Table of Content
The issue is whether Thomas would be able to claim any of the defenses available for indictments under the Criminal Code Act of 1995 for releasing a dangerous chemical to Tim against his employment guidelines.
Division 101 of the Code outlines the various provisions related to terrorism, while Section 101.2 is aligned with the provision of training associated to terrorist acts. The defences available are contained in Part 2.3 of the Code.
Interpretation Of Legislation Exercise - Brief Facts
The facts mentioned in brief are that Thomas is a chemist and is employed in a leading research-based institute in Canberra, also knows the making of the vaccines for the new viruses. Thomas was invited as chief guest to give lectures in the Australian schools, especially to the year 12 students of chemistry. On an occasion of providing lectures to the student in Perth in October 2019, Thomas was approached by a teacher of year 2 and told Thomas that Tim admired him also was interested in knowing the ways of deactivating the viruses with the chemicals. Tim asked Thomas to make the chemicals available to him for controlled use in the lab for the experiments which should also benefit the students of year 12.
Being well aware of the fact of realizing the chemical to a member of the public way was contrary towards the guidelines instead of that and taking things with positive intention and in good conscious Thomas gave the chemical and also respected the way of educating students with full enthusiasm and confidence. Thomas trusted Tim and also showed confidence that Tim shall only use chemicals to educated students, and should also provide Thomas an appreciation in work. Thomas told about the incident to Kassandra and she considered it a foolish act committed by Thomas and also a serious breach of protocol.
A few months later Thomas was shocked to hear the news of terrorist attack which had occurred in Perth due to the dangerous virus than chickenpox was realized in a mall by putting the lives of the people at risk and the person accepting the commitment of the act is none other than Tim, who has sent a letter by admitting the attack to the State Premier in retaliation for government cuts to school funding. Thomas got arrested the next morning and has been charged under the laws of Criminal Act because the document in which instructions of the modification of the chemical and the virus were found in the hard drive of the computer of Thomas and so was this told by Kassandra to the federal police.
Criminal Code Act 1995 defines the term terrorist act in section 101.1 which says that a person who commits an offense is involved in any terrorist act shall face the penalty of imprisonment for life. An individual who commits an offensive act if, a person is provided or has received training and the training is in the connection with any kind of preparation and engagement of that particular person in any act or commencement in the terrorist act and the person is being reckless as to the above-described sections shall face the penalty of imprisonment for 15 years.
Further, it is also mentioned that any person who possesses a thing and the thing is directly or indirectly connected with the preparation of any kind of engagement of the person in the work or any assistance in activities of a terrorist act or shows any recklessness in the connection describes shall be liable for the punishment of 10 years of imprisonment (Criminal Code Act 1995).
Moreover, section 102.2 provides information about the providing and receiving training connect with terrorists acts, the person involved in an offensive act and provides the receiving of the training and the training is connected with the preparation or any engagement of a person in the work or assistance in any terrorist activity shall be liable for the imprisonment for 25 years or a person for the same act can also be punished for 15 years of imprisonment (Criminal Code Act 1995), furthermore, it also tells that a person who commits an offense under the section even if there is no occurrence of any terrorist act or the training is not connected with any preparation or engagement of a person and its assistance in any criminal or terrorist activity or even if connected shall be considered as more than one terrorist act.
The physical elements of fault would be the most important aspect that would be relied upon by the courts of law within Australia to determine the criminal liability for Thomas and whether or not he would be able to claim any of the defences.1 The fact that he released the chemical to Tim while knowing very well the dangerous implications it entailed would entail the first physical element of fault, which is knowledge. Although the attack would not be considered as a result of an ordinary circumstance, the fact that Thomas was well aware that such a possibility could take place in the future but decided to give in to releasing the chemical would inherently reduce the merit in his defence claim.
The second physical element of recklessness, as covered in Section 5.4 of the Code would also be applicable considered how Thomas recklessly decided to go against his employment guidelines and release the chemical to Tim without considering the future repercussions.2 The chemical by default was not accessible to the public considering its dangerous and innocuous nature, and was strictly maintained within research facilities for lab testing. Thomas also went on to provide Tim with the documents that contained the step by step process of deactivating the virus as well as making it more resilient. Provided that Thomas believed that Tim would only use the knowledge and the chemical for testing purposes, the process of making a virus stronger and resilient should not have been given by any means, let alone the release ofthe chemical. Naturally, the physical element of fault of recklessness would also be applicable in this regard.
Lastly, the physical element of fault involving negligence would further reduce Thomas’ standing while claiming the defence for indictments under Division 101 of the Code. Considering how Thomas was a trained professional working with a research institute, it would be naturally expected that he performs his duties with a certain standard of care as expected reasonably. While releasing the chemical to Tim without factoring in the possible negative implications, Thomas failed to maintain the standard of care, which would affect his claim for defence in a negative manner.
In the case of R v. Roche, the accused was found guilty to conspire and blow up the embassy of Israeli and was sentenced for the imprisonment of 9 years, the point that has to be noted is that the conviction was under the pre legislation and not under the terrorism legislation.3 This tells that the act committed by Thomas was not an act which involved any terrorist connection or engagement. However, the physical elements of fault were upheld in the decision in leading up to the imposition of criminal liability, which would be applicable in Thomas’ case as well.
In the case of Faheem Khalid Lodhi, who was convicted as Pakistani-Australian criminal and architect was charged for seeking information on chemical prices for the use of explosive for a terrorist act, collecting maps of the Australian electricity supply system in preparation of a terrorist act, possession of a document with information on the manufacture of poisons and bombs in preparation for a terrorist act was held liable for 20 years of imprisonment with a non-parole period of 15 years.4 It is important to note that although the decision was reduced as the charges did not stand over time; the physical elements of the fault were certainly prioritised when making the judgement.
Thomas would not be able to claim any of the defences as mentioned within the Code such as lawful conduct, emergency situation or strict liability due to the presence of the physical elements of fault including negligence, knowledge and recklessness.
"Criminal Code Act 1995", Legislation.Gov.Au (Webpage, 2020) <https://www.legislation.gov.au/Details/C2017C00235>
"R. V. Roche - SCC Cases (Lexum)", Scc-Csc.Lexum.Com (Webpage, 2020) <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5347/index.do>
"Fault Elements | ALRC", ALRC (Webpage, 2020) <https://www.alrc.gov.au/publication/secrecy-laws-and-open-government-in-australia-alrc-report-112/6-general-secrecy-offence-elements/fault-elements/>
“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>
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