Yearly Archive 2008

DTS v Regina [2008] NSWCCA 329

The appellant made three complaints about his Honour’s Murray direction to the jury. First, that a Murray direction should have also been given in respect of count 1. Secondly, that the failure to give a direction in respect of count 1 may have confused the jury, in circumstances where the Crown case depended almost entirely upon the evidence of the complainant. Thirdly, that his Honour erred in informing the jury that the direction was required at law, and not because of any view about the evidence held by the trial judge. Finally, the appellant submitted that the jury should have been directed that the relationship evidence needed to be proven beyond reasonable doubt.

To view a copy of the Judgment click here.

Stanoevski v Council of the Law Society of NSW (2008) NSWCA 93

In this matter Greg Walsh acted for Liljana Stanoevski, a solicitor, who was found by the appeal panel of the Administrative Decision’s Tribunal to have engaged in various significant acts of professional misconduct. See Stanoevski v Law Society of New South Wales ( No. 2) (LSD) 2004 NSW ADTAP 35.

Ms Stanoevski appealed to the Court of Appeal in respect of the decision of professional misconduct and the order removing her name from the Roll of Solicitors: Stanoevski v The Council of the Law Society of New South Wales (2005) NSWCA 428. The Court of Appeal held that there was no reason to set aside the findings of professional misconduct but the process by which the penalty had been arrived at contained a material procedural flaw. The orders were set aside and the matter referred to the Appeal panel. The Appeal panel reconsidered the question of penalty and once again, though by majority rather than unanimously, concluded that the appellant’s name should be removed from the roll: Stanoevski v The Council of the Law Society of New South Wales (ILSD) NSW ADTAP 25.

It was argued on behalf of Ms Stanoevski that the Appeal Panel had fallen into error in applying the incorrect test. Campbell JA at [39] with whom Hodgson JA and Handley AJA agreed observed that the Appeal Panel’s reference to restoring the appellant to the roll was erroneous as she was already on the roll. His Honour found that the Appeal Panel had not misapprehended its task or applied the wrong test in any way was material in its decision to making reference to both whether the appellant was a fit and proper person to hold a practising certificate and whether the appellant was a fit and proper person to be on the roll.

It was further contended that the onus was on the Law Society to establish that a person whose name was on the roll was not a fit and proper person to remain on it. In particular, that it was necessary for the Law Society to establish that the solicitor is “permanently unfit for practice.”

It was further contended that the Appeal Panel had reversed the onus, and improperly placed an onus on the applicant. Campbell JA from paragraph [52] onwards analysed the question of the onus of the proof. The Court of Appeal determined that the appeal panel permissibly shifted the evidential onus to the appellant which required that she, in circumstances where proven misconduct had been established in the period 1991 to 1993, produced evidence that gave reason for believing that the situation had changed.

Thus, the appeal was dismissed.

Nowak v R (2008)

In this mater Greg Walsh appeared on behalf of the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty with the intent to maliciously inflict grievous bodily harm.

The applicant and the victim were amongst a number of guests at a wedding ceremony and reception. In the course of the evening there was a disagreement with a man who was part of the bridal party. The applicant and three of his friends were asked to leave the reception by members of the families of both the bride and groom. The offender and his three friends walked down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700ml glass vodka bottle which was still sealed and full. The bride’s father was walking behind the applicant and his friends in order to ensure they left the premises. As he reached the exit gate to the driveway the applicant was pushed in the back and he swung the glass bottle which he was holding and struck the victim with it. The glass bottle shattered upon impact with the victim’s face. The victim sustained lacerations to his face and a fractured nose.

The applicant voluntarily attended Quaker’s Hill Police Station where he was arrested. At the time of his offence he was 21 years of age and 22 when he stood for sentence. He had been attending university and was within six months of completing his Bachelor of Science degree. He had no prior convictions and was a person of otherwise good character.

Greg Walsh relied upon the following Grounds of Appeal on behalf of the applicant, namely:

  1. That the sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence.
  2. That the sentencing judge erred in finding that there were aggravating features present including:
  3. The use of the weapon to inflict the injuries and the force used
  4. The extent of the injuries sustained.
  5. That the victim was vulnerable in the extreme.
  6. That the sentencing judge erred in finding there was no provocation on the part of the victim.

Buddin, Barr JJ and Bell JA agreed. They referred to the provisions of s21A(2)(c) of the Crimes (Sentencing Procedure) Act. His Honour referred to R v Elyard (2006), R v Cramp (2004). Buddin J found that the sentencing Judge had fallen into error and upheld this ground of appeal.

In relation to the issue of the victim being vulnerable, Buddin J referred to R v Tadrosse (2005). The sentencing judge found the victim, by not being armed, was vulnerable in the extreme. His Honour at [31] also found this ground of appeal had been made out. The Court found that the offence was a serious one and that in all of the circumstances no other sentence was warranted in law. The appeal was dismissed.

Police v M

In this matter Greg Walsh acted for M who on 18 June 2007 was arrested by police at his home in Balmain and charged with assault and resist arrest. It was the accused’s case that he was the subject of a vexatious complaint. This had arisen in the course of an alleged domestic violence incident. The incident had been privately witnessed by persons in the adjoining home who had contacted police.

The case concerned the powers of the police under statue and common law to enter premises and in particular the Law Enforcement (Powers & Responsibilities) Act, 2002.

It was argued by Greg Walsh on behalf of the accused that his arrest was unlawful on a number of grounds. The primary ground that in order for there to be a lawful arrest the police must suspect on reasonable grounds that arrest is necessary to achieve more of the purposes referred to in s99 of LEPRA. In the course of the argument, the observations of Smart AJ in R v Rondo (2001) was referred to. Further, the decisions of the Court of Appeal in State of New South Wales v Kuru and Pringle & Ors v Everingham (2006) arose.

The Court held that the police had trespassed in entering upon the accused’s premises. In factual terms, the accused had directed police to leave his home which they had entered. Three of the officers did so but remained at the front door. However when the Court on to find out that as the accused’s wife had impliedly given permission for police to enter there was no trespass.

The Court then dealt with the issue of the evidence relied upon by the prosecution pursuant to s138 of the Evidence Act 1995. It was submitted by Greg Walsh that such evidence was inadmissible. He relied upon the well known passage in Donaldson v Broomby (1982) A Crim R 160. Reference was also made to the test adopted by Smart AJ in R v Car (2002) NSWSC 194.

In further argument, reliance was had to R v Cornwell (2006) NSWCCA 116. The observation of Howie J referred to as were those of Hall J in Director of Public Prosecutions v AM (2006) NSWSC 438. The presiding Magistrate found that the decision to arrest the accused was entirely motivated by expediency. His Honour further found that the evidence obtained in consequence of the impropriety and was inadmissible. The Magistrate also was not satisfied that a prima facie case existed in relation to the charge of assault occasioning actual bodily harm and assault and all charges were dismissed. An application for costs was granted in favour of the accused.

Du Randt v R (2008)

In this matter Greg Walsh appeared for the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against a sentence imposed by Sorby DCJ. She pleaded guilty to a charge that between 28 December 2005 and 31 May 2006 she had dealt in money that was proceeds of crime and was as to the fact that the money was proceeds of crime and at the time of the dealing the value of the money was $100,000 or more. She was sentenced to imprisonment for three years expiring on 28 September 2009.

The applicant knew a number of people who were involved in the importation of amphetamine and the distribution of the proceeds of its sale. In the period between June and December 2005 the applicant had spoken to one Lisa Dunn who knew a number of these persons. On 8 June 2005 a United States Navy vessel arrived at Townsville and a member of the crew retrieved from it a quantity of amphetamine and handed it to another of the syndicate.

On 9 November 2005, one of the drug syndicate arrived on a shipment from overseas and the applicant travelled by car from Sydney to the Gold Coast to collect $100,000 in cash from another member of the syndicate. She drove back to Sydney and delivered the money to a cash dealer. On another occasion she travelled again by car to the Gold Coast and collected a further sum of $100,000 from a member of the syndicate and brought it back to Sydney by car. On a third occasion she transported an amount of $50,000 back to Sydney by plane.

On 24 October 2006 the applicant was arrested. She was initially interviewed by Federal Agents on that day and again on 21 November 2006. She admitted transporting cash on the three occasions. She explained that she did do as she believed that the money she was collecting was for the legal fees for a member of the syndicate. She was chronically depressed and was being treated and prepared to do any task that made her feel worthy. She did not question her friends who had asked her to transport the money.

In the sentencing proceedings, Dr Freed, a treating psychiatrist was called to give evidence. In his opinion the applicant had a significant degree of impairment of her psychiatric functioning and control. Dr Freed was an expert in the diagnosis and treatment of bipolar disorder and practiced at the St Vincent’s clinic. In particular the applicant had suffered a significant subjective history in that she had on a number of occasions been abused s a child and as a teenager. Her symptoms included significant psychotic features including disturbed thoughts of eating human kidneys and other delusional beliefs. The impact of the abuse upon her was also a significant feature of her bipolar disorder and psychotic symptoms.

Sorby DCJ did not accept that the mental condition from which the applicant was suffering had interfered with what she was doing when she carried away the money. In argument, two principle ground were advanced on behalf of the applicant, namely:

  1. The sentence imposed by the learned sentencing judge was too severe having regards to the objective and subjective circumstance of the offence.
  2. By reason of the applicant’s psychiatric/medical condition subsequent to the imposition of a sentence, a miscarriage of justice had occurred (such that a different and lesser sentence should now be imposed upon the applicant.)

Ground one

Barr J observed at [24] that the two substantial arguments were put forward under this ground. The first was that his Honour did not consider whether and how the applicant’s mental condition affected her appreciation of the gravity of the offence, as it was put. Mr Walsh referred the Court to a number of cases which explained the various ways in which the mental illness of an offender may sound and the sentence to be imposed. See Leach v R [2008] NSWCCA 73, Basten JA [10]-[12]; R v Verdins [2007] VSCA 102 at [32] and R v Israil [2002] NSWCCH 255.

His Honour noted at [27] that Mr Walsh drew the Court’s attention to parts of the report of Dr freed which was before the sentencing judge. The first was bipolar disorder mixed with psychotic features. The applicant had manic like symptoms since at least 1999 and significant depressive symptomatology following her sister’s rape and assault in September 2005. She had the complication of mixed intertwining between depressed and manic phases as well as psychotic features, namely auditory hallucinations and paranoid ideation. She thought that flies settled on her because she was garbage. She thought that her family whispered about her. Dr Freed drew attention to the family history of mental illness, including bipolar disorder. Significantly Barr J at [28] noted the post traumatic disorder resulting from sexual molestation on a number of occasions and also the assault and rape of her sister by four men in 2005.

The Court concluded that the evidence shows that the effect on the applicant of the various illnesses from which she suffers will be significant as she serves her sentence and her sentence ought to be mitigated. Barr J with whom Basten JA agreed said the sentence imposed by His Honour is warranted: s6(3)Criminal Appeal Act 1912.

The applicant was granted leave to appeal and the sentence appealed from be quashed and there be substituted a head sentence of imprisonment of two years and six months with a non parole period of one year and six months.

Wilson v State of NSW [2008] NSWDC 130

In this matter Greg Walsh acted for David Wilson, the plaintiff in an action against the State of New South Wales.

A subpoena had been issued seeking the production of documents from the Commissioner of Police and objection was taken to the production of those documents.

Mr Wilson had sued the State of New South Wales for wrongful acts alleged against certain Sheriff officers in its service. The plaintiff claimed damages for trespass, assault, wrongful arrest, false imprisonment, malicious prosecution, trespass to goods and detinue.

Complaints were made as to the conduct of the officers involved which became the subject of various investigations and other inquiries by a number of authorities including the New South Wales Ombudsman of a disciplinary nature. The subpoena sought the production of documents brought into existence as a result of these complaints and their consequences, which the defendant resisted relying on s.170 of the Police Act,1990; s.56 of the Civil Procedure Act, 2005 and the Uniform Civil Procedure Rules, 2005.

On 31 January 2008, Walmsley J ordered the defendant give discovery of certain disputed categories of arising out of the complaints, but left open for subsequent consideration various issues surrounding production and inspection of the documents. The defendant prepared a list of documents in which it discovered a significant number of documents. No objection was made to a number of those documents.

Johnstone DCJ referred to the observations of Hunt J in R v Saleam (1989) 16 NSWLR 14. His Honour observed at [162B]:

“The circumstances that a document is inadmissible in evidence in any particular proceedings, does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes. In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 12-13, Blackburn J refused access to documents produced on subpoena on the basis that they were not by themselves admissible in evidence.

That decision was expressly held by the Court of Appeal to be unsound and not to be followed: Waind & Hill (381). Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form.”

The State asserted the principle in R v Saleam did not apply to s.170 of the Police Act. It was submitted that s.170 should not be read so restrictively in the environment of civil litigation post the Civil Procedure Act, 2005. Johnstone DCJ observed:

“That was a bold submission and not one that espoused any principle of statutory construction of which I am aware.”

The next contention on behalf of the defendant was that the word ‘privilege’, which appears in the heading to s.170, must be given some work to do. His Honour rejected this contention. See s.35(4) of the Interpretation Act.

The defendant then contended that the disputed category 2 documents were not relevant to any civil proceedings His Honour said that this was also a bold submission.

Next the defendant contended that the plaintiff had not established a legitimate forensic purpose. His Honour found that it was probable that the documents will reveal additional facts not in possession of the plaintiff that will assist in the prosecution of his case. Further, that the documents will inevitably give rise to avenues for further investigation and the identification of additional potential witnesses. Further, they will in all likelihood assist the plaintiff in the cross-examination of any defence witnesses. See Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 11; Esso Australia Resources Limited v Federal Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385F.

Finally the defendant contended that the Court should refuse the inspection as to do so would run contrary to the overriding purpose enunciated in s.56 of the Civil Procedure Act 2005, to the effect that the procedures of the Court should be conducted so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The defendant relied upon the observations of the Chief Justice in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29]. His Honour noted that the remarks of the Chief Justice were not in relation to s.58 of the Act and that the Court must act in accordance with the dictates of justice. Those dictates not only require him to have regard to the object of the just determination of the proceedings (s57(1)), but to enable him to have regard, amongst other things, to the nature of the proceedings involved and the degree of difficulty or complexity to which the issues give rise (s58(2)(b)(i)), and to the degree of injustice that would be suffered by the respective parties as a consequence of any order that he may make (s58(2)(b)(vi)).

His Honour made the orders sought by the plaintiff in the motion.

Yeats v Yeats (6 MAY 2008)

In this matter, Greg Walsh acted for the applicant, Ms Yeats, the wife of Mr Yeats, who was in receipt of a benefit from the Department of Social Security.

The wife was removed from the Wiley Park Hotel, which she had managed for some years, on 17.07.2006. She was removed in the early hours of the morning when a large number of police from Campsie Police Station arrived for the purposes of executing a search warrant. The wife, who had met her husband in 1989, married him in April 1992. She had no assets and her husband had significant assets including the Wiley Park Hotel, Guildford Hotel and the Nortons on Norton Hotel.

The husband’s assets exceeded $15 million.

The wife was physically escorted by police to a section of the Hotel where the husband’s solicitor Mr Stephen Alexander directed that she forthwith remove herself from the Hotel or otherwise she would be charged. He didn’t indicate what she would be charged with. The wife had no choice whatsoever which was extraordinary situation and she was forced from the hotel and onto the street without her clothing or personal effects including her beloved three dogs.

The wife also instituted proceedings in the Supreme Court of New South Wales against the State of New South Wales and Mr Yeats and Jetobee Pty Limited, the corporate entity controlled by the husband. She sought damages including exemplary and aggravated damages for the malicious procurement of the warrant, her wrongful arrest and false imprisonment and malicious prosecution. The husband filed a cross-claim in the Supreme Court alleging that the wife had defrauded himself and Jetobee Pty Limited for the sum of $800,000.00.

Justice Le Poer Trench considered the principles applicable to an interim spouse maintenance order. His Honour noted that the uncontradictive evidence was that the wife was living in shared accommodation consisting of a two bedroom unit that her sister and brother-in-law lived in.

She had previously resided in accommodation at the Wiley Park Hotel where she undertook a considerable amount of work in management and renovation. The husband lived in the Guildford Hotel. His assets were $12.5 million and liabilities of $8.8 million. As a result of the incident on 17 July 2006, the wife was traumatised and her health was such that she was unable to obtain employment.

The husband had $1.045 million in publicly listed shares as well as a Bentley valued at $150,000.00. The dividends from Jetobee Pty Limited were $50,000.00, AMP dividends of $25,000.00 and other dividends from public companies of $3,000.00. His Honour failed to see how an income of $78,000.00 produced a tax liability of $80,000.00 which is asserted by the husband.

The husband was owed $1.7 million by LJ & CA Yeats Pty Limited and he had a portfolio worth $1.045 million. The husband had not disclosed any detail of the movement in any of the loan accounts he has with any of his associated corporate interests.

The wife’s application sought payment of $300,000 for the provision of costs for the family law proceedings and $100,000 for payment of costs in relation to the criminal proceedings the wife was facing. The application was brought pursuant to s.79 of the Act. See Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578.

Justice Le Poer Trench concluded that the sum of $100,000.00 to be paid to the wife’s solicitor’s trust account to be applied only to costs for the family law proceedings noting that in the future the wife could seek further amounts should that be necessary.

His Honour also ordered that the wife be paid the sum of $100,000.00 by way of interim/partial property settlement to be paid to the wife’s solicitors and be applied by them to fund the wife’s defence in criminal charges brought by the Crown in relation to allegations against the wife during the time she was at the Wiley Park Hotel.

In a post script to this decision the criminal proceedings against the wife were heard at the Burwood Local Court before Magistrate Barkell. Mr Yeats gave evidence in which he was cross-examined about the information that he had provided to investigating police in a meeting at the Norton on Norton Hotel just shortly before the execution of the search warrant by police from Campsie. At that meeting was a licensing police officer from Leichhardt Police Station.

Mr Yeats was cross-examined about information given to the Police and in particular assertions that in respect of an account in respect of which normally would be substantially in credit. In cross-examination it was revealed that Mr Yeats had himself caused electronically to be transferred a large sum of money from that account so as to deplete the credit balance in the account to demonstrate that monies had allegedly been withdrawn from the account by the wife. The fact is that these monies had been withdrawn from their account by Mr Yeats himself.

All of the charges against Ms Yeats were dismissed and in fact, her Honour was not satisfied that a “prima facie” case had been made out.

R v Gregory William Jacobs (30 April 2008) NSWSC 417

In this matter Greg Walsh acted for the applicant who had been charged with the murder of his wife. He has initially been refused bail and an application for bail was made to the Supreme Court of New South Wales.

Rothman J heard the application and after extensive argument granted the applicant conditional bail. The issue before the Court was whether in terms of s9C of the 1978, the Court was satisfied that “exceptional circumstances” justify the grant of bail. Rotham J referred to the observations of Johnson J in R v Young (2006) NSWSC 1499.

The crown opposed bail and relied upon the decision of the Court of appeal in the Commonwealth DPP v Germakign (2006) NSWCA 275. His Honour also referred to R v Daron John Wright (unreported 7 June 2005) and R v DPR (unreported 1 August 2007). His Honour made specific reference to the evidence of Professor Yeo as to the needs of the applicant and the danger to his health from his imprisonment. His Honour accepted that the applicant’s medical and health needs are not being met and his health is seriously deteriorating.

His Honour made findings that the other provision of s32 of the Bail Act satisfied his Honour that the application, who has no prior criminal records, should be granted bail on very strict conditions.

R (CTH) v Baladjam & Ors [No. 1] [2008] NSWSC 721 (7 March 2008)

Greg Walsh represented Omar Baladjam, an Accused standing trial in the Supreme Court of New South Wales of an offence of ‘conspiracy to do acts in preparation of a terrorist act or acts’ contrary to ss.11.5 and 101.6 of the Criminal Code Act 1995 (CTH).

The matter was heard by Justice Whealey, who dealt with a number of pre-trial and trial applications before the matter was heard by a jury in 2008.

Click here to view His Honour’s judgment.

R (CTH) v Baladjam & Ors [2008] NSWSC 714 (28 February 2008)

In this matter Greg Walsh acted for Omar Baladjam.

Mr Baladjam and eight (8) other accused had been charged with a conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act (1995).

An application was made to a Melbourne trial judge, Bongiorno J seeking certain non publication suppression orders in relation to the reporting of certain material emanating or likely from a trial in Melbourne.

By coincidence the trial of 12 other men accused of terrorism commenced in Melbourne before a Judge and jury on 13 February 2008.

On 21 February 2008 Bongiorno J refused the substantive application to suppress details about the application.

Whealy J dismissed the application on behalf of the accused.  His Honour considered whether a Quia timet injunction can be made in an anticipatory fashion to prevent a threatened contempt of court by media outlet or outlets.

His Honour accepted that there was authority for the court to grant such an injunction in circumstances where the publication of the material is prejudicial to pending proceedings.  In United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720, His Honour observed that the exercise of such a power would be a rare one.  Herald & Weekly Times Pty Limited v A [2005] 169 A Crim R 299; Pickering v Liverpool Daily Post (1991) 2 AC 370.

The fundamental principles of open justice were emphasised by His Honour.  See John Fairfax Publications Pty Ltd v District Court  of New South Wales [2004] NSWCA 324 (2004) 61 NSWLR 344.

Regina (Cth) v Baladjam & Ors [No.1] [2008] NSWSC 721 (7 March 2008).

 In this matter Greg Walsh acted for Omar Baladjam who was one of the Accused standing trial in the Supreme Court of an offence of conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act.

 The trial was conducted by Justice Whealey.  His Honour dealt with a number of pre trial and trial applications and these dealt with a variety of issues.

 Judgments are referred to hereunder.

Regina (C’wealth) v Baladjam & Ors [No 3] [2008] NSW SC 725 (18 March 2008)

Nine (9) men charged with conspiracy to do acts in preparation for, or planning, to commit a terrorist act or acts contrary to section 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995 applied to have the venue of their Trial changed.

They had been in custody since November 2005.  They were arraigned before the Supreme Court on 31 May 2007 and the Trial was listed on 25 February 2008.

At the time the Trial was set down for Hearing, it was anticipated that the venue would probably be the Darlinghurst Court complex used by the Supreme Court of New South Wales for criminal trials.

The Trial commenced on 25 February 2008 at the New Sydney West Trial Court situated in the legal precinct of Parramatta.

The Application for change of venue was made pursuant to section 30 Criminal Procedure Act 1986.

Whealy J observed that it was hoped from the outset that Darlinghurst might be a realistic location for the Trial.  The Defence argued that a Trial at Parramatta would prove a most inconvenient and difficult one for lawyers involved because of the distance between Parramatta and Sydney CBD.  There were other arguments about the proposed Court room and Court complex itself.

His Honour found that he was not satisfied there was any risk that a fair or unprejudiced Trial could not be held in relation to the present venue.  His Honour thus declined to change the venue of the Trial.

 

Regina (C’wealth) v Baladjam & Ors [No 4] [2008] NSW SC 726 (18 March 2008)

A number of applications were made on behalf of Omar Baladjam and others accused facing charges contrary to the Commonwealth Criminal Code.

An application was made for the quashing of the Indictment on the basis that it was bad for duplicity.  It was argued that the offence pleaded in the Indictment was one unknown to the Law and accordingly it should be quashed.

The Indictment

The Indictment charged each Accused, that between July 2004 and November 2005 he conspired with other Accused to do acts in preparation for a terrorist act (or acts).

There were a number of particulars of the terrorist act (or acts) which involved an action or threat of action involving the detonation of an explosive device (or devices) or the use of weaponry or both that was or were to be done:

(a)    With the intention of advancing a political, religious or ideological cause; and

(b)   With the intention of:

i.          coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country; or

ii.          intimidating the public or a section of public

(c)    in circumstances where the action, if carried out, would:

i.          cause serious harm that is physical harm to a person; and/or

ii.          cause serious damage to property; and/or

  1. cause a person’s death; and/or
  2. endanger a person’s life, other than the life of the person taking the action; and/or
  3. create a serious risk to the health or safety of the public or a section of the public; and/or
  4. seriously interfere with, seriously disrupt, or destroy an electronic system including but not limited to, an information system, or a telecommunications      system…

(d)   in circumstances where the action, if carried out, would not be advocacy, protest, dissent or industrial action or a kind not intended to:

i.          cause serious harm that is physical harm to a person; or

ii.          cause a person’s death; or

  1. endanger the life of a person;
  2. create a serious risk to the health or safety of the public.

The Law

Whealy J referred in detail to various provisions of the Commonwealth Criminal Code including section 101.6(1) of an offence to do an act in preparation or planning a terrorist act; section 101.6(2) commission of the offence being committed even if the terrorist act has not occurred or the act in preparation or planning has not been in respect of specific terrorist act or been in preparation or planning for more than one terrorist act.

The offence of conspiracy is set out in section 11.5 of the Code and His Honour referred to section 11.5(2) of the Code which provides three requirements before a person can be guilty of conspiracy under section 11.5 of the Code:

(a)    the person must have entered into an agreement with one or more other persons; and

(b)   the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c)    the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

The Crown Case

That His Honour dealt with in some considerable detail the Crown case including the Accused amongst other things:

(a)    obtained or attempted to obtain chemicals and other relevant materials which could be used in the construction of an explosive device;

(b)   obtained or attempted to obtain weaponry and ammunition;

(c)    possessed large amounts of extremist and instructional material.

Legal Principles

Reliance was placed upon the principle that Courts have criticised the tactics of charge of conspiracy where a substantive offence is available.  Hoar [1981] HCA 67; (1981) 148 CLR 32.

The Crown responded that a number of matters in the Crown case statement were not to be admitted against some Accused and relied upon Ahearn v Regina (1988) 164 CLR 87; Regina v Tripodi [1961] HCA 22; (1961) 104 CLR 1; Masters v R (1992) 26 NSWLR 450.

Whealy J was of the opinion that the Hoar principles should be confined to propositions that were earlier stated by His Honour.  There were those cases in which it was clearly inappropriate to leave a conspiracy charge in an Indictment where there is a sufficient and effective charge available to the Crown.  In this case, the conspiracy charge was an appropriate charge and His Honour refused to quash the Indictment.  See Ruich v Western Australia [2006] WASCA 241 at [81] – [82]; R v El-kotob [2002] 4 VR 456 per Vincent JA at [42]; R v Chung [2007] NSWCCA 231 at [51].

Duplicity

A further argument was advanced that the Indictment was bad for duplicity.  See Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77; R v Giam (1999) 104 A Crim R 46.

It was argued that the Indictment was bad for duplicity because it charged an agreement to do acts in preparation for “a terrorist act or acts”.  It was argued that at simplest the charge contains of possibly two conspiracies:

(a)    an agreement to do an act or acts in preparation for a single terrorist act;

(b)   an agreement to do an act or acts in preparation for more than one terrorist act.

Resolution of the Issues

Whealy J after carefully considering a large number of authorities, including Gerakiteys v The Queen (1984) 153 CLR 317; R v Ongley (1940) Volume 57 NSW (WN) held that the Indictment was not bad for duplicity.  His Honour’s reasoning was based on three matters.  First the consistency of the language used in the history of the legislation since 1960; secondly the common and accepted practice to include in an Indictment one count for a conspiracy alleging the doing of multiple unlawful acts; thirdly the decision of the New South Wales Court of Criminal Appeal Ansari v R [2007] NSWCCA 204.