Citation: Regina v Lodhi [2005] NSWSC 1377
Court: Supreme Court of New South Wales, Common Law Division
Date: 23 December 2005
Judge(s): Whealy J
Background
The accused, an Australian citizen of Pakistani origin with qualifications in architecture and project management, was charged on a four-count indictment with terrorism-related offences under the Commonwealth Criminal Code. The charges included collecting and making documents connected with the preparation of a terrorist act (ss 101.5), and doing acts in preparation for a terrorist act (s 101.6). The alleged offences related to events occurring broadly between 2002 and 2004.
The Crown case rested substantially on circumstantial evidence, including an alleged association between the accused and a foreign national linked to the proscribed organisation Lashkar-e-Taiba, and activities said to be connected with the preparation of terrorist acts targeting Australian infrastructure or defence establishments.
A Notice of Motion was brought on behalf of the accused seeking to have counts 2, 3, and 4 quashed on the ground of duplicity, or alternatively to require the Crown to elect a narrower formulation of each charge.
Legal Issues
- Whether counts 2, 3, and 4 of the indictment were bad for duplicity, in that each count allegedly rolled together multiple distinct offences or multiple possible terrorist acts in a single charge
- Whether the definition of "terrorist act" in s 100.1 of the Criminal Code encompasses a single composite offence or multiple discrete offences, such that charging a single count referencing alternative targets is duplicitous
- Whether count 4, which spanned a legislative amendment that repealed and re-enacted Part 5.3 of the Criminal Code, charged two different offences across the pre- and post-amendment periods
- Whether the proposed amended count 4, framed under s 101.4, was also susceptible to a duplicity objection
Decision
Whealy J examined the framework of the terrorism provisions in Part 5.3 of the Code in detail, with particular attention to the definition of "terrorist act" and the structure of the offence-creating provisions. His Honour's preliminary analysis was that the definition of "terrorist act" operates as a single composite concept, meaning that a count charging conduct connected with the preparation of a terrorist act does not become duplicitous merely because the evidence may reveal multiple possible target acts.
On the duplicity objections to counts 2 and 3, the court's preliminary reasoning indicated that the broad statutory definition did not, of itself, render those counts bad for duplicity. However, the judgment was not final on these points, and the matter was adjourned to allow the parties to reconsider their positions in light of the reasons provided.
On count 4, the Crown conceded that the original formulation was problematic because it straddled the repeal and re-enactment of Part 5.3 on 29 May 2003, which meant it potentially encompassed two distinct offences. The Crown sought leave to substitute an amended count 4 under s 101.4, framed around a specific date and specific conduct. The defence subsequently submitted that the amended count 4 attracted the same duplicity concerns as counts 2 and 3. Whealy J noted that, applying the same framework analysis, his preliminary view was that the amended count 4 was also not bad for duplicity, but left the question open for further submissions as no Crown response to the defence's additional submission had yet been received.
Orders Made
- The Notice of Motion was adjourned to 31 January 2006 to allow both parties to consider their positions in light of the reasons given.
Key Takeaways
- Whealy J's preliminary reasoning treated the definition of "terrorist act" in s 100.1 of the Criminal Code as a single composite concept, which informed the analysis of whether counts referencing multiple possible terrorist acts are duplicitous.
- A count under Part 5.3 of the Criminal Code that spans the commencement date of the Criminal Code Amendment (Terrorism) Act 2003 may be problematic, because the amending Act repealed and re-enacted Part 5.3 on 29 May 2003, potentially resulting in a single count charging two distinct offences.
- The Crown's proposed amendment to count 4, substituting a more specific framing under s 101.4, demonstrated one approach to addressing the legislative continuity problem arising from the 2003 amendments.
- This decision is interlocutory only: no final rulings were made on the duplicity objections, and all issues remained open for further argument at the adjourned hearing.
- Amendments to ss 101.5 and 101.6 enacted after the relevant period, which expressly state that offences can be committed even where no specific terrorist act is contemplated, did not apply to the charges in this matter.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act (Cth), ss 100.1, 101.4, 101.5, 101.6
- Criminal Code Amendment (Terrorism) Act 2003 (Cth) (No 40/2003)
- Acts Interpretation Act 1915 (SA)
Cases:
- Johnson v Miller (1937) 59 CLR 467
- S v The Queen (1989) 168 CLR 266
- Stanton v Abernathy (1990) 19 NSWLR 656
- Walsh v Tattersall (1996) 188 CLR 77
- Sunworld Inc v Registrar, Plant Variety Rights & Anor (1997) 148 ALR 447
- Allina v Federal Commissioner of Taxation (1991) 99 ALR 295
- Re MacManaway (1951) AC 161
- Interlego v Croner Trading 111 ALR 577
- Krakauer v R (1998) 194 CLR 202
- Ex Parte Fitzgerald re Gordon (1945) 45 SRNSW 181
- Meller v Lowe (2000) 48 NSWLR 517