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Court of Criminal Appeal 13 April 2006

Faheem Khalid LODHI v Regina

[2006] NSWCCA 121

Public order & justice offences
STATUTORY INTERPRETATION RETROSPECTIVITY STATUTE ESTABLISHING CRIMINAL OFFENCE CLEAR STATEMENT PRINCIPLE ACTS INTERPRETATION ACT 1901, S8 CRIMINAL PROCEDURE

Citation: Faheem Khalid Lodhi v Regina [2006] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 13 April 2006
Judge(s): Spigelman CJ; McClellan CJ at CL; Sully J

Background

The appellant faced terrorism-related charges under sections 101.4, 101.5, and 101.6 of the Commonwealth Criminal Code, which create offences involving the possession of things, and the collection, making, or preparation of documents or acts, connected with preparation for a terrorist act. He pleaded not guilty and challenged the validity of the indictment presented against him at trial before Whealy J in the Supreme Court. That challenge was dismissed, and a fresh indictment was presented.

The four counts in the fresh indictment alleged that the appellant had collected a document, made a document, possessed a thing, and committed an act, each connected with preparation for a terrorist act. The appellant challenged the fresh indictment on multiple grounds: that it failed to specify a particular terrorist act, that certain counts were duplicitous (meaning they rolled together what were properly separate charges), and that it omitted essential elements of the offences as defined in the Criminal Code.

A further complication arose when the Governor-General proclaimed amendments to the relevant Criminal Code provisions, purportedly with retrospective effect. Those amendments, inserted by the Anti-Terrorism Act (No 2) 2005 (Cth), expressly provided that the Crown did not need to prove that preparations were made for a particular terrorist act. The central question became whether those retrospective amendments applied to a trial already underway.

  • Whether retrospective legislative amendments to the offence provisions applied to criminal proceedings that had already commenced at the time of the amendments.
  • Whether the indictment was duplicitous by rolling multiple distinct acts into single counts.
  • Whether the indictment adequately pleaded all essential elements of the offences, including particulars of the terrorist act to which the alleged preparations related.
  • Whether the defects in the indictment could be cured by the operation of section 11 of the Criminal Procedure Act 1986 (NSW).

Decision

On the retrospectivity question, the Court held unanimously that the amendments did not apply to a criminal trial already commenced. Applying the clear statement principle of statutory interpretation, the Court confirmed that legislation will not be read to alter substantive rights in pending proceedings unless Parliament has expressed that intention unambiguously. Because the proclamation lacked the requisite clarity to displace that principle in the context of ongoing criminal proceedings, the amendments had no operation in this case. The Court therefore found it unnecessary to consider the appellant's constitutional arguments about retrospective criminal legislation.

On the indictment's adequacy, the Court held that particulars of a terrorist act were essential factual ingredients that had to be pleaded. The definition of "terrorist act" in section 100.1 of the Criminal Code is multi-limbed, requiring action or threatened action with certain physical consequences, motivated by a specified political, religious, or ideological purpose, and falling outside certain exceptions. Knowledge by the accused of the connection between their conduct and a terrorist act is a fundamental element of offences under sections 101.4, 101.5, and 101.6. The fresh indictment pleaded only one limb of that definition and omitted the remaining essential elements.

The Court found the fresh indictment was also duplicitous. Counts that bundled together causing death, causing serious harm, and causing serious property damage as alternatives encompassed legally distinct acts, each capable of constituting a separate offence. That structure rendered the relevant counts bad for duplicity.

Section 11 of the Criminal Procedure Act 1986, which provides that an indictment is not void for want of form if it states the substance of the charge, did not save the indictment. The defects were substantive, not merely formal: essential elements of the charged offences had simply not been pleaded.

Orders Made

  • Leave to appeal granted.
  • The indictment quashed.
  • Matter remitted to Whealy J.
  • Paragraphs [8] to [13] of the judgment not to be published until further order of Whealy J.
  • Liberty to apply within two working days to McClellan CJ at CL to extend the publication restriction to additional paragraphs.
  • No copies of the judgment to be made available to non-parties until the two-working-day period expired or the parties notified the Registrar that no such application would be made.
  • The judgment not to be placed on the Court's website until further order of Whealy J, save for a version with paragraphs [8] to [13] (and any additional paragraphs restricted under the liberty to apply) deleted.

Key Takeaways

  • Retrospective amendments to criminal offence provisions do not automatically apply to proceedings already commenced: absent a clear parliamentary statement to that effect, the clear statement principle of statutory interpretation preserves the accused's position under the law as it stood when proceedings began.
  • Under sections 101.4, 101.5, and 101.6 of the Criminal Code, knowledge of a terrorist act is a fundamental element of each offence, and particulars of that act must be pleaded in the indictment as essential factual ingredients.
  • Where a count in a terrorism indictment bundles together legally distinct forms of harm as alternatives (for example, death, serious bodily injury, and serious property damage), that count may be bad for duplicity.
  • Section 11 of the Criminal Procedure Act 1986 (NSW) cures formal deficiencies in an indictment but cannot rescue an indictment that fails to plead substantive essential elements of the charged offence.
  • The Court of Criminal Appeal left constitutional questions about retrospective criminal legislation unresolved, deciding the case on the narrower statutory interpretation ground and expressly declining to go further.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 100.1, 101.4, 101.5, 101.6
- Anti-Terrorism Act 2005 (Cth)
- Anti-Terrorism Act (No 2) 2005 (Cth), Schedule 1, Item 22
- Acts Interpretation Act 1901 (Cth), s 8
- Criminal Procedure Act 1986 (NSW), s 11
- Judiciary Act 1903 (Cth), s 79
- Crimes Act 1901, ss 313, 315

Key Cases
- Re Joseph Suche & Co Ltd (1875) 1 Ch D 48
- Continental Liqueurs Pty Ltd v G F Heublein & Bro Inc (1960) 103 CLR 422
- Zainal bin Hashim v Government of Malaysia [1980] AC 734
- L'Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 496
- Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816
- Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557
- R v Janceski [2005] NSWCCA 281; 223 ALR 580
- Al-Kateb v Godwin (2004) 219 CLR 562
- Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476
- Daniels Corporation v ACCC (2002) 213 CLR 543
- State of Victoria v Robertson (2000) 1 VR 465