The Queen v Cerantonio & Ors

1 On 19 February 2018, the Commonwealth Director of Public Prosecutions filed over an indictment[1] charging the six accused jointly with an offence against s 119.4(1) of the Criminal Code (Cth) ("the Code"). This is the third indictment filed in this matter.

2 In substance, it is alleged that the accused agreed to engage, and did engage, in conduct - including 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.

3 As in my rulings concerning the two previous indictments, the principal question at issue in this ruling concerns whether the accused have been given adequate particulars of the conduct component of the alleged agreed and intended hostile activity in the Philippines. A related issue is whether the same particulars render the charge duplex.

4 Last Friday 23 February 2018, I indicated to the parties that I had concluded that the particulars are adequate and that they do not render the charge duplex. I gave detailed reasons at that time but deferred until today the giving of formal rulings and the publication of my finalized reasons.

5 In order to understand the background to this matter, these reasons should be read together with my reasons for rulings concerning the two previous indictments filed.[2]

6 The two key parts of this third indictment, the first part of which is the same as the previous indictment, read as follows:

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).

Encouraging acts of and/or participating in acts with persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the Southern Philippines.

7 The accused's objections concern the second of those paragraphs, which represents an attempt to particularize what is alleged to be the conduct the accused agreed and intended to engage in once in the Philippines.

8 I turn first to the accused's principal arguments concerning inadequacy. It is submitted that those particulars fail to identify in any adequate way the alleged "acts" directed at the prohibited objective that the accused agreed and intended to encourage or participate in. The accused also submit that, because of that failure, it is impossible to determine whether there might be a realistic potential connection between the conduct and the objective.

9 Albeit with some hesitation, I have come to the view that, while it would be preferable if the alleged agreed and intended conduct could be and were more precisely identified,[3] the particulars provided do adequately apprise the accused, the Court and a potential jury of the alleged factual foundation of this aspect of the charge. Further, I consider that questions of the admissibility of evidence and, if there were to be a finding of guilt, sentencing facts could be determined adequately.

10 In summary, while I accept that the particulars fail to identify a more discrete act or acts of the type often found in conventional offences or, for that matter, in some of the preparatory terrorism cases - such as planting or detonating a bomb or storming a military base and killing others[4] - I do not consider that that failure is unfair to the accused or that a similar level of precision is necessary in the present case. Rather, in my view, the particulars of the alleged agreed and intended conduct, particularly when combined with the alleged single agreed and intended objective of that conduct, give reasonable information as to the nature and foundation of the charge.

11 In essence, by reason of the two paragraphs extracted earlier, when read with the rest of the indictment, the accused are informed that it is alleged that they agreed and intended to encourage the acts of, and/or to participate in acts with, persons of the same faith who themselves were engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the Southern Philippines; and that they (the accused) agreed and intended to engage in that conduct with the intention of achieving the objective of the overthrow by force or violence of the government of the Southern Philippines. While that is a mouthful, it is comprehensible, meaningfully informative and sufficiently precise.

12 In my view, the particulars are meaningfully informative and sufficiently precise because the range of acts embraced by the words in the impugned paragraph of the particulars is identified and tends to be confined, in several ways.

a) First, by confining the intended objective of the conduct to a single common objective, the range of acts embraced by the impugned particulars is necessarily confined as well.

b) Secondly, that the persons whose acts are to be encouraged, or participated with, are those "of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the Southern Philippines", also limits the range of acts embraced by the particulars. Those persons are, in essence, of the same mind as the accused, at least in so far as it is alleged that the accused also intended to achieve the objective of "the overthrow by force or violence of the government of the Southern Philippines".

c) Thirdly, the acts "engaged in [etc]" by those persons are directed at achieving the overthrow of the government "by force or violence". Thus, the acts engaged in (etc) themselves must be acts of force or violence or have some connection with conduct involving force or violence, which is yet another limiting factor.

d) Fourthly, while the potential forms of encouragement and participation are not particularized, to encourage the acts of the persons nominated, or to participate in those acts with them, is relatively specific conduct.

13 Next, while I accept that none of the foregoing denies the fact that various different "acts" still might be embraced by the particulars, I do not consider that to be fatal. There are several reasons for that conclusion:

a) First, it strikes me that the gravamen of "engaging in a hostile activity" is the objective that is intended to be achieved by engaging in the conduct. Merely to engage in conduct (whether intended or actual) is not caught by the definition in s 117.1(1). Rather, that conduct is only caught by the provisions, and defined, by reference to its intended objective. Now, of course, that does not mean that the agreed and intended conduct directed at that objective need not be identified adequately. But it does sharpen the focus on the objective, rather than on the conduct.

b) Secondly, the objective alleged here - the overthrow of a government by force or violence - tends to admit more readily of an ongoing process, rather than the discrete pieces of conduct or results of the type that can be found in other prohibited objectives listed in the definition of "engage in a hostile activity" in s 117.1(1). That suggests to me that the conduct which, it is alleged, was agreed and intended to be engaged in with the intention of achieving that particular objective may itself admit of an ongoing process and, in consequence, perhaps also leaves more room for different pieces of conduct to be embraced by the one agreement.

c) Thirdly, the alleged agreed and intended conduct to be engaged in is, at least in this case, well into the future. That in turn tends to suggest an element of contingent thinking. I think s 119.4(1) necessarily embraces agreements that involve a combination of future/contingent thinking. Earlier, I ruled that, while there are some similarities between the preparatory terrorism offences and the preparatory offence charged in this case, I was not persuaded that, in enacting s 119.4(1), "the Parliament intended to create [an offence] where an offender has not decided precisely what he or she intends to do",[5] in the same way that has been held to be so in respect of the preparatory terrorism offence provisions.[6] While I maintain that view, that does not mean that the nature of the alleged agreement that might be caught by s 119.4(1) in a given case - including its future and possibly contingent nature - is irrelevant to a consideration of the adequacy of the particulars in such a case. Here, it seems to me impossible to ignore the reality that the allegations include future intended conduct that necessarily would involve contingent thinking, which in turn allows for the possibility of a range of different actions falling within an agreement, and also suggests that particularization along the same lines would be adequate.

d) Fourthly, that does not mean that there is no restriction on the range of acts or contingencies that might be capable of falling within an agreement. Indeed, the alleged agreement must be confined to some degree to be meaningful and to amount to an allegation that can be particularized and defended. But, in this case, I consider that the particulars of the agreed and intended conduct are sufficiently precise and confined so as properly to allege an offence against s 119.4(1) and so as adequately to inform the accused of the case against them.

14 Finally, contrary to the accused's submission, I think that the particulars allege agreed and intended conduct capable of having a realistic potential connection with the alleged objective of that conduct. To encourage the acts of others engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government, or to participate with such persons in such acts, strikes me as behaviour necessarily connected with achieving the objective of the overthrow of the government by force or violence.

15 Of course, it remains to be seen whether a jury will be prepared to find the necessary agreement or intention, and, if so, the necessary connection between the alleged intended conduct and objective, in the absence of evidence of an agreement or intention to encourage, or participate in, anything more specific than has been alleged.

16 But, as I say, I think that the particulars are adequate and that they disclose the necessary potential connection.

18 The accused's argument here focused on what were said to be the quite different and distinct allegations of "encouraging acts of persons" on the one hand and "participating in acts with those persons" on the other. While the accused conceded that participating in such acts might also encourage the acts of others, they submitted that it could not be said that encouraging others would amount to participation in such acts. In their submission, any verdict of guilty based on the current form of the particulars would be uncertain.

19 In my view, the particulars in issue do not render the charge duplex. It is commonplace in the criminal law to allege, in the one charge, that an accused committed an offence as a principal or by way of one or more forms of complicity with another or others. It is not suggested in such cases that the charge is duplex or that any guilty verdict is meaningfully uncertain. Indeed, it is routinely left to judges on sentence in such cases to make findings of fact, consistent with the jury's verdict and the evidence, as to the form of liability to be attributed to the accused.

20 Here, the two concepts alleged - "encouraging acts of" and "participating in acts with" - both sound rather like forms of complicity. "Encouragement" sounds like a form of aiding and abetting. "Participation" sounds like a form of joint enterprise. As the accused conceded, there may be some overlap between these two concepts, as of course there often is in the area of complicity.

21 If it is permissible to prosecute an individual based on his being liable as a principal or by way of one or more forms of complicity without fear of breaching the rule against duplicity or risking an uncertain verdict, then I think it is safe to say that the particulars here do not breach that rule or risk an uncertain verdict. Indeed, I think that, like different modes of complicity, the two concepts alleged here may be classified merely as different ways of participating in the same offence (or conduct). I do not think that these concepts are so different as to render the charge duplex or, at least at this stage, as to require an election by the Director.

22 Duplicity and uncertainty (or latent duplicity) are related but nevertheless different concepts. A charge may not be duplex but a guilty verdict may still be uncertain, depending upon the evidence, the way in which the prosecution case is put and/or the directions given to the jury. Thus, I do not rule out the possibility that, if the matter went to trial on the indictment in its current form, it may be that, depending on how the evidence fell and/or how the matter had been put by the Director, it would become necessary to request an election in this case. It may also become necessary to give directions about the need for unanimity among the jury with respect to a particular alternative. But these matters may be considered at a later time.

23 For now, I can say that I am satisfied that the indictment, as particularized with respect to the intended conduct in the Philippines, is not duplex.

a) that the particulars of the agreed and intended conduct in the Philippines are adequate;

b) that those particulars allege agreed and intended conduct capable of having a realistic potential connection with the alleged objective of that conduct; and

c) that those particulars do not render the charge duplex.

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

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[1] The indictment is dated 12 February 2018.

[2] See The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725; and The Queen v Cerantonio & Ors (Ruling 13) [2018] VSC 35.

[3] I note that the Director has indicated that the proposed evidence will not sustain any more precise identification of the alleged agreed and intended conduct in the Philippines. In the words of Mr Maidment QC, who appears with Ms Sharp and Ms Peek for the Director, to go any further would be to "speculate" or to "make things up".

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

[5] Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 at 318[66] (per Spigelman CJ, with whom McClellan CJ at CL and Sully J agreed).

[6] The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at, e.g., [125]-[128].