R v Khazaal

• Jurisdiction: Australia Federal only
• Judge: Gummow,Crennan,Bell JJ.,Heydon J.
• Judgment Date: 10 August 2012
• Neutral Citation: 2012-0810 HCA A,[2012] HCA 26
• Court: High Court
• Docket Number: S344/2011
• Date: 10 August 2012

The Queen

Appellant

and

Belal Saadallah Khazaal

Respondent

[2012] HCA 26

French CJ, Gummow, Heydon, Crennan and Bell JJ

S344/2011

HIGH COURT OF AUSTRALIA

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.

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)

ORDER

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.

FRENCH CJ.

Introduction

1 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 3August 2008 with a nine year non-parole period expiring on 3August 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.

2 The document the subject of the indictment was an electronic book entitled Provisions on the Rules of Jihad: Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels (‘the book’). It was the Crown's case that the respondent selected, compiled and edited downloaded material from the Internet and added his own text to it by way of a dedication and foreword. His conduct in so doing was said to constitute intentionally ‘making a document’ for the purposes of s 101.5(1) of the Code. The book included advice on techniques of assassination and listed categories of targets for assassination, including holders of public office in a number of countries, one of which was Australia. A more detailed account of the content of the book and other evidence relevant to this appeal appears in the joint judgment 3.

3 The appeal was allowed by the Court of Criminal Appeal on the basis that the trial judge erred in declining to leave to the jury the defence, under s 101.5(5) of the Code, that ‘the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.’ The point of difference between the trial judge and the majority in the Court of Criminal Appeal was on the question whether the respondent had discharged the evidential burden necessary to invoke the defence.

4 On 7 October 2011, Gummow, Hayne and Bell JJ granted the Crown special leave to appeal to this Court from the decision of the Court of Criminal Appeal.

5 For the reasons that follow the appeal should be allowed.

The issues

6 The two issues for determination in this appeal were:

• 1. Whether the respondent had discharged the evidential burden necessary to enliven the defence under s 101.5(5) of the Code — this was the question raised by the Crown's notice of appeal.

• 2. Whether the trial judge's direction to the jury in relation to the requirement that the document be ‘connected with’ assistance in a terrorist act was sufficient — this was the question raised by the respondent's notice of contention.

The evidential burden — general law and the statute

7 The judge in a trial by judge and jury is required to direct the jury on the law which they must apply in determining whether the Crown has established the guilt of the accused. The judge must direct the jury as to each element of the offence which the Crown must prove and each defence lawfully available to the accused.

8 Some defences must be negatived by the prosecution as part of establishing the commission of the offence. In such a case the accused does not have to point to evidence capable of raising the defence. There are other defences which are not lawfully available to the accused unless there is evidence capable of supporting them. In such a case the accused is said to bear the evidential burden 4. Under the general law, in a case in which the evidential burden is on the accused, that burden is discharged if there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence had been negatived 5. The legal burden then shifts to the prosecution to negative the defence beyond reasonable doubt. The question whether the evidential burden has been discharged is a question of law for the trial judge.

9 The detailed statutory framework is set out in the joint reasons 6. Section 101.5(5) provides a defence to a charge of an offence under s 101.5(1). The defence qualifies the scope of the offence which s 101.5(1) creates. Section 101.5(5) provides:

‘Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.’

10 Section 13.3(3) imposes the ‘evidential burden’ upon a defendant wishing to rely upon any ‘qualification or justification provided by the law creating an offence’ 7. The term ‘evidential burden’ is defined by s 13.3(6):

‘In this Code:

evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.’

The relevant Explanatory Memorandum said of s 13.3 that 8:

‘These provisions accord with basic principles accepted in all jurisdictions. They have been reiterated by the High Court in He Kaw Teh (1984–5) 157 CLR 203 [sic].’

There was only glancing reference to the evidential burden in He Kaw Teh v The Queen9. The case was concerned with whether mens rea was a necessary element of the offence of importing a prohibited drug contrary to s 233B(1) of the Customs Act 1901 (Cth). Gibbs CJ referred to ‘evidence which raises the question’ 10 of a defence of honest and reasonable mistake. Wilson J referred to the ‘evidential burden’ as ‘the burden of adducing evidence’ 11. Brennan J spoke

of an evidential burden passing to an accused ‘to raise a reasonable doubt as to his knowledge’ 12. Dawson J spoke of ‘the burden of providing the necessary foundation in evidence’ 13.

11 The reference to He Kaw Teh in the Explanatory Memorandum tends to suggest that the definition of ‘evidential burden’ in s 13.3(6) was not intended to change the general law. The term ‘reasonable possibility’ was used by this Court in Taiapa v The Queen14 in relation to the evidential burden on an accused to raise the defence of compulsion under s 31(1)(d) of the Criminal Code (Q). The Court referred to the ‘evidential burden’ as requiring the accused to ‘identify some basis in the evidence raising as a reasonable possibility the existence of reasonable grounds for his belief’ 15. Nevertheless, it is the text of s 13.3(3), rather than the general law, that must be applied in determining whether an evidential burden imposed by the Code has been discharged.

12 A defendant bears the evidential burden, as defined, in relation to a defence under s 101.5(5). If that burden is discharged, the prosecution bears the legal burden of negativing the defence beyond reasonable doubt 16. The statutory collocation ‘evidence that suggests a reasonable possibility’ is not readily amenable to translation into other terms. But, applying the ordinary meaning of the words of the definition, it is sufficient for the disposition of the Crown's appeal that s 13.3(3), read with s 13.3(6), requires evidence that is at least capable of supporting the inference that the matter to which the evidential burden applies ‘exists or does not exist.’ This approach reflects the general law position with respect to the evidential burden. If no such inference is able to be drawn from the evidence there is no logical basis for saying that the evidence suggests that inference as a reasonable possibility 17. Evidence which is merely consistent with or not inconsistent with such a possibility does not ‘suggest’ it. The interaction of the ‘evidence’ and the ‘possibility’ in such a case may be like that of ships passing in the night.

Importantly, as s 13.3(5) provides, the question whether an evidential burden has been discharged is one of law. In that respect also the Code and the general law coincide.

The evidential burden — the trial...