R v B - [2008] NSWCCA 85

No judgment structure available for this case.

Reported Decision: 76 NSWLR 533

New South Wales

Court of Criminal Appeal

CITATION: B v R [2008] NSWCCA 85

HEARING DATE(S): 10/4/08

JUDGMENT DATE:
21 April 2008

JUDGMENT OF: Spigelman CJ at 1; James J at 109; Howie J at 110

DECISION: 1 Stand over Order 3 sought in the Notices of Application for Leave to Appeal of Khaled Cheikho dated 3 April 2008, of Mirsad Mulahalilovic dated 4 April 2008 and of Mazen Touma dated 7 April 2008.
2 Otherwise refuse leave to appeal on each Application.

CATCHWORDS: CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Patent duplicity – Latent duplicity – Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW – Practice and procedure – Indictments – Consent to commence proceedings – Time of commencement of proceedings – Criminal Code Act 1995 (Cth), s 11.5(8) - CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Whether a conspiracy to commit a preparatory act is unknown to law – Criminal Code Act 1995 (Cth), s 101.6.

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1899 (Qld)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986
Judiciary Act 1903 (Cth)

CASES CITED: Ansari v The Queen [2007] NSWCCA 204; (2007) 173 A Crim R 112
Bank of England v Vagliano Brothers [1891] AC 107
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Commissioner of Taxation v Cocaj [2004] QCA 69; [2004] 2 Qd R 488
Coward v Allan (1984) 52 ALR 320
CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
Director of Public Prosecutions v Merriman [1973] AC 584
Director of Public Prosecutions v Stark [2006] VSCA 61
Gerakiteys v The Queen (1984) 153 CLR 317
Johnson v Miller (1937) 59 CLR 467
Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 193 CLR 355
R v ARD [2000] NSWCCA 443
R v Armstrong [1996] 1 Qd R 316
R v Barlow [1997] HCA 18; (1997) 188 CLR 1
R v Butler (1991) 24 NSWLR 66
R v Carusi (1989) 17 NSWLR 516
R v CDR (No 2) [1996] 1 Qd R 69
R v Challita (1988) 37 A Crim R 175
R v Chow (1987) 11 NSWLR 561
R v Deng (1996) 91 A Crim R 80
R v Evans [1964] VR 717
R v F (1996) 90 A Crim R 356
R v Ferguson (No 11) [2005] VSC 527; (2005) 165 A Crim R 337
R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416
R v Hamzy (1994) 74 A Crim R 341
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v Lao and Nguyen [2002] VSCA 157; (2002) 5 VR 129
R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236
R v Mitchell [1971] VR 46
R v Moore [1988] 1 Qd R 252
R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373
R v Ongley (1940) 57 WN (NSW) 116
R v Orban [2005] NSWCCA 312
R v Poulier [2007] NTCCA 4; (2007) 19 NTLR 91
R v Ruddell [2006] 1 Qd R 361
R v Taylor [2003] NSWCCA 194
R v Wyles; Ex parte Attorney-General [1977] Qd R 169
R v Zampogna [2003] SASC 75; (2003) 85 SASR 56
Romeyko v Samuels (1972) 2 SASR 529; (1972) 19 FLR 322
S v The Queen (1989) 168 CLR 266
Salmon v Chute (1994) 115 FLR 176
Stanton v Abernathy (1990) 19 NSWLR 656
Stuart v The Queen (1974) 134 CLR 426
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Trudgeon v R (1988) 39 A Crim R 252
Vallance v The Queen (1961) 108 CLR 56
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77

PARTIES:
Applicants
B
Khaled Cheiko
Moustafa Cheiko
Mohamed Ali Elomar
Abdul Rakib Hasan
Mohammed Omar Jamal
Mirsad Mulahalilovic
Khaled Sharrouf
Mazen Touma
Respondent
Crown

FILE NUMBER(S): CCA 2007/2397; 2007/2395; 2007/2398; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2396

COUNSEL: B Walker SC/I Nash; and C Waterstreet/P Lange (Applicants)
W Abraham QC/S McNaughton (Respondent)

SOLICITORS: Legal Aid Commission (NSW) (Applicants)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT JUDICIAL OFFICER: Whealy J

LOWER COURT DATE OF DECISION: 18 March 2008
19 March 2008

- 1 -

2007/2397
2007/2395
2007/2398
2007/2399
2007/2400
2007/2452
2007/2454
2007/2396
2007/2455

SPIGELMAN CJ
JAMES J
HOWIE J

Monday 21 April 2008

B & Ors v REGINA

FACTS
The applicants were charged on an indictment alleging a single count that they “did conspire with each other and divers others to do acts in preparation for a terrorist act (or acts)”. The applicants challenged the sufficiency of the indictment, alleging inter alia that: it was defective on the ground of duplicity; it was a nullity on the ground that the consent of the Director of Public Prosecutions to commence proceedings was not properly obtained; and that it did not disclose an offence known to the law. Whealy J dismissed those applications.

The applicants appeal to the New South Wales Court of Criminal Appeal from the judgments of Whealy J.

HELD

Patent Duplicity

Per Spigelman CJ, James and Howie JJ agreeing

Vallance v The Queen

Stuart v The Queen

Bank of England v Vagliano Brothers

R v Barlow

Sungravure Pty Ltd v Middle East Airlines Airliban SAL

Criminal Code

Acts Interpretation Act

Blue Metal Industries Ltd v Dilley

R v Ruddell

Walsh v Tattersall

R v Giam

Director of Public Prosecutions v Stark

R v Wyles; Ex parte Attorney-General

Coward v Allan

Commissioner of Taxation v Cocaj

R v CDR (No 2)

R v Armstrong

R v Poulier

R v Moore

3 The nature of the offence of conspiracy strongly indicates that there is no intention to the contrary of s 23 of the Acts Interpretation Act . [22], [109], [110]

4 Having regard to the scheme of the Code and its common law roots, the references to ‘conspiracy’ are of a technical legal character based on well established common law meanings. The references to conspiracy were intended to reflect the common law. [29], [31] [33] - [34], [109], [110]

5 The common law of conspiracy encompasses an agreement leading to multiple offences. In enacting the Code, the Parliament did not overturn this long established proposition. [21] - [22], [109], [110]

R v Lodhi

Lodhi v The Queen

R v Ongley

Romeyko v Samuels

CSR Ltd v Environment Protection Authority

Salmon v Chute

Latent Duplicity

Per Spigelman CJ, James and Howie JJ agreeing

Johnson v Miller

S v The Queen

Walsh v Tattersall

Stanton v Abernathy

Walsh v Tattersall

R v Mitchell

Johnson v Miller

Stanton v Abernathy

S v The Queen

Walsh v Tattersall

9 On the findings of fact by Whealy J it cannot be said at this stage of the proceedings, that it is appropriate, let alone necessary, to conclude that the nature of the Crown case is such that multiple agreements need to be dealt with by the accused or may be found by the jury. [65], [69], [72], [73], [109], [110]

Director of Public Prosecutions v Merriman

R v Hamzy

Walsh v Tattersall

R v F

R v Moussad

R v ARD

R v Orban

R v Zampogna

R v Lao and Nguyen

R v Ferguson (No 11)

R v Poulier

Consent
Per Spigelman CJ, James and Howie JJ agreeing
11 For the purposes of s 11.5(8) of the Criminal Code Act 1995 (Cth), the time at which proceedings are “commenced” is not determined by s 53 of the Criminal Procedure Act 1986. [84]–[86], [109], [110]

12 The existence of the term “remand” in s 11.5(8) of the Criminal Code Act 1995 (Cth) indicates that that section does not require that the relevant consent be given before a court attendance notice, where there is a committal. [87], [109], [110]

Offence unknown to the law

Per Spigelman CJ, James and Howie JJ agreeing

R v Chow

R v Challita

Trudgeon v R

R v Carusi

R v Deng

2007/00002397
2007/00002395
2007/00002398
2007/00002399
2007/00002400
2007/00002452
2007/00002454
2007/00002396
2007/00002455

SPIGELMAN CJ
JAMES J
HOWIE J

Monday 21 April 2008

B & Ors v REGINA

Judgment

: The applicants stand charged in the Supreme Court upon an indictment on a single count as follows:

“Between about 8 July 2004 and 8 November 2005 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to do acts in preparation for a terrorist act (or acts).”

2 Detailed particulars of the preparatory acts and of the terrorist act or acts have been supplied, together with considerable elaboration in the form of a 181 page Crown Case Statement.

3 Each applicant sought orders that the proceeding be dismissed or the indictment quashed on a number of grounds. Whealy J, in his judgments dated 18 March 2008 and 19 March 2008, rejected each application. The applicants seek leave to appeal to this Court from some parts of those judgments.

4 Each applicant seeks leave to appeal to this Court on the grounds of alleged duplicity in the indictment seeking, if leave be granted, that the indictment be quashed on that basis. Mr B Walker SC appeared with Mr I Nash for all the applicants on the duplicity issue.

5 The applicants Khaled Cheikho, Mirsad Mulahalilovic and Mazen Touma also seek leave to appeal with respect to two other matters determined by Whealy J. The first alleges that the offence was unknown to the law. The second alleges that the necessary consent to the commencement of proceedings was not granted at the appropriate time. A third ground of appeal contained in the application for leave by these three applicants is not presently before the Court.

6 Mr C Waterstreet appeared with Mr P Lange for these applicants. He adopts the submissions of Mr Walker on duplicity and raises an additional argument with respect to that issue. Ms W Abraham QC appeared with Ms S McNaughton for the Crown.

7 The offence of conspiracy is created by s 11.5 of the Criminal Code Act 1995 (Cth) (“the Code”) which provides:

“11.5(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) For the person to be guilty:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(2A) Subsection (2) has effect subject to subsection (7A).

(3) A person may be found guilty of conspiracy to commit an offence even if:

(a) committing the offence is impossible; or

(b) the only other party to the agreement is a body corporate; or

(c) each other party to the agreement is at least one of the following:

(i) a person who is not criminally responsible;

(ii) a person for whose benefit or protection the offence exists; or

(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.

(4) A person cannot be found guilty of conspiracy to commit an offence if:

(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or

(b) he or she is a person for whose benefit or protection the offence exists.

(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:

(a) withdrew from the agreement; and

(b) took all reasonable steps to prevent the commission of the offence.

(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.

(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.”

8 The offence which the applicants are said to have conspired to commit is set out in the indictment and refers to s 101.6 of the Code which relevantly provides:

“101.6(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.

(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 The words “terrorist act” are further defined in a manner which it is not necessary to set out.

10 The proceedings before Whealy J are complex and are likely to take many months. If there is a defect in the indictment it is of considerable significance for the administration of justice that it be determined before the proceedings are significantly advanced. Nevertheless, leave to appeal under s 5F of the Criminal Appeal Act 1912 should only be given if a substantive issue appropriate for resolution at this stage has been raised.

Duplicity

11 The principles of law relating to duplicity in an indictment were not in issue. The relevant authorities are well known and serve as the starting point of the submissions in this case. The parties referred, inter alia, to Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266 and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77. Mr Walker referred to the particular difficulties that may arise in this respect in the context of a conspiracy count and referred the Court to the judgments of Murphy J and Deane J in Gerakiteys v The Queen (1984) 153 CLR 317 and to the observations of Sir Frederick Jordan in R v Ongley (1940) 57 WN (NSW) 116.

12 Whealy J, in his judgment of 18 March 2008, rejected the submissions on duplicity as follows:

“[128] I think that the simple answer to all these submissions is that the indictment in the present matter charges but one single agreement. In that regard, it is not patently duplicitous. Secondly, when one has regard to the particulars supplied and the Crown Cast Statement, the situation is precisely the same. It is not latently duplicitous. The Crown relies on but one agreement and the charge is, as a consequence, not patently duplicitous.

[129] It is true that the agreement charged is one to do a number of acts, which may constitute a number of offences. As I apprehend it, that does not make the single count in the indictment duplicitous. This is commonly done and has been accepted by the courts over a long period of time. … the Code does not require that a conspiracy charge be limited to an agreement to commit one offence only.

[130] In relation to the expression ‘a terrorist act or acts’ I must say that my initial reaction was that I was unsure as to why the Crown wished to express the charge in these terms. …

Lodhi

…

[135] The Crown case is that the agreement was one to obtain the capacity or capability to prepare for a terrorist act or acts. This involved the conspirators equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act or acts.

[136] Although it will not always be the case, an agreement of this kind commonly will mean that neither the conspirators themselves, nor anyone else, will have finally determined the precise nature of the terrorist act to be implemented. It may not fall to the parties to the agreement to do so. Because this is so, there may be the real possibility that there will be more than one terrorist act ultimately carried out, even though that decision has yet been made. Indeed, s 101.6(2)(c), which I have set out earlier, contemplates that a single act of preparation may be an act done in preparation for more than one terrorist act. It must follow that a single agreement to do a number of acts might contemplate acts done in preparation for more than one terrorist act. That this is so will not [transform] one agreement into more than one.

[137] Secondly, there are many cases in which a conspiracy having been formed, there are changes and alterations occurring during the life of the conspiracy … It is clear that a conspiracy, once formed, is capable of remaining a single offence notwithstanding that during its currency, a number of identifiable and separate acts within its general purpose may come to be carried into effect. …

Ansari

[139] The point I am addressing here is Mr Buscombe’s submission that the expression ‘preparation for a terrorist act or acts’ connotes two agreements. I do not think this is right. Moreover, Mr Buscombe alleged that the fault element ‘intention’ in s 11.5(1) might be different intention in the case of an agreement to do an act in preparation for the destruction of a particular building, whereas a different intention would be required to do an act or acts in preparation for the destruction of a number of buildings. On the indictment charge here, the Crown must prove as a physical element and, as a fault element, an intention to enter into the specified agreement. There will however, be but one agreement and one intention. In addition, there will be a need to prove a further intention, namely an intention to commit the offences represented by the offences contemplated by the agreement itself. This ‘ulterior intention’ is also but one intention: it is not more than one. The Crown must prove that it was the intention of the conspirators to obtain the capacity or capability to prepare for a terrorist act or acts. This ‘ulterior intention’ is the subject matter of the offence or offences described in s 11.5.

[140] The fact that no decision has been made as to the precise nature of the terrorist act or acts to be carried out; the fact that no target or targets have been finally selected, and that no final decision has been made as to who will carry out the terrorist act or acts does not, in my view, render the charge in the indictment duplicitous.”

13 In [135] his Honour employed the phrase “equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act or acts”. In [138] his Honour referred to “activities … undertaken by the conspirators to obtain the capacity or capability to prepare for a terrorist act or acts”.

14 These two references reflect a particular paragraph in the Crown Case Statement, as distinct from the indictment itself and the specific particulars given which stated as follows:

“4 In accordance with the holding of those common beliefs, the accused entered into an agreement to obtain the capacity or capability to prepare for a terrorist act (or terrorist acts). This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act (or terrorist acts). In furtherance of the agreement the accused amongst other things:

(a) obtained or attempted to obtain chemicals and other relevant materials which could be used, directly and/or indirectly, in the construction of an explosive device;

(b) obtained or attempted to obtain weaponry and ammunition;

(c) possessed large amounts of extremist and instructional material.”

15 This summary elucidates the Crown case in a pithy manner.

Patent Duplicity

16 Mr Waterstreet advanced a case of patent duplicity in this Court which had been put to Whealy J on behalf of all accused, but which Mr Walker did not press in this Court for the applicants not represented by Mr Waterstreet.

17 Mr Waterstreet submitted that the formulation in s 11.5(1) — “conspires to commit an offence” — is deliberately singular so that, unlike the position at common law, it is not possible to allege a conspiracy to commit more than one offence. The indictment in this case is bad, he submitted, because it alleges an agreement to commit more than one act in preparation for a terrorist act or acts. Mr Waterstreet submitted that the longstanding position at common law, which permitted such a charge, had been changed by the Code.

18 The Crown invoked s 23 of the Acts Interpretation Act 1901 (Cth) which provides, in the usual form: “words in the singular number include the plural”. This section operates subject to any indication to the contrary. Mr Waterstreet submitted that there are such indications in the use of the singular form throughout s 11.5. He also submitted that the special provisions for penalty and defences would become unworkable if it were possible to charge a conspiracy to commit more than one offence.

19 The first provision relied upon is s 11.5(1) which establishes that the maximum penalty for the conspiracy is that stipulated for the offence to which the conspiracy relates. At best this fact, if it be pertinent at all, would require a separate pleading for each kind of offence — if there be more than one — perhaps in the alternative. That this may be required is suggested by Ansari v The Queen [2007] NSWCCA 204; (2007) 173 A Crim R 112 where Howie J indicated at [63] that there is one composite physical element in s 11.5(1), namely, “conspires to commit an offence”. However, this analysis says nothing about the present case where what is alleged is multiple incidents of the same offence under s 106.6.

20 The three applicants also rely on the defence and special liability provisions in s 11.5(7) and s 11.5(7A). Again, those provisions cannot arise in the present case. What would be the position if quite different offences were relied upon need not be decided.

21 The essence of the crime of conspiracy has always been the element of combination which, as has often been emphasised, can constitute an enhanced danger to the community over and above the commission of the offences themselves. All forms of organised crime, perhaps most notably in the drug trade, manifest this proposition. It is a perspective which applies with particular force to terrorism.

22 The proposition that the Parliament, when enacting the Code, had strayed so far from this critical social purpose so as to overturn the long established practice which criminalises an agreement leading to multiple offences only needs to be stated to be rejected. The very nature of the offence strongly indicates that there is no intention to the contrary of s 23 of the Acts Interpretation Act.

23 The application of this Interpretation Act provision has frequently arisen in criminal contexts, including with respect to the use of the word “offence” in its singular form. It has arisen in both common law States and Code states. The nature of the offence is always a critical, and often determinative, matter in this regard. However, the whole legislative scheme must be considered. The singular form of the statutory provision is rarely significant, no doubt because parliamentary drafters have long since adjusted their drafting practice to facilitate clarity and economy of expression, in reliance on provisions such as s 23. (See Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656.)

24 Sometimes the result of this consideration is that the Parliament intended singularity with respect to a criminal offence. (See R v Ruddell [2006] 1 Qd R 361; Walsh v Tattersall esp at 91, 101; R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416 at [16]–[23]; Director of Public Prosecutions v Stark [2006] VSCA 61.)

25 On other occasions, the singular form was interpreted to encompass the plural. (R v Wyles; Ex parte Attorney-General [1977] Qd R 169; Coward v Allan (1984) 52 ALR 320; Commissioner of Taxation v Cocaj [2004] QCA 69; [2004] 2 Qd R 488; R v CDR (No 2) [1996] 1 Qd R 69; R v Armstrong [1996] 1 Qd R 316; R v Poulier [2007] NTCCA 4; (2007) 19 NTLR 91.) Not all of these cases can be readily reconciled with each other (eg Ruddell with Poulier or Stark with Wyles). Nevertheless, different results are to be expected because the nature of the offence and aspects of the context and history of the legislative schemes will diverge.

26 The issue has also arisen in a Code state with respect to the offence of conspiracy. Section 541(1) of the Criminal Code Act 1899 (Qld) created an offence in terms of “Any person who conspires with another to commit any crime … which is an offence”. In R v Moore [1988] 1 Qd R 252 at 254, Macrossan J proceeded on the basis that this section reflected the common law position in which a charge could allege a single agreement to commit a number of offences.

27 The analysis by Whealy J on this issue turned in significant measure on the pre-existing common law position with respect to charging a single conspiracy for the commission of multiple offences. His Honour’s analysis applied to both s 11.5(1) of the Code and its predecessor provision, expressed in virtually identical terms, found in s 86 of the Crimes Act 1914 (Cth). In my opinion, his Honour was correct to have regard to the common law in this regard.

28 The general approach to interpretation of a Code is well established. As Windeyer J put it in Vallance v The Queen (1961) 108 CLR 56 at 75:

“The Code is to be read without any preconception that any particular provision has or has not altered the law.”

29 Nevertheless, there are circumstances in which the interpretation of a Code which, like any other statute, must involve reference to the full context of the specific provision that falls to be interpreted. This extends to the legal history of the particular provision and of the terminology in which it has been expressed.

30 In Stuart v The Queen (1974) 134 CLR 426 at 437, Gibbs J rejected the proposition that “it is never necessary to resort to the common law for the purpose of aiding in the construction of a Code” and added:

“it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground”.

Bank of England v Vagliano Brothers

R v Barlow

Sungravure Pty Ltd v Middle East Airlines Airliban SAL

31 In my opinion, the references to “conspiracy” found in the Code are of a technical legal character for purposes of the application of these principles. The terminology which the drafters of the Code used were words and phrases which had well established legal meanings. Generally, the legal meanings did not differ from dictionary meanings. As Windeyer J put it in Vallance at 75:

“Law may define the forbidden conduct more fully and more precisely than in common speech is ordinarily necessary; but it does not define it differently.”

32 His Honour went on to give an example:

“[The Code] does not define ‘maim’, but that word is used in it. In ordinary speech it means a crippling injury, such as the loss of a limb. The meaning is the same for law, but the specific test by which early law distinguished [maim] from lesser injuries was by asking whether the harm would make a man less able for fighting. The test produced some strange decisions. That is an illustration of the meaning of a word in the Code being fixed by the common law.”

33 In my opinion, the references to “conspiracy” found in the Code was also, intended by the drafters of the Code to be “fixed by the common law”, subject to any express statutory modification (cf R v Wyles at 177–182). As Whealy J notes, the authors of the offence creating provision in s 11.5(1) adopted the terminology of the pre-existing Commonwealth offence in s 86 of the Crimes Act. That section was itself clearly derived from the common law and was not subject to the special rules for interpreting a code.

34 Furthermore, it is clear from the full text of s 11.5 that the authors of the conspiracy provisions of the Code paid careful attention to the pre-existing common law and to debates about the appropriateness of charges of conspiracy, in lieu of substantive offences. That appears most clearly from the identification of the particular requirements of a finding of guilt of a charge of conspiracy set out in subss 11.5(2), (3), (4) and (5). Like the general discretion introduced in subs (6), these matters reflect decisions and debates that have occurred about the application of the crime of conspiracy at common law.

35 I am reinforced in this conclusion by the Report of the Criminal Law Officers Committee, on which s 11.5 is clearly based. That Report identifies the need for such an offence and its detail by reference to the case law and debate about the crime of conspiracy at common law. (See Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 2: General Principles of Criminal Responsibility (1992) at 96ff (“MCCOC Report”)). The MCCOC Report is of assistance in determining that the offence of conspiracy under the Code intended to implement the common law, save in identified respects. (See Ansari at [64]–[66].)

36 This conclusion is quite unsurprising. Conspiracy offences in those States with a Criminal Code have frequently been interpreted by reference to the common law principles. Accordingly, the texts on the Queensland and Western Australian Codes frequently invoke common law cases to explain the code provisions. (See eg LexisNexis Butterworths, Carter’s Criminal Law of Queensland, vol 1 (at Services 75 and 64) at [s 541.20]–[s 541.55]; LexisNexis Butterworths, Criminal Law Western Australia, vol 1 (at Services 102 and 96) at [s 558.5]–[s 558.35].) In this respect the texts reflect the case law in the Code States.

37 The submissions for the three applicants who advanced this argument should be rejected.

38 Mr Walker made two distinct submissions on behalf of all of the applicants on the issue of duplicity. The first was a submission asserting patent duplicity. The second was a submission based on what is often referred to as latent duplicity, to be discussed below.

39 Mr Walker’s patent duplicity submission directs attention to the form of the indictment which, as I have set out above, asserts an agreement “to do acts in preparation for a terrorist act (or acts)”. This pleading reflects s 101.6(2)(c), also set out above, which provides that the offence of doing “any act in preparation for … a terrorist act” is committed even if “the person’s act is done in preparation for … more than one terrorist act”.

40 Mr Walker adopted the submission made to Whealy J by counsel then appearing for some of the applicants to the effect:

“There is clearly a difference between entering into an agreement to do an act or acts in preparation for a single terrorist act and entering into an agreement to do an act or acts in preparation for more than one terrorist act. Those two agreements are not the same.”

“… as the indictment stands, there are potentially two conspiracies alleged: one to do preparatory acts for a terrorist act, the other to do preparatory acts for terrorist acts.”

41 It is pertinent to note that this submission does not suggest that there is any element of duplicity in charging multiple preparatory acts. That is to say there is no objection to that part of the indictment which states: “Did conspire with each other … to do acts in preparation for”; rather, the focus of the submission is on the subsequent words “a terrorist act (or acts)”.

42 For the reasons already set out with respect to Mr Waterstreet’s submissions it is permissible to charge a single conspiracy to commit multiple offences, relevantly multiple preparatory acts. Mr Walker did not submit otherwise. The issue is whether or not there is patent duplicity arising from the charge that these multiple preparatory acts were prepared for either a single terrorist act or multiple terrorist acts.

43 Whealy J was correct to conclude that, on the authority of his own judgment in R v Lodhi approved on appeal (R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236 and Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303), preparatory acts for terrorism may occur where the precise nature of a terrorist act has yet to be decided and whether or not it has been decided that there would be more than one such act. In my opinion, his Honour correctly rejected the submission made for the applicants before him for this reason.

44 I am reinforced in this conclusion by the structure of s 101.6. Subsection (1) creates the relevant offence as “any act in preparation for … a terrorist act”. Subsection (2) is not in terms part of the statement of the offence but identifies three matters the presence of which does not lead to the conclusion that the offence has not been committed. This is made clear in the formulation “even if”.

45 The reasoning in Lodhi is of course reinforced by the express reference in s 101.6(2)(b) to the fact that the preparatory act does not have to be directed to a specific terrorist act. It is relevant to point out that, at the time of the challenge to the indictment in Lodhi, the section included only s 101.6(2)(a). Subparagraphs (b) and (c) commenced operation on 4 November 2005 when Sch 1 of the Anti-Terrorism Act 2005 (Cth) came into force.

46 The pleading to which objection is taken is based on s 101.6(2)(c) which must be understood in the light of s 101.6(2)(b), ie there does not have to be a “specific terrorist act”. It is readily apparent that if there does not have to be an identifiable terrorist act at all, it does not matter whether the offender or offenders has or have determined whether or not there should be one or more than one terrorist act.

47 The focus of the section is on the preparatory act or acts, to the plurality of which no complaint is made. An agreement to perform multiple preparatory acts does not, in my view, differ in substance or form if the preparatory acts are to be directed to one or more ultimate terrorist acts.

48 Issues of this character have long been resolved in the law of conspiracy. As Jordan CJ said with respect to the cognate crime of conspiracy to defraud:

Ongley

49 The reference to terrorist act or acts in s 106.6 is equivalent to the reference to “one or more forbidden characteristics” within the analysis of duplicity of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552; (1972) 19 FLR 322 at 345 where his Honour said:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.”

CSR Ltd v Environment Protection Authority

Salmon v Chute

50 After referring to this authority in Lodhi v The Queen, I said with respect to the expansive definition of “terrorist act”:

“[75] … the scope and nature of the legislative scheme, concerned as it is with terrorist acts, which recent experience suggests are likely to have all three effects at the same time, Parliament intended to create a single offence with one or more of the specified characteristics.”

51 The same analysis applies to reject the asserted difference between an agreement to commit one terrorist act and an agreement to commit more than one terrorist act. With respect to an offence under s 106.6 itself, or with respect to an agreement to commit such offences under s 11.5(1), there is no element of duplicity by pleading the statutory provision identifying “forbidden characteristics”, to use Bray CJ’s words.

Latent Ambiguity

52 On the authority of judgments in the High Court referred to above, (ie Johnson v Miller, S v The Queen and Walsh v Tattersall; see also Stanton v Abernathy (1990) 19 NSWLR 656) this Court must proceed on the basis that latent ambiguity or latent duplicity falls within the concept of duplicity which, in an appropriate case, can lead to the quashing of an indictment. It is by no means clear what is the ratio of the recent High Court authorities. The judgments which doubt whether some of the matters discussed can be characterised as raising a “duplicity” issue at all, have force. This is itself suggested by the use of terminology such as “latent ambiguity” in preference for “latent duplicity”. (See eg Stanton v Abernathy at 669G.)

53 Latent ambiguity can be identified when an indictment does not suggest duplicity on its face, but the way in which the Crown case is to be, or has been, conducted can be seen to subject the accused to the possibility of being convicted of one of a number of distinct offences. In the context of a charge of conspiracy this principle involves the exposure of an accused to being convicted of more than one conspiracy.

54 As Jordan CJ put it in Ongley at 117:

“A count in conspiracy must comply with the general rule of charging one offence only … The jury … cannot find some of the accused guilty of a conspiracy to effect only some of the improper purposes and other of the accused guilty only of a conspiracy to effect only other of the improper purposes; because to do so would be to find the existence of two conspiracies under a count which charges one only; and this, the law does not allow”.

55 Ongley was a case in which the indictment was not duplicitous but the trial judge’s directions to the jury permitted it to find more than one conspiracy, which was impermissible.

56 In the light of the express provision found in s 11.5(6) authorising the Court to dismiss a charge of conspiracy on the basis “that the interests of justice require it to do so”, it is difficult to identify any separate role for the principle of latent ambiguity with respect to a charge of conspiracy under the Code. As I have noted above, there is no appeal from his Honour’s rejection of the applicants’ case under s 11.5(6). Nevertheless, no submission has been made to this Court that s 11.5(6) provides exhaustively for these matters.

57 Duplicity is a reasonably clear concept, even in its latent form. It is not clear why it should be deployed as a label that covers principles — like the principle of a fair trial — which would have independent operation to the same effect. However, in the reasoning of recent majority judgments in the High Court, the law with respect to duplicity has been stated to serve a number of purposes of which the principle of a fair trial is one. (See eg S v The Queen esp at 284–286.)

58 The applicants’ submissions on latent duplicity could all arise under s 11.5(6) of the Code. For present purposes, the relevant findings of fact with respect to this aspect of the applicants’ submissions were made by Whealy J in the context of dealing with the s 11.5(6) issue agitated before him.

59 Mr Walker stated that his clients came to this Court for the sole purpose of having the present indictment quashed. That would be a rare order even in a case where some form of latent duplicity had been identified. As Kirby J said in Walsh v Tattersall at 110 (references omitted):

“A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction.”

60 In R v Mitchell [1971] VR 46 the Full Court of the Supreme Court of Victoria dealt with a submission that it was possible on the evidence in that case that the jury might find more than one conspiracy on a single count of conspiracy. Their Honours said at 57:

“This is not an argument which goes to the initial validity of the presentment. Such a development creates a situation with which the trial judge must deal.”

61 That the appropriate step upon finding even latent duplicity is to put the prosecutor to an election or to provide particulars or to require appropriate directions has long been the position. (See eg Johnson v Miller at 489–490; Stanton v Abernathy at 670–671.)

62 None of the applicants came before this Court seeking an order in the nature of requiring an election, nor for a stay by reason of inability to provide a fair trial. The sole order sought in this regard is an order to quash the indictment. On the latent duplicity argument, this was said to be based on the alleged impossibility, in view of the complexity of the matters that fall to be determined, of remedying the alleged defects in any manner, whether by means of election or particulars or directions.

63 In the present case, it is difficult to adopt the usual approach because of the considerable extension of matters which some of the majority judgments in S v The Queen and Walsh v Tattersall suggest come under the law of duplicity. The case of latent duplicity advanced on the part of the applicants in this case — or “multiplicity”, as Mr Walker put it — could be appropriately characterised as invoking the principle of a fair trial, for which remedies directed to avoiding an abuse of process or a dismissal under s 11.5(6) are more appropriate. Nevertheless, on High Court authority, the duplicity label can be applied.

64 Mr Walker did not submit that an analysis of the Crown Case Statement indicated that, as a matter of substance, the Crown should be seen as relying upon more than one agreement. Rather, his submission was that, from the perspective of the jury decision-making process or from the perspective of each individual accused in preparing for and conducting the trial, the nature and complexity of the issues raised is such that the possibility of multiple conspiracies will permeate the proceedings. Furthermore, that will occur in a manner not capable of rectification by directions on the part of the trial judge.

65 The submissions made in this respect could be depicted in the form of a tree diagram commencing with one agreement, which branches out into nine accused, which each branch out into overlapping preparatory acts and which in turn, theoretically, branch out into a variety of possible terrorist acts. It is this multiplicity, by creating an extraordinary range of possible permutations, which enables any person, whether an accused preparing for trial or a juror making a decision, to follow one of the multifarious paths along the tree diagram.

66 Mr Walker accepted that it was the nature of the conspiracy charged that there would be various permutations. To give only one example, it has long been accepted that it is not necessary that all conspirators joined the conspiracy at the same time, nor that they participated in the same way or to the same extent. Nevertheless, Mr Walker submitted that, on the Crown Case Statement in the present proceedings, the scope and range of the permutations was so extraordinary as to justify a conclusion of latent ambiguity or latent duplicity of a character which could not be remedied in the course of the trial.

67 A number of Whealy J’s factual findings are pertinent to resolving this issue. In his judgment of 18 March 2008 his Honour said:

“[36] … First, the Crown Case statement is, in general terms, a statement of the evidence it is proposed to adduce in the trial. It is however, very detailed. It is a document that contains some 181 pages of very precise detail. There are approximately 400 paragraphs and over 700 detailed footnotes. I have had the advantage of reading carefully the whole of the Crown Case Statement. In addition I have read and examined carefully the list of the alleged overt acts. I am, of course, conscious that there are already a considerable number of applications to rule certain of the material in the Crown Case Statement inadmissible either generally or against particular accused. I am also aware that there are applications to exclude material from the trial on the basis that it will prove overly prejudicial to one or more of the accused. These various applications have not been argued at this stage an their determination is for the future. For the purposes of the present application, I will in general terms regard the evidence as admissible even though at a later stage some of it may be rejected or excluded.”

68 His Honour went on to say:

“[66] … First, I do not consider the conspiracy is vague or amorphous. It is precisely enough expressed. The nine accused, it is said, entered into an agreement to obtain the capacity or capability to prepare for a terrorist act or terrorist acts. This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act or acts. In furtherance of the agreement, there were attempts to obtain chemicals and other relevant materials, which could be used in the construction of an explosive device; the obtaining (or attempted obtaining) of weaponry and ammunition; and the collection of large amounts of extremist and instructional material.

…

[69] So, the Crown case is that in many areas, although an agreement had been reached and steps were now being taken pursuant to it, to acquire the capacity or capability to prepare for a terrorist act, a number of the acts taken in furtherance of the conspiracy were thwarted either by accurate surveillance police intervention or caution on the part of the conspirators themselves for fear of being detected. There is, however, no uncertainty in relation to the actions alleged to have been taken by each of the conspirators in furtherance of the conspiracy. The uncertainty remains, as it often will with an offence under s 101.6, in that it is unclear as to whether a specific target or targets had been finally selected for the purposes of carrying out any terrorist attack. No decision had finally been made as to whether there would be one attack; or more than one attack. In my opinion, this does not mean that the conspiracy itself is either amorphous or vague. Indeed, the conspiracy is not only precisely stated in the Crown Case Statement, it is clear and simple. Yes, there is the point made by Mr Lange that it is unclear as to whether one terrorist act was contemplated or more than one; and, it is indeed [sic] it may well be that the ultimate target or targets have not been finally selected. But, as I say, the agreement itself is simple enough and easy to perceive and understand.

[70] … The directions that would be needed to be given to a jury in a conspiracy case are, no doubt, extensive. But I do not see them as being complicated to the point of making it difficult for the jury to follow. This would be especially so when the court will have the assistance of an experienced Crown team and very experienced lawyers appearing for each of the nine accused.

Evidence Act.

[72] I next turn to the issue of sentencing such of the accused as may be convicted. This is obviously a very hypothetical exercise at this stage. I consider, however, that once the overall criminality in the conspiracy is appreciated, it should be possible to accurately perceive and identify the level of association and involvement of any individual conspirator who may be convicted of the charge. The necessary distinctions as to the level of criminality will be able to be made. I have no doubt that, were any of the accused to be convicted, their counsel would be quick and astute to identify relevant points of distinction. I fail to see that there would be any real danger of falling into this error in assessing the penalty to be imposed on any individual convicted of the conspiracy charge. I see no reason why uncharged matters would be taken into account or why the principles of double jeopardy might, in some way, be infringed. The Court would be astute to avoid any such situation. Here, of course, there is only the one charge. There is no suggestion that there will be any later substantive offences charged against these men.

[73] Similarly, I do not think that there is any real risk of injustice of unfairness in that the individual case of some of the accused might be buried under the mass of material generally relating to the conspiracy. In proving the existence of the conspiracy, and in proving acts done in furtherance of that conspiracy, the Crown will be entitled to adduce evidence putting into context the activities of each of the accused. I do not accept, that properly instructed, the jury will be led into error in this way.”

69 In the light of these findings by his Honour, which are of a kind with which this Court is reluctant to intervene, the fears expressed in the submissions for the applicants in this regard should not be accepted. There may be numerous permutations, but it cannot be said that, at this stage of the proceedings, it is appropriate, let alone necessary, to conclude that the nature of the Crown case is such that multiple agreements need to be dealt with by the accused or may be found by the jury.

70 Specifically, in the light of his Honour’s clear assessment of the facts, this is not a case which falls within the apprehension expressed by Murphy J in Gerakiteys v The Queen at 323:

“Conspiracy must not be allowed to become so amorphous that it will create a real danger of concealed duplicity of charges, so that the accused may be convicted despite the lack of unanimity among the jury members.”

71 No such amorphousness exists here. The complexity arises, not from the pleading, but from the scope, nature and extent of the conspiracy alleged and of the overt acts alleged to have been undertaken in pursuance of the single agreement.

72 I am reinforced in this conclusion by the forcefully expressed judgment of Whealy J, based on his Honour’s detailed assessment of the Crown case, that a conspiracy charge in the present case was the only way to properly reflect the criminality alleged in the Crown case against the accused (at [42], [57], [58], [63]). As his Honour put it:

“[57] … a substantive charge or charges … would not, however, have adequately revealed the wide-ranging, extensive and ongoing nature of the organisation. The reality of the Crown case, as I see it, is that it is only by means of the conspiracy charge that the full range[,] nature and scope of the agreement and the activities engaged in by the group, if the Crown case be accepted, can be revealed. The filing of individual charges against individual members of the organisation simply would fail to reflect and portray the real nature of what was going on.”

73 The implications of the submissions made on behalf of the applicants in this respect is that a conspiracy charge would rarely, if ever, be appropriate in the case of a conspiracy involving many co-conspirators to conduct numerous illegal acts over a long period of time. Our legal system must show itself capable, consistently with the requirements of procedural fairness, of handling cases of such complexity where a judgment is properly open that proceeding for individual substantive offences would not adequately reflect the criminality of the conduct. His Honour’s conclusion that that was the case here was not challenged on the appeal. This Court should not interfere with such a judgment made by an experienced trial judge, for articulated and supportable reasons.

74 Of significance for present purposes are the observations of Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584, which have subsequently found favour in Australia, where his Lordship said at 607:

forming part of the same

criminal enterprise

75 A conspiracy, by reason of the focus on a single agreement, is the archetypical example of a charge of this character, ie where there is a single “criminal enterprise”. In this regard an important authority is the judgment of this Court in R v Hamzy (1994) 74 A Crim R 341, which is not inconsistent with the reasoning in the two majority judgments in Walsh v Tattersall. (See R v F (1996) 90 A Crim R 356 at 360–361; and R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373.)

76 In Hamzy Hunt CJ at CL set out and dealt with submissions raising a number of the different purposes served by the law of duplicity in the context of a case involving multiple occasions of supply of drugs. His Honour concluded at 348–349:

provided that those acts can fairly and properly be identified as part of the same criminal enterprise

one criminal enterprise

in the one criminal enterprise of dealing in heroin

77 In Moussad, which involved a charge of defrauding the Commonwealth by means of multiple dishonest claims for welfare payments, Smart AJ, with whom Wood CJ at CL and Bell J agreed, set out a careful review of the relevant authorities, including Hamzy and cases which have applied it. His Honour concluded:

“[54] The courts in this State have found that ‘enterprise’ counts have their place in drug supply and fraud cases where it is important to stress the overall criminality. … In order to bring home the full extent of their criminality and ensure appropriate punishment, the quantities from a number of acts of supply have to be aggregated. The enterprise is to supply large commercial quantities of heroin, cocaine or other harmful drugs.”

78 This reasoning is in accord with the reasoning of Whealy J in the present case. Hamzy and Moussad have subsequently been referred to with approval. (See eg R v ARD [2000] NSWCCA 443 esp at [159]–[163]; R v Orban [2005] NSWCCA 312 esp at [17]; R v Zampogna [2003] SASC 75; (2003) 85 SASR 56 esp at [28]; R v Lao and Nguyen [2002] VSCA 157; (2002) 5 VR 129; R v Ferguson (No 11) [2005] VSC 527; (2005) 165 A Crim R 337 esp at [19], [24]; R v Poulier esp at [9]–[12].)

79 The conspiracy alleged in the present case is a quintessential example of a joint criminal enterprise. The complexities arise by reason of the scope and nature of the alleged conspiracy. On his Honour’s findings of fact set out above, reinforced by his judgment, which I accept, that the alleged criminality cannot be reflected in charges for substantive offences, the various purposes served by the law of duplicity have not been shown to be in jeopardy.

80 Leave to appeal on the ground of duplicity should be refused.

Consent

81 The three applicants who rely on this issue submit that his Honour erred in finding that, for purposes of s 11.5(8) of the Code, proceedings against the accused commenced upon the presentment of the indictment and each arraignment.

82 The facts relevant to the issue of consent are:

(a) The three accused were arrested and charged on 8 November 2005;

(b) The court attendance notice was issued on 8 November 2005;

(c) An amended court attendance notice was dated on or before 23 January 2007 (but that notice was not attended before Whealy J);

(d) A written consent under s 11.5(8) to proceedings for an offence of conspiracy was signed by the then Director of Public Prosecutions on 28 February 2007;

(e) The committal proceedings commenced on 5 March 2007;

(f) The accused were committed to stand trial on 30 April 2007;

(g) The accused were arraigned before the Supreme Court on 31 May 2007;

83 The three applicants rely upon the fact that the Court Attendance Notice was issued prior to the consent. They submit that this constituted the relevant commencement of proceedings. Section 53 of the Criminal Procedure Act 1986 provides:

“53(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.

…

(3) Nothing in this section affects any other act or law under which proceedings are taken to have commenced on another date.”

84 The issue before the Court turns on the interpretation of the words “proceedings … commenced” in s 11.5(8) of the Code. In my opinion, the interpretation of this Commonwealth statute is not determined by s 53 of the State Act which is, in terms, a deeming provision — “are taken” — of a definitional character.

85 Section 68(1) of the Judiciary Act 1903 (Cth) provides, relevantly, for the application to Commonwealth offences of: “The laws of a State … respecting … the procedure for … their … commitment for trial on indictment; and … their trial and conviction on indictment”. Section 79 of the Judiciary Act does not relevantly add anything for present purposes.

86 The provisions of the Criminal Procedure Act requiring and regulating court attendance notices are laws “respecting procedure”. Section 53 appears to me to be of a different character. No doubt s 53 will be picked up and applied by s 68(1) if another section of the Criminal Procedure Act, which is itself procedural, refers to the time of commencement. That, however, does not require the characterisation of s 53 as procedural for purposes of the Judiciary Act. It remains definitional, rather than procedural. Nor does it require that the words ‘commence proceedings’ in a Commonwealth statute bear that meaning. Such a statute must be interpreted in its own context.

87 Significantly s 11.5(8) states, by way of express qualification, that a person may be “remanded in custody” before any consent is issued. An accused cannot be “remanded in custody” except by a court. This is the natural and ordinary meaning of the word “remand” and is reflected in statutes eg s 15 of the Crimes Act 1914. On this analysis “proceedings” do not “commence” for purposes of s 11.5(8) at the time of issue of a court attendance notice. Plainly, s 11.5(8) requires a consent before the actual start of a committal hearing, where there is a committal. It does not, in my opinion, need to exist before the step which first invokes the jurisdiction of the local court. The consent in the present case was extant before the committal hearing.

88 This analysis disposes of this proposed ground of appeal. It is, however, appropriate to deal with the alternative bases upon which submissions have been made.

89 In his judgment of 19 March 2008 Whealy J held that s 53, in its context, deals only with a court attendance notice for committal proceedings and not generally. His Honour referred specifically to s 47(1), s 48, s 49(1) and s 53 of the Criminal Procedure Act.

90 His Honour also said:

“[17] But more critically, it seems to me that the real issue confronting this Court is whether the present indictment should be quashed on the basis that the proceedings on indictment are themselves a nullity. To my mind, this issue will not be determined by examining whether the committal proceedings were irregular or invalid, based on the absence of a consent at the time the committal proceedings were taken to have commenced or earlier. I shall explain why this is so. First, although Chapter 3 of the CPA deals with indictable procedure, s 53 appears in Division 1 of Part 2 of the Chapter. It is, as I have said, a division dealing with the commencement of committal proceedings and other matters relating to committal proceedings. This is made clear by the headings and context of the sections I have mentioned. Secondly, this Court’s jurisdiction to deal with criminal proceedings has been the subject of recent decisions in the News South Wales Court of Criminal Appeal.”

91 His Honour referred to R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; R v Taylor [2003] NSWCCA 194.

92 His Honour concluded:

“[27] These decisions of the Court of Criminal Appeal make it clear that criminal proceedings in this Court are commenced as soon as the indictment is presented and the accused is arraigned on the indictment. Proceedings on indictment are not commenced at any earlier date.

[28] Accordingly, it is clear that the Director’s consent was given well before the commencement of the proceedings on indictment in this Court. For that reason, [i]t cannot be said that these present proceedings lack jurisdiction or are a nullity.

[29] This must be so, even if it be correct that irregularity or invalidity touched upon the committal proceedings due to the alleged lateness of the giving of consent.

Director of Public Prosecutions Act

R v Duffield; R v Dellpatrona

R v Butler

R v Hull

93 I agree with his Honour’s analysis of Pt 2 Ch 3 of the Criminal Procedure Act. Chapter 3 is entitled “Indictable Procedure” and Pt 2 is entitled “Committal Proceedings”. Division 1 of Pt 2, in which s 53 appears, is entitled “Commencement of Proceedings”. The first section in that Division provides:

“47(1) Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.”

94 Section 48 and s 49(1), to which Whealy J also referred, both include a reference to the phrase “commence committal proceedings”.

95 In my opinion, Whealy J was correct to confine the word “proceedings” in s 53 to committal proceedings. This conclusion is particularly clear in the context of the legislative scheme which contains, in Pt 2 Div 1, detailed regulation for procedures in lower courts for summary offences and which includes, in s 172(1) and s 178, precisely equivalent provisions expressed in identical terms to s 47(1) and s 53 but referrable to summary proceedings.

96 The absence of any direct impingement upon the presentation of an indictment is also made clear by the terms of s 53(3) itself which states that nothing in s 53(1) affects “any … law in which proceedings are taken to have commenced on another date”. The common law with respect to the presentation of indictments falls within this qualification. Furthermore, s 47(4) provides: “Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court …”.

97 I agree with Whealy J that there was a consent extant prior to the “commencement of proceedings” in the Supreme Court. The result is the same as that reached on a comparable consent requirement in Victorian legislation. (See R v Evans [1964] VR 717.)

98 The three applicants raise an issue as to whether any irregularity or invalidity of the committal proceedings, by reason of the fact that they were “commenced” within the meaning of s 11.5(8) of the Code without an extant consent, affects the indictment. They submit that invalidity of the committal proceedings in turn invalidates the indictment where the statutory provisions for an ex officio indictment were not followed.

99 Whealy J considered a Crown submission to the effect that, even if the issue of the Court Attendance Notice constituted the “commencement of proceedings” within the meaning of s 11.5(8), that would not have the effect of invalidating the indictment. The Crown relied, in this respect, on the analysis in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 193 CLR 355 at 69–70. His Honour expressed doubt about this submission, particularly in the context of a statutory requirement that “proceedings … must not be commenced”, but did not find it necessary to resolve the issue. His Honour, nevertheless, concluded that he was satisfied that the “present criminal proceedings”, ie those instituted by way of the presentation of the indictment in the Supreme Court, were validly issued after the consent.

100 Like Whealy J, I do not find it necessary to express a final view on this issue. I note that, even in a criminal context, the effect of a procedural irregularity upon the validity of subsequent steps, does require analysis of the statutory scheme. The fact of the criminal context is an important, but not necessarily conclusive, element in such an analysis. (See eg Janceski at [90]–[98], [223]–[283].) The nature of the irregularity identified here — where the consent was issued after the court attendance notice, but before the actual committal proceedings — may have resulted in a technically invalid committal. On the authorities referred to by Whealy J (eg R v Butler (1991) 24 NSWLR 66), such an irregularity does not necessarily invalidate the subsequent proceedings on the indictment.

101 Leave to appeal on this ground should be refused.

Offence Unknown to the Law

102 The submission made on behalf of the three applicants who advance this contention is based on the fact that the offence of conspiracy in s 11.5 of the Code applies to all offences under the Code, by force of s 2.2 of the Code. That, it is submitted, would lead to absurd consequences in the case of those offences which are in themselves expressed in terms of conspiring to do some act such as conspiracy to defraud (s 135.4) or conspiracy to bring a false accusation (s 41 of the Crimes Act 1914) or conspiracy to defeat justice (s 42 of the Crimes Act 1914).

103 There is authority to support the proposition that a conspiracy to commit an offence, which is itself expressed in terms of an agreement to do something, is absurd. (See R v Chow (1987) 11 NSWLR 561.) However, that conclusion does not extend beyond that circumstance, eg to a charge of conspiracy to supply a third person. (See R v Challita (1988) 37 A Crim R 175 esp at 184; Trudgeon v R (1988) 39 A Crim R 252 esp at 253; R v Carusi (1989) 17 NSWLR 516; R v Deng (1996) 91 A Crim R 80 esp at 90.)

104 No such provision is involved in the present case. The applicants seek to apply Chow by analogy and submit that, where the agreement is itself capable of constituting the substantive offence, a similar absurdity arises. In this case, the substantive offence involves “acts in preparation for a terrorist act”. An agreement to commit such an act could itself be such a ‘preparatory’ act.

105 This may be so. However, it does not involve the kind of absurdity found to exist in an “agreement to agree” charge. The Court said in Chow at 570: “the agreement to sell or supply, being the substantive offence cannot also be the agreement which brings into existence the conspiracy”.

106 Nothing like that exists here. There is no absurdity of the character identified in Chow. It is often the case that the overt acts of a conspiracy are themselves substantive offences. Nevertheless, it has long been recognised that a charge of conspiracy may be more appropriate than charging the substantive offences. Similarly, a charge of conspiracy to commit preparatory acts may be more appropriate than charging the agreement as the preparatory act or one of the preparatory acts. Indeed, that is what Whealy J decided when rejecting the application for the charge to be dismissed under s 11.5(6).

107 Leave to appeal on this ground should be refused.

Conclusion

108 The orders I propose are:

1 Stand over Order 3 sought in the Notices of Application for Leave to Appeal of Khaled Cheikho dated 3 April 2008, of Mirsad Mulahalilovic dated 4 April 2008 and of Mazen Touma dated 7 April 2008.

109 JAMES J: I agree with Spigelman CJ.

I agree with Spigelman CJ.

**********

Citations

B v The Queen [2008] NSWCCA 85

Most Recent Citation

Cases Citing This Decision

187

R v Taufahema [2007] HCA 11

Solomons v District Court of New South Wales [2002] HCA 47

Walsh v Tattersall [1996] HCA 26

Cases Cited

38

Statutory Material Cited

7

Walsh v Tattersall [1996] HCA 26

Johnson v Miller [1937] HCA 77

KBT v The Queen [1997] HCA 54

Actions

Download as PDF Download as Word Document

CITATION:	B v R [2008] NSWCCA 85
HEARING DATE(S):	10/4/08
JUDGMENT DATE:	21 April 2008
JUDGMENT OF:	Spigelman CJ at 1; James J at 109; Howie J at 110
DECISION:	1 Stand over Order 3 sought in the Notices of Application for Leave to Appeal of Khaled Cheikho dated 3 April 2008, of Mirsad Mulahalilovic dated 4 April 2008 and of Mazen Touma dated 7 April 2008. 2 Otherwise refuse leave to appeal on each Application.
CATCHWORDS:	CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Patent duplicity – Latent duplicity – Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW – Practice and procedure – Indictments – Consent to commence proceedings – Time of commencement of proceedings – Criminal Code Act 1995 (Cth), s 11.5(8) - CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Whether a conspiracy to commit a preparatory act is unknown to law – Criminal Code Act 1995 (Cth), s 101.6.
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code Act 1899 (Qld) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Judiciary Act 1903 (Cth)
CASES CITED:	Ansari v The Queen [2007] NSWCCA 204; (2007) 173 A Crim R 112 Bank of England v Vagliano Brothers [1891] AC 107 Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 Commissioner of Taxation v Cocaj [2004] QCA 69; [2004] 2 Qd R 488 Coward v Allan (1984) 52 ALR 320 CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 Director of Public Prosecutions v Merriman [1973] AC 584 Director of Public Prosecutions v Stark [2006] VSCA 61 Gerakiteys v The Queen (1984) 153 CLR 317 Johnson v Miller (1937) 59 CLR 467 Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 193 CLR 355 R v ARD [2000] NSWCCA 443 R v Armstrong [1996] 1 Qd R 316 R v Barlow [1997] HCA 18; (1997) 188 CLR 1 R v Butler (1991) 24 NSWLR 66 R v Carusi (1989) 17 NSWLR 516 R v CDR (No 2) [1996] 1 Qd R 69 R v Challita (1988) 37 A Crim R 175 R v Chow (1987) 11 NSWLR 561 R v Deng (1996) 91 A Crim R 80 R v Evans [1964] VR 717 R v F (1996) 90 A Crim R 356 R v Ferguson (No 11) [2005] VSC 527; (2005) 165 A Crim R 337 R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416 R v Hamzy (1994) 74 A Crim R 341 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Lao and Nguyen [2002] VSCA 157; (2002) 5 VR 129 R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236 R v Mitchell [1971] VR 46 R v Moore [1988] 1 Qd R 252 R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373 R v Ongley (1940) 57 WN (NSW) 116 R v Orban [2005] NSWCCA 312 R v Poulier [2007] NTCCA 4; (2007) 19 NTLR 91 R v Ruddell [2006] 1 Qd R 361 R v Taylor [2003] NSWCCA 194 R v Wyles; Ex parte Attorney-General [1977] Qd R 169 R v Zampogna [2003] SASC 75; (2003) 85 SASR 56 Romeyko v Samuels (1972) 2 SASR 529; (1972) 19 FLR 322 S v The Queen (1989) 168 CLR 266 Salmon v Chute (1994) 115 FLR 176 Stanton v Abernathy (1990) 19 NSWLR 656 Stuart v The Queen (1974) 134 CLR 426 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Trudgeon v R (1988) 39 A Crim R 252 Vallance v The Queen (1961) 108 CLR 56 Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77
PARTIES:	Applicants B Khaled Cheiko Moustafa Cheiko Mohamed Ali Elomar Abdul Rakib Hasan Mohammed Omar Jamal Mirsad Mulahalilovic Khaled Sharrouf Mazen Touma Respondent Crown
FILE NUMBER(S):	CCA 2007/2397; 2007/2395; 2007/2398; 2007/2399; 2007/2400; 2007/2452; 2007/2454; 2007/2396
COUNSEL:	B Walker SC/I Nash; and C Waterstreet/P Lange (Applicants) W Abraham QC/S McNaughton (Respondent)
SOLICITORS:	Legal Aid Commission (NSW) (Applicants) Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT JUDICIAL OFFICER:	Whealy J
LOWER COURT DATE OF DECISION:	18 March 2008 19 March 2008