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High Court of Australia Transcripts |
Last Updated: 2 March 2012
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S344 of 2011
B e t w e e n -
THE QUEEN
Appellant
and
BELAL SAADALLAH KHAZAAL
Respondent
FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN
J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 2 MARCH 2012, AT 10.01 AM
Copyright in the High Court of Australia
MR P.W. NEIL, SC: May it please your Honours, I appear for the appellant with my learned friend, MR S.G. CALLAN. (instructed by Commonwealth Director of Public Prosecutions)
MR P.D. LANGE: If your Honours please, I appear on behalf of the respondents with my learned friend, MR C.C. WATERSTREET. (instructed by Lawyers Corp Pty Limited)
MS K.A. STERN: May it please the Court, I appear for the Attorney-General for the Commonwealth seeking leave to appear for a limited purpose only. (instructed by Australian Government Solicitor)
FRENCH CJ: We have had the opportunity of reading your summons and the supporting affidavit, Ms Stern. The view of the Court is that you should renew your application if the occasion arises to do so.
MS STERN: If the Court pleases.
FRENCH CJ: Thank you. Yes, Mr Neil.
MR NEIL: May it please your Honours. Your Honours will just, as I understand it, have received our brief outline of propositions. May I return to that shortly and just indicate to your Honours, to the extent that it may be of assistance, that the facts so far as seem relevant to the appellant are summarised firstly in the appellant’s chronology filed on 4 November last but a little more fully in the appellant’s principal submissions refiled on 14 February this year with references commencing under Part V on page 3 at paragraph 11. There are some differences between the parties but perhaps of minor nature.
Just while I am with that last document, may I, if it will assist your Honours, identify so far as concerns the appeal at this stage rather than the contention, the issues that the appellant submits are raised by the appeal and they are set out in paragraph 8 of the appellant’s submissions on the second page at the foot. They concern, fundamentally, whether the learned trial judge Justice Latham erred in finding it a matter of law that a statutory defence, being under paragraph (5) of section 101.5 of the Criminal Code, regarding whether an evidential burden had been satisfied by the respondent could be put to the jury. Her Honour ruled it could not. Our submission is that her Honour was correct.
Our submission is that in the Court of Criminal Appeal Justice McClellan, the chief judge at common law, was correct and their Honours in the majority, in our very respectful submission, erred in concluding otherwise. Your Honours, we have, of course, looked at cases such as Braysich. They, on one view, pose perhaps something of a dilemma, but may I deal with that immediately and submit this. Braysich was a very different case from this in a number of respects, not merely because of the nature of the Corporations Law criminal provision, but that was a case where two important pieces of evidence which this Court by a majority - - -
FRENCH CJ: The reference is [2011] HCA 14; (2011) 243 CLR 434.
MR NEIL: May it please your Honour, indeed – two important pieces of evidence that the majority in this Court, of whom your Honour the Chief Justice was one, had been ruled by the trial judge as inadmissible on the issue. Now, in this matter there was no evidence that was excluded. All of the evidence was in. The issue arose at the end of all the evidence and the question was, did the factors in the evidence pointed to by the respondent, taken at their highest in his favour or against the Crown at the trial, raise the suggestion of a reasonable possibility that if the elements of the offence were otherwise proved he did not intend to facilitate assistance in the commission of a terrorist act? Her Honour ruled in favour of the Crown. It is accepted and it was always accepted that had her Honour ruled otherwise, then an obligation at the trial would have fallen on the Crown to satisfy the jury beyond reasonable doubt that the defence must be rejected.
It has been put in various ways of possibly this adding an additional element to the elements of the offence, but however one considers it, that would have been the position. It never got that far. We place, as your Honours may have noticed, considerable reliance on firstly what fell from her Honour the learned trial judge in her reasons, which are set out in the application book commencing at page 5 - - -
FRENCH CJ: Just before you move to that, section 101.5(5) which, as it were, disapplies subsections (1) and (2) in certain circumstances, you would characterise that, would you, as a qualification within the meaning of section 13.3(3)?
MR NEIL: It would appear to, yes, your Honour. When one goes, if it is convenient, briefly to 13.3(3), in paragraph (6):
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.
In this trial, the respondent gave no evidence, but that does not preclude him from relying on the defence if there is any evidence within the whole of the evidence before the court that he can merely point to which raises no more than the suggestion of a reasonable possibility of the particular matter existing and if so, that has to be negatived by the Crown beyond reasonable doubt.
FRENCH CJ: Well, this is that a matter does not exist, I suppose is it not, the matter being an intention to facilitate?
MR NEIL: Yes. Although, it seems to have been accepted that that would, in practical terms, put upon the Crown an obligation of establishing beyond reasonable doubt that - - -
FRENCH CJ: Was not intention.
MR NEIL: He does not have to point to or establish an actual intention. We have to, in a sense, in a practical way establish an affirmative intention of a prescribed nature.
FRENCH CJ: Well, if he can point to evidence that suggests a reasonable possibility that the document was not intended to facilitate, you accept that the Crown would then have to prove beyond reasonable doubt that the document was intended to facilitate?
MR NEIL: In practical terms, yes, your Honour.
CRENNAN J: Is it part of your argument that that is an increased burden compared with the burden on the Crown under 101.5(1)(c)?
MR NEIL: Your Honour Justice Crennan, in a sense, yes, but in the sense that – and it depends how this is properly to be expressed. There have been different views by the learned trial judge, the minority and the majority of the Court of Criminal Appeal, comments in Benbrika and it, perhaps, may fall to your Honours to phrase it in a particular way, but Justice Latham concluded that the material that the accused pointed to as raising the reasonable suggestion was material which, in effect, added or placed upon the Crown a burden of proving an additional element of the offence.
So that her Honour approached this in a dual way and there was, it would seem to us, with respect, some change of position by the respondent before the Court of Criminal Appeal. Her Honour firstly said the defence has not been engaged because of her Honour’s construction of the legislative provisions. Her Honour then said, “If I am wrong about that, I fail to see how the evidence has the capacity to engage the defence.”
Now, in our principal submissions and in our short outline of points handed up this morning we have said our position has always been that her Honour was right in both respects. Our friends disagree with us and they have sound arguments, no doubt, and it is perhaps not an easy question. Her Honour’s reasons so far as concerns the construction argument commence in the application book at page 8 at paragraph 12 and basically go to the end of that short judgment until one gets to paragraph 23 on page 11.
Now, your Honours, we have reflected on this and we were always of the view that that reasoning was sound and we cannot put it in a more efficient way than her Honour did. We seek to adopt it as correct, and we do so, your Honours, if I may go back a page, in the context of the way the trial was run. Your Honours see or may notice later in the first paragraph of our notes handed up this morning, we concede that at this level trying to rely on things such as criminal appeal rule 4 and section 6 of the Criminal Appeal Act is one thing. If there has been a miscarriage of justice, okay, they are out the window, we concede that.
But the way this trial was run they were very much in play and not out the window because what happened here was that the respondent at the trial who was represented by very experienced counsel pressed her Honour for a direction in particular terms. That position shifted before the Court of Criminal Appeal and Mr Barker, QC was then Senior Counsel for the respondent and it seems to have shifted again, with the utmost respect, in our friend’s primary submissions.
Leaving aside the ultimate question of miscarriage of justice, one, we would submit, has to look at this from the position that the trial judge was placed in fundamentally by the respondent during the course of the trial as to what was to be done and how it was to be done, and that is why we have made brief mention in our principal submissions of cases such as Vickers and what fell from Justice McHugh in Papakosmas that a trial judge who is asked – and from recollection in writing, and her Honour sets out what she was asked to direct the jury and how it was qualified – to give a direction in specific terms on a critical matter has a function of looking at what she is implored to do on behalf of a party.
Her Honour’s approach to what was put to her and how she resolved it, in our respectful submission, is faultless, and she was left with no practical alternative. The case was not put to her in the way it later sought to be argued perhaps by Mr Barker and possibly here.
Now, if all of that has meant that with the best will in the world people have not construed a critical defence section in a way that may have robbed someone – may risk real injustice, that is a different thing. Our strong submission to your Honours is we are not in that territory, and we are not in that territory on the facts for a number of important reasons which are completely distinguishable from Braysich.
I am conscious, as my learned friend, Ms Callan, of what your Honours in the majority in Braysich said about the care with much precaution which must be exercised before you exclude evidence. That was on the question that evidence had been excluded of good character and of other matters – honesty, matters of that kind - where the case was all about a stockbroker who had done something which, on the face of things, looked wrong but the core issue was his personal honesty and he was a man with six character witnesses of impeccable background.
As your Honours in the majority pointed out, look that alone was enough to say it could be put to a jury and your Honours made it clear for the purpose of illustration it could be put as an issue, somewhat simplistically with other matters around it, that it would be fit for a jury to consider a person of that background who had no apparent motive and who had no positive knowledge that what he was doing was contrary to the ASX rules – would such a person, if one put it rhetorically – be likely to act dishonestly. But this is quite a different matter. The factors that the respondent here sought to rely upon were quite limited in nature and did not touch the critical issue of his admitted, conceded making of the particular document.
I would wish without being prolix to take your Honours to take your Honours to a few passages of that document. I was at page 7 of the application book at paragraph 4 and there her Honour Justice Latham – and this was picked up by Justice McClellan in his Honour’s reasons – identified the elements of the offence:
two physical elements and two fault elements -
and she identified the issue that she had to resolve. As her Honour said -:
there is no issue –
by the time of the trial, at least -
that the accused intentionally made the book.
The dispute was as to its connection with a terrorist act and that brings into contention and I will address that a little later if I may and the accused’s knowledge of that connection. Her Honour said this:
the defences under s 101.5(5) only arise if the Crown has proved the essential elements of the offence.
Now, our friends in reliance upon Braysich, say it is attractive logically, perhaps, to say that the jury goes through a process and they find – if they do element one, prove beyond reasonable doubt, then element two and so on and if they get to that point it is only then, if there is evidence that may raise the suggestion of the reasonable possibility, that they have to consider whether the Crown then must satisfy them beyond reasonable doubt he had no intention to facilitate the commission of a terrorist act.
I am hoping to persuade your Honours that Justice Latham and Justice McClellan were correct. Upon the directions actually given that the terms of those directions were such that they precluded – if they were accepted beyond reasonable doubt as the jury did – they precluded the availability of this defence. But, her Honour – to assist your Honours – identifies the elements. She then discusses section 13.3. Now, in paragraph 9 – this could be a little controversial because her Honour makes it plain that the respondent was:
pressed to explain what was to be submitted to the jury as to the accused’s intention in making the book –
Now, that was a request for what counsel for the respondent was going to put to the jury, if permitted. That was a legitimate inquiry of a trial judge who had been asked to make a specific direction. That is not to be read, with respect, as something that might have fallen from her Honour and it did not fall in that way. But the position was put to her Honour. The accused intended to support the Islamic religion by compiling a reference book containing the views of authors concerning the role of and rules of jihad in the Islamic religion by lawful means. We rely on the last sentence:
the method adopted by the accused to support the Islamic religion (the compilation of the book) ignores the precise nature of the book’s contents, including references to the assassination of foreign leaders of state and to other acts of violence carried out in the cause of “jihad”
Her Honour says and the majority in the Court of Criminal Appeal said this was not the correct approach. The difficulty with that was that it corresponded with the Crown case. We do not think we can argue that merely because some evidence may have a correspondence with the Crown case and may have more than one quality and may be capable of a submission that you could look at it this way or that way that you can exclude it purely for that reason.
In that respect, her Honour, may have gone a little far. I do not wish to submit that she did but we want to be fair about this. In effect, we are representing the Crown and this is a serious matter for the respondent who otherwise confronts a lengthy gaol term. So, fairness is the key to our approach.
Nevertheless, despite that, the way her Honour went about it in construing the section was correct and her finding that the evidence taken at its highest did not raise more than the mere possibility of the matter in question factually was unimpeachable. That is the thrust of our argument on the appeal, which was appeal ground 4 before the Court of Criminal Appeal.
Paragraph 11 is of significance because her Honour sets out what was the ultimate direction sought and notes that it was put to her that no other direction was necessary. Now, I am not going to go back about miscarriage of justice but when you are in that position and you are a trial judge your function, with respect, must be to decide whether the submission you are asked to make as a direction of law to the jury is good law or not. You are not there to compose something else that is not asked for. This happened after a lengthy debate. My friend, Mr Lange, was there. He knows that. I was there. This took some days of debate.
When we get to her Honour’s written directions, which her Honour delivered and amplified to some extent orally, there was, as would be expected, significant debate between the Bench and the Bar table. I am not going to submit they were agreed directions but, at the end of the day, no one put their hand up and said there was anything wrong with them. People had different nuances on them but our position is that the directions her Honour gave were correct in law.
We do not understand that our friends say to the contrary except with respect to the matters that arise on the contention. Other than that, as we understand our friends, they take no issue with the correction of her Honour’s directions. Her Honour went on - - -
CRENNAN J: The burden of their argument, as I understand it, is that the evidential burden was satisfied.
MR NEIL: It is. It is. That, of course, is a question of law. It was a question of law for her Honour, then for the CCA and now for your Honours. In one sense, it is quite simplistic but when one looks at what the answer is, there is some relevance in how the trial was conducted and how the trial judge was asked to direct. It cannot be stepped aside by saying we have re-thought it and because of that, somehow or other, there has been some manifest injustice which requires intervention, in our respectful submission.
The nub of her Honour’s legal construction is in the application book at page 8 commencing at paragraph 12 but going to paragraph 13, and if your Honours will forgive me, I will not read it all out because it is quite clear and concise. Her Honour was absolutely clear, in paragraph 14, of drawing the distinction between a matter in section 13 and a fault element of the offence. At another point, and I hope I identify the passage for your Honour, her Honour was also completely clear that the way the legislation was framed in paragraph (5) of section 101.5 was to say subsections (1) and (2) do not apply. Our friends place some reliance upon that. We say it does not matter for reasons that we have summarised in the written outline handed up this morning. In paragraph 17, in the second sentence in particular, her Honour we say undoubtedly correctly states the law and in the context of the threshold being relatively low, and perhaps one brief mention to Braysich:
in that the evidence, taken at its highest, need only be suggestive of the possibility of the absence of intention, it is not sufficient that it is a mere possibility.
Before her Honour in the Court of Criminal Appeal, the Crown had not quite used that expression, but it had used a similar expression. It had put that a bare possibility was not enough because section 13.3(6) says it must be a reasonable possibility, no doubt because anything is possible and you can point to any number of mere or bare possibilities without, as a matter of law, deciding on the material objectively that it is reasonable in the context in which it falls for consideration.
FRENCH CJ: In Braysich, I think we were working within the framework of a statutory definition of evidential burden.
MR NEIL: Your Honours did.
FRENCH CJ: Here you have a statutory definition.
MR NEIL: Yes. Her Honour on the next page, page 10, paragraph 20, concluded that the accused – and there was no issue about these matters:
The accused’s status as a journalist and researcher is not of the same character. His occupation as a journalist and the circumstances under which he made the book (at short notice, at the behest of “the brothers”) are not objectively inconsistent with an intention to facilitate assistance in a terrorist act.
Her Honour goes on in 22 – I will not read it – to identify the “paradox inherent”, but this is where her Honour suggests that if the respondent’s argument was correct, there would be imposed upon the Crown an obligation it should not have of having introduced into this case and having to prove an additional element which in reality was no more than the denial of the elements of the charge which the Crown had to prove anyway. That comes from the directions that I will identify for your Honours if I may shortly.
It may be convenient, your Honours, in the appeal book itself to go to that. I should perhaps just for your Honours’ assistance identify for your Honours that the indictment and count 1 commences in the application book at page 1.
FRENCH CJ: Incidentally, Mr Neil, can I just ask you, is there any substantive distinction between the points made in grounds 2 and 3 of the notice of appeal?
MR NEIL: Your Honour, at the end of the day, of substance, I doubt it. I think it all comes down to whether the defence should have gone - - -
FRENCH CJ: Whether there was an evidential burden discharged.
MR NEIL: Whether there was – where the evidential burden, the low evidential burden, taking the evidence at its highest, was satisfied on those matters.
FRENCH CJ: The evidential burden as defined in the statute.
MR NEIL: In the statute, yes. Indeed, your Honour mentioned that before and that is critical to the outcome of this case and was critical to the arguments in both of the courts below because raising the suggestion of a reasonable possibility is the test and a bare or minimal or any old possibility simply cannot do it. It would be a good thing for many in the latter categories. But his Honour Justice McClellan in the Court of Criminal Appeal - - -
FRENCH CJ: Well, reasonable possibility merely means – in fact, I wonder whether there is not an element of tautology in that?
MR NEIL: Perhaps, your Honour.
FRENCH CJ: If the thing is not reasonable, it is not a possibility perhaps.
MR NEIL: No, depending on the facts. Some things will speak more clearly than others. Justice McClellan is criticised by our learned colleagues and we understand why. They have their client’s interest to pursue here, but he took the position, and our friends say we have now picked up on it but it was no different from what we were submitting to the Court of Criminal Appeal and below, that the matters the accused pointed to, and there was issue about them, were entirely neutral to the question at issue. They neither pointed to a reasonable possibility nor the absence of one. They were beside it. Just to go to a factual aspect before moving to the direction is an example.
A key part, which was not in dispute, of the accused’s position was that he held a journalist card in New South Wales. He did. He had had it for many years. He was the publisher of a magazine in English known as The Call of Islam. It was put out publicly. It was a dual language magazine in both Arabic and in English and the evidence was that – and her Honour Justice Latham found and there was no issue on this – that the accused himself – the respondent I should say – was responsible for a major part of the content of that magazine. It also bore a circle saying it was put out by the Islamic Youth Movement. There was material within the magazine tended in the respondent’s case, not the ones that other grounds of appeal went to, that the respondent himself was, in effect, the guiding mind of the Islamic Youth Movement.
There was evidence that the website onto which this ebook got posted had first been publicised in the world – that came from Mr Coleman, the US terrorism expert – in that magazine and the Almaqdese website was a website favoured by al-Qaeda to get its message out. Part of its message was that there is only one kind of proper jihad and that is radical or violent jihad. When one goes to the book, it is not hard to see that that is what the book says.
So all of that was there, but this is said by the defence – in their words, not mine – as part of their submission to all courts, no doubt including this one, look, this was just a normal – the jury could have concluded objectively on the facts, it only has to be very slight, this was just a normal piece of a journalistic activity. But the difficulty with that is this ebook was not published in The Call of Islam magazine, not a word of it. It was published on an overseas based – wherever they set up these networks – website which counsel for the respondent accepted contained material of extremist nature and it was published in a false name, Abu Mohamed Attawheedy, with no apparent explanation for why that material of this character, which appeared in none of the magazines that were tendered by the respondent at his trial, that is, material of this character about assassinating Western leaders and Christians and Hindus and people who were non-believers and atheists, that simply had not been ever published over a period of years in The Call of Islam magazine month by month from the suburbs of Sydney and what had been published was in the accused’s actual name.
Now, our submission to that was, this question of him being a journalist, his conduct objectively, it smacked of anything but the normal intellectual, scholarly journalistic approach that one might have to religion and if you have a religion that is said – and we do not say it and the appellant has never said it – that Islam properly understood, supports or encourages violence or terrorism or anything like that, but the content of this ebook expressly does and it gives an historical justification not merely for why there may have been an historical basis for the assassination of vast groups of people who disagreed with the people who had this particular view of the religion, but why those people today were proper targets, including Australians, and there was no issue at the trial but there was considerable editing of this book carried out by the respondent personally.
His case was it is all material available on the website, you can go to various websites, you can download it yourself, but editorial changes were comprehensively made, footnotes were added. There was no issue at the trial that in the particular article where Australia was nominated as a target country for these activities, the anglicised version from the Arabic of Australia had been misspelled and the respondent himself had corrected the spelling.
FRENCH CJ: Sorry, how does this all relate to the words of subsection (5) which is to do with the absence of an intention:
to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.
MR NEIL: It only does, your Honour, if material of the kind to which the respondent pointed below, such as this, was relevant in Justice Latham’s consideration of whether the evidential burden was satisfied in the first place because if it is not, you do not get to consider how the test in subsection (5) applies.
FRENCH CJ: Yes, but the evidential burden has to relate to the content of subsection (5), the statutory words, which are talking about a particular kind of intention, are they not?
MR NEIL: They are. But I am taking the example that one of the matters put was the evidence as a whole of the respondent’s journalistic background was suggestive of a reasonable possibility that this particular document that he made and caused to be posted on the Almaqdese website was merely a normal journalistic work of the kind that he had generally been putting out in Australia from Lakemba and our point, as a matter of fact, was it was anything but, and her Honour accepted that argument as precluding – I have mentioned that Justice McClellan said, look, he said certain things himself about the content of the book, but on that he said, at the highest, in his opinion – it was only his opinion but he is the chief judge of common law – it was neutral on the issue of whether one could say that this raised the suggestion of a reasonable possibility that this was mere religious journalism and not something more. So one of the crucial issues between the parties, as our friends say, these factors – the four factors identified – raised a reasonable suggestion. Our case is it raised a suggestion of a mere or bare possibility and that does not satisfy the statutory wording or the actual test.
BELL J: That submission embraces the correctness of Justice McClellan’s view that the evidence was wholly neutral.
MR NEIL: Entirely, your Honour.
BELL J: Yes. The expression “assistance in a terrorist act” in the element of the offence which is also found in subsection (5), the Crown case here, as I understand it, was put on the basis that the book itself comprised a number of terrorist acts in the sense of being actions or threats of action within the meaning of the definition for the purposes of the division. Is that the way it was put?
MR NEIL: It was. The meaning of “terrorist act” in section 100. Perhaps the most convenient way, initially, if I may - - -
CRENNAN J: Is that related – this is just a point to bear in mind – some argument that the contents of the book objectively show the connection between the book and the assistance.
MR NEIL: Indeed, your Honour. That is still part of our case. Can I endeavour to illustrate it by taking your Honours very briefly to the separate appeal book. Apart from the notice of appeal and contention and so on, it contains the written directions that her Honour handed to the jury on these aspects. I would like to identify them and then go to some of her Honour’s supplementary directions. The written directions commence at page 2 of the application book where we see the directions as to the elements of count 1. Then we go on to count 2 which, for the purposes of this argument, is not germane. But may I please, your Honours, go to page 8 to Note 1, terrorist act, and then come back to the directions on count 1 because you have to have in mind, as the jury would have by the end of the trial, something to do with the meaning of “terrorist act” to put the count 1 directions into their appropriate context.
Justice McClellan sets out all of the relevant sections, including the meaning of “terrorist act” in the application book in his Honour’s reasons, commencing in the application book at page 199. Your Honours will see he sets out the terms relevantly of the indictment in full. He sets out the relevant Code provisions, including the definition of “terrorist act” in section 100.1. Then he goes to the offence-creating provision. He picks up paragraph 5 about the defence and then he deals with the evidential burden in section 13.3.
May I in passing just identify for your Honours without going further, his Honour’s summary of the Crown case at the trial at application book 203 through to 208. That is of significance. We do not understand there to be any issue taken with it, and in particular the agreed facts at application book 209 in paragraph 17. We have perhaps picked up and summarised those a little further and made some additions in our primary outline and in the notes handed up today.
Perhaps I should identify for your Honours how Justice Latham led into the documents that appear in the appeal book. Her Honour did that on the second day of the summing-up in the application book commencing at page 60. The first day was late in the afternoon, there are preliminaries about the general things, burden of proof and so on, but at about line 4, her Honour said:
I have some written directions for you –
and these were handed out, and they are reproduced exactly in the application book. Your Honours will see, without me going through them at length, that when her Honour handed them out, by way of example at application book 61, just below line 20:
So, can I just go the directions on count 1 –
and her Honour then gave an explanation in some detail of them for quite some pages, explaining the elements. In cases of assistance on the contention, at page 65 at line 20, her Honour addressed:
The phrase “connected with assistance in an action or threat of action” has no special or technical meaning. You should interpret that phrase according to its plain English meaning.
I will come back to that. It is certainly a point of difference between the parties. Having identified that – and if your Honours wish me to go to anything more fully, I am more than happy to do so – if I could go back to the appeal book at page 8, just to look at how the jury were directed, and there is no issue that this is a correct reflection of section 100.1:
A terrorist act is an action or threat of action with the following characteristics:
Now, this is critical to our case –
with the intention of advancing a political, religious or ideological cause –
Our case was at a minimum what was done was to advance a religious cause. We put it that it was very hard to distinguish what was done from a political and an ideological cause because it wanted to re-establish the Caliphate in certain parts of the world and so on, but there was no issue. It was do with religion at a minimum. It had to be something that was done which included:
the dominance of that [Islamic] religion in Arabia as defined in the document –
and so on there. The expulsion of certain people from that region, and:
with the intention of coercing or influencing by intimidation, the Government of the Commonwealth or the government of a foreign country; or intimidating the public or a section of the public.
and we then have the listing in (a) to (e) of various matters of potential harm:
physical harm to a person; or serious damage to property; or a person’s death –
I need not go through them in detail and is:
not advocacy, protest, dissent or industrial action –
but if it is, on the next page is not intended to cause physical harm or harm to property, in short. I recall when that part of the direction was read by the jury, they blinked a bit until they saw the rider about if it was industrial action intending to cause harm, then that was a no way out. So that is what a terrorist act is. So when you look at an offence creating provision that says he makes a document intending to assist a terrorist act, that is the type of act that the document, not he himself, the document itself - - -
BELL J: It is no part of the offence that he intended to assist in a terrorist act, is it?
MR NEIL: No, it is part of the offence, your Honour Justice Bell, that he made a document having knowledge that the document - - -
BELL J: Yes. Knowledge is the fault element.
MR NEIL: Yes.
BELL J: In some ways it is confusing because when one turns to the definition of “terrorist act” one has reference to intention, but we are not there concerned with the proof of the accused’s intention respecting the making of the document.
MR NEIL: Correct. It is perhaps a bit as Chief Justice Spigelman said in Lodhi, it perhaps does not matter whether you call these elements or something else, they are characteristics of what a terrorist act is. But when it comes back to how her Honour explained all of this, not an easy task, with great respect of her Honour, at page 2 of the appeal book she sets out for count 1 the dates:
(b) He intended to make the document.
(c) The document was connected with assistance in an action or threat of action against any one or more of a number of persons . . .
(d) The action or threat of action referred to in (c) was a terrorist act –
Then her Honour then takes the members of the jury to note 1 with care. Now, we place great stress on what then followed from paragraph (e) in the directions in paragraphs (i) to (iv). We do not overlook (v). But the jury were directed the Crown had to prove beyond reasonable doubt each of these matters:
The accused knew (that is, he was aware) at the time he made the document, of the connection between the document and assistance in the action, or threat of action, referred to in (c).
That is note 1, terrorist act. But she then says:
and she identifies that, and –
and she sets out all the people concerned and (iv) is important –
Now, we have submitted that those matters are tantamount, in practical terms, to a clear direction to the jury that if those matters are found by them to be beyond reasonable doubt, it just is not open to say in that context of finding of those matters that he did not intend to facilitate assistance in a terrorist act and that the matters he pointed to were indeed neutral and did not engage the defence.
If they had, one then has to consider what would the trial judge’s position have been in directing the jury? We deal with that in our note handed up today. We said it would have put both the court and the jury in an invidious position. It is a contradiction in terms and it would have been a practical nonsense. It may be technically, had the facts been such that the defence was engaged, well, we just have to contend with that. That is the way the legislation is written. That is the way it falls. But no evidence was excluded. The matters were neutral.
Her Honour was entitled to say they do raise a mere possibility that the defence is engaged. They do not raise a reasonable possibility and the practical result is the Crown not only has to negative a defence beyond reasonable doubt, it has to prove an element in practical terms which is inconsistent with the elements it otherwise has to prove. It is unworkable. In short, his Honour Justice McClellan also came to that view.
BELL J: It would not be unworkable in the circumstances of the illustration that her Honour gave to the jury of the – or perhaps it was in an exchange with counsel – but of the person working for a government agency who makes a document containing material having all these characteristics - - -
MR NEIL: Correct, your Honour.
BELL J: - - - but for the purpose of intelligence gathering or something of that character.
MR NEIL: Indeed, your Honour. Indeed, her Honour adopted the Crown’s example.
BELL J: The matter I am raising with you, Mr Neil, is that there is not an inconsistency in the operation of the defence with proof of the elements of the offence. The point comes back to Justice McClellan’s conclusion that the evidence was neutral.
MR NEIL: Correct.
BELL J: Yes.
MR NEIL: Our argument may appear, your Honour Justice Bell, to be somewhat circular. We say it is neutral because if, in fact, it is not neutral if you look at the facts relied upon they clash with these directions and are extremely difficult to reconcile. But your Honour is correct. If it were another case – if it were the security man at the airport whose job it was was to make a document for the protection of the airport from terrorist attacks and he puts in a whole lot of means by which attacks could occur and it falls into the wrong hands, he knows when he makes the document it is connected with assistance in a terrorist act but he is entitled to say, “Well, the Crown has to prove, on this factual scenario, that I intended to facilitate assistance in a terrorist act. I was doing the opposite”.
On the facts of this case, we do not get to that very basic level. Your Honour, that argument is either good or not. I have, with my learned friend, Ms Callan, endeavoured to set out – and I hope I have done justice to both sides – fairly fully in the principal submissions filed on 14 February, or refiled with references. If I could, perhaps, take your Honour to page 5, paragraph 18.
We summarised the evidence of which there was no dispute between any of the justices of the Court of Criminal Appeal in paragraph numbers 1 to 4, and then we set out the approach of Justice Latham and then we discuss in some detail the approach of Justice Hall and Justice McCallum. We hope and submit that that is a fair summary of - - -
FRENCH CJ: To characterise that material as neutral, coming back to the statutory definition of “evidential burden”, must amount to a characterisation that it does not within the meaning of the definition suggest a reasonable possibility that the matter exists or does not exist.
MR NEIL: Correct, your Honour. That was the submission we put to Justice Latham and the Court of Criminal Appeal.
FRENCH CJ: Yes, so that is all embedded in the word “suggests”?
MR NEIL: Indeed. We take his Honour Justice McClellan to mean that but he has expressed it a touch more pithily by saying it is all wrapped up in that it is neutral.
FRENCH CJ: What work, while we are on the definition of “evidential burden”, does the word “reasonable” do that qualifies possibility? I am a little concerned about this distinction between reasonable possibilities and mere possibilities; I adverted to that earlier.
MR NEIL: Ultimately, because it is a question of law it falls to individual justices to look at the material and form a view about it, but our submission to your Honour is that in this case it is absolutely clear that whereas – and we never argue to the contrary – there is a mere or bare possibility that all he was seeking to do was to support the Islamic religion, all of the evidence does not place that higher than the level of a mere or bare possibility. “Reasonable” would have to be in the minds of ordinary sensible people something which tilted the scale towards pointing it to be what the community would accept as the reasonable possibility of a benign intention.
FRENCH CJ: Well, perhaps there is something to be derived again from the word “suggests”. Whatever a reasonable possibility is, it has to be something which is suggested by evidence, in other words, not merely something left open, as it were.
MR NEIL: Indeed, your Honour, it would have to be, with respect, at least a rational possibility.
FRENCH CJ: Well, all possibilities are rational in the sense that they are not excluded by reason, otherwise it is an impossibility. I suspect what is being talked about here is some level of probability.
MR NEIL: On reflection, I accept, your Honour, that if it is a possibility - if it is not rational it is not a possibility, so I will not press that word.
FRENCH CJ: So you have to look at the collocation pointing to evidence that suggests a reasonable possibility. I think one cannot just take that in isolation.
MR NEIL: Yes.
BELL J: In that connection, I think the point that Justice McClellan was making was proof that a person is a journalist and has published material about the Islamic religion says nothing about their intention in making the document that is the subject of the charge.
MR NEIL: Correct, your Honour, and that is why when one reads his Honour’s reasons, when he says “particular document” he underlines it because it is the key to an understanding of how it works. Everything about the charge concerning the making of the document must come back at the end of the day to the document, not to anything else and when you go to the document, as her Honour Justice Latham correctly, with respect, directed the jury, you must look at the content and then it is a question of fact.
Justice McClellan also accepted that. He said, look, as I read it – I am parenthesising, these are my words and not his Honour’s – there are countless terrorist acts described in this document and the jury were the tribunal of fact and they were entitled to find that there were. They did not have to, but that was their function, to decide whether it had been proved beyond reasonable doubt and they were satisfied. I apologise for interrupting, your Honour.
CRENNAN J: Not at all. I was just reflecting on what the Chief Justice was saying about the collocation of the words, that is, “suggest a reasonably possibility”, it is a collocation which raises an issue, does it not, about the sufficiency of the suggestion?
MR NEIL: Yes, your Honour.
CRENNAN J: So it is that issue, I think, which leads one on to seeing the question as a question of fact.
MR NEIL: Indeed.
CRENNAN J: And it may involve a matter of degree, for argument’s sake.
MR NEIL: Yes. Although the decision is a question of law, for the judicial officer who has to make the decision there is clearly a requirement for any judicial officer – to use the old expression given to juries, to hark at the facts – to look at the facts and look at them objectively and look at them in the most favourable light to the applicant for the invocation of the defence and to form a judgment, does this have the capacity or quality of amounting to a reasonable possibility? Now, minds could differ on this. Our submission is Justice Latham not only was entitled to conclude that it did not, but correct in doing so, as was Justice McClellan.
I am not suggesting the question is necessarily easy, even in a case like this but I am suggesting, your Honours, that it was pretty obvious in this case that there was no reasonable possibility. This was not, in the appellant’s respectful submission, a borderline situation at all. It was quite black and white. May I endeavour to illustrate that by some brief references to the document itself. In doing that, could I invite your Honours’ attention in the short outline of propositions handed up this morning, towards the end of the document – and this is in the area dealing with the – if your Honours would excuse me for a brief moment. This is in paragraph 12 on the third page.
I put a submission there with Ms Callan that the book with the respondent’s overt endorsement, although in a false name is replete with connections assisting terrorist acts. I do not propose to got to all of them unless they would assist your Honours, but I have identified them all there where they may be found. Justice McClellan summarises them in those pages identified earlier in the application book and it is very difficult, your Honour, being as objective as one can to read some of this material as other than an endorsement, in pretty powerful terms, of the assassination of people as the means of supporting the Islamic religion.
One of our fallback positions in our written arguments all the way through, including before your Honours, is this. Even if he was and we have accepted that the respondent had at a minimum an interest in putting out a document that supported the Islamic religion, if you do so in a manner which supports it by invoking terrorists acts as defined in section 100, the defence does not work. It is not available to you because the law does not permit people to go putting documents out for a religious purpose if the means to the end is commit these acts of terrorism and that is the way you will advance the religion.
Now, of course, your Honours have seen that we have always disowned any suggestion that properly understood, the religion of Islam does so. That is not our case. Our case is that Justice McClellan again summed up the situation correctly. In short, the respondent had misused the true Islamic religion in order to invoke, as his Honour described it, the ruthless slaughter of countless innocent people in the name of religion, and you cannot - - -
FRENCH CJ: We are sliding off the point a bit here. The point is whether or not the material relied upon was evidence suggesting a reasonable possibility. These are two grounds of appeal that collapse into one which you are really addressing.
MR NEIL: That is so, and perhaps if we look at what was the evidence of the respondent’s religious and journalistic background, it is summarised earlier in our submissions in the four points identified by Justice - - -
FRENCH CJ: Well, you say that does not matter. It does not go to the question of intention at all.
MR NEIL: No, we say there is no dispute about it and the seesaw is even at that point. When you go to the book and look at what he personally endorsed at the start of certain chapters, well, her Honour was entitled to say, look, on this – these are my words again, not her Honour’s – even if it is journalism, it is journalism that ignores that within its heart is the indication of terrorist means to achieve the support of the religion. We say no religion permits that. You cannot hide behind the cloak of religion to say, I was doing it for religious purposes - - -
FRENCH CJ: Again, we are sliding off the point.
MR NEIL: My apologies, your Honour. I accept that. Your Honours, could I, in the application book, just identify a couple of passages – I am sorry, my apology, it ended up in the appeal book. We have only got extracts of the book in the application book, but commencing at page 12 of the appeal book we have the English translation. This was the one that was accepted as an accurate translation of an Arabic work on the website.
HEYDON J: When you say page 12, are you numbering from the top or the bottom?
MR NEIL: I am numbering, your Honour, from the top left. The bottom number does not run in sequence. It goes 50 bottom left, 2 bottom right. Your Honours see the name it was put out under. Can I merely – I hope I am not doing this in an inconvenient way – jump, your Honours, forward in that book to the last page which is at page 118, and this fits with what goes before “compiled with the help of the Almighty God”. We know the date, we know the false name used, and there was no issue that this was all made between 18 and 23 September 2003. But if I may briefly go back to page 13 of the appeal book, your Honours may have seen that we put the case that the first half of the book was a religious justification for assassination and the second half of the book was how to go and carry it out. So the first edition, 1424 to 2003. 1424 is the Islamic or Arabic calendar, as we understand it. I think it approximates or is the birth of Mohammed.
A statement issued for the Mujahideen for the way of God and the rulings that must be known in this great field.
Now, there is this massive index that your Honours will not want me to bore you with going through, but then there is a dedication at page 6, and the evidence was that is part of the book that is the respondent’s.
FRENCH CJ: It was page 17 on the numeration you referred us to earlier.
MR NEIL: Yes, your Honour, my apology, I am going to the foot.
HEYDON J: What are we going to this for exactly? Is this part of the evidential burden argument or part of the - - -
MR NEIL: It is part of the evidential burden argument, because her Honour had to make her finding, as did the justice of the Court of Appeal, in the context of what this book when made invested the respondent with knowledge of. So we then go to the next page, page 18, “Introduction”. There was no issue. That is all the composition of the respondent. I will not read it out but there are references to martyrdom, so on and so forth. I am not saying that is a reference directly to terrorism, but it is part of the context.
Then we have on page 19 in the first paragraph, and this is from one of the early works, “Definition of Jihad”. There was debate in the trial, it can have an innocuous meaning, it can have a violent struggle meaning, but that goes on. Page 20, the heading, “Militant Jihad is the best form of Jihad” and so on. When one reads it, it supports undoubtedly – it is saying there are various forms of jihad but the sort of jihad that has to be done is the violent jihad to enforce the way of Muslims, and that comes from the heading on page 26, “The Reason for fighting the Infidels”, “Atheism justifies blood and religion spares it”. Then there is discussions about various schools of thought in the Islamic religion, all of which support jihad. Page 29 “The Shaffi’ya School”, “Kill the infidels wherever you find them”. It is a general order.
The summary on page 31 at line 30. Your Honour, there is plenty more in this first half, but your Honours would not want me to take time, I do not think, if your Honours do, please say so, but when one goes to Chapter 10, we come not to what happened possibly in 1400 through to the year 2000, we come to “Targets that should be assassinated” at page 91, “Identities that should be assassinated are in this order, as far as I think”. Footnotes edited, some composed or changed by the respondent. This just goes on, and this is the part primarily the justice - - -
FRENCH CJ: Now, is the “I” there, the “I think”, is that referred to the author of some document of which this is a part or is it the author of the compilation?
MR NEIL: We do not say the respondent is the author of those words, but he selected them and put them in, your Honour.
FRENCH CJ: Yes.
MR NEIL: I beg your Honour’s pardon. There was a part of some significance I jumped over, I do apologise. Can I please take your Honours back to page 67, “Reasons for Assassination”. The first paragraph commencing, “This chapter” and ending with “ritual of assassination” are the words of the respondent. The rest is the reproduction with some changes of an article of someone else.
But, we say, that if you read all these bits in context, they are giving a fairly clear message. There is a bit of history there but then we get on page 71 the characteristics of the assassination team. Now, in her directions, oral directions to the jury, Justice Latham reminded the jury of the dispute between the parties, the Crown and the defence, as to the evidence of the Crown’s expert on terrorism, Mr Coleman, who described this part of the book as a terrorist instruction manual and was cross-examined and suggested he was an Islamophobe and had a very unfair view of the Islamic religion and was not to be relied upon and so on and so forth.
Then optimal conditions for an assassination, page 73, features and stages - if your Honours will forgive me I will not go through them all. Justice McClellan hits the key points. “Methods and means of assassination” on page 79 is significant because Justice McClellan places some reliance on it at the foot of that page. There are about eight or 10 different methods – letter bombs, even hitting with hammers and strangling and this, that and the other - “Sixth Method: Smothering”, page 89. Then we got to 91 “Targets that should be assassinated” and on page 92 at about line 26 or 7, “Fifth: Australia” that was where, on the evidence of which there was no issue, the accused corrected the spelling in English of the country name “Australia”.
Then it goes on with “Modern Assassination stories” of those that succeeded and those that did not but, in particular, reasons why the ones that failed were not successful and ways to prevent those reasons re-occurring. It is pretty direct stuff. “Recommendations to the Mujahideen” at 97 and this goes for quite a long way until one gets to page 109 “The Last Word”, a work of Dr AL Zawahry. Now, the uncontested evidence was that at the time he was the second in command of al-Qaeda. He is now number 1 but that does not matter. The first paragraph:
We would like to conclude our message with a word from Dr Shaikh Ayman AL Zawahry –
They are the words of the respondent. We place some reliance upon the fact, and the judge said to the jury, “Be careful about this. The respondent is saying that it is Dr AL Zawahry who urges the formation of smaller cells so that hitting the enemy would be more hurting and exemplary, not the words of the respondent himself”. We said we accept that. Nevertheless, if that is not an endorsement, it is hard to think of what is. So on it went on and on and so on, including, as Justice McClellan pointed out at the foot of page 112:
Pursuing Americans and Jews is not an impossible task . . . Small groups with small available means can cause horror to American and Jew alike.
So the connection with assistance in terrorist act is plainly, we would submit, within this document that was knowingly made. There was no issue that it was knowingly made and your Honours look at those directions that her Honour gave as to what had to proved of the intentions of the accused when he knowingly made it – you look at the fact that he was a journalist, he was interested in Islam and the other factors that their Honours pointed to, and we would submit your Honours would come to the same view, that those matters do not raise the suggestion of a reasonable possibility that the accused did not intend to facilitate assistance in a terrorist act.
FRENCH CJ: A finding adverse to the accused on those matters excludes the possibility which is contemplated in subsection (5).
MR NEIL: We put that as our second argument. The first argument is that, objectively on a fair analysis of the fact, Justice Latham and Justice McClellan were entitled to say in the words they used it did not meet the statutory test of suggesting a reasonable possibility. We put, almost as a semi-construction fallback - - -
FRENCH CJ: That is to say there was nothing in the evidence - - -
MR NEIL: Yes, nothing in the evidence – the whole of the evidence with nothing having been excluded. I can assure your Honours that on this part of the argument, although there was a ground that some material got into a magazine before the jury by mistake, none of that prejudicial material which the Crown knew was prejudicial and tried to walk a mile from – except we did not want the jury discharged – none of that was in any way relied upon, upon any of these arguments. So it was only the content of the book. That is what her Honour said to the jury.
CRENNAN J: Can I take up the point in the context of Justice Hall’s decision?
MR NEIL: Yes, indeed, your Honour.
CRENNAN J: So if one looks at page 322, paragraphs 395 and 396, his Honour there is recounting the submissions made on behalf of the present respondent in the Court of Appeal - - -
MR NEIL: Yes.
CRENNAN J: - - - to the effect that the assessment did not require a “weighing process” and, 396:
if the appellant were able to point to evidence that suggested a reasonable possibility that the making of the document was intended to assist in education on the topic of Jihad, then the evidential burden has been satisfied.
Then if one goes to page 331 at paragraph 432, his Honour has gone through the points which, I think, are commonly referred to as the “four points” and his Honour says:
The issue was whether or not the evidence to the effect that the appellant was a career journalist who had an established history of researching matters associated with the Islamic religion and any other of the matters set out above was sufficient –
So his Honour is talking about a sufficiency:
to “suggest” as a reasonable possibility that the appellant’s intention in making the book was not that asserted by the Crown.
I think just before you were characterising the argument put by the Crown was that there was an intention involved in knowingly making that book – when you took us through the book. Then one goes to page 333 at paragraph 441 which could fairly be said to the ratio of his Honour’s decision.
MR NEIL: Yes.
CRENNAN J: He says the appellant has put:
there was at least an arguable basis for a contention that there was evidence which at least suggested (in the sense of placing or bringing forward a proposition for consideration) that in making the document the appellant had not intended to facilitate assistance in a terrorist act.
But, his Honour goes on and this is the ratio -
As a matter of law, it could not, in my opinion, be said that the evidence to which I have referred above –
that is the four points -
was incapable of suggesting, as a reasonable possibility, that the appellant acted as a professional journalist with an intention that was not one to facilitate assistance in a terrorist act as that expression is to be understood under the Code.
What I would like to understand better, is how the exercise of going through the book – which you have just taken us through – bears on his Honour’s conclusions in the context that I am assuming that you are suggesting error in his Honour’s conclusions.
MR NEIL: Indeed. Your Honour Justice Crennan, the summary is what fell from Justice McClellan. We say his Honour was right and that in substance was the approach of Justice McClellan and that appears in the application book.
CRENNAN J: I recollect his Honour describes the contents of the book.
MR NEIL: Yes. In short, we submitted it did no more than raise the bare possibility. Her Honour Justice Latham said it raised no more than a mere possibility and Justice McClellan said it was neutral. While it is a question of law ultimately now for this Court, it relates back to the facts and we have put in our primary submissions and in our notes where Justice Hall and Justice McCallum in short say he just wanted to, as it were, get out there discussion about - support the religion by discussing various aspects of the Islamic religion and, as Justice McCallum put it, including and indeed encouraging the ritual of assassination, that is a support of a religion which in its methodology seeks to justify and, indeed, encourage acts of terrorism as the means of support.
We say that is dead against section 100.1 and section 101.5, that it is not a justification, even if you take that view of things. It is not something which raises a possibility of a journalistic activity that is benign in the context of terrorism. We, in our written submissions, place reliance upon and we seek to draw some comfort from what fell from Justice McClellan in relation to the need absolutely for purposes interpretation of this defence provision, notwithstanding the importance of being most meticulous not to exclude defences in criminal matters, and giving full weight to all the authorities on that. If your Honours will forgive me, it is in - - -
CRENNAN J: Page 243, I think you are looking for, paragraph 128, perhaps?
MR NEIL: I may want to pick that up, but actually I have found page 231 of the application book, your Honour Justice Crennan, commencing at paragraph 89. These are in the reasons of Justice McClellan:
The significance of the events leading to the enactment of Part 5.3 cannot be overstated –
and without repeating them, I will identify paragraph 128 at page 243, where his Honour, as Justice Bell pointed out, emphasised the need for this to be related to the particular document.
Your Honours, beyond what we have put in the written submissions and the short outline today, unless I can be of further assistance, they are the appellant’s submissions on the appeal ground. If it is convenient to turn briefly to the notice of contention?
FRENCH CJ: Yes.
MR NEIL: Thank you, your Honour. We, in the principal submissions commencing on page 11 at paragraph 40 under the heading “Notice of contention”, addressed our anticipation of the respondent’s arguments and we do not wish to retract what we have said there. The arguments were anticipated and so from paragraph 41 on we wanted to let your Honours know we rely on that material as supplemented, your Honours, in the outline handed up this morning from page 2, paragraph 10 under the heading, “The notice of contention”, pretty well down to the end of that short document.
Now, I have mentioned to your Honours in the outline handed up paragraph 1 about “miscarriage of justice”. I perhaps need not say further about that, but we do not resile from what we have put in the principal submissions at paragraph 42 about the position that Justice Latham was putting before we go on to discuss Benbrika from paragraph 43 on.
We point out that Justice McClellan was in agreement with Benbrika and that Justice Hall was in agreement with Benbrika, and it was a unanimous decision of the Victorian Court of Appeal, and we accept our friend’s point and would never doubt that an intermediate appellate court should not depart from it unless convinced that it was plainly wrong, much less a first instance justice.
Our friends used the words “clearly wrong”, but it is interchangeable in – I think it was Goldsborough Mort, your Honour said “plainly wrong” and its equivalent in Farah Constructions and so on, so there is no argument about that. What happened, we submit with respect, is that the only difference is – the fundamental difference, not the only difference – between Justice McClellan – I am sorry, your Honours, may I say there is therefore no actual clash between the New South Wales Court of Appeal by majority but that is the law in New South Wales at the moment, and the Victorian Court of Appeal in Benbrika as to the meaning of “connected with” relevantly whether it is in 101.4 or 101.5.
A couple of important points of distinction. The Victorian Court of Appeal pointed out in Benbrika that the learned trial judge there had directed the jury only about the meaning of the words “connected with”, whereas as Justice McClellan highlights in this case, Justice Latham correctly directed the jury about the cognate expression “connected with assistance in a terrorist act”.
That is a big difference and there was not in Benbrika anything like the oral or written directions of Justice Latham that I have seen, with respect – I must say I do not want to guarantee it is not there – but her Honour Justice Latham was most careful in her oral and written directions of explaining to the jury what is the meaning to be given to “connected with assistance in a terrorist act”.
She also did that in the context of explaining to them that terrorist act commenced with a consideration of an action or threat of action of a certain quality, and you have to look at an action or threat of action said to be connected with assistance in a terrorist act, and her Honour then went on and said, “I am directing you, members of the jury, it means this”. When you read how her Honour put the totality of the direction on the subject it is correct. This is not a Benbrika case.
The trial judge there perhaps adopted a little bit more the approach of Justice Whealy in one of the Pendennis cases from recollection saying “terrorist act” has its ordinary meaning in the English language. Justice Latham did not do that. She said “connected with assistance in a terrorist act” has a certain meaning starting with an action or threat of action of a certain quality and moving on, as her written directions make plain, every one cumulative upon the other, every one having to be proved beyond reasonable doubt.
The other matter of distinction where we say Benbrika is radically different on the facts is that it concerned possession of an inanimate object. We do not say that the principles in Benbrika are necessarily wrong. Indeed, our Court of Criminal Appeal has said they are right. The two Justices, Justices McClellan and Justice Hall have approached it in somewhat different ways. Justice Hall says her reasons are slightly different from those of Justice McClellan. One may think that departing from a construction placed on legislation by a unanimous Bench of the Victorian Court of Appeal is a little more than a slight departure, but, nevertheless, she comes to the same conclusion.
In this case, there is a world of difference between making a document that you, in practical terms, are the composer of in terms of what goes into it, how it is edited, how it is formatted, how it is presented, how it is converted from A5 to A4 to be conveniently put on a website. You pick a website, on the undisputed evidence, associated with your own English and Islamic Arabic language magazine and you urge them to put it on. You do it in the way that has been described.
The fact that possession of an inanimate object found on someone says nothing about the circumstances of the possession. It might have been very different in Benbrika if the evidence had been that that particular appellant was not merely in possession of the CD which showed all the extremist material but there was evidence that he had made it.
But if all we had in this case was that someone, somehow or other, had stumbled upon the respondent’s library and found a print of this book and did not know that he was Abu Mohamed Attawheedy and did not know that he was the author in anything other than the mere possession of it, there could not have been this section 101.5 charge. There would have been no evidence. But we have a radically different position here. That simply explains the different outcome. You apply the same principles but you are talking chalk and cheese.
CRENNAN J: May I just take that up in a little more detail?
MR NEIL: Certainly, Justice Crennan.
CRENNAN J: In Benbrika which is reported Benbrika v The Queen (2010) 204 A Crim R 457, if you go to 535 at the top of the page the direction made in relation to “in connection with” - and I appreciate it is connection between a thing and a terrorist act and you have sought to distinguish the section with which we are concerned - but what was said by the trial judge was there just has to be some connection between the thing and a terrorist act - do you have that? Do you have that page of Benbrika which I am talking about - 535?
MR NEIL: I should have it, but my friend assists me. Thank you, your Honour, I do have it.
CRENNAN J: At the top of page 535, you will see set out the trial judge’s direction:
There just has to be some connection between the thing and a terrorist act.
Then at paragraph 340 of the appellate judgment:
this was not a correct statement.
They make reference to section 101.4(1) -
the phrase does have a particular meaning. It means that the thing must be shown to have been “connected with preparation for a terrorist act” –
and here is the matter I want to draw your attention to particularly -
by virtue of some person’s having had the purpose of using the thing in, or in aid of, preparation for the terrorist act.
Now, if you turn, by comparison, to page 65 of the appeal book, you will find there, I think, the direction complained about by the respondent under the notice of contention. Her Honour there, just above line 10 says:
We are only concerned about what the document says objectively. It is a matter for you to determine, because it is simply an objective factor, namely, is the document, more accurately the contents of the document, connected with assistance in a terrorist act?
The phrase “connected with assistance in an action or threat of action” has no special or technical meaning. You should interpret that phrase according to its plain English meaning -
and so on. Now, it can be apprehended that it will be put against you that that was not sufficient that, as I understand the argument put against you, it suggested that her Honour – to give an adequate direction – should have said something like “the connection has to be direct and not remote or tenuous”, I think, is the way in which the argument is phrased.
MR NEIL: It is.
CRENNAN J: Do you have anything to say about Benbrika and this direction set out at page 165, beyond pointing to degrees of separation between a document which is made and a thing used in connection with a terrorist act?
MR NEIL: We submit, your Honour, that if one looks at page 339 it does not mean connected with any particular way. Their Honours say it does have a particular meaning. We say that in practical terms, because her Honour has written an oral direction – so it is Justice Latham - she connected it in a practical way with the steps that had to cumulatively be proved beyond reasonable doubt of the respondent’s own intention, that is, his state of mind in compiling the book, knowing that it had certain qualities, knowing that it was proved – or it would be accepted that it was plain to the jury that it was of assistance in a terrorist act, knowing that it was done for the purpose of a religious ideological cause, et cetera – political cause, knowing that it was done with the intention of coercing governments or peoples, et cetera, et cetera, to his way.
So we concede the trial judge’s directions in Benbrika were insufficient. We say that the overall directions of Justice Latham – even if not put precisely in the language that was approved by the Victorian Court of Appeal in Benbrika – have that effect.
CRENNAN J: By reading the oral direction together with the written direction to which you took us with the (i) to (v), as I understand it, about the matters that - - -
MR NEIL: Yes, and stressing them orally several times and going so far, for instance, your Honour – I know your Honour made the point to us a moment ago that her Honour, as the respondent pointed out in their written outline, was saying, you have got to look at the book, it is the content of the book, her Honour did say that and there is no getting away from it, but – if your Honour would excuse me a moment – your Honour took me to the passage in Justice Latham’s reasons in the application book at page 65, line 20:
The phrase “connected with assistance in an action or threat of action” has no special or technical meaning –
and so on, as your Honour pointed out. If your Honour goes to page 74, again to about line 20 – and this is dealing with the elements of count 1, the one in question here – her Honour charged the jury:
The accused’s knowledge or awareness must extend to all of the matters listed from (i) to (v). In other words, the Crown must prove that at the time he made the document the accused was aware that it –
that is, the document –
contained information that facilitated or helped in the commission of a terrorist act.
That is correct because the offence creating provision says the offence is to make a document connected with assistance in a terrorist act, but he must know of that connection. So he knows what the document contains, and he knows that it contains information that facilitates or helps in the commission of a terrorist act –
It does not matter whether the accused knew of the definition of terrorist act . . . But the Crown must prove that he was aware that there was the action or threat of action contained within the document and that its purpose, that is the purpose of the action, not his purpose, but the purpose of the action was of the specified nature –
Our submission is that is faultless because there is nothing in the offence creating provision that says we have to prove his state of knowledge or his state of mind about the content of the document, not his state of mind outside of the document or even aided by the document. We say the way her Honour analysed it and put it to the jury is the proper way the jury is to be instructed in these matters and it is perfectly safe to an accused. If the document does not have that quality and the accused does not in addition know of that quality, he must be found not guilty, but it is for the jury to decide those two facts; does it have that quality, and did he know it? I hope that is of some assistance to your Honour Justice Crennan.
CRENNAN J: Yes, you could say “characteristics” as a synonym for quality.
MR NEIL: Yes, a la Lodhi.
FRENCH CJ: The term that is connected with – I think in Benbrika there is a reference to some authority which talks about such terms as covering a spectrum of relationships.
MR NEIL: Indeed, your Honour.
FRENCH CJ: I think that was said in Pozzolanic. The range of relationships covered by the term is connected with, in this case, must be relationships to some causal or potentially causal character?
MR NEIL: Yes, but we submit that a charge which says if you possess an object – it is different wording – for a purpose that will facilitate terrorism, you commit an offence. Possession of a mere object cannot get you there. Our friends say the wording of the sections relatively are identical. We say certain words in them are identical but they are two different offences, they have got different elements, they have got different components to the elements and her Honour, in concentrating the jury’s attention on the document was correct and her Honour’s direction to the jury, look, you must decide if it facilitates assistance in a terrorist act, but that is - - -
FRENCH CJ: The limiting principle affecting the range of relationships falling within the description “is connected with” must be of some causal character, must it not, or potentially causal character, like encouraging or facilitating, not merely, for example, reporting on?
MR NEIL: Your Honour, it is difficult to put a contrary submission. Facilitating broadly encompasses the concept of encouraging or urging. One of the disputes we have with his Honour Justice Hall, with great respect, is his Honour appears to say that unless a document explicitly says, I am a terrorist document and I am here to be used by people to blow people up, you can never find the relevant content within the document. We say that cannot be right. It would make a nonsense of the provision, with the greatest of respect to his Honour. Justice Latham’s approach was correct and Justice McClellan’s approach is correct. It is within the document. It is a question of fact for the jury. Our friends say there is no evidence that the accused or the respondent could have contemplated this, but you cannot make a document like this without having some sort of contemplation. It speaks for itself.
BELL J: When you say it is within the document, is that because the document was published on the internet? If a person made this document but kept it in their own home, would the document nonetheless embody one or more terrorist acts?
MR NEIL: Well, the document must be of assistance in a terrorist act. It may be a question of fact or it may be a question of law, but if it were made and locked in a safe never to be opened, you may never have a factual basis for ever asserting it was to be of assistance or it could have been of assistance in a terrorist act. But, as here, where in the circumstances that were undisputed it is put on a website of this character, that is a step a long way further. We sought to bring this particular problem always back to the facts of the case because all of these cases are likely to be radically different factually. Where we say that, with the utmost respect, his Honour Justice Hall should be corrected is to say with the possible exception of a document in which screams “I am a terrorist document” you cannot have the connection within the document, that just goes too far.
FRENCH CJ: Well, a document may be connected with an actively contemplated terrorist act; somebody intends to do it, here is how you do it, here is the handy guide, or it combines encouragement to undertake terrorist acts with explanations as to how to go about doing them.
MR NEIL: Indeed.
FRENCH CJ: You would say all that, that if you have that combination, it does not matter that somebody is not out there actively contemplating a particular terrorist act at the time and the connection is established?
MR NEIL: Precisely. We say if it is made with the intention of putting it away till things quieten down but in five years time for someone to be able to utilise it and go ahead, at the time you put it in the safe you have got the relevant contemplation.
FRENCH CJ: It may be that the words “connection within the document” could be a little misleading. I mean, in a sense, if it is addressed to the world – it is a characteristic of the document, of course.
MR NEIL: Yes.
FRENCH CJ: But it is addressed to a universal potential or contemplated terrorist acts.
MR NEIL: Yes. When one brings this a little closer to the document in question, it is addressed to the martyrs and there is not much doubt what they mean here, with the utmost respect, by martyrs. They mean people who are prepared to strap bombs on and go out and use them in public, in places that will not succumb, according to one view of things, to Sharia law and that kind of thing. Now, it was never contemplated by the legislation that that kind of activity can be a legitimate journalistic exercise or a legitimate support of any religion. It would not matter if it was Islamic, Hindi, Christian, anything else, even atheism, it would just be criminal, and so it was here, in our respectful submission.
Your Honour, we have in the short notes addressed our friend’s reference to the Terrorism Act (UK), Zafar, so on and so forth. We stress that the propositions of construction from Justice Latham and Justice McClellan – and your Honour would take comfort from those, in our respectful submission, they are highly experienced justices. I say nothing to the contrary about Justice Hall or Justice Latham, but, really, when one looks at this material in the context in which the evidence established that it was made and used, the connection is plain, Justice McClellan was correct in saying that her Honour was true to the wording of the legislation, she placed no gloss on that wording, her Honour should not have. The type of directions and the type of approach that Justice Hall adopted, that it has to go back to see if there is other evidence et cetera, with great respect to his Honour, is incorrect, it is unnecessary. In our respectful submission, the appeal should be upheld and the matters of contention should be dismissed.
We have and we hope purely by way of assistance, not in any sense suggesting to your Honours what this Court ought to do, but we have
suggested in our last paragraph just a couple of things because there is a couple of loose ends and we have put a suggestion as to what may need to be done depending on the outcome of this matter.
GUMMOW J: This is paragraph 10?
MR NEIL: Paragraph 14, I beg your Honour’s pardon. It is on page 3.
GUMMOW J: The respondent is presently on bail, that is right, is it not?
MR NEIL: He is, and there is no problem with that. There has been no suggestion of any difficulty at all with it, but certain things did not have to be decided below because of the way the Court approached it.
FRENCH CJ: The sentence appeal was not resolved?
MR NEIL: No, only by Justice McClellan.
FRENCH CJ: Yes.
MR NEIL: But it is otherwise live. There is some legislation now that says things that happen between now and then, depending on what they may be, may fall for consideration on that issue also, but if ever we get to it, that is another matter for another day. I do not know if I can be of further assistance to your Honours. They are our submissions. May it please your Honour?
FRENCH CJ: Thank your, Mr Neil. Yes, Mr Lange.
MR LANGE: Could I commence my submissions by returning to something your Honour the Chief Justice said part way through my learned friend’s submissions that really the debates before the Court today turns on whether there was sufficient evidence, that is, in respect of the appellant’s appeal, to discharge the evidential burden so as to engage section 101.5(1). Although not flagged in our documents – and perhaps I can say this is bold at the outset of these submissions – our submission would be that, really, the appropriate order today is simply to revoke the grant of special leave, and I say that for this reason.
What is plain from what my learned friend says today is that we are talking about a matter of degrees. Justice Latham said that there was at best a mere possibility that the purpose was one other. My learned friend speaks of a remote possibility. The majority of the Court of Criminal Appeal speaks of a sufficient, reasonable possibility so as to engage the reasonable defence which is available under subsection (5). What my learned friend has done, in my submission, demonstrates the error of the submission advanced on behalf of the Crown.
The prosecution comes before this Court today and argues this book and the circumstances which surrounded its making were such that there is only one conceivable purpose, which was the criminal purpose. In order to make good that submission, my learned friend relies obviously upon the contents of the documents. He relies upon the use of a pen name, Abu Mohamed Attawheedy. He relies upon the publication of the documents on a website which he characterises as being an extremist website. There are other matters that my learned friend has alluded to, but what I would ultimately suggest is that the appellant asked this Court to devolve upon a trial judge a task which is that which is properly reserved for the jury. The submissions - - -
BELL J: Does that mean that the trial judge is not tasked with determining whether the defence should be left, having regard to the terms of section 13, Mr Lange?
MR LANGE: Of course not, Justice Bell. I would not consider that.
BELL J: I am somewhat at a loss. Is not the issue the issue at application book 243, paragraph 128 in the reasons of Justice McClellan which was there was an absence of evidence touching on the question of the intention respecting the making of the document.
MR LANGE: Yes.
BELL J: So instead of directing attention to different formulae used in the course of submissions, that is the position that the Crown embraces. Now, I am not quite sure where you are taking us with suggestions of revoking special leave because people have used different formulae and so - - -
MR LANGE: Your Honour, the basis of the submission is this, that really it comes down to a factual argument. What we would say, picking up again something that fell from your Honour the Chief Justice in respect of the word “suggest”, is that because it is a matter of law for the trial judge to determine whether the affirmative defence is engaged, thus requiring an analysis of the evidence which could be led on that topic, the task is a limited one. It does not require an in-depth analysis of the issues, a precise weighing of the evidence on both sides of the arguments.
The word “suggest”, in our submission, is demonstrative of the limited nature of the exercise. The legislature does not use the word “prove”, does not use the word “demonstrate” in section 13.3, and we would say the use of the word “suggest” is quite significant in this context. Not only does that usage of that word demonstrate the limited nature of the exercise, but also the way in which evidential burdens are approached in respect of accused also demonstrates the limited nature of the exercise.
Your Honours had occasion to consider that in Braysich and although of course ultimately there was a division amongst the members of the Court, there was no doubt as to the principles applicable, that is, that the evidence must be considered at its highest in favour of the accused. I think there was an analogy drawn to an application for summary judgments in a civil case. It is that form of exercise.
FRENCH CJ: But here, of course, we are dealing with a statutory definition of “evidential burden”, and the primary focus must be on the words of the statute.
MR LANGE: I accept that, and it is for that reason, of course, I commenced this particular submission by pointing out the use of the word “suggest”, and there are of course far stronger words common to the law of evidence that have been used and it would no doubt have informed the legislature when passing this particular section as part of the Criminal Code. Although, of course, your Honours will construe the Criminal Code as is, that does not mean that the Court must shut its eyes and ears to what has preceded it, because that has ultimately influenced the way in which the legislature has drafted that particular provision.
CRENNAN J: I think the appellant accepts that slender evidence may be enough to satisfy the burden.
MR LANGE: Indeed, but what we say in response, in effect, is that is not in fact what the appellant professes, because your Honours will have noted the quite detailed submissions by my friend today as to the various items of evidence that were before Justice Latham in making this determination, and it is on the basis of the rejection of other evidence that one would conclude the evidential burden had not been satisfied, because I must remind your Honours that although those primarily four matters were referred to by the Court of Criminal Appeal as underlying – the respondent said the discharge of the evidential burden – the respondent was not limited to that evidence and did not say that he was so limited. The respondent, as I think also the appellant accepts, could readily rely upon any piece of evidence that was legitimately before the jury.
CRENNAN J: What was he relying on?
MR LANGE: Forgive me?
CRENNAN J: What was he relying on exactly? Was it the four points that have been identified as being non-contentious?
MR LANGE: It was the four points, but there was other evidence. For instance, one piece of evidence which was crucially important was the nature of the document itself. The Crown cast a certain shadow over it. The respondent places a different complexion on it.
We say there was reliance placed upon the nature of the document because quite significantly the Crown’s own linguistic expert gave evidence that the first half of the document, which is in effect unobjectionable on anyone’s view, was drafted in such a way that the vast majority of Arabic language speakers today would not be able to comprehend those passages. These were scholarly pieces of work, not drafted by members of al-Qaeda recently in a cave somewhere in Afghanistan, but rather were acknowledged theologians of their day some centuries ago. That is a further matter that was relied upon.
My learned friend characterises the website as an extremist website. There was evidence, again, led before the jury that there was material on the website which was extremist but there was also evidence of material which related to questions of Islamic marriage, anything other than extremist material.
But your Honour Justice Crennan will see that by presenting these issues before the Court I am seeking to persuade your Honour that ultimately the prosecution view of the book should be disregarded. I am seeking to persuade your Honours as I would a jury. That was held and not what was necessary before Justice Latham. It was pointing to.....and adducing oneself, but are pointing to evidence which raised this reasonable possibility and it is our submission that the task performed the way suggested by the appellant requires a far too searching investigation. Your Honour Justice Bell?
BELL J: Yes, if I could just direct your attention to paragraph 18 of the appellant’s submissions in which the four points are set out. Is it accepted that those are the matters that Justice Hall relied upon and, in essence, Justice McCallum did, as suggesting the reasonable possibility and thereby discharging the evidential burden?
MR LANGE: Certainly they were matters relied upon. I would be loath to say that those four matters were in effect the four points. Their Honours were cognisant of the contents of the book and the entirety of the evidence of course was part of the appeal book. They were cognisant also of the debate which occurred before Justice Latham, again, because that formed the basis of the transcript.
BELL J: Mr Lange, putting to one side the contents of the book, putting to one side considerations that the website might have included information about Islamic marriage and various other anodyne topics, what evidence is there respecting the intention of the respondent in making the document?
MR LANGE: Could I answer your Honour this way: the respondents relied upon the evidence contained in those four points primarily because it showed, in our submission, his intention on previous occasions what activity he had engaged upon on previous occasions from which it could be inferred what his intention was on this particular occasion. Could I, in that context, draw your Honours’ attention to, for example, Braysich, which I think was referred to earlier, the reference was given previously.
At paragraph 47 of the majority’s opinion, that is halfway between point C and D, the majority stated:
A jury, if they considered such evidence at its most favourable to the appellant, could well ask: is it really likely that an honest man who is acting on instructions from reputable people, who he has no reason to believe have a dishonest purpose, is himself acting with the dishonest purpose of creating a false appearance of active trading in shares – when he was aware of the requirements of the business rules of the ASX and of the law?
My submission, although not precisely on point with the facts before this Court, it demonstrates that one can look to other matters, to the contextual facts that exist, that is, for instance, his occupation as a broker operating within the confines of the law, the Australian Stock Exchange and of the law more generally.
One could look to other matters. Indeed, in that case, one could look to, particularly, for instance, good character. Good character there was particularly important, more important I would concede than in this case because it went to the question of dishonesty in Braysich, but moving on to the question of whether there must be shown, as contended by the appellant, that a purpose excluded the prescribed purpose, in my submission, the judgment of the majority demonstrates that that is not the case since good character could never be an answer to a criminal charge in and of itself. It is a matter to be considered as to whether the person on this particular occasion acted dishonestly.
But even your Honour Justice Bell in dissent does not appear to accept the proposition that there must be proof of a purpose which excludes the existence of the prescribed purpose. Could I take the Court, in that respect, to paragraph 116 of her Honour Justice Bell’s judgment? There again, halfway between point B and point C your Honour stated:
Evidence identifying a commercial or other purpose for a person carrying out a transaction caught by the deeming provision (being a purpose other than the creation of a false or misleading appearance of active trading) may suffice to raise the defence.
Your Honour, it appears, would be saying that if one puts forward a legitimate purpose, even if that does not exclude a concurrent prescribed purpose, that may nevertheless suffice to raise the affirmative defence.
BELL J: I do not know that there was any difference in Braysich respecting the test, nor, as I understand it, is there here today, Mr Lange. It is a question of the correctness or otherwise of the appellant’s contention summarised in paragraph 128 of Justice McClellan’s judgment.
MR LANGE: With respect, Justice Bell, it would appear in my submission that the argument advanced on behalf of the appellant goes somewhat further. It is not simply an argument which is advanced to say these matters were neutral and, therefore, the evidential burden was discharged. The Crown also, in my submission, going back to what her Honour Justice Latham says at first instance, speaks of evidence which excludes the prescribed purpose.
It is for that reason I have taken the Court to Braysich to say there is no requirement to demonstrate one purpose which is necessarily inconsistent with the purpose which is prescribed by section 101.5, simply for that reason. But as your Honour rightly says and the Chief Justice pointed out during my learned friend’s submissions, ultimately, the question is whether there was evidence sufficient to discharge the burden.
Your Honour Justice Bell said to me at the outset of my submissions when I raised the point about revoking special leave that one should not simply point to different characterisations of what the possibility might have been but to address the nature of the evidence which was before Justice Latham. Could I, however, pray in aid one other matter which is indicative, we would suggest, of why the affirmative defence ought to have been left and that the evidence was, in fact, sufficient and, indeed, quite considerably sufficient and that is, we would submit, the outcome on count 2.
I accept at the outset that the elements in respect of counts 1 and counts 2 were not wholly overlapping, but your Honours will see a quite considerable overlap which is difficult to explain and we would submit could not have occurred had the affirmative defence been left. Your Honours have, no doubt, to hand section 101.5 and will note that the affirmative defence is phrased in this fashion – that the offence provisions 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.
Your Honours will note immediately that one of the possible characteristics of the action that is related to the purpose under the affirmative defence is engagement of the person in. Interestingly, if one compares that to the elements on count 2, which are set out in her Honour’s written directions, which are replicated on page 5 of the appeal book, one of the elements is – and there is no question as to the correctness of this direction – that the accused must have intended that the offence, namely engaging a terrorist act, be committed.
Now, under count 2, it was his intention that was relevant. What was the accused’s intention in publishing the book and your Honours will recall that the offence pleaded was one of attempting to incite. That, of course, is replicated in indictments – again, I think, found in page 1 of the application book. Ultimately, there was no verdict returned on count 2. The jury was unable to agree as to whether the accused had attempted to incite. This flies in the face, in my submission, of the submission made by the appellant today that there is only one explanation for the publication of such a book and, therefore, there could be no other purpose, other than the prescribed purpose.
BELL J: But does not that turn on whether it is right that the document itself embodied one or more terrorist acts, having regard to the definition, since if that be the correct analysis, the circumstance that the Crown did not succeed in persuading the jury to conclude that it was an intention in publishing the document to induce a person to commit a terrorist act is not, relevantly, here or there when one turns to the very different elements of the offence of which he was convicted.
MR LANGE: Well, your Honour, perhaps I can have my cake and eat it too and I would answer your Honour in this fashion. We would say either it is demonstrative of the jury’s reluctance to convict because it was not satisfied that it was his intention, but insofar as your Honour points to the question of the difference that is caused by the phraseology “in connection with”, we would say, well, then there must have been error there in those words that the jury were given insufficient instruction so as to relate directly one matter to the terrorist act and its assistance facilitation on engagement of a person in that act.
BELL J: Well, do not run the words together. I think that that might just create confusion. We are looking at an indictment that charged in count 1 the making of a document connected with assistance in a terrorist act with a fault element of knowledge of that connection, and the matter that I am taking up with you is the way the trial was run, as I understand Justice Latham’s directions and as I understand Justice McClellan’s reasoning, was that the assistance with the terrorist act referred to one or more actions or threats of action embodied in the document itself. So that on that question, the circumstance that the jury may or may not have been persuaded beyond reasonable doubt that the intention was not to urge people to commit a terrorist act in the sense of to go out and blow someone up or hit them with a hammer or other of the useful tips that were given, would not be relevant.
MR LANGE: If I understand your Honour correctly, could I answer in the following fashion. One must be careful as to the manner in which the trial was conducted and placing reliance upon that in order to divine whether her Honour’s directions were influenced by the Crown conduct, and I say that for this reason. The two charges were obviously tried together. The elements were different and, as her Honour indicated, the jury had to consider different elements. Her Honour did not find favour with our argument and therefore construed the words “connected with” in an ordinary fashion and placed an objective requirement on their interpretation.
In my submission, however, that was not necessarily the way the trial was run and it is a point that we make in our written submissions as well by the prosecution because the two cases or the two charges were tried together. The Crown relied upon evidence which it suggested showed evidence of urging incitements in order to prove elements such as the knowledge of the connection and, indeed, it seems, also the connection itself, those matters being put again before your Honours to demonstrate that there was a connection between the document and a terrorist act.
My learned friend was asked this by your Honour Justice Bell during his submissions, that would the affirmative defence truly be inconsistent with the other parts of section 101.5 and it seems ultimately it must be conceded that it cannot be and your Honours could not find it to be inconsistent because it is there. It must be given effect, it must be given meaning. Indeed, there are myriad examples where the affirmative defence provision could apply and your Honour Justice Bell raised one and they are variously also raised by the Victorian Court of Appeal in Benbrika as well, in particular, for instance, the Court there spoke of the possession of fertiliser. It might well be connected with a terrorist act, but should not a person still be able to escape liability? That is of fundamental importance when one has regard to your Honour Justice Bell’s example.
If one takes, for instance, the government document producer who includes matters about terrorism in the document, is it really the case that legislature intended for him to justify his actions facing potential imprisonment of 15 years when plainly his activity is lawful? Indeed, that is something that was also considered in, for example, He Kaw Teh where the question arose as to what mental state was required when one talks about the importation of drugs, and the Crown there relied upon the existence – I am sorry your Honours do not have that on the list of authorities.
BELL J: I think the principles are known.
MR LANGE: Are known in any event. The mere fact that the reasonable excuse defence was available under section 233B did not in any way impinge upon the ability of the accused to say to the prosecution you must still prove your case. The burden was not shifted to the accused simply because of the availability of a defence. As I say, there must be some meaning given to section 101.5(5) and it must be given meaning in this particular case as well.
CRENNAN J: Can I just move off abstract considerations just for one moment just to confirm for myself. Looking at page 322 of the appeal book, and this is a passage in the argument below to which I directed the attention of the appellant, at paragraph 396 the intention there is particularised as being an intention “to assist in eduction on the topic of Jihad”. Now, so far as the facts are concerned, that was the intention relied on for the statutory defence, was it?
MR LANGE: In effect, your Honour, yes.
GUMMOW J: What does “education” mean?
MR LANGE: Propagate knowledge. Your Honour Justice Gummow, there was reference also to – in fact precisely to the way it had been put.
GUMMOW J: “Education” is bound up with intellectual disputation in our tradition surely, not indoctrination?
MR LANGE: No, not indoctrination. Your Honour Justice Gummow will recall also that when the accused, here the respondent, had been asked to particularise what the purpose was at trial level, there was that amendment later on to which my learned friend also adverted by lawful means, lest there be any confusion, that he sought to use religion or education to indoctrinate – to use your Honour Justice Gummow’s word – or to promote religion by some illegitimate means, as the Crown contends.
FRENCH CJ: Education on the topic of jihad, as understood in the document, would seem to encompass instruction on who should be assassinated and how to assassinate them.
MR LANGE: Well, in a sense, that is correct, your Honour the Chief Justice, and I say “in a sense” for this reason. Again there was evidence given at trial falling from the Crown’s expert that the word “jihad” had a variety of meanings.
FRENCH CJ: There is a focus on one particular application of it here. The lesser meanings are rather put to one side for soft people.
MR LANGE: Certainly, some documents are perhaps more expressive than others, I concede that, and they do focus on one particular area of doctrine, if I can call it that. That is, however, not to say that this material can never be published. The question is whether making the documents, there was a connection with facilitation for terrorist acts - - -
CRENNAN J: Is not the problem that the education you are talking about is – if you are using education as a word to be used to convey the transmission of information, the education, Chapter 10 and so on, as was shown to us, is education or instructions in relation to assassination?
MR LANGE: Your Honour, could I say this, again to use an example perhaps to counter what comes from your Honour now. The Crown has pointed to the circumstances in which this book was created, the use of the nom de plume and its publication on a foreign website which it says is extremist. What would be the situation, I ask rhetorically, if one moves away somewhat from that? It changes the fact slightly, but one has, for instance, an unknown professor at some university unknown in Yemen who publishes this type of article. Is it then a situation that one says the affirmative defence could not be engaged because he was seeking to educate people? It did not, in the Crown’s argument, exclude another purpose which was to, for instance, incite terrorism or encourage others to engage in acts such as those described in Chapter 10.
CRENNAN J: You have always to ask, have you not, educate in what? You have to look at the object of the education. Again, if you are using it just to mean transmit knowledge or information - - -
MR LANGE: Well, again, in my submission, ultimately the jury would have to determine that question, yes. Not, in my submission, however, her Honour on a consideration of matters at their most favourable to the respondents. If one can again move away from the example I have given of the unknown professor and one takes, for instance, a well-known professor, for instance, of Christian theology at the University of Sydney, widely published, renowned for his works on religion, and he were to publish a book of similar contents. Could it then be said that he could not avail himself of the affirmative defence? My point being, your Honour Justice Crennan, one must not look simply to the content of the book and say that this is material which is so vile – I think I referred to it as the fallacy ad odium in an earlier set of submissions – that there can be no other purpose. That is a submission which can be made before the jury, but is not, in my submission, determinative of the test which her Honour Justice Latham was asked to apply at first instance.
The point made in the brief outline, which I hope has been handed to the Court, but was also raised in the written submissions refiled with the necessary annotations, and it is this, that her Honour Justice Latham proceeds upon the assumption of the particular order in which the offence and its various elements need to be considered. The Crown does likewise, in my submission, and from that submits to your Honours that if all other elements are found to have been proven, then how could the affirmative defence be made out? I have already advanced the principal submission, which is there must be some work for that subsection to do otherwise it would not be there and, indeed, one notices the shift from absolute liability that the Parliament originally intended for these provisions to this form of graduated mens rea, knowledge and recklessness and the availability of an affirmative defence.
We submit it is quite significant, again the choice of words, that under subsection (5) the offence provisions simply do not apply if the affirmative defence is made out. If anything, we would suggest that the proper construction requires the jury, if at all, if there is any sequence it must follow, to first consider the purpose for which the document had been – or the item was possessed under section 101.4, but, really, we say there is no particular order. The jury can approach its task in any way it sees fit and therefore it cannot be said that before considering the affirmative defence, it must have already found and established the other matters.
That is not simply applicable to this particular type of offence, but, indeed, any other offence where there is a defence available to the accused which is not otherwise part of the elements of the offence. The jury, for instance, in a self-defence case could ask itself, well, I do not need to be satisfied about the question of whether grievous bodily harm was inflicted or not, because I can first determine the issue of self-defence and if I determine that in favour of the accused and against the Crown whether or not the particular injury was grievous bodily harm or not is irrelevant. It just demonstrates that there is nothing particular about this offence provision which requires a sequential analysis, but if there were, we would submit it requires consideration of the purpose first and not later, as the Crown contends.
Your Honours will have noted the reference to the cases in the original submissions and, in particular, the reasoning of Justice Hall who points out this distinction in the case of Dowe v Commissioner of New South Wales Crime Commission reported in – I will not ask your Honours to turn to it now – (2006) 206 FLR 1, in particular, paragraph 102. This very distinction was raised in respect of the old section 233B of the Customs Act. I have asked your Honours also to be provided with two further documents which are extracts from Hansard. I hope your Honours have received those. They are two extracts, as I say, which refer to amendments to the terrorism legislation, in effect, to - - -
GUMMOW J: Will these throw any light on the construction of 13.3?
MR LANGE: No, they do not, Justice Gummow. They relate specifically to the defence under subsection (5) of sections 101.4 and 5. The significance we say of the amendment is to be noted in the absence of the affirmative defence under section 101.2. Your Honours may have noted, and it is replicated in the speech of Senator Ellison at page 2579 of Hansard – your Honours will see the form that that offence takes and it is still in that form for all intents and purposes. Notably, the affirmative defence about which we are debating today does not appear under section 101.2. If that amendment was made, and it is amendment 11, if that not immediately apparent, was made at the same time as amendments 13 and 14 which were in respect of sections 101.4 and section 101.5 where the affirmative defence was introduced.
I do not propose to read what the Senator says but, in effect, the Senator proposes the amendment, proposes section 101.2, does not speak of the affirmative defence, proposes the amendments to sections 101.4 and 5 and says that a new defence has been introduced. There is no further discussion about why that is, but, in my submission, the reason for the distinction is plain and it is this. While under sections 101.1, 4 and 5 there is a variety of conduct which can be caught, and that can be seen by the examples already given, such as the government employee who publishes a document or the person who possesses fertiliser, there are innumerable circumstances where persons should not be charged, let alone convicted, of terrorism offences, and it is for that reason that the legislature has importantly provided the fail stop, not simply of requiring a connection to a terrorist act, but also requiring proof of an illegitimate purpose if the affirmative defence is raised by the accused.
One does not find that affirmative defence in section 101.2, in my submission, for the very obvious reason that the legislature has formed the view that such training, the acquisition or the provision of such knowledge, since 101.2 refers to both the acquisition and the giving, should in no circumstance be permitted, even if a person might have a legitimate excuse at one point for engaging in terrorist training, he should not, full stop and that is why we see there the absence of this affirmative defence but do not under sections 101.4 and 5. Regrettably, I was unable to find any further information as to why there was this distinction but, in my submission, that must be the basis for that conclusion.
BELL J: It is not in issue that the defence is provided in subsection (5)?
MR LANGE: But it does go to the Crown’s arguments that once all the other elements are proven, that it would be otiose to rely upon the affirmative defence. Could I then, unless I can assist your Honours any further in relation to the appellant’s arguments, turn to the notice of contention. It focuses primarily, of course, on the terms in connection with and what is to be made of those. My learned friend states that the law in New South Wales is now as it is in Victoria in the light of the decision in this case at the Court of Criminal Appeal level. Although it does not seem to me that Justice McClellan wholeheartedly embraced the reasoning of the Victorian Court, I will accept it for the purpose of this argument.
One principal contention appears to be that a reason for adopting the approach which Justice Latham did and not adopting an approach either such as Zafar in England, which is reported in [2008] AB 810 – again I will not take your Honours to this – or as in Benbrika, one reason is because it places a gloss upon the legislative language and, in my submission, that argument simply cannot be correct. It is not only a frequent occurrence in the courts of this country but is, indeed, a duty of every trial judge to assist the jury in the interpretation of legislative language. One example, again to take a simple everyday one, is an offence which involves the commission of grievous bodily harm. That is statutory language but still it must be defined for the jury, really serious bodily harm. A trial judge might well fall into error if he or she fails to assist the jury by telling the jury what grievous bodily harm means. It is not and cannot be said to be a gloss placed upon the legislation to assist the jury as to the meaning of the particular statutory words.
The reasoning of Justice McCallum, we suggest, is simply not to be accepted on this point because, in our submission, it is plain that the parts of the definition of “terrorist act” which must be considered by the jury are simply circumstances and the Criminal Code does permit of the circumstances. It is not simply limited to a question of physical and fault elements, that is, the doing of the acts and the doing of the acts with a particular intention. What the Crown, in suggesting that Justice McClellan accepts the reasoning from Benbrika, says, in effect, is this. In circumstances where one has a document which is – this is my wording – inherently connected with a terrorist act, one does not require the fulsome direction given in Benbrika.
The Crown submits that this is such a document, therefore her Honour’s directions which related the action with the terrorist act sufficed without saying anything further. Presumably, if it could not be said that this document were inherently connected with a terrorist act, then in New South Wales the law would now be, so the Crown says, that a Benbrika style direction would be required.
GUMMOW J: These are federal offences.
MR LANGE: Indeed.
GUMMOW J: You cannot talk about the law of New South Wales.
MR LANGE: I only raise it for this reason because of the divergence which appears between the courts, but, yes, there must be a uniform interpretation given to these Acts. In my submission, the Court in Benbrika made plain that the error of the trial judge lay not simply in failing to use the word that appears in the offence provision, but, rather, simply says connected with terrorist acts. That was not what the offence provision provided but the Court of Appeal did not stop there. It did not say that it was sufficient to give a direction in the terms which her Honour Justice Latham did here, which was to say you must consider whether it is connected with assistance in a terrorist act, a terrorist act being defined in the following terms.
The court went beyond that and introduced, in effect, these three additional circumstances that must be put before the jury. It did so because, in our submission, even if one relates the actions of the accused to the terrorist acts, as her Honour Justice Latham did, that still says little about what a connection is. There has already been reference to the various interpretations that can be given to words as broad as “in connection with” and I have already also referred to those in the written submissions. Your Honours are familiar with them.
Without any assistance whatsoever of the kind which has been suggested by the Victorian Court of Appeal in Benbrika, the jury is still left with this conundrum. How is it connected? Is it sufficient that the book writes about actions that could assist? Is it sufficient that the book talks about assassinations? Is that simply all that is required?
GUMMOW J: When you say “talks about”, that is a gloss, is it not?
MR LANGE: In my submission, no it is a definition, your Honour, Justice Gummow. It is a definition of the statutory term.
CRENNAN J: Do you rely on anything in the book which you say would support the proposition that the connection was remote or tenuous?
MR LANGE: In order to answer that question one cannot, in my submission, simply look at the book. One must look at the totality of the evidence. The book refers to terrorist acts, but if the - - -
CRENNAN J: Well, you could enlarge my question. Could you assist me in understanding in the evidence that you would rely on to support the proposition that the connection was remote? Remote or tenuous, I think are the two words that you urge should have occurred in the direction.
MR LANGE: Remote or tenuous, yes, those were the words we used.
CRENNAN J: In other words, your argument is the direction was inadequate because it did not deal with remote and tenuous.
MR LANGE: What we would say is the book existed and it did no more than exist. It was not a case where the accused, for instance, went about deliberately urging people to read the book to be used in connection with the commission of an act. We, of course, pray in aid what the Victorian Court of Appeal said, that there must be some act in contemplation by a person, whoever that person might be, whenever that act might be committed, wherever it might committed and having whatever particular characteristics.
FRENCH CJ: But what does that mean - “in contemplation”? How does that limit anything? If the author of a book along these lines puts it out to the public and, let us say, gets specific and says, “Mr X, a particular public figure is worthy of assassination as an expression of jihad and this is how it could be done”, you would accept that there is a particular act in contemplation sufficient to establish a connection?
MR LANGE: Most certainly.
FRENCH CJ: All right, now let us generalise. There is a class of persons out there who fall into these various categories, people who hold high office of various kinds and they are worthy of assassination as an expression of jihad and this is a variety of ways in which it can be done. What is the distinction between the contemplation there and the contemplation in the particular case?
MR LANGE: In the former case the person who holds the contemplation is the author. He says so plainly.
FRENCH CJ: I am suggesting the author is the person here as well, so that is what I am asking you to address.
MR LANGE: But as I understood your Honour’s example, there the author was putting out that there are these people and that they are worthy of being assassinated. In those circumstances too I would say it was within the contemplation of the author that those actions would be carried out, but if I might marry your Honour’s question in with that of Justice Crennan, these are not the words in this book of the respondent’s.
This is a collection of documents downloaded from a website reposted onto another and I would ask your Honours to bear in mind part of the summing-up given by Justice Latham which appears at pages 102 to 103 of the application book where her Honour addresses specifically what I might call the introduction to this most heinous of passages or sections in the book. At about point 45 her Honour states:
The accused describes Alazzdy as “our esteemed brother” and he introduces the chapter as “motivating Mujahideen to revive the ritual of assassination”. –
She here quotes from the book –
I remind you, of course, that in that introduction it is clear that the accused is saying that it is Alazzdy who motivates Mujahideen to revive the ritual of assassination. In other words, the accused is expressing that in the third person. He does not say: I am motivating Mujahideen. He says Alazzdy is doing this. That is an argument that the accused advances in order to persuade you that this was not the accused’s intention. He was merely reporting someone else’s motivations for writing that kind of material. But, as I said, that is a factual dispute that is one for you to determine.
BELL J: That was a factual dispute that was very live on count 2.
MR LANGE: Precisely. The reason, of course, I point to this is to demonstrate that unlike the situation posited by your Honour the Chief Justice where a person actively puts a book in circulation advocating certain actions, perhaps advocating certain methods by which to achieve those goals, it must be said that it was in his contemplation that a terrorist act might occur. It must be accepted. But where we have a book such as this which we contend is merely a compilation of other persons’ views, it would be open to the jury to find that there was no such connection.
Of course, the Crown is perfectly entitled to and did, during its address, point to passages such as this and say, “He might well not have advocated assassination himself, but by including this material, he hopes that others would actually follow what was said in the assassination chapter.”
BELL J: But that is not relevant to the way the case was put on count 1, is it, because the question of whether or not the respondent hoped that people might act on it, as I understand it, was not material to proof of the offence charged in count 1, and one comes back again to this characterisation of “assistance in the terrorist act” being understood in a context, if I understand it correctly, that the publication itself contained the terrorist acts.
MR LANGE: Yes. Your Honour Justice Bell is quite right. Indeed, Justice Latham in directing the jury draws this distinction between counts 1 and counts 2. The reason I point out a submission that could be made – was, in fact, made by the Crown is to answer your Honour the Chief Justice’s comments about where on the continuum we lie before we find contemplation or otherwise.
FRENCH CJ: Yes, I am looking at it in the context in which you are saying the kind of direction that should have been given.
MR LANGE: What, it seems, would be the inevitable result of the Crown’s submission is this - - -
FRENCH CJ: I am sorry the direction that you say ought to have been given would reflect what appears at 7.17 of your submissions on page 15?
MR LANGE: Yes, that is quite right. That picks up on what was said by the Victorian Court of Appeal. We concede, should there be any doubt about it in paragraph 719, that there need not, in fact, be a preparatory act in progress which appears perhaps to have been required by the Victorian court. We would not say that. If I could perhaps give an example - if a person were to download innocently bomb-making recipes at some stage and held on to those, at a later stage however has in contemplation to use those, although there is no preparatory act that takes place, still he would be guilty of the offence and we would concede that much. So to the extent that Victorian authority goes further or perhaps Justice Hall, we would not go that far. We would concede that. But otherwise, yes, the direction is as set out at paragraph 7.17 of our submissions.
The argument for the Crown, as I say, would inexorably lead to this position, namely that where a document objectively viewed is inherently connected with a terrorist act, without having regard to any other persons or possible person’s subjective contemplation, one would not need to give a false interaction such as that in Benbrika.
CRENNAN J: What do you mean by false?
MR LANGE: To speak of contemplation, to speak of the subject of contemplation of another person. That is the difference, it seems, between the view taken by her Honour Justice Latham when she speaks of “one must view the book objectively” and that was the passage your Honour Justice Crennan took my learned friend to earlier in his submissions, vis-a-vis the passage or the reasoning of the court in Victoria, which is to require that a person, whether it be the author or whether it be another person, have that contemplation because without that contemplation there is no terrorist act with which the connection can exist, we say.
In my submission, to have the state of law in such a situation where the precise direction to be given by a trial judge depends upon the formation by that trial judge of an opinion as to whether the book is connected with, for instance, a terrorist act and if it might be said that itself is not connected with a terrorist act, but other evidence might allow that inference then one would have to direct the jury differently.
Interestingly, the Crown says that Benbrika is distinguishable because, whereas in this case the book itself was inherently connected with a terrorist act, the CD in Benbrika was not so. If one has regard to the actual contents of the CD that was the subject of the charge in Benbrika which led the Court of Appeal to conclude that a different direction ought to have been given, one notes that in many respects it is wholly on par with this book, and in some respects perhaps goes further, and I draw your Honours’ attention to passages which appear on 526 of the report in the Australian Criminal Reports, passages in paragraphs 300 to 303 and 304.
BELL J: This was in the context of a charge that fastened on the possession of a thing connected with preparation for a terrorist act, was it not?
MR LANGE: Yes, indeed, but our submission would be that sections 101.4 and 101.5 are in identical terms, save for the action, either the possession or the making of the document and, accordingly, they must be given the same interpretation. That appears to have been accepted across the board by the Court of Criminal Appeal and, in my submission, that conclusion must follow.
BELL J: But in an Alford v Magee sense when one looks to giving directions to a jury that meaningfully relate the law to the issues and the evidence that is before them one can see very different issues arising in the trial of Mr Benbrika on the charge that he faced to the present, if it be accepted that the “assistance in the terrorist act” for the purpose of the offence with which the respondent was charged related to the content of the book itself containing as it did one or more terrorist acts.
MR LANGE: Yes, that would be right if it could be said that it was the accused’s contemplation that was relevant, but in my submission that was not the case here based on the direction given by Justice Latham. Could I first perhaps defer your Honour’s question just for a moment and take the Court to those passages which appear at 302 and 304 and then return to that question to deal with the issue of contemplation? Your Honours will see that the CD, this is at paragraph 302, was described as:
an archive of documents . . . The first two sections are theological in nature.
There are some documents including videos which detail how to avoid Zionists and Freemasons. I am not sure how extremist that might have been, but then one continues. “The fourth section entitled ‘Jihad’” deals, in effect with the obligation, similar to what is suggested this book dealt with. The Court described it as follows:
This section contains a number of documents setting out the duty of Muslims to partake in violent jihad after the kuffar. These documents include, for example, writings on fundamentalism and the Islamic stance on suicide bombings (supportive) - - -
GUMMOW J: What is this designed to show? This is a decision that does not bind us.
MR LANGE: No, of course not. But I raise it for this reason. The Crown advocates that the decision of Benbrika can stand on its particular facts. We say the Court could not do that because the facts are overlapping and so close that the Court would have to consider the correctness of the decision in Benbrika in order to arrive at a conclusion about this appeal. It is for that reason that I raise this issue of the CD in that case – the conclusion arrived at.
BELL J: Without taking us to the detail of the CD, the point might be made in this way. If Mr Benbrika had been in possession of the document that your client was charged with making, the conclusion of the Victorian Court of Appeal, as I understand the reasoning, would have been the same because of the different elements of the offence with which he was charged. I am only suggesting, Mr Lange, it does not really advance you much to take us to the content of the CD in Benbrika, as I understand the issues.
MR LANGE: It does for this reason, your Honour, with respect. If the Court accepts my submission that the two sections are to be considered identically and, if I understand your Honour’s submission, the distinction is to be seen in the fact that on the one hand a person possesses an item, in the relevant offence here he makes a document and does actually something active. The mere fact of doing something actively does not thereby mean that that person has in his contemplation terrorist acts. I say that for this reason. It would be an offence which comes within the definition of section 101.5 if a person were to download this book which is the subject of these charges. That would be to make a document. It is not in his contemplation necessarily that a terrorist act occur, but he might download it. He would be in precisely the same situation as Mr Benbrika found himself in when he was in possession of a CD. Whether one downloads a document or a number of documents or has in possession a piece of plastic matters not.
Ultimately the Court concluded that one would need to show that some person, whether he himself or another, had in contemplation terrorist acts. In this case, the book might well have been compiled by the accused, but that does not mean that he contemplated the commission of the terrorist acts or contemplated that any other person would necessarily commit a terrorist act. In this regard, I would ask your Honours to bear in mind the passage which appears at page 74 of the application book, 63 of the summing-up. This appears at about point 34:
the Crown must prove that he was aware that there was the action or threat of action contained within the document and that its purpose, that is the purpose of the action, not his purpose –
and I place emphasis on that –
but the purpose of the action was of the specified nature in (ii) and (iii) and that it would cause the type of harm outlined in (iv).
CRENNAN J: Well, “contemplate” means, does it not, have in view a purpose? Is that not what it means?
MR LANGE: Precisely, and here her Honour was directing the jury that one puts aside his contemplation, one looks objectively at the book, that is something which has already been given to the jury as a direction, at page 65, there is no reference to any person having a contemplation - - -
BELL J: That is because on this direction the content of the book is the terrorist act. So what the direction directs attention to is his knowledge of the content within the definition of “terrorist act” contained in the legislation.
MR LANGE: And then it would have to follow necessarily that Mr Benbrika was guilty of an offence, in my submission, because he was in possession.
CRENNAN J: There are different degrees of separation between the making of a document and the construction of the relevant phrase and the position of a thing.
MR LANGE: Then I would hearken back to the example I gave beforehand of Mr Benbrika downloading the documents. There he makes the document as well, unquestionably. The offence provision is the same. In the one case, a person has downloaded, edited and uploaded a book. In the second case he has downloaded the book. There is no relevant distinction at law, in my submission, which would justify different directions to the jury. One would require consideration of the action being in contemplation of a person.
FRENCH CJ: Mr Lange, how much longer do you expect to be?
MR LANGE: Your Honours, I note the time, I do not imagine very much longer. My learned friend may have something to say. I would say perhaps no more than a few minutes.
MR NEIL: I am about three or four minutes at the moment, your Honours.
FRENCH CJ: Yes, all right. Yes, continue, Mr Lange.
MR LANGE: Thank you, your Honours. Perhaps, really, I can just make a couple of comments in conclusion. Our submission is primarily that there must be further assistance given to a jury. That assistance can be derived not from the fact that there must be a relation between the making of the documents and the terrorist acts but must go beyond that. It requires, we say, reference to contemplation of a terrorist act that it will or might or could occur in future, whatever it might be.
The jury in this case were left in a situation where they had no assistance. They were simply told there is a terrorist act. The question for you to determine is whether it has been proved beyond reasonable doubt that it was connected. Is the mere reference to terrorist acts, their description and reference to manners and ways in which those acts can be carried out, a sufficient connection? We say it is not. For that reason, the Court ought to have directed that there be a further direction, whatever it
might have been, but we suggest along the lines that is set out in paragraph 7.17 of our written submissions. Unless I can assist any further?
FRENCH CJ: Thank you, Mr Lange. Yes, Mr Neil.
MR NEIL: Your Honours, I have only a couple of very brief points of reply and a couple of additional references, if I may. The first is a formal submission and that is that your Honours would not revoke the grant of special leave. The second is that it was suggested by my learned friend in answer to a question, I think, asked by Justice Bell or possibly Justice Crennan to the effect that was the respondent’s case limited to the four points that were identified. My friend said it was the four points but there was other evidence and reliance was placed on the nature of the document.
Now, your Honours, with respect it was limited to the four points. I will not take your Honours to them, but if your Honours go to the reasons of Justice McClellan in appeal book 322 at paragraph 396, they are set out in terms. They were expressly adopted by Justice McCallum in her Honour’s reasons and they were effectively identified by Justice Latham in her reasons at appeal book 70 at paragraph 10. They are the reasons of Justice Hall in his consolidated reasons which we have summarised in our written outline earlier. We can find no other matter that is said to have been relied upon.
I had some matters concerning Benbrika, but in light of the discussion they have fallen into irrelevance. The final matter is that my learned friends submitted it was the Crown who submitted here before this Court that the particular website, the Almaqdese website, was extremist in nature. That is true. We submitted it to Justice Latham in the Court of Criminal Appeal. But at application book 70 in her summing-up to the jury Justice Latham addressed the position of leading counsel for the respondent at the trial. If your Honours would forgive me I may have – my apologies, your Honours, I seem to have confused myself in my notes, but I should have it in hopefully 30 seconds. I will come back to it.
The final matter is there seems to be an overlap between my learned friend on counts 1 and 2. That is addressed correctly, we submit, by Justice Latham in her remarks on sentence at application book 180 in paragraph 12 through 14. That reasoning was implicitly adopted by Justice McClellan in application book 245 at page 133. Your Honour Justice Crennan was correct in identifying from application book 322 at paragraph 396 that the positive case that was in fact advanced by the respondent as the reasonable possibility that the document was intended to assist in the education on the topic of jihad alone, that explains, with respect, what Justice Latham said, that line of argument ignores the content
of the book and the means advocated within the book by which the – if I may be so bold as to put it in notional inverted commas – “education” was to be delivered.
Your Honours, I cannot find the reference, but I am confident in my recollection and I will send it through later if necessary. Justice Latham in her summing-up to the jury pointed out to the jury that leading counsel for the respondent at the trial had submitted to the jury that the book contained material that was extremist in nature and material that they might regard as abhorrent and her Honour in accordance with a request made by my learned colleague in the absence of the jury beforehand went on to direct the jury that merely because they may think that the book contained abhorrent material, they could not turn that into a finding of guilt and went back to the elements. May it please your Honours.
FRENCH CJ: Yes, thank you, Mr Neil. The Court will reserve its decision. The Court adjourns until 2.15 pm, Monday, 5 March 2012.
AT 1.02 PM THE MATTER WAS ADJOURNED
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