Criminal law gives the government power to take away people’s liberty. It is also meant to curb and constrain this power. The power to detain in a liberal society is only just when that power is exercised according to fundamental legitimising principles of criminal law that have evolved over centuries. These principles mark the right balance between the state’s obligation to ensure security of person and property, with the fundamental right of all people to be free.
Victorian criminal law is becoming increasingly estranged from its legitimising principles. This is the first entry of a multi-part series on how the government’s authority to detain is being deployed in ways that challenge the bounds of the legitimate use of power in a liberal democratic society.1
This first entry will address how certain terrorism provisions have been construed to capture conduct that is not intrinsically connected with any tangible harm. The consequence of this is that it creates a great uncertainty in the scope and ambit of the law. This uncertainty challenges the principle of legality, which will be the subject of a subsequent post.
Hostile Activities – Part 1
Since 2001 and the start of the global war on terrorism, governments have been motivated, and indeed mandated under international law,2 to ramp up their efforts in countering terrorism. Wide criminal offence provisions and law enforcement powers were drafted in order to prevent acts of terrorism against Western democracies, and later to minimise the movements of foreign fighters seeking to join overseas conflicts for ideological reasons. For as long as these laws have been in effect, they have been criticised for being vague and overly broad.
Last year a Victorian Court of Appeal judgment was handed down in the matter of Dacre and Ors v R3 construing an offence designed to prevent foreign fighters from travelling overseas into conflict zones. Section 119.4 of the Criminal Code is a nebulous provision that could be used in a frightening variety of circumstances going well beyond its intended application. The way this offence was deployed by the prosecution in the case of Dacre aggravated its uncertainty by charging it with not one but two degrees of complicity. In an interlocutory appeal where the defence challenged the sufficiency of the particulars on which the prosecution was based, the Court of Appeal reinforced this uncertainty by effectively relieving the prosecution from an obligation to prove a connection between the conduct of the accused and any tangible harm.
Imprisoning people for conduct that is not closely linked with wrongdoing is a gross violation of liberal principles. When conduct as innocuous as participating in a plan to buy a fishing boat leads to imprisonment, as in this case, the deprivation of liberty was neither punitive/retributive, nor preventive as there was no concrete harm to prevent. When the Prosecution need not prove the particulars of the anticipated harmful conduct, conviction and punishment are based on popular prejudice and fear.
The charge: Section 119.4—Preparing to enter a foreign country or the purposes of engaging in hostile activity
The problem raised before the Court of Appeal in Dacre was whether the charge under s 119.4 of the Criminal Code was sufficiently particularised to enable the defence to properly know the case against them—that is to say, whether the Prosecution had to prove the connection between the verifiable conduct of the accused with a particular future harm or wrong. The joint decision of the Court of Appeal was that they did not.
This was a case of six men who sourced and purchased a motorised fishing boat. Five of the men drove it to Queensland. Four of them had an intention to traverse the ocean to the Southern Philippines. Each of them maintained some belief in Shariah law and were supportive of the Islamic insurgency there. One of them, Robert Cerantonio, had an intention to join or encourage the insurgents who were engaged in violent acts against the government. One person, Murat Kaya, did not travel to Queensland but stayed in Melbourne with his family, fully intending to carry on with his work and his life there. He was arrested in Melbourne. The others were intercepted in Queensland. They were all charged under s 119.4 of the Criminal Code in May 2016.
Section 119.4 makes it a criminal offence to prepare to enter a foreign country with the intention of engaging in hostile activity.
In short, the components of s 119.4 are this:
- A person engages in conduct4
- That conduct is preparatory to5
- Entering a foreign country with the intention of engaging in6
- Any conduct7
- that is done with the intention of achieving one of the following objectives8
- Overthrowing by force or violence the government of that country
- Intimidating the public or part of the public of that or any other foreign country
- Causing death or bodily injury to anyone holding a public office
- Destroying or damaging any real or personal property belonging to a government.
Maximum sentence: Imprisonment for life, the heaviest tariff known to Australian law.
Clearly the harm to which the offence is directed is engaging in hostile activity overseas.9 Criminalising the act of entering a foreign country with the intention to engage is already one step removed from actual engagement in hostile activity. Preparing to enter a country in order to engage in hostile activity is two steps removed. This case goes further still.
The offence was charged with two degrees of complicity:
There was an agreement to prepare to enter a foreign country with a particular intention to encourage others to engage in undesirable activity. Specifically, Mr Cerantonio was preparing to enter the Philippines intending to support persons of the Islamic faith to engage in hostile activities.11 The others entered an agreement to help Mr Cerantonio.
The impugned conduct for which the offenders were ultimately sentenced was
Although the harm that justifies the offence is engaging in hostile activities, it was not charged that any of them intended to engage in hostile activities.
The Defence, in pushing for better particulars, tried to connect the criminal conduct (buying a boat) with some kind of tangible harm. The prosecution could not specify what conduct Mr Cerantonio or the others intended to engage in if they got to the Philippines beyond the following:
The defence rightly pointed out that the conduct Mr Cerantonio was intending could have been “anything from engaging in armed conflict, to planting bombs, to singing protest songs or to cheering at a rally.’”13 Without particularising the intended harm, the provisions could be used just as easily to criminalise peaceful protest as insurgency.
The question before the Court was how much detail the prosecution needed to provide about what they thought the accused intended to do once they got to the Philippines. At stake in the argument was a determination of where the criminality of this offence lay: were they criminals by virtue of entering an agreement to engage in preparatory conduct, or, did the prosecution need to prove that they intended to engage in hostile activities, directly or indirectly?
The Prosecution conceded that if they were required to further particularise the charge, their case could not proceed.14 The prosecution had no evidence of who the accused would support or what kind of encouragement would be provided, because the planning had not extended that far. Further, at least two of the accused had no intention to enter the Philippines, and another three had no immediate intention to support Islamic insurgents. In other words, the connection to the actual harm simply didn’t exist. What the Prosecution relied on instead, to show that these people were generally up to no good, was the political/religious ideology each of the accused adhered to.
In 2007, the Victorian Court of Appeal decided a case where “the principle issue raised by the appeal is whether criminal liability can arise as a consequence of anticipated acts which the accused has yet to perform.”15 In that case, they referred to a foundational principles of the criminal law in order to decide how an offence was to be construed. Unfortunately, the Court of Appeal forgot this same principle in their decision on s 119.4.
The case of Abdul-Rasool v R16 is the definitive case for the construction of the offence of the reckless conduct endangering life.17 At issue in the case of Abdul-Rasool was whether Ms Abdul-Rassool completed the offence by dousing herself with petrol in a school, even though she had not ignited it, or even reach for a lighter. Whilst reckless conduct endangering life is not a preparatory or inchoate offence, the offence is complete on the basis of conduct is not itself harmful to others, but that it anticipates a future harm—much like s 119.1, entering a country with intent to engage in hostile activity.
The prosecution argued that she could have set herself alight as there was a lighter within reach, and therefore she endangered other people’s lives and was culpable. The jury was convinced by this argument and Ms Abdul-Rassool was convicted. The Court of Appeal, however, was not and overturned the verdict, entering an acquittal. They found that dousing herself with petrol did not in itself endanger life and, importantly, that the offence could not be complete on the basis of anticipated or potential further conduct.
The rationale for their finding was articulated by Redlich JA:
As no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than they are demonstrated as outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act or some open evidence of an intended crime is necessary in order to demonstrate depravity of the will, before the man is liable to punishment.18
In a half-hearted curtsey to Blackstone’s principle stated above, the joint judgment in Dacre acknowledged that there must be some nexus between the preparatory conduct and the intended harm.19 However, their findings with respect to question raised by the defence fail to support even that.
The joint judgment of the Court of Appeal held that it was sufficient to prove beyond reasonable doubt that the accused entered an agreement to engage in conduct that was preparatory to committing a further offence. The ways in which the accused might commit that further offence could not be known, and it was therefore not necessary for the Prosecution to provide details of what was planned.
The way that the Court of Appeal connected the innocuous conduct of buying a boat with the harm of the offence provision was by finding that the harm of the completed offence (s 119.1) was complete at the point of entry into the foreign country – not the engagement in hostile activity. This is the fundamental error in that decision.
Section 119.4 is an offence of preparing to commit an offence under s 119.1—entering a foreign country with intent to engage in hostile activity. The joint judgment held that the offence of entering a foreign country with intention to engage in hostile activity was like the offence of burglary.20 Both offences, it was stated, are complete upon entry and are therefore comparable: the wrong captured by each offence is the act of entry when it is done with a particular state of mind or intention. If the substantive offence is complete upon entry, then the preparatory offence is complete at the stage of preparing to enter the country. It need not be proven that the accused was preparing to engage in hostile activity any more than burglary requires the prosecution to prove what items the burglar intended to steal.
This analogy with burglary is, in my respectful opinion, false. There are a number of reasons why this is so.
Firstly, burglary is trespass with intent to steal, assault or damage property. Trespass, the conduct element of burglary, is always (necessarily) unlawful. As such, the conduct for which one is charged and convicted already captures some kind of harm. One is not charged merely for entering another person’s home or place of business—something we all do on a regular basis, much like entering a foreign country.
Further to this first point, Australia has jurisdiction to pass laws that protect private property within its own territory, such as trespass. Australia does not have jurisdiction to pass laws to regulate another country’s borders.21
Second, the criminality of burglary is considered more serious than trespass because it is done for the purpose of committing a further crime: theft, assault or damage property. Each of these further offences has a clear meaning under law. It is generally understood that the intention to commit this further offence will be acted upon soon after entry and not weeks or months in the future. In addition, the offence of burglary will be followed by an executed theft or assault inside the premises. It is for these reasons that an intention at the time of entry can be relatively safely inferred from the surrounding circumstances.
“Overthrowing the government” however, does not have a clear meaning under law. It is not clear what kind of conduct amounts to “overthrowing by force or violence the government”. It is not a singular act done immediately upon entry to a foreign country. There may be legitimate disagreement as to whether the conduct that one seeks to engage in is sufficient to satisfy the definition of “engage in hostile activity” – for example, it would need to be decided if protests for a change of government amounts to “overthrowing by force or violence the government of another country”. This uncertainty then forms the basis of the circumstantial inference of an intention at the time of entry.
If burglary were drafted in a way truly analogous to s 119.1, the offence would read something along the lines of “entering private property with the intent to cause disturbance.” Attending a difficult family dinner could constitute burglary.
The Court of Appeal relied on this analogy to find that the offence of s 119.1 is complete upon entry. Therefore s 119.4 is complete once any conduct is undertaken in preparation for entry. It follows that, by way of complicity liability, s 119.4 is complete by entering an agreement to engage in the preparation for entry – even someone else’s entry. It need not be shown that there was agreement to actually enter the country for the purposes of engaging in hostile activity. It need not be shown what hostile activity was intended. This is how the prosecution was able to extend the charges to all six of them, including those who had not formed an intention to engage in hostile activity or even encourage others to engage in hostile activity.
The Court of Appeal construed s 119.4 in a way that effectively severed the connection between the charged conduct (buying a boat) and the harm (overthrowing a foreign government by force or violence). It did this by relieving the Prosecution of their obligation to detail the connection between the conduct charged and the anticipated harm. So long as it could be proven beyond reasonable doubt that one of the accused, in this case Cerantonio, bought a boat intending to enter the Philippines, and that he had certain beliefs and convictions, and there were others who helped him buy a boat, they could all go to jail.
A “common sense” counter argument might be raised that if this group of young men with ISIS flags have been stopped from going overseas to participate in an Islamic insurgency, then the provision has been used effectively. In that case, the Court of Appeal should be lauded for ensuring that the offence provision was construed in a way that ensures its workability.
This reasoning relies on assumptions based on prejudice, not reason based on evidence. That false reasoning A. assumes the accused is somehow inherently dangerous on account of his political beliefs, and B. because others who share similar political convictions are violent, that the accused will be too. Recall, Murat Kaya22 and Shayden Thorne23 did not intend to go to the Philippines. One must ask how their imprisonment can be justified. If they are being punished, what wrong had they committed? If they did not intend to go overseas, what harm was prevented?
As the English proverb goes, from a hundred rabbits you can’t make a horse, a hundred suspicions don’t make a proof.
For “seeking to obtain and equip a boat suitable to enable the six men (or some of them) to leave Australia covertly; and purchasing a vehicle and a boat, and driving the vehicle and boat to the north of Queensland”, Murat Kaya, Shayden Thorne, Paul Dacre, Antonino Granata, Kadir Kaya and Robert Cerantonio were sentenced, on the strength of a hundred suspicions, to three years and eight months24, three years and 10 months,25 four years,26 and seven years in prison.27
 The focus will be on the government’s powers to detain under criminal law, not, for example, immigration law.
 See esp UN Security Council Resolution 1373 (28 September 2001) UN Doc S/RES/1373 (2001) and UN Security Council Resolution 2178 (24 September 2014) UN Doc S/RES/2179 (2014).
  VSCA 150.
 Criminal Code Act 1995 (Cth), s 119.4(1)(a).
 Criminal Code Act 1995 (Cth), s 119.4(1)(b).
 Criminal Code Act 1995 (Cth), s 119.1(a).
 Criminal Code Act 1995 (Cth), s 117.1, definition “engage in hostile activity”.
 Explanatory memorandum, Mohamed case, Sentencing judgment Croucher
 R v Cerantonio & Ors  VSC 284, .
 Ibid .
 Ibid .
 Dacre & Ors v R  VSCA 150, .
 Ibid .
 Abdul-Rasool v R  VSCA 13,  (Chernov JA).
  VSCA 13.
 Crimes Act 1958 (Vic), s 22.
 Abdul-Rasool v R  VSCA 13, .
 “The particulars of the preparatory conduct must identity the alleged nexus between the conduct and the intended future commission of the substantive offence. But, of necessity, the content of the particulars will be different from those which would be given when what is alleged is the actual commission of a substantive offence.” Dacre & Ors v R  VSCA 150, . See also Dacre & Ors v R  VSCA 150, (a).
 Dacre & Ors v R  VSCA 150, .
 Of course the “declared areas” offences do essentially this – criminalise movement outside of its own territorial jurisdiction. However, those provisions are highly controversial and have never been applied. They are if anything the exception that proves the rule.
 “On 27 May 2017, Murat Kaya was arrested in Melbourne. His residence was searched. There was no sign that he was then intending to leave home. Indeed there was evidence to suggest that he intended to continue to live and work in this country.” R v Cerantonio & Ors  VSC 284, .
 “The Crown also accepted the following things about the case concerning Mr Thorne in particular. First, the evidence did not establish beyond reasonable doubt that Mr Thorne personally intended to enter the Philippines.” R v Cerantonio & Ors  VSC 284, .
 Murat Kaya, Ibid -.
 Shayden Thorne: Ibid -.
 Paul Dacre, Antonino Grenata, Kadir Kaya: Ibid -.
 Robert Cerantonio: Ibid .