The Queen v Abdirahman-Khalif

Case [2020] HCA 36

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

THE QUEEN  APPELLANT

AND

ZAINAB ABDIRAHMAN-KHALIF  RESPONDENT

The Queen v Abdirahman-Khalif

[2020] HCA 36

Date of Hearing: 3 September 2020
Date of Judgment: 14 October 2020

A5/2020

ORDER

1. Appeal allowed.

2.Set aside the orders of the Full Court of the Supreme Court of South Australia made on 31 October 2019 and, in their place, order that the respondent's appeal against conviction be dismissed.

On appeal from the Supreme Court of South Australia

Representation

S M McNaughton SC with P J Doyle and C J Tran for the appellant (instructed by Director of Public Prosecutions (Cth))

M E Shaw QC with B J Doyle for the respondent (instructed by Caldicott Lawyers)

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 Abdirahman-Khalif

Criminal law (Cth) – Terrorism – Membership of terrorist organisation – Where respondent convicted of offence of intentionally being member of terrorist organisation contrary to s 102.3(1) of Criminal Code (Cth) – Where s 102.1 provided "member" of terrorist organisation includes person who has taken steps to become member of organisation – Where respondent detained attempting to travel to Turkey – Where respondent's seized electronic devices contained extremist material produced by and expressing support for Islamic State – Where respondent accessed websites containing practical advice for women travelling to Islamic State-controlled territory – Where expert evidence adduced at trial as to nature, aims and ideology of Islamic State – Where conviction quashed on appeal – Whether Crown required to adduce evidence of process by which Islamic State recruited, inducted and accepted members – Whether trial judge misdirected jury as to physical and mental elements of offence – Whether summing up unbalanced.

Words and phrases – "absence of a constitution or rules of membership", "criteria of membership", "elements of the offence", "Islamic State", "member of a terrorist organisation", "membership process", "nature of terrorist organisations", "organisation", "physical and mental elements", "preparatory or anticipatory acts", "proof of membership", "steps to become a member", "terrorism", "terrorist act", "terrorist organisation", "unbalanced summing up".

Criminal Code (Cth), ss 100.1, 102.1, 102.3.

  1. BELL, KEANE, NETTLE AND GORDON JJ. This is an appeal against a judgment and orders of the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal (Kourakis CJ and Parker J, Kelly J dissenting), quashing the respondent's conviction of an offence of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code (Cth) ("the Code").

  2. The principal issue arising on the appeal is whether the majority of the Full Court erred in holding that the evidence that the Crown adduced at trial was incapable of sustaining the conviction because it did not establish how members of the organisation were recruited or selected, or the process by which members were inducted and finally accepted into the organisation. For the reasons which follow, the…

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The Queen v Abdirahman-Khalif [2020] HCA 36
Case
[2020] HCA 36
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CaseChat Overview and Summary

The case of *The Queen v Abdirahman-Khalif* involved an appeal to the High Court of Australia concerning a conviction for intentionally being a member of a terrorist organisation, contrary to section 102.3(1) of the *Criminal Code* (Cth). The respondent had been convicted of this offence, but her conviction was subsequently quashed by the Full Court of the Supreme Court of South Australia. The appeal to the High Court centred on whether the evidence adduced at trial was sufficient to sustain the conviction, specifically in light of the Full Court's finding that the Crown had failed to establish the process by which the organisation recruited, inducted, and accepted members.

The legal issues before the High Court included whether the Crown was required to present evidence detailing the recruitment and induction processes of the terrorist organisation, and whether the trial judge had misdirected the jury regarding the physical and mental elements of the offence, leading to an unbalanced summing up. The definition of "member" under section 102.1 of the *Criminal Code* was also relevant, as it included persons who had taken steps to become a member of an organisation.

The High Court allowed the appeal, finding that the majority of the Full Court had erred in their assessment of the evidence. The Court clarified that the offence under section 102.3(1) requires proof that the person intentionally is a member of an organisation, that the organisation is a terrorist organisation, and that the person knows it is a terrorist organisation. The Court held that the evidence, including the respondent's possession of extremist material and her actions indicating an intent to travel to territory controlled by Islamic State, was capable of sustaining a conviction, even without explicit evidence of a formal membership process. The Court reasoned that the definition of "member" encompassed preparatory or anticipatory acts, and that the absence of a formal constitution or rules of membership did not preclude a finding of membership.

Consequently, the High Court set aside the orders of the Full Court of the Supreme Court of South Australia and ordered that the respondent's appeal against her conviction be dismissed.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 31 October 2019 and, in their place, order that the respondent's appeal against conviction be dismissed.

Background

Background to the litigation

The principal issue arising on the appeal is whether the majority of the Full Court erred in holding that the evidence that the Crown adduced at trial was incapable of sustaining the conviction because it did not establish how members of the organisation were recruited or selected, or the process by which members were inducted and finally accepted into the organisation. For the reasons which follow, the majority did so err, and the appeal should be allowed.The facts The respondent was born in Kenya, in a refugee camp in Utanga, on 1 January 1995. She later moved with her family to Kakuma Refugee Camp in Northern Kenya, where she remained until she immigrated to South Australia with her mother and brothers in 2009. She lived with her mother and brothers in an Adelaide suburb and was schooled, first, at the Adelaide Secondary School of English, then at the Islamic College of South Australia and, finally, in years 11 and 12, at the Roma Mitchell Secondary College. She completed year 12 at the end of 2013. While attending the Islamic College, she was generally regarded as a high achiever, and a very high achiever in Arabic, with a genuine interest in Islamic religious studies. She identified as a Sunni Muslim. In January 2014, she began to study for a Diploma in Science and Technology (which is a pathway toward studying nursing) at the University of South Australia, but in March 2016 she ceased study before completion of the course. She became an Australian citizen on 6 May 2015. On 13 July 2016, unbeknown to her family, and using almost all her savings, the respondent purchased a one-way ticket for a flight from Adelaide to Istanbul, Turkey, departing the next day, at a cost of approximately $1,200. On the next day, without telling her mother and brothers, she went to Adelaide Airport with only carry-on luggage, her passport and her certificate of Australian citizenship. She had with her just $180 in cash, and, with only $14.38 remaining in her bank account, she had no means of purchasing a return ticket. She was detained by Australian Border Force officers at the airport and interviewed by Australian Federal Police ("AFP") officers. When asked why she was intending to fly to Turkey, she answered that she was going on a holiday and had booked two nights' accommodation in a hotel at a cost of $74, which she intended to pay out of the cash she had with her. She also said that she had watched videos on YouTube (a video streaming website) of people working for aid organisations and suggested that she might find work of that nature, although she did not know any more details of it than that. The respondent's mobile phone was seized by the AFP and found to contain propaganda and other extremist material produced by and expressing support for Islamic State[1]. For example, in a blog post downloaded to the respondent's phone, dated 23 November 2014, appeared the following:[1]Islamic State is a terrorist group based predominantly in Iraq and Syria that adheres to an extreme Salafist ideology and advocates, by way of dissemination of propaganda, for violent global jihad against the kuffar (non-believers) and enemies of Islam: see [29]-[33], [47] below."We believe in humbling ourselves before the Prophet Muhammad, and that it is haram to ignore his words. And it is haram to make Takfeer upon those who have earned the highest of degrees and the noblest of positions, of which are the four rightly-guided caliphs (Abu Bakr, Umar, Uthman [and] Ali ), the Sahabah (companions of the Prophet), and members of his household....We believe that Jihad fisabilillah (fighting in the path of Allah) is an obligation upon every single Muslim in the effort to liberate occupied Muslim lands. And that the obligation of jihad is one that is constant, to be performed under the commands of a righteous leader or even one that is a sinner, and the biggest sin after Kufr (disbelief in Allah ) is to reject or hinder Jihad fisabilillah at a time when it is made Wajib (obligatory) upon every single Muslim. Imam Ibnu Hazm said: 'There is not a sin after (the sin of) Kufr which is worse, than the sin of one who prevents Jihad against the disbelievers when it is commanded by Islam, and that is the hindering of the Muslims to perform Jihad against the disbelievers with the excuse that a Muslim may be a Fasiq (venial sinner), though this (character of a Fasiq) is not considered as a justification (to prevent jihad).'...And since the Muslim countries of today are ruled by the laws of the Tawagheet (tyrants) and disbelief, we are convinced of the Kufr and apostasy of the rulers of these lands and their military forces. And to fight them is more obligatory than to fight the leaders of the cross (Crusaders), and we give warnings and reminders that we will fight the forces (whose apostasy and loyalty to the disbelievers are clear) that fight the Islamic State, even if they call themselves with the names of the Arabs or Islam....We hold that those who preceded us in (leaving for) Jihad, they are those who are honoured, and it is our responsibility to support (taking care and be of service to) the families of the Mujahideen and their properties. ...Rasulullah said: 'Whoever provides for a fighter in the cause of Allah has actually fought, and whoever takes care of the family of a fighter has actually fought.'"

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BELL, KEANE, NETTLE AND GORDON JJ (dissent) GAGELER J (dissent)
That was no more and no less than an accurate summary of an aspect of the prosecutor's argument which it was incumbent upon the trial judge to summarise for the benefit of the jury. Conclusion It follows that the appeal should be allowed. The orders of the Full Court made on 31 October 2019 should be set aside, and, in their place, it should be ordered that the respondent's appeal against conviction be dismissed. I would uphold the contention of the respondent that the trial judge failed adequately to direct the jury as to the application of the evidence relied on by the prosecution to prove intentional membership of a terrorist organisation. On that basis, I would dismiss the appeal. Against the background of the evidence and procedural history recounted by the majority, I can explain my reasons quite briefly. In doing so, I adopt the nomenclature and abbreviations of the majority. Departing in some respects from the standard scheme of the general principles of criminal responsibility set out in Ch 2 of the Code[47], s 102.3 spells out exhaustively and compendiously the "physical elements" and "fault elements" of the offence it creates. A person commits the offence of "membership of a terrorist organisation", without more, if three specified elements of the offence are satisfied. The first element is that "the person intentionally is a member of an organisation". For that element to be satisfied, the state of affairs that the person is in fact a member of an organisation must exist, that state of affairs must be the product of an exercise of the person's will[48], the person must be capable of exercising control over that state of affairs[49], and the person must mean that state of affairs to exist[50]. The second element is that "the organisation is a terrorist organisation". The third is that "the person knows the organisation is a terrorist organisation".[47]See McSherry, "Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws" (2004) 27 University of New South Wales Law Journal 354.[48]Sections 4.1(1)(a), 4.1(2), 4.2(1) and 4.2(2) of the Code.[49]Sections 4.1(1)(a), 4.1(2), 4.2(1) and 4.2(5) of the Code.[50]Sections 4.1(1)(a), 4.1(2), 4.2(1) and 5.2(1) of the Code. The second and third of those elements were not in issue in the trial. As to the second, the character of "Islamic State" as a "terrorist organisation" was the subject of formal agreement. The agreement was that "Islamic State" met each of the two alternative limbs of the definition of "terrorist organisation" in s 102.1(1) of the Code. It was an organisation directly and indirectly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts within the meaning of para (a) of the definition. And it was the organisation specified in the Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth) for the purposes of para (b) of the definition. The second part of the agreement brought to the identification of "Islamic State" a measure of precision lacking from the first part of the agreement. That was because the Attorney-General, as the Minister administering the Code, was required by s 102.1(2) of the Code to be satisfied on reasonable grounds that the organisation to be specified was one that either directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act or advocated the doing of a terrorist act before the Governor-General was permitted to make the Regulation. The grounds for the Attorney-General's satisfaction as to both of those matters in relation to "Islamic State" were set out in a Statement of Reasons. The Statement of Reasons became an attachment to an Explanatory Statement to the Regulation[51] which was registered on the Federal Register of Legislation maintained under the Legislation Act 2003 (Cth). The Explanatory Statement, including the Statement of Reasons, was therefore available to be considered in confirming the meaning of "Islamic State" as specified in the Regulation or in fixing that meaning to the extent that the meaning was ambiguous or obscure[52]. [51]Explanatory Statement, Select Legislative Instrument No 108, 2014.[52]Section 13(1) of the Legislation Act2003 (Cth) read with s 15AB of the Acts Interpretation Act 1901 (Cth).

Ratio Decidendi

Legal Principle Established

Established by:

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