As mentioned above, Mallah and Lodhi were charged with ‘terrorist act’ offences whilst Thomas was prosecuted under two ‘terrorist organisation’ provisions. In addition to the terrorism offences, Mallah and Thomas were each charged with another, non-terrorist offence: Mallah pleaded guilty to threatening to cause harm to a Commonwealth public official; and Thomas was found guilty of having in his possession a falsified Australian passport.
The coupling of terrorist charges with other lesser offences is a phenomenon that was warned against by early critics of the terrorist offences contained in Part 5.3 of the Criminal Code. It was argued that the existence of these broadly drafted terrorism offences would fulfil a symbolic as well as a somewhat insidious practical role: with a terrorism offence in their back pocket, prosecutors could secure pleas to lesser, more traditional criminal law offences.[62] In the context of the central thesis of this chapter, it is at least arguable that the difficulties experienced by jury members in conceptualising the terrorist act definition and applying it to the offences that contain it, may also encourage then to convict on the more traditional ‘fall-back’ charge.
Each of the cases of Mallah, Thomas and Lodhi is analysed in turn.
The first prosecution under the ‘terrorist act’ offences was that of Zak Mallah who was arrested and charged in December 2003. The charges he eventually faced involved two counts under s 101.6 — doing an act in preparation for or planning a terrorist act (which carries a penalty of life imprisonment)[63] and threatening to cause harm to a Commonwealth public official under s 147.2 of the Criminal Code (which carries a penalty of two years’ imprisonment).[64] He was acquitted on both counts of the terrorist act offence and pleaded guilty to the non-terrorism offence (see below). The terrorist act alleged in relation to both the s 101.6 counts (and also the threat alleged under s 147.2) was that Mallah threatened to kill officers of ASIO or the Department of Foreign Affairs and Trade (DFAT). The particular acts charged as the preparatory or planning acts for the purposes of s 101.6 were buying a rifle and selling a videotape, photographs and a three-page typed statement to an undercover police officer.
The facts of the case are relatively straightforward.[65] Mallah had been refused an Australian passport on the grounds that he was likely to engage in conduct that might prejudice the security of Australia or of a foreign country (he was interviewed by ASIO officers and during that interview he told those officers that he could not rule out joining a jihad). He was very upset as a result of his application being refused and began behaving erratically and appearing on television and radio making provocative statements. He purchased a rifle and ammunition and the police became aware of this. They executed a search warrant and:
The rifle and ammunition were found along with a number of documents, including a handwritten will, a printed document ‘How can I prepare myself for Jihad’, a handwritten letter which appears to have been a message to ASIO, and a typed manifesto setting out his grievances and identifying ASIO as his target, as well as a copy of a job application and supporting documents which he had sent to ASIO.[66]
Mallah was arrested and charged with firearms offences for which he was fined. The trial attracted more media attention and he appeared on various television shows and was also interviewed by various newspapers (including The Australian). In the course of these numerous interviews he
showed, or sold, to the journalists copies of some of the documents which police had earlier seized, as well as some photographs of himself in dramatic poses, holding a knife, and wearing the kind of garb which, it seems, he considered appropriate for a would-be terrorist or suicide bomber. It is also evident that he made it known that he had made a videotape which, amongst other things, included recitations from the Koran, images of himself, and a recitation of what purportedly was to be his last message to the world.[67]
As a result of this behaviour, New South Wales Counter-Terrorist Coordination Command undertook an undercover operation to see if Mallah was in fact planning a terrorist related offence. An operative ‘Greg’ posed as a freelance journalist who wanted to write a story on Mallah. He made phone contact and met several times with Mallah over a period of days. They negotiated a price of $3000 for the videotape and photos and other items that related to a seige he said he was planning of an ASIO or DFAT building during which he planned to take and kill hostages. It appears that Mallah also expected to be shot and killed by police during the seige.
At trial, Mallah pleaded guilty to the s 147.2 offence (which had been an offence under the Criminal Code since well before the enactment of the terrorism provisions).[68] The jury acquitted him of both counts of the s 101.6 offence. Mallah was sentenced to two years six months with release to be subject to entering a good behaviour bond with conditions attached.[69]
The jury’s acquittal of Mallah in relation to the terrorism offences means, of course, that the prosecution did not prove beyond reasonable doubt all the elements of the offence in relation to either s 101.6 count. The defence had argued that there was no genuine plan for a terrorist act — Mallah was not in fact planning to kill ASIO or DFAT officers but was just talking nonsense and stringing ‘Greg’ along in order to make money and get some publicity. In relation to the intentions that must be shown for there to be a ‘terrorist act’, the issue was whether, if Mallah did have such a plan to kill government officers, he meant to advance a political, religious or ideological cause in pursuing it ‘as distinct from some purely personal cause either to secure a passport, or to exact revenge on ASIO or DFAT for obstructing its issue, or to gain publicity for himself’.[70] Additionally, the defence argument was that, if there was a genuine plan to kill, Mallah did not mean by its implementation to coerce or influence by intimidation the government of the Commonwealth to alter its policies or to do something that it would not otherwise have done. Again, his motivation was merely to pursue a personal vendetta against ASIO and/or DFAT.
Effectively, in order to show the physical and fault elements of the offence,[71] the prosecution needed to establish that Mallah meant to do an act as part of a genuine plan to commit a terrorist act. The jury did not accept this.
In response to Mallah’s acquittal on the terrorism offence, the Attorney-General expressed disappointment and stated, through a spokeswoman, that he would see whether the verdict ‘exposed any technical difficulties in the law’.[72] The Anti‑Terrorism Acts of 2005 (particularly Act No 1) contained measures that were designed to ‘clarify’ (effectively broaden the ambit of) the terrorism offences.[73] Crucially, though, there was no revisiting of the actual definition of ‘terrorist act’ contained in s 100.1 of the Criminal Code.
Jack Thomas was arrested in November 2004 and, like Mallah, was charged with both terrorism and non-terrorism related offences.[74] In the former category, he was charged under s 102.6(1)[75] of the Criminal Code with intentionally receiving funds from a terrorist organisation (Al Qa’ida — which has been a proscribed organisation since 2002) knowing it was a terrorist organisation. He was also charged under s 102.7(1)[76] of the Code with two counts of intentionally providing resources (himself) to a terrorist organisation that would help it engage in preparing or planning a terrorist act (count one in relation to preparing for a terrorist act overseas and count two in relation to preparing for such an act in Australia) knowing that the organisation to which he was providing resources was a terrorist organisation. In the category of non‑terrorism‑related offences, Thomas was charged under s 9A(1)(e) of the Passports Act 1938 (Cth) with possessing a falsified passport.
Thomas contested all charges but was ultimately found guilty of the receiving funds and the false passport offences. However, significantly from the point of view of the central thesis of this chapter, he was acquitted by the jury in relation to both counts of providing resources to a terrorist organisation. In March 2006, Thomas was sentenced to five years for receiving funds from Al Qa’ida and one year for the passport offence (sentences to be served concurrently). The non-parole period was set at two years.[77] Given that the maximum penalty for the s 102.6 offence is imprisonment for 25 years, the sentence was very much at the lower end of those available.
Thomas’ case and its aftermath are extraordinary in a number of respects and his story continues to be played out both in the courts and in the public arena. In August 2006, the Supreme Court of Victoria Court of Appeal overturned Thomas’ conviction on both the counts set out above on the basis that self-inculpatory statements made by Thomas in the course of interviews with Australian Federal Police (AFP) officers in Pakistan were not voluntarily made and, accordingly, should not have been admitted as evidence in his trial.[78] Nine days after Thomas’ acquittal, he became the first Australian to be made subject to an interim control order,[79] that set significant limits on Thomas’ movements, communications and other freedoms. Thomas has since unsuccessfully attempted to have the control order quashed on the grounds that Division 104 of the Criminal Code is wholly invalid under the Australian Constitution.[80] In addition, criminal proceedings are pending against Thomas in the Victorian Supreme Court. This is as a result of the Supreme Court of Victoria Court of Appeal ordering his retrial in December 2006.[81] The basis for the Court’s decision was that admissions by Thomas in a Four Corners program on ABC television and in The Age newspaper were both voluntarily made and capable of supporting a conviction and, further, that in the circumstances of the case, it would not be unjust to order a retrial.[82]
Jack Thomas trained with Al Qa'ida at the Al Farooq training camp in Afghanistan for a period of three months from March to July 2001 (that is before the events of September 11 2001). After a period in Kabul, Thomas went to Pakistan and stayed in Al Qa'ida safe houses until he received, from a senior Al Qa’ida operative (Khaled Bin Attash), funds of $3500, an airline ticket to Australia and a passport that had been falsified (in order that his stay in Pakistan would appear to have been much shorter than it, in fact, was).
Shortly after this, Thomas was arrested by Pakistani authorities and remained in custody in Pakistan (during which he was interrogated by Pakistani and United States (US) operatives and subjected to threats and some physical violence by them)[83] until 6 June 2003 when he returned to Australia. Whilst in Pakistani custody, he was also interviewed by officers both of ASIO and the AFP. It was evidence that he gave during an interview with AFP officers in March 2003 that was the subject of the appeal described above.
With respect to the two s 102.7 offences (of which the jury found Thomas not guilty) the prosecution had alleged that Thomas was trusted by Al Qa’ida operatives who saw him as being a believer in their cause. Further, it alleged that he took the money and plane ticket (as well as a phone number and email address through which he could communicate with the organisation when he got back to Australia) because he had agreed to operate as a sleeper cell for Al Qa’ida in Australia. Thomas had argued that he had never pledged allegiance to the organisation, had never offered himself as a resource and had only accepted the ticket and money in order to get home to his family.
Thomas’ acquittal on these charges demonstrates that the jury was not convinced beyond a reasonable doubt that Thomas was providing resources (in this case his services as a ‘sleeper cell’ in Australia) to Al Qa'ida that would help that organisation engage in preparing a terrorist act in Australia or elsewhere.
Once again, it is arguable that the complexities of the definition of ‘terrorist act’ (which is incorporated into the s 102.7 offence) played a part in his acquittal. In particular, it is arguable that the breadth given to the offence by the tenuous nature of the connection required between the provision of support or resources to a terrorist organisation and the complex concept of a ‘terrorist act’ gave the jury pause. All that is required for an accused to be liable under this provision is that he or she intentionally[84] provide to a terrorist organisation support or resources that would [85] (not does) help it engage (directly or indirectly) in preparing, planning, assisting in or fostering the doing of a terrorist act[86] (whether or not a terrorist act occurs) in the knowledge that the organisation in question is a terrorist one. The doctor who patches up an injured Al Qa’ida operative, knowing who she is dealing with might be caught by this provision and subject to up to 25 years’ imprisonment if successfully prosecuted.[87] Whilst Thomas’ situation is clearly more blameworthy than that of any such hypothetical doctor, discomfort with the tenuousness of the link required by the offence, in conjunction with the difficulties of working with the terrorist act definition might incline the jury to require a great deal from the prosecution if it is to convict on this offence. This is especially so when it is returning guilty verdicts in relation to other offences.
At the time of writing, Faheem Lodhi is the only person who has been convicted of a ‘terrorist act’ offence under the Commonwealth Criminal Code.[88] Lodhi is currently serving a 20-year sentence (with a minimum non-parole period of 15 years)[89] in New South Wales as an AA classified inmate (a classification applying to inmates who represent a special risk to national security).[90] He was originally charged in April 2004 with a variety of ‘terrorist act’ offences with the prosecution eventually settling on the following:
one count of s 101.4(1) — possessing a thing (in this case a document about how to make bombs) connected with a terrorist act, knowing of such a connection;[91]
two counts of s 101.5(1) — collecting or making documents (collecting maps of the electricity supply system and making aerial photos of Australian Defence Force establishments) connected with terrorist acts, knowing of such a connection;[92] and
one count of s 101.6 — doing an act (seeking information about the availability of materials that could be used to make bombs) in preparation or planning a terrorist act.[93]
Lodhi was found guilty of three of the four charges (he was acquitted by the jury of the second count under s 101.5, in relation to the aerial photos) and was sentenced to 20 years’ imprisonment in relation to the most serious offence (s 101.6) and ten years’ imprisonment for each of the other offences, with the sentences to be served concurrently.
The prosecution of Lodhi was a lengthy and complex affair raising questions relating to a range of issues, including the form of the indictments, the constitutional validity of the National Security Information (Criminal & Civil Proceedings) Act 2004 (Cth), the taking of evidence in Pakistan and the retrospective application of s 106.3 of the Criminal Code.[94] As a result, there were multiple rulings by both the trial judge and the NSW Court of Criminal Appeal. The discussion in the first part of this chapter has already analysed some of these judgments, most importantly the significance of the rulings of both Whealy J and the three judges of the NSW Court of Criminal Appeal in relation to the definition of ‘terrorist act’. Both Courts ruled that the ‘intention’ requirements in the definition of terrorist act (in relation to both advancing a religious, political or ideological cause and coercing or intimidating a government) did not relate to the state of mind of the accused, but rather constituted circumstances attaching to the terrorist act itself. Accordingly, it was not necessary for the prosecution to show that the accused himself held such intentions.[95] Lodhi’s situation was, however, a ‘simple’ case in this regard, as the discussion below highlights.
Lodhi worked at a firm of architects in Sydney.[96] He became involved with Willie Brigitte (a French citizen who had trained with Lashkar-e-Tayyiba[97] in Pakistan in 2001) when Brigitte came to Australia in May 2003. Lodhi claimed that he had been asked to look after Brigitte by a common acquaintance of the two men: Sajid Mir, whom Lodhi had met at a mosque in Pakistan in 2002 and 2003. The trial judge, Whealy J, found that this association was ‘not an innocent one’ and that the two men were meeting ‘so that, in general terms, the prospect of terrorist actions in Australia could be explored’.[98] In October 2003, Brigitte was deported back to France after French authorities contacted Australian Intelligence agencies reporting that he had ‘substantial links’ to terrorism.[99] Shortly before Brigitte’s detention and subsequent deportation, Lodhi obtained a desk map and a wall map of the Australian electricity supply system from Energy Supply giving a false name and contact details. On execution of a search warrant at the firm where Lodhi worked police found a 15-page document in Urdu in Lodhi’s handwriting that was described by the prosecution as ‘a terrorism manual for the manufacture of homemade poisons, explosives, detonators and incendiary devices’.[100] The document referred to a particular explosive device containing an explosive called urea nitrate. The day after Brigitte was detained, Lodhi sent a fax under the name and address of a fictitious company to a chemical firm and obtained, in response, a price list for various chemicals including urea and nitric acid (the components of urea nitrate).
The trial judge’s remarks, at sentencing, reveal several interesting points. First, the evidence against Lodhi demonstrated that his planning of a terrorist act was at a very early stage. As Whealy J states:
I am perfectly satisfied that the proposal had not reached the stage where the identity of a bomber, the precise area to be bombed or the manner in which the bombing would take place, had been worked out.[101]
Nevertheless, the offences with which Lodhi was charged target precisely the type of preparatory behaviour undertaken at a very early stage in the planning of a terrorist act. The fault element of knowledge[102] of a connection with a terrorist act (present in both s 101.4(1) and s 101.5(1)) does not require awareness at the time of the prohibited conduct of either a specific or a general terrorist act, nor of a specific target.[103] Second, Whealy J, emphasised that this was, in fact, what I term a ‘simple’ case in relation to the definition of ‘terrorist act’ in the sense that evidence was presented that Lodhi himself held the necessary intentions to advance a religious cause and to coerce the government. Whealy J describes the evidence going to prove such an intention as follows:
There was also found in his possession a significant amount of material which threw considerable light on his intentions in relation to these offences. The material included a CD-Rom which was described, throughout the trial, as the ‘jihadi CD’. This was a virtual library containing exhortations to violent jihad, justifications for suicide bombings (called ‘martyrdom’ in the text of the material), and which extolled the virtues of those who had given their lives to the murder of innocent civilians and others in the name of extremist Islam. Much of the material exhorted the reader or listener to follow, or at least support violent jihad. In addition to this CD, there were two volumes of the Lion of Allah, other material and [a] Chechnyan videocassette glorifying those who had given their lives in the fight between Chechnya and Russia.[104]
He further found that:
all this material makes it clear that the offender is a person who has, in recent years, been essentially informed by the concept of violent jihad and the glorification of Muslim heroes who have fought and died for jihad, either in a local or broader context. The material is eloquent as to the ideas and emotions that must have been foremost in the offender’s mind throughout October 2003 and later, at least until the time of his arrest.[105]
Such evidence together with evidence of Lodhi’s association with Brigitte and Mir was clearly sufficient to convince the jury that Lodhi’s conduct was undertaken with the intention to advance the cause of violent jihad and to coerce the Australian government and/or intimidate the public.[106] If the complexity of the definition of ‘terrorist act’ serves as a break on convictions in relation to less blameworthy cases, as I argue, nevertheless in ‘simple’ cases, where evidence going to the state of mind of the accused is powerful, a jury will infer intention in relation to the ‘terrorist act’ definition even when the offence relates to very preparatory behaviour.
[62] See, eg, the submission by Justice John Dowd on the original Bill in 2002 on behalf of the International Commission of Jurists in the Report of the Senate Legal and Constitutional Legislation Committee, Parliament of the Commonwealth of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (2002) 38.
[63] The provision as it read at the time that Mallah was charged (note the discussion of the subsequent changes to sub-s (2), above in the text at n 18) is as follows:
Section 101.6 Other acts done in preparation for, or planning, terrorist acts
(1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.
(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.
(3) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).
[64 Section 147.2(2) Threatening to cause harm
(2) A person (the first person) is guilty of an offence if:
(a) the first person makes to another person (the second person) a threat to cause harm to the second person or to a third person; and
(b) the second person or the third person is a public official; and
(c) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(d) the first person makes the threat because of:
(i) the official’s status as a public official; or
(ii) any conduct engaged in by the official in the official’s capacity as a public official; and
(e) the official is a Commonwealth public official; and
(f) if subparagraph (d)(i) applies—the status mentioned in that subparagraph was status as a Commonwealth public official; and
(g) if subparagraph (d)(ii) applies—the conduct mentioned in that subparagraph was engaged in by the official in the official’s capacity as a Commonwealth public official.
Penalty: Imprisonment for 2 years
(2A) Absolute liability applies to the paragraphs (2)(e), (f) and (g) elements of the offence.
The charge as set out in the ruling of Wood CJ at CL (on pre-trial issues relating to the admissibility of evidence) in R v Mallah [2005] NSWSC 358 (Unreported, 11 February 2005) [1] was that the accused: ‘Between about 28 November 2003 and 3 December 2003 at Sydney in the State of New South Wales:
(a) made to another person, namely, to undercover officer using an assumed name ‘Greg’ (the second person) a threat to cause serious harm to a third person, namely, he threatened to kill unidentified officers of the Department of Foreign Affairs and Trade or the Australian Security Intelligence Organisation; and
(b) the third person is a public official; and
(c) he was reckless as to causing the second person to fear that the threat will be carried out; and
(d) he made the threat because of the official’s status as a public official; and
(e) the official is a Commonwealth public official.’
[65] The facts are set out in R v Mallah [2005] NSWSC 317 (Unreported, Wood CJ at CL, 21 April 2005) [3]‑[27].
[66] Ibid [11].
[67] Ibid [14].
[68] The offence was inserted into the Criminal Code as a result of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth).
[69] R v Mallah [2005] NSWSC 317 (Unreported, Wood CJ at CL, 21 April 2005) [88]‑[90]. Mallah was, in fact, released in October 2005 — his sentence effectively being increased by six weeks after he assaulted a prison officer in May 2005.
[70] Ibid [22].
[71] The fault element of s 101.6, by virtue of the default fault element provision of the Criminal Code (s 5.6), is that the accused intentionally engaged in the prohibited conduct (here ‘doing any act in preparation for or planning a terrorist act’. Under s 5.2(1) a person has intention with respect to conduct if he or she ‘means to engage in that conduct’.
[72] Quoted in N Wallace and J Kerr, ‘Not a Terrorist, Just an Angry Loner Starved of Attention’, Sydney Morning Herald (Sydney), 7 April 2005, 1.
[73] Former Prime Minister of Australia, John Howard, Joint Press Conference with the then Attorney‑General, Philip Ruddock, Parliament House, 8 September 2005.
[74] The charges and facts of the case are clearly set out in DPP v Thomas [2006] VSC 120 (Unreported, Cummins J, 31 March 2006) [1]‑[5].
[75] That subsection reads:
Section 102.6 Getting funds to or from a terrorist organisation
(1) A person commits an offence if:
(a) the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
[76] Section 102.7(1) provides:
(1) A person commits an offence if:
(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 25 years.
Paragraph (a) of the definition of terrorist organisation provides:
Terrorist organisation means (a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs).
[77] See the sentencing remarks of Cummins J in DPP v Thomas [2006] VSC 120 (Unreported, Cummins J, 31 March 2006) [18]‑[21].
[78] R v Thomas (2006) 14 VR 475, [94] (Maxwell P, Buchanan and Vincent JJA).
[79] Under pt 5.3, div 104, sub-div B, s 104.4 of the Criminal Code.
[80] See the decision of the High Court in Thomas v Mowbray [2007] HCA 33 (2 August 2007).
[81] The re-trial was listed to commence in February 2008.
[82] R v Thomas (No 3) (2006) 14 VR 512.
[83] In his ‘Reasons for Ruling Number 3’, the trial judge, Cummins J detailed Thomas’ description of treatment he had received in custody at the hands of Pakistani and two US operatives and generally accepted its accuracy at [41]. See DPP v Thomas [2006] VSC 243 (Unreported, Cummins J, 7 April 2006) [36]-[40].
[84] This requirement is part of the offence as a result of s 5.6 of the Criminal Code. See above n 71 for an explanation of this provision and a definition of intention.
[85] It is arguable that this constitutes a circumstance associated with conduct, which would, as a result of s 5.6, require the prosecution to prove that the accused was ‘reckless’ as to whether their provision of support or resources would help the organisation to engage in preparing a terrorist act. Recklessness with respect to circumstances is defined in s 5.4 of the Criminal Code as:
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
Alternatively, if this is characterised as part of the prohibited conduct, the default fault provision of intention might be argued to extend to whether the accused meant to provide support or resources of a kind that would help the terrorist organisation prepare for a terrorist act: see Gani and Urbas, above n 2, 43.
[86] As defined in s 100.1(2).
[87] See the hypothetical scenario referred to above in n 34.
[88] Lodhi’s appeal against both his conviction and sentence was dismissed by the NSW Court of Criminal Appeal in December 2007: Faheem Khalid Lodhi v R [2007] NSWCCA 360 (Unreported, Spigelman CJ, Barr and Price JJ, 20 December 2007). Lodhi has filed an application for special leave to appeal to the High Court.
[89] Section 19AG of the Crimes Act 1914 (Cth) (inserted into that Act as a result of Item 1B of Schedule 1 of the Anti-Terrorism Act 2004 (Cth)) requires a judge sentencing for terrorism offences to set the single non-parole period at a percentage of at least three-quarters of the sentence. See the sentencing remarks of Whealy J in R v Lodhi (2006) 199 FLR 364, [105].
[90] See Regulation 22 of the Crimes (Administration of Sentences) Regulation 2001 (NSW) under which AA classified inmates must ‘at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment’. Justice Whealy discusses the conditions in which Lodhi had been and was likely to be held, including (effective) ‘solitary confinement’, in his sentencing remarks in R v Lodhi (2006) 199 FLR 364, [79]‑[82].
[91] The relevant provision is: s 101.4 Possessing things connected with terrorist acts:
(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).
Penalty: Imprisonment for 15 years.
[92] The relevant provision is: 101.5 Collecting or making documents likely to facilitate terrorist acts
(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).
Penalty: Imprisonment for 15 years.
[93] See above n 63 in relation to Mallah for the full text of the offence.
[94] See the text at n 20 above in relation to this issue.
[95] See the text at nn 31‑33 above.
[96] The facts of the case are set out in full by Whealy J in his sentencing remarks: R v Lodhi (2006) 199 FLR 364.
[97] Now a proscribed terrorist organisation under the Criminal Code.
[98] See the sentencing remarks of Whealy J in R v Lodhi (2006) 199 FLR 364, [10].
[99] Brigitte and Mir have since been convicted of terrorism related offences in France (Mir in absentia).
[100] R v Lodhi (2006) 199 FLR 364, [24].
[101] Ibid [26].
[102] Under s 5.3 of the Criminal Code 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.
[103] R v Lodhi [2006] NSWSC 584 (Unreported, Whealy J, 14 February 2006) [82]‑[83].
[104] R v Lodhi (2006) 199 FLR 364, [18].
[105] Ibid [20].
[106] See Whealy J’s further remarks in R v Lodhi (2006) 199 FLR 364, [33].