2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 9 June 2011 and in place thereof dismiss the appeal against conviction on count 1 of the indictment.
3.Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for consideration and determination of the appeal against sentence in respect of the conviction on count 1 of the indictment.
On appeal from the Supreme Court of New South Wales
Representation
P W Neil SC with S G Callan for the appellant (instructed by Commonwealth Director of Public Prosecutions)
P D Lange with C C Waterstreet for the respondent (instructed by Lawyers Corp Pty Limited)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Khazaal
Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Jury misdirection – Respondent convicted of making document "connected with ... assistance in a terrorist act", knowing of that connection, contrary to s 101.5(1) of Criminal Code (Cth) ("Code") – Trial judge directed jury that words "connected with ... assistance in a terrorist act" had no special or technical meaning – Whether trial judge misdirected jury.
Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Exception to liability – Evidential burden – Section 101.5(5) of Code created exception to liability under s 101.5(1) if making of document "not intended to facilitate ... assistance in a terrorist act" – Respondent bore evidential burden under s 101.5(5), as defined in s 13.3(6) – Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in a terrorist act.
Words and phrases – "connected with", "evidential burden".
Criminal Code (Cth), ss 13.3, 101.5.
FRENCH CJ.
Introduction
Belal Saadallah Khazaal ("the respondent") was convicted on 10 September 2008 of an offence against s 101.5(1) of the Criminal Code (Cth) ("the Code") namely that he "did make a document connected with assistance in a terrorist act knowing of that connection." He was sentenced to 12 years' imprisonment dating from 31 August 2008 with a nine year non-parole period expiring on 31 August 2017[1]. The Court of Criminal Appeal of New South Wales (McClellan CJ at CL, Hall and McCallum JJ) heard his appeal against conviction and sentence on 6 October 2010 and on 9 June 2011, by majority, allowed the appeal, quashed the conviction and directed a retrial[2].
The document the subject of the indictment was an electronic book entitled Provisionson the Rules of…
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.
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Details
AGLC
R v Khazaal [2012] HCA 26
Case
[2012] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The respondent, Mr Khazaal, had been convicted of making a document connected with the assistance in a terrorist act, contrary to s 101.5(1) of the *Criminal Code* (Cth). The dispute centred on whether the trial judge had misdirected the jury regarding the meaning of the phrase "connected with ... assistance in a terrorist act" and whether the respondent had discharged the evidential burden under s 101.5(5) of the *Criminal Code* to establish that the making of the document was not intended to facilitate assistance in a terrorist act.
The legal issues before the High Court were twofold. Firstly, whether the trial judge erred in directing the jury that the words "connected with ... assistance in a terrorist act" had no special or technical meaning. Secondly, and more critically, whether the evidence presented at trial suggested a reasonable possibility that the making of the e-book by the respondent was not intended to facilitate assistance in a terrorist act, thereby discharging the evidential burden placed upon him under s 101.5(5) of the *Criminal Code*.
The High Court allowed the appeal, setting aside the orders of the Court of Criminal Appeal and dismissing the appeal against conviction on count 1. The Court reasoned that the trial judge's direction on the meaning of "connected with" was not the primary issue, as the critical question was whether the respondent had discharged the evidential burden under s 101.5(5). The Court held that the evidence relied upon by the respondent, such as his accreditation as a journalist and his interest in Islamic religion, was neutral and did not suggest a reasonable possibility that the making of the e-book was not intended to facilitate assistance in a terrorist act. The Court agreed with the approach of McClellan CJ at CL in the Court of Criminal Appeal, finding that the respondent had failed to discharge the evidential burden, and therefore the defence under s 101.5(5) should not have been left to the jury. The matter was remitted to the Court of Criminal Appeal for consideration of the appeal against sentence.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 9 June 2011 and in place thereof dismiss the appeal against conviction on count 1 of the indictment.
3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for consideration and determination of the appeal against sentence in respect of the conviction on count 1 of the indictment.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Paragraph 1.1 of the particulars for count 1 identified the document which was the subject of count 1 as the e-book. The terrorist act particularised in par 1.2 of the particulars was "an action or threat of action [done or threatened] against any one or more of a number of persons identified in the document including diplomats, military personnel and holders of public office". The intention particularised in pars 1.2(a) and (b) was framed in terms of pars (b) and (c) of the definition of "terrorist act" in s 100.1 of the Code, and the action, or threat of action, was framed in terms of ss 100.1(2)(a) to (e) of the Code.The evidence at trial It was not disputed at trial that the respondent had made the e-book, or that he had intended to do so. The respondent made the e-book between 20 and 23 September 2003 by downloading from the internet various articles written in Arabic concerning Islam and jihad, editing and rearranging them, and inserting a dedication, introduction and other brief commentary of his own[57]. [57]Khazaal [2011] NSWCCA 129 at [5], [17] per McClellan CJ at CL, [187]-[188] per Hall J. Shortly after creating the e-book, the respondent submitted it to the administrators of the "Al-Maqdese" website under the pseudonym "Abu Mohamed Attawheedy", and, after some final formatting changes, it was published on that website[58]. There was some dispute at trial about the nature of the "Al-Maqdese" website. An expert witness called by the prosecution gave evidence that the website was linked to the terrorist group Al-Qaeda, and that it contained a number of publications by leaders of known terrorist organisations[59]. An expert witness called by the respondent gave evidence that the website contained benign material on Islamic issues. An English translation of the e‑book was tendered during the prosecution case.[58]Khazaal [2011] NSWCCA 129 at [5] per McClellan CJ at CL, [189]-[194] per Hall J.[59]Khazaal [2011] NSWCCA 129 at [5] per McClellan CJ at CL, [189] per Hall J. The introduction to the e-book, which (unlike the various chapters) had been written by the respondent, contained the following passage:"This is but a short message I hastily prepared in response to a request from brothers working to support this religion. I was requested to prepare it, in this fashion, to serve as a reference to all brothers or small cells desiring to support this religion.With God's help I set on its compilation and I completed it in few days. I am however convinced that had I sufficient time and had I been settled in my residence I would have produced a better job than this work which has been conceived in haste. However, better 'haste' than never.I pray to the Almighty that this essay would be of benefit to everyone working to support this religion. I seek the Almighty's reward and I seek martyrdom for his sake. I do so running towards it not away from it.I beseech my brothers who read this message to pray that I may attain martyrdom." Chapters 1-9 of the e‑book contained justifications for jihad emanating from religious sources. Jihad was defined as meaning "fighting the infidels to make God's word supreme." The recurrent themes in this part of the e‑book were that jihad is a religious duty, that militant jihad (that is, the killing of "infidels"[60]), is the best form of jihad, and that jihad may involve attaining "martyrdom"[61]. [60]Used in a received sense of disbelievers in Islam: The Oxford English Dictionary, 2nd ed (1989), vol 7 at 927, "infidel", senses 1 and 2b.[61]Used in a received sense of the sufferings and death of a martyr (for the sake of religious belief): The Oxford English Dictionary, 2nd ed (1989), vol 9 at 414, "martyrdom", sense 1.
Decision
Reasons for decision
FRENCH CJ
GUMMOW, CRENNAN AND BELL JJ
(dissent)
HEYDON J
In the event, the trial judge, having come to the view that s 105.5(5) had not been engaged, said "but if I am wrong in that regard, I fail to see how the accused has discharged the evidentiary burden placed upon him by the Code." It was the correctness of that latter proposition that was at issue in this appeal.The evidential burden - the Court of Criminal Appeal's decision McClellan CJ at CL and Hall J both referred to aspects of the evidence relied upon by the respondent to justify a finding that the evidentiary burden in s 13.3(6) was discharged. McClellan CJ at CL referred to four aspects of the evidence, which included the facts that[20]: [20][2011] NSWCCA 129 at [127].•the respondent was an accredited journalist, a researcher and a publisher;•he had acquired and built up a library which he used in his research;• he had a significant interest in the Islamic religion; and • he had written and published articles on benign Islamic issues.Hall J set out a more extensive list of matters including the following[21]: •the range of general material published on the website to which the book was uploaded; •the use of detailed footnotes and references in the book marking it as a reference or research work; and•the absence from the text contributed by the respondent of any notion that he was adopting or promoting the views of those whose work had been included in the book.[21][2011] NSWCCA 129 at [388]. Hall J, with whom McCallum J agreed in respect of the evidential burden, said that[22]: "As a matter of law, it could not ... be said that the evidence ... was incapable of suggesting, as a reasonable possibility, that [the respondent] acted as a professional journalist with an intention that was not one to facilitate assistance in a terrorist act as that expression is to be understood under the Code."[22][2011] NSWCCA 129 at [441]. With respect to their Honours, the question for the trial judge was not whether the evidence relied upon was incapable of suggesting the reasonable possibility necessary to satisfy the evidential burden on the respondent. The question was whether the evidence was capable of supporting that possibility. The fact that the matters relied upon by the respondent were not inconsistent with the absence of an intention to facilitate assistance in a terrorist act did not mean that it was logically open to infer, from those matters, the absence of that intention. The evidence relied upon by the respondent did not suggest a reasonable possibility that the making of the document was not intended to facilitate assistance in a terrorist act. The approach taken by McClellan CJ at CL was, with respect, the approach that should have been taken by the trial judge, albeit it yielded the same result. His Honour said[23]:"Whatever be the difficulties with [the trial judge's] approach to the legislative provision I am satisfied that this evidence was insufficient to discharge the evidentiary burden which fell upon [the respondent]. To discharge that burden [the respondent] had to point to evidence that suggested a 'reasonable possibility' that the making of the particular document was not intended to facilitate assistance in a terrorist act. The evidence to which attention was drawn was entirely neutral in relation to that issue. Whether or not [the respondent] was a journalist who had researched and published in relation to Islam it was his intention in making the document which was the issue in the trial. On that issue, apart from the document itself, without [the respondent] giving evidence or there being other evidence from which his intention could be inferred the evidential burden could not be discharged. There was nothing to support a reasonable possibility that he did not have the relevant intention." (emphasis omitted)His Honour's conclusion was correct. The respondent failed to discharge the evidential burden, which he had to discharge before the defence under s 101.5(5) could be left to the jury. The Crown's ground of appeal is made out. [23][2011] NSWCCA 129 at [128].Connection - the statutory context