Again at paragraph 55 I said:
"The necessary mens rea is the intention that action is intended to be carried out which possesses the characteristics of causing serious physical harm to a person, in causing a person's death or causing serious damage to property (or for that matter any of the other characteristics set our in sub-s (2)".
85 These statements were, for the reasons I have set out above, not accurate. The mental elements in an offence under s 101.4 (the fault elements) are as I have indicated in this decision. The examples given in my earlier decision nevertheless remain illustrative of the fact that an offence may be committed even where the ultimate target has not been finally determined or is, at least, not known to the person who has done the act of collecting or making a document or possessing a document in preparation for a terrorist act.
86 There is no need for me to conduct the same type of analysis in relation to the other sections. It is identical in the case of s 101.5. It is however necessary to note that, in relation to s 101.6, there is no fault element specified. It appears that the fault element for the conduct involved in "doing any act" under this section would be intention; and the fault element in relation to the second physical element would be recklessness (s 5.6). These propositions in relation to s 101.6, however, have not been fully argued before me and the views I have expressed are preliminary only at this stage.
87 This analysis enables me to make one further comment about the arguments advanced on behalf of the accused. It will be recalled that, in relation to the argument regarding the alleged failure to state all necessary factual elements of the offence, Mr Boulten referred to the necessary mental element to be proved by the Crown and, as well, to the need to prove the motivation behind the act. In this regard, Mr Boulten made reference to s 100(1)(c) of the Criminal Code. Although this submission did not arise in relation to the duplicity argument, it is perhaps convenient if I deal with it at this stage.
88 In my opinion, it is not an ingredient of the offence, for example, under s 101.4 that the Crown must prove beyond reasonable doubt that, at the time of the possession of the document by the accused, he had an intention of advancing a political religious or ideological cause. Similarly, I do not accept that the Crown must prove that the accused, at the relevant time, had the intention of coercing or influencing by intimidation the Commonwealth or State Governments; or that he had the intention of intimidating the public or a section of the public. Of course, it would be open to the Crown to prove that the accused had these intentions and, if it were to do so, this would provide evidence of the fault element in relation to the connection between the possession of the document and preparation for a terrorist act (or, at least, it might tend to do so). But the relevant fault element, it must be stressed, in relation to this particular offence and the circumstances of the connection between possession and preparation for a terrorist act is "awareness" of the connection. For example, it might, in a particular case be the situation that an accused person who has been shown to have possession of a document had no personal interest in the carrying out of the terrorist act contemplated by the information in the document. He might, for example, simply be a paid mercenary. He might simply be doing a favour for a friend or repaying a debt. As I see it, it is not necessary for the accused to have any of the intentions mentioned in 100.1(b) and (c). The accused's motivation is not an essential ingredient of the offences in the indictment.
89 I turn now to deal finally with the various aspects of the duplicity argument. In relation to count 2, I will assume for the purpose of disposing of the argument that further amendment is permitted as foreshadowed by the Crown in its argument. I do not consider that count 2 (as it is to be amended) charges the accused with more than one offence. In my view, the proper construction of ss 101.6 and 100.1(1), (2), and (3) does not create more than one offence where a terrorist act, referred to in the indictment, possesses more than one of the characteristics mentioned in sub-s 2. For this reason, the wording of the second count in the indictment, in its amended form, charges, as I have said, only one offence and not more than one. This ruling however does not entail any adverse finding on my part in relation to the unamended form of count 2.
90 In relation to counts 1 and 3, I am satisfied that each of these charges one offence only. In relation to count 4, it may be that there was some substance in the argument concerning the words in s 101(4) "connected with preparation for, the engagement of a person in, or assistance in a terrorist act". It is not necessary for me to make a decision in that regard. In relation to count 4 in its amended form, I am satisfied, essentially for the reasons I have given, that it charges one offence only and not more than one.
91 In reaching these conclusions, I have, I have had regard to the arguments advanced by Mr Boulton SC that might be described as the "referral" argument and the "nature of harm" argument. Neither of these arguments displaces, in my view, the clear interpretation that is to be given to the legislation.
92 As to the "referral" argument, a number of points may be made. First, it is an argument, despite its ingenuity, that leads nowhere in either a theoretical or practical sense. Constitutionally, it is obvious that it leads nowhere. This because, as I understand it, there has been a general referral of power to the Commonwealth so that the point does not arise constitutionally. At a practical level, it may still be necessary for a "terrorist act" to be particularised. It was so particularised for example in R v Ul-Haque (unreported) Bell J 8 February 2006 at para 17. The fact that a particular terrorist act may be very specifically described in one case but very generally in another does not, to my mind, create any particular problem. The precise target for a bombing in a city centre may not be known and therefore, not able to be specifically identified in providing particulars. Provided the "action or threat of action" has one at least of the characteristics in s 100.1(2) that will be a sufficient starting point for the proof of the Crown case. As I have said earlier, it may well be that a particular act possesses a number of the characteristics set out in sub-s 2 of s 100.1. This will not create separate offences nor will it create a duplicity problem.
93 It is clear enough that, in some cases, the fact the Crown is not able to identify with precision the ultimate target for a bombing attack may have consequences for the strength of the Crown case to be proved. This will not, however, be necessarily so. It will very much depend on the evidence. Even in a case where the ultimate target is unknown, the evidence may powerfully establish the other ingredients including the necessary fault elements.
94 In any event, assuming the hypothetical situation contended for by Mr Boulten SC, namely the withdrawal of a State or Territory from referral arrangements with the Commonwealth, the possibility of invalidity on a constitutional basis, even if it be assumed to exist, does not in my view bear upon the duplicity argument. This is so essentially because of the plain and unambiguous construction of the sections I have identified. It needs to be said as well that the construction advanced by Mr Boulten SC does not , at least in my opinion, adequately promote the purpose of the legislation.
95 In relation to the "nature of harm" argument, I have not found this of significance in relation to either the construction of the legislation or the argument related to duplicity. It goes without saying that, in a particular case, the nature of the terrorist act is likely to have a bearing on the assessment of culpability and therefore will have an impact on the sentencing procedure where an accused has been convicted. This is to say no more than that the sentencing court will need to make factual findings consistently with the jury's verdict, in relation to the nature of, inter alia, the terrorist act. Such a consideration might have, in an appropriate case, a capacity to bear on the question as to whether the statute creates one offence or more than one offence. In my view, for the reasons I have earlier outlined, here the section creates only one offence. That conclusion is supported by the fact, to use the terminology of Bray CJ in Romeyko at 552, the act under consideration "possesses one or several of such characteristics". The fact that a sentencing court will have to make a determination about the characteristic or characteristics that apply, as part of the sentencing procedure, does not in this instance alter the construction conclusion.
96 The second string to Mr Boulten SC's bow in relation to this argument centred upon the definition of terrorist act, at least so far as damage to property was concerned. He argued that, having regard to sub-s 3 of s 100.1, the nature of the result intended could not be simply viewed as a characteristic of the offence. As a matter of construction of s 100.1, however, this conclusion is, in my view, too broadly stated. Let me take an example: recently two young men were charged with a criminal offence for painting protest slogans on an external sail of the Sydney Opera House. Arguably this was an action that caused serious damage to the property, namely the Opera House. It was, however, plainly enough "advocacy, protest, and dissent". It was also action that was not intended to cause physical harm to a person, or to cause death or to endanger the life of a person other than the person taking the action. It was not intended to create a serious risk to the health or safety of the public or a section of the public (s 100.1(3)).
97 Accordingly, the action of the two young men would have been unlikely to have sustained a conviction under s 101 ("a person commits an offence if the person engages in a terrorist act"). This type of action, as Mr Boulten argued, would have fallen under sub-s(3). I agree with that statement but I do not see that it permits the distinction that Mr Boulten then sought to draw. As I have said, he argued that the nature of the result intended cannot be simply viewed as a characteristic of the offence but, to the contrary, the intended result goes to the heart of the elements the Crown is required to prove.
98 I repeat that the proper construction of "terrorist act" is this: a terrorist act is an action that is done (or a threat of action that is made) with each of the intentions specified in sub-paragraphs (b) and (c). The action must possess one or more of the features specified in sub-s (2) provided that it does not have the features specified in sub-s (3). The latter excludes advocacy, protest, dissent or industrial action that is not intended to cause the consequences detailed in the sub-section. The breadth of the definition is such that advocacy, protest, dissent or industrial action may be action that falls within sub-s (2), and be capable of founding a terrorist act, if it is not unaccompanied by the intentions specified in sub-s 3(b)(i), (ii), (iii) and (iv).
99 It follows that, on its proper construction, the legislation makes it a criminal offence for a person to do an act in preparation for an act to be carried out that will cause serious damage to property provided that the action is to be done with the intentions specified in s 100.1(1)(b) and (c) and provided it does not fall within sub-s (3). But a distinction needs to be made as to the characteristics of the action in sub-s 2 and the matters in sub-s 3. The latter is concerned with advocacy, protest etc not intended (my emphasis) to cause the nominated consequences. The former is concerned with the nature of the contemplated action itself. It is a fine distinction perhaps but, nevertheless, a real one. In my view, it prevents Mr Boulten's argument from leading to the conclusion he urged.