The issue relates to whether Thomas, a chemist employed by a leading Canberra based research institute would have any available defence against indictments under Section 101.2 and 101 of the Criminal Code Act 1995 for making a dangerous chemical available to Tim.
Division 101 contained within Part 5.3 of the Criminal Code Act 1995 contains provisions outlining terrorism and acts related to terrorism. The Section 101.2 predominantly focuses on receiving or providing training that is associated to terrorist acts. The Section 101.4 outlines the provisions relating to possessing things connected to a terrorist acts, while the Section 101.5 relates to the making or collecting documents that could facilitate terrorist acts.1 The defences available to individuals indicted under the Criminal Code 1995 include the ignorance/mistake of the fact that does not involve negligence (s 9.1), mistake of fact involving strict liability (s 9.2), duress (s 10.2), extraordinary emergency (s 10.3) and lawful conduct (s 10.5).2
Thomas is presented as a chemist employed by one of the leading research institutes of Canberra. Primarily working on pathogens that can activate or deactivate viruses to create vaccines, Thomas often visits Australian schools to give guest lectures. However, on one such occasion, he is approached by a Year 12 teacher named Tim who requests access to a potentially dangerous pathogen for research purposes. Thomas was aware that this was against his employment guidelines but decides to release the chemical to Tim factoring in his enthusiasm and positive demeanour. Furthermore, Thomas also provides a document to Tim outlining the steps involved in deactivating a virus as well as strengthening it. It is the first point of incidence where the provisions contained in the Criminal Code 1995 would be triggered in terms of an indictment. Division 5 of the Code outlines the elements of fault that are typically relied upon when adjudicating cases involving Division 101. While Section 5.2 involving intention would not be involved, Section 5.3 involving knowledge, Section 5.4 involving recklessness and Section 5.5 negligence would be involved.
The most important aspect in this regard would relate to how Thomas was aware that releasing the chemical to the public was strictly against his employment guidelines. Additionally, the dangerous nature of the chemical could potentially cause harm to public safety and even threaten the national security of the country in the case of an event. Section 5.3 of the Code outlines that a person that knows the circumstances or the result that could exist in an ordinary course of the event would be liable to bear the charges. Thomas was aware that any failure to ensure caution while handling the chemical could substantially endanger the safety of the public. The chemical was not available to the general public and it was also strictly prohibited within his employment guidelines that it could not be released to a general citizen by any means. However, despite the knowledge and the awareness, Thomas decided to release the chemical to Tim as he believed that Tim would use it for research purposes.
It is important to note that the indictments or charges under the Criminal Code require the indicted person to bear the evidential burden in relation to relying on any justification, exception, qualification or exemption as a means of defence. Naturally, Thomas would bear the evidential burden in this case when attempting to rely on the defences available. The evidential burden also requires the defendant to provide conclusive evidence that the exception or the defence can be made out in complete legal standing. Some provisions that are framed as defences entail a certain degree of possibility that the defence could be standing, while other provisions expressly impose, on the defendant, a legal burden of proof. Section 5.4 involving recklessness would also apply to the case involving Thomas as he was aware of the substantial risk that would be involved in the chemical was released to the public in an unchecked manner. The risk was also unjustifiable as it was a physical element of the offence committed by Thomas. Furthermore, Thomas also provided a step by step process outlining how the chemical could be used to activate as well as to deactivate a virus. Considering how he believed that Tim would be using it for deactivation purposes, Thomas should have ideally restrained from providing the steps required to activate a virus.
This would bring the incidence of Section 5.5 of the Code involving negligence, where Thomas failed to execute the standard of care as expected of a reasonable chemist who deals with dangerous chemicals. The degree of risk involved was also extremely high, and considering the failure to acknowledge the same would certainly merit criminal punishment for Thomas. As presented later on within the scenario, Tim uses the document and the chemical to create an artificial pandemic with a stronger and more resilient form of the chickenpox virus as retaliation to the State premier cutting school funding. The resultant action could be directly linked to the negligence and the recklessness depicted by Thomas, which would essentially render the defences of mistake of fact and lawful conducts as unavailable. Furthermore, the presence of the physical elements of fault would further limit the merit for Thomas’ plea for any of the defences in this regard. The matter of “Regina v Lodhi  NSWSC 691” is relevant in this regard, where the three out of four charges of the defendant were upheld in the alignment of the physical element of recklessness, as present in the acts engaged in by Thomas.3 However, while the terrorist act in the Lodhi case did not happen, the act took place in the case of Thomas, thus further limiting the availability of the defences.
The matter of “R v Benbrika & Ors (Ruling No 2)  VSC 261” would also be relevant, where although the facts involved the defendant publicly preaching incitements and possessing documents relating to terrorism, the physical elements of the fault including negligence and recklessness were upheld.4 Based on the precedents and the rule of criminal law as contained within the Criminal Code 1995, the defences would not be available for Thomas in the context of the indictments under Division 101 of the Code.
In conclusion, the charges and criminal liabilities imposed upon Thomas relating to Section 101.2 and other charges contained within Division 101would entail legal standing due to the presence of the physical elements of the fault including recklessness, knowledge and negligence.
"Criminal Code Act 1995", Legislation.Gov.Au (Webpage, 2020) <https://www.legislation.gov.au/Details/C2017C00235>
“R v Benbrika & Ors (Ruling No 2)  VSC 261 (27 June 2007)” SCV (Webpage, 2020) <http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2007/261.html>
“Regina v Lodhi  NSWSC 691 (23 August 2006)”, SCNWC (Webpage, 2020) <http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2006/691.html>
"Exceptions and Defences | ALRC", ALRC (Webpage, 2020) <https://www.alrc.gov.au/publication/secrecy-laws-and-open-government-in-australia-alrc-report-112/7-general-secrecy-offence-exceptions-and-penalties/exceptions-and-defences/>
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