Faheem Khalid LODHI v Regina

SPIGELMAN CJ: This is an application for leave to appeal from the refusal of Whealy J to quash counts in an indictment against the Applicant in this Court. As finally presented there are four counts on the indictment as follows: 1 On or about 3 October 2003 at Sydney in the State of New South Wales, did collect documents, namely two maps of the Australian electricity supply system which were connected with preparation for a terrorist act, namely bombing part of the system, knowing the said connection. 2 On or about 10 October 2003 at Sydney in the State of New South Wales, did an act, namely sought information concerning the availability of materials capable of being used for the manufacture of explosives, in preparation for a terrorist act, namely causing the death of or serious physical harm to a person or persons unknown or causing serious damage to property unknown. 3 On or about 24 October 2003 at Sydney in the State of New South Wales, did make a document, namely a set of aerial photographs of Australian defence establishments which were connected with preparation for a terrorist act, namely the bombing of one or another of the establishments, knowing the said connection. 4 On or about 26 October 2003 at Sydney in the State of New South Wales, possessed a thing, namely a document containing information concerning the ingredients for and the method of manufacture of poisons, explosives, detonators and incendiary devices and concerning “intelligence” which was connected with preparation for a terrorist act namely causing the death of or serious physical harm to a person or persons unknown or causing serious damage to property unknown, knowing the said connection.

Each of Counts 1 and 3 are offences under s101.5 of the Schedule to the Criminal Code Act 1995 (Cth). Count 2 is an offence under s101.6 and Count 4 is an offence under s101.4.

At the time that the Applicant was arraigned and pleaded, these three sections stated: “101.4(1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b). … (3) A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur. 101.5(1) A person commits an offence if: (a) the person collects or makes a document; and (b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b). … (3) A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur. 101.6(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act. (2) A person commits an offence under subsection (1) even if the terrorist act does not occur.”

“Terrorist act” is defined in s100.1 of the Code as follows: “terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person’s death; or (d) endangers a person’s life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person’s death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. (4) In this Division: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and (b) a reference to the public includes a reference to the public of a country other than Australia.”

Furthermore, s100.4 provides: “(1) Subject to subsection (4), this Part applies to the following conduct: (a) all actions or threats of action that constitute terrorist acts (no matter where the action occurs, the threat is made or the action, if carried out, would occur); (b) all actions ( preliminary acts ) that relate to terrorist acts but do not themselves constitute terrorist acts (no matter where the preliminary acts occur and no matter where the terrorist acts to which they relate occur or would occur). … (2) Subsections (4) and (5) apply to conduct if the conduct is itself a terrorist act and: (a) the terrorist act consists of an action and the action occurs in a State that is not a referring State; or (b) the terrorist act consists of a threat of action and the threat is made in a State that is not a referring State. (3) Subsections (4) and (5) also apply to conduct if the conduct is a preliminary act that occurs in a State that is not a referring State and: (a) the terrorist act to which the preliminary act relates consists of an action and the action occurs, or would occur, in a State that is not a referring State; or (b) the terrorist act to which the preliminary act relates consists of a threat of action and the threat is made, or would be made, in a State that is not a referring State. (4) Notwithstanding any other provision in this Part, this Part applies to the conduct only to the extent to which the Parliament has power to legislate in relation to: (a) if the conduct is itself a terrorist act—the action or threat of action that constitutes the terrorist act; or (b) if the conduct is a preliminary act—the action or threat of action that constitutes the terrorist act to which the preliminary act relates. …”

By the Anti-Terrorism Act 2005 (Cth) (the “ATA Act”) s101.4(3), s101.5(3) and s101.6(2) were each repealed and replaced by a new sub(3) (in the case of s101.4 and s101.5) and a new sub(2) (in the case of s101.6). This new subsection repeated the words “A person commits an offence under subsection (1) or (2) even if” as a chapeau. The balance of the old subsection was included as par (a), but was changed from reading “ the terrorist act does not occur” to reading “ a terrorist act does not occur”. New pars (b) and (c) were added in parallel terms: “101.4(3) … (b) the thing is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or (c) the thing is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act. “ “101.5(3) … (b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or (c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act. “ “101.6(2) … (b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or (c) the person’s act is done in preparation for, or planning, more than one terrorist act.”

Whealy J delivered two judgments on the Notice of Motion to quash the indictment. The first on 23 December 2005 was concerned with the indictment in a somewhat different form to that presently before the Court. The second judgment of 14 February 2006 was concerned with the indictment in its present form. A number of the matters the subject of this appeal were determined in the first of the two judgments. The Crown Case

Removed by court order, see [95] order (4).

Removed by court order, see [95] order (4).

Removed by court order, see [95] order (4).

Removed by court order, see [95] order (4).

Removed by court order, see [95] order (4).

Removed by court order, see [95] order (4). Subsequent Legislation

The ATA Act amended each of s101.4(3), s101.5(3) and s101.6(2) of the Criminal Code by adding what appears as (a), (b) and (c), set out above. This Act received Royal Assent on 3 November 2005.

On 14 December 2005 the Anti-Terrorism Act (No 2) 2005 (Cth) (the “ATA No 2 Act”) received Royal Assent. Item 22 in Sch 1 of that Act adds the following at the end of Div 106 of the Criminal Code : “106.3 The amendments to this Code made by Schedule 1 to the Anti-Terrorism Act 2005 apply to offences committed: (a) before the commencement of this section (but not before the commencement of the particular section of the Code being amended); and (b) after the commencement of this section.”

Item 22 of Sch 1 of the ATA No 2 Act was expressed to commence on a day to be fixed by proclamation. Such proclamation was made by the Governor-General on 15 February, with the effect that Item 22 commenced operation on 16 February 2006.

The Crown contends that upon the commencement of the operation of Item 22, the amendments which had been made by the ATA Act relevantly, s101.4(3)(a), (b) and (c), s101.5(3)(a), (b) and (c) and s101.6(2)(a), (b) and (c) as set out above, apply irrespective of whether an offence was committed before or after such commencement. The Crown contends that the amendments made by the ATA Act, as made retrospective by the ATA No 2 Act, apply to the trial of the Applicant.

The original indictment against the Applicant was presented and the Applicant pleaded, before the ATA No 2 Act received Royal assent on 14 December 2005. He pleaded when first arraigned in July 2005. He pleaded again when re-arraigned before Whealy J in early December. It was common ground that the proceedings had commenced before the new legislation relevantly came into force.

In his judgments of 23 December 2005 and 14 February 2006 Whealy J dealt with a number of objections to the indictment based on alleged duplicity and on a failure of the indictment to plead essential elements of the offence. As noted above, the ATA No 2 Act was proclaimed after the second of his Honour’s judgments. His Honour has not dealt with the effect of that Act. Mr P Bolton SC, who appeared for the Applicant, conceded that if this amendment was effective then the appeal must be dismissed.

It is, accordingly, appropriate to first consider the effect, if any, on these proceedings of s106.3, added by the ATA No 2 Act, which gives retrospective effect to each relevant offence provision.

The Applicant submitted that, on its proper construction, the Act did not apply to these proceedings. Alternatively, he submitted that the relevant sections were not validly enacted, either on the basis that they failed to comply with the terms of the referral of powers by the States to the Commonwealth or, alternatively, that they could not be enacted by reason of a violation of Ch III of the Commonwealth Constitution. Constitutional issues do not arise if the Applicant succeeds on his first point concerning the interpretation of the retrospective provisions. The Extent of Retrospectivity

It is common ground that the Applicant joined issue by pleading to the charges prior to s106.3 of the Criminal Code coming into effect. The Applicant relies on the principle of the common law that, absent clear words to the contrary, an act will be interpreted not to have retrospective operations. The Crown, and the intervening Attorney, rely on the express words of the section as indicating a clear Parliamentary intention that the legislation should have retrospective effect. The Crown and Attorney submit that there is no basis for reading down the words of s106.3 so as not to extend to pending criminal proceedings.

Although frequently expressed as a canon of construction or principle of the law of statutory interpretation, the reference to “retrospectivity” encompasses a range of distinct circumstances in which the general principle has fallen to be applied. In terms of the element of injustice or unfairness associated with retrospectivity, variation of rights and obligations after the pre-existing law has been invoked or otherwise relied upon does add an element of injustice or unfairness which does not exist before any such step is taken. Accordingly, there is a body of case law in which retrospectivity with respect to pending proceedings is treated as a distinct category. (See e.g. Re Joseph Suche & Co Ltd (1875) 1 Ch D 48 at 50; Hutchinson v Jauncey [1950] 1 KB 574 at 579; Continental Liqueurs Pty Ltd v G F Heublein & Bro Inc (1960) 103 CLR 422 at 427; Zainal bin Hashim v Government of Malaysia [1980] AC 734 at 742; L’Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 496 at 495-495 and 524-525; Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at [19], [153], [186], [193]-[198], [200]-[201] and [219]; State of Victoria v Robertson (2000) 1 VR 465 esp at [21]-[22], [25]; Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at [49]-[63].)

When referring to the presumption that Parliament did not intend to affect pending proceedings, Lord Roger of Earlsferry said in Wilson v First County Trust supra: “[198] … Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this … presumption will be that much harder to displace.”

There is a line of authority that the common law presumption against retrospectivity is not spent when it is clear that Parliament intended a statute to operate retrospectively. The extent of retrospective operation is itself a matter requiring interpretation of the statute. A statute will only be given retrospective operation to the extent intended by the Parliament and to no greater extent. This is to be determined by the words of the statute, construed in their full context, and in accordance with the scope and purpose of the legislation.

As Bowen LJ said in Reid v Reid (1886) 31 Ch D 402 at 408-409: “ … [E]ven in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim is applicable wherever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.”

Furthermore, Lindley LJ said in Lauri v Renad [1892] 3 Ch 402 at 420-421: “It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.”

Similarly, in Moss v Donohoe (1915) 20 CLR 615 at 621, Griffiths CJ said, in dissent on the result: “ … A larger retrospectivity should not be given to a statute which is to some extent intended to be retrospective than that which it can plainly be seen that the legislature intended.”

His Honour referred to Beal’s Cardinal Rules of Legal Interpretation Section VIII . The third edition of that work quotes Reid v Reid and Lauri v Renad with approval. See at 472-474. See also AG (NSW) v World Best supra at [48], [54].

The presumption against retrospectivity falls within the concept of the principle of legality which has been developed in recent years as a unifying concept, identifying the higher purpose of a number of interpretive principles. (See generally Spigelman “Principle of Legality and the Clear Statement Principle” (2005) 79 ALJ 769 at 774-776.)

That the presumption against retrospectivity falls within such a general concept was identified in the first lengthy development of the idea of a principle of legality by Glanville Williams ( Criminal Law: The General Part , London, Stevens & Sons Ltd (1953) at pp439-440). The concept of the principle of legality was reintroduced to contemporary jurisprudence by Lord Steyne, being a concept that he found in Halsbury’s Laws of England . (See R v Secretary of State for the Home Office; Ex parte Pierson [1998] AC 539 at 587. Halsbury’s Laws of England (4th ed) Reissue vol 8(2) (1996) para 6.) It has subsequently been adopted in Australia, first by Chief Justice Gleeson writing extra-judicially (see Murray Gleeson, The Rule of Law and the Constitution Boyer Lectures (2000) ABC Books pp2, 5) and subsequently in a number of judgments (see Al-Kateb v Godwin (2004) 219 CLR 562 at [19]; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 209 ALR 116 at [21], [23].) It has also been adopted by Chief Justice Elias in New Zealand ( R v Pora [2001] 2 NZLR 37 at 53.)

In the case which established the “principle of legality” as a unifying principle in English law, R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, Lord Hoffman said at 131: “[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

This passage was subsequently quoted with approval by Gleeson CJ ( Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 30; Al-Kateb supra at [19] at fn 11), Kirby J ( Daniels Corporation v ACCC (2002) 213 CLR 543 at 582) and by Elias CJ and Tipping J ( R v Pora [2001] 2 NZLR 37 at 53). Lord Steyne has subsequently characterised it as a “trenchant statement” ( Roberts (FC) v Parole Board [2005] 2 AC 738 at [93] and see at [30] per Lord Bingham). (See also B v DPP [2000] 2 AC 428 at 470; Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 at [82]; A (FC) v Secretary of State for the Home Department [2005] UKHL 71; 3 WLR 1249 at [51].)

The same idea was stated forcefully by Lord Simon of Glaisdale in Ealing London Borough Council v Race Relations Boards [1972] AC 342 at 361 when he said that the canons of construction: “are … constitutionally salutary in helping to ensure that legislators are not left in doubt as to what they are taking responsibility for.”

The principle of legality so understood supports the reasoning in Reid v Reid, Lauri v Renad and Moss v Donohoe that an overtly retrospective statute, which may have the effect of making past acts criminal, will not be understood to be applicable to criminal proceedings that have already been instituted, unless the Court can identify express words or a necessary intention that that is the intention of Parliament. In my opinion, there are no such express words nor is there any such necessary intention in either the ATA Act or the ATA No 2 Act.

Mr H Burmester SC who appeared for the Attorney General submitted that the purpose of the legislative scheme was to clarify that, in prosecutions for terrorist offences, the prosecution was not required to identify a particular terrorist act. That purpose, he submitted, is best advanced by not confining the retrospective application of the amendments to offences in respect of which proceedings have not been commenced.

The Supreme Court of the United States said in Rodriguez v United States , 480 US 522 (1987) at 525-526: “ … No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice – and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”

This passage has subsequently been cited with approval by Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 574; see also Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459 per McHugh J and Gummow J; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248 per Dawson J; Western Australian v Ward (2002) 213 CLR 1 at 283 fn 833 per Callinan J; Attorney-General (Western Australia) v Marquet (2003) 217 CLR 545 at [145] per Kirby J.

This approach is particularly apposite wherever the principle of legality is engaged, and particularly so in the case of a statute creating a criminal offence.

It is not, of course, necessary for Parliament to expressly address the question of pending actions. (See e.g. Hutchison v Jauncey supra and Zainal supra.) Whether a result is necessarily intended, in the objective sense of that word applicable in the law of statutory interpretation, requires careful consideration of the legislative scheme.

Legislation giving a lessee the right to claim relief against forfeiture and which contained a number of retrospective provisions was held to extend to pending proceedings. ( Quilter v Mapleson (1882) 9 QBD 672 esp at 677.) Similarly, the amendment to the migration law considered by the Full Federal Court in Madafferi v Minister for Immigration (2002) 118 FCR 326 was held at [72] to apply expressly in relation to ministerial decisions already taken and the section should not be read down so as not to apply to decisions that had already become the subject of judicial review proceedings made. Madafferi is, perhaps, the closest to the present case, but did not involve criminal proceedings.

In civil proceedings, where an order for indemnity costs may overcome any injustice, the presumption may not operate with great strength. (See Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466 at 487 per Mason JA; AG (NSW) v World Best supra at [66].)

Of particular significance in the present case is the fact that retrospective effect is sought to be given to a provision creating a criminal offence. Much of the case law is concerned with civil causes of action. The clear statement principle operates with particular force in the criminal context.

The Applicant relied on the High Court judgment in Newell v The King (1936) 55 CLR 707. In that case the accused had pleaded to an indictment. Before the trial occurred the relevant jury legislation was amended to provide for a majority verdict. The High Court determined that the amendment did not apply to the trial of that accused.

As the Crown and intervening Attorney submitted, there was nothing in the legislation under consideration in Newell of a retrospective character. Nevertheless, the relevant provision was introduced with the words “If, on the trial of any criminal issue …”. The debate in the High Court was whether or not what was involved was a substantive right or a matter relating to procedure. The Court held that the right to a jury was a “fundamental right of citizenship” (711) and accordingly was substantive.

Dixon J referred to the words “on the trial of any criminal issue” and said at 712-713: “They should be taken to mean on the trial of any criminal issue joined after the commencement of the Act. They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict.”

This was a particular application of the principle that where Parliament has used general words the courts will frequently read the words down. (See e.g. the cases collected in R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 at [23]-[31].) The terrorism context of the Act under consideration must be given weight in determining whether this principle of interpretation applies, but it is not determinative. (See R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12; 2 WLR 537 at [13]-[15].)

As Isaacs J put it in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 93: “The full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances to overcome the presumption.”

In my opinion, Parliament is “prima facie expected to respect” the principle that a statute will not retrospectively alter a criminal offence where a trial has commenced.

By the same process of interpretation that Dixon J applied in Newell, it is open to construe the words of s106.3 so as not to extend to “offences committed before the commencement of this section” on which criminal issue was joined before the commencement of the section. In my opinion, the principles of the law of statutory interpretation, particularly the clear statement principle, lead to the result that that interpretation should be adopted. The Parliament has not indicated an intention to achieve that result with sufficient clarity.

There is another route to the same conclusion. The “amendments” to which s106.3 refers are amendments made to s101.4(3), s101.5(3) and s101.6(2) of the Criminal Code. The provision, said to constitute “amendments”, repealed the previous subsections and replaced them by new subsections.

The effect of a repeal is, subject to an intention to the contrary, to be determined in accordance with s8 of the Acts Interpretation Act 1901. It is pertinent to note that that section refers to a number of different ways in which repealed legislation continues to have effect and makes separate provision for each of them.

In particular s8 provides: “8 Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: …. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Act so repealed; or … (e) affect any … legal proceedings … in respect of any such right, privilege, obligation liability … as aforesaid; and any such … legal proceeding … may be instituted, continued or enforced … as if the repealing Act had not been passed.”

Section 106.3 plainly affects the criminal “liability” of persons who have committed offences and, accordingly, it is a clear indication of a contrary intention for purposes of s8(c). It is not, however, clear that s106.3 is intended to extend to affect any “legal proceeding” in respect of such a criminal liability, within the meaning of s8(e).

The very structure of s8, providing as it does for distinct matters, reflecting in this regard the legislative regimes common in Interpretation Acts throughout Australia, itself suggests that, at least in a criminal context, a clear advertence to existing legal proceedings should exist before the Court concludes that there is a legislative intention to the contrary of s8(e). I can detect no such legislative intention in either the ATA Act or the ATA No 2 Act.

For these reasons I am of the opinion that the Applicant has made good the submission that, as a matter of construction, the Act does not apply in his case. Accordingly, the constitutional issues raised do not need to be considered. The Duplicity Issue

With respect to counts 2, 3 and 4 the Applicant submits that the indictment fails to particularise with the requisite level of specificity the “terrorist act” in which the accused had allegedly engaged and is duplicitous. Each of these submissions turned on the definition of “terrorist act”. The Applicant submits that each count must identify a particular terrorist act.

Section 101 of the Code is set out above together with the use of the definite article in each of s101.4(3), s101.5(3) and s101.6(2) as originally enacted, and in s100.4. The Applicant submitted that use of the definite article was deliberate and that the offence could only be committed if there was a definite terrorist act intended at the time that an accused committed the relevant actus reus expressed in the respective offence sections as: doing an act in preparation for a terrorist act; making a document connected with the preparation for a terrorist act; or possessing a document containing information connected with preparation for a terrorist act.

The Applicant submits that Counts 2, 3 and 4 fail to particularise the terrorist act with the required level of specificity or are duplicitous arising from the fact that each contains multiple acts. Count 2 and Count 4 each refer to three terrorist acts: causing the death of persons, causing serious physical harm to persons, or causing serious damage to property. Similarly it is common ground that Count 3 also refers to three different acts: namely the bombing of three separate military establishments.

In his judgment of 23 December 2005, Whealy J rejected the submission made with respect to the indictment as it then stood in a lengthy passage from which it is sufficient to extract the following for present purposes: “[43] In my opinion, the use of the definite article in s 101.5 (3) and s 101.6 (2) is no more than a reference to the phrase ‘a terrorist act’ in the earlier sub-sections. It does not seem to me that any ambiguity is involved in that regard at all. Nor am I persuaded that the appearance of the definite article in s 100.4 carries with it the meaning attributed to it by defence counsel. Generally the definite article in s 100.4 performs the same function I have identified, namely linking back to the phrases ‘a terrorist act’ or ‘terrorist acts’.”

In his subsequent judgment of 14 February 2006 his Honour further addressed this issue repeating and elaborating his analysis from the earlier judgment: “[65] Although there are differences between s 101.4, 101.5 and 101.6, there are clear similarities. I shall confine myself, in examining the statutory language, to those parts of the provisions that are relevant to the present charges. Relevantly, each provides for the commission of an offence if an act is done. Under s 101.4, the act is the possession of a thing namely, in this case, a document. The act must be ‘connected with preparation for a terrorist act;. The person charged must know of the connection. Under s 101.5 the act is the ‘collection of a document’. The act must be ‘connected with the preparation for a terrorist act’. The person charged must know of the connection. Under 101.6, the offence is committed where the accused ‘does any act in preparation for a terrorist act’. [66] In the case of each offence, the legislation provides, as I have noted earlier, ‘a person commits an offence…even if the terrorist act does not occur’ (my emphasis). [67] I remain of the opinion that the use of the definite article in ss 101.4(3), 101.5(3) and 101.6(2) is a reference to the phrase ‘a terrorist act’ in the earlier sub-sections. I remain of the view that there is no ambiguity involved in that regard at all. Nor am I persuaded that the appearance of the definite article in s 100.4 carries with it the meaning attributed by senior counsel for the accused. Generally, the definite article in s 100.4 performs the same function I have identified, namely a function of linking back to the phrases ‘a terrorist act’ or ‘terrorist acts’ in the section. Thirdly, I remain of the view that a reading of the definition of terrorist act (s 100(1), (2), (3) and (4)), in the light of an examination of the scope and the extent of the division generally, supports this construction. This is so, with one exception, for the reasons I gave in my original decision. I shall come to that exception later in these reasons. [68] The general framework of Part 5.3 of Ch 5 of the Code supports the conclusion I have reached in the following way: the type of action that is made criminal in terms of the division ranges from actually engaging in a terrorist act (s 101.1) down to an act that is altogether preliminary to that engagement: for example, receiving training connected with preparation for a terrorist act (s 101.2(1) and (2)); possessing a thing connected with preparation for the engagement of a person in, or assistance, in a terrorist act (s 101.4(1) and (2)); possessing a thing connected with preparation for the engagements of a person in, or assistance in, a terrorist act (s 101.4(1) and (2)); collecting or making a document connected with the preparation for, the engagement of a person in, or assistance in, a terrorist act (s 101.5(1) and (2)); and doing an act in preparation for or planning a terrorist act (s 101.6). [69] The wide range of activities made significantly criminal is itself postulated on the possibility that the criminal offence will or may occur long before any terrorist act itself is carried out. Indeed, apart from the offence of engaging in a terrorist act, each of ss 101.2, 101.4, 101.5 and 101.6 makes it clear that the offence is committed even if ‘the terrorist act does not occur’. (As I have already concluded, this is a reference to the phrase ‘a terrorist act’ where relevantly appearing in relation to each section creating the offence). Against this background it would be expected, as a matter of logic and commonsense, that the definition of ‘terrorist act’, would fit in with the concepts revealed by the type of activities that might be expected to be quite preliminary to but connected with the preparation for a terrorist act. As I said in my earlier decision it would, as a matter of logic and commonsense, hardly be expected that cities would be bombed and scores of people killed before the legislation would have the capacity to bite. … [76] The width of the definition of ‘terrorist act’ supports the notion that the Crown will prove this element of the case beyond reasonable doubt (or perhaps more accurately this aspect of the relevant element) if it establishes any one of the characteristics of the contemplated action as is specified in s 100.1(2). The nature of the action, however, may make it quite plain that it possesses a number of the characteristics that are enumerated in the sub-section. For example, if the contemplated action relates to the explosion of a large bomb during working hours in a city building, it may well establish characteristics that include physical harm to a significant number of people; serious damage to a building and the death of a number of people and the endangering of many peoples’ lives. Depending on the nature of the building and its function in the government or state system, it may well be that it will also possess the characteristic of seriously interfering with the systems referred to in 100.1(2)(f). On the other hand, by way of example, the intended action may be the administration of poison to but one person. In my opinion, however, the Crown would be obliged to prove beyond reasonable doubt that the intended action possessed at least one of the characteristics mentioned in the sub-section. If, however, it possessed more than one of those characteristics, it does not seem to me that more than one offence is created.”

In his earlier judgment his Honour had given a range of examples in this regard: “[52] … In my opinion, an offence will have been committed by a person acting in a preliminary way in preparation for a terrorist act even where no decision has been made finally as to the ultimate target. I cannot accept Mr Boulten’s argument that there needs to be ‘a different mens rea to bomb position X than to bomb position Y’. On the proper interpretation of the sections I have examined, it seems clear to me that an offence will have been committed provided there is an act done in preparation for an action that has (‘falls within’) or contemplates having the characteristics set out in sub-s (2). The requisite intention to satisfy the existence of the mental ingredient of the offence must be an intention that the act is done in preparation for an action or threat of action possessing those characteristics. [53] May I place this rather abstract analysis in a more concrete setting: The Crown argued that a suicide bomber who is apprehended in busy George Street Sydney at peak hour with a bombing apparatus strapped to his back could not avoid a conviction on the basis that he had not, at the time of his apprehension, selected a final target. The Crown said that the fact that the suicide bomber had not determined whether to explode the bomb in a café a shop or on a crowded bus would not prevent his conviction. Mr Boulten countered this argument by suggesting that the example did not take the matter further because the apprehended suicide bomber would be simply guilty of engaging in a terrorist act under s 101.1. [54] Let it be assumed, however, that a second person was apprehended at his home on that very day and was shown to have packed the suicide bomber’s bag with explosives. This person, however, had no idea of the target to be selected by the bomber, even though he knew it was contemplated that the bomb would be exploded somewhere in George Street so as to cause death to nearby bystanders. Could this individual escape liability on the basis that the Crown was unable to establish beyond reasonable doubt that he knew precisely the place in George Street where the bomb was to be exploded? In my opinion such a conclusion would yield an entirely unrealistic approach to the natural construction and meaning of the various section in the division, including the definition of ‘terrorist act’. [55] Let it be further assumed, by way of further example, that in the particular given situation it was contemplated, to the knowledge of the person who packed the explosives, that the suicide bomber would detonate the device either in the Queen Victoria Building or in Dymocks Book store but that no final decision had been made as to which it would be. Again, could criminal responsibility be avoided by the second person who carried out the act of preparation stating, with appropriate candour, that he simply did not know which of the two places was to be the ultimate target? Again, in my respectful opinion, the answer to that question must be ‘No’. This is so essentially for the same reasons I have earlier identified. The actus reus is the packing of the bag with explosives. The necessary ‘mens rea’ is the intention that an action is intended to be carried out which possesses the characteristics of causing serious physical harm to a person, in causing a person’s death or causing serious damage to property (or for that matter any of the other characteristics set out in sub-s (2)). This mental element is necessarily present even if a terrorist act does not occur and it exists even where the ultimate target has not been finally determined or is, at least, not known to the person who has done an act in preparation for a terrorist act.”

Subject to some observations below, I agree with the analysis of Whealy J. Each offence-creating provision – 101.4(1) and (2), 101.5(1) and (2), 101.6(1) – employs the indefinite article: “a terrorist act”. That is the relevantly dominant provision into which the definition of “terrorist act” in s100.1 must be read. The definite article appears in a subordinate provision and cannot be read back into the offence-creating subsection. As Whealy J concludes, the use of the definite article is no more than a reference back to the words “a terrorist act” in the previous subsections. It should be understood as if it said “even if the act did not occur”.

As Whealy J shows, the context of the sections and the scope and purpose of the legislative scheme confirms the interpretation suggested by the words creating each offence.

Each of the offence sections is directed to the preliminary steps for actions which may have one or more effects. By their very nature, specific targets or particular effects will not necessarily, indeed not usually, have been determined at such a stage. In the present case, no complaint is made about Count 1 which identifies the terrorist act as bombing an unspecified “part” of the electricity system.

Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy.

Each offence under the Criminal Code consists of a physical and a fault element (s3.1(1)). The duplicity issue focuses on the enunciation in each count of the physical element which can be, relevantly, either “conduct” or “a circumstance in which conduct occurs” (s4.1(1)(a), (c)).

The relevant physical elements, based on the terminology of the relevant provisions, are: Count 2: do an act i.e. seek information and the act is in preparation for or planning a terrorist act. (s101.6(1)) Count 3: make a document connected with preparation for a terrorist act. (s101.4(1)) Count 4: possess a thing i.e. document connected with preparation for a terrorist act. (s101.5(1))

In each count, only one act is alleged – ‘doing’, ‘making’, ‘possessing’ – being the physical element of conduct. The additional words ‘preparation or planning’ and ‘connection with preparation’ – should be understood as a second physical element of a “circumstance”. In Count 2 there is only one circumstance – “sought information”. In Count 3 there are, it appears, photographs of three sites. In Count 4 there are a number of matters constituting the “circumstance” – poisons, explosives, etc., as charged.

In an offence which is intended to apply before the offender has decided precisely what he or she intends to do, there is no duplicity in identifying a range of matters that may constitute a relevant “circumstance”.

The Applicant asserted that counts 2 and 4 were duplicitous by reason of their reference to the nature of the harm. Each of the counts referred to “causing the death of or serious physical harm to a person or persons unknown or causing serious damage to property unknown”. The Applicant submitted that these are three distinct offences relating to, respectively, death, or serious harm to a person, or serious damage to property.

The Applicant relied on the onus upon the Crown to prove that the alleged conduct is a “terrorist act” and that it does not fall within s100.1(3) of the Criminal Code relating to advocacy, protest, etc. That subsection refers to an absence of an intention to cause harm to persons. Accordingly, it was submitted that an action which is “advocacy, protest, dissent or industrial action” and which is merely intended to cause property damage would not be a terrorist act. This differentiation indicates, it is submitted, a need to separate, at least as alternative counts, the causing of property damage.

In this regard his Honour said in his second judgment: “[95] In relation to the ‘nature of harm’ argument, I have not found this of significance in relation to either the construction of the legislation or the argument related to duplicity. It goes without saying that, in a particular case, the nature of the terrorist act is likely to have a bearing on the assessment of culpability and therefore will have an impact on the sentencing procedure where an accused has been convicted. This is to say no more than that the sentencing court will need to make factual findings consistently with the jury’s verdict, in relation to the nature of, inter alia, the terrorist act. Such a consideration might have, in an appropriate case, a capacity to bear on the question as to whether the statute creates one offence or more than one offence. In my view, for the reasons I have earlier outlined, here the section creates only one offence. That conclusion is supported by the fact, to use the terminology of Bray CJ in Romeyko at 552, the act under consideration ‘possesses one or several of such characteristics’. The fact that a sentencing court will have to make a determination about the characteristic or characteristics that apply, as part of the sentencing procedure, does not in this instance alter the construction conclusion. [96] The second string to Mr Boulten SC’s bow in relation to this argument centred upon the definition of terrorist act, at least so far as damage to property was concerned. He argued that, having regard to sub-s 3 of s 100.1, the nature of the result intended could not be simply viewed as a characteristic of the offence. As a matter of construction of s 100.1, however, this conclusion is, in my view, too broadly stated. … [97] … As I have said, he argued that the nature of the result intended cannot be simply viewed as a characteristic of the offence but, to the contrary, the intended result goes to the heart of the elements the Crown is required to prove. [98] I repeat that the proper construction of ‘terrorist act’ is this: a terrorist act is an action that is done (or a threat of action that is made) with each of the intentions specified in sub-paragraphs (b) and (c). The action must possess one or more of the features specified in sub-s (2) provided that it does not have the features specified in sub-s (3). The latter excludes advocacy, protest, dissent or industrial action that is not intended to cause the consequences detailed in the sub-section. The breadth of the definition is such that advocacy, protest, dissent or industrial action may be action that falls within sub-s (2), and be capable of founding a terrorist act, if it is not unaccompanied by the intentions specified in sub-s 3(b)(i), (ii), (iii) and (iv). [99] It follows that, on its proper construction, the legislation makes it a criminal offence for a person to do an act in preparation for an act to be carried out that will cause serious damage to property provided that the action is to be done with the intentions specified in s 100.1(1)(b) and (c) and provided it does not fall within sub-s (3). But a distinction needs to be made as to the characteristics of the action in sub-s 2 and the matters in sub-s 3. The latter is concerned with advocacy, protest etc not intended (my emphasis) to cause the nominated consequences. The former is concerned with the nature of the contemplated action itself. It is a fine distinction perhaps but, nevertheless, a real one. In my view, it prevents Mr Boulten’s argument from leading to the conclusion he urged.”

I agree with the analysis of Whealy J. As Bray CJ said in Romeyko v Samuels (1972) 2 SASR 529 at 552: “The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.” See also CSR Ltd v Environmental Protection Authority (2000) 110 LGERA 334 at [33]-[37]; R v Salmon (1994) 70 A Crim R 536 at 544-546.

I agree with Whealy J that the scope and nature of the legislative scheme, concerned as it is with terrorist acts, which recent experience suggests are likely to have all three effects at the same time, Parliament intended to create a single offence with one or more of the specified characteristics.

In each count, the nature of each terrorist act is further particularised by specifying the three alternative effects of each single terrorist act (Counts 2 and 4) or the three possible targets (Count 3). In my opinion, the indictment is sufficiently precise so that the Applicant knows the allegations levelled against him. I accept, as Bray CJ said in Lafitte v Samuels (1972) 3 SASR 1 at 6: ““The prosecutor … should not, in my view, strive to be as vague as possible in the hope that out of several ambiguities in the complaint one will ultimately be found to fit the evidence after it is all in.”

Nothing like that has happened here. In the case of each count the effects of an explosion (Counts 2 and 3) or the selection of a target is not necessarily, indeed not usually, determined at the time of the ‘doing’, the ‘making’, or the ‘possessing’. That is the point of making preparatory acts offences. It is not appropriate, let alone required, that each effect or each target be the subject of a separate count. What has been made an offence includes conduct where an offender has not decided precisely what he or she intends to do. Failure to State Essential Elements

With respect to each of counts 1 to 4 the Applicant submits that the indictment fails to identify all essential factual elements of the respective offences. This issue is not affected by the subsequent legislation.

The Applicant referred to the definition of “terrorist act” in the Code which covers a multitude of acts and a variety of intentions. He relies particularly on s100.1(1)(c) of the Code saying that actions must be done with one of a variety of intentions referring to coercion, influencing by intimidation, etc. Accordingly, it was submitted, each count in the indictment is bad because if fails to specify the purpose for which it is alleged the Applicant did the alleged acts. Furthermore, the Applicant relies on the reference to motivation in s100.1(1)(b) of the Code, namely the intention of advancing a political, religious or ideological cause. He submits that the particular motivation is also an essential factual element and should be pleaded.

In his second judgment, Whealy J set out a detailed analysis of the offence created by s101.4, which also applied to the offences alleged under each of the other sections. His Honour commenced by noting that the Criminal Code stipulates in s3.1(1) that each offence consists of physical elements and fault elements. His Honour then said: “[81] Count 4 in the indictment alleges that on about 26 October 2003 the accused possessed a thing namely a document containing certain information (s 101.4). This is the first physical element in the charge. Section 5.1 stipulates that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. Consequently, the fault element in relation to the physical element of possession of the document is intention to possess the document. The Crown must prove the physical element and the fault element beyond reasonable doubt. [82] The ‘possession’ of the document is alleged, by count 4, to be connected with preparation for a terrorist act. (In making this analysis I am acting on the assumption that the indictment will be amended as the Crown indicated in its written submission). Plainly, the second physical element relates to a circumstance in which conduct occurs (s 4.1). The fault element (that is, the mental element) is specifically stated in s 101.4. The accused, in possessing the document must know of the connection between the document and the preparation for a terrorist act. Section 5(3) provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. The Crown will be obliged to prove the circumstances and the awareness of the accused in relation to those circumstances to prove both the physical and fault element beyond reasonable doubt. [83] This analysis enables me to say that, in the case of an alleged offence against s 101.4, it is not necessary for the Crown to prove that, at the relevant time, the accused himself intended to prepare for either a particular or general terrorist act. Of course, the Crown may prove that state of mind and, in the general course of things, if such a state of mind were shown to have existed at the relevant time, this would demonstrate awareness on the part of the accused so as to satisfy s 5.3. But the point is that the Crown does not have to prove the existence of a concurrent intention on behalf of the accused to carry out or be involved in, for example, the bombing contemplated by the information contained in the document alleged to have been in his possession. The only potential exception to this position arises in relation to the provisions of s 101.4(5). Where the defendant meets the evidential burden contained in this sub-section, the Crown will carry the legal burden to negative beyond reasonable doubt the matter of intention mentioned in the relevant sub-sections (s 13.3(3) and (6)). This is not an ingredient of the offence and need not be set out in the indictment (s 13.3(3)). A similar situation arises in relation to an offence under s 101.5 (see s 101.5(5) of the Code).” His Honour went on to say: “[87] This analysis enables me to make one further comment about the arguments advanced on behalf of the accused. It will be recalled that, in relation to the argument regarding the alleged failure to state all necessary factual elements of the offence, Mr Boulten referred to the necessary mental element to be proved by the Crown and, as well, to the need to prove the motivation behind the act. In this regard, Mr Boulten made reference to s 100(1)(c) of the Criminal Code . Although this submission did not arise in relation to the duplicity argument, it is perhaps convenient if I deal with it at this stage. [88] In my opinion, it is not an ingredient of the offence, for example, under s 101.4 that the Crown must prove beyond reasonable doubt that, at the time of the possession of the document by the accused, he had an intention of advancing a political religious or ideological cause. Similarly, I do not accept that the Crown must prove that the accused, at the relevant time, had the intention of coercing or influencing by intimidation the Commonwealth or State Governments; or that he had the intention of intimidating the public or a section of the public. Of course, it would be open to the Crown to prove that the accused had these intentions and, if it were to do so, this would provide evidence of the fault element in relation to the connection between the possession of the document and preparation for a terrorist act (or, at least, it might tend to do so). But the relevant fault element, it must be stressed, in relation to this particular offence and the circumstances of the connection between possession and preparation for a terrorist act is ‘awareness’ of the connection. For example, it might, in a particular case be the situation that an accused person who has been shown to have possession of a document had no personal interest in the carrying out of the terrorist act contemplated by the information in the document. He might, for example, simply be a paid mercenary. He might simply be doing a favour for a friend or repaying a debt. As I see it, it is not necessary for the accused to have any of the intentions mentioned in 100.1(b) and (c). The accused’s motivation is not an essential ingredient of the offences in the indictment.”

Finally, his Honour concluded with respect to this issue: “[102] Mr Boulten argued that counts 1 to 4 should be quashed for failure to state all necessary elements. There is no dispute between senior counsel for the accused and the Crown that the principles are those stated as I have indicated when detailing Mr Boulten’s arguments. The Crown accepts these principles but has argued that the amended form of the new indictment does not fail to state all necessary factual elements. [103] In my opinion, the Crown’s submissions are correct on this point. First, the indictment pleads each offence in the terms of the statute. The amended indictment will provide particulars in relation to counts 2 and 4 of the general nature of the terrorist act. Counts 1 and 3 each provided particulars of the alleged terrorist act. Secondly, I do not accept that it is an essential factual element of any of the charges that the accused’s purpose or motive in allegedly preparing for the terrorist act must be demonstrated. I have touched upon this earlier in these reasons and there is no need for me to repeat in detail the matters I mentioned earlier. Put simply, I do not accept that each of the intentions mentioned in s 100.1(b) and (c) have to be demonstrated as intentions held by the accused. Indeed, in relation to offences under ss 101.4 and 101.5, the accused’s ‘collection’, ‘making’ or ‘possession’ of a document must be ‘in connection’ with preparation for a terrorist act and he or she must know of the connection. Thirdly, the precise fault elements are those I have identified in relation to each offence at an earlier point in these reasons.”

The identification of each essential factual element in an indictment serves a number of important purposes of the administration of criminal justice. (See John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 esp at 519-520; R v Janceski [2005] NSWCCA 281; 223 ALR 580 at [52]-[53].)

The Applicant submits that the various component parts of the definition of “terrorist act’ in s100.1 of the Code are essential factual elements of the offence by reason of the use of the words “terrorist act” in the statement of the offence in each of s101.4(1), s101.5(1) and s101.6(1).

The Crown relies on s11 of the Criminal Procedure Act 1986 which provides: “11 The description of any offence in the words of an Act … creating the offence, or in similar words, is sufficient in law.”

This section applies to the present proceedings by force of s79 of the Judiciary Act 1903 (Cth).

The issue, however, is what are the ‘words of the Act’ which ‘create the offence’. Is the definition of terrorist act of such a character as to constitute part of the offence created?

The submissions on behalf of the Applicant and the submissions on the part of the Crown focused on whether or not the reference to “intention” in s100.1(1)(c) – referred to in the Applicant’s submissions as either a motivation or a purpose – was a fault element of the offence and, as such, an essential element. The Crown relied upon the reasons of Whealy J for the rejecting this contention.

I have set out the counts in the Indictment above. That part of each of Counts 2, 3 and 4 discussed under the heading of “Duplicity” above, concerned with the results of the terrorist act in terms of death, serious physical harm or serious damage to property represents the identification of some of the list of matters set out in subs (2) of the definition of terrorist act which are applied by par (a) of that definition. The Crown has, accordingly, pleaded in each count one part of par (a), relating to subs (2) of the definition. It has not pleaded the second part of par (a) namely the proposition that the alleged actions did not fall within subsection (3). Nor has it pleaded the “intention” referred to in either par (b) or par (c) of that definition. The issue is whether or not these matters constitute an essential element of the offence. In my opinion they do.

This may not prove to be of great practical significance because on my above reasoning, in the context of dealing with the duplicity argument, the approach in Romeyko would apply equally to the respective component parts of the definition of “terrorist act”. An action falling within subs (2) will frequently be motivated by more than one “cause”. Motivations of a “political, religious or ideological” character frequently overlap. Similarly, an action falling within (2) of the definition will often tend to coerce or influence by intimidation more than one government, as well as intimidate the public or a section of the public. Contrary to the submissions of the Applicant, the further definition of the offence may not be of significance in restricting the scope of admissible evidence. Nevertheless, they should be so specified as an essential ingredient.

The references to “intention” in each of pars (b) and (c) of the definition of “terrorist act” are not fault elements of the offence. Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being a “circumstance” within s4.1(1)(c) of the Criminal Code. Accordingly, it is not, in my opinion, an essential element of the offence that an accused charged with doing any one of the acts identified in s101.4, s101.5 or s101.6 must himself or herself have the intention that the act advances a particular cause or is done with the requisite purpose of coercion or intimidation. Nevertheless, as an essential physical element, each of pars (b) and (c) should be pleaded, but no particularity is required as to the person who had the relevant “intention”. Of course, if the Crown was to assert that it was the Applicant who had the intention, it could plead or particularise that aspect of the case.

The relevant fault element is knowledge of the connection, as specified in s101.4(1)(c) and s101.5(1)(c). In the case of s106.1 it is recklessness by force of s5.6(2) of the Criminal Code . Counts 3 and 4 plead knowledge. However, Count 2 does not plead recklessness. It should.

The indictments should specify the applicable Law Part Code, i.e. 51411. (See Supreme Court Rules 1970 Part 75 Rule 3D(2A).)

Both limbs of par (a) of the definition of “terrorist act” are essential elements in the offence. It is, therefore, necessary for the Crown to establish that any action or threat of action “does not fall within subs (3)”, as par (a) stipulates. On this basis the Crown is required to establish beyond reasonable doubt that the action was not advocacy, protest, dissent or industrial action or was not intended to have one of the effects identified in (b) of subs (3). This element should also be pleaded. Again, adopting the approach in Romeyko , there would be no duplicity if more than one factor is pleaded.

The words “terrorist act” in each offence provision only have meaning in terms of the definition found in s100.1. Each of (a), (b) and (c) in that definition are, in my opinion, essential elements of each offence alleged against the Applicant. The Crown can only rely on s11 of the Criminal Procedure Act 1986 if each charge employs the words of the definition or similar words. It has not done so. Conclusion

For the above reasons the Applicant is entitled to the following orders: (1) Leave to appeal granted. (2) The Indictment is quashed. (3) Remit the matter to Whealy J. (4) Paragraphs [8]-[13] of this judgment are not to be published, until further order of Whealy J. (5) Liberty to apply within two working days to McClellan CJ at CL to extend the scope of Order (4) to incorporate additional paragraphs of the judgment. (6) Direct that no copies of the judgment be made available to non-parties until the period of two working days has expired or the parties notify the Registrar of the Court of Appeal that no application under Order (5) will be made. (7) Direct that this judgment not be placed on the Court’s website, until further order of Whealy J, save a copy with the deletion of pars [8]-[13] and any additions made pursuant to Order (5).

McCLELLAN CJ at CL : I have had the benefit of reading the judgment of the Chief Justice in draft. I agree with his Honour but in relation to the argument that the indictments fail to state the essential elements add the following remarks.

At common law an information was required to state “every essential ingredient of the offence, but also giving particulars of the acts relied upon as constituting the offence … The offence had to be described with accuracy and with sufficient particularity to enable a superior court to see for itself whether the acts alleged were sufficient to constitute the offence.” Jordan CJ in Ex parte Lovell: Re Buckley (1938) 38 SR (NSW) 153 at 156 and see Smith v Moody (1903) 1 KB 56 at 59.

Section 11 of the Criminal Procedure Act has its origins in s 145A of the Justices Act 1902. It is accepted that the section was designed to overcome the perceived rigidity of the common law. A literal reading of the section might suggest that an indictment which merely described the offence in the words of the relevant statute would be sufficient in law. Although the accused may be entitled to particulars, these could be separately provided in discharge of the prosecutor’s obligation of fairness. However, in practice the section has not proved to be without difficulty and it is now accepted that the obligation of the prosecutor has not been so narrowly confined.

In De Romanis v Sibraa [1977] 2 NSWLR 264 Mahoney JA reviewed both the common law and statutory position. Notwithstanding the words of the statute, his Honour concluded that the correct approach appears to be that adopted by Dixon J in Johnson v Miller (1937) 59 CLR 476 where his Honour said: “A defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge” at p 489.”

The High Court considered the problem in John L Proprietary Limited v The Attorney-General for the State of New South Wales [1987] 163 CLR 508. The case concerned the Consumer Protection Act 1969, which makes it an offence for a person to publish a statement which is intended to promote the supply of goods and which is to the knowledge of the person false and misleading. The relevant statement was made in relation to the promotion of motor vehicles. The majority held that the information was defective because it did not identify the “material particular” in which the statement was alleged to be false and misleading.

In their joint judgment Mason CJ, Deane and Dawson JJ said at p 519: “ Was the information defective by reason of its failure to identify the "material particular" in which the alleged statement was alleged to be false or misleading? The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence": Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 166. The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 (11 & 12 Vict. c 43), ss 1 and 3 and the Summary Jurisdiction Act 1879 (42 & 43 Vict. c 49), s 39) was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckle y at 167-174 and, in particular, Justices Act 1902, ss 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g, Smith v Moody [1903] 1 KB 56 at 60 ; Johnson v Miller (1937) 59 CLR 467 at pp 486-487, 501 ; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280. It is, however, unnecessary to pursue that particular question here since, putting to one side s 6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence. In De Romanis v Sibraa [1977] 2 NSWLR 264 at 291, Mahoney JA correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented at 291-292: ‘In Johnson v Miller (1937) 59 CLR at p 486, Dixon J saw the decision in Smith v Moody [1903] 1 KB at pp 61, 63 as requiring the information to specify `the time, place, and manner of the defendant's acts or omissions'; McTiernan J. at p 501 referred to `fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N Ormsby & Sons Pty. Ltd.; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 at pp 290, 291. ... These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.’ … As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the "material particular" in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental.”

The approach endorsed by the High Court in John L Proprietary Limited has been applied by this Court. In Stanton v Abernathy (1990) 19 NSWLR 656 Gleeson CJ said: “As Mahoney JA pointed out, and as the High Court held in the case of John L Pty Limited v Attorney General (NSW) s 145A does not do away with the common law requirement that an information must identify the essential factual ingredients of the actual offence alleged to have been committed: Smith v Moody (1903) 1 KB 56; Johnson v Miller (1937) 59 CLR 467 and Ex parte Graham re Dowling (1968) 88 WN (NSW) 270.”

However, the difficulty as Gleeson CJ pointed out at 666, “is that the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law has been infringed to such an extent that s 145A, operating alone, would be insufficient to save the information.”

More recent decisions of this Court have considered the validity of an indictment by determining whether it identifies the “essential factual ingredients” of the offence. This may be contrasted with the particulars required by an accused merely to ensure that he or she can prepare a defence, the latter not being considered to be essential particulars: Taylor v EPA (2000) 50 NSWLR 48; R v Cassell (CCA NSW) 24 July 1996.

In the present case, as the Chief Justice has indicated, the relevant offences are provided in s 101 of the Criminal Code. The actions of a person described in the relevant subsection will constitute an offence if, in a relevant respect, they are related to a “terrorist act” as defined in s 100.1 of the Code .

The definition of terrorist act is complex and applies to action or threat of action which has any one of a number of physical consequences (sub s (2)). However, the action or threat of action must also be motivated by the intention identified in (b) and (c). Even if the relevant motivation is present the action will not constitute a terrorist act if it has the character described in subs (3).

There are many crimes provided by statute which are described by reference to a statutory definition. Offences which depend on the infliction of “grievous bodily harm”, offences involving acts of “sexual intercourse”, offences against a “law enforcement officer” are but some. Practices seem to vary as to essential elements of the indictment (see Butterworths Criminal Procedure and Practice Vol 4). There are also offences which depend upon the commission of a criminal offence by another eg s 315 of the Crimes Act which provides for the offence of “hindering an investigation of a serious indictable offence.” However, s 313 provides that knowledge that the offence was a serious indictable offence is not a requirement in relation to public justice offences and accordingly, the essential ingredients of the serious indictable offence would not have to be pleaded in an indictment alleging an offence contrary to s 315.

An essential element of an offence under s 101.4 and s 101.5 is knowledge by the accused of the connection of his or her own action with a terrorist act. Of course, the terrorist act may be the accused’s own act or the act of another. Section 101.6 directly relates the actions of the accused to a terrorist act. In each case knowledge of the terrorist act is fundamental to the offence and accordingly, particulars of the terrorist act are essential factual ingredients and must be pleaded.

As the Chief Justice points out the present indictments plead only one element of the definition being that part of paragraph (a) relating to subs (2). The other parts of the definition should be pleaded.

I agree with the orders proposed by the Chief Justice.

SULLY J: I have had the privilege of reading in draft the judgments of both the Chief Justice and the Chief Judge. I agree with the entirety of what is said in each judgment. I wish to express particularly an emphatic support for the analysis by the Chief Justice, and the application in the present particular case, of the principles of statutory retrospectivity.

I concur in the making of orders as proposed by the Chief Justice.