[2013] NSWCCA 91
Gould v R [2021] NSWCCA 92
Lane v R (2018) 265 CLR 196
[2018] HCA 28
Lodhi v R (2006) 199 FLR 303
[2006] NSWCCA 121
R v Pratten [2014] NSWCCA 117
Walsh v R (2002) 131 A Crim R 299
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCCA 91
Gould v R [2021] NSWCCA 92
Lane v R (2018) 265 CLR 196[2018] HCA 28
Lodhi v R (2006) 199 FLR 303[2006] NSWCCA 121
R v Pratten [2014] NSWCCA 117
Walsh v R (2002) 131 A Crim R 299
Judgment (6 paragraphs)
[1]
JUDGMENT
The Crown case against Joshua Lucas is that between about 12 March 2019 and about 14 March 2020, he did an act or acts in preparation for or planning a terrorist act or acts in contravention of s 101.6(1) of the Criminal Code Act (Cth).
In the Indictment provided to the jury on 4 September 2023 during the Crown's opening address, the physical aspect of the terrorist act or acts were particularised to involve: "an action or threat of action directed towards a government or military facility, critical infrastructure building and/or place of worship involving the use of an improvised explosive device and/or firearms".
Particulars of the charge were provided to the accused's legal representatives on 23 August 2023. The particulars document commenced as follows:
"The Crown alleges that the accused engaged in the following acts comprising a course of conduct in furtherance of his planning and preparation for a terrorist act or acts on critical infrastructure, a military facility or a place of worship. The Crown does not allege the acts were done in preparation for, or planning, a specific terrorist act."
This introductory statement is followed by 57 acts arranged under four categories: (1) researching and undertaking reconnaissance of potential terrorist act targets, (2) researching, acquiring components of, assembling and detonating improvised explosive devices, (3) researching, obtaining and experimenting with improvised and simulated firearms and (4) assembling a "Boogaloo" survival kit and obtaining other clothing and materials.
The Crown's opening address was structured consistently with these particulars, including, as specified in the Indictment, that the terrorist act or acts planned or prepared for were done with the intention of advancing a political or ideological cause, namely White Supremacism.
In the context of discussions about the form and content of directions to be provided to the jury given the evidence was complete and closing addresses were soon to begin, counsel for the accused proposed via written submissions on 29 September 2023 that given the Crown case was expressed in the particulars document in terms of a "course of conduct" said to be "in furtherance" of the accused's planning and preparation, the jury must also be satisfied unanimously of the type of target to which the terrorist act (or acts) would be directed, that being one of the identified categories referred to: a government or military facility, a critical infrastructure building or a place of worship.
The direction requested was as follows:
"The Crown alleges that Joshua Lucas engaged in a number of acts comprising a course of conduct in furtherance of his planning and preparation for a terrorist act or acts on critical infrastructure, a military facility or a place of worship. The Crown does not allege the acts were done in preparation for, or planning, a specific terrorist act.
Considering the manner in which the Crown has put its case, there are two additional things that must occur before you can return a verdict of guilty.
First, given that the Crown is alleging that Joshua Lucas has engaged in numerous acts comprising a course of conduct, you must be satisfied that Joshua Lucas engaged in at least two of the alleged acts in furtherance of his planning and preparation for a terrorist act or acts, beyond reasonable doubt, before you can return a verdict of not guilty. Furthermore, you must be unanimous about two of the same acts. That is, all twelve of you must be satisfied, beyond reasonable doubt, about two of the same acts, before you can return a verdict of guilty.
The second thing of which you must be satisfied, beyond reasonable doubt, is that the course of conduct engaged by Joshua Lucas, was in furtherance of his planning and preparation for a terrorist act or acts on critical infrastructure, a military facility or a place of worship. That is, you must be satisfied that when Joshua Lucas was engaged in the course of conduct (two or more acts) as alleged by the Crown, he intended to commit a terrorist act or acts on critical infrastructure, a military facility or a place of worship.
It follows for the Crown to prove a course of conduct engaged in by Joshua Lucas in furtherance of planning and preparation, if you do reach unanimity on at least two acts being in planning or preparation, you must also be unanimous as to at least one type of target those acts are said to further. In other words, you must be unanimous as to at least two acts as planning and preparation and unanimous that such acts shared at least one of the types of targets particularised by the Crown - being critical infrastructure or a military facility or a place of worship." (Italicised part in issue).
The Crown accepted that the course of conduct approach that it had taken necessitated unanimity in respect of at least two identified acts in preparation for or planning a terrorist act or acts, and acknowledged that the categories of target should be confined to those three it had identified in the Indictment, but opposed any direction that included a requirement of unanimity as to the specific category of target.
I ruled that the unanimity direction should be given in the form proposed except for the final paragraph. These are my reasons for making that ruling.
[2]
Relevant statutory provisions
Part 5.3 of the Criminal Code (Cth) deals with "Terrorism" and contained s 101.6 (the offence provision) and definition of a terrorist act in s 100.1.
Section 101.6 provides:
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).
The definition of terrorist act is contained in s 100.1:
"terrorist act" means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); a
(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.
Elements of the definition of terrorist act
(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.
[3]
Accused's submissions
The accused submitted that because the Crown was running what was in effect a course of conduct case, as a matter of logical reasoning the jury must in addition to unanimity about the (at least) two acts, be unanimous as to the particular type of terrorist act that such acts were intended to "further".
Because the phrase "course of conduct" means more than one act, and the phrase "in furtherance of" used in the Crown's particulars document (but not in the Indictment), implied a "necessary relationship between the preceding act and the desired result", the particular target had to be the subject of unanimity otherwise there could be a duplicity or coherence problem.
An example was given that if the acts relied upon by the jury were two instances of taking screenshots of the locations of synagogues and mosques in April 2019 (Acts 3 and 4 in the Particulars document), for those acts to be in furtherance of a terrorist act, the jury must also find that those two acts were related to a terrorist act (or acts) directed to a place of worship.
The argument relied upon the approach discussed in Walsh v R (2002) 131 A Crim R 299; [2002] VSCA 98 ("Walsh") cited with approval in Gould v R [2021] NSWCCA 92 ("Gould") per Bathurst CJ at [9]-[12], R v Pratten [2014] NSWCCA 117 ("Pratten") at [36] and Chapman v R (2013) 232 A Crim R 500; [2013] NSWCCA 91 ("Chapman") at [28]-[29].
In Gould, Bathurst CJ provided this analysis at [9]-[12]:
"[9] The physical element of the offence is the act which is said to constitute the attempt to obstruct, prevent, pervert or defeat the course of justice. The mental element is that the act was carried out with that purpose or intention.
[10] In the present case, four discrete acts, albeit carried out over the same period of time, were said to constitute the physical element. It was accepted that the jury had only to be satisfied that one act was carried out with the requisite intention to constitute the offence.
[11] The case thus is not one where the prosecution advanced two legal formulations of its case, the alternative formulations depending on the same facts. An example of such a case is the decision of this Court in R v Cramp (1999) 110 A Crim R 198; [1999] NSWCCA 324 ("Cramp") where manslaughter was left to the jury on the basis of unlawful and dangerous acts, gross negligence or both. An appeal on the basis that the jury should have been instructed that they had to be unanimous on one or other of those bases was rejected. Justice Barr, with whom Sully and Ireland JJ agreed, distinguished between cases predicated on alternative legal foundations of liability based on the same facts (such as the one before his Honour), and liability based on alternative factual bases (see Cramp at [63]-[66]).
[12] In R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 ("Walsh"), the same distinction was drawn. Justices Phillips and Buchanan made the following remarks at [57]:
"[57] The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts [are] relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud." (Authorities omitted).
As noted by Bathurst CJ, Walsh was cited with approval by the High Court in Lane v R (2018) 265 CLR 196; [2018] HCA 28.
Walsh had also been cited with approval in Pratten at [36] by the Court comprising Meagher JA and Fullerton and Hamill JJ, and in Chapman at [28] and [29] per Adamson J (as her Honour then was) with whom Hoeben CJ at CL and Davies J agreed.
[4]
The Crown's position
The Crown objected to the final paragraph of the proposed direction because it does not follow that the jury must be unanimous about the category of target in circumstances where the offence provision disclaims a need for any specificity at all as to how, when or where any terrorist act was to be carried out, or that the planning or preparation was for any specific terrorist act or acts.
The Crown argued that the analysis of Spigelman CJ in Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121 at [65]-[66] provides emphasis to the statutory context of s 101.6 and the scope and purpose of the legislative scheme:
"[65] Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified "part" of the electricity system.
[66] Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."
[5]
Decision
As noted in Walsh, application will depend on, among other things, the precise nature of the charge and the nature of the prosecution case.
The policy judgment behind the creation of this very particular type of offence is clear and that is to specifically create criminal responsibility for certain conduct at an early stage in order to hopefully prevent acts of terrorism and to seriously punish conduct planned to lead to such acts.
The Crown here has appropriately agreed that given the course of conduct approach it has taken to the charge, an extended unanimity direction should be given to ensure that the jury is unanimous as to the two specific acts that are determined by them to have been, beyond reasonable doubt, acts done in planning or preparation for a terrorist act or acts.
It would be contrary to the text of the offence-creating provision to direct the jury that they must also be unanimous regarding the category of target, in circumstances where the legislation specifically contemplated - and since the Anti-Terrorism Act 2005 (Cth) specifically states - that the planning and preparation need not be for a specific act and can be for more than one terrorist act.
The final paragraph of the proposed extended unanimity direction suggests to the jury that a level of specificity for a future terrorist act must be unanimously found in requiring them to identify a category of target. This would be in direct conflict with what s 101.6 says that the preparation and planning need not entail.
It would be wrong to give such a direction and so the extended unanimity direction will exclude the final paragraph.
[6]
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Decision last updated: 09 November 2023