Faheem Khalid LODHI v Regina

Faheem Khalid LODHI v Regina - [2006] NSWCCA 121 - NSWCCA 2006 case summary — Zoe

[6]

A (FC) v Secretary of State for the Home Department [2005] UKHL 71; 3 WLR 1249 Al-Kateb v Godwin (2004) 219 CLR 562 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 Attorney General (Western Australia) v Marquet (2003) 217 CLR 545 B v DPP [2000] 2 AC 428 Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466 Brennan v Comcare (1994) 50 FCR 555 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Continental Liqueurs Pty Ltd v G F Heublein & Bro Inc (1960) 103 CLR 422 CSR Ltd v Environmental Protection Authority (2000) 110 LGERA 334 Daniels Corporation v ACCC (2002) 213 CLR 543 De Romanis v Sibraa [1977] 2 NSWLR 264 Ealing London Borough Council v Race Relations Boards [1972] AC 342 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 209 ALR 116 Ex parte Lovell: Re Buckley (1938) 38 SR (NSW) 153 Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 Hutchinson v Jauncey [1950] 1 KB 574 John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 496 Lafitte v Samuels (1972) 3 SASR 1 Lauri v Renad [1892] 3 Ch 402 Madafferi v Minister for Immigration (2002) 118 FCR 326 CASES CITED: Moss v Donohoe (1915) 20 CLR 615 Newell v The King (1936) 55 CLR 707 Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Quilter v Mapleson (1882) 9 QBD 672 R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12; 2 WLR 537 R v Cassell (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Sully and Hulme JJ, 24 July 1996) R v Janceski [2005] NSWCCA 281; 223 ALR 580 R v Pora [2001] 2 NZLR 37 R v Salmon (1994) 70 A Crim R 536 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 R v Secretary of State for the Home Office; Ex parte Pierson [1998] AC 539 R v Young (1999) 46 NSWLR 681 Re Joseph Suche & Co Ltd (1875) 1 Ch D 48 Reid v Reid (1886) 31 Ch D 402 Roberts (FC) v Parole Board [2005] 2 AC 738 Rodriguez v United States, 480 US 522 (1987) Romeyko v Samuels (1972) 2 SASR 529 Smith v Moody [1903] 1 KB 56 State of Victoria v Robertson (2000) 1 VR 465 Stanton v Abernathy (1990) 19 NSWLR 656 Taylor v EPA (2000) 50 NSWLR 48 Western Australian v Ward (2002) 213 CLR 1 Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 Zainal bin Hashim v Government of Malaysia [1980] AC 734

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4 "Terrorist act" is defined in s100.1 of the Code as follows: "terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (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 of 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 (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. (4) In this Division: (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."

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61 In his subsequent judgment of 14 February 2006 his Honour further addressed this issue repeating and elaborating his analysis from the earlier judgment: "[65] Although there are differences between s 101.4, 101.5 and 101.6, there are clear similarities. I shall confine myself, in examining the statutory language, to those parts of the provisions that are relevant to the present charges. Relevantly, each provides for the commission of an offence if an act is done. Under s 101.4, the act is the possession of a thing namely, in this case, a document. The act must be 'connected with preparation for a terrorist act;. The person charged must know of the connection. Under s 101.5 the act is the 'collection of a document'. The act must be 'connected with the preparation for a terrorist act'. The person charged must know of the connection. Under 101.6, the offence is committed where the accused 'does any act in preparation for a terrorist act'. [66] In the case of each offence, the legislation provides, as I have noted earlier, 'a person commits an offence…even if the terrorist act does not occur' (my emphasis). [67] I remain of the opinion that the use of the definite article in ss 101.4(3), 101.5(3) and 101.6(2) is a reference to the phrase 'a terrorist act' in the earlier sub-sections. I remain of the view that there is no ambiguity involved in that regard at all. Nor am I persuaded that the appearance of the definite article in s 100.4 carries with it the meaning attributed by senior counsel for the accused. Generally, the definite article in s 100.4 performs the same function I have identified, namely a function of linking back to the phrases 'a terrorist act' or 'terrorist acts' in the section. Thirdly, I remain of the view that a reading of the definition of terrorist act (s 100(1), (2), (3) and (4)), in the light of an examination of the scope and the extent of the division generally, supports this construction. This is so, with one exception, for the reasons I gave in my original decision. I shall come to that exception later in these reasons. [68] The general framework of Part 5.3 of Ch 5 of the Code supports the conclusion I have reached in the following way: the type of action that is made criminal in terms of the division ranges from actually engaging in a terrorist act (s 101.1) down to an act that is altogether preliminary to that engagement: for example, receiving training connected with preparation for a terrorist act (s 101.2(1) and (2)); possessing a thing connected with preparation for the engagement of a person in, or assistance, in a terrorist act (s 101.4(1) and (2)); possessing a thing connected with preparation for the engagements of a person in, or assistance in, a terrorist act (s 101.4(1) and (2)); collecting or making a document connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act (s 101.5(1) and (2)); and doing an act in preparation for or planning a terrorist act (s 101.6). [69] The wide range of activities made significantly criminal is itself postulated on the possibility that the criminal offence will or may occur long before any terrorist act itself is carried out. Indeed, apart from the offence of engaging in a terrorist act, each of ss 101.2, 101.4, 101.5 and 101.6 makes it clear that the offence is committed even if 'the terrorist act does not occur'. (As I have already concluded, this is a reference to the phrase 'a terrorist act' where relevantly appearing in relation to each section creating the offence). Against this background it would be expected, as a matter of logic and commonsense, that the definition of 'terrorist act', would fit in with the concepts revealed by the type of activities that might be expected to be quite preliminary to but connected with the preparation for a terrorist act. As I said in my earlier decision it would, as a matter of logic and commonsense, hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite. … [76] The width of the definition of 'terrorist act' supports the notion that the Crown will prove this element of the case beyond reasonable doubt (or perhaps more accurately this aspect of the relevant element) if it establishes any one of the characteristics of the contemplated action as is specified in s 100.1(2). The nature of the action, however, may make it quite plain that it possesses a number of the characteristics that are enumerated in the sub-section. For example, if the contemplated action relates to the explosion of a large bomb during working hours in a city building, it may well establish characteristics that include physical harm to a significant number of people; serious damage to a building and the death of a number of people and the endangering of many peoples' lives. Depending on the nature of the building and its function in the government or state system, it may well be that it will also possess the characteristic of seriously interfering with the systems referred to in 100.1(2)(f). On the other hand, by way of example, the intended action may be the administration of poison to but one person. In my opinion, however, the Crown would be obliged to prove beyond reasonable doubt that the intended action possessed at least one of the characteristics mentioned in the sub-section. If, however, it possessed more than one of those characteristics, it does not seem to me that more than one offence is created."

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62 In his earlier judgment his Honour had given a range of examples in this regard: "[52] … In my opinion, an offence will have been committed by a person acting in a preliminary way in preparation for a terrorist act even where no decision has been made finally as to the ultimate target. I cannot accept Mr Boulten's argument that there needs to be 'a different mens rea to bomb position X than to bomb position Y'. On the proper interpretation of the sections I have examined, it seems clear to me that an offence will have been committed provided there is an act done in preparation for an action that has ('falls within') or contemplates having the characteristics set out in sub-s (2). The requisite intention to satisfy the existence of the mental ingredient of the offence must be an intention that the act is done in preparation for an action or threat of action possessing those characteristics. [53] May I place this rather abstract analysis in a more concrete setting: The Crown argued that a suicide bomber who is apprehended in busy George Street Sydney at peak hour with a bombing apparatus strapped to his back could not avoid a conviction on the basis that he had not, at the time of his apprehension, selected a final target. The Crown said that the fact that the suicide bomber had not determined whether to explode the bomb in a café a shop or on a crowded bus would not prevent his conviction. Mr Boulten countered this argument by suggesting that the example did not take the matter further because the apprehended suicide bomber would be simply guilty of engaging in a terrorist act under s 101.1. [54] Let it be assumed, however, that a second person was apprehended at his home on that very day and was shown to have packed the suicide bomber's bag with explosives. This person, however, had no idea of the target to be selected by the bomber, even though he knew it was contemplated that the bomb would be exploded somewhere in George Street so as to cause death to nearby bystanders. Could this individual escape liability on the basis that the Crown was unable to establish beyond reasonable doubt that he knew precisely the place in George Street where the bomb was to be exploded? In my opinion such a conclusion would yield an entirely unrealistic approach to the natural construction and meaning of the various section in the division, including the definition of 'terrorist act'. [55] Let it be further assumed, by way of further example, that in the particular given situation it was contemplated, to the knowledge of the person who packed the explosives, that the suicide bomber would detonate the device either in the Queen Victoria Building or in Dymocks Book store but that no final decision had been made as to which it would be. Again, could criminal responsibility be avoided by the second person who carried out the act of preparation stating, with appropriate candour, that he simply did not know which of the two places was to be the ultimate target? Again, in my respectful opinion, the answer to that question must be 'No'. This is so essentially for the same reasons I have earlier identified. The actus reus is the packing of the bag with explosives. The necessary 'mens rea' is the intention that an action is intended to be carried out which possesses the characteristics of causing serious physical harm to a person, in causing a person's death or causing serious damage to property (or for that matter any of the other characteristics set out in sub-s (2)). This mental element is necessarily present even if a terrorist act does not occur and it exists even where the ultimate target has not been finally determined or is, at least, not known to the person who has done an act in preparation for a terrorist act."

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73 In this regard his Honour said in his second judgment: "[95] In relation to the 'nature of harm' argument, I have not found this of significance in relation to either the construction of the legislation or the argument related to duplicity. It goes without saying that, in a particular case, the nature of the terrorist act is likely to have a bearing on the assessment of culpability and therefore will have an impact on the sentencing procedure where an accused has been convicted. This is to say no more than that the sentencing court will need to make factual findings consistently with the jury's verdict, in relation to the nature of, inter alia, the terrorist act. Such a consideration might have, in an appropriate case, a capacity to bear on the question as to whether the statute creates one offence or more than one offence. In my view, for the reasons I have earlier outlined, here the section creates only one offence. That conclusion is supported by the fact, to use the terminology of Bray CJ in Romeyko at 552, the act under consideration 'possesses one or several of such characteristics'. The fact that a sentencing court will have to make a determination about the characteristic or characteristics that apply, as part of the sentencing procedure, does not in this instance alter the construction conclusion. [96] The second string to Mr Boulten SC's bow in relation to this argument centred upon the definition of terrorist act, at least so far as damage to property was concerned. He argued that, having regard to sub-s 3 of s 100.1, the nature of the result intended could not be simply viewed as a characteristic of the offence. As a matter of construction of s 100.1, however, this conclusion is, in my view, too broadly stated. … [97] … As I have said, he argued that the nature of the result intended cannot be simply viewed as a characteristic of the offence but, to the contrary, the intended result goes to the heart of the elements the Crown is required to prove. [98] I repeat that the proper construction of 'terrorist act' is this: a terrorist act is an action that is done (or a threat of action that is made) with each of the intentions specified in sub-paragraphs (b) and (c). The action must possess one or more of the features specified in sub-s (2) provided that it does not have the features specified in sub-s (3). The latter excludes advocacy, protest, dissent or industrial action that is not intended to cause the consequences detailed in the sub-section. The breadth of the definition is such that advocacy, protest, dissent or industrial action may be action that falls within sub-s (2), and be capable of founding a terrorist act, if it is not unaccompanied by the intentions specified in sub-s 3(b)(i), (ii), (iii) and (iv). [99] It follows that, on its proper construction, the legislation makes it a criminal offence for a person to do an act in preparation for an act to be carried out that will cause serious damage to property provided that the action is to be done with the intentions specified in s 100.1(1)(b) and (c) and provided it does not fall within sub-s (3). But a distinction needs to be made as to the characteristics of the action in sub-s 2 and the matters in sub-s 3. The latter is concerned with advocacy, protest etc not intended (my emphasis) to cause the nominated consequences. The former is concerned with the nature of the contemplated action itself. It is a fine distinction perhaps but, nevertheless, a real one. In my view, it prevents Mr Boulten's argument from leading to the conclusion he urged."

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80 In his second judgment, Whealy J set out a detailed analysis of the offence created by s101.4, which also applied to the offences alleged under each of the other sections. His Honour commenced by noting that the Criminal Code stipulates in s3.1(1) that each offence consists of physical elements and fault elements. His Honour then said: "[81] Count 4 in the indictment alleges that on about 26 October 2003 the accused possessed a thing namely a document containing certain information (s 101.4). This is the first physical element in the charge. Section 5.1 stipulates that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Consequently, the fault element in relation to the physical element of possession of the document is intention to possess the document. The Crown must prove the physical element and the fault element beyond reasonable doubt. [82] The 'possession' of the document is alleged, by count 4, to be connected with preparation for a terrorist act. (In making this analysis I am acting on the assumption that the indictment will be amended as the Crown indicated in its written submission). Plainly, the second physical element relates to a circumstance in which conduct occurs (s 4.1). The fault element (that is, the mental element) is specifically stated in s 101.4. The accused, in possessing the document must know of the connection between the document and the preparation for a terrorist act. Section 5(3) provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. The Crown will be obliged to prove the circumstances and the awareness of the accused in relation to those circumstances to prove both the physical and fault element beyond reasonable doubt. [83] This analysis enables me to say that, in the case of an alleged offence against s 101.4, it is not necessary for the Crown to prove that, at the relevant time, the accused himself intended to prepare for either a particular or general terrorist act. Of course, the Crown may prove that state of mind and, in the general course of things, if such a state of mind were shown to have existed at the relevant time, this would demonstrate awareness on the part of the accused so as to satisfy s 5.3. But the point is that the Crown does not have to prove the existence of a concurrent intention on behalf of the accused to carry out or be involved in, for example, the bombing contemplated by the information contained in the document alleged to have been in his possession. The only potential exception to this position arises in relation to the provisions of s 101.4(5). Where the defendant meets the evidential burden contained in this sub-section, the Crown will carry the legal burden to negative beyond reasonable doubt the matter of intention mentioned in the relevant sub-sections (s 13.3(3) and (6)). This is not an ingredient of the offence and need not be set out in the indictment (s 13.3(3)). A similar situation arises in relation to an offence under s 101.5 (see s 101.5(5) of the Code)."

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His Honour went on to say: "[87] This analysis enables me to make one further comment about the arguments advanced on behalf of the accused. It will be recalled that, in relation to the argument regarding the alleged failure to state all necessary factual elements of the offence, Mr Boulten referred to the necessary mental element to be proved by the Crown and, as well, to the need to prove the motivation behind the act. In this regard, Mr Boulten made reference to s 100(1)(c) of the Criminal Code . Although this submission did not arise in relation to the duplicity argument, it is perhaps convenient if I deal with it at this stage. [88] In my opinion, it is not an ingredient of the offence, for example, under s 101.4 that the Crown must prove beyond reasonable doubt that, at the time of the possession of the document by the accused, he had an intention of advancing a political religious or ideological cause. Similarly, I do not accept that the Crown must prove that the accused, at the relevant time, had the intention of coercing or influencing by intimidation the Commonwealth or State Governments; or that he had the intention of intimidating the public or a section of the public. Of course, it would be open to the Crown to prove that the accused had these intentions and, if it were to do so, this would provide evidence of the fault element in relation to the connection between the possession of the document and preparation for a terrorist act (or, at least, it might tend to do so). But the relevant fault element, it must be stressed, in relation to this particular offence and the circumstances of the connection between possession and preparation for a terrorist act is 'awareness' of the connection. For example, it might, in a particular case be the situation that an accused person who has been shown to have possession of a document had no personal interest in the carrying out of the terrorist act contemplated by the information in the document. He might, for example, simply be a paid mercenary. He might simply be doing a favour for a friend or repaying a debt. As I see it, it is not necessary for the accused to have any of the intentions mentioned in 100.1(b) and (c). The accused's motivation is not an essential ingredient of the offences in the indictment."

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The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence": Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 166. The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 (11 & 12 Vict. c 43), ss 1 and 3 and the Summary Jurisdiction Act 1879 (42 & 43 Vict. c 49), s 39) was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckle y at 167-174 and, in particular, Justices Act 1902, ss 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g, Smith v Moody [1903] 1 KB 56 at 60 ; Johnson v Miller (1937) 59 CLR 467 at pp 486-487, 501 ; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280. It is, however, unnecessary to pursue that particular question here since, putting to one side s 6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.

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