to their essence, therefore, the ‘Particulars of Intended Conduct’ allege that the applicants intended to encourage ‘acts’ of Islamic insurgents and/or to participate in ‘acts’ with them. Although the Particulars do not explicitly identify the character of these acts, there seems to be no dispute about what is alleged. It is that the applicants intended to encourage Islamic insurgents to commit, and/or to participate with them in committing, ‘acts directed at the overthrow by force or violence of the government of the Southern Philippines’.

The complaint is that the particulars do not specify what types of acts, or with which particular persons, or at which particular times and places. Relying on one of his Honour’s earlier rulings, the applicants contend that there needs to be — and the particulars must therefore demonstrate — ‘some realistic potential connection between the intended conduct and the accompanying intended objective or objections.’[29] In his Honour’s view, it must be possible to say of a particular intended action that it was capable of achieving the objective — in this case, of overthrowing the Government by force or violence.
[29]Rulings 1–11 [2017] VSC 725 [163].

I respectfully disagree. First, there is no warrant for reading any such requirement into the definition of ‘engage in a hostile activity’. As the Director’s submission correctly points out, it is the intention with which the conduct is engaged in, as distinct from any objective feature of it, which makes the conduct ‘a hostile activity’.

Secondly, and in any event, no such question arises here. As already made clear, it is not alleged that the applicants had agreed on any particular conduct to be engaged in post-entry. Instead, it is alleged that they intended to engage in conduct in support of Islamic insurgents, and to do so with the intention of bringing down the Government.

In an earlier ruling, the trial judge accepted a joint submission advanced by the Director and the applicants, to the effect that

the Director must prove that … the accused under consideration agreed with at least one of his co-accused that the same particular conduct would be engaged in, in the Philippines (by one or more of the parties to the agreement).[30]

[30]Ibid [174].

Since the charges against the applicants were based on joint commission, his Honour said, it must be proved that

the accused in question and at least one other party (a co-accused) entered into an agreement to commit an offence, and that an offence be committed in accordance with the agreement. There cannot be an agreement unless there is a meeting of the minds. And there cannot be a meeting of the minds, in a case such as the present, unless the accused agree on the intended conduct and the common objective or objectives they intend to achieve when that conduct is engaged in. If the accused who are alleged to be parties to the agreement have wholly disparate intentions as to the objectives to be achieved, they either will not have agreed at all or, at the very least, will have agreed to commit different offences.[31]

[31]Ibid [176] (emphasis added).

The amended particulars evidently satisfied his Honour that this requirement had been met. Although it is unnecessary to decide for the purposes of this application, I am not sure that the analysis is correct. As explained earlier, it is not alleged that the applicants entered an agreement to commit the foreign incursion offence. Were they charged with committing that offence (on the basis of joint commission), it would need to be proved that they had agreed on those matters which would, when performed, have constituted the completed offence.[32]
[32]R v LK (2010) 241 CLR 177, 228 [117].

Nor are the applicants charged with the hostile engagement offence, or with engaging in conduct preparatory to the commission of that offence. The allegation is that they agreed to engage in preparatory conduct for an act of entry with hostile intent. It is sufficient for that purpose, in my view, if it is alleged and proved that there was a meeting of minds about:

(a) the conduct to be engaged in in preparation for the future act of entry; and
(b) the intention that the conduct be preparatory to the commission of the foreign incursion offence in the future.

The amended particulars go further than this, of course, and allege that there was a meeting of minds about the kind of conduct in which the applicants would be intending to engage following their entry into the Southern Philippines. Contrary to the applicants’ submission, the fact that the intended conduct cannot be further specified does not offend any of the principles applicable to the pleading of ‘joint commission’ offences.[33]
[33]Ibid; see also R v Franze (2013) 37 VR 101, 105–6 [15]–[16]; Weng v The Queen (2013) 279 FLR 119, 137–9 [69]–[74].

The entitlement to a fair trial

In a supplementary submission filed at the Court’s request, the applicants sought to develop their contention that the amended particulars were insufficient to enable them to have a fair trial. They argue that the Director’s inability to provide further particulars ‘cannot be an answer to the fundamental problem that arises in this case’.

This contention is founded on the requirement under s 159(3)(c) of the CPA that an indictment comply with cl 1 of sch 1 to that Act, which provides as follows:

A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b) contain the particulars … that are necessary to give reasonable information as to the nature of the charge.

According to the submission, the expression ‘reasonable information as to the nature of the charge’

derives its meaning and scope from the time honoured common law principles as to the requirements and purposes of particulars.

The submission relies for this purpose on the decision of the High Court in Johnson v Miller[34] and on the decisions of this Court in PPP v The Queen[35] and Baiada Poultry v VWA.[36]

[34](1937) 59 CLR 467, 489 (‘Johnson’).

[35](2010) 27 VR 68, 80 [42] (‘PPP’).

[36](2015) 257 IR 204, 208 [5].

In Johnson v Miller, the relevant question was

whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based.[37]

In Dixon J’s opinion, the prosecutor
clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. A court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.[38]

[37]Johnson (1937) 59 CLR 467, 489.

[38]Ibid 489–90 (emphasis added).

In PPP, Redlich JA (with whom Neave JA and Lasry AJA agreed) said:

The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence. These particulars are designed to serve a number of important purposes:
(1)to enable the accused to exercise the right to object to evidence on the ground of relevance;

(2) to permit the accused to know how the charge might be answered;
(3)to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
(4)to enable the trial judge to instruct the jury properly as to the law to be applied;
(5)to ensure that there is a unanimity of view by the jury as to a specific act by the accused;
(6)in the event of conviction, to enable the court to know the offence for which the defendant is to be punished; and
(7)to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.

The first four purposes of particulars reflect the requirement that the accused must be afforded a fair trial. In the joint reasons of Gaudron and McHugh JJ in S v R they state that the rule against duplicitous counts rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. If the evidence reveals several possible occasions of offending, and the charge could relate to any one of these, the accused will be forced to defend himself in relation to each and every occasion that arises on the evidence which may fit the description of the act charged. The rule against latent duplicity, informed by considerations of fairness, is therefore enforced to ensure that the accused knows the ‘particular act, matter or thing alleged as the foundation of the charge’.[39]

[39](2010) 27 VR 68, 80–1 [42]–[43] (emphasis added) (citations omitted).

The applicants submit that there can be no ‘relaxation of those time honoured common law requirements’ merely because the Commonwealth is unable to provide further particulars. The submission refers to the earlier version of the particulars set out above,[40] which identified the applicants’ ‘intended conduct’ in the Southern Philippines as ‘involving themselves in the Islamic insurgency’. This was said to have been ‘a collection of words … that covered a range of human activity that was so broad as to render the words devoid of meaningful content or precision.’ According to the submission, the amended particulars are infected with the same ‘vagueness and imprecision’, and the use of the word ‘acts’ shows that the Commonwealth has in mind ‘a very broad range of human activity’.
[40]See [28] above.

Conclusion

I consider that the particulars before the Court do give each applicant ‘reasonable information as to the nature of the charge’ against him. There is no departure from the ‘time honoured common law principles’ as to the function to be served by particulars. As Redlich JA made clear in the passage set out above, the ‘fair trial’ function of particulars is grounded in the core notion of procedural fairness, that is, that an accused person ‘should know what case he or she has to meet’.

The existing particulars satisfy that requirement. Distilled to their essence, the particulars allege that — at the time of the preparatory conduct — the applicants were acting with the intention of taking their boat to the Philippines and that, upon arrival, they would enter with the intent specified in the particulars. That is, they would at the point of entry intend to encourage acts of, or participate in acts with, persons belonging to the class of Islamic insurgents, being acts intended to bring about the overthrow of the government of the Southern Philippines by force or violence.

The Director does not allege that, at the time of the preparatory conduct, the applicants had formed any more detailed plan than that about the conduct in which they would engage following the intended future entry. The Director’s case is that, at the time they agreed to engage in the preparatory conduct, the applicants had agreed on the intended objective (the overthrow of the government) but

had not considered in any detail, much less decided or agreed upon, precisely what prospective conduct they intended to engage in … or precisely with whom they intended to engage in that future conduct in order to achieve their objective.

In my opinion, that lack of specificity is wholly unsurprising. For the reasons given earlier, this seems to me to be precisely the kind of circumstance which the legislature would have had in contemplation in enacting the preparatory conduct offence. The very purpose of its enactment was to enable the authorities to intercept preparatory conduct at what might be a relatively early stage in the planning of the substantive offence — in this case, the planning of the action which would be undertaken once the act of entry (and the foreign incursion offence) was complete.

Importantly, there was no submission on behalf of the applicants that the particulars as now provided were incapable of establishing the preparatory conduct offence. In answer to a question from the Court, senior counsel for the applicants conceded that proof of the matters particularised ‘potentially could’ make out the substantive offence.

The argument for the applicants might have more force if they were charged with having committed the substantive foreign incursion offence. They would then be justified in insisting on the Director particularising the ‘intent to engage in a hostile activity’ with which they were alleged to have entered the relevant foreign country. Subject to what I said earlier about the analogy with burglary, those particulars would presumably include details of the particular activities which, at the point of entry, it was their intention to carry out.

The applicants are not, of course, charged with the foreign incursion offence, but with the preparatory conduct offence. They are entitled to be told of the ‘particular acts, matters or things’ on which the preparatory conduct charge rests.

And that is the information which the amended particulars convey.

It is sufficient, in my opinion, for the Director to allege that the foreign incursion offence for which the applicants were making preparation was an offence which they intended would be constituted by an act of entry into the Southern Philippines, accompanied by an intention to encourage, or participate in, acts by Islamic insurgents directed at the overthrow by force or violence of the government of the Southern Philippines. Proof that that was the state of mind with which the applicants engaged — pursuant to their agreement — in the preparatory conduct would make out the preparatory conduct offence.

PRIEST JA:

The Indictment

An indictment[41] filed in the Supreme Court charges each of the applicants with engaging in ‘conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity’, contrary to s 119.4(1) of the Criminal Code (Cth) (the ‘Code’).
[41]On 19 February 2018, the indictment, dated 12 February 2018, was filed over a previous indictment. It is the third indictment to be filed.

In essence, the prosecution alleges that the applicants agreed to engage, and did engage, in conduct preparatory to an intended departure from Australia for a foreign country — the ultimate destination being the Philippines — with the intention of engaging in a hostile activity in the Philippines.

Thus, the indictment contains a single charge against the applicants, charge 1, formulated as follows:

The Director of Public Prosecutions, who prosecutes in this behalf for Her Majesty the Queen, charges that between the 22^nd day of October 2015 and the 10^th day of May 2016 at Melbourne in the State of Victoria and elsewhere, [each named applicant], while each being an Australian citizen, did

intentionally engage in conduct, believing that the conduct was preparatory to the commission of an offence against section 119.1(1) of the Criminal Code (Cth).
Particulars of the conduct

a)Seeking to obtain and equip a boat suitable to enable participants in the agreement to leave Australia covertly for a foreign country with the ultimate destination being the Philippines;
b)Obtaining a Haines Hunter boat, GY141, and a Hyundai Terracan SUV, TPS550, and driving the vehicle and boat to Queensland.
Particulars of the offence against section 119.1(1)

That one or more of [each named applicant], being an Australian citizen, would enter a foreign country, namely the Philippines, with intent to engage in a hostile activity in that country, namely engaging in conduct with the intention of achieving the objective of the overthrow by force or violence of the government of that country (or a part of that country).
Particulars of Intended Conduct in the Philippines

Encouraging acts of and/or participating in acts with persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the southern Philippines.
Statement of Offence – Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the Criminal Code (Cth) by virtue of section 11.2A of the Criminal Code (Cth).

No jury has yet been empanelled, but the trial judge has entertained a number of pre-trial applications and has made a number of rulings. Significantly, notwithstanding the position taken by the applicants’ counsel, the trial judge ruled that the particulars in the current indictment were adequate (‘the interlocutory decision’ or ‘the ruling’).[42] In essence, the judge concluded that the particulars are adequate, in that they disclose the agreed and intended conduct in the Philippines capable of having a realistic potential connection with the alleged ‘objective of that conduct’ (being the overthrow by force or violence of the government of the southern Philippines).
[42]R v Cerantonio & Ors (Ruling 15) [2018] VSC 77 (‘Reasons’).

Being unsatisfied with the ruling, on 5 March 2018, each of the applicants sought certification pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’). In the result, the trial judge certified that the decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[43]
[43]R v Cerantonio & Ors (Ruling 16) [2018] VSC 97.

By Notices dated 9 March 2018, each applicant seeks leave of this Court to appeal against the interlocutory decision contending that the judge erred in finding that the indictment gives adequate particulars of ‘the agreed and intended conduct in the Philippines’.

In my view, the application for leave to appeal should be granted, the appeal allowed and the interlocutory decision set aside. My reasons follow.

Background

So as to understand the issues raised by this application, it is necessary to provide some context.

Hence, on 10 May 2016, five of the six applicants — Paul Dacre, Robert Cerantonio, Antonino Granata, Kadir Kaya and Shayden Thorne — were arrested in far north Queensland. They had driven there in a SUV, towing a seven metre Haines Hunter boat. The sixth applicant, Murat Kaya, was later arrested in Melbourne.

At the time of their arrest, none of the applicants was the holder of a valid Australian passport. Thus:

·on 4 July 2014, the Minister for Foreign Affairs (‘the Minister’) cancelled Cerantonio’s Australian passport (he later being arrested in the Philippines on 11 July 2014, and being deported from the Philippines to Australia on 22 July 2014);
·on 25 February 2015, the Minister cancelled Murat Kaya’s Australian passport;
·on 25 February 2015, the Minister refused to re-issue the Australian passport of Kadir Kaya — Murat Kaya’s brother — which had expired on 13 April 2014, and also ordered the surrender of Kadir Kaya’s foreign passport and/or travel documents;
·on 25 February 2015, the Minister cancelled Dacre’s Australian passport;
·on 19 March 2015, the Minister refused to grant Granata’s application for an Australian passport; and

·on 21 October 2015, the Minister cancelled Thorne’s Australian passport.

The Amended Summary of Prosecution Opening (‘the Amended Opening’),[44] filed 24 January 2018, contains the following:[45]
[44]Section 182(2) of the CPA provides:
(2) The summary of the prosecution opening must outline—
(a) the manner in which the prosecution will put the case against the accused; and
(b) the acts, facts, matters and circumstances being relied on to support a finding of guilt.
[45]Underlining and strike-out in original.

1. Each accused is charged with a single joint offence by way of s.11.2A of the Criminal Code (Cth) (Code). The charge alleges that pursuant to the agreement entered, each accused between about 22 October ~~17 July~~ 2015 and 10 May 2016 did engage in an act or acts preparatory to the commission of an offence against section 119.1 of the Code by him or any other person, being the entry by him or any other person into a foreign country, with intent to engage in a hostile activity, contrary to section 119.4 of the Code.
1A. In late 2015, the accused decided and agreed to go to the southern Philippines so that they could achieve their goal of living under Islamic rule. They decided and agreed to take action in the southern Philippines with the objective of overthrowing the government of the Southern Philippines in order to bring about Islamic rule there.
2. The Crown case is that each accused entered the agreement intending that the offence be committed and in pursuit of that agreement the offence was committed. Whilst it is necessary for the Crown to prove only a single preparatory act in Australia by any accused pursuant to that agreement, and entry of the agreement by an accused, the Crown case is that each accused engaged in relevant preparatory acts under the agreement, namely:
(a) seeking to obtain and equip a boat suitable to enable the accused (or most of them) to leave Australia covertly, heading for the Philippines; and
(b) purchasing a boat and vehicle, and driving the boat and vehicle to Queensland.

3. The Indictment contains particulars with respect to each accused outlining the preparatory acts alleged in particular as having been pursued under the agreement by him. Those acts culminated in 5 of the 6 accused driving to north of Cairns Between 6 and 10 May 2016, 5 of the 6 accused drove the vehicle, towing the boat, to north of Cairns where they were arrested. They were towing a the boat on which the Crown says they intended to depart Australia.
3A. The Crown alleges that the hostile activity the accused intended that he and/or another would engage in was to identify and engage with persons of the Islamic faith who were involved in actions or who were willing to carry out or facilitate actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines, and/or encouraging and or pursuing activities directed at achieving that objective.
4. To establish the agreement to do the act or acts and that such were done, with the intention that an accused or any other person enter a foreign country with intent to engage in hostile activity, the Crown relies upon a circumstantial case. It is the Crown case that each accused intended that he and/or another would leave Australia to engage in hostile activity in the Philippines in the cause of violent jihad.
5. The Crown alleges pursuit of an agreement ~~common goal~~ between the accused that would enable (most of) them to leave Australia by boat and ultimately enter a foreign country, namely the Philippines ~~or elsewhere~~, with the intention of engaging in hostile activity in the Philippines ~~or elsewhere~~.
…

Three indictments in the Supreme Court have been filed against the applicants (the third being filed after the Amended Opening):

·first, on 23 October 2017, the Commonwealth Director of Prosecutions (the ‘Director’) filed an indictment — dated 1 September 2017 — alleging each applicant had committed an offence under s 119.4(1) of the Code, by virtue of the joint commission provision in s 11.2A (the ‘first indictment’);
·secondly, on 19 December 2017, a new indictment — dated 18 December 2017 — was filed (the ‘second indictment’); and
·thirdly, on 19 February 2018, the current indictment — dated 12 February 2018 — was filed (the ‘third indictment’).

There were two categories of particulars for the purposes of the first indictment: first, acts said to have taken place in Australia prior to the applicants’ intended departure; and, secondly, acts said to be the agreed intended conduct to take place after arrival in the Philippines. This second category was the subject of extensive submissions to the trial judge (both written and oral), and remains in issue in the present application.

On 12 December 2017, the trial judge published eleven rulings,[46] Ruling 3 being concerned with the question of whether the particulars of the intended conduct in the Philippines were adequate. His Honour concluded that the particulars of the alleged intended conduct in the Philippines contained in the first indictment were inadequate.[47]
[46]R v Cerantonio & Ors(Rulings 1–11) [2017] VSC 725 (‘Rulings 1–11’).
[47]Ibid [49]–[133].

The second indictment was filed a week later, on 19 December 2017. It confined the alleged ‘objective’ to the overthrow by force or violence of the government of the Philippines (or part of the Philippines), and also set out revised particulars of the intended conduct in the Philippines. And as previously mentioned, on 24 January 2018, the prosecution filed an Amended Opening, paragraphs 1A and 3A of the Amended Opening containing particulars of the alleged intended conduct in the Philippines.[48]
[48]See [82] above.

Once more, the trial judge entertained extensive argument (written and oral) on the same question: whether the second indictment, together with the Amended Opening, sufficiently particularised the intended conduct in the Philippines. And once more, on 9 February 2018, the trial judge delivered a ruling, finding that the particulars in issue were inadequate.[49]
[49]R v Cerantonio & Ors (Ruling 13) [2018] VSC 35 (‘Ruling 13’).

Three days later, on 12 February 2018, the prosecution filed the third — and current — indictment. It too was the subject of extensive submissions, orally and in writing. As I have said, the trial judge ruled that the particulars in the third indictment were adequate, that ruling being the subject of the judge’s later certification and the application in this Court.

Relevant provisions of the Code

In order to better understand the issues raised by the present application, it is necessary to have regard to several key provisions of the Code.

Section 119.4(1) of the Code provides:

119.4 Preparations for incursions into foreign countries for purpose of engaging in hostile activities
Preparatory acts

(1) A person commits an offence if:
(a)the person engages in conduct (whether within or outside Australia); and
(b)the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and

(c)       when the person engages in the conduct, the person:
(i)          is an Australian citizen; or
(ii)         is a resident of Australia; or
(iii)        is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia; or
(v)is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

Section 119.1(1) is in the following terms:

119.1 Incursions into foreign countries with the intention of engaging in hostile activities
Offence for entering foreign countries with the intention of engaging in hostile activities

(1) A person commits an offence if:
(a)the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and

(b)       when the person enters the country, the person:
(i)          is an Australian citizen; or
(ii)         is a resident of Australia; or
(iii)        is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia.

Section 117.1(1) of the Code contains a number of definitions, including:

‘engage in a hostile activity’: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(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); 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).

…
‘government’ of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.

It is also necessary to have regard to s 11.2A, ‘Joint commission’, which is found in Part 2.4 of the Code, ‘Extensions of criminal responsibility’.

11.2A Joint commission
Joint commission

(1) If:
(a)a person and at least one other party enter into an agreement to commit an offence; and

(b) either:
(i)an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii)an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2)An offence is committed in accordance with the agreement if:
(a)the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

Offence committed in the course of carrying out the agreement
(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.
(5)The agreement:
(a) may consist of a non‑verbal understanding; and
(b)may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.

Termination of involvement etc.
(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b)took all reasonable steps to prevent that conduct from being engaged in.

Person may be found guilty even if another party not prosecuted etc.
(7)A person may be found guilty of an offence because of the operation of this section even if:
(a)another party to the agreement has not been prosecuted or has not been found guilty; or
(b)the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.

Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.

Applicants’ submissions to the trial judge

With respect to the current indictment, the applicants submitted to the trial judge that they have not been given adequate particulars of the conduct component of the intended hostile activity in the Philippines, and that the particulars with which they have been furnished rendered the charge duplex.

It was contended that the ‘Particulars of Intended Conduct in the Philippines’, embodied in the charge, fail to identify in any adequate way the alleged ‘acts’ directed at the prohibited objective that the applicants agreed and intended to encourage or participate in. Due to that purported failure, the applicants submitted, it is impossible to determine whether there might be a realistic potential connection between the conduct and the objective.

The interlocutory decision

In ruling that the particulars are adequate, the trial judge expressed the view that, whilst it would be preferable if the alleged agreed and intended conduct could be and were more precisely identified, the particulars provided do adequately apprise the applicants, the Court and a potential jury, of the alleged factual foundation of this aspect of the charge; and that questions of the admissibility of evidence (and, if there were to be a finding of guilt, sentencing facts) could adequately be determined.[50]
[50]Reasons [9].

His Honour held that the particulars of the alleged agreed and intended conduct, particularly when combined with the alleged single agreed and intended objective of that conduct, give reasonable information as to the nature and foundation of the charge.[51] By reading the ‘Particulars of the offence against section 119.1(1)’ and ‘Particulars of Intended Conduct in the Philippines’ with the rest of the indictment, the applicants are ‘informed that it is alleged that they agreed and intended to encourage the acts of, and/or to participate in acts with, persons of the same faith who themselves were engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the Southern Philippines’; and that ‘they [the applicants] agreed and intended to engage in that conduct with the intention of achieving the objective of the overthrow by force or violence of the government of the Southern Philippines’.[52]
[51]Ibid [10].
[52]Ibid [11].

The judge was of the view that the particulars are sufficiently informative and precise, because the range of acts embraced by the ‘Particulars of Intended Conduct in the Philippines’ is identified and tends to be confined, in several ways:[53]

(a) First, by confining the intended objective of the conduct to a single common objective, the range of acts embraced by the impugned particulars is necessarily confined as well.
(b) Secondly, that the persons whose acts are to be encouraged, or participated with, are those ‘of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the Southern Philippines’, also limits the range of acts embraced by the particulars. Those persons are, in essence, of the same mind as the [applicants], at least in so far as it is alleged that the [applicants] also intended to achieve the objective of ‘the overthrow by force or violence of the government of the Southern Philippines’.
(c) Thirdly, the acts ‘engaged in [etc]’ by those persons are directed at achieving the overthrow of the government ‘by force or violence’. Thus, the acts engaged in (etc) themselves must be acts of force or violence or have some connection with conduct involving force or violence, which is yet another limiting factor.
(d) Fourthly, while the potential forms of encouragement and participation are not particularized, to encourage the acts of the persons nominated, or to participate in those acts with them, is relatively specific conduct.

[53]Ibid [12].

The judge observed that, whilst it might be accepted that various different ‘acts’ still might be embraced by the particulars, that was not ‘fatal’ for several reasons:[54]

(a) First, it strikes me that the gravamen of ‘engaging in a hostile activity’ is the objective that is intended to be achieved by engaging in the conduct. Merely to engage in conduct (whether intended or actual) is not caught by the definition in s 117.1(1). Rather, that conduct is only caught by the provisions, and defined, by reference to its intended objective. Now, of course, that does not mean that the agreed and intended conduct directed at that objective need not be identified adequately. But it does sharpen the focus on the objective, rather than on the conduct.
(b) Secondly, the objective alleged here — the overthrow of a government by force or violence — tends to admit more readily of an ongoing process, rather than the discrete pieces of conduct or results of the type that can be found in other prohibited objectives listed in the definition of ‘engage in a hostile activity’ in s 117.1(1). That suggests to me that the conduct which, it is alleged, was agreed and intended to be engaged in with the intention of achieving that particular objective may itself admit of an ongoing process and, in consequence, perhaps also leaves more room for different pieces of conduct to be embraced by the one agreement.
(c) Thirdly, the alleged agreed and intended conduct to be engaged in is, at least in this case, well into the future. That in turn tends to suggest an element of contingent thinking. I think s 119.4(1) necessarily embraces agreements that involve a combination of future/contingent thinking. ... Here, it seems to me impossible to ignore the reality that the allegations include future intended conduct that necessarily would involve contingent thinking, which in turn allows for the possibility of a range of different actions falling within an agreement, and also suggests that particularization along the same lines would be adequate.
(d) Fourthly, that does not mean that there is no restriction on the range of acts or contingencies that might be capable of falling within an agreement. Indeed, the alleged agreement must be confined to some degree to be meaningful and to amount to an allegation that can be particularized and defended. But, in this case, I consider that the particulars of the agreed and intended conduct are sufficiently precise and confined so as properly to allege an offence against s 119.4(1) and so as adequately to inform the [applicants] of the case against them.

[54]Ibid [13].

His Honour concluded:[55]

Finally, contrary to the [applicants’] submission, I think that the particulars allege agreed and intended conduct capable of having a realistic potential connection with the alleged objective of that conduct. To encourage the acts of others engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government, or to participate with such persons in such acts, strikes me as behaviour necessarily connected with achieving the objective of the overthrow of the government by force or violence.

·that act (or omission) is preparatory to the commission of an offence under s 119.1; and
·when the person does the act (or omits to perform the act), he or she fulfils one of the criteria in subsection (1)(c).[89]

[88]Section 4.1(2) provides:

(2) In this Code:

conduct means an act, an omission to perform an act or a state of affairs.

engage in conduct means:

(a)do an act; or

(b)omit to perform an act.

[89]By virtue of s 119.4(6), absolute liability applies to these criteria. As to absolute liability, see s 6.2. At relevant times, each applicant was an Australian citizen, and the applicants have indicated that there is no dispute that they were Australian citizens at the relevant time: Rulings 1–11, [40].

Consistently with the way in which the prosecution puts the present case, a completed offence against s 119.1 of the Code would require that:

·a person enters a foreign country; and
·at the time of entering the foreign country the person:
·has the intention of doing an act in that country with the intention of engaging in hostile activity: that is, doing an act with the intention of achieving 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); and
·fulfils one of the criteria in subsection 1(b).[90]

[90]By virtue of s 119.1(3), absolute liability applies to these criteria. At relevant times, each applicant was an Australian citizen. See footnote 89 above.

In the course of oral argument in this Court, senior counsel for Murat Kaya — whose submissions were adopted by all other counsel (only counsel for Dacre advancing further submissions on the construction of the Code) — endorsed the trial judge’s analysis of the physical and fault elements of the offence alleged, which is as follows:[91]
[91]Rulings 1–11, [36].

The accused person under consideration (say, “X”) will be guilty of the offence charged if, on the evidence admissible in his separate trial, the jury are satisfied beyond reasonable doubt of each of the following four elements, including their various components:
(a) that X and one or more of his co-accused entered an agreement to commit an offence (the “preparatory offence”), that preparatory offence being:
(i)that one or more of the parties to that agreement would intentionally engage in conduct within Australia (in particular, the buying of a boat and towing it to the far north of Queensland); and
(ii)that that conduct would be, and would be intended to be, preparatory to the commission of a further offence by one or more parties to the agreement, that further offence being:
(1) intentionally entering a foreign country (in particular, intentionally entering the Philippines by boat);
(2) with the intention of engaging in a hostile activity in the Philippines, which means:
A.with the intention of engaging in conduct in that country (in particular, with the intention of involving himself or themselves in the Islamic insurgency in the southern Philippines); and
B.with the intention of achieving one or more of the following objectives (in particular, with the intention of (i) overthrowing, by force or violence, the government of the Philippines or (ii) intimidating the public, or a section of the public, of the Philippines); and

(b) that the preparatory offence the subject of the agreement referred to in paragraph (a) was committed in accordance with the agreement, which is to say that:
(i)one or more of the parties to the agreement, in accordance with the agreement, intentionally engaged in conduct (in particular, intentionally bought a boat and towed it to the far north of Queensland); and
(ii)that conduct was, and was intended to be, preparatory to the commission of a further offence by one or more parties to the agreement, that further offence being:
(1) intentionally entering the Philippines by boat;
(2) with the intention of engaging in a hostile activity in the Philippines, which means:
A.with the intention of engaging in conduct in that country (in particular, with the intention of involving himself or themselves in the Islamic insurgency in the southern Philippines); and
B.with the intention of achieving one or more the following objectives (in particular, with the intention of (i) overthrowing, by force or violence, the government of the Philippines or the southern Philippines or (ii) intimidating the public, or a section of the public, of the Philippines); and

(c) that X and at least one other co-accused who was a party to the agreement mentioned in paragraph (a), intended, at the time of entering that agreement, and while the conduct comprising the preparatory offence mentioned in paragraph (b) was being committed, that the preparatory offence and the further offence mentioned in paragraphs (a) and (b) would be committed under the agreement; and
(d) that X was an Australian citizen when he entered the agreement mentioned in paragraph (a) and when the preparatory offence mentioned in paragraph (b) was committed.^[[92]]

[92]In Rulings 1–11, [39], the judge also suggested a possible alternative formulation of paragraph (d):

(d) that X and any co-accused who was a party to the agreement mentioned in paragraph (a) or who engaged in the conduct mentioned in paragraph (b) or who was to enter the Philippines with the requisite intention to engage in a hostile activity were Australian citizens at the time of the agreement, conduct and intended entry.

It is noteworthy that the prosecution accepts that it is necessary to prove that an accused person had to have the intention to commit the offence proscribed by

s 119.1 of the Code at the time of performing the act which is preparatory to the commission of the offence under s 119.4. Thus, in the course of argument prior to Rulings 1–11, senior counsel for the prosecutor submitted the following:[93]

[SENIOR COUNSEL]: ... I was just going to [section] 119.4(1), the offence charged. The issue, as we understand it, is sub-s (b), the conduct is preparatory to the commission of the offence against [section] 119.1. Your Honour, we have sought to make clear, and if we follow it our friends accept this proposition we make is correct, that if you’re not intending to do what is prohibited in [section] 119.1, the conduct won’t be preparatory when you engage in it in Australia. In other words, you’ve got to be meaning to go and commit the offence when buy the boat for want of a better example.
HIS HONOUR: Yes, and you agree with that?
[SENIOR COUNSEL]: We do. We say that because it’s the preparatory — the preparatory nature of what he’s done arises from the circumstance that it’s intended to prepare for the taking of the step entering and engaging in hostile activity, and whilst I’ll come to complicity a little later, we accept, Your Honour, that the action taken in preparation has to be concurrent with the intent to do the prescribed offence. Otherwise it’s not preparatory. We don’t have any issue with that, Your Honour.

[93]Emphasis added.

Although the prosecution accepts that an accused person must have the intention to commit the offence proscribed by s 119.1 of the Code at the time of performing the act which is preparatory to the commission of the offence under

s 119.4, however, the prosecution does not accept that it needs to prove any specific intended conduct. So much was made clear in further debate before the trial judge. Thus, in discussion which took place shortly before the particulars of the second indictment were ruled to be inadequate,[94] different senior counsel for the prosecution agreed with the prosecution’s earlier submissions that, for the purposes of s 11.2A of the Code, the applicants needed to be shown to have agreed on the same conduct to be performed in the Philippines. The prosecution could not, however, specify what that agreed conduct was. The following exchange illustrates the point:[95]
[94]Ruling 13. See [87] and footnote 49 above.
[95]Emphasis added.

HIS HONOUR: Do you accept as your predecessor did, in order for there to be an agreement of the type required by the joint commission provisions, that the accused under consideration must have agreed with the other or others about the same conduct in the same ---
[SENIOR COUNSEL]: Yes, yes.
HIS HONOUR: Yes.
[SENIOR COUNSEL]: Yes, we do. Agreed as to the same state of mind that they would have in entering the Philippines. It was intended that they would enter the Philippines with that state of mind, that is with intent to engage in conduct as particularised with the objective that we’ve particularised and we say the evidence admits of that; it doesn’t admit of anymore.
HIS HONOUR: All right. So what does it encompass then, this alleged agreement? The alleged agreement as to the conduct which will be carried out with the objective of achieving the overthrow of the government by force or violence, what does it encompass?
[SENIOR COUNSEL]: It encompasses what we’ve particularised. It encompasses doing what is essentially deemed to be practical and expedient and productive of achieving the objective.
HIS HONOUR: But another way of putting what you’ve just said then, what’s deemed to be practical or expedient, is to say whatever it takes.
[SENIOR COUNSEL]: Whatever it takes. There might be limits on that, but that’s essentially it.
HIS HONOUR: But what are the limits? See, this is what the accused want to know.
[SENIOR COUNSEL]: We don’t know, Your Honour. Your Honour, with respect, we’re not here to put the limits. We’re not saying, “oh but they didn’t intend to chop someone’s head off”.
HIS HONOUR: But they’ve got to know what case they’re meeting.
[SENIOR COUNSEL]: They have. They know exactly what case they’re meeting. This is the agreement they’ve reached, and they’re going to decide when they get over there the specifics; who they’re going to meet, where, is it going to be under the arches, is it going to be in the nearest pub, is it going to be down at the mosque, where are they going to go precisely? Is it going to be the island of Sulu or Yolo or whatever the other places are; Mindanao? They’re going to decide those sort of things when they get there and when they start talking to people.
HIS HONOUR: Yes, but some of those things and perhaps all of those things that you’ve just mentioned might be permissible uncertainties for the purposes of agreement alleged here, but I keep coming back to the point that what’s put against you is that there must be something more concrete about the alleged agreed and intended conduct. On the previous occasion it was involvement in the Islamic insurgency.
[SENIOR COUNSEL]: Your Honour, we’ve endeavoured to put that in a slightly different way and in a more specific way. It may be that engaging or identifying and engaging with persons of the Islamic faith who want to overthrow the government of the Philippines would amount to an Islamic insurgency, but we’ve endeavoured to put it in different language and in more specific and identifiable terms in order to isolate the kind of conduct that essentially that concept endeavoured to capture, but limiting it to what we’ve put.

In the context of this case, for any of the applicants to be guilty of the charged offence, the prosecution will need to prove:[96]

·first, that the particular applicant and at least one other applicant entered into an agreement to do an act[97] inside or outside Australia; and
·secondly, that the act agreed to be done (by at least one of them) was to be done preparatory to entering the Philippines with the intention of engaging in hostile activity: that is, doing an act[98] in that country with the intention of achieving the overthrow by force or violence of the government of that country (or of a part of that country).[99]

[96]Compare Rulings 1–11, [36]–[42]; and see Ruling 13, [21].

[97]I acknowledge the risk in departing from the strict statutory language, but to my mind, transposing ‘do an act’ for ‘engage in conduct’ makes the section more readily comprehensible.

[98]See footnote 88 above.

[99]The prosecution will also have to prove that the applicant is an Australian citizen, but it is not contested that each of the applicants is an Australian citizen whose passport was cancelled. See [81] and footnotes 89 and 90 above.

It may thus readily be appreciated that the agreed preparatory act in Australia — that is, the agreed conduct in which the applicants engaged — is adequately particularised in the charge in the ‘Particulars of conduct’ as, first, seeking to obtain and equip a boat suitable to enable participants in the agreement to leave Australia covertly for a foreign country with the ultimate destination being the Philippines; and, secondly, obtaining a Haines Hunter boat, GY141, and a Hyundai Terracan SUV, TPS550, and driving the vehicle and boat to Queensland.

It may also readily be appreciated that the particulars in essence identify the intention at the time of putative entry to the Philippines as being the doing of an act in that country with the intention of achieving the overthrow by force or violence of the government of that country (or of a part of that country).

The principal source of difficulty in this case is, however, whether it is necessary for the prosecution to provide particulars of the conduct agreed to be engaged in within the Philippines, to be done with the intention of achieving the overthrow by force or violence of the government of that country (or of a part of that country). In the charge, under ‘Particulars of Intended Conduct in the Philippines’, it is particularised simply as being: ‘Encouraging acts of and/or participating in acts with persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the southern Philippines’.

At the risk of repetition, when read in conjunction with s 11.2A, the charge as formulated alleges that the applicants agreed to engage in conduct which was preparatory to entering the Philippines with the intention of achieving the overthrow of the government of the southern Philippines by force or violence. Given that it is alleged that the applicants agreed to engage in conduct which is preparatory to the commission of an offence against s 119.1, however, does the prosecution have to prove agreement as to particular hostile activity intended to be engaged in? If the prosecution is required to prove particular hostile activity intended to be engaged in, plainly the particulars of the charge as formulated are inadequate. But, it is equally plain that, if the prosecution is not required to prove particular hostile activity intended to be engaged in, the particulars of the charge are adequate.

In this case, beyond identifying the act (or conduct to be engaged in) as ‘encouraging’ or ‘participating in’ the acts of ‘persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the southern Philippines’, the particular ‘acts’ agreed to be encouraged or participated in, directed at achieving the overthrow by force or violence of the government of the southern Philippines, are not identified in the particulars of the charge. Perhaps again to risk repetition, the critical question is: are the particulars inadequate if they fail to identify those ‘acts’ by way of encouragement, or to be participated in?

There is, I consider, a compelling argument that the particulars are inadequate if they fail to identify those ‘acts’ by way of encouragement, or to be participated in; and that, in order to conclude that agreed conduct was preparatory to an offence, one needs to know what the contemplated offence was; that is, the hostile activity that was intended.

At one point in the argument before the trial judge, the prosecution seemed to accept that the applicants needed to have agreed on the same particular conduct — that is, the conduct in the Philippines to be engaged in with the intention of achieving the objective of the overthrow by force or violence of the government of the southern Philippines — before they could be found to have committed the charged offence.[100] Thus, if one or other of the applicants intended to bomb the town hall, and another or others a hospital, although they might be agreed on the same ‘objective’, there would not be agreement as to the same ‘conduct’. So much seems clear from the following exchange:[101]
[100]See Rulings 1–11, [77].
[101]Emphasis added to this and following passages.

[SENIOR COUNSEL]: Yes. Four men arrive at the airport.
HIS HONOUR: Want to blow it up, the town hall.
[SENIOR COUNSEL]: They are going to go — four of them are there. Three are going to go to blow up the town hall.
HIS HONOUR: Yes.
[SENIOR COUNSEL]: One is going to go and blow up a hospital, right.
HIS HONOUR: Yes.
[SENIOR COUNSEL]: Now even if they had the same intent of bringing down the government, they wouldn’t be engaged in the same hostile activity. They might be all guilty of committing the offence.
HIS HONOUR: Individually.
[SENIOR COUNSEL]: Individually, all three of them as complicitors but there’s not agreement between the four. Now we accept that. …

In this Court, however, the prosecution sought to resile from the stance adopted before the trial judge. Thus, in written submissions counsel for the prosecution contended:

The Respondent’s case is that, at the time they agreed to engage in the preparatory conduct in Australia, the accused agreed on the intended objective, that is to overthrow the government of the southern Philippines by force or violence. However, at that time they had not considered in any detail, much less decided and agreed upon, precisely what prospective conduct they intended to engage in in the southern Philippines or precisely with whom they intended to engage in that future conduct in order to achieve their objective.
The Respondent is not required, and cannot be expected, to provide better or more detailed ‘Particulars of Intended Conduct in the Philippines’ than those set out in the Indictment.

And counsel submitted orally:
[T]he agreement we rely upon is an agreement in Australia at or before the first of the acts in preparation particulars are engaged in, namely, that they’re being done for the purposes of enabling them or one of them or one or more of them to enter the Philippines with that intent and for that purpose – to overthrow the government of the Southern Philippines, establish Sharia law and they would work out what they – how they were going to do that when they got there. And we don’t have evidence of them contacting leaders of the insurgency in the Philippines or anything of that nature.
So, if we’re able to prove that that was the intent that they had when they engaged in the preparatory acts in Australia, then that is all that’s required by the section. It may be draconian your Honour but it’s designed to stop people leaving the country to join insurgencies …

Understandably, the applicants’ counsel expressed disquiet at the prosecution’s obvious change of position, and submitted that such a course should not be permitted. The Court now being seized of the question, however, we are bound to answer it according to law, no matter that the answer might depart from the positions adopted by the parties. Although it is undesirable that the prosecution might see fit to change position apparently on a whim, there is no bar to it doing so at this stage of the proceedings.

In contending that the prosecution did not need to provide particulars of the conduct that the applicants agreed to engage in within the Philippines, counsel for the prosecution argued that the situation generally is analogous to that in Lodhi. It was submitted in writing that the trial judge ‘erred in failing to apply the reasoning of the New South Wales Court of Criminal Appeal’ in Lodhi. Counsel for the respondent submitted that it is ‘irrelevant in this context that the preparatory offence charged relates to different intended conduct’, since ‘the principle in Lodhi applies to all offences under the Code that criminalise acts in preparation for future conduct’. Similar submissions were advanced orally.

I do not accept these submissions.

In Lodhi, the applicant pleaded not guilty to four terrorist offence counts laid pursuant to ss 101.4, 101.5 and 101.6 of the Code, each of these sections being found in Part 5.3, headed ‘Terrorism’. Among other things, the applicant argued that certain of the counts either failed to specify the relevant terrorist act or were duplicitous. The New South Wales Court of Criminal Appeal held, however, that specification of a particular terrorist act was neither appropriate nor required (and that the counts were not duplicitous). With respect to three charges (counts 2, 3 and 4) the applicant submitted that the indictment failed to particularise with the requisite level of specificity the terrorist act in which the applicant had allegedly engaged, and was duplicitous. These submissions turned on the definition of terrorist act, the applicant submitting that each count needed to identify a particular terrorist act.

Counts 1 and 3 were laid under s 101.5 of the Code, and counts 2 and 4 respectively under ss 101.6 and 101.4. I need not set out the text of the sections,[102] but s 101.4 made it an offence for a person to possess a thing ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’; s 101.5 made it an offence for a person to collect or make a document ‘connected with preparation for, the engagement of a person in, or assistance in a terrorist act’; and s 101.6 provided that a person commits an offence ‘if the person does any act in preparation for, or planning, a terrorist act’ (even if the terrorist act does not occur). Section 100.1 defined terrorist act. And s 100.4(1)(b) generally provided that Part 5.3 applied to ‘all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur)’.
[102]See Lodhi, 306 [3].

So far as the charges were concerned, count 1 alleged that the applicant collected documents, being two maps of the Australian electricity supply system, ‘which were connected with preparation for a terrorist act, namely bombing part of the system’; and count 3 alleged that the applicant made a document, ‘namely a set of aerial photographs of Australian defence establishments which were connected with preparation for a terrorist act, namely the bombing of one or another of the establishments’. Count 2 alleged that the applicant sought information concerning the availability of materials capable of being used for the manufacture of explosives, ‘in preparation for a terrorist act, namely causing the death of or serious physical harm to a person’; and count 4 alleged that the applicant possessed ‘a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for a terrorist act namely causing the death of or serious physical harm to a person or persons unknown or causing serious damage to property unknown, knowing the said connection’.[103]
[103]Ibid 305–6 [1].

It may immediately be appreciated that, unlike the instant case where particular ‘hostile activity’ intended to be engaged in is not identified, the ‘terrorist act’ in each of the charges in Lodhi was spelled out with a degree of specificity: the bombing of the Australian electricity supply system; the bombing of one or another Australian defence establishment; and causing the death of or serious physical harm to a person or persons unknown or causing serious damage to property unknown (presumably through the use of poison, explosives or incendiary devices). Moreover, since Lodhi was not a case of joint commission, there was no requirement to prove agreement between participants as to any particular terrorist act.

The starting point in the present case must be to determine the ordinary and grammatical sense of the words used in ss 119.1 and 119.4, and in ss 117.1 and 11.2A, interpreting the provisions according to their context and the legislative purpose. The context and legislative purpose — the context including the existing state of the law and the mischief which the statute was intended to remedy — will cast light upon the sense in which the words of those provisions are to be read.[104]
[104]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 31 [4] (French CJ).

The suite of provisions with which the present application principally is concerned — putting s 11.2A to one side — is found in Part 5.5 of the Code, ‘Foreign incursions and recruitment’, introduced into the Code by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).[105] Fully cognisant of the need to determine the meaning of the provisions according to the words used by the legislature, I pause to observe that, in my view, the relevant Revised Explanatory Memorandum provides little assistance in the interpretation of the critical provisions.[106]
[105]See Schedule 1, cl 110. The commencement date was 1 December 2014.
[106]Revised Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), Senate. It is said at cl 222 (emphasis added):
New section 119.1 of Part 5.5 of the Criminal Code will replace section 6 of the Foreign Incursions Act. This section was drafted to criminalise engaging in a hostile activity in a foreign country or entering a foreign country with the intent to engage in a hostile activity in that foreign country. The [Independent National Security Legislation Monitor‘s] Fourth Annual Report and the [Council of Australian Governments] Review both highlighted that in order to overcome the practical difficulties of proving a particular foreign country was the target destination, the section should be amended to remove the need to prove an intention to engage in hostile activity in a particular foreign country. This will enable intervention by the Commonwealth Director of Public Prosecutions at an ‘appropriately preparatory stage‘ where an individual may be contemplating undertaking incursions in various theatres of violence, but plans to travel to a third country to obtain training, materials or guidance as to his or her ultimate destination. It will also capture a situation where a person enters a foreign country without the intention to engage in hostile activity and then forms an intention to engage in hostile activity in that country.

Section 117.1 of the Code is a definition section, which, apart from the definition of engage in a hostile activity, contains definitions of armed force, government (of a foreign country), listed terrorist organisation, military training, prescribed organisation, recruit, serious offence and others; and s 117.2 extends the geographical jurisdiction with respect to offences under the Part.

Further, apart from ss 119.1 and 119.4, respectively dealing with incursions into foreign countries with the intention of engaging in hostile activities and preparations for incursions into foreign countries for purpose of engaging in hostile activities, s 119.5 creates offences of permitting buildings, rooms, premises, vessels, aircraft and similar to be used intending to commit, or support or promote the commission of, an offence against s 119.4. Section 119.3 permits the Foreign Affairs Minister to declare an area in a foreign country for the purposes of s 119.2 if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country, and s 119.2 creates offences of entering or remaining in declared areas; and ss 119.6, 119.7, 119.8 and 119.9 generally are concerned with recruiting persons to join organisations engaged in hostile activities against foreign governments, or to serve in or with an armed force in a foreign country. Finally,

s 119.10 (mode of trial), s 119.11 (consent of Attorney‑General required for prosecutions) and s 119.12 (declarations for the purposes of proceedings), are machinery provisions concerned with prosecutions under the Part.

Thus, an examination of Part 5.5 reveals that it is principally concerned to prevent Australian residents from engaging in hostile activity in a foreign country. It does so, not only by making it an offence to enter a foreign country intending to engage in, or actually engage in, hostile activity, but also by prohibiting preparatory acts such as accumulating, stockpiling or keeping arms, explosives, munitions, poisons or weapons (s 119.4(2)); providing or participating in military training

(ss 119.4(3) and (4)); by giving or receiving money or goods and meeting or assembling intending to commit, or support or promote incursions into foreign countries with the intention of engaging in hostile activities (s 119.4(5)); and by prohibiting buildings and other places to be used to meet or assemble intending to commit, or to support or promote, incursions into foreign countries with the intention of engaging in hostile activities (s 119.5). Part 5.5 also seeks to prohibit the recruitment of persons to join a body or association of persons whose objective is to engage in hostile activity in a foreign country, or to serve in a foreign army (ss 119.6 and 119.7).

Unlike succeeding subsections of s 119.4, subsection 119.4(1) does not specify particular conduct preparatory to an offence under s 119.1. By way of contrast, subsections 119.4(2), (3), (4) and (5) are all concerned with specific conduct intending that an offence under s 119.1 will be committed (or supported or promoted), such conduct including stockpiling weapons, participating in military training, providing money or services, and similar. Thus, subsection (1) is intended to be a catchall provision, proscribing conduct that does not fall within the specific kinds of conduct described in subsections (2) to (5). Notwithstanding that s 119.4(1) does not spell out specific kinds of conduct, however, subsections (2) to (5) inform a conclusion as to the type of activity that the legislature sought to capture by enacting s 119.4. Indeed, when the provisions are read in context and as a whole, it seems to me that Parliament’s intention was to proscribe conduct which might be said to have a realistic connection to the achievement of the relevant objective (in this case being the overthrow by force or violence of the government of the southern Philippines).[107]
[107]See Rulings 1–11, [162], [164].

For the purposes of s 119.1, s 117.1 spells out that a person engages in hostile activity if the person engages in conduct in a foreign country with one or more of five specified ‘objectives’. Thus, although there is specification of the relevant ‘objectives’, there is no attempt to delineate the kinds of conduct that might qualify as hostile activity. Once more, however, I consider that Parliament must have intended that there be a realistic connection between the proscribed conduct and the objective sought to be achieved.

Moreover, the prosecution having relied on the joint commission provisions of the Code, s 11.2A requires there to be an agreement to commit the relevant offence. In this case, the relevant offence is the preparatory offence created by

s 119.4. By virtue of s 11.2A(4), at least two people to the agreement must have intended that an offence would be committed under the agreement. In this case, the agreement is to engage in conduct preparatory to the offence of entering the Philippines with the intention of engaging in unspecified hostile activity with the specified objective of achieving the overthrow by force or violence of the government of the southern Philippines.

Given the manner in which s 11.2A is intended to operate in tandem with ss 119.4 and 119.1, it is baffling to me that it can be said — as the prosecution does — that a person can agree to engage in conduct which is preparatory to the commission of an offence under s 119.1 without there being agreement as to a particular species of conduct in the foreign country (that is, the hostile activity to be engaged in) which is to be performed for the achievement of the specified objective. Agreement requires consensus. Minds must meet. There must be community of purpose. In my view, therefore, before a person may be guilty of the preparatory offence under

s 119.4 by way of joint commission pursuant to s 11.2A, there must be proven to be consensus with another not only as to the objective, but also as to the conduct by which that objective is to be achieved. It follows, in my view, that the applicants are entitled to particulars of the conduct that was agreed to be engaged in with the intention of achieving the overthrow by force or violence of the government of the southern Philippines.

Hence, I consider that the former senior counsel for the prosecution was correct when he conceded in argument before the trial judge that, before they could be guilty of an offence under s 119.4, the applicants needed to have agreed on the same particular conduct; so that, if one or other of the applicants intended to bomb a town hall, and another or others a hospital, although they might be agreed on the same ‘objective’ — achieving the overthrow by force or violence of the government of the southern Philippines — there would not be agreement as to the same ‘conduct’.[108]
[108]See [139] above.

Conclusion

For these reasons, and contrary to the ruling of the trial judge, I consider the particulars of the charge to be inadequate. I would thus set aside the interlocutory

decision.

Given that the prosecution has said that it cannot provide better particulars, and that the applicants have been in custody for more than two years, the matter should return to the trial judge without delay, so that a decision might be made as to the future of the proceeding.

KYROU JA:

I agree with Maxwell ACJ.

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[2018] VSCA 150

7 June 2018