R v Lodhi

[2006] NSWSC 584

CITATION:	Regina v Lodhi [2006] NSWSC 584
HEARING DATE(S):	13/02/06
JUDGMENT DATE :	14 February 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	Dismiss Notice of Motion on behalf of the accused
CATCHWORDS:	Criminal law: Criminal Code Act (C'Wealth) - Terrorism offences - indictment - duplicity - failure to specify all essential matters - Particulars
LEGISLATION CITED:	Criminal Code Act 1995 Criminal Code Amendment (Terrorism) Act 2003 Workers' Rehabilitation Compensation Act 1986 (SA) Acts Interpretation Act 1915 (SA) Anti-Terrorism Act 2005 Road Transport (Safety and Management) Act 1999 Criminal Procedure Act 1986
CASES CITED:	Johnson v Miller (1937) 59 CLR 467 S v The Queen (1989) 168 CLR 266 Stanton v Abernathy (1990) 19 NSWLR 656 Walsh v Tattersall (1996) CLR 77 Manwaring (1983) 2 NSWLR at 88 per Miles J (with whom Street CJ agreed) Romeyko v Samuels (1972) 2 SASR 529 at 552 per Bray CJ DDP v Belani [2005] NSWSC 1013 at (48) John L Pty Limited v A.G. (NSW) (1987) 163 CLR 508, 520 Ex Parte Lovell re Buckley (1938) 38 SR (NSW) 153 at 173 per Jordan CJ R v Janceski (2005) NSWCCA 281 at (52) - (53) per Spigelman CJ R v Mai (1991) 26 NSWLR 371,377-378 per Hunt CJ at CL, Enderby and Allen JJ agreeing Eastman v DPP [2003] 214 CLR 318 per McHugh J at (22) Cook v Benson [2003] 214 CLR 370 per Kirby J at (61) R v Ul-Haque (unreported) Bell J 8 February 2006 at para 17
PARTIES:	Regina v Faheem Khalid LODHI
FILE NUMBER(S):	SC 2005/1094
COUNSEL:	Mr R. Maidment SC; Mr. G. Bellew - Crown Mr. P. Boulten SC; Mr P. Lange - Accused
SOLICITORS:	Commonwealth DPP - Crown Michael Doughty Solicitor - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

TUESDAY 14 February 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - On Notice of Motion re Indictment

1 HIS HONOUR: This is a hearing of a Motion on behalf of Faheem Lodhi (the accused). Last year the accused pleaded not guilty to an indictment alleging the commission of a number of offences including offences against ss 101.5 and 101.6 of the Criminal Code Act 1995. On 15 December 2005 Mr Boulten SC, who with Mr Lange of counsel appears for the accused, argued that the indictment was bad for duplicity in relation to counts 2, 3 and 4. On 23 December 2005 I made a pre-trial ruling the broad effect of which was, subject to one matter, that the indictment did not contain overt or latent duplicities and that accordingly the prosecutor was not required to elect to narrow the scope of the charges.

2 On 20 January 2006 the Commonwealth Director of Prosecutions, after due consideration, gave notice that it would not proceed further in the prosecution on indictment of the accused on count 4 of the original indictment.

3 On 7 February 2006 the Crown presented a fresh indictment. The accused pleaded not guilty to each of the four charges in the new indictment. The counts in the new indictment are as follows: -

1. On or about 3 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi did collect documents, namely two maps of the Australian electricity supply system which were connected with preparation for a terrorist act, namely bombing part of the system, knowing the said connection.
2. On or about 10 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi did an act, namely sought information concerning the availability of materials capable of being used for the manufacture of explosives, in preparation for, or planning a terrorist act, namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown.
3. On or about 24 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi did make a document, namely a set of aerial photographs of Australia defence establishments which were connected with preparation for a terrorist act, namely the bombing of one or another of the establishments, knowing the said connection.
4. On or about 26 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for, the engagement of a person in, or assistance in a terrorist act namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown, knowing the said connection.

4 The first and third counts in the indictment allege offences against s 101.5(1) of the Criminal Code Act 1995 (“Criminal Code”). Count 2 of the indictment alleges an offence s 101.6 of the Criminal Code. Count 4 alleges an offence against s 101.4 of the Criminal Code.

5 I shall set out in this decision the relevant sections of the relevant Code dealing with terrorism offences. These are contained in Part 5.3 of the Code. The law that applies to the offences is the law as at October 2003. The Criminal Code Amendment (Terrorism) Act 2003 effected the repeal of the former Part 5.3 and substituted a new Part 5.3. The relevant provisions of the amending Act came into force on 29 May 2003.

6 Section 101.4 provided, relevantly, that a person commits an offence if:

“(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).”

7 Section 101.4(3) provides that a person commits an offence under sub-s (1) or (2) even if the terrorist act does not occur. Sub-section (5) of 101.4 provides that sub-sections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

8 Section 101.5 provides relevantly, that a person commits an offence if: -

(a) the person collects or makes a document; and
(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).”

9 Section 101.5 (3) provides that a person commits an offence under sub-section (1) or (2) even if the terrorist act does not occur.

10 Sub-section 5 of 101.5 provides that sub-s (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

11 Section 101.6 provides, relevantly, that: -

(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 sub-s (1) even if the terrorist act does not occur.

12 “Terrorist Act” is defined in s 100.1 of the Code. It means an action or threat of action where:

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

13 Sub-sections 2 and 3 of the definition are in the following terms: -

“(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.”

14 It may be convenient at this point to refer to the fact the Federal Parliament late last year enacted amendments to the terrorism legislation. In particular, and relevantly to the submissions made in relation to the present matter, the amended legislation effected changes to ss 101.4, 101.5 and 101.6 of the Code. Although these new sub-sections do not apply to the present charges, I shall note them at this point of my decision.

15 In relation to the offence of possessing a thing connected to the preparation for a terrorist act, sub-s 101.4(3) provides: -

“3 A person commits an offence under sub-ss (1) and (2) even if:
(a) a terrorist act does not occur; or
(b) the thing is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act.
(c) the thing is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.”

16 In relation to the offence of collecting or making a document connected to the preparation of a terrorist act, sub-s 3 of 101.5 provides as follows: -

“3. A person commits an offence under sub-ss 1 or 2 even if:
(a) a terrorist act does not occur; or
(b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or
(c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.”

17 In relation to the offence of doing an act in preparation for a terrorist act, sub-s (2) of s 101.6 provides as follows: -

“(2) A person commits an offence under sub-s 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.”

The background to the offences

18 As I understand the Crown case, there will be a considerable body of circumstantial evidence providing a substantial background to the evidence relating to the accused’s alleged possession collection and making of documents and the doing of acts, which are said to be in preparation for a terrorist act. In setting out some of this material for the purposes of this decision it will be necessary for me to refer to the Crown case statement. At this stage a jury has not been empanelled and there is no evidence before the Court in a formal sense.

19 The Crown case is that the accused is a Pakistani born Australian citizen who holds a Degree in Architecture from the University of Sydney as well as a Certificate of Project Management from the Sydney Institute of Technology. The Crown alleges that between May and October 2003 there was an association between the accused and one Willy Brigitte (“Brigitte”). The nub of the Crown case is that it will argue that it is to be inferred that the relationship between the accused and Brigitte, and their common association with the telephone service of one “Sajid” in Pakistan, were connected with the preparation for one of a number of possible terrorist acts in Australia. The Crown will rely on the evidence of the accused’s association with Brigitte, and further evidence regarding Brigitte himself, to support each of the four counts in the indictment to which I have made reference.

20 It will be alleged that Brigitte in about October 2001 had undertaken training at Paramilitary camps in Pakistan occupied Kashmir operated by the terrorist organisation, Lashkar-e-Taiba (“LeT”).

21 The Crown will endeavour to prove that LeT is and was in October 2001 a terrorist organisation with a primary focus upon the removal of Indian security forces from India controlled Kashmir. It has been listed by the Commonwealth Government as a proscribed terrorist organisation since November 2003. The Crown case will endeavour to establish that LeT provided Jihad education and military training to fundamentalists Muslim groups, as well as to individual foreigners, who would be expected, at the conclusion of their training, to return to their own countries and apply their training to fight against the oppression of Muslim communities and to establish a Muslim State in their countries through Jihad.

22 Brigitte arrived in Australia on a three-month tourist visa on 16 May 2003. He was subsequently apprehended on 9 October 2003 ands deported to France on 17 October 2003.

23 The Crown case is that the accused provided Brigitte with a pre-paid mobile telephone service in a false name. This service had been obtained by the accused on 6 May 2003. The Crown alleges that the accused assisted Brigitte after his arrival in Sydney, particular with accommodation. There will be evidence of handwritten notes by the accused. These were recovered by investigators from his home. These, according to the Crown case, suggest that, during his visit to Australia, Brigitte had informed the accused of his intention to get married and sought his assistance in that regard. Brigitte had also shown the accused a map of Australian Nuclear sites (which the accused borrowed for a period of time) and which was subsequently found in Brigitte’s possession.

24 There will also be evidence of material found at Brigitte’s premises after his arrest, which demonstrated not only an interest in nuclear sites but also other material relating to military and intelligence issues.

25 I have not endeavoured to set out all the background material relating to the association alleged between the accused and Brigitte. The above summary represents a brief outline of the majority of the background matters mentioned in the Crown case statement.

Evidence against the accused

26 On 3 October 2003, a male person purchased two maps of the Australian Electricity Network, along with other associated literature, from the Electricity Supply Association of Australia Limited. Access to such information is restricted to those with a legitimate reason to do so. The person who purchased the material gave the name “M Rasul” of the firm “Rasul Electrical” along with a false address and telephone number. The order form, the receipt and some of the literature purchased were later found during the course of a search of the accused’s workstation at his place of employment. The Crown case is that this material was not related to any legitimate purpose connected with the accused’s employment. In addition, files were downloaded from the accused’s desktop computer, which showed that he had conducted a search on the Internet using the words “Electricity Australia”. There was also a partial image of one of the maps purchased found on a computer seized from the accused’s home at the time of his arrest.

27 In relation to the first count in the indictment, it is the Crown case that the accused was responsible for the collection of the maps and that in doing so, there existed a connection (of which he was aware) between the maps, and the preparation for a terrorist act namely, the bombing of part of the electricity system. There is a specific body of evidence identified in the Crown statement, which it is said, will amount to a powerful circumstantial case demonstrating the connection between the maps and the preparation for an alleged terrorist act. This includes written material in the URDU language found at the accused’s workstation relating, inter alia, to the making of explosives. There will also be evidence alleging that in circumstances of false identification, the accused made enquiries of Deltrex Chemicals regarding chemicals, which were capable of being used as ingredients for explosives. There is also evidence of a conversation between Ms Kenny, the accuser’s principal at his place of employment, and the accused relating to the list from Deltrex Chemicals. This conversation will be relied on to point to deception by the accused and to demonstrate that he was attempting to conceal his true purpose from his employer.

28 Finally, the Crown relies on documents, DVD’s, on computer files seized from the home or office of the accused in October 2003 and April 2004. The Crown alleges that those show the accused had an interest in violent Jihad, martyrdom, the manufacture of explosives and incendiary devices and the selection of possible targets for a terrorist act.

29 In relation to the second count in the new indictment, the Crown will rely on the enquiries allegedly made by the accused in relation to the Deltrex Chemical material. The Crown will also rely on the written material found in the URDU language at the accused’s workstation relating to the making of explosives and poisons. When translated the pages were found to contain instructions in respect of:

· How to set a fire, including the ingredients required to do so;

· how to make various kinds of explosives, a hand grenade and a “time pencil” (which is a timing device for explosives);

· Urea Nitrate and Potassium Chlorate as explosives;

· Cyanide gas;

· Poisons made from ordinary household ingredients;

· Matters under the heading of “intelligence” including references to “agent handler”, “fifth column”, “dead drop”, “live drop” and “safe house”;

· Recipes for “invisible ink”.

30 The Crown will lead expert evidence of the use to which these various chemicals can be put, as well as evidence concerning the various matters of “intelligence” which appeared in the documents. In relation to the second count the Crown will also rely upon the general body of circumstantial evidence and other material, which I have already identified.

31 In relation to count 3 investigators retrieved certain material, which had been in the possession of the accused. The material was “dumped” by the accused in a waste bin in circumstances evincing, according to the Crown case, a consciousness of guilt. This material contained a total of 37 aerial photographs downloaded from the Internet on 24 October 2003. The photographs depicted Holsworthy Army Barracks, HMAS Penguin at Balmoral and Victoria Barracks. It is the Crown case that the accused made these photographs in connection with the preparation for a terrorist act, namely the bombing of “one or more of the establishments” depicted in the photographs and that he was aware of that connection. In relation to this count, the Crown will again rely on the general and specific body of evidence, which I have earlier identified. In addition, there will be evidence that the accused performed work of a architectural character at each of the three military establishments in 2000 and 2001.

32 In relation to count 4 the Crown will rely on the general body of evidence already identified and the particular evidence relating to the allegation that the accused had in his possession the 15 page document referred to in paragraphs 27 and 29. Two of the chemicals mentioned in the handwritten notes were chemicals the price and availability of which the accused had specifically enquired of Deltrex Chemicals.

Submissions on behalf of the accused

33 First, the applicant applies to quash counts 2, 3 and 4 on the grounds that they are bad for duplicity. Secondly, the accused applies for an order quashing counts 1 to 4 on the ground that they fail to specify all essential factual elements. Thirdly, in the alternative, the accused seeks an order that the Crown amend counts 1 to 4 and/or provide further and better particulars.

Duplicity

34 As I indicated at the outset, senior counsel for the accused relies upon the established principles relating to duplicity in indictments. There is no dispute regarding the existence and extent of these principles. They are stated in an abundance of authorities but the following will be sufficient for present purposes: Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77.

35 These principles are designed to enable an accused person to know precisely the charge brought against him and to prevent a situation arising where a defendant cannot ascertain on the face of the indictment what the precise offence may be. The principles are often called in aid to prevent unfairness and prejudice.

36 A very clear example is provided in Johnson v Miller. There the defendant was charged with a breach of the licensing laws in circumstances where some 30 persons were observed leaving his licensed premises during prohibited hours. The charge, however, was that only one offence had been committed. The prosecution refused to tell the defendant which of the 30 people was the one intended to be relied upon for the purposes of the prosecution. It was impossible for the defendant to prepare his defence in those circumstances. The position in that case gives a very clear example of the importance of the principles of fair conduct requiring proper particularisation and the need to avoid duplicity.

37 Walsh v Tattersall is a case where the situation perhaps equates more readily to the present matter. There an employee was charged under s 120(1)(a) of the Workers’ Rehabilitation Compensation Act 1986 (SA) with obtaining by dishonest means “payments or benefits” made under the Act. Section 120(1) of the Act provided:

“A person who
(a) obtains by dishonest means any payment or other benefit under this Act…is guilty of an offence…”

38 The relevant count related to payments made to the employee between October 1992 and October 1993. A majority of the High Court held that the conviction on the count should be quashed. Gaudron and Gummow JJ did so on the ground that the employee was not charged with any offence created by s 20(1) of the relevant legislation because the section displayed an intention to create a discrete offence upon the receipt of any one payment or benefit. It was held that s 26 of the Acts Interpretation Act 1915 (SA) did not apply to the section.

39 Kirby J, however, preferred to quash the conviction on the grounds that the count was bad for duplicity. It was his view that the purpose of s 120 was to create a separate offence for each payment or benefit. Save for exceptional cases of continuing offences so closely related that they amounted to one activity, separate offences in his Honour’s view, should be the subject of separate charges.

40 Mr Boulten SC repeated the argument he had put last year in relation to the original indictment, albeit with some different emphasis. The argument can be summarised succinctly: It is necessary, he said, for the prosecutor to prove that, at the time of the act constituting the offence (in relation to new counts 2, 3 and 4), the accused had a concurrent intention to prepare for a terrorist act. Because of the definition of “terrorist act” applicable to this trial, it is necessary however for the prosecution to prove that at the relevant time the accused intended to prepare for a particular terrorist act (my emphasis). Mr Boulten argues that this conclusion derives from the plain meaning of ss 101.4, 101.5 and 101(6) which makes reference to a particular terrorist act by employing the definite article “the” in sub-s (3) and (2) respectively. Senior counsel argued that this conclusion is further supported by the language of s 100.4. In sub-s 1 of the 100.4, the emphasis is placed on the requirements of a particular act, as demonstrated by the repeated use of the definite article “the” in both sub-ss (1)(a) and (b). In addition, counts 2, 3 and 4 as presently framed, it was argued, fell foul of this necessity because the concurrent intention to be proved necessarily relates to more than one specific terrorist act. This was especially so in relation to counts 2 and 4.

41 Mr Boulten SC, however, relied upon a number of new arguments to support the conclusion that counts 2, 3 and 4 in the new indictment offended the principles relating to duplicity. First, senior counsel pointed to the proposition that the legislation in question provided for significant inroads into the previously defined area of criminal liability. This, in itself, he argued suggested that a “narrow” approach should be taken to the interpretation of the legislation. Secondly, Mr Boulten SC argued that, had the legislature intended a different result, it would have been open to it to employ a different phraseology. In this context, he referred to the Anti-Terrorism Act 2005 and to the amendments it secured to the legislation. (These I have set out earlier in this decision at paras (14) to (17) inclusive).

42 The next argument relied upon by Mr Boulten was a complicated one. It required an examination of the progressive development of the terrorism legislation, particularly in its constitutional aspects. The nub of the argument, as I understood it, was this: the legislation had progressively been amended to bring about a situation where it extended to terrorist acts, which were State related, as well as Commonwealth linked. This has been achieved by way of the referral of powers from each State and Territory to the Commonwealth. Notwithstanding that the constitutional situation is now covered by the legislation in this regard, it would yet remain possible for a particular State or Territory to withdraw from the present arrangement. Were this to happen, it would be necessary, in an indictment charging an accused person with an offence against the legislation, to specify precisely the nature of the terrorist act. Unless this degree of specificity were present, it would be simply impossible to determine whether the Commonwealth would be properly exercising jurisdiction. It was submitted that these considerations lend support to the proposition that, in any event, there needed to be greater specification of the terrorist act which is being prepared for or which is connected with the thing or document which is possessed, made or collected by an accused than is currently specified, for example, in counts 2, 3 and 4. Mr Boulten submitted that there needed to be at least some degree of precision in the identification of the terrorist act.

43 In this regard, senior counsel argued that counts 2, 3 and 4 failed to particularise with any level of specificity the terrorist act in which the applicant allegedly engaged. Instead, he asserted, that each count contained multiple acts. In particular, counts 2 and 4 referred to three different acts, namely the “causing death or serious physical harm to other persons unknown or causing serious damage to property unknown”. In relation to count 3, the use of the expression “one or the other of” did not remove a latent duplicity, namely that there were three military or naval institutions involved as the possible location for a terrorist act.

44 Fourthly, Mr Boulten argued that, on the proper construction of the expression “terrorist act” in the legislation, it was plain that there would be three separate and distinct offences created when the terrorist act was to result either in the death of a person, serious harm to a person or serious damage to property. Senior counsel submitted that the test for determining whether a single enactment might create more than one offence was as stated, for example, in Manwaring (1983) 2 NSWLR at 88 per Miles J (with whom Street CJ agreed). It was also conveniently stated in Romeyko v Samuels (1972) 2 SASR 529 at 552 per Bray CJ:

“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 possess 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.”

45 In support of this argument Mr Boulten referred to the possible different level of culpability involved in a “terrorist offence” depending upon whether the envisaged result was the death of a person at the one extreme; or damage to property at the other. Secondly, he pointed out that in a prosecution for an offence, for example, under s 101.5, the Crown must prove that the contemplated action did not fall within sub-s 101.1(3). He pointed out that action which is merely “advocacy, protest, dissent or industrial action” and which merely caused property damage fell under sub-s 3. Therefore, he argued the nature of the result intended could not be simply viewed as a characteristic of the offence. Instead, the intended result went to the heart of the elements the Crown is required to prove. For each of these reasons – different levels of culpability and the construction of the statute itself - Mr Boulten argued that the terrorism legislation creates distinct offences depending on the nature of the harm envisaged as a result of the alleged terrorist act. Therefore, he maintained, the inclusion of multiple alternatives, especially in counts 2 and 4, meant that these were bad for duplicity and, in the absence of election, should be quashed.

Count 4 – bad for duplicity?

46 The next argument focussed on count 4. In relation to this charge, Mr Boulten SC argued that it was duplicitous for other reasons. These related to the presence of the words “preparation for, engagement of a person in, or assistance in a terrorist act”. Mr Boulten argued that s 101.4 provided for three ways in which an offence could be committed. The first related to the commission of the principal offence. The second involved the procuring of the principal offence. Thirdly, “assistance in” was akin to aiding or abetting (s 11.2(1) Criminal Code). In this regard he referred to the recent decision of Johnson J in DDP v Belani (2005) NSWSC 1013 at (48). In that case Johnson J had held that the words “organise, promote, take part in” in s 40(1) Road Transport (Safety and Management) Act 1999 created three separate offences.

47 Mr Boulten submitted that because the indictment failed to specify whether the applicant’s actions were connected with the preparation for or the engagement of a person in, or assistance in a terrorist act, count 4 was bad for duplicity.

48 The final argument in this regard was raised as an alternative to the submissions in relation to duplicity. Mr Boulten SC argued that, even if the counts were not duplicitous, the Crown should nevertheless be required to plead alternatives in separate counts. Senior counsel accused the Crown of wording the indictment in as vague a way as possible in the hope that, out of several ambiguities, one would ultimately be found to fit the evidence after it had all been taken.

Failure to specify all the essential factual elements

49 Mr Boulten SC then turned to a separate argument. This was that each information must identify all essential factual elements of the actual offence. (John L Pty Limited v A.G. (NSW) (1987) 163 CLR 508, 520; Ex Parte Lovell re Buckley (1938) 38 SR (NSW) 153 at 173 per Jordan CJ). Relevantly, he referred to the purposes of this requirement as stated in R v Janceski (2005) NSWCCA 281 at (52) – (53) per Spigelman CJ:

(i) informing the court of the precise identity of the offence with which it is required to deal (John L Pty Ltd at 519)
(ii) providing the accused with the substance of the charge, which he or she is called upon to meet, including identification of the essential factual ingredients (John L at 519)
(iii) enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law (S v R (1989 168 CLR 266 at 284, 285)
(iv) (not relevant for present purposes)
(v) to invest the trial court with jurisdiction to hear and determine to prosecution (John L at 519).

50 These requirements apply equally to indictments as they do to informations and summary proceedings (R v Mai (1991) 26 NSWLR 371, 377-378 per Hunt CJ at CL, Enderby and Allen JJ agreeing). See, however, ss 11, 12 and 16 of the Criminal Procedure Act 1986.

51 In relation to this ground of attack, Mr Boulten SC repeated his submissions that the definition of “terrorist act” in the Code covered a multitude of acts. Moreover, he repeated submissions made in December 2005 that such acts might cover a variety of intentions. Senior counsel argued further that the necessary “mens rea” was not simply limited to the execution of the act, but extended to the motivation behind the act. He referred to s 100.1(c) of the Criminal Code and argued that this was so because an act could only constitute a terrorist act where the action was done with the intention of either coercing or influencing by intimidation the government of the Commonwealth or a State; or with the intention of intimidating the public or a section of the public.

52 For this reason, it was submitted, it was insufficient for the Crown simply to prove the intention to commit an act, which, in common parlance, might be thought of as a terrorist act. The indictment wholly failed to specify the purpose for which it is alleged the accused prepared the act. As a consequence, Mr Boulten argued that the court was not informed of the precise nature of the case alleged by the Crown. Certainly the accused was not in a position to know why he was said to have intended to commit such an act.

53 A final submission was made under this heading. This was that there was a further failure to specify a essential factual element. This was the necessary factual element to be found in s 100.1(b), namely that “the action is done or the threat is made ”with” the intention of advancing a political, religious or ideological cause”. Again, it was submitted, the indictment was silent as to this matter; and that this posed problems for the court, the accused and generally for the assessment of the relevance of evidence to be tendered during the trial.

Failure to supply particulars

54 The final matter relied upon by Mr Boulten SC was argued as an alternative. It was said that, if the indictment properly pleaded all essential factual elements and did not violate the rules against duplicity, nevertheless it could not be said that the accused would be adequately aware of the nature of the case against him. This situation could only be cured by the court ordering the Crown to provide further and better particulars (Johnson v Miller at 490 per Dixon J).

Submissions on behalf of the Crown

55 In general terms, Mr Maidment SC, who appeared with Mr Bellew for the Crown, relied upon the general position taken during the duplicity arguments in late 2005. This was to submit, first, that the Crown did not concede that, in relation to the new counts, it would be duplicitous to allege that the physical element of conduct was committed in relation to a document that was “connected with” more than one terrorist act (counts 1, 3 and 4); or in relation to information that was sought in preparation for more than one terrorist act (count 2). It was submitted that the physical element of conduct in each count was respectively the action of “collecting” (count 1), “doing” (count 2), “making” (count 3) and “possessing” (count 4). In each count, it was plainly a single act that was particularised and relied upon. The physical element of conduct in each count was to be regarded as equivalent to the actus reus of other statutory or common law offences for the purpose of considering whether or not a particular charge is or is not duplicitous.

56 Notwithstanding this argument, the Crown remained content to proceed on the basis that each count in the indictment did not allege more than one relevant terrorist act. The Crown therefore put its case on the basis that each count alleged one (but not more than one) of two or more possible terrorist acts of the kind particularised. Accordingly, the Crown submitted that it could not be said that any count alleged more than one offence, even on the argument advanced by the defence.

57 Secondly, the Crown, carefully and helpfully, analysed the “physical” and “fault” elements of each of the offences under s 101.4, 101.5 and 101.6 of the Criminal Code. In this regard, the Court’s attention was drawn to a precise examination of the fault elements contained in Division 5 of Part 2.2 of the Code. As a consequence of this analysis, the Crown submitted that it was not required to prove, as an essential element of any of the offences, that the accused had a concurrent intention to carry out a terrorist act whether specific or general.

58 Thirdly, the Crown said that it had not received any request for further and better particulars from the defence other than in relation to one specific matter in the indictment. The Crown said that, had it been asked to provide further and better particulars, it would have done so to the best of its ability.

59 Fourthly, the Crown said that, having heard the arguments advanced by Mr Boulten SC, it would be prepared, subject to the court’s leave, to redraw the indictment in certain respects. The Crown adopted this approach without making any concessions as to the correctness of Mr Boulten’s arguments. It did so, however, in a practical desire to meet at least some of the complaints that had been made during the hearing of the motion.

60 The suggested amendments were these:

(i) Count 2 would read as follows: -

“On or about 10 October 2003 at Sydney in the State of New South Wales, did an act namely sought information concerning the availability of materials capable of being used for the manufacture of explosives, in preparation for a terrorist act, namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown by the detonation of an explosive or incendiary device or devices .”

(ii) Count 4 would read as follows: -

“On or about 26 October 2003 at Sydney in the State of New South Wales, possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for a terrorist act namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown by the detonation of an explosive or incendiary device or devices or by the use of a poison or poisons , knowing the said connection”.

61 Generally, the Crown submitted that the legislative provisions were unambiguous and that the criminal liability for which the Crown contends in respect of each count was plainly established by the terms of the provisions without any need for the court to be concerned about extending the scope of criminal liability beyond that permitted by the wording of the respective sections. The Crown submitted that the clear intention of Parliament in introducing the legislation was to render criminally liable those who involve themselves in, inter alia, preparing for the commission of acts of destruction. The effectiveness of the legislation should not be reduced by reading down either the definition of a “terrorist act” or the provisions of s 101.6 to include particulars specified acts. This is particularly so bearing in mind that the sections in question are directed to the act of “preparing for or planning” a terrorist act. It was the clear intention of the legislature to render such preparation or planning an offence, a fact, which was inconsistent with the construction advanced on behalf of the accused.

62 The Crown also made reference to the proposition that, wherever possible, the statute should be given a construction that promotes its purpose (Eastman v DPP (2003) 214 CLR 318 per McHugh J at (22); Cook v Benson (2003) 214 CLR 370 per Kirby J at (61)). The Crown also relied on the provisions of s 15AA of the Acts Interpretation Act, which required, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act.

63 In all other respects the Crown took issue with the arguments advanced on behalf of the accused by Mr Boulten SC.

Resolution of the issues

Duplicity – Construction of the statute

64 I have given consideration to the arguments originally advanced by Mr Boulten SC on behalf of the accused. I have re-examined those considerations in the light of the further submission he has made on behalf of his client. Mr Boulten’s first argument, it will be recalled, was essentially an argument based on the difference between the definite and indefinite article in its statutory context. He sought to support this argument by reference to the Anti-Terrorism Act 2005.

65 Although there are differences between s 101.4, 101.5 and 101.6, there are clear similarities. I shall confine myself, in examining the statutory language, to those parts of the provisions that are relevant to the present charges. Relevantly, each provides for the commission of an offence if an act is done. Under s 101.4, the act is the possession of a thing namely, in this case, a document. The act must be “connected with preparation for a terrorist act”. The person charged must know of the connection. Under s 101.5 the act is the “collection of a document”. The act must be “connected with the preparation for a terrorist act”. The person charged must know of the connection. Under 101.6, the offence is committed where the accused “does any act in preparation for a terrorist act”.

66 In the case of each offence, the legislation provides, as I have noted earlier, “a person commits an offence…even if the terrorist act does not occur” (my emphasis).

67 I remain of the opinion that the use of the definite article in ss 101.4(3), 101.5(3) and 101.6(2) is a reference to the phrase “a terrorist act” in the earlier sub-sections. I remain of the view that there is no ambiguity involved in that regard at all. Nor am I persuaded that the appearance of the definite article in s 100.4 carries with it the meaning attributed by senior counsel for the accused. Generally, the definite article in s 100.4 performs the same function I have identified, namely a function of linking back to the phrases “a terrorist act” or “terrorist acts” in the section. Thirdly, I remain of the view that a reading of the definition of terrorist act (s 100(1), (2), (3) and (4)), in the light of an examination of the scope and the extent of the division generally, supports this construction. This is so, with one exception, for the reasons I gave in my original decision. I shall come to that exception later in these reasons.

68 The general framework of Part 5.3 of Ch 5 of the Code supports the conclusion I have reached in the following way: the type of action that is made criminal in terms of the division ranges from actually engaging in a terrorist act (s 101.1) down to an act that is altogether preliminary to that engagement: for example, receiving training connected with preparation for a terrorist act (s 101.2(1) and (2)); possessing a thing connected with preparation for the engagement of a person in, or assistance, in a terrorist act (s 101.4(1) and (2)); possessing a thing connected with preparation for the engagements of a person in, or assistance in, a terrorist act (s 101.4(1) and (2)); collecting or making a document connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act (s 101.5(1) and (2)); and doing an act in preparation for or planning a terrorist act (s 101.6).

69 The wide range of activities made significantly criminal is itself postulated on the possibility that the criminal offence will or may occur long before any terrorist act itself is carried out. Indeed, apart from the offence of engaging in a terrorist act, each of ss 101.2, 101.4, 101.5 and 101.6 makes it clear that the offence is committed even if “the terrorist act does not occur”. (As I have already concluded, this is a reference to the phrase “a terrorist act” where relevantly appearing in relation to each section creating the offence). Against this background it would be expected, as a matter of logic and commonsense, that the definition of “terrorist act”, would fit in with the concepts revealed by the type of activities that might be expected to be quite preliminary to but connected with the preparation for a terrorist act. As I said in my earlier decision it would, as a matter of logic and commonsense, hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite.

70 What then there does the definition of terrorist act do and how does it fit into the legislative framework I have identified?

71 I have earlier set out the text of the definition of “terrorist act”. First, the Crown must prove that “an action or threat of action” (relevantly for the present offences a contemplated action) is to be done with the intention of advancing a political, religious or ideological cause. Pausing there, it is appropriate to make two observations. The first is that this may not necessarily be the intention of the person charged with the preliminary action connected with the preparation for a terrorist act. I shall return to this concept later. The second is to observe that the intention to be proved relates to the character of the terrorist act intended to be carried out. Of course, it may also be the intention of the accused and, in fact, the intention of those who are proposing to carry out the act of terrorism. The cause may well be political, religious and ideological but the section requires that it be at least one of these.

72 Secondly, the Crown must prove the action is done with the intention of coercing, or influencing by intimidation, the nominated governments; or it must be done with the intention of “intimidating the public or a section of the public”. Again, the expression “the action” in 100.1(c) is clearly a reference to the phrase “an action or threat of action” where appearing in the first line of the definition.

73 Thirdly, sub-s (2) of 100.1 lists the characteristics of “an action or threat of action”. Again, the Crown must prove this element beyond reasonable doubt. The matters that fall within the sub-section are of the broadest possible kind. “Action” falls within the sub-section, for example, if it causes serious harm (physical harm) to a person; or causes serious damage to a property. “action” falls with the sub-section if it causes a person’s death; or endangers a person’s life; or creates a serious risk to the health or safety of the public or a section of the public; or seriously interferes with, seriously disrupts “or destroys an electronic system”. The systems enumerated include but are not limited to the widest possible range of public utilities and government services.

74 Finally, the Crown must prove that “the action” (again a reference to “an action or threat of action”) does not fall within s 3. Again this is an element that must be proved beyond reasonable doubt.

75 So it will be seen that the definition of “terrorist act” postulates an action or threat of action of the widest possible kind. Relevantly, for the trial of the present accused, the alleged “possession” and “collection”, must be shown to have been “connected with” the preparation for a terrorist act; in the case of s 101.6 “the doing of an act” must be “in preparation” for a terrorist act.

76 The width of the definition of “terrorist act” supports the notion that the Crown will prove this element of the case beyond reasonable doubt (or perhaps more accurately this aspect of the relevant element) if it establishes any one of the characteristics of the contemplated action as is specified in s 100.1(2). The nature of the action, however, may make it quite plain that it possesses a number of the characteristics that are enumerated in the sub-section. For example, if the contemplated action relates to the explosion of a large bomb during working hours in a city building, it may well establish characteristics that include physical harm to a significant number of people; serious damage to a building and the death of a number of people and the endangering of many peoples’ lives. Depending on the nature of the building and its function in the government or state system, it may well be that it will also possess the characteristic of seriously interfering with the systems referred to in 100.1(2)(f). On the other hand, by way of example, the intended action may be the administration of poison to but one person. In my opinion, however, the Crown would be obliged to prove beyond reasonable doubt that the intended action possessed at least one of the characteristics mentioned in the sub-section. If, however, it possessed more than one of those characteristics, it does not seem to me that more than one offence is created.

Duplicity – physical and fault elements in the offences

77 I turn now to examine the elements of one of the offences charged with a view to testing the submissions made on behalf of the accused by reference to physical elements and fault elements in the offence. This examination reveals in a fundamental way an important flaw in the arguments advanced on behalf of the accused.

78 I will not examine each of the offences in detail. I will confine the detailed analysis to the offence created in s 101.4.

79 The Criminal Code stipulates that an offence consists of physical elements and fault elements. (s 3.1(1)). This may yield, however, in the case of a particular offence. In addition, the law that creates the offence may provide different fault elements for different physical elements. Leaving aside those qualifications, the physical elements of an offence may be:

(a) conduct; or
(b) a result of conduct; or
(c) a circumstances in which conduct, or a result of conduct, occurs. (s 4.1)

80 In order for a person to be found guilty of committing an offence the following must be proved:

(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element. (s 3.2)

81 Count 4 in the indictment alleges that on about 26 October 2003 the accused possessed a thing namely a document containing certain information (s 101.4). This is the first physical element in the charge. Section 5.1 stipulates that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Consequently, the fault element in relation to the physical element of possession of the document is intention to possess the document. The Crown must prove the physical element and the fault element beyond reasonable doubt.

82 The “possession” of the document is alleged, by count 4, to be connected with preparation for a terrorist act. (In making this analysis I am acting on the assumption that the indictment will be amended as the Crown indicated in its written submission). Plainly, the second physical element relates to a circumstance in which conduct occurs (s 4.1). The fault element (that is, the mental element) is specifically stated in s 101.4. The accused, in possessing the document must know of the connection between the document and the preparation for a terrorist act. Section 5(3) provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. The Crown will be obliged to prove the circumstances and the awareness of the accused in relation to those circumstances to prove both the physical and fault element beyond reasonable doubt.

83 This analysis enables me to say that, in the case of an alleged offence against s 101.4, it is not necessary for the Crown to prove that, at the relevant time, the accused himself intended to prepare for either a particular or general terrorist act. Of course, the Crown may prove that state of mind and, in the general course of things, if such a state of mind were shown to have existed at the relevant time, this would demonstrate awareness on the part of the accused so as to satisfy s 5.3. But the point is that the Crown does not have to prove the existence of a concurrent intention on behalf of the accused to carry out or be involved in, for example, the bombing contemplated by the information contained in the document alleged to have been in his possession. The only potential exception to this position arises in relation to the provisions of s 101.4(5). Where the defendant meets the evidential burden contained in this sub-section, the Crown will carry the legal burden to negative beyond reasonable doubt the matter of intention mentioned in the relevant sub-sections (s 13.3(3) and (6)). This is not an ingredient of the offence and need not be set out in the indictment (s 13.3(3)). A similar situation arises in relation to an offence under s 101.5 (see s 101.5(5) of the Code).

84 In addition, it seems to me, it is not necessary that the terrorist act be capable of identification in terms of its ultimate target. I gave a number of illustrations in my previous decision and I refer again here to those illustrations. I should make it clear at this point that I now believe that I was in error in relation to one matter discussed in my previous decision. This is the exception to which I made reference earlier in these reasons. At the end of paragraph 52 in that decision I said:

“The requisite intention to satisfy the existence of the mental ingredient of the offence must be an intention that the act is done in preparation for an action or threat of action possessing these characteristics.”

Again at paragraph 55 I said:

“The necessary mens rea is the intention that action is intended to be carried out which possesses the characteristics of causing serious physical harm to a person, in causing a person’s death or causing serious damage to property (or for that matter any of the other characteristics set our in sub-s (2)”.

85 These statements were, for the reasons I have set out above, not accurate. The mental elements in an offence under s 101.4 (the fault elements) are as I have indicated in this decision. The examples given in my earlier decision nevertheless remain illustrative of the fact that an offence may be committed even where the ultimate target has not been finally determined or is, at least, not known to the person who has done the act of collecting or making a document or possessing a document in preparation for a terrorist act.

86 There is no need for me to conduct the same type of analysis in relation to the other sections. It is identical in the case of s 101.5. It is however necessary to note that, in relation to s 101.6, there is no fault element specified. It appears that the fault element for the conduct involved in “doing any act” under this section would be intention; and the fault element in relation to the second physical element would be recklessness (s 5.6). These propositions in relation to s 101.6, however, have not been fully argued before me and the views I have expressed are preliminary only at this stage.

87 This analysis enables me to make one further comment about the arguments advanced on behalf of the accused. It will be recalled that, in relation to the argument regarding the alleged failure to state all necessary factual elements of the offence, Mr Boulten referred to the necessary mental element to be proved by the Crown and, as well, to the need to prove the motivation behind the act. In this regard, Mr Boulten made reference to s 100(1)(c) of the Criminal Code. Although this submission did not arise in relation to the duplicity argument, it is perhaps convenient if I deal with it at this stage.

88 In my opinion, it is not an ingredient of the offence, for example, under s 101.4 that the Crown must prove beyond reasonable doubt that, at the time of the possession of the document by the accused, he had an intention of advancing a political religious or ideological cause. Similarly, I do not accept that the Crown must prove that the accused, at the relevant time, had the intention of coercing or influencing by intimidation the Commonwealth or State Governments; or that he had the intention of intimidating the public or a section of the public. Of course, it would be open to the Crown to prove that the accused had these intentions and, if it were to do so, this would provide evidence of the fault element in relation to the connection between the possession of the document and preparation for a terrorist act (or, at least, it might tend to do so). But the relevant fault element, it must be stressed, in relation to this particular offence and the circumstances of the connection between possession and preparation for a terrorist act is “awareness” of the connection. For example, it might, in a particular case be the situation that an accused person who has been shown to have possession of a document had no personal interest in the carrying out of the terrorist act contemplated by the information in the document. He might, for example, simply be a paid mercenary. He might simply be doing a favour for a friend or repaying a debt. As I see it, it is not necessary for the accused to have any of the intentions mentioned in 100.1(b) and (c). The accused’s motivation is not an essential ingredient of the offences in the indictment.

89 I turn now to deal finally with the various aspects of the duplicity argument. In relation to count 2, I will assume for the purpose of disposing of the argument that further amendment is permitted as foreshadowed by the Crown in its argument. I do not consider that count 2 (as it is to be amended) charges the accused with more than one offence. In my view, the proper construction of ss 101.6 and 100.1(1), (2), and (3) does not create more than one offence where a terrorist act, referred to in the indictment, possesses more than one of the characteristics mentioned in sub-s 2. For this reason, the wording of the second count in the indictment, in its amended form, charges, as I have said, only one offence and not more than one. This ruling however does not entail any adverse finding on my part in relation to the unamended form of count 2.

90 In relation to counts 1 and 3, I am satisfied that each of these charges one offence only. In relation to count 4, it may be that there was some substance in the argument concerning the words in s 101(4) “connected with preparation for, the engagement of a person in, or assistance in a terrorist act”. It is not necessary for me to make a decision in that regard. In relation to count 4 in its amended form, I am satisfied, essentially for the reasons I have given, that it charges one offence only and not more than one.

91 In reaching these conclusions, I have, I have had regard to the arguments advanced by Mr Boulton SC that might be described as the “referral” argument and the “nature of harm” argument. Neither of these arguments displaces, in my view, the clear interpretation that is to be given to the legislation.

92 As to the “referral” argument, a number of points may be made. First, it is an argument, despite its ingenuity, that leads nowhere in either a theoretical or practical sense. Constitutionally, it is obvious that it leads nowhere. This because, as I understand it, there has been a general referral of power to the Commonwealth so that the point does not arise constitutionally. At a practical level, it may still be necessary for a “terrorist act” to be particularised. It was so particularised for example in R v Ul-Haque (unreported) Bell J 8 February 2006 at para 17. The fact that a particular terrorist act may be very specifically described in one case but very generally in another does not, to my mind, create any particular problem. The precise target for a bombing in a city centre may not be known and therefore, not able to be specifically identified in providing particulars. Provided the “action or threat of action” has one at least of the characteristics in s 100.1(2) that will be a sufficient starting point for the proof of the Crown case. As I have said earlier, it may well be that a particular act possesses a number of the characteristics set out in sub-s 2 of s 100.1. This will not create separate offences nor will it create a duplicity problem.

93 It is clear enough that, in some cases, the fact the Crown is not able to identify with precision the ultimate target for a bombing attack may have consequences for the strength of the Crown case to be proved. This will not, however, be necessarily so. It will very much depend on the evidence. Even in a case where the ultimate target is unknown, the evidence may powerfully establish the other ingredients including the necessary fault elements.

94 In any event, assuming the hypothetical situation contended for by Mr Boulten SC, namely the withdrawal of a State or Territory from referral arrangements with the Commonwealth, the possibility of invalidity on a constitutional basis, even if it be assumed to exist, does not in my view bear upon the duplicity argument. This is so essentially because of the plain and unambiguous construction of the sections I have identified. It needs to be said as well that the construction advanced by Mr Boulten SC does not , at least in my opinion, adequately promote the purpose of the legislation.

95 In relation to the “nature of harm” argument, I have not found this of significance in relation to either the construction of the legislation or the argument related to duplicity. It goes without saying that, in a particular case, the nature of the terrorist act is likely to have a bearing on the assessment of culpability and therefore will have an impact on the sentencing procedure where an accused has been convicted. This is to say no more than that the sentencing court will need to make factual findings consistently with the jury’s verdict, in relation to the nature of, inter alia, the terrorist act. Such a consideration might have, in an appropriate case, a capacity to bear on the question as to whether the statute creates one offence or more than one offence. In my view, for the reasons I have earlier outlined, here the section creates only one offence. That conclusion is supported by the fact, to use the terminology of Bray CJ in Romeyko at 552, the act under consideration “possesses one or several of such characteristics”. The fact that a sentencing court will have to make a determination about the characteristic or characteristics that apply, as part of the sentencing procedure, does not in this instance alter the construction conclusion.

96 The second string to Mr Boulten SC’s bow in relation to this argument centred upon the definition of terrorist act, at least so far as damage to property was concerned. He argued that, having regard to sub-s 3 of s 100.1, the nature of the result intended could not be simply viewed as a characteristic of the offence. As a matter of construction of s 100.1, however, this conclusion is, in my view, too broadly stated. Let me take an example: recently two young men were charged with a criminal offence for painting protest slogans on an external sail of the Sydney Opera House. Arguably this was an action that caused serious damage to the property, namely the Opera House. It was, however, plainly enough “advocacy, protest, and dissent”. It was also action that was not intended to cause physical harm to a person, or to cause death or to endanger the life of a person other than the person taking the action. It was not intended to create a serious risk to the health or safety of the public or a section of the public (s 100.1(3)).

97 Accordingly, the action of the two young men would have been unlikely to have sustained a conviction under s 101 (“a person commits an offence if the person engages in a terrorist act”). This type of action, as Mr Boulten argued, would have fallen under sub-s(3). I agree with that statement but I do not see that it permits the distinction that Mr Boulten then sought to draw. As I have said, he argued that the nature of the result intended cannot be simply viewed as a characteristic of the offence but, to the contrary, the intended result goes to the heart of the elements the Crown is required to prove.

98 I repeat that the proper construction of “terrorist act” is this: a terrorist act is an action that is done (or a threat of action that is made) with each of the intentions specified in sub-paragraphs (b) and (c). The action must possess one or more of the features specified in sub-s (2) provided that it does not have the features specified in sub-s (3). The latter excludes advocacy, protest, dissent or industrial action that is not intended to cause the consequences detailed in the sub-section. The breadth of the definition is such that advocacy, protest, dissent or industrial action may be action that falls within sub-s (2), and be capable of founding a terrorist act, if it is not unaccompanied by the intentions specified in sub-s 3(b)(i), (ii), (iii) and (iv).

99 It follows that, on its proper construction, the legislation makes it a criminal offence for a person to do an act in preparation for an act to be carried out that will cause serious damage to property provided that the action is to be done with the intentions specified in s 100.1(1)(b) and (c) and provided it does not fall within sub-s (3). But a distinction needs to be made as to the characteristics of the action in sub-s 2 and the matters in sub-s 3. The latter is concerned with advocacy, protest etc not intended (my emphasis) to cause the nominated consequences. The former is concerned with the nature of the contemplated action itself. It is a fine distinction perhaps but, nevertheless, a real one. In my view, it prevents Mr Boulten’s argument from leading to the conclusion he urged.

The 2005 amendments

100 The present arguments touched upon, albeit briefly, the 2005 legislation. Mr Boulten SC, it will be recalled, suggested that this legislation was an indicator that the 2003 legislation was concerned with the “specific terrorist acts”. The Crown on the other hand, in its written submissions, argued that the Explanatory Memorandum to the 2005 Act was material to which, having regard to the provisions of s 15AB of the Acts Interruption Act, the Court could have regard. This made it clear, according to the Crown’s submission, that the amendments contained in the 2005 Act simply clarified the existing provisions and did not expand the ambit of the criminal offences, which had already been created. The terms of the Memorandum made it clear that it was never the intention of the legislature to require the prosecution to identify a particular terrorist act.

101 This was a matter that I examined between paras 59 and 66 of my decision of 23 December 2005. I will not repeat the detail of those paragraphs in this decision. Rather, I will treat them as incorporated in the present decision . I remain of the view that the sections I have examined, especially the definition of “terrorist act”, are unambiguous. I do not consider however, that they should be interpreted in the manner argued for by Mr Boulten SC. For that reason, although I am fully aware of the debate in Parliament and the contents of the Explanatory Memorandum, I do not propose to take those matters into account.

The alleged failure to state the necessary elements

102 Mr Boulten argued that counts 1 to 4 should be quashed for failure to state all necessary elements. There is no dispute between senior counsel for the accused and the Crown that the principles are those stated as I have indicated when detailing Mr Boulten’s arguments. The Crown accepts these principles but has argued that the amended form of the new indictment does not fail to state all necessary factual elements.

103 In my opinion, the Crown’s submissions are correct on this point. First, the indictment pleads each offence in the terms of the statute. The amended indictment will provide particulars in relation to counts 2 and 4 of the general nature of the terrorist act. Counts 1 and 3 each provided particulars of the alleged terrorist act. Secondly, I do not accept that it is an essential factual element of any of the charges that the accused’s purpose or motive in allegedly preparing for the terrorist act must be demonstrated. I have touched upon this earlier in these reasons and there is no need for me to repeat in detail the matters I mentioned earlier. Put simply, I do not accept that each of the intentions mentioned in s 100.1(b) and (c) have to be demonstrated as intentions held by the accused. Indeed, in relation to offences under ss 101.4 and 101.5, the accused’s “collection”, “making” or “possession” of a document must be “in connection” with preparation for a terrorist act and he or she must know of the connection. Thirdly, the precise fault elements are those I have identified in relation to each offence at an earlier point in these reasons.

Should the Crown be ordered to further particularise the allegations?

104 At the moment I do not see that there is any need for the Court to take an active part in this issue. It may be that when the amended indictment is considered by the defence, there will be or may arise a need for further particulars. This is something that should be managed between the parties in the co-operative manner that so far has characterised the hearing of pre-trial issues. The parties are to be encouraged to resolve the issue of any outstanding particulars between themselves.

105 Should a difficulty arise, the Court may be asked to intervene at that stage.

106 I dismiss the Motion made on behalf of the accused.

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