Ul-Haque v REGINA

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: UL-HAQUE v REGINA [2006] NSWCCA 241

FILE NUMBER(S):
2006/402

HEARING DATE(S): 28 July 2006

DECISION DATE: 09/08/2006

PARTIES:
Izhar Ul-Haque (Appl)
Commonwealth Crown (Resp)
Commonwealth Attorney-General intervening

JUDGMENT OF: McClellan CJ at CL Kirby J Hoeben J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/422

LOWER COURT JUDICIAL OFFICER: Bell J

COUNSEL:
I Barker QC/P D Lange (Appl)
K Maidment SC/G J Bellew (Crown)
D M J Bennett QC/R Orr/G Del Villar (Commonwealth Attorney-General)

SOLICITORS:
Adam Houda (Appl)
Commonwealth Director of Public Prosecutions (Crown)
Australian Government Solicitor (Commonwealth Attorney-General)

CATCHWORDS:
CONSTITUTIONAL LAW – external affairs power – terrorist organisation offences under Commonwealth Criminal Code – whether geographic externality is sufficient of itself to enliven power – CRIMINAL PROCEDURE – whether terrorist organisation offences require a specific terrorist act to be particularised – Criminal Code, Division 102, s 102.5 – EVIDENCE – admissions – lay opinion – whether ruling as to admissibility of evidence is amenable to appeal under s 5F of the Criminal Appeal Act 1912.

LEGISLATION CITED:
Criminal Code 1995
Criminal Appeal Act 1912
Crimes Act 1914
Evidence Act
War Crimes Act 1945

DECISION:
This decision has been amended. Please see the end of the judgment for a list of the amendments
1. Application to raise grounds 1 and 2 granted but the appeal dismissed
2. Leave to raise ground 3 refused.

JUDGMENT:

- 25 -

IN THE COURT OF
CRIMINAL APPEAL

2006/402
McCLELLAN CJ at CL
KIRBY J
HOEBEN J
WEDNESDAY 9 AUGUST 2006

UL-HAQUE, Izhar v REGINA

Judgment

McCLELLAN CJ at CL: The applicant was arraigned on 1 April 2005 on an indictment alleging an offence against s 102.5(1) of the Criminal Code 1995 in the following terms:
“Between about the 12th day of January 2003 and the 2nd day of February 2003 in Pakistan did intentionally receive training with respect to combat and the use of arms from a terrorist organisation, namely Lashkar-e-Taiba, he the said Izhar UL-HAQUE at time aforesaid knowing that the said organisation was a terrorist organisation.”
The applicant is an Australian citizen.
By Notice of Motion filed on 4 August 2005 the applicant sought orders from Bell J quashing the indictment and in the alternative an order staying the proceedings as an abuse of process on the basis that the prosecution was doomed to fail. Three issues require resolution in this application. The first raises the constitutional validity of the relevant legislation. The second challenges the pleading and the third raises evidentiary issues.
The law which applies to this offence is the law at January 2003. There have been subsequent amendments to the legislation which are not presently relevant.
Section 102.5 of the Code provides that it is an offence for a person to train a terrorist organisation or receive training from such an organisation. Section 102.5(1) is in the following terms:
“(1) A person commits an offence if:
(a)the person intentionally provides training to, or intentionally receives training from an organisation; and
(b) the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.”
“Terrorist organisation” is defined in s 102.1(1) in the following terms:
“(a)An organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs); or
(c)An organisation that is specified by the regulation for the purpose of this paragraph.”
As at January 2003 Lashkar-e-Taiba was not an organisation specified by the regulations for the purpose of s 102.1(1) of the Code. Accordingly, at the trial the Crown must prove that in January 2003 LeT was relevantly a terrorist organisation.
“Organisation” is defined in s 100(1) and means:
“(a) a body corporate; or
(b) an unincorporated body;
whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation.”
“Terrorist act” is defined in s 100(1) and relevantly means:
“An action or threat of action where:
(a)the action falls within subsection (2) and does not fall within subsection (2A); 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.
(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
(ba)        causes a person’s death; or
(c)endangers a person’s life, other than the life of the person taking the action; or
(d)creates a serious risk to the health or safety of the public or a section of the public; or
(e)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.
(2A)       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.
(3)          In this Division:
(a)a reference to any person of property is a reference to any person or property wherever situated, within or outside Australia; and
(b)a reference to the public includes a reference to the public of a country other than Australia.”
The Crown case as originally particularised is that between 12 January 2003 and 2 February 2003 Lashkar-e-Taiba was a terrorist organisation, in that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, namely:
An action that:
(a)was to be done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims;
(b)was to be done with the intention of coercing, or influencing by intimidation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir;
(c)was intended to cause serious harm, that is physical harm, to a person or persons, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir;
(d) was intended to endanger the life of such a person; or
(e)was intended to create serious risk to the health or safety of the public or a section of the public, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir, or the health and safety of members of the public who may be put at risk as a result of actions against such members of the Indian armed forces.”
First ground of appeal: Commonwealth Legislative Power
The applicant’s submission is that the Commonwealth Parliament does not have the legislative power to proscribe the killing of foreigners by a foreign organisation in foreign territory where there is no apparent connection with Australia.
The Commonwealth submits that s 102.5(1) of the Code is a law with respect to external affairs within the meaning of s 51(xxix) of the Constitution for any one or more of the following reasons:
“6.1 it operates on conduct geographically external to Australia;
6.2it is reasonably capable of being considered appropriate and adapted to giving effect to an international obligation;
6.3 it affects and/or concerns Australia’s external relations; and
6.4the subject matter of s 102.5(1), namely the suppression of terrorist acts, is a matter of sufficient ‘international concern’.”
I have set out the provisions of the Code which create the relevant offence. The Commonwealth submits that the intended external operation of the legislation is reinforced by s 100.1(3) which provides that:
“(a)a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia, and
(b)a reference to the public includes a reference to the public of a country other than Australia.
Section 102.9 applies s 15.4 of the Criminal Code to the offences in Division 102, including s 102.5. Section 15.4 provides:
“If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a)whether or not the conduct constituting the alleged offence occurs in Australia; and
(b)whether or not a result of the conduct constituting the alleged offence occurs in Australia.”
Section 100.2 purports to identify the constitutional basis for terrorism offences. It relevantly provides:
“(1)This Part (5.3) applies to a terrorist act constituted by an action, or threat of action, in relation to which the Parliament has power to legislate;
(2)Without limiting the generality of subsection (1), this Part applies to a terrorist act constituted by an action, or threat of action, if:
… (n) the action takes place, or if carried out would take place, outside Australia.”
Bell J resolved this issue in favour of the Commonwealth after consideration of the decision of the High Court in Polyukhovich v The Commonwealth (1991) 172 CLR 501. In that case the Court held (by a majority of 6:1) that provisions of the War Crimes Act 1945 rendering unlawful certain conduct engaged in outside Australia were supported by the external affairs power. It was a necessary step in the reasoning of five judges in Polyukhovich that a law that operated on conduct geographically external to Australia was for that reason alone a law with respect to external affairs within s 51(xxix) of the Constitution.
The provisions of the War Crimes Act that were challenged in Polyukhovich provided for the trial and punishment in Australia of acts committed outside Australia that had a specified relationship with the 1939-1945 war or armed conflict in Europe. The provisions of the War Crimes Act could be used to charge a person with an offence in circumstances where, at the time of committing the offence, the person was not an Australian citizen or a resident of Australia.
Five members of the Court held that the geographic externality of the conduct that formed the basis of the provisions was sufficient by itself to support the provisions by reference to the external affairs power. Mason CJ held that the “externality of the conduct which the law prescribes as the foundation of the criminal offence is enough without more to constitute it as a law with respect to external affairs”(p 531). It was not necessary for the court to be satisfied that Australia had an interest or concern in the subject matter of the legislation in order for its validity to be sustained; it was enough that Parliament’s judgment was that Australia had such an interest or concern. Deane J held that “any law which can properly be characterised as a law with respect to any matter, thing or person occurring or situate outside Australia is a law with respect to ‘External affairs’ for the purposes of s 51(xxix)”(p 602). Dawson J held that the external affairs power “extends the legislative reach of the Commonwealth Parliament to those places, persons, matters or things [which are physically external to Australia] because of their externality and nothing further is required to bring them within the description of ‘external affairs’”(p 641). Gaudon J held that a law that applies to matters or things geographically situated outside Australia would necessarily be a law with respect to external affairs. In her Honour’s view, such a conclusion proceeded from the ordinary meaning of the words “[e]xternal affairs” in s 51(xxix). McHugh J held that the term “external affairs” should be interpreted to include any matter, thing, event or relationship existing or arising or which might exist or arise outside Australia. The remaining judges in Polyukhovich on whose reasons the appellant relies, took different approaches. Toohey J held that externality alone was not sufficient. In his Honour’s view, a matter did not qualify as an “external affair” simply because it existed outside Australia: the matter must be one which the Parliament recognised as touching or concerning Australia in some way. However, because the conduct that formed the basis for the relevant provisions of the War Crimes Act took place during a war that touched and concerned Australia, whether or not Australia was directly involved in the particular conflict from which the conduct arose, those provisions were supported by the external affairs power. Brennan J held that the relevant provisions of the War Crimes Act were not supported by the external affairs power because there was not a sufficient nexus between Australia and the “external affairs” which the law purported to affect. A sufficient nexus would have existed if there was a requirement that the person charged be an Australian citizen or resident at the time of the offence.
The approach of the majority in Polyukhovich has been confirmed in two subsequent cases Victoria v The Commonwealth (1996) 187 CLR 416 and De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640.
In no subsequent case has a majority of the High Court suggested that the Polyukhovich principle was wrong. In XYZ v Commonwealth [2006] HCA 25 the High Court rejected an attempt to reopen and overrule Polyukhovich on the basis that the external affairs power only deals with relations between countries. In XYZ when upholding the validity of provisions of Part IIIA (Child Sex Tourism) of the Crimes Act 1914, which made it an offence for Australian citizens and residents to engage in sexual conduct outside Australia with children under the age of 16, Gummow, Hayne and Crennan JJ described the reading of s 51(xxix) in Victoria v Commonwealth as “correct” (at [38]).
In XYZ Gummow, Hayne and Crennan JJ also stated (at [49]):
“The Commonwealth correctly submitted that legislation proscribing conduct engaged in outside Australia, such as s 50BA and s 50BC of the Crimes Act, is supported by the external affairs power. That is so without the further requirement, here imposed by s 50AD, that the person alleged to have committed the offence outside Australia must be an Australian citizen or a resident of Australia.”
Gleeson CJ regarded the argument of the plaintiff in that case (that the external affairs power only authorises laws with respect to relations between Australia and other countries) as inconsistent with all the views of the external affairs power expressed in Polyukhovich. However, his Honour observed (at [10]):
“Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia’s relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.”
Whilst his Honour noted that the difference between the view of s 51(xxix) taken in Polyukhovich by Mason CJ, Deane, Dawson, Gaudron and McHugh JJ on the one hand, and the views of Brennan J and Toohey J on the other “[did] not affect the point presently in issue”, there is nothing in his Honour’s judgment that casts doubt on the majority view in Polyukhovich.
The remaining judges in XYZ had no doubt that Polyukhovich stood for the principle that a law that operated on conduct geographically external to Australia was for that reason alone a law with respect to external affairs within s 51(xxix) of the Constitution. They differed, however, in their attitudes to the case. While expressing concerns about the principle, Kirby J refused to overrule it. On the other hand, Callinan and Heydon JJ (in dissent) would have overruled Polyukhovich to the extent that the geographic externality principle was a necessary step in the reasoning in that case.
It must follow that Polyukhovich remains binding High Court authority for the proposition that a law that operates on conduct geographically external to Australia is for that reason alone necessarily a law with respect to external affairs within s 51 (xxix) of the Constitution. The applicant’s argument that the Commonwealth Parliament has no power to enact legislation proscribing the killing of foreign citizens by members of a foreign organisation on foreign territory must be rejected by this Court. If it is to be reconsidered this must be done in the High Court.
During the course of argument the following exchange occurred:
“McCLELLAN CJ at CL: Would that mean that a law which had the effect of making it an offence in Australia to fight for Hezbollah in the current conflict would be valid?
BENNETT:           Yes.
McCLELLAN CJ at CL:      What about fighting for Israel?
BENNETT:           The same.
McCLELLAN CJ at CL:      Which is an indication of the breadth of the proposition, is it not?”
BENNETT:           Yes, that is a matter for Parliament.
McCLELLAN CJ at CL:      I understand that.”
If such a prosecution was contemplated under the Code, the Attorney General would have to consent to it if the person was not an Australian citizen or body corporate incorporated under the law of the Commonwealth or of a State or Territory: s 16.1(1). Some may find the Solicitor-General’s acceptance of the breadth of the Constitution’s reach surprising, and it will no doubt inform the debate as to the validity of the legislation, if, and when it is considered by the High Court. However, this Court is bound by Polyukovich with the consequence that the applicant’s argument must be rejected.
The Commonwealth submitted that the legislation could be supported on other grounds. Although appropriate to acknowledge the submissions it is unnecessary to resolve them.
It was submitted that subsection 102.5(1) gives effect to Australia’s international obligations. The relevant international obligation was identified as Resolution 1373 of the United Nations Security Council which it is submitted obliges Australia to take relevant action in relation to terrorists and terrorist organisations. It was further submitted that s 102.5(1) affects and/or concerns Australia’s “external relations” in that, inter alia, a failure to provide legislation proscribing and suppressing terrorist acts would necessarily affect Australia’s relations with other countries. In particular the International Convention for the Suppression of Terrorist Bombing and other international agreements embody the principle of “no safe haven” which it was submitted effectively requires legislation to the effect of s 102.5. Finally, it was submitted that s 102.5 (1) deals with a matter of international concern: see Koowarta v Bjelke-Peterson (1982) 153 CLR 168. Although the concept was relevantly doubted by Kirby, Callinan and Heydon JJ in XYZ it was submitted that it must be accepted as continuing and available to validate the relevant provisions.

The applicant responded to each of the Commonwealth’s submissions. In essence it was submitted that whatever be Australia’s international obligations they do not extend to an obligation to legislate extra-territorially so as to criminalise conduct wholly unrelated to Australian interests. It was further submitted that it is paradoxical to suggest that the imposition of Australian criminal law upon foreigners acting in a foreign country in circumstances in which Australian interests are not affected would further Australia’s relations with other nations. Finally, it was submitted that the mere prevalence of international protocols and the like dealing with terrorism does not make it a matter of “international concern” justifying extra territorial legislation. The applicant identifies many international instruments, an example being instruments seeking to suppress the distribution of narcotics which it was submitted would not permit the Commonwealth to enact legislation criminalising the production of cocaine in Columbia.
Ground 2: Her Honour erred in concluding that the Crown was not required to particularise the discrete act which is said to constitute the terrorist act that established that LeT was a terrorist organisation for the purpose of Division 102 of the Criminal Code.
Before Bell J the matter was approached having regard to the particulars provided by the Crown by letter dated 16 August 2005. I have previously identified its contents but it is convenient to repeat it:
“Between 12 January 2003 and 2 February 2003 Lashkar-e-Taiba was a terrorist organisation, in that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, namely:
An action that:
(a)was to be done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims;
(b)was to be done with the intention of coercing, or influencing by intimation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir;
(c)was intended to cause serious harm, that is physical harm, to a person or persons, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir;
(d) was intended to endanger the life of such a person; or
(e)was intended to create serious risk to the health or safety of the public or a section of the public, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir, or the health and safety of members of the public who may be put at risk as a result of actions against such members of the Indian armed forces.”
The essential argument for the appellant before Bell J and this Court was that before it can establish LeT is a terrorist organisation the Crown must particularise and prove a discrete terrorist act. Her Honour records the submission of the applicant in the following terms:
“Mr Barker acknowledged that the description of the offence in the indictment is in the words of s 102.5(1). The Crown has furnished particulars identifying the basis upon which it will contend that LeT was at the material time a terrorist organisation. Mr Barker did not maintain the submission that the indictment was defective for failure to contain an averment of the terrorist act. He submitted that the particulars are not particulars of a ‘terrorist act’ within the meaning of that expression in s 100.1 and thus are not capable of proving that LeT was a terrorist organisation at the time. The offences created in Pt 5.3 were said to require an action or threat of action as distinct from preliminary acts. The argument is that the Crown must particularise a discrete act as the terrorist act relied upon to establish LeT’s character as a terrorist organisation in January 2003.”
Her Honour makes plain that neither party paid close attention to the written particulars when the matter was argued. Instead her Honour resolved the issue after consideration of oral argument, during which the Crown effectively proffered an amendment to the particulars. Although the amendment was not formally made before Bell J, it was made before this Court and the particulars now read:
“Between 12 January 2003 and 2 February 2003 Lashkar-e-Taiba was a terrorist organisation, in that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, namely:
An action involving physical attack on members of India’s armed services in Kashmir that:
(a)was to be done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims;
(b)was to be done with the intention of coercing, or influencing by intimidation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir;
(c)was intended to cause serious harm, that is physical harm, to a person or persons, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir;
(d) was intended to endanger the life of such a person; or
(e)was intended to create serious risk to the health or safety of the public or a section of the public, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir, or the health and safety of members of the public who may be put at risk as a result of actions against such members of the Indian armed forces.”
(the amendment is underlined)
Bell J said that the particulars in their unamended form were flawed but having regard to the manner in which the matter was argued said:
“As I have noted, the motion was argued on the basis that the Crown case is that LeT was a terrorist organisation at the material time because it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act namely killing Indian soldiers in Kashmir, this being an action that falls within s 100.1(2)(a), (c) and (d)) and which was done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims and with the intention of coercing, or influencing by intimidation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir. I propose to deal with the challenge to the indictment on this footing and not by reference to the written particulars which do not reflect the way the matter was argued.
In Mr Barker's submission, the particulars (understood in the way summarised in his submission which I have set out at paragraph 34 above) do no more than identify as an aim of LeT the doing of physical harm to members of the Indian armed forces serving in the region of Indian occupied Kashmir. The concepts of preparing, planning, assisting in or fostering were said to be separate from the act that is their object. All the offences in Pt 5.3 were submitted to require a discrete terrorist action. The repeated use of the definite article was said to make this much obvious.
In Mr Barker's submission amending legislation serves to demonstrate that conduct not involving specific terrorist acts was not caught by Pt 5.3 of the Criminal Code as it stood in January 2003. In this respect Mr Barker firstly relied on the introduction of the Criminal Code Amendment (Terrorism) Act 2003 (the 2003 Act) which effected the repeal of Pt 5.3 of the Criminal Code and substituted a new Pt 5.3 dealing with terrorism. Section 100.4 of Criminal Code as amended by the 2003 Act is in these terms:
100.4 Application of provisions
Part generally applies to all terrorist acts and preliminary acts.
(1) Subject to subsection (4), this Part applies to the following conduct: -
(a)All actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);
(b)all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).
Mr Barker also relied on the provisions of the Anti-Terrorism Act 2005, No 127 of 2005 (The 2005 Act), which amends a number of the terrorist act offences contained in Div 101 and the financing terrorism offences contained in Div 103 of the Criminal Code. The 2005 Act did not amend the terrorist organisation offences contained in Div 102.
Section 101.2, as it stood prior to the amendment introduced by the 2005 Act, relevantly provided as follows:
(1) A person commits an offence if;
(a)the person provides or receives training; and
(b)the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c)the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
(3) A person commits an offence under this section even if the terrorist act does not occur.
The 2005 Act effected the repeal of subs (3) above and substituted the following:
(3) A person commits an offence under this section even if:
(a) a terrorist act does not occur; or
(b)the training is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or
(c)the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.
Other amendments introduced by the 2005 Act effected like changes.
The Crown submitted that care needed to be exercised in approaching the construction of Pt 5.3 of the Criminal Code as it stood at the material time by reference to amending legislation. In written submissions the Crown referred to the judgment of French J in Sun World lnc v Registrar, Plant Variety Rights & Anor (1997) 148 ALR 447 at 459:
The role of amending legislation in the construction of the earlier provisions of the legislation it amends is debatable. It can be said that although the Plant Breeder's Rights Act 1994 repealed the Plant Variety Rights Act 1987 and substituted a new statutory regime, there is an analogy to the case of amending legislation at least in respect of the operation of the NPC Rules, Amending legislation which expressly introduces an exemption from some condition or liability imposed by the legislation to be amended may support a construction of that earlier statute that does not incorporate the exemption: Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70. But as has been pointed out in a number of cases, care must be taken to determine whether the amending legislation merely makes clear what was implicit in the previous law or resolves doubts about its construction: Allina Pty Ltd v FCT (1991) 99 ALR 295 at 303 and see generally Pearce and Geddes, Statutory Interpretation in Australia 4th ed at [3.18] [now 5th ed at [3.3011]].
In the Crown's submission, the 20O3 Act served merely to clarify the offences created by the 2002 Act and not to expand their ambit. The Crown submitted that the 2003 Act identified the constitutional basis for the operation of the terrorist offences in Pt 5.3 in a context that includes both referring States and non-referring States; s 100.2 and in s 100.3. Section 100.4 in subs (2) – (6) deals with the operation of the Pt 5.3 in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State.
The Crown referred to the Explanatory Memorandum of the 2003 Act and to the Attorney-General's Second Reading Speech in support of the submission that the 2003 Act was not intended to remedy any perceived deficiency in the ambit of the offences that had been introduced by the 2002 Act. I note that in Downey v Trans Waste Pty Ltd (1990-1991) 99 ALR 402 Dawson J, at 409, took into account the reasons for amending legislation by reference to the Minister's second reading speech. In moving the bill that became the 2003 Act be read a second time, the Attorney-General said:
The Federal legislation enacted earlier this year creates a number of offences in relation to terrorist acts, terrorist organisations and terrorist financing. Those offences were based on existing Commonwealth constitutional powers. As the Commonwealth Constitution does not give the Commonwealth Parliament power to make laws with respect to terrorism as such, the offences rely on a patchwork of existing constitutional powers.
The patchwork of existing Commonwealth constitutional powers is extensive, but it is also complex. It is impossible to rule out unforeseen gaps in the coverage offered by offences based on existing powers. Arguments about possible gaps could be exploited by people trying to avoid prosecution. The reference of powers by the States and the enactment of this Bill will rule out these kinds of arguments. It will ensure comprehensive national application of the Federal counter-terrorism offences.
The Bill will re-enact Part 5.3 of the Criminal Code, which contains the terrorism offences enacted in June and amended in October this year, so that it attracts the support of the State references of power. The Bill will, in effect, re-enact the Terrorist Act offences in Division 101, the terrorist organisations offences in Division 102, and the financing of terrorism offences in Division 103. Once re-enacted, terrorism offences will be capable of operating throughout Australia, without any potential limitations arising from existing limits on Commonwealth constitutional powers.
…
The Bill does not effect [sic] the substance of the current offences. The re-enacted offences will be in the same terms as the current offences, but for the constitutional "reading down" provisions. The Government has already taken action under the current provisions. Regulations have been made specifying organisations as "terrorist organisations" for the purpose of the terrorist organisation offences (Mr Williams, Hansard, House of Representatives, 12 December 2002, at 10263/4).
I do not infer that the introduction of the new Pt 5.3 into the Criminal Code demonstrates that conduct not involving specific terrorist acts was not caught by the legislation as it stood in January 2003 (WS 10 August 2005, [12]).
In the Crown's submission the amendments introduced by the 2005 Act have no bearing on the provisions of s 102.5 of the Criminal Code, which deals with terrorist organisations. The Crown also submitted that reference to the Second Reading Speech in the Legislative Assembly lends no support to a contention that the amendments to Divisions 101 and 103 were effected in order to create criminal liability where it had not previously existed. In his speech moving that the bill which became the 2005 Act be read a second time the Attorney-General said this:
The amendments before the House today ensure that the Terrorist Act offences in Part 5.3 of the Criminal Code are interpreted as they were originally intended to be interpreted.
They clarify that in a prosecution for a terrorist offence it is not necessary to identify a particular terrorist act.
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 clarify that it is not necessary for the prosecution to identify a specific terrorist act. (Mr Ruddock, Hansard, House of Representatives, 2 November 2005 at 62).
In Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577 Gummow J (as he then was) said at 612:
There is a line of authority that an amendment may be taken into account in determining the scope of the prior legislation, at least to avoid a result which would render the amendment unnecessary, or futile or deficient; see especially Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 at 85-6; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 254-5. But in doing so, caution should be exercised: see Pearce and Geddes, Statutory Interpretation in Australia (3rd ed, 1988), ¶ 3.26. It is, after all, a curious way of revealing a parliamentary intention at the time of passing the earlier provision. As was observed by Viscount Haldane LC in Re Samuel [1913] AC 514 at 526:
It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela, to remove possible doubts.
I do not consider that an inference should be drawn that the offences created by the 2002 Act did not embrace conduct not involving specific terrorist acts (WS 10 August 2005, [12]) from the fact of the enactment of the 2005 Act. I approach the accused's challenge to the capacity of the case as particularised to constitute an offence under s 102.5 by reference to the meaning of the expressions "a terrorist act" in s 102(1)(a) and 'terrorist act” in s 100.1(1) as these definitions stood in January 2003.
In written submissions the Crown contended that the accused's submission that it was necessary to identify a discrete and specific terrorist act was one that may have validity in relation to the offences created under Div 101 of the Criminal Code dealing with terrorist acts, but that it had no force with respect to Div 102, which provides for offences relating to terrorist organisations. It pointed to the broad definition of organisation in s 100.1(1) in support of a submission that:
In considering the meaning of "terrorist organisation", it is first to be noted that the legislation is referring to an organisation, that is, a standing body of people with a particular purpose; not a transient group of conspirators who may come together for a single discrete criminal purpose. The requirement for an "organisation" is consistent with the provision for an entity with an ongoing purpose of committing a number of terrorist acts with the intention of advancing the same political, religious or ideological cause (WS 18/11/05 at [10]).
In the Crown's submission, the definition in s 102.1(1)(a) of a terrorist organisation as one directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act is inconsistent with the requirement for the involvement of the organisation in an immediate and specific terrorist act (WS 18/11/05 at [11]).
To the extent that the Crown's submission carries with it that the requirements of proof of a terrorist act in the context of the offences created in Div 101 may be distinguished from the requirements of proof of a terrorist act for the purpose of the Div 102 terrorist organisation offences, I reject it. The definition of terrorist act contained in Div 100 applies both to the terrorist act offences in Div 101 and the terrorist organisation offences in Div 102.
In R v Lohdi, (unreported) 23 December 2005, Whealy J considered the definition of ‘terrorist act’, observing that the definition postulates an action of threat of action of the widest possible kind (at paragraph 52). His Honour was dealing with the provisions of Pt 5.3 introduced by the 2003 Act however nothing turns on this since the definition of "terrorist act" was not subject to material alteration. I respectfully agree with his Honour's observations concerning the breadth of the action that may found a terrorist act. A terrorist act is an action that is done (or a threat of action that is made) with each of the intentions specified in subparas (b) and (c). The action must possess one or more of the features specified in subsection (2) provided that it does not have the features specified in subsection (2A). The latter excludes advocacy, protest, dissent or industrial action that is not intended to cause serious harm (that is physical harm) to a person, or to cause death or to endanger life from founding a terrorist act. The breadth of the definition is such that advocacy, protest, dissent or industrial action may be action that falls within subs(2), and be capable of founding a terrorist act, if it is not unaccompanied by the intentions specified in subs(2A)(i)-(iii). In my opinion the words of the definition admit of the killing of Indian soldiers in Kashmir being "action" within the meaning of subsection (2), which provided it is done (or the threat of it is made) with the intentions set out subparagraphs (b) and (c), may constitute a terrorist act.
A second basis of challenge identified by Mr Barker was that there is no suggestion that the accused knew of or contemplated the possibility of a discrete, specific terrorist act or that he intended to prepare to participate in any such act. If the accused is to be caught by the provisions of s 102.5(1) in Mr Barker's submission it is necessary that the training received by him be itself a terrorist act. This was said to flow from the provisions of s 100.2(1):
This Part applies to a terrorist act constituted by an action, or threat of action, in relation to which the Parliament has power to legislate.
In .the course of oral submissions Mr Barker put it this way:
If he is not charged with a terrorist act constituted by an action or threat of action, there cannot be any case. In other words, if what the Crown sets out to prove in proving a case under 102.5, if that does not involve evidence of a terrorist act on the part of the accused, it can't come within Part 5.3 because it applies specifically to acts constituted by action or threat of action. (T 21/11/05 37.42-49)
The Criminal Code codifies the law with respect to offences against the laws of the Commonwealth and s 100.2 sets out the constitutional basis for the offences created by Pt 5.3. The provisions of subsection (1) in my opinion do not operate to confine the offence created by s 102.5(1) in the way for which Mr Barker contends. The offence is the intentional receipt of training from (or provision of training to) an organisation that is a terrorist organisation and is known by the accused to be such. The offence is complete on proof of these elements and does not require proof of the commission of a terrorist act constituted by an action, or threat of action by the accused.
I note that the Crown accepts that in order to prove the fault element of knowledge it must establish that the accused knew LeT to be a terrorist organisation because he knew that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act being the action or threat of action that the Crown relies on to prove the fact that LeT was a terrorist organisation at the material time.
For these reasons I reject the challenge to the indictment as particularised as not disclosing an offence that is known to law.”

Since the matter was argued before Bell J this Court considered a challenge to an indictment alleging a terrorist act contrary to the Code in Lodhi v R [2006] NSWCCA 121. That case was concerned with alleged offences under Division 101 of the Code. The Court confirmed that although the elements of the definition of “terrorist act” relevant to the asserted breach of the Code must be pleaded the terrorist act need not be further particularised.
The applicant submitted that the Court should take a different approach to Division 102 by reason of the fact that it extends to conduct which may be wholly innocent including the receipt of money from an organisation, even though the payment may be in no way related to a terrorist act. Accordingly, it was submitted that it is imperative that the ambit of Division 2 be narrowly confined.
The Code provides for two offences when a person is involved in training which relates to terrorist activities. Section 101.2 provides for an offence of training relating to a terrorist act in which event particulars of the alleged act would be required. Section 102.5 pursuant to which the applicant has been indicted requires proof the applicant intentionally trained with an organisation that is a terrorist organisation which engages the definition in s 102.1. In Lodhi Spigelman CJ said of the relevant offence creating provision in Division 101:
“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.
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.”
I do not accept the applicant’s argument that a relevant distinction must be made between Division 101 and Division 102. Terrorist acts are relevantly described by reference to activities which may have been completed or which are merely planned. The definition of terrorist organisation incorporates the same concepts and having regard to the nature and purpose of the legislation I see no reason to approach it otherwise than this Court approached the relevant provisions in Lodhi.
Being the correct approach to the offence creating provision in Division 101 in my opinion the same approach is required to be taken to the definition of terrorist organisation in s 102. Accordingly, it will be sufficient to particularise an act having the character of a terrorist act without identifying a particular act which has occurred or is planned.
An organisation will be a terrorist organisation if it engages in conduct which may result in a completed terrorist act even if the act has not been completed or the planning has progressed no further than a generalised aim without descending to a specific act.
The amended particulars provide that the relevant terrorist act is “an action involving physical attack on members of the Indian armed services in Kashmir” with other relevant characteristics. No greater particularity is required.
Although I would grant leave to appeal on this ground I would reject the appeal.
Ground 3: Her Honour erred in concluding the statements made by the applicant were admissible for the truth of their contents, even though the opinions expressed therein were based on otherwise inadmissible evidence.
The rationale for this ground of appeal is not entirely clear. As ultimately articulated it was submitted that the prosecution was doomed to fail because the Crown could not prove by admissible evidence that the applicant trained with a terrorist organisation.
When this issue was argued before Bell J reference was made to records of interview given by the applicant which the Crown proposes to tender at the trial. Relevant passages are identified by her Honour (see paras [66]-[77]) and I need not repeat them. Upon the assumption that they are admitted into evidence (which for present purposes must be accepted) they are capable of proving that the applicant received training which he understood was to require him to fight and to injure or kill Indian soldiers. If that is not sufficient to raise the necessary inference in relation to the organisation, the Crown proposes to call additional evidence from a witness K to prove the nature of the organisation. Although her Honour expressed reservations about the contribution which this evidence could make to the Crown case I am not persuaded that it is irrelevant to the argument.
Beyond these matters the applicant submitted that insofar as the applicant expresses an opinion that the alleged organisation is a “terrorist organisation” his evidence would not be admissible pursuant to s 78 of the Evidence Act. Whether the evidence is admitted and the basis for its admission is a matter for the trial judge who can make the decision having regard to the whole of the evidence tendered and the issues which require resolution. It is sufficient for present purposes to acknowledge that there is evidence beyond the applicant’s opinion which is proposed to be tendered which could prove the Crown case. Otherwise as this Court has said a ruling as to the admissibility of evidence is not amenable to appeal pursuant to s 5F of the Criminal Appeal Act 1912: see R v Edelsten (1989) 18 NSWLR 213; R v Powch (1988) 14 NSWLR 136; R v Bailey (1988) 36 A Crim R 30; Steffan v R (1993) 30 NSWLR 633.
Leave to raise this ground should be refused.
Orders:
1.Application for leave to raise grounds 1 and 2 granted but the appeal dismissed.
2. Leave to raise ground 3 refused.
KIRBY J: I agree with McClellan CJ at CL.
HOEBEN J: I agree with McClellan CJ at CL.
**********
Amendments:
(a)The original paragraph [26] has been deleted and a new paragraph [26] substituted.
(b)Paragraph [20] has been amended to include reference to “XYZ” in the third sentence.

LAST UPDATED: 21/11/2007

[2006] NSWCCA 241

9 August 2006