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

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.

It is alleged that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kahtan ABDUL-WAHAB No 1

Details

AGLC: R v Kahtan ABDUL-WAHAB No 1 [2025] NSWLC 5
Case: [2025] NSWLC 5
Decision Date: 29 October 2025

CaseChat Overview and Summary

The case of R v Kahtan Abdul-Wahab No 1 was heard by the District Court of New South Wales. The defendant was charged with contravening section 93ZA(1) of the Crimes Act (NSW) 1900 by publicly displaying a Nazi symbol without a reasonable excuse. The central dispute revolved around the interpretation and application of the legal provisions concerning the display of Nazi symbols and the respective onus and standard of proof applicable to the concept of a "reasonable excuse."

The court had to determine whether the defendant bore the onus to prove a reasonable excuse for displaying a Nazi symbol and, if so, the standard of proof required. Additionally, the court needed to interpret the meaning of "reasonable excuse" as stated in section 93ZA(1) and how it interacted with the requirement for the prosecution to disprove such an excuse beyond reasonable doubt under section 417A of the Crimes Act.

The court concluded that the reasonable excuse in section 93ZA(1) constitutes an evidentiary burden on the defendant to raise the matter. Once the defendant presents evidence of a reasonable excuse, the prosecution must then negate this excuse beyond reasonable doubt. This interpretation aligns with the legislative intent to prohibit the public display of Nazi symbols while ensuring that exceptions are carefully considered and proven. The court found that the prosecution had not met the required standard to disprove the defendant's claim of a reasonable excuse.

As a result, the court acquitted the defendant, emphasizing the necessity for the prosecution to rigorously establish the absence of a reasonable excuse when such a defence is raised. The court's decision underscored the delicate balance between public order and individual rights, and the importance of adhering to the legislative framework in criminal proceedings.

Orders

Orders of the court

See orders at [22]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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