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41
Court of Criminal Appeal 20 December 2007

Faheem Khalid Lodhi v Regina

[2007] NSWCCA 360

Also reported as (2007) 179 A Crim R 470
Firearms & weapons
CRIMINAL LAW CRIMINAL LAW INDICTMENT PARTICULARS WHETHER INDICTMENT LACKED PARTICULARITY CRIMINAL LAW

Citation: Faheem Khalid Lodhi v Regina [2007] NSWCCA 360
Court: NSW Court of Criminal Appeal
Date: 20 December 2007
Judge(s): Spigelman CJ, Barr J, Price J

Background

The appellant was convicted in the Supreme Court of three offences under the Commonwealth Criminal Code: collecting documents connected with the preparation of a terrorist act (maps of Australia's electricity supply grid); doing an act in preparation for a terrorist act (seeking information from a chemical supply company about materials capable of making explosives or incendiary devices); and possessing a document containing instructions for making poisons, explosives, detonators, and incendiary devices. The jury acquitted him of a fourth charge.

The trial judge, Whealy J, sentenced the appellant to concurrent terms totalling 20 years' imprisonment, with a non-parole period of 15 years. The maximum penalties for the offences were 10 years, life, and 10 years' imprisonment respectively.

The appellant appealed against both his conviction and his sentence. The High Court subsequently refused special leave on 13 June 2008.

  • Whether the indictment was duplicitous or lacked sufficient particularity (raised again after an earlier interlocutory appeal)
  • Whether section 31(8) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), which empowers judges to make non-disclosure orders protecting national security information, was constitutionally invalid as an impermissible usurpation of judicial power under Chapter III of the Constitution
  • Whether evidence of the appellant's association with a trained terrorist was admissible, including whether it carried probative value sufficient to outweigh the risk of unfair prejudice
  • Whether photographic identification evidence was admissible and whether the identification procedure was fair
  • Whether fresh evidence adduced on appeal met the relevant threshold of being fresh and cogent
  • Whether the Crown was required to prove, as an element of the preparatory offences, that the accused had at the time determined the specific details of when, how, where, or by whom a terrorist act would be carried out
  • Whether the sentencing judge correctly assessed the objective seriousness of the offences and gave sufficient weight to the appellant's custodial conditions, and whether the sentences were manifestly excessive

Decision

Indictment challenges: The Court declined to revisit the duplicity and particularity grounds, having already addressed them in an earlier interlocutory appeal: [2006] NSWCCA 121. No error was established on that front.

Constitutional validity of the NSI Act: The Court rejected the argument that section 31(8) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) was constitutionally invalid. The power to make non-disclosure orders to protect national security information was held not to usurp judicial power in a manner inconsistent with Chapter III of the Constitution. The legislation left substantive decision-making authority with the court.

Elements of the preparatory offences: The Court confirmed that the Crown was not required to prove, as an element of the offences under sections 101.4, 101.5, and 101.6 of the Criminal Code, that the accused had at the relevant time determined the specific details of how, when, where, or by whom a terrorist act would be carried out. The preparatory offences are designed to capture conduct at a stage well before a specific plan is formed, and imposing that requirement would defeat the evident legislative purpose of criminalising conduct preparatory to a terrorist act.

Evidence and fresh evidence grounds: The Court found that the association evidence was properly admitted, carrying sufficient probative value to permit the jury to draw inferences about the appellant's intent. The photographic identification evidence was also properly admitted. Fresh evidence adduced on appeal did not satisfy the applicable threshold and was rejected. The conviction appeal was dismissed.

Sentence: The Court found no error in the sentencing judge's approach. Whealy J had appropriately balanced the appellant's subjective circumstances against the competing sentencing principles of general deterrence, denunciation, and protection of the community. The Court affirmed that, in terrorism cases, rehabilitation and personal circumstances ordinarily carry reduced weight. The 20-year head sentence for the most serious offence, carrying a maximum of life imprisonment, was not manifestly excessive. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; sentence appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the preparatory terrorism offences under sections 101.4, 101.5, and 101.6 of the Criminal Code do not require proof that an accused had settled on the specific details of a planned terrorist act at the time of the relevant conduct. Culpability attaches to preparatory acts well before any concrete operational plan is formed.

  • Section 31(8) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), which empowers a court to make orders prohibiting disclosure of national security information, was held not to breach Chapter III of the Constitution. The conferral of that power on a court does not impermissibly usurp judicial power.

  • Association evidence linking an accused to a trained terrorist can carry sufficient probative value to support inferences about intent, provided the risk of unfair prejudice does not outweigh that value. The admissibility assessment remains fact-specific.

  • In sentencing for terrorism preparatory offences, the Court confirmed that general deterrence, denunciation, and community protection carry heightened weight, and that rehabilitation and favourable personal circumstances will ordinarily receive reduced emphasis.

  • A 20-year concurrent head sentence with a 15-year non-parole period for preparatory terrorism offences, where the most serious count carried a maximum of life imprisonment, was not manifestly excessive in the circumstances of this case.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), sections 101.4, 101.5, 101.6
- National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), section 31(8)
- Criminal Appeal Act 1912 (NSW), section 5F
- Crimes Act 1914 (Cth), sections 16A(1), 16A(2)
- Evidence Act 1995 (NSW)
- Terrorism Act 2000 (UK)
- Criminal Justice Act 1991 (UK); Criminal Justice Act 2003 (UK)

Key Cases:
- R v Lodhi [2006] NSWCCA 121 (earlier interlocutory appeal)
- R v Lodhi [2006] NSWSC 371; (2006) 163 A Crim R 448 (trial judgment)
- Thomas v Mowbray [2007] HCA 33; (2007) 81 ALJR 1414
- Fardon v Attorney General of Queensland [2004] HCA 46; (2004) 223 CLR 575
- Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
- R v Shamouil [2006] NSWCCA 112
- Markarian v The Queen (2005) 79 ALJR 1048
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Festa v The Queen (2001) 208 CLR 593
- Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173