R v Khazaal

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.