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Supreme Court 14 February 2006

Regina v Lodhi

[2006] NSWSC 584

Public order & justice offences
TERRORISM OFFENCES INDICTMENT DUPLICITY PARTICULARS

Citation: Regina v Lodhi [2006] NSWSC 584
Court: Supreme Court of New South Wales
Date: 14 February 2006
Judge(s): Whealy J

Background

The accused faced charges under the Criminal Code Act 1995 (Cth) relating to alleged preparation for terrorist acts occurring in October 2003. The charges included collecting maps of the Australian electricity supply system, seeking information about explosive materials, making aerial photographs of defence establishments, and possessing a document containing instructions for explosives and poisons.

A fresh indictment was presented on 7 February 2006 after the Crown declined to proceed on one count from an earlier indictment. The accused pleaded not guilty to all four counts in the new indictment.

Defence counsel brought a Notice of Motion challenging the validity of the indictment on two grounds: that certain counts were duplicitous, and that the indictment failed to specify all essential elements of the offences.

  • Whether any of the four counts in the fresh indictment were duplicitous (that is, whether a single count impermissibly charged more than one offence)
  • Whether the indictment failed to plead all essential factual elements of the terrorism offences, including whether the accused's political, religious, or ideological purpose had to be expressly stated as an element of each charge
  • Whether the Crown should be ordered to provide further particulars of the charges

Decision

Whealy J dismissed the motion in its entirety. His Honour had previously addressed duplicity concerns in a December 2005 pre-trial ruling and confirmed that the fresh indictment did not contain any overt or latent duplicity requiring the Crown to elect to narrow the charges.

On the question of missing elements, his Honour held that the indictment properly pleaded each offence in the terms of the statute. Counts 1 and 3 already contained particulars of the alleged terrorist act. The Crown indicated it would provide particulars for counts 2 and 4 regarding the general nature of the terrorist act in an amended indictment.

Whealy J rejected the defence argument that the Crown was required to plead, as an essential element of each charge, that the accused personally held the political, religious, or ideological intentions identified in the definition of "terrorist act" under section 100.1 of the Criminal Code. For offences under sections 101.4 and 101.5, the relevant fault elements required that the accused's conduct be connected with preparation for a terrorist act and that the accused knew of that connection. The broader purposes set out in section 100.1(b) and (c) did not need to be demonstrated as intentions held individually by the accused.

On the question of further particulars, his Honour declined to intervene at that stage, noting that the parties had so far managed pre-trial matters cooperatively and should seek to resolve any outstanding particulars between themselves before returning to the court.

Orders Made

  • The Notice of Motion on behalf of the accused was dismissed.

Key Takeaways

  • Under sections 101.4 and 101.5 of the Criminal Code Act 1995 (Cth), the prosecution is not required to plead, as an essential element of the charge, that the accused personally held the political, religious, or ideological intentions contained in the definition of "terrorist act" in section 100.1.
  • An indictment for terrorism preparation offences is not defective merely because it does not allege the accused's subjective ideological motive, provided it correctly identifies the relevant fault elements, namely knowledge of the connection between the accused's conduct and preparation for a terrorist act.
  • Pleading each offence in the terms of the statute, together with particulars of the alleged terrorist act, is sufficient to satisfy the requirements of a valid indictment for these offences.
  • The Supreme Court confirmed that disputes about further particulars in complex terrorism prosecutions are best resolved cooperatively between the parties, with judicial intervention available only if genuine difficulty arises.
  • No duplicity was found in a terrorism indictment where separate counts each identified a distinct act (collecting, making, possessing, or seeking information) connected to preparation for a terrorist act, even where the underlying terrorist act was described in general terms.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 100.1, 101.4, 101.5, 101.6
- Criminal Code Amendment (Terrorism) Act 2003 (Cth)
- Anti-Terrorism Act 2005 (Cth)
- Criminal Procedure Act 1986 (NSW)
- Road Transport (Safety and Management) Act 1999 (NSW)
- Workers' Rehabilitation Compensation Act 1986 (SA)
- 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
- John L Pty Limited v A.G. (NSW) (1987) 163 CLR 508
- Eastman v DPP [2003] 214 CLR 318
- Cook v Benson [2003] 214 CLR 370
- R v Janceski [2005] NSWCCA 281
- R v Mai (1991) 26 NSWLR 371
- DPP v Belani [2005] NSWSC 1013
- R v Ul-Haque (unreported, Bell J, 8 February 2006)
- Ex Parte Lovell re Buckley (1938) 38 SR (NSW) 153
- Romeyko v Samuels (1972) 2 SASR 529
- Manwaring (1983) 2 NSWLR 88