R v Kahtan ABDUL-WAHAB No 2

[2025] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation:

R v Kahtan ABDUL-WAHAB No 2 [2025] NSWLC 6

Hearing dates:

18, 19 August 2025

Date of orders:

19 August 2025

Decision date:

19 August 2025

Jurisdiction:

Criminal

Before:

Donnelly LCM

Decision:

See orders at [44]

Catchwords:

Public order offence – s 93ZA(1) Crimes Act (NSW) 1900 – prohibition on the public display of a Nazi symbol without reasonable excuse – defendant during a protest placed a placard on a bin in Hyde Park displaying a Nazi flag superimposed over the flag of Israel with the surrounding words “The irony of becoming what you once hated” – purpose of the s 93ZA(1) – whether the defendant had a reasonable excuse

Legislation Cited:

Crimes Act 1900 (NSW), s 93ZA(1) (rep)

Cases Cited:

Azzopardi v The Queen (2001) 205 CLR 50

Commissioner of Police v Gray [2020] NSWSC 867

King v The Queen (2003) 215 CLR 150

Mark v Henshaw (1998) 85 FCR 555

Oshlack v Richmond River Council (1998) CLR 72

Police v Bassi [2020] NSWSC 710

Police v Rintoul [2003] NSWSC 662

Taikato v The Queen (1996) 186 CLR 454

Wong Pooh Yin v Public Prosecutor [1955] AC 93

Woolmington v DPP [1935] AC 462

Texts Cited:

Amnesty International, “You feel like you are subhuman” Israel’s Genocide Against Palestinians in Gaza, 2024

Human Rights Council “Anatomy of a Genocide” Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese

International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, Application of the Convention on the prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) Request for the Indication of Provision Measures, Order of 26 January 2024

Rasha Khatib, Martin McKee, Salim Yusuf “Counting the dead in Gaza: difficult but essential” letter to the Lancet, 5 July 2024

Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant, Press Release, 21 November 2024

United Nations, Chapter IV Human Rights, Signatories to the Genocide Convention

United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, 1950

Category:

Principal judgment

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

File Number(s):

2024/372546

Publication restriction:

No

Judgment

1. The defendant was charged by police in 2024 with an offence under 93ZA Crimes Act (NSW) 1900 of displaying a Nazi symbol. The offence provision has been amended since the incident but at the time of the alleged offence 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 on 6 October 2024 he displayed on a bin in Hyde Park a Nazi symbol without reasonable excuse. A person is guilty of the offence of displaying a Nazi symbol if he or she:

1. Displays a Nazi symbol

2. By a public act as defined in s 93Z(5) of the Act

3. Knowing it is a Nazi symbol

4. Without a reasonable excuse for displaying it.

3. Early in these proceedings the Court gave a ruling concerning the onus of proof, reasonable excuse and the ingredients of the offence. The Court’s reasons will be supplied at a later point, but, in short, the Court followed the House of Lords decision of Woolmington v DPP [1935] AC 462 as applied in the High Court decision of King v The Queen (2003) 215 CLR 150 where Gummow, Callinan and Heydon JJ said at [52]:

“Unless statutory provision to the contrary is made, the onus lies upon the Crown throughout, to negative defences sufficiently raised.”

4. The Court ruled that:

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.

5. As this is a criminal hearing, the onus is on the prosecution to prove each ingredient of the charge beyond reasonable doubt. The defendant does not have any onus except an evidentiary onus if he wishes to rely on the reasonable excuse exception in s 93ZA.

6. In this case the parties tendered an agreed statement of facts under s 191 of the Evidence Act. The agreed facts (with one image partially obscured for publication) will be incorporated as Appendix A to this judgment as part of the factual circumstances of the allegation. I will return to that document.

7. What is clear from that document is that it is not in dispute that most of the ingredients of the charge have been proved to the criminal standard of proof. These include that the defendant displayed a Nazi symbol, being a Nazi flag on a placard in Hyde Park depicting the Israeli flag over the Nazi flag with the text, “The irony of becoming what you once hated.”

8. It is not in dispute that the display was done by a public act as defined in s 93Z(5) being, “displaying notices to the public referred to in 93Z(1).” It is also not in dispute that the defendant knew that the Nazi flag was a Nazi symbol. When the police asked him about the display, he said he was “speaking up against the genocide and that’s what I’m doing here today,” see [12] of the agreed facts. The text of the placard itself just quoted also indicates knowledge that the placard contained a Nazi symbol. The agreed facts state that the defendant had a bundle of signs relating to the pro-Palestine movement, but nothing, and I quote from the agreed facts, “Nazi related.”

9. That leaves the last part of the offence being whether the defendant has a reasonable excuse for displaying the Nazi symbol. It is important to recognise the task of the Court. The law in question is a law passed by the New South Wales Parliament. It can be accepted that the subject matter, facts and circumstances of the alleged offence of this criminal prosecution evoke a very strong reactions from members of the community. This is a court of law where the judicial oath will be applied and where the Court will make a decision according to law without fear, favour, affection or ill will. Making a decision according to law requires the Court to apply binding decisions of the superior courts.

10. In this case, as will become clear, the High Court decision of Taikato v R (1996) 186 CLR 454. In determining the issue of whether the defendant has met his evidential burden and, if he has, whether the prosecution have negatived the excuse beyond reasonable doubt, the Court, as I have said, must apply the High Court decision of Taikato v R, particularly the passage at p 464 of the report. In that case four justices of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) said:

The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception.

11. I interpolate after the expression “individual case” there was a footnote to an English decision of Wong Pooh Yin v Public Prosecutor [1955] AC 93 at 100. It is also settled that at least since Mark v Henshaw (1998) 85 FCR 555 that in determining whether a person has a reasonable excuse the Court has to undertake an objective assessment of the particular facts of the case.

12. The defendant submitted concerning the purpose of the provision as follows:

The existence of a reasonable excuse defence reinforces the limited purpose of the law that it is directed at the promotion of hateful or Nazi ideology and the incitement of hateful behaviour on the basis of particular characteristics by the public use of a Nazi symbol and that it is not concerned with the mere object display of a Nazi symbol.

13. The submissions continue:

Having regard to the text and context, including the extrinsic material and the principles of legality, it appears that the particular mischief sought to be addressed by s 93ZA(1) is the disturbance of public order brought about by the promotion of hateful or Nazi ideology to the public or by the incitement of hatred or discrimination on the grounds of characteristics like race or religion in public or towards any member of the public by the public use of a Nazi symbol.

14. The defendant submitted that the offence provision is not intended to apply to a Nazi display which is critical of Nazism and done for a political purpose. The particular purpose articulated by the defendant of the offence of prohibiting promotion of Nazism was accepted by the prosecution. However, it is clear from the extrinsic material that the purpose of the enactment was broader. The defendant’s articulation of the limits of the purpose of the law are not accepted.

15. The purpose of the law is to prohibit displays of public acts of Nazi symbols subject to a person having a reasonable excuse - which includes those referred to in s 93ZA(3). That is, displays of Nazi symbols to the public. The offence provision appears in Part 3A of the Crimes Act which concerns offences relating to public order. The offence is directed at displays of Nazi symbols to the public. The public order envisaged by Parliament is one where Nazi symbols are not displayed because they are considered offensive and for what they represented at the time, but also the distress to people and the people who were victims of the Nazis and World War II and their descendants.

16. In this case it is worth repeating what was an agreed fact in the proceedings. At [15] of the agreed facts the following is said:

The swastika was appropriated by the Nazi Party in Germany. The standard Nazi Party banner featured a black swastika on a white circle on a red background. The Nazi Party’s banner and some of its other symbols and emblems, including especially the swastika, have come to symbolise the horrors of Nazism and World War II, including military brutality, racial vilification and oppression and are the world’s most prominent and potent symbols of hatred and genocide. [Footnote to the second reading speech of the Honourable Gabrielle Upton in the legislative assembly on 21 June 2022.”]

17. The agreed facts continue:

The primary, although not the only target for Nazi persecution and genocide, was the Jewish people.”

18. The agreed facts state at [16] that it is accepted that the flag for the State of Israel is a white rectangle with two horizontal blue stripes, one at the top and one at the bottom with the blue Star of David in the centre.

19. It is true that by enacting a reasonable excuse the Parliament envisaged that Nazi symbols can be displayed and thus cause harm and offence. But as the High Court decision in Taikato demands, the Court has to have regard to both the purposes of the law and the individual circumstances of the case. So something must also be said about the concept of reasonable excuse as it relates to the offence.

20. Given the purpose for which the law was enacted, the Court does not accept that the reasonable excuse exception is automatically established by evidence which indicates that the Nazi symbol is displayed for a political purpose. That would be too simplistic and not give effect to the object of the law or its purpose and could easily be defeated if that were the case.

21. The word “political” does not appear in s 93ZA(3) and the Parliament could have easily included it. This can be contrasted with equivalent provisions in Victoria being s 41K(2B) of the Summary Offences Act 1966 and s 80.2H(10)(f) of the Criminal Code - the equivalent Commonwealth offence.

22. The offence under s 93ZA(3) provides a reasonable excuse if the display was done reasonably and in good faith — (a) for an academic, artistic or educational purpose, or (b) for another purpose in the public interest.

23. The expression “public interest” has been described elsewhere as a nebulous concept by the High Court in Oshlack v Richmond River Council (1998) CLR 72 at [30]. However, the expression “public interest” could be understood through the prism of the purposes of the provision which are also articulated in the Second Reading Speech.

24. So far as the expression “done reasonably and in good faith,” also has to be understood by reference to the legislative object of the offence of prohibiting the promotion of Nazism and protecting members of the community. The concept of good faith can be established by a defendant giving evidence or by other evidence, including the circumstances surrounding the display of the Nazi symbol.

25. In this case the defendant did not give evidence. He exercised his right to trial silence. He elected not to give evidence. No adverse inference can be drawn against him and the court gives itself the appropriate direction as set out in the High Court decision of Azzopardi v The Queen (2001) 205 CLR 50 at [50]-[56]. The fact that he did not give evidence is not used against him, it does not constitute an admission and may not be used to fill gaps in the prosecution case and it may not be used as a makeweight in determining whether the prosecution have proved the charge beyond reasonable doubt.

26. So far as the evidentiary burden for good faith the defendant relied upon what he told police and combined with Exhibits 2 to 8 (see below) tendered in the proceedings. The defendant told the police and this is not in dispute at [12] of the agreed facts:

But on judgment day I’ll be asked by my creator what did I do to help the Palestinians and I will say, ‘All I could do was speak up against the genocide’ and that’s what I’m doing here today. I can’t ignore what’s happening.

27. Ms Graham also tendered several documents on behalf of the defendant and asked the Court to take judicial notice of under s 144 of the Evidence Act being Exhibits 2 to 8:

2. United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, 1950

3. International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, Application of the Convention on the prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) Request for the Indication of Provision Measures, Order of 26 January 2024

4. Human Rights Council “Anatomy of a Genocide” Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese

5. Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant, Press Release, 21 November 2024

6. Amnesty International, “You feel like you are subhuman” Israel’s Genocide Against Palestinians in Gaza, 2024

7. Rasha Khatib, Martin McKee, Salim Yusuf “Counting the dead in Gaza: difficult but essential” letter to the Lancet, 5 July 2024

8. Signatories to the Genocide Convention

28. Ms Graham sought to use these documents as background and context for the display by the defendant of the Nazi flag.

29. For the purposes of fact finding, the Court takes judicial notice that there is a Genocide Convention. Genocide is a crime under the International Law. Article 2 of the convention sets out conduct prohibited under the Convention. Australia and Israel are parties to the Convention. The Convention was in part a response to the atrocities committed by Nazi Germany in World War II committed against Jewish people and several other minority groups. The Court takes judicial notice that there has been a conflict in Palestine and Israel, thousands of people have died and that there is a case commenced against Israel in the International Court of Justice which is still to be determined. The Court takes judicial notice that there have been reports issued by the United Nations such as a report, “Anatomy of a Genocide” (admitted as exhibit 4) and which concludes there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide as met. Finally, the Court takes notice that a pre-trial chamber of the International Criminal Court issued warrants for the arrests for of the Prime Minister of Israel and a former Defence Minister of that country.

30. It is important to emphasise that the Court is not being requested, and will not make, findings that what is alleged (genocide) is true in relation to the matters concerning judicial notice. That, of course, is for other international judicial forums. The information is put before the Court only as background information to show what Ms Graham argues are extreme circumstances.

31. Mr Singleton for the prosecution submitted that there is no evidence the defendant read any of the documents tendered as exhibit 2 to 8. However, it must be accepted that there is a reasonable inference that the placard itself points to a conclusion that the defendant was aware of allegations against Israel, therefore, these matters will be taken into account as context evidence.

32. In support of the reasonable excuse exception Ms Graham relied upon several matters with headings.

Purpose of the display

33. Ms Graham submits on behalf of the defendant in this case the display was for a genuine in good faith political purpose as part of a peaceful public protest. The purpose was to express disapproval, raise awareness, advocate for political change, influence public opinion and potentially pressure those empowered to address the issue at hand, being the genocide of the Palestinian people by the state of Israel. Ms Graham submitted the defendant was compelled as a matter of conscience to speak out publicly on the matter.

Intent and motivation

34. Ms Graham submitted that there was a clear intent to inform others which might be caught by an educational purpose. There was no intent to convey extremist ideology, intimidate or harass. There was no evidence of malicious or hateful motive. Ms Graham submitted that the defendant’s purpose was to denounce, critique and condemn rather than promote Nazi ideology and genocidal action of states.

35. Ms Graham submitted it is noteworthy that in other jurisdictions such as Victoria equivalent defence provisions acknowledge that displays of Nazi symbols in opposition to Nazism and related ideologies are exempt from criminality, sometimes referred to as a protest exception and she says this points to the reasonableness of such public expression.

Immediate context

36. Ms Graham submits the immediate context of the display of the symbol is important in assessing the reasonableness of the excuse. The immediate context is a peaceful pro-Palestine protest at which approximately 10,000 people were in attendance in the park. Ms Graham submits public protests is a right and quotes a decision of Police v Rintoul [2003] NSWSC 662 where

36. Simpson J said at [5]:

Public protest is a right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to the democratic system of government and way of life.

38. Ms Graham submitted that the right to protest and not only involves exercising a number of fundamental human rights, but it is itself also essential to securing human rights. Ms Graham submits that there is a real risk to the very fabric of our society in suppressing public political expression, especially on matters that are widely supported in this community and with great strength of feeling and for that proposition she cites Commissioner of Police v Bassi [2020] NSWSC 710 at [19].

39. Ms Graham submits that the Courts have consistently recognised the importance of free speech exemplified by public collective action as a hallmark of a democratic society and then she cites Commissioner of Police v Gray [2020] NSWSC 867 at [59]. Ms Graham argues that it is apt to describe public political expression through protest as an essential service to our democracy with a very strong public interest in the public political expression through protests. Ms Graham submits that another purpose in the public interest is appropriately interpreted as including public political expression through protests.

40. There is also a further submission about the manner of display. It was a small poster. It was easily removed. Then she makes submissions in relation to the nature of how the Nazi symbol was portrayed. It is submitted the poster is a composite of images, two flags, one superimposed on the other and the words, “The irony of becoming what you once hated.” She submits it is a piece of political art which is a composite work which conveys meaning, a message that is clearly not glorifying or condoning Nazism in any way and which is critical of what she describes as genocidal States.

41. She submits that the poster is at the juxtaposition of the two flags along with the words to express and communicate ideas by way of artistic expression. It is submitted the poster was also adjacent to another poster about the plight of the Palestinians which lends some meaning to the context to the other poster. That is a reference to the agreed facts for which there is a photograph of the other poster.

Location

42. Ms Graham submits that it was on a bin in the Central Sydney Park which was a venue for a peaceful pro-Palestine protest. In terms of audience she submits the general public who might see it in connection with the pro-Palestine protest that day, the audience is very likely to understand the intended context by virtue of the content of the poster itself, the poster adjacent to it and the fact of the protest taking place at the same location at the same time.

43. Ms Graham submits there is zero to minimal risk of misinterpretation and as to timing the conduct was during the protest on the occasion of a year after what she describes the war in Gaza started. These submissions go on to describe matters concerning what I have already described as context and circumstances. I will not repeat those matters the Court having already made findings of fact.

44. The prosecution submit that the display was for a political purpose and that the defendant was making a political point. The prosecution submit the defendant can make his point without using a Nazi symbol. The prosecution focused on the form of the display to denounce Israel by using what the prosecutor described as the worst historical example merged together to make what he described as two genocidal states to convey an equality of regimes.

45. He submitted that the Court could take into account the degree of offence that might be taken by merging the Nazi flag with Israel’s flag. He submitted that the Nazi symbol was displayed to evoke a visceral reaction and the focus on Israel could not have been more offensive to Jewish people who the law was in part designed to protect. The symbol was displayed in public in a public park and, according to the prosecutor, Mr Singleton, there was no control or limitation on its display until the police intervened. It was submitted that this added offensiveness made it more serious and because of this more is required for the Court to accept that there is a reasonable excuse.

CONCLUSION

46. The Court finds that the defendant has met the evidential burden of raising the issue of reasonable excuse on the bases of what he said to police and the documents tendered, being exhibits 2 to 8. However, the Court also finds that in the particular circumstances of this case that the prosecution has negatived the reasonable excuse exception beyond reasonable doubt. This is for the following reasons.

47. The purpose of the enactment was not just to prevent the promotion of Nazism, but also any harm caused by the display of Nazi symbols. The harm for this particular Nazi display is not slight, especially where the words on the display, “The irony of becoming what you once hated” are added. The offence provision had a clear purpose of protecting particular members of the community from harm caused by the display of Nazi symbols.

48. While there might be room for a political protest being a reasonable excuse but probably where there is minimal or slight harm. Here there is a high degree of offence to a point where the defendant’s conduct cannot be brought within the reasonable excuse exception carved out by Parliament. This is having regard to all of the material tendered, including Exhibits 2-8 and the defendant’s explanation. It is a conclusion taking into account the individual circumstances of the case. The purpose and object of the law would be too easily defeated.

49. The Court also accepts the prosecution’s submission that the display was just to make a political point and the display was not for an artistic, educational, academic or a purpose in the public interest. There was no evidence of these matters from the defendant and he did not tell the police that that was what he was doing. I refer again to [12] of the agreed facts. The words he said to police point to him making a political point about Israel. The Court was asked to draw inferences for these other bases in s 93ZA. The inference the Court draws is that it was done for a political purpose and it was conduct which does not fit within the expression “reasonable excuse” because of the objects and purposes of the law. So for these reasons I find the prosecution have negatived the excuse beyond reasonable doubt. That brings the court to the constitutional question.

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Appendix A (1.17 MB, pdf)

Decision last updated: 12 November 2025