R v Kahtan ABDUL-WAHAB No 1

[2025] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation:

R v Kahtan ABDUL-WAHAB No 1 [2025] NSWLC 5

Hearing dates:

18, 19 August, 29 October 2025

Date of orders:

19 August 2025

Decision date:

29 October 2025

Jurisdiction:

Criminal

Before:

Donnelly LCM

Decision:

See orders at [22]

Catchwords:

Public order offence – s 93ZA(1) Crimes Act (NSW) 1900 – prohibition of the public display of a Nazi symbol without reasonable excuse – onus and standard of proof – s 417A Crimes Act – proof of exceptions –reasonable excuse in s 93ZA(1) is a statement of some matter of answer by an accused – defendant has an evidentiary burden to raise the excuse – if raised the prosecution must negative the excuse beyond reasonable doubt

Legislation Cited:

Crimes Act 1900 (NSW), ss 23, 23A, 61AA, 93FB, 93ZA(1), 417A, 419, 545E(2)

Magistrates (Summary Proceedings) Act 1975 (Vic).

Cases Cited:

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Chugg v Pacific Dunlop Pty (1990) 170 CLR 249

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

DPP v FD [2017] NSWSC 679

King v The Queen [2003] HCA 42; (2003) 215 CLR 150

Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272

Taikato v The Queen (1996) 186 CLR 454

Vines v. Djordjevitch (1955) 91 CLR 512

Woolmington v DPP [1935] AC 462

Texts Cited:

Criminal Practice and Procedure, the Honourable Justices Howie QC and Johnson SC

Category:

Procedural rulings

Parties:

New South Wales Police Force (Prosecution)

Kahtan ABDUL-WAHAB (Defendant)

Representation:

Counsel: P Singleton (Prosecution)

F Graham with M Hawila (Defendant)

Solicitors: Majed Kheir Jr, Kheir Lawyers (defendant)

Intervener

M G Sexton SC, Solicitor-General with C Andreotti for the Attorney-General for the State of New South Wales, intervening instructed by the Crown Solicitor's Office (NSW)

File Number(s):

2024/372546

Publication restriction:

No

Judgment

1. This is an evidentiary ruling concerning the onus and standard of proof for the offence under 93ZA Crimes Act (NSW) 1900 of displaying a Nazi symbol as it stood on 6 October 2024. The offence provision has been amended since but at the time of the alleged offence in October 2024 it provided as follows:

93ZA Offence of displaying Nazi symbols

(1) A person who knowingly displays, by public act and without reasonable excuse, a Nazi symbol commits an offence.

Maximum penalty —

(a) for an individual—100 penalty units or imprisonment for 12 months, or both, or (b) for a corporation — 500 penalty units.

(2) For subsection (1), the display of a swastika in connection with Buddhism, Hinduism or Jainism does not constitute the display of a Nazi symbol.

(3) Also, without limiting subsection (1), a reasonable excuse includes the display of a Nazi symbol done reasonably and in good faith —

(a) for an academic, artistic or educational purpose, or

(b) for another purpose in the public interest.

(4) In this section —"public act" has the same meaning as in section 93Z.

2. It is alleged that the defendant displayed on a bin in Hyde Park a Nazi symbol without reasonable excuse. At the commencement of the hearing there was a dispute between the parties concerning the onus and standard of proof for the offence. The court gave a conclusion after submissions and promised to provide reasons at a later point. What follows are the court reasons.

3. The prosecution, the defendant and the Attorney-General each had a different view of the onus and standard of proof for the “without reasonable excuse” component of the offence provision. The defendant submits that the prosecution must prove beyond reasonable doubt that he did not have a reasonable excuse. The prosecution submit the defendant has an onus to prove on the balance of probabilities that he had a reasonable excuse. The Attorney-General submitted that the defendant has an evidentiary burden to raise the issue of reasonable excuse and, if he does, the prosecution must negative the excuse beyond reasonable doubt.

4. Section 93ZA is silent as to whether the prosecution or the defendant has the onus of proof in relation to reasonable excuse. The prosecution relies upon s 417A of the Crimes Act in support of its argument. It provides:

(1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.

(2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person.

(3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.

5. The court will deal with the defendant’s argument first that the prosecution must prove beyond reasonable doubt that he did not have a reasonable excuse. In a line of cases at least since Vines v Djordjevitch (1955) 91 CLR 512 (often concerning regulatory offences) the High Court has held that assigning the onus of proof is determined by applying rules of statutory construction. In Chugg v Pacific Dunlop Pty (1990) 170 CLR 249 at 254 Dawson, Toohey and Gaudron JJ explained the correct approach:

For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule.

[emphasis added]

6. The plurality opined that a legislative intention to impose an onus on a defendant may be indicated by a provision such as s 168 of the Magistrates (Summary Proceedings) Act 1975 (Vic). This is a decisive and significant observation in this case because s 417A Crimes Act is materially similar to s 168 of the Magistrates (Summary Proceedings) Act 1975 (Vic). The purpose of the offence provision is to enact a general prohibition on the display of Nazi symbols in public and then to provide for an excuse depending on additional facts within the knowledge of an accused: See Vines v. Djordjevitch (1955) 91 CLR 512 at 519. The expression “without reasonable excuse” is a “statement of some matter of answer” as the plurality described it in Chugg v Pacific Dunlop above. When the offence provision is read with s 417A the expression “without reasonable excuse” is not an ingredient that the prosecution has an onus to disprove. It is an excuse which the Parliament has assigned the onus on the defendant.

7. The prosecution submitted that the defendant must prove any reasonable excuse on the balance of probabilities. For the following reasons that submission is not accepted by the court.

8. The starting point for determining the issue must be the decision of Woolmington v DPP [1935] AC 462 because it concerned the criminal law and created an important rule of statutory construction. Viscount Sankey said, with the support of the other Law Lords:

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.” [emphasis added]

9. His Honour expressed his view more forcefully later in the judgment:

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

10. It is important to recognise that before Woolmington that if the prosecution met the prima facie case hurdle the burden shifted to the accused to prove defences such as accident (which was the erroneous trial direction in Woolmington itself), provocation or self-defence. The High Court have repeatedly affirmed that Woolmington v DPP is part of the common law of Australia. There are many examples including King v The Queen (2003) 215 CLR 150. Gummow, Callinan and Heydon JJ at [52] said:

“…unless statutory provision to the contrary be made, the onus lies upon the Crown throughout, to negative defences sufficiently raised”.

11. There is a bright line distinction between a defence which an accused must prove and a ground of exculpation where an accused has only an evidential onus. In CTM v The Queen (2008) 236 CLR 440 [2008] HCA 25 Gleeson CJ, Gummow, Crennan and Kiefel JJ at [6]-[8] explained the importance of the distinction and the misuse of the word “defence” even by the High Court itself:

Cave J's description of a mistaken belief of the kind he was discussing as a "defence", and Sir Samuel Griffith's Draft Code, preceded Woolmington v Director of Public Prosecutions [9] by almost 40 years. Questions of onus and standard of proof now need to be considered in the light of later developments in the law. References to arguments raised on behalf of the accused at a criminal trial as a defence, or a ground of exculpation, may be harmless enough if they do not pre-empt questions of onus of proof. People understandably feel the need to call them something, and the adversarial setting of a trial leads judges and practitioners sometimes to refer to any point relied upon by an accused as a defence. So, for example, in the plurality judgment in this Court in Jiminez v The Queen [fn 10 [1992] HCA 14; (1992) 173 CLR 572 at 581-582], honest and reasonable mistake was referred to as an "excuse" and a "defence". By reference to a leading decision of this Court on the subject, it is sometimes called "the Proudman v Dayman defence". Such descriptions have their dangers, but the shorthand may be convenient provided it is understood for what it is.

12. The Court unanimously held in CTM v The Queen (2008) 236 CLR 440 that the evidential burden of establishing an honest and reasonable mistake of fact falls on the accused. If the accused satisfies the evidential burden, the prosecution must then negative it to the criminal standard of proof of beyond reasonable doubt. See Gleeson CJ, Gummow, Crennan and Kiefel JJ at [8], [35]; Kirby J at [78]– [79]; Hayne J at [135], [147], [189].

13. The decision of Braysich v The Queen (2011) 243 CLR 434 contains an instructive discussion and is a leading case. The case involved s 998(6) of the Corporations Law which made express provision for a defence which the accused was required to establish on the balance of probabilities. French CJ, Crennan and Kiefel JJ said at [32]-[33] (footnotes excluded):

It is an "elementary principle of the criminal law that unless express statutory provision to the contrary be made, the onus lies upon the Crown throughout to negative defences sufficiently raised."[44] The authority and responsibility of the judge to instruct the jury on questions of law requires the judge "to put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it."[45] It may also require a direction to the jury that there is no evidence capable of supporting a particular defence to the charge and that they are not to consider that defence in their deliberations[46]. In such a case the accused is said to have failed to meet the "evidential burden" necessary to raise the defence. Such a direction may be made in respect of a defence which, if open, the prosecution, bearing the "legal burden" of proof, would have to negative beyond reasonable doubt [47]. It may also be made in respect of a statutory defence, such as that created by s 998(6), which by statute the accused is required to establish [48]. The standard of proof necessary to discharge the legal burden imposed upon the accused in such a case is proof on the balance of probabilities [49].

The distinction between the "legal burden" and the "evidential burden" has been explained in this Court as the difference between "the burden ... of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt" and "the burden of proof in the sense of introducing evidence"[50] [emphasis in the original]

14. An example in the Crimes Act (NSW) where an accused has a legal burden is the partial defence to murder of substantial impairment (formerly diminished responsibility) under s 23A. Section 23A(4) provides:

“The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.”

15. This defence is to be contrasted with the partial defence of extreme provocation in s 23 of the Crimes Act. Although described as a “partial defence” it is clear by the terms of s 23(7) that it is not something that the accused is required to prove. Section 23(7) provides:

If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.

16. The plurality judgment in Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272 at [15] is accepted as good law in New South Wales on the question of onus and standard of proof for provocation where it was said:

Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine.

17. Another example is self-defence where under s 419 of the Crimes Act the legal burden expressly falls on the prosecution:

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

18. Another more controversial example is the so-called defence of “lawful correction” in s 61AA of the Crimes Act. In DPP v FD [2017] NSWSC 679 the Supreme Court held that the onus of proof was on the defendant and the defendant had a legal burden to established lawful correction on the balance of probabilities. The court applied s 141 of the Evidence Act 1995 (NSW) as governing the standard of proof applicable to a defence of lawful correction. However, s 141 has not been interpreted as having the effect of generally ousting the common law including the principle in Woolmington v DPP [1935] AC 462. The learned authors of Criminal Practice and Procedure, the Honourable Justices Howie QC and Johnson SC, have expressed doubt about the correctness of the decision of DPP v FD. The learned authors state in their commentary.

No reference was made in the judgment to s 417A of the Crimes Act or to statements of authority that generally it is for the prosecution to negative a defence unless the statute makes clear that it is otherwise.

19. See also R v PS [2023] NSWLC 17.

20. An example where “the statute makes clear that it is otherwise” can be found in the case of Taikato v The Queen (1996) 186 CLR 454 where the statute placed a legal burden of proof on an accused. The case concerned possession of prohibited articles in a public place and provided for a defence of reasonable excuse for possession. Section 545E(2) provided:

A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose.”

21. Kirby J observed at 486:

…whereas in some legislation the onus is cast upon the prosecutor to establish the absence of a lawful purpose, in s 545E(2) the onus is placed on the accused to establish the exception. It is the accused who must excuse or justify the possession of the thing which otherwise establishes the liability for the offence. Whereas the general onus remains on the prosecutor throughout to establish the offence, the accused must ‘satisfy the court’ of the applicability of the suggested exemption.

22. Section 545E was renumbered in 2004 as s 93FB. Section 93FB(2) still contains the reasonable excuse exception and is in identical terms as the previous s 545E(2) quoted above. Kirby J’s conclusion was based on the offence provision and not on the terms of s 417A Crimes Act which existed at the time.

23. In this case when s 93ZA is read with s 417A there is no textual indication like s 23A(4) or s 545E(2) (later s 93FB(2)) that the defendant has a legal onus to prove or establish a reasonable excuse on the balance of probabilities. Section 417A(2) provides that an excuse may be proved by the accused but it is not expressed in mandatory terms. The word “may” is to be distinguished from the words such as “must” or “shall”. As the discussion has shown the answer lies in how the offence provision is framed by the Parliament. The absence of an express indication by Parliament that the defendant must establish or prove a reasonable excuse has the effect that the court must apply Woolmington v DPP, King v The Queen, and Braysich v The Queen. For these reasons that the court confirms its ruling on 18 August 2025 in the following terms:

1. The expression used in s 93ZA, “without reasonable excuse” is not an element or an ingredient of the offence, but rather an excuse that the defendant can rely upon.

2. If the defendant relies upon the excuse in this case, he has an evidentiary onus to raise it by giving evidence or via other evidence or doing both.

3. If the defendant meets the evidentiary onus to raise the excuse, then the onus shifts to the prosecution to negative the excuse beyond reasonable doubt.

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Decision last updated: 12 November 2025