The Queen v Mohamed

1 The accused, Amin Mohamed, is charged with three charges of doing an act preparatory to the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ('the Act'). Among other things, section 6 of the Act prohibits the entering of a foreign State with intent to engage in a hostile activity in that state. These preparatory offences are charged under s 7 of the Act.

2 In summary, the Crown case is that in mid-late September 2013 the accused applied for a passport (Charge 1), booked plane tickets from Australia to Turkey (Charge 2) and obtained contact details for a man who was to act as his guide from Turkey into Syria (Charge 3). Each of these acts is alleged to have been preparatory to the accused entering Syria with intent to engage in hostile activities in that State.

3 The trial of the accused will proceed, before me, on or about 13 July 2015.

4 At this preliminary stage and with the concurrence of the prosecutor the accused applies for me to determine three issues of law pursuant to s 199 of the Criminal Procedure Act 2009 (Vic). Those questions, which are set out at [13], below, concern the nature of the intention required to be proved at the time of the preparatory act, the scope of the expression 'hostile activities' and the character - definitional or exceptional - of a provision of the Act concerning liability, under the preparatory offence, for the provision of humanitarian aid.

The Crimes (Foreign Incursions and Recruitments) Act 1978 (Cth)

5 Before turning to these specific questions it is appropriate to consider the legislative history of the provisions I must interpret. The chief purpose of the Act was to respond to a perceived need for law reform concerning the related issues of incursions into foreign countries by Australian citizens[1] and the recruitment, in Australia, of persons to serve in armed forces in foreign countries.[2] As I have said, s 6 of the Act as passed dealt, broadly, with incursions into foreign countries and s 7 with preparations for such incursions.

6 At the time of the alleged offending in this case the relevant portions of s 6 of the Act were as follows:

1. Incursions into foreign States with intention of engaging in hostile activities

(a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or

(b) engage in a hostile activity in a foreign State.

[...]

(3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved):

(a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State;

(aa) engaging in armed hostilities in the foreign State;

(b) causing by force or violence the public in the foreign State to be in fear of suffering death or personal injury;

(c) causing the death of, or bodily injury to, a person who:

(i) is the head of state of the foreign State; or

(ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or

(d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State.

1. Preparations for incursions into foreign States for purpose of engaging in hostile activities

(1) A person shall not, whether within or outside Australia:

(a) do any act preparatory to the commission of an offence against section 6, whether by that person or by another

person;

[...]

(1B) A person shall not be taken to have committed an offence against this section merely because of doing an act by way of, or for the purposes of, the provision of aid of a humanitarian nature.

[...]

8 I will set out additional subsections as necessary.

9 Two significant amendments to the Act were enacted between 1978 and September 2013.[3] In 1987, Parliament passed the Crimes Legislation Amendment Act 1987 ('the 1987 Amending Act'). The purpose of that Act was to remedy a number of deficiencies in the Act, including the limited scope of the terms 'government' and 'country', as then defined, and the lack of clarity regarding the provision of humanitarian aid by Australians.[4] To this latter end Parliament inserted sub-s 7(1B) into the Act, which is the subject of the third question raised by the accused.

10 In 2001, Parliament passed the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 ('the 2001 Amending Act'). These amendments were designed to 'harmonise' the Act with the general principles of criminal responsibility which were by that time set out in Chapter 2 of the Second Schedule to the Criminal Code Act 1995 (Cth) ('the Code').[5] These provisions have applied to all Commonwealth offences since 15 December 2001.[6]

11 The 2001 Amending Act pursued the goal of harmonization in two ways. First, it inserted s 3A into the Act, which provides that 'Chapter 2 of the Criminal Code applies to all offences against this Act.' Second, it amended many of the Act's offence-creating and related provisions to bring them into line with Code conventions. Sections 6 and 7 of the Act as they appeared in 2013 were, to varying degrees, the result of these amendments.

12 I note for completeness that in 2014 the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) repealed the Act and re-enacted its provisions in Part 5.5 of the Code. Some of those provisions, including provisions in issue on this application, were re-enacted in an amended form. It is common ground between the parties that this application would take on a notably different flavor under that superseding legislation.

13 As I have earlier indicated the accused has applied for the determination of three issues before commencing the trial and filed a written outline of submissions as to how they should be determined. The issues are:

(1) What is the nature of the intention required to be proved by the prosecution at the time of the doing of the act in preparation?

(2) What is the meaning and scope of the expressions '...to engage in a hostile activity in that foreign state' in particular '...engaging in armed hostilities' as those words appear in s 6(1)(a) and s 6(3)(aa) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)?

(3) Are the terms of s 7(1B) an 'exception, exemption, excuse, qualification or justification' within the meaning of s 13.3(3) of the Criminal Code 1995 (Cth) such as to require the accused to discharge an evidential burden?

14 The Director of Public Prosecutions (Cth) likewise filed written submissions with the result that there were issues to be determined by me on each of the three questions.

15 Section 199 of the Criminal Procedure Act 2009 (Vic) permits the pre-trial determination of issues 'with respect' to a trial:

(1) At any time before trial, the court may hear and decide any issue with respect to the trial that the court considers appropriate, including -

(a) an issue of law or procedure that arises or is anticipated to arise in the trial, including an issue as to admissibility of evidence;

(b) an issue of fact, or mixed law and fact, that may be determined lawfully by a judge alone without a jury, including an issue as to admissibility of evidence;

(c) an application for an order that may be made in relation to the trial under this or any other Act or at common law, including an application to quash a charge in the indictment;

(d) any other issue with respect to the trial.

16 As a preliminary step to answering each of the questions raised on behalf of the accused, I will deal with the issue of whether, and if so to what extent, I may permissibly answer that question pursuant to s 199. It will be seen, broadly, that I have taken the view that ruling on questions 1 and 3 is appropriate and may facilitate the conduct of the trial, though the practical effect may be limited. Although I have also ruled on question 2, that ruling is confined to matters that are anticipated to arise on this trial - for reasons given below, I consider that it would be inappropriate to determine that question in the abstract. Finally, the issues raised have been debated well in advance of the trial and as a matter of case management this is a practice I encourage.

Question 1 - What is the nature of the intention required to be proved by the prosecution at the time of the doing of the act in preparation?

17 The accused's primary submission is that because s 7(1)(a) consists of only one physical element of conduct, the relevant fault element to be proved by the prosecution is intention; that is, the accused must not only intend to do an act that is preparatory to the commission of an offence under s 6, but he must intend the act to be so. The Crown, however, submitted that s 7(1)(a) consists of two physical elements. First, that the accused 'do an act' which the senior prosecutor Ms Abraham identified as a physical element of conduct. Second, that that conduct must be preparatory to the commission of an offence under s 6, which she identified as an element of circumstance. On that analysis it follows from the general principles to which I will shortly turn that the respective fault elements are intention and recklessness.

18 Arguably the difference is moot because in the manner this case is to be conducted, logically, no allegation of recklessness is, or could be, relied on as part of the prosecution case. I will deal below with whether, in those circumstances, it remains appropriate for me to resolve the issue under s 199 of the Criminal Procedure Act.

19 In order for a person to be found guilty of a Commonwealth offence the prosecution must prove the existence of each of the physical elements of the offence and, in respect of each physical element for which a fault element is required, one of the fault elements for that physical element.[7] If an offence has more than one physical element, different fault elements may apply to each physical element.[8] Alternatively, Parliament may specify that a physical element is one of strict or absolute liability, that is, an element to which no fault element applies. [9]

20 The physical elements of an offence may be conduct, a result of conduct and a circumstance in which conduct, or a result of conduct occurs.[10] Conduct is defined to mean an act, an omission to perform an act or a state of affairs.[11] Circumstance and result are undefined.

21 The fault elements for an offence may be intention, knowledge, recklessness or negligence.[12] A person has intention with respect to conduct if he or she means to engage in that conduct;[13] a person has intention with respect to a circumstance if he or she believes that it exists or will exist.[14] A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and,

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.[15]

If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.[16]

22 If Parliament does not specify which, if any, fault element is to apply to a physical element, Chapter 2 makes provision for default fault elements. Intention is the default fault element for the physical element of conduct.[17] Recklessness is the default fault element for the physical elements of circumstance and result.[18]

23 Section 7(1)(a) does not specify the fault elements which apply to the physical element(s) of the offence; nor does it specify that no fault element is to apply to that element, or those elements. It follows that the question that has occupied the parties in their submissions before me has been this: what is/are the physical element(s) of the preparatory offence?

24 The accused submitted that it would be artificial to disaggregate the expression 'an act preparatory' into one physical element of conduct (the doing of any act) and one of circumstance (the fact that the act is preparatory); the better reading is that the word 'preparatory' refers to the essential nature or character of the proscribed act. Further, the accused argued that if Parliament had intended the offence to consist of more than one physical element, it would have said so.

25 The accused referred to extrinsic materials to substantiate this latter claim. These included the second reading speech to the Act, as passed, the explanatory memorandum to the 2001 Amending Act and two cases, R v Saengsai-Or[19] and Re Pong Su (No 10),[20] which dealt with these extrinsic materials. I discuss these materials in detail, below. The accused also referred to an extract from Watson and Watson's Federal Offences,[21] which, in turn, extracted from a document entitled, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers ('The Commonwealth Framing Guide'). That latter document (dated February 2004) was developed by the Criminal Justice Division of the Attorney General's Department to assist officers in Australian government departments to frame criminal offences, civil penalties, and enforcement provisions that are intended to become part of Commonwealth law. Significantly, the extract from the guide stated:

Principles: Criminal offences should be drafted so that each physical element of the offence is in a separate paragraph. In particular, conduct, circumstances and results constituting the offence should each be set out in separate paragraphs.[22]

It will generally be easier to identify the relevant fault elements applicable to an offence if the different physical elements are separated into paragraphs.[23]

26 It followed, the accused submitted, that the failure to separate the act and the preparatory nature of the act into two separate paragraphs was an indication that Parliament did not intend the offence to consist of two physical elements.

27 As I have said, the Crown submitted the offence consists of one physical element of conduct (an act) and one physical element of circumstance (the fact that that acts is preparatory to the commission of an offence under s 6 of the Act). In its written submissions, the Crown did not advance arguments in support of this submission.

28 The Crown argued that it was possible to imagine a scenario in which an accused did acts which were preparatory to another person entering a foreign state with intent to engage in hostile activities. It was for that reason, the Crown submitted, that it made sense to impose two physical elements because it is conceivable that the principal offender could be reckless as to the intentions of the third party.

29 The Crown also submitted that The Commonwealth Framing Guide was of no assistance because it post-dated the passage and relevant amendments to s 7(1)(a) of the Act. It followed, they argued, that at best the guide was an example of something the drafters could have done but not something they should or would have done, had they intended the offence to contain two physical elements. The Crown also sought to distinguish Saengsai-Or and Pong Su.

30 Ultimately, the Crown's primary submission was that in construing the provision it was necessary to 'go back to basics', look first to the text of s 7(1)(a) of the Act and then to the terms of Chapter 2 of the Code.

31 The Crown case is that the accused intended to do three acts constituting the three charges in the indictment and intended those acts to be preparatory to the commission of an offence under s 6 of the Act. As I have already noted, despite its submissions on the first question the Crown does not in fact allege, in the alternative, that the accused was reckless as to the preparatory quality of the acts. It is logically difficult to see how they could do so. Of course, if recklessness is a fault element for a physical element, proof of intention will satisfy that fault element.

32 In at least one sense then the question of the appropriate fault element does not 'arise' in this case because, whether one accepts the accused's or the Crown's analysis of s 7(1)(a), the jury will ultimately be instructed that the case is put in the way I have described and that proof of intention will satisfy the fault elements of the preparatory offence, whatever they may be.

33 However under the Victorian Jury Directions Act 2013, a trial Judge has obligations when directing the jury which include an obligation to explain 'so much of the law as is necessary for the jury to determine the issues in the trial.'[24] In my view, any issue concerning the content of a direction under this section would be an issue of law that 'arises' or is 'anticipated to arise' in the trial, for the purposes of s 199 of the Criminal Procedure Act.

34 If the preparatory offence has two fault elements, and the second of those elements is recklessness as the Crown have argued, in my view the Jury Directions Act would require me to direct the jury accordingly. That would be a prerequisite step to then instructing them as to how those elements might be satisfied by the prosecution. In a murder trial, for example, juries are routinely told that the fourth element of the crime of murder is the requirement that prosecution prove an absence of a lawful justification or excuse beyond reasonable doubt, notwithstanding that in many cases no issue of self-defence raised by the accused.

35 On the other hand, if the offence has only one fault element and the only means by which the prosecution can establish the offence is by proof of intention both as to the doing of the act and its preparatory purpose, then likewise the jury need to be directed in accordance with that conclusion.

36 It follows that in my view the first question is suitable for preliminary determination.

37 I agree that the appropriate starting point for analysis of s 7(1)(a) is with the text of that provision. In my view, the word 'preparatory' is better understood as a reference to the nature or character of the proscribed act than a circumstance attending the occurrence of that act; that is, I consider the preparatory nature of the act to be an 'integral part' of the conduct proscribed by s 7(1)(a).

38 Distinctions of this kind were first discussed in pre-Code cases such as Vallance v The Queen,[25] The Queen v Falconer[26] and He Kaw Teh v The Queen.[27] There is a clear line through these earlier common law cases to analysis of the Code provisions: as Justice Bell observed in Sangsai-Or, the Code's physical elements correspond with the 'external elements necessary to form a crime' which were identified by Brennan J in He Kaw Teh.[28] There, his Honour set those elements out in these terms:

[...] the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These elements - conduct, circumstances and results - are what Dixon CJ in Vallance v The Queen called the external elements necessary to form the crime.[29]

39 He Kaw Teh concerned the construction of s 233B(1) of the Customs Act 1901 (Cth), which created the offence of importing into Australia any prohibited imports to which the section applied. The issue on appeal in that case called for discussion of the nature of the fault elements (then, 'mental elements' or 'mens rea') which applied to the 'external elements' of the offence. Brennan J's view was that, ordinarily, the distinction between an act and the circumstances which attended its occurrence would be of no import.[30] The difficult case, however, was one in which there was a legislative intention (as there is, presumptively, in s 5.6 of the Code) to apply a mental element to the circumstances of the offending that differed from the mental element applicable to the act itself.[31] In such a case,

...it is necessary to decide what circumstances are defined to be an integral part of the act [...] and what circumstances are defined to be merely attendant [...] One of the intractable difficulties in the process of identifying the particular category of mens rea that applies to the respective external elements of an offence is the identification of the prohibited act on the one hand and the circumstances attendant on the doing of that act on the other (emphasis added).[32]

Importing simpliciter is not an act nor is it defined to be a prohibited act in par. (b). Importing narcotic goods is an act; it is the act referred to in par. (b). The character of the act involved in the offence depends on the nature of the object imported (emphasis added).[33]

41 In my view, Brennan J's observations apply equally to the identification of physical elements under the Code. In a case such as this, a trial Judge must ask whether the relevant word or phrase, read naturally, describes the essential nature or character of the act. If the answer is that it does and the text, context and purpose of the Act evince no Parliamentary intention to the contrary, those matters will be better understood as an integral part of the act, rather than circumstances attendant upon on the doing of the act. This is a task of some complexity. As Bell J noted in Sangsai-Or, however, it was against the background of the common law's 'intractable difficulty' that the drafters of the Code chose note to define the term 'act'.[34]

42 Two recent cases adopt a similar approach to the construction of Commonwealth offences to which the Code now applies. The first, Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority,[35] concerned the proper construction of cl 7(1)(a) of Sch 2 to the Broadcasting Services Act 1992 (Cth), which made it an offence for a licensee to 'broadcast a tobacco advertisement' within the meaning of Tobacco Advertising Prohibition Act 1992 (Cth). Channel Seven was charged with contravention of the provision.

43 Before the Full Court of the Federal Court of Australia, Channel Seven argued that the ACMA had erred when it found that it had intended to broadcast material which ACMA had determined to be a 'tobacco advertisement', but not asked whether it intended to broadcast material of that kind or was reckless as to whether it did so. Channel Seven submitted that the phrase 'broadcast a tobacco advertisement' consisted of:

(a) One physical element of conduct (broadcasting material) and one physical element of circumstance (that the material met the definition of a tobacco advertisement). On this analysis it followed from the Code provisions that the relevant fault elements were intention and recklessness, respectively; or

(b) One, complex, physical element of conduct (broadcasting a tobacco advertisement). On this analysis, it followed that the relevant intention extended beyond merely broadcasting the material and to the character of what was broadcast.

44 By majority, the Court held that the latter approach was correct. Significantly, this was because the majority considered the phrase 'a tobacco advertisement', as it appeared in cl 7, to be best understood as a reference to 'the character or nature of the material broadcast.'[36] In their view, '"a circumstance in which conduct, or a result of conduct, occurs" is simply not apt to be applied to broadcasting a tobacco advertisement;'[37] the 'nature of the tobacco advertisement does not extend beyond the physical element of broadcasting that material.'[38]

45 This final observation distinguished the case from the earlier High Court decision in Li v Chief of Army.[39] Li, an army major, was charged with the offence of 'creating a disturbance' under s 33(b) of the Defence Force Discipline Act 1982 (Cth). The defence case before the relevant military tribunal was that Li had intended to do the acts which caused the disturbance, but had not intended to cause the disturbance. The tribunal instructed itself that the relevant fault element was that a person intended, merely, to do the acts. In the High Court, Li argued that this approach was erroneous because 'creating a disturbance' consisted, alternatively, of two physical elements of conduct (an act and a state of affairs) or one physical element of conduct (an act) and one physical element of result; on either view, he submitted, a fault element applied to the fact of the disturbance. Ultimately, the Court held that the better interpretation was the latter, because 'creates a disturbance' is 'naturally read as referring to the doing of an act which results in a disturbance.'[40]

46 I refer to this case because it is consistent with the approach to elemental analysis I have discussed[41] and an informative contrast with the present case. Like the majority in Channel Seven v ACMA, I do not consider the provision before me to read naturally in two parts. In my view, the word 'preparatory' in s 7 of the Act describes the essential nature or character of the proscribed act. Again, like the majority in Channel Seven v ACMA, I do not consider the 'preparatory' nature of an act to be easily characterised as a 'circumstance in which conduct, or a result of conduct, occurs.' In the absence of any intrinsic or grammatical indication to the contrary, the less natural reading would for these reasons be one that disaggregated the offence into the physical elements of act and circumstance.

47 I note that in s 119.4 of the Code, which superseded s 7 of the Act in 2014, Parliament has given such an indication;[42] but I am not interpreting that provision. As Gummow J observed in Interlego AG v Croner Trading Pty Ltd,[43] analysis of the terms of a superseding provision is 'a curious way of revealing parliamentary intention at the time of passing the earlier provision.'[44]

48 To the extent that there is any ambiguity to s 7(1)(a) I make the following, brief, observations of the extrinsic materials,[45] which I in general found to be intractably neutral or for other reasons unhelpful. First, I do not consider either interpretation to better serve the general policy purpose of the provision or the Act.[46] As I have said the purpose of the Act was, among other things, to deter incursions into foreign states by Australian citizens or ordinary residents. It does not, however, necessarily follow that the interpretation that would make proof of the offence less burdensome for the Crown is the better interpretation. Second, I have read the speech given by the Attorney-General on the Bill's second reading in 1977. It is unilluminating. Third, I consider the accused's reliance on Sangsai-Or and Pong Su as cases setting out an approach to materials extrinsic to the 2001 Amending Act to be complicated by the fact that the conclusions in those cases were,

in large part driven by the prior construction of the same offence by the High Court decision in He Kaw Teh, supra, and the absence of any reason to construe the provision differently merely by reason of the introduction in 1995 of the Criminal Code.[47]

49 This does not mean there is no work for those extrinsic materials to do. As I have said, the 2001 Amending Act harmonised the Act with the Code. Many subsections in ss 6 and 7 were amended to either 'clarify' fault elements which were not clear, or alter fault elements which were no longer considered 'appropriate' in light of the Code conventions. Mr O'Connell, for the accused, referred me to a number of relevant examples, including the substitution of the expression 'with the intention of' for the expression 'for the purpose of' in ss 6(3) and 7(1)(b)-(h).

50 In explaining these amendments, the Explanatory Memorandum to the 2001 Amending Act referred to item 21 of Schedule 5, which dealt with proposed amendments to s 256(3) of the Bankruptcy Act 1966 (Cth). The amendment to that section was in the terms discussed in the paragraph above. The explanation for the amendment was this:

1. [...] the phrase "for the purpose of" could be interpreted to refer to an additional fault element of intention attaching to the physical element of conduct or denote a physical element of result which would thereby attract the default fault element of recklessness.

1. It follows that the phrase "for the purposes of" has the potential to create significant confusion in interpreting offence-creating provisions to which the Criminal Code has been applied. If a physical element of result is intended to be part of the offence, then that should be described clearly: for example, the words "to achieve the result of" could be used in place of "for the purposes of" (emphasis added).[48]

51 Although this clause is concerned with the clarification of the physical element of result, there was no reason to distinguish between the need to clarify that physical element and the need to clarify the physical element of circumstance. Confusion as to either physical element could have unintended consequences for the applicable fault elements. Clause 92 is an indication that where Parliament was considering including a physical element of result, it considered that element should be stated in terms. It is reasonable, in my view, to extrapolate from this a similar view as to the physical element of circumstance.

52 Although the Crown is correct to note that The Commonwealth Framing Guide post-dates both the enactment and relevant amendments to the Act, the extrinsic materials to the 2001 Amending Act fall into a different category. In my opinion harmonisation changed the context within which s 7(1)(a) now falls to be interpreted. This is not the same as construing an earlier provision by reference to later one: 'it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole.'[49]

53 In my view this principle will apply with additional force to amending legislation of this kind. These were not piecemeal amendments. As Iain Leader-Elliot has observed:

When Chapter 2 was enacted it had the immediate consequence that the entirety of Commonwealth criminal law required overhaul, to ensure that it conformed to the Code conventions [...] The effects on the formulation of federal criminal law have been profound.[50]

54 Parliament shared this view of the role of the 2001 Amending Act.[51] The Explanatory Memorandum demonstrates that as Parliament undertook this process of overhaul it was alive to the need to state the physical elements of an offence with clarity - especially where they involved the physical elements of result or circumstance - because of the presumptive consequences for the fault elements. The fact that it did not do so where, by its own measure, it should have done, is one indication that it did not intend s 7(1)(a) to contain more than one fault element.

55 Finally, as I have noted, Ms Abraham urged that I not consider this issue in the context of this case only but more broadly. In her submission, recklessness as the fault element particularly catered for a circumstance where the accused was assisting someone else to do an act in preparation. It is enough for me to say that even in those circumstances I consider it makes perfect sense for the fault element to be intention rather than recklessness. If a person does an act such as those alleged in this case with the intention that another person will commit an offence under s 6 then the offence against s 7 is complete. It would not be necessary to prove that such other person actually committed an offence under s 6 but rather that the first person did the particular act intending it to be preparatory to the commission of such an offence.

56 Therefore, in my opinion s 7(1)(a) consists of only one physical element of conduct and therefore the relevant fault element is intention. As has been submitted on behalf of the accused, the prosecution must prove that he not only intended to do an act that happens to be preparatory to the commission of an offence under s 6, but must have intended the act to be so. The prosecution have made it clear that their case will be conducted on that basis. I will direct the jury accordingly at the conclusion of the trial.

Question 2 - What is the meaning and scope of the expressions '...to engage in hostile activity in that foreign state' in particular 'engaging in armed hostilities' as those words appear in s 6(1)(a) and s 6(3)(aa) of the Act?

57 The accused's submission is that 'engaging in hostile activity' and 'engaging in armed hostilities' should be construed narrowly and are expressions which describe engaging in combat and acts of actual violence. The Crown's contention on the meaning of either provision was, in my view, difficult to discern from its submissions. In large part this was because they submitted I ought not determine the scope of either expression. Instead, the most appropriate course would be to determine whether the limited kind of conduct alleged against the accused fell within those expressions. I will deal with more detailed submissions below.

58 It is unnecessary to determine the meaning of the expression 'engaging in a hostile activity in that foreign state' or whether that expression bears a meaning broader than that countenanced by s 6(3). This is because the Crown puts its case on the basis that the accused committed acts preparatory to entering Syria with intent to engage in armed hostilities and because 'engaging in armed hostilities' constitutes 'engaging in a hostile activity' for the purpose s 6(1).[52] In order to return a verdict of guilty to any of the charges, a jury would need to be satisfied that the accused did the preparatory acts with intent to engage in hostile activities in the foreign state. Although this would be explained to a jury, in the circumstances of this case that jury would be instructed that the real question was whether the accused had intended to engage in armed hostilities. It would be unnecessary to tell the jury any more than this about the meaning and scope of the expression 'engage in hostile activity.'

59 The second part of the second question concerns the scope of the expression 'engaging in armed hostilities.' I agree with the Crown that it would be inappropriate to determine the scope of that expression in an abstract way. At this early stage in the proceeding, the appropriate course is to determine only so much of the content of that expression as is necessary to conclude whether the conduct alleged by the Crown against the accused could fall within the ambit of s 6(3)(aa).

60 The Crown alleges the accused was preparing to enter Syria with the intent to engage in armed hostilities in that state. It is helpful, I think, to set out the passage from the Summary of Prosecution Opening that deals with the nature of the ongoing conflict in that state:

Syria is a foreign state. Around March and April 2011 widespread protests and demonstrations against government policies in Syria turned into an insurrection calling for the downfall of the government. The situation rapidly developed into an armed insurgency, supported by some other states, and with an increasingly Islamist tone to the opposition forces. Armed groups opposed to the government operating in Syrian include the Free Syrian Army, Jabhat Al-Nusra (JAN), and Islamic State of Iraq and Sham (ISIS). Thousands of citizens of other states have travelled to Syria to fight in hostilities there. The vast majority of these "foreign fighters" joined either JAN or ISIS.[53]

61 First, I accept, as the Crown submitted and the accused now concedes,[54] that s 6(3)(aa) is not limited to engagement in armed hostilities by, on behalf of, or against the regular armed forces of a nation-state or during a formal state of war. In my view, these are distinctions drawn by classical martial law[55] that have no bearing on the text of s 6(3)(aa) or its immediate statutory context. For the same reason, proof of the existence of 'armed hostilities' would not require the identification of discrete parties to a conflict, or that those parties be 'organised to a greater or lesser extent'. Those are threshold requirements employed by international humanitarian law to distinguish 'an armed conflict from banditry, unorganised and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.'[56] Extrinsic materials from 1977, which describe Parliament's intention to prohibit acts of terrorism, support the view that Parliament did not intend to draw cognate distinctions.[57]

62 Second, to engage in armed hostilities a person need not pursue any of the political objectives countenanced by ss 6(3)(a), (b), (c) or (d). The deficiency in the Act that the 1987 Amending Act sought to remedy by the insertion of s 6(3)(aa) was:

that mercenary acts as such [were] not proscribed unless they involve[d] acts done for specific purposes, those purposes generally relating to acts directed against the government of a foreign country.[58]

Although in practical terms armed hostilities will almost always have a goal or objective, those goals or objectives may be 'at large' for the purposes of s 6(3)(aa).

63 Third, the hostilities must involve armed force. This is an obvious but significant distinction between s 6(3)(aa) and ss 6(3)(a), (b), (c) or (d). Each of the subsections is an instance of 'hostile activity' for the purposes of s 6(1) but only s 6(3)(aa) contains the additional rider that the hostile activity involve arms. I say armed force deliberately. It would be absurd to read the words 'armed' and 'hostilities' disjunctively and, in my view, the arms must actually be involved in the hostilities. As a matter of common-sense, it seems to me that this could only be through the use, threatened use or demonstration of armed force.

64 The most difficult, and unresolved, question on this application is whether, in order to 'engage in armed hostilities', a person must engage in actual physical violence. The accused's submission, as I have said, is that the expression describes actual armed combat or fighting; anything less than actual physical violence will not suffice. To this end, Mr O'Connell referred to the terms of ss 7(1)(b)-(h) (and in particular ss 7(1)(b) and (c)), which he said were an indication of the kinds of conduct not covered by s 6 of the Act. Sections 7(1)(b) and (c) are as follows:

(1) A person shall not, whether within or outside Australia:

[...]

(b) accumulate, stockpile or otherwise keep arms, explosives, munitions, poisons or weapons with the intention of committing an offence against section 6, whether by that person or by another person;

(c) train or drill or participate in training or drilling, or be present at a meeting or assembly of persons with intent to train or drill or to participate in training or drilling, any other person in the use of arms or explosives, or the practice of military exercises, movements or evolutions, with the intention of preparing that other person to commit an offence against section 6;

65 There is force to the accused's submission that matters countenanced by s 7(1) could not, without more, amount to either hostile activities or armed hostilities. The Act distinguishes, clearly, between the offence of engaging in hostile activities (or entering a foreign state with intent to do so) and acts preparatory to the commission of such an offence. If the conduct countenanced by s 6 was so broad that it encompassed merely preparatory acts there would be no point to the distinction: there would be no need for s 7(1) at all.

66 This does not, however, resolve the issue of whether something more than mere preparation, but less than actual violence, might amount to engaging in armed hostilities. On that issue Mr O'Connell then referred to a number of the extrinsic materials, including the passage from the second reading speech to the 1987 Amending Act that I extracted, above, at [62]. I accept that the Attorney-General's use of the expression 'mercenary acts' tends to suggest (though not unequivocally) that Parliament was concerned with actual acts of violence. I am, however, unassisted by the accused's reference to materials extrinsic to the legislation which repealed the Act in 2014, for reasons I have discussed at [47], above.

67 The Crown submitted that this case, at this stage, did not call for the resolution of this question. With some hesitation I accept that submission. The case is put on the basis that accused did acts preparatory to entering Syria with the intention of participating in an armed insurgency. Specifically, the case is put on the basis that the accused intended 'to go over and fight', 'to go to the front line' or that he wanted 'to be a martyr.'[59] The Crown submitted, and I accept, that proof of any of those matters would constitute proof of an intention to engage in armed hostilities for the purpose of s 6(3)(aa), whatever conclusion is reached on this issue. Although, ultimately, it would be a matter for the jury, it seems to me that each of those allegations is an allegation that the accused intended to engage in conduct that involved actual physical violence.

68 I do however allow for the circumstances to change and depending on the way the evidence develops, it may be necessary to revisit the issue. At this stage I will reserve this aspect for further consideration, if necessary when the evidence has been completed and before counsel's final addresses.

Question 3 -Are the terms of s 7(1B) an "****exception, exemption, excuse, qualification or justification" within the meaning of s 13.3(3) of the Criminal Code 1995 (Cth) such as to require the accused to discharge an evidential burden?

69 The accused's submission on this issue was that s 7(1B) is definitional only and describes conduct not be regarded as a preparatory act. Thus, it is put that the accused would not be required to discharge an evidential burden. The Crown contends the provision is an 'exception, exemption, excuse, qualification or justification' within the meaning of s 13.3(3). If that analysis is correct, it follows from the provisions to which I now turn that the accused would be required to discharge an evidential burden.

Defences and Evidential Burdens under the Criminal Code

70 Under the provisions of Chapter 2 of the Code, any burden of proof that a law of the Commonwealth imposes on a defendant is an evidential burden only.[60] This means 'the burden of adducing or pointing to evidence that suggests a reasonable possibility that [a particular] matter exists or does not exist.'[61] A defendant no longer bears an evidential onus if evidence sufficient to discharge the burden is adduced by the prosecution or the Court.[62]

71 The Code countenances two broad categories of defences. First, Part 2.3 of the Code sets out a number of defences of general application. Many of these defences, such as the defences of self-defence[63] and mental impairment,[64] are concepts familiar to the common law. In general, a defendant who wishes to deny responsibility for an offence by relying on a provision of Part 2.3 bears an evidential onus in relation to that matter.[65]

72 Second, provisions elsewhere in the Code and in other laws of the Commonwealth set out defences that apply to a more limited class of offences. Section 13.3(3) imposes an evidential burden in respect of those offences. It is in these terms:

13.3 Evidential burden of proof - defence

[...]

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

73 The Code does not define the terms 'exception, exemption, excuse, qualification or justification.'

74 The accused commenced his submissions with the High Court decision in Director of Public Prosecutions v Untied Telecasters Sydney Limited,[66] which dealt with the construction of ss 100(5A) and 100(10) of the Broadcasting and Television Act 1942. Section 100(5A) in effect prohibited the holder of a licence for a commercial television station from broadcasting an advertisement for cigarettes. Section 100(10) stated:

A reference in ss [...] (5A) [...] to the [...] televising of [...] an advertisement shall be read as not including a reference to the [...] televising of matter of an advertising character as an accidental or incidental accompaniment of the [...] televising of other matter [...].[67]

75 The Court held that this provision was not a qualification, proviso or exception to the obligation imposed by s 100(5A) but a part of the statement of that obligation; that is, the words of s 100(10) were definitional. The accused then rallied the following arguments in support of the proposition that s 7(1B), like s 100(10), was definitional:

(a) The words "A person shall not be taken to have committed an offence against this section..." are declaratory of conduct that should be regarded as being outside the ambit of the section. The ordinary language of the provision suggests a definitional function for it.

(b) The statement that conduct of, or for the purposes of, the provision of aid of an humanitarian nature refers to conduct which is antithetical to engaging in hostile activity. It is explanatory it descriptive of that which cannot constitute hostile activity.

(c) It naturally follows that proof of intent to engage in hostile activity involves proof that the accused did not intend to engage in conduct that could properly be characterised as the provision of humanitarian aid.

(d) There is nothing conditional in the wording of the provision, which suggests that it should operate only once the accused has brought him or herself within the terms of the provision.

(e) The explanatory memorandum to the Crimes Legislation Amendment Bill 1987 which introduced s 7(1B) states that the purpose of the amendment was to 'clarify the position of persons who given money goods or services for the purpose of providing humanitarian aid. They will not be taken to have committed an offence under the Act.'

76 The Crown submitted United Telecasters could be distinguished on the basis that it concerned the imposition of a legal burden, rather than an evidential one. Further it did not deal with the interpretation of s 13.3(3) of the Code and, finally, concerned a provision that positively rather than negatively defined the proscribed conduct.

77 Further, Ms Abraham submitted that the language of s 7(1B) was similar to the language of other offence-specific exceptions in the Code, many of which were accompanied by interpretative notes. Finally, the Crown placed some reliance on the recent High Court case of Huynh v The Queen,[68] which reiterated that a jury should only be directed on so much of the law that is relevant to determining the issues at trial. I do not see how that statement of principle bears upon the issue I now turn to determine.

78 This question is suitable for determination. If the Crown interpretation is correct the accused will bear an evidential onus in relation to the matters set out in s 7(1B). That is an issue of law which arises for the purposes of s 199; it is appropriate that the accused be on notice of any such onus as it may affect the conduct of his defence.

79 To a point, I accept the Crown's criticism of the relevance of United Telecasters to this case. That case turned on its own facts and circumstances. That does not, however, undermine the balance of the accused's submissions on the proper interpretation of s 7(1B). The issue, which is one of construction, is whether s 7(1B) of the Act is an 'exception, exemption, excuse, qualification or justification' within the meaning of s 13.3(3) of the Code.

80 The provision is not easily characterised as an exception, exemption, excuse, qualification or justification. Each of those terms in my view presupposes the possibility of liability for an offence; that is, they except, exempt, excuse, qualify or justify conduct for which the accused might otherwise be criminally responsible. To take a simpler example, in a murder trial self-defence is easily understood as a justification. That is because in the particular case the Crown can prove that the accused, by a voluntary, conscious and deliberate act caused the death of the deceased with the intention of killing that person or causing them really serious injury. If the accused raised self-defence, however, and pointed to an evidentiary basis for it to be put to the jury, and if the prosecution then failed to prove beyond reasonable doubt that the accused was not acting in self-defence, the accused would be acquitted. In this way, self-defence provides a lawful justification or excuse for what would otherwise be murder.

81 In this case, if the Crown proved that the accused had done an act which was, and was intended to be, preparatory to entering a foreign state with the intention of engaging in hostile activities, how could there remain a reasonable possibility that the act was 'merely' by way of, or for the purposes of, the provision of humanitarian aid? In my view, a reasonable doubt as to the existence of the exception, exemption, excuse, qualification or justification cannot be mutually exclusive with proof of the balance of the elements of the offence. What work would there then be for a defence to do?

82 This is not to say that Parliament could not adopt a contrary approach. Indeed, the Crown in their submissions relied significantly on the terms of s 119.4(7) of the Code, which replaced s 7(1B) in 2014. That section is headed 'Exception' and is accompanied by an explanatory note which makes it clear that the matter contained in the section is one in relation to which a defendant bears an evidential onus pursuant to s 13.3(3) of the Code. This, the Crown submitted, was a guide to the construction of s 7(1B).

83 I do not agree. First, I have already explained my view[69] of interpretative arguments which to look to the text of superseding provisions for guidance as to the meaning of the provisions they replace. The Crown submits that the amending provisions and extrinsic materials demonstrate that Parliament intended 'the offence provisions [to be] transferred to the Code' without 'altering [their] status.'[70] While this may be indicative of Parliament's view of the relationship between s 7(1B) of the Act and s 119.4(7) of the Code in 2014, this goes only to the reasons that that Parliament may have had for that amendment, and not to the correct interpretation of the amended provision.

84 Second, and despite what the Crown says about Parliament's intention in 2014, s 119.4(7) is drafted differently. Leaving aside the sub-heading and explanatory note, the sub-provision reads:

(7) The section does not apply if the person engages in conduct solely by way of, or for the purposes of, the provision of aid of a humanitarian nature.

As the Crown observe, the phrase 'does not apply' is frequently used in offence specific exceptions or defences. Had I been interpreting s 119.4(7) of the Code I would have considered this to be a powerful indication that (despite my reservations at [80]-[81]). Parliament intended the section to operate as an 'exception' for the purposes of s 13.3(3). If anything I consider the expression 'shall not be taken to have committed an offence' to indicate to the contrary.[71]

85 Finally, my observations concerning the utility of a defence for persons who engage in conduct 'merely' or 'solely' by way of, or for the purposes of, the provision of aid of a humanitarian nature do not apply equally to the new Code provisions. As I have said, the offence-creating provision in the Code (s 119.4(1)) makes it clear that the preparatory character of the conduct is to be regarded as a physical element of circumstance to which the fault element of recklessness applies.[72] If a person intentionally did an act which was objectively preparatory to the commission of an offence against the new s 119.4(1), it is not inconceivable that that person could be reckless as to the act's preparatory character but still do that act solely for the purpose of the provision of humanitarian aid.

86 A descriptive role for s 7(1B) is, in my view, consistent with the Explanatory Memorandum to the 1987 Amending Act, which described the purpose of the provision in these terms:

'...to clarify the position of persons who give money, goods or services for the purpose of providing humanitarian aid.[73]

The effect of this subsection is to make it clear that where a person gives money or goods to a body or group of persons, no offence will have been committed so long as the money or goods were given for the purpose of humanitarian aid such as providing food or money to those affected by war.'[74]

Finally, for the avoidance of doubt, the amendments make it clear that the provision of humanitarian aid by persons from Australia is not an offence. [75]

87 I accept that a means to 'clarify' the position of people who provide humanitarian aid might have been to create a defence which was tailored to their circumstances. Nevertheless I note that the explanatory clause to the amending provision contains no indication to this effect, which I consider would be unusual given the stated purpose of the provision: to clarify.

88 For these reasons I consider s 7(1B) to be better understood as an 'avoidance of doubt' provision. While I agree that the provision is descriptive, it does not circumscribe or 'carve out' conduct that would otherwise be proscribed by s 7(1)(a) as in the self-defence example I gave earlier. This is an example of conduct in respect of which the Crown will already have failed to establish liability for that offence. If it is at all necessary to direct a jury on the effect of s 7(1B) - and in my view it is neither necessary nor appropriate to answer this question until the conclusion of evidence on the trial - that direction would be in those terms.

89 I have expressed my conclusions as I have dealt with the three issues raised by the accused. However, it is appropriate to conclude by formally responding to each question raised:

(1) What is the nature of the intention required to be proved by the prosecution at the time of the doing of the act in preparation?

The prosecution must prove beyond reasonable doubt that the accused intended to commit the particular act referred to in each count in the indictment and also intended that each act be preparatory to the commission of an offence under s 6 of the Act.

(2) What is the meaning and scope of the expressions '...to engage in a hostile activity in that foreign state' in particular '...engaging in armed hostilities' as those words appear in s 6(1)(a) and s 6(3)(aa) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)?

It is inappropriate to determine the meaning and scope of the expression '... to engage in a hostile activity.'

On the meaning and scope of the expression '... engaging in armed hostilities' I have ruled that:

(a) The expression is not limited to engagement in armed hostilities by, on behalf of, or against the regular armed forces of a nation-state or during a formal state of war;

(b) In order to fall within the ambit of the expression, a person need not pursue a particular political objective or goal;

(c) In order to fall within the ambit of the expression, the hostilities must be armed and involve the use, threatened use or demonstration of armed force; and

(d) The preparatory conduct countenanced by s 7(1) will not, without more, amount to either hostile activities or armed hostilities.

I have not determined whether something more than mere preparation, but less than actual violence, might amount to engaging in armed hostilities.

(3) Are the terms of s 7(1B) an 'exception, exemption, excuse, qualification or justification' within the meaning of s 13.3(3) of the Criminal Code 1995 (Cth) such as to require the accused to discharge an evidential burden?

[2] Commonwealth, Parliamentary Debates, House of Representatives, 17 March 1977, 342 (Robert Ellicott).

[3] A total of six amending acts were passed during this period.

[4] Commonwealth, Parliamentary Debates, Senate, 5 November 1987, 1756 (Michael Tate).

[5] Commonwealth Criminal Code Act 1995 (Cth), sch 2, s 2.1.

[19] [2004] NSWCCA 108; (2004) 61 NSWLR 135 ('Saengsai-Or')

[20] [2005] VSC 10 ('Pong Su').

[21] Stephen Odgers, Gerard Nash and Mirko Bagaric, Federal Offences Online, (Thompson Reuters, 2012) [10.940].

[24] Jury Directions Act 2013 (Vic), s 17.

[25] [1961] HCA 42; (1961) 108 CLR 56.

[26] [1990] HCA 49; (1990) 171 CLR 30.

[27] [1985] HCA 43; (1985) 157 CLR 523 ('He Kaw Teh').

[28] Sangsai-Or [2004] NSWCCA 108; (2004) 61 NSWLR 135, 144 [57].

[29] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 565. Justice Brennan added to this the observation that possession was best seen as a state of affairs, rather than an act or omission: 564.

[34] (2004) 61 NSWLR 144, [58].

[35] [2014] FCAFC 32 ('Channel Seven v ACMA').

[39] [2013] HCA 49 ('Li').

[41] Although, of course, Li was concerned with the distinction between 'acts' and 'results'. For an earlier discussion of that distinction, in terms similar to that of Brennan J in He Kaw Teh, see Falconer [1990] HCA 49; (1990) 171 CLR 30, 39 (Mason CJ, Brennan and McHugh JJ): 'In our opinion, however, a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the "act".'

[42] By splitting the act and the preparatory nature of the act into two sub-paragraphs.

[43] [1992] FCA 624; (1992) 39 FCR 348.

[44] Ibid, 382; see, also, R v Sieders [2008] NSWCCA 187; (2008) 72 NSWLR 417, 433 [124]-[125]; Hepples v Federal Commissioner of Taxation [1992] HCA 3; (1991) 173 CLR 492, 539-40 (McHugh J).

[45] Acts Interpretation Act 1901 (Cth), s 15AB.

[46] Ibid, s 15AA.

[47] Channel Seven v ACMA [2014] FCAFC 32, 21 [68] (Flick J, dissenting).

[48] Explanatory Memorandum, Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000 (Cth), 27 [89] and 28 [92].

[49] Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 479 (McHugh and Gummow JJ).

[50] Iain Leader-Elliot, 'Elements of Liability in the Commonwealth Criminal Code' (Speech delivered at the AIJA Magistrates' Conference, Melbourne, 20-21 July 2001).

[51] Explanatory Memorandum, Law and Justice Legislation Amendment (Application of Criminal Code) Bill 2000, 1-2: 'Offences developed over many years as part of the Commonwealth statute book are by no means standard and it is therefore necessary to make adjustment for when the Criminal Code applies to all Commonwealth offences on 15 December 2001 [...] The effect of the Bill is to harmonise all offences-creating and related provisions within the Attorney-General's portfolio with the general principles of criminal responsibility as codified in Chapter 2 of the Criminal Code. The major forms of amendment effected by this Bill [include:] reconstructing provisions in order to clarify physical elements of conduct, circumstance and result.'

[52] Written Submissions of the Director of Public Prosecutions (Cth), undated, [13].

[53] Summary of Prosecution Opening, dated 20 April 2015, 5 [9].

[54] Transcript of Proceedings, R v Mohamed, (Supreme Court of Victoria, S CR 2014 0205, Justice Lasry, 7 May 2015) 17/1-2 ('Transcript').

[55] John Westlake, International Law: War (Stevens and Sons, 1st ed, 1907), 60: 'it became the military fashion to regard professional soldiers as alone entitled to fight, any other persons who presumed to contend with them doing so at the peril of their lives without any protection from the usages of war.'

[56] Prosecutor v Fatmir Limaj, Haradin Bala & Isak Musliu (Judgement) (International Criminal Court, Trial Chamber II, Case No IT-03-66-T, 30 November 2005) 36-37 [89]; Prosecutor v Dusko Tadic (Opinion and Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-94-1-T, 7 May 1997) 193-194 [562].

[57] Commonwealth, Parliamentary Debates, House of Representatives, 17 March 1977, 342 (Robert Ellicott): 'To a substantial extent [s 6] will prohibit acts of terrorism by Australians in other countries.'

[58] Commonwealth, Parliamentary Debates, Senate, 5 November 1987, 1756 (Michael Tate).

[66] [1990] HCA 5; (1989) 168 CLR 594 ('United Telecasters').

[68] [2013] HCA 6; (2013) 87 ALJR 434.

[70] Written Submissions of the Director of Public Prosecutions (Cth), undated, 10 [37].

[71] It is an unusual form of words, which, in my view, may be contrasted with 'does not commit'.

[72] Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), 142 [854].

[73] Explanatory Memorandum, Crimes Legislation Amendment Bill 1987 (Cth), 26.

[75] Commonwealth, Parliamentary Debates, Senate, 5 November 1987, 1757 (Michael Tate).