Khazaal v R - [2011] NSWCCA 129

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khazaal v R [2011] NSWCCA 129
Hearing dates: 6 October 2010
Decision date: 09 June 2011
Before: McClellan CJ at CL at [1]
Hall J at [177]
McCallum J at [451]
Decision:
By majority:
1. Appeal allowed in relation to ground 4.
2. Conviction quashed.
3. Order a new trial.

Catchwords: CRIMINAL LAW - appeal against conviction - s101.5(1) Criminal Code Act 1995 (Cth) - failure to discharge jury when prejudicial material inadvertently was admitted on behalf of defence at trial - directions to jury regarding delay in removing disputed material from internet - interpretation of the phrase "connected with" - "inconsistent verdicts" - application of the proviso - conviction quashed - new trial ordered.
CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of appellant's character - deterrence - onerous bail conditions - manifest excess.
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code 1995 (Cth)
Security Legislation Amendment (Terrorism) Act 2002 (Cth)
Terrorism Act 2000 (UK)
Terrorism Act 2006 (UK)
Cases Cited: ABC v Comalco Ltd (1986) 12 FCR 510
Arnold v R (1993) NSWLR 73
Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485.
Beckwith v R (1976) 135 CLR 569
Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273
Benbrika & Ors v The Queen [2010] VSCA 281; (2010) 247 FLR 1
Board of Trustees of Keene State College v Sweeney 439 US 24, 99 S. Ct 295
Braysich v The Queen [2011] HCA 14
Brauer v DPP [1991] 2 Qd R 261; (1989) 45 A Crim R 109
Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146
Crofts v R [1996] HCA 22; (1996) 186 CLR 427
Driscoll v R (1977) 137 CLR 517; (1977) 15 ALR 47 at 69
Ebron v United States 838 A.2d 1140 cf United States. v Pugh, 436 F.2d 222, 225 (C.A.D.C. 1970)
El Hassan v R [2007] NSWCCA 148
Elkateb v Lawindi (1997) 42 NSWLR 396
Fowkes v DPP [1997] 2 VR 506; (1996) 88 A Crim R 166
GAR v R (No 2) [2010] NSWCCA 164
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Halpin v Department of Gaming and Racing (2006) 68 NSWLR 211
Hatfield v Health Insurance Commission (1987) 15 FCR 487
Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195
House v R [1936] HCA 40; (1936) 55 CLR 499
Jayasena v R [1970] 1 All ER 219; [1970] AC 618
Jeffrey v DPP (1995) 121 FLR 16; (1995) 79 A Crim R 514
John Fairfax Publications Pty Limited v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Kanaan & Ors v R [2006] NSWCCA 109
L v Director of Public Prosecutions [2002] 2 All ER 854
Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
Maric v R (1978) 20 ALR 513; 52 ALJR 631
Maxwell v DPP [1935] AC 309
Murdoch v Simmonds [1971] VR 887
Nolan v MBF Investments Pty Limited [2009] VSC 244
Pak v R [2000] WASCA 309
R v Ball (1960) 61 SR 37
R v Barot [2007] EWCA Crim 1119
R v Boland (1974) VR 849 at 866
R v Fowler (2003) 151 A Crim R 166
R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Halliday [2009] VSCA 195
R v Hortis [2004] VSCA 143
R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258
R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108
R v Khazaal [2009] NSWSC 1015
R v Knape [1965] VR 469
R v Lodhi (2006) 199 FLR 364
R v Lodhi [2006] NSWSC 584
R v Lodhi [2006] NSWSC 691
R v McCann & Ors (1991) 92 Cr App R 239
R v Ngo [2003] NSWCCA 82
R v Novakovic [2007] VSCA 145; (2007) 172 A Crim R 414
R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273
R v Postiglione (1991) 24 NSWLR 584
R v Puckeridge [2000] NSWCCA 193
R v Stafrace (1997) 140 FLR 427 at 432
R v Vaitos (1981) 4 Crim App R 238 at 243
R v VPH (Unreported, New South Wales Court of Criminal Appeal, 3 March 1994)
R v Weaver [1967] 1 QB 353
R v Wood [1996] 1 Cr App Rep 207
R v Zafar [2008] QB 810
Rahman v R [2008] EWCA Crim 1465
Scheri v DePaolo 68 NJ Super 297, 172 A 2d 233
Siddique (Mohammed Atif) v HM Advocate [2010] HCJAC
Stirland v DPP [1944] AC 315; [1944] 2 All ER 13
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Texas Department of Community Affairs v Burdine 450 US 248, 101 S. Ct 1089
Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41
Winsor v R (1866) LR 1 QB 390
Category: Principal judgment
Parties: Belal Saadallah Khazaal (Appellant)
Crown
Representation: Counsel:
I Barker QC/P Lange (Appellant)
P Neil QC/S Callan (Crown)
T Howe QC (Cth Attorney-General)
Solicitors:
Lawyers Corp Pty Ltd (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2005/2994
Decision under appeal

Jurisdiction:

9111

Citation:

R v Khazaal [2009] NSWSC 1015

Date of Decision:

2009-09-25 00:00:00

Before:

Latham J

File Number(s):

2005/2994

Judgment

McCLELLAN CJ at CL: The appellant pleaded not guilty to one count of making a document connected with preparation for, the engagement of a person in, or assistance in a terrorist act, knowing of that connection contrary to s 101.5(1) Criminal Code Act 1995 (Cth) ("the Code") and to one count of attempting to urge another to engage in a terrorist act contrary to ss 11.1(1), 11.4(1) and 101.1(1) of the Code. Following a trial in the Supreme Court, the appellant was convicted in relation to count 1. The jury was unable to reach a verdict in relation to count 2. The offence of which the appellant was convicted attracts a maximum penalty of 15 years. The appellant was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years (R v Khazaal [2009] NSWSC 1015). He appeals against his conviction and seeks leave to appeal against his sentence.

THE INDICTMENT

The indictment dated 3 July 2008 was in the following terms:

"Count 1:

That between 20 September 2003 and 23 September 2003 at Sydney and elsewhere in the world he did make a document connected with assistance in a terrorist act knowing of that connection contrary to the provisions of s 101.5(1) of the Criminal Code.

Count 2:

That between 22 September 2003 and about 8 October 2003 at Sydney and elsewhere in the world he did attempt to urge the commission by others of an offence, namely, engaging in a terrorist act contrary to s 101.1(1) of the Criminal Code."

In relation to count 1 the indictment alleged:

"1.1 The document made was a book titled 'Provisions on the Rules of Jihad - Short Judicial rulings and organisational instructions for fighters and Mujahideen against infidels'.

1.2 The terrorist act was an action or threat of action against any one or more of a number of persons identified in the document including diplomats, military personnel and holders of public offence done or threatened"

(a) with the intention of advancing a political religious or ideological cause, namely the advancement of the Muslim religion in the world including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christians and other non-Muslims from that region; and

(b) with the intention of:

i. coercing, or influencing by intimidation, the government of the Commonwealth or of a foreign country; or

ii. intimidating the public or a section of the public; and

(c) in circumstances where the action, if carried out, would:-

i. cause serious harm that is physical harm to a person; or

ii. cause serious damage to property; or

iii. cause a person's death; or

iv. endanger a person's life, other than the life of the person taking the action; or

v. create a serious risk to the health or safety of the public or a section of the public; and

(d) the action or threat of action was not to be done as advocacy, protest, dissent or industrial action.

Alternatively, if the action or threat of action was to be done as advocacy, protest, dissent or industrial action, it would be of a kind intended to:

i. cause serious harm that is physical harm to a person; or

ii. cause a person's death; or

iii. endanger the life of a person, other than the person taking the action; or

iv. create a serious risk to the health or safety of the public or a section of the public."

THE CODE PROVISIONS

The relevant provisions of the Code read as follows:

100.1 Definitions

(1) In this Part:

terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(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.

101.5(1) Collecting or making documents likely to facilitate terrorist acts

(1) A person commits an offence if:

(a) the person collects or makes a document; and

(b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

Penalty: Imprisonment for 15 years.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) a terrorist act does not occur; or

(b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or

(c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

(5) Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

13.3 Evidential burden of proof--defence

(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

(5) The question whether an evidential burden has been discharged is one of law.

(6) In this Code: 'evidential burden', in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

13.4 Legal burden of proof--defence

A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b) requires the defendant to prove the matter; or

(c) creates a presumption that the matter exists unless the contrary is proved.

THE CASE AT TRIAL

In summary, the Crown case was that between 20 - 23 September 2003, the appellant downloaded from the Internet material of a religious and "jihadist" nature and compiled an electronic book entitled "Provisions on the Rules of Jihad - Short Judicial Rulings and Organisational Instructions for Fighters and Mujahideen Against Infidels" ("the e-book"). After downloading the material, which was in Arabic, the appellant edited parts of it and renumbered the footnotes. He inserted a dedication and a foreword. Using a pseudonym, he submitted the e-book (which he described as "urging for jihad") to the administrators of a website which was connected with al-Qaeda ("the Almaqdese website"). The Almaqdese website contained a number of other publications composed by leaders of known terrorist groups. The appellant made some final formatting changes and the e-book was published on the Almaqdese website. The Crown contended that the appellant's acts of selecting, compiling and editing the downloaded content and introducing his own material constituted the "making of a document" and those acts must have been "intentional".

Chapter 10 of the e-book was entitled "Reasons for Assassination". This and other chapters commenced with the appellant's own commentary endorsing the substance of the chapter. Chapter 10 contained the following sub-headings:

"Characteristics of the Assassination Team

Training Team members

Optimal conditions for assassination

Features and stages of the assassination process

Security precautions

First: Wireless Distant Detonating Device (Remote Control)

Security measures prior and post detonation

Second Method: letters and letter bombs

Third Method: Booby Trapping a car

Security alerts to Mujahideen in some battle fields like Palestine

Fourth method: Detonating a car from a distance

Caution to the wanted Mujahideen who fear assassination by Mossad in Palestine

Fifth Method: Sniping

Sixth Method: Smothering

Seventh Method: Hitting with a Hammer

Eighth Method: Booby Trapping a room

Other methods

Targets that should be assassinated

Benefits of assassination

Modern Assassination stories

Successful operations."

The section entitled "Characteristics of the assassination team" identifies traits that are necessary or desirable for assassins. These include physical fitness, courage and "terrorist psychology". The section headed "Optimal conditions for assassination" provides a list of scenarios in which targets are most vulnerable to attack. Those include "When the target is alone, unprotected and unaccompanied", "When the target is away from his home or office with little protection", "When target announces his movements such as attending a conference", and "When target opens his own mail or doors for his guests".

The section headed "Features and stages of the assassination process" summarises the various means by which targets can be assassinated. It concludes with the following comments:

"These types of assassination were listed in order of safety and cost. Regardless of the style, assassination operations require special characteristics and a talented Mujahid. After several successful assassination operations the element becomes a professional specialist. After three successful assassination operations and a kidnapping operation the element becomes an advanced specialist and can be appointed to lead a cell."

Chapter 10 also outlines the functions of the "Distracting Group" whose primary task is said to be to divert the attention of security personnel prior to a terrorist attack:

"Such group works on distracting enemy security. Timing is of key importance and so is coordination with the execution party. For instance, if the assassination was to use mortar then a high-pitch noise such as cars, engines or car horns would be appropriate to cover the noise of the mortar shell or the noise of snipers in case no silencer was used."

Chapter 10 goes on to provide detailed information about various assassination techniques including remote-controlled bombs, letter bombs (and the means by which such devices can pass through security screening) and smothering. The latter section reads:

"It primarily works on plugging the air ducts particularly the mouth and the nose which could be done by placing one's hand and keeping it on the target's nose till he dies. Alternatively, keeping his face to the ground or wrapping the face with tape that would prevent him from breathing ...

One of these techniques is to tie the target with a metal rope over his chest and tighten the rope till the trachea contracts and can not open. This leads to suffocation the same way a boa would hold and kill its prey.

...

Another method albeit one that requires more than one person to carry it out is wrapping the target in a strong plastic bag. This hardly leaves a trace on the body of the target. Enemy security could have the impression that it was a suicide."

The section entitled "Targets that should be assassinated" reads as follows:

"Identities that should be assassinated are in this order, as far as I think:

1 - All Jewish, Christian and Arab atheists among the diplomats, ambassadors and the military in Arabia. The definition of Arabia for Mujahideen is the area that covers Yemen, Oman, Saudi, Kuwait, Qatar, The Emirates and Bahrain. This extension is due to the legal texts that call for the expulsion of Jews and Christians and Infidels from Arabia. The enemy nationalities are ranked in accordance to their importance:

1. American.

2. British

3. French

4. Rest of NATO members

5. Rest of Christians

6. Hindus and Buddhists

7. Russians

These nationalities, with the aid and participation of Jews, fight, kill, rape and pillage Muslims. This is well-known world wide and is for everyone to see. ...

2 - Imams of apostasy: Who exist in Arabia such as state presidents, ministers of the Interior, Foreign ministers, ministers of Defense who are promoting and defending atheism. The rest of the Imams of apostasy in the Arab Countries which are falsely called Islamic states such as Abu Reghal and his four men, Barvez - Brazen - Mussharaf, Hosni Mubarak, Yasser Arafat and the rest of the list. In addition to anyone who blasphemes God or the prophet such as journalists and the media whose insult has been proven publicly, by confession or through witnesses has joined the list of enemies. I have explained this in my book (Guide book for the rulings on killing policemen and investigators)

3 - Holders of key positions in the original countries of atheism fighting us such as the president, then the minister of defense, foreign minister, Chief of Intelligence, National Security and the high ranking generals. The countries are listed in the following order:

First: America

Second: Britain, and between the two Israel which is the misnomer for the Jews

Third: France

Fourth: Germany

Fifth: Australia

Sixth: Canada

Seventh: Rest of NATO countries

Eighth: Russia

Ninth: India

And by way of example the assassination of president (Bush), minister of Defense (Rumsfeld), state secretary (Powell) and General (Tommy Franks) and Chief of intelligence (Tenet). However, this is not an exhaustive list it is intended only to illustrate and to clarify."

The final chapter, "The Last Word", contains the following headings:

"No solution without Jihad

2 - Duties confirmed

The enlisting of the Fundamentalist movement

Small groups can cause havoc among Americans

Towards a Fundamental Base in the heart of the Muslim World

How and who should wage the clash?

Striking the Americans and the Jews

Taking the battle to the enemy

Selecting Targets and focusing on Martyr Operations

It is every Muslim's battle."

The section entitled "Small groups can cause havoc among Americans" contains the following:

"Pursuing Americans and Jews is not an impossible task. Killing them with a single shot, a stab or a pack of a popular mix or with an iron rod is not a difficult deed. Neither is burning their properties with a Molotov bottle. Small groups with small available means can cause horror to American and Jew alike."

According to the Crown, the first half of the e-book (Chapters 1 - 9) sets out the religious or ideological justifications for jihad and the second half (Chapters 10 - 13) provides a practical guide to achieving martyrdom and destroying those who oppose or oppress the Islamic faith. The Crown contended that the nature of the material contained in the e-book demonstrated that the preparation of the e-book was "connected with" assistance in a terrorist act.

There was no evidence capable of establishing that the appellant had any direct communications with prominent al-Qaeda members or with the authors of the adopted material in the e-book. However, the Crown case was that the evidence showed that during the relevant period, the appellant was an enthusiastic supporter of al-Qaeda and was keen to promote its ideals and practices. This evidence was said to be of relevance to count 1. The trial judge required the Crown to frame its case on that aspect on this limited basis. In particular, it could not submit that the appellant was an al-Qaeda member or had communicated directly with any of its prominent operatives.

THE DEFENCE AT THE TRIAL

The appellant argued at his trial that the e-book was merely a compilation of various existing works, all of which were readily available for download from the Internet. Much of its content was uncontroversial. He emphasised that the first half contained historical justifications for jihad in Islam and the second half contained contemporary writings on the topic. It was submitted that the second half of the e-book could not be described as a "terrorist manual" as it did not provide concrete instructions as to how to commit acts of terrorism. The appellant emphasised that at the time at which the alleged offences occurred, he was an accredited journalist with an interest in religious affairs.

AGREED FACTS

The following matters were not in dispute: that the appellant made the e-book; that he downloaded the majority of its contents from various websites with the intention of compiling it into the e-book; that he caused it to be published on the Almaqdese website; that the e-book refers to methods of assassination and identifies targets for assassination; and that the appellant has a journalist's card and had contributed regularly to a publicly-available Islamic affairs magazine entitled "Nida ul-Islam" or "The Call of Islam" ("the magazine"). The magazine was published by the Islamic Youth Movement ("IYM") and was freely available to the public. The appellant was largely responsible for its content.

GROUNDS OF APPEAL

The grounds of appeal were expressed as follows:

CONVICTION

Ground 1 A miscarriage of justice occurred as a result of her Honour failing to discharge the jury in circumstances in which counsel for the appellant had inadvertently tendered magazines, which made clear reference to material suggesting there was a link between al-Qaeda and the appellant;

Ground 2 Her Honour erred in directing the jury to disregard the submission made by counsel for the appellant during his closing address, in which he suggested that the jury should, when considering whether the book was connected with preparation for, the engagement of a person in, or assistance in a terrorist act, take into account the delay by the authorities in seeking the removal of that book from availability at large;

Ground 3 Her Honour erred in directing the jury in relation to count 1 that the words "connected with" were simply to be given their ordinary meaning; and

Ground 4 Her Honour erred in holding that the appellant had failed to discharge the evidential burden provided for by s 101.5(5) of the Code, and in consequence declining to direct the jury that the Crown was required to prove beyond reasonable doubt that the document was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.

SENTENCE

Ground 1 Her Honour erred in concluding that the objective seriousness of the offence was "not far removed from the worst category of an offence under s 101.5(1) of the Code;

Ground 2 Her Honour erred in concluding that the appellant could not be regarded as a person of prior good character in light of various foreign convictions, even though these were obtained in violation of the principle of procedural fairness;

Ground 3 Her Honour erred in failing to give proper consideration to the question of deterrence;

Ground 4 Her Honour erred in giving inadequate weight to the onerous conditions to which the appellant had been subject while on bail; and

Ground 5 The sentence imposed was manifestly excessive.

CONVICTION APPEAL

Ground 1 Failure to discharge the jury following inadvertent tender of magazines

During the trial, the Crown called Dr Evan Kohlmann, who was accepted as an expert on international terrorism and terrorist organisations including al-Qaeda. His evidence was extensive, and included explanations of the operation and practices of al-Qaeda, concepts of jihad and martyrdom, the Almaqdese website, and the contents of the e-book. He was cross-examined by the appellant's counsel and asked about the appellant's prior journalistic publications, which included his work on the Nida ul-Islam magazine. The apparent purpose of the cross-examination was to establish that the e-book was, like the magazine, a journalistic work compiled for literary purposes.

During the cross-examination, Issue 9(1) of the magazine (Feb - Mar 2002) was tendered without objection. It became Exhibit 2. A bundle containing four other issues of the magazine was marked MFI 14. The prosecutor later called for the tender of MFI 14 which became Exhibit 4. A bundle containing 32 other issues of the magazine became Exhibit 5. The Crown had an opportunity to peruse Exhibit 5 overnight, apparently for the first time, those issues of the magazine having previously been with the jury.

Exhibit 5 included Issues 10(2) and 10(3) of the magazine. Within those issues were two articles written by the appellant which referred to allegations that the appellant had links to al-Qaeda and had assisted in the financing of overseas terrorist acts ("the allegations"). I will refer to the articles contained in issues 10(2) and 10(3) as "the disputed articles".

The disputed article in Issue 10(2) of the magazine was entitled "Four Corners Missed the Target". The article criticises a segment aired on the television program Four Corners on 9 June 2003. In that segment, Ms Sally Neighbour of the ABC referenced a "secret CIA report" which, she said, identified the appellant as the Australian head of al-Qaeda and as someone who had been trained in Afghanistan and who was involved in the planning of terrorist attacks overseas. The disputed article contains a comprehensive denial of the allegations and challenges the cogency of the claimed CIA intelligence. It reads, relevantly:

"For the record, Belal Khazal is a member of the IYM; he did not receive training of any kind in Afghanistan or elsewhere; he did not raise any funds for any organisations, and he did not, nor intend to, plan 'terrorist' attacks in the Philippines, Venezuela or anywhere else.

Belal and other members of the IYM have been targeted because they are Muslims and they have been labelled as 'terrorists' by the likes of CIA, ASIO, and other security agencies."

The disputed article in Issue 10(3) of the magazine was entitled "No Evidence: Just Fabrication against Bhelal Khazal." That article, which concerned the same Four Corners segment, vehemently denied the allegations and argued that the CIA report was a fabrication.

The Crown sought to use the disputed articles for a limited purpose. It was the Crown's contention that the material, in conjunction with the evidence given by Dr Kohlmann, was capable of establishing that the appellant associated himself with al-Qaeda in the following ways: through his membership of the IYM (the publisher or the magazine), by contributing to the content of the magazine, and by selecting the Almaqdese website - which had been advertised in the magazine - as the forum for publication of the e-book.

The prosecutor urged the jury to exercise caution when considering the disputed articles. He said:

"One reason for drawing attention to this is: Please do not think, because the magazine itself contains an allegation in Four Corners by Sally Neighbour or anyone else against Mr Khazaal that you can act on that. We are submitting that you do not act on that. We did not tender exhibit 5. Care needs to be exercised. Merely because the ABC reports something that this is responding to - it is saying it is not right - merely because the ABC reports something, you cannot use that against Mr Khazaal. That is just a news report. Do you follow what I mean? I am sure you do. I think I have made the point.

They say: 'For the record, Bilal Khazaal is a member of the IYM, Islamic Youth movement.' The significance for the Crown is that this magazine records that Bilal Khazaal is a member of the IYM. Forget this allegation of Sally Neighbour. That is no part of the Crown case whatever against Mr Khazaal. But where the magazine is tendered in his case, it records that he is a member of the Islamic Youth Movement. The Crown submits it is fair of you to accept that.

The article goes on to say that Four Corners is completely wrong. My point is just to refer to this statement that he is a member of the Islamic Youth Movement.

At page 4 there is another defence of Bilal Khazaal. He is entitled to defend himself, if Four Corners has attacked him. This trial is not about what happened on the media, on television, or in a response. In this example, we did not put it in. Exercise care please, or there could be an unintended unfairness.

Finally today, if I may just very briefly refer to the last issue in exhibit 5, June to August 2004, again commencing at page 4, 'No evidence, just fabrication, against Bilal Khazaal.' We do not want you to take account of this kind of debate between the magazine and Four Corners or 60 Minutes in any part of your deliberations as to whether or not the Crown has proved these two charges beyond reasonable doubt. But we do draw your attention to the fact that in this edition it commences: 'It is now in the open. A member of the Lakemba based Islamic Youth Movement (IYM) Bilal Khazaal and his brother... lies and false accusations', et cetera.

Our point is that this magazine describes the accused as a member of the Islamic Youth Movement, and I will relate that to some evidence about him being involved in a publication, and hence assuming some responsibility for the content of those magazines."

In the course of the Crown address, counsel for the appellant, apparently for the first time, learnt of the content of the disputed articles. Concerned that a mistake had occurred and troubled by its impact on the jury, he made an application to have the jury discharged on the basis that the relevant articles were so devastating to the appellant that he was denied any possibility of a fair trial. Exhibit 5 had been in the jury's possession for seven hearing days by the time the application for discharge was made. When making the application, defence counsel said:

"Clearly, this material is devastating as far as the accused is concerned. The object here is to have a fair trial. We accept that the material has been put in by the defence. However, it has been put in in circumstances where, as a result of an oversight, this material was not picked up.

Our object in putting all of the material relating to these magazines was obvious. That is, the magazine is relevant to the proceedings. My friend suggests that there is a connection between the accused and the magazine, which we accept. It is, indeed, part of our case.

My friend goes further and says that there is a connection between this magazine and al-Qaeda based on the evidence of Dr Kohlmann. We accept the basis upon which that contention is made. However this material really goes to far and puts - -

HER HONOUR: When you say 'this material', you are referring just to the two articles?

[Counsel for the appellant]: Yes. ..."

The trial judge refused the application, concluding that the disputed articles categorically denied the allegations and accordingly, the potential for prejudice was minimised. Her Honour's judgment reads as follows:

"The perspective that jurors properly perform their tasks, are true to their oaths and comply with the trial judge's directions has been repeatedly applied in appellate courts over recent years; see R v Milat and R v Bell, R v Long and R v Richards [1999] NSW CCA 114, [1999] 107 ACrimR 318, R v Dudko, R v D'Arcy and R v Burrell.

I am not persuaded that the jury will fail to abide by the directions I have given and propose to give. In any event, the articles themselves rebut the allegations made in the programme. It may be the case that some members of the jury did see the programme when it aired in June 2003 and that the articles have only served to remind them of the allegations made therein. If that is so, then the Crown's reference to the articles does not add significantly to what those members of the jury already knew.

Furthermore, it is not irrelevant that the magazines were tendered by the accused. Nothing in the magazines was thought to be so prejudicial that they could not be placed before the jury. For these reasons the application is refused."

In her summing-up, the trial judge directed the jury in the following terms:

"There have also been references made in the course of the address to the Al-Nida magazine and to a Four Corners programme in 2004. Of course, the subject of that programme, which was the accused's alleged links to al-Qaeda and his alleged funding of terrorist acts, was strongly refuted by the accused throughout the magazine itself. The fact that such allegations have been made against the accused do not prove anything. We are all exposed to media coverage on a daily basis of many controversial events. It will not surprise you to hear that media outlets are fallible. They have been shown to be wrong in the past and they will be shown to be wrong in the future. As I have said a number of times in this trial, you must put these matters completely to one side and objectively consider the evidence brought against the accused on the specific charges in the indictment. He is not charged with being a terrorist. He is not charged with committing a terrorist act. There is no evidence that the accused is a member of al-Qaeda. There is no evidence that the accused communicated directly with any prominent member of al-Qaeda or any of the authors of the chapters of the book.

...

Now, there is no direct evidence, and I repeat this, ladies and gentlemen, of any links between the accused and al-Qaeda itself, but the Crown case is that an inference can be drawn, at the very least, that the accused was a supporter and an enthusiast of al-Qaeda."

THE RELEVANT PRINCIPLES

The principles governing applications for the discharge of a jury and the review of that decision by an appellant court were summarised by Toohey, Gaudron, Gummow and Kirby JJ in Crofts v R [1996] HCA 22; (1996) 186 CLR 427 as follows (at 440 - 441):

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. ...[M]uch leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?

...

[I]n the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account."

See also Maric v R (1978) 20 ALR 513 per Gibbs J at 520; Stirland v DPP [1944] AC 315; [1944] 2 All ER 13 at 321; Driscoll v R (1977) 137 CLR 517; (1977) 15 ALR 47 at 69.

APPELLANT'S SUBMISSIONS

The appellant submitted that this Court could not conclude that but for the admission of the disputed material, the conviction was inevitable (Crofts at 440 - 441).

The appellant drew an analogy between the disputed articles and evidence of a defendant's prior convictions or bad character which, it was suggested, will normally jeopardise the prospects of a fair trial: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 604 per Mason CJ and Toohey J, quoting Maxwell v DPP [1935] AC 309 at 317; Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 90 per Toohey J.

The appellant argued that the revulsion with which acts of terrorism are regarded by members of the public and by the courts increased the risk of unfair prejudice (R v Wood [1996] 1 Cr App Rep 207 at 219A per Staughton LJ). This risk was said to be further elevated by Dr Kohlmann's evidence that the Internet was al-Qaeda's preferred means of communication. The appellant submitted that the jury could not avoid concluding that the contents of the e-book were published or at least endorsed by al-Qaeda and further, that the e-book was published on the Internet because that was the forum preferred by al-Qaeda.

The appellant emphasised that although there was no evidence establishing that the appellant had any direct links with al-Qaeda or with the authors of the material contained in the e-book, "the material, to which the articles referred, effectively closed that gap, by asserting that the Appellant was a sponsor of, or participant in, terrorism."

The appellant did not agree that the risk of prejudice was minimised because he had used the magazine as a forum in which to deny the allegations. The appellant drew attention to a number of United States authorities which recognised the tendency on the part of juries to regard false or incorrect assertions as 'facts' notwithstanding their vehement denial by the witness (see, eg, Scheri v DePaolo 68 NJ Super 297, 172 A 2d 233; Ebron v United States 838 A.2d 1140 cf United States. v Pugh, 436 F.2d 222, 225 (C.A.D.C. 1970)).

It was submitted that the source of the material further elevated the risk of prejudice. Not only was material conveyed in a television program that was likely to be regarded by the jury as a reputable source of current affairs information (ABC v Comalco Ltd (1986) 12 FCR 510 at 520 per Smithers J); that material was said to have originated from governmental intelligence agencies including the CIA. The appellant submitted that the jury:

"might quite legitimately assume that such intelligence agencies would (or at the very least should) be aware of who is involved in terrorist activity. There is a particular danger when the prejudicial information is said to come from an authoritative source. See, e.g., R v. McCann (1991) 92 Cr.App.R. 239 per Beldam LJ..."

According to the appellant, no direction was capable of curing the unavoidable prejudice caused by the introduction of the disputed articles.

CROWN SUBMISSIONS

The Crown asserted that the material was not so damaging as to require the discharge of the jury. It distinguished R v Halliday [2009] VSCA 195 (in which a document containing prior convictions was inadvertently put before the jury) and Pak v R [2000] WASCA 309 (in which evidence of bad character was inadvertently led in cross-examination) from the present case. It argued that it is ultimately for the trial judge to determine whether in the interests of a fair trial, there is a need for the jury's discharge (R v Hortis [2004] VSCA 143 per Nettle JA at [18], citing R v Boland (1974) VR 849 at 866; R v Vaitos (1981) 4 Crim App R 238 at 243 and R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533).

The Crown submitted that the material contained in the disputed articles was of a different nature to evidence of a prior criminal record, bad character or antecedents. It was submitted that the material was evidence of the appellant's support for a terrorist group, a fact in issue which went to a core requirement of the offence, namely, that the appellant knew of the connection between the e-book and assistance in a terrorist act. It was submitted that:

"references to assertions of the Appellant's involvement in acts of terrorism which he chose to publish in a publicly available magazine in order to refute them are a far cry from inadmissible evidence of prior criminal acts, much less criminal acts of terrorism."

The Crown argued that R v Wood involved prejudice of an entirely different order to that involved in the present case. The prejudice in that case was occasioned by "constant press material during the course of the accused's trial for a terrorist offence [as well as] the trial judge's slanted summing up against the accused."

It was argued that the trial judge's direction was sufficient to guard against the possibility that the jury, knowing that the charge related to terrorism, would attach undue significance to the material. There was a clear direction to:

"put completely to one side the allegations against the Appellant in the Four Corners program of links to al Qaeda and funding of terrorist acts, which he strongly refuted through the magazine itself, and [to] objectively consider the evidence brought against him on the specific charges in the indictment."

It was submitted that it was relevant that the appellant himself refuted the allegations. He was not merely "attempting" to refute them (as contended by the appellant) but refuting them in no uncertain terms. The submission reads:

"The articles contain detailed arguments in support of their themes that the program and newspaper stories were untrue, unfair, unbalanced and calculated to inflame community passions against Australian Muslims, using the Appellant and his brother as the vehicle for the attack. The program and newspaper articles had plainly been widely disseminated in the community. The magazines containing the refutations were openly published and distributed. Each of the magazines is bilingual, containing an Arabic portion and an equivalent English portion. Rather than constitute irrefutable evidence of bad character of the kind exemplified in Crofts and Marec, they present the Appellant as the innocent victim of a malicious media campaign 'inciting hatred against Muslims in Australia' (close of first article)." (emphasis in original)

The Crown said that the United States authorities referred to by the appellant were not relevant as they concerned assertions put to witnesses in the course of cross-examination. Further, they did not take account of the principle recognised by Gleeson CJ in R v VPH (Unreported, New South Wales Court of Criminal Appeal, 3 March 1994 at 7) that appellate courts in this country have no choice but to assume that juries understand and comply with the directions given to them by trial judges.

The Crown made a number of submissions in response to the appellant's assertion that the source of the material increased the potential for prejudice. First, it was said that Smithers J in ABC v Comalco was not suggesting at 520 that the ABC or its Four Corners program "had any particular reputation for truth and accuracy in relation to the content of its programs." Having reviewed the relevant portion of Smithers J's judgment, I would agree. Second, it was submitted that the appellant's reliance on R v McCann & Ors (1991) 92 Cr App R 239 was misplaced. That case concerned a government announcement, aired by the BBC at a critical stage of the trial, to the effect that the right to silence would be narrowed by legislation. The announcement attracted significant publicity and the support of Lord Denning, who stated publicly that the right to silence was a right exercised by the guilty. The trial judge's decision to refuse to discharge the jury was overturned on appeal. It was submitted by the Crown that "nothing about the articles in question comes close to the extreme prejudice discussed in McCann."

The Crown submitted that any unfair prejudice occasioned to the appellant as a result of the tender of the disputed articles was remedied in the trial judge's directions to the jury and accordingly that the present case is distinguishable from Crofts and Maric.

DETERMINATION

The appellant's purpose in tendering the magazine was to demonstrate that the e-book was, like the magazine, a legitimate literary publication. The prosecutor sought to rely on the disputed articles as evidence that the appellant was a member of the IYM but urged the jury to disregard the allegations contained in the disputed articles.

The trial judge gave numerous directions in relation to the disputed articles. The jury was advised in clear terms that the appellant was not being tried for crimes of terrorism or for being a member of al-Qaeda. He was not accused of having any direct communications with al-Qaeda operatives. At its highest, the Crown case suggested that the appellant had been an al-Qaeda enthusiast. The jury was reminded of the fallibility of media outlets and of the fact that the allegations were strongly denied by the appellant in the disputed articles themselves.

In my judgment the directions given by the trial judge were adequate to deal with the issues which had arisen. I am satisfied that the jury was made aware of the limited purpose for which the Crown relied on that evidence. The prosecutor and the trial judge took various opportunities to caution the jury against improper use of the disputed articles. The trial judge was alive to the atmosphere of the trial and to the disposition of the jury and was in the best position to assess whether the circumstances demanded the jury's discharge (El Hassan v R [2007] NSWCCA 148 per Hunt AJA at [15], citing House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505; Kanaan & Ors v R [2006] NSWCCA 109 at [50]; R v Ngo [2003] NSWCCA 82 at [49]; R v Ball (1960) 61 SR 37 at 41-42; see also GAR v R (No 2) [2010] NSWCCA 164). I am not satisfied that the trial judge's refusal to discharge of the jury occasioned a risk of a substantial miscarriage of justice (Crofts at 441).

The arguments ventilated in relation to this issue are illustrative of the tensions which have increasingly emerged between the unfair prejudice which may be occasioned to an accused when the jury receives information which it should not have had (whether in evidence or otherwise) and the jury's capacity to act on instruction given to it by the trial judge. If the assumption of the common law that jurors understand and follow the judge's instruction is to be more than hollow rhetoric it is important that appellate courts pay appropriate respect to the discretion of the trial judge who is in a far superior position to the appellate court to appreciate the atmosphere of the trial and determine whether appropriate instruction will ensure that the trial is fair.

Although not adverted to by the trial judge, given the appellant's propensity for publishing material relating to jihad and apparent support for assassination it would hardly have come as a surprise to the jury that he was under suspicion from security authorities. It was an inevitable background to the charges which were laid by the Crown.

I would dismiss this ground of appeal.

Ground 2 Alleged misdirection with respect to delay by authorities in seeking the removal of the book from the Almaqdese website

In his closing address, counsel for the appellant submitted that the evidence clearly established that ASIO and the Australian Federal Police had delayed in procuring the removal of the e-book from the Internet. These agencies had known about the e-book when it was uploaded onto the Almaqdese website in September 2003 yet, according to the appellant, took no active steps to have it removed until May 2004. It was submitted that, given the delay, the jury was entitled to conclude that the elements of the charge were not made out. The trial transcript reads, relevantly:

"Authorities knew about it, you might think, within a reasonable time. Nothing was done. Nothing. This conduct said by the Crown to have posed such a terrorist threat didn't cause the authorities to act. What were they waiting for, the thing to happen? We know it never happened anyway. Or was it the case that the authorities really didn't think back then that it was the thing that they now claim it to be? Of course, we had the intervening - before the events in September/October '03 and the date of arrest in June of '04, almost a year later, we had the interviews, search of a home.

The Crown can only say in relation to the home, 'Well, look, we rely on the book. Our case is the book, the book, the book, the book. That's enough.' Or, what, is it not a legitimate point that when they raided the home they did so for a purpose? They did so, you might think, in the belief that something would be produced. And yet there is no evidence. They took the computer, they took a copy of the computer, went through the home. Not one piece of evidence to support the allegations that are made in this case."

In her Honour's summing-up, the trial judge directed the jury to disregard that portion of the appellant's closing address. Her Honour remarked:

"It would be wrong and perverse to assume, as [counsel for the appellant] invited you to do, that one explanation for the arrest of the accused some time after he first came to the notice of the authorities was that the prosecution was waiting for a terrorist act to be committed.

There is no evidence of that and, in fact, the evidence supports a completely different explanation, namely, that a careful translation of the document was necessary before the serious step of laying criminal charges could be taken..."

Counsel for the appellant addressed her Honour on this direction in the absence of the jury. Her Honour quite rightly questioned how any delay on the part of the authorities could bear upon the jury's consideration of the elements of the charge. Counsel for the appellant responded as follows:

"Well, the imputation is - well, those in authority, who were dealing with this matter, may or may not themselves have perceived this material as being anything but advocacy."

The appellant now asserts that the trial judge misunderstood the appellant's submission. It is said that her Honour assumed that the evidence of the delay was being relied on as a form of opinion evidence to establish that the authorities did not believe that the appellant was guilty of the offence. The true purpose was said to be to demonstrate that the authorities did not consider the e-book to have posed a threat of imminent danger. As a result, it was said, the jury could not conclude that there was a connection between the e-book and assistance in a terrorist act as required by s 101.5(1)(b) the Code. If the jury was entitled to consider the evidence of Dr Kohlmann in determining that the e-book did pose an imminent threat, then it was also entitled to consider contrary evidence adduced by the appellant.

It was submitted that the trial judge's direction to the jury was "particularly harmful" to the appellant because it required the jury to ignore evidence favourable to him (that the e-book could not assist a potential terrorist) and because it personally criticised the appellant's trial counsel.

It was said that the jury's inability to reach a verdict in respect of Count 2 demonstrated that the evidence about the e-book's utility to a potential terrorist was critical, and that any contrary evidence was of fundamental importance to the appellant's defence to Count 1.

DETERMINATION

As the Crown observes, no evidence was elicited at the trial to suggest that either ASIO or the Australian Federal Police had the means to compel the removal of the e-book from the Almaqdese website. In those circumstances, I doubt very much whether it could be said that the authorities "delayed" in procuring the removal of the e-book from the Internet. Leaving that to one side, the difficulty with the appellant's submission, even as rephrased or clarified, is the opinion evidence rule. As the Crown submitted:

"Just as an ASIO or AFP officer could not give admissible evidence that in his/her opinion the Appellant had not done anything wrong, the jury were not entitled to take into account in arriving at their verdict whether the authorities were of the opinion the book did not constitute an imminent danger and for that reason was not connected with assistance in a terrorist act." (reference omitted)

I do not accept the appellant's submission that he was "entitled" to adduce evidence that the e-book posed no imminent threat. Dr Kohlmann was the only witness to give evidence on the e-book's connection with assistance in a terrorist act. He was never asked whether the e-book posed a threat of imminent danger. I accept the Crown's submission that the Appellant's argument is underpinned by the incorrect proposition that a document which does not constitute an imminent danger is thereby not connected with assistance in a terrorist act.

There being no evidence that the e-book posed a threat of imminent danger, it cannot be said that her Honour's direction removed from the jury's consideration "evidence capable of supporting defence counsel's submission that the book was incapable of assisting a potential terrorist."

I do not believe that her Honour's direction unduly criticised counsel. Nor is it appropriate to speculate upon the jury's reasoning process in relation to Count 2 and to extrapolate from that an inference that the "evidence" was improperly excluded from the jury's consideration in relation to Count 1.

This ground of appeal should be dismissed.

Ground 3 Alleged misdirection with respect to the words "connected with"

Section 101.5(1)(b) of the Code requires that the relevant document be "connected with preparation for, the engagement of a person in, or assistance in a terrorist act." The Crown case proceeded on the basis that the e-book was "connected with...assistance in a terrorist act."

At the trial, the appellant's counsel sought a direction in the following terms:

"The words 'connected with' mean that the book must itself have been capable of directly assisting in the commission of a terrorist act. A mere remote connection will not suffice."

The trial judge declined to direct the jury in those terms, instead directing that the words "connected with" be given their ordinary meaning. Her Honour told the jury:

"So, let me go to element (c). You will see that the focus of this element is on the connection between the document ... and assistance in an action or threat of action against certain persons. Now, this is an element that depends upon an examination of the contents of the document, nothing more, nothing less. We are only concerned about what the document says objectively. It is a matter for you to determine, because it is simply an objective factor, namely, is the document, connected with assistance in a terrorist act?

The phrase 'connected with assistance in an action or threat of action' has no special or technical meaning. You should interpret that phrase according to its plain English meaning. If you are satisfied beyond reasonable doubt that any part of the document is connected with helping or facilitating the commission of an action or threat of action against any one of the persons that are set out in the particulars, then the Crown has proved that element of the offence.

It does not matter if the document is not connected with a specific action or threat of action, or if it is connected with more than one action or threat of action. As long as the Crown has proved beyond reasonable doubt that the document is connected with an action or threat of action of the kind specified in the charge, that is sufficient to prove this element."

The appellant modified his position on appeal. It was said that the jury should have been directed that, before the necessary connection could exist, the e-book must have factually and appreciably furthered the commission of a terrorist act, making it "more likely" to take place.

The appellant's counsel filed supplementary submissions which appear to qualify this modified position. The supplementary submissions read:

"Whether or not the jury should have been told they had to treat the words in the way suggested by the appellant's counsel ... they should at least have been directed that more than a remote connection was required."

It seems that the appellant no longer claimed that a positive definition of the phrase "connected with" was required (whether in the terms originally advanced or as put on appeal). As I understand it, the appellant now simply contends that the jury should have been told that more than a remote or tenuous connection was required.

The appellant submitted that the words "connected with" did not have a plain English meaning that was "appropriate to all occasions". Accordingly, a restrictive interpretation was necessary to avoid latent ambiguity (Beckwith v R (1976) 135 CLR 569 at 576; Arnold v R (1993) NSWLR 73 at 86 - 87 per Abadee J).

Reference was made to the remarks of Spigelman CJ in R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [28] where the Chief Justice said:

"The phrase 'in connection with' is capable of considerable breadth, however it always takes its colour from its surroundings. The full scope of the dictionary definition is rarely, if ever, appropriate."

It was submitted that the "highly penal" statutory context in which the phrase appears (R v Novakovic [2007] VSCA 145; (2007) 172 A Crim R 414 per Ashley JA at [59]; citing Murdoch v Simmonds [1971] VR 887 per Adam J at 889) demands a more confined interpretation. The appellant cited the remarks of Hall J in Halpin v Department of Gaming and Racing (2006) 68 NSWLR 211 at [47] ("where provisions creating or extending criminal liability can reasonably be construed in two or more ways, they are to be given the narrowest of the alternative interpretations").

Reference was made to the decision in R v Zafar [2008] QB 810 which concerned an offence under s 57 of the Terrorism Act 2000 (UK) (the equivalent of s 101.4 of the Code), which reads:

"A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism." (emphasis added)

Lord Phillips CJ observed at [28] - [29] that considerations of certainty required that the phrase "for a purpose connected with" be defined narrowly. That approach was endorsed by Lord Osborne in Siddique (Mohammed Atif) v HM Advocate [2010] HCJAC, in which it was held that the phrase "in connection with" "requires a direct connection between the object possessed and the act of terrorism" (at [82]).

Following the hearing of oral argument the court drew the parties attention to the decision of the Victorian Court of Appeal in Benbrika & Ors v R [2010] VSCA 281. That case was concerned with an alleged breach of s 101.4 of the Criminal Code. The issue considered by the Court of Appeal was concerned with the direction to be given to the jury when a person is charged with possessing a "thing" which is "connected with preparation for a terrorist act."

No application was made to amend the grounds of appeal in the present case.

The appellant submitted that Benbrika decided that before Benbrika could be convicted three requirements must be proved. Firstly, there must be a terrorist act which is either proposed or contemplated, secondly some activity which assists that act and the thing must be intended to be used in aid or as part of that assistance.

It was further submitted that the "connection" contemplated in the section was informed by the intention or purpose of the person which existed at the time the thing was possessed.

The appellant submitted that Benbrika was an authority which this Court should accept to be binding and which provided the approach which this Court should take to s 101.5.

CROWN SUBMISSIONS

The Crown did not accept the appellant's assertion that the plain English meaning of "connected with" is so broad as to require some restriction in the context of the Act.

It was submitted that the true significance of Orcher lay in affirming that the meaning of phrases such as "in connection with" is heavily context-dependent: per Spigelman CJ at [30], quoting with approval Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146 ("The words 'in connection with' are words of wide import and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear"). Reference was also made to the remarks of Davies J in Hatfield v Health Insurance Commission (1987) 15 FCR 487. His Honour remarked at 491 that the words "in connection with" and similar phrases (e.g. "relating to", "in respect of") are likely to vary in meaning from statute to statute, and although theoretically capable of wide import, their meaning is generally confined by the context in which they appear.

The authorities which restricted the meaning of "for a purpose connected with" in the context of s 57 of the Terrorism Act 2000 (UK) were of no value. The offence under s 57 (possession for terrorist purpose) permits guilt to be proved on the basis of a reasonable suspicion that the possession is connected to the commission, preparation or instigation of an act of terrorism. Accordingly, it is unsurprising that s 57 was interpreted to require a direct connection between the object possessed and the terrorist act.

The Crown drew attention to the decision of R v Lodhi [2006] NSWSC 691 which also concerned an offence under s 101.5(1) of the Code. The offender had collected maps which were intended to be used in the preparation for a bombing of Australia's electricity supply system. Whealy J directed the jury in the following terms:

"The words 'in connection with the preparation for an action or threat of action' really underline that we are concerned with actions taken, for example the collection of documents, where the documents themselves are connected with preparation taken towards the implementation, and hence in advance, of the projected act. Now, in relation to that, you need to understand that the concept of preparation requires proof of something intended to advance the implementation of the projected terrorist act."

It was submitted that the directions given by the trial judge in the present case accorded with those given by his Honour in Lodhi.

In its supplementary submissions, the Crown argued that the trial judge's directions relating to knowledge prevented the jury from acting on a remote connection. Those directions were in the following terms:

"The elements of the offences, which the Crown must prove beyond reasonable doubt, are as follows:-

Count 1

...

(e) The accused knew (that is, he was aware) at the time he made the document, of the connection between the document and assistance in the action, or threat of action, referred to in (c), that is:

i) he was aware of the action, or threat of action, referred to in (c) ; and

ii) he was aware of the intention by that action, or threat of action, to advance a political, religious or ideological cause, namely, the advancement of the Muslim religion in the world, including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christian and other non-Muslims from that region ; and

iii) he was aware, by that action or threat of action, it was intended to coerce or influence by intimidation one or more of the following - the Government of the Commonwealth, the government of a foreign country, or to intimidate the public or a section of the public ; and

iv) he was aware that the action or threat of action, if carried out, would cause serious physical harm to a person; or serious damage to property; or a person's death; or endanger a person's life, other than the life of the person taking the action; or create a serious risk to the health or safety of the public or a section of the public; and

v) he was aware that the action or threat of action was not advocacy, protest, dissent or industrial action OR he was aware that the action or threat of action was intended to cause serious physical harm to a person; or a person's death; or was intended to endanger a person's life, other than the life of the person taking the action; or was intended to create a serious risk to the health or safety of the public or a section of the public."

It was said those directions "necessarily excluded the possibility of a conviction based on an indirect or remote connection" and accordingly there was no need for the direction which the appellant argues was required.

Finally it was submitted that this Court should apply the proviso in the event that error was found with respect to the directions given by the trial judge.

DETERMINATION

The initial question is whether the trial judge was required to direct the jury that more than a remote or tenuous connection between the e-book and the relevant assistance was required.

Section 101.5 of the Code creates a serious criminal offence punishable by a maximum of 15 years imprisonment. The offence falls within Part 5.3 of the Code. Part 5.3 was originally inserted into the Code by the Security Legislation Amendment (Terrorism) Act 2002 (Cth). The second reading speech to that Act reads, relevantly:

"No country has ever been immune to the threat of terrorism. While there is no known specific threat of terrorism in Australia at present, we must ensure that we are as well prepared as possible to deal with the new international security environment. Terrorist forces, through violent and intimidatory methods, are actively working to undermine democracy and the rights of people throughout the world.

We must direct all available resources, including the might of the law, at protecting our community and ensuring that those responsible for threatening our security are brought to justice. And we must do so as swiftly as possible. The Howard Government emphatically rejects any suggestion that because we have not experienced any direct terrorist threat in Australia since September 11 this package of legislation is not justified or is an over-reaction. We are actively involved in the war against terrorism. We cannot assume that we are not at risk of a terrorist attack. We cannot afford to become complacent. And we should never forget the devastation of September 11. The Howard Government takes very seriously the responsibility to protect Australia against terrorism. We will be seeking to bring this important package of legislation on for debate as soon as possible."

The significance of the events leading to the enactment of Part 5.3 cannot be overstated. The explanatory memoranda to Part 5.3 make plain that the legislative intention underpinning that Part is to eradicate the threat and occurrence of terrorist acts in Australia. Although there is no "purpose clause" specific to Part 5.3, Parliament's intention in enacting the offence under s 101.5(1) of the Code is discernable from s 100.4 (which extends Part 5.3 to preliminary acts that concern terrorist acts but are not in themselves terrorist acts) and from s 100.6 (which preserves the operation of State and Territory laws). That Part 5.3 was intended to operate expansively gains support from the judgment of Spigelman CJ in Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 at [66]:

"Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."

That same legislative policy is found in s 101.5(3)(b) of the Code, which reads:

"A person commits an offence under subsection (1) or (2) even if ... the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act..."

The question is not whether the words "connected with" give rise to ambiguity, but whether the words "the document is connected with ... assistance in a terrorist act" give rise to ambiguity. As the Victorian Court of Appeal said in Benbrika at [323], "it is erroneous to construe the words 'connected with' in isolation from their context."

A connection can exist between innumerable things and occur in almost innumerable ways. Whether the e-book was connected with assistance in a terrorist act was a question of fact for the jury, applying its understanding of the relevant words.

The appellant argued that the trial judge should have imposed a qualification on the words of the statute so that the jury were instructed that "more than a remote connection was required." I do not accept the submission. The words in "connection with" are ordinary words which the jury were obviously capable of understanding. I accept that the connection must be more than ephemeral but I see no reason why the jury should have been given a judicial gloss on the words used by the legislature. There is nothing in the legislation to suggest that the jury should be required to do other than apply their ordinary understanding of the words "connected with" to the fact finding required of them. If they consider the alleged connection to be ephemeral or so remote that it could not be described as "connected with" the relevant assistance, they would respond accordingly.

Benbrika was concerned, inter alia, with an offence under s 101.4(1) of the Code, which reads:

"101.4 Possessing things connected with terrorist acts

(1) A person commits an offence if:

(a) the person possesses a thing; and

(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b)."

The charge in Benbrika related to the possession of a "thing" being a compact disc containing extremist literature, videos and images ("the Mansura CD"). Copies of the Mansura CD were found at two of the accused's premises. The trial judge directed the jury in the following terms:

"The second thing that the Crown has to prove is that the [Mansura] compact disc was connected with preparation for a terrorist act.

In the context of this case, what that means is that the compact disc had some sort of connection to, or relationship with, a terrorist act, and, in the circumstances of this case, that means no more than that if you were satisfied that the organisation of which Benbrika was a member, if you found that he was a member, was engaged in fostering or preparing a terrorist act, that terrorist act, whatever it was, would be sufficient to found that connection if you thought that something on the CD was connected with a terrorist act. 'Connected with' is a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act (Court of Appeal's emphasis)."

A question on appeal was whether a "direct connection" between the Mansura CD and preparation for a terrorist act was required. The Court of Appeal (Maxwell P, Nettle and Weinberg JJA) said:

[324] The question is not, as the English cases suggest, whether there is a direct connection between the thing and the act of preparation. It is rather whether the connection, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term 'connected with'. The possession of innocuous and everyday items, such as a cheque book, even one intended to be used, as one of its purposes, for a nefarious end, is not sufficient, in our view, to meet the statutory requirement. ... (references omitted)."

I respectfully agree with this approach and adopt it in relation to the question in the present appeal.

There was a particular problem in Benbrika which is not present in the present case. Because the relevant thing was an inanimate object Benbrika's possession of it may have been innocuous. The thing alone could not determine whether there was the relevant connection. For this reason the court said that before Benbrika could be found to have committed an offence against the statute there had to be a terrorist act for which preparatory activity was, at least, in contemplation [338]. Once this was recognised the problem with the trial judge's direction becomes apparent.

The trial judge directed the jury that "connected with" was:

"a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act."

The omission which caused the problem was the failure to refer to "preparation" for the terrorist act which informed the nature of the required connection. The Court of Appeal identified the problem and said:

"Used in s 101.4(1) the phrase does have a particular meaning. It means that the thing must be shown to have been 'connected' with preparation for a terrorist act' by virtue of some person's having had the purpose of using the thing in, or in aid of, preparation for the terrorist act."

In the present case the appellant was charged with making a "document connected with assistance in a terrorist act." The connection which the prosecution identified was said to be found within the document itself which described methods of assassination, being terrorist acts, organisation of effective assassination teams and identified prospective targets for assassination. There was more but this is sufficient to identify the fact that the document itself described a variety of terrorist acts from which the jury could conclude that the document was connected with assistance in a terrorist act. They were the acts contemplated by the appellant (Benbrika [338]). Proof of a specific terrorist act was not required.

The trial judge took a different approach to the trial judge in Benbrika. Her Honour told the jury that the phrase "connected with assistance in an action or threat of action" has no special or technical meaning. She directed their attention to the particulars saying:

"If you are satisfied beyond reasonable doubt that any part of the document is connected with helping or facilitating the commission of an action or threat of action against anyone of the persons that are set out in the particulars, then the Crown has proved that element of the offence."

The particulars identified persons including diplomats, military personnel and holders of public office. Her Honour continued:

"It does not matter if the document is not connected with a specific action or threat of action, or if it is connected with more than one action or threat of action. As long as the Crown has proved beyond reasonable doubt that the document is connected with an action or threat of action of the kind specified in the charge, that is sufficient to prove this element."

By taking this course her Honour, as was appropriate, confined the jury's deliberation to the issues raised at the trial and directed the jury's attention to the content of the document which the appellant was proved to have created. Her Honour's direction was faithful to the words of the section and placed the words "in connection with" in their appropriate context. Her Honour did not, as occurred in Benbrika, place any gloss on those words. The jury were not invited to act upon "some connection" or a "remote connection." They were instructed to look at the document and determine from the document whether the Crown had proved the relevant connection.

I would dismiss this ground of appeal.

Ground 4 Alleged error with respect to the application of s 101.5(5) of the Code

There are two fault elements for the offence constituting count 1 on the indictment. The first is that the appellant intentionally made the document. The second is that he knew that the document was connected with assistance in a terrorist act. Section 101.5(5) (para [2] above) provides a possible defence. It provides, inter alia, that s 101.5(1) will not apply if "the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act." The defendant bears an evidential burden in relation to the defence. Section 13.3(3) is in the following terms:

"A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification in relation to an offence bears the evidential burden in relation to that matter."

Section 13.3(6) further provides:

"(6) In this Code:

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist."

Whether the evidential burden has been satisfied is a question of law (s 13.3(5)). If a defendant discharges that burden, the prosecution must then disprove it beyond reasonable doubt. Sections 13.1(2) and (3) provide:

"(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

(3) In this Code:

'legal burden', in relation to a matter, means the burden of proving the existence of the matter."

At the trial, counsel for the appellant made an application for a direction in the following terms:

"If there is a reasonable possibility that the appellant did not make the book with the intention of facilitating assistance in a terrorist act, then the jury must be satisfied beyond reasonable doubt that the making of the book was intended to facilitate assistance in a terrorist act."

Counsel for the appellant drew the trial judge's attention to evidence which, he submitted, supported the relevant inference. Her Honour ruled that the defence had not been engaged or, if it had, that the appellant had not discharged his evidentiary burden.

As to the issue of engagement, her Honour remarked:

"When pressed to explain what was to be submitted to the jury as to the accused's intention in making the book, the answer was, and I quote, 'The accused intended to support the Islamic religion by compiling a reference book containing the views of authors concerning the role and rules of Jihad in the Islamic religion.' That was later amended by the addition of the words 'by lawful means' after the word 'intended'. That adds nothing to the submission but merely restates that the accused denies liability. ...

However, ultimately the only direction sought by Mr Thomas and Mr Lange is that outlined at paragraph 2 of these reasons. It was submitted that no other direction was necessary. The reluctance to express the accused's case in terms of what he intended as opposed to what he did not intend exposes the flaw in the accused's submission that section 101.5(5) applies in the circumstances of this trial.

... Whilst it is true that section 101.5(5) states that liability is avoided where there is no intention to facilitate assistance in a terrorist act, the note to the subsection refers to 'the matter' in subs 5 and to section 13.3(3).

The latter provision and section 13.3(6) make it clear that, 'An exception, exemption, excuse, qualification or justification,' is 'the matter' and that its existence or non-existence may be suggested as a reasonable possibility by the evidence relied upon to discharge the burden. It is also clear that a fault element is not a matter; see section 13.1(1) and (2).

It is therefore difficult to accept the proposition that the matter relied upon by the accused as the exception is, in effect, the fault element which the Crown must negative beyond reasonable doubt."

Her Honour then addressed the sufficiency of the evidence said to suggest an absence of intention. Her Honour's reasons read, relevantly:

(4) Liberty to either party to apply for further directions.

McCALLUM J: I have had the benefit of reading in draft the judgments of both the Chief Judge at Common Law and Hall J. As to grounds 1 and 2, I respectfully agree with the Chief Judge, for the reasons given by his Honour. I also agree with the Chief Judge that the third ground of appeal should be dismissed. In the case of that ground, however, my reasons differ slightly from those given by his Honour. My reasons are stated below.

As to ground 4, I respectfully agree with Hall J that the learned trial judge erred in concluding that the appellant had failed to satisfy the evidential burden borne by him in relation to section 101.5(5) of the Code. In my view, the question whether the appellant's conduct fell within the exception under 101.5(5) of the Code should have been left to the jury. In respect of that ground, I am of the same view as Hall J as to the application of the proviso to s 6(1) of the Criminal Appeal Act. I am not able to conclude that no substantial miscarriage of justice has actually occurred. Accordingly, the proviso does not apply.

In light of the nature of issue raised by ground 4, being a challenge to the determination of a question of law as to the satisfaction of an evidential burden, I consider it appropriate to state my own reasons for the conclusion I have reached. Those reasons are also stated below.

Ground 3: alleged misdirection with respect to the words "connected with"

The detailed analysis in the judgments of the Chief Judge and Hall J permits me to state my reasons briefly. The starting point is to recall that offences under the Criminal Code consist of physical elements and fault elements: see section 3.1(1) of the Code. As explained by Whealy J (as his Honour then was) in R v Lodhi [2006] NSWSC 584 at [79] to [86], the offence under section 101.5 of the Code has as its first physical element the making of the document. No fault element is specified in respect of that physical element. It follows, in accordance with section 5.1 of the Code, that the fault element in relation to the physical element of making the document is intention to make the document.

The requirement that the document be connected with (in the present case) assistance in a terrorist act is the second physical element of the offence. Specifically, it is a circumstance in which conduct (the making of the document) occurs: see section 4.1 of the Code. The fault element specified in respect of that second physical element is the requirement in section 101.5(1)(c) that the person know of the connection described in paragraph 101.5(1)(b). Nothing in the judgments of the Court of Criminal Appeal allowing an appeal from the decision of Whealy J in Lodhi derogates from his Honour's analysis of those matters: see Lodhi v R [2006] NSWCCA 121 at [80] to [91] per Spigelman CJ; McClellan CJ at CL relevantly agreeing at [96]; Sully J agreeing at [111].

Importantly, the content of the elements of the offence is informed by the definition of "terrorist act" in section 100.1 of the Code. The term "terrorist act" means an act done with certain specified intentions. In the appeal in Lodhi, the Chief Justice explained that the intentions there specified are not fault elements of the offence:

Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being a "circumstance" within s4.1(1)(c) of the Criminal Code.

In Benbrika, the Crown submitted in respect of an offence under section 101.4 of the Code that the determination as to whether the thing possessed was "connected with preparation for ... a terrorist act" was an objective question. The court rejected that submission, stating (at [314]):

We do not see how an inanimate object can have an 'objective' connection with an act of terrorism. The proposition could only be valid if the object had some property or characteristic which (independent of any person's subjective intent with respect to the object) connected it with a terrorist act. However, even the quintessential item of terrorist equipment, a bomb, has no such necessary 'objective' connection with a terrorist act. A bomb may be used for one of a number of possible purposes - or for none at all. Whether a bomb possessed by a particular accused is connected with (preparation for) a terrorist act must, necessarily, depend upon the circumstances of his or her possession, and on the surrounding circumstances.

The court held that "as a matter of ordinary language", a thing cannot be said to be connected with preparation for a terrorist act unless the following requirements are satisfied (at [315]):

(a) a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be);

(b) some activity in preparation for that terrorist act is under way, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) ('preparatory activity'); and

(c) the thing is being used, or is intended to be used, in aid of that preparatory activity.

By way of fuller explanation as to why such requirements should be read into the language of section 101.4(1)(b) of the Code, the court (at [318]) discussed the example of possession of an ingredient for a bomb or a bomb-making manual and expressed the view that "the fact that the item in question was capable of being used, or was suitable for use, in connection with a terrorist act could not be enough". A footnote contrasted the position under section 58(1) of the Terrorism Act 2006 (UK). The court concluded that "the connection" required under section 101.4(1)(b) is not a property of the thing itself but rather a function of the intention or purpose which must be shown to have existed (at the time of possession) with respect to both the terrorist act and the use of the thing.

I would respectfully disagree with that conclusion. In my view, the analysis in Benbrika overlooks the distinction specified in the Criminal Code between the physical elements and the fault elements of an offence.

I acknowledge that, in some instances, the only connection of a thing with preparation for a terrorist act would be the fact that some person (not necessarily the person in possession of the thing) had the purpose of using it in aid of a terrorist act. The case of possession of a cheque book discussed in Benbrika is an obvious example. In my view, however, it inverts the logic of that illustration to hold that the "connection" which the section requires is not a property of the thing itself but rather a function of the intended use of the thing at the time of possession.

Against that analysis, I would respectfully disagree with Hall J that a document cannot be said to satisfy the requirement that it be "connected with...assistance in a terrorist act" within the meaning of section 101.5 of the Code unless requirements such as those identified in Benbrika are satisfied. His Honour has concluded that, to satisfy such requirements in the present case, there would need to be evidence in the Crown case as to the following:

(1) That a terrorist act was, at the time of the making of the book, in contemplation or that a decision had been made by a person to undertake a terrorist act or that there was a proposal for a terrorist act or that such an act was in its preparatory stages.

(2) That the appellant knew of facts concerning the fact that a terrorist act was in contemplation or planned or that a decision to commit such an act had been made or that a proposal existed to that end or there was or would be preparation in relation to a terrorist act.

In my opinion, to read such requirements into section 101.5(1)(b) of the Code erroneously imports a fault element into a physical element of the offence. The fault element in respect of the requirement that the making of the document be connected with assistance in a terrorist act is the requirement of section 101.5(1)(c) that the person know of the connection.

As I have already acknowledged, in the case of an anodyne object such as a cheque book, neither the objective connection, nor knowledge of it, will be established unless some person planned or intended its use in a relevant way. That example serves to illustrate that, in some cases, proof of the physical element of "connection with" assistance in a terrorist act will require proof of a particular terrorist act in the contemplation of some person. In my view, however, there is no warrant for generalising a gloss on the words of the section from that particular example.

As I would see it, to the extent that the proper construction of the statute should include requirements of the kind sought to be read into section 101.5(1)(b) according to the analysis of Hall J (or of the kind sought to be read into section 101.4(1)(b) according to the analysis in Benbrika), those requirements are contained within the definition of "terrorist act". There can be no offence under section 101.5 unless the circumstance of connection with an action of that character (including the requirement that the action or threat of action be done with the specified intentions) is established. In the present case, the trial judge gave careful and helpful directions to the jury on that issue. Her Honour's directions were faithful to the relevant provisions of the statute and, in my respectful opinion, entirely correct (see summing up pages 50 to 65).

I am mindful of the principle relied upon on behalf of the appellant that an intermediate appellate court should not depart from the decision of another Australian intermediate appellate court as to the construction of uniform national legislation unless convinced that the interpretation was plainly wrong. The relevant authorities are collected in the judgment of Hall J. Mindful of that principle, I would respectfully hold that the principles stated at [315] of Benbrika should not be followed.

In my view, the directions given to the jury by the trial judge in the present case were appropriate, for the reasons stated by the Chief Judge.

Ground 4: alleged error with respect to the application of section 101.5(5) of the Code

The defendant bore an evidential burden in relation to "the matter in subsection (5)". The matter identified in that subsection is expressed as a negative proposition: the exception (to the offences created by subsections 101.5(1) and (2)) is where the document was not intended to facilitate one of the three relevant objects (preparation for a terrorist act, the engagement of a person in a terrorist act or assistance in a terrorist act). The Crown case against the appellant was put on the basis of the third of those objects, assistance in a terrorist act. As observed by the trial judge during the argument before her Honour, the only sensible construction of that requirement in the context of the present case is that the document was not so intended by the appellant.

The question whether the evidential burden had been discharged was a question of law: section 13.3 (5) of the Code. The question was, did the evidence pointed to by the appellant suggest a reasonable possibility that the document was not intended (by the appellant) to facilitate assistance in a terrorist act? Or, conversely, was it the case that the only reasonable possibility suggested by that evidence was that the document was intended (by the appellant) to facilitate assistance in a terrorist act?

Her Honour approached the determination of the application in two steps. First, leaving aside the evidence relied upon by the appellant, her Honour dealt with a matter to which she referred as a question of the construction of section 101.5 (see page 5.3 of the judgment).

Her Honour was evidently troubled by the fact that the evidence pointed to by the appellant to discharge the evidential burden was the same evidence as that relied upon by the Crown to prove the elements of the offence. Her Honour noted (at page 5.8 of the judgment) that it is clear that a fault element is not a "matter", citing section 13.1(1) and (2). It may be accepted that those provisions draw a distinction between the elements of an offence (dealt with in subsection 13.1(1)) and any "matter" in relation to which the defendant has discharged an evidential burden of proof imposed on him (dealt with in subsection 13.1(2)).

It does not follow, however, that a "matter" in relation to which there is an evidential burden on a defendant cannot be a state of mind of the kind identified in the definition of "fault element" in section 5 of the Code. Nor does it follow that a defendant may not point to the same body of evidence to discharge an evidential burden of proof in relation to a "matter" as that relied upon by the Crown to prove a fault element of the offence. The only question with which the Court need concern itself is whether the evidence relied upon suggests a reasonable possibility that the relevant matter exists (or does not exist, as the case may be).

The judge noted, apparently in reference to the question of the construction of section 101.5, that the effect of acceding to the application would have been to put the Crown to proof of a matter that amounts in substance to a fault element but which is not an element of the offence. Nonetheless, that is the clear effect of the section, in my view. So much is illustrated in the example given by the Crown in argument and referred to in her Honour's judgment of a terrorism consultant or advisor to government who collects material advocating the commission of terrorist acts in the course of his or her employment. Once it is accepted that such a person might readily point to evidence such as to bring himself within the exception in section 101.5(5) of the Code, it may be seen that the difference with the present case is one of degree, not of the proper construction of the section.

Accordingly, with great respect to her Honour, I do not agree that the fact that the evidence pointed to by the appellant was the very evidence relied upon by the Crown to prove the elements of the offence was in itself an impediment to the engagement of the exception in section 101.5(5) of the Code to the offences created by sections 101.5(1) and (2) of the Code.

Separately, her Honour determined that, if her construction of the section was wrong, the appellant had not discharged the evidential burden borne by him.

Her Honour observed that the circumstances and material relied upon by the appellant were not "objectively inconsistent with an intention to facilitate assistance in a terrorist act". Those remarks appear to have been construed by the appellant as revealing that her Honour misapprehended the question to be determined so as, in effect, to impose a legal burden of proof on the appellant, and not simply an evidential burden. The judge's remarks must, however, be read fairly and in the context of the exchanges during the hearing of the application. Her Honour expressly adverted in the judgment (at page 7.9) to the proposition that "the evidence taken at its highest need only be suggestive of the possibility of the absence of intention." I am not persuaded that her Honour misapprehended the evidential burden as a legal burden of proof.

However, a close consideration of the evidence pointed to on behalf of the appellant at the trial has persuaded me that her Honour's determination (that the evidential burden had not been discharged) must have entailed the application of a higher test than that imposed by an evidential burden under the Code.

I agree, as submitted on behalf of the appellant (citing the authors of the practice Federal Offences), that the critical concept that differentiates an evidential burden from a legal burden is the word "suggests". The view is there expressed that, having regard to the ordinary meaning of the word "suggests", a defendant need only adduce or point to evidence that brings the relevant matter to mind or places it before the court for consideration.

Further, as noted in the authorities relied upon by the appellant, where the relevant "matter" is a negative proposition, slender evidence might satisfy that requirement: R v Brauer (1989) 45 A Crim R 109 per Thomas J at 113.5; cited with approval in Jeffrey v DPP (Cth) (1995) 79 A Crim R 514 at 518.4 per Cole JA; Handley JA agreeing at 515. It may be acknowledged that the "robust examples" of that proposition given by Thomas J in Brauer are very different from the circumstances of the present case, where the matter in question is a state of mind the establishment of which will rest on inference. However, as acknowledged in Brauer at 114.2, a circumstantial case with a sufficient basis for an inference is all that is needed to surmount an evidential burden.

It is important, of course, not to overlook the requirement that what is brought to mind or placed before the court must amount to a reasonable possibility. A possibility that could be dismissed as being fanciful or beyond reason would not satisfy the evidential burden.

The material pointed to by the appellant is summarised in the judgment of Hall J. My own examination of all of the material in question has satisfied me that the evidence did suggest a reasonable possibility that the book was not intended by the appellant to facilitate assistance in a terrorist act.

It may readily be acknowledged that the chapter of the book headed "Reasons for Assassination" is deeply troubling. Plainly, it contains much in the nature of practical instruction in addition to religious rulings. It is difficult to know what inference should be drawn as to what was intended by its inclusion in the book. What are the possibilities as to why a person would republish a text openly seeking to motivate Mujahideen to revive the ritual of assassination? What is to be inferred from the introduction to the book written by the appellant, which concludes with a prayer that it would be "of benefit to everyone working to support this religion"?

In any event, it is neither necessary nor desirable for present purposes to speculate as to precisely what the book was intended to achieve so far as the appellant was concerned. The critical question is whether the only reasonable possibility is that the book was intended to facilitate assistance in a terrorist act. If the evidence pointed to by the appellant suggested a reasonable possibility that the book was not intended by him to achieve that object, the matter should have been left to the jury.

The hypothesis sought to be left to the jury was that the book was "not a terrorist manual, but rather a collection of works on the topic of jihad, published over many centuries, some controversial, others not, some by authors of great repute, and some in a form of Arabic which would not today be readily comprehensible to an ordinary Arabic speaker." The appellant pointed to evidence in the Crown case to support each of the factual propositions underlying that contention. It included evidence that the religious rulings in the book were properly sourced. There was evidence capable of establishing that the appellant was a journalist by occupation; that he had been involved in the publication of a magazine concerned with discussion of religious issues and that he held an extensive personal library with an emphasis on religious rulings.

There was ample evidence from which a jury could conclude that the appellant's intention was to support his religion by preparing and publishing a properly-sourced collection of writings including religious rulings and other pieces condoning, and indeed encouraging, the ritual of assassination. Was the unequivocal purpose of doing so to facilitate assistance in a terrorist act? I think there was a reasonable possibility suggested by the evidence that the book was not intended by the appellant for that particular purpose.

A point made by counsel when the matter was argued before the trial judge was that, for the purposes of section 101.5(1), "the mere urging of a terrorist act is not sufficient". Whilst such conduct might be criminalised under section 101.1 of the Code, it would not be captured by section 101.5 (see T664 lines 42-49). That argument alone, in my view, pointed to a reasonable possibility that the book was intended for some purpose different from that identified in section 101.5(5) (albeit one that sounded in count 2 on the indictment).

In my view, applying the definition of evidential burden in section 13.3 of the Code as I construe it, the evidence of those matters suggested, in the sense of bringing to mind or placing before the court, a reasonable possibility that the book was not intended to facilitate assistance in a terrorist act. I am accordingly satisfied that her Honour erred in concluding that the appellant had failed to discharge the evidential burden. The orders I propose are that the appeal be allowed, that the conviction be quashed and that there be a new trial.

ADDENDUM: Since preparing these reasons, my attention has been drawn to the decision of the High Court in Braysich v The Queen [2011] HCA 14. In that case, in the context of a prosecution under the Corporations Law of Western Australia, as incorporated into the Corporations Act 2001 (Cth), the majority of the court said (at [36] per French CJ, Crennan and Kiefel JJ, footnotes omitted):

If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:

1. In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?

2. In a case in which both the legal burden and the evidential burden rest upon the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?

The court was not there concerned with the definition of evidential burden contained in section 13.3 of the Code. It is doubtful, in my view, whether there is any difference in substance between the test posed by that definition and the test formulated in Braysich at [36](1), but for present purposes it is not necessary for me to resolve that question. It is enough to say that the application of the test in Braysich at [36](1) would not have lead me to any different conclusion in the present case.

**********

Decision last updated: 15 August 2012

Medium Neutral Citation:	Khazaal v R [2011] NSWCCA 129
Hearing dates:	6 October 2010
Decision date:	09 June 2011
Before:	McClellan CJ at CL at [1] Hall J at [177] McCallum J at [451]
Decision:	By majority: 1. Appeal allowed in relation to ground 4. 2. Conviction quashed. 3. Order a new trial.
Catchwords:	CRIMINAL LAW - appeal against conviction - s101.5(1) Criminal Code Act 1995 (Cth) - failure to discharge jury when prejudicial material inadvertently was admitted on behalf of defence at trial - directions to jury regarding delay in removing disputed material from internet - interpretation of the phrase "connected with" - "inconsistent verdicts" - application of the proviso - conviction quashed - new trial ordered. CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of appellant's character - deterrence - onerous bail conditions - manifest excess.
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code 1995 (Cth) Security Legislation Amendment (Terrorism) Act 2002 (Cth) Terrorism Act 2000 (UK) Terrorism Act 2006 (UK)
Cases Cited:	ABC v Comalco Ltd (1986) 12 FCR 510 Arnold v R (1993) NSWLR 73 Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485. Beckwith v R (1976) 135 CLR 569 Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 Benbrika & Ors v The Queen [2010] VSCA 281; (2010) 247 FLR 1 Board of Trustees of Keene State College v Sweeney 439 US 24, 99 S. Ct 295 Braysich v The Queen [2011] HCA 14 Brauer v DPP [1991] 2 Qd R 261; (1989) 45 A Crim R 109 Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146 Crofts v R [1996] HCA 22; (1996) 186 CLR 427 Driscoll v R (1977) 137 CLR 517; (1977) 15 ALR 47 at 69 Ebron v United States 838 A.2d 1140 cf United States. v Pugh, 436 F.2d 222, 225 (C.A.D.C. 1970) El Hassan v R [2007] NSWCCA 148 Elkateb v Lawindi (1997) 42 NSWLR 396 Fowkes v DPP [1997] 2 VR 506; (1996) 88 A Crim R 166 GAR v R (No 2) [2010] NSWCCA 164 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Halpin v Department of Gaming and Racing (2006) 68 NSWLR 211 Hatfield v Health Insurance Commission (1987) 15 FCR 487 Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195 House v R [1936] HCA 40; (1936) 55 CLR 499 Jayasena v R [1970] 1 All ER 219; [1970] AC 618 Jeffrey v DPP (1995) 121 FLR 16; (1995) 79 A Crim R 514 John Fairfax Publications Pty Limited v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 Kanaan & Ors v R [2006] NSWCCA 109 L v Director of Public Prosecutions [2002] 2 All ER 854 Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 Maric v R (1978) 20 ALR 513; 52 ALJR 631 Maxwell v DPP [1935] AC 309 Murdoch v Simmonds [1971] VR 887 Nolan v MBF Investments Pty Limited [2009] VSC 244 Pak v R [2000] WASCA 309 R v Ball (1960) 61 SR 37 R v Barot [2007] EWCA Crim 1119 R v Boland (1974) VR 849 at 866 R v Fowler (2003) 151 A Crim R 166 R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Halliday [2009] VSCA 195 R v Hortis [2004] VSCA 143 R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 R v Khazaal [2009] NSWSC 1015 R v Knape [1965] VR 469 R v Lodhi (2006) 199 FLR 364 R v Lodhi [2006] NSWSC 584 R v Lodhi [2006] NSWSC 691 R v McCann & Ors (1991) 92 Cr App R 239 R v Ngo [2003] NSWCCA 82 R v Novakovic [2007] VSCA 145; (2007) 172 A Crim R 414 R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 R v Postiglione (1991) 24 NSWLR 584 R v Puckeridge [2000] NSWCCA 193 R v Stafrace (1997) 140 FLR 427 at 432 R v Vaitos (1981) 4 Crim App R 238 at 243 R v VPH (Unreported, New South Wales Court of Criminal Appeal, 3 March 1994) R v Weaver [1967] 1 QB 353 R v Wood [1996] 1 Cr App Rep 207 R v Zafar [2008] QB 810 Rahman v R [2008] EWCA Crim 1465 Scheri v DePaolo 68 NJ Super 297, 172 A 2d 233 Siddique (Mohammed Atif) v HM Advocate [2010] HCJAC Stirland v DPP [1944] AC 315; [1944] 2 All ER 13 Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 Texas Department of Community Affairs v Burdine 450 US 248, 101 S. Ct 1089 Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 Winsor v R (1866) LR 1 QB 390
Category:	Principal judgment
Parties:	Belal Saadallah Khazaal (Appellant) Crown
Representation:	Counsel: I Barker QC/P Lange (Appellant) P Neil QC/S Callan (Crown) T Howe QC (Cth Attorney-General) Solicitors: Lawyers Corp Pty Ltd (Appellant) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2005/2994
Decision under appeal	Jurisdiction: 9111 Citation: R v Khazaal [2009] NSWSC 1015 Date of Decision: 2009-09-25 00:00:00 Before: Latham J File Number(s): 2005/2994