Abdirahman-Khalif v The Queen

Case [2019] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

ABDIRAHMAN-KHALIF v THE QUEEN

[2019] SASCFC 133

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Parker)

31 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE

Appeal against conviction imposed in the Supreme Court for one count of membership of a terrorist organisation contrary to s 102.3(1) of the schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code).

It was alleged that between 14 July 2016 and 23 May 2017 the appellant was intentionally a member of a terrorist organisation, namely Islamic State. Section 102.1 of the Criminal Code defines a ‘terrorist organisation’ to include an organisation that is specified by the regulations. The Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (2014 regulation) proscribed Islamic State as a terrorist organisation.

The appellant appeals on two primary grounds:

1.  That the verdict is not supported by the evidence because there was no evidence of the organisational structure of Islamic State explaining the nature of its membership or how a person might become a formal or informal member of it and, therefore, no evidence that the appellant had taken a step to become a member (ground 3).

2.  The summing up was unbalanced and failed to present the defence case (grounds 2, 2A and 2B).

Held per Kourakis CJ (Parker J agreeing), allowing the appeal on ground 3:

1.  On a proper construction of the 2014 regulation, it prescribes the organisation, in a narrow sense, known as Islamic State and not the residents, even supportive residents, of the territory it controls. 

2.  There was no evidence against which to evaluate any connection between the proved conduct of the appellant with formal or informal membership of Islamic State. 

3.  The conviction must be set aside and an order of acquittal entered.

4.  It is therefore not necessary to finally rule on grounds 1 and 1A which complain of misdirections on that element of the offence and the evidence relevant thereto.

Held per Kourakis CJ (Parker J agreeing), granting permission to appeal and dismissing the appeal on grounds 2, 2A and 2B:

1.  If it were necessary to decide, permission to appeal would be granted but the appeal on grounds 2, 2A and 2B dismissed, save with respect to the Judge’s failure to direct the jury’s attention to the paucity of evidence of the appellant’s membership of Islamic State. 

Held per Kelly J (in dissent), granting permission to appeal on grounds 2, 2A and 2B and dismissing the appeal on grounds 1, 1A, 2, 2A, 2B and 3:

1.  The 2014 regulation should be interpreted as specifying the organisation of Islamic State…

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Abdirahman-Khalif v The Queen [2019] SASCFC 133
Case
[2019] SASCFC 133
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for attempting to engage in a terrorist act. The appellant, Ms Abdirahman-Khalif, was found guilty by a jury in the District Court of South Australia. She appealed her conviction to the Full Court of the Supreme Court of South Australia.

The legal issues before the Full Court included whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there had been misdirection or non-direction by the trial judge in relation to the presentation of the defence case. Specifically, the court considered whether the prosecution had adequately proven that the "Islamic State" organisation proscribed by the 2014 Regulation was the same entity as the loose grouping of fighters, wives, and nurses in Iraq and Syria, and whether the summing up had unfairly presented the prosecution's case over the defence's.

The Full Court found that the evidence did not establish that the informal membership of the proscribed Islamic State organisation included wives of fighters or those who nursed them. The court reasoned that while these individuals might be part of a broad class governed by Islamic State, they did not constitute an organisation as defined. Consequently, the conviction could not stand. The court also noted that the trial judge's summing up had unduly emphasised the prosecution's case and failed to adequately present the defence's assertions of innocence, thereby creating an unbalanced presentation to the jury.

The conviction was set aside, and an order of acquittal was entered. It was therefore unnecessary for the court to make a final ruling on all grounds of appeal concerning misdirection and the evidence relevant to the nature of the proscribed organisation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient to start with an overview of the prosecution case. For that purpose, I reproduce the summary of its case and trial evidence, given in its written submissions on appeal, the accuracy of which is accepted by the appellant.Summary of the Prosecution Case and Trial Evidence13.The Appellant was born on 1 January 1995 and was 23 years old at the date of the trial. She was born in the Benadir refugee camp near Mombasa in Kenya to parents of Somali origin. She resided with her mother and brothers in Mansfield Park, having immigrated to Australia as a refugee in 2009. The Appellant identified herself as a Muslim and, in particular, she identified as a Sunni branch of that religion.14.Dr Rodger Shanahan, expert in political Islam and terrorism, provided evidence about matters concerning Islamic State, its development and activities. Relevantly, he stated:a. The organisation Islamic State, in the form that it existed at the time of the offence, formally commenced with a declaration by its leader, Abu Bakr al‑Baghdadi on 29 June 2014;b. There are two branches of Islam: Shia and Sunni. Within the Sunni branch is a radically conservative branch known as the Salafist movement, whose adherents hold that Shia are religious heretics and they must be defeated militarily, politically and ideologically. Islamic State developed as a radical Salafist organisation and its adherents hold those strong military, political and ideological views;c. The initial focus of Islamic State was to establish a presence in the traditional Islamic lands of Iraq and Syria and build a legitimately Islamic society on its own terms. It encouraged Muslims to travel to that territory held by Islamic State, to both defend it, and also to develop and populate the Islamic society;d. Islamic State has a publicly stated aim of global jihad, that is to encourage its supporters to engage in acts of violence in non-traditionally Islamic countries;e. Islamic State employed media platforms, primarily digital, including social media, to export its message and to attract recruits and funds. IS’s media centre, al-Hayat Media Centre, produced high quality propaganda videos, largely for the Western, English speaking market as well as on-line publications, Dabiq and Rumiyah;f. Islamic State uses a musical form of Arabic poetry, known as Nasheeds, to promote their victories and motivate Muslims to take up the fight;g. Islamic State and its followers use encrypted messaging applications, such as Telegram, to communicate with its followers and to distribute information to them, to ensure information security;h. Islamic State encouraged not just fighters to travel to Islamic State, but also women who were obviously needed to be part of the Islamic Society that Islamic State was seeking to build. Women were used as active on-line recruiters to persuade other women to join the organisation in conflict areas;i. In 2016, the main infiltration route for westerners wishing to travel to Islamic State was via Turkey. Turkey shares a long and porous border with Syria, and in 2016, a considerable part of northern Syria adjacent to the border was in Islamic State hands. Westerners would fly into Istanbul and then travel to the Southern border area between Syria and Turkey and enter areas controlled by Islamic State via established routes coordinated by people within Islamic State territory or associated with Islamic State.15.On 13 July 2016, the Appellant purchased a one-way ticket to Istanbul on Singapore Airlines on-line. On 14 July 2016, without telling her mother and brothers, with only carry-on luggage and very little funds (insufficient to enable her to get back home) she attended the airport. On her outgoing passenger card, she indicated that she was travelling to Turkey for seven days, the main reason for her overseas travel being a holiday.16.Prior to boarding her flight, the Appellant was detained by immigration officials and, subsequently, AFP officers. Police seized her Samsung S6 mobile phone.17.In a recorded interview she told officers she was travelling to Istanbul for a holiday and to find out if there were any aid organisations she could work with. She was released, without charge, on the morning of 15 July 2016.18.Analysis of the contents of her mobile phone revealed that the Telegram application had previously been installed on the device. Although the application had been deleted from the Appellant’s phone, the directory remained and contained approximately 127 videos, hundreds of images of Islamic State propaganda and extremist material and Nasheed audio files.19.In addition to the extremist content, a short video stored within the Telegram application on 2 May 2016, depicted the Appellant on the front porch of her home wearing a black Niqab and brown jilbab. The background audio to the film was a Nasheed titled ‘Walked alone in the Dark’. The lyrics of the Nasheed refer to hijrah and the lyrics heard to play during the short video were: ‘The thoughts went around inside him, how are you going to forget your parents. How are you going to leave them dismayed and filial devotion is your duty’20.An image stored within the Telegram application a few days later, on 6 May 2016, depicted the Appellant’s bedroom and a female (the Appellant) in Islamic dress with a right raised index finger toward the ceiling. The pose is a symbol used by Islamic State jihadists, and through its wide adoption by them on the internet has become particularly associated with Islamic State.21.[redacted] established that the Appellant had been communicating with three women in Kenya: Maimuna Hussein (‘M Hussein’), Ramla Hussein (‘R Hussein’) and Tasnim Farah (‘Farah’). Those three women shared similar radically conservative ideas about Islam to those held by the Appellant and went on to commit an attack at a police station in Mombasa, Kenya, on 11 September 2016, in the name of Islamic State.22.The [redacted] that the four women were involved in a number of chat groups within the Telegram application named ‘Baaqiya sisters’ and ‘Naughty sisters’ and used the application to exchange Islamic State propaganda videos. The Appellant also communicated with members of the group [redacted].23.[redacted]. Within 20 minutes of her mobile phone being returned to her on 18 July 2016, the Appellant made contact with M Hussein and told her that she was at her house and not to contact her. Analysis of the Appellant’s phone revealed that, between 15 and 17 July 2016 (during the period of time the Appellant would have been travelling to Turkey), M Hussein had sent the Appellant a message of a cartoon of a crying child’s face and messages saying ‘I miss you’.24.On 11 September 2016, M Hussein, R Hussein and Farah were killed in the process of committing a terrorist attack on the Mombasa Police Station in Kenya. During the course of the attack they were heard to yell phrases consistent with their motivation being to carry out an Islamic State attack.25.A few days later a handwritten note appeared on Twitter asserting the attack was carried out in the name of Islamic State. Analysis of the handwriting concluded it was written by M Hussein. Islamic State claimed responsibility for the attack in their on-line publication Rumiyah.26.In the days following the attack, the Appellant accessed an on-line copy of the ‘widhwidh’ news, an on-line Somalian news service, and listened to a report relating to the Mombasa attack.27.On 22 September 2016, a search warrant was executed at the Appellant’s home and a number of relevant items were located in her bedroom. Her Samsung S6 mobile phone and MacBook computer were seized and later analysed by the AFP.28.Analysis revealed that, since the previous analysis of the phone (as copied in July 2016), further Islamic State material and extremist propaganda had been downloaded to the phone via the Telegram application and were stored within the Telegram directory.29.Analysis of the Appellant’s MacBook computer revealed a 2015 iPhone Back-Up which, in turn, revealed that the device had been used to access a series of blogs between 21 and 27 July 2015 on Tumblr, a social media application that enables users to publish and access ‘micro-blogs’ (short articles) on its platform, relating to Islamic State, hijrah and practical advice for women travelling to Islamic State controlled territory.(Footnotes omitted)

Decision

Reasons for decision

The Judge, in those paragraphs, directed the jury that the terrorist organisation, which the respondent alleged the appellant had taken steps to join, was the same organisation, the Islamic State, proscribed by the 2014 Regulation. It was therefore necessary in order to prove the appellant’s guilt for the evidence to show that the loose grouping of fighters, wives and nurses in Iraq and Syria was the organisation proscribed by the 2014 Regulation. It also follows from that direction that it is not open to the prosecution on the appeal to support the conviction based on another, broader, organisation which is not the Islamic State organisation proscribed by the 2014 Regulation.Conclusion on the first ground For the reasons explained in [68] above, the evidence did not prove that the informal membership of Islamic State, the organisation proscribed by the 2014 Regulation, included the wives of its fighters or the persons who nursed them. In so far as those wives and nurses were members of a broad class of the population governed by Islamic State who supports its rule, they were not an organisation as defined. In any event the prosecution relied on the appellant’s membership of Islamic State itself. The conviction must be set aside and an order of acquittal entered. It is therefore not necessary to finally rule on grounds 1 and 1A which complain of misdirections on that element of the offence and the evidence relevant thereto.The second ground – complaints about the summing up Leaving aside complaints about the failure of the Judge to direct attention to the questions of the structure of Islamic State, and the nature of participation or association with it which was sufficient to constitute a person a member or an informal member, the complaint that the summing up was unbalanced or did not fairly put the defence case is particularised as follows: (A)Failing to draw attention to the evidential use of the appellant’s assertions of innocence in the interviews that were put into evidence in the prosecution case but instead emphasising those statements which the prosecution contended were lies.(B)Framing the question for the jury as whether the appellant’s intention on 14 July 2016 was completely innocent on the one hand or something more sinister instead of directing the jury that it was a matter for them whether they accepted either alternative and that the jury must acquit the appellant if it did not accept the prosecution case.(C)Unfairly promoting the strength of the prosecution case by commenting ‘my goodness, it has put a lot of evidence before you’ and by undermining a defence submission by suggesting that it could not have been put seriously.(D)Suggesting that the jury should expect the defence to positively identify and establish any innocent hypothesis.(E)Suggesting that there was a legislative imperative that required preparatory acts to constitute criminal acts.(F)Warning the jury against overestimating the degree to which police may be able to recover evidence for electronic communications.(G)Undue emphasis of prosecution strengths.A - Exculpatory statements

Ratio Decidendi

Legal Principle Established

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