The Queen v Cerantonio & Ors

1 Over 80 years ago, in Johnson v Miller,[1] Dixon J said that an accused person:

is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

2 The principal question at issue in this ruling is whether the accused in the present proceeding have been given adequate particulars of the alleged agreed and intended conduct in the Philippines forming part of the foundation of the offence charged.

3 As I have explained in previous rulings in this matter,[2] on 23 October 2017, counsel for the Director filed an indictment charging the six accused jointly with an offence against s 119.4(1) of the Criminal Code (Cth) ("the Code"). The offence is said to have been committed "by virtue of" joint commission pursuant to s 11.2A of the Code.

4 The offence may be described as one of agreeing to engage, and engaging, in conduct preparatory to another offence, contrary to s 119.1(1) of the Code, of entering a foreign country with the intention of engaging in a hostile activity in that country.

5 The definitions provision in s 117.1(1) of the Code provides that "a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved)". Numerous objectives are then set out immediately below the definition.

6 In short, the Director's case was that the accused agreed to engage, and did engage, in several pieces of conduct in Australia - including heading from Victoria to the far north of Queensland with a seven-metre boat in tow (where five of the accused were arrested) - in preparation for an offence against s 119.1(1). The latter offence alleged was the entry, by use of the boat, to the Philippines, with the intention of engaging in a hostile activity in that country. In particular, the agreed and intended conduct alleged was that the accused would "involve themselves in the Islamic insurgency" in the Southern Philippines, with the intention of achieving one or more of the prohibited objectives, almost all of which were listed in the indictment.

7 Following pre-trial argument, on 8 December 2017, I made several rulings and related suggestions arising out of objections taken by the accused to aspects of the first indictment and the particulars.[3] The present ruling should be read with those earlier reasons in mind.

8 Briefly, among other things, I ruled that aspects of the particulars of the agreed and intended conduct in the Philippines - namely, "involving themselves in the Islamic insurgency" - were so vague, and admitted of so many different potential instances of such conduct, as to be ambiguous and uncertain, and therefore inadequate.[4]

9 I also suggested that the particulars of the agreed and intended objectives of the conduct in the Philippines should be confined to a single common objective (in particular, overthrowing the government of the Philippines, by force or violence).[5] I opined that, if the alleged objective were so confined, it may well be that less specific particularization of the agreed and intended conduct in the Philippines than otherwise might be given would be adequate. This is because a given description of alleged intended conduct will tend to be narrowed in its scope if, instead of numerous objectives, a more confined objective of that conduct is alleged.

10 In addition, I suggested that, as helpful as the particulars of the preparatory conduct in Australia were, it might be preferable to narrow them too.[6]

11 In an attempt to comply with those rulings and take up the suggestions, on 19 December 2017, the Director filed over a new indictment, which included, among other things, new particulars. On 24 January 2018, the Director also filed a corresponding amended summary of prosecution opening.

12 In substance, it is now alleged that the accused agreed to engage, and did engage, in conduct - including, again, towing a boat to Queensland - preparatory to an intended covert departure from Australia, by use of that boat, for a foreign country (such as Indonesia), with the ultimate destination being entry to the Philippines, with the intention of engaging in a hostile activity in that country.

13 While there are other differences between the previous particulars and the new ones, perhaps the most significant change is that the Director has sought to confine the particulars of "engaging in a hostile activity" in the Philippines, in two main ways. First, by alleging that one or more of the accused would enter the Philippines with the intention of "engaging in conduct with the intention of achieving the objective of the overthrow by force or violence of that country (or a part of that country)", the Director has confined the particulars to a sole intended objective of the alleged agreed and intended conduct.

14 Secondly, instead of alleging that the accused agreed and intended "to involve themselves in the Islamic insurgency", the Director has sought to confine the scope of the intended conduct in the Philippines, not only by alleging a single intended objective of the conduct, but also by use of the following form of words:

a) Identifying and engaging with persons of the Islamic faith who were involved in actions or who were willing to carry out or facilitate actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines;

b) Encouraging and/or pursuing activities directed at achieving that objective.

15 Despite these changes, the accused have taken several objections to the new particulars of the agreed and intended conduct in the Philippines. Among other things, it is submitted that the new particulars, if they are particulars at all, are inadequate because they are too vague, do not disclose a realistic potential connection between the intended conduct and the intended objective alleged, and give rise to duplicity or at least the risk of uncertain verdicts.

16 The Director rejects those complaints. It is submitted that the alleged agreed and intended conduct, when considered in light of both the terms used to describe that conduct and the accompanying single intended objective, makes for sufficient particularity. The Director also submits that, in any event, the proposed evidence will not sustain any greater particularity.

17 I have come to the view that, while the new particulars under challenge are, for the most part, preferable to the original ones, and indeed are adequate in some respects, nevertheless, in their current form, they suffer from some flaws.

18 For example, the notion of "engaging with" (the persons described in paragraph (a)) is too broad and imprecise to amount to an adequate description of intended conduct. Paragraph (b), as currently drafted, is also unsatisfactory, as its meaning is unclear. Further, the use of the words "actions" and "activities" is at least problematic, since they tend to embrace all manner of behaviour.

19 On the other hand, the term "actions" may be permissible, if preceded by something more precise than "engaging with", particularly in light of the narrowing effect of the single objective alleged. As I understood the argument, the Director conceded that the word "encouraging" might have been employed in paragraph (a) instead of "engaging with". Thus, something like "identifying [the persons described in paragraph (a)] and encouraging those persons to perform such actions", when coupled with the alleged ultimate objective of such encouragement, might be a form of words that would render paragraph (a) sufficient as a set of particulars.

20 Despite the Director's lament that no more can be done and the accused's submission that I should not venture into this territory anyway, it is apparent from the remarks I have just made that I consider that only relatively minor changes to the new particulars might be necessary in order to render them adequate. More of that later.

21 Before outlining the parties' arguments and my more detailed reasons for these conclusions, it is convenient to set out the indictment in detail and some of the particulars that have been provided by the Director in the amended summary of prosecution opening.

23 On page 1, under the heading "Statement of Offence" and the names of all accused, as in the previous indictment, the offence charged is described in the following manner:

Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the [Code] by virtue of section 11.2A of the [Code].

24 On page 2, under the heading "Particulars and Statement of Offence", and beside the subheading "Charge 1", the following words appear:

The Director of Public Prosecutions ... charges that between about the 22nd day of October 2015 and the 10th day of May 2016 at Melbourne in the State of Victoria and elsewhere, [each accused's name is then listed], while each being an Australian citizen, did intentionally engage in conduct, believing that conduct was preparatory to the commission of an offence against section 119.1(1) of the [Code].

a) Seeking to obtain and equip a boat suitable to enable participants in the agreement to leave Australia covertly for a foreign country with the ultimate destination being the Philippines;

b) Obtaining a Haines Hunter boat, GY141, and a Hyundai Terracan SUV, TPS550, and driving the vehicle and boat to Queensland.

Particulars of the offence against section 119.1(1)

That one or more of [each accused's name is then listed], being an Australian citizen, would enter a foreign country, namely the Philippines, with intent to engage in a hostile activity in that country, namely engaging in conduct with the intention of achieving the objective of the overthrow by force or violence of the government of that country (or a part of that country).

a) Identifying and engaging with persons of the Islamic faith who were involved in actions or who were willing to carry out or facilitate actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines;

b) Encouraging and/or pursuing activities directed at achieving that objective.

Statement of Offence - Engage in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activity contrary to section 119.4(1) of the [Code] by virtue of section 11.2A of the [Code].

Particulars in amended summary of prosecution opening

25 Next, I turn to some of the particulars provided in the amended summary of prosecution opening.

26 Amongst other things, the following is said in that document:[7]

[1A] In late 2015, the accused decided and agreed to go to the Southern Philippines so that they could achieve their goal of living under Islamic rule. They decided and agreed to take action in the Southern Philippines with the objective of overthrowing the government of the Southern Philippines in order to bring about Islamic rule there.

[3A] The Crown alleges that the hostile activity the accused intended that he and/or another would engage in was to identify and engage with persons of the Islamic faith who were involved in actions or who were willing to carry out or facilitate actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines, and/or encouraging and/or pursuing activities directed at achieving that objective.

[4] ... It is the Crown case that each accused intended that he and/or another would leave Australia to engage in hostile activity in the Philippines in the cause of violent jihad.

[5] The Crown alleges pursuit of an agreement between the accused that would enable (most of) them to leave Australia by boat and ultimately enter a foreign country, namely the Philippines, with the intention of engaging in a hostile activity in the Philippines.

Legislative provisions and draft statement of elements of offence charged

27 In this ruling, I shall not reproduce either the relevant legislative provisions or a draft statement of the elements of the offence charged. They may be found in the earlier rulings in this matter.[8]

28 I turn now in detail to the accused's specific objections to the new particulars, and to the Director's submissions in response and my analysis and conclusions.

29 Counsel for each accused adopted the written and oral submissions made by Mr McMahon SC, who appeared with Ms Morgan on behalf of Mr Dacre. On some issues, counsel for some of the other accused added further oral submissions in chief and/or in reply.

30 Mr Maidment QC, who appeared with Ms Sharp and Ms Peek on behalf of the Director, made written and oral submissions in response.

31 In some instances, I fear that the submissions and responses did not align wholly or at all. That said, I shall do my best to address what I consider to be the more important points taken by the parties.

New particulars merely a restatement of offence?

32 In their written and oral submissions, the accused raise as their first argument that the new particulars are not properly particulars at all and that, instead, they represent, in effect, a restatement of part of the offence.[9]

33 It is submitted that paragraph (a) restates the objective of the offence (overthrowing the government by force or violence), and adds that the engaging in conduct will be engagement with other persons, not simply the accused themselves acting. In the accused's submission, persons who intend to overthrow a government by force are doing so or, because of their intent, are willing to do so. Thus, the breakdown of paragraph (a) into three groups - those who are involved, or are willing, or who facilitate - simply restates in expanded language what is said to be the offence, namely "engaging [with others] in conduct with the intention of achieving the objective". It follows, so it was argued, that paragraph (a) is simply stating that the accused intended to engage in conduct with the intention of achieving the objective, by engaging in conduct with those others who intend to achieve the objective. The only "conduct" that is actually particularized in paragraph (a) is that the accused will act with Muslims, not alone, which, in the context of this case, adds nothing.

34 Further, the notion of what the "government of the Southern Philippines" might be, conceptually, legally or geographically, is unclear. (As I understood the oral argument, however, this did not appear to be a major concern of the accused.)

35 As for paragraph (b), it is submitted that it serves no purpose. To "encourage" others, without much more specificity, is meaningless and adds nothing to "engage with". It cannot be suggested that one "engages with" so as to discourage. To "pursue activities" to achieve the objective says no more than engaging in conduct with the intention of achieving the objective, which is the offence and not a particular at all. Thus, so the argument goes, paragraph (b) says nothing about the nature of the conduct intended in the Philippines. It does not specify intended and agreed conduct.

36 Briefly, the Director's written response includes the following.[10] The particulars in paragraphs (a) and (b) are in fact particulars, as they identify the conduct the accused agreed and intended to engage in in the Philippines - namely to identify and engage with certain persons and to encourage and/or pursue activities. The "nature" of the intended conduct is irrelevant: it simply must be either an act or an omission to perform an act or a state of affairs.

37 In response to the accused's uncertainty about the "government of the Southern Philippines", the Director points to evidence in the brief to the effect that in 2016 "the threat posed by Islamist militancy in the Philippines [was] currently largely contained to Mindanao region in the Southern Philippines ... [including] the islands of Basilan and Jolo".

38 The Director explained that paragraph (b) is intended to identify further conduct that the accused agreed and intended to engage in: namely, encouraging others (i.e. other than those identified in paragraph (a)) to pursue, and/or the accused themselves pursuing, activities in support of the objective of overthrowing the government by force or violence.

39 In my view, while there are other difficulties with the particulars, they are, subject perhaps to one qualification, in fact particulars and do not amount merely to a restatement of part of the offence.

40 It is true that paragraph (a) describes the persons to be identified and engaged with by reference (in part) to the objective of the conduct alleged - i.e. overthrowing the government, by force or violence. But, whatever their other limitations as particulars, to which I shall come shortly, the words "identifying and engaging with" such persons do amount to an allegation of intended conduct of some kind, and therefore are particulars rather than a mere restatement of the offence.

41 While I accept that this cannot be determined from the paragraph and instead requires the Director's explanation for its meaning, it strikes me that paragraph (b) also amounts to particulars of conduct of sorts, in that, according to the Director, it describes encouraging others (i.e. other than those identified in paragraph (a)) to pursue, and/or the accused themselves pursuing, activities in support of the objective of overthrowing the government by force or violence.

42 The qualification to which I referred earlier is this: Paragraph (a) employs the term "actions", and paragraph (b) the term "activities". Each term is merely a synonym for "conduct" and yet is unaccompanied by any description of the particular intended conduct, action or activity alleged. To that extent, it may be correct to say that paragraphs (a) and (b) amount to a restatement of the offence, rather than the provision of particulars as to intended conduct. I shall, however, return to this point when dealing with the submission that the particulars are too vague and imprecise to be adequate.

Particulars of further preparatory offence/behaviour instead of s 119.1(1) offence?

43 The accused's second, and alternative, submission is that, if paragraphs (a) and (b) are particulars, they amount to particulars of further preparatory behaviour in the Philippines, instead of particulars of an intended offence against s 119.1(1) in that country, and therefore do not disclose an offence at law.[11]

44 The accused submit that the particularized conduct can be described as pre-attempt conduct. Paragraph (a) alleges that the accused will try to find people who are already involved in, or prepared to be involved in, the ultimate objective. What is actually alleged as the conduct is so preliminary to the objective, and prior to even an attempt to achieve the objective, that it is best described as preparatory conduct. The structure of the allegation allows for the accused, once they arrive in the Philippines, to spend an unknown period of time - perhaps years - somewhere in the country (including the Islamic autonomous region in Mindanao) weighing up their options, identifying persons, assessing the ones they might like to meet, talking it through ad nauseam, all with a view ultimately to engaging with some of the people they have identified. It appears to be alleged that all this will take place prior to the accused pursuing or encouraging any action directed to the objective.

45 It is further submitted that, as to the allegation that the accused intended to identify and engage with persons who were involved in actions directed to the objective, it is not alleged by paragraph (a) that the accused were intending to be involved in such actions. The identification and engagement is itself preparatory to the accused's involvement in any action directed to the objective.

46 In the accused's submission, the allegation that the accused intended to identify and engage with persons who were willing to carry out actions directed to the objective, constitutes a clear example of preparatory conduct. No action or conduct directed to the objective is specified - the persons the accused are said to have intended to identify and engage with have only a willingness to do something directed to the objective. Those persons need have no clear intention to engage in any specific (or indeed, broadly described) conduct directed to the objective. In these circumstances, the identification and engagement with those persons by the accused is even further removed from any actual conduct that could constitute a hostile activity.

47 It is submitted that the allegation that the accused intended to identify and engage with persons who were willing to facilitate actions directed to the objective, is even more remote from an actual intention to engage in conduct constituting a hostile activity. Those persons themselves are, by the words "willing to facilitate", a further step removed from the actual conduct directed to the objective.

48 The accused submit, in summary, that the intended conduct, as particularized, is further preparatory conduct, to be settled upon arrival. Any hostile activities that might result are to take place following the identification and engagement with others who hold a similar ideology. What is now alleged appears to be conduct that is to take place prior to, and regardless of whether, the accused actually do join, or actively participate in, any action directed to the objective of overthrowing the government.

49 Finally, paragraphs (a) and (b) do not allege a contemporaneous intention (at the time of the acts in preparation) as to the conduct directed to the objective in the Philippines, within the requirements of the offence contrary to s 119.1(1). The particulars in fact allege that the accused intended to decide what they would do when they arrived in the Philippines, and engage in further preparatory conduct there. The allegation that is now made attempts to cast a further s 119.4(1) offence in the Philippines as if it were a s 119.1(1) offence. It is not an offence to engage in preparatory activity with the intention of committing an offence pursuant to s 119.4(1). The provision in s 119.4(1) permits the offence to be made out only if there is a contemporaneous intention, at the time of the acts in preparation, to commit an offence pursuant to s 119.1.

50 In the Director's submission,[12] paragraphs (a) and (b) are not particulars of a further preparatory offence but are particulars as to the intention to engage in a hostile activity in the Philippines, which comprises intended conduct - such as identifying and engaging with particular persons, or encouraging others to pursue certain activities, or the accused pursing certain activities themselves - to be engaged in with the intention of achieving the prohibited objective alleged.

51 It is submitted that, in order to meet the definition of "engage in a hostile activity" inherent in the circumstance element of the offence against s 119.1(1), the intended conduct must only be intended to be done with a particular intent. The conduct itself need not be intrinsically hostile.[13] If, for example, the Crown can prove that the accused intended to identify persons who were involved, or willing to be involved, in actions to overthrow by force or violence the government of the Southern Philippines with the ultimate intention of overthrowing that government by force or violence, the circumstance element would be made out.

52 In my view, for the most part, these aspects of the accused's submissions should not be accepted. Again, while there may be other difficulties with the particulars provided in paragraphs (a) and (b), that they may admit of intended conduct that appears to be "preparatory", "pre-attempt" or perhaps somewhat remote or removed from the alleged prohibited objective does not deny their validity as particulars of agreed and intended conduct for the purposes of an offence against s 119.1(1). As I have ruled previously, the alleged agreed and intended conduct may be any conduct, provided it is agreed and intended to be engaged in with the intention of achieving a prohibited objective and provided there is some realistic potential connection between the intended conduct and the accompanying intended objective.[14]

Too amorphous/imprecise, no realistic potential connection or duplex?

53 I turn now to the accused's third - and further alternative - attack on the particulars, which involves at least three separate points. The accused submit that, if paragraphs (a) and (b) do properly amount to particulars of an intended offence against s 119.1(1), they are nevertheless inadequate because (1) they are too amorphous or vague, (2) they do not allege a realistic potential connection between the intended conduct and the intended objective alleged and (3) they render the charge duplex, or at least risk uncertain verdicts.[15]

54 So, to the first point first. The accused submit that "engaging with" persons with the characteristics mentioned in paragraph (a) is a concept so broad and imprecise as to be almost without limit. In the accused's submission, the term "engaging with" embraces conduct ranging from chatting with such persons on social media, to going with them to a mosque, to meeting as parents at the same school, to joining in armed combat, and so on.

55 As I indicated earlier, it is also argued that the terms "actions" and "activities" are merely synonyms for "conduct" and yet are unaccompanied by any description of the particular intended conduct, action or activity alleged. Thus, perhaps even more than the term "engaging with", these terms tend to embrace all manner of conduct.

56 It is submitted that paragraph (b), at least as currently drafted, is also unsatisfactory, as its meaning is unclear and can only be deciphered with the assistance of the Director. Even when so deciphered, it is unclear what "activities" were to be encouraged or pursued.

57 The upshot, the accused submit, is that these aspects of the particularization are inadequate because the accused have not been informed with sufficient precision of the alleged agreed and intended conduct to be engaged in in the Philippines. Further, the array of potential intended conduct embraced by paragraphs (a) and (b) is so broad that an accused person could not decide whether to enter a plea of guilty, because he would not know with any precision to what agreed and intended conduct he was meant to be admitting. Similarly, if a guilty verdict were returned following a trial, the Court would have very little idea of the basis on which the jury's verdict was returned. In either case, the precise determination of important sentencing facts would be impossible.

58 The accused also submit that, while the reliance on the one intended objective of the conduct does tend to narrow the field of instances of intended conduct directed at that objective, it still does not do so with sufficient precision. This is especially so where, as here, the objective alleged - overthrowing the government by force or violence - tends to be broad and ongoing in its nature, unlike some of the more specific and confined objectives listed in the definition of "engage in a hostile activity" in s 117.1(1), such as causing the death of a head of state or destroying government property.

59 The accused's second point is that the particulars in paragraphs (a) and (b) do not allege a realistic potential connection between the intended conduct and the intended objective alleged.

60 It is submitted that merely to "identify" persons with the characteristics mentioned in paragraph (a) - say, by inquiring as to who certain people are - even if they are involved in actions directed at the overthrow of the government, could not amount to a realistic potential connection with the intended objective of overthrowing the government. The same may be said, it is argued, of "identifying and engaging with" such persons and "encouraging" others to pursue, and the accused themselves "pursuing", "activities" directed at the prohibited objective, for those concepts embrace conduct that is wholly remote from, or that could not conceivably have any impact on, the prohibited objective.

61 Finally, the accused submit that the particulars render the charge duplex, or at least give rise to a risk of uncertain verdicts.

62 For example, it is submitted that the agreed and intended conduct alleged in paragraph (a) is quite different from that alleged in paragraph (b). It is one thing to identify and engage with certain persons, but entirely another to encourage others to pursue activities, and yet another again to pursue such activities alone. Further, it is submitted that, within paragraph (a), there are three different categories of persons to be identified and engaged with. In the accused's submission, these are not all just aspects of one agreement to commit the same offence but, instead, are different agreements or different offences. This is so, it is submitted, even if the accused have agreed on the same preparatory conduct in Australia with the intention of entering the Philippines with the intention of engaging in conduct with the intention of achieving the same ultimate objective, simply because the instances of intended conduct are so different in nature.

63 The Director's submissions on these topics may be summarized in the following way.[16]

64 First, while the Director accepts that the new particulars of the agreed and intended conduct in the Philippines are not as specific as they might be in some other cases, including some of the preparatory terrorism cases,[17] they are nevertheless as specific as the evidence will allow.

65 Further, it is submitted that to allege that the accused agreed and intended to identify and engage with persons possessing the characteristics described in paragraph (a), with the intention of achieving the objective of the overthrow, by force or violence, of the government of the Southern Philippines, is sufficiently precise particularization for the accused to know the factual foundation of the charge. The range of conduct connoted by "identifying and engaging with" such persons is narrowed sufficiently precisely by those words, particularly when read with the single intended objective alleged. The same is true of the allegation of "encouraging" others to pursue, and the accused themselves "pursuing", "activities directed at achieving" the single intended objective alleged.

66 Secondly, particular (a) necessarily alleges a realistic potential connection between the intended conduct and its intended objective, because those persons to be identified and engaged with are those of the Islamic faith involved in actions, or who were willing to carry out or facilitate actions, directed at achieving the overthrow by force or violence of the government of the Southern Philippines, which is the very same intended objective to be achieved by the accused's agreed and intended conduct. Similarly, since particular (b) is to be understood as concerned with the accused encouraging others to pursue, or the accused themselves pursuing, activities directed at achieving that objective, the necessary potential connection between conduct and objective is alleged.

67 Third, the particulars of the intended conduct are not duplex, and do not give rise to the risk of uncertain verdicts, but, rather, reflect the alternative contingent intentions agreed in this case. As I understood the argument, the Director submits that the particulars in paragraphs (a) and (b) (including the preamble to them) should be treated as alleging that the agreement was:

i. that the accused intended to identify and engage with those of a like mind (i.e. those described in paragraph (a)) with the intention of achieving the objective of overthrowing the government by force or violence; and

ii. that, failing or in addition to that, they would encourage others to pursue activities directed at that same objective (as in part of paragraph (b), properly understood) with the intention of achieving that same objective; and

iii. that, failing or in addition to that, the accused themselves would pursue such activities directed at that same objective (as in the other part of paragraph (b), properly understood) with the intention of achieving that same objective.

68 It is also submitted that these different intentions reflect the continuing nature of the intended conduct directed at achieving the sole objective of overthrowing the government by force or violence.

69 Again, as I understood Mr Maidment, consistently with the stance taken by his predecessor,[18] it is conceded that, given the case is put on the basis of joint commission, in order to avoid at least latent duplicity in any possible guilty verdicts, it must be established, among other things, that the accused under consideration agreed with at least one of his co-accused that the same particular conduct would be engaged in in the Philippines (by one or more of the parties to the agreement), which in turn would mean at least agreeing to the conduct alleged in paragraph (a) of the new particulars.

70 Finally, I also understood the Director to concede that, depending upon how the evidence falls and depending upon whether it is indeed permissible to allege all three aspects of the intended conduct in the Philippines in the one charge or as part of the one agreement, and take verdicts on such a charge, all of which may be the subject of argument at a later stage, it may become necessary to make an election among one or more of those alternatives.

72 As indicated earlier in these reasons, I have found that, while the new particulars under challenge are, for the most part, preferable to the original ones, and indeed are satisfactory in some respects, nevertheless, in their current form, they suffer from some flaws that render them inadequate.

73 So, first, while I suspect that the use of the term "identifying" in paragraph (a) may be unnecessary to the gravamen of the Director's case, as such conduct is merely a preliminary step towards conduct more closely connected with achieving the ultimate objective alleged, I do not accept that that term, in and of itself, is too vague to be employed in the particulars. It is plain enough what "identifying" means in this context, particularly when coupled with both the characteristics of the persons it is alleged were to be identified and the alleged ultimate objective of the intended conduct. Further, in my view, that there may be many means of identifying persons, none of which is specifically alleged, does not deny this aspect of the particularization the necessary precision.

74 Secondly, I do not accept that there is any difficulty with the way in which the Director has particularized the persons to be identified (and engaged with) in paragraph (a). They are a subset of the persons who might be thought to have been, or to be willing to be, involved in "the Islamic insurgency", which, as I have said, was part of the Director's previous attempt at particularization. It strikes me that the Director has fashioned a satisfactory way of overcoming the vice previously conceded in the use of the term "the Islamic insurgency", and instead has sought to describe the relevant persons in a way that defines them with sufficient precision to allow the accused to know what it is they must meet in respect of this aspect of the case. And while it may be a little confusing at first, ultimately, I can see no difficulty in defining the characteristics of those persons by reference to their interest in overthrowing the government by force or violence when it is also alleged that the accused agreed and intended to engage in conduct (i.e. identifying and engaging with such persons) with the intention of the achieving the same objective.

75 Thirdly, however, I do accept that the words "engaging with" such persons are too vague and imprecise, and admit of too many instances of behaviour, to amount to an adequate description of intended conduct, whether considered alone or in combination with the word "identifying". In the course of submissions, it was said on behalf of the Director variously that "engaging with" means "engaging in conduct with", "talking to", "getting to know", "finding out whether they want to do stuff" and "then hopefully you do stuff with them". These descriptions are hardly illuminating. Instead, they illustrate the unacceptable breadth of the term as an aspect of the particulars. Even when considered with the alleged objective in mind, I cannot see how such a broad concept, and one that appears, at least at one end of the spectrum, to be wholly remote from any realistic potential connection with that objective, can amount to an adequate particular of the intended conduct in the criminal charge at hand.

76 Fourthly, paragraph (b), as currently drafted, is also unsatisfactory, as its meaning is unclear. It should not be necessary to rely on the Director's interpretation to make sense of the particular. And, in any event, even with that assistance, the use of the words "actions" and "activities" in paragraphs (a) and (b) respectively is at least problematic, since they, like "engaging with", tend to embrace too broad a range of behaviour.

77 All of that said, and as I have already intimated, some aspects of both paragraphs might be retained and rearranged to a better use. For example, while I would wish to hear further argument on the matter before deciding, I think that to encourage others to engage in certain actions, or for the accused themselves to engage in actions, with the sole intended objective in mind, may be a specific enough allegation of conduct to amount to adequate particularization in this case.

78 Next, I turn to the more difficult question of whether it can be said that paragraphs (a) and (b) allege any realistic potential connection between the alleged conduct and its intended objective.

79 While the definition of "engage in a hostile activity" in s 117.1(1) does not expressly speak of any such connection, I have ruled previously that that is how the provision must be construed. In so doing, I rejected the Director's submission that any intended conduct, whatever its nature, will suffice as conduct for the purposes of the definition, even if it has (or would have) no tangible effect in bringing about any objective listed in the definition, provided it is intended to be engaged in with the intention of achieving one or more of those objectives. As I said:[19]

In my view, there must be some realistic potential connection between the intended conduct and the accompanying intended objective or objectives. Thus, to take an (extreme) example mentioned in argument, blowing a kiss, even if performed with the intention of achieving an objective falling within the definition of "engage in a hostile activity" - for example, the overthrow, by force or violence, of the government of the Philippines - could not sensibly be said to suffice. On the other hand, threatening the public with violence or detonating a bomb in a public place surely would suffice, if any such conduct were to be engaged in with the intention of achieving, say, the objective in paragraph (c) of the definition - namely, intimidating the public or a section of the public of the Philippines.

80 In the course of argument prior to the present ruling, Mr Maidment indicated that he understood that the test I laid down was purely subjective. Put another way, he thought that, if, by performing (or agreeing and intending to perform) the conduct alleged, the accused intended to achieve the objective, there would be a sufficient connection, no matter how remote that conduct might be from the objective. But that is not what I meant. Accordingly, I think it is appropriate that I attempt to explain my thinking a little further.

81 Instead, by using the words "some realistic potential connection", I meant that there must be some measure, other than intention itself, of whether the intended conduct could conceivably be connected with the intended objective. Thus my example in the ruling: that merely blowing a kiss, without more, could not be conduct that was realistically potentially connected with the overthrow of the government, by force or violence, even if the kiss was blown with the intention of achieving that very objective. It is hard to believe that the legislature would have intended such behaviour to be criminalized, let alone subject to a maximum penalty of life imprisonment. It is no answer to say that it would be a very low level example of the offence.

82 But, of course, if in truth the kiss was intended to be a disguised signal to another to detonate a bomb at a government building, then there would be a realistic potential connection between such intended conduct and the intended objective of overthrowing the government, by force or violence. And the necessary connection still would be there even if, in reality, the detonation was in fact impossible because of, for example, a fault in the wiring or some such, or the accused arrived at the appointed place at the wrong time. The offence would still be made out because, on these hypotheses, the intention was to do something that, had things gone to plan, plainly would have had a realistic potential connection with the prohibited objective. The mere kiss example, on the other hand, involved an intention to engage in conduct that, on no sensible view of the world, could have any connection to the prohibited objective, even though the prohibited objective was, against all common sense, actually intended.

83 I return now to the particulars in the present case. Merely identifying persons with the characteristics listed in paragraph (a) does not strike me as conduct that could have any realistic potential connection with achieving the intended objective of overthrowing the government, by force or violence. While the persons to be identified are of that mind, just identifying them could not conceivably promote or be connected with the achievement of the prohibited objective, not even in the slightest way. Rather, such identification appears more happily to fit as a potential precursor to conduct more closely connected with the prohibited objective, such as encouraging such persons to engage in actions directed at achieving the intended objective. But that is not what particular (a) alleges.

84 In so far as "engaging with" such persons might extend, to use Mr Maidment's turn of phrase, to "[doing] stuff with them", and assuming "stuff" means actions directed at overthrowing the government by force or violence, then, in my view, that form of "engaging with" would be realistically potentially connected with the intended objective. But, as I have said, the difficulty is that "engaging with" is such a broad and imprecise concept that it includes many other instances of conduct that could have no such realistic potential connection with the alleged objective.

85 On the other hand, adopting the Director's interpretation of paragraph (b), "encouraging" others to pursue, or the accused themselves pursuing, "activities directed at achieving" the single intended objective alleged, seems to me to allege a sufficient connection between each of those forms of conduct and the intended objective. Again, however, the difficulty is that paragraph (b), in its current form, does not put the allegations as clearly as that, which is unsatisfactory.

87 In one sense, it is impossible to address this question in light of my view that, in their current form, both paragraphs (a) and (b) are inadequate for other reasons. It might also be thought to be pointless, because, even if there were some way of addressing the question based on otherwise faulty particulars, the corollary of the latter view is that, subject to any interlocutory appeal that may be taken (by any of the parties), the Director must furnish new particulars anyway. That said, and while I am reluctant to proffer a view on what might be permissible if new particulars were provided when, ex hypothesi, I do not know what form they might take, I am prepared to make the following remarks.

88 First, in so far as it was suggested by the accused that, by describing in paragraph (a) three categories of persons who might be identified and engaged with - those of the Islamic faith (1) involved in, (2) willing to carry out or (3) willing to facilitate actions - the rule against duplicity is breached, I do not agree. Nor would a verdict be uncertain based on only those possible distinctions. All three categories of person are sufficiently similar properly to be a component of the one agreement or offence.

89 Secondly, however, in so far as there might be new particulars alleging arguably disparate forms of conduct - such as, say, (1) identifying and encouraging one category of persons (such as those in paragraph (a)) to engage in certain actions, (2) identifying and encouraging others to do the same and (3) the accused doing the same themselves - all with the intention of achieving the same objective, whether there was duplicity or a risk of uncertain verdicts, or not, may depend very much on the precise structure and terms of the particulars. It might be that identifying and encouraging two different categories of persons could sit together happily in the one agreement or charge, whereas 'going it alone' might require separate treatment; or it might be that all three could sit together. I would prefer to deal with these possible issues only if and when they arise, rather than in the abstract. Of course, if the new particulars did turn out to suffer from duplicity or the risk of uncertain verdicts, other simple remedies would be available, such as amending the indictment, election by the Director, or judicial directions that have the same effect.

90 Thus, for the reasons I have given, I rule that the particulars in issue are inadequate.

91 As I have indicated, however, I consider that, with some relatively simple changes, it may well be that those particulars could be rendered adequate. It is, of course, a matter for the Director - not this Court - as to whether new or amended particulars might be furnished and, if so, what form they might take. However, given all that I have heard, it seems plain enough that it might be worth at least one more try.

92 I shall hear counsel on the appropriate orders or directions, if any, that might be made in view of this ruling and these reasons.

___________________________________

[1] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489. See also, e.g., R v Caldwell [2009] VSCA 41; (2009) 22 VR 93 at 97[51] (per Kellam JA) and 99[59] (per Weinberg JA) (with both of whom Dodds-Streeton JA agreed).

[2] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725.

[3] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725.

[4] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725, esp. at [67], [70]-[74] & [133], and generally at [49]-[133] (Ruling 3).

[5] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at [199]- [203] ('Ruling' 11).

[6] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725' at [43]-[48] ('Ruling' 2).

[7] Amended Summary of Prosecution Opening (18 December 2017) at [1A], [3A], [4] & [5].

[8] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at [22]- [42].

[9] See Submissions [on behalf of Mr Dacre] in relation to second indictment (29 January 2018) at [10]-[17].

[10] See Prosecution response to submissions regarding the indictment (30 January 2018) at [5]-[21].

[11] See Submissions [on behalf of Mr Dacre] in relation to second indictment (29 January 2018) at [18]-[29].

[12] See Prosecution response to submissions regarding the indictment (30 January 2018) at [22]-[31].

[13] This submission was made in reliance on my earlier ruling in The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at [164]- [165].

[14] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at, e.g., [162]-[163] & [166].

[15] Submissions [on behalf of Mr Dacre] in relation to second indictment (29 January 2018) at [30]-[36].

[16] See the Prosecution response to submissions regarding the indictment (30 January 2018) at [32]-[38].

[17] See, e.g., the cases referred to in The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at, e.g., [108]-[113].

[18] See The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at [171]- [186] (Ruling 6).

[19] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at [163].