Abdirahman-Khalif v The Queen
[2019] SASCFC 133
•31 October 2019
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 in a manner sufficiently broad so as to capture the entirety of the organisation’s operation, recruitment, membership and engagements, in the doing of, or advocating for the doing of, terrorist acts (at [187]).
2. The intention of the appellant at the time of the conduct proved against her is relevant to proof of whether the conduct amounted to the taking of steps to become a member within the extended definition in s 102.1(1) (at [209]).
3. The evidence led at trial was capable of proving the appellant’s guilt of the offence charged. The Judge’s directions as to the legal elements of the offence and as to the approach the jury could take to the evidence were correct (at [224]).
4. The whole of the evidence pointed overwhelmingly to the appellant’s guilt of the charge. It was open to the jury to convict the appellant (at [236]).
Criminal Code Act 1995 ss 100.1, 102.1, 102.2, 102.3, 102.4, 102.8; Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 ; Corporations Act 2001 (Cth) s 9; Explanatory Memorandum to the Security Legislation Amendment (Terrorism) Bill 2002 (Cth) , referred to.
Benbrika v The Queen (2010) 29 VR 593; M v The Queen (1994) 181 CLR 487, applied.
R v Lelikan (No 5) [2019] NSWSC 494; Lodhi v The Queen (2006) 199 FLR 303; The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; Director of Public Prosecutions v Stonehouse [1978] AC 55, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"terrorist organisation", "organisation", "member", "steps to become a member"
ABDIRAHMAN-KHALIF v THE QUEEN
[2019] SASCFC 133Court of Criminal Appeal: Kourakis CJ, Kelly and Parker JJ
KOURAKIS CJ: This is an appeal against the conviction on 17 September 2018 of the appellant on an information charging that between 14 July 2016 and 23 May 2017 she was intentionally a member of a terrorist organisation, namely Islamic State, contrary to s 102.3(1) of the schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code).
Section 102.3(1) provides:
102.3Membership of a terrorist organisation
(1)A person commits an offence if:
(a) the person intentionally is a member of an organisation; and
(b) the organisation is a terrorist organisation; and
(c) the person knows the organisation is a terrorist organisation.
Penalty: Imprisonment for 10 years.
Section 102.3(1) is one of a number of terrorism related offences enacted by Part 5.3 of the Criminal Code. Section 100.1 defines ‘organisation’ to include ‘a body corporate or an unincorporated body’. Section 102.1 of the Criminal Code defines a ‘member’ to include a person who is an informal member of the organisation, or takes a step to become a member, and a ‘terrorist organisation’ as one which engages in a terrorist act.
The appellant appeals against her conviction 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. (Grounds 1, 1A and 3.)
(2)The summing up was unbalanced and failed to present the defence case. (Grounds 2, 2A and 2B.)
The appellant was detained at the Adelaide Airport on 14 July 2016 en route to Turkey. Her mobile phone was seized but she was released without charge on the following morning. An analysis of the contents of her phone showed that it contained hundreds of images of Islamic State propaganda and extremist material. It also showed a video clip of the appellant with a nasheed that was a religious verse associated with the Salafist views of Islamic State playing in the background. Another image showed her using a symbolic hand gesture commonly used by Islamic State jihadists.
In the period after her release, and the return to her of her mobile phone, the appellant communicated with young women in Mombasa, Kenya, who subsequently bombed the Mombasa police station on 11 September 2016. The appellant’s phone was again seized and additional Islamic State material was found on it. So too with her MacBook computer. In particular, it contained records of on-line discussion with others about travel to Islamic State controlled regions for the purposes of working as a paramedic or marrying an Islamic State fighter. The appellant had continued to access lectures and sermons relating to extremist Islamic teaching, but had also deleted references to extremist material from her Facebook pages and search history in her web browser.
On 2 October 2016, a listening device placed in the appellant’s bedroom captured her reciting a pledge of allegiance to the leader of Islamic State, Abu Bakr al‑Baghdadi. In November 2016, the appellant was heard to sing a nasheed commonly sung by followers of Islamic State.
The totality of the evidence which I set out in greater detail below, and which was not contradicted at trial, was capable of supporting an inference that the appellant was a supporter of Islamic State, its extremist ideology and its terrorist activities. It also supported the inference that she intended to travel to Turkey to make contact with members or supporters of Islamic State in Turkey, with the intention of travelling into the areas of Syria, Iraq and Turkey controlled by it for the purposes of either providing medical assistance to fighters and others or to marry an Islamic State fighter.
Even though the prosecution adduced evidence from Dr Shanahan, an expert on Middle Eastern extremist Islamic groups about the ideology, aims and territory controlled by Islamic State, it adduced no evidence about Islamic State’s organisational structure, and no evidence about its membership, other than to identify several of its leaders and commanders. No evidence was adduced about how members, other than fighters, participated in the organisation. No evidence was adduced on how members were recruited or selected, or of any process by which they were inducted and finally accepted into its organisation. Other than references to al-Baghdadi’s autocratic rule and to several of his immediate subordinates, there was no evidence about Islamic State’s decision-making processes or command structure.
There was therefore no evidence against which to evaluate any connection between the proved conduct of the appellant, her communications, pledge of allegiance, singing and attempt to travel to Turkey, with formal or informal membership of Islamic State.
The prosecution case proceeded at trial, and on appeal, on the premise that, at least, informal membership of Islamic State might be achieved by swearing allegiance to Islamic State, and otherwise agreeing with the objects, aims, methods of Islamic State whilst living within its territory, and either marrying one of its fighters, and/or providing medical assistance to them and others.
The Judge correctly directed the jury that ‘an amorphous or fluctuating group’ was not an organisation for the purposes of s 102.3 of the Criminal Code, and ‘clear criteria, or method of identification’ of an organisation’s members was required. However, the prosecution failed to proffer any such evidence. There was no evidence that informal membership was accorded by Islamic State in the loose way suggested by the prosecution.
I would also hold that, for the purposes of Part 5.3 of the Criminal Code, the meaning of an organisation does not extend to the population or individuals governed by an organisation, even if they are supporters of its aims and objectives. It follows that the regulations made pursuant to s 102.1 of the Criminal Code cannot proclaim as a terrorist organisation an entire society or a population which is governed by a particular organisation. In any event, even if an organisation might be so widely defined, the regulation proclaiming Islamic State did not purport to do so.[1] On a proper construction of the 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.
[1] Criminal Code (Terrorist Organisation—Islamic State) Regulation 2014 (Cth) (2014 Regulation).
It follows that the appellant’s conviction cannot be supported on the evidence and a verdict of not guilty must be entered.
If it were necessary to decide, I would dismiss the appeal on the second ground, 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. The balance of the Judge’s summing up reflected the forensic contest, in which only the prosecution adduced evidence. The Judge did direct the jury that the appellant’s exculpatory statements to police, denying membership of Islamic State and giving innocent reasons for her travel to Turkey, was evidence on which they could act. The Judge’s comments on the evidence and the respective cases of the prosecution and defence fell within his Honour’s discretion and did not occasion a miscarriage of justice.
I elaborate on my reasons below.
The definitions
Only an organisation can be proclaimed by regulation to be a terrorist organisation. Section 102.1 of the Criminal Code provides:
terrorist organisation means:
(a)an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(b)an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).
Subsections (2), (3) and (4) of s 102.1 provide:
(2)Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the AFP Minister must be satisfied on reasonable grounds that the organisation:
(a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(b) advocates the doing of a terrorist act.
…
(3)Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the third anniversary of the day on which they take effect. To avoid doubt, this subsection does not prevent:
(a) the repeal of those regulations; or
(b) the cessation of effect of those regulations under subsection (4); or
(c) the making of new regulations the same in substance as those regulations (whether the new regulations are made or take effect before or after those regulations cease to have effect because of this subsection).
(4)If:
(a) an organisation is specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section; and
(b) the AFP Minister ceases to be satisfied of either of the following (as the case requires):
(i)that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act;
(ii)that the organisation advocates the doing of a terrorist act;
the AFP Minister must, by written notice published in the Gazette, make a declaration to the effect that the AFP Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.
The first limb of the definition of organisation, a body corporate, is not applicable in this case, but it is important to observe that a body corporate is a legal construct and includes legal entities constituted under the laws of Australia or a foreign jurisdiction.
There may be a single member or many members of a body corporate. Importantly, the definition of a member of a body corporate, in s 102.1 of the Criminal Code, includes a director or officer of a body corporate, but not a shareholder or other member even though shareholders, in general or special meetings, exercise important powers in the governance of a corporation. Under the Corporations Act 2001 (Cth) an ‘officer of a corporation’ includes a director or secretary and also a person who makes or participates in making decisions that affect the whole or a substantial part of the business of the corporation.[2] I earlier referred to the definition of a member of an unincorporated organisation, which includes an informal member, and a person who takes a step to become a member. The definition of membership observes a distinction between the organisation’s members, formal or informal, and the organisation’s supporters. A failure to observe that distinction would lead to an inexplicable gulf between the narrowly defined membership of incorporated terrorist organisations and those which are unincorporated.
[2] Corporations Act 2001 (Cth) s 9.
The extension of the definition of a member to include a person who takes a step to be a member also calls attention to the substance of a person’s participation. For example, a request or application to join an organisation will constitute membership even if it has not formally been accepted. Importantly, the very notion of a step implies a membership process. That process can only be determined by the organisation – not by its prospective members. If every prospective member were free to design his or her own path to membership, whatever it is that he or she ultimately joins can hardly be described as an organisation, or at least will not be an organisation for the purposes of Part 5.3 of the Criminal Code. To put it another way, an organisation cannot be constituted by an otherwise disorganised group of people who share an intention or wish to be a member of it.
The idea of a step towards becoming a member also serves to distinguish a mere supporter from someone who has taken some or all of the steps necessary to become a member or informal member. Whether or not a person has embarked on a process towards membership cannot be decided in a vacuum. Something must be known about the organisation’s rules, formal or informal, or at least its common practices.
A nation or its government is not a body corporate. National sovereignty, and its monarchical, republican, parliamentary or ecclesiastical embodiments, is distinctly different from a body corporate. Nations are not body corporates, even though in Australia governing institutions may be constituted as corporations, sole or otherwise, under specific statutes or the Corporations Act 2001 (Cth) or exist as juristic entities.
Nor is a nation, or its population, treated as an unincorporated association under Australian statutes or the common law. An unincorporated body in the context of the general and statutory law of Australia connotes a group of individuals who act collectively in accordance with a body of rules which operate as formal, or informal, constitutions. All of the persons in that group are members of the unincorporated association. If not void for inconsistency with an express statutory provision, or as a matter of public policy, those rules have legal effect by force of a statutory regime, the general law of contract and property and supplementary common law rules calculated to ensure procedural fairness.
The dictionary definitions of the noun ‘organisation’ which are apt in the context of Part 5.3 of the Criminal Code are:[3]
·‘any organised whole’;
·‘a body of persons organised for some end or work’; and
·‘the functionaries of a political party together with the offices, committees, etc., which they hold or of which they are members’.
[3] Macquarie Dictionary (Online, 2019).
The analogy with a political party, lawful or unlawful, is useful in construing both the word ‘organisation’ and the extended definition of membership under Part 5.3 of the Criminal Code. Much is known of the nature of political parties, both historically and in contemporary national and international politics. Political parties may have centralised or decentralised leadership structures. The style of leadership may be autocratic or democratic. The decision-making processes of political parties will reflect these structural alternatives. Whichever structure is adopted, the ordinary members, or the cadres, of political organisations usually participate in some, even if minor, way in decisions and are always required to follow the commands and decisions of the party. The internal processes of political parties exist, whether or not they are publicised or kept secret. Secrecy over the processes of membership does not mean that the membership structure is a loose one. To the contrary, the same political or organisational reasons which compel secrecy often also demand close control of, and limitations on, membership. The secrecy may pose problems of proof in prosecutions but evidential difficulties cannot control the meaning of the legislature’s choice of words in defining the elements of an offence.
Plainly, in the context of the provisions of Division 102 of Part 5.3 of the Criminal Code, which proscribe activities related to terrorist organisations, an organisation cannot be restricted to those organisations which are amenable to regulation under the statutory and general law of associations. Nonetheless, it is an essential feature of an organisation that it has a structure which both delineates its members, formal or informal, from non-members, and which orders the activities of its members. The ordinary meaning of the word ‘organisation’, its definition in s 100.1 of the Criminal Code and the wider statutory context suggests that an organisation is a group of people who have expressly, or by implication from their conduct, agreed to:
·commit themselves to the pursuit of common purposes and objectives;
·control the membership of their group in order to promote success in achieving their objects;
·devise plans of action to achieve their objects; and
·execute those plans by working together, either collaboratively or under a hierarchical command structure.
The attributes of limited membership and voluntary, but expected, participation by that membership in some way in planning and/or the execution of the furtherance of common objectives distinguishes an organisation from an amorphous body of sympathisers who may, from outside of the organisation, act consistently with its objectives.
That connotation of the word ‘organisation’ is reinforced by the definition of those organisations which are terrorist organisations and which are subject to the provisions of Part 5.3 of the Criminal Code. They are organisations which are engaged in preparing, planning, assisting in or fostering the doing of a terrorist act. To achieve, or to attempt to achieve, those objects, such organisations must have the characteristics identified in the preceding paragraph.
The extrinsic Parliamentary materials do not support any wider construction of those terms. The Explanatory Memorandum to the Security Legislation Amendment (Terrorism) Bill 2002 (Cth) explains the purpose of the definition of organisation as follows:[4]
organisation is defined as a body corporate or an unincorporated body, whether or not it is based in Australia, consists of persons who are not Australian citizens, or is part of a larger organisation. The definition of organisation is relevant to the proscribed organisations offences in Schedule 1 to Security Legislation Amendment (Terrorism) Bill 2002. The definition was included to defeat any argument that a group of persons is not an organisation because it does not have a particular formal attribute or structure.
(Italics added)
The limited purpose of the definition which I have italicised in the last sentence is significant. Its purpose is to preclude technical arguments that an organisation must have particular formal attributes or structures. However, there is no indication of a legislative purpose to strain the meaning of organisation, close to the point of self‑contradiction, by including within it amorphous bodies of people with no, or little, structure.
[4] Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 (Cth) 9.
The purpose of the definition of member was explained as follows:[5]
member of an organisation includes a person who holds informal membership, a person who has taken steps to become a member of the organisation and in the case of an organisation that is a body corporate, a director or officer of the body corporate. This definition is used in proposed paragraph 102.2(1)(b) to describe an affiliation with a group, which may then lead to a group being declared proscribed. This definition ensures that a person cannot evade liability by a technical argument about their lack of formal membership status.
Again, the limited purpose of the extended definition is to ensure that substantial participation in the affairs of an organisation counts as membership despite the absence of the formalities which mark membership in legal and more commonly encountered settings.
[5] Explanatory Memorandum, Security Legislation Amendment (Terrorism) Bill 2002 (Cth) 14.
The Explanatory Memorandum shows that the purpose of the extension of the notion of membership to informal membership is to ensure that the operation of Part 5.3 is not defeated by a technical point as to whether the formalities of membership have been complied with. It also ensures that a terrorist organisation cannot evade the operation of Part 5.3 by artificially defining its membership narrowly in its formal rules.
It follows that membership is to be determined as a matter of substance not form. That question of substance can only be determined by evaluating the extent and nature of the person’s participation in the governance of the organisation and in the execution of its decisions.
The meaning of the words ‘organisation’ and ‘member’ naturally distinguish between a terrorist organisation’s members on the one hand and its supporters within any population it may control or govern on the other. As a matter of political theory self‑governing people are sometimes said to be bound by a social contract, but, used in that sense, the social contract is imputed, and not implied as a fact from the conduct of the members of an organisation. Similarly, even though a society is structured around its productive, economic and social activities, and its members bound by its laws, it does not operate in the same way as an organisation in implementing its objectives. There is no identity between a society and its governmental institutions. Members of a polity may be bound by its laws but still may hold very different opinions about the decisions of their governing institutions, and selectively choose which to actively support. Others, perhaps most, just get on with their own lives. On the other hand, members of an organisation commit themselves to work together to achieve its goals.
A person may support the activities of an organisation, or a governmental institution, but he or she does not become, for that reason alone, a member of the organisation or the institution. Only when a supporter is formally, or practically, accepted as a member and commits to participating in, and executing, its decisions, in accordance with its formal or informal rules, does he or she become a member. For the purposes of s 102.1 of the Criminal Code, a person who takes a step towards that end is also a member, but it must be a step towards membership in that sense.
A person who is a supportive member of the population controlled by a terrorist organisation, or a supporter living elsewhere, does not, by reason of that fact alone, participate, or take a step towards participating, in the organisation, and therefore, in preparing, planning, assisting or fostering a terrorist act. An engineer repairing a bridge, a doctor treating the wounded or ill or a mother looking after her children do not become, by those acts alone, members of the terrorist organisation which governs them. Their conduct, as members of the population controlled by the terrorist organisation, may provide it with a favourable environment in which to operate, but, whether or not they support or oppose its cause, the critical question is whether they are participants in, or have taken a step to participate in, the organisation itself.
The offences enacted by Division 102 of Part 5.3 of the Criminal Code relating to terrorist organisations also provide an important contextual elucidation of the meanings of ‘organisation’ and ‘member’. Section 102.2 creates the offence of directing the activities of a terrorist organisation. In accordance with the definition of a terrorist organisation, the activities must be the preparing, planning, assisting in or fostering the doing of a terrorist act. Section 102.2 would be difficult to apply to an organisation which comprised all of the people living in a terrorist controlled territory, most of whom will be engaged in a wide range of civilian work and activities.
Section 102.4 creates the offence of intentionally recruiting a person to join, or participate in the activities of, a terrorist organisation. Section 102.4 thereby emphasises the distinction between persons who are merely supporters or sympathisers of an organisation and those persons who ‘join … an organisation’. A member or informal member of a terrorist organisation must therefore be a person who joins it. Section 102.4(1)(a) also treats participation in the activities of a terrorist organisation as analogous to joining it. For similar reasons, membership of an organisation must not be determined by the formalities of an application and acceptance, but by asking whether the person has joined the organisation or participated in its work.
Section 102.8 creates the offence of associating with a terrorist organisation. A person commits the offence if her or she ‘intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation’ and that ‘association provides support to the organisation’. Much uncertainty would attend the application of s 102.8 if ‘organisation’ and ‘member’ were defined as widely as the respondent contends. The maximum penalty for that offence is imprisonment for three years. Section 102.8 would not be necessary if any intentional association or affiliation with a terrorist organisation which facilitates its work constitutes informal membership of it.
The Islamic State regulation
The Explanatory Statement to the 2014 Regulation proscribed Islamic State as a terrorist organisation for the purposes of s 102.1(1)(b) of the Criminal Code. The Explanatory Statement notes that the 2014 Regulation ‘reflects a change in the name of the organisation from the Islamic State of Iraq and the Levant to the Islamic State, which was proclaimed by a spokesperson of the organisation on 29 June 2014’.[6]
[6] Explanatory Statement, Criminal Code (Terrorist Organisation—Islamic State)Regulation 2014 (Cth) 2.
The Explanatory Statement explains that the first proscription of Islamic State was in 2005 when it used the name ‘Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn’.[7] The Explanatory Statement also refers to other names including ‘al‑Qa’ida in Iraq and as the Islamic State of Iraq and the Levant (ISIL)’.[8] The Explanatory Statement records that the ‘group’ proclaimed an Islamic caliphate on 29 June 2014 when it changed its name to the Islamic State.[9] Importantly, the Explanatory Statement then continues ‘[t]he use of the name Islamic State in this statement does not represent a change in the leadership, membership or methods of the group that was originally proscribed in 2005, but reflects the expansion of its operating area and its announcement of an Islamic caliphate’.[10] As we shall see, the evidence adduced by the prosecution touched lightly and tangentially on the question of leadership but was silent on the membership of Islamic State.
[7] Explanatory Statement, Criminal Code (Terrorist Organisation—Islamic State)Regulation 2014 (Cth) 7.
[8] Explanatory Statement, Criminal Code (Terrorist Organisation—Islamic State)Regulation 2014 (Cth) 7.
[9] Explanatory Statement, Criminal Code (Terrorist Organisation—Islamic State)Regulation 2014 (Cth) 8.
[10] Explanatory Statement, Criminal Code (Terrorist Organisation—Islamic State)Regulation 2014 (Cth) 8.
The respondent submits that the Explanatory Statement shows that the Executive had regard to the fact that Islamic State’s operations had expanded into Iraq and Syria. That is plainly so. But it is a mistake, and contrary to the very text of the Explanatory Statement, to understand the purpose of the 2014 Regulation to be to include within Islamic State, the organisation, the population it came to control or even those who welcomed its usurpation of governmental authority over them.
To so regard the 2014 Regulation would be inconsistent with the explanation that the use of the name ‘does not represent a change in the leadership, membership or methods of the group’.[11] Plainly, that statement cannot be taken literally. There were, no doubt, many changes in the individual membership of the organisation between 2005 and 2014. The statement must be understood to mean that there was no change in the nature of, or criteria for, membership; its membership must therefore have continued to be based on its structure as a terrorist organisation, and not as a community or society. The prosecution adduced no evidence of the historical nature of, or criteria for, membership, or the organisational structure of Islamic State before it occupied territory in Iraq and Syria. The prosecution case relied on criteria for membership which were based on that occupation, and, therefore, could not have been the membership structure the Executive had in mind when making the 2014 Regulation.
[11] Explanatory Statement, Criminal Code (Terrorist Organisation—Islamic State)Regulation 2014 (Cth) 8.
The Explanatory Statement, and the respondent’s submission, exposes why it is problematic to apply Part 5.3 of the Criminal Code to the population of territory controlled by Islamic State. Part 5.3 proscribes terrorist organisations. However, in order to take territory, Islamic State progressed from engaging in terrorist acts to leading an insurgency, and after successfully taking territory it transformed into the de facto, but illegal, government of its self-proclaimed caliphate.
The prosecution case and evidence
As we shall see, the prosecution opening, the evidence and the Judge’s directions conflated Islamic State, the organisation, with either the population it controlled in Syria and Iraq, or its supporters and sympathisers, wherever they lived.
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 Evidence
13.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)
I interpolate here that the material included discussion of the living arrangements for unmarried women, the process for becoming married, and the difficulties occasioned by following a husband on his work or fighting assignments. The material also discussed studying for, or working as, a health professional. The summary continues:
30.[redacted].
31.[redacted] showed the Appellant accessing lectures and sermons relating to extremist Islamic teachings, deleting references to extremist material from her Facebook pages and the search history in her web browser.
32.From 22 September 2016 onwards, a listening device was installed in the Appellant’s bedroom. The device captured the Appellant listening to lectures and sermons relating to extremist Islamic teachings and Nasheeds (which she was heard to sing along to from time to time) on her MacBook computer. On 13 November 2016, whilst listening to a Nasheed titled ‘Qariban’, the Appellant was heard to repeat the phrase ‘oh the soldier of Islamic State, oh soldier oh soldier, oh soldier of the Caliphate.’
33.In addition, the device captured a number of conversations in which she expressed views consistent with conservative extremist Salafist beliefs and support for the Kenyan girls involved in the Mombasa attack. In particular, that M Hussein was wise and had provided advice to her about ‘hiding the passport somewhere, checking things all the house, she gave me all ideas.’
34.On 2 October 2016, the Appellant was captured listening to a recording of a male swearing a bay’ah (pledge of allegiance) to Abu Bakr al-Baghdadi, the leader of Islamic State, after which a child is heard to repeat the words. The Appellant was then heard to replay the recording and repeat the words of the bay’ah herself.
35.On 12 November 2016, the Appellant was recorded listening to a male voice in a monologue reciting a bay’ah to Abu Bakr al-Baghdadi. The Appellant was heard to repeat the words ‘Allah Akbar’ and listen to the recording again.
36.On 8 February 2017, Abdirahman-Khalif participated in a recorded interview with the AFP in which she denied being a member of Islamic State.
37.On 18 February 2017, [redacted]. In the course of the conversation the Appellant referred to herself as a ‘muwahiden’, a term used by Islamic State to refer to themselves and their supporters.
38.On 23 May 2017, the Appellant was arrested and charged by the AFP.
(Footnotes omitted)
It is necessary to supplement those agreed facts with further references, to both the prosecution opening and the evidence, to understand how the prosecution case on the identity and membership of Islamic State was put at trial.
I observe at the outset that the prosecution case was that the appellant was a member because she had taken steps to become a member. It was not that she had become a formal or informal member whilst residing in Australia.
The prosecutor commenced by reading the charge to the jury and then explained that an organisation was a group of people who have joined together and share similar goals, ideals and aims. The prosecutor told the jury that there was no dispute that Islamic State was a terrorist organisation, but did not identify its organisational structure or membership. The prosecutor told the jury that the prosecution relied on the extended definition of membership, namely taking steps and informal membership. Indeed, as we shall see, the Judge emphasised that a finding that the appellant intended to travel to Turkey before she was stopped at the airport was critical to her conviction. The corollary of that direction is that her other activities in Australia could not, either alone or taken together, constitute the taking of a step to become a member. The direction therefore focussed the relevant factual enquiry on whether the conduct in which the appellant intended to engage in the Middle East would make her a member or informal member of Islamic State.
Consistently with that case, the prosecutor in his opening alleged that it was the appellant’s intention to travel to Turkey ‘so that she could make contact with followers of Islamic State and, in all likelihood, enter the territory then held by that terrorist organisation, Islamic State, in Syria and Iraq.’ He alleged that her intention was to ‘live in territory held by Islamic State as a member of that society and as a follower of the leader of that organisation … Abu Bakr al-Baghdadi’.
The prosecutor outlined the territorial expansion of Islamic State in Syria and Iraq, and then explained that:
In addition to the territorial aims that it had in that Middle Eastern area, it had other goals and that was to expand the Islamic State, if you like, to all parts of the world, to encourage its supporters to engage in acts of violence in non‑traditional Islamic countries such as Australia, and this is a concept known as global jihad. … You will hear evidence that there have been a number of attacks that have occurred throughout the world in countries such as the United States, Canada, the UK, Australia, France and Belgium, Germany and Sweden and IS has claimed responsibility for such terrorist acts. IS has also claimed responsibility for terrorist activities on the African continent, including in countries being Somalia and Kenya.
Those opening statements differentiate between the population which resided within the territory held by Islamic State, and Islamic State, the organisation, which both controls that territory and encourages conduct and terrorist acts in places outside its territory.
The prosecutor again drew that distinction when he reiterated that Islamic State’s goal:
… was to establish a functioning Islamic society operating under the principles of Sharia law, so a strict version of an Islamic society, and in order to do that, it needed to raise money, it needed to gain ground, if you like, to take territory, and that it did. It also needed to encourage idealistic Muslims to travel to the land held by it to fight and defend and to expand the state and to develop that society by, in effect, populating that society.
The prosecutor later referred to the pledge of allegiance to al-Baghdadi given by ‘supporters of Islamic State’ and the encouragement given to those supporters to travel to territory held by Islamic State or to carry out attacks on Westerners in their own country. Yet again, the prosecutor’s opening distinguished between Islamic State the organisation, and its overseas supporters. The prosecutor also acknowledged that the pledge of allegiance might be taken by persons who were no more than ‘supporters’ of the organisation.
The foundation of the prosecution case was laid out in the opening, when the prosecutor told the jury that it could infer that the appellant was taking steps to become a member from the following:
1Attempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with a terrorist organisation, Islamic State;
2Possessing and accessing material promoting Islamic State and violent jihad;
3Communicating with members of Islamic State;
4Pledging an oath of allegiance (bay’ah) to the leader of Islamic State, Abu Bakr al-Baghdadi;
5Expressing support for Islamic State and violent jihad including by recitation of Islamic State and extremist nasheeds;[12] and
6Self-identification as ‘muwahideen’, a term used as an identifier by Islamic State members.
[12] Dr Shanahan explained that a ‘nasheed’ was a chant which was ‘essentially Arabic poetry’. Islamic State promoted nasheeds which were distinctive or peculiar to it.
The only evidence from which any conclusions could be drawn about the structure of Islamic State, the organisation, and the nature of its membership was that of Dr Shanahan.
Dr Shanahan explained that the Salafist group, within Sunni Islam, represents a literalist and traditionalist view of Sunni Islam. One branch of the Salafists, described by Dr Shanahan as on the left-wing, tends to withdraw from modern society and live traditional lives as close to the life of seventh century Saudi Arabia as possible. On the other hand, the more radical branch of the Salafists, described by Dr Shanahan as existing on the right‑hand‑side of the spectrum, ‘view the world in conflictual terms’. They see the world in terms of ‘Islam and … enemies of Islam’.
Dr Shanahan placed Al-Qaeda and Islamic State on the radical far right of the spectrum of Salafist groups. Dr Shanahan testified that the organisation Al‑Qaeda in Iraq was formed in about 2004, not that long after the United States invasion. I observe that at that time, it was a religious political terrorist organisation, but did not control territory. It will be remembered that the 2014 Regulation itself treated Islamic State as the same organisation once known as Al‑Qaeda in Iraq. That organisation could not include as members, formal or informal, broad sections of the communities who supported its aims because it controlled no territory when it was known by that name. Moreover, it can be inferred that a terrorist organisation operates covertly and through a limited and carefully controlled membership. There was no evidence to contradict that inference which arises naturally from the intended nature, aims and actions of terrorist organisations.
Dr Shanahan testified that the organisation changed its name to ISI, Islamic State in Iraq, in about 2006, but he described them as ‘essentially the same organisation’. They were loyal to the then leader of Al-Qaeda, Osama bin Laden, and were therefore described as a ‘branch’ of Al‑Qaeda by Dr Shanahan.
In 2010, al‑Baghdadi became the leader of Islamic State. In 2011, al‑Baghdadi sent a member of Islamic State, described by Dr Shanahan as one of his ‘lieutenants’, to Syria to capitalise on the uprising with a view to ‘setting up an Al-Qaeda affiliate in Syria’. The reference to al-Baghdadi’s ‘lieutenants’ alludes to an organisational structure at the apex of the Islamic State organisation. It shows that al-Baghdadi was an autocratic leader with subordinates who acted on his behalf on particular assignments or within delegated areas of responsibility. However, no evidence was adduced to elaborate on that apical structure. There was no evidence at all about the structure or members of the organisation which sat beneath al-Baghdadi’s immediate subordinates.
Dr Shanahan gave evidence that in 2013 al-Baghdadi announced a change in the name of ‘the organisation’ to ‘Islamic State in Iraq and Syria, or Iraq and the [Levant]’. He explained that Islamic State did not recognise national borders. It recognised a former Arabic administrative area known as ‘Al Shams’, which had encompassed modern day Syria, Jordan, some of Iraq and southern Turkey, Israel and the Palestinian territories.
When, in 2014, Islamic State took the large city of Mosul in northern Iraq, al‑Baghdadi declared a caliphate, which was simply called Islamic State. He announced himself as the caliph or successor to the prophet Muhammad. As caliph, he embodied both political and religious leadership. The effect of that evidence is that Islamic State the organisation, and the territory it controlled, was governed autocratically. The territories ruled were to be governed by Sharia law which, literally translated, means the ‘path’. Dr Shanahan explained that Islamic State ‘saw themselves as literally building a State … in which Islamic law would prevail’. That evidence of Dr Shanahan also distinguishes between Islamic State, in the sense of the organisation which was building an Islamic State, and the territory and people over which it ruled. Dr Shanahan continued:
… So essentially what Islamic State sought to do was to call Muslims from outside those areas to come to the areas they controlled to build that Islamic State. So they wanted engineers to come, they wanted doctors to come, they wanted fighters to come, they wanted people to come, women to come, everybody to come to build this State.
The call to Muslims described by Dr Shanahan is not a recruitment of members of Islamic State, the organisation, but an invitation to migrants to live, work and fight for its utopian Islamic State.
Dr Shanahan testified that in 2014 a spokesperson for Islamic State, Abu Mohammad al-Adnani, gave a speech in which he urged supporters and followers to strike at the west and kill disbelieving Westerners. Dr Shanahan also gave evidence about a military commander, Abu Omar al-Shishani, who was described as ‘one of the operational commanders for Islamic State’. Dr Shanahan testified that al‑Shishani gave ‘[o]perational guidance, military operational guidance’ to the leadership. The evidence of a spokesperson and a commander implicitly suggests an organisational structure of Islamic State but does not describe it beyond al-Baghdadi’s immediate subordinates.
I interpolate here that an inference might more readily be drawn that Islamic State’s fighters were members or informal members of its organisation. That is because al-Baghdadi’s subordinates were described as military commanders, and because a militia must necessarily be carefully organised and subject to hierarchical control. However, it is mere speculation to draw an inference that the wives of fighters, or those who nursed them, were also members of the Islamic State militia.
Indeed, such evidence as there was speaks to the contrary. Dr Shanahan explained that Islamic State made a call for Western women to find their way to Islamic State territory through online and person-to-person recruitment. Dr Shanahan described the role of women in the communities controlled by Islamic State as follows:
Women were to fulfil several roles. To look after jihadis is very - as I said, Salafists, literalists and traditionalists, so it was a literalist and traditional way of viewing the role of women, it was to provide support to her husband. It was to provide support to the jihadis, it was to produce children and to raise children in the appropriate Islamic way as leader of that household. … if you’re trying to produce the ideal Islamic society, you also want the ideal Islamic woman as well, so somebody who is idealogically attuned to creating the Islamic State.
Dr Shanahan has there described the traditional role of women as homemakers. Dr Shanahan’s testimony was admitted as his expert opinion; it was not merely an assumption. The omission from his evidence of any reference to the organisational involvement of women in Islamic State is telling.
In the absence of evidence specifically addressing the role of women in Islamic State, the organisation, within its territory in Iraq and Syria, it is unsafe to infer that wives and female nurses sufficiently participated in the organisational structure of this radically conservative Islamic organisation, so as to be, even informal, members. To be clear, I make no assumption that women are precluded from membership. Nor do I assume that female supporters of Islamic State were precluded from fighting or engaging in terrorist activities. The points I make are twofold. First, Dr Shanahan did not give any evidence that Islamic State viewed the role of women in the Levant as members or fighters for its organisation. The second point I make is that the prosecution case was that the appellant intended to travel to Iraq to be the wife of a fighter or a nurse.
Dr Shanahan was later asked whether there was ‘a means by which this organisation gained the funds to operate and to pay these people’. Dr Shanahan then described Islamic State’s fund-raising activities, including selling oil which it extracted from oil fields in Syria. Dr Shanahan explained that Islamic State used this money to pay ‘wages to the fighters’. Wages were also paid to the widows of fighters.
Dr Shanahan referred to the pledge of allegiance, called ‘bay’ah’ in Arabic. He explained that it was an Arabic tribal tradition to pledge allegiance to the new leader of the tribe. Members of the tribe would pledge allegiance to obey the directions of the leader of that tribe. Dr Shanahan gave as an example the practice in Saudi Arabia of pledging allegiance on the succession to the king. Dr Shanahan explained that Islamic State ask their supporters to give their oath of allegiance to al-Baghdadi.
Dr Shanahan described the oath in this way:
… It’s a personal oath. You don’t – it’s not designed to give allegiance to Islamic State per se, it’s to give it to the leader of Islamic State, that’s the personal aspect of it.
The oath to al-Baghdadi emphasises the autocratic nature of his rule. Dr Shanahan was read the oath made by the appellant and described it as ‘consistent with what I’ve seen in other times’, but said that there was no template for such oaths.
The practice of oath taking so described is not peculiar to membership, formal or informal, of Islamic State, the organisation. On the contrary, according to Dr Shanahan it is societal, tribal or national. Plainly enough, leaving aside the theoretical possibility of purely anarchic societies, it has always been an inherent aspect of human societies that their organisational and institutional structures do not include all members of the society. An oath of allegiance to the Australian Crown is commonly a pre-condition to taking parliamentary, executive or judicial office. It is also given as a public show of loyalty in many other informal settings: schools, clubs and public gatherings. However, in and of itself, it is not a step towards membership of governmental institutions.
Dr Shanahan explained that the Arabic word ‘muwahideen’ meant those who follow the notion of ‘tawheed’. Tawheed is a creed that God takes only one form. Dr Shanahan described tawheed as the antithesis of the Holy Trinity in Christianity, and statues and shrines are eschewed. The term is more frequently used by followers of Islamic State than other Sunnis. A one finger salute often used by supporters of Islamic State symbolises tawheed. A belief or symbolic hand gesture which is not unique to Islamic State, albeit commonly used by its supporters, cannot, of itself, be the taking of a step towards membership.
Dr Shanahan was asked about the expression ‘Baqiyaa Sisters’ which appeared in material found on the appellant’s devices. Dr Shanahan explained:
There has been media reports that western women who had travelled to Islamic State territory referred to themselves collectively as the Baqiyaa Sisterhood, so the use of Baqiyaa and sisters I would take to mean - sisters or sisterhood I would take to mean a kind of collective noun for women who are supporters or members of Islamic State.
(Emphasis added)
Dr Shanahan was never asked to explain whether, by that answer, he meant to draw a distinction between supporters and members of Islamic State, the organisation, or whether he meant that all supporters were members. If the former, the prosecution led no evidence from which the jury could distinguish supporters from members, formal or informal, of Islamic State, and in particular from which the jury could find that the appellant was one or the other. If the latter, the prosecution must necessarily fail, because, if that were the case, Islamic State could be no more than an amorphous group of people.
The prosecutor told the jury in closing that the existence of a terrorist organisation known as Islamic State was not in dispute, and the prosecutor referred them to the agreed facts and the 2014 Regulation.
In his address on the element of membership, the prosecutor informed the jury of the legislative policy which motivated the enactment of the extended definition, describing the extensions as ‘necessary’ because of the threats posed by terrorists. Plainly it is not the function of the jury to determine questions of statutory construction. Their function in this case was to determine whether the evidence proved facts that constitute a step towards, or informal, membership. It was for the Judge to assist the jury in explaining those words if it were necessary and to draw the jury’s attention to the evidence which bore on that element. It is difficult to see the utility of explaining to the jury the legislative policy behind the enactment of the offence. On the other hand, it is not difficult to appreciate the risks to a fair trial of an individual defendant by emphasising the threat posed by terrorists generally.
In his closing address, the prosecutor, consistently with the inevitable consequence of the way in which the prosecution case was put and the evidence adduced from Dr Shanahan, equated membership of Islamic State, the organisation, with supporting its aims whilst living in the territories it controlled:
So if a person knows of, agrees with and embraces the ideology and aims of the organisation and with intention, for example, puts into place steps to head off to Syria and Iraq or undertakes a pledge to participate in the advancement by offering obedience to the directives of the leaders, the Crown says that that person is taking steps to become a member of the organisation.
…
I’m going to paraphrase but effectively what the Crown says the effect of the evidence of Dr Shanahan is that the goals - the initial, the primary aim of Islamic State was literally to build a State operating on the basis of Shariah law to gain, to hold and expand physical territory in the area of the Middle East, in particular parts of Syria and Iraq and also some surrounding areas through allegiances that it makes or receives from other organisations but primarily to take an area of land, a patch of dirt in the Middle East and say ‘This is our State. It’s going to operate in the way in which we want it to operate and it’s going to remain and expand’ and you’ll recall the motto I think Dr Shanahan used, the IS motto was ‘baqiya wa tatamadad’, remaining and expanding.
In order to establish that State on the ground in the Middle East the leadership of Islamic State required people, it required members and obviously it required fighters, people who would come to Islamic State and fight to gain territory, fight to hold territory and it also needed other people to come. I think Dr Shanahan mentioned engineers, doctors and nurses but it also needs women and women obviously are required. If you’re going to develop a State you need women to, according to the notions of this organisation, you need women to participate in this State, whether as wives of fighters, nurses or whatever. They need the participation of female members of Islamic State.
The prosecutor then put the following submissions as to the facts on which the prosecution relied to prove that the appellant fell within the extended definition of membership:
The Crown suggests, in any event, that the distinction between whether a person is a formal member or an informal member is really of no consequence in this case and ultimately I will be indicating to you that the way in which the Crown puts the case here is that the defendant was in fact taking steps to become a member but what I say to you is whether that’s a formal or informal member that she’s taking steps to become is probably not something of any great consequence to you because we are talking about an organisation which, on one view, would not have the sort of formal registration membership card structures, in any event.
In the circumstances of this organisation, the Crown says that a person can be a member without undertaking any formal process, without being on a register, without submitting themself for approval of the membership of the organisation. What the Crown does say, however, is a person can be a member and is a member of IS if that person knows of and agrees with and embraces the ideology and aims of the organisation and participates or takes steps to participate in advancing those aims and ideology and goals for the organisation.
So if a person knows of, agrees with and embraces the ideology and aims of the organisation and with intention, for example, puts into place steps to head off to Syria and Iraq or undertakes a pledge to participate in the advancement by offering obedience to the directives of the leaders, the Crown says that that person is taking steps to become a member of the organisation.
…
So bearing in mind those ideologies, let me give you a couple of examples to assist you when it comes to determining this notion of membership. Let me say this: if a person who wholly embraced the ideology and aims of IS in its development of an Islamic State in the territory it took by force and violence in Syria and Iraq actively participated in achieving those aims by going to Syria, Iraq, to assist in holding or expanding the territory by being a fighter, that person would be a member. Likewise if a woman, who agreed with and embraced the ideology and goals of IS and the creation of the Islamic State and was a participant in those goals within the territory taken by Islamic State by, for example, marrying or supporting a fighter, or nursing fighters, or otherwise actively assisting in the creation, functioning and operation of that State, she would likewise be a member of Islamic State for the purposes of the offence that you’re considering. That is what the Crown says.
Now bearing in mind the expanded definition of membership, the Crown says that if a woman took steps to do just that, that is to go to Islamic State-held territory with a view to actively participating in the territorial aims of Islamic State in the way in which I’ve just suggested, if he took steps to do that, well, for the purposes of the charge that you are considering, she would be a member of Islamic State.
Now let me make it quite plain to you: the Crown says that what the defendant was doing in the time leading up to 14 July 2016, what she did on 14 July 2016 was, by attempting to leave Australia and attempting to travel to Turkey, whereby she would there make contact with a member of Islamic State and thereafter enter into Islamic State territory by crossing the boarder [sic], that is what the Crown alleges, it undertakes to prove that and it says to you ultimately you will be satisfied beyond reasonable doubt that that is indeed what she was doing.
(Emphasis added)
The italicised sentences clearly show that the prosecution case was that Islamic State, the organisation, had as its formal or informal members all of:
·the wives of the fighters who fought on its side; and
·the nurses who tended to the fighters
who embraced and supported its ideals.
The organisation so described by the prosecutor is an amorphous body of people. The prosecution case so framed was bound to fail for two reasons. First, the dearth of evidence adduced on this issue was incapable of establishing that all persons with those attributes were, even informal, members of Islamic State. Secondly, and even if all such persons, together presumably with all fighters, engineers, doctors and others who contributed useful skills to the insurgency, were members of some entity, that entity was an unstructured mass of people and not an organisation.
The directions on Islamic State
I next turn to the way in which membership of Islamic State was left to the jury in the Judge’s summing up.
The Judge provided the jury with an aide-mémoire on the elements of the offence. The Judge punctuated his oral directions by asking his Honour’s associate to read out passages from the aide-mémoire, before elaborating on it. On the element of proving the existence of a terrorist organisation, his Honour’s associate read the following:
Element (b) of the offence: ‘the organisation is a terrorist organisation’. The word ‘organisation’ is defined at s. 100.1 of the Code thus: organisation means a body corporate or an unincorporated body whether or not the body (a) is based outside Australia; or (b) consists persons who are not Australian citizens; or (c) is part of a larger organisation.
The essence of an ‘organisation’ or an ‘unincorporated body’ for present purposes may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method of identification of its members.
(Emphasis in aide-mémoire)
The Judge then continued:
Now, ladies and gentlemen, I do not need to add very much to that first page. …
…
The word ‘organisation’, as you see on p. 1 of the memorandum, is defined at s. 100.1 of the code. It means ‘A body corporate or an unincorporated body and whether or not’ and it goes on. Now, you can immediately appreciate we are not talking about a body corporate here, we are not talking about a company, you know, you go down to the company’s office and there it is, search the company’s register. No, we are not talking about that, it is obvious. We are talking about what can be referred to as an unincorporated body. …
As to what an organisation or an unincorporated body might mean, for that matter, a useful way of putting that is as I have in italics there: ‘Some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.’ …
(Emphasis added)
I would, with respect, adopt the Judge’s definition of organisation. However, there was a dearth of evidence of any ‘clear criteria’ by which members of Islamic State, the organisation, could be distinguished from the ‘amorphous’ body of sympathisers who resided in the territories it occupied. The summing up did not apply the evidence to that direction.
His Honour’s associate then read from the aide-mémoire on the terrorist nature of the organisation:
… The term ‘terrorist organisation’ is defined at s. 102.1 of the Code thus: ‘terrorist organisation’ means: (a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).
The term ‘terrorist act’ is defined at s. 100.1 of the Code thus: ‘terrorist act’ means an action or threat of action where: (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of (i) coercing or influencing by intimidation the government of the Commonwealth or a State, Territory or foreign country or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. And note that para. (a) is inapplicable here.
Here the relevant terrorist organisation is ‘Islamic State’ or IS. The defendant admits at paras. 31 and 32 in the first ‘Statement of Agreed Facts’ (Exhibit P16) that Islamic State is (and was at the relevant time) a ‘terrorist organisation’.
Further, the Australian government (pursuant to [s 102.1(1)(b) of the Criminal Code]) specified Islamic State to be a terrorist organisation in Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014.
The Judge then gave the following directions related to that part of the aide‑mémoire:
Now, you can see what I mean by cascading definitions, ladies and gentlemen: you go from the first one on the first page, you then go to the definition of terrorist organisation, in para. (a) of that on the second page obviously you have got assisting in or the doing of a terrorist act so you cascade down to the definition of terrorist act and so you go.
Now, why you do not have to be too fussed about all of this is that you do have the admission by the defendant in this particular case that Islamic State was at all relevant times a terrorist organisation and, indeed, the Australian Government have so declared it to be as from 2014.
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
The Judge directed the jury about the evidential use of the appellant’s exculpatory statements as follows:
The second of the three matters that I want to direct you about in terms of police interviews and conversations is this: that when the prosecution leads evidence of what an accused said to police or other persons, the whole of what the accused said on a topic becomes part of the evidence for and against the accused. In other words you do not just take into account admissions which might be used against the defendant in the interview; you take into account all that she said in the interview. That includes what you have heard described as exculpatory statements ‘I did not do it’ the opposite of an admission, if you will. Exculpatory statements ‘I was not there, I was elsewhere’, what have you. So you look at the whole of the interview and use it both for and against the accused as you see it.
However I do add this, ladies and gentlemen: statements made by a person in a police interview are not made on oath and are not subject to the cross‑examination that occurs when a witness gives evidence in court and is cross‑examined by opposing counsel. When you simply have exculpatory statements by a defendant during the course of an interview, you do not have the opportunity really to assess what her reaction is to close questioning regarding such things, for example as would occur if she said that statement in the witness box. Therefore, ladies and gentlemen, it is very much a matter for you as to what weight you choose to give to exculpatory statements made in police interviews. Take it all into account; you take it all into account for and against the accused but as to what weight you are prepared to give to exculpatory statements in a police interview, that is a matter for you.
The third matter on which I direct you in terms of interviews with the police is that in this case, as you heard from Mr Winneke, the prosecution positively contend that not only should you find the various exculpatory statements made by the defendant to the police to have very little weight for the various reasons he put to you but, he says, you should positively find that the defendant was, on a number of occasions, being far from frank and, on other occasions, positively lying. There is not much point in mincing words about that. Clearly that is the prosecution case; that is what is before you to consider.
I mean the prosecution case in regard to this is no more than if you find the defendant to have been lying to the police on some specific serious matters that, says the prosecution, should adversely affect the credibility of the defendant concerning the other things that she said to the police in the course of that interview, or indeed other interviews. In other words, a finding by you that the defendant was positively lying can be used to affect the credibility of her statements to the police and what weight you are prepared to place on them.
So of course the prosecution submit that you should disbelieve the various protestations of innocence made by the accused. Of course the other side of the coin is Mr Boucaut says that you should accept those statements and he made various submissions as to why you should during the course of his address to you yesterday.
They are the two sides of the coin; and how you approach it, I hope that I have delineated for you, and the rest, as I say, is over to you in that regard.
The Judge directed the jury that they could use the whole of the interview ‘both for and against’ the appellant. There was therefore no error of law. No further direction was required in this case. The Judge properly explained to the jury that the weight of the appellant’s exculpatory statements had to be assessed differently to evidence which was subject to cross-examination. Moreover, reminding the jury of the prosecution case that the exculpatory statements were false was necessary to ensure balance.
B – Choice reasoning
The direction impugned by ground 2 is:
Then the last heading on p.6 of the memorandum ‘Conduct between 14 July 2016 and 23 May 2017 is relevant evidence’ once again, ladies and gentlemen, it is a question of looking at the same evidence but in a different way and it is here for you to consider whether or not conduct by the defendant between 14 July 2016 and 23 May 2017 sheds light on the question of what was the intention of the defendant when she attempted to fly to Turkey on 14 July 2016?
We will come to that again in more detail again on Monday but here, basically, the prosecution are saying if you are looking at two rival submissions as to what her intention was on 14 July 2016 - was it a completely innocent, very short notice holiday or was it something much more sinister? - to tackle that question, look at everything that led up to it and see if that helps you. Not only that, look at everything that went after, see if that helps you. Because sometimes, when you are trying to work out what did happen on an occasion, what later happens sometimes gives you real clues, indeed sometimes real help, as to really what was happening at that earlier time.
Indeed one direct type of evidence might be what did she say at any time after 14 July about what her intention had been on that day? Of course we have got various types of material relating to which she said various things in various contexts and I will give you a bit of a breakdown about that later this morning.
But not just what she said, of course, what she did. Did she - and on the prosecution case it would be said to you that she did - did she, despite being detained at the airport on 14 July 2016, and despite certain things obviously being brought to her attention in relation to Islamic State and so forth, how did she subsequently behave?
The prosecution made various submissions as to not only how she subsequently behaved, but the things that they say in fact establish positive steps taken after that time to become a member of IS. The prosecution would have you therefore just consider what happened on 14 July in relation to what appears to be a real continuing pattern here which started well before 14 July, they say, continued through 14 July and right up to or about 23 May 2017. So that would be the prosecution case on that.
The defence case would be quite different and you have heard what Mr Boucaut says. I am not going to try to replicate it today but I will give you directions on both addresses on Monday.
As other intermediate courts of appeal have observed, in enacting Division 102 of the Criminal Code, Parliament has made a legislative choice to criminalise certain forms of preparatory conduct in order to deal with the unique challenges posed by terrorism. The courts must respect that legislative policy.[24]
[24] Lodhi v The Queen (2006) 199 FLR 303, 318 [66] (Spigelman CJ).
The court in Benbrika, in the context of discussing the meaning of “organisation”, observed:[25]
[94]Axiomatically, the context within which a particular word in a statute must be understood includes not just the surrounding words, or the surrounding provisions, or even the Act as a whole. It also includes the historical circumstances that existed at the time of its enactment, and which might be thought to explain why the provision was introduced. Moreover, the court is required by s 15AA of the Acts Interpretation Act 1901 (Cth) to adopt a purposive construction.
[25] Benbrika v The Queen (2010) 29 VR 593, 623 [94].
In my view, those observations are equally apt when construing the extended definition of a member in s 102.1(1).
I do not consider that the term “member” used in s 102.1 and s 102.3(1) should be given any technical or legal meaning.
A terrorist organisation such as Islamic State, given its very nature, is unlikely to have a membership process capable of objective verification.
Accordingly, in my view, the proper construction of the definition of “member” in s 102.1(1) leads to the conclusion that there is no absolute means by which the status of membership of Islamic State may be proven.
As the trial Judge directed the jury, whether or not the conduct of the appellant amounted to taking steps to becoming a member was ultimately a question of fact to be decided by the jury after undertaking its own evaluative exercise.
In my view, the Judge was therefore right when directing the jury on the matters to be taken into account when determining whether the appellant had taken steps to become a member, to adopt the reasoning of the Court in Benbrika as to the expansive meaning to be afforded to the expression “terrorist organisation”.
It is notable that, before directing the jury, the Judge handed out an aide memoire to counsel and sought submissions on the directions which were ultimately given. Senior Counsel then acting for the appellant made no complaints as to the proposed directions. The first complaint about the directions was made on this appeal.
What the prosecution needed to prove
The starting point for this discussion is found in Part 2.2 of the Criminal Code:
Part 2.2—The elements of an offence
Division 3—General
3.1 Elements
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.
3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a)the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b)in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
…
Division 4—Physical elements
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
…
Division 5—Fault elements
5.1 Fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
The prosecution needed to prove both the physical and the fault element of the offence in s 102.3. The physical element of the offence is the taking of steps to become a member. The fault element is the intention to engage in that conduct, in other words, the intention to take steps to become a member, knowing that the organisation is a terrorist organisation.
The elements of the offence are not to be confused with the evidence which is led to prove those elements.
The fault element of intention applies to the extended definition of “member” in s 102.1(b), meaning that the prosecution needed to prove the appellant intended to take steps to become a member of Islamic State, while knowing that Islamic State was a terrorist organisation. There is no reason why, in determining whether the physical element of the offence is proved, the jury cannot have regard to the appellant’s state of mind.
That is because the purpose for which the person engaged in the conduct is relevant in determining whether the relevant conduct proved against the appellant is sufficient to prove the physical element, that is, the taking of steps to become a member. The intention of the appellant at the time of the conduct proved against her is therefore relevant to proof of whether the conduct amounted to the taking of steps to become a member within the extended definition in s 102.1(1).
In other words, the appellant’s state of mind is relevant to proof of both the physical and fault elements.
The offence in s 102.3(1) has the same rationale as other preparatory terrorist offences prescribed in the legislation which also criminalise preparatory acts, namely the commission of terrorist acts.
Thus, it does not matter if the appellant would have succeeded in becoming a member. The prosecution does not have to prove that the steps she took to become a member were apt to achieve that end or that the organisation would necessarily have accepted her.
It does not matter that there may well be, and undoubtedly is, a fluctuating group of individuals at any time on the planet who may be sympathisers, associates, fighters, members, or somewhere else on the continuum who engage with Islamic State.
As I remarked earlier, much of the argument on appeal focussed on that theoretical proposition, namely, whether wives or nurses or residents of territory occupied by Islamic State, would or would not be members of the organisation known as Islamic State.
To my mind, that argument distracted from the critical issue on this appeal, which is whether this appellant, by engaging in the conduct proved against her, committed the offence against s 102.3. In order to prove both the physical and the fault element of that offence it was necessary that the prosecution prove that the intent of the appellant at the time when she booked the flight to Turkey, was to pursue membership of Islamic State. The critical issue that needed to be decided was this: what was her intention when she booked her one-way flight to Turkey, went down to the Adelaide Airport and attempted to board that plane with nothing but her carry-on bag and insufficient funds to get back to Australia? And in deciding that critical point, in determining her intent on that day, the jury was entitled to look at all of the evidence they had before them: the content found on her phone and MacBook, the Telegram, Viber and WhatsApp messages, the numerous extremist Islamic State videos and photographs, the recordings of her playing and singing Nasheeds, the photograph of her performing a salute particularly associated with Islamic State, her ongoing contact with and support of the three women who carried out the attempted terrorist attack in Mombasa, the recording of her reciting a bay’ah, [redacted] she had accessed lectures and sermons relating to extremist Islamic teachings and so on. The jury was entitled to bring all that evidence to bear when considering what her intention was in trying to board that flight on that day.
The Judge was right to direct the jury that they could only find that the defendant took steps to become a member of Islamic State if they were satisfied beyond reasonable doubt that she intended to travel to Turkey in order to engage with what she knew to be the terrorist organisation Islamic State. That was all that was required as far as the fault element was concerned. Proof of that intention could then be used by the jury in determining the physical element, that is, whether the conduct amounted to having taken steps to become a member.
Without proof that the appellant possessed the necessary intent at the time she travelled to Turkey, she might well have been just another member of that fluctuating group of individuals somewhere on the continuum, insufficient to render her a member.
As an aside, the fact that Islamic State treats its female supporters in a certain way, or expects women to behave in a certain way, and the fact that Sunni tradition may stipulate that there is a certain role for women in Sunni culture, that is, that women support their husbands and look after children, is completely irrelevant to the crucial issue on appeal.
In my view, to assume that wives and nurses could not be members of Islamic State as much as any fighter is to oversimplify the matter. Such an old‑fashioned view of the capabilities of women completely ignores two critical matters that emerged on the evidence at trial about Islamic State practices. Firstly, there was evidence from Dr Shanahan that at the time of the alleged offending, Islamic State (the organisation) was encouraging women to travel to Islamic State (the newly claimed territory) to assist in the building of the Caliphate. The role for women anticipated by such a call to action was that they assist to populate and expand and consolidate a physical presence in the claimed territory. Dr Shanahan also gave evidence that women were being used as online recruiters to persuade other women to join the organisation in conflict areas. Secondly, at the trial, there was evidence of an attempted terrorist attack, carried out by three women with whom the appellant had some ongoing contact, for which Islamic State claimed responsibility. In consideration of that fact alone, there was clearly a role for women in Islamic State beyond that of marriage, nursing and motherhood.
So, in my view, regardless of what role a woman takes in or on behalf of the Islamic State, whether it is as a fighter, a nurse, a wife, a recruiter or all of the above, it is her intention in doing so that may or may not bring her within the provisions of the Criminal Code; not solely the act of becoming a nurse, wife, fighter or recruiter. To suggest that every wife of every Islamic State soldier must also be a member of Islamic State is both an unhelpful and a dangerous line of thought. However, it is the specific actions and, crucially, the specific intentions of each of those women that will be determinative of membership. It may be accepted that members of Islamic State commit themselves to work together with other Islamic State members to achieve the goals of Islamic State. A female supporter of Islamic State the organisation, who relocates to Islamic State the territory, marries a soldier, and raises her children in that State is demonstrating a commitment to one of the goals of Islamic State, namely to consolidate a physical population stronghold over land. Providing that she had the requisite fault element, that woman would be no less a member of Islamic State than a woman who makes a commitment to further a different goal of Islamic State, namely to engage in jihadist acts of violence. And, of course, female members of Islamic State may occupy both such roles simultaneously.
For the purposes of s 102.3(1) the physical element of conduct that a person is a member of an organisation may also be proven by considering matters such as the nature, character and purpose of Islamic State, the aims, objectives and goals of Islamic State, the nature and circumstances of the appellant’s proven conduct and the extent to which the appellant demonstrated through her proven conduct the pursuit of, and alignment with, the organisation and goals and objectives of Islamic State.
With respect to the fault element, the question of whether she had taken steps within the meaning of s 102.1(b) is to be answered by reference to her subjective intention at the time.
Therefore, it is not a question of whether all women who migrate to Islamic State territory fall within the definition of member, it is a question of whether this appellant was proved to be a member, by reference to the extended definition. The facts of this matter demonstrate that each case needs to be dealt with on its own particular facts. Context is indeed everything.
Conclusion on Grounds 1 and 1A
For these reasons, the evidence led at trial was capable of proving the appellant’s guilt of the offence charged in s 102.3 of the Criminal Code. The Judge’s directions as to the legal elements of the offence and as to the approach the jury could take to the evidence were correct.
Grounds 2, 2A and 2B
With respect to grounds 2, 2A and 2B, I do not accept that there was any failure by the Judge to direct in respect of the paucity of evidence of the appellant’s membership of Islamic State. With respect to those grounds, I would grant permission to appeal but dismiss the appeal. I agree generally with the reasons given by the Chief Justice.
Ground 3 – the verdict is unreasonable and cannot be supported having regard to the evidence
I acknowledge that the test on appeal is the test stated by the High Court in M v The Queen.[26]In determining this ground of appeal it is necessary for the Court to undertake an independent review of the whole of the evidence to determine whether it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence charged.
[26] (1994) 181 CLR 487, 493-495.
Some of the appellant’s arguments in respect of this ground of appeal were premised on the appellant’s submissions in respect of the first ground of appeal, which concerns the proper construction of s 102.3(1) and the scope of the term “member”. To some extent some of the arguments in respect of this ground of appeal therefore overlap with issues that have already been dealt with in respect of determining grounds 1 and 1A.
The appellant on appeal confined the main complaint in respect of this ground to two matters about which, the appellant submitted, the jury should have had a reasonable doubt. Firstly, the appellant submits the jury ought to have had a reasonable doubt as to whether going to Turkey with the intention of engaging with Islamic State was in fact a step taken within the meaning of the extended definition of s 102.1. Secondly, the appellant submitted the jury ought to have had a reasonable doubt about whether the appellant did in fact attempt to travel to Turkey in order to engage with Islamic State.
In addressing ground 1, I have already dealt with the first submission that the prosecution failed to establish as a matter of evidence that the proven conduct of the appellant was capable of amounting to a step to become a member of Islamic State. I will not repeat what I have already said about that.
The prosecution case against the appellant was circumstantial.
The prosecution particularised its case and set out to prove that the appellant intentionally took steps to become a member of Islamic State by:
·Attempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with the terrorist organisation Islamic State;
·Being in possession of, and accessing, material that promoted Islamic State and violent global jihad;
·Communicating with other members of Islamic State;
·Pledging an oath of allegiance (bay’ah) to Abu Bakr al-Baghadi the leader of Islamic State;
·Expressing support for Islamic State and violent jihad including by recitation of Islamic State and extremist Nasheeds;
·By self-identifying as a “muwahideen” which was proven to be a term used as an identifier by Islamic State members.
It can be accepted that the swearing of an oath of allegiance to the leader of Islamic State in the circumstances was not in itself sufficient to bring the appellant within the extended definition of “member”. It can be also accepted that her conversations with the three young women, namely the Baaqiya sisters in Kenya, was not sufficient in itself to bring the appellant within the extended definition of member. It can also be accepted that merely proving that the appellant had attempted to travel to Turkey would not necessarily bring her within the extended definition.
The jury were directed by the trial Judge that they could not find the appellant guilty of the offence unless they were satisfied beyond reasonable doubt that the appellant intended to travel to Turkey in order to engage with the terrorist organisation Islamic State. Satisfaction of that matter necessarily precluded any innocent purpose, such as to go on holiday or make contact with an aid organisation to perform humanitarian work.
It was the combination of those facts and circumstances listed above which were all relevant for the jury to consider when determining if the appellant had the requisite state of mind at the time she attempted to board the flight to Turkey.
The material tendered by the prosecution demonstrated the appellant’s specific interest in, and commitment to, Islamic State. Indeed, the amount of material found on the appellant’s phone demonstrated the appellant’s wholehearted acceptance and adoption of the extremist beliefs of Islamic State. All of this was material which the jury were entitled to take into account when determining if the prosecution had proved the appellant’s intention at the time when she attempted to board the flight to Turkey.
The whole of the evidence pointed overwhelmingly to the appellant’s guilt of the charge. It was open to the jury to convict the appellant.
For these reasons, I would dismiss the appeal.
PARKER J: I have read the judgments of Kourakis CJ and Kelly J in draft form. I agree with Kourakis CJ that the appeal should be upheld and I agree generally with his Honour’s reasons. However, I make some additional observations.
It is unnecessary for me to repeat the facts of this matter nor is it necessary to reproduce all relevant legislative provisions. Those matters are dealt with comprehensively in the judgments of Kourakis CJ and Kelly J.
I agree with the Chief Justice that the totality of the evidence was capable of supporting an inference that the appellant was, during the relevant period, a supporter of Islamic State (“IS”), its ideology and its terrorist activities. I also agree with the Chief Justice that the evidence was capable of supporting an inference that the appellant sought to travel to Turkey with the intention of travelling into territory in Syria or Iraq controlled at that time by IS. The evidence is also capable of supporting a further inference that the appellant sought to enter IS controlled territory for the purpose of using her preliminary training as a nurse to provide assistance to IS fighters and others and/or to marry an IS fighter. These actions would assist in building the society that IS was seeking to establish in the territory under its control.
The appellant admitted at [31] of the first Agreed Statement of Facts that, during the period encompassed by the criminal charge (“the relevant time”), IS was both an organisation and a terrorist organisation. She also admitted at [31] that from approximately 2006 onwards IS and its predecessor organisations had directly and indirectly engaged in terrorist activity on an ongoing basis. During her trial the appellant further admitted through her senior counsel that she knew that IS was a terrorist organisation.
Because the appellant had admitted that IS is a terrorist organisation, and that she knew that to be the case, it was only necessary for the prosecution to prove, pursuant to s 102.3(1)(a) of the Schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”), that she was intentionally a member of IS. Whether or not the appellant was proven to be a member of IS must be determined in accordance with the definition of “member of an organisation” in s 102.1 of the Criminal Code. This is an inclusive definition and provides that:
member of an organisation includes:
(a) a person who is an informal member of the organisation; and
(b) a person who has taken steps to become a member of the organisation; …
The prosecution case was founded on the allegation that the appellant was a person who has taken steps to become a member of IS.
In its opening address the prosecution particularised six types of conduct engaged in by the appellant that it said would prove that she had taken steps to become a member of IS. The six particularised types of conduct relied upon by the prosecution were:
(1) attempting to travel on a one way ticket to Istanbul, Turkey in order to engage with the terrorist organisation, Islamic State;
(2) possessing and accessing material promoting Islamic State and violent jihad;
(3) communicating with members of Islamic State;
(4) pledging an oath of allegiance (bay’ah) to the leader of Islamic State, Abu-Bakr Al Baghdadi;
(5) expressing support for Islamic State and violent jihad including by recitation of Islamic State and extremist Nasheeds; and
(6) self-identification as a ‘muwahideem’, a term used as an identifier by Islamic State members.
While the appellant has admitted that IS is an organisation, and also that it is a terrorist organisation, it is important to establish the meaning of the term “organisation” so as to determine whether the evidence was sufficient for the jury to conclude that she had taken steps to become a member of that organisation.
The Judge directed the jury as to the meaning of an “organisation” as follows:
The essence of an “organisation” or an “unincorporated body” for present purposes may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.
The preceding definition of an “organisation” is identical to that of an “unincorporated body” adopted by Mandie J in Kibby v Registrar of Titles.[27] In Benbrika v The Queen the appellants did not challenge the correctness of the Kibby definition and its application to an “organisation” but contended that the jury should have been given more specific directions concerning the application of the definition to the facts of their case. [28]
[27] [1999] 1 VR 861 at [50].
[28] (2010) 29 VR 593 at [74].
While this Court is not bound by the decision in Benbrika, it must follow the decision of the Court of Appeal of another State unless it considers the decision to be clearly wrong.[29] As the decision in Benbrika is not clearly wrong (I respectfully consider it to be correct), it should be followed where relevant.
[29] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.
In rejecting the contention that the jury had been provided with insufficient guidance, the Court of Appeal (comprising Maxwell P, Nettle and Weinberg JJA) held in Benbrika, that there is no “bright line” which would enable it to be said in any given case that there were sufficient characteristics of an organisation present to conclude that one exists.[30] The Court held that: [31]
there is a continuum along which, at a certain point, an amorphous group of individuals with shared aims and objects becomes an entity that can properly be described as an ‘organisation’. It is a question of fact and degree. …
[30] Benbrika v The Queen (2010) 29 VR 593 at [83] citing Cometa United Corporation v Canterbury Regional Council (2007) 14 ELRNZ 20.
[31] Benbrika v The Queen (2010) 29 VR 593 at [84].
The Judge clearly drew upon Benbrika when he gave the following direction about the meaning of an “organisation”:
there is a continuum along which, at a certain point, one may conclude that a person has intentionally behaved in such a way as to demonstrate that he or she intentionally ‘has taken steps to become a member of the relevant organisation’. …
His Honour did not direct the jury that when considering the steps taken by the defendant they should also consider whether those steps would be accepted by IS as being directed towards meeting the “clear criteria or method for identification of its members”.
For a group of persons to comprise an organisation, rather than an amorphous group of individuals, they must be able to decide the steps that are required to attain membership, whether those steps be some type of formal process or merely informal custom and practice or a course of conduct. In the case of a small and informal organisation, such as that which was the subject of the proceedings in Benbrika, the membership requirement may potentially be satisfied merely by other participants in the group acting in such a way as to demonstrate their acceptance that the imputed member is working together with them towards a common goal or in pursuing a common interest. In such a case, the organisation may lack any formal structure or rules and have no process for admission to membership other than permitting a person to participate in the activities of the group. In those circumstances, as the Court of Appeal held in Benbrika, whether there is an organisation, and also whether an individual is a member of that organisation, will be matters of fact and degree to be decided in light of all the relevant evidence. In the absence of any formal structure, rules and process, the evidence will necessarily be circumstantial and based on the conduct of individuals. The evidence led by the prosecution in this case was of that type.
It is necessary to consider whether IS was an organisation of the type referred to in the preceding paragraph that lacked any formal structure or processes.
The respondent has supported its contentions on appeal concerning the meaning of the term “organisation” as used in the Regulations and its application to IS by referring to Attachment B to the 2014 Explanatory Statement published in support of the re-enactment of the proscription of IS.[32] Given that there is some ambiguity or obscurity as to the meaning of this term in its application to IS, that material may be considered under s 15AB of the Acts Interpretation Act 1901 (Cth) for the purpose of interpreting the Regulations.
[32] Explanatory Memoranda, Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth).
Attachment B includes the following material relating to IS:
Leadership
…
The Islamic State has a hierarchical structure, featuring an overall leadership council and provincial governments in both Iraq and Syria. Regional and specialist cells act with relative autonomy under general direction from senior leaders.
Membership
The Islamic State has several thousand members in Iraq, mostly young Iraqi Sunni men. Its members have been boosted in 2014 by its success in capturing Iraqi cities and coercing or convincing Sunni tribes to ally with the group. It has also claimed responsibility for several mass prison breaks throughout Iraq that have freed hundreds of its members, most of whom are still at large.
In Syria, the Islamic State has several thousand additional members drawn from both Syrian nationals and foreign fighters. Due to the Islamic State’s Iraqi origins, a large number of its Syria-based senior operatives and leadership are Iraqi nationals. Fighters in both countries are able to pass freely across the border, which is no longer recognised by the Islamic State.
Recruitment and Funding
Islamic State uses a combination of threats, incentives and ideology to recruit new members, including a sophisticated social media campaign in several languages. It mostly targets young Sunni men worldwide, exploiting anger at the Iraqi and Syrian governments’ perceived mistreatment of Sunni Muslims and encouraging them to join it in restoring an Islamic caliphate. It also aims to recruit Iraqi security force members to gather intelligence and undermine the performance of its enemies.
Much of the evidence of Dr Shanahan was broadly similar to the Explanatory Statement. He also indicated that IS had controlled large areas in Syria and Iraq where it had purported to establish a nation under Sharia law. It had adopted some of the indicia of nationhood, such as the issue of precious metal currency and documents purporting to be passports, collected taxes, dealt with infrastructure and so forth. IS had engaged in significant military combat and was responsible for acts of terrorism in many parts of the World.
IS is a large organisation that has purported to govern an extensive area spread across two nations. It gained control of that territory through substantial military actions employing many thousands of fighters. It pays its fighters and their widows. IS has a hierarchical structure with a self-appointed leader supported by lieutenants and a leadership council. It conducts extensive and sophisticated media and publicity operations. One can infer from the nature and scale of its activities that IS had significant financial resources.
The Judge directed the jury that an organisation like IS would not have formal indicia of membership like a cricket club, such as membership cards. Although there was no evidence on that point, it can be accepted that a terrorist organisation would not make use of processes such as application forms, nomination by other members, written eligibility criteria and so forth. Furthermore, many and perhaps most, terrorist organisations will be small tightly knit vanguard groups such as that considered in Benbrika.
Nevertheless, the matters referred to in paragraphs [253] to [258] suggest that there is a distinct possibility that admission to membership of IS may require something more than mere mutual recognition and acceptance of the type considered in Benbrika. The hierarchical structure of IS with a formal leadership group and its size combine to suggest that there is a real possibility that IS would reserve the right to decide the circumstances in which a person will be accepted or recognised as a member and the criteria that will be applied. That likelihood is reinforced by the nature and extent of the various activities conducted by IS, which would often require absolute loyalty and secrecy. Although members of a small organisation engaged in such activities may operate effectively on the basis of mutual trust and acceptance, it seems to me that this would be far more difficult in a large organisation conducting widespread military and terrorist activities. In such a case, the absence of any criteria to distinguish members from supporters or fellow travellers would produce “an amorphous or fluctuating group of individuals” with shared aims and objects rather than an organisation. That result would not be consistent with the hierarchical structure described in the Explanatory Statement.
Moreover, as Kourakis CJ has observed at [20], the statutory extension of the concept of membership to the taking of a step towards membership, necessarily contemplates that there will be some form of practice or process, whether formal or informal, required to attain membership. Most importantly, there was no evidence from Dr Shanahan, or any other witness, as to what conduct would be accepted by IS as a step along the path to membership.
On the hearing of the appeal the respondent contended that a person who lived in the territory controlled by IS, and who supported its ideology and conduct, would be a member of IS. However, there was nothing in the evidence of Dr Shanahan to support that contention. In fact, as the Chief Justice has noted in his reasons, the only evidence given by Dr Shanahan about the structure and organisation of IS was to identify its leader, Abu Bakr al-Baghdadi, and to refer to him as having lieutenants.
When explaining the purpose of IS publishing a photograph depicting two children holding an IS flag, Dr Shanahan stated that imagery of this type was used by IS to indoctrinate youth who would be “the next generation of members of Islamic State or residents of Islamic State territory”. Although the issue was not pursued with Dr Shanahan, his evidence suggests that he recognised a distinction between IS members and persons who resided in the territory that it controlled. Similarly, as Kourakis CJ has noted at [75], Dr Shanahan also stated that the term “Baqiyaa sisters” was a collective noun applied to supporters or members of IS. Once again, the difference between supporters or members was not pursued with Dr Shanahan.
The references by Dr Shanahan to members and residents and members and supporters were not inconsistent with his evidence that IS sought to encourage persons to move to the territory under its control so as to assist it in building a State and providing services. He said that IS wanted engineers, doctors, fighters and women to come to build the State. Dr Shanahan also stated that women were to fulfil several roles consistently with the traditional Salafist view. They were to provide support to their husbands, support the jihadis (i.e. fighters) and to produce and raise children in the appropriate Islamic way.
Dr Shanahan did not give any evidence as to whether the action of a person who supported the ideology of IS moving into territory under its control so as assist in building the State, whether as a worker, traditional wife or otherwise, would be sufficient for that person to be recognised by IS as a member. Dr Shanahan also did not give any evidence as to whether the conduct of the appellant referred to in the six particulars relied upon by the Crown would be recognised by IS as the taking of steps towards membership.
In addition to the distinction drawn by Dr Shanahan between IS members and residents and IS members and supporters, there are other indications that not all residents in IS territory who support the beliefs and activities of IS will be members.
The contention advanced by the respondent at the appeal hearing and in its supplementary written submissions that all residents of IS territory who support its beliefs and practices will be IS members, strains the meaning of the term “organisation” beyond what the legislature could possibly have contemplated, and also beyond the meaning found in Kibby and Benbrika. That is because the respondent’s contention is plainly based upon an assumption that an amorphous or fluctuating group of individuals without any clear criteria or method for the identification of its members can constitute an organisation.
The Chief Justice has traced the legislative history of the Regulation at [39] to [40] of his judgment. The Explanatory Statement published in 2014 stated that the change in name since the original proscription in 2005 of the organisation now known as IS “does not represent a change in the leadership, membership or methods of the group”.[33]
[33] Explanatory Memoranda, Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014, (Cth) at 8.
Dr Shanahan also stated that the organisation now known as IS had begun as an affiliate of Al-Qaeda in Iraq in about 2004 following the invasion of Iraq by the United States and its allies. After the emergence of the Syrian uprising in about 2011, Abu Bakr al-Baghdadi had sent one of his lieutenants into Syria to gain a foothold in that area. Upon that being achieved, there were further name changes which ultimately resulted in the organisation calling itself IS.
While Kourakis CJ has noted that the assertion in the 2014 Explanatory Statement that there has been no change in membership since 2005 cannot literally be correct, it provides a strong indication that the basis for membership of IS had not changed in any significant fashion despite the several changes in the name of the organisation proscribed by the Regulations. The evidence of Dr Shanahan to which I have referred at [256] above, is not inconsistent with that conclusion.
There is nothing whatsoever in the Explanatory Statement to suggest that the membership of the proscribed organisation IS during the relevant time comprised a significant component of residents in the area under the control of IS in Syria and Iraq. There is also nothing in that material to indicate that a person who moved to IS territory so as to assist in the building of the new State, whether as a worker or a wife (or both), was a member of IS. To the contrary, although not expressly dealing with membership criteria, the Explanatory Statement suggests that IS membership may not have extended beyond its leadership structure, its fighters and perhaps those engaged in terrorist activities under its aegis. Dr Shanahan did not suggest anything to the contrary.
For these reasons, and also the additional reasons stated by Kourakis CJ, I consider that the evidence was not sufficient to prove that the actions of the appellant were the taking of steps towards membership of IS and thereby establish that she was intentionally a member of IS contrary to s 102.3(1)(a) of the Criminal Code. While I have no doubt whatsoever that the evidence was more than sufficient to permit the jury to conclude that the appellant firmly supported IS and was strongly committed to its cause, that was not the subject of the charge she faced. I therefore agree with Kourakis CJ that the appeal should be upheld on ground 1, the conviction set aside and an order of acquittal entered.
I also agree with the reasons of Kourakis CJ in relation to ground 2 and have nothing to add. If it were necessary, I would grant permission to appeal but dismiss the appeal on ground 2, 2A and 2B.
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