Regina v Lodhi [2006] NSWSC 639

New South Wales Supreme Court

CITATION : Regina v Lodhi [2006] NSWSC 639

HEARING DATE(S) : 19/04/06

JUDGMENT DATE : 24 April 2006

JUDGMENT OF : Whealy J at 1

DECISION : Refuse order sought on behalf of the accused and the indictment is to stand in its presently amended form.

CATCHWORDS : Criminal Law - fresh indictment - duplicity

LEGISLATION CITED : Criminal Code Act 1995 Criminal Procedure Act 1986

CASES CITED : Lodhi v Regina [2006] NSWCCA 121 Spigelman CJ at paras 88 and 89 Romeyko v Samuels (1972) 2 SASR 520 at 552

PARTIES : Regina v Faheem Khalid Lodhi

FILE NUMBER(S) : SC 2005/1094

COUNSEL : Mr R. Maidment SC; Mr G. Bellew - Crown Mr P. Boulten SC; Mr P. Lange - Accused

SOLICITORS : DPP (Commonwealth) - Crown Michael Doughty - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

MONDAY 24 April 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - On application re Indictment

1 HIS HONOUR: At the end of 2005, the accused pleaded "Not Guilty" to an indictment alleging the commission of a number of offences including offences against ss 101.5 and 101.6 of the Criminal Code Act 1995. On 15 December 2005 Mr Boulten SC, who with Mr Lange of counsel appears for the accused, argued that the indictment was bad for duplicity in relation to counts 2, 3 and 4. On 23 December 2005, I made a pre-trial ruling the broad effect of which was, subject to one matter, that the indictment did not contain overt or latent duplicities and that accordingly the prosecutor was not required to elect to narrow the scope of the charges. 2 On 7 February 2006, the Crown presented a fresh indictment. The accused pleaded not guilty to each of the four charges in the new indictment. These charges were: - 1. On or about 3 October 2003 at Sydney in the State of New South Wales, Faheem Khalid Lodhi 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, Faheem Khalid Lodhi did an act, namely sought information concerning the availability of materials capable of being used for the manufacture of explosives, in preparation for, or planning a terrorist act, namely causing the death 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, Faheem Khalid Lodhi did make a document, namely a set of aerial photographs of Australia 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, Faheem Khalid Lodhi 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, the engagement of a person in, or assistance in a terrorist act namely causing the death or serious physical harm to a person or persons unknown or causing serious damage to property unknown, knowing the said connection. 3 The first and third counts in the indictment allege offences against s 101.5(1) of the Criminal Code Act 1995 ("Criminal Code"). Count 2 of the indictment alleges an offence s 101.6 of the Criminal Code. Count 4 alleges an offence against s 101.4 of the Criminal Code. 4 Mr Boulten SC applied to quash the new indictment. First, it was sought to quash counts 2, 3 and 4 on the grounds that they were bad for duplicity. Secondly, the accused applied for an order quashing counts 1 to 4 on the ground that they failed to specify all essential factual elements. 5 During the course of argument, Mr Maidment SC indicated that he would seek leave to make a number of alterations to the indictment with a view to providing clearer particulars of the matters alleged. Subject to these contingent alterations, I ruled in favour of the Crown and against the arguments advanced by Mr Boulten SC on behalf of the accused. It was my view that the indictment, in its suggested amended form, should not be quashed. 6 An appeal was taken to the Court of Criminal Appeal from my decision. This was heard on 24 March 2006 and judgment was given on 13 April 2006. Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) ruled that the indictment was not bad for duplicity. The Court determined, however, that the indictment failed to specify the necessary factual elements of the offence in relation to each charge. For that reason, the Court ordered that the indictment be quashed. 7 On 18 April 2006 the Crown presented a new indictment. The charge, in its new form, endeavoured to include the factual elements which the Court of Criminal Appeal had found to be lacking in the earlier indictment. 8 Mr Boulten SC immediately made a fresh application pursuant to s 17 of the Criminal Procedure Act 1986. The application was to quash the new indictment. There were essentially three bases for the application. There were, however, two limbs to the first argument. The first point was that the indictment was bad for duplicity and this involved precise repetition of the arguments Mr Boulten had advanced unsuccessfully before the Court of Criminal Appeal. The second limb of this argument was that in certain new respects there was a latent duplicity in the new indictment. The second major argument suggested that the indictment, in certain respects, charged offences that were not known to law. The third major argument was a general argument that the new indictment was bad because it lacked, in effect, particularity. Mr Boulten SC argued that the terms of the indictment was so broad that they resulted in a situation where the indictment was completely unsatisfactory for its intended purpose. 9 As extensive and complicated arrangements had been made for the empanelment of a jury on 19 April 2006, it became necessary for me to give a prompt decision in relation to the application made on behalf of the accused. For that reason, on the morning on 19 April 2006, I determined that I would not make the order sought on behalf of the accused and I indicated that the indictment should stand in its presently amended form. (I should indicate that during argument the Crown had sought leave to delete one paragraph from each of the charges and this amendment was permitted). These then are my reasons for the decision refusing to quash the new indictment.