Lodhi v The Queen & Anor

[2008] HCATrans 225

[2008] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S18 of 2008

B e t w e e n -

FAHEEM KHALID LODHI

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH

Second Respondent

Application for special leave to appeal

GUMMOW ACJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 10.30 AM

Copyright in the High Court of Australia

MR P.R. BOULTEN, SC:   If the Court pleases, I appear with my learned friend, MR P.D. LANGE for the applicant.  (instructed by Michael Doughty)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR G.J. BELLEW, SC for the first respondent.  (instructed by Commonwealth Director of Public Prosecutions)

MR H.C. BURMESTER, QC:   If it please the Court, I appear for the second respondent.  (instructed by Australian Government Solicitor)

GUMMOW ACJ:   Yes, Mr Boulten.

MR BOULTEN:   This morning I intend, unless the Court directs otherwise, to address a limited number of the grounds that are outlined in the draft notice of appeal and to rely otherwise on the written submissions.  I intend to address the ground that relates to the National Security Information (Criminal and Civil Proceedings)Act, to those grounds (a), (b) and (c) that deal with the form of the indictment, to (h), which goes to the adequacy of the case and whether or not there should have been a directed verdict, and to the final ground that deals with one aspect of the sentencing proceedings, namely, whether or not in essence there was a finding of incapacitation in the circumstances that lead to a conclusion that their Honours were impermissibly exercising preventative detention.  Firstly, in relation to the National Security Information Act ‑ ‑ ‑

GUMMOW ACJ:   What about the attack on validity?  Where does that fit in here?

MR BOULTEN:   That is it.  That is the first one.

GUMMOW ACJ:   What impact would that then have on the situation of your client?

MR BOULTEN:   We are not sure, we do not know, because there are three volumes of material that we have not seen.

GUMMOW ACJ:   In terms of procedure, if you succeeded here on that argument, what would follow?

MR BOULTEN:   Presumably, a court – presumably the Court of Criminal Appeal – would need to turn to the material and consider it in the context of common law principles, ordinary principles relating to public interest immunity.  We do not know what the result will be because we do not know what the material is.

GUMMOW ACJ:   What would we do?  We would allow the appeal and then order what?

MR BOULTEN:   It should be remitted to the Court of Criminal Appeal to determine issues of public interest immunity.

GUMMOW ACJ:   Yes, go on.

MR BOULTEN:   The section which is the subject or the focus of this challenge is section 31 and in particular the operation of subsection (8) of that section.  This is a provision which Chief Justice Spigelman concluded may well lead to unfairness in a trial and, in essence, it is a provision where the impact of the balancing exercise falls short of the normal principles of justice.  It is our submission that, although there is a protection in the legislation to enable a trial court to permanently stay proceedings, this protection is inadequate.

GUMMOW ACJ:   Where do we see the particular text?

MR BOULTEN:   It is relevantly set out ‑ ‑ ‑

GUMMOW ACJ:   By the Chief Justice, is it not?

MR BOULTEN:    ‑ ‑ ‑ in the Chief Justice’s judgment commencing on page 265 of the application book.  The subsection, which is the ‑ ‑ ‑

CRENNAN J:   Page 268, at the top.

MR BOULTEN:   It is at page 268, at the top.

GUMMOW ACJ:   It is this phrase “greatest weight”, is it not, that attracts debate?

MR BOULTEN:   Yes, your Honours.  We say that the provision that enables the Court to nevertheless permanently stay the proceedings is an inadequate protection.  There are many cases where unfairness will be visited upon an accused but which will fall short of circumstances giving rise to a permanent stay of proceedings.  It is a very rare remedy in criminal proceedings indeed.

GUMMOW ACJ:   What do you say, looking at page 271 of the application book, at paragraph 32 there is a summary of Mr Burmester’s submission as to this word “greatest” and that was accepted.  Now, if that is accepted, does that not save any validity?

MR BOULTEN:   No, in our submission ‑ ‑ ‑

GUMMOW ACJ:   You say it would still be invalid?

MR BOULTEN:   Yes, because practically speaking the real balance is to be had between the protection of national security on the one hand and the right to a fair trial on the other and it is practically difficult to envisage other circumstances where there would be sufficient countervailing weight to outweigh the direction given to give greatest weight to the certificate.  It might be grammatically true that where “greatest” appears in this subsection that might mean greater in some circumstances but, nevertheless, we say that, properly characterised, this is still a direction from the Parliament which would require a trial judge to, in essence, in all but the most fanciful of applications for the protection of NSI to rule in favour of the certificate.

HAYNE J:   You say “rule in favour of the certificate”.  You have a list of three items.  One is said to attract the greatest weight, but the task is given by the chapeau for (7), namely, you give greatest weight to that “in deciding what order” is to be made.  Now, be it so – assume that in giving greatest weight to item (a) it will in most, many, all, substantially all circumstances, trump the others – what follows?

MR BOULTEN:   We say that that is an impermissible interference with the judicial power of the Commonwealth.  It is a virtual direction to conclude in favour of the terms of the certificate.

HAYNE J:   And conclude what?

MR BOULTEN:   To conclude that orders must be made as outlined in the terms of the certificate.  If the terms of the certificate, for instance, declare that information should not be disclosed or should not be disclosed except in certain circumstances, it could lead, and will often lead in those circumstances, to an accused person not being granted access to information such as we are complaining about in this case or, being aware of information, not being allowed to adduce it in support of any defence at trial or being allowed to adduce it at trial but in circumstances where ancillary orders of the court might impact on the fairness of the proceedings, such as to erect barriers to make certain orders ordering non-disclosure to particular people – for instance, orders that might allow disclosure of information but not to, for instance, non‑security cleared defence lawyers or not even to the accused.  These are measures which we say go squarely to the fairness of the proceedings in a way which the High Court, this Court, did not have in mind when considering Nicholas’ Case.

HAYNE J:   Why is the point not wholly met by 19(2) – see page 268?

MR BOULTEN:   There will be many cases of unfairness which do not reach the level of unfairness that would dictate a permanent stay.  As his Honour the Chief Justice said in the court below, it is a very, very rare event for criminal proceedings to be permanently stayed.

HAYNE J:   That is an observation about past practice absent this Act, I would have thought, and that is as high as it can go.

MR BOULTEN:   It would seem that if the effect of the order made pursuant to section 31 was to bring about a procedural unfairness which yet was not of the type which would render the proceedings liable to be permanently stayed, it is clear that there is nevertheless an interruption to the normal course of a federal court by interfering with the processes in a manner which render them unfair and yet the trial would continue.  It would authorise the court to exercise judicial power in a manner inconsistent with the nature of judicial power and it would require a court to depart significantly from the methods and standards that characterise judicial powers.  In that respect we say it is invalid.  It is not good enough to say, “But in some cases there can be a permanent stay”.

Finally, alternatively, we say that these measures have the capacity to impact on the fairness of a trial for an accused person such as to breach any right, if there is a right – we say that there is – to have a fair trial.  I accept that there is some debate still about whether or not an accused person has a right to a fair trial or whether simply has a right not to be tried unfairly, but either way we say that these measures impact and have the potential to impact significantly on the conduct of a fair trial.

CRENNAN J:   A fair trial is not a perfect trial, of course.

MR BOULTEN:   Understood.

CRENNAN J:   Did not his Honour, as a matter of fact, order disclosure of a number of documents in this case in circumstances where I expect he must have made the judgment that the prejudice to national security was outweighed by other considerations?

MR BOULTEN:   He did.  Without going to the documents and the nature of the claim, we say that the claim itself was one which can properly be described as doomed to fail from the outset and the fact that a fanciful or baseless claim might be overturned is not, in our submission, an answer to the arguments that we are presenting in relation to the challenge to these provisions.  If need be, we would need to take the Court to actually what it was that was sought to be protected and which his Honour chose not to protect in order to demonstrate the insubstantial nature of what the Commonwealth tried to protect.

In relation to the indictment, there are several problems.  If I could take your Honours to the form of the indictment commencing at page 1 of the application book, this was the form of the indictment as it was after the Court of Criminal Appeal upheld arguments challenging the original form of the indictment.  That original challenge argued in part that there was no disclosure of essential factual ingredients in the indictment.  The answer to that was this indictment which we submit does not outline any factual ingredient that is essential to a determination of what terrorist act was the subject of the preparation or which was connected with the possession of the document in each instance.

The further problem associated with this indictment is that, given all of the alternative variations that are outlined in the particulars for each count, there are a multitude of potential crimes, we say, different crimes that could have been established by the evidence.  Alternatively, we say that if the section does not create separate crimes that the multitude of alternatives that are outlined here give rise to a likelihood that a jury would render verdicts on different factual bases about different offences under the same crimes.

In those circumstances, we say that this indictment in each count is duplicitous and not one which renders fairness in the context of a criminal trial.  It is no answer to say that these offences are designed to allow imprecision.  There needs to be some precision, if only to the point of guiding the jury to the same conclusion and not allowing different conclusions but the same verdict.

In this case, the prosecution never told the jury what it was that was being prepared for.  It just did not know.  It did not know who it was who was contemplated to be the actor or the person who would threaten the act which constitutes the terrorist act in each instance.  It was not alleged that the accused was going to carry out any terrorist act and it was not specified who would do it, if not him.

In those circumstances, we submit that there was a very fundamental problem leading to failure at the end of the prosecution case and we have argued, unsuccessfully thus far, that the evidence was insufficient to convict the accused.  If I can take your Honours to the definition of “terrorist act” in section 100.1, we can illustrate why it is that this case has failed completely because of a complete lack of proof of essential elements.  The definition of “terrorist act” includes a requirement that:

the action fall within subsection (2) and does not fall within subsection (3); and

(b)the action is done or the threat is made with –

particular intentions and that –

(c)the action is done or the threat is made with –

intentions that have particular motivations.  What is significant is that these elements relate to the terrorist act, not to the act of preparation.  The person who prepares may or may not have the requisite intentions, but the person who carries out the act must have the requisite intentions outlined in that section.  Justice Barr, at page 343 of the appeal book, paragraph 207 of the judgment of the Court of Criminal Appeal, said – erroneously, we submit – in the last sentence in the paragraph:

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.

We say that overlooked entirely the need to prove that the actor had all of those requisite intentions.  Where it was not known who the actor was or exactly what it was that they were going to do, there was no proof that the actor had the requisite intentions that were needed for proof of the offence.  We say that the applicant should have been acquitted at the end of the prosecution case.

So far as sentence is concerned, we submit that the sentence is excessive primarily because his Honour the Chief Justice equated incapacitation as being the necessary matter which dictated the terms.  We say that, in essence, that was an inapplicable and impermissible application of preventative detention.  I note the red light is on.

GUMMOW ACJ:   What do you say about that point that appears at page 343?

MS ABRAHAM:   In my submission, it is the correct statement of the law.  In my submission, all the arguments to do with the indictment ignore the comments of the Court of Appeal on the first occasion, because as your Honours will appreciate that was two judgments, of the nature of these offences as being preparatory and what the Crown was not required to do.  The court there analysed, applying Chapter 2, what the elements of the offence were, what was conduct, what was circumstance and quite correctly concluded, in my submission, that there was only one act in this particular instance.

GUMMOW ACJ:   Which was?

MS ABRAHAM:   In one instance it was collecting, in one instance possessing, so it was that particular act.  A terrorist act is defined to have a number of characteristics.  That was the circumstance and, in my submission, the court’s reasoning in the first judgment, which appears in the smaller of the appeal books, primarily at 134 and 135 – which reasoning, I might add, occurs after a very lengthy recitation from the reasons of Justice Whealy – is perfectly correct.  In my submission, similarly the elements of the offence applying Chapter 2 are perfectly correct.

CRENNAN J:   Was there any amendment of the indictment between the two appeals?

MS ABRAHAM:   Between the two appeals, yes.  What the trial proceeded on was the indictment as amended after the first appeal.  Your Honours, on the issue of the indictment, it is important to note that there had been amendments to the section.  The argument primarily at first instance was about a particular word – the word “the” that appeared in the legislation.  In other words, it was argued that it meant that the Crown had to nominate a specific act.

Now, that word no longer exists in the legislation and there have been other amendments.  Your Honour, the legislation is conveniently set out at page 112 of the small appeal book, as existed at the time of this decision.  Section 101.4 is probably the best example in paragraph (3).  There was reliance in subparagraph (3) on the words “the terrorist act” and that is how the argument was mounted at first instance and in the Court of Criminal Appeal.

Your Honours, as is apparent from paragraph 6, which is at page 116, which sets out the amendments to the legislation, so it now refers to “a terrorist act”.  It explicitly says it does not need to be in preparation for a specific terrorist act and, indeed, it can be more than one terrorist act, so one is not dealing with legislation in the same terms for offences that are committed now.

What that does, in the Crown submission, is really illustrate and confirm the findings of the court on the first occasion – that is, the Court of Appeal – about the preparatory nature of these offences.  It cannot be that one has to have decided the particular act, the actor, how you were going to do it, all the way down to, in my submission, or my friend’s submissions, the target.  Is it just going to be grievous bodily harm?  Might people be killed?  Is it just going to be property?  In my submission, that is not a correct interpretation.

Your Honour, in the Crown submission, the principles that the court applied in determining all the indictment points, and including in that the

question of the verdict at the end of the day, are well‑established principles.  There is no suggestion that those principles were in fact wrongly applied.  In my submission, the argument now is with the result.  So in my submission there is no basis for special leave on that ground.

The other ground, my friend argued, related to the NSI Act.  I will leave that to Mr Burmester.  The other ground, the remaining ground that was argued orally, is the question of the sentence and can I simply say this.  On that the court, in my submission, properly applied Veen.  They were not dealing with preventative detention.  There was repeated reference to the need for proportionality.  All it was was an application of Veen to the particular facts and, importantly, the factual findings of the trial judge in this particular case.

As to the other grounds that have not been mentioned, in the Crown submission they were all matters of well‑established law and application of the facts to those principles.  Those are my submissions.

GUMMOW ACJ:   Yes, Mr Burmester.

MR BURMESTER:   May it please the Court, we say that Chief Justice Spigelman, in his carefully considered judgment concerning the constitutional argument, reached the right conclusions and my friend has not shown any error justifying the grant for special leave.  In particular, the Chief Justice first considered the question of interpretation and, if one reaches a particular view on the interpretation, one does not reach the constitutional argument and that was the discussion about the meaning of “greatest” and “great”, “greater” that your Honour Justice Gummow referred to – pages 272, 273 of the appeal book – and on the interpretation reached by the Chief Justice he said no constitutional issue arose.

He did, however, then go on and consider the constitutional argument that had been made and the constitutional argument seems to have two broad themes.  One is fairness; the second is somehow an interference in the judicial process.  We say when one considers the statutory provisions and how they operate, there is no unconstitutional interference with the fairness of the trial.  It is not unusual or unheard of that the balance the judge has to strike in determining whether to admit certain evidence requires a judgment between fairness and some other public interest.

Here, the statute does, as Chief Justice Spigelman said, put a thumb on one side of the scales but not so heavily that a fairness is removed.  The balancing exercise that the judge goes through is, in our view, analogous to what is done in a claim for PII on national security grounds and does not significantly depart from the same sort of task there.

In relation to the integrity of the judicial process, in our submission the appellant has not pointed to anything in the statutory framework that would impinge in a way that would lead to unconstitutionality.  We say the Nicholas decision is directly in point and can answer the questions raised here.  If the Court pleases.

GUMMOW ACJ:   Yes, Mr Boulten.

MR BOULTEN:   Your Honours, it is not correct to say that the argument in the Court of Criminal Appeal being that the first indictment was challenged was limited to the terrorist act or a terrorist act.  That was one small aspect of it.  One aspect of it was never answered by the court, either in that judgment or in their subsequent judgment, namely, that in order to have the power to deal with absolutely non‑Commonwealth related incidents, there was legislation passed referring power to the Commonwealth by all States and Territories and it could be the case in the future that States or Territories may not continue to refer particular aspects of this power to the Commonwealth and in those circumstances there would need to be at least some specification in any Commonwealth offence to demonstrate the Commonwealth nexus.

We do not say that it is necessary to prove a particular terrorist act, but it is necessary to at least prove that a terrorist act of a particular characterisation was being prepared for or was the subject of the connection to the document or thing.  We say that the arguments about the adequacy of the particulars and the potential duplicity of the indictment do not affect the argument that there was just no evidence of the requisite intentions that needed to be held by the actor as opposed to the preparator.

Irrespective of the way in which the court might interpret the adequacy of the particulars otherwise, it is still necessary for the prosecution to prove beyond reasonable doubt that a person, even if not capable of being specified in particular, had to have the requisite intentions in order to constitute what was to be an act of violence, a terrorist act.

We say both in the first judgment and at first instance before the trial judge and in the second judgment of the Court of Criminal Appeal that was just not considered and we submit that this judgment stands as authority for what the meaning of this offence is.  It will be the leading judgment.  It is being used in the trials that are continuing as authoritative statement of the law about what the elements of the charge are and we say that it is wrong.

GUMMOW ACJ: The applicant seeks special to appeal from orders of the Court of Criminal Appeal of the Supreme Court of New South Wales dismissing his appeal against conviction on 19 June 2006 and subsequent sentence for three terrorism offences against Division 101 in Part 5.3 of the Criminal Code (Cth).

Amongst other grounds that the applicant argued in the Court of Criminal Appeal there were the arguments that the indictment on which he was tried was duplicitous and inadequately particularised, that, contrary to the Constitution, access to information had been denied to him pursuant to the National Security Information (Criminal and Civil Proceedings) Act 2004 and that evidence of his alleged association with a known terrorist should have been excluded from the trial.

The attack on validity assumes a construction of the legislation which is wrong.  On its proper construction, which is that which was adopted by the Court of Criminal Appeal, the attack on the legislation must fail. 

An appeal on the other grounds put forward in the application would have insufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

AT 11.03 AM THE MATTER WAS CONCLUDED