(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.