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R v Lodhi

R v Lodhi

Case [2005] NSWSC 1377 23 December 2005

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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

5 Section 101.5 (3)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lodhi

Details

AGLC: R v Lodhi [2005] NSWSC 1377
Case: [2005] NSWSC 1377
Decision Date: 23 December 2005

CaseChat Overview and Summary

The defendant, Lodhi, was charged under the Criminal Code Act with terrorism offences, including being a member of a terrorist organisation and providing support to a terrorist organisation. The case was heard in the High Court of Australia, which was asked to consider whether the indictment against Lodhi was flawed due to a defect known as duplicity. Duplicity occurs when a single count in an indictment alleges more than one offence, potentially confusing the accused and impairing their ability to adequately prepare a defence.

The legal issues before the court were whether the indictment was defective due to duplicity and, if so, whether this defect rendered the trial unfair. The court had to determine whether the separate offences alleged in the indictment were so closely connected that they could be properly joined in a single count. The court also considered whether the defect could be remedied by clarifying the indictment or whether it necessitated a complete retrial.

The court found that the indictment was indeed defective due to duplicity, as it charged the defendant with two distinct offences in a single count. However, the court held that the defect did not render the trial unfair. The court reasoned that the evidence presented was sufficient to support a conviction on either of the alleged offences, and the defect could be remedied by clarifying the indictment. Consequently, the court decided that the trial was not unfair, and no retrial was necessary.

The final orders of the court were that the indictment was amended to separate the distinct offences into individual counts, and the trial proceeded on the amended indictment. The court's decision affirmed the importance of ensuring that indictments are clear and precise to avoid confusion and to uphold the fairness of the trial process.

Orders