Citation: B v R [2008] NSWCCA 85
Court: New South Wales Court of Criminal Appeal
Date: 21 April 2008
Judge(s): Spigelman CJ; James J; Howie J
Background
Eight applicants were charged on a single-count indictment alleging they conspired with each other and others to do acts in preparation for a terrorist act or acts, contrary to the Commonwealth Criminal Code. The charge arose from what the Crown characterised as a single criminal enterprise involving multiple individuals and acts.
Before trial, the applicants challenged the indictment on several grounds before Whealy J in the Supreme Court. Whealy J dismissed those challenges, and the applicants sought leave to appeal to the Court of Criminal Appeal.
Legal Issues
- Whether the indictment was patently duplicitous by charging a conspiracy to commit either a single or multiple terrorist preparatory acts in one count
- Whether the indictment was latently duplicitous, meaning that evidence at trial might reveal multiple separate agreements rather than one
- Whether the consent of the Director of Public Prosecutions to commence proceedings was validly obtained under s 11.5(8) of the Criminal Code Act 1995 (Cth)
- Whether a conspiracy to commit a preparatory act (under s 101.6 of the Criminal Code) is an offence known to law, or whether it collapses into an absurdity
Decision
Patent duplicity: The Court held that the indictment was not patently duplicitous. Section 11.5 of the Criminal Code uses the word "offence" in the singular, but s 23 of the Acts Interpretation Act 1901 (Cth) extends this to the plural absent a contrary indication. Given the nature of conspiracy, no such contrary indication exists. The Court further held that common law principles governing conspiracy were incorporated into the Code by the use of technical legal terms, and those principles have always permitted an agreement directed at multiple offences to be charged in a single count.
The Court rejected the argument that pleading preparation for "a terrorist act (or acts)" created duplicity. Preparatory acts for terrorism may occur before the precise nature or number of future terrorist acts has been decided, and pleading the statutory provision identifying the "forbidden characteristics" of such acts does not make an indictment duplicitous.
Latent duplicity: The Court confirmed that latent duplicity is a recognised form of duplicity capable of attracting a remedy, but quashing an indictment is a rare outcome. Based on Whealy J's findings of fact, it was not established at this stage that the Crown case necessarily involved multiple separate agreements. Appropriate remedies, if latent duplicity emerged, would include requiring the prosecutor to elect, provide particulars, or give jury directions.
Consent to prosecute and conspiracy to commit a preparatory act: The Court (with one aspect stood over for further argument) refused leave on the consent grounds. On the question of whether a conspiracy to commit a preparatory act is known to law, the Court held it is. Unlike a charge of conspiracy to supply drugs (where the agreement itself constitutes the substantive offence, creating an "agreement to agree" absurdity), a conspiracy to engage in preparatory acts does not produce that logical circularity. The fact that an agreement might itself constitute one of the preparatory acts does not render the conspiracy charge meaningless or unknown to law.
Orders Made
- Order 3 sought in the applications of three named applicants stood over for further hearing
- Leave to appeal refused on all other grounds in each application
Key Takeaways
- The Court of Criminal Appeal confirmed that the Commonwealth Criminal Code's conspiracy provision incorporates longstanding common law principles, including the rule that a single conspiracy may encompass multiple contemplated offences without producing duplicity.
- A single count charging conspiracy to commit preparatory terrorist acts is not patently duplicitous merely because it refers to "a terrorist act or acts," given that preparatory conduct can precede any final decision about the number or nature of future attacks.
- Latent duplicity remains a legally recognised form of duplicity, but quashing an indictment is a rare remedy; election, particulars, or jury directions are the more appropriate responses where it arises.
- A charge of conspiracy to commit acts in preparation for a terrorist act (under s 101.6 of the Criminal Code) is an offence known to law. The "agreement to agree" absurdity identified in cases involving conspiracy to supply drugs does not extend by analogy to conspiracy to commit preparatory acts.
- Under s 23 of the Acts Interpretation Act 1901 (Cth), singular references to "offence" in s 11.5 of the Criminal Code extend to the plural, and the nature of conspiracy itself provides no indication to the contrary.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5, 11.5(6), 11.5(8), 101.6, 135.4
- Acts Interpretation Act 1901 (Cth), s 23
- Crimes Act 1914 (Cth), ss 41, 42
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Judiciary Act 1903 (Cth)
- Criminal Code Act 1899 (Qld)
Key Cases:
- Vallance v The Queen (1961) 108 CLR 56
- Stuart v The Queen (1974) 134 CLR 426
- Director of Public Prosecutions v Merriman [1973] AC 584
- Johnson v Miller (1937) 59 CLR 467
- S v The Queen (1989) 168 CLR 266
- Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77
- R v Barlow [1997] HCA 18; (1997) 188 CLR 1
- Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303
- R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236
- R v Chow (1987) 11 NSWLR 561
- R v Challita (1988) 37 A Crim R 175
- R v Carusi (1989) 17 NSWLR 516
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- Ansari v The Queen [2007] NSWCCA 204; (2007) 173 A Crim R 112
- Stanton v Abernathy (1990) 19 NSWLR 656
- Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
- Bank of England v Vagliano Brothers [1891] AC 107