B v R [2008] NSWCCA 85

B v R [2008] NSWCCA 85

The Court held that the indictment was not duplicitous, either patently or latently, as it charged a single conspiracy agreement which could lawfully relate to preparatory acts for one or more terrorist acts; the necessary consent for proceedings was obtained prior to committal, satisfying s 11.5(8) of the Criminal Code Act 1995 (Cth); and a conspiracy to commit a preparatory act is not unknown to the law. Leave to appeal was refused on all grounds except that one order was stood over as sought in some applications.

Jurisdiction
Australia
Judgment Date
21 April 2008
Procedural Posture
Application for Leave to Appeal (criminal) / Judgment on Leave to Appeal; Application for Orders to Quash Indictment And/or Dismiss Proceedings
Outcome
Leave to appeal refused (except for one matter stood over as indicated).
Legal Topics
['indictment' 'conspiracy' 'duplicity of Indictment' 'consent to Commence Proceedings' 'terrorism Offences' 'interpretation of Criminal Code']
['criminal Law'] ['indictment' 'conspiracy' 'duplicity of Indictment' 'consent to Commence Proceedings' 'terrorism Offences' 'interpretation of Criminal Code']

Case Brief

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Procedural Posture

Application for Leave to Appeal (criminal) / Judgment on Leave to Appeal; Application for Orders to Quash Indictment And/or Dismiss Proceedings

Legal Issues

  1. 1 ['Whether the indictment is duplicitous for alleging conspiracy to do acts in preparation for a terrorist act or acts' 'Whether the necessary consent to commence proceedings was obtained before commencement as required by Criminal Code Act 1995 (Cth) s 11.5(8)' 'Whether the offence charged is unknown to law because it charges a conspiracy to commit a preparatory act']

Ratio Decidendi

The Court held that the indictment was not duplicitous, either patently or latently, as it charged a single conspiracy agreement which could lawfully relate to preparatory acts for one or more terrorist acts; the necessary consent for proceedings was obtained prior to committal, satisfying s 11.5(8) of the Criminal Code Act 1995 (Cth); and a conspiracy to commit a preparatory act is not unknown to the law. Leave to appeal was refused on all grounds except that one order was stood over as sought in some applications.

Court Disposition

Leave to appeal refused (except for one matter stood over as indicated).

Orders

  • ['Stand over Order 3 sought in the Notices of Application for Leave to Appeal of Khaled Cheikho dated 3 April 2008, of Mirsad Mulahalilovic dated 4 April 2008 and of Mazen Touma dated 7 April 2008.' 'Otherwise refuse leave to appeal on each Application.']