Regina (C'Wealth) v Baladjam [No 4] - [2008] NSWSC 726

No judgment structure available for this case.

CITATION: Regina (C'Wealth) v Baladjam & Ors [No 4] [2008] NSWSC 726

HEARING DATE(S): 04/03/08, 05/03/08,

JUDGMENT DATE :
18 March 2008

JURISDICTION: Criminal

JUDGMENT OF: Whealy J at 1

DECISION: All orders sought in the Notice of Motion refused and application dismissed.

CATCHWORDS: CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Patent and latent duplicity - Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a conspiracy to commit a preparatory act is unknow to law - Criminal Code Act 1995 (Cth), s 101.6. - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a charge of conspiracy should be dismissed on the basis that it is in the interest of justice to do so - Appropriateness of conspiracy charge - Criminal Code Act 1995 (Cth), s 11.5(6)

LEGISLATION CITED: Commonwealth Criminal Code Act 1995
Terrorism Legislation
Crimes Act 1914 (Cth)
Fisheries Act 1935
Customs Act 1901 (Cth)
Acts Interpretation Act 1901 (Cth)
Statute Law (Miscellaneous) Provisions Act (No 2) 1984 (Cth)
Crimes Amendment Act 1996 (Cth)
Crimes Act 1914 (Cth)
Criminal Law Act 1977
Workers' Rehabilitation Compensation Act 1986 (SA)
Evidence Act 1995
Workers' Rehabilitation Compensation Act 1986 (SA)
Acts Interpretation Act 1915 (SA)
Acts Interpretation Act 1901 (Cth)
Criminal Law Act 1977
Statute Law (Miscellaneous) Provisions Act (no 2) 1984 (Cth)
Crimes Amendment Act 1995 (Cth)

CASES CITED: Hoar (1981) 148 CLR 32
Final Report of the Criminal Law Offices Committee of the Standing Committees of Attorneys General December 1992
Ahearn v Regina (1988) 164 CLR 87
Mylonas (1985) 20 A Crim R at 214
R v Lodhi [2006] NSWCCA 121 at 69-70
DPP v Marriman (1973) AC 584 at 593
R v Locchi (1991) 22 NSWLR 309 per Samels JA
R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ
R v Petrouliaus (No 34) NSWSC 1462 at paras 23 to 27
R v Lodhi [2005] NSWSC 1377; [2005] 199 FLR 236
R v Saengsai-Or [2004] NSWCCA 108; [2004] 61 NSWLR 135
Regina v JS [2007] NSWCCA 272 at paras 142-145
MCCOC Report
R v Ansari [2007] NSWCCA 204
Gerakiteys v The Queen (1966) 1 QB 589
Mok (1987) 27 A Crim R 438
Saffron v R (1989) 17 NSWLR 395
The Law of Criminal Conspiracy by Peter Gillies 2nd Edition 1990 at p 216
R v Ongley (1940) Volume 57 NSW (WN) at p 7
R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245
Viera v Regina; Teehan v Regina [2006] NSWCCA 401
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
R v Giam (1999) 104 A Crim R 46
R v Western Australia [2006] WASCA 241 at 81-82 and at 92
R v DEl-Kotob [2002] 4 VR 456 per Vincent JA at 42
R v Chung [2007] NSWCCA 231 at (51)
James William Sheppard (1988) 37 A Crim R 303 at 308-313
R v Moore (1998) 1 Qd R 252
Morgan John Ryan (1984) 14 A Crim R at 97
R v Bruce Dowding [2000] VSC 439 at [20] and following
Regina v Tripodi (1961) 104 CLR 1
Masters v R (1992) 26 NSWLR 450
R v Bolus & Ors [2003] NSWSC 658
Ruich
Regina v Tripodi (1961) 104 CLR 1
Masters v R (1992) 26 NSWLR 450
R v Bruce Dowding [2000] VSC 439 at [20] (and following)
R v Moore (1998) 1 QD R 252
Morgan John Ryan (1984) 14 A Crim R at 97
James William Sheppard (1988) 37 A Crim R 303 at 308-313
Ruich v Western Australia [2006] WASCA 241 at 81-82 and 92
R v El-kotob [2002] 4 VR 456 per Vincent JA at 42
R v Chung [2--7] NSWCCA 231 at (51)
R v Bolus & Ors [2003] NSWCA 658
R v Lodhi [2006] NSWCCA 121; [2006] 199 FLR 303 at 55-56
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
R v Giam (1999) 104 A Crim R 46
R v Lodhi [2005] NSWSC 137 at para 66
R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245
Viera v Regina; Teeham v Regina [2006] NSWCCA 401
Gerakiteys v The Queen (1984) 153 CLR 317 at 334 per Deane J
R v Ongley (1940) Volume 57 NSW (WN) at p 7
Yje Law of Criminal Conspiracy by Peter Gillies 2nd Edition 1990 at p 216
Griffith (1966) 1 QB 589
Mok (1987) 27 A Crim R 438
Saffron v R (1989) 17 NSWLR 395 in teh judgment of Hope JA at 421-426
Ansari v R [2007] NSWCCA 204
MCCOC Report
Regina v JS [2007] NSWCCA 272 at paras 142-145
R v Saengsai-Or [2004] NSWCCA 108; [2004] 61 NSWLR 135
DPP v Merriman (1937) AC 584 at 593
Hamzy (1994) 74 A Crim R 341
R v Locchi (1991) 22 NSWLR 309 per Samuels JA with whom Enderby and Loveday JJ agreed
R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ with whom Wood CJ at CL and Bell J agreed
R v Petrouliaus (No 34) NSWSC 1462 at paras 23 to 27
Mylonas (1985) 20 A Crim R at 214

PARTIES: Regina (C'Wealth) v Omar BALADJAM [No 4]
Regina (C'Wealth) v Khaled CHEIKHO
Regina (C'Wealth) v Moustafa CHEIKHO
Regina (C'Wealth) v Mohamed Ali ELOMAR
Regina (C'Wealth) v Abdul Rakib HASAN
Regina (C'Wealth) v Mohammed Omar JAMAL
Regina (C'Wealth) v Mirsad MULAHALILOVIC
Regina {C'Wealth) v Khaled SHARROUF
Regina (C'Wealth) v Mazen TOUMA

FILE NUMBER(S): SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

COUNSEL: Ms W. Abraham QC; G Bellew SC; C O'Donnell; Ms S. McNaughton - Crown
M Buscombe SC; R Pontello - Accused Baladjam
C Waterstreet; P Lange - Accused K Cheikho
R Button SC; I Nash - Accused M Cheikho
D Dalton SC; T Ozen - Accused Elomar
Ms D Yehia; Ms S Beckett - Accused Hasan
G. Scragg; D Carroll - Accused Jamal
G Turnbull SC; A Djemal - Accused Mulahalilovic
W Brewer; M Pickin - Accused Accused Sharrouf Hanley; P.King - Accused Touma

SOLICITORS: C'Wealth DPP - Crown
Greg Wash & Co - Accused Baladjam
Lawyers Corporation Ltd - Accused K Cheihko
William O'Brien & Ross Hudson Solicitors - Accused M Cheikho
Nyman Ginson Stewart - Accused Elomar'
Legal Aid Commission - Accused Hasan
Michael Doughty Solicitors - Accused Jamal
Matouk Joyner Lawyers - Accused Sharrouf
Lawyers Corporation Ltd - Accysed Mulahalilovic
Burke & Elphick Lawyers - Accused Touma

- 1 -

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

WHEALY J

PARRAMATTA: TUESDAY 18 March 2008

2007/2397001 - Regina v Omar BALADJAM [No 4]
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2399001 - Regina v Mohamed Ali ELOMAR
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2452001 - Regina v Mohammed Omar JAMAL
2007/2454001 - Regina v Mirsad MULAHALILOVIC
2007/2396001 - Regina v Khaled SHARROUF
2007/2455001 - Regina v Mazen TOUMA

presentation of a charge unknown to the law.

1 HIS HONOUR: There are various applications for determination by the Court relating to the indictment presented by the Crown against each of the accused in the present matter. There are essentially three aspects to the broad attack made upon the indictment. These are common to all the accused. The three areas of attack are as follows: -

1. An application that the Court should dismiss the charge in the indictment pursuant to the provisions of s 11.5(6) of the Commonwealth Criminal Code Act . I shall refer to this as the Code for the purposes of the decision. Section 11.5(6) provides that a Court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.

2. The indictment is sought to be quashed on the ground that it is bad for duplicity.

2 The lead arguments in relation to the first matter were presented by Ms Yehia of counsel. The submissions were made on behalf of all the accused although a separate submission was given by Mr Lange on behalf of his client Khaled Cheikho; and a brief submission was made by Mr Button SC on behalf of Moustafa Cheikho.

3 Mr Button SC led the attack based on the argument that the indictment was duplicitous. There were two limbs to his argument, first that the Code had made a significant alteration to the common law in relation to conspiracy; and secondly, that, for other reasons, there was duplicity in the indictment. His arguments were supported by Mr Lange of counsel and by Mr Buscombe in additional written submissions.

4 The third matter was represented by one relatively brief submission from Mr Lange. As I understand it, this submission was also made on behalf of all the accused, or, at the least, endorsed by each of the accused.

5 The Crown submissions were made by the Crown team led by Ms Abraham QC.

The indictment

6 The indictment in the present matter, in summary form, charges each accused that between July 2004 and November 2005 he conspired with the other accused to do acts in preparation for a terrorist act (or acts). It is appropriate, however, to set out the form of the indictment in full. It is as follows: -

“The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty, charges in the Supreme Court of New South Wales in its criminal jurisdiction at Sydney on 31 May 2007 that

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

Particulars of the Terrorist Act (or Acts)

The terrorist act (or acts) was (or were) to involve an action or threat of action involving the detonation of an explosive device (or devices) or the use of weaponry or both that was or were to be done:

(a) with the intention of advancing a political, religious or ideological cause; and

i. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country; or

i. cause serious harm that is physical harm to a person; and/or

ii. cause serious damage to property; and/or

iv. endanger a person's life, other than the life of the person taking the action; and/or

v. create a serious risk to the health or safety of the public or a section of the public; and/or

vi. seriously interfere with, seriously disrupt, or destroy an electronic system including but not limited to, an information system, or a telecommunications system, or a financial system, or a system used for the delivery of essential government services, or a system used for, or by, an essential public utility, or a system used for, or by, a transport system, and

i. cause serious harm that is physical harm to a person; or

iii. endanger the life of a person, other than the person taking the action; or

iv. create a serious risk to the health or safety of the public or a section of the public.”

The Law

7 Section 101.6(1) of the Code makes it an offence to do an act in preparation for or planning a terrorist act. Section 101.6(2), provides that the offence will be committed even if a terrorist act does not occur, or the act in preparation or planning is not done in respect of a specific terrorist act, or is done in preparation or planning for more than one terrorist act. These sections are in the following terms:

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

(2) A person commits an offence under subsection (1) even if:

(a) a terrorist act does not occur; or

(b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or
(c) the person’s act is done in preparation for, or planning, more than one terrorist act.”

8 The definition of “terrorist act” is set out in section 100.1(1) of the Code as follows:

(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

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State or Territory or foreign country, or part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

9 Sections 100.1(2) & (3) further define the concept of a terrorist act as follows:

(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.

(a)

is advocacy; protest, dissent or industrial action; and

(b)

is not intended:

(i)

to cause a 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 health or safety of the public or a section of the public”.

10 The offence of conspiracy is set out in section 11.5 of the Code as follows:

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

11 Section 11.5(2) of the Code stipulates the following three requirements before a person can be guilty of conspiracy under section 11.5 of the Code.

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

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

12 Section 11.5 of the Code replicates features of the common law offence of conspiracy but limits it in certain ways. These include a requirement of proof of the commission of at least one overt act in furtherance of the conspiracy by a party to the agreement. The provision also includes protections that did not exist at common law: minor offences cannot be the subject of a charge of conspiracy [s 11.5(1)]; the consent of the Commonwealth Director of Public Prosecutions is required for the commencement of proceedings for an offence of conspiracy (although not before arrest, charging and remand on bail or in custody) [s 11.5(8)]; and a court is empowered to dismiss a charge of conspiracy if “it thinks that the interest of justice require it to do so” [s 11.5(6)].

The Crown case

13 The accused are nine men who are said by the prosecution to be parties to the conspiracy involved in the charge contained in the indictment. The prosecution case is that each of the conspirators considers himself to be a devout Muslim; each held certain beliefs in common relating to their interpretation of the Muslim faith. These common beliefs included the following: -

(b) “Jihad” was the primary means by which this religious obligation should be fulfilled;

(c) a significant and legitimate aspect of the fulfilment of this obligation was violent Jihad, which involved the application of force and violence, including in certain circumstances the killing of “infidels” or “kuffir” (that is, persons who do not have the same fundamentalist beliefs).

14 These views are evidenced by, amongst other things, the finding of a large volume of material supporting such views (“extremist material”) at the premises of each accused upon the execution of search warrants. That extremist material was found in the form of electronic media including videos, DVDs, CD’s and material from websites downloaded and saved on each of the accused’s computer or computers.

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

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

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

16 In undertaking their activities the accused became aware that they were being monitored by the authorities. This investigative activity by the authorities included physical and electronic surveillance, interviews and search warrants conducted on the premises relating to various accused before they were arrested. Despite this awareness, each of the accused continued with their activities in relation to the offence. In undertaking these activities, the accused displayed a high level of planning to avoid detection. For example, some of the covert means which the accused utilised included the following:

(a) acquiring and using mobile telephones in false names (these telephones were used, for example, to make enquiries and purchases relevant to the conspiracy and to organise meetings);

(b) using coded SMS messages (with mobile telephones in false names) to arrange covert meetings and to pass messages to each other;

(c) using false names when making enquiries about purchases and purchasing items;

(d) using false names to book camping trips;

(e) using techniques to avoid physical monitoring (“anti-surveillance”) and/or techniques to detect physical monitoring (“counter-surveillance”);

(f) using public telephones (in circumstances where the accused were known to be in possession of mobile telephones);

(g) using electronic equipment to check whether they were the subject of electronic monitoring.

17 In particular, the accused used techniques to avoid and/or detect monitoring by the authorities during the weeks leading up to the arrests in early November 2005. During this period, certain of the accused arranged covert meetings in public places using coded text messages from mobile telephones subscribed in false names. These arrangements included meetings to be held during the early hours of the morning. The accused engaged in anti-surveillance and/or counter-surveillance before these meetings took place. On a number of occasions, these meetings were cancelled by the accused when they discovered that they were under surveillance.

18 Abdul Nacer BENBRIKA (“BENBRIKA”) was an Islamist who had publicly declared his support for militant or violent Jihad. In November and December 2005, BENBRIKA was charged in Melbourne with various terrorism offences relating to, inter alia, directing the activities of a terrorist organisation and being a member of a terrorist organisation between July 2004 and 8 November 2005. Twelve others who adhered to BENBRIKA’S extremist views were also charged in Melbourne with terrorism offences relating to, inter alia, being members of a terrorist organisation (the “BENBRIKA group”). Members of the BENBRIKA group included Izzydeen ATIK (“ATIK”) Aimen JOUD (“JOUD”), Ahmad RAAD (“RAAD”) and Fadi SAYADI (“SAYADI”). BENBRIKA, JOUD, RAAD, ATIK and SAYADI communicated with certain of the accused in Sydney. This contact was often covert in nature, involving the use of covert and public telephones, and airline travel between Sydney and Melbourne being booked in false names. BENBRIKA and JOUD maintained regular contact with HASAN, ELOMAR, SHARROUF, Moustafa CHEIKHO, Khaled CHEIKHO and JAMAL. BENBRIKA travelled from Melbourne to Sydney under a false name.

POSSESSION OF BOMB MAKING RECIPES AND OTHER MATERIAL RELATING TO TERRORIST ACTIVITY

19 The following are some examples of the nature of the instructional material accessed by the accused and/or located at their premises.

20 On 8 July 2004, a computer which was located at the premises of Khaled CHEIKHO accessed and downloaded from a website 3 documents in Arabic, as follows:

(a) a 1 page document showing Osama Bin LADEN and containing links to “military lessons, Jihad websites, Jihad chat rooms, scholars of Jihad and news”;

(b) a 1 page document containing “a few advices” inciting Muslims to engage in Jihad; and

(c) a 12 page document in Arabic containing instructions on various types of explosives (including the speed, force, ferocity and sensitivity of explosives), how to construct a detonator and manufacture improvised explosives from commonly available products.

21 On 27 June 2005, during the execution of a search warrant upon ELOMAR’S vehicle and premises, the authorities seized 4 boxes of compressed hexamine and a USB memory stick which contained a 60 page document in Arabic entitled “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two”. The document is in the form of a series of written lessons, accompanied by photographic illustrations of matters relating to the text and contains a session in the form of “Questions and answers”. The document contains step-by-step instructions on the manufacture of a series of chemical mixtures/specific explosives and detonating devices. It includes details and advice on: how to source ingredients or precursors, on chemical properties, on how to extract, prepare, store, dispose of and use the explosives described. It provides alternate ingredients and advises how these may be sourced from non-laboratory/scientific sources, such as chemist shops. The document outlines information about car bombs, with reference to “the Riyadh explosions” and “explosions in Bagdad”, and includes material from “one of the Jihadist Encyclopaedias” concerning placement of explosive devices and selection of targets for car bombs.

22 The document is directed to a terrorist audience. For example, the writer asks:

“What exactly are you thinking of: an embassy a complex, terrorising? State what is your mind and hopefully I will try to answer it. As for now I am giving a general illustration as the specified target determines everything from directing the detonators to the amount required…”.

23 The document contains instructions for the manufacture of Tri-Acetone Tri-Peroxide (“TATP”) using various commercially available items, including hydrogen peroxide, sulphuric acid and acetone. The instructions and images relating to the manufacture of TATP found in this document were consistent with items obtained, or attempted to be obtained, by the accused. The process of manufacturing TATP requires various chemicals to be cooled continuously while mixing. TATP must also be kept cool after manufacture. By relying on the recipe contained in the “The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two” and only using the chemicals and equipment sourced (or attempted to be sourced) by the accused, TATP could be manufactured.

24 On 27 June 2005 also located during the execution of the search warrant on ELOMAR’S premises was a CD containing a 1,064 page document in Arabic. Moustafa CHEIKHO’s fingerprints were on the CD cover. The document is entitled “Security and Intelligence”. The document contains chapters including, “Security and Islam”, “Sabotage and Counter Espionage”, “Surveillance”, “Audio and Visual Taping”, “The Hierarchy of the Security Department of a Jihad Organisation”, “Secret Communication”, “Topography” and “The Primary Rules of Sabotage”. Again this document contains instructions relating to the manufacture and detonating of various improvised explosive devices. As with the previous document, it contains step-by-step instructions on how to manufacture explosives from commercially available products, with details and advice on how to source the ingredients, extract and prepare them for use. The requirements specify the use of beakers, thermometers, pipettes, etc. One of the types of explosive devices in these instruction is TATP. This document also provides instructions on how to manufacture Hexamethylene triperoxide diamine (“HMTD”) using various commercially available items including hexamine, hydrogen peroxide and citric acid.

25 Both TATP and HMTD are highly sensitive explosives, which are relatively simple to manufacture, and specialist equipment, knowledge or experience is not required to do so. Following the instructions provided in these documents a person is capable of manufacturing both TATP and HMTD. Both TATP and HMTD could be manufactured using only the chemicals and equipment obtained or attempted to be obtained by the accused.

26 On 27 July 2005 and on 12 August 2005, ELOMAR’S niece Oula AWAD asked the authorities to return various items, including the USB drive (the item containing The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two). She said: “...and I really importantly need that memory card, I really need it, there is like um, my uncle has got stuff on it, drawing and that he has to submit it to people, that’s work for him”. The USB drive (which still contained The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two) was returned to ELOMAR on 19 August 2005. Upon the execution of a further search warrant at ELOMAR’S premises on 8 November 2005, the USB drive was seized again. Analysis of the USB drive showed that The Illustrated Encyclopaedia of Abdullah Zul Bajadin – Part Two had been removed on 19 August 2005. This was the only item deleted from the USB drive.

27 It is the opinion of a Forensic Chemist that:

(a) the type of explosives capable of being produced from the chemicals obtained, or attempted to be obtained, by the accused fall into the category of “ primary high explosives ”;

28 The above documents are only illustrations of very large number of instructions/documents/manuals, which were located in the possession of the accused. Such instructional material covered topics, which included the production and use of explosives, firearms and covert methods to thwart detection by the authorities, and dealing with the authorities in the event of detection or arrest. Where such instructional material was found on an accused’s computer or computers, invariably material of an extremist nature was also found on that computer or computers. Other examples of such instructional material include the following:

(a) A document showing a diagram of an electrical circuit involving a mobile phone and explosive material was found on Moustafa CHEIKHO’S computer. This document was obtained through a Jihadi forum website which invites the reader to have a look at a way to explode objects by using an Ohmmeter and a mobile telephone.

(b) A document providing specific instructions on how to make the following explosive devices: Molotov cocktails, eagle fireballs, eagle cocktails, towed charge, pole charge, and satchel charge. This document was found on HASAN’S computer. In order to construct some of these devices, the document states that it is necessary to know how to prime charges electrically and non-electrically.

(c) A document providing information on how to construct an M14 Antipersonnel Mine was found on HASAN’S computer.

(d) Document identifying the 11 steps required to prepare a non-electric firing system was found on HASAN’S computer. This document refers to the non electric firing system in the context of demolition work such as breaching minefields, breaching wire obstacles, clearing landing zones, blowing holes in walls of buildings and blowing down trees to create obstacles.

(e) A number of documents relating to surveillance tactics was found at Khaled CHEIKHO’S premises. This included a book entitled: “The Layman’s Guide to Electronic Eavesdropping: how it’s done and simple ways to prevent it” by Tom Larsen. [This book was also located at Moustafa CHEIKHO’S premises];

(f) A video containing instructions on how to build and detonate a remote anti-personnel explosive device was found at SHARROUF’s premises.

(g) Material in the form of a number of “lessons”, apparently for the training of someone to join the “military organisation” of an Islamic group to undertake militant Jihad. The lessons covered topics such as “Training”, “Weapons: measures related to buying and transporting them”, “Special Tactical Operations” (which include “assassinations, bombing and demolition”), and “Kidnapping and Assassinations Using Rifles and Pistols” (with detailed instructions on the use of various firearms), “Interrogation and investigation at prison and detention centres”. The material was found at SHARROUF’s premises stapled inside the cover of a booklet entitled “Choice Islamic Stories” [for children] distributed by the Islamic Welfare Centre, which appeared to have replaced the original contents of the booklet. [Khaled CHEIKHO’S fingerprints were located on several pages of the document.]

(h) A VHS Cassette Tape entitled “Sheikh Osama’s Training Course” and a document entitled “Lessons by Al-Qaeda and Taliban in the art of hitting and frightening the Americans” was found on a computer at TOUMA’s premises.

(i) Audio and video files displaying the beheading and execution of Westerners and other captives, attacks on the forces of the United States of America (US) and the Coalition in Iraq, images and desecration of dead soldiers, bombings of buildings and vehicles with Islamic chants and cheers and images of deceased martyrs found at MULAHALILOVIC’S premises. Other items found included songs and speeches urging Muslims to engage in militant Jihad including the killing of “disbelievers”; “Treaties in getting prepared for Jihad” and audio files which include discussing the manufacture and detonation of car bombs.

(j) Military documents relating to sniper training were found on JAMAL’S computer. A number of documents relating to sniper weapons and training, and images of snipers were located on HASAN’S computer.

(k) A number of training documents on topics including the manufacture of silencers for firearms, making grenades and mines, “electronics, explosives and poisons” and “explosives engineering” were found on a thumb drive located at the premises of ELOMAR.

(l) An instructional article relating to the kidnapping of nationals of a “hostile country” as part of Jihad was found on BALADJAM’S computer. A number of other documents relating to sniper weapons, physical training and survival skills in the context of military operations were also found.

29 The accused shared extremist/instructional material. A number of the accused had the same items.

30 A bold summary of the category of matters set out in chronological and extensive detail in the Crown Case Statement is as follows:

(a) the possession by all the accused of documents advocating extremist views and the carrying out of acts of violence in the pursuit of Jihad;
(b) the possession of documents containing instructions for the preparation of violent Jihad, including, but not limited to, instructions on the assembly and use of explosive devices and the use of firearms;

(c) enquiries about and the intended and actual purchase of, components of and equipment related to the manufacture of explosive devices;

(d) the possession of such components of and equipment for, the manufacture of explosive devices;
(e) enquiries about and the attempted and actual attempted purchase of, firearms and ammunition;

(f) the possession of firearms and ammunition;
(g) the use of various techniques and methods in order to protect the operational integrity and security of the objectives of the accused;

(h) the undertaking of other activities by the accused which reveal the accuseds’ terrorist intent, including but not limited to, discussions expressing views as to violent Jihad and attendance at camps; and

(i) evidence of association between the accused and the circumstances of that association.

The application to dismiss the conspiracy charge

31 The defence arguments focused upon a good deal of judicial criticism of the bringing of a conspiracy charge in certain circumstances. It was submitted that the courts have repeatedly criticised the practice of charging conspiracy where a substantive offence is available (Hoar (1981) 148 CLR 32). Reliance was placed upon both English and Australian cases. Mr Lange referred the Court to a number of authorities coming from the United States of America. Reference was also made to the Final Report of the Criminal Law Offices Committee of the Standing Committees of Attorneys General December 1992, Chapter 2 at page 97 where the Report stated: -

“In response to submissions, s 405.5 empowers the Court to dismiss the conspiracy count; in the Discussion Draft this had merely been a power to stay the conspiracy count. The most likely use of this provision will arise when the substantive offence could have been used, a criticism repeatedly voiced by the courts (see for example Hoar (1981) 148 CLR 32). However, the Committee believes that the decision about further charges should be left to the prosecution.”

32 Ms Yehia argued that an examination of the overt acts scheduled by the Crown in the Crown Case Statement demonstrated that only 22 of those acts (out of 134 overt acts identified altogether) could be directly related to her client, Mr Hasan. In her submission, these 22 overt acts alleged by the Crown provided or could provide a sufficient basis for proceeding against Mr Hasan for a substantive offence or offences pursuant to s 101.6 of the Terrorism Legislation. Secondly, Ms Yehia argued that nowhere in the Crown Case Statement was it directly asserted that her client, Mr Hasan, had been involved in the possession or purchase of weaponry and ammunition. Rather, the material against him related to the alleged purchase or attempted purchase of chemicals or other material that might, according to the Crown case, be used for the purpose of creating an explosive device or devices. Against this background, Ms Yehia argued that it would be unfair for the conspiracy charge to remain on foot containing as it did many and varied illustrations of the other alleged conspirators being involved in the purchase, acquisition and ownership of weaponry and ammunition.

33 Ms Yehia relied upon seven specific matters which, in her submission, warranted the court coming to the conclusion that the interests of justice required that an order be made dismissing the conspiracy charge. The background to all these matters was her submission that there were available substantive offences against her client and that proof of these, if they could be proved, would provide ample and proper scope for an appropriate sentencing response whereas proof and conviction in the case of the conspiracy charge would, in effect, mean that her client was liable to be punished for a level of criminality that went well beyond his own individual actions in the matter. The seven points made by counsel were as follows: -

(a) it is claimed that the present charge is especially imprecise and amorphous. This emerges from the vagueness of the charge and the uncertainty that flows from charging in one indictment a count involving an agreement to commit multiple acts in preparation where those acts were by quite diverse means. (Mr Lange pointed out that the indictment does not disclose whether the acts in preparation were related to one and only one terrorist act or to more than one terrorist act. He pointed out that the Crown was unable to say whether the terrorist act or acts involve the detonation of an explosive device or devices, or the use of weaponry, or both).

(b) The difficulties that would arise in the sentencing process in the event of a guilty verdict. On what basis, Ms Yehia asked, would the accused be sentenced? Would he be sentenced for committing one act in preparation; several acts in preparation etc?

(c) The third matter was the assertion that the conspiracy trial would add considerably to the length of the proceedings. The volume of evidence would be, according to the defence submission, quite extraordinary whereas this would not be required for proving a substantive offence or offences.

(d) The accused would be at risk of not getting a fair trial. This submission suggested that the risk of injustice would be increased because the individual cases of some of the accused would be buried under the weight of the mass of the material the Crown intends to adduce in relation to establishing the agreement. A related danger would be the possibility that the jury would be less likely to consider the case against each accused individually were the indictment to remain one for conspiracy. There will be a real danger, so it was said, that the jury might approach its task on the basis that each accused is responsible for all the acts and representations of the others.

(Mr Lange focused on the sentencing procedures as well: He submitted that the principal concern the Court would have where an accused is convicted of a substantive offence preparing for a terrorist act is his mental state. Mr Lange submitted that this can be done just as easily, indeed more easily, where a substantive charge is made rather than in a situation where a conspiracy conviction is brought down by the jury).

(e) The voluminous amount of evidence in the proposed conspiracy trial would make it very difficult for the jury to recall issues of credit or reliability whereas this would not be the situation if substantive charges are brought.

(f) The sixth point relates to the difficulty the trial will generate in distinguishing between which evidence will be admissible against each accused. Ms Yehia gave instances of material, which she submitted would not be admissible against her client. Details of this were contained in a schedule within the written submission. It comprised over 103 areas of material referred to in Crown Case Statement. It included conversations, meetings and activities between the other accused not involving her client.

34 Mr Button SC did not address separately on the argument advanced by Ms Yehia but he did provide the Court with a short list of overt acts which he suggested might be thought to relate to his client and which, accordingly, might form the basis of a substantive charge or charges against his client. Mr Button was at pains to stress that he was not dealing with the issue of the admissibility of evidence relating to such substantive charges. But rather he was concerned to point to the fact that such charges might be brought in lieu of the conspiracy charge. Otherwise, he adhered to the submissions of Ms Yehia and Mr Lange.

35 The Crown took significant issue with the matters urged on behalf of the accused. In particular the Crown argued that the defence submissions were based upon a misunderstanding of the nature of a conspiracy charge and the matters that could properly be proved pursuant to it. For example, the Crown took issue with the proposition that there were 103 matters in the Crown Case Statement, which could not be admitted against Mr Hasan. With the exception of only one of those items, the Crown submitted that all these matters were admissible against Ms Yehia’s client to prove the nature of the conspiracy and that the great majority of them were also admissible against him to prove his participation in the conspiracy as they were acts in furtherance of that conspiracy. (Ahearn v Regina (1988) 164 CLR 87; Regina v Tripodi (1961) 104 CLR 1; Masters v R (1992) 26 NSWLR 450). Secondly, the Crown took issue with the proposition that a conspiracy charge was inappropriate in the present circumstances. Indeed, the Crown submitted that the conspiracy charge was the only appropriate charge to be brought, and further, that many of the evils identified by Ms Yehia in her submissions were matters that would necessarily arise, particularly in terms of complexity and the like, were a multiplicity of substantive charges to be brought against each of the accused. The Crown argued that the resulting situation would be a joint trial of massive complexity and length. Thirdly, the Crown alleged that the present charge of conspiracy did not offend the principles established by the High Court in Hoar.

A consideration of some general matters

36 Before coming to a resolution of the issues in relation to the application to dismiss the conspiracy charge, it is desirable that I mention at the outset some general matters. First, the Crown Case Statement is, in general terms, a statement of the evidence it is proposed to adduce in the trial. It is however, very detailed. It is a document that contains some 181 pages of very precise detail. There are approximately 400 paragraphs and over 700 detailed footnotes. I have had the advantage of reading carefully the whole of the Crown Case Statement. In addition I have read and examined carefully the list of the alleged overt acts. I am, of course, conscious that there are already a considerable number of applications to rule certain of the material in the Crown Case Statement inadmissible either generally or against particular accused. I am also aware that there are applications to exclude material from the trial on the basis that it will prove overly prejudicial to one or more of the accused. These various applications have not been argued at this stage and their determination is for the future. For the purposes of the present application, I will in general terms regard the evidence as admissible even though at a later stage some of it may be rejected or excluded. Of course, it will be necessary for me to make some remarks about the range of matters that may be admissible against particular accused. This is because Ms Yehia (and other counsel) have addressed me on the basis that certain evidentiary material may not be admissible against her client. In truth, this argument is not strictly speaking an argument based upon admissibility but rather an argument suggesting possible prejudice if the conspiracy charge remains on foot. My remarks on admissibility should be seen in this generalised context rather than a final decision on the admission or rejection of precise evidence. As I say, that task awaits me.

37 Secondly, I am conscious of the fact that there is some degree of overlap between the present application and the arguments on duplicity. Again, it is necessary for me to divide these various arguments into compartments but I am conscious of the overlap area. I prefer, however, to deal with the conspiracy application on its own merits and to deal with the duplicity arguments on their merits. That is the course the parties have asked me to pursue and it is the course I will follow.

The scope of section 11.5(b) of the Criminal Code

38 Section 11.5(b) confers a discretion upon the Court to determine whether it should or should not dismiss a conspiracy charge. It is in the broadest of terms, being concerned with whether or not dismissal is in the interests of justice. There has as yet been no authoritive guidance on the meaning of the phrase “interest of justice” as employed in s 11.5(6). Section 86(7) of the Crimes Act 1914 (Cth), introduced in 1995, provided power for a court to dismiss a charge of conspiracy if it considered that the interests of justice required this to be done. That section was discussed by Teague J in Victoria in R v Bruce Dowding [2000] VSC 439 at [20] (and following). In that case, the indictment contained a count of conspiracy between three men to defraud the Commonwealth of Income Tax. It also contained substantive charges against one of the conspirators, Mr Dowding, alleging that he had lodged tax returns with intent to defraud by false pretence. In the end, Teague J declined to dismiss the conspiracy charge but made an order for severance of the substantive offence counts. In the course of his Honour’s judgment, he made extensive reference to the Hoar principles and to the history of matters underlining the introduction of s 86(7). At para 20, his Honour listed a number of considerations relevant to the exercise of his discretion. These included issues such as the likely complexity of the trial, the presence of evidentiary difficulties and whether the conspiracy count might be said to reflect the criminality involved more appropriately than substantive counts; and whether adverse consequences as to sentencing might result or whether other potentials for injustice to the accused might arise.

39 It is not necessary for me to decide the entire ambit of s 11.5(6) of the Code. It is sufficient to say that considerations such as those mentioned by Teague J, and those relied upon by the accused in the present matter, are appropriate considerations. Indeed, there is a fair area of overlap. Although there were some arguments concerning the refinement of the issues, the Crown did not essentially dispute that the court might properly approach the section with considerations of the kind mentioned by Ms Yehia in her submissions in mind. Nor was it suggested that it was inappropriate to consider the Hoar principles.

40 It was also agreed that considerations relevant to authorities decided before the introduction of the section and its predecessor in 1995 were not now determinative of the issue as to the range of discretionary matters to be considered. These considerations included the width of the prosecutorial discretion to select charges and the issue regarding abuse of process. The present discretion is clearly wider than the considerations concerned with abuse of process.

Resolution of the Issues

41 I have given careful consideration to each of the matters raised by Ms Yehia, Mr Button SC and Mr Lange. Having considered these matters, I have come to the firm conclusion that I should not, in the exercise of my discretion, dismiss the conspiracy charge. I shall give my reasons by reference to the various matters argued before me on behalf of the accused.

Does the present conspiracy charge infringe the Hoar principles?

42 In my opinion, the present charge in the indictment does not offend the Hoar principles. Indeed, I have come to the firm conclusion that the present conspiracy charge is not only appropriate but is, in fact, the only appropriate way to reflect the ambit and structure of the Crown case against the accused. The provision of a substantive charge or charges against each of the accused would not, in my opinion, adequately reflect the nature structure and extent of the evidence to be relied on by the Crown case and would not adequately expose the asserted criminality involved in the conspiracy alleged by the Crown. Nor would it adequately explore the individual level of criminality asserted by the Crown.

43 Let me first examine Hoar’s case. The High Court of Australia was there dealing essentially with an issue as to jurisdiction to make a forfeiture order and with an appeal from a sentence imposed as a result of a Crown appeal alleging inadequacy of sentence. The case was unusual, however, in other respects. Mr Hoar, and a friend Jack Noble, were convicted after a trial by jury on a charge of conspiracy between themselves and others to commit an offence against a law of the Northern Territory. The conspiracy of which each of the two men were convicted was conspiracy to fish for barramundi during a prohibited period and at a prohibited place. The High Court had no difficulty in disposing of the forfeiture argument but was troubled on the sentencing appeal by the fact that there were still pending against Mr Hoar a series of charges for summary and substantive offences under the Fisheries Act. These were based on the same transactions as those involved in the conspiracy offence. The Crown had not yet decided whether to proceed with those charges.

44 In the judgment of Gibbs CJ, Mason Aiken and Brennan JJ, there appears the following at 36: -

Verrier

45 Murphy J was particularly outspoken on the issue. At p 40 Murphy J said:-

“I agree with the criticism of the way in which the prosecution has been conducted. The problem arises out of the amorphous nature of conspiracy. The essence of conspiracy is sometimes regarded as the agreement, sometimes as the partnership in crime, which results from the agreement. The vagueness extends to what evidence may be used to establish this slippery concept; it extends also to what should be taken into account on sentencing. The problem is acute where, as here, the Crown charge is not only a conspiracy to commit offences but also the c0mmissiion of those offences. We have a long tradition of resistance to double jeopardy and double punishment. Dangers of these arise when commission of offences and of conspiracy to commit those offences (or offences including those offences) is charged.”

46 Murphy J also spoke of the over zealous use of conspiracy charges and to the fact that such use might prove embarrassing and costly not only to the accused but to prosecuting authorities and the courts. He suggested that the administration of justice “would be well served if courts were to keep a tight rein on the spawning of conspiracy charges”.

47 As I indicated in outlining the submissions of the parties, I have been referred to a considerable number of other authorities where the Hoar principles were applied. It is clear beyond doubt that these principles had application in considerations underlining the genesis of s 86(7) and hence s 11.5(6) of the Code. In addition, there were also authorities before Hoar where concerns of a like nature had been expressed in relation to the presence of a conspiracy charge in an indictment alongside the substantive offences. There is no need for me to refer to these earlier authorities in this decision.

48 It is necessary to see the Hoar principles in their appropriate context. I agree with the Crown’s submissions that they do not support the proposition baldly stated by the defence, that, if substantive changes are available, a conspiracy charge should not be brought. The position is somewhat different than that. I understand the majority decision to be as I have set it out above. It enunciates a general proposition that it is undesirable that conspiracy should be charged “when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed”. [my emphasis]

49 As the same paragraph in the majority judgment makes clear, the High Court was critical of the practice of having a charge of conspiracy in the same indictment as the substantive offences. (That was the situation later to be encountered. For example, in R v Moore (1998) 1 Qd. R. 252). The High Court was also particularly critical of the situation where a conspiracy charge is to be followed by a trial for the substantive offences after a conviction for conspiracy has been achieved (that was the situation in Hoar itself).

50 Mr Lange also referred me to the case of Morgan John Ryan (1984) 14 A Crim R at 97. In that case Morgan Ryan had been charged with two other persons of conspiring to effect a lawful purpose by unlawful means. Mr Ryan’s appeal related to the admission against him in the trial of a particular telephone conversation. The Court (Street CJ Cantor and Roden JJ) agreed that the telephone call, while admissible as an objective fact within the overall conspiratorial web, was not admissible to support a conclusion, based on its own terms, that the caller was Morgan Ryan. The appeal was allowed. In the course of expressing his agreement with the judgment of the Chief Justice, Roden J made some remarks suggesting that the charging of conspiracy in that case was a matter upon which some observations might be appropriate. He was critical of the fact that the Crown alleged the commission of a considerable number of substantive offences pursuant to the conspiracy and that it placed reliance upon proof of those offences to establish the conspiracy. He referred to the Hoar principles and suggested that the authorities should bear his remarks in mind when deciding how to proceed with any new trial. His Honour’s critical remarks were not adopted by the Chief Justice or by Cantor J. They expressed no views, one way or the other, upon the matter raised by Roden J.

51 In my opinion, the Hoar principles should be confined to the propositions I have earlier stated. There have been, and will be, cases where it will be clearly inappropriate to leave a conspiracy charge in an indictment where there is a sufficient and effective charge available to the Crown. This will be particularly the case when substantive offences are charged in the same indictment as the conspiracy; or where subsequent charges are pending and awaiting the outcome of the conspiracy charge. The expression “a sufficient and effective charge” is, of course, a beguilingly simple one. Its application to any given situation will normally require a critical analysis of the proposed Crown case in relation to the conspiracy charge.

52 In any event, it is clear that, despite the attention given to the charge of conspiracy by some judges and by a number of learned authors, the Code recognises the continued existence of a charge of conspiracy to commit an offence. While the Court is now given an express power to dismiss such a charge when the interests of justice require this to be done, the offence remains alive for prosecutorial selection in an appropriate case. The question that arises here is whether this is an appropriate case for the maintenance of a conspiracy charge.

53 An example of the type of case in which a conspiracy charge was appropriate is to be found in the appeal of James William Shepherd (1988) 37 A Crim R 303 at 308-313. The decision of the Court was given by Street CJ with whom Lee and Campbell JJ agreed. Lee J made some additional brief observations of his own in support of the matters relied on by the Chief Justice. The appellant had been convicted and sentenced to 25 years imprisonment for conspiring to import heroin in contravention of a provision of the Customs Act 1901 (Cth). The Crown relied on s 86(1)(a) of the Crimes Act 1914 (Cth) as a basis for charging the conspiracy. One matter that was argued on behalf of the appellant related to the fairness or otherwise of his being charged with a conspiracy rather than with a series of substantive charges. At p 309 the Chief Justice said: -

“This was a case in which the Crown set out to establish participation in a wide ranging conspiratorial ring. It is to be contrasted very sharply with a case in which there has been a one-off transaction involving the committing of a substantive offence. In cases of that sort courts have frequently said that where two or more persons are involved in such a substantive transaction, they should be charged with the substantive offence rather than the conspiracy. There is, however, a very significant discretion between a Crown case which involves essentially proof of a substantive offence being brought forward under a charge of conspiracy and a Crown case such as the present in which the allegation was one of a highly active ring operating over a period of time and effecting a number of transactions, all within the same organisational frame work, in which there were a number of offences being committed.”

54 At p 310 the Chief Justice added: -

“Where the Crown case involves proof of a ring of criminality, whether it be in drug importing or trafficking, whether it be in the stealing and re-cycling of particular assets such as cars, whether it be in social service frauds, or whether it be in some other activity of a criminal nature in which there can be seen to have been established an ongoing organisational framework for general activity, then I see no necessary obligation on the Crown to select particular substantive offences and to proceed to trial on an indictment charging those, rather than one which accords with the reality of the situation, namely, a charge of a conspiracy to set up and operate the organisation.”

55 It is not inappropriate to mention the remarks of Lee J at p 312-313: -

“There are cases decided in the High Court in which criticism has been made of the use of the charge of conspiracy by the Crown in certain circumstances. Without in any way suggesting that those cases are not binding on this Court, it is appropriate in the present case to make the observation that in circumstances such as those shown in this case it is entirely proper – and indeed in the interests of the community – the charge of conspiracy be preferred.

Where, as here, the evidence available to the prosecuting authority reveals that there is a group of persons under the control of one or some who direct the activities of the other for the express purpose of committing breaches of the narcotic laws in this country, it is in the public interest that that organisation be exposed in the court for what it is and a charge of conspiracy is the most effective way of achieving that.

It is not often mentioned but it is never to be forgotten that men acting in combination to achieve unlawful ends present a fair greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends. The evidence in the present case discloses a drug ring carrying out forbidden drug importations on a huge scale.”

56 See also Ruich v Western Australia [2006] WASCA 241 at 81-82; and at 92; R v El-kotob [2002] 4 VR 456 per Vincent JA at 42. (This passage from Vincent JA was cited with approval by the New South Wales Court of Criminal Appeal in R v Chung [2007] NSWCCA 231 at (51)).

57 The Crown case here is that these nine men were willing participants in a wide-ranging conspiratorial ring. No doubt, some of their individual activities might have exposed them individually to a prosecution for a substantive charge or charges under the terrorism provisions of the Code. Such a charge or charges would not, however, have adequately revealed the wide-ranging, extensive and ongoing nature of the organisation. The reality of the Crown case, as I see it, is that it is only by means of the conspiracy charge that the full range nature and scope of the agreement and the activities engaged in by the group, if the Crown case be accepted, can be revealed. The filing of individual charges against individual members of the organisation simply would fail to reflect and portray the real nature of what was going on. The remarks of Lee J in relation to a narcotics ring have an even greater immediacy and cogency in the case of an extensive organisation set up to undertake a series of activities in preparation for a terrorist attack or attacks which, if implemented, could destroy and damage the lives of countless citizens of this country.

58 I have set out in these reasons a considerable number of the introductory passages of the Crown Case Statement. What I have not done is to reproduce the very significant amount of detail showing the conversations, secret conversations, coded conversations, covert meetings and the like underlying the alleged fulfilment by the individual members of the group philosophy in relation to obtaining the capacity or capability to prepare for a terrorist act or acts. Nor does my brief recitation of the general nature of the Crown case adequately reveal the detailed and significant movements, back and forwards by individual members, as they, according to the Crown case, set out to implement the agreement to bring about a situation where preparation for a terrorist act or acts would be advanced to a stage where realistic consideration could be given by themselves, or others, to the translation of the preparatory activities into a consummated terrorist act or acts. This is, it must be said, an allegation of a lengthy extensive and detailed conspiracy to bring about a situation where serious injury to life and property might, in the future, occur. As I have said, anything short of a conspiratorial charge would not paint the true picture of what was going on over these many months. It would, if the Crown case be accepted, not expose the true criminality of the individuals or the group, nor the far-reaching extent of the conspiracy.

59 Each of the accused who specifically addressed the issue presented the court with a list of overt acts that could, or might be, the subject of a separate substantive count or counts under s 101.6. I will not detail all of these but may I give a few examples:

60 The accused Moustafa Cheikho relied for example, upon overt acts 24, 25 and 31. These may be summarised in that they suggested that the accused had ordered and collected 24 bottles of Hydrogen Peroxide from a Soul Patterson Pharmacy in Menai. (The bottles were later found outside the home of another accused, Khaled Cheikho). A further overt act which might have been the subject of a substantive count was said to be overt act 86. Here, the accused might have been charged, according to the submission, with purchasing two rolls of aluminium insulation tape at the Bunnings Warehouse at Bankstown. On their own, these are possibly innocent enough activities, or, at least, may be thought to be so.

61 Ms Yehia on her client’s behalf identified 22 overt acts which might be argued as being directly relative against Mr Hasan. She suggested that one or more of these might provide a sufficient basis for proceeding against Mr Hasan with one count pursuant to s 101.6. Leaving aside for the moment an issue as to whether such a count would of itself be tainted with duplicity, the answer to Mr Yehia’s submissions (and those of Mr Button) are that such charges would plainly fail the Hoar test in that they would not constitute a “sufficient and effective charge” reflecting the true nature of the organisation and the activities of those who had agreed to its formation and who played a role in the furtherance of its objects. Such charges would fall well short of revealing the true criminality of the organisation and of each accused’s role in the organisation.

62 I would make the same comments in relation to those limited overt acts selected by Mr Lange. These were suggested as being at the forefront of his involvement in the alleged conspiracy, but they do not do justice to the Crown case against Khaled Cheikho. A detailed examination of the Crown Case Statement shows this to be so in the case of all three men

63 One final aspect of the defence submissions related to the proposition that substantive charges would be “sufficient and effective” charges because they would carry a maximum sentence of life imprisonment, as does the present conspiracy charge. It is true of course, (as Spigelman CJ’s decision in Chung indicates) that a maximum penalty disparity may be one reason why a substantive charge is not “sufficient and effective”. But the mere fact that the maximum penalties are the same does not necessarily mean that a charge or charges based on a substantive offence or offences will be an effective and sufficient charge. This is because it is necessary for the charge to reflect the overall criminality alleged by the Crown. A charge that does not adequately reflect the criminality is neither sufficient nor effective. A number of the overt acts selected by counsel for each accused during argument show why this is so. Those contained in Mr Button’s list might be met by such a response. So too would many of the overt acts mentioned in the submissions of Ms Yehia and Mr Lange. The problem is that a substantive offence charge, based on a particular overt act or acts, simply would not reflect the true criminality of the conduct that is alleged in the conspiracy charge. While each charge – conspiracy or substantive – would carry a maximum penalty of life imprisonment, the presentation of the substantive charge would not illuminate, indeed, would not portray the true level of criminality involved in the offence.

64 Ms Yehia suggested, for example, that her client Mr Hasan had no involvement in the procurement or supply of ammunition. Rather his role might be said, if the Crown case be proved , to be one relating to the purchase of chemicals or other liquids to be used in the possible making of an explosive device. It was for this reason Ms Yehia argued that much of the evidence relating to other co-conspirators attempting to acquire ammunition and weaponry would not be admissible against her client. Hence, the prejudice identified in Ms Yehia’s written submissions. There are really three answers to this submission. First, the well established principles relating to the co-conspirators rule mean, in general terms, that many of the activities of the co-conspirator would be admissible against Mr Hasan to prove his participation in the conspiracy as they may be properly regarded as acts in furtherance of that conspiracy. Almost all of them would certainly be admissible against Mr Hasan to prove the nature of the conspiracy itself (Ahearn v Regina; Regina v Tripodi; Masters v R). Secondly, the nature of a large-scale criminal conspiracy is that it may often involve significant activity on the part of relatively junior players in the organisation. Persons high up in the organisation, by contrast, may have relatively little to do. It will also involve (or may involve) the allocation of quite separate tasks to individual group members in furtherance of the objects of the conspiracy. (In this regard see the decision of Howie J in R v Bolus & Ors [2003] NSWSC 658). These tasks may change from time to time, as urgency and changing circumstances dictate. But the agreement will remain on foot and the emerging acts of those carrying out new or altered tasks will be admissible against the others. Thirdly, the Crown does not accept that the role of Mr Hasan was confined to sourcing chemicals. The Crown Case Statement shows some connection between Ms Yehia’s client and ammunition or weaponry

65 Whether most or all (or for that matter any) of the items of evidence mentioned by Ms Yehia are to be admissible against Mr Hasan may await further decision. But, in general terms, in accordance with the authorities I have mentioned, those matters are capable of being admitted against him to prove the nature of the conspiracy and to prove his participation in the conspiracy on the ground that they are acts in furtherance of the overall conspiracy.

Ms Yehia’s seven considerations

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

67 Section 101.6 of the Code is in, one sense, precise and, in another sense lacking in precision. As Spigelman CJ observed in R v Lodi [2006] NSWSCCA 121; [2006] 199 FLR 303 at 55-66: -

“65. Each of the offence sections is directed at the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about count 1 which identifies the terrorist act as bombing an unspecified “part” of the electricity system.

66. Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many way unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds or criminal conduct e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.”

68 Here, of course, the Crown case is that the time had arrived for the making of one type of an agreement between these co-conspirators and that, in this case, the agreement pre-dated any of the steps or attempted steps being taken to equip the conspirators with material necessary to prepare for a terrorist act or acts. The agreement pre-dated the preparatory steps and, pre-dated of course, any further agreement or decisions as to the actual performance of a terrorist act or acts.

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

70 Secondly, I think the Crown is correct in stating that an indictment or indictments containing a large number of substantive offences of preparation for a terrorist act, and their inclusion in the joint trial, would be quite capable of creating a complex and fairly chaotic situation both in terms of the admission of evidence and the directions to be given to the jury. As I apprehend it, the law relating to the matters that may be proved against co-conspirators and admitted against them in a conspiracy trial is relatively clear. But these principles also have an application where a joint criminal enterprise is relied on in relation to substantive offences as opposed to a conspiracy charge. At least, this is clear in general terms although its precise application may pose difficulties from time to time. The directions that would be needed to be given to a jury in a conspiracy case are, no doubt, extensive. But I do not see them as being complicated to the point of making it difficult for the jury to follow. This would be especially so when the court will have the assistance of an experienced Crown team and very experienced lawyers appearing for each of the nine accused.

71 I do not see this as a complex trial, at least not in the way in which that expression is usually used. Of course, it is very detailed and there are a considerable number of facts to be proved in the Crown case. But they are not complex facts and they may readily be appreciated by a jury. It is by no means as complicated as was, for example, the Ronen trial in which I was involved a number of years ago. That was a conspiracy to defraud involving a host of complicated accounting issues. The jury trial took nine months. Despite the length of the trial and the complicated issues, the jury were able to cope with the difficulties. One purpose of the present range of extensive pre-trial applications is to clear the landscape of inadmissible material and of material that should be excluded under, for example, ss 135 and 137 of the Evidence Act. It is to narrow and focus the issues. It is to streamline the jury’s task. The detailed preparation for the trial, and the anticipated co-operation of counsel in narrowing factual issues, will assist in making the trial a tolerable one for the jury. I do not pretend that it will be easy for a jury. It will be a long trial, and one that will be complicated by the mass of material to be assimilated. But, I repeat, it is not complicated material; there is simply a great deal of it.

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

73 Similarly, I do not think that there is any real risk of injustice or unfairness in that the individual case of some of the accused might be buried under the mass of material generally relating to the conspiracy. In proving the existence of the conspiracy, and in proving acts done in furtherance of that conspiracy, the Crown will be entitled to adduce evidence putting into context the activities of each of the accused. I do not accept, that properly instructed, the jury will be led into error in this way. I have already summarised the relevant principles in relation to the admissibility of evidence where a conspiracy is alleged. The existence of those principles answers fully the complaint made by Ms Yehia in relation to the possibility that the jury will misunderstand the basis on which the acts of others might be admitted against individual accused. Once again, there would be sufficient directions given to make this situation perfectly clear. Once again, I would expect very abundant assistance from counsel in relation to the preparation of such directions.

74 One particular matter was touched upon during the argument. It appears that it may have been contemplated at one stage in the Melbourne trial that a conspiracy charge would ultimately be relied on. It appears that Bongiorno J may have expressed a concern about this charge. It seems the ultimate charges were for the commission of substantive offences. I cannot place a great deal of reliance on the brief interchange between Judge and counsel in the Melbourne pre-trial matters. His Honour’s brief observations do not enable me to bring to bear the weight of his judicial authority upon the present issue. By that, I mean that it is impossible to know, from the way the matter was handled in Melbourne, what the true situation was. The mere fact that the trial judge was not in favour of a conspiracy charge being brought; and that the Crown ultimately presented an indictment with a substantive offence charged in it, is of itself of no great persuasive value in the present matter. There is an obvious difference between this trial and the Melbourne trial. There, as I understand it, there are pending a series of substantive offences of preparing for a terrorist act against a number of the accused. Those charges will not proceed until after the principal substantive offence has been determined. That situation is to be contrasted with the position here in Sydney where there is but one charge, namely that of conspiracy. Moreover, Bongiorno J did not give a reasoned decision on the matter, nor was he asked to do so.

75 It has been necessary to give this decision as a matter of relative urgency. I am very reluctant to take up time unnecessarily, valuable time, which might otherwise be used in pre-trial applications. As a consequence, this decision, as I have said, has been prepared urgently. I have endeavoured to have regard to all the matters that have been argued before me. In the end, having considered all those matters, I have come to the conclusion that I should not dismiss the conspiracy charge. I am not satisfied that it is in the interest of justice to do so. Indeed, I am satisfied that the conspiracy charge is the proper charge to reflect the criminality alleged in the Crown case. I do not think that the various matters relied upon by counsel for the accused in their written and oral submissions are sufficient, either alone or in combination, to bring about a different result.

76 The application to dismiss the conspiracy charge is refused.

Duplicity

77 I turn now to consider the arguments advanced on behalf of the claim that the indictment is bad for duplicity.

78 As I indicated at the outset, counsel for the accused relied 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; R v Giam (1999) 104 A Crim R 46.

79 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.

80 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.

81 Walsh v Tattersall is a more recent example. Its outcome turned to a large degree, on the construction of the offence creating statute. 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…”

82 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.

83 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.

108 Then at para 66 his Honour states: -

Code

109 This paragraph is an important passage in his Honour’s analysis. It makes it clear that his Honour’s view was that the Code applied the common law to the Code conspiracy charge but limited its application in certain precise ways.

110 Mr Button properly conceded that this passage is contrary to the arguments he advanced. He suggested however, that the passage was obiter. Somewhat conversely, the defendants had themselves placed reliance upon remarks in Howie J’s decision, in particular the passages at paras 77 and following. But I think that the thrust and ambit of his Honour’s remarks at 77 need to be understood in the light of what he had earlier said at para 66. At para 77 his Honour said: -

Code

MCCOC

Code

111 A reading of the entirety of his Honour’s remarks makes it clear to me that his Honour’s analysis does indeed suggest that the common law has been replicated in the Code, but with the limitations his Honour precisely identified. It is also true, as Mr Button argued that his Honour was not dealing with a conspiracy charge involving multiple offences. Rather, in the appeals under consideration, there was an indictment containing two counts, each alleging an agreement involving the commission of one offence. This distinction, while it is undoubtedly correct, does not seem to me to detract from the integrity of Howie J’s analysis or the value that should be attached to it for the purpose of this present decision.

112 There were, as I indicated earlier, a number of other arguments advanced on behalf of the accused in relation to this first principal submission. It was said that s 11.5(1) (in its penalty aspect), ss 11.7 and 11.7(A) would prove unworkable if a conspiracy charge related to an agreement for the commission of more than one offence. I do not agree with this submission. Generally, where a conspiracy charge relates to a single agreement to carry out actions involving more than one offence, the offences are of the same or similar character. That generally flows from the nature of the agreement – an agreement to supply heroin, for example, or to grow cannabis; or to defraud. If this were not the situation, and the indictment were to raise problems of the kind addressed in argument, the fairness of the trial proceeding on that basis could be evaluated by the trial judge. Indeed, the court, confronted with such a situation, could, if it were appropriate, dismiss the conspiracy charge under s 11.6 of the Code. The real response to the argument, however, is that it does not carry much weight, if any at all, in terms of the proper construction of s 11.5 of the Code. So too with the argument based on the provisions of Part 2.4 of the Code.

113 Although the following observation has little or nothing to do with the construction argument, it might be observed that none of the “unworkable” propositions have any actual bearing on the present conspiracy charge. While the singular agreement charge relates to the carrying out of activities involving more than one offence, they are the same offence (s 101.6 of the Code); they carry the same penalty; there are no defences or limitations applicable to one and not to the other or others; there are no strict liability provisions.

114 Another argument raised related to the s 23 of the Acts Interpretation Act 1901 (Cth). It is plain that s 23 of the legislation applies to the Code and to its various provisions “unless the contrary intention appears”. So far as s 11.5 is concerned, I see no reason why s 23 would not have application to it; and, for the reasons I have already mentioned, I am not satisfied that there is a contrary intention expressed in the section under consideration. I accept that there have been recent cases where the courts have refrained from imputing plurality into singular offence section. But each statute must be examined as its own language and the context of that language. I do not accept that this interpretation of the section would destroy the coherence between 11.5 and other provisions of Part 2.4.

115 One of the authorities to which I have referred was my decision in Regina v Lodhi [2005] NSWSC 1377; [2005] 199 FLR 236. In that case I was confronted with an indictment where a duplicity argument arose. The indictment contained four separate charges each alleging one offence against the provisions of the Code dealing with terrorism offences, being those contained in Part 5.3 of the Code.

116 I was not persuaded in that case, that a secondary argument advanced on behalf of the Crown should be accepted. I thought the argument was inconsistent with the principal Crown argument; and further, I considered that a contrary attention appeared so as to deny the extension contemplated by s 23 of the Acts Interpretation Act (Cth). The decision has little or no bearing on the present matter. In addition s 101.6(2)(c) had not been enacted at the time. Its presence may have led to a different conclusion.

117 I do not consider that there is any doubt about the general applicability of the Acts Interpretation Act (Cth) to the Code, nor was it suggested that it did not have application. Moreover, I do not consider that the offence creating sections in 101.5 and 101.6 of the Code have any real bearing on the construction of s 11.5 of the Code.

118 One extensive area of the written submissions addressed the proposition that it may be legitimate, depending on the circumstances, to charge in a single count one activity, even though that activity may involve more than one act and notwithstanding that each such act would itself constitute an offence. This proposition was approved in DPP v Merriman (1973) AC 584 at 593.

119 The proposition has been adopted in New South Wales in particular cases. In Hamzy (1994) 74 A Crim R 341 Hunt CJ at CL (with whom Abadee and Simpson JJ agreed) said that where the Crown seeks to establish a particular activity or enterprise, it may rely upon every act which it intends to prove, although it does not have to establish every such act in order to succeed. The Crown would be obliged, in such a case, to provide particulars to enable the accused to know the case, which he has to meet and to enable the trial judge to deal with objections and directions. (See also R v Locchi (1991) 22 NSWLR 309 per Samuels JA with whom Enderby and Loveday JJ agreed); R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ with whom Wood CJ at CL and Bell J agreed; see also, more recently R v Petrouliaus (No 34) [2007] NSWSC 1462 at para 23 to 27.

120 The written submissions originally prepared by Mr Button SC and Mr Nash examined this proposition in the light of authorities where the analysis revealed that the particular offence creating section required that the indictment should allege the commission of one offence only; or where several counts charging one offence only were required. Such a case was Walsh v Tattersall, mentioned earlier. There were others as well but there is no need for me to consider these further. This is because senior counsel ultimately accepted that a single conspiracy charge could allege an agreement to commit more than one offence pursuant to the agreement.

121 As a consequence, it is not necessary for me to consider s 101.6 and whether it would be possible, without infringing unfairness or duplicity principles, to charge a course of conduct in a single charge in the indictment where reliance was to be placed upon a number of acts, each of which would itself constitute an offence against s 101.6. There are clearly arguments both ways. This must remain a matter for resolution in the future.

122 The final matter I have considered on this aspect is the issue of fairness. It is often the case that duplicity arguments really involve an analysis of whether some actual or anticipated unfairness arises out of the form of the indictment. In this matter, I am perfectly satisfied that there is no such unfairness. I am conscious of the fact that there may be some outstanding issues about particulars but I am sure that they will be resolved satisfactorily. Subject only to that matter, I think that the accused well know the nature of the case that is to be made against them. There is no warrant for any suggestion that the charge is, either on its face or otherwise, misleading or unfair.

123 For these reasons, I consider that the first principal argument advanced on behalf of the accused must fail.

124 The second principal argument is primarily concerned with the expression appearing in the indictment “to do acts in preparation for a terrorist act (or acts)”.

125 There appear to me to be two arguments advanced on behalf of the defence in this submission, although they are closely aligned. It may be helpful if I recite part of the written submissions filed by Mr Buscombe on behalf the accused Baladjam: -

“20. There is clearly a difference between entering into an agreement to do an act or acts in preparation for a single terrorist act and entering into an agreement to do an act or acts in preparation in preparation for more than one terrorist act. Those two agreements are not the same. In terms of the fourth element of the offence under s 11.5(1) of the Criminal Code, the intention required to enter into the two agreements is clearly different. A person may well have an intention to join an agreement to do an act or acts in preparation for a single terrorist act such as to destroy a particular building, yet no have an intention to join an agreement to do an act or acts in preparation of multiple terrorist acts, being the destruction of a number buildings. The two agreements are distinct and require a distinct intention, and give rise to different offences.

The count on the indictment purports to allege two distinct agreements. To that degree, it is patently duplicitous.

The particulars of the terrorist act or acts provided in the indictment exacerbate the degree of duplicity that the indictment contains. It appears that the indictment as particularised encompasses at least the following agreements:

An agreement to do an act or acts in preparation for a single terrorist act involving the detonation of, or the threats of a detonation of, an explosive device or;

An agreement to do an act or acts in preparation for more than one terrorist act involving the detonation of, or threat of the detonation of, an explosive device or;

An agreement to do an act or acts in preparation for a terrorist act that involves the use of, or threat of, the use of weaponry or;

An agreement to do an act or acts in preparation for more than one terrorist act which involves the use of weaponry or:

An agreement to do an act or acts in preparation for a single terrorist act which involves the use of, or threat of, the use of, weaponry and the detonation of an explosive device.”

126 Mr Button’s written submissions concluded as follows: -

“In short, as the indictment stands, there are potentially two conspiracies alleged: one to do preparatory acts for a terrorist act, the other to do preparatory acts for terrorist acts. That state of affairs is not in accordance with the principles enunciated in the case law”.

127 Mr Button referred, in the course of his submissions, to the remarks of Jordan CJ in R v Ongley at p 117 where the Chief Justice referred to the problems that could arise for a jury where there were in fact more than one agreement alleged in an indictment.

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

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

130 In relation to the expression “a terrorist act or acts” I must say that my initial reaction was that I was unsure as to why the Crown wished to express the charge in these terms. I questioned whether it was necessary, having regard to the Crown case, to express the indictment in this way. In Lodhi, I had politely suggested to the Crown that this expression be altered. The suggestion was made not to express any concluded opinion, but to avoid an unnecessary controversy, having regard to the state of the legislation at that time and the nature of the Crown case in that trial.

131 But, on reflection, it seems to me that the expression is not, in any event, duplicitous in the context of the present indictment. There are two reasons for this. The first emerges from the discussions both by myself and later by the Court of Criminal Appeal in the various Lodhi decisions. Those decisions make it clear that an act done in preparation for a terrorist act as I mentioned earlier, may occur in situations where the precise nature of the terrorist act may be uncertain. For example, Mr Lodhi had been charged in count 4 of the indictment with an offence contrary to s 101.4 of the Code. The charge was as follows: -

“On or about the 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 incensory devices and concerning “intelligence” which was connected with preparation for a terrorist act, knowing the said connection”.

132 The particulars of the terrorist act were cast in the alternative, that is, “involved in the detonation of an explosive or incensory device or devices or the use of a poison or poisons”.

133 The Court of Criminal Appeal examined the elements of the substantive offences with which the appellant had been charged. The Court concluded that in each count only one act was alleged being the physical element of conduct. For example, in count 4, it was the act of “possessing” the document. The additional words “connected with preparation” was a circumstance. In count 2, the physical element was “doing an act”. The Court concluded that, as the offences were intended to apply before a decision had been made precisely what was intended to be done, there was no duplicity in identifying a range of matters that may constitute a relevant circumstance (R v Lodhi [2006] NSWCCA 121 at 69-70). Further, it held that the scope and nature of the legislative scheme demonstrated that the legislative intent was to create a single offence with one or more of the specified characteristics.

134 Here the position is somewhat different. I am here considering a conspiracy charge concerned with the commission of offences against s 101.6. The count alleges a single agreement “to do acts in preparation for a terrorist act or acts”.

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

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

137 Secondly, there are many cases in which a conspiracy having been formed, there are changes and alterations occurring during the life of the conspiracy. I have referred to a number of cases of that kind earlier in this decision. It is clear that a conspiracy, once formed, is capable of remaining a single offence notwithstanding that during its currency, a number of identifiable and separate acts within its general purpose may come to be carried into effect. (For example, Mylonas (1985) 20 A Crim R at 214; and Saffron v R (supra) where several nightclub businesses were acquired during the period of the conspiracy, the purchase of which had not been precisely contemplated at the time the agreement commenced).

138 This raises, perhaps, a different question. But it provides a framework for understanding that, in the present matter, there is but one agreement. The agreement contemplates that a range of activities will be undertaken by the conspirators to obtain the capacity or capability to prepare for a terrorist act or acts, even though no precise terrorist act or acts has, or have been determined. The physical and fault elements required for a charge of conspiracy under the Code are the single physical element of conduct to enter into the proscribed agreement; and the fault element, being the intention to enter into the agreement. In addition, a person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and the person and at least one other party to the agreement must have committed an overt act pursuant to the agreement. (Section 11.5(2)(b) and (c). See Howie J in Ansari at paras 63 to 66; and Simpson J, in the same case, at 32 where her Honour referred to the intention mentioned in 11.5(2)(b) as being a different intention from the fault element intention necessary to support the physical element.

139 The point I am addressing here is Mr Buscombe’s submission that the expression “preparation for a terrorist act or acts” connotes two agreements. I do not think this is right. Moreover, Mr Buscombe alleged that the fault element “intention” in s 11.5(1) might be different intention in the case of an agreement to do an act in preparation for the destruction of a particular building, whereas a different intention would be required to do an act or acts in preparation for the destruction of a number of buildings. On the indictment charged here, the Crown must prove as a physical element and, as a fault element, an intention to enter into the specified agreement. There will however, be but one agreement and one intention. In addition, there will be a need to prove a further intention, namely an intention to commit the offences represented by the offences contemplated by the agreement itself. This “ulterior intention” is also but one intention: it is not more than one. The Crown must prove that it was the intention of the conspirators to obtain the capacity or capability to prepare for a terrorist act or acts. This “ulterior intention” is the subject matter of the offence or offences described in s11.5.

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

An Offence unknown to the law

141 Mr Lange made the submissions in relation to this third point. It may be convenient if I set out the final form of further submission, which Mr Lange sent to me on 10 March 2008.

“When interpreting s 101.6 of the Criminal Code , it must be borne in mind that the section is phrased broadly, and does not impose any limitations based upon the proximity between the preliminary act and the ultimate terrorist act. Thus, by agreeing to do an act in preparation for a terrorist act, the persons, who are part of that agreement, are themselves engaged in a preliminary act, punishable pursuant to s 101.6. Put succinctly, to conspire is to do an act in preparation. …

R v Chow

142 The consequence of the submission, if accepted, is that Mr Lange’s client has been charged with an offence, which is unknown to the law.

143 There were a number of planks to Mr Lange’s submission. These are set out in his earlier written submission and in the oral submissions he made to the Court on 5 March 2008. These “planks” as I have called them, are, upon analysis, in my view of unsound structure.

144 The first plank in Mr Lange’s argument emerged from an examination of the difference in language between ss 101.1, 101.4 and 101.5 of the Code when compared to the language used in 101.6. It is convenient to mention s 101.1 as well. This section makes provision for an offence where a person engages in a terrorist act. It carries with it a penalty of imprisonment for life. Clearly enough, there is an absolutely direct connection between the act of the person charged and the terrorist act. He or she must “engage” in it. By way of contrast, ss 101.4 and 101.5 create offences where either possession of material or preparation of a document is “connected with” preparation for a terrorist act. Again, by way of further contrast, s 101.6 provides that a person commits an offence if the person does any act in preparation for, or planning, a terrorist act. The penalty once again for this offence is imprisonment for life whereas in the two sub-sections immediately preceding there is a lesser maximum penalty.

145 Mr Lange went on to argue that, as a consequence of these distinctions in the statutory language, it may be asserted that the person doing the preliminary act (“any act in preparation for”) a terrorist act must hold the intention to do the terrorist act. Although, Mr Lange conceded that the terrorist act may not have been clearly defined in the person’s mind, it was nevertheless necessary, he argued, that the offender must be a person who intends to commit the terrorist act.

146 The problem with this argument is that it is contrary to both the Code itself and decided authority. In Lodhi v R [2006] NSWCCA 121 at pars 89 and 90, Spigelman CJ said at para 90:

Criminal Code

147 In addition, at para 91 the Chief Justice noted that the relevant fault element, in the case of s 106.1, is “recklessness” by force of s 5.6(2) of the Code. His Honour thought that the indictment when repleaded, should plead “recklessness for this charge”. Indeed, in Lodhi when the indictment was re-drawn, it contained that fault element for the offence under s 101.6.

148 In Lodhi, Sully J agreed with both the Chief Justice and the Chief Judge (para 111). Although McClellan CJ at CL published some separate remarks concerning whether the indictment had failed to state the essential elements, I do not take his Honour to have disagreed with the propositions I have stated in the Chief Justice’s judgment.

149 In my view, it is clear that it is not an element in s 101.6 that the person alleged to have done the preparatory act is the person who will carry out the terrorist act. The position is quite to the contrary. Of course, in a particular case the Crown may allege that the person carrying out the preparatory act does intend to commit the terrorist act but that will be a matter that simply arises on the facts of a particular case.

150 The next plank of the argument relates to the requirement that in a conspiracy charge under the Code at least two persons must have intended that an offence will be committed pursuant to the agreement. Mr Lange argued, however, that an extension of this was that it must be one of the conspirators who will engage in the objects of the conspiracy. This too, in my opinion, involves a misconception and is not consistent with authority. In Ansari at para 9 Simpson J made it clear that it is not necessary that the physical acts that make up the offence are intended to be or will be committed by any particular person. Simpson J said: -

“In particular, it is not necessary that they are intended to be, or will be, committed by any of the conspirators. Two people may, for example, agree to arrange the importation of prohibited drugs by using an unwitting agent who is wholly unaware that he is carrying the drugs…what is essential to the offence of conspiracy is an agreement, and an intention, that an offence (punishable as set out in s-sub 1) will be committed”.

151 These remarks dispose of the proposition that the Code requires that the objects of the conspiracy be carried out by the conspirators. Of course, in a particular case they may well be. But that it not to the point.

152 The third plank of Mr Lange’s argument related to the reasons underlying the penalty differences between the various offences in the terrorism section of the Code. However, contrary to Mr Lange’s submission, I think that the real point of the differences between the various sections is that the penalty increases because of the increasing proximity of the more serious offences to the carrying out of a terrorist act. Mr Lange sought to find some support for this aspect of his argument in a perceived difference between remarks by the Chief Justice in the Lodhi decision to which I have referred and certain remarks made by the Chief Judge in that case. The difference is said to be between para 90 of Spigelman CJ’s decision(which I have set earlier) and para 108 of the Chief Judge’s decision. The latter paragraph is as follows: -

“An essential element of an offence under 101.4 and 101.5 is knowledge by the accused of connection of his or her own action with a terrorist act. Of course, the terrorist act may be the accused’s own act or the act of another. Section 101.6 directly relates the action of the accused to a terrorist act. In each case, knowledge of the terrorist act is fundamental to the offence and accordingly, particulars of the terrorist act are essential factual ingredients and must be pleaded”.

153 I take his Honour, the Chief Judge, to be stating that s 101.6 more directly relates the actions of the accused to a terrorist act than do the earlier sections. I also take his Honour to be saying that, where the Crown case is that the terrorist act may be the accused’s own act, that should be particularised in the indictment. I do not understand his Honour to be taking a different point of view as to the necessary fault element in relation to the physical element in s 101.6. That is clear I think when para 108 is read in context with paras 109 and 110. Indeed, the Chief Judge’s observation that the terrorist act may be the accused’s own act “or the act of another” puts paid to one of the basic propositions in Mr Lange’s argument.

154 Consequently, I do not think it is correct to say that, where a number of persons have entered into an agreement to obtain the capacity or capability to prepare for a terrorist act or acts, the entry into that agreement is itself an act done in preparation for or planning a terrorist act. The accused are not charged with conspiring to agree to commit an offence or offences. The offence contained in s 101.6 of the Code is a substantive offence. Section 2.2 of the Code applies Chapter 2, which includes s 11.5, to all offences against the Code. This includes an offence contrary to s101.6. Consequently, the subject offence is precisely catered for in the Code; and it cannot be said that the accused, or any of them, has been charged with an offence unknown to the law.

Orders

155 I propose to dismiss all motions in which, to date, an attack has been made upon the indictment in the present matter.

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Citations

Regina (C'Wealth) v Baladjam [No 4] [2008] NSWSC 726

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CITATION:	Regina (C'Wealth) v Baladjam & Ors [No 4] [2008] NSWSC 726
HEARING DATE(S):	04/03/08, 05/03/08,
JUDGMENT DATE :	18 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	All orders sought in the Notice of Motion refused and application dismissed.
CATCHWORDS:	CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Patent and latent duplicity - Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a conspiracy to commit a preparatory act is unknow to law - Criminal Code Act 1995 (Cth), s 101.6. - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a charge of conspiracy should be dismissed on the basis that it is in the interest of justice to do so - Appropriateness of conspiracy charge - Criminal Code Act 1995 (Cth), s 11.5(6)
LEGISLATION CITED:	Commonwealth Criminal Code Act 1995 Terrorism Legislation Crimes Act 1914 (Cth) Fisheries Act 1935 Customs Act 1901 (Cth) Acts Interpretation Act 1901 (Cth) Statute Law (Miscellaneous) Provisions Act (No 2) 1984 (Cth) Crimes Amendment Act 1996 (Cth) Crimes Act 1914 (Cth) Criminal Law Act 1977 Workers' Rehabilitation Compensation Act 1986 (SA) Evidence Act 1995 Workers' Rehabilitation Compensation Act 1986 (SA) Acts Interpretation Act 1915 (SA) Acts Interpretation Act 1901 (Cth) Criminal Law Act 1977 Statute Law (Miscellaneous) Provisions Act (no 2) 1984 (Cth) Crimes Amendment Act 1995 (Cth)
CASES CITED:	Hoar (1981) 148 CLR 32 Final Report of the Criminal Law Offices Committee of the Standing Committees of Attorneys General December 1992 Ahearn v Regina (1988) 164 CLR 87 Mylonas (1985) 20 A Crim R at 214 R v Lodhi [2006] NSWCCA 121 at 69-70 DPP v Marriman (1973) AC 584 at 593 R v Locchi (1991) 22 NSWLR 309 per Samels JA R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ R v Petrouliaus (No 34) NSWSC 1462 at paras 23 to 27 R v Lodhi [2005] NSWSC 1377; [2005] 199 FLR 236 R v Saengsai-Or [2004] NSWCCA 108; [2004] 61 NSWLR 135 Regina v JS [2007] NSWCCA 272 at paras 142-145 MCCOC Report R v Ansari [2007] NSWCCA 204 Gerakiteys v The Queen (1966) 1 QB 589 Mok (1987) 27 A Crim R 438 Saffron v R (1989) 17 NSWLR 395 The Law of Criminal Conspiracy by Peter Gillies 2nd Edition 1990 at p 216 R v Ongley (1940) Volume 57 NSW (WN) at p 7 R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245 Viera v Regina; Teehan v Regina [2006] NSWCCA 401 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 R v Giam (1999) 104 A Crim R 46 R v Western Australia [2006] WASCA 241 at 81-82 and at 92 R v DEl-Kotob [2002] 4 VR 456 per Vincent JA at 42 R v Chung [2007] NSWCCA 231 at (51) James William Sheppard (1988) 37 A Crim R 303 at 308-313 R v Moore (1998) 1 Qd R 252 Morgan John Ryan (1984) 14 A Crim R at 97 R v Bruce Dowding [2000] VSC 439 at [20] and following Regina v Tripodi (1961) 104 CLR 1 Masters v R (1992) 26 NSWLR 450 R v Bolus & Ors [2003] NSWSC 658 Ruich Regina v Tripodi (1961) 104 CLR 1 Masters v R (1992) 26 NSWLR 450 R v Bruce Dowding [2000] VSC 439 at [20] (and following) R v Moore (1998) 1 QD R 252 Morgan John Ryan (1984) 14 A Crim R at 97 James William Sheppard (1988) 37 A Crim R 303 at 308-313 Ruich v Western Australia [2006] WASCA 241 at 81-82 and 92 R v El-kotob [2002] 4 VR 456 per Vincent JA at 42 R v Chung [2--7] NSWCCA 231 at (51) R v Bolus & Ors [2003] NSWCA 658 R v Lodhi [2006] NSWCCA 121; [2006] 199 FLR 303 at 55-56 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 R v Giam (1999) 104 A Crim R 46 R v Lodhi [2005] NSWSC 137 at para 66 R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245 Viera v Regina; Teeham v Regina [2006] NSWCCA 401 Gerakiteys v The Queen (1984) 153 CLR 317 at 334 per Deane J R v Ongley (1940) Volume 57 NSW (WN) at p 7 Yje Law of Criminal Conspiracy by Peter Gillies 2nd Edition 1990 at p 216 Griffith (1966) 1 QB 589 Mok (1987) 27 A Crim R 438 Saffron v R (1989) 17 NSWLR 395 in teh judgment of Hope JA at 421-426 Ansari v R [2007] NSWCCA 204 MCCOC Report Regina v JS [2007] NSWCCA 272 at paras 142-145 R v Saengsai-Or [2004] NSWCCA 108; [2004] 61 NSWLR 135 DPP v Merriman (1937) AC 584 at 593 Hamzy (1994) 74 A Crim R 341 R v Locchi (1991) 22 NSWLR 309 per Samuels JA with whom Enderby and Loveday JJ agreed R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ with whom Wood CJ at CL and Bell J agreed R v Petrouliaus (No 34) NSWSC 1462 at paras 23 to 27 Mylonas (1985) 20 A Crim R at 214
PARTIES:	Regina (C'Wealth) v Omar BALADJAM [No 4] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina {C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA
FILE NUMBER(S):	SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001
COUNSEL:	Ms W. Abraham QC; G Bellew SC; C O'Donnell; Ms S. McNaughton - Crown M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; T Ozen - Accused Elomar Ms D Yehia; Ms S Beckett - Accused Hasan G. Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Accused Sharrouf Hanley; P.King - Accused Touma
SOLICITORS:	C'Wealth DPP - Crown Greg Wash & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheihko William O'Brien & Ross Hudson Solicitors - Accused M Cheikho Nyman Ginson Stewart - Accused Elomar' Legal Aid Commission - Accused Hasan Michael Doughty Solicitors - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accysed Mulahalilovic Burke & Elphick Lawyers - Accused Touma