Citation: Regina (C'Wealth) v Baladjam & Ors [No 4] [2008] NSWSC 726
Court: Supreme Court of New South Wales
Date: 18 March 2008
Judge(s): Whealy J
Background
Nine accused were charged on a single indictment alleging that, between July 2004 and November 2005, they conspired together to do acts in preparation for a terrorist act or acts, contrary to sections 11.5 and 101.6 of the Criminal Code Act 1995 (Cth). The prosecution was brought by the Commonwealth Director of Public Prosecutions. The case was being heard in the Criminal List of the Supreme Court at Parramatta.
Before trial, all nine accused joined in a notice of motion mounting a broad pre-trial attack on the indictment itself. Counsel for various accused divided the argument across three distinct grounds, each targeting the legal validity or appropriateness of the conspiracy charge as framed.
Legal Issues
- Whether the court should dismiss the conspiracy charge in the interests of justice under section 11.5(6) of the Criminal Code Act 1995 (Cth)
- Whether the indictment was bad for duplicity, either because the Criminal Code altered the common law position on conspiracy in a relevant way, or for other reasons producing patent or latent duplicity
- Whether a charge of conspiracy to commit an act in preparation for a terrorist act (under section 101.6) was an offence unknown to the law, rendering the indictment a nullity
Decision
Interests of justice (section 11.5(6)): Whealy J declined to exercise the discretion to dismiss the conspiracy charge. Section 11.5(6) of the Criminal Code confers a power on the court to dismiss a conspiracy charge where the interests of justice require it. The court found no basis for exercising that discretion in favour of any of the accused on the facts and legal arguments presented.
Duplicity: The court rejected the argument that the indictment was duplicitous, both under the common law and as modified by the Criminal Code. The submission that the Code had made a significant alteration to the common law of conspiracy in a way that rendered the charge duplicitous was not accepted. Neither patent nor latent duplicity was established on any of the bases argued.
Offence unknown to law: The court rejected the contention that a conspiracy to do acts in preparation for a terrorist act (section 101.6) was an offence unknown to the law. Section 101.6 creates a substantive offence. Section 2.2 of the Criminal Code applies Chapter 2 of the Code, including the general conspiracy provision in section 11.5, to all offences under the Code. The court held that combining section 11.5 with section 101.6 produces a recognised and legally valid offence. The accused were not charged with conspiring to agree to commit an offence, but rather with conspiring to commit a substantive preparatory offence.
On the related question of fault elements, the court considered and reconciled observations from different judges in the Lodhi decisions. Whealy J concluded that the requirement for knowledge of a connection between the accused's actions and a terrorist act did not support the proposition that the agreement itself constituted an act of preparation, nor that the charge as framed was otherwise defective.
Orders Made
- All orders sought in the notice of motion were refused and the application was dismissed.
Key Takeaways
- Combining the general conspiracy provision in section 11.5 of the Criminal Code Act 1995 (Cth) with the preparatory terrorism offence in section 101.6 produces a valid, known offence, not a charge unknown to the law.
- Section 2.2 of the Criminal Code applies Chapter 2 (including section 11.5) to all offences under the Code, meaning conspiracy to commit a preparatory terrorism offence is expressly catered for by the legislative scheme.
- A single indictment charging multiple accused with conspiracy to do preparatory acts for a terrorist act or acts was not found to be duplicitous, either on common law principles or by reason of any modification introduced by the Criminal Code.
- The discretion to dismiss a conspiracy charge under section 11.5(6) in the interests of justice is available to the court but was not exercised here, with Whealy J finding the circumstances did not warrant dismissal.
- The court's approach drew on the Court of Criminal Appeal's reasoning in R v Lodhi [2006] NSWCCA 121, confirming that particulars of the terrorist act are required in the indictment but that the fault element analysis does not render such charges legally defective.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 2.2, 11.5, 11.5(6), 101.4, 101.5, 101.6
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Evidence Act 1995
- Criminal Law Act 1977 (UK)
Key Cases
- R v Lodhi [2006] NSWCCA 121; [2006] 199 FLR 303
- R v Lodhi [2005] NSWSC 1377; 199 FLR 236
- Regina v JS [2007] NSWCCA 272
- R v Ansari [2007] NSWCCA 204
- R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135
- Hoar (1981) 148 CLR 32
- Ahearn v Regina (1988) 164 CLR 87
- Gerakiteys v The Queen (1984) 153 CLR 317
- Regina v Tripodi (1961) 104 CLR 1
- Johnson v Miller (1937) 59 CLR 467
- S v The Queen (1989) 168 CLR 266
- Masters v R (1992) 26 NSWLR 450
- R v Locchi (1991) 22 NSWLR 309
- R v Moussad (1999) 152 FLR 373
- Saffron v R (1989) 17 NSWLR 395
- Stanton v Abernathy (1990) 19 NSWLR 656
- Walsh v Tattersall (1996) 188 CLR 77
- DPP v Merriman [1973] AC 584
- Viera v Regina; Teehan v Regina [2006] NSWCCA 401
- R v Kwok; R v Ong; R v Tan [2005] NSWCCA 245
- R v Bolus & Ors [2003] NSWSC 658