Regina v Lodhi [2006] NSWSC 667 | Case summary

The particulars of the terrorist act alleged in counts 2, 3 and 4 generally accord with the particulars, which I earlier identified in relation to count 1. In relation to count 4, however, there was an additional particular alleging that the action or threat of action involved the use of a poison or poisons. 3 Each of counts 1 and 3 are offences under s 101.5 of the Schedule to the Criminal Code Act 1995 (Commonwealth). Count 2 is an offence under s 101.6 and count 4 is an offence under s 101.4 4 As at October 2003, the relevant sections of the legislation were in the following terms: - 5 Section 101.4 provided, relevantly, that a person commits an offence if: "(a) the person possesses a thing; and (b) the thing is connected with preparation for, the engagement of person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b)." 6 Section 101.4(3) provides that a person commits an offence under sub-s (1) or (2) even if the terrorist act does not occur. Sub-section (5) of 101.4 provides that sub-sections (1) and (2) do not apply if the possession of the thing was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act. 7 Section 101.5 provides relevantly, that a person commits an offence if: - (a) the person collects or makes a document; and (b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b)." 8 Section 101.5 (3) provides that a person commits an offence under sub-section (1) or (2) even if the terrorist act does not occur. 9 Sub-section 5 of 101.5 provides that sub-s (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act. 10 Section 101.6 provides, relevantly, that: - (1) a person commits an offence if the person does any act in preparation for, or planning, a terrorist act. (2) a person commits an offence under sub-s (1) even if the terrorist act does not occur. 11 "Terrorist Act" is defined in s 100.1 of the Code. It means an action or threat of action where: (a) the action falls within subsection 2 and does not fall within subsection 3; and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State Territory of foreign country; or (ii) intimidating the public or a section of the public. 12 Sub-sections 2 and 3 of the definition are in the following terms: - "(2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public."

Resolution of the issues 18 The principles governing a submission seeking a directed verdict are well known and not put in contest by the submissions of the parties. Those principles are set out in the decision of the High Court of Australia in Doney v The Queen (1990) 171 CLR 207 at 215; (see also the earlier decision of the Court of Criminal Appeal in R (1989) 44 ACR 404, in particular the decision of Gleeson CJ with whom Maxwell J and Wood J agreed). 19 These principles make it clear that, even where the presiding judge thinks it possible or likely that a verdict might be unsafe or unsatisfactory having regard to the Crown case evidence, he really has no role to play in that situation. As Gleeson CJ expressed the point, that is because of the insistence on judicial respect for the role of the jury as the tribunal of fact. 20 In Doney's case, at page 214, the Court said: - "It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 21 In my view, the first two grounds of attack on the adequacy of the Crown case must fail. The reasons involve an appreciation of the construction of the relevant legislation and, secondly, an appreciation of the nature of the Crown case itself in the present matter. 22 In an earlier decision given in relation to the terms of the indictment (Regina v Lodhi 14 February 2006) I said: - "The general framework of Part 5.3 of Ch 5 of the Code supports the conclusion I have reached in the following way: the type of action that is made criminal in terms of the division ranges from actually engaging in a terrorist act (s 101.1) down to an act that is altogether preliminary to that engagement: for example, receiving training connected with preparation for a terrorist act (s 101.2(1) and (2)); possessing a thing connected with preparation for the engagement of a person in, or assistance, in a terrorist act (s 101.4(1) and (2)); possessing a thing connected with preparation for the engagements of a person in, or assistance in, a terrorist act (s 101.4(1) and (2)); collecting or making a document connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act (s 101.5(1) and (2)); and doing an act in preparation for or planning a terrorist act (s 101.6). The wide range of activities made significantly criminal is itself postulated on the possibility that the criminal offence will or may occur long before any terrorist act itself is carried out. Indeed, apart from the offence of engaging in a terrorist act, each of ss 101.2, 101.4, 101.5 and 101.6 makes it clear that the offence is committed even if "the terrorist act does not occur". (As I have already concluded, this is a reference to the phrase "a terrorist act" where relevantly appearing in relation to each section creating the offence). Against this background it would be expected, as a matter of logic and commonsense, that the definition of "terrorist act", would fit in with the concepts revealed by the type of activities that might be expected to be quite preliminary to but connected with the preparation for a terrorist act. As I said in my earlier decision it would, as a matter of logic and commonsense, hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite. What then there does the definition of terrorist act do and how does it fit into the legislative framework I have identified? I have earlier set out the text of the definition of "terrorist act". First, the Crown must prove that "an action or threat of action" (relevantly for the present offences a contemplated action) is to be done with the intention of advancing a political, religious or ideological cause. Pausing there, it is appropriate to make two observations. The first is that this may not necessarily be the intention of the person charged with the preliminary action connected with the preparation for a terrorist act. I shall return to this concept later. The second is to observe that the intention to be proved relates to the character of the terrorist act intended to be carried out. Of course, it may also be the intention of the accused and, in fact, the intention of those who are proposing to carry out the act of terrorism. The cause may well be political, religious and ideological but the section requires that it be at least one of these. Secondly, the Crown must prove the action is done with the intention of coercing, or influencing by intimidation, the nominated governments; or it must be done with the intention of "intimidating the public or a section of the public". Again, the expression "the action" in 100.1(c) is clearly a reference to the phrase "an action or threat of action" where appearing in the first line of the definition. Thirdly, sub-s (2) of 100.1 lists the characteristics of "an action or threat of action". Again, the Crown must prove this element beyond reasonable doubt. The matters that fall within the sub-section are of the broadest possible kind. "Action" falls within the sub-section, for example, if it causes serious harm (physical harm) to a person; or causes serious damage to a property. "action" falls with the sub-section if it causes a person's death; or endangers a person's life; or creates a serious risk to the health or safety of the public or a section of the public; or seriously interferes with, seriously disrupts "or destroys an electronic system". The systems enumerated include but are not limited to the widest possible range of public utilities and government services. Finally, the Crown must prove that "the action" (again a reference to "an action or threat of action") does not fall within s 3. Again this is an element that must be proved beyond reasonable doubt. So it will be seen that the definition of "terrorist act" postulates an action or threat of action of the widest possible kind. Relevantly, for the trial of the present accused, the alleged "possession" and "collection", must be shown to have been "connected with" the preparation for a terrorist act; in the case of s 101.6 "the doing of an act" must be "in preparation" for a terrorist act. The width of the definition of "terrorist act" supports the notion that the Crown will prove this element of the case beyond reasonable doubt (or perhaps more accurately this aspect of the relevant element) if it establishes any one of the characteristics of the contemplated action as is specified in s 100.1(2). The nature of the action, however, may make it quite plain that it possesses a number of the characteristics that are enumerated in the sub-section. For example, if the contemplated action relates to the explosion of a large bomb during working hours in a city building, it may well establish characteristics that include physical harm to a significant number of people; serious damage to a building and the death of a number of people and the endangering of many peoples' lives. Depending on the nature of the building and its function in the government or state system, it may well be that it will also possess the characteristic of seriously interfering with the systems referred to in 100.1(2)(f). On the other hand, by way of example, the intended action may be the administration of poison to but one person. In my opinion, however, the Crown would be obliged to prove beyond reasonable doubt that the intended action possessed at least one of the characteristics mentioned in the sub-section. If, however, it possessed more than one of those characteristics, it does not seem to me that more than one offence is created." 23 In Lodhi v Regina [2006] NSWCCA 121 Spigelman CJ (with whom McClelland CJ and Sully J agreed) said at paras 64 to 66: - "[64] As Whealy J shows, the context of the sections and the scope and purpose of the legislative scheme confirms the interpretation suggested by the words creating each offence. [65] Each of the offence sections is directed to the preliminary steps for actions, which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified "part" of the electricity system. [66] Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been readied for a conspiracy charge. The courts must respect that legislative policy." 24 In the same context, Spigelman CJ said at para 77: - "Nothing like that has happened here. In the case of each count the effects of an explosion (Counts 2 and 3) or the selection of a target is not necessarily, indeed not usually, determined at the time of the 'doing', the 'making', or the 'possessing'. That is the point of making preparatory acts offences. It is not appropriate, let alone required, that each effect or each target be the subject of a separate count. What has been made an offence includes conduct where an offender has not decided precisely what he or she intends to do." 25 In Lodhi v Regina there had been a second attack on the indictment. This was an argument asserting that the indictment failed to specify the essential ingredients of the charge in relation to each count. This argument succeeded in the Court of Criminal Appeal and the indictment was quashed and later re-drawn. In connection with this argument, it became necessary for the Court to focus upon certain aspects of the essential ingredients of each offence. At paras 87 to 91, Spigelman CJ said: - "[87} The submissions on behalf of the Applicant and the submissions on the part of the Crown focused on whether or not the reference to "intention" in s 100.1(1)(c) - referred to in the Applicant's submissions as either a motivation or a purpose - was a fault element of the offence and, as such, an essential element. The Crown relied upon the reasons of Whealy J for the rejecting this contention. [88] I have set out the counts in the Indictment above. That part of each of Counts 2, 3 and 4 discussed under the heading of "Duplicity" above, concerned with the results of the terrorist act in terms of death, serious physical harm or serious damage to property, represents the identification of some of the list of matters set out in subs (2) of the definition of terrorist act which are applied by para (a) of that definition. The Crown has, accordingly, pleaded in each count one part of par (a), relating to subs (2) of the definition. It has not pleaded the second part of para (a) namely the proposition that the alleged actions did not fall within subsection (3). Nor has it pleaded the "intention" referred to in either par (b) or par (c) of that definition. The issue is whether or not these matters constitute an essential element of the offence. In my opinion they do. [89] This may not prove to be of great practical significance because on my above reasoning, in the context of dealing with the duplicity argument, the approach in Romeyko would apply equally to the respective component parts of the definition of "terrorist act". An action falling within subs (2) will frequently be motivated by more than one "cause". Motivations of a "political, religious or ideological" character frequently overlap. Similarly, an action falling with (2) of the definition will often tend to coerce or influence by intimidation more than one government, as well as intimidate the public or a section of the public. Contrary to the submissions of the Applicant, the further definition of the offence may not be of significance in restricting the scope of admissible evidence. Nevertheless, they should be so specified as an essential ingredient. [90] The references to "intention" in each of pars (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 have 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 pars (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 of particularise that aspect of the case. (Underlining added). [91] The relevant fault element is knowledge of the connection, as specified in s 101.4(1)(c) and s 101.5(1)(c). In the case of s 106.1 it is recklessness by force of s 5.6(2) of the Criminal Code. Counts 3 and 4 plead knowledge. However, Count 2 does not plead recklessness. It should." 26 These observations make it clear that s 100.1(b) and (c) are concerned to identify the character of the action that falls within sub-section (2) of s 100. Each of those characteristics is an essential element of the offence. The Chief Justice's remarks, however, make it clear that it is not an essential element of the offence that an accused charged with doing any one of the acts identified in ss 101.4, 101.5 or 101.6 must himself or herself have the intention that the act is done to advance a particular cause or is done with the requisite purpose of coercion or intimidation. Each of paras (b) and (c) should be pleaded as an essential physical element but no particularity is required as to the person who had the relevant "intention". 27 From this analysis, I would respectfully conclude that what has to be pleaded and in fact proved is that the action contemplated is to be done or a contemplated threat is to be made with the intentions mentioned in (b) and (c). Evidence of these matters may not necessarily coincide with the intentions of the person charged or, for that matter, with the intentions of the person who may ultimately carry out the bombing attack. It may do, of course but the circumstances of each case will certainly differ. Moreover, as I have noted in my earlier decision, the legislation is sufficiently wide to make the doing of a preliminary act a criminal offence even where the ultimate target has not been selected or, for that matter, the ultimate perpetrator of the attack has not been selected. There will, of course, have to be a body of evidence from which a jury could conclude that the collection of the document, for example, was connected with preparation for an action intended to advance a religious cause and intended to coerce or intimidate the Government. But it is not necessary that the evidence take the form of evidence directly attributable to the state of mind of the ultimate bomb carrier. Indeed, such a mandatory requirement would be contrary to the very nature of the legislation, which makes even the most preliminary of acts in connection with preparation for a terrorist act a criminal offence. The legislation is designed to cut off the terrorist attack long before it culminates in an action of potential mass destruction and damage. 28 May I now descend to the realities of the Crown case in the present trial. While it is true that it is not necessary for the Crown to prove as an essential element of any of the offences that it was the accused's intention to advance a political religious or ideological cause, the Crown case has adduced evidence which, whatever be its strength or weakness, is capable of demonstrating that the accused, in connection with the proposed bombing, in fact intended to advance the cause of violent jihad. Secondly, while it is equally true that it is not necessary for the Crown to prove as an essential element that it was the accused's intention to coerce or influence by intimidation the Government or the public, the Crown has in fact adduced evidence, whatever be its strength or weakness, which is capable of demonstrating that the accused, in connection with the proposed bombing, intended in fact to coerce or influence by intimidation. 29 There is no need for me to identify all this evidence in detail. It emerges from the bulk of the circumstantial case against the accused and it involves, inter alia, the various physical elements of each of the four offences alleged against the accused. It comprises however a substantial body of other evidence as well. This material is relied on by the Crown not merely to establish the knowledge and intention of the accused as part of the essential fault elements in each offence. It is also relied upon as evidence capable of characterising the intentions underlying the contemplated bombing activities said to have been in the course of preparation. In that regard it is evidence of the physical element, that is of the character of the action that falls with (2) of the definition. It does so, and in my view is capable of doing so, in the sense mentioned in Doney's case, so as to satisfactorily identify the requirements of s 100.1(b) and (c). 30 The simple conclusion I reach after a consideration of the above matters is this: in a case where the prosecution does not specifically contend that the terrorist act connected with the collection making or possession of the documents was to be carried out by the accused, the Crown need not necessarily prove that the ultimate bomber had the requisite intention mentioned in s 100(b) and (c). In a particular case, it might be necessary to prove this but it is by no means a universal requirement. Indeed, the identity of the bomb carrier may not be known simply because he may not have as yet been selected. In the present case, there is evidence capable of satisfying a jury that the terrorist act possessed the necessary characteristics. The evidence relates to the accused himself even though the evidence does not go so far to suggest that the accused himself was necessarily to carry out the ultimate terrorist acts. 31 Further support for this construction of the legislation is to be found in ss 101.4(3), 101.5(3) and 101.6(2). These sub-sections make it clear that a person may commit an offence even if the terrorist act does not occur. 32 Senior counsel for the accused relied on two examples to illustrate the argument he pressed. First, he gave the example of a mercenary who draws a map of a military installation and is aware that it will be used to carry out a terrorist act. Such a person would be guilty of an offence pursuant to s 101.5 Criminal Code even though his own actions were not politically or ideologically motivated. Conversely, senior counsel argued, a person who, for ideological reasons, prepares such a map and provides it to another, who out of revenge having been discharged from the Army wishes to destroy an Army Barracks is not guilty of an offence contrary to s 101.5. Mr Boulten argued that, since the bomber lacks the requisite motivation, the action is not a terrorist act. Hence the document prepared by the first person is not connected with the preparation for a terrorist act and, as a consequence, the person making the document cannot be convicted, regardless of his own motivations. 33 There are a number of answers to refute the conclusions sought to be drawn from the second example. First, examples in this field are not particularly helpful since critical differences of fact may lead to different results. Secondly, the example given highlights the fact that ultimately the question of whether a proposed bomb attack has the characteristic of the purposes or motivations referred to in s 100(b) and (c) is a question for determination by the jury. It is conceivable, as Mr Boulten's example illustrates, that a proposed action will have the relevant characteristics at one point of time but may be at risk of losing those characteristics because of intervening events. On the other hand, the characteristics may remain, notwithstanding the motivation or the particular bomb carrier. In the end, however, the present matter can be resolved by the presence of the body of evidence relating to the accused himself. If that evidence be accepted, it is capable in my view of being evidence that may be considered by the jury as relevant for the purposes or motivation related to the proposed action or threat of action. 34 Mr Boulten SC also sought to obtain some support for his propositions from Division 102 dealing with terrorist organisations. I do not consider that the Division, and the offences in it, take the argument in any particular direction. Those sections are not essentially concerned with preliminary actions to a terrorist act but rather with organisations that are themselves engaged in preparing planning assisting in or fostering the doing of terrorist acts. I accept they may be of some assistance in construing s 100.1 but their assistance is, in my opinion, relatively limited and by no means carries the day. 35 The third submission must also fail. First, I consider that the question of the accused's state of mind when he collected and made the documents (referred to in each of counts 1 and 3) is, in the ultimate, a matter for the jury. It is very much a jury question. Secondly, there is evidence capable of establishing that the accused contemplated the bombing of part of the electricity supply system at the time the maps were collected. Equally, there is evidence of a similar character relating to the bombing of one or other of the relevant defence establishments at the time the accused made the documents. Even if, as the Crown stated in its opening, the accused by 26 October 2003 had not finally decided on the precise details of the contemplated action or actions (including a precise target or targets) this is not conclusive of the matter. The connection is between the documents collected and made, on the one hand, and the preparation for a terrorist act on the other. Even where the preparation is at a preliminary stage, the offence will have been committed where the requisite physical and fault elements are proved beyond reasonable doubt. I consider there is evidence, which if accepted, is capable of satisfying these elements of the offences. 36 For these reasons, the application for directed verdicts is refused.

Regina v Lodhi

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