The Queen v Cerantonio & Ors (Rulings 1-11)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA

Accused
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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	27, 30 & 31 October and 1-3 November 2017
DATE OF RULINGS:	8 December 2017
DATE OF REASONS:	12 December 2017
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Rulings 1-11)
MEDIUM NEUTRAL CITATION:	[2017] VSC 725	Second revision, 31 January 2018, at paragraph [107] & footnotes 19, 21, 29 & 32

---

CRIMINAL LAW – Pre-trial rulings – Six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country – Ruling 1: Statement of elements of offence charged – ‘Ruling’ 2: Whether particulars of alleged preparatory acts should be confined – Ruling 3: Whether inadequacy in particulars alleging accused agreed to “involve themselves in the Islamic insurgency in the southern Philippines with one or more of the objectives set out in s 117.1 in order to bring about Islamic rule there” – Ruling 4: Whether, to fall within definition of “engaging in a hostile activity”, alleged intended conduct in foreign country must be of “violent military-type”, or hostile, irrespective of intended objective of conduct – Ruling 5: Whether charge requires particularization as to which accused were allegedly to enter foreign country with intent to engage in a hostile activity – Ruling 6: Whether there must be agreement among relevant accused as to same intended conduct in foreign country with same intended objective/s thereof – Ruling 7: Whether matters listed in s 100.1(3) of Code must be included in indictment – Ruling 8: Whether, if action falling within subparagraph (b)(i) of definition of “engage in a hostile activity” is relied on as intended objective, indictment must also allege, pursuant to subparagraph (b)(ii) of same definition, how that action, if engaged in in Australia, would constitute a “serious offence” – Ruling 9: Whether particular effectively alleging agreement to agree to commit an offence is inapt – Ruling 10: Whether words “or elsewhere” and “or any other” should be deleted from indictment as surplusage – ‘Ruling’ 11: Whether particulars of intended objectives of intended conduct should be confined – Criminal Code (Cth), ss 11.2A, 100.1, 101.2, 101.4, 101.5, 101.6, 117.1, 119.1 & 119.4; Criminal Procedure Act 2009 (Vic), ss 159 & 199 & Schedule 1, clauses 1 & 2.

Appearances:	Counsel	Solicitors
For the Crown	Mr N Robinson QC with Ms R Sharp and Ms C Fitzgerald	Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio	Mr M Cahill SC with Dr G Boas	Stary Norton Halphen Criminal Lawyers
For Paul Dacre	Mr J McMahon SC with Ms G Morgan	Slades & Parsons Criminal Lawyers
For Antonino Granata	Mr C Farrington with Mr C Terry	Patrick W Dwyer Barristers & Solicitors
For Shayden Thorne	Ms M Fox QC with Mr S Moglia	Doogue O’Brien George Barristers & Solicitors
For Kadir Kaya	Mr D Hallowes SC with Ms F Todd	Galbally & O’Bryan Defence Lawyers
For Murat Kaya	Mr D Dann QC with Mr M Goldberg	James Dowlsey & Associates Criminal Law

HIS HONOUR:

Overview

Arrest, charge and committal

On 10 May 2016, Robert Cerantonio, Paul Dacre, Antonino Granata, Shayden Thorne and Kadir Kaya, all of whom hail from Melbourne, were arrested by police near Laura, a hamlet in the far north of Queensland. The five men had travelled there from Victoria in a Hyundai SUV towing a seven-metre Haines Hunter boat. Police had had the men under surveillance for a considerable period and suspected that they had been preparing to head overseas in the boat to a foreign country for the purpose of engaging in a hostile activity in Syria or Northern Iraq.

Each man was charged with an offence of that nature against s 119.4(1) of the Criminal Code (Cth) (“the Code”). A sixth man, Murat Kaya (the brother of Kadir Kaya), who remained in Victoria but was arrested later, was charged with the same offence.

All six have been committed for trial in this Court.[1]
[1]Robert Cerantonio, Paul Dacre, Antonino Granata, Shayden Thorne and Kadir Kaya were committed to this Court on 19 May 2017, whereas Murat Kaya was committed on 13 June 2017.

Indictment and particulars

On 23 October 2017, counsel for the Commonwealth Director of Public Prosecutions (“the Director”) filed an indictment (dated 1 September 2017)[2] charging the six accused jointly with an offence against s 119.4(1) “by virtue of” s 11.2A of the Code. Additional particulars of the allegations have been provided in the indictment itself and in other documents.
[2]On an earlier occasion, a different indictment (dated 4 August 2017) charging all six accused was sent to this Court on behalf of the Director, but was not formally filed.

In short, it is now alleged that the accused, who are Australian citizens, agreed to engage, and did engage, in conduct – including heading to the far north of Queensland with a boat in tow – in preparation for entry, by use of that boat, to the southern Philippines, with the intention of engaging in a hostile activity there – in particular, by involving themselves in the Islamic insurgency, with the intention of achieving one or more objectives, including, for example, the overthrow, by force or violence, of the government of the Philippines.

Trial proper

Presently, it is expected that a jury will be empanelled early next year. While estimates differ, it is thought that the trial proper is likely to take perhaps three months or more.

Objections to indictment and particulars

In pre-trial argument, counsel for the accused have taken several objections to the indictment. The principal objections concern whether aspects of the particulars are inadequate. This in turn has given rise to a number of issues of construction of the applicable Code provisions. Some of these issues are novel, as this is thought to be the first prosecution under s 119.4(1).

Summary of rulings

On 8 December 2017, I announced a summary of my rulings (and related suggestions) on these issues.[3] I deferred publication of my detailed reasons until today, 12 December 2017. Those detailed reasons follow.[4]
[3]These rulings were sought and made pursuant to s 199 of the Criminal Procedure Act 2009 (Vic).
[4]There is a good deal of overlap between the summary of 8 December 2017 and these reasons.

Before outlining the parties’ arguments and my reasons, it is convenient to set out parts of the indictment, some of the particulars that have been provided by the Director, and the relevant legislative provisions.

The indictment

So, first, to the indictment.

On page 1, under the heading “Statement of Offence” and the names of all accused, the offence charged is described in the following manner:

Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the [Code] by virtue of section 11.2A of the [Code].

On page 2, under the heading “Particulars and Statement of Offence”, and beside the subheading “Charge 1”, the following words appear:

The Director of Public Prosecutions … charges that between about the 22^nd day of October 2015 and the 10^th day of May 2016 at Melbourne in the State of Victoria and elsewhere, [each accused’s name is then listed], while each being an Australian citizen, did intentionally engage in conduct, believing that conduct was preparatory to the commission of an offence against s 119.1 of the [Code].

Particulars of the conduct

That Robert Edward Cerantonio did intentionally engage in conduct, namely:

a) Agreeing with at least one other accused that the offence be committed and intending that the offence be committed under the agreement;

b) Conducting internet research;

c) Meeting and talking with others to discuss ideology, travel and or other logistics and or the Philippines;

d) Purchasing items, including making inquiries about items and making arrangements for the purchase of items;

e) Accompanying others when they purchase items and or make inquiries about the purchase of items;

f) Preparing and making applications for finance and or funds; and

g) Travelling from Melbourne, Victoria, via Bendigo, to Laura, Queensland, including purchasing the Haines Hunter boat, GY141.

Immediately following these paragraphs, on pages 2 to 4 of the indictment, a mostly similar, but not identical, array of particulars of alleged preparatory conduct in Australia is given in respect of each other accused.

Then, on pages 4 to 5, the following is set out:

Particulars of the offence against section 119.1

That [each accused’s name is then listed], or another person, being an Australian citizen, would enter a foreign country, namely the Philippines or elsewhere, with intent to engage in a hostile activity in that or any other foreign country, namely engaging in conduct with the intention of achieving one or more of the following objectives:[5]
[5]Emphasis added.

a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

b) the engagement, by that or any other person, in action that:

i. falls within subsection 100.1(2) but does not fall within subsection 100.1(3), namely action:

a. causing serious harm that is physical harm to a person; or

b. causing serious damage to property; or

c. causing a person’s death; or

d. endangering a person’s life, other than the life of the person taking the action; or

e. creating a serious risk to the health or safety of the public or a section of the public; and

ii. if engaged in in Australia, would constitute a serious offence;

c) intimidating the public or a section of the public of that or any other foreign country;

d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

Statement of Offence – Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the [Code] by virtue of section 11.2A of the [Code].

Particulars in other documents

Next, I turn to some of the additional particulars provided by the Director, in varying levels of detail, in four other documents.

First, in a fourteen-page (undated) document entitled Particulars: Acts, Facts, Matters and Circumstances, further specific particulars are provided, for each accused separately, in respect of all (except the first) of the particulars listed in the indictment under the heading “Particulars of Conduct”.

Second, in a six-page (undated) document entitled Crown Position on Joint Commission, the Director advises of the date by which it is alleged each particular accused entered the agreement to commit the offence. In that document, it is also alleged that “the agreement was to engage in acts in preparation for departure to the Philippines (probably via Indonesia), to engage in hostile activities there, or in another country”.[6]
[6]Emphasis added.

Third, in the 41-page Summary of Prosecution Opening (dated 1 September 2017), filed pursuant to s 182(2) of the Criminal Procedure Act 2009 (Vic) (“the CPA”), the Director summarizes the Crown case against the accused and the evidence said to support that case.[7] Amongst other things, the following is said in that document:[8]

[4] … It is the Crown case that each accused intended that he and/or another would leave Australia to engage in hostile activity in the Philippines in the cause of violent jihad.

[5] The Crown alleges pursuit of a common goal between the accused that would enable (most of) them to leave Australia by boat and ultimately enter a foreign country, namely the Philippines or elsewhere, with the intention of engaging in hostile activity in the Philippines or elsewhere.

[7]There are also detailed footnotes referencing material in the brief.

[8]Summary of Prosecution Opening (1 September 2017) at [4]-[5] (emphasis added).

Finally, while neither the indictment nor the foregoing three documents specify the particular alleged intended conduct in the Philippines that would amount to “engaging in a hostile activity”, in a document entitled Prosecution submissions on the construction of s 117 of the Criminal Code (dated 25 October 2017), the Director provided further particulars of that allegation in the following terms:[9]

In late 2015, the accused decided and agreed to go to the southern Philippines so that they could achieve their goal of living under Islamic rule. They decided and agreed to ~~take action~~ involve themselves in the Islamic insurgency in the southern Philippines with one or more of the objectives set out in s 117.1 in order to bring about Islamic rule there.

[9]Prosecution submissions in relation to the construction of s 117 of the Criminal Code (25 October 2017) at [3].

An earlier iteration of the document (dated 20 October 2017) featured the words “take action”, absent the strike-through, whereas the underlined words “involve themselves in the Islamic insurgency” were added in the more recent version.

Thus, it can be seen that, over time, while the particulars as to the preparatory conduct in Australia have changed somewhat,[10] the particulars concerning the intended offence against s 119.1 have gone from alleging that the accused had an intention to enter the Philippines or another country with an intention, while there or elsewhere (including Syria or Northern Iraq), of engaging in unspecified conduct or taking unspecified action, with the intention of achieving one or more of some of the objectives listed in s 117.1(1), to an intention to enter the southern Philippines with an intention of involving themselves in the Islamic insurgency there, with the intention of achieving one or more of the objectives set out in s 117.1(1), in order to bring about Islamic rule there. I shall return to these latter aspects of the particulars later in these reasons.
[10]The particulars of the preparatory conduct pleaded in the original police charges were “the purchase of a motor vehicle, boat and trailer for the purpose of undertaking travel to Northern Queensland”. The original indictment contained the same particulars of preparatory conduct under the heading “Particulars of the conduct” as in the current indictment, except that it did not include those now appearing in paragraph (a) of the current indictment.

Legislative provisions

I turn now to the main relevant legislative provisions.

Section 119.4:Preparations for incursions into foreign countries for purpose of engaging in hostile activities

The provision creating the offence alleged against the accused, s 119.4(1), is found in Division 119 of Part 5.5 (both headed “Foreign incursions and recruitment”) of Chapter 5 (“Security of the Commonwealth”) of the Code.

Section 119.4 is headed “Preparations for incursions into foreign countries for purpose of engaging in hostile activities”. Relevantly, subsections 119.4(1), (6) and (8) provide as follows:

Preparatory acts
(1)A person commits an offence if:
(a)the person engages in conduct (whether within or outside Australia); and
(b)the conduct is preparatory to the commission of an offence against section 119.1 (whether by that or any other person); and
(c)when the person engages in the conduct, the person:
(i)is an Australian citizen; or
(ii)is a resident of Australia; or
(iii)is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia; or
(v)is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Penalty:Imprisonment for life.

…

Absolute liability element
(6)Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c), (4)(c) and (5)(c).
Note:For absolute liability, see section 6.2.
…

Disregarding paragraphs 119.1(1)(b) and (2)(b)
(8)A reference in this section to the commission of an offence against section 119.1 includes a reference to doing an act that would constitute an offence against section 119.1 if paragraphs 119.1(1)(b) and (2)(b) were disregarded.

Section 119.1:Incursions into foreign countries with the intention of engaging in hostile activities

Section 119.1 (“Incursions into foreign countries with the intention of engaging in hostile activities”) is also found in Division 119. Relevantly, subsections 119.1(1), (2) and (3) provide as follows:

Offence for entering foreign countries with the intention of engaging in hostile activities
(1)A person commits an offence if:
(a)the person enters a foreign country with the intention of engaging in a hostile activity in that or any other foreign country; and
(b)when the person enters the country, the person:
(i)is an Australian citizen; or
(ii)is a resident of Australia; or
(iii)is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia.
Penalty:Imprisonment for life.

Offence for engaging in a hostile activity in a foreign country
(2)A person commits an offence if:
(a)the person engages in a hostile activity in a foreign country; and
(b)when the person engages in the activity, the person:
(i)is an Australian citizen; or
(ii)is a resident of Australia; or
(iii)is a holder under the Migration Act 1958 of a visa; or
(iv)has voluntarily put himself or herself under the protection of Australia.
Penalty:Imprisonment for life.

Absolute liability element
(3)Absolute liability applies to paragraphs (1)(b) and (2)(b).

Section 117.1:Meaning of “engage in a hostile activity” and other terms

In s 117.1(1), which is found in Division 117 (“Preliminary”) of Part 5.5, the terms “engage in a hostile activity”, “government” and “serious offence” are defined as follows:

(1) In this Part:
…
engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(a)the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b)the engagement, by that or any other person, in action that:
(i)falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii)if engaged in in Australia, would constitute a serious offence;

(c)intimidating the public or a section of the public of that or any other foreign country;
(d)causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
(e)unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

…
government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.
…
serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.

Subsections 100.1(2) and (3):Additional objectives

Subsections 100.1(2) and (3) are referred to in subparagraph (b)(i) of the definition of “engage in a hostile activity”. These provisions, which also form part of the definition of “terrorist act” and appear in Division 100 (“Preliminary”) of Part 5.3 (“Terrorism”) of Chapter 5 of the Code, provide as follows:

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

(3)Action falls within this subsection if it:
(a)is advocacy, protest, dissent or industrial action; and
(b)is not intended:
(i)to cause serious harm that is physical harm to a person; or
(ii)to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
(iv)to create a serious risk to the health or safety of the public or a section of the public.

At this point, I note that neither the actions referred to in paragraph 100.1(2)(f) nor the matters referred to in subsection 100.1(3) are included among the particulars listed in subparagraph (b)(i) of the indictment under the heading “Particulars of the offence against section 119.1”. Nor is it said in subparagraph (b)(ii) of those particulars (or in any other documents provided by the Director) just how it is that any of the actions referred to in subparagraph (b)(i), if engaged in in Australia, would constitute a serious offence. I shall return to these observations in Rulings 6, 7 and 8.

Section 11.2A:Joint commission

The Director alleges that each accused has committed the offence against s 119.4(1) by reason of “joint commission” under s 11.2A of the Code. Section 11.2A (“Joint commission”) appears in Division 11 (“Circumstances involving external factors”) of Part 2.4 (“Extensions of criminal responsibility”) of Chapter 2 (“General principles of criminal responsibility”). Relevantly, subsections 11.2A(1), (2), (3) and (4) provide as follows:

Joint commission
(1)If:
(a)a person and at least one other party enter into an agreement to commit an offence; and
(b)either:
(i)an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii)an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2)An offence is committed in accordance with the agreement if:
(a)the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

Offence committed in the course of carrying out the agreement
(3)An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
…

Ruling 1: Draft statement of elements of offence charged

Request for statement of elements

I turn now to the first of my rulings.

In the course of pre-trial argument, the parties sought to identify the elements of the offence charged. At my request, the Director helpfully provided a draft jury checklist on the elements. This in turn gave rise to further debate about the elements and the way in which the Director’s case was to be put. As I understood it, in the end, at least the Director, and perhaps some of the accused, required that I rule on a statement of the elements of the offence charged in this case.

I accept that setting out such a statement provides a useful starting point for the analysis of some of the issues in dispute. It should also assist in determining other pre-trial issues to be determined, including various objections to the admissibility of evidence.

Complexities in offence charged

The offence created by s 119.4(1) is unusual. It is preparatory in nature. In particular, it is preparatory to the commission of another offence, which in turn (in this particular case) is directed at entry to and engaging in behaviour in a foreign country. In a sense, the offence is also a hybrid of a complete and an inchoate offence with at least three levels of ulterior intent, the last of which may, in a given case, concern numerous objectives, some of which are simple enough, others of which require mental gymnastics that would trouble the juristic equivalent of Nadia Comaneci.

All of this makes it a very complex offence, and one likely to be difficult to explain to a jury, which is proved by any attempt to describe it briefly. In substance, the offence involves intentionally engaging in conduct, while being an Australian citizen (or similar), which conduct is, and is intended to be, preparatory to entering a foreign country with the intention of engaging in a hostile activity in that or any other foreign country – which means with the intention of engaging in conduct in that or another foreign country with the intention of achieving one or more of a large number of particular objectives. If all of that were not difficult enough, it is alleged in this case that each accused is guilty of the offence by reason of the principles of joint commission.

Despite these complexities, I have attempted to state the elements as simply and as briefly as I can.

Draft statement of elements

Since the Director has advised that the offence charged under s 119.4(1) is alleged to have been preparatory to an offence against s 119.1(1) (but not s 119.1(2)) and that the form of joint commission relied on is that which is spelled out in ss 11.2A(1)(b)(i) and (2) (but not ss 11.2A(1)(b)(ii) and (3)), having regard to the general principles of criminal responsibility in Chapter 2 of the Code, and assuming (for the moment) the adequacy of the particulars relied on by the Director, but omitting some of them, a draft statement of the physical and fault elements of the offence as alleged might be broken down in the following way:

The accused person under consideration (say, “X”) will be guilty of the offence charged if, on the evidence admissible in his separate trial, the jury are satisfied beyond reasonable doubt of each of the following four elements, including their various components:

a) that X and one or more of his co-accused entered an agreement to commit an offence (the “preparatory offence”), that preparatory offence being:

i. that one or more of the parties to that agreement would intentionally engage in conduct within Australia (in particular, the buying of a boat and towing it to the far north of Queensland); and
ii. that that conduct would be, and would be intended to be, preparatory to the commission of a further offence by one or more parties to the agreement, that further offence being:

1) intentionally entering a foreign country (in particular, intentionally entering the Philippines by boat);

2) with the intention of engaging in a hostile activity in the Philippines, which means:

A. with the intention of engaging in conduct in that country (in particular, with the intention of involving himself or themselves in the Islamic insurgency in the southern Philippines); and

B. with the intention of achieving one or more of the following objectives (in particular, with the intention of (i) overthrowing, by force or violence, the government of the Philippines or (ii) intimidating the public, or a section of the public, of the Philippines); and

b) that the preparatory offence the subject of the agreement referred to in paragraph (a) was committed in accordance with the agreement, which is to say that:

i. one or more of the parties to the agreement, in accordance with the agreement, intentionally engaged in conduct (in particular, intentionally bought a boat and towed it to the far north of Queensland); and
ii. that conduct was, and was intended to be, preparatory to the commission of a further offence by one or more parties to the agreement, that further offence being:

1) intentionally entering the Philippines by boat;

2) with the intention of engaging in a hostile activity in the Philippines, which means:

A. with the intention of engaging in conduct in that country (in particular, with the intention of involving himself or themselves in the Islamic insurgency in the southern Philippines); and

B. with the intention of achieving one or more the following objectives (in particular, with the intention of (i) overthrowing, by force or violence, the government of the Philippines or the southern Philippines or (ii) intimidating the public, or a section of the public, of the Philippines); and

c) that X and at least one other co-accused who was a party to the agreement mentioned in paragraph (a), intended, at the time of entering that agreement, and while the conduct comprising the preparatory offence mentioned in paragraph (b) was being committed, that the preparatory offence and the further offence mentioned in paragraphs (a) and (b) would be committed under the agreement; and

d) that X was an Australian citizen when he entered the agreement mentioned in paragraph (a) and when the preparatory offence mentioned in paragraph (b) was committed.

Observations

Several observations may be made about this draft statement of elements. In no particular order, I mention only a few before moving on to other rulings.

First, in order to make the draft statement more readable, I have refrained from listing all of the particulars provided by the Director, including most of the particulars of both the preparatory conduct in Australia and the intended objectives of the intended conduct in the southern Philippines. As it happens, and as will be seen in more detail shortly, I take the view that it would be preferable to confine both sets of particulars in a similar way.

Secondly, as to the last element in the statement, it might be argued that, given the requirements of s 119.4(1)(c)(i) and the fact that, in the present case, at least one co-accused must be part of the agreement, and might also participate in the conduct (or be intended to participate in the future conduct) involved in the offence in some way, in order to make out the offence against the accused in question, paragraph (d) should be expressed in a way that ensures that the jury understands that both the accused in question and any co-accused alleged to be involved in the agreement or the proscribed conduct are Australian citizens at the relevant time. Thus, an alternative draft of paragraph (d) might read as follows:

d) that X and any co-accused who was a party to the agreement mentioned in paragraph (a) or who engaged in the conduct mentioned in paragraph (b) or who was to enter the Philippines with the requisite intention to engage in a hostile activity were Australian citizens at the time of the agreement, conduct and intended entry.

That said, counsel have advised that there will be no dispute that each accused was an Australian citizen at the relevant time. In those circumstances, and assuming there remains no dispute about it, it may be sufficient to leave paragraph (d) as it is in the original draft. This can be discussed with counsel at a later time. Thus, for the moment, it is preferable to leave to another day the decision whether, in a case of alleged joint commission, those other than the accused in question would have to be Australian citizens in order that an offence of the type charged here might be established.

Thirdly, while s 119.4(1) creates a single offence which involves, among other things, conduct that is preparatory to another offence (in this case, an offence against s 119.1(1)), the jury will need to understand how the two offences differ and yet how their elements combine to form the one alleged offence in this particular case. While it may be obvious, the jury also will need to understand that neither the entry into the foreign country nor the “engag[ement] in a hostile activity” which forms part of the (s 119.1(1)) offence to which the preparatory conduct was allegedly directed, need have occurred in order that the offence charged under s 119.4(1) might be established. Instead, these are matters that must be agreed and intended to occur. Thus, subject to discussion with counsel, and while they are not terms of art mentioned in the legislation, in order to facilitate explanation of these and other concepts to the jury, I intend to use the terms “preparatory offence” and “further offence”, as I have done in the foregoing draft.

Finally, subject to some important qualifications, I apprehend that both the Director and the accused would accept the foregoing draft statement of elements as accurate.

‘Ruling’ 2: Whether particulars of preparatory conduct in Australia should be confined

The first qualification gives rise to my second ruling, although it is really more of a polite suggestion than a ruling.

As things presently stand, and as will be apparent from the foregoing information given about the indictment and the particulars provided, the particulars of the preparatory conduct alleged to be agreed and engaged in in Australia to be relied on by the Director go well beyond buying a boat and towing it to the far north of Queensland. Strictly speaking, I was not asked to rule on whether these particulars should be confined in the manner I have confined them in the foregoing draft statement of elements, although it is a matter I raised in discussion with counsel for the Director. Thus, as I say, what follows is not, at this stage, a ruling, but, rather, a polite suggestion.

If I might say so, it would seem to me that confining those particulars in the manner suggested has multiple virtues. First, those particulars would seem to be capable of making out the preparatory conduct required to establish the offence charged. Secondly, they avoid the complexities of multiple particulars, and of differing particulars among the accused. Thirdly, being confined in that way, they would make it easier to explain the case to a jury, and easier for a jury to comprehend. Generally, simpler is better. Fourthly, they avoid, or at least limit, the risk of duplicity (or multiplicity) – whether patent or latent – particularly in a case involving multiple accused alleged to be guilty of an offence by reason of the principles of joint commission.

Further, the absence of the more numerous and detailed particulars of this conduct would not deny the Director the ability to lead the evidence that might have supported those particulars. It strikes me that that evidence, if otherwise admissible, still could be employed as proof of the alleged agreement or intention to buy the boat and head up north with it, in so far as it may be probative of those things. In addition, if that evidence is also, or instead, probative of the agreement or intention to head to the Philippines with the requisite intent to engage in a hostile activity when there, then it may be led in proof of those allegations as well.

Finally, although Murat Kaya did not go on the trip to Queensland, I should not have thought that confining the particulars in the way I have suggested would deny or undercut the Director’s case against him. Indeed, the Director still would have a case against Murat Kaya if it were proved that he was a party to an agreement that one or more of his co-accused would buy a boat and head north with the requisite intention to float off to the Philippines with the further requisite intention to engage in a hostile activity when there, provided all of the other elements are made out too.

There is, however, a potential complication concerning the case against Murat Kaya which arises by virtue of different considerations, to which I shall return when dealing with Ruling 5.

Ruling 3: Whether particulars of intended conduct in the Philippines are inadequate

Introduction

I turn now to my third ruling.

By a marrying of ss 119.4(1) and 119.1(1) and the particular allegations here, and as the draft statement of elements shows, it is apparent that, in order to establish the offence charged, it will be necessary to prove, amongst other things, that the alleged conduct in Australia was agreed to be, and was, preparatory to entry into the Philippines and was agreed to be, and was, performed with the intention of “engaging in a hostile activity” when there.

The definition in s 117.1(1) makes clear that “a person engages in a hostile activity in a foreign country if the person engages in conduct[11] in that country with the intention of achieving one or more of the … objectives” set out in the paragraphs that form part of that definition.
[11]Emphasis added.

The issue in this ruling concerns whether the Director’s particulars of that alleged agreed and intended conduct – namely, “involving themselves in the Islamic insurgency in the southern Philippines with one or more of the objectives set out in s 117.1 in order to bring about Islamic rule there”[12] – are inadequate.
[12]Emphasis added.

Summary of submissions

In the accused’s submission, those particulars are inadequate, because they are so broad as to be meaningless, or virtually so. The particulars do not identify, with any or sufficient precision, how the accused were intending to “involve themselves” in the Islamic insurgency or just what was the “Islamic insurgency” in which they were to involve themselves. The accused submitted, additionally, that the phrase “Islamic rule” is too vague, in much the same way that John Dixon J found the phrase “the advancement of Islam” to be too vague in R v Karabegovic (Ruling No 3).[13]
[13]R v Karabegovic (Ruling No 3) [2015] VSC 614 at [200].

It is also submitted that, on a proper construction of the definition of “engage in a hostile activity” found in s 117.1(1), the intended conduct in the foreign country must be of a “violent military-type” or involve “serious military-type objectives”, in and of itself, and without classifying the conduct by resort to the intended objectives set out in the definition. Thus, it is submitted that, in effect, this aspect of the particularization fails to disclose an offence, because, as a result of its uncertainty, the alleged intended conduct does not necessarily involve “violent military-type” conduct or “serious military-type objectives”.

The Director, on the other hand, rejects the complaint that the particulars are too broad. It is submitted that an intention to “involve themselves in the Islamic insurgency” is sufficiently precisely identifiable intended conduct, especially when considered in light of the alleged intended objectives listed in the indictment. In the area of preparatory terrorism offences, the courts have held that, since it was the intention of the legislature to create offences where an offender has not necessarily decided precisely what he or she intends to do vis-à-vis a terrorist act, the level of particularization as to the terrorist act need not be as precise as it might be in other cases. The Director’s submission is that the same reasoning is applicable to the intention to engage in a hostile activity for the purposes of the preparatory offence against s 119.4(1).

The Director also submits that any intended conduct in the foreign country will suffice, no matter how apparently innocuous it may seem and even if it has no tangible effect in bringing about any objective in the definition of “engage in a hostile activity”, provided it is intended to be engaged in with the intention of achieving one or more of the objectives listed in the definition in s 117.1(1). Counsel went so far as to say that, even if it were intended that an accused, while in the Philippines, was merely to wear a sandwich board bearing a slogan such as “Bring down the government”, that would be sufficient conduct for the purposes of meeting the definition of “engage in a hostile activity”, provided that was to be done with the intention of achieving one or more of the statutory objectives.

In this third ruling, I shall deal first with whether the particulars are inadequate. In my fourth ruling, I shall return to the issues concerning the nature of the intended conduct in the foreign country.

Accused must be informed of factual foundation for charge

By force of s 159(3) and clause 1 of Schedule 1 of the CPA, a charge in an indictment must “state the offence that the accused is alleged to have committed” and “contain the particulars … that are necessary to give reasonable information as to the nature of the charge”. Further, s 182(2) of the CPA requires that a summary of prosecution opening must outline “the manner in which the prosecution will put the case against the accused” and “the acts, facts, matters and circumstances being relied on to support a finding of guilt”.

These provisions reflect and, in my view, must be informed by, the common law. As Dixon J said 80 years ago, in Johnson v Miller,[14] an accused person:

is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

[14]Johnson v Miller (1937) 59 CLR 467 at 489. See also, e.g., R v Caldwell (2009) 22 VR 93 at 97[51] (per Kellam JA) and 99[59] (per Weinberg JA) (with both of whom Dodds-Streeton JA agreed).

In reliance on those remarks, and others, Hunt J said 30 years ago, in R v Mok:[15]

It has long been considered a cardinal requirement of the criminal law that an accused should be given proper particulars, and the courts possess an inherent authority to require the Crown to furnish particulars of the charge.

[15]R v Mok (1997) 27 A Crim R 438 at 441 (per Hunt J, with whom McInerney and Allen JJ agreed).

I think it is also necessary that particulars be sufficiently informative so as to allow the Court to understand the Crown case in order properly to consider any question concerning the admissibility of evidence and so that the issues the jury must determine might be explained to them adequately.

Further, if particulars are so broad as to capture multiple instances of conduct or intended conduct, any one of which could be a basis for a jury’s verdict of guilty, yet which vary substantially in their level of criminal gravity, it may be left to the judge to choose among alternative instances of conduct or intended conduct for sentencing purposes. While judges, when considering sentence, often must make findings of fact concerning offences not otherwise necessarily disclosed by jury verdicts, reliance on very broad particulars may mean that a judge is forced to determine important facts that really should be determined by a jury. Thus, adequate particularization can also be important in preserving the proper division of functions between judge and jury.

Finally, as Murphy J said in Gerakiteys v The Queen,[16] in the context of a conspiracy case:
There must be regularity and precision in charges for purposes of sentencing, parole and double jeopardy, as well as to ensure that an accused person truly knows what allegations he must meet. It is essential to avoid confusion about the basis of any conviction that may result. Unless courts insist on strictness in this area, there is a very real danger that, in a conspiracy trial, some members of the jury will believe that the accused is guilty of conspiracy A but not B, while others will find he is guilty of B but not A. Conspiracy must not be allowed to become so amorphous that it will create a real danger of concealed duplicity of charges, so that the accused may be convicted despite the lack of unanimity among the jury members.
[16]Gerakiteys v The Queen (1984) 153 CLR 317 at 323.
In my view, the same sentiments apply to a case of joint commission, as here.

Consideration

Overview

In Lafitte v Samuels,[17] Bray CJ said this:

The prosecutor … should not, in my view, strive to be as vague as possible in the hope that out of several ambiguities in the complaint one will ultimately be found to fit the evidence after it is all in.

[17]Lafitte v Samuels (1972) 3 SASR 1 at 6.

I do not suggest that the Director has striven for vagueness or ambiguity in this case. Indeed, the particulars the Director provided concerning the alleged preparatory conduct in Australia are detailed and helpful.

But the particulars at issue in this ruling are in a different category. In my view, the particulars of the alleged agreed and intended conduct in the Philippines are so amorphous, and admit of so many different potential instances of such conduct, as to be ambiguous and uncertain, and therefore inadequate.

I take this view irrespective of whether the intended conduct, in and of itself, must be of a “violent military-type” or involve “serious military-type objectives”, irrespective of whether such intended conduct must have a tangible effect in bringing about any objective in the definition of “engage in a hostile activity”, and irrespective of whether aspects of the reasoning in the field of preparatory terrorism offences are applicable to the preparatory offence against s 119.4(1).

My reasons follow.

“Involve themselves”

First, the allegation that the accused “decided and agreed to involve themselves” is too vague and uncertain to be adequate. It fails to identify, with sufficient particularity, just how the accused were intending to engage in the Islamic insurgency. “Involv[ing] themselves”, in context, could mean anything from engaging in armed conflict to planting bombs to handing out leaflets to singing protest songs to cheering at a rally. The manner in which the accused were intending to “involve themselves in the Islamic insurgency” must be more precisely defined.

“The Islamic insurgency”

Secondly, the concept of “the Islamic insurgency in the southern Philippines” is also imprecise and ambiguous. It embraces a wide variety of notions. An insurgency may, but need not, involve armed conflict or violence. As I understood the submissions, the Director conceded that there were, at the relevant time, some groups in the southern Philippines supportive of Islamic rule that were affiliated with the likes of ISIS, or otherwise had violent jihadist motives, whereas there were others that were not so affiliated and did not necessarily have the same extremist philosophy.

That concession gives rise to at least two difficulties. First, it may well be that all such groups would be considered to be part of “the Islamic insurgency”. Thus, to have “involved themselves”, whatever that might mean, “in the Islamic insurgency” with one of the latter groups would not necessarily involve an intention to achieve any of the objectives set out in the definition of “engage in a hostile activity”. Now, while an intention, say, to join one of the latter groups, if accompanied with the intention of achieving an objective within the definition of “engage in a hostile activity”, may suffice as intended conduct for the purposes of satisfying the element of intending to engage in a hostile activity, there still would be great potential for confusion and uncertainty in a verdict if the jury were left with particulars alleging merely an agreement or intention to “involve themselves in the Islamic insurgency”.

Secondly, while the Director submitted that there would be the necessary agreement – and that there would be no duplicity, whether latent or patent – if two or more accused had the intention of engaging in conduct with the intention of achieving different – even wholly separate – objectives, which is a matter to which I shall return elsewhere and in Ruling 6, the Director also accepted that the accused must be agreed on the intended conduct. Yet, if the alleged intended conduct – “involving themselves in the Islamic insurgency” – admits of different instances of intended conduct, as I think it must in light of the Director’s concession, such as one accused intending to involve himself with, say, an ISIS-affiliated group and a co-accused intending to involve himself with a different but peaceful group, then those accused would not be agreed on the same intended conduct.

When the potentially different ways in which persons might “involve themselves” with any such groups are added to the equation, it can be seen that there is not only a failure properly to inform the accused of the foundation for the charge against them but that there is also an unacceptable risk that accused who are said to have agreed and intended to “involve themselves in the Islamic insurgency” have not, in truth, necessarily agreed or intended to commit the same offence at all, such that any guilty verdict would be uncertain.

“Islamic rule”

I do not, however, accept the accused’s submission concerning the phrase “Islamic rule”. I do accept that that phrase is vague and that, in context, it might admit of entirely lawful behaviour, such as “helping, by political dialogue, to bring about the application of Sharia law in a particular region”.[18] But, while they are mentioned in the particulars provided, I do not understand the Director to be relying on the words “in order to bring about Islamic rule” as particulars of the intended conduct in the Philippines. Rather, I understand those words to particularize the accused’s alleged ultimate aim in, and motive for, heading to the Philippines. Thus, the steps are that the accused had an intention to involve themselves in the Islamic insurgency with the intention of achieving one or more objectives in the definition in s 117(1), such as the overthrow, by force or violence, of the government, with the ultimate aim of “bring[ing] about Islamic rule”, which was their preferred form of government. Accordingly, understood in this way, “bring[ing] about Islamic rule” is not strictly a particular of the proscribed agreement, conduct or intent.
[18]Mr Cerantonio’s Submissions on the Crown’s construction of s 117 (26 October 2017) at [36(c)].

Whether accused’s plans must be settled or precise at time of preparatory conduct

Overview

I return now to the Director’s submission that, because of the preparatory nature of the offence charged, the offence still can be committed if an accused’s plans are not necessarily settled or precise at the time of engaging in the preparatory conduct.

In light of the Director’s concession about the need to show that the accused agreed on the same intended conduct in the Philippines but the submission that ‘agreement’ as to different intended objectives was permissible, I understood this argument to go more in support of the latter submission. Nevertheless, I think that, as a matter of logic, the argument must be applied to the level of particularization required in respect of the intended conduct as well. Thus, I have proceeded on the understanding that the argument is that it must be that the legislature accepted that it would be permissible that neither the intended conduct in a foreign country nor the accompanying objective or objectives thereof need be necessarily settled or precise at the time of agreeing to and engaging in the preparatory conduct in Australia, and therefore need not be particularized with the level of specificity that might be demanded in the case of a more conventional offence.

In this regard, the Director seeks to draw comfort from the reasoning that has been applied, particularly by both the Supreme Court and the Court of Criminal Appeal in New South Wales, in a series of cases concerning the preparatory terrorism offences found in Part 5.3 of the Code. Thus, for example, in Lodhi v The Queen,[19] when speaking of the preparatory terrorism offences set out in ss 101.4(1) and (2), 101.5(1) and (2) and 101.6(1) of the Code, Spigelman CJ said this:
[19]Lodhi v The Queen (2006) 199 FLR 303 at 318[65]-[66] & [70] (per Spigelman CJ, with whom McClellan CJ at CL and Sully J agreed). See also, e.g., R v Lodhi (2005) 199 FLR 236 at 246[52] (per Whealy J); R v Lodhi [2006] NSWSC 584 at [84] (per Whealy J); Lodhi v The Queen (2007) 179 A Crim R 470 at 527[207] (per Barr J, with whom Spigelman CJ and Price J); R v Baladjam & Ors (No 4) (2008) 270 ALR 106 at 139[131]-140[136] (per Whealy J); B v R (2008) 76 NSWLR 533 at 543[43]-[46] (per Spigelman CJ, with whom James and Howie JJ agreed).

[65] Each of the offence sections is directed to 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 ways 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 of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.

…

[70] In an offence which is intended to apply before the offender has decided precisely what he or she intends to do, there is no duplicity in identifying a range of matters that may constitute a relevant “circumstance”.

The accused submit that there are several difficulties in applying the same reasoning to an offence against s 119.4(1), either generally or in the particular circumstances of this case. As will be seen, there are arguments pointing in different directions, and some that seem to be neutral.

Preparatory terrorism provisions and subject provisions compared

First, the preparatory terrorism offences and the preparatory offence in s 119.4(1) (and its counterparts in Division 119) are quite different in their terms and structure.

The key concept in the preparatory terrorism offences – namely, a “terrorist act” – is defined, in s 100.1(1), in the following way:[20]
[20]Information in italics and square parentheses added.

terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) [i.e. s 100.1(2)] but does not fall within subsection (3) [i.e. s 100.1(3)]; and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth, or a State, Territory or foreign country, or part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.

Thus, conduct amounting to a “terrorist act” is an action or threat of action where the action falls within s 100.1(2) (but not s 100.1(3)) when performed with an ‘advancing cause’ intention listed in paragraph (b) of the definition and also with an intention of the type mentioned in paragraph (c).

On the other hand, and as I shall return to shortly and in Ruling 4, the conduct that suffices for the purposes of the definition of “engage in a hostile activity” in s 117.1(1) is not defined. Instead, whatever that conduct might be, in order to meet the definition, it is conduct that must be engaged in with the intention of achieving one or more of the objectives listed in the paragraphs of the definition. Those objectives include, in paragraph (b)(i), the engagement, by that or any other person, in action that “(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and (ii) if engaged in in Australia, would constitute a serious offence”.

Thus, the actions or threats of action that comprise the entirety of the behaviour that might amount to conduct forming the bases for “terrorist acts” are, in part, a subset of the possible objectives of the undefined conduct required to meet the definition of “engage in a hostile activity” in s 117.1(1).

Further, however, while the definition of “engage in a hostile activity” incorporates, in subparagraph (b)(i), as relevant intended objectives, the same instances of action in s 100.1(2) (and the same exclusions therefrom in s 100.1(3)) that form the instances of “action or threat of action” that amount to the entire range of actions that may form the potential bases for any “terrorist acts”, as indicated a moment ago, there is an added requirement, in subparagraph (b)(ii), that any such action, if engaged in in Australia, would constitute a “serious offence”. This requirement does not appear in the definition of a “terrorist act”. This additional factor suggests that a greater degree of specificity in the particular allegation will be necessary in order that this element might be established.

Another difference is that, whereas a “terrorist act” requires that the action or threat of action be “done with the intention of advancing political, religious or ideological cause”, there is no such ‘advancing cause’ requirement in the definition of “engage in a hostile activity” in s 117.1(1) or in the terms of ss 119.4(1) and 119.1(1).

Further, the intended objectives listed in paragraphs (a), (d) and (e) of the definition of “engage in a hostile activity” are quite specific and have no equivalents in the intention required by either paragraph (b) or (c) of the definition of “terrorist act”.

On the other hand, the intended objective in paragraph (c) of the definition of “engage in a hostile activity” is, perhaps, less specific, and is substantially mirrored by the intention required by subparagraph (c)(ii) of the definition of “terrorist act”.

Thus, apart from the latter, the objectives listed in the definition of “engage in a hostile activity” involve a greater degree of specificity of intention, and therefore, arguably, a greater need for precision in particularization of both the alleged intended conduct, and the alleged intended objective or objectives of that conduct, than does the action or threat of action or the accompanying intention necessary to establish a “terrorist act” in a preparatory terrorism charge.

Further, because, unlike the actions that form the bases of “terrorist acts”, the conduct that will suffice as conduct for the purposes of “engaging in a hostile activity” is undefined (other than in terms of the intended objectives accompanying that conduct), I think it is unlikely that the legislature, in enacting ss 119.4 and 119.1, intended “to create offences where an offender has not decided precisely what he or she intends to do”. On the contrary, that lack of definition tends to suggest a corresponding need to describe, with some particularity, the alleged agreed and intended conduct. While it might be informed, in part, by the objectives alleged by the Director, that conduct cannot be guessed or inferred from those objectives. And such precision is all the more necessary when a number of objectives is alleged, as here. (That said, as I shall explain in ‘Ruling’ 11, if the Director were to confine the alleged objectives to the one common objective, I think the level of particularization of the alleged agreed and intended conduct in the Philippines may not need to be as precise as it would be if the Director persisted in alleging multiple objectives.)

Use of indefinite article (singular) in “engaging in a hostile activity”

Secondly, the use of the indefinite article in the phrase “with the intention of engaging in a hostile activity” in s 119.1(1)(a), and in the related definition in s 117.1(1), strikes me as potentially significant. The legislature might have chosen – quite happily, as a matter of style and meaning – to leave out the indefinite article, and speak of “engaging in hostile activity” instead, but it chose to include it, which suggests the choice of the singular was deliberate.

Such a construction is consistent with the Director’s concession, in so far as it goes, about the need to show that the accused agreed on the same intended conduct in the Philippines. And while I think that the phrase “involve themselves in the Islamic insurgency” admits of multiple instances of disparate conduct, it is plain that the Director’s intention was (and is) to plead only the one piece of agreed and intended conduct.

However, this ‘singular’ construction, if applied also to confine the intended objective to a single objective, is inconsistent with the Director’s submission that an agreement incorporating wholly disparate intended objectives is permissible. That said, as will be seen shortly, the words “one or more of the … objectives” in the definition of “engage in a hostile activity” are consistent, at least in part, with the Director’s position on multiple intended objectives.

Further, I recognize that, in the area of the preparatory terrorism offences, a similar construction argument about the use of the phrases “a terrorist act” and “the terrorist act” has been rejected by the Supreme Court and the Court of Criminal Appeal in New South Wales.[21] However, it must be remembered that the preparatory terrorism provisions are worded and structured quite differently from the provisions in ss 119.4 and 119.1.

Extrinsic materials – ss 119.4 and 119.1

[21]See, e.g., Lodhi v The Queen (2006) 199 FLR 303 at 315[57]-320[77] (per Spigelman CJ, with whom McClellan CJ at CL and Sully J agreed).

Thirdly, the Director relied on extrinsic materials to support two submissions: first, that the offence in s 119.4(1) appears to arise from an intention by the legislature that the offences under Division 119 would apply “at an appropriately early stage”; and second, that the legislative intent was to align the new offences with the terrorism offences in Part 5.3 of the Code. In particular, the Director relied on the following remarks in the Revised Explanatory Memorandum (“R-EM”) to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), which became the legislation that inserted s 119.4(1) (and other provisions) into the Code:[22]
[22]Revised Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 at [222] & [224] (emphasis added).

Offences of incursions into foreign countries with the intention to engage in hostile activities
[222] New section 119.1 of Part 5.5 of the Criminal Code will replace section 6 of the Foreign Incursions Act. This section was drafted to criminalise engaging in a hostile activity in a foreign country or entering a foreign country with the intent to engage in a hostile activity in that foreign country. The INSLM’s fourth annual report and the COAG Review both highlighted that in order to overcome the practical difficulties of proving a particular foreign country was the target destination, the section should be amended to remove the need to prove an intention to engage in hostile activity in a particular foreign country. This will enable intervention by the Commonwealth Director of Public Prosecutions at an appropriately preparatory stage where an individual may be contemplating undertaking incursions in various theatres of violence, but plans to travel to a third country to obtain training, materials or guidance as to his or her ultimate destination. It will also capture a situation where a person enters a foreign country without the intention to engage in hostile activity and then forms an intention to engage in hostile activity in that country.
…
[224] As part of the alignment of the Foreign Incursions Act to the existing provisions of the Criminal Code, the offences under sections 6, 7 and 8 of the CFIRA will be made consistent with the reflecting Criminal Code offences. Accordingly, offences against section 6 of the Foreign Incursions Act (now subsection 119.1(1)) will align with the terrorist act offence at section 101.1 of the Criminal Code with the penalty increased from a maximum period of 20 years’ imprisonment to life imprisonment. Offences for preparation for incursions into a foreign country in section 7 of the Foreign Incursions Act (now subsection 119.4(1)) will align the terrorist act preparation offence at section 101.6 of the Criminal Code with the penalty increased from a maximum period of ten years’ imprisonment to life imprisonment.

In the accused’s submission, however, the point made in the R-EM at paragraph [222] is directed at a situation different from the present – namely, where a person is transitioning through one foreign country on the way to engage in a hostile activity in another foreign country. Further, the accused submitted, the so-called “alignment” of regimes referred to in the R-EM at paragraph [224] concerns only sentencing, not the elements of the offences or the manner in which a charge for such an offence might be particularized.

In my view, while the accused’s point about the R-EM at paragraph [222] is correct, one needs only to look to the nature of the offence created by s 119.4(1), without resort to any extrinsic materials, to conclude that the legislature was concerned to ensure that the authorities might intervene, and that an accused person might be charged and convicted, at “an appropriately preparatory stage” of his behaviour directed towards the achievement of a prohibited goal, in order to thwart those preparing, and intending, to head overseas with the intention of engaging in a hostile activity in a foreign country. That said, I do not think that that fact, alone, is capable of answering the question whether the legislature intended, in the case of s 119.4(1) (and its counterparts), as it has been held to have done in the field of preparatory terrorism offences, “to create offences where an offender has not decided precisely what he or she intends to do”, and less still whether the legislature intended to relax the rules requiring particularization of the intended conduct or objectives giving rise to such alleged offences.

I do, however, accept the accused’s submission that the alignment of maximum penalties for preparatory terrorism offences and preparatory foreign incursion offences says nothing about the way in which those questions might be answered.

Absence of provisions such as s 101.6(2)(b) & (c)

Fourthly, the accused point to the absence, in ss 119.4 and 119.1, of corresponding provisions of the type included in the preparatory terrorism offence provisions in ss 101.2, 101.4, 101.5 and 101.6, namely paragraphs (b) and (c) of ss 101.2(3), 101.4(3), 101.5(3) and 101.6(2). So, for example, in s 101.6 (“Other acts done in preparation for, or planning, terrorist acts”), subsection (1), and its corresponding subsection (2), provide as follows:

(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.
...

I should note at once that it might be said that an equivalent of s 101.6(2)(a) is found in the definition of “engage in a hostile activity” in s 117.1(1), and in particular in the words “(whether or not such an objective is achieved)”. But that is not the accused’s point.

Instead, the accused’s point is that there is no provision in, for example, s 119.4 equivalent to s 101.6(2)(b) stating that the offence in s 119.4(1) is committed even if the accused’s (preparatory) conduct is not performed in preparation for a specific offence against s 119.1, or even if it is it not performed with the intention of engaging in a specific instance of a hostile activity, or even if it is not performed with the intention of engaging in a specific instance of conduct, or even if it is not performed with the intention of achieving a specific objective listed in the definition of “engage in a hostile activity”. Similarly, as I understand them, the accused say that there is no provision in s 119.4 equivalent to s 101.6(2)(c) stating that the offence in s 119.4(1) is committed even if the accused’s (preparatory) conduct is performed in preparation for more than one specific offence against s 119.1, or even if it is performed with the intention of engaging in more than one specific instance of a hostile activity, or even if it is performed with the intention of engaging in more than one specific instance of conduct, or even if it is performed with the intention of achieving more than one specific objective among those listed in the definition of “engage in a hostile activity”.

In the accused’s submission, the absence of such provisions is significant, and should tell against the Director’s submission, for it supports the view that there is no basis for interpreting provisions like s 119.4(1) in the manner that the preparatory terrorism provisions have been interpreted.

The words “one or more of the following objectives” in the definition in s 117.1(1)

Fifthly, that said, I think it is significant that the words “one or more of the following objectives” are found in the definition of “engage in a hostile activity” in s 117.1(1). Those words might be taken as connoting a notion similar to that which is found in s 101.6(2)(c) (and its counterparts). Thus, while the different structure and terms of the two sets of provisions perhaps makes the comparison inapt, nevertheless, it is arguable that, in the same way that an offence will be committed against s 101.6(1), “even if … (c) the person’s act is done in preparation for … more than one terrorist act”, an offence will be committed against s 119.4(1) if, assuming all other elements are made out, the intended conduct was to be engaged in “with the intention of achieving one or more of the … objectives” listed in the definition.

However, while I shall return to this point under Ruling 6, it seems to me that the presence of the words “one or more” does not support the Director’s submission to the effect that, for the purposes of the definition of “engage in a hostile activity”, the intended conduct (as opposed to the intended objectives of that conduct) should be construed in a way similar to that which might be adopted if there were an equivalent of s 101.6(2)(b) in s 119.4 (such that the offence in s 119.4(1) would still be made out even if a specific piece of conduct were not intended at the relevant time). Indeed, the presence of the words “one or more of”, instead of, say, “any of”, vis-à-vis the objectives, but the absence of any equivalent words vis-à-vis the conduct, might be thought to suggest the contrary.

Preparatory terrorism provisions construed before enactment of s 101.6(2)(b) & (c)

Sixthly, on the other hand, as the Director points out, the construction of the preparatory terrorism provisions was established (by Whealy J and endorsed on appeal by the Court of Criminal Appeal of New South Wales) before provisions of the type found in paragraphs 101.6(2)(b) and (c) (and other related provisions) were inserted in the Code.[23]

Extrinsic materials – Preparatory terrorism provisions

[23]Those amendments were made by the Anti-Terrorism Act 2005 (Cth), s 3 Schedule 1, and the Anti-Terrorism Act (No 2) 2005 (Cth), Schedule 1. See, e.g., Lodhi v The Queen (2006) 199 FLR 303 at 306[3]-308[6] & 309[14]-[16] (per Spigelman CJ, with whom McClellan CJ at CL and Sully J agreed); and B v R (2008) 76 NSWLR 533 at 543[43]-[46] (per Spigelman CJ, with whom James and Howie JJ agreed).

Seventhly, and further, the Director relies on the following remarks in the Explanatory Memorandum to the Anti-Terrorism Bill 2005 (Cth), which became the legislation that inserted these changes into Division 101 of the Code:[24]
[24]Explanatory Memorandum to the Anti-Terrorism Bill 2005 (Cth) at p 3.

These items are interpretative amendments to the existing terrorism offences in Division 101 of Part 5.3 of the Criminal Code that clarify that, in a prosecution for a terrorism offence, it is not necessary to identify a particular terrorist act. The amendments will ensure that the policy of the existing offences is implemented in the way originally intended.

The existing offences contain a subsection that provides that a person commits the offence even if ‘the’ terrorist act does not occur. When the offences were originally drafted, it was not the intention that the prosecution would be required to identify a ‘particular’ terrorist act.

The amendments will simply clarify that it is not necessary for the prosecution to identify a specific terrorist act. It will be sufficient for the prosecution to prove that the particular conduct was related to ‘a’ terrorist act.

The amendments will ensure the relevant offences will be available where a person is considering a range of activities that are still in formative stages and not advanced to the point of the details being decided upon. For example, a person or group of persons may be considering a range of activities such as killing persons or detonating a bomb. However, that person or group may not have decided which of the activities will be carried out, nor the time, date or method of such activities. In other words, in proving one of the amended offences it will not be necessary to establish that the person has settled on a particular target, time or date or other specific particulars of the action or threat of action said to constitute the terrorist act. For example, where the person has settled on an action such as destroying a Government building but has not decided on a particular building, time or date this would fall within the concept of a terrorist act.

Sections 119.4(1) & 119.1(1) enacted after, and without equivalent of, s 101.6(2)(b) & (c)

Eighthly, on the other hand, ss 119.4(1) and 119.1(1), and the definition of “engage in a hostile activity” as it now appears in s 117(1), were inserted into the Code many years after paragraphs 101.6(2)(b) and (c) were enacted. Yet, despite the view that the latter provisions merely clarified the earlier construction of the preparatory terrorism provisions, those particular paragraphs still were in fact introduced. In those circumstances, I should have thought that, if the legislature considered that ss 117(1), 119.4(1) and 119.1(1) should be construed in a manner similar to the preparatory terrorism provisions, it would have added corresponding provisions of the type found in paragraphs 101.6(2)(b) and (c) (or, given the points just made about words “one or more” in the definition in s 117.1(1) compared with those in paragraph 101.6(2)(c), at least an equivalent of paragraph 101.6(2)(b)).

Preparatory terrorism cases have involved more precise particularization of terrorist acts

Ninthly, despite the construction that has been placed on the preparatory terrorism provisions, the cases put before me have involved far more specific particularization of the alleged terrorist act or acts than has been provided in respect of the alleged agreed and intended conduct in the Philippines in the present case.

For example, in Lodhi v The Queen,[25] which concerned a single accused, the multiple charges of preparatory terrorism offences identified the relevant alleged terrorist acts as the bombing of part of the electricity supply system; causing death, serious physical harm or serious property damage; and the bombing of one or other Australian defence establishments.
[25]Of the several decisions in Mr Lodhi’s case, see, e.g., Lodhi v The Queen (2006) 199 FLR 303 at 306-307[1].

In R v Baladjam & Ors (No 4),[26] which concerned a charge of conspiracy amongst several accused to commit a preparatory terrorism offence, the alleged terrorist acts were identified as the detonation of an explosive device (or devices) or the use of weaponry or both.
[26]R v Baladjam & Ors (No 4) (2008) 270 ALR 106 at 109[6].

In R v Karabegovic (Ruling No 3),[27] which concerned a single accused charged with possession of a thing connected with assistance in a terrorist act, the alleged terrorist act was identified as the making of an explosive or incendiary device to start a fire.
[27]R v Karabegovic (Ruling No 3) [2015] VSC 614 at [200].

Finally, in Fattal & Ors v The Queen,[28] which concerned a charge of conspiracy amongst several accused to commit a preparatory offence, the alleged terrorist act identified was to attack the Australian Army Base at Holsworthy and to shoot and kill as many soldiers and other persons therein as possible.
[28]Fattal & Ors v The Queen [2013] VSCA 276 at [3](3).

Thus, in all four of those cases, quite specific and identifiable actions or pieces of conduct were alleged. While some of these cases gave rise to arguments about duplicity, or a lack of precision as to, for example, when the alleged terrorist acts were to occur, or precisely what the targets were or by whom the acts would be performed, they still alleged quite specific and identifiable acts. Certainly, none of them alleged anything as vague and as non-specific as “involving themselves in the Islamic insurgency”.

French CJ’s remarks in The Queen v Khazaal

Tenthly, I note that all parties relied on the following passage from the judgment of French CJ in The Queen v Khazaal:[29]

[33] It is, of course, necessary to bear in mind that the offences created under s 101.5 and cognate offences in Div 101 of Pt 5.3 of the Code are very serious and punishable by significant terms of imprisonment. The courts, given the task of construction and application of general terms in such cases, must ensure that they are not construed so widely as to exceed the statutory purpose. To say that is not to detract from the proposition that the statutory purpose was, as explained in Lodhi, to cast a wide net over preparatory acts.

[29]The Queen v Khazaal (2012) 246 CLR 601 at 614[33] (per French CJ)

The Director relied on that passage not only as a further endorsement of the view that the statutory purpose of the preparatory terrorism provisions was “to cast a wide net over preparatory acts”, but also as a pithy statement capable of application to the construction of the preparatory provisions in Division 119 of the Code.

The key offence provisions of the CFIR Act were in s 6(1)(a) and (b), and the preparatory offence provision was in s 7(1)(a). Section 6(3) of that Act provided as follows:[40]
[40]Emphasis added.

(3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):
(a)the overthrow by force or violence of the government of the foreign State or a part of the foreign State;
(aa)engaging in armed hostilities in the foreign State;
(b)causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury;
(c)causing the death of, or bodily injury to, a person who:
(i) is the head of state of the foreign State; or
(ii)holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State;

(d)unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or a part of the foreign State.

Thus, it can be seen that s 6(3) was drafted in terms very similar to the definition of “engage in a hostile activity” now found in s 117.1(1) of the Code. While the phrase “doing an act” was used instead of “engages in conduct”, the objectives appear to be very similar to those in the definition in s 117.1(1), except that there was in s 6(3) no equivalent of the objectives listed in paragraph (b) of the new definition. As in the case of “engages in conduct” in the new provision, “doing an act” was not defined in the old provision.

While the history and terms of these provisions suggest they may have been directed, at least in part, at acts of a military character, nevertheless, it seems to me that, on a plain reading of those provisions, it is arguable that acts lacking military character would suffice. For example, it may well have been arguable that a person who “did an act” that was not of a “violent military-type” and did not have a “military-type objective or objectives”, but nevertheless performed that act with the intention of achieving the objective of, say, damaging government property by defacing it, would be caught by s 6(3). Indeed, on a closer reading, it is really only s 6(3)(aa) – “engaging in armed hostilities in the foreign State” – that necessarily connotes a military-type objective, and perhaps therefore acts of a military character. While they would embrace actions involving the use of arms, none of the other objectives in s 6(3) speaks of or necessarily involves the use of arms or the like.

Secondly, and in any event, I do not accept that the legislative history (including the extrinsic materials) of the key provisions and the terms of those and the surrounding provisions in Part 5.5 of the Code demand the construction urged by the accused. In particular, those materials do not persuade me that the legislature’s intention was to ensure that the proscribed conduct, for the purposes of the definition of “engage in a hostile activity” in s 117.1(1), was to be only of a “violent military-type” or must involve “serious military-type objectives”.

To be sure, the existence of the “humanitarian aid” defence and the defence for members of government armed forces lend support to the argument that the provisions, at least in part, are directed at proscribing conduct or intended conduct that might be described as military in nature. Also, it is perhaps surprising that the new provisions, on their face, authorize the criminalization of intended conduct in foreign countries that is not military in nature or objective, but instead private or civil, and that hitherto has not been criminalized (or so it was thought).

But, if that is the result, odd though it may be considered to be, then that is simply the plain effect of the words the legislature has chosen. In my view, it cannot reasonably be assumed that the choice of words ultimately enacted was intended to confine the proscribed conduct in the way the accused urge. Nor is it open to say that the legislature somehow mistakenly failed to realize that the words chosen would expand the scope of the objectives – and therefore the associated conduct – proscribed.

In the same paragraph of Professors Pearce and Geddes’ work relied on by the accused and extracted (in part) above, the following passage also appears:[41]
However, prior statutory provisions must be used with caution. An equivalent prior statutory provision will not be taken into account to produce a result that is not apparent on the face of the later provision under consideration, particularly where there is a rational explanation for the change of wording of the later provision: …
[41]Pearce & Geddes at p 122[3.31] (citations omitted).
In my view, there is nothing in the prior provisions suggesting emphatically that the intended conduct in the foreign country must be of only a “violent military-type” or must involve “serious military-type objectives” and which requires them to be taken into account so as to produce a result that is not apparent on the face of either s 119.4(1) or s 119.1(1), or the definition of “engage in a hostile activity” in s 117.1(1).

Further, there are rational explanations for the differences between the existing provisions and prior provisions. It cannot have escaped the legislature’s notice that the introduction of what has become paragraph (b) of the definition in s 117.1(1) (which incorporates as objectives the actions listed in s 100.1(2)) would extend significantly the proscribed objectives of conduct to those of a private – as opposed to a government – nature. Further, the legislature, obviously quite deliberately, placed two limitations on those objectives – namely, the limitation referred to in subparagraph (b)(i) (by reference to s 100.1(3)), and the “serious offence” requirement in subparagraph (b)(ii). It makes no difference that the “serious offence” limitation was not extended to the other paragraphs in the definition. The point is that the fact and nature of these changes and limitations make it clear that the legislature must have turned its mind to the words chosen. Nor is it without significance that the objective of “engaging in armed hostilities” in s 6(3)(aa) does not appear in the new provisions and that the objective concerning intimidation of the public in paragraph (c) of the new definition in effect replaces the more extreme and specific form of intimidation found in the old s 6(3)(c). In short, it is plain that the legislature intended to expand the scope of the objectives of conduct that would amount to engaging in a hostile activity. Absent an express provision saying so, it strikes me that conduct engaged in with those broader objectives need not necessarily be of a “serious military-type”.

In those circumstances, I do not think it is open to construe the provisions in the manner urged by the accused. Indeed, to reach that construction would, I think, require this Court to engage in a form of judicial legislation instead of legitimate interpretation.

Instead, with one qualification, I accept the Director’s submission to the effect that, on a plain reading of the provisions, it is enough if the intended conduct, whatever its nature, was to be engaged in with the intention of achieving one or more of the objectives listed in the definition of “engage in a hostile activity” in s 117.1(1).

The qualification concerns the Director’s submission that any conduct will suffice, even if it has (or would have) no tangible effect in bringing about any objective in the definition of “engage in a hostile activity”, provided it is intended to be engaged in with the intention of achieving one or more of those objectives. In my view, there must be some realistic potential connection between the intended conduct and the accompanying intended objective or objectives. Thus, to take an (extreme) example mentioned in argument, blowing a kiss, even if performed with the intention of achieving an objective falling within the definition of “engage in a hostile activity” – for example, the overthrow, by force or violence, of the government of the Philippines – could not sensibly be said to suffice. On the other hand, threatening the public with violence or detonating a bomb in a public place surely would suffice, if any such conduct were to be engaged in with the intention of achieving, say, the objective in paragraph (c) of the definition – namely, intimidating the public or a section of the public of the Philippines.

Intended conduct overseas need not be “hostile”

I should add that I also considered whether the intended conduct, of itself, must be “hostile” in nature, particularly given that an element of the offence charged is an intention to “engage in a hostile activity”.

But the definition in s 117.1(1) does not specify that the conduct must be hostile. On the other hand, each of the objectives listed in the definition involves, to a greater or lesser degree, a form of hostility. Thus, even if the conduct falling within the concept of “engaging in a hostile activity” must be hostile, then that hostility, in effect, is supplied, or deemed to be supplied, by engaging (or intending to engage) in the conduct with the intention of achieving one or more of the objectives listed in the definition, and need not arise from the nature of the conduct. Put another way, the word “hostile” has no work to do in explaining the meaning of the phrase “engage in a hostile activity”, other than serving as part of a label for a category of activity defined by the Code. Thus, it is as if the word “prohibited” might have been used instead of “hostile”.

Conclusion

Thus, my conclusion is that the agreed and intended conduct in the Philippines need not be of a “serious military-type” or involve “serious military-type objectives”, but can be any conduct, provided it is agreed and intended to be engaged in with the intention of achieving one or more of the objectives in the definition of “engage in a hostile activity” and provided there is some realistic potential connection between the intended conduct and the accompanying intended objective or objectives.

Ruling 5: Whether Director must identify which accused intended to enter Philippines

I turn to Ruling 5, which I shall deal with very briefly.

While I understood this issue was raised in argument, at present, it seems unnecessary to decide whether the charge requires particularization as to which accused are alleged to have been intending to enter the Philippines with the intention of engaging in a hostile activity, as the Director appears, ultimately, to be alleging that all accused had that intention.

That stance, however, may create a complication in the case of Murat Kaya, which will need to be the subject of further discussion.

Ruling 6: Whether accused must agree on conduct and at least one objective in common

I turn now to Ruling 6.

Submissions

As I understood the submissions, all accused and the Director agreed that, given the case is put on the basis of joint commission, in order to avoid at least latent duplicity in any possible guilty verdict, the Director must prove, among other things, that the accused under consideration agreed with at least one of his co-accused that the same particular conduct would be engaged in in the Philippines (by one or more of the parties to the agreement).

Some accused submit that it must also be proved that the accused under consideration agreed with at least one of his co-accused that that conduct would be engaged in with the intention of achieving the same objective or objectives (whether they comprised only some or all of the objectives relied on by the Director), and no others, whereas other accused submit that it would be enough if there was agreement that that conduct would be engaged in with the intention of achieving at least one common objective (within the objectives relied on by the Director), even if the accused intended other different objectives.

In contrast, the Director submits that the structure of the provisions, and particularly the words “one or more of the following objectives” in the definition of “engage in a hostile activity”, allows that, if the accused agreed on the conduct to be engaged in, they may have different – and even quite disparate – objectives (within those relied on), and none in common, and yet still be parties to the same agreement and therefore the same offence.

Consideration

I accept the parties’ joint submission that the Director must prove that, among other things, the accused under consideration agreed with at least one of his co-accused that the same particular conduct would be engaged in in the Philippines (by one or more of the parties to the agreement). (As I have indicated earlier, consistently with that view, the Director’s particularization of the relevant conduct – “involve themselves in the Islamic insurgency” – represented an attempt to allege only the one agreed and intended instance of conduct.) In my view, there is nothing in the relevant provisions that would authorize multiple instances of agreed or intended conduct to be alleged in a single charge or to form the basis of a guilty verdict.

However, I also accept the Director’s submission that the words “one or more of the following objectives” in the definition in s 117.1(1) have the effect that, in the case against a sole accused based on his or her own direct liability, a charge might not be duplex – either patently or latently so – if multiple objectives were alleged and no election were made among those objectives. It seems to me that, depending upon the intended conduct and objectives alleged, a person could commit a single offence against s 119.4(1) if, among other things, he or she engaged in preparatory conduct with the intention of entering a foreign country and engaging in certain conduct there with the intention of achieving several of the objectives listed in the definition.

But I do not accept the submission that the same reasoning applies to a case of joint commission, as here, unless the accused are agreed on the intended conduct and the intention to achieve in common at least one or more of the same objectives. By ss 11.2A(1) and (2) of the Code, the form of joint commission relied on in this case requires that the accused in question and at least one other party (a co-accused) entered into an agreement to commit an offence, and that an offence be committed in accordance with the agreement. There cannot be an agreement unless there is a meeting of the minds. And there cannot be a meeting of the minds, in a case such as the present, unless the accused agree on the intended conduct and the common objective or objectives they intend to achieve when that conduct is engaged in. If the accused who are alleged to be parties to the agreement have wholly disparate intentions as to the objectives to be achieved, they either will not have agreed at all or, at the very least, will have agreed to commit different offences.

Some of the accused submit that it follows that, unless the accused in question agreed not only on the intended conduct in the Philippines but also that that conduct would be engaged in with the intention of achieving precisely the same objectives, and no others, within those relied on by the Director (whether they were only some or all of those objectives), there would not be the necessary agreement or, at the very least, those accused would have agreed to commit different offences.

Reliance was placed on the judgment of Brennan CJ in Gerakiteys v The Queen,[42] where his Honour said the following:
The identity of a conspiracy is to be found in what the conspirators commonly agree to or accept: a conspiracy is proved by evidence of the actual terms of the agreement made or accepted or by evidence from which an agreement to effect common objects or purposes is inferred. If two conspirators agree to effect several unlawful objects and a third person agrees with them to effect some only of those objects, there are two conspiracies not one: the original conspirators are parties to both conspiracies, the third party only to the conspiracy with the more limited objects. …
[42]Gerakiteys v The Queen (1984) 153 CLR 317 at 327.
At first blush, there appears to be no reason why the same reasoning should not apply to support the accused’s submission that there must be agreement that the particular conduct would be engaged in with the intention of achieving precisely the same objectives, and no others, within those relied on by the Director (whether they were only some or all of those objectives). After all, the present is a case of joint commission, which requires an agreement similar to the type of agreement required for conspiracy.[43]
[43]While Gerakiteys v The Queen (1984) 153 CLR 317 was not a Code matter, it is notable that the joint commission provisions in s 11.2A and the conspiracy provisions in s 11.5 have significant similarities with respect to the requirements for agreement. See, in particular, ss 11.2A(1), (2), (4) & (6) compared with ss 11.5(1), (2) & (5) of the Code.

On the other hand, as I have said, the Director plumps for the other end of the spectrum – namely, that, if the accused agreed on the conduct to be engaged in, they may have different, and even wholly separate, objectives (within those relied on) and yet still be parties to the same agreement and therefore the same offence.

However, I think the answer to both submissions is found substantially in a combination of three important considerations: first, the words “one or more … objectives” in the definition of “engage in a hostile activity”; second, the requirements of joint commission; and, third, the need to avoid duplicity, whether patent or latent.

As to the joint commission provisions, ss 11.2A(1)(a) and (b)(i), (2) and (4) require that, in order for a person to have committed the “joint offence” referred to in subsection (2), the accused in question and at least one other party (here, a co-accused) must enter into an agreement to commit an offence; the offence must be committed in accordance with the agreement (including the conduct, circumstance and fault elements of that offence); and they must have intended that an offence would be committed under the agreement. Thus, agreement and intention are central to the commission of the offence.

In my view, while, because of the words “one or more”, any accused may intend that the conduct is to be engaged in with the intention of achieving one or more objectives, a combination of those words, the joint commission provisions and the need to avoid at least latent duplicity in any guilty verdict dictate that, for this branch of the offence, it is both a necessary and a sufficient condition that the accused in question must be proved to have agreed (a) not only on the intentional conduct to be engaged in in the Philippines (by one or more of the parties to the agreement) but also (b) that that conduct would be engaged in with the intention of achieving at least one common objective within the objectives relied on by the Director. As to the latter requirement, provided the agreement was that the conduct would be engaged in with the intention of achieving at least one common objective, if one or more accused had the intention of achieving additional but differing objectives, they still could be parties to the same agreement and, therefore, the same offence.

I do not think it can be said that multiple offences will have been committed if, beyond the agreement as to the common objective or objectives, one accused intends an additional objective or objectives not shared by one or more of his co-accused said to be a party or parties to the agreement. While that possibility would mean that any such agreement was not perfectly aligned, it would be, in my view, sufficiently aligned so as to be an agreement for the purposes of s 11.2A. Further, I think that the presence of the words “one or more” should be taken as allowing that the one offence is agreed and committed in those circumstances, despite the disparity of (additional) intended objectives, because the accused are agreed on all, or at least a common aspect of all, essential elements – namely, the preparatory conduct (which I have assumed to be agreed), the intention to enter the Philippines, the intention to engage in particular conduct there and the intention to achieve in common at least one of the same objectives.

Equally, I think it would be to ignore the principles of joint commission, and to risk latent duplicity, to allow the charge to go to the jury on the basis that it would suffice if each accused said to be a party to the agreement held an intention to achieve a wholly separate objective or objectives from the objective or objectives intended by another or other accused (even if those objectives are within those relied on by the Director). In my view, in such a case, it would not be open to say that the accused in question had reached an agreement for the purposes of s 11.2A. Nor would it be right to say that they were parties to the same agreement or the commission of the same offence. Instead, they might be parties to a different agreement to commit an offence or to a different offence.

Conclusion

Accordingly, I am persuaded that, for this branch of the offence, it is both a necessary and a sufficient condition that the accused in question must be proved to have agreed (a) not only on the intentional conduct to be engaged in in the Philippines (by one or more of the parties to the agreement) but also (b) that that conduct would be engaged in with the intention of achieving at least one common objective within the objectives relied on by the Director. If one or more accused had the intention of achieving additional but differing objectives, they still could be parties to the same agreement and, therefore, the same offence, provided always that the agreement was that the conduct would be engaged in with the intention of achieving at least one common objective.

Ruling 7: Whether matters in s 100.1(3) must be listed in indictment

The next four rulings all can be dealt with very briefly. I understood the Director to accept that each of the things required by these four rulings should be done.

First, to Ruling 7.

If the Director persists in alleging, pursuant to paragraph (b)(i) of the definition of “engage in a hostile activity” in s 117.1(1), an intention of achieving an objective of “the engagement in action” that falls within s 100.1(2) of the Code, then it will be necessary to include in the indictment not only those actions listed in s 100.1(2) that are relied on, but also the applicable matters listed in s 100.1(3).

Ruling 8: Whether must particularize how action would constitute a “serious offence”

I turn now to Ruling 8.

Similarly, if the Director persists in alleging an intention of achieving an objective of “the engagement in action” that falls within s 100.1(2), then while the indictment should also allege, as it does currently, pursuant to subparagraph (b)(ii) of the definition of “engage in a hostile activity”, that the relevant action, if engaged in in Australia, would constitute a “serious offence”, it also should be alleged, perhaps in a list of further and better particulars, just how it is that that action, if engaged in in Australia, would constitute a “serious offence”.[44]
[44]While this is unnecessary to my decision, I note that, in the Supplementary Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 at [75], it was said, when speaking of an objective falling within paragraph (b) of the definition in s 117.1(1) and the “serious offence” requirement, that “it will be necessary to for the prosecution to provide information about the type of offence that constitutes the action inherent in the objective the person intended to achieve”.

That said, this requirement, which has its own inherent difficulties, when coupled as well with the matters listed in s 100.1(3), serves to demonstrate the inordinate complexity of a charge alleging an intention to achieve any of the objectives listed in paragraph (b) of the definition. While it is a matter for the Director, in my respectful opinion, it would be much simpler, and in this case far more preferable, to refrain from any reliance on objectives falling within paragraph (b).

Ruling 9: Whether particular (a) – an agreement to agree – should be deleted

Now, to Ruling 9.

As indicated earlier, particular (a), as appears under each accused’s name under the heading “Particulars of the conduct” in the indictment, reads as follows:

(a) Agreeing with at least one other accused that the offence be committed and intending that the offence be committed under the agreement.

In circumstances where the Director alleges joint commission, this particular has the effect of rendering the allegation one of an agreement to agree to commit an offence. At the very least, such an allegation is problematic.[45] I think it is also unnecessary. It should be deleted from the indictment.
[45]See, e.g., B v R (2008) 76 NSWLR 533 at 553[102]-[106] (per Spigelman CJ, with whom James and Howie JJ agreed) and the authorities there discussed.

Ruling 10: Whether the words “or elsewhere” and “or any other” should be deleted

Next, to Ruling 10.

The words “or elsewhere” and “or any other” appear in the preamble in the indictment under the heading “Particulars of the offence against s 119.1”.

Given that the Director alleges that the accused intended to enter the Philippines and engage in a hostile activity there, those words, while contained in one of the provisions creating the offence, are mere surplusage and are apt to mislead. They should be deleted.

‘Ruling’ 11: Whether particulars of intended objective/s should be confined

Finally, I come to ‘Ruling’ 11.

As in the case of ‘Ruling’ 2, this is not strictly a ruling, but just another polite suggestion at this stage.

Nevertheless, I think that, in the same way that the Director has sought to confine the particulars of the agreed and intended conduct in the Philippines (and, I assume, will continue to seek to confine the new particulars in any redraft made in conformity with Ruling 3), the particulars of the agreed and intended objectives accompanying that conduct also should be confined. Indeed, I would go as far as to suggest that, while, as I explained in Ruling 6, multiple objectives may be pleaded, I think the particulars should be confined to a single common objective.

Again, such an approach would have many virtues, including making the matter simpler and more likely to be comprehensible to a jury. It would also be in conformity with the need for agreement among the relevant accused as to at least one common intended objective, as I have explained in Ruling 6. Another advantage in confining the particulars in this way is that, because of the concentration solely on the one objective, this may well facilitate adequate particularization of the agreed and intended conduct in the Philippines in circumstances where that particularization might involve less precision with respect to the agreed and intended conduct than might otherwise be required if multiple objectives were alleged.

The gravamen of the Director’s case seems to be that the accused, who are alleged to have been adherents to the cause of violent jihad and wished to live under Islamic rule, intended, somehow, to involve themselves in the Islamic insurgency in the southern Philippines in order to bring about Islamic rule there. While it is, again, a matter for the Director, it would appear to be consistent with that case to allege that the agreement and intention to engage in a hostile activity in the Philippines was this: the accused intended that one or more of them would engage in conduct there, however that conduct might be particularized following Ruling 3, with the intention of achieving the objective mentioned in paragraph (a) of the definition of “engage in a hostile activity” – namely, the overthrow, by force or violence, of the government of the Philippines (or at least of the southern Philippines). While the other objectives listed in the indictment may or may not be capable of proof, none of them seems apt – or at least as apt – to capture what appears to be the gravamen of the Director’s case.

Conclusions and orders

Thus, for the reasons I have given, I make the foregoing rulings and suggestions.

I shall hear counsel on the appropriate orders or directions, if any, that might be made in view of these rulings and reasons.

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[2017] VSC 725

12 December 2017