R v Azari

Supreme Court of NSW|2017-04-11|Before: Adams J, Mr P, Ms J, Mr J

Introduction

On 10 April 2017, the accused Omarjan Azari pleaded not guilty before me to two counts arising out of a lawfully intercepted telephone conversation he had with another person, said to be Mohammad Ali Baryalei, on 15 September 2014 ("the telephone conversation"). The Crown alleges that, during that conversation, the accused and Mr Baryalei discussed a plan for a future terrorist act or acts to be committed in Australia, namely, the killing of a random member or members of the public. The conversation was conducted in a mixture of English, Arabic and Dari.

The application

By notice of motion filed on 4 April 2017 the accused seeks an order that the indictment against him be temporarily stayed until such time as the Crown elects upon which of the two counts it intends to proceed. The basis of the application is that the indictment puts the accused in double jeopardy. The basis for an order staying the indictment upon which the accused relies is this Court's inherent jurisdiction to prevent an abuse of process.
In addition to the two counts arising out of the telephone conversation, the accused has also been charged with further counts of attempting to intentionally make funds available to a terrorist organisation contrary to ss 11.1 and 102.6(1) of the Criminal Code. He pleaded guilty to one of those charges in the Local Court, with the other two to be placed on a form for the purposes of s 16BA of the Crimes Act 1914 (Cth). Those matters were initially committed to the District Court for sentence, but have recently been transferred to this Court. For the purposes of consideration of this application, I propose to refer only to the two counts to which the accused pleaded not guilty before me on 10 April 2017.
I had before me on this application the Crown Case Statement, the translated transcript of the telephone conversation, and written submissions on behalf of both the Crown and the accused.

The Crown case

A final version of the Crown Case Statement was filed in court on 10 April 2017. It comprises 477 paragraphs and is 69 pages long.
Counts 1 and 2 arise out of the accused's alleged participation in the telephone conversation on 15 September 2014. That conversation was lawfully intercepted by police in the course of ongoing investigations concerning persons suspected of criminal involvement in terrorism, foreign incursion or related offences. The Crown case is that the caller was Mohammad Ali Baryalei, who was at that time an Australian citizen present in either Syria or Iraq and who was a member of Islamic State. The Crown's alternative case is that the caller was some other unidentified person known to the accused as being a member of Islamic State present in either Syria or Iraq.
Islamic State is a listed terrorist organisation known by names including Al Qa'ida in Iraq, Dawla al Islamiya, Islamic State of Iraq, Islamic State of Iraq and al Sham, Islamic State of Iraq and the Levant, Islamic Caliphate, ISIS, ISIL and IS. On 12 July 2014, it was listed as a terrorist organisation under the Criminal Code for a period of three years by the Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 (Cth). The same organisation had previously been continuously listed as a terrorist organisation by the Criminal Code (Terrorist Organisation - Islamic State of Iraq and the Levant) Regulation 2013 (Cth) commencing on 14 December 2013, the Criminal Code (Terrorist Organisation - Al Qa'ida in Iraq) Regulation 2013 (Cth) commencing on 12 July 2013, and by reg 4G of the Criminal Code Regulations 2002 (Cth).
The Crown Case Statement contains a brief overview of the Crown case at [4] to [9] as follows: "[4] In the course of Omarjan AZARI's conversation with Mohammed Ali BARYALEI, conducted in a mixture of English, Arabic and Dari languages, they discussed, amongst other subjects, a plan for multiple future attacks deliberately killing random members of the public in Australia and the role Omarjan AZARI was to perform to cause that to occur. [5] They discussed aspects of the plan including: (a) suitable types of persons to target as victims of the planned killings; (b) video recording of the killings before an Islamic State flag so the recordings could be supplied to Islamic State for use for propaganda purposes; (c) selection of a small number of suitable persons to be procured by Omarjan AZARI to aid in causing the killings to occur; (d) the timing for commencement of the planned attacks to minimise the risk that investigation or intervention by Australian authorities might frustrate their plan; and (e) preparations to be undertaken by Omarjan AZARI, such as obtaining means by which further covert telecommunications could occur in order to progress the planned attacks. [6] During the conversation, Omarjan AZARI and Mohammed Ali BARYALEI conveyed an intention that the attacks being planned would advance a political, religious or ideological cause, demonstrating they held radical militant Islamist and anti-Western motivations, and an intention that the planned attacks would cause fear to members of the public and coerce or influence by intimidation governments in Australia and elsewhere. [7] Consistent with judicial recognition of the scope of anticipatory terrorism offences created under the Criminal Code (Cth), Omarjan AZARI's participation in the conversation is alleged to have constituted an act done in preparation for, or planning, a terrorist act, contrary to s 101.6(1) of the Criminal Code (Cth). [8] Further, Omarjan AZARI's participation in the conversation is alleged to constitute evidence of the formation of a conspiratorial agreement with Mohammed Ali BARYALEI to murder one or more persons unknown, which murder or murders the parties genuinely intended was to occur in accordance with that agreement, contravening s 26 of the Crimes Act 1900 (NSW). [9] In furtherance of establishing various matters, including Omarjan AZARI's participation with Mohammed Ali BARYALEI in the relevant telephone conversation on 15 September 2014, the identity of the caller as Mohammed Ali BARYALEI and the states of mind of Omarjan AZARI and Mohammed Ali BARYALEI when participating in the relevant conversation, the Crown intends to rely upon a body of circumstantial evidence to place the events of 15 September 2014 in their appropriate context."
I was informed that the accused challenges some aspects of the translation of the transcript of the telephone conversation, but there was no objection to the tendering of that document for the purposes of this application. The translation of the recorded telephone conversation constitutes what the Crown alleges was said during the conversation and is subject to proof of that fact at trial. It is unnecessary to set out the transcript in full. The following are only some portions of the recorded conversation, extracted to give some context to the issues raised in this application. The Crown case is that the participants are Mr Baryalei and the accused. "MB" is Mr Baryalei. The portions of the conversation in English are marked in bold, in Arabic in underlined bold, and in Dari in italicized bold.
MB says, "…I got some good news for you." The accused responds, "Yeah?" MB then continues, "Remember, remember we discussed about, you know what we discussed?" The accused then responds, "Yeah, yeah, yeah."
MB then states further, "We're gonna do it but… differently." The accused responds, "Differently?" and when he is informed that, "…It's gonna be different. It's gonna be ah a kind of…in the name of Allah (MB then appears to recites a short prayer)…" the accused responds "Amen!"
MB then states, "Listen, it's gonna be like this. I need you first of all to get umm a telephone and on that telephone I need you to get telegram. I'm gonna get a telephone at this end. I'm gonna set up telegram on this end and then…" Then accused responds, "Yeah"
MB continues, "…we're gonna speak we're gonna speak through - we're gonna speak through telegram, Allah wiling, because telegram, apparently, praise be to Allah is very good, but um…" The accused replies, "Yeah?"
MB then states, "Yeah, like, let - let you know what you'll be doing. I need you and I need someone else maybe two or three or I might hook you up with another two or three brothers…" The accused's response is "Yeah."
MB continues, "…that side. And um it's better - it's better if we don't if we don't send anyone but it will be better if we set it up over there with you guys. What you guys need to do is just pick any random unbeliever...". The accused responds "Yeah." MB continues, " Finish him/her. When finished put the flag of the State on the background, put our flag, and then I need that video here. I'm, gonna get the 'Al-Furqan' boys to work on that video and start posting up videos," "…here the Americans send their planes and things like that to kill people, we want to send them a message that…". The accused replies, "Yeah."
MB continues, "…that as you kill our people we also will kill your people one by one. As you send your people here to kill us, we tell them that we have people in your countries, as you continue to kill us and continue to send your people here, we have also people there that do kill your people one by one. Let their people rise against their ah, ah their governments, man. You know what I mean?" The accused responds, "Yeah, yeah. Allah willing. Yeah."
MB then continues that, "I need-I need-I need-I need boys. I need you. I - I need someone that has heart. You know what I mean? Someone that…(indistinct)..." The accused responds, "Look ah", "A brother wanted to do this work, yeah?", "He prepared two persons, he completely prepared everything, and…but two days ago he got raided, everything was raided." He says that, "This brother was from Brisbane... he was very much with us in religion…" and later on in the conversation adds, "I swear by Allah, that brother had planned everything very well, but his plan is known to us, Allah willing, we have got his plan."
MB states, "I want you to do this work, but I want this work to be continuous. I don't want you to get arrested but want to do continuously and every month to terminate five, six, seven people every month…" The accused responds that, "The problem is that here the boys who have heart, yeah, all of them are under surveillance, like extreme surveillance…" and, "My situation is the same…" He says that, "…you have to give us, like, two months because …Australian terror level has gone up, yeah?" and "For this reason, I say Allah willing, to postpone this thing and after a couple of months we again,…if you tell me, I will get a new phone Allah willing and then do the work, it would be better. Because, Allah knows best, I am not hundred percent sure that they are listening, but I think they are most likely listening. Nonetheless, it is not like that…now they have no evidence against us, what they can do; the voice-voice is not evidence."
MB further says, "As you are involved in this work…" and "...it's an order from…the Commander of the Faithful. He said, youse will be working from there. Youse-youse aren't allowed to come here…" MB says that, "They told me to tell you guys the Commander of the Faithful said that you guys, if youse do this … your pledge of allegiance is accepted, you are a part of us and the second thing, ah even if youse wanna come her now, no. You have to stay there and work from there. They want youse to be, like, the soldiers from there." The accused's response is "Allah willing brother, I have no problem with that. Praise be to Allah." He says to MB, "Give two months, to get another good telephone, to get out of being under surveillance…After that everything will be easy."
The Crown relies upon other circumstantial evidence in its case as set out in the detailed Crown Case Statement, but it is unnecessary to detail any of that evidence for the purpose of considering this application.

Legislative framework

It is convenient here to have regard to the legislative framework in which s 101.6 is found. Division 101 of Part 5.3 of the Criminal Code creates a range of offences that can be described as terrorist offences. Divisions 100-103 were inserted into the Criminal Code by the Security Legislation Amendment (Terrorism) Act 2002 (Cth) and subsequently repealed and re-enacted in full by the Criminal Code Amendment (Terrorism) Act 2003 (Cth) to reflect the referral of powers to the Federal Parliament by the various States and Territories. The creation of terrorist offences was part of a suite of measures implemented in order to bring Australia into compliance with Security Council Resolution 1373, which was adopted on 28 September 2001.
The conduct encompassed by Division 101 includes completed acts of terrorism (namely, doing a terrorist act contrary to s 101.1) and acts that are preparatory to a terrorist act. Those preparatory acts include possessing things connected with a terrorist act (s 101.4), collecting or making documents likely to facilitate terrorist acts (s 101.5), providing or receiving training in connection with terrorist acts (s 101.2), and doing any other act in preparation or planning for a terrorist act (s 101.6).
Section 101.6 can be described as a general provision encompassing conduct preparatory to a terrorist act that is not captured by the specific provisions. It provides as follows: "101.6 Other acts done in preparation for, or planning, terrorist acts (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. (3) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1)."
It is to be noted that offences contrary to s 101.6 carry a maximum penalty of life imprisonment, unlike offences contrary to ss 101.2, 101.4 or 101.5.
The unifying concept in Division 101 is that of a "terrorist act". "Terrorist act" is defined in s 100.1(1) of the Criminal 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."
Sub-section (2) provides: "(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."
Sub-section (3) provides: "(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."
Division 101, in proscribing acts that are preliminary to the commission of a terrorist act, extends to conduct that is mere preparation and may not therefore amount to attempt at common law: c.f. R v MAI and Anor (1992) 26 NSWLR 371. There need not be a specific terrorist act in contemplation, nor need any terrorist act eventuate: sub-ss 101.6(2)(a) and (b). Whealy J stated in R v Lodhi [2006] NSWSC 667 at [27] that, "The legislation is designed to cut off the terrorist attack long before it culminates in an action of potential mass destruction and damage." Similarly Spigelman CJ (with whom McClelland CJ at CL and Sully J agreed) stated in Lodhi v R [2006] NSWCCA 121 at [66] that: "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 the 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 legislation policy."
Section 101.6 also goes further than the inchoate offence of conspiracy because it does not require agreement or indeed the involvement of more than one person. However, s 11.5 of the Criminal Code, by the operation of s 2.2, creates an offence of conspiring to commit an offence that is punishable by at least 12 months' imprisonment and/or a fine of 200 penalty units. Thus a person may commit an offence of conspiracy to do an act or preparation or planning for a terrorist act. The offence of conspiracy requires proof of at least one overt act committed pursuant to the agreement: s 11.5(2)(c).
The applicants in R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 were charged with, inter alia, conspiracy to commit an offence contrary to s 101.6. They submitted, relying upon R v Chow (1987) 11 NSWLR 561 by analogy, that it is absurd to charge conspiracy where an agreement is capable of constituting the substantive offence. The Court of Criminal Appeal (Spigelman CJ, James and Howie JJ agreeing) observed at [104]-[105], obiter, that it may be that an agreement to commit an act in preparation or planning for a terrorist act could, in itself, constitute a preparatory act.
In this case, the accused has not been charged with conspiracy to commit an act in preparation or planning for a terrorist act. One might infer that this is because there is no evidence that either the accused or Mr Baryalei committed an overt act pursuant to the agreement, as is required by s 11.5(2)(c). The accused was arrested on 18 September 2014. Accepting that an agreement (or even a conversation) may constitute a preparatory act for the purposes of s 101.6, it is to be observed that under the Criminal Code the substantive offence does not require an overt act whereas the offence of conspiracy does.

Elements of the offences

The Crown Prosecutor set out the elements that the Crown must prove to make out Counts 1 and 2 in his written submissions on this application. Mr Stratton did not take issue with those elements in general terms.
The elements of the offence contrary to s 101.6 of the Criminal Code are as follows: 1. On 15 September 2014, the accused did an act in preparation for, or planning, a terrorist act or acts; and 2. The accused intended to do that act and did so knowing or believing it was being done by the accused in preparation for, or planning, a terrorist act or acts.
Section 26 of the Crimes Act (NSW) provides that "Whosoever: conspires and agrees to murder any person, whether a subject of Her Majesty or not, and whether within the Queen's dominions or not, or solicits, encourages, persuades, or endeavours to persuade, or proposes to, any person to commit any such murder, shall be liable to imprisonment for 25 years."
The elements of the offence contrary to s 26 of the Crimes Act are as follows: 1. On 15 September 2014, the accused conspired and entered into an agreement with another person to do an unlawful act; 2. The unlawful objective of that conspiratorial agreement was to murder a person or persons unknown; 3. At the time of entering into the conspiratorial agreement, the accused intended that its unlawful objective should be carried into effect at some time in the future; and 4. The accused intended to conspire and enter into such a conspiratorial agreement.

Judicial consideration of s 101.6 of the Criminal Code

There have been few prosecutions for offences contrary to s 101.6 since its enactment in 2002 and thus it has received relatively little judicial consideration. The Crown Prosecutor referred the Court to the decisions of Whealy J in R v Lodhi [2006] NSWSC 584 (at [68]-[69]) and R v Lodhi [2006] NSWSC 667 and to the decisions of the Court of Criminal Appeal in Lodhi v R [2007] NSWCCA 360 (at [207]) and Lodhi v R [2006] NSWCCA 121 (at [65]-[66] and [77]).
Faheem Khalid Lodhi ("the accused") was charged with, among other offences, intentionally doing an act in preparation for a terrorist act contrary to s 101.6 of the Criminal Code (Count 2). The particulars of that act were that he sought information concerning the availability of materials capable of being used for the manufacture of explosives or incendiary devices. The terrorist act particularised in Count 2 was the causing of death of serious physical harm to a person or persons unknown or causing serious damage to property unknown. He was also charged with offences contrary to ss 101.4 (Count 4) and 101.5 (Counts 1 and 3).
The accused claimed that Counts 2, 3 and 4 on the indictment were bad for duplicity because they contemplated multiple alternative terrorist acts. He also applied for an order quashing Counts 1 to 4 on the basis that they failed to specify all essential factual elements. He submitted that the Crown must prove that the accused, at the relevant time, intended to prepare for a particular terrorist act. (I pause here to note that, at the time of the commission of the alleged offences, s 101.6 did not include sub-ss (2)(a) or (2)(b). Those provisions were inserted into s 101.6 by the Anti-Terrorism Act 2005 (Cth).)
Whealy J dismissed the accused's motion: R v Lodhi [2006] NSWSC 584. His Honour stated at [89] that the proper construction of ss 101.6, with the definition of "terrorist act" in ss 100.1(1), (2) and (3), does not create more than one offence where the relevant terrorist act possesses more than one of the characteristics in s 100.1(2). His Honour also held at [88] that the motivation of the accused was not an essential ingredient of the preparatory offences, provided that the "action or threat of action" possesses at least one of those characteristics. His Honour considered the preparatory offences generally and observed at [69] that, "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." It matters not that the Crown is unable to specify the ultimate target of an alleged terrorist act.
The accused appealed to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW): Lodhi v R [2006] NSWCCA 121. Having regard to the language of the statute, Spigelman CJ agreed with the conclusion reached by Whealy J that it was not necessary to specify a particular terrorist act in the indictment: at [63]-[65]. His Honour noted that the words "preparation or planning" in s 101.6 are to be understood as a second physical element of a "circumstance". He stated at [70] that, "…there is no duplicity in identifying a range of matters that may constitute the relevant circumstance." The observations of Spigelman as to the rationale for the creation of preparatory offences are extracted above at [32]. The Court allowed the appeal and quashed the indictment on the basis that Crown had failed to plead all of the characteristics of a "terrorist act" as defined in s 100.1.
The accused was convicted and appealed against his conviction to the Court of Criminal Appeal the ground, inter alia, that Whealy J erred in refusing an application for a directed verdict on all four counts. The Court (Spigelman CJ, Barr and Price JJ) dismissed the appeal: Lodhi v R [2007] NSWCCA 360. Relevantly, Barr J stated at [207] that: "The Crown case was capable of proving that when he did each actus reus, the collection, the preparation and the possession pleaded, he did so deliberately with the relevant intention. As the Chief Justice said, these sections of the Code make offensive preparatory acts done at a time when the actor has not decided precisely what he or she intends to do. Accordingly, it did not matter that the evidence could not prove that the appellant had determined when, how, where or by whom the terrorist act might be carried out."

Principles regarding double jeopardy

Double jeopardy has a number of meanings in criminal law depending upon, inter alia, the relevant stage of the process concerned. The aspect of double jeopardy relevant for present purposes arises where two or more statutory offences apply to the same set of primary facts. Although an accused person may be charged with more than one offence arising out of the same facts, that proposition is subject to certain qualifications.
In Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277, Hunt J noted (at 282) that although the common law prevents a person from being punished twice for the same offence it has never prevented a person from being punished twice for the same act. His Honour cited R v Thomas [1950] 1 KB 26 at 31-38 in support of that proposition. Citing the decision of Hope J in Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 (at 510), his Honour went on to state that, "There is no reason why the same act may not be prohibited by two separate statutes and involve an offence under each of them."
In R v Dodd (1991) 56 A Crim R 451, Gleeson CJ held (at 457) (citation omitted): "There are many forms of conduct which are capable of giving rise to multiple breaches of the law. In Australia it is not the law that a person cannot be prosecuted for a number of offences just because they all arise out of the same act or course of conduct…The rule with which we are presently concerned is one which prevents more than one prosecution for the same offence and which also applies to prevent prosecution for an offence which is merely an aggravated form of an offence for which a person has already been punished."
In Environment Protection Authority v Australia Iron & Steel Pty Ltd (1992) 28 NSWLR 502; 64 A Crim R 124, Gleeson CJ noted (at 507) that: "…it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last-mentioned proposition itself requires elucidation. Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts."
His Honour further stated (at 508): "Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another."
The scope and nature of double jeopardy were considered by the High Court In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. The appellant in that case had been charged with, among other things, maliciously inflicting grievous bodily harm with intent to do so and breaking and entering a dwelling-house and inflicting grievous bodily harm on the same victim. The plurality (McHugh, Hayne and Callinan JJ, with whom Gummow agreed; Kirby J in dissent) noted (at 614 [9]) (footnote omitted): "The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be 'punished again for the same matter'. Further, 'double jeopardy' is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.
The single rationale for the rule against double jeopardy was stated (at 614[10]) to be that set out by Black J in Green v United States (1957) 355 US 184 at 187-188, namely, that the State should not be allowed to make repeated attempts to convict an individual for the same alleged offence. The plurality noted (at 614 [10]) that, although this value is pervasive, it is "…not the only force at work in the development of these parts of the common law".
The plurality went on to identify three further forces as follows (at 614-615 [11] - [13]): "First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged. Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct."
The Court further noted that a plea in bar was not available to the appellant because the elements of the offences were not identical and neither offence was wholly included in the other (at 616-619 [17]-[28]). The plurality went on to observe, relevantly for present purposes, that a Court retains its inherent power to prevent abuse of process and there may be cases in which repeated prosecution gives rise to an abuse of process, even where no plea in bar is available (at 620 [29]).
The Court held that there was no abuse of process in charging the appellant with both offences because there was an element in each offence that was not common with the other. In relation to the offence contrary to s 33 of the Crimes Act, the additional element was the intentional infliction of grievous bodily harm rather than grievous bodily harm per se. The additional element in the offence contrary to s 110 of the Crimes Act was that there was a breaking and entering.
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 concerned the issue of autrefois acquit, rather than double jeopardy, and is not directly relevant. Despite this, it was relied upon by Mr Stratton in support of the proposition that the consideration of whether double jeopardy exists is not confined to the question of the elements but also extends to the factual substratum. The Queen v Carroll concerned an appeal by a man who had been acquitted of murder and was subsequently charged with perjury arising out of evidence that he gave at his trial for murder. The Crown case on the perjury trial was that the accused had lied when he had denied the offence. Implicit in the Crown's case was an assertion that the appellant did in fact murder the deceased.
The Court held that the perjury indictment was an abuse of process and should have been stayed by the trial judge. The trial for perjury raised the same ultimate issue as that which had been raised at the murder trial. In bringing the prosecution for perjury, the Crown had sought to controvert the appellant's acquittal on the murder charge. Gleeson CJ and Hayne J observed at 640 [9], "As was also pointed out in Pearce, because double jeopardy is an expression used in connection with several different stages of the process of criminal justice and because there are other (sometimes competing) forces at work in the area, the treatment of double jeopardy has not always been clearly based on identified principles. As the criminal law has become more complex, it has become even more important to examine those principles upon which the disparate principles encompassed by the expression double jeopardy are based if it is said that one or more of those principles is engaged in a particular case."
Gaudron and Gummow JJ similarly observed (at 660-661 [84]) (footnotes omitted): "In Australia, "double jeopardy" is not an independent doctrine of avoidance, which, for example, would found a demurrer to a count or a stay application. The law's aversion to placing an individual twice in jeopardy of criminal punishment for the one incident or series of events reflects a broader precept or value. This finds diverse application through doctrines of estoppel and merger, in the pleas of autrefois acquit and autrefois convict, and in principles respecting abuse of process, the admissibility of evidence, and sentencing."
The following was also stated by Gleeson CJ and Hayne J at 649 [40]-[41]: "There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial. The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent's falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child."
The Court of Criminal Appeal considered the question of double jeopardy in the sentence appeal of Nahlous v The Queen (2010) 77 NSWLR 463; [2010] NSWCCA 58. In that case, the applicant had been charged with six offences contrary to ss 135ASB(1) and 135ASC(1) of the Copyright Act 1968 of selling or offering to sell unauthorised decoders and with dealing in the proceeds of crime contrary to s 400.6(1) of the Criminal Code. The latter offence arose when the offender accepted payment for the sale of the decoders. The Court noted at [16] that the applicant should never have been charged with dealing in the proceeds of crime and that, had an application been made to have the indictment permanently stayed as an abuse of process, it would have been successful.
The Court (McClellan CJ at CL, Howie and Rothman JJ) observed the following at [17]: "We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty. We do not believe that there is anything in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 that conflicts with the view that we have taken as to the inappropriateness of the prosecution of the Code offence as well as the decoder offence; see particularly at [31]. We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the decoders and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale." [emphasis added]
In R (Cth) v Milne (No. 1) (2010) 260 FLR 166; [2010] NSWSC 932, Johnson J considered, inter alia, an application by an accused that he, as the trial judge, stay an indictment to prevent an abuse of process on the basis of double jeopardy. The offences in question were money laundering contrary to s 400.3(1) of the Criminal Code and dishonestly obtaining a benefit under s 135.1(1) of the Criminal Code. After considering the parties' submissions and Pearce v The Queen, Johnson J stated at [118]-[120]: "It may be seen from Pearce v The Queen that the test for abuse of process is a relatively demanding one. It is not enough that there be offences prosecuted with overlapping elements. Several charges may be laid arising out of the same incident, let alone the same course of conduct on the part of the accused person. Proper respect and regard is paid to the exercise of prosecutorial discretion. If several charges are laid with respect to the course of conduct of the accused person, and that person is convicted of the charges, then the court on sentence will ensure that there is no double punishment, with this outcome being achievable by assessment of the criminality reflected in each offence, and then by application of the principles of accumulation, concurrency and totality. In the end, a criminal court will seek to ensure that justice is done by the exercise of whichever power is appropriate in the circumstances. To stay the prosecution on indictment of several offences as an abuse of process is an exceptional remedy. If a proper foundation for that remedy is made out, the Court should not hesitate to grant it. However, it is necessary to have regard to the full expression of the principles in Pearce v The Queen, and the underlying principle concerning the exceptional nature of the stay remedy, in approaching an application such as this."
There have been other cases in which the Court of Criminal Appeal has been critical of the Commonwealth DPP in bringing charges for dealing with the proceeds of crime in circumstances where receiving the funds was already covered by the criminality of another offence: see R v Jones; R v Hili [2010] NSWCCA 108, Schembri v R [2010] NSWCCA 149 and Thorn v R [2009] NSWCCA 294.
More recently, in Glover v R [2016] NSWCCA 316, the Court of Criminal Appeal considered whether double jeopardy arose in a conviction appeal in which the appellant was charged, inter alia, with causing a child to participate in an act of child prostitution contrary to s 91D(1)(a) of the Crimes Act (with a maximum penalty of 10 years' imprisonment) and exercising lawful control over premises in which a child participated in an act of child prostitution contrary to s 91F of the Crimes Act (with a maximum penalty of 7 years' imprisonment).
The Crown case in Glover v R was that the appellant had lawful control of his home and that a female under the age of 16 worked there as a prostitute. The appellant claimed double jeopardy on the basis that the lesser offence as particularised and proved comprehended the more serious offence. That argument was rejected on the basis that, in order to prove the offence of causing a child to participate in child prostitution, it was not necessary to prove that the child had undertaken that activity at any particular location. Nor was it necessary for the s 91F offence that the appellant caused the child to participate in child prostitution: at [32]-[54].

The submissions made on behalf of the accused

Mr Stratton submitted that charging the accused with both counts on the indictment exposes him to double jeopardy because each count is an allegation that he entered into an agreement to commit murder. Mr Stratton acknowledged that the elements of the offences were not identical, but submitted that they overlap such that all of the elements of Count 2 are subsumed into Count 1. He relied upon the decisions in Pearce v The Queen, The Queen v Carroll, and Nahlous v R in support of the application to stay the indictment temporarily.
Mr Stratton submitted that the fact that the offence in Count 1 bears a higher maximum penalty supports the proposition that it involves more serious criminal conduct than Count 2. In fact, Count 1 carries the same maximum penalty as the completed offence of actually doing a terrorist act contrary to s 101.1(1) of the Criminal Code.
He noted that the evidence that the Crown intends to lead to prove the elements of the conspiracy to murder charge is the same evidence intended to be led to prove the terrorism charge.
Mr Stratton accepted that it is the identification of the elements of the offence, rather than the evidence alone, which is relevant to the question of double jeopardy. Despite this, he submitted that the evidence is nonetheless relevant in the way that the High Court considered double jeopardy in The Queen v Carroll at [40]-[41]. He relied upon the observations by the Court in that matter that the prosecution for perjury did not rely upon the same elements, but rather upon all the same evidence and in particular the ultimate issue for determination.
Mr Stratton also relied upon the decision of the Court of Criminal Appeal in R v Dodd (extracted above at [48]) in support of his submission that all of the criminality in Count 2 is subsumed into the criminality relied upon in Count 1. He submitted that the primary position of the Crown in relation to Count 1 is that the 15 September 2014 telephone conversation contains within it an agreement to kill one or more persons. He submitted that the accused would not have the relevant guilty mind required for Count 1 unless he had agreed to do what he was asked to do by Mr Baryalei during the conversation.
As for any distinction between planning a terrorist act and agreeing to do a terrorist act, Mr Stratton's submission was that you cannot plan to do something that you have not agreed to do. He submitted that anything falling short of an agreement to kill one or more persons, as suggested to the accused by Mr Baryalei in the telephone conversation, would mean that the accused is not guilty of Count 1. In that way, it was submitted, Count 2 is fully subsumed into Count 1.

The submissions made on behalf of the Crown

The Crown Prosecutor submitted that there is no commonality between the elements of the offence of conspiracy to murder and the offence under s 101.6(1) of the Criminal Code. Although there is a significant commonality in the factual substratum underpinning both offences, they are nonetheless separate offences with different elements. The elements of Count 2, the State offence, do not require proof of a particular motivation for the murder, whereas the elements of Count 1, the Commonwealth offence, do. Count 2 requires the formation of an agreement to murder, not merely a conversation preparing for or planning the murder. Count 2 also requires a genuine intention that such murder be carried out in the future. In this way, it was submitted, there was different criminality covered by the elements of each of the respective offences.
During legal argument on 10 April 2017 the Crown Prosecutor submitted that the Crown's primary case is that an agreement to kill was reached during the telephone conversation. The alternative or "fallback" position was that there was planning of an act without an actual agreement to murder. He conceded that the jury could convict on Count 1 on the basis that it was satisfied that the telephone conversation included in it an agreement to murder. In circumstances where that concession had some significance to the application, I stood this matter over to the following day to allow the Crown Prosecutor the opportunity to reflect upon the current charging further and to obtain the relevant instructions. On 11 April 2017, the Crown Prosecutor informed the Court that his instructions were to continue to oppose the motion. He maintained the concession at that time that the jury could convict on Count 1 on the basis that they accepted that the conversation included an agreement to murder.
The Crown Prosecutor did not accept Mr Stratton's characterisation of Count 1 as requiring the Crown to establish that an actual agreement to murder was formed. He submitted there was a further "subtle" difference between the two offences, in addition to the fact that Count 2 requires proof beyond reasonable doubt of an agreement to kill while Count 1 does not. That difference was said to be the relevant state of mind. There is extra criminality in Count 2 because it requires an actual intention to murder. Count 1 only requires an intention to do an act in planning or preparation for a terrorist act. That is, Count 1 does not require an actual intention that a terrorist act be committed.
The Crown Prosecutor conceded that there was no suggestion that the relevant terrorist act is anything but murder and confirmed that the "act" done in preparation or planning of the terrorist act is the telephone conversation which includes, on the Crown case, an agreement to murder.
The Crown Prosecutor relied upon what was said by the Court of Criminal Appeal in Glover v R at [43]
The Crown Prosecutor did not accept that the only available characterisation of the telephone conversation was as an agreement to conduct a murder or murders. He submitted that a preparedness to accede to Mr Baryalei's requirements is an act in preparation for or planning of a terrorist act, which terrorist act is at an embryonic stage. He submitted that a willingness to discuss the matter further with Mr Baryalei is sufficient. He was not aware of any authority for the proposition that conduct falling short of rejecting the proposition would be an act done in preparation or planning of a terrorist act, but relied upon the principles enunciated in cases such as Lodhi v R [2006] NSWCCA 121 in support of his submission that the Commonwealth legislation is meant to capture conduct that is preparatory in nature.
The Crown Prosecutor accepted that evidence going to all four elements of Count 2 (as set out above at [37]) is to be relied upon in support of Count 1, but did not concede that the only difference between the two counts was whether there was an agreement to kill (Count 2) or something preliminary to such an agreement such as an "agreement to agree" (Count 1).

Consideration

As Johnson J observed in R (Cth) v Milne (No. 1), the test for abuse of process is a "relatively demanding one". It is well established that there is no bar to bringing two or more charges based on the same act or acts. It is thus an insufficient basis for a stay of an indictment as an abuse of process that the offences prosecuted simply have overlapping elements. What the Crown is precluded from doing is expressed in the maxim nemo debet bis vexari pro una et eadem causa ("it is the rule of law that a man shall not be twice vexed for one and the same cause"). As Gummow observed in Pearce v The Queen at [54], this maxim has become known as the rule against double jeopardy in its application to criminal proceedings.
There is an important distinction to be drawn between, on the one hand, an indictment that exposes an accused person to double jeopardy amounting to an abuse of process and, on the other hand, an indictment that may include considerable overlap of elements between counts and is unduly complicated and/or unwieldy, but is otherwise one open to be laid in the proper exercise of prosecutorial discretion
I have had regard to the important principle that the prosecutor has a broad discretion as to the bringing of charges that is not usually justiciable. That this is so was re-affirmed by the High Court in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [34]-[35] and Magaming v The Queen (2013) 302 ALR 461; [2013] HCA 40. In Magaming v The Queen, Gageler J noted (at [68]) the undesirability of close curial involvement in prosecutorial processes and the application of this principle to the question of whether the prosecution should proceed with a particular charge. His Honour went on to observe (footnotes omitted): "The main reason generally given is that the court's review of such an exercise of prosecutorial discretion would compromise the impartiality of the judicial process by involving a court in an inquiry into a forensic choice made by a participant in a controversy actually or potentially before the court. A complementary reason often given is that a court's control over its own hearing and determination of whatever charge might in fact be laid and proceeded with in the exercise of prosecutorial discretion means that "the court has other powers to ensure that a person charged with a crime is fairly dealt with."
It is with this principle firmly in mind that I turn to consider whether the indictment should be temporarily stayed on the basis that the accused is exposed to double jeopardy. I have already considered the relevant authorities above at [46] - [65]. The determination of the accused's motion involves the application of those principles to the particular legal and factual circumstances of this matter. To adopt the language in the decision of the Court of Criminal Appeal in Nahlous v R at [17], the question is whether the agreement to kill one or more persons contemplated by Count 2 is a "separate act of criminality that warrant[s] a separate charge and a separate penalty" from the criminality already covered by the way the Crown brings its case on Count 1.
The elements of the offence contrary to s 101.6 of the Criminal Code and those of the offence contrary to s 26 of the Crimes Act are extracted above at [37] and [39] respectively and were not in dispute for the purposes of this application. The bare elements of each offence are quite different from each other. In relation to Count 1, it is a requirement that the act be done with a particular motivation, being that implicit in a "terrorist act" as defined s 100.1(1). No motivation is required to be proved for Count 2. In relation to Count 2, an agreement to murder is required. No such agreement is strictly required as an element of Count 1. Furthermore, whereas there is no need that a particular terrorist act (in this case, murder) actually be contemplated in order to prove Count 1, Count 2 requires that there be an agreement to kill.
The offence contrary to s 101.6 of the Criminal Code has a maximum penalty of life imprisonment. It carries the same maximum penalty as an offence of actually committing a terrorist act. An offence contrary to s 101.6 covers a broad range of conduct and clearly contemplates a wide variety of "acts" that could be done in preparation or planning for a terrorist act. In this trial, the relevant act done in planning or preparation for a terrorist act upon which the Crown relies in support of Count 1 is the telephone conversation between the accused and Mr Baryalei or a person unknown (in the context of other evidence to be adduced at trial).
In this matter, all of the evidence upon which the Crown relies to establish Count 2 will also be relied upon in order to prove Count 1. The same telephone conversation, supplemented by other circumstantial evidence, forms the basis of both charges. It is a particular feature of this case that the act upon which the Crown relies in respect of both counts is a conversation in which the accused discussed a number of matters.
The Crown conceded during hearing of this pre-trial application that its primary case on Count 1 is that, during the telephone conversation, the accused formed an agreement with Mr Baryalei that at some future time he would arrange for one or more executions. That is, the Crown case on Count 1 is that an agreement to murder was formed during the telephone conversation that constitutes the relevant "act" for the purpose of Count 1. Thus the jury would be invited as part of their consideration of Count 1 to accept a construction of the telephone conversation advanced by the Crown that encompasses all of the elements of Count 2.
The Crown relied upon the difference in criminality between Count 1 and Count 2 as being the fact that, although it asserts that an agreement to kill was formed during the telephone conversation, there is no need for the Crown to establish that an agreement to kill one or more persons was formed in order to prove Count 1. Rather, it was submitted, it is sufficient to prove Count 1 that the jury be satisfied that there was any act in planning or preparation for a terrorist act falling short of an agreement. Mr Stratton, on the other hand, contended that the Crown must prove an actual agreement to kill in relation to both Count 1 and Count 2 and thus Count 2 is subsumed within Count 1.
I have had regard to Mr Stratton's submission that, in order to prove all of the elements of Count 1, the Crown must establish beyond reasonable doubt that the accused agreed with Mr Baryalei to kill one or more persons during the telephone conversation. For the purposes of this application, I am not persuaded that this is so. I am prepared at this stage of the proceedings to accept that, in order to prove Count 1, it is sufficient that there be any act in planning or preparation for a terrorist act falling short of an agreement to commit that act. The principles derived from the decisions to which I have referred above emphasise the broad scope of anticipatory terrorism offences such as this and the way in which criminal conduct can arise well before an agreement has been reached such as would establish a conspiracy charge (see, for example, the comments by Spigelman CJ in Lodhi v R [2006] NSWCCA 121 extracted at [32] above).
Although I accept that the Crown is not required to establish an agreement to kill beyond reasonable doubt to prove Count 1, the jury would nonetheless be invited to have regard to the evidence that establishes Count 2 as part of its consideration of Count 1. As stated above, the Crown is putting alternative cases to the jury on Count 1. Its primary case would invite them to find an agreement to kill as part of Count 1, the alternative case invites them to find something less, being an act in preparation or planning of a terrorist act falling short of an actual agreement.
As with any trial in which the jury is invited to convict an accused on a single count based upon alternative factual bases, if the jury were to convict the accused on Count 1 it would not be possible to poll the jurors to ascertain upon which basis they made such a finding. That is, whether the jury based its verdict on the Crown's primary case or on something less. The basis for such a conviction, beyond the bare elements of the offence, would be unknown. Whether the Crown could establish beyond reasonable doubt that the more serious facts should be accepted would be a matter to be determined on sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
It is significant that Mr Stratton did not suggest that the Crown could not rely upon an agreement to kill as being part of the relevant act for the purposes of Count 1. On the contrary, Mr Stratton submitted that charging the accused with both counts on the indictment exposes him to double jeopardy precisely because each count is, in effect, an allegation that he entered into an agreement to commit murder. On this basis, should the trial proceed on Count 1 only and the accused be convicted, there could be no suggestion of any breach of the principle in De Simoni v The Queen (1981) 147 CLR 383 were the accused to be sentenced on Count 1 on the basis of there being an agreement to kill (assuming the Crown could establish that fact on sentence beyond reasonable doubt). The broad criminality encompassed by an offence contrary to s 101.6 of the Criminal Code and the fact that it carries a maximum penalty of life imprisonment leave no room for the operation of that principle in this matter.
In Pearce v The Queen, the High Court considered the question of double jeopardy by reference to whether all of the elements, rather than the evidence, were common to both counts. In applying the same test in R (Cth) v Milne at [137], Johnson J noted that the focus must be upon: "…the elements of the two offences (and their differences) as well as the factual matters relied upon in evidence which bears upon the proof of those elements."
It seems to me that the language used in Nahlous v R at [17], which expressed the relevant consideration as being whether Count 2 involved any "separate act of criminality that warrant[s] a separate charge and a separate penalty" and whether count 1 "encompasse[s] the criminality" of count 2, is consistent with the principles in Pearce v The Queen as applied to the evidence and alleged criminality in this matter. On the particular facts of this case, I can see no practical difference between comparing the relevant "elements" of each count and comparing the relevant "criminality" of each count for the purposes of determining whether the accused faces double jeopardy.
As the High Court observed in Pearce v The Queen at [13], one of the forces at work in the development of this part of the common law is that prosecutors have sought when framing relevant charges, to "…reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct". This reference to the need for an indictment to reflect all of the relevant criminality is apposite. In circumstances where Count 1 contemplates a very broad range of conduct and carries life imprisonment, I am satisfied that there is no additional criminality captured by Count 2, which carries a lesser maximum penalty in any event. Although I accept the Crown's submission that the actual elements of Count 2 do not need to be separately established for the purposes of Count 1, on the particular facts of this case the distinction is an artificial one.
There is no judicial consideration of s 101.6 in circumstances where the relevant act could, on one view of the Crown case, constitute another offence. As stated above, the "act" or acts contemplated by s 101.6 is broad and will clearly differ from case to case. The offence is drafted broadly enough to encompass an agreement to kill contained in that telephone conversation: R v B (at 553).
Although I have had regard to all of the relevant principles derived from the decisions concerning double jeopardy considered above at [46] - [65], I have not found the application of principle in those decisions to the particular facts and statutory provisions in those decisions of any particular assistance. Each case turns on its own facts and circumstances.
Having regard to the relevant principles and applying them to the particular facts of this case, I am satisfied that Count 1 (which carries life imprisonment) covers such broad conduct that it is capable of encompassing an agreement to kill and thus encompasses the criminality inherent in count 2. I make this finding on the basis that, although the elements of the offences are different, the way in which the Crown brings its case in respect of Count 1 leaves no actual additional criminality to be punished by that count.
The grant of a stay is an "exceptional remedy", yet the Court should not hesitate to grant it should a proper foundation for such relief be made out: per Johnson J in R (Cth) v Milne at [120] (extracted above at [62]). Implicit in my conclusion that the current indictment exposes the accused to double jeopardy is a conclusion that the inherent power of this Court to stay the indictment should be exercised until such time as the Crown elects upon which count it wishes to proceed. Given the way in which the Crown puts its case, it would be unsurprising if the election is made to proceed solely on Count 1, which, as I have found, encompasses all of the criminality of Count 2. That decision is nonetheless obviously one for the Crown.

ORDER

I make an order that the indictment containing Counts 1 and 2 (as defined in this judgment) be stayed until such time as the Commonwealth Director of Public Prosecutions elects upon which of those two counts she wishes to proceed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2019

Criminal Code (Terrorist Organisation - Al Qa'ida in Iraq) Regulation 2013(Cth)

Criminal Code (Terrorist Organisation - Islamic State of Iraq and the Levant) Regulation 2013(Cth)

Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014(Cth)

Criminal Code Act 2005(Cth)

Security Legislation Amendment (Terrorism) Act 2002(Cth)

Criminal Code Amendment (Terrorism) Act 2003(Cth)

Anti-Terrorism Act 2005(Cth)

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