Ground 2: Her Honour erred in concluding that the Crown was not required to particularise the discrete act which is said to constitute the terrorist act that established that LeT was a terrorist organisation for the purpose of Division 102 of the Criminal Code .
30 Before Bell J the matter was approached having regard to the particulars provided by the Crown by letter dated 16 August 2005. I have previously identified its contents but it is convenient to repeat it:
"Between 12 January 2003 and 2 February 2003 Lashkar-e-Taiba was a terrorist organisation, in that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, namely:
An action that:
(a) was to be done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims;
(b) was to be done with the intention of coercing, or influencing by intimation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir;
(c) was intended to cause serious harm, that is physical harm, to a person or persons, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir;
(d) was intended to endanger the life of such a person; or
(e) was intended to create serious risk to the health or safety of the public or a section of the public, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir, or the health and safety of members of the public who may be put at risk as a result of actions against such members of the Indian armed forces."
31 The essential argument for the appellant before Bell J and this Court was that before it can establish LeT is a terrorist organisation the Crown must particularise and prove a discrete terrorist act. Her Honour records the submission of the applicant in the following terms:
"Mr Barker acknowledged that the description of the offence in the indictment is in the words of s 102.5(1). The Crown has furnished particulars identifying the basis upon which it will contend that LeT was at the material time a terrorist organisation. Mr Barker did not maintain the submission that the indictment was defective for failure to contain an averment of the terrorist act. He submitted that the particulars are not particulars of a 'terrorist act' within the meaning of that expression in s 100.1 and thus are not capable of proving that LeT was a terrorist organisation at the time. The offences created in Pt 5.3 were said to require an action or threat of action as distinct from preliminary acts. The argument is that the Crown must particularise a discrete act as the terrorist act relied upon to establish LeT's character as a terrorist organisation in January 2003."
32 Her Honour makes plain that neither party paid close attention to the written particulars when the matter was argued. Instead her Honour resolved the issue after consideration of oral argument, during which the Crown effectively proffered an amendment to the particulars. Although the amendment was not formally made before Bell J, it was made before this Court and the particulars now read:
"Between 12 January 2003 and 2 February 2003 Lashkar-e-Taiba was a terrorist organisation, in that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, namely:
An action involving physical attack on members of India's armed services in Kashmir that :
(a) was to be done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims;
(b) was to be done with the intention of coercing, or influencing by intimidation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir;
(c) was intended to cause serious harm, that is physical harm, to a person or persons, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir;
(d) was intended to endanger the life of such a person; or
(e) was intended to create serious risk to the health or safety of the public or a section of the public, namely members of the Indian armed forces serving in the region of Indian occupied Kashmir, or the health and safety of members of the public who may be put at risk as a result of actions against such members of the Indian armed forces."
(the amendment is underlined)
33 Bell J said that the particulars in their unamended form were flawed but having regard to the manner in which the matter was argued said:
"As I have noted, the motion was argued on the basis that the Crown case is that LeT was a terrorist organisation at the material time because it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act namely killing Indian soldiers in Kashmir, this being an action that falls within s 100.1(2)(a), (c) and (d)) and which was done with the intention of advancing a political, religious or ideological cause, namely the restoration of control of Indian occupied Kashmir to Muslims and with the intention of coercing, or influencing by intimidation, the government of India or intimidating the public or a section of the public (including members of the Indian armed services), actually or potentially serving in the region of Indian occupied Kashmir. I propose to deal with the challenge to the indictment on this footing and not by reference to the written particulars which do not reflect the way the matter was argued.
In Mr Barker's submission, the particulars (understood in the way summarised in his submission which I have set out at paragraph 34 above) do no more than identify as an aim of LeT the doing of physical harm to members of the Indian armed forces serving in the region of Indian occupied Kashmir. The concepts of preparing, planning, assisting in or fostering were said to be separate from the act that is their object. All the offences in Pt 5.3 were submitted to require a discrete terrorist action. The repeated use of the definite article was said to make this much obvious.
In Mr Barker's submission amending legislation serves to demonstrate that conduct not involving specific terrorist acts was not caught by Pt 5.3 of the Criminal Code as it stood in January 2003. In this respect Mr Barker firstly relied on the introduction of the Criminal Code Amendment (Terrorism) Act 2003 (the 2003 Act) which effected the repeal of Pt 5.3 of the Criminal Code and substituted a new Pt 5.3 dealing with terrorism. Section 100.4 of Criminal Code as amended by the 2003 Act is in these terms:
100.4 Application of provisions
Part generally applies to all terrorist acts and preliminary acts.
(1) Subject to subsection (4), this Part applies to the following conduct: -
(a) All actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur);
(b) all actions (preliminary acts) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur).
Mr Barker also relied on the provisions of the Anti-Terrorism Act 2005, No 127 of 2005 (The 2005 Act), which amends a number of the terrorist act offences contained in Div 101 and the financing terrorism offences contained in Div 103 of the Criminal Code. The 2005 Act did not amend the terrorist organisation offences contained in Div 102.
Section 101.2, as it stood prior to the amendment introduced by the 2005 Act, relevantly provided as follows:
(1) A person commits an offence if;
(a) the person provides or receives training; and
(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).
(3) A person commits an offence under this section even if the terrorist act does not occur.
The 2005 Act effected the repeal of subs (3) above and substituted the following:
(3) A person commits an offence under this section even if:
(a) a terrorist act does not occur; or
(b) the training is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or
(c) the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.
Other amendments introduced by the 2005 Act effected like changes.
The Crown submitted that care needed to be exercised in approaching the construction of Pt 5.3 of the Criminal Code as it stood at the material time by reference to amending legislation. In written submissions the Crown referred to the judgment of French J in Sun World lnc v Registrar, Plant Variety Rights & Anor (1997) 148 ALR 447 at 459:
The role of amending legislation in the construction of the earlier provisions of the legislation it amends is debatable. It can be said that although the Plant Breeder's Rights Act 1994 repealed the Plant Variety Rights Act 1987 and substituted a new statutory regime, there is an analogy to the case of amending legislation at least in respect of the operation of the NPC Rules, Amending legislation which expressly introduces an exemption from some condition or liability imposed by the legislation to be amended may support a construction of that earlier statute that does not incorporate the exemption: Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70. But as has been pointed out in a number of cases, care must be taken to determine whether the amending legislation merely makes clear what was implicit in the previous law or resolves doubts about its construction: Allina Pty Ltd v FCT (1991) 99 ALR 295 at 303 and see generally Pearce and Geddes, Statutory Interpretation in Australia 4th ed at [3.18] [now 5th ed at [3.3011]].
In the Crown's submission, the 20O3 Act served merely to clarify the offences created by the 2002 Act and not to expand their ambit. The Crown submitted that the 2003 Act identified the constitutional basis for the operation of the terrorist offences in Pt 5.3 in a context that includes both referring States and non-referring States; s 100.2 and in s 100.3. Section 100.4 in subs (2) - (6) deals with the operation of the Pt 5.3 in relation to terrorist acts and preliminary acts occurring in a State that is not a referring State.
The Crown referred to the Explanatory Memorandum of the 2003 Act and to the Attorney-General's Second Reading Speech in support of the submission that the 2003 Act was not intended to remedy any perceived deficiency in the ambit of the offences that had been introduced by the 2002 Act. I note that in Downey v Trans Waste Pty Ltd (1990-1991) 99 ALR 402 Dawson J, at 409, took into account the reasons for amending legislation by reference to the Minister's second reading speech. In moving the bill that became the 2003 Act be read a second time, the Attorney-General said:
The Federal legislation enacted earlier this year creates a number of offences in relation to terrorist acts, terrorist organisations and terrorist financing. Those offences were based on existing Commonwealth constitutional powers. As the Commonwealth Constitution does not give the Commonwealth Parliament power to make laws with respect to terrorism as such, the offences rely on a patchwork of existing constitutional powers.
The patchwork of existing Commonwealth constitutional powers is extensive, but it is also complex. It is impossible to rule out unforeseen gaps in the coverage offered by offences based on existing powers. Arguments about possible gaps could be exploited by people trying to avoid prosecution. The reference of powers by the States and the enactment of this Bill will rule out these kinds of arguments. It will ensure comprehensive national application of the Federal counter-terrorism offences.
The Bill will re-enact Part 5.3 of the Criminal Code, which contains the terrorism offences enacted in June and amended in October this year, so that it attracts the support of the State references of power. The Bill will, in effect, re-enact the Terrorist Act offences in Division 101, the terrorist organisations offences in Division 102, and the financing of terrorism offences in Division 103. Once re-enacted, terrorism offences will be capable of operating throughout Australia, without any potential limitations arising from existing limits on Commonwealth constitutional powers.
…
The Bill does not effect [sic] the substance of the current offences. The re-enacted offences will be in the same terms as the current offences, but for the constitutional "reading down" provisions. The Government has already taken action under the current provisions. Regulations have been made specifying organisations as "terrorist organisations" for the purpose of the terrorist organisation offences (Mr Williams, Hansard, House of Representatives, 12 December 2002, at 10263/4).
I do not infer that the introduction of the new Pt 5.3 into the Criminal Code demonstrates that conduct not involving specific terrorist acts was not caught by the legislation as it stood in January 2003 (WS 10 August 2005, [12]).
In the Crown's submission the amendments introduced by the 2005 Act have no bearing on the provisions of s 102.5 of the Criminal Code, which deals with terrorist organisations. The Crown also submitted that reference to the Second Reading Speech in the Legislative Assembly lends no support to a contention that the amendments to Divisions 101 and 103 were effected in order to create criminal liability where it had not previously existed. In his speech moving that the bill which became the 2005 Act be read a second time the Attorney-General said this:
The amendments before the House today ensure that the Terrorist Act offences in Part 5.3 of the Criminal Code are interpreted as they were originally intended to be interpreted.
They clarify that in a prosecution for a terrorist offence it is not necessary to identify a particular terrorist act.
The existing offences contain a subsection that provides that a person commits the offence even if "the" terrorist act does not occur.
When the offences were originally drafted, it was not the intention that the prosecution would be required to identify a "particular" terrorist act.
The amendments will clarify that it is not necessary for the prosecution to identify a specific terrorist act. (Mr Ruddock, Hansard, House of Representatives, 2 November 2005 at 62).
In Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577 Gummow J (as he then was) said at 612:
There is a line of authority that an amendment may be taken into account in determining the scope of the prior legislation, at least to avoid a result which would render the amendment unnecessary, or futile or deficient; see especially Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 at 85-6; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 254-5. But in doing so, caution should be exercised: see Pearce and Geddes, Statutory Interpretation in Australia (3rd ed, 1988), ¶ 3.26. It is, after all, a curious way of revealing a parliamentary intention at the time of passing the earlier provision. As was observed by Viscount Haldane LC in Re Samuel [1913] AC 514 at 526:
It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela, to remove possible doubts.
I do not consider that an inference should be drawn that the offences created by the 2002 Act did not embrace conduct not involving specific terrorist acts (WS 10 August 2005, [12]) from the fact of the enactment of the 2005 Act. I approach the accused's challenge to the capacity of the case as particularised to constitute an offence under s 102.5 by reference to the meaning of the expressions "a terrorist act" in s 102(1)(a) and 'terrorist act" in s 100.1(1) as these definitions stood in January 2003.
In written submissions the Crown contended that the accused's submission that it was necessary to identify a discrete and specific terrorist act was one that may have validity in relation to the offences created under Div 101 of the Criminal Code dealing with terrorist acts, but that it had no force with respect to Div 102, which provides for offences relating to terrorist organisations. It pointed to the broad definition of organisation in s 100.1(1) in support of a submission that:
In considering the meaning of "terrorist organisation", it is first to be noted that the legislation is referring to an organisation, that is, a standing body of people with a particular purpose; not a transient group of conspirators who may come together for a single discrete criminal purpose. The requirement for an "organisation" is consistent with the provision for an entity with an ongoing purpose of committing a number of terrorist acts with the intention of advancing the same political, religious or ideological cause (WS 18/11/05 at [10]).
In the Crown's submission, the definition in s 102.1(1)(a) of a terrorist organisation as one directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act is inconsistent with the requirement for the involvement of the organisation in an immediate and specific terrorist act (WS 18/11/05 at [11]).
To the extent that the Crown's submission carries with it that the requirements of proof of a terrorist act in the context of the offences created in Div 101 may be distinguished from the requirements of proof of a terrorist act for the purpose of the Div 102 terrorist organisation offences, I reject it. The definition of terrorist act contained in Div 100 applies both to the terrorist act offences in Div 101 and the terrorist organisation offences in Div 102.
In R v Lohdi, (unreported) 23 December 2005, Whealy J considered the definition of 'terrorist act', observing that the definition postulates an action of threat of action of the widest possible kind (at paragraph 52). His Honour was dealing with the provisions of Pt 5.3 introduced by the 2003 Act however nothing turns on this since the definition of "terrorist act" was not subject to material alteration. I respectfully agree with his Honour's observations concerning the breadth of the action that may found a terrorist act. A terrorist act is an action that is done (or a threat of action that is made) with each of the intentions specified in subparas (b) and (c). The action must possess one or more of the features specified in subsection (2) provided that it does not have the features specified in subsection (2A). The latter excludes advocacy, protest, dissent or industrial action that is not intended to cause serious harm (that is physical harm) to a person, or to cause death or to endanger life from founding a terrorist act. The breadth of the definition is such that advocacy, protest, dissent or industrial action may be action that falls within subs(2), and be capable of founding a terrorist act, if it is not unaccompanied by the intentions specified in subs(2A)(i)-(iii). In my opinion the words of the definition admit of the killing of Indian soldiers in Kashmir being "action" within the meaning of subsection (2), which provided it is done (or the threat of it is made) with the intentions set out subparagraphs (b) and (c), may constitute a terrorist act.
A second basis of challenge identified by Mr Barker was that there is no suggestion that the accused knew of or contemplated the possibility of a discrete, specific terrorist act or that he intended to prepare to participate in any such act. If the accused is to be caught by the provisions of s 102.5(1) in Mr Barker's submission it is necessary that the training received by him be itself a terrorist act. This was said to flow from the provisions of s 100.2(1):
This Part applies to a terrorist act constituted by an action, or threat of action, in relation to which the Parliament has power to legislate.
In .the course of oral submissions Mr Barker put it this way:
If he is not charged with a terrorist act constituted by an action or threat of action, there cannot be any case. In other words, if what the Crown sets out to prove in proving a case under 102.5, if that does not involve evidence of a terrorist act on the part of the accused, it can't come within Part 5.3 because it applies specifically to acts constituted by action or threat of action. (T 21/11/05 37.42-49)
The Criminal Code codifies the law with respect to offences against the laws of the Commonwealth and s 100.2 sets out the constitutional basis for the offences created by Pt 5.3. The provisions of subsection (1) in my opinion do not operate to confine the offence created by s 102.5(1) in the way for which Mr Barker contends. The offence is the intentional receipt of training from (or provision of training to) an organisation that is a terrorist organisation and is known by the accused to be such. The offence is complete on proof of these elements and does not require proof of the commission of a terrorist act constituted by an action, or threat of action by the accused.
I note that the Crown accepts that in order to prove the fault element of knowledge it must establish that the accused knew LeT to be a terrorist organisation because he knew that it was directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act being the action or threat of action that the Crown relies on to prove the fact that LeT was a terrorist organisation at the material time.
For these reasons I reject the challenge to the indictment as particularised as not disclosing an offence that is known to law."
34 Since the matter was argued before Bell J this Court considered a challenge to an indictment alleging a terrorist act contrary to the Code in Lodhi v R [2006] NSWCCA 121. That case was concerned with alleged offences under Division 101 of the Code. The Court confirmed that although the elements of the definition of "terrorist act" relevant to the asserted breach of the Code must be pleaded the terrorist act need not be further particularised.
35 The applicant submitted that the Court should take a different approach to Division 102 by reason of the fact that it extends to conduct which may be wholly innocent including the receipt of money from an organisation, even though the payment may be in no way related to a terrorist act. Accordingly, it was submitted that it is imperative that the ambit of Division 2 be narrowly confined.
36 The Code provides for two offences when a person is involved in training which relates to terrorist activities. Section 101.2 provides for an offence of training relating to a terrorist act in which event particulars of the alleged act would be required. Section 102.5 pursuant to which the applicant has been indicted requires proof the applicant intentionally trained with an organisation that is a terrorist organisation which engages the definition in s 102.1. In Lodhi Spigelman CJ said of the relevant offence creating provision in Division 101:
"Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified "part" of the electricity system.