R v Abdirahman-Khalif

[2020] HCATrans 38

[2020] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A33 of 2019

B e t w e e n -

THE QUEEN

Applicant

and

ZAINAB ABDIRAHMAN-KHALIF

Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 20 MARCH 2020, AT 9.51 AM

Copyright in the High Court of Australia

MS S.M. McNAUGHTON, SC:   May it please the Court, I appear with my learned friends, MR P.J. DOYLE and MR C.J. TRAN, for the applicant.  (instructed by Commonwealth Director of Public Prosecutions)

MS M.E SHAW, QC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the respondent.  (instructed by Caldicott Lawyers)

KIEFEL CJ:   Yes, Ms McNaughton.

MS McNAUGHTON:   Thank you, your Honours.  In our submission, special leave should be granted in this matter as it clearly involves a matter of public importance.  Terrorist offences are quintessentially offences against the whole of the community which are intended to strike at the heart of our society.  Whether they be based around right‑wing extremism, jihadism or any other political or ideological cause, it is of public importance that the issue of what constitutes being a member of a terrorist group is resolved for future cases.  The issue of what is a terrorist organisation is also an issue for resolution.

KIEFEL CJ:   Is this the first occasion on which this question has arisen?

MS McNAUGHTON:   Yes.  It is a decision of the Court of Criminal Appeal - can I clarify that?  It is certainly – membership, it is the first time it has arisen for consideration ‑ ‑ ‑

KIEFEL CJ:   At an appellate level.

MS McNAUGHTON:   At an appellate level, but in the Benbrika Case, the issue of what an organisation and to a lesser extent what constitutes membership, but that really was not an issue, it was more what was an organisation in that case.

KIEFEL CJ:   An organisation, I see.

MS McNAUGHTON:   If the decision of the Criminal Court of South Australia is left to stand, this will have the practical effect, we contend, of limiting to a very fine confined set of circumstances the types of prosecutions able to be brought involving membership of terrorist groups.  Such a confined approach does not advance the purpose or object of the legislation and we also contend that the approach in Benbrika in the Victorian Court of Appeal is different to that of the approach of the majority of the Court of Criminal Appeal in South Australia and that is a matter that would need to be clarified.

It is a matter of public importance that this Court determines finally whether or not the prosecution must adduce evidence as to how a terrorist organisation admits members in order to prove that an accused person has taken steps to become a member of a terrorist organisation.  Our submission is that the majority created an additional hurdle which is not only not sourced in the text of the sections but also fails to have regard to the nature of terrorist groups such as Islamic State.

Can I make two preliminary observations as well.  In relation to the words of the inclusive definition of “membership” in section 102.1, even if a group did have a particular membership procedure or clear criteria, taking steps to become a member does not necessarily connote that you have to have embarked upon those particular steps or fulfilled any of that clear criteria.

KIEFEL CJ:   What do you say was the essential error in construction adopted by the majority?

MS McNAUGHTON:   We say that they imported into the definition the need for a procedure or clear criteria in order to illuminate what the steps were.  We say that is not required.

KIEFEL CJ:   Is it your argument that they focused upon traditional notions of membership?

MS McNAUGHTON:   Very much so.

KIEFEL CJ:   Justice Kelly adopted a different approach?

MS McNAUGHTON:   Yes.  She adopted the approach essentially of the trial judge, which we say is, with respect, correct, and that is, we say, a more modern approach to the nature of terrorist organisations such as IS or many other potential terrorist organisations.

KIEFEL CJ:   When you say “modern”, you mean with an appreciation of what such organisations are?

MS McNAUGHTON:   Yes, indeed.

KIEFEL CJ:   So that is what contextual and – a wider notion of contextual and purposes.  Is that the approach you say is necessary?

MS McNAUGHTON:   Yes, it is.

GAGELER J:   The majority seems to have been influenced to some extent by paragraph (c) of the definition, which does not fit particularly comfortably in your case, I think.

MS McNAUGHTON:   Paragraph (c) of the definition of “membership”?

GAGELER J:   Of “member”.

MS McNAUGHTON:   I will just turn that up.

GAGELER J:   It is rather technical.  I am looking at page 292.

MS McNAUGHTON:   Yes, thank you.  In fact, there was an error when the Chief Justice looked at that.  He read it, with respect, incorrectly and indicated that it was only a director or an officer of a body corporate, rather than it definitely included that and it was an inclusive definition.  So we stay he started to be misled even at that point.

GAGELER J:   So you focus on the words “informal member” in paragraph (a) and you combine them with taking steps.  Is that right?  Is that the way the case was put here?

MS McNAUGHTON:   Yes, and, indeed, perhaps more importantly for a special leave issue, the word “includes”.  So the legislation has said you can be an informal member, you can be a person who has taken steps, but that is not the end of it.  It could be other things as well.

KIEFEL CJ:   Was your focus on (b)?

MS McNAUGHTON:   Yes.

KIEFEL CJ:   I think we might hear from Mrs Shaw now.  Thank you.  Yes, Mrs Shaw.

MS SHAW:   If the Court pleases.  The respondent, first of all, submits that this Court has indicated that it will be in very exceptional circumstances that special leave to appeal from a verdict of acquittal entered by a Court of Appeal will be granted.  The significance of this criterion, in our respectful submission, is particularly important in this case.

KIEFEL CJ:   One difficulty with that submission is the verdict of acquittal rendered by the Court of Appeal itself was exceptional.

MS SHAW:   We would submit it was based on the ground of appeal that the verdict was unsafe – that is, that in essence the finding of the Court of Appeal was that there was an absence of evidence as to what might have been sufficient to prove that the step the applicant took was capable of ‑ ‑ ‑

KIEFEL CJ:   But that question of fact is only reached after the construction one places upon the definition of “member of an organisation”.  That is really what this application for special leave focuses upon.

MS SHAW:   Your Honours, we submit that the reasoning of the Court of Appeal followed the directions of the trial judge in that respect but importantly had regard to the evidence that was led by the Crown, specifically about the organisation Islamic State where the evidence of Dr Shanahan was that those who were involved in the organisation Islamic State included supporters, members, subjects, those who travel to Islamic State, such as was the applicant’s case that the respondent intended to do.

But Dr Shanahan was not asked, insofar as his evidence about the hierarchical structure of the organisation is concerned, whether or not someone who did, as the Crown claimed the applicant did, that is, intending to fly to Turkey and then to Syria to be a nurse or to marry a fighter, would thereby fulfil or, from the point of view of the organisation, become a member.

So, this was not a case where there was, as in Benbrika, the need to draw inferences from circumstances as to what people did and said.  This was a case where there was an identified organisation, it was the subject of the regulation, proclaiming it a terrorist organisation, and expert evidence was led about what that organisation involved.  So what his Honour the Chief Justice’s reasoning turned on – and I refer in particular to paragraph 10 at application book page 202 – was that:

There was therefore no evidence against which to evaluate any connection between the proved conduct of the appellant, her communications, pledge of allegiance, singing and attempt to travel to Turkey, with formal or informal membership of Islamic State.

What his Honour the Chief Justice, indeed Justice Parker set out ‑ ‑ ‑

KIEFEL CJ:   Mrs Shaw, does what you say imply that it is necessary that the person be formally accepted by the organisation?

MS SHAW:   Your Honour, that depends entirely on the particular organisation – that is, whether the particular organisation has such a concept.  If, for example, the evidence was that this ‑ ‑ ‑

KIEFEL CJ:   You are not likely to have a written constitution which requires nomination and seconders.  What do you say is necessary?

MS SHAW:   Your Honour, in this particular case it was not a case where there was an absence of evidence of hierarchical structure.  There was a hierarchical structure and if the evidence was, for example, that having deposed to the fact that various women were encouraged to come to Syria to be wives and supporters and subjects, if Dr Shanahan, in describing the activities of the respondent – for example, taking an oath – described that as an activity of a supporter or a member, that is the evidence at its highest from Dr Shanahan was that what was alleged against the respondent could equally make her nearly a subject or a supporter.

So his Honour was, as in Benbrika, plainly alive to the potential to draw inferences from the circumstantial evidence as to whether or not someone might be a member and he did that, for example, at application book 218, paragraph 65, where he explained that the inference might be drawn that the fighters were members or informal members.

KIEFEL CJ:   But Mrs Shaw, this is not just a question of expert evidence.  It is a question of statutory interpretation of an Act which has particular purposes.

MS SHAW:   Your Honour, we accept that but the ground of appeal on which the issue was resolved was the sufficiency of evidence and the way in which the trial was conducted was according to the way in which the organisation was discussed in Benbrika applying Kibby.  Your Honours will see that the reasoning his Honour the Chief Justice picks up that criteria because it was the criteria upon which the trial was conducted.  This was not a case ‑ ‑ ‑

GAGELER J:   Mrs Shaw, can the jury be taken to have found each of the elements of the Crown case identified at paragraph 55 of his Honour’s judgment, pages 216 to 217?

MS SHAW:   Your Honour, that is subject to the specific direction that criterion 1 or element - step 1 his Honour directed the jury that unless they found that particular fact proved beyond reasonable doubt, the prosecution would not have proved its case.  That is why that was the focus of the directions and the focus of the submissions of both counsel.  Your Honours, when I come ‑ ‑ ‑

GAGELER J:   Mrs Shaw, so really we are concerned with the sufficiency of those facts taken to be established by the jury’s verdict to meet the statutory description of the offence, are we not?

MS SHAW:   Your Honour, except that it was the first particular that was said to be necessary and therefore the jury may well have only determined the first particular in arriving at its verdict.  The second point we make, though, your Honour, is that his Honour did not leave the question of membership at large – that is, in his summing‑up – but rather in accordance with the way in which the Chief Justice approached it did refer to the meaning of “organisation” in a way that was consistent with Kibby and Benbrika. 

If I can take your Honours to application book 21 in the summing‑up – and this of course was his Honour having the jury read what was in the aide‑mémoire, but at application book 21 his Honour had read to the meaning of “organisation” for the purpose of their deliberations was that it:

may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals –

and that is the first place upon which his Honour the Chief Justice and the majority considered the sufficiency of evidence, but the second aspect of his Honour’s direction is also important because it went to membership and that was:

and with some clear criterion or method of identification of its members. 

That is, this case was conducted on the basis that in order to prove membership or in order to prove the connection between what is alleged against the accused and the organisation, it needed to be demonstrated that the organisation was not amorphous or fluctuating but did have a clear criterion or method of identification of its members.

So it was in that respect that Dr Shanahan’s evidence informed the court and it was in that respect that Dr Shanahan spoke to the different roles both in the hierarchy of Islamic State, but also in the society of various persons.  It was in that respect that Dr Shanahan did not distinguish a person who went to Syria to be a nurse or to marry a fighter as being either a supporter or a member.  So this was not a case where there was no evidence at all about the organisation or, indeed, about the roles of people within this organisation ‑ ‑ ‑

KIEFEL CJ:   Mrs Shaw, do I take it from what you have said about Dr Shanahan’s evidence that his approach was that the question of organisation and membership of it were inextricably woven together?

MS SHAW:   Not at all, your Honour.  With respect, what Dr Shanahan did was to explain the history of the organisation, explain its hierarchical structure and explain the roles of various people within the organisation that essentially had developed from an ideology to ‑ ‑ ‑

KIEFEL CJ:   But I thought you said that after he gave evidence about the concept of this organisation he went on to distinguish those who might be supporters on one hand or members or whatever of it by reference to its structure.

MS SHAW:   Yes.  He gave evidence about giving examples of the roles of various people, some of which is summarised in Justice Parker’s judgment at 264 where he alludes to the different spaces.  For example, he refers to children holding a flag as “the next generation of members . . . or residents”.  He refers to persons who take the oath as being either “supporters or members” but he does not say what the position of women is who travel to Syria and subject themselves to the rule of Islamic State by marrying a fighter or a nurse.

So our submission is that because there was no evidence one way or the other, yet this was an organisation about which evidence could be given – contrast, for example, the organisation in Benbrika and other abstract organisations – and evidence was given of the status of various people - all that needed to be asked of Dr Shanahan was, from the point of view of Islamic State and its hierarchy, was a woman who travelled to Syria to perform that role indeed a member or a supporter?  At paragraph 262 at application book 264, his Honour Justice Parker specifically notes that:

Although the issue was not pursued with Dr Shanahan, his evidence suggests that he recognised a distinction between IS members and persons who resided in the territory ‑ ‑ ‑

KIEFEL CJ:   Mrs Shaw, I see that the trial judge directed the jury in relation to what “membership of an organisation” might mean in the statute at special leave book page 26.  What did the majority say on that issue and in relation to the evidence tendered by Dr Shanahan?

MS SHAW:   The majority adopted the directions of the trial judge and in particular at application book 203, paragraph 12, his Honour the Chief Justice held that the direction to which I took the Court – for example, application book 21 and in particular the reference to having a “clear criteria, or method of identification” being required ‑ held that the prosecution failed to proffer any such evidence.  There was no evidence that informal membership was accorded by Islamic State in the loose way suggested by the prosecution.

His Honour expanded on that conclusion at application book 224, paragraph 86, where having set out his Honour’s directions in relation to Islamic State, his Honour adopted the judge’s definition for the purposes of determining the particular ground of appeal in relation to unsafe.

His Honour Justice Parker specifically followed Benbrika and noted that the criteria noted by the trial judge had come from the judgment of Justice Mandie in Kibby’s Case, in particular at application book page 260, where Justice Parker dealt with the specific direction that was given, and went on to say that, in effect, under the heading of - on the question of unsafe, that the evidence did not exclude the possibility that, so far as Islamic State was concerned, there did need to be some kind of acceptance of membership.

His Honour Justice Parker had regard to the explanatory statement in relation to the regulation concerning Islamic State, and the outline of what the organisation included, and then, in effect, adopted at 259, at application book 263, the way in which Benbrika had arrived at membership by reason of the new mutual recognition acceptance.

So your Honours, in our respectful submission, this did turn on the facts and the expert evidence in that case, and the failure to ask that further question, but importantly, from our client’s point of view, her head sentence of three years will expire on 23 May this year, and she had already served two years seven months at the time of the verdict of acquittal by the court, and we submit that this is not an appropriate vehicle to determine broader questions such as the meaning of “organisation” and “member” when those issues did not arise in determining the ground of appeal.

Of course the Crown did not object to the trial judge’s directions.  In fact, the approach of Justice Kelly that seemed to require only proof of the intention was the subject - matter raised by the prosecutor at application book 138 when he indicated - that is, the prosecutor before the trial judge - that it was not just necessary to prove the intention but also it was necessary to prove that the step did amount to membership of the organisation.  So in our respectful submission, the Court of Appeal’s majority’s judgment followed the direction of the trial judge below.

KIEFEL CJ:   I see the light is on, Mrs Shaw.

MS SHAW:   Thank you, your Honours.

KIEFEL CJ:   Thank you.  We do not need to trouble you further, Ms McNaughton.  There will be a grant of special leave in this matter.  What is the estimate of time for hearing?

MS McNAUGHTON:   Your Honours, there are matters raised in the respondent’s submissions that they may be filing a notice of contention, so that would - one can see that at page 319 - so that might take a bit longer.

KIEFEL CJ:   What is your estimate?

MS McNAUGHTON:   Half a day.

KIEFEL CJ:   I think it might be a little more than that.  Mrs Shaw, what is your estimate of time for the hearing?

MS SHAW:   Because of the notice of contention, we would ask for a day, your Honours.

KIEFEL CJ:   Yes, thank you.  Would you please ensure that your instructing solicitors obtain a timetable.

MS SHAW:   Certainly, your Honour.

KIEFEL CJ:   The Court will adjourn to establish a new video link.

AT 10.17 AM THE MATTER WAS CONCLUDED