The Queen v Khazaal

[2011] HCATrans 279

[2011] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S236 of 2011

B e t w e e n -

THE QUEEN

Applicant

and

BELAL SAADALLAH KHAZAAL

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 9.32 AM

Copyright in the High Court of Australia

GUMMOW J:   Before we call the first matter, we should indicate that if there are any grants of leave today, they will bring with them the requirement to observe the following steps:

1.The submissions for the appellant be filed and served on or before 4 November 2011.

2.The respondents’ be filed and served on or before 25 November 2011.

3.The reply on or before 2 December 2011.

The Registrar will give the solicitors further information as they leave the Court today, but we should indicate that those requirements should be strictly adhered to and it is the task of solicitors to make sure that they are and to nail down counsel accordingly, which is part of a solicitor’s tasks.
Call matter No 1.

MR P.W. NEIL, SC:   May it please your Honours, I appear with my learned friend, MS S.G. CALLAN, for the applicant.  (instructed by Commonwealth Director of Public Prosecutions)

MR P.D. LANG:   May it please your Honours, I appear on behalf of the respondent with my learned friend, MR C.C. WATERSTREET.  (instructed by Lawyers Corp. Pty Limited)

MS K.A. STERN:   May it please your Honours, I appear on behalf of the Attorney‑General of the Commonwealth of Australia intervening.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes.  Now, you have a summons that was stood over?

MS STERN:   I do have a summons that was stood over and what steps we ask the Court to take may depend on whether special leave was granted, although in any event we would just be asking that the summons be stood over.

GUMMOW J:   We will come back to that after we decide what happens with the leave application.

MS STERN:   I am grateful to your Honours.

GUMMOW J:   Yes, Mr Neil.

MR NEIL: May it please your Honours. Further to the written outline, the fundamental question raised by this application, your Honours, is whether in the trial there was evidence on count 1 in the indictment capably engaging the defence under subsection 101.5(5) of the Criminal Code, that is, taking account of the definition of “evidential burden” in subsection 13.3(6), whether the respondent had pointed to evidence that suggested a reasonable possibility that at the time he made the document in question, which for convenience has been referred to as “the book”, he then knowing that it was connected with assistance in a terrorist act, that document was not intended to facilitate assistance in a terrorist act.

HAYNE J:   That presents a question, does it not, about what is meant by “connected with assistance in a terrorist act”?

MR NEIL:   It may, your Honour.  It may, given that there has been discussion in Benbrika and in this particular matter and that there is some difference of view, it would seem, between Justices of this Court, particularly Justice McCallum and the court in Benbrika, on that point.  My learned friends for the respondent advert to that in their written outline very briefly.

BELL J:   Indicating that in the event that special leave were granted, they would seek to contend that the approach in Benbrika should be followed.

MR NEIL:   Yes, your Honour, no doubt based, perhaps, on what fell from Justice Hall in this matter.

BELL J:   Yes.

MR NEIL:   We have put a formal submission that were special leave to be granted, it should be limited to the questions that we have put up, but if the Court took a view that they were matters that were significant, of course we would not be seeking to stand in the way of this Court considering them and deciding them to the extent it regarded as necessary.

Your Honours may have noticed from the separate bundle of materials the relevant sections and perhaps I could briefly draw attention to the “evidential burden” definition in section 13.3(6).  The sections are about the last three pages of the separate bundle of the joint authorities index and one has there the definition of “evidential burden”, meaning:

the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Immediately under that we have section 101.1, which does not play much part here, but under that, an extract from section 100.1.  The statutory definition of “terrorist act” – this is also set out relevantly in the reasons of Justice McClellan, which your Honours no doubt are familiar with in other context – but the great significance to our application is the fact that it encompasses “an action or threat of action” done or made “with the intention of advancing a . . . religious cause”.  We submit in support of this application that the majority in the Court of Criminal Appeal, Justices Hall and ‑ ‑ ‑

HAYNE J:   Sorry, can I just interrupt you.  You emphasise action or threat of action?

MR NEIL:   Yes, your Honour.

HAYNE J:   Do you say that the document is connected with assistance in action or a threat of action?

MR NEIL:   We put it that the document was connected effectively with a threat of action.  There was in the indictment count 2 which the jury could not agree upon.  That was a charge of attempting to urge the facilitation of a terrorist act.  What the Crown had no evidence of and could not do, and upon a retrial the same position would obtain, was point to any terrorist act that occurred in consequence of anything alleged against the respondent.  But we said that there was a clear threat of action against a whole host of people of religious denominations, atheists, nationalities, political and ambassadorial office, of a whole host of countries including all the NATO members, all the Western countries, Australia, et cetera, as identified in Chapter 10 of the book, and it may be convenient for me merely to identify for your Honours from the reasons of Justice McClellan in the application book commencing at page 203 ‑ ‑ ‑

GUMMOW J:   Paragraph?

MR NEIL:   Paragraph 5 of his Honour’s reasons.  Firstly, a brief introductory of the summary of the Crown case at trial, but perhaps more significantly, from paragraph 6 on, an accurate extract of the substantial relevant parts of Chapter 10.  I would not wish to take time to go through all of that, but if I could invite your Honours perhaps to turn over two pages to paragraph 11 of the judgment, application book 206, “The section entitled ‘Targets that should be assassinated’” and there under, your Honours will quickly see the scope of the people who are said to be the enemies of the religion of Islam.  That is not the Crown case.  That is what we say the respondent put forth.  But they are all listed there, and on the next page one sees the sixth country – if you take seven, “Rest of NATO countries” as one unit, Australia is the sixth country and when one reads that and it obviously influenced Justice McClellan, Justice McCallum was much troubled by it, as your Honours recall, her Honour said.  This was, we say, a direct call to terrorist arms against these people and we also ‑ ‑ ‑

HAYNE J:   That was the second count, was it not?

MR NEIL:   No, because we had to prove, your Honour, that the book was connected with assistance in a terrorist act.  We relied on the content of the book as well as the evidence of the expert, Mr Kohlmann, to so persuade the jury, that is, the content of the book was so explicit in its terms and what we do not have here is the introduction to this chapter.  There was no issue it was composed by the respondent endorsing it and, in effect, on a fair interpretation, calling upon readers to adopt it and, by implication, to implement it.  So that this was not in any way a benign set of religious writings or opinions.  It was support to be justified, again as Justice McClellan, we submit, correctly said in the name of religion, but in reality, by means of a perversion of religion. 

There was no attack by the Crown, and there never will be, on the religion of Islam, but we say that merely because the respondent saw fit to put this on what the evidence identified as a terrorist website, meant that it was something where he himself having – there was no issue that he made the document.  There was no issue that he intended to make it.  The issue was whether when he did, he knew it was connected with assistance in a terrorist act.  That was part of the relevance of Mr Kohlmann’s evidence, together with the content itself.

Now, having got to that point, as your Honours may have noticed, Justice Latham took the view, which was agreed in by Justice McClellan, that there was no evidence pointed to by the respondent that even suggested the reasonable possibility that in doing so he did not intend to facilitate assistance in a terrorist act.  But the great difficulty, we submit, with the joint reasons of the majority below is that whatever the test may be to satisfy the evidential burden, there, on the facts of the matter, is an unbroken link between the aim of supporting the Islamic religion, which was the specific purpose at the trial put forward by the respondent as his purpose, and the means by which it was to be supported, namely, by the assassination of the so‑called enemies of Islam, the interlocked aim and means, a court by the definition of “terrorist act” in section 100.1 that I briefly took your Honours to a short time ago.

Now, may I say that when one goes to the reasons of Justice Hall, his Honour identified 13 matters relied upon by the defence as pointing to the reasonable possibility that the document was not intended to assist facilitation of a terrorist act, and that is at application book 317, but having done that, his Honour summarised their effect in a way that was entirely consistent with the way Justice McClellan had done, and that appears, your Honours, at application book 332 and 333.

GUMMOW J:   Paragraph?

MR NEIL:   Paragraph 439.  Your Honours may see there four numbered paragraphs which encapsulate the effect of the 13 points earlier identified by Justice Hall.  We do not cavil with any of that.  We do not cavil with the 13 points.  What we do submit, as Justice McClellan we suggest correctly found, that what his Honour Justice Hall and her Honour Justice McCallum overlooked was that there had to be some linkage between this type of material and the particular document under consideration and all of these matters are entirely neutral.  They do not point to anything one way or the other.

Even though the evidential burden is slight, there must be something, and the great concern about this is that it results in the prospect that anyone can evidently proclaim themselves to be a journalist, proclaim themselves to be a cleric or a mufti or anyone, and come out and put forward material advocating the assassination of religious opponents, including people of high political office and ambassadors and so on and so forth, and say, well, all this is is a scholarly work to do with supporting the religion of Islam.  Our ultimate point is that that just cannot be right.  It would be a twisting of the defence under paragraph (5) of section 101.5.

Your Honours will have seen Justice Latham’s approach.  Your Honours will have seen Justice McClellan’s approach, and we say that logically it is faultless and the omission by their Honours in the majority to direct their attention to the specific book under consideration, which, as her Honour Justice Latham pointed out in her interlocutory judgment addressing the respondent’s argument to her Honour, the respondent’s argument, as it did to the Court of Criminal Appeal, entirely failed to take account of any of the content of the book and, in particular, Chapter 10.

Now, before Chapter 10 – your Honours do not have it all, but it is common ground that there were writings going back to the 1400s which referred to jihad and martyrdom and so on and so forth, but Mr Kohlmann’s evidence, which we submit the jury plainly accepted, was that that was really a religious cloak or justification to support today, at the time of the making and publication of this book, September 2003, that there was a religious, not justification, a religious requirement on true believers to so act. 

As we have submitted in the written outline, no proper religion can advocate, in the words of Justice McClellan in parentheses, the ruthless slaughter of innocent persons in the name of religion, and if a religion purports to do so and an individual says, “Well, I believe it.  I want to support that religion, so I am going to support the religion”, by putting out material on a terrorist website in a false name.  He did not use his own name, he used the name “Attawheedy” as the putative author of the work and he sent his requests to the website in the false name to get it published.

Their Honours Justice Hall and Justice McCallum were strongly influenced by the fact that the evidence proved without question, because the defence tendered them – there were 34 magazines called, in English, “The Call of Islam”, “Nida’ul Islam”, published at Lakemba, and Mr Kohlmann pointed out that the ones that were shown to him in cross‑examination – that is how it arose – contained interviews of very high level al‑Qaeda people, all very supportive of al‑Qaeda’s aims, but none of them in the interviews saying, “Well, we have got to go out and assassinate people”. 

This person who put himself forward as a reputable journalist did not publish any part of the content of Chapter 10 in his own magazine which was coming out monthly in an edition of which the first half was in Arabic and the second half was an English translation.  He only put it on the terrorist website in a false name.  Their Honours, with the utmost respect to them, did not take into account that very important fact when deciding what quality of journalism was this supposed to be, what could it possibly be.  There, we say with the utmost respect, their Honours misdirected themselves as to the proper application of the test.

HAYNE J:   Can I take you back to the Act where we must begin.  Subsection (5) hinges about the notion of “not intended to facilitate”, not intended to facilitate preparation for, engagement of or assistance in.

MR NEIL:   Indeed, your Honour.

HAYNE J:   It is plain, is it not, that that is directing to a subjective intention, the accused’s intention?

MR NEIL:   Yes, the accused’s intention.

HAYNE J:   So subjectively not intended to facilitate preparation, engagement, in this case, assistance.

MR NEIL:   In this case, assistance.

HAYNE J:   Does subsection (5) throw light on the content of subsection (1) in this way?  Does it suggest that the expression “is connected with” used in (1)(b), is referring to a connection that can be captured by describing it as “objectively facilitates”, because if it is, that is not what the jury were told.  They were told, “This is an ordinary English expression.  Do with it what you will”.

MR NEIL:   Indeed.  As your Honours know, Justice Latham largely relied on Justice Whealy in a earlier matter, but that is what her Honour charged the jury.  We would submit that her Honour’s charge was correct, but one of the matters we did bring attention to in the Court of Criminal Appeal – although it is not reproduced in these application books, I do have copies if it is convenient for your Honours to receive them – they are repeated in her Honour’s written charge, which is in the application book, but the most convenient way are a couple of sheets that her Honour handed to the jury where she spelt out the elements of the count 1 offence in a way that is unambiguous and, we say, faultless and, may I say, was the subject of considerable debate between the bar table and her Honour before it was settled and was not the subject of any complaint or objection at any time, even up to today, by the respondent. 

If it would assist your Honours, the particular document is only a couple of pages.  If one goes to page 171 of the application book, it was to go there but for some reason it did not comply with the appropriate rules of the Registry and it did not get in.  But it is not irrelevant.  Your Honours may remember that Justice McClellan relied on that document as saying that – I know he was discussing the proviso, but he said however you look at the directions that her Honour gave, in short, with respect, they fitted the bill in the circumstances.  That is probably the most direct answer I can give you, Justice Hayne, on that question.  I would wish to hand these up if your Honours are prepared to receive them. 

May I, your Honours, start with, purely for convenience and if your Honours do not need it, please discard it, a document her Honour gave each member of the jury and spoke to – she took them right through it – on the meaning of “terrorist act”.  The two have to be read together because “terrorist act” is referred to in the direction.  Then we have the directions on counts 1 and 2 and I would submit that although your Honours may wish to glance at the directions on count 2, it is only those on count 1 that are germane.  Your Honours, in the directions on count 1 on the second page, I am drawing particular attention to paragraph (e) where her Honour in saying:

The accused knew –

she spelt it out –

(that is, he was aware) at the time he made the document, of the connection –

et cetera, but what was required for the jury to be satisfied beyond reasonable doubt before they could conclude that the Crown had proved the necessary connection.  Now, that is, we would submit, correct in law.  It conforms with the section.  It was unchallenged and, I must say in fairness, supported by the Crown at the time.  Your Honours might notice on the first page in paragraph (c) – I have taken your Honours to what her Honour said you had to have for it to be connected – it had to be connected in (c) with any one or more of those things.  By the verdict, we know that the jury was satisfied beyond reasonable doubt of all of those matters.

BELL J:   The jury were not able to agree on count 2 and respecting that count, they sent a note, at application book 122 to 123, in which one can infer at least one member of the jury wished further assistance, respecting the element of intention not in relation to the second count of urging the commission of the Act, does that note convey concern about a particular act, as it were, but rather the question of whether an accused might possess more than one intention.  That was the focus of concern respecting count 2, at least to the extent one can ever divine a matter relating to the jury’s deliberations from a note that is sent.  But it is in that context that one then moves to count 1 in circumstances in which it was considered that subsection (5) was not engaged.  It is perhaps a little difficult to understand the concern that led to the inability to agree on count 2.

MR NEIL:   Can I just refer your Honour briefly to AB 123 at about line 40.  Her Honour said to the jury, “I understand the question”, and in short, she said, “I will come back to it tomorrow” and she did and she gave redirections.

BELL J:   Yes, and she did.

MR NEIL:   Your Honours would bear in mind that count 2 was not the easiest type of count to try and prove.  It was attempting to urge and there may have been some difficulty because it was an attempt charge.  Beyond looking at the words that appear in the application book, one is left perhaps a little uncertain but we would say not so uncertain that one would not have – our submission is that on an important question like this with a critical issue, with two very senior judges of the Supreme Court in a direct clash with two other, albeit senior judges, not perhaps quite so senior, this is the type of issue that really this Court is here for to adjudicate upon. 

It is Commonwealth legislation.  There are other terrorism trials coming up.  There is a retrial listed in this matter for 7 November.  Our friends say there have not been many in the trials at Parramatta.  Justice Whealy gave about 100 interlocutory judgments on everything.  These things are in the pipeline and this results in a substantial lack of clarity.  One of the questions and a practical question, your Honours, is this. 

What position is the new trial judge left in in terms of what directions to give?

GUMMOW J:   You have been driving through a red light for some time, Mr Neil.

MR NEIL:   My apology, your Honours.  May I rely on the written arguments and the reply and those are the applicant’s submissions.

GUMMOW J:   Now, looking at application book 373, paragraph 17, the Director says:

The Applicant does not oppose an order for costs . . . reasonable costs of this application and of the appeal . . . but in relation to the appeal, limited to the costs of the grounds raised by the Applicant.

That would not encompass notice of contention points, would it?

MR NEIL:   Not yet, but our friends were so kind of – they just touched on it.  We are not quite sure where that is going but I would not expect – I mean, what could the additional costs be?  I am asking this rhetorically.  I could say to your Honour without specific instructions, I cannot see that being an impediment in a practical sense.

GUMMOW J:   Very well.  Yes, Mr Lang.

MR LANG:   Thank you, your Honours.  Could I perhaps start with the following proposition raised by my learned friend part way through his submissions this morning which was that their Honours, Justices Hall and McCallum overlooks the fact that there needs to be a link between the documents and the material relied upon by the accused in seeking to discharge the evidential burden, as provided by section 13.3, and he then proceeded to make the following statements that it cannot be that anyone can claim to be a journalist or a cleric and on that basis simply say that he was making a scholarly work in support of his religion.

We do not contend for that and indeed the legislation does not provided for that in the manner in which we argue the legislation should be interpreted.  On the contrary, in advancing that submission my learned friend ignores the very basis of the affirmative defence.  Once it is discharged on behalf of the accused, it then falls to the Crown to prove the intention with which the document was made and if ultimately a jury is satisfied beyond reasonable doubt that that intention was not simply to further religion but to engage in those other characteristics as defined in the definition of “terrorist act” under section 100.1, then the accused is guilty of the offence.  It matters not that he has styled himself a cleric or journalist.

In any event, as I have set out quite in some detail in the written submissions, we would say that by and large the submissions advanced on behalf of the Crown are either arguments based solely on facts, and here again my learned friend, in our submission ‑ ‑ ‑

BELL J:   Mr Lang, can I interrupt for a moment to just raise this with you.  As things stand, your client will face a retrial on 7 November at which the law will be explained consistently with the majority respecting the words “connected with”, a construction which you submit is inconsistent with the decision of the Victorian Court of Appeal and wrong and which, as I read your submissions, you contend had the jury been correctly instructed would likely have led to the acquittal of your client.

MR LANG:   Certainly, your Honour, yes.

BELL J:   That unsatisfactory position will remain unless special leave is granted and you have the opportunity to put on your notice of contention, will it not?

MR LANG:   Well, it will in this respect.  Obviously if the respondent is ultimately found guilty, the matter will be ventilated at a later stage, that is so.  Of course, were special leave granted, then we would naturally contend that the Benbrika approach or the approach adopted in England, which differs to a certain extent, is to be preferred over that currently adopted in New South Wales.  Indeed, we would submit that the two topics really cannot be considered in isolation, as his Honour Justice Hayne adverted to earlier.  One must really look to the terms of the affirmative defence in order to understand the offence provision itself.

BELL J:   The matter I am raising with you is it might be not really apt to say this is a case where the division in the court turned purely on facts and it is not an appropriate matter for special leave.  There are broader issues.

MR LANG:   There are broader issues, in our submission, raised on this side of the Bar table.

GUMMOW J:   I think you are in something of a dilemma, Mr Lang.

MR LANG:   For a number of reasons.

GUMMOW J:   You had better put your cards on the table, I think.

MR LANG:   I would have to concede that to the extent that this Court would elucidate the law in relation to the meaning of the words “connected with” that would be matter that we would certainly favour.

GUMMOW J:   I think we have been reading paragraph 12 of your submissions at 367 as foreshadowing a notice of contentions.

MR LANG:   Indeed, your Honour.  If I can return to my thoughts.  Your Honours have our view on the question of special leave in relation to the interpretation of those words and their relevance.  Your Honours, perhaps in light of that concession on my part, there is little point in my advancing any further submissions today.

GUMMOW J:   Yes, thank you, Mr Lang.  Yes, Mr Neil, anything in reply?

MR NEIL:   Your Honour, not beyond the written document.  I am over time and I am content with that.

GUMMOW J:   We will take a short adjournment.

AT 10.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.12 AM:

GUMMOW J:   There will be a grant of special leave in this matter on the grounds indicated in the draft notice of appeal.  The application book should stand as the appeal book supplemented by a book including the materials handed up this morning which were supplied by the trial judge to the jury, the order granting special leave, the notice of appeal and any notice of contention.  In respect of the notice of contention that is foreshadowed on page 367 of the application book in paragraph 12, it seems, Mr Lang, rather to be perhaps tied too closely to the reasoning of the Victorian Court on another section in another piece of legislation.

We would be expecting to get argument on the proper construction of the Act, of all the relevant provisions of the Act.  The grant is conditional upon the provision for costs indicated at paragraph 17 at page 373 of the application book but on terms that that undertaking not have the final limitation as to the grounds raised by the appellant, but it would include the notice of contention if that were to be forthcoming.  What is the situation as to bail?

MR NEIL:   Your Honour, the respondent is on bail.  There were more or less agreed conditions worked out with Justice Adams.  As we understand it, they are all being complied and there is no difficulty.

GUMMOW J:   Thank you.  We are of the view that this would probably be within one day for the appeal.  Does that seem sensible?

MR NEIL:   We would have thought well within one day, your Honour.

MR LANG:   Yes, we agree with that.

GUMMOW J:   Very well.  Do not forget, 4 November is the death knock.

MR NEIL:   If it please your Honour.

MS STERN:   Your Honour, can I just raise the summons?

GUMMOW J:   Just a minute, before you get launched, you have your summons.  Bearing in mind the contents of the appeal book that have just been indicated, that would seem to remove your client’s anxieties.

MS STERN:   Your Honours, yes, that is correct.  So we would not seek any order on the summons.

GUMMOW J:   Yes.  So we will dismiss the summons.  There should be no difficulty in the parties supplying your client with their written submissions, I would have thought.

MR LANG:   Not for our part.

MR NEIL:   Not at all, your Honour.

GUMMOW J:   If any problem emerges you can make a further application.

MR NEIL:   Your Honours may have noted that Ms Stern was elevated to Senior Counsel last night.

GUMMOW J:   Yes, we did.  We miss nothing.  All right.

AT 10.16 AM THE MATTER WAS CONCLUDED