R v S - [2020] NZHC 1710

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-007098

[2020] NZHC 1710

THE QUEEN

v

“S”

Hearing: 9 July 2020

Counsel:

HDL Steele for Crown

BL Sellars QC and SJ Bird for Defendant

Judgment:

16 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on 16 July 2020 at 11.00 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. BL Sellars QC, Auckland.

R v “S” [2020] NZHC 1710 [16 July 2020]

Alleged terrorism?

[1] S is charged with offences including possession of offensive weapons—a hunting knife and throwing star—and possession of objectionable publications. The latter include an Islamic State video on how to kill “non-Muslims”, in which a masked man cuts the throat and wrists of a restrained prisoner. The Crown alleges S sympathises with Islamic State, and this informs his possession of weapons. The Crown applies to add a charge under s 6A of the Terrorism Suppression Act 2002— the Act. The charge alleges S, on or about 9 August 2018, planned or otherwise prepared to cause death or serious bodily injury.

[2] S opposes the application. He contends the evidence does not sustain the charge and more fundamentally, no such offence exists under the Act.

Background

[3] S is from Sri Lanka. He arrived in New Zealand 21 October 2011. S sought and was given refugee status.

[4] On 29 April and 25 May 2016, Police formally warned S about posting objectionable material on the web. The material was staunchly anti-Western and violent. It included videos and pictures of graphic violence, comments advocating violent extremism, and expressions of support for recent terrorist attacks by Islamic State.

[5] S did not desist. Using aliases, S continued to post similar material to the web. These included graphic images of executions, self-mutilation and torture. S also posted this comment:

One day I will go back to my country and I will find kiwi scums in my country (its very easy to find) and I will show them.. what will happen when you mess with [S] while I’m in their country. If you’re tough in your country.. we are tougher in our country scums #payback.

[6] S’s Facebook posts alluded to martyrdom. On 23 April 2017, S quoted an Islamic State lyricist:

I WILL FILL THE ENEMIES WITH STABBING AND CUT OFF THEIR HEADS VIOLENTLY

[7] S also told a worshipper at an Auckland Mosque he wanted to go to Syria “to fight for ISIS”.1

[8] On 19 May 2017, S booked flights for his family to Kuala Lumpur, and for himself to Singapore via Kuala Lumpur. All were for the next day. S’s ticket was one- way. Police…

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.

Continue reading R v S

Details

AGLC: R v S [2020] NZHC 1710
Case: [2020] NZHC 1710
Decision Date: 16 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v "S" involved a defendant charged with possessing offensive weapons and objectionable publications. The Crown sought to add a charge under the Terrorism Suppression Act 2002, alleging the defendant had planned or prepared to cause death or serious bodily injury. The defendant opposed the application, arguing that the evidence did not sustain the charge and that no such offence exists under the Act. The court had to determine whether planning or preparing to cause death or serious bodily injury could constitute a terrorist act and whether the defendant's actions engaged the terrorism provisions. After careful analysis of the statutory language, context, and legislative history, the court concluded that the Crown's proposed interpretation was incorrect. The court held that buying a knife, even with the intent to use it in a potentially fatal attack, was not an act intended to cause death or serious bodily injury. The court found that the proposed charge did not disclose an offence, and dismissed the Crown's application to add a charge under the Act.

Final orders: The application to add a charge under the Act is dismissed. The Crown is to provide a copy of this judgment to the Attorney-General, Solicitor-General, and Law Commission.

Orders