Regina v Lodhi

[2006] NSWSC 639

CITATION:	Regina v Lodhi [2006] NSWSC 639
HEARING DATE(S):	19/04/06
JUDGMENT DATE :	24 April 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	Refuse order sought on behalf of the accused and the indictment is to stand in its presently amended form.
CATCHWORDS:	Criminal Law - fresh indictment - duplicity
LEGISLATION CITED:	Criminal Code Act 1995 Criminal Procedure Act 1986
CASES CITED:	Lodhi v Regina [2006] NSWCCA 121 Spigelman CJ at paras 88 and 89 Romeyko v Samuels (1972) 2 SASR 520 at 552
PARTIES:	Regina v Faheem Khalid Lodhi
FILE NUMBER(S):	SC 2005/1094
COUNSEL:	Mr R. Maidment SC; Mr G. Bellew - Crown Mr P. Boulten SC; Mr P. Lange - Accused
SOLICITORS:	DPP (Commonwealth) - Crown Michael Doughty - Accused

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

WHEALY J

MONDAY 24 April 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - On application re Indictment

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

2 On 7 February 2006, the Crown presented a fresh indictment. The accused pleaded not guilty to each of the four charges in the new indictment. These charges were: -

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

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

4 Mr Boulten SC applied to quash the new indictment. First, it was sought to quash counts 2, 3 and 4 on the grounds that they were bad for duplicity. Secondly, the accused applied for an order quashing counts 1 to 4 on the ground that they failed to specify all essential factual elements.

5 During the course of argument, Mr Maidment SC indicated that he would seek leave to make a number of alterations to the indictment with a view to providing clearer particulars of the matters alleged. Subject to these contingent alterations, I ruled in favour of the Crown and against the arguments advanced by Mr Boulten SC on behalf of the accused. It was my view that the indictment, in its suggested amended form, should not be quashed.

6 An appeal was taken to the Court of Criminal Appeal from my decision. This was heard on 24 March 2006 and judgment was given on 13 April 2006. Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) ruled that the indictment was not bad for duplicity. The Court determined, however, that the indictment failed to specify the necessary factual elements of the offence in relation to each charge. For that reason, the Court ordered that the indictment be quashed.

7 On 18 April 2006 the Crown presented a new indictment. The charge, in its new form, endeavoured to include the factual elements which the Court of Criminal Appeal had found to be lacking in the earlier indictment.

8 Mr Boulten SC immediately made a fresh application pursuant to s 17 of the Criminal Procedure Act 1986. The application was to quash the new indictment. There were essentially three bases for the application. There were, however, two limbs to the first argument. The first point was that the indictment was bad for duplicity and this involved precise repetition of the arguments Mr Boulten had advanced unsuccessfully before the Court of Criminal Appeal. The second limb of this argument was that in certain new respects there was a latent duplicity in the new indictment. The second major argument suggested that the indictment, in certain respects, charged offences that were not known to law. The third major argument was a general argument that the new indictment was bad because it lacked, in effect, particularity. Mr Boulten SC argued that the terms of the indictment was so broad that they resulted in a situation where the indictment was completely unsatisfactory for its intended purpose.

9 As extensive and complicated arrangements had been made for the empanelment of a jury on 19 April 2006, it became necessary for me to give a prompt decision in relation to the application made on behalf of the accused. For that reason, on the morning on 19 April 2006, I determined that I would not make the order sought on behalf of the accused and I indicated that the indictment should stand in its presently amended form. (I should indicate that during argument the Crown had sought leave to delete one paragraph from each of the charges and this amendment was permitted). These then are my reasons for the decision refusing to quash the new indictment.

Ground 1 - Duplicity

10 The first limb of Mr Boulten’s argument may be dealt with briefly. It is sufficient to say that I am bound by the decision of the Court of Criminal Appeal and, in that regard, I find that the new indictment, insofar as the accused has repeated earlier arguments made, is not bad for duplicity.

11 In relation to the second limb of the argument on duplicity, it may be convenient if I set out in these reasons count 1 in the indictment. The same argument was made in respect of each of the counts and there is no need for me to set these out in full in this decision. Count 1 is in the following terms: -

“The Director of Public Prosecutions of the Commonwealth of Australia, who prosecutes in this behalf of Her Majesty, charges in the Supreme Court of New South Wales in its criminal jurisdiction at Sydney on 19 April 2006 that
Faheem Khalid LODHI

1. On or about 3 October 2003 at Sydney in the State of New South Wales, did collect documents, namely two maps of the Australian electricity supply system which were connected with preparation for a terrorist act, knowing the said connection

Particulars of Terrorist Act
An action pf threat of action involving the causing of serious damage to the Australian electricity supply system, or part thereof, by the detonation of an explosive or incendiary device or devices, done or threatened:
(a) with the intention of advancing a political, religious or ideological cause, namely violent “jihad”; and
(b) with the intention:
i. coercing, or influencing by intimidation the government of the Commonwealth or a State, Territory or foreign country; or
ii. intimidating the public or a section of the public; and
(c) in circumstances where the action, if carried out, would:
i. cause serious harm that is physical harm to a person or persons; or
ii. cause serious damage to property; or
iii. cause a person’s death; or
iv. endanger a person’s life, other than the life of the person taking the action; or
v. create a serious risk to the health or safety of the public or a section of the public; and
(d) in circumstances where the action to be done or threatened would not be advocacy, protest, dissent or industrial action of a kind not intended to:
i. cause serious harm that is physical harm to a person; or
ii. cause a person’s death; or
iii. endanger the life of a person, other than the person taking action; or
iv. create a serious risk to the health or safety of the public or a section of the public.”

12 The point of attack appears in paragraph (b) as set out above. Mr Boulten SC argues that the two alternatives represented by the matters in (i) and (ii) of paragraph (b) reveal a latent duplicity. I do not believe this to be so. I will not repeat the statement of principles applicable to the duplicity argument or the analysis I conducted in the earlier decisions. The analysis, however, found favour in the Court of Criminal Appeal.

13 In his judgment in Lodhi v Regina [2006] NSWCCA 121 Spigelman CJ said at paras 88 and 89:

“88. I have set out the counts in the Indictment above. That part of each of Counts 2, 3 and 4 discussed under the heading of “Duplicity” above, concerned with the results of the terrorist act in terms of death, serious physical harm or serious damage to property represents the identification of some of the list of matters set out in subs (2) of the definition of terrorist act which are applied by par (a) of that definition. The Crown has, accordingly, pleaded in each count one part of par (a), relating to subs (2) of the definition. It has not pleaded the second part of par (a) namely the proposition that the alleged actions did not fall within subsection (3). Nor has it pleaded the “intention” referred to in either par (b) or par (c) of that definition. The issue is whether or not these matters constitute an essential element of the offence. In my opinion they do.
89. This may not prove to be of great practical significance because on my above reasoning, in the context of dealing with the duplicity argument, the approach in Romeyko would apply equally to the respective component parts of the definition of “terrorist act”. An action falling within subs (2) will frequently be motivated by more than one “cause”. Motivations of a “political, religious or ideological” character frequently overlap. Similarly, an action falling within (2) of the definition will often tend to coerce or influence by intimidation more than one government, as well as intimidate the public or a section of the public. Contrary to the submissions of the Applicant, the further definition of the offence may not be of significance in restricting the scope of admissible evidence, Nevertheless, they should be so specified as an essential ingredient”.

14 Mr Boulten SC suggested that these comments by Spigelman CJ did not specifically relate to the duplicity argument but rather to the argument regarding the omission of essential elements. I do not consider that Mr Boulten’s argument carries much weight in this regard because it is clear to me that Spigelman CJ’s observations have a plain resonance for the duplicity argument as well. Moreover, as Spigelman CJ observed in Lodhi at para 74 the true distinction is that identified by Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552:

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

15 At para 75 Spigelman CJ said:

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

16 The reasoning of both Bray CJ and Spigelman CJ requires, in relation to the present matter, a conclusion that sub-paragraph (c) of s 100.1(1) of the Criminal Code Act intended the creation of one offence only, and that this is so even where the act or threatened action embraces one or more of the matters referred in the sub-section.

17 To take an example: recently, there was a suicide bombing in Tel Aviv outside a food store. There could be no doubt that the act was intended to coerce or influence by intimidation the Israeli government. Equally, there could be no doubt that the act was intended to intimidate the public or a section of the public of Tel Aviv. Placing that example in the present context, it is clear that relevantly, the action or threat of action involved in the suicide bombing was one that might be properly said to have occurred with the intention of one or more of the specified characteristics identified in sub-paragraph (c) of s 100.1(1) of the Criminal Code. This results however, for the reasons, I have given, in the creation of one offence and not two. The same reasoning applies to this aspect of the definition of “terrorist act” in each of the remaining charges in the indictment.

18 I turn now to mention the second argument raised by Mr Boulten SC. This focussed on paragraph (c)(vi) in each count of the indictment. The Crown accepted that there may have been a problem in this regard and sought the Court’s leave to amend the indictment to exclude, in effect, the paragraph under discussion in each count. No objection was raised to this amendment and the amendment was subsequently made. The amendment, in each case, appeared to me to address satisfactorily senior counsel’s second main argument.

19 The final argument raised by Mr Boulten related to the lack of focus and particularity in the new indictment. Mr Boulten argued that an indictment is supposed to “crystallise” the essential factual ingredients. But in circumstances where all that is repeated is every possible factual ingredient contemplated by the section, there is, he submitted, in fact no focus on the essential factual ingredients. Finally, Mr Boulten argued that the indictment was now “a bad indictment”. He asserted that it was pleaded in the way it was because the Crown was simply unable to say what it was that the accused was preparing to do. He was particularly critical of this situation in relation to counts 2 and 4.

20 My response to Mr Boulten’s argument is this: first, the accused had persuaded the Court of Criminal Appeal that the original indictment, although expressed in simple enough terms, did not set out all the essential factual ingredients. The new indictment now does set out those essential factual ingredients. Secondly, it is inevitable in such a situation that the new indictment will be far longer and more cumbersome in expression than the original document. That is necessarily the case having regard to the essential ingredients appearing in the definition section of the Criminal Code. Thirdly, I do not accept that there has been any alteration in the essential nature of the Crown case. It has always been the obligation of the Crown to prove the essential ingredients of each charge beyond reasonable doubt. It would have been, and still is, the duty of the Court, whatever the form of the indictment, to direct the jury in relation to the existence and nature of the essential elements of each charge. It remains the duty of the Court to give specific directions about the obligation placed on the Crown to prove each of those ingredients beyond reasonable doubt. Finally, in this regard, it has always been the Crown’s case that the alleged preparatory acts engaged in by the accused arose in the context of a situation where the ultimate target for the carrying out of the act may not have been selected.

21 The various matters I have identified in relation to Mr Boulten’s third submission lead me to a conclusion that the submission against the indictment should fail. These then are my reasons for the decision given on Wednesday, 19 April 2006.

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