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Supreme Court 24 April 2006

Regina v Lodhi

[2006] NSWSC 639

Public order & justice offences
CRIMINAL LAW FRESH INDICTMENT DUPLICITY

Citation: Regina v Lodhi [2006] NSWSC 639
Court: Supreme Court of New South Wales
Date: 24 April 2006
Judge(s): Whealy J

Background

The accused faced four charges under the Criminal Code Act 1995 (Cth) relating to alleged acts of preparation for a terrorist act. The charges concerned conduct in late 2003, including 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 making explosives and poisons.

The case had a complex procedural history. A pre-trial ruling in December 2005 held that the original indictment was not bad for duplicity. The Crown then filed a fresh indictment in February 2006, which the accused sought to quash on duplicity and particularity grounds. Whealy J initially declined to quash that indictment, but an appeal to the Court of Criminal Appeal succeeded on the basis that the indictment failed to specify the necessary factual elements of each offence, leading to its being quashed.

On 18 April 2006, the Crown filed a further new indictment in amended form, incorporating the factual elements the Court of Criminal Appeal had found lacking. The accused immediately applied to quash this new indictment as well, prompting the decision under review.

  • Whether the new indictment was bad for duplicity, including any latent duplicity introduced by the revised pleading
  • Whether the new indictment charged offences not known to law
  • Whether the indictment lacked sufficient particularity to be a valid charging document

Decision

On the duplicity ground, Whealy J dealt briefly with the first limb: the arguments were the same as those rejected by the Court of Criminal Appeal, and his Honour was bound by that decision. The new indictment was not bad for duplicity on those grounds.

The second limb of the duplicity argument concerned alleged latent duplicity introduced by the new, more detailed pleading. The accused argued that certain aspects of the particulars relating to the terrorist act were pleaded in a way that introduced new ambiguity. His Honour reviewed count 1 in detail as a representative example and applied the test for latent duplicity set out in Romeyko v Samuels (1972) 2 SASR 520. During argument, the Crown also sought and was granted leave to delete one paragraph from each charge. After that amendment, his Honour was satisfied that no latent duplicity remained.

On the ground that some charges were for offences unknown to law, the deletion of the relevant paragraphs by amendment again addressed the difficulty to his Honour's satisfaction. On the final ground of lack of particularity, Whealy J rejected the submission. He reasoned that the expanded length and complexity of the indictment was an inevitable consequence of the accused's own successful argument before the Court of Criminal Appeal, which had required the Crown to plead all essential factual ingredients drawn from the definitions in the Criminal Code. The essential nature of the Crown case had not changed, and the court retained the duty to direct the jury on each element and the obligation on the Crown to prove each beyond reasonable doubt.

Orders Made

  • The application to quash the new indictment was refused.
  • The indictment was to stand in its presently amended form (with the Crown's amendment deleting one paragraph from each charge having been granted during argument).

Key Takeaways

  • The Court of Criminal Appeal had already confirmed that charges under ss 101.4, 101.5 and 101.6 of the Criminal Code Act 1995 (Cth) are not inherently bad for duplicity, and Whealy J was bound by that ruling.
  • Where an appellate court quashes an indictment for failing to plead all essential factual elements, the Crown may file a fresh indictment that includes those elements; such an indictment is not invalid merely because it is longer and more complex than the original.
  • An indictment does not lack sufficient particularity simply because it sets out all possible factual ingredients contemplated by the relevant statutory definition, provided those ingredients are genuinely required elements of the offence.
  • Latent duplicity in an amended or new indictment remains a distinct and reviewable ground of challenge, separate from the duplicity arguments already resolved by a higher court.
  • In terrorism preparatory-act cases, the Crown's inability to identify a specific ultimate target does not invalidate the charges; it was always the Crown's case that the ultimate target may not yet have been selected at the time the alleged preparatory acts occurred.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 101.4, 101.5(1), 101.6
- Criminal Procedure Act 1986 (NSW), s 17

Cases
- Lodhi v Regina [2006] NSWCCA 121, Spigelman CJ (McClellan CJ at CL and Sully J agreeing)
- Romeyko v Samuels (1972) 2 SASR 520