R v Lodhi

[2005] NSWSC 1377

CITATION:	Regina v Lodhi [2005] NSWSC 1377
HEARING DATE(S):	15/12/05
JUDGMENT DATE :	23 December 2005
JUDGMENT OF:	Whealy J at 1
DECISION:	Notice of Motion adjourned until 31 Januaury 2006 so that the parties may consider their positions.

CATCHWORDS:	Criminal Law: Criminal Code Act (Cth) - Terrorism offences - indictment - duplicity
LEGISLATION CITED:	ss 101.5 and 101.6 Criminal Code Act (Cth) Acts Interpretation Act 1915 (SA) Criminal Code Amendment (Terrorism) Act 2003 (No 40/2003)
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) 188 CLR 77 Sunworld Inc Registrar, Plant Variety Rights & Anor (11997) 148 ALR 447 at 459 per French J Allina v Federal Commissioner of Taxation (1991) 99 ALR 295 Re MacManaway (1951) AC 161 at 176 Interlego v Croner Trading 111 ALR 577 at 611-612 per Gummow J Krakauer v R (1998) 194 CLR 202 at 223 per McHugh J Ex Parte Fitzgerald re Gordon (1945) 45 SRNSW 181 at 186 Meller v Lowe (2000) 48 NSWLR 517 at 519
PARTIES:	Regina v Faheem Kahlid 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 - Accused

LOWER COURT JURISDICTION:

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

WHEALY J

FRIDAY 23 December 2005

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - (On Notice of Motion re Indictment)

1 HIS HONOUR: This is the hearing of a motion brought on behalf of Faheem Lodhi (the accused). The accused has pleaded not guilty to an indictment alleging the commission, inter alia, of the following offences: -

(i) Collecting a document connected to the preparation of a terrorist act (Count 1);
(ii) Making a document connected to the preparation of a terrorist act (count 2);
(iii) Doing an act in preparation for a terrorist act (Counts 3 and 4)”.

2 At the hearing of the motion, Mr Boulten of senior counsel for the accused argued that counts 2, 3 and 4 contain overt duplicities and should be quashed if the prosecutor does not elect to narrow the scope of the charges in each instant.

Terrorism offences under the Criminal Code

3 It is necessary at the outset to identify the relevant sections of the Criminal Code dealing with terrorism offences. These are contained in Part 5.3 of the Code.

4 Counts 1 and 2 of the indictment allege offences against s 101.5 (1) of the Code. This is in the following terms: -

“101.5
(1) 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).”

5 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.

6 Sub-section 5 of 101.5 provides that ss 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.

7 Counts 3 and 4 allege offences against s 101.6 of the Code. This, relevantly for the situation of the accused in this matter, provides as follows: -

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

8 “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.

9 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.”

10 It may be convenient at this point to refer to the fact that in somewhat controversial circumstances the Federal Parliament has recently enacted amendments to the terrorism legislation. In particular, and relevantly to the submissions made in relation to the present matter, are sub-s 3 of s 101.5 and sub-s 2 of 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.

11 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.”

12 In relation to the offence of doing an act in preparation for a terrorist act, sub-s 2 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

13 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 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.

14 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 Willie 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.

15 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”).

16 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.

17 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.

18 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, particularly 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.

19 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.

20 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

21 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.

22 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 of a terrorist act namely, the bombing of part of the electricity system. There is a specific body of evidence identified in the Crown’s 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 material 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 regarding chemicals, which were capable of being used as ingredients for explosives. Finally the Crown will lead evidence that at the time of the search of the accused’s residential premises police found more than 100 rolls of toilet paper. There will be evidence that the toilet paper, together with some of the chemicals mentioned above, can be used for the production of nitrocellulose, a low explosive commonly used in propellants.

23 In relation to count 2 investigators retrieved certain material, which had been in the possession of the accused. 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 of 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 rely on the general body of evidence, which I have earlier identified.

24 Count 3 in the indictment is in the following terms: -

“In the month of October 2003 at Sydney in the State of New South Wales (the accused) did an act, namely obtaining information concerning the formula for, and availability of, material for explosives and incendiary devices in preparation for a terrorist act, namely the bombing of an Australian Defence establishment or part of the Australian Electrical Supply system.”

25 The Crown intends to rely on the general body of evidence and the particular matters, which I have set out above. That is, the Crown intends to rely upon the same material as is said to support counts 1 and 2.

26 Count 4 of the indictment is in the following terms: -

“Between 5 July 2002 and 22 April 2004 at Sydney in the State of New South Wales, did an act, namely, acquire a large quantity of toilet paper capable of producing nitrocellulose, in preparation for a terrorist act, namely the bombing of an Australian Defence establishment or part of the Australian Electrical Supply system.”

27 Once again, the Crown intends to rely upon the general and particular evidence said to support counts 1 and 2.

Submissions on behalf of the Accused

28 There are two discrete submissions made on behalf of the accused. The first I shall describe as the major submission, the second, which I shall describe as the minor submission, I shall deal with at the conclusion of these reasons.

Duplicity

29 As I indicated at the outset senior counsel for the accused relies upon the well-known 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.

30 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.

31 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.

32 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…”

33 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.

34 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.

35 The argument put by Mr Boulten SC 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 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 s 101.5 and s 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 further 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 particularised act, as demonstrated by the repeated use of the definite article “the” in both sub-ss (1)(a) and (b). Counts 2, 3 and 4 as presently framed, it was argued, fall foul of this necessity because the concurrent intention to be proved relates to more than one specific terrorist act.

Crown submissions

36 I shall state briefly the response of the Crown. First, the Crown argues that the offences do not allege more than one relevant terrorist act. Rather, the counts under challenge allege one terrorist act but particularise one of two possibilities. It was submitted that each count alleges one event, but not more than one. Secondly, the Crown accepts that it is necessary for the Crown to prove that, at the time of the act constituting each event (i.e., making a document and doing an act), the accused had a concurrent intention to prepare for a terrorist act. But the Crown does not necessarily have to prove beyond reasonable doubt one specific terrorist target or indeed that the accused necessarily had knowledge of the ultimate target. The Crown, moreover does not accept the defence arguments based upon the language of the Code nor the inferences as to statutory interpretation raised by the recent amendment to the legislation. In relation to this argument, the Crown relies upon broad principles of statutory interpretation and, in particular, it suggests that the 2005 legislative amendments do no more than clarify that, in a prosecution for a terrorist offence, it is not necessary to identify a particular terrorist act. The Crown also relies on s 23 of the Acts Interpretation Act which provides: -

“In any Act, unless the contrary intention appears:
…
(b) Words in the singular number include the plural, and words in the plural number include the singular.”

37 In the present matter, the Crown submits that the nature of the terrorist act has been properly particularised (eg, bombing of an Australian Defence establishment or part of the Australian Electrical Supply system) but that the Crown in fact relies on one terrorist act only within the definition of s 100 (1) - (3). The Crown argued that it must prove beyond reasonable doubt that the making of the document (count 2) and the doing of the act (counts 3 and 4) were in preparation for a terrorist act. This in turn requires the Crown to prove beyond reasonable doubt that the accused contemplated or intended that the relevant act was done in preparation for action with the characteristics and qualities mentioned in s 100 (1) and (2).

Resolution of the issues

38 I have come to the conclusion, despite the forceful submissions of Mr Boulten SC that the indictment in general terms is not bad for duplicity. There is one qualification, however, to this general conclusion. It relates to a matter I raised in argument with the Crown. I shall dispose of this matter first before detailing my reasons in relation to the duplicity argument generally.

A qualification

39 Count 2 charges that the accused did make a document, namely a set of aerial photographs of Australian Defence establishments, which were connected with the preparation of a terrorist act “namely the bombing of one or more of the establishments”.

40 As I noted earlier, the Crown maintains that this count charges only one terrorist act. Although I may be accused myself of being overly semantic, it does nevertheless seem to me that the phrase “one or more” in its context is capable of being construed in such a way as to lead the reader to conclude that there is a possibility that more than one terrorist act is in contemplation. Construed in that way, the phrase would tend to negate the Crown position and consequently lend support to the defence argument. In those circumstances, without entirely conceding the point, the Crown has indicated that it would be prepared to amend, if leave be given, so as to make it clear that only one offence is alleged in count 2. In other words, the Crown will seek to amend the indictment so as to bring the count into line with counts 3 and 4. For the purposes of stating my general reasons, I will proceed on the assumption that permission is to be given to amend count 2 in the manner outlined by the Crown. Mr Boulten, of course, maintains that, even if amended, count 2 would breach the duplicity principles for the general reasons he argued.

General reasons

41 Mr Boulten’s principal argument was essentially an argument based on the difference between the definite and indefinite article in its statutory context. I am not persuaded however that the argument is correct. Although there are obvious differences between s 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 the first section, the act must be “connected with the preparation for a terrorist act”. The person charged must “know of the connection”. Under the second section, the offence is committed where the accused “does any act in preparation for a terrorist act”.

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

43 In my opinion, the use of the definite article is s 101.5 (3) and s 101.6 (2)is no more than a reference to the phrase “a terrorist act” in the earlier sub-sections. It does not seem to me that any ambiguity is 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 to it by defence counsel. Generally the definite article in s 100.4 performs the same function I have identified, namely linking back to the phrases “a terrorist act” or “terrorist acts”.

44 Secondly, a reading of the definition of “terrorist act” (s 100 (1), (2), (3) and (4)) and an examination of the scope and extent of the division generally lead me to the conclusion that, with due respect, the attack on the indictment should not succeed. Mr Boulten’s general argument on the mental element that the Crown must establish beyond reasonable doubt was expressed in these terms: The Crown must prove not only the actus reus but a concurrent intention to bomb a specific target – there would be “a different mens rea to bomb X than for an intention to bomb Y”, he argued. The general framework of the division and the specific definition of “terrorist act” do not in my opinion, however, support this construction.

45 As to the general framework, 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 engagement 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 (s) 1 and 2).

46 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 make 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 offence).

47 Against this background it would be expected, as a matter of logic and common sense, that the definition of “terrorist act” would fit in with the concepts revealed by the wide range of activities that might be expected to be preliminary to or connected with the preparation for a terrorist act. It would, again as a matter of logic and common sense, hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite.

48 What then does the definition of “terrorist act” do? And how does it fit into the legislative framework I have identified?

49 I have already set out the text of the definition of “terrorist act”. The Crown must prove first that “the action” is done with the intention of advancing a political religious or ideological cause. Secondly, the Crown must prove that 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” is clearly a reference to the phrase “an action of threat of action” where appearing in the first line of the definition. For the purposes of examining the duplicity argument in relation to the indictment, I will assume that the Crown is able to prove each of these matters beyond reasonable doubt in relation to “an action or threat of action”. The phrase contemplates not merely an action that is carried out but one that is contemplated.

50 Sub-section (2) of 100.1 lists the characteristics of “action” which falls within the sub-section. Again, the Crown must prove this 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 property. “Action” falls within the sub-section if it causes a person’s death; or endangers a person’s life, other than the life of the person taking the action. “Action” falls within the sub-section if it creates a serious risk to the health or safety of the public or 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.

51 Finally, the Crown must prove that “the action” (again a reference to “an action or threat of action”) does not fall within s 3. I shall assume for the purposes of the present argument the Crown is able to prove to the requisite standard that the action contemplated as a terrorist act in the indictment may be shown not to fall within the this sub-section.

52 The definition of “terrorist act” postulates an action or threat of action of the widest possible kind. It identifies characteristics of “the action” which, if they are shown to exist beyond reasonable doubt, establish an essential ingredient of the offence. Let me take an example under s 101.6: on the assumption that the Crown is able to prove the other essential elements or ingredients of the offence, and in addition; able to establish the act as being done in preparation for a contemplated action intended by an accused person to have as its characteristics an outcome of causing serious harm to a person or serious damage to property, then it seems to me that the necessary ingredient will have been established beyond reasonable doubt. This will be so even where the person carrying out the preparatory act does not know precisely the nature of the final target. Further, this will be so even if “an action or threat of action” does not take place. In my opinion, an offence will have been committed by a person acting in a preliminary way in preparation for a terrorist act even where no decision has been made finally as to the ultimate target. I cannot accept Mr Boulten’s argument that there needs to be “a different mens rea to bomb position X than to bomb position Y”. On the proper interpretation of the sections I have examined, it seems clear to me that an offence will have been committed provided there is an act done in preparation for an action that has (“falls within”) or contemplates having the characteristics set out in sub-s (2). 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 those characteristics.

53 May I place this rather abstract analysis in a more concrete setting: The Crown argued that a suicide bomber who is apprehended in busy George Street Sydney at peak hour with a bombing apparatus strapped to his back could not avoid a conviction on the basis that he had not, at the time of his apprehension, selected a final target. The Crown said that the fact that the suicide bomber had not determined whether to explode the bomb in a café a shop or on a crowded bus would not prevent his conviction. Mr Boulten countered this argument by suggesting that the example did not take the matter further because the apprehended suicide bomber would be simply guilty of engaging in a terrorist act under s 101.1.

54 Let it be assumed, however, that a second person was apprehended at his home on that very day and was shown to have packed the suicide bomber’s bag with explosives. This person, however, had no idea of the target to be selected by the bomber, even though he knew it was contemplated that the bomb would be exploded somewhere in George Street so as to cause death to nearby bystanders. Could this individual escape liability on the basis that the Crown was unable to establish beyond reasonable doubt that he knew precisely the place in George Street where the bomb was to be exploded? In my opinion such a conclusion would yield an entirely unrealistic approach to the natural construction and meaning of the various section in the division, including the definition of “terrorist act”.

55 Let it be further assumed, by way of further example, that in the particular given situation it was contemplated, to the knowledge of the person who packed the explosives, that the suicide bomber would detonate the device either in the Queen Victoria Building or in Dymocks Book store but that no final decision had been made as to which it would be. Again, could criminal responsibility be avoided by the second person who carried out the act of preparation stating, with appropriate candour, that he simply did not know which of the two places was to be the ultimate target? Again, in my respectful opinion, the answer to that question must be “No”. This is so essentially for the same reasons I have earlier identified. The actus reus is the packing of the bag with explosives. The necessary “mens rea” is the intention that an 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 out in sub-s (2)). This mental element is necessarily present even if a terrorist act does not occur and it exists even where the ultimate target has not been finally determined or is, at least, not known to the person who has done an act in preparation for a terrorist act.

56 It seems to me that precisely the same analysis may be made of the offence in s 101.5 of the Act. Where a person makes a document and the document is connected with preparation for an action or threat of action that has the characteristics set out in sub-s (2) then, provided the mental element extends to those characteristics, or any of them, the necessary ingredient will have been established. And this will be so even though a terrorist act does not occur; and will be so even where the person making the document is not aware at any time as to which of a number of possible targets will ultimately be the target to be hit.

The indictment

57 In my opinion, subject to the amendment of count 2, it cannot be said that counts 2, 3 and 4 contain overt duplicities. Rather, having regard to the proper interpretation of the relevant sections of the Division 5 of the Criminal Code, it is the position that each count alleges the doing of an act in connection with the preparation for one terrorist act. Each of counts 3 and 4 however, particularises, as it should do having regard to the evidence to be relied on by the Crown, the terrorist act as (a) the bombing of an Australian Defence establishment or (b) part of the Australian Electrical Supply system. Having regard to the nature of the Crown case against the accused, this is a perfectly appropriate way to particularise the mental element involved in the alleged commission of the offence in each count. So to with the offence under s 101.5 it is appropriate to particularise the terrorist act as the bombing of one of the defence establishments shown in the documents made by the accused.

58 But in each case the essential matter is that each individual count alleges the doing of an act in preparation for one terrorist act only. There is not, in my opinion, any duplicity. Moreover, appropriate directions to the jury will make the position perfectly clear.

Other arguments

59 There are other arguments that have been addressed to the Court. In particular the Crown sought to rely upon the legislative history of the terrorism legislation. Specifically, the Crown asked the Court to have regard to the 2005 legislative amendments. It would of course be impossible to be unaware of the notoriety surrounding the introduction of the 2005 amendments in early November this year. The Crown suggested that if there were any ambiguity in the 2003 legislation, it should be resolved in favour of the Crown by reference to the Explanatory Memorandum to the 2005 Act. The Crown was of course mindful of a number of judicial cautions which have been administered over the years when it is sought to have regard to amending legislation to aid in the construction of an earlier statute (Sunworld Inc v Registrar, Plant Variety Rights & Anor (1997) 148 ALR 447 at 459 per French J; Allina v Federal Commissioner of Taxation (1991) 99 ALR 295 and Re MacManaway (1951) AC 161 at 176).

60 To these notes of caution may be added the observations of Gummow J in Interlego v Croner Trading 111 ALR 577 at 611-612. His Honour said:-

“There was some suggestion that because the corresponding paragraph in the new s 77 expressly covered application “in Australia or elsewhere”, the old paragraph should be read as limited to application in Australia. There is a line of authority that an amendment may be taken into account in determining the scope of the prior legislation, at least to avoid a result which would render the amendment unnecessary, or futile or deficient; see especially Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 at 85-86; Hunter Resources Limited v Melville (1988) 164 CLR 234 at 254-5; but in doing so, caution should be exercised: see Pearce and Geddes, Statutory Interpretation in Australia (3rd Edition 1998) . It is, after all, a curious way of revealing parliamentary intention at the time of passing the earlier provision. As was observed by Viscount Haldane LC in Re Samuel (1913) AC 514 at 526:
‘It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela, to remove possible doubts.”

61 The second additional argument advanced by the Crown referred to s 23 of the Acts Interpretation Act. This, it was argued, supported the proposition that the amendments made in 2005 simply clarified the existing provisions of the Act. Section 23 provides: -

“In any Act, unless the contrary contention appears:
(b) Words in the singular number include the plural, and words in the plural number include the singular.”

62 As to the first argument Mr Boulten submitted that the Court should not go to the new legislation because of the clarity of the words of the section. In this regard Mr Boulten referred to the well-known passage in Krakauer v R (1998) 194 CLR 202 at 223 per McHugh J: -

“A Court should not disregard clear words and interpret a provision so as to extend the scope of criminal liability even if it thinks that, by the inadvertence, the legislature has failed to deal with a matter. That is so even if the Court thinks that the legislature would probably have dealt with the matter if it had been drawn to the legislature’s attention”.

63 See also Ex Parte Fitzgerald re Gordon (1945) 45 SR NSW 182 at 186 and Meller v Lowe (2000) 48 NSWLR 517 at 519.

64 In relation to the Crown’s argument based on s 23 of the Acts Interpretation Act, Mr Boulten argued that a contrary intention was plainly expressed.

65 I will briefly state my response to each of these arguments. As to the first, it seems to me that the section is unambiguous and plainly expressed, although I consider that it should not be interpreted in the manner argued for by Mr Boulten. For that reason, although I am fully aware of the debate in Parliament and contents of the Explanatory Memorandum, I do not propose to take those matters into account.

66 In relation to the second argument I consider that it is inconsistent with the Crown’s principal argument namely that each of ss 101.5 and 101.6 require that the Act done be in preparation for one, but not more than one, terrorist act. On the interpretation of the sections that I prefer, I consider that a contrary intention appears so as to deny the extension contemplated by s 23 of the Acts Interpretation Act.

Minor submission

67 In relation to count 4, which alleges an offence which was committed between 5 July 2002 and 22 April 2004, Mr Boulten SC argued that there was an additional problem stemming from the fact that on 27 May 2003, assent was given to the Criminal Code Amendment (Terrorism) Act 2003 (No 40/2003), which commenced on 29 May 2003. That Act repealed Part 5.3 of the Criminal Code and re-enacted that Part in an amended form. Consequently, s 101.6 ceased to exist as at 29 May 2003, but was re-enacted in its current terms that day. Therefore, it was argued, count 4 charges two different offences, one ranging from 5 July 2002 to 29 May 2003 and the other from 29 May 2003 to 22 April 2004.

68 The Crown accepted that, as presently drafted, the period over which this offence is said to have place encompasses a point at which the legislation was repealed and new legislation in similar form enacted. In those circumstances, the Crown indicated that it would seek the Court’s leave to amend the indictment by substituting a new count 4, pursuant to s 101.4 of the Code, in the following terms:

“That on or about 26 October 2003 at Sydney in the State of New South Wales, the accused possessed a large quantity of toilet paper capable of producing nitrocellulose, which was connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act, namely the bombing of an Australian Defence establishment or part of the Australian Electricity Supply system”.

69 During the hearing of oral submissions, the defence indicated that there would be no further quarrel with count 4. That is to say, the defence indicated that it would not be submitted that count 4 was duplicitous. On 16 December 2005, Mr Boulten SC sent a brief additional submission in which he submitted that the “new” count 4 does contain the same type of patent duplicity that the defence argued was evident in counts 2 and 3.

70 I have not at this stage received any written response from the Crown. As presently minded, it seems to me, however, that my analysis of the frame work of the Division, the definition of “terrorist act” would apply equally to an analysis of the offence created in s 101.4 of the Criminal Code. If that be so, then my preliminary view is that count 4 is not bad for duplicity. I shall leave it open for further submissions, however, in view of the fact that I have not at this stage received a Crown response to Mr Boulten’s additional submission.

71 The only order that I will make at this stage is that I will adjourn the Notice of Motion until 31 January 2006 so that the parties may consider their positions respectively in the light of the reasons I have given.

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