Regina (C'Wealth) v Baladjam & Ors

(a) it is claimed that the present charge is especially imprecise and amorphous. This emerges from the vagueness of the charge and the uncertainty that flows from charging in one indictment a count involving an agreement to commit multiple acts in preparation where those acts were by quite diverse means. (Mr Lange pointed out that the indictment does not disclose whether the acts in preparation were related to one and only one terrorist act or to more than one terrorist act. He pointed out that the Crown was unable to say whether the terrorist act or acts involve the detonation of an explosive device or devices, or the use of weaponry, or both).

(b) The difficulties that would arise in the sentencing process in the event of a guilty verdict. On what basis, Ms Yehia asked, would the accused be sentenced? Would he be sentenced for committing one act in preparation; several acts in preparation etc?

(c) The third matter was the assertion that the conspiracy trial would add considerably to the length of the proceedings. The volume of evidence would be, according to the defence submission, quite extraordinary whereas this would not be required for proving a substantive offence or offences.

(d) The accused would be at risk of not getting a fair trial. This submission suggested that the risk of injustice would be increased because the individual cases of some of the accused would be buried under the weight of the mass of the material the Crown intends to adduce in relation to establishing the agreement. A related danger would be the possibility that the jury would be less likely to consider the case against each accused individually were the indictment to remain one for conspiracy. There will be a real danger, so it was said, that the jury might approach its task on the basis that each accused is responsible for all the acts and representations of the others.

(Mr Lange focused on the sentencing procedures as well: He submitted that the principal concern the Court would have where an accused is convicted of a substantive offence preparing for a terrorist act is his mental state. Mr Lange submitted that this can be done just as easily, indeed more easily, where a substantive charge is made rather than in a situation where a conspiracy conviction is brought down by the jury).

(e) The voluminous amount of evidence in the proposed conspiracy trial would make it very difficult for the jury to recall issues of credit or reliability whereas this would not be the situation if substantive charges are brought.

(f) The sixth point relates to the difficulty the trial will generate in distinguishing between which evidence will be admissible against each accused. Ms Yehia gave instances of material, which she submitted would not be admissible against her client. Details of this were contained in a schedule within the written submission. It comprised over 103 areas of material referred to in Crown Case Statement. It included conversations, meetings and activities between the other accused not involving her client.

(g) The final matter was the claim that substantive charges would lead to a clearer identification of the issues in dispute and a more focused approach to the facts in issue. Conversely, if the conspiracy charge were to remain, the position would become intolerably complicated. 34 Mr Button SC did not address separately on the argument advanced by Ms Yehia but he did provide the Court with a short list of overt acts which he suggested might be thought to relate to his client and which, accordingly, might form the basis of a substantive charge or charges against his client. Mr Button was at pains to stress that he was not dealing with the issue of the admissibility of evidence relating to such substantive charges. But rather he was concerned to point to the fact that such charges might be brought in lieu of the conspiracy charge. Otherwise, he adhered to the submissions of Ms Yehia and Mr Lange. 35 The Crown took significant issue with the matters urged on behalf of the accused. In particular the Crown argued that the defence submissions were based upon a misunderstanding of the nature of a conspiracy charge and the matters that could properly be proved pursuant to it. For example, the Crown took issue with the proposition that there were 103 matters in the Crown Case Statement, which could not be admitted against Mr Hasan. With the exception of only one of those items, the Crown submitted that all these matters were admissible against Ms Yehia's client to prove the nature of the conspiracy and that the great majority of them were also admissible against him to prove his participation in the conspiracy as they were acts in furtherance of that conspiracy. (Ahearn v Regina (1988) 164 CLR 87; Regina v Tripodi (1961) 104 CLR 1; Masters v R (1992) 26 NSWLR 450). Secondly, the Crown took issue with the proposition that a conspiracy charge was inappropriate in the present circumstances. Indeed, the Crown submitted that the conspiracy charge was the only appropriate charge to be brought, and further, that many of the evils identified by Ms Yehia in her submissions were matters that would necessarily arise, particularly in terms of complexity and the like, were a multiplicity of substantive charges to be brought against each of the accused. The Crown argued that the resulting situation would be a joint trial of massive complexity and length. Thirdly, the Crown alleged that the present charge of conspiracy did not offend the principles established by the High Court in Hoar.

A consideration of some general matters 36 Before coming to a resolution of the issues in relation to the application to dismiss the conspiracy charge, it is desirable that I mention at the outset some general matters. First, the Crown Case Statement is, in general terms, a statement of the evidence it is proposed to adduce in the trial. It is however, very detailed. It is a document that contains some 181 pages of very precise detail. There are approximately 400 paragraphs and over 700 detailed footnotes. I have had the advantage of reading carefully the whole of the Crown Case Statement. In addition I have read and examined carefully the list of the alleged overt acts. I am, of course, conscious that there are already a considerable number of applications to rule certain of the material in the Crown Case Statement inadmissible either generally or against particular accused. I am also aware that there are applications to exclude material from the trial on the basis that it will prove overly prejudicial to one or more of the accused. These various applications have not been argued at this stage and their determination is for the future. For the purposes of the present application, I will in general terms regard the evidence as admissible even though at a later stage some of it may be rejected or excluded. Of course, it will be necessary for me to make some remarks about the range of matters that may be admissible against particular accused. This is because Ms Yehia (and other counsel) have addressed me on the basis that certain evidentiary material may not be admissible against her client. In truth, this argument is not strictly speaking an argument based upon admissibility but rather an argument suggesting possible prejudice if the conspiracy charge remains on foot. My remarks on admissibility should be seen in this generalised context rather than a final decision on the admission or rejection of precise evidence. As I say, that task awaits me. 37 Secondly, I am conscious of the fact that there is some degree of overlap between the present application and the arguments on duplicity. Again, it is necessary for me to divide these various arguments into compartments but I am conscious of the overlap area. I prefer, however, to deal with the conspiracy application on its own merits and to deal with the duplicity arguments on their merits. That is the course the parties have asked me to pursue and it is the course I will follow.

The scope of section 11.5(b) of the Criminal Code 38 Section 11.5(b) confers a discretion upon the Court to determine whether it should or should not dismiss a conspiracy charge. It is in the broadest of terms, being concerned with whether or not dismissal is in the interests of justice. There has as yet been no authoritive guidance on the meaning of the phrase "interest of justice" as employed in s 11.5(6). Section 86(7) of the Crimes Act 1914 (Cth), introduced in 1995, provided power for a court to dismiss a charge of conspiracy if it considered that the interests of justice required this to be done. That section was discussed by Teague J in Victoria in R v Bruce Dowding [2000] VSC 439 at [20] (and following). In that case, the indictment contained a count of conspiracy between three men to defraud the Commonwealth of Income Tax. It also contained substantive charges against one of the conspirators, Mr Dowding, alleging that he had lodged tax returns with intent to defraud by false pretence. In the end, Teague J declined to dismiss the conspiracy charge but made an order for severance of the substantive offence counts. In the course of his Honour's judgment, he made extensive reference to the Hoar principles and to the history of matters underlining the introduction of s 86(7). At para 20, his Honour listed a number of considerations relevant to the exercise of his discretion. These included issues such as the likely complexity of the trial, the presence of evidentiary difficulties and whether the conspiracy count might be said to reflect the criminality involved more appropriately than substantive counts; and whether adverse consequences as to sentencing might result or whether other potentials for injustice to the accused might arise. 39 It is not necessary for me to decide the entire ambit of s 11.5(6) of the Code. It is sufficient to say that considerations such as those mentioned by Teague J, and those relied upon by the accused in the present matter, are appropriate considerations. Indeed, there is a fair area of overlap. Although there were some arguments concerning the refinement of the issues, the Crown did not essentially dispute that the court might properly approach the section with considerations of the kind mentioned by Ms Yehia in her submissions in mind. Nor was it suggested that it was inappropriate to consider the Hoar principles. 40 It was also agreed that considerations relevant to authorities decided before the introduction of the section and its predecessor in 1995 were not now determinative of the issue as to the range of discretionary matters to be considered. These considerations included the width of the prosecutorial discretion to select charges and the issue regarding abuse of process. The present discretion is clearly wider than the considerations concerned with abuse of process.

Resolution of the Issues 41 I have given careful consideration to each of the matters raised by Ms Yehia, Mr Button SC and Mr Lange. Having considered these matters, I have come to the firm conclusion that I should not, in the exercise of my discretion, dismiss the conspiracy charge. I shall give my reasons by reference to the various matters argued before me on behalf of the accused.

Does the present conspiracy charge infringe the Hoar principles? 42 In my opinion, the present charge in the indictment does not offend the Hoar principles. Indeed, I have come to the firm conclusion that the present conspiracy charge is not only appropriate but is, in fact, the only appropriate way to reflect the ambit and structure of the Crown case against the accused. The provision of a substantive charge or charges against each of the accused would not, in my opinion, adequately reflect the nature structure and extent of the evidence to be relied on by the Crown case and would not adequately expose the asserted criminality involved in the conspiracy alleged by the Crown. Nor would it adequately explore the individual level of criminality asserted by the Crown. 43 Let me first examine Hoar's case. The High Court of Australia was there dealing essentially with an issue as to jurisdiction to make a forfeiture order and with an appeal from a sentence imposed as a result of a Crown appeal alleging inadequacy of sentence. The case was unusual, however, in other respects. Mr Hoar, and a friend Jack Noble, were convicted after a trial by jury on a charge of conspiracy between themselves and others to commit an offence against a law of the Northern Territory. The conspiracy of which each of the two men were convicted was conspiracy to fish for barramundi during a prohibited period and at a prohibited place. The High Court had no difficulty in disposing of the forfeiture argument but was troubled on the sentencing appeal by the fact that there were still pending against Mr Hoar a series of charges for summary and substantive offences under the Fisheries Act. These were based on the same transactions as those involved in the conspiracy offence. The Crown had not yet decided whether to proceed with those charges. 44 In the judgment of Gibbs CJ, Mason Aiken and Brennan JJ, there appears the following at 36: - "Indeed the Crown has adopted a course of proceedings which is calculated to cause the maximum amount of prejudice to the defendants and the greatest difficulty to the Courts in determining what is a proper penalty. If the Crown's belief was that it had effective charges for the substantive offence then it should have proceeded with those charges and sought on conviction an order for forfeiture, which the Court would have been authorised to make. If there had been some real basis for doubting that the offence had been committed the Crown may perhaps have been justified in alleging an attempt or a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Verrier , the addition of a charge of conspiracy in the same indictment "will tend to prolong and complicate the trial". There is even less justification for charging conspiracy and the substantive offence separately and for maintaining the prosecution in respect of the substantive offence after securing a conviction for conspiracy." 45 Murphy J was particularly outspoken on the issue. At p 40 Murphy J said:- "I agree with the criticism of the way in which the prosecution has been conducted. The problem arises out of the amorphous nature of conspiracy. The essence of conspiracy is sometimes regarded as the agreement, sometimes as the partnership in crime, which results from the agreement. The vagueness extends to what evidence may be used to establish this slippery concept; it extends also to what should be taken into account on sentencing. The problem is acute where, as here, the Crown charge is not only a conspiracy to commit offences but also the c0mmissiion of those offences. We have a long tradition of resistance to double jeopardy and double punishment. Dangers of these arise when commission of offences and of conspiracy to commit those offences (or offences including those offences) is charged." 46 Murphy J also spoke of the over zealous use of conspiracy charges and to the fact that such use might prove embarrassing and costly not only to the accused but to prosecuting authorities and the courts. He suggested that the administration of justice "would be well served if courts were to keep a tight rein on the spawning of conspiracy charges". 47 As I indicated in outlining the submissions of the parties, I have been referred to a considerable number of other authorities where the Hoar principles were applied. It is clear beyond doubt that these principles had application in considerations underlining the genesis of s 86(7) and hence s 11.5(6) of the Code. In addition, there were also authorities before Hoar where concerns of a like nature had been expressed in relation to the presence of a conspiracy charge in an indictment alongside the substantive offences. There is no need for me to refer to these earlier authorities in this decision. 48 It is necessary to see the Hoar principles in their appropriate context. I agree with the Crown's submissions that they do not support the proposition baldly stated by the defence, that, if substantive changes are available, a conspiracy charge should not be brought. The position is somewhat different than that. I understand the majority decision to be as I have set it out above. It enunciates a general proposition that it is undesirable that conspiracy should be charged "when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed". [my emphasis] 49 As the same paragraph in the majority judgment makes clear, the High Court was critical of the practice of having a charge of conspiracy in the same indictment as the substantive offences. (That was the situation later to be encountered. For example, in R v Moore (1998) 1 Qd. R. 252). The High Court was also particularly critical of the situation where a conspiracy charge is to be followed by a trial for the substantive offences after a conviction for conspiracy has been achieved (that was the situation in Hoar itself). 50 Mr Lange also referred me to the case of Morgan John Ryan (1984) 14 A Crim R at 97. In that case Morgan Ryan had been charged with two other persons of conspiring to effect a lawful purpose by unlawful means. Mr Ryan's appeal related to the admission against him in the trial of a particular telephone conversation. The Court (Street CJ Cantor and Roden JJ) agreed that the telephone call, while admissible as an objective fact within the overall conspiratorial web, was not admissible to support a conclusion, based on its own terms, that the caller was Morgan Ryan. The appeal was allowed. In the course of expressing his agreement with the judgment of the Chief Justice, Roden J made some remarks suggesting that the charging of conspiracy in that case was a matter upon which some observations might be appropriate. He was critical of the fact that the Crown alleged the commission of a considerable number of substantive offences pursuant to the conspiracy and that it placed reliance upon proof of those offences to establish the conspiracy. He referred to the Hoar principles and suggested that the authorities should bear his remarks in mind when deciding how to proceed with any new trial. His Honour's critical remarks were not adopted by the Chief Justice or by Cantor J. They expressed no views, one way or the other, upon the matter raised by Roden J. 51 In my opinion, the Hoar principles should be confined to the propositions I have earlier stated. There have been, and will be, cases where it will be clearly inappropriate to leave a conspiracy charge in an indictment where there is a sufficient and effective charge available to the Crown. This will be particularly the case when substantive offences are charged in the same indictment as the conspiracy; or where subsequent charges are pending and awaiting the outcome of the conspiracy charge. The expression "a sufficient and effective charge" is, of course, a beguilingly simple one. Its application to any given situation will normally require a critical analysis of the proposed Crown case in relation to the conspiracy charge. 52 In any event, it is clear that, despite the attention given to the charge of conspiracy by some judges and by a number of learned authors, the Code recognises the continued existence of a charge of conspiracy to commit an offence. While the Court is now given an express power to dismiss such a charge when the interests of justice require this to be done, the offence remains alive for prosecutorial selection in an appropriate case. The question that arises here is whether this is an appropriate case for the maintenance of a conspiracy charge. 53 An example of the type of case in which a conspiracy charge was appropriate is to be found in the appeal of James William Shepherd (1988) 37 A Crim R 303 at 308-313. The decision of the Court was given by Street CJ with whom Lee and Campbell JJ agreed. Lee J made some additional brief observations of his own in support of the matters relied on by the Chief Justice. The appellant had been convicted and sentenced to 25 years imprisonment for conspiring to import heroin in contravention of a provision of the Customs Act 1901 (Cth). The Crown relied on s 86(1)(a) of the Crimes Act 1914 (Cth) as a basis for charging the conspiracy. One matter that was argued on behalf of the appellant related to the fairness or otherwise of his being charged with a conspiracy rather than with a series of substantive charges. At p 309 the Chief Justice said: - "This was a case in which the Crown set out to establish participation in a wide ranging conspiratorial ring. It is to be contrasted very sharply with a case in which there has been a one-off transaction involving the committing of a substantive offence. In cases of that sort courts have frequently said that where two or more persons are involved in such a substantive transaction, they should be charged with the substantive offence rather than the conspiracy. There is, however, a very significant discretion between a Crown case which involves essentially proof of a substantive offence being brought forward under a charge of conspiracy and a Crown case such as the present in which the allegation was one of a highly active ring operating over a period of time and effecting a number of transactions, all within the same organisational frame work, in which there were a number of offences being committed." 54 At p 310 the Chief Justice added: - "Where the Crown case involves proof of a ring of criminality, whether it be in drug importing or trafficking, whether it be in the stealing and re-cycling of particular assets such as cars, whether it be in social service frauds, or whether it be in some other activity of a criminal nature in which there can be seen to have been established an ongoing organisational framework for general activity, then I see no necessary obligation on the Crown to select particular substantive offences and to proceed to trial on an indictment charging those, rather than one which accords with the reality of the situation, namely, a charge of a conspiracy to set up and operate the organisation." 55 It is not inappropriate to mention the remarks of Lee J at p 312-313: - "There are cases decided in the High Court in which criticism has been made of the use of the charge of conspiracy by the Crown in certain circumstances. Without in any way suggesting that those cases are not binding on this Court, it is appropriate in the present case to make the observation that in circumstances such as those shown in this case it is entirely proper - and indeed in the interests of the community - the charge of conspiracy be preferred. Where, as here, the evidence available to the prosecuting authority reveals that there is a group of persons under the control of one or some who direct the activities of the other for the express purpose of committing breaches of the narcotic laws in this country, it is in the public interest that that organisation be exposed in the court for what it is and a charge of conspiracy is the most effective way of achieving that. It is not often mentioned but it is never to be forgotten that men acting in combination to achieve unlawful ends present a fair greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends. The evidence in the present case discloses a drug ring carrying out forbidden drug importations on a huge scale." 56 See also Ruich v Western Australia [2006] WASCA 241 at 81-82; and at 92; R v El-kotob [2002] 4 VR 456 per Vincent JA at 42. (This passage from Vincent JA was cited with approval by the New South Wales Court of Criminal Appeal in R v Chung [2007] NSWCCA 231 at (51)). 57 The Crown case here is that these nine men were willing participants in a wide-ranging conspiratorial ring. No doubt, some of their individual activities might have exposed them individually to a prosecution for a substantive charge or charges under the terrorism provisions of the Code. Such a charge or charges would not, however, have adequately revealed the wide-ranging, extensive and ongoing nature of the organisation. The reality of the Crown case, as I see it, is that it is only by means of the conspiracy charge that the full range nature and scope of the agreement and the activities engaged in by the group, if the Crown case be accepted, can be revealed. The filing of individual charges against individual members of the organisation simply would fail to reflect and portray the real nature of what was going on. The remarks of Lee J in relation to a narcotics ring have an even greater immediacy and cogency in the case of an extensive organisation set up to undertake a series of activities in preparation for a terrorist attack or attacks which, if implemented, could destroy and damage the lives of countless citizens of this country. 58 I have set out in these reasons a considerable number of the introductory passages of the Crown Case Statement. What I have not done is to reproduce the very significant amount of detail showing the conversations, secret conversations, coded conversations, covert meetings and the like underlying the alleged fulfilment by the individual members of the group philosophy in relation to obtaining the capacity or capability to prepare for a terrorist act or acts. Nor does my brief recitation of the general nature of the Crown case adequately reveal the detailed and significant movements, back and forwards by individual members, as they, according to the Crown case, set out to implement the agreement to bring about a situation where preparation for a terrorist act or acts would be advanced to a stage where realistic consideration could be given by themselves, or others, to the translation of the preparatory activities into a consummated terrorist act or acts. This is, it must be said, an allegation of a lengthy extensive and detailed conspiracy to bring about a situation where serious injury to life and property might, in the future, occur. As I have said, anything short of a conspiratorial charge would not paint the true picture of what was going on over these many months. It would, if the Crown case be accepted, not expose the true criminality of the individuals or the group, nor the far-reaching extent of the conspiracy. 59 Each of the accused who specifically addressed the issue presented the court with a list of overt acts that could, or might be, the subject of a separate substantive count or counts under s 101.6. I will not detail all of these but may I give a few examples: 60 The accused Moustafa Cheikho relied for example, upon overt acts 24, 25 and 31. These may be summarised in that they suggested that the accused had ordered and collected 24 bottles of Hydrogen Peroxide from a Soul Patterson Pharmacy in Menai. (The bottles were later found outside the home of another accused, Khaled Cheikho). A further overt act which might have been the subject of a substantive count was said to be overt act 86. Here, the accused might have been charged, according to the submission, with purchasing two rolls of aluminium insulation tape at the Bunnings Warehouse at Bankstown. On their own, these are possibly innocent enough activities, or, at least, may be thought to be so. 61 Ms Yehia on her client's behalf identified 22 overt acts which might be argued as being directly relative against Mr Hasan. She suggested that one or more of these might provide a sufficient basis for proceeding against Mr Hasan with one count pursuant to s 101.6. Leaving aside for the moment an issue as to whether such a count would of itself be tainted with duplicity, the answer to Mr Yehia's submissions (and those of Mr Button) are that such charges would plainly fail the Hoar test in that they would not constitute a "sufficient and effective charge" reflecting the true nature of the organisation and the activities of those who had agreed to its formation and who played a role in the furtherance of its objects. Such charges would fall well short of revealing the true criminality of the organisation and of each accused's role in the organisation. 62 I would make the same comments in relation to those limited overt acts selected by Mr Lange. These were suggested as being at the forefront of his involvement in the alleged conspiracy, but they do not do justice to the Crown case against Khaled Cheikho. A detailed examination of the Crown Case Statement shows this to be so in the case of all three men 63 One final aspect of the defence submissions related to the proposition that substantive charges would be "sufficient and effective" charges because they would carry a maximum sentence of life imprisonment, as does the present conspiracy charge. It is true of course, (as Spigelman CJ's decision in Chung indicates) that a maximum penalty disparity may be one reason why a substantive charge is not "sufficient and effective". But the mere fact that the maximum penalties are the same does not necessarily mean that a charge or charges based on a substantive offence or offences will be an effective and sufficient charge. This is because it is necessary for the charge to reflect the overall criminality alleged by the Crown. A charge that does not adequately reflect the criminality is neither sufficient nor effective. A number of the overt acts selected by counsel for each accused during argument show why this is so. Those contained in Mr Button's list might be met by such a response. So too would many of the overt acts mentioned in the submissions of Ms Yehia and Mr Lange. The problem is that a substantive offence charge, based on a particular overt act or acts, simply would not reflect the true criminality of the conduct that is alleged in the conspiracy charge. While each charge - conspiracy or substantive - would carry a maximum penalty of life imprisonment, the presentation of the substantive charge would not illuminate, indeed, would not portray the true level of criminality involved in the offence. 64 Ms Yehia suggested, for example, that her client Mr Hasan had no involvement in the procurement or supply of ammunition. Rather his role might be said, if the Crown case be proved , to be one relating to the purchase of chemicals or other liquids to be used in the possible making of an explosive device. It was for this reason Ms Yehia argued that much of the evidence relating to other co-conspirators attempting to acquire ammunition and weaponry would not be admissible against her client. Hence, the prejudice identified in Ms Yehia's written submissions. There are really three answers to this submission. First, the well established principles relating to the co-conspirators rule mean, in general terms, that many of the activities of the co-conspirator would be admissible against Mr Hasan to prove his participation in the conspiracy as they may be properly regarded as acts in furtherance of that conspiracy. Almost all of them would certainly be admissible against Mr Hasan to prove the nature of the conspiracy itself (Ahearn v Regina; Regina v Tripodi; Masters v R). Secondly, the nature of a large-scale criminal conspiracy is that it may often involve significant activity on the part of relatively junior players in the organisation. Persons high up in the organisation, by contrast, may have relatively little to do. It will also involve (or may involve) the allocation of quite separate tasks to individual group members in furtherance of the objects of the conspiracy. (In this regard see the decision of Howie J in R v Bolus & Ors [2003] NSWSC 658). These tasks may change from time to time, as urgency and changing circumstances dictate. But the agreement will remain on foot and the emerging acts of those carrying out new or altered tasks will be admissible against the others. Thirdly, the Crown does not accept that the role of Mr Hasan was confined to sourcing chemicals. The Crown Case Statement shows some connection between Ms Yehia's client and ammunition or weaponry 65 Whether most or all (or for that matter any) of the items of evidence mentioned by Ms Yehia are to be admissible against Mr Hasan may await further decision. But, in general terms, in accordance with the authorities I have mentioned, those matters are capable of being admitted against him to prove the nature of the conspiracy and to prove his participation in the conspiracy on the ground that they are acts in furtherance of the overall conspiracy.

Ms Yehia's seven considerations 66 I turn now to Ms Yehia's seven considerations. First, I do not consider the conspiracy is vague or amorphous. It is precisely enough expressed. The nine accused, it is said, entered into an agreement to obtain the capacity or capability to prepare for a terrorist act or terrorist acts. This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act or acts. In furtherance of the agreement, there were attempts to obtain chemicals and other relevant materials, which could be used in the construction of an explosive device; the obtaining (or attempted obtaining) of weaponry and ammunition; and the collection of large amounts of extremist and instructional material. 67 Section 101.6 of the Code is in, one sense, precise and, in another sense lacking in precision. As Spigelman CJ observed in R v Lodi [2006] NSWSCCA 121; [2006] 199 FLR 303 at 55-66: - "65. Each of the offence sections is directed at 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 way 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 or criminal conduct e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy." 68 Here, of course, the Crown case is that the time had arrived for the making of one type of an agreement between these co-conspirators and that, in this case, the agreement pre-dated any of the steps or attempted steps being taken to equip the conspirators with material necessary to prepare for a terrorist act or acts. The agreement pre-dated the preparatory steps and, pre-dated of course, any further agreement or decisions as to the actual performance of a terrorist act or acts. 69 So, the Crown case is that in many areas, although an agreement had been reached and steps were now being taken pursuant to it, to acquire the capacity or capability to prepare for a terrorist act, a number of the acts taken in furtherance of the conspiracy were thwarted either by accurate surveillance police intervention or caution on the part of the conspirators themselves for fear of being detected. There is, however, no uncertainty in relation to the actions alleged to have been taken by each of the conspirators in furtherance of the conspiracy. The uncertainty remains, as it often will with an offence under s 101.6, in that it is unclear as to whether a specific target or targets had been finally selected for the purposes of carrying out any terrorist attack. No decision had finally been made as to whether there would be one attack; or more than one attack. In my opinion, this does not mean that the conspiracy itself is either amorphous or vague. Indeed, the conspiracy is not only precisely stated in the Crown Case Statement, it is clear and simple. Yes, there is the point made by Mr Lange that it is unclear as to whether one terrorist act was contemplated or more than one; and, it is indeed it may well be that the ultimate target or targets have not been finally selected. But, as I say, the agreement itself is simple enough and easy to perceive and understand. 70 Secondly, I think the Crown is correct in stating that an indictment or indictments containing a large number of substantive offences of preparation for a terrorist act, and their inclusion in the joint trial, would be quite capable of creating a complex and fairly chaotic situation both in terms of the admission of evidence and the directions to be given to the jury. As I apprehend it, the law relating to the matters that may be proved against co-conspirators and admitted against them in a conspiracy trial is relatively clear. But these principles also have an application where a joint criminal enterprise is relied on in relation to substantive offences as opposed to a conspiracy charge. At least, this is clear in general terms although its precise application may pose difficulties from time to time. The directions that would be needed to be given to a jury in a conspiracy case are, no doubt, extensive. But I do not see them as being complicated to the point of making it difficult for the jury to follow. This would be especially so when the court will have the assistance of an experienced Crown team and very experienced lawyers appearing for each of the nine accused. 71 I do not see this as a complex trial, at least not in the way in which that expression is usually used. Of course, it is very detailed and there are a considerable number of facts to be proved in the Crown case. But they are not complex facts and they may readily be appreciated by a jury. It is by no means as complicated as was, for example, the Ronen trial in which I was involved a number of years ago. That was a conspiracy to defraud involving a host of complicated accounting issues. The jury trial took nine months. Despite the length of the trial and the complicated issues, the jury were able to cope with the difficulties. One purpose of the present range of extensive pre-trial applications is to clear the landscape of inadmissible material and of material that should be excluded under, for example, ss 135 and 137 of the Evidence Act. It is to narrow and focus the issues. It is to streamline the jury's task. The detailed preparation for the trial, and the anticipated co-operation of counsel in narrowing factual issues, will assist in making the trial a tolerable one for the jury. I do not pretend that it will be easy for a jury. It will be a long trial, and one that will be complicated by the mass of material to be assimilated. But, I repeat, it is not complicated material; there is simply a great deal of it. 72 I next turn to the issue of sentencing such of the accused as may be convicted. This is obviously a very hypothetical exercise at this stage. I consider, however, that once the overall criminality in the conspiracy is appreciated, it should be possible to accurately perceive and identify the level of association and involvement of any individual conspirator who may be convicted of the charge. The necessary distinctions as to the level of criminality will be able to be made. I have no doubt that, were any of the accused to be convicted, their counsel would be quick and astute to identify relevant points of distinction. I fail to see that there would be any real danger of falling into this error in assessing the penalty to be imposed on any individual convicted of the conspiracy charge. I see no reason why uncharged matters would be taken into account or why the principles of double jeopardy might, in some way, be infringed. The Court would be astute to avoid any such situation. Here, of course, there is only the one charge. There is no suggestion that there will be any later substantive offences charged against these men. 73 Similarly, I do not think that there is any real risk of injustice or unfairness in that the individual case of some of the accused might be buried under the mass of material generally relating to the conspiracy. In proving the existence of the conspiracy, and in proving acts done in furtherance of that conspiracy, the Crown will be entitled to adduce evidence putting into context the activities of each of the accused. I do not accept, that properly instructed, the jury will be led into error in this way. I have already summarised the relevant principles in relation to the admissibility of evidence where a conspiracy is alleged. The existence of those principles answers fully the complaint made by Ms Yehia in relation to the possibility that the jury will misunderstand the basis on which the acts of others might be admitted against individual accused. Once again, there would be sufficient directions given to make this situation perfectly clear. Once again, I would expect very abundant assistance from counsel in relation to the preparation of such directions. 74 One particular matter was touched upon during the argument. It appears that it may have been contemplated at one stage in the Melbourne trial that a conspiracy charge would ultimately be relied on. It appears that Bongiorno J may have expressed a concern about this charge. It seems the ultimate charges were for the commission of substantive offences. I cannot place a great deal of reliance on the brief interchange between Judge and counsel in the Melbourne pre-trial matters. His Honour's brief observations do not enable me to bring to bear the weight of his judicial authority upon the present issue. By that, I mean that it is impossible to know, from the way the matter was handled in Melbourne, what the true situation was. The mere fact that the trial judge was not in favour of a conspiracy charge being brought; and that the Crown ultimately presented an indictment with a substantive offence charged in it, is of itself of no great persuasive value in the present matter. There is an obvious difference between this trial and the Melbourne trial. There, as I understand it, there are pending a series of substantive offences of preparing for a terrorist act against a number of the accused. Those charges will not proceed until after the principal substantive offence has been determined. That situation is to be contrasted with the position here in Sydney where there is but one charge, namely that of conspiracy. Moreover, Bongiorno J did not give a reasoned decision on the matter, nor was he asked to do so. 75 It has been necessary to give this decision as a matter of relative urgency. I am very reluctant to take up time unnecessarily, valuable time, which might otherwise be used in pre-trial applications. As a consequence, this decision, as I have said, has been prepared urgently. I have endeavoured to have regard to all the matters that have been argued before me. In the end, having considered all those matters, I have come to the conclusion that I should not dismiss the conspiracy charge. I am not satisfied that it is in the interest of justice to do so. Indeed, I am satisfied that the conspiracy charge is the proper charge to reflect the criminality alleged in the Crown case. I do not think that the various matters relied upon by counsel for the accused in their written and oral submissions are sufficient, either alone or in combination, to bring about a different result. 76 The application to dismiss the conspiracy charge is refused.

Duplicity 77 I turn now to consider the arguments advanced on behalf of the claim that the indictment is bad for duplicity. 78 As I indicated at the outset, counsel for the accused relied upon the established principles relating to duplicity in indictments. There is no dispute regarding the existence and extent of these principles. They are stated in an abundance of authorities but the following will be sufficient for present purposes: Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77; R v Giam (1999) 104 A Crim R 46. 79 These principles are designed to enable an accused person to know precisely the charge brought against him and to prevent a situation arising where a defendant cannot ascertain on the face of the indictment what the precise offence may be. The principles are often called in aid to prevent unfairness and prejudice. 80 A very clear example is provided in Johnson v Miller. There the defendant was charged with a breach of the licensing laws in circumstances where some 30 persons were observed leaving his licensed premises during prohibited hours. The charge, however, was that only one offence had been committed. The prosecution refused to tell the defendant which of the 30 people was the one intended to be relied upon for the purposes of the prosecution. It was impossible for the defendant to prepare his defence in those circumstances. The position in that case gives a very clear example of the importance of the principles of fair conduct requiring proper particularisation and the need to avoid duplicity. 81 Walsh v Tattersall is a more recent example. Its outcome turned to a large degree, on the construction of the offence creating statute. There an employee was charged under s 120(1)(a) of the Workers' Rehabilitation Compensation Act 1986 (SA) with obtaining by dishonest means "payments or benefits" made under the Act. Section 120(1) of the Act provided: "A person who (a) obtains by dishonest means any payment or other benefit under this Act…is guilty of an offence…" 82 The relevant count related to payments made to the employee between October 1992 and October 1993. A majority of the High Court held that the conviction on the count should be quashed. Gaudron and Gummow JJ did so on the ground that the employee was not charged with any offence created by s 20(1) of the relevant legislation because the section displayed an intention to create a discrete offence upon the receipt of any one payment or benefit. It was held that s 26 of the Acts Interpretation Act 1915 (SA) did not apply to the section. 83 Kirby J, however, preferred to quash the conviction on the grounds that the count was bad for duplicity. It was his view that the purpose of s 120 was to create a separate offence for each payment or benefit. Save for exceptional cases of continuing offences so closely related that they amounted to one activity, separate offences in his Honour's view, should be the subject of separate charges.

Defence arguments 84 Mr Button SC argued, first, that the Code had made a significant alteration to the common law in relation to conspiracy charges. He argued that, on the proper construction of the Code, there is now an offence of conspiring to do "an offence". The common law concept of conspiring to do a number of offences has been, he submitted, eliminated from the Code. Mr Button pointed out that an offender does not escape justice if this construction be accepted. Where the evidence would establish under the common law a conspiracy to commit two offences arising from the one agreement, the offender could still be charged, but there would need to be two separate counts in the indictment in order to capture the criminality. 85 Mr Button's argument was based upon the language of the Code (especially s 1.1, 2.1, 2.2 and the language of s 11.5 itself). Further, Mr Button placed reliance on the fact that Part 2.4 of the Code, which encompassed other extensions of criminal responsibility including attempt, accessorial liability, innocent agency and incitement, were part of a coherent structure into which s 11.5 conspiracies had been placed. The language throughout s 11.5, and indeed, throughout Part 2.4 of the Code, was always in the singular and never in the plural. It spoke of "an offence" not "offences" 86 Mr Button also argued that further support was to be obtained from what might be described as the "mechanism sections" in s 11.5. Mr Button examined in particular s 11.5(1) (penalty), s 11.5(7) (defences, procedures limitations etc) and s 11.5(7)(A) (special liability provisions). Mr Button argued that these mechanism provisions would prove unworkable if a conspiracy charge were to refer to an agreement to carry out more than one criminal offence. 87 Mr Button did not shrink from the anticipated Crown response that his submission involved a substantial change to the common law situation. Senior counsel argued that there were a number of other such significant changes in the Code to common law concepts and that the changes he urged as part of his construction were sensible, and in accordance with current notions of the shortcomings of a conspiracy charge. 88 In the context of the present indictment, Mr Button also argued that s 101.6 of the Code, (the offence - creating provision) was also expressed in the singular whereas the indictment alleged a conspiracy to do multiple acts in preparation for a terrorist act or acts. Once again, anticipating a possible Crown response, Mr Button argued that s 23 of the Acts Interpretation Act 1901 (Cth) could only operate on s 11.5 if there were no contrary intention. He submitted that there was plainly a contrary intention and that the word "offence" in the section should be read in the singular. He gave instances of other cases where an interpretation statute had been sought to be applied to a particular offence but the argument failed. For example, he referred to Walsh v Tattersall and R v Giam. There was also my own decision in R v Lodhi [2005] NSWSC 137 at para 66. 89 The written submissions filed on behalf of the Crown had identified a number of recent cases where a conspiracy for multiple offences had been charged but where in appellate proceedings there was no criticism of this practice. Two of these cases were R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245 and Viera v Regina; Teehan v Regina [2006] NSWCCA 401. In none of the cases, Mr Button argued had the particular point he now made been raised or even contemplated. 90 Mr Button then pursued a second principal argument. This was shared by Mr Buscombe on behalf of his client Baladjam; and by Mr Lange on behalf of his client Khaled Cheikho. This argument was less controversial. It simply asserted that for, one reason or another, the indictment was bad for duplicity because it charged an agreement to do acts in preparation for "a terrorist act or acts". Accordingly, it was argued by all counsel that, at its simplest, the charge contains an allegation of possibly two conspiracies: (a) an agreement to do an act or acts in preparation for a single terrorist act; and (b) an agreement to do an or acts in preparation for more than one terrorist act. 91 Indeed, Mr Buscombe argued that the particulars in the indictment contemplated the existence of possibly five separate agreements. 92 The Crown responded to all these arguments and submitted that there was no duplicity involved.

Resolution of the issues 93 At the outset, I will say something briefly about duplicity and conspiracy. At common law, the gist of the crime of conspiracy, it has been said, lies in the making of the relevant agreement. It is the subject matter and purpose of the agreement which determines whether it is criminally unlawful. (Gerakiteys v The Queen (1984) 153 CLR 317 at 334 per Deane J). To the same effect were the observations of Sir Frederick Jordan in R v Ongley (1940) Volume 57 NSW (WN) at p 7: - "It is convenient in the first instance to advert to so much of the general law of conspiracy as is relevant. The gist of the crime of conspiracy is the agreement of two or more persons to effect a improper purpose. The crime is committed whenever two or more persons agree to do something, which they know to be unlawful or immoral, whether as an end in itself or as a means of securing some object, lawful or unlawful…. A count in conspiracy must comply with the general rule of charging one offence only: R v Molloy 1921 2 KB 364; R v Disney 1933 2 KB 138. Where a count in conspiracy charges, as it should so, only one conspiracy to effect one or more improper purposes, the only issue before the jury under that count is whether all or any of the accused are guilty of the conspiracy alleged. The jury may find that all or any two or more of the accused are guilty of a conspiracy to effect all the improper purposes alleged: Crimes Act 1900 s 393; O'Connell v The Queen , or to effect some only of the improper purposes alleged; but they cannot find some of the accused guilty of a conspiracy to effect only some of the improper purposes and other of the accused guilty only of a conspiracy to effect only other of the improper purposes; because to do so would be to find the existence of two conspiracies under a count which charges one only; and this, the law does not allow." 94 The principles relating to duplicity apply in the conspiracy context, although reported cases confirming duplicity are not common (The Law of Criminal Conspiracy by Peter Gillies 2nd Edition 1990 at p 216). It is important to note that in the reported cases where a charge has been held to be not duplex, either on its own account or read in the light of particulars, the issue has often in fact be identified as one of determining whether the prosecution has failed to prove the conspiracy alleged because it has in fact proved several different conspiracies. The issue in cases of this kind has often been found, as a consequence, not to be one of duplicity but one of proof of the charge alleged (see Gerakiteys v The Queen; Griffiths (1966) 1 QB 589; Mok (1987) 27 A Crim R 438; Saffron v R (1989) 17 NSWLR 395 in the judgment of Hope JA at 421-426); R v Bolus at [24-26]. 95 I turn now to consider the principal argument advanced on behalf of the accused by Mr Button SC. This was to the effect that the Court would find that the Code permits only one offence to be the subject of one count of conspiracy. Mr Button has submitted that the single count currently contained in the indictment under challenge suffers from patent duplicity in two ways ("acts in preparation"; "terrorist act (or acts)"). Mr Button said that, if his argument be right, the appropriate remedy is to quash the current indictment and to adjourn the proceedings until the Crown files a new one. 96 Notwithstanding the forceful submissions put by Mr Button, I have come to the conclusion that his principal argument should not be accepted. I accept, of course, that in s 11.5 there are a number of uses of the singular to describe the offence that is the subject of a conspiracy under the section. I do not accept however, that these references to the singular result in a plain legislative statement that only one offence is to be the subject of a conspiracy charge. Mr Button has argued that, had it been the intention of Parliament to the contrary, it would have been very easy to inset the words "or offences" in the Code provision. Mr Lange, in his submissions, had pointed out that when the Criminal Law Act 1977 in the United Kingdom was enacted, the language chosen expressly contemplated a conspiracy which, if carried out in accordance with the intentions of the conspirators, would necessarily amount to or involve the commission of "any offence or offences" by one or more of the parties to the agreement. The agreeing party would be guilty of conspiracy to commit the "offence or offences" in question. I do not however, consider that the language of the enactment in the United Kingdom, assuming the legislature in Australia were aware of it, would be of any particular value in the present task. 97 My reason for rejecting the suggested construction is essentially based on three matters. First, Mr Button's argument is not aided by the consistency of the language used as revealed by the history of the legislation, at least as it has developed since about 1960. Secondly, there is the fact that during this period of time, and indeed earlier, it has been common and accepted practice to include in an indictment one count for a conspiracy alleging the doing of multiple unlawful acts. Thirdly, there is a recent decision of the New South Wales Court of Criminal Appeal (Ansari v R [2007] NSWCCA 204), which bears upon the issue. 98 I will briefly set out the legislative history. Section 86 of the Crimes Act 1914 stated: - "86(1) A person who conspires with another person - (a) to commit an offence against a law of the Commonwealth…..Penalty: Imprisonment for thee years (2) notwithstanding the penalty set out at the foot of the last preceding sub-section, (a) where the offender conspired with another person to commit an offence against the law of the Commonwealth that is punishable by death - the court before which the offender is convicted may impose a penalty of imprisonment for life or such lesser penalty it thinks fit; and (b) where the offender conspired with another person to commit an offence against a law of the Commonwealth that is punishable by imprisonment for a greater period than three years - the offender is punishable as if he had committed that offence". 99 In 1984 there were a number of amendments introduced by the Statute Law (Miscellaneous) Provisions Act (No 2) 1984 (Cth). Other amendments followed in 1987. However, in 1996, s 86 was repealed and a new section was substituted pursuant to the Crimes Amendment Act 1995 (Cth). I shall set it out in full because to do so makes plain that the language adopted in the pre-Code s 86 was markedly the same as the language appearing in the provisions of the Code which came into force on 1 January 1997. The new s 86 was in the following terms: "(1) A person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment for more than 12months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) Despite subsection (1), if the person conspires with another person to commit an offence against section 29D of this Act, the conspiracy is punishable by a fine not exceeding 2,000 penalty units, or imprisonment for a period not exceeding 20 years, or both. Note: Penalty units are defined in section 4AA.

(3) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(4) A person may be found guilty of conspiracy to commit an offence even if: (a) committing the offence is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is at least one of the following: (i) a person who is not criminally responsible; (ii) a person for whose benefit or protection the offence exists; or (d) subject to paragraph (5) (a), all other parties to the agreement have been acquitted of the conspiracy.

(5) A person cannot be found guilty of conspiracy to commit an offence if: (a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) he or she is a person for whose benefit or protection the offence exists.

(6) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence.

(7) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.

(8) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(9) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.

(10) In any law of the Commonwealth: (a) a reference to paragraph 86 (1) (a) of this Act is taken to be a reference to subsection (1) of this section; and (b) a reference to the application of subsection (1) of this section because of or by virtue of paragraph 86 (1) (a) of this Act is taken to be a reference to subsection (1) of this Section; and (c) a reference to section 86A of this Act is taken to be a reference to subsection (2) of this section. 100 The comparison of the language of s 86 and s 11.5 of Code shows that much of the language relied upon for the suggested construction of s 11.5 is in fact the language of the earlier enactment. Moreover, the language of the earlier s 86 had referred to an offence in the singular. The presence of the singular in s 11.5 of the Code does not, as a consequence, of itself do the work attributed to it by senior counsel. 101 I accept, as Mr Button has argued, that the Code is in fact a codification of offences against the laws of the Commonwealth. That is clear from the nature of the Code and the language of s 1.1. It is also clear from the stated purpose of the codification appearing in s 2.1. Consequently, I accept that the common law does not apply to the Code. But for reasons I shall refer to, it was the intention of the MCCOC Report that, in relation to the charge of conspiracy, the common law should be replicated but with limitations and modifications. The Code, I believe, carries out and reflects that intention. The limitations, however, did not include the matter argued for on behalf of the accused. 102 Before coming to recent authority in relation to s 11.5, I should make it clear that I regard it as a matter of some importance that, for many years, the common law has permitted the presentation of an indictment alleging one conspiracy involving the commission of a number of unlawful acts. There is no need for me to set out a digest, as it were, of cases where this has occurred. It may be sufficient if I quote from Mr Gillies' book at p 216: "A count in an indictment…charging two (or more) offences is bad for duplicity…as such any convictions on it will be bad. The rule applies of course in the conspiracy context. It must be noted at the outset, however, that the rule operates to forbid alleging a plurality of conspiracies in the one count, not the allegation of one conspiracy involving the commission of a number of unlawful acts. A given conspiracy may embrace a number of discrete crimes (or other unlawful objects), because it is an agreement, and agreement can of course comprehend a multiplicity of terms. Thus, notwithstanding its character, a multiple object conspiracy may be indicated in the one count, for it represents in itself a single unified offence".

(I have already referred to a number of these cases but others are mentioned in the footnote to this last paragraph). 103 It is not a complete answer to the above proposition to simply say that it has no consequence for the present discussion, as Mr Button argued. Counsel had made this point because the Gillies text was written in 1990 (or at least republished in that year) whereas s 11(5) of the Code was introduced in 1997. 104 It seems to me that the Legislature must be taken to have known of the common law position both when s 86 was enacted in 1995 and later when s 11.5 of the Code was drafted. Indeed, while it is clear that s 11.5 of the Code sought to introduce limitations to the common law, it would have been quite a simple matter for the Legislature to introduce the singular offence limitation to a conspiracy charge, had it wished to do so, by stating that additional limitation at the time. It did not do so, nor did the MCCOC Report suggest that such a change or limitation should be introduced. 105 In making this statement about Legislative intent, I am conscious of the remarks of Spigelman CJ in Regina v JS [2007] NSWCCA 272 at paras 142-145. I have endeavoured, as a consequence, to move with caution in the area of statutory intention; and consequently to examine with care the language of the Code. 106 The third point is the one I now turn to consider. The issue of the general intention of MCCOC and the intention of the Legislature in relation to the offence of conspiracy under the Code, has been touched upon significantly in a recent decision of the New South Wales Court of Criminal Appeal in Ansari v R. In that case, the Court comprised Simpson, Howie and Hislop JJ. The appellants had been charged with two counts of conspiracy to deal with money where they were reckless as to the fact that the money would become an instrument of crime. The appellants were convicted on each count although the jury was unable to agree regarding a third person charged. They were sentenced to imprisonment and appealed. In part, the appeal dealt with a argument that the appellants had been convicted of an offence not otherwise known to the law. The appellants argued that it was not possible under the Code to charge a conspiracy to commit an offence that has recklessness as one of its fault elements. 107 At the outset, both Simpson and Howie JJ, in separate judgments, (with the latter of whom Hislop J agreed), approved a concise summary describing the structure and approach of the Code that had been earlier stated by Bell J in R v Saengsai-Or [2004] NSWCCA 108; [2004] 61 NSWLR 135. Howie J's judgment sets out this extract (at para 50). His Honour's own analysis of the legislation appears between paras 49 to 67; and between paras 77 and 89. For present purposes it is appropriate to refer firstly to para 63. There his Honour states: - "In my opinion there is only one physical element in the offence as stated in s 11.5(1). The physical element is encompassed in the words "conspires to commit an offence". It is impossible to comprehend two people forming an agreement unless the subject matter of the agreement is known…the subject matter of the prohibited agreement under 11.5(1) is an intention to commit an offence of the kind described in the section. Therefore, s 11.5(1) contains a single physical element of conduct being to enter into the prescribed agreement. There is no fault element stated in s 11.5(1) therefore, applying s 5.6(1), the default fault element for a physical element of conduct is intention. Applying the definition of "intention" in s 5.2(1) of the Code , the person must mean to enter into such an agreement". 108 Then at para 66 his Honour states: - "Thus the offence of conspiracy under the Code is similar to that at common law. Both under the Code and at common law two or more persons must mean to enter into an agreement that an offence would be committed by themselves or some other person. The differences between the Code offence and the offence at common law are that, firstly, under the Code it is not an offence to enter into an agreement to commit a lawful act by unlawful means and, secondly, it is not an offence under the Code to agree to commit a crime for which the maximum penalty is less than that stated in the section. It should also be noted that under that under the Code it is not sufficient to support a conviction of a conspiracy offence that there has only been an agreement entered into by the parties: there must also be an overt act committed by at least one person towards the achievement of the object of the agreement". 109 This paragraph is an important passage in his Honour's analysis. It makes it clear that his Honour's view was that the Code applied the common law to the Code conspiracy charge but limited its application in certain precise ways. 110 Mr Button properly conceded that this passage is contrary to the arguments he advanced. He suggested however, that the passage was obiter. Somewhat conversely, the defendants had themselves placed reliance upon remarks in Howie J's decision, in particular the passages at paras 77 and following. But I think that the thrust and ambit of his Honour's remarks at 77 need to be understood in the light of what he had earlier said at para 66. At para 77 his Honour said: - "So far I have been referring to the common law position, but it seems to me that it should be taken to be the position under the Code . This is because it is obvious that it was the intention of MCCOC and the Legislature, which adopted its recommendations, that the offence of conspiracy under the Code was to have a more limited application than the offence at common law yet was otherwise to reflect the position at common law so far as the mental element of the offence was concerned". 111 A reading of the entirety of his Honour's remarks makes it clear to me that his Honour's analysis does indeed suggest that the common law has been replicated in the Code, but with the limitations his Honour precisely identified. It is also true, as Mr Button argued that his Honour was not dealing with a conspiracy charge involving multiple offences. Rather, in the appeals under consideration, there was an indictment containing two counts, each alleging an agreement involving the commission of one offence. This distinction, while it is undoubtedly correct, does not seem to me to detract from the integrity of Howie J's analysis or the value that should be attached to it for the purpose of this present decision. 112 There were, as I indicated earlier, a number of other arguments advanced on behalf of the accused in relation to this first principal submission. It was said that s 11.5(1) (in its penalty aspect), ss 11.7 and 11.7(A) would prove unworkable if a conspiracy charge related to an agreement for the commission of more than one offence. I do not agree with this submission. Generally, where a conspiracy charge relates to a single agreement to carry out actions involving more than one offence, the offences are of the same or similar character. That generally flows from the nature of the agreement - an agreement to supply heroin, for example, or to grow cannabis; or to defraud. If this were not the situation, and the indictment were to raise problems of the kind addressed in argument, the fairness of the trial proceeding on that basis could be evaluated by the trial judge. Indeed, the court, confronted with such a situation, could, if it were appropriate, dismiss the conspiracy charge under s 11.6 of the Code. The real response to the argument, however, is that it does not carry much weight, if any at all, in terms of the proper construction of s 11.5 of the Code. So too with the argument based on the provisions of Part 2.4 of the Code. 113 Although the following observation has little or nothing to do with the construction argument, it might be observed that none of the "unworkable" propositions have any actual bearing on the present conspiracy charge. While the singular agreement charge relates to the carrying out of activities involving more than one offence, they are the same offence (s 101.6 of the Code); they carry the same penalty; there are no defences or limitations applicable to one and not to the other or others; there are no strict liability provisions. 114 Another argument raised related to the s 23 of the Acts Interpretation Act 1901 (Cth). It is plain that s 23 of the legislation applies to the Code and to its various provisions "unless the contrary intention appears". So far as s 11.5 is concerned, I see no reason why s 23 would not have application to it; and, for the reasons I have already mentioned, I am not satisfied that there is a contrary intention expressed in the section under consideration. I accept that there have been recent cases where the courts have refrained from imputing plurality into singular offence section. But each statute must be examined as its own language and the context of that language. I do not accept that this interpretation of the section would destroy the coherence between 11.5 and other provisions of Part 2.4. 115 One of the authorities to which I have referred was my decision in Regina v Lodhi [2005] NSWSC 1377; [2005] 199 FLR 236. In that case I was confronted with an indictment where a duplicity argument arose. The indictment contained four separate charges each alleging one offence against the provisions of the Code dealing with terrorism offences, being those contained in Part 5.3 of the Code. 116 I was not persuaded in that case, that a secondary argument advanced on behalf of the Crown should be accepted. I thought the argument was inconsistent with the principal Crown argument; and further, I considered that a contrary attention appeared so as to deny the extension contemplated by s 23 of the Acts Interpretation Act (Cth). The decision has little or no bearing on the present matter. In addition s 101.6(2)(c) had not been enacted at the time. Its presence may have led to a different conclusion. 117 I do not consider that there is any doubt about the general applicability of the Acts Interpretation Act (Cth) to the Code, nor was it suggested that it did not have application. Moreover, I do not consider that the offence creating sections in 101.5 and 101.6 of the Code have any real bearing on the construction of s 11.5 of the Code. 118 One extensive area of the written submissions addressed the proposition that it may be legitimate, depending on the circumstances, to charge in a single count one activity, even though that activity may involve more than one act and notwithstanding that each such act would itself constitute an offence. This proposition was approved in DPP v Merriman (1973) AC 584 at 593. 119 The proposition has been adopted in New South Wales in particular cases. In Hamzy (1994) 74 A Crim R 341 Hunt CJ at CL (with whom Abadee and Simpson JJ agreed) said that where the Crown seeks to establish a particular activity or enterprise, it may rely upon every act which it intends to prove, although it does not have to establish every such act in order to succeed. The Crown would be obliged, in such a case, to provide particulars to enable the accused to know the case, which he has to meet and to enable the trial judge to deal with objections and directions. (See also R v Locchi (1991) 22 NSWLR 309 per Samuels JA with whom Enderby and Loveday JJ agreed); R v Moussad (1999) NSWCCA 337; 152 FLR 373 per Smart AJ with whom Wood CJ at CL and Bell J agreed; see also, more recently R v Petrouliaus (No 34) [2007] NSWSC 1462 at para 23 to 27. 120 The written submissions originally prepared by Mr Button SC and Mr Nash examined this proposition in the light of authorities where the analysis revealed that the particular offence creating section required that the indictment should allege the commission of one offence only; or where several counts charging one offence only were required. Such a case was Walsh v Tattersall, mentioned earlier. There were others as well but there is no need for me to consider these further. This is because senior counsel ultimately accepted that a single conspiracy charge could allege an agreement to commit more than one offence pursuant to the agreement. 121 As a consequence, it is not necessary for me to consider s 101.6 and whether it would be possible, without infringing unfairness or duplicity principles, to charge a course of conduct in a single charge in the indictment where reliance was to be placed upon a number of acts, each of which would itself constitute an offence against s 101.6. There are clearly arguments both ways. This must remain a matter for resolution in the future. 122 The final matter I have considered on this aspect is the issue of fairness. It is often the case that duplicity arguments really involve an analysis of whether some actual or anticipated unfairness arises out of the form of the indictment. In this matter, I am perfectly satisfied that there is no such unfairness. I am conscious of the fact that there may be some outstanding issues about particulars but I am sure that they will be resolved satisfactorily. Subject only to that matter, I think that the accused well know the nature of the case that is to be made against them. There is no warrant for any suggestion that the charge is, either on its face or otherwise, misleading or unfair. 123 For these reasons, I consider that the first principal argument advanced on behalf of the accused must fail. 124 The second principal argument is primarily concerned with the expression appearing in the indictment "to do acts in preparation for a terrorist act (or acts)". 125 There appear to me to be two arguments advanced on behalf of the defence in this submission, although they are closely aligned. It may be helpful if I recite part of the written submissions filed by Mr Buscombe on behalf the accused Baladjam: - "20. There is clearly a difference between entering into an agreement to do an act or acts in preparation for a single terrorist act and entering into an agreement to do an act or acts in preparation in preparation for more than one terrorist act. Those two agreements are not the same. In terms of the fourth element of the offence under s 11.5(1) of the Criminal Code, the intention required to enter into the two agreements is clearly different. A person may well have an intention to join an agreement to do an act or acts in preparation for a single terrorist act such as to destroy a particular building, yet no have an intention to join an agreement to do an act or acts in preparation of multiple terrorist acts, being the destruction of a number buildings. The two agreements are distinct and require a distinct intention, and give rise to different offences. The count on the indictment purports to allege two distinct agreements. To that degree, it is patently duplicitous. The particulars of the terrorist act or acts provided in the indictment exacerbate the degree of duplicity that the indictment contains. It appears that the indictment as particularised encompasses at least the following agreements: An agreement to do an act or acts in preparation for a single terrorist act involving the detonation of, or the threats of a detonation of, an explosive device or; An agreement to do an act or acts in preparation for more than one terrorist act involving the detonation of, or threat of the detonation of, an explosive device or; An agreement to do an act or acts in preparation for a terrorist act that involves the use of, or threat of, the use of weaponry or; An agreement to do an act or acts in preparation for more than one terrorist act which involves the use of weaponry or: An agreement to do an act or acts in preparation for a single terrorist act which involves the use of, or threat of, the use of, weaponry and the detonation of an explosive device." 126 Mr Button's written submissions concluded as follows: - "In short, as the indictment stands, there are potentially two conspiracies alleged: one to do preparatory acts for a terrorist act, the other to do preparatory acts for terrorist acts. That state of affairs is not in accordance with the principles enunciated in the case law". 127 Mr Button referred, in the course of his submissions, to the remarks of Jordan CJ in R v Ongley at p 117 where the Chief Justice referred to the problems that could arise for a jury where there were in fact more than one agreement alleged in an indictment. 128 I think that the simple answer to all these submissions is that the indictment in the present matter charges but one single agreement. In that regard, it is not patently duplicitous. Secondly, when one has regard to the particulars supplied and the Crown Case Statement, the situation is precisely the same. It is not latently duplicitous. The Crown relies on but one agreement and the charge is, as a consequence, not patently duplicitous. 129 It is true that the agreement charged is one to do a number of acts, which may constitute a number of offences. As I apprehend it, that does not make the single count in the indictment duplicitous. This is commonly done and has been accepted by the courts over a long period of time. For the reasons stated in the previous part of this decision, the Code does not require that a conspiracy charge be limited to an agreement to commit one offence only. 130 In relation to the expression "a terrorist act or acts" I must say that my initial reaction was that I was unsure as to why the Crown wished to express the charge in these terms. I questioned whether it was necessary, having regard to the Crown case, to express the indictment in this way. In Lodhi, I had politely suggested to the Crown that this expression be altered. The suggestion was made not to express any concluded opinion, but to avoid an unnecessary controversy, having regard to the state of the legislation at that time and the nature of the Crown case in that trial. 131 But, on reflection, it seems to me that the expression is not, in any event, duplicitous in the context of the present indictment. There are two reasons for this. The first emerges from the discussions both by myself and later by the Court of Criminal Appeal in the various Lodhi decisions. Those decisions make it clear that an act done in preparation for a terrorist act as I mentioned earlier, may occur in situations where the precise nature of the terrorist act may be uncertain. For example, Mr Lodhi had been charged in count 4 of the indictment with an offence contrary to s 101.4 of the Code. The charge was as follows: - "On or about the 26 October 2003 at Sydney in the State of New South Wales, possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incensory devices and concerning "intelligence" which was connected with preparation for a terrorist act, knowing the said connection". 132 The particulars of the terrorist act were cast in the alternative, that is, "involved in the detonation of an explosive or incensory device or devices or the use of a poison or poisons". 133 The Court of Criminal Appeal examined the elements of the substantive offences with which the appellant had been charged. The Court concluded that in each count only one act was alleged being the physical element of conduct. For example, in count 4, it was the act of "possessing" the document. The additional words "connected with preparation" was a circumstance. In count 2, the physical element was "doing an act". The Court concluded that, as the offences were intended to apply before a decision had been made precisely what was intended to be done, there was no duplicity in identifying a range of matters that may constitute a relevant circumstance (R v Lodhi [2006] NSWCCA 121 at 69-70). Further, it held that the scope and nature of the legislative scheme demonstrated that the legislative intent was to create a single offence with one or more of the specified characteristics. 134 Here the position is somewhat different. I am here considering a conspiracy charge concerned with the commission of offences against s 101.6. The count alleges a single agreement "to do acts in preparation for a terrorist act or acts". 135 The Crown case is that the agreement was one to obtain the capacity or capability to prepare for a terrorist act or acts. This involved the conspirators equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act or acts. 136 Although it will not always be the case, an agreement of this kind commonly will mean that neither the conspirators themselves, nor anyone else, will have finally determined the precise nature of the terrorist act to be implemented. It may not fall to the parties to the agreement to do so. Because this is so, there may be the real possibility that there will be more than one terrorist act ultimately carried out, even though that decision has yet been made. Indeed, s 101.6(2)(c), which I have set out earlier, contemplates that a single act of preparation may be an act done in preparation for more than one terrorist act. It must follow that a single agreement to do a number of acts might contemplate acts done in preparation for more than one terrorist act. That this is so will not transfer one agreement into more than one. 137 Secondly, there are many cases in which a conspiracy having been formed, there are changes and alterations occurring during the life of the conspiracy. I have referred to a number of cases of that kind earlier in this decision. It is clear that a conspiracy, once formed, is capable of remaining a single offence notwithstanding that during its currency, a number of identifiable and separate acts within its general purpose may come to be carried into effect. (For example, Mylonas (1985) 20 A Crim R at 214; and Saffron v R (supra) where several nightclub businesses were acquired during the period of the conspiracy, the purchase of which had not been precisely contemplated at the time the agreement commenced). 138 This raises, perhaps, a different question. But it provides a framework for understanding that, in the present matter, there is but one agreement. The agreement contemplates that a range of activities will be undertaken by the conspirators to obtain the capacity or capability to prepare for a terrorist act or acts, even though no precise terrorist act or acts has, or have been determined. The physical and fault elements required for a charge of conspiracy under the Code are the single physical element of conduct to enter into the proscribed agreement; and the fault element, being the intention to enter into the agreement. In addition, a person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and the person and at least one other party to the agreement must have committed an overt act pursuant to the agreement. (Section 11.5(2)(b) and (c). See Howie J in Ansari at paras 63 to 66; and Simpson J, in the same case, at 32 where her Honour referred to the intention mentioned in 11.5(2)(b) as being a different intention from the fault element intention necessary to support the physical element. 139 The point I am addressing here is Mr Buscombe's submission that the expression "preparation for a terrorist act or acts" connotes two agreements. I do not think this is right. Moreover, Mr Buscombe alleged that the fault element "intention" in s 11.5(1) might be different intention in the case of an agreement to do an act in preparation for the destruction of a particular building, whereas a different intention would be required to do an act or acts in preparation for the destruction of a number of buildings. On the indictment charged here, the Crown must prove as a physical element and, as a fault element, an intention to enter into the specified agreement. There will however, be but one agreement and one intention. In addition, there will be a need to prove a further intention, namely an intention to commit the offences represented by the offences contemplated by the agreement itself. This "ulterior intention" is also but one intention: it is not more than one. The Crown must prove that it was the intention of the conspirators to obtain the capacity or capability to prepare for a terrorist act or acts. This "ulterior intention" is the subject matter of the offence or offences described in s11.5. 140 The fact that no decision has been made as to the precise nature of the terrorist act or acts to be carried out; the fact that no target or targets have been finally selected, and that no final decision has been made as to who will carry out the terrorist act or acts does not, in my view, render the charge in the indictment duplicitous.

An Offence unknown to the law 141 Mr Lange made the submissions in relation to this third point. It may be convenient if I set out the final form of further submission, which Mr Lange sent to me on 10 March 2008. "When interpreting s 101.6 of the Criminal Code , it must be borne in mind that the section is phrased broadly, and does not impose any limitations based upon the proximity between the preliminary act and the ultimate terrorist act. Thus, by agreeing to do an act in preparation for a terrorist act, the persons, who are part of that agreement, are themselves engaged in a preliminary act, punishable pursuant to s 101.6. Put succinctly, to conspire is to do an act in preparation. … Thus, the offence charged falls squarely within the ratio of R v Chow (1987) 11 NSWLR 561, in which the Court of Criminal Appeal held that it would be an absurdity to permit an indictment charging a person with conspiring to agree. Here, the charge is effectively one of engaging in an act in preparation for a terrorist act, the particulars of the preliminary act being the agreement to engaged in an act in preparation for a terrorist act. This, too, is plainly absurd. The offence is already is defined statutorily, and should therefore be pleaded without resort to the offence of conspiracy". 142 The consequence of the submission, if accepted, is that Mr Lange's client has been charged with an offence, which is unknown to the law. 143 There were a number of planks to Mr Lange's submission. These are set out in his earlier written submission and in the oral submissions he made to the Court on 5 March 2008. These "planks" as I have called them, are, upon analysis, in my view of unsound structure. 144 The first plank in Mr Lange's argument emerged from an examination of the difference in language between ss 101.1, 101.4 and 101.5 of the Code when compared to the language used in 101.6. It is convenient to mention s 101.1 as well. This section makes provision for an offence where a person engages in a terrorist act. It carries with it a penalty of imprisonment for life. Clearly enough, there is an absolutely direct connection between the act of the person charged and the terrorist act. He or she must "engage" in it. By way of contrast, ss 101.4 and 101.5 create offences where either possession of material or preparation of a document is "connected with" preparation for a terrorist act. Again, by way of further contrast, s 101.6 provides that a person commits an offence if the person does any act in preparation for, or planning, a terrorist act. The penalty once again for this offence is imprisonment for life whereas in the two sub-sections immediately preceding there is a lesser maximum penalty. 145 Mr Lange went on to argue that, as a consequence of these distinctions in the statutory language, it may be asserted that the person doing the preliminary act ("any act in preparation for") a terrorist act must hold the intention to do the terrorist act. Although, Mr Lange conceded that the terrorist act may not have been clearly defined in the person's mind, it was nevertheless necessary, he argued, that the offender must be a person who intends to commit the terrorist act. 146 The problem with this argument is that it is contrary to both the Code itself and decided authority. In Lodhi v R [2006] NSWCCA 121 at pars 89 and 90, Spigelman CJ said at para 90: "The reference to "intention" in each of paras (b) and (c) of the definition of "terrorist act" are not fault elements of the offence. Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being "a circumstance" within s 4.1(1)(c) of the Criminal Code . Accordingly, it is not, in my opinion, an essential element of the offence that an accused charged with doing any one of the acts identified in s 101.4, s 101.5 or s 101.6 must himself or herself had the intention that the act advances a particular cause or is done with the requisite purpose of coercion or intimidation. Nevertheless, as an essential physical element, each of paras (b) and (c) should be pleaded, but no particularity is required as to the person who had the relevant "intention". Of course, if the Crown was to assert that it was the applicant who had the intention it could plead or particularise that aspect of the case". 147 In addition, at para 91 the Chief Justice noted that the relevant fault element, in the case of s 106.1, is "recklessness" by force of s 5.6(2) of the Code. His Honour thought that the indictment when repleaded, should plead "recklessness for this charge". Indeed, in Lodhi when the indictment was re-drawn, it contained that fault element for the offence under s 101.6. 148 In Lodhi, Sully J agreed with both the Chief Justice and the Chief Judge (para 111). Although McClellan CJ at CL published some separate remarks concerning whether the indictment had failed to state the essential elements, I do not take his Honour to have disagreed with the propositions I have stated in the Chief Justice's judgment. 149 In my view, it is clear that it is not an element in s 101.6 that the person alleged to have done the preparatory act is the person who will carry out the terrorist act. The position is quite to the contrary. Of course, in a particular case the Crown may allege that the person carrying out the preparatory act does intend to commit the terrorist act but that will be a matter that simply arises on the facts of a particular case. 150 The next plank of the argument relates to the requirement that in a conspiracy charge under the Code at least two persons must have intended that an offence will be committed pursuant to the agreement. Mr Lange argued, however, that an extension of this was that it must be one of the conspirators who will engage in the objects of the conspiracy. This too, in my opinion, involves a misconception and is not consistent with authority. In Ansari at para 9 Simpson J made it clear that it is not necessary that the physical acts that make up the offence are intended to be or will be committed by any particular person. Simpson J said: - "In particular, it is not necessary that they are intended to be, or will be, committed by any of the conspirators. Two people may, for example, agree to arrange the importation of prohibited drugs by using an unwitting agent who is wholly unaware that he is carrying the drugs…what is essential to the offence of conspiracy is an agreement, and an intention, that an offence (punishable as set out in s-sub 1) will be committed". 151 These remarks dispose of the proposition that the Code requires that the objects of the conspiracy be carried out by the conspirators. Of course, in a particular case they may well be. But that it not to the point. 152 The third plank of Mr Lange's argument related to the reasons underlying the penalty differences between the various offences in the terrorism section of the Code. However, contrary to Mr Lange's submission, I think that the real point of the differences between the various sections is that the penalty increases because of the increasing proximity of the more serious offences to the carrying out of a terrorist act. Mr Lange sought to find some support for this aspect of his argument in a perceived difference between remarks by the Chief Justice in the Lodhi decision to which I have referred and certain remarks made by the Chief Judge in that case. The difference is said to be between para 90 of Spigelman CJ's decision(which I have set earlier) and para 108 of the Chief Judge's decision. The latter paragraph is as follows: - "An essential element of an offence under 101.4 and 101.5 is knowledge by the accused of connection of his or her own action with a terrorist act. Of course, the terrorist act may be the accused's own act or the act of another. Section 101.6 directly relates the action of the accused to a terrorist act. In each case, knowledge of the terrorist act is fundamental to the offence and accordingly, particulars of the terrorist act are essential factual ingredients and must be pleaded". 153 I take his Honour, the Chief Judge, to be stating that s 101.6 more directly relates the actions of the accused to a terrorist act than do the earlier sections. I also take his Honour to be saying that, where the Crown case is that the terrorist act may be the accused's own act, that should be particularised in the indictment. I do not understand his Honour to be taking a different point of view as to the necessary fault element in relation to the physical element in s 101.6. That is clear I think when para 108 is read in context with paras 109 and 110. Indeed, the Chief Judge's observation that the terrorist act may be the accused's own act "or the act of another" puts paid to one of the basic propositions in Mr Lange's argument. 154 Consequently, I do not think it is correct to say that, where a number of persons have entered into an agreement to obtain the capacity or capability to prepare for a terrorist act or acts, the entry into that agreement is itself an act done in preparation for or planning a terrorist act. The accused are not charged with conspiring to agree to commit an offence or offences. The offence contained in s 101.6 of the Code is a substantive offence. Section 2.2 of the Code applies Chapter 2, which includes s 11.5, to all offences against the Code. This includes an offence contrary to s101.6. Consequently, the subject offence is precisely catered for in the Code; and it cannot be said that the accused, or any of them, has been charged with an offence unknown to the law.

Orders 155 I propose to dismiss all motions in which, to date, an attack has been made upon the indictment in the present matter.

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.