R v Abdirahman-Khalif [2020] HCATrans 129 (3 September 2020)

Last Updated: 4 September 2020

[2020] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A5 of 2020

B e t w e e n -

THE QUEEN

Appellant

and

ZAINAB ABDIRAHMAN‑KHALIF

Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 3 SEPTEMBER 2020, AT 10.00 AM

Copyright in the High Court of Australia
MS S.M. McNAUGHTON, SC: I appear with my learned friends, MR P.J. DOYLE and MR C.J. TRAN, for the appellant. (instructed by Commonwealth Director of Public Prosecutions) We have actually lost all visual message now, but I hope you can hear me and perhaps see me.

BELL J: I can see and hear you, but you at the moment have no sight of the Court. Is that the position?

MS McNAUGHTON: That is the position. I have a white screen.

BELL J: Yes. Let me just inquire before we consider how to proceed, Ms McNaughton.

MS M.E. SHAW, QC: I appear with my learned friend, MR B.J. DOYLE, for the respondent. (instructed by Caldicott Lawyers)

BELL J: Thank you, Ms Shaw. Do I take it you have no difficulty both seeing and hearing the Court?

MS SHAW: No, we do not.

BELL J: And are you able to see Ms McNaughton?

MS SHAW: Yes, we can, in the left corner.

BELL J: Ms McNaughton, it seems unsatisfactory to stay with you not being able to see the Court or your opponent. What I propose to do is to briefly adjourn to see if we can rectify the situation. The Court will adjourn.

AT 10.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.07 AM:

BELL J: Ms McNaughton, do I take it that you can now see the Court?

MS McNAUGHTON: Yes, I can indeed. Thank you, Justice Bell.

BELL J: Yes, very well.

MS McNAUGHTON: The appellant’s contention is that the fundamental error of the majority of the court below was the overly narrow and formal construction of the word “member” when taking into account the extended inclusive definition. That erroneous approach was informed by problems with the definition of “organisation” and we also contend wrapped up in this issue was a failure by the majority of the court to grapple with the body of evidence that was actually before the jury.

If I may just set the statutory scene quickly. The offence provision in question is 102.3 of the Criminal Code (Cth). That is at page 42 of volume 1 of the joint book of authorities. But going back to ‑ one can see the top of that page, that is within Chapter 5 and within Part 5.3, but to go to the beginning of Chapter 5 which we note is called “The security of the Commonwealth”, that is divided into different divisions. Division 1 is preliminary - that contains within it some definitions. Then there is Division 101 which is entitled “Terrorism” and then there is Division 102 which starts at page 36 and that is entitled “Terrorist Organisations”.

It is within that division, Subdivision B - Offences, that our offence provision is to be found. Just to go back then to Division 100, which is the first division under Part 5.3 - Terrorism, and over the page to page 21, one can see there a number of definitions including the definition of “organisation” just below halfway down the page:

organisation means a body corporate or an unincorporated body, whether or not the body:

(a) is based outside Australia; or

(b) consists of persons who are not Australian citizens; or

(c) is part of a larger organisation.

So, that is one of the important definitions. Over the page at page 22, there is the definition of “terrorist act” that has now been the subject of some discussion at various levels of the judicial hierarchy. So:

terrorist act means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing . . . or

(ii) intimidating the public or a section of the public.

So that is in that part. Then, if we go over to Division 102 at page 36, and that is entitled “Terrorist organisations” and that has its own set of definitions as well. Halfway down page 36, which looms large in this case, is the definition of “member”. It is an inclusive definition:

member of an organisation includes:

(a) a person who is an informal member of the organisation; and

(b) a person who has taken steps to become a member of the organisation; and

(c) in the case of an organisation that is a body corporate—a director or an officer of the body corporate.

“Terrorist organisation” is also defined on that page in those terms that are set out there, and I will not read those out. We then come to Subdivision B - Offences at page 42 and the relevant provision is 102.3(1):

A person commits an offence if:

(a) the person intentionally is a member of an organisation -

and then we feed in, of course, that inclusive definition of “member” that we have just seen:

(b) the organisation is a terrorist organisation; and

(c) the person knows the organisation is a terrorist organisation.

BELL J: Ms McNaughton, just before you leave the framework, can I just take up with you the elements of the offence by reference to the general principles of criminal responsibility contained in Part 2.2 of Chapter 2? Am I right in thinking that the three elements in subparagraph (1) are each physical elements – the first, (a), being a physical element of conduct, namely, a state of affairs; the second and third being physical elements of conduct, namely, a circumstance in which conduct occurs? Is that the way one reads that provision?

MS McNAUGHTON: Yes, we would agree, with respect, that being a member is a state of affairs but then it is slightly complicated by that inclusive definition. But, yes, we would respectfully agree with that.

BELL J: It does produce the slight oddity, if I am right in understanding that the element (1)(c):

the person knows the organisation is a terrorist organisation –

.....a physical element, namely, a circumstance in which conduct occurs – that conduct being the state of affairs of membership of the organisation? Is that correct?

MS McNAUGHTON: Unfortunately, your Honour, we were just having some problems with sound being not quite loud enough, we have now fixed that, so I did not quite get just the end of what your Honour was saying there.

BELL J: I am directing your attention, Ms McNaughton, to the element (c) of the offence:

the person knows the organisation is a terrorist organisation.

As I read it, that itself is a physical element, namely, a circumstance in which conduct occurs.

MS McNAUGHTON: Yes. I would respectfully agree with that.

BELL J: That being the case, one has the oddity that the default fault element is recklessness.

MS McNAUGHTON: That is the default fault element, but if a provision provides for a fault element, that is embedded within that element.

BELL J: Yes, I appreciate that, but what is this element other than:

the person knows the organisation is a terrorist organisation.

That is, itself, the physical element, is it not? It may not be raised by this matter, Ms McNaughton, but it simply does seem necessary to have some understanding of how this offence fits within the general principles set out in Chapter 2.

MS McNAUGHTON: Another way of looking at it, your Honour, if I can just perhaps reflect on my agreement before, is to say that it is not a circumstance but rather it is the mental element attaching to (b).

BELL J: I see. So that there are, on that analysis, two physical elements and the drafter has, for whatever reason, separately stated the mental – the fault element for the physical element in (b) in subparagraph (c).

MS McNAUGHTON: Yes, your Honour. We would agree with that, respectfully. So, I withdraw what I said earlier and urge upon your Honours that analysis.

BELL J: Yes, thank you.

MS McNAUGHTON: If I may then turn to the way I am going to be structuring my submissions from this point. I intend to take the Court briefly to some of the majority’s reasons because there is no agreement, it would appear, between the parties as to what the majority, in fact, held. As I do that exercise I am going to note some errors that we contend were made. I am then going to go to errors of construction in relation to the main issue and then I want to develop in some greater detail some of the evidential and factual problems with the majority’s reasons. That is for two purposes we are going to go down that evidential route.

We contend, as I alluded right at the beginning, that the errors that the majority made were in relation to what the body of evidence was that was available to the jury in order to make their essentially jury question determination, and because the majority misconstrued what the body of evidence was that helped, we contend, mislead the majority into how they construed the statute. We also say that the exercise may be helpful for the assessment of the notice of contention. Following that, I will be addressing the notice of contention.

So, if I may invite the Court to go to the core appeal book at page 216 which is the first page of the judgment of the court below, the judgment, relevantly, of Chief Justice Kourakis, and at paragraph 3 the judge purports to set out the statutory framework. The second last line of paragraph 3, though, his Honour in purporting to set out the words of the section, in fact, uses slightly different words. Talking of the inclusive definition, third line from the bottom:

defines a ‘member’ to include a person who is an informal member of the organisation ‑

and then he paraphrases, his Honour says:

or takes a step to become a member –

Now, that is not the words of the relevant definition, slightly different. The words of the relevant definition in the inclusive definition of “member” at page 36 are:

a person who has taken steps –

not a person who takes a step. He says it in a similar way, we would contend, with this slightly different connotation at page – the same page, paragraph 4(1), last line. His Honour said:

therefore, no evidence that the appellant had taken a step ‑

Again, not the words of the definition which is “has taken steps”. Over at page 220 – I am just passing through what I contend may be slight errors which may have led his Honour to mislead himself. Page 220, paragraph 19, line 13, it is about five lines from the end of the top paragraph:

and a person who takes a step to become a member.

Again, on that page, line 17, I think the first line of the second paragraph:

The extension of the definition of a member to include a person who takes a step –

Again, not the words “who has taken steps”. Then, we would say, culminates in one of the problematic passages in the judgment. At paragraph 20, fourth or fifth line down:

Importantly, the very notion of a step implies a membership process. That process can only be determined by the organisation – not by its prospective members.

I will be coming back to that in due course. That little exercise, we say, may indicate how his Honour started to be mislead in relation to the definition of “member”.

His Honour Justice Parker, who agreed with his Honour Chief Justice Kourakis, makes a similar, we would say, slightly different way of saying the definition. There are a number of spots where that is said. At page 276 of the core appeal book, paragraph 252, line 2:

they must be able decide the steps –

Then, over at page 278, his Honour Justice Parker agrees with Chief Justice Kourakis, as observed at 20:

the statutory extension of the concept of membership to the taking of a step towards membership, necessarily contemplates that there will be some form of practice or process –

Again, at the last of that paragraph, 260 – or that last sentence:

Most importantly, there was no evidence from Dr Shanahan, or any other witness, as to what conduct would be accepted by IS –

And then state:

as a step along the path to membership.

So, we say, slightly different words. Given this is a statutory construction issue, the justices are not using the words of the statute.

There are a number of other.....if I could briefly draw your Honours’ attention to, which we say underpins the misconstruction. At page 220, at paragraph 19, his Honour Chief Justice Kourakis is talking about:

the definition of a member of a body corporate –

Your Honours would recall that that is paragraph (c) of the definition – that extended inclusive definition of “member” at page 36. So, relevantly:

member of an organisation includes:

. . .

(c) in the case of an organisation that is a body corporate‑‑a director or an officer of the body corporate.

So, it is including it. Whereas, we contend that his Honour Chief Justice Kourakis misconstrued that provision and said, rather, at the second sentence:

Importantly, the definition of a member of a body corporate, in s 102.1 of the Criminal Code, includes a director or officer of a body corporate, but not a shareholder or other member even though shareholders, in general or special meetings, exercise important powers in the governance of a corporation.

We say that is simply, with respect, wrong and it could have informed the way he approached the definition of member for the purposes of Islamic State.

At the final sentence of paragraph 19, that is made plain. The importance of his error, we would say, is there is a failure to observe that distinction ‑ that is, he has just discussed:

a distinction between the organisation’s members, formal or informal, and the organisation’s supporters. A failure to observe that distinction would lead to an inexplicable gulf between the narrowly defined membership of incorporated terrorist organisations and those which are unincorporated.

We say again, that is based on a misconception or misreading with respect to the definition of member.

Flowing from this, we would also draw your Honours’ attention to – and we will come back to this a bit later – at page 223, paragraphs 32 and 34. That relates, we say, to that misconception in relation to what is included in an organisation that is a body corporate.

Two pages on, at page 225, his Honour deals with the issue, which we say never arose, of what the Islamic State regulation, what light that threw on the issue. We say, with respect, that that was not relevant. It was not for the jury. It was not an issue in the trial and, indeed, was a matter that features the subject of agreement.

Your Honours would see in the appellant’s book of further material, volume 1, at page 471, part of a series of three statements of agreed facts, this being the first one. Halfway down page 471, under the heading “Islamic State”, there is an admission on two bases, in relation to Islamic State being a terrorist organisation – that is, it was a terrorist organisation because of what it did and also it was a terrorist organisation lawfully specified under the Act by regulation. That it was not in issue and we say that that excursus into what the explanatory statement in relation to the regulation said was of no utility and was not relevant.

Another error, we say, is the failure of his Honour the Chief Justice to refer to the case of Benbrika at all. We are going to be coming to this case a bit later but there is no reference at all by the Chief Justice to Benbrika. The minority judge, Justice Kelly, we say properly, with respect, looked at the decision of Benbrika, which is a decision of the Court of Appeal of Victoria which deals with the issue of terrorist organisation and touches on the issue of membership.

We say that was an appropriate and helpful decision that should have been informing the analysis of this issue, but the Chief Justice failed to refer to it at all. Justice Parker did refer to it but essentially he distinguished it because of the nature of the Benbrika organisation versus the nature of Islamic State, the organisation, and did not find any assistance in that decision.

BELL J: Ms McNaughton, do you accept that in order to be said to have taken steps to become a member of the organisation, it is necessary that there be some element of mutuality, that is, that the organisation would admit to membership, formally or informally, a person who took those steps?

MS McNAUGHTON: We say that it does not need that element of mutuality. The notion ‑ we would say the traditional notion of an organisation which has the notion of admission does not apply to an organisation such as Islamic State that we say, as we did in our closing address to the jury at ABFM or the appellant’s book of further materials at 255 at line 20, that:

a person can be a member and is a member of IS if that person knows of and agrees with and embraces the ideology and aims of the organisation and participates or takes steps to participate in advancing those aims and ideology and goals for the organisation.

And if one, for example, Justice Bell, looks at a person who might go overseas, grab an AK‑47, grab an Islamic State flag, turn up in the relevant area, we say that that would indicate relevantly if there was enough other surrounding evidence, that that would constitute membership of Islamic State for the purposes of Islamic State; they are very happy, we would say, on the basis of the evidence before this jury, to have anyone who answers their call with the right frame of mind.

KEANE J: So you do accept that there would need to be some evidence of recruitment?

MS McNAUGHTON: There would need to be a body of evidence against which the conduct of the accused person could be evaluated. So that might require ‑ depending on the situation, it may require evidence of recruitment, but it may not be evidence of recruitment in the normal sense that we would ‑ ‑ ‑

KEANE J: Well, it might not be very discriminating recruitment, it might be that the signals that the organisation sends out are that any participant who is willing to join in the pursuit of the organisation’s aims is welcome.

MS McNAUGHTON: Yes. It would have to be something that would make it available to the jury to find the offence proven beyond reasonable doubt, and that would be, no doubt, part of.....was here, that Islamic State was sending clear messages through a range of means to encourage, recruit, attract people to come and join them and help their cause.

NETTLE J: Does that mean that you disagree with what Justice Kelly said at paragraph 212 of her judgment, at page 269 of the appeal book?

MS McNAUGHTON: No, with respect, we would agree with that. It says that ‑ as I read it, your Honour, would be that we do not have to prove that there was a sort of ideal state of membership that was reached by the person in question, or that – this is a motion in taking steps, or that the person’s steps would have been successful in making them a member in any extended sense.

We say yes, you need intention, yes, you need some sort of act, but whether or not a “taking steps” offence requires any sort of ideal, final position, we say it does not. The legislature is trying to capture people who are clearly seduced by an organisation such as Islamic State.

Indeed, of course, within the extended definition there is a notion of informal membership as well but in taking steps to be a member when compared against a body of evidence in relation to the nature of a particular terrorist organisation like Islamic State, one would be looking to see what their state of mind was and what they were intending to do. Obviously, it would not be in a vacuum, but it would not have to get to any particular point, it could be quite remote, we would say.

BELL J: Ms McNaughton, at paragraph 55 on appeal book 232 Chief Justice Kourakis set out the six particulars on which the prosecution relied as the taking of steps. In addition to that, is it your submission that in order to establish guilt of the offence it was necessary that there be evidence of the kind given by Dr Shanahan about the publicity given by the Islamic State through social media and elsewhere inviting people to come to Islamic State and help to build it?

MS McNAUGHTON: It would not necessarily, your Honour. In this case there were two types of evidence which led towards that. Part of that was from Dr Shanahan and I was.....to come to that a little later but the effect of his evidence was - and he gave a variety of pieces of evidence - but he did indicate that Islamic State did operate in a particular way, that they had online publications such as Dabiq that called for people to make a bay’ah or pledge of allegiance, that Dabiq was, in fact, essentially the mouthpiece of Islamic State, so that was useful evidence in this case, but there was also a large body of evidence of, we would contend, and the jury accepted.....propaganda that was, even on its face, emanating from Islamic State.

So, whether or not, in every case you would need to have an expert saying yes, that is an Islamic State piece of propaganda or whether you could use the intrinsic indicia within this circumstantial evidence that it was emanating from Islamic State, clearly it made it neater to have an expert saying, yes, that does come from Islamic State even though one can see in the evidence there that there were all sorts of indicia within the evidence, including logos and the like, but also the content of what it was saying that indicated it was emanating from Islamic State.

BELL J: Is the significance of that, that in order to be a member of Islamic State as defined, in addition to the steps the individual takes and the intention the individual has in taking those steps, there is a need for those steps to be taken as in answer to the organisation’s endeavours to enlist persons such as the accused individual.

MS McNAUGHTON: We would say that the notion of taking steps connotes an ordinary English expression. We would say, and we do in our outline at paragraph 3, that it does connote any particular process. Whether or not it has to relate to anything that Islamic State says – I withdraw that.

We would say there was no absolutely necessary way of approaching proof of membership for an organisation such as Islamic State. It would depend on the evidence before the court. You look at the indicia and the artefacts being produced by Islamic State. You could then compare what was emanating from that sort of material, and we had a range of material in this case, not only artefacts emanating from Islamic State, but people who were writing detailed blogs about life in Islamic State, what someone needs to do in order to come there, that one could infer that certain conduct that someone is taking is in fact conduct which would constitute taking steps.

KEANE J: And that they are taking those steps in response to the invitations that are emanating from Islamic State. Is that right?

MS McNAUGHTON: Your Honour, in many cases I think that would be the factual positions, but whether or not that is an inevitable requirement ‑ ‑ ‑

KEANE J: Well, otherwise, they are just acting as fellow travellers, are they not?

MS McNAUGHTON: Well, the notion of a “fellow traveller” in an organisation such as Islamic State is a problematic notion because when one looks at Islamic State and what they apparently were and possibly are still trying to do, is to attract as many people as they can and with the right frame of mind – that is, that there is one god, that they have Sharia law, that everyone who is not of their belief is an infidel and the like, and that is – there was much more than that obviously, but people who are attracted to just joining up with them would be sufficient, we would contend, to constitute a member.

Whether or not they even have a notion of membership is a question – they may not even think of members versus non-members. They may simply think of – and I think there was a reference to this under voir dire material with Dr Shanahan which is not before the.....obviously, but they may simply have a notion of you are either with us or against us, and that would be enough for a membership.

The legislature, we would say, is trying to catch people so they do not go over and help organisations such as Islamic State, in a positive way like that. So the notions which we say fall easily within the notion of a traditional organisation simply do not apply to an organisation of the nature of Islamic State.

BELL J: How does that fit with the scheme of Division 102 of Part 5.3, when one looks at the offence under 102.8 of:

intentionally associates with another person who is a member of, or a person who promotes or directs the activities of, an organisation –

MS McNAUGHTON: Well, your Honour will be well familiar with ‑ I am sorry, have you finished your ‑ ‑ ‑

BELL J: Yes, do go on, Ms McNaughton.

MS McNAUGHTON: Thank you, your Honour. Your Honour, of course, will be well familiar, there was often a range of offences available, and it is often available for a prosecutor to pick one or another, and both can well fit the facts of a case. But if one has a quick look at this, it is interestingly perhaps more complex to prove in some ways than a member, but it is also interestingly directed towards associating with another person rather than the organisation itself. So, it says:

on 2 or more occasions –

This is subsection (1):

intentionally associates with another person who is a member of, or a person who promotes or directs the activities –

And:

the association provides support to the organisation –

But the gravamen of this offence would appear to be a defendant with another person, whereas the gravamen of the membership offence would be to provide direct support to the organisation in question. That is one way of looking at it.

BELL J: Thank you.

KEANE J: 102.8 is really a consorting offence, is it not, rather than a membership offence?

MS McNAUGHTON: Yes, it would appear to have that flavour, your Honour.

KEANE J: It is intended to extend it to circumstances which would not be sufficient to constitute membership.

MS McNAUGHTON: Yes. Although I would imagine in the real world there would be a huge overlap of conduct, but it would not be an entire overlap.

BELL J: The point that I was raising was the distinction that is drawn in terms between individuals who are members of the organisation and individuals who promote or direct the activities of the organisation.

MS McNAUGHTON: But it may be a matter of emphasis, or, given the apparent rationale behind all of these types of offences, to go as wide as properly can be gone, to capture people associating with these organisations, it may be a matter of emphasis. Just finally through my quick look at the errors that might underpin the construction errors, and I have alluded to it already, but at paragraph 56 at page 232 of the core appeal book, the learned Chief Justice says this:

The only evidence from which any conclusions could be drawn about the structure of Islamic State, the organisation, and the nature of its membership was that of Dr Shanahan.

We would say that that, with respect, misconceives entirely the nature of the body of evidence before the jury, that whilst the structure of the judgment shows that his Honour Chief Justice Kourakis did advert, in a brief, perhaps superficial, way to the way the Crown put their case by ‑ and this is the overview of the prosecution case from 226 and following ‑ did advert to the nature of the evidence but in a very summary way, that paragraph indicates that his Honour did not engage with the evidence in fact, and I will be coming back to that.

If I could now then turn to the core of the construction proper and what we say his Honour was saying, although we also note that sometimes there are various aspects of what his Honour says that perhaps at various points appears to qualify but we would say the overwhelming effect of his Honour’s judgment is to require a process, is to require that notion of reciprocity and that it is clear from these following passages. So, if I could take your Honours first to page 217, paragraph 9, halfway down paragraph 9 his Honour says:

No evidence was adduced about how members, other than fighters, participated in the organisation. No evidence was adduced on how members were recruited or selected, or of any process –

So we have got the word “process” there:

by which they were inducted –

We have got the word “inducted” there. And “finally accepted”, the word “accepted” there:

into its organisation. Other than references to al‑Baghdadi’s autocratic rule and to several of his immediate subordinates, there was no evidence about Islamic State’s decision‑making processes or command structure.

So, that has got a few problems, we would say, built into the notion of – this very narrow notion of evidence that his Honour seems to be referring to and the necessity for a process, the necessity for being accepted, a necessity for proving evidence of decision‑making processes and command structure. We would then point to paragraph 10, where his Honour said:

There was therefore no evidence against which to evaluate any connection between the proved conduct of the appellant, her communications, pledge of allegiance, singing and attempt to travel to Turkey, with formal or informal membership of Islamic State.

We would be saying, well, that is taking a very narrow view of what the evidence before the jury amounted to and apparently did not take into account a whole body of circumstantial evidence. At paragraph 12 at page 218, his Honour says:

The Judge correctly directed the jury that ‘an amorphous or fluctuating group’ was not an organisation for the purposes of s 102.3 of the Criminal Code –

Pausing there, organisation was not in issue here. It was agreed that Islamic State was an organisation, and it further said:

and ‘clear criteria, or method of identification’ of an organisation’s members was required.

His Honour ‑ in fact, the trial judge did not say that quite in those terms, we would say. It was said in an entirely different context. Then:

However, the prosecution failed to proffer any such evidence. There was no evidence that informal membership was accorded by –

we have got those words again:

Islamic State in the loose way suggested by the prosecution.

Then, at 20, as I have already taken your Honours to briefly when I was going through the use of the different words, paragraph 20, page 220:

the very notion of a step implies a membership process. That process can only be determined by the organisation – not by its prospective members. If every prospective member were free to design his or her own path to membership, whatever it is that he or she ultimately joins can hardly be described as an organisation –

Again, that was not in issue:

or at least will not be an organisation for the purposes of Part 5.3 of the Criminal Code.

At paragraph 21, again:

The idea of a step towards –

That is what it said - that is not the words of the section:

becoming a member also serves to distinguish a mere supporter from someone who has taken some or all of the steps necessary –

We would say there are no necessary steps:

to become a member or informal member. Whether or not a person has embarked on a process towards membership cannot be decided in a vacuum.

Again, the use of the word “vacuum” indicates that his Honour apparently disregarded all of the circumstantial evidence, in fact:

Something must be known about the organisation’s rules, formal or informal, or at least its common practices.

Again, it would indicate by saying that, that his Honour was not adverting to the large body of circumstantial evidence at all. At paragraph 25, his Honour makes an analogy with a political party which we would say was inapt because of the very non‑traditional nature of an organisation like Islamic State. His reference to “processes”, about halfway down paragraph 25, at about line 28 on the page:

The internal processes of political parties exist, whether or not they are publicised or kept secret. Secrecy over the processes of membership does not mean that the membership structure is a loose one. To the contrary, the same political or organisational reasons which compel secrecy often also demand close control of, and limitations on, membership. The secrecy may pose problems of proof in prosecutions, but evidential difficulties cannot control the meaning of the legislature’s choice of words in defining the elements of an offence.

So, again, these references in relation to totally different types of organisations, very traditional organisations and procedures and processes, we say are simply unhelpful.

BELL J: One other aspect of paragraph 25 is that in the context of speaking of political parties his Honour refers to ordinary members as usually participating:

in some, even if minor, way –

in its decisions. One sees that then picked up at paragraph 32, where his Honour says:

That question of substance –

namely membership:

can only be determined by evaluating the extent and nature of the person’s participation in the governance of the organisation and in the execution of its decisions.

MS McNAUGHTON: Yes, your Honour. A similar comment is made at 34, last line of the page:

Only when a supporter is formally, or practically, accepted as a member and commits to participating in, and executing, its decisions –

We would say that that is adding layers of proof required into the offence that is not indicated by the words of the statute at all. We say it might flow from his Honour’s error in reading the definition of – that I took your Honours to, the definition of the “body corporate”, which was the mistake that I pointed out to your Honours at, we say, at paragraph 19. So, to require participation in decisions and executing decisions is a very high bar, perhaps for even a traditional organisation let alone an organisation of the nature of Islamic State.

We also point out to your Honours that there is, at page 238 – sorry, if perhaps if I could first of all say 233 at paragraph 63. We would say that this is an absurd result of, with respect, the Chief Justice’s analysis:

The call to Muslims described by Dr Shanahan is not a recruitment of members of Islamic State, the organisation, but an invitation to migrants to live, work and fight for its utopian Islamic State.

So that would indicate that his Honour would contend that even fighters who go over to fight with Islamic State would not be a member. Then we also have at page 238 at paragraph 82, halfway down that paragraph:

Secondly, and even if all such persons, together presumably with all fighters, engineers, doctors and others who contributed useful skills to the insurgency, were members of some entity, that entity was an unstructured mass of people and not an organisation.

So, again, we would take issue with all of those occupations, but to say that a fighter was not even a member is, we would say, an absurd result.

KEANE J: It arises, does it not, because the Chief Justice seems to be proceeding on the basis that there is a distinction between Islamic State as an organisation and Islamic State as a polity.

MS McNAUGHTON: Yes ‑ ‑ ‑

KEANE J: You say that so far as the Act is concerned there is no such distinction?

MS McNAUGHTON: There is no such distinction and on the facts of this case with the added - but Abu Bakr al-Baghdadi, the caliph, who declared a caliphate and then called for people to come and join, we would say that we do not even have to worry about people living, who were already living in the areas that were overtaken by Islamic State. That is not an issue for determination in this case. We are looking at the people that come to join, who answer the call and the muhajira, or the muhajir - which I can take your Honours to in due course - a muhajira is defined in the glossary and it is before the Court in other ways in the blogs, is an immigrant girl - they are referred to as people who answered the call.

So we have Islamic State in a very traditional sense of the very senior people and fighters, if that be the case, not even according to Chief Justice Kourakis. We then have the caliphate. It is irrelevant in this case for that everyone in that geographical area is regarded as a member. That is not for the jury’s determination. We were only concerned in proving that she, one of those types of people who is answering the call to come, is part of the caliphate.

GAGELER J: Does paragraph 81 capture your case ‑ ‑ ‑

MS McNAUGHTON: Almost, your Honour, but we would add “who deliberately went there”. So let us say, if we do not add that qualification ‑ which I would respectfully add - it would be any wife of a fighter or any nurse who tended to the.....who embraced and supported its ideals, could be ‑ it would be a matter of evidence as to whether that would be sufficient. But here, this respondent deliberately went there to answer the call. So we say that is the question that needed to be decided.

NETTLE J: Do you accept Justice Kelly’s analysis at paragraph 220 of her judgment?

MS McNAUGHTON: Yes, your Honour.

NETTLE J: Is that the way the Crown puts its case ‑ that this was an act of taking steps towards becoming a member of ISIS?

MS McNAUGHTON: Yes.

NETTLE J: Thank you.

MS McNAUGHTON: If I may refer to our outline, we are at No 3, which is the first substantive part of our outline ‑ I suppose that was all background ‑ and I have adverted to this already in the course of discussion. We say the words “has taken steps” are ordinary English words, indeed an ordinary English phrase, “taken steps”, and they would be readily understood by a jury. They do not imply a process by which a person becomes a member. We have addressed that in our submissions and in our reply.

We contend that a jury can evaluate all of the evidence before it, including circumstantial evidence, which can inform their decision as to whether or not the defendant’s reasons or their conduct and their acts can amount to having taken steps to become a member.

We contend there is no explicit or implicit notion of proximity, that that would not be consistent with the provisions and what they are aiming to do which is to protect the Commonwealth or the security of the Commonwealth. There is no necessity for a particular pathway or a particular process.

GAGELER J: Ms McNaughton, as I understand your submission here, it is that embedded in those ordinary English words is some mental element. What is that mental element?

MS McNAUGHTON: That both steps are taken with a view to becoming a member. So intentionally engages in conduct, and that conduct is done with a view to becoming a member of Islamic State.

GORDON J: Ms McNaughton, is your case any more than the expanded definition of what is a member includes preparatory steps? Those preparatory steps must be taken intentionally and consistent with 102.3(1)(a), and when one looks at the steps taken here, the jury was entitled to form the view that she had done so.

MS McNAUGHTON: Yes, your Honour, that would.

GORDON J: Those preparatory steps - the evidence that went to support it was the six particulars that Justice Bell identified which were the subject of the Crown case, taken together with Dr Shanahan’s evidence.

MS McNAUGHTON: Yes, your Honour.

GORDON J: Or considered in light of what Dr Shanahan had said about the processes, to the extent that they were processes, and there were at least some of them, because you have identified the recruitment, of ISIS, of Islamic State.

MS McNAUGHTON: Yes, your Honour, that would be a fair summary, with respect.

GORDON J: So the intention element comes by reference to the words in subsection 102.3(1)(a).

MS McNAUGHTON: Yes, and Justice Kelly discussed at a certain point in her judgment the notion of whether or not something could be even regarded as a step. One might have to look at someone’s intention or state of mind to work out whether or not a particular piece of conduct could qualify as a step and that is obviously one way of, with respect, looking at it. So that is at paragraph 208 at page 268.

Another way of determining whether or not a step could - sorry, a piece of conduct could constitute taking steps could perhaps be a more objective exercise at that point in the determination, but it is all very contextual, whether that be objectively contextual or intentionally contextual when one is deciding whether or not a particular piece of conduct could even constitute the taking of steps.

The only rider perhaps, to your Honour Justice Gordon’s summary in terms of preliminary would be the notion of “preliminary” connotes an ultimate process, so preliminary to what? So that would, perhaps, be my only observation on that because we do not necessarily ‑ ‑ ‑

GORDON J: I had understood the Crown case, which is that identified by Justice Kelly in 220, as to be one whereby one could take preparatory steps, taken steps to become a member, for example, as I understood the way in which the direction was given to the jury, by going to an airport to get on an aeroplane having booked a ticket.

MS McNAUGHTON: Yes. It is a tricky notion because the notion of “has taken steps” is enough to make a person a member. So it is a very wide notion.

NETTLE J: Well, Justice Kelly says at 208, it “is sufficient” if those steps such as going to the aeroplane are taken with the intent of becoming a member; it “is sufficient”. Do you agree with that or disagree with it or say something else?

MS McNAUGHTON: Sorry, your Honour, I just cannot ‑ ‑ ‑

NETTLE J: .....paragraph 208.

MS McNAUGHTON: I cannot find the word “sufficient”, sorry, your Honour.

NETTLE J: I think I am really asking if you do – is that the Crown’s position or is the Crown’s position something else?

MS McNAUGHTON: I see, sorry, it was 209 in my copy.

NETTLE J: Paragraph 208 of her Honour’s judgment.

MS McNAUGHTON: I am sorry, your Honour, mine is paragraph 209 for some odd reason.

NETTLE J: That is:

The fault element . . . the prosecution needed to prove the appellant intended to take steps to become a member . . . while knowing that Islamic State was a terrorist organisation.

MS McNAUGHTON: Yes, yes, your Honour.

NETTLE J: There is no reason why, in determining the physical element, the mental element – I should say fault element, cannot be taken into account.

MS McNAUGHTON: Yes, that was what I was adverting to. Yes, your Honour.

NETTLE J: Thank you.

MS McNAUGHTON: That is certainly an available way with respect to determine whether or not that conduct would amount to taking steps. So, at point 4 of our outline, we contend the words “member of an organisation” are used in that Division 102 in a manner that eschews technicality, pedantry and preconceptions of what an organisation is and who qualifies as a member and, we say, the majority’s interpretation of “has taken steps to become a member” is simply inconsistent with the statutory context.

But perhaps would it be convenient now to go to the case of Benbrika in the Victorian Court of Appeal. This is joint book of authorities volume 3, tab 13, and particularly paragraph 74. Your Honour Justice Nettle was part of the court and it was also President Maxwell and Justice Weinberg, joint decision. In discussing the case of Kibby and what was relevant there and whether or not the indicia set out in Kibby should have all been put before the jury, it is stated there, second half of paragraph 74:

His Honour’s error, so it was said, lay in allowing the jury to think that they could make such a finding without being satisfied that each of the matters identified in Kibby – or at least a specified minimum number of them – was present.

Then, going over to paragraph 80 at page 344, the Court of Appeal says:

Returning to the contention before us that his Honour misdirected the jury as to the term “organisation”, the first point to note is that legal terms can be explained in various ways. This can be done prescriptively, using the language of definition that may be highly specific, exhaustive, and self‑contained. It can also be done more broadly –

we would note that:

by using the language of description, with various indicia or signposts provided to assist in understanding the meaning of the term in question.

Then we would draw your Honours’ attention there to all of that passage, continuing down to 83:

As we have said, the trial judge in the present case sought to assist the jury by providing them with indicia to be used to determine whether the existence of an “organisation” had been established. As Cometa –

which is a New Zealand case, referred to at paragraph 75 and following:

makes plain, there is no “bright line” –

This is in relation to an organisation:

which will enable one to say, in any case, that there are sufficient characteristics of an organisation present to conclude that one exists. Nor is there any set of necessary conditions the absence of one of which would render the term “organisation” inapplicable.

In reality, there is a continuum along which, at a certain point, an amorphous group of individuals with shared aims and objects becomes an entity that can properly be described as an “organisation”.

Then, there these familiar words from the summing‑up in our case:

It is a question of fact and degree.

We would respectively adopt those in relation to membership as well. Halfway down paragraph 86, at page 245:

There is no point at which it can be said, unequivocally and objectively, that a group of individuals with shared aims has transformed itself into an “organisation” Each case must be considered in the light of its own particular facts, and every case will require individual attention to be given to the relevant characteristics. The Kibby indicia were signposts to be considered in what was, in the end, an evaluative exercise.

Of course, his Honour Chief Justice Kourakis did not even refer to this decision even though, we say, it was an important decision in relation to Division 102 and how terms within that division should be approached.

BELL J: If you have completed the references that you were going to take us to in Benbrika, it might be a convenient time to take the morning adjournment.

MS McNAUGHTON: Yes, thank you, your Honour.

BELL J: The Court will adjourn.

AT 11:16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

BELL J: Yes, Ms McNaughton.

MS McNAUGHTON: Yes, thank you, your Honours. Noting the time, I am going to just refer finally to – on the Benbrika point - our written submissions at paragraphs 49 to 55 where we set out there how we contend that the majority did not apply Benbrika, and if I could skip across to paragraphs 8 and 9 of our outline, where we go to the issue of the question of evidence. So, at paragraph 56 - I have already taken your Honours briefly to that - Chief Justice Kourakis, stated - that is page 232 of the core appeal book:

The only evidence from which any conclusions could be drawn about the structure of Islamic State, the organisation, the nature of its membership was that of Dr Shanahan.

We would say that misconceives the nature of the case - in fact there is a rich range of circumstantial evidence – and that their Honours failed to grapple with that body of material. That contributed to the problem with the – how the outcome came about. We say the correct approach was, for example, as exemplified by the trial judge at core appeal book 86, who stated in his charge to the jury, starting at page 85, at the bottom - sorry, the bottom of 86 to 87:

The Islamic State propaganda made it plain that females -

This is actually page 87, the first full paragraph:

were positively encouraged to join Islamic State on the basis of contributing to strict Muslim society, Sharia law and to raise families within that society, rather than become terrorist themselves.

I would not adopt, necessarily, his Honour’s use of the word “terrorist”, but other than that his Honour is setting out that the utility of the material that had been placed before the jury could be used in a couple of ways and one of those was that it could be used to show how Islamic State encouraged women to join Islamic State. There was no objection to that part of the summing‑up by the defence.

In our written outline we point out references to Dr Shanahan’s expert evidence, which we do maintain was important, but we say it certainly was not the only important evidence. I will not go to those now. The second aspect of important evidence was the taking of the bay’ah by the respondent. That was a matter for the jury to determine.

The actual terms of the bay’ah we would direct your Honours to as important. These are at appellant’s supplementary book of further materials at pages 48 to 49, the small middle number. Right at the bottom of the page is set out in English what she repeated in another language:

I give my allegiance Sheik Abu Bakr al Baghdadi to listen and to obey in good time and bad time, prosperous time, in time of hardship we apply altruism for him and we will not try to take the authority from the leaders, unless we see a clear disbelieving from them, and we got a clear evidence from god.

This next piece is very important as well, in my respectful submission:

We give our allegiance to migration and jihad.

So that is part of the oath of allegiance: “We give our allegiance to migration and jihad”, as well as giving allegiance to the caliph. This is one obviously important way that this type of evidence is seen in the context of what Dr Shanahan says – at Dr Shanahan’s evidence which is in the appellant’s book of further material volume 1 at page 124, from line 12, Dr Shanahan said this:

Islamic State asked for people to give their oath of allegiance to Abu Bakr al-Baghdadi. It’s a personal oath. You don’t - it’s not designed to give allegiance to Islamic State per se; it’s to give it to the leader of Islamic State, that’s the personal aspect of it. There were instructions in Dabiq, the second edition of Dabiq, about giving your bay’ah to Abu Bakr al-Baghdadi and they essentially said three things: firstly you can give it publicly, so everybody can hear; secondly if you’re under surveillance or it’s too difficult, then do it by private means; and the third direction was you can just have it in your heart without actually verbalising it -

That should also be seen in the context of, at page 187 - still in Dr Shanahan’s evidence, line 12, when being asked about Dabiq and another publication Rumiyah:

17. To that extent, is it regarded as a bit of a mouthpiece of Islamic State.
1. Dabiq absolutely.

Q. You say absolutely.

A. Yes.

Q. And Rumiyah, indeed.

A. Yes.

Q. And can’t be any doubt about that, can there.

A. No.

So it is very clear that that was the mouthpiece of Islamic State requiring an oath of allegiance to Abu Bakr al-Baghdadi and containing within it an undertaking to migration and jihad.

Can I now turn to the blog posts, and they appear in this same volume. There is a document I will not take your Honours to, but if I could flag it, at page 479, and the Crown in his closing goes through this in some detail in relation - at pages of the closing, 274 to 283 in relation to this document at 479 and following. It is just a shortish document, but it is quite complex.

What it shows as the Crown intends to show in the closing address is the respondent’s level of engagement with these blogs and how, yes, they are being downloaded, sometimes in bulk, but as the Crown sets out, then she goes back and apparently refreshes the blogger and gets a recently‑written blog and there is quite an intricate way of the Crown explaining how that shows the respondent’s active engagement with these blogs.

You can also see, for example, that she also has a list of more than - sometimes she downloads more than one of the same document from a different blogger, and matters of that nature. So we would draw your Honours’ attention to that, but in the time available I will not repeat what the Crown did in his closing. If we can go now to P9 from page 481 and following, and post 2 at page 488:

May Allah –

There are some foreign words:

allow this blog to be a means of benefit to my sisters and to bring you here to the Islamic State –

Post 3, 489, starts:

Heres a list me and group of sisters here made of what you should pack on your hijrah to the Islamic state.

Now, if we quickly go to the glossary at page 754, we can see that “hijra”, about three‑quarters of the way down the page, or “jirah”:

Literally it means “Migration” –

Over the page now, still on the glossary, if I may, about five entries down, we have the word I referred to before of “Muhajirah”:

Immigrant Girl -

So that is where that can be found, but back to 489, a bit of a packing list, and we see halfway down the page:

Stretchable T shirts to accommodate future pregnancies in sha Allah –

God willing, or something to that effect:

good Make up and wifey stuff if your going to be married on arrival –

Then a recommendation, about point 8 on the page:

Make sure you put a lock on your suitcase and would recommend you take a hard suitcase ~ some brothers and sisters had stuff stolen from their suitcases at the crossover -

don’t uninstall your whatsapp/telegram for the journey –

Over the page, about point 3:

Put your khimars abayas niqabs gloves etc in your HAND LUGGAGE . . .

Remember to bring some turkish money with you~ for taxis, food etc depending how long you’ll be staying there

For amniyaat delete all your islamic stuff from your electronics (its hard I know) rip up any Islamic notes –

et cetera. About point 8 on the page:

Remember you will be running in your hand luggage across the border so be smart ~ you need back pack –

et cetera. Then a recommendation for boots. At page 491, about point 3:

Keep your quran audios this will keep you saneee (delete everything else Islamic tho) –

So that is the flavour of that. Post 4, about doctors being needed and at the second‑last line:

especially sisters in the medical field –

Dawlah, it says – D‑A‑W‑L‑A‑H means state, country or nation. In the context, in my respectful submission, your Honours would see that that is a reference to Islamic State. Blog Post 5, about halfway down:

On arrival If you already know people in the Islamic State then the process of finding a brother –

or it is a Mahram, which is a person to escort someone – that is in the glossary as well:

is much easier -

~ I heard for sisters coming alone with no contacts they are placed on a waiting list until there is a prospective husband, but getting married here is very easy and simple.

Getting married means your guaranteed a house from dawlah in sha Allah so you can finally settle down instead of living at the maqqar –

and we will see that reference to the “maqqar” later:

or other peoples houses.

It is not defined.

BELL J: Can I just interrupt to make this inquiry?

MS McNAUGHTON: Yes.

BELL J: Chief Justice Kourakis at paragraph 8 of his Honour’s reasons indicated.....that:

The totality of the evidence . . . was capable of supporting an inference that the appellant was a supporter of Islamic State, its extremist ideology and its terrorists activities . . . the inference that she intended to travel to Turkey to make contact with members or supporters of Islamic State . . . with the intention of travelling into the areas . . . controlled by it for the purposes of either providing medical assistance to fighters . . . or to marry an Islamic State fighter.

Given that was the basis on which his Honour – and I understand the other member of the majority – proceeded, what is the relevance of taking us in detail to the evidence? It does not seem to be an issue that it was open to the jury to find that the respondent intended to travel to areas controlled by Islamic State to marry a fighter or to assist by way of being paramedic – and that she possessed a deal of extremist literature and other material.

MS McNAUGHTON: Your Honour, we would say that paragraph 8 does not quite capture what the evidence went to. It went so far and no further. We say it went further. Perhaps I could skip over to page 549 – or 548 and 549. Even though he said that, at that point we would also say that not only did they not quite capture the evidence, he did not actually factor that in when he made that statement at 56, that there was no evidence from which inferences could be drawn other than Dr Shanahan. So, it is a combination of things, your Honour. But, at page 548:

Due to the heavy propaganda of the western media, many sisters start to question whether it is safe to live in Sham –

That is, essentially, the area covered by Islamic State:

as a Muhjirah –

That is the “immigrant girl” reference. Over the page:

How will sisters support themselves financially? Irrespective of what our haters say, Dawlah is a state, and it’s a state with many social services and it caters for the needs of all its citizens. Every Muhajir –

Again that term, so it is an immigrant person:

is treated with honor by the State and is provided for in all spheres of life. We get free medical care, free hospitals, free schooling for kids, free accommodation . . . monthly stipends to all Muhaajirs (both males and females) –

So, again, this notion of people coming deliberately to the state that we say that what his Honour Chief Justice Kourakis said does not quite capture the way that the notion of migration was regarded by this organisation. These blogs shed very detailed light on various aspects of what was on the respondent’s phone and we would say appeared to accord with her actions and her plans.

If I could skip ‑ and I will not go through all of those at all – if I could skip to post 43 at page 591, and this document is called “FAQ Life in the Islamic State”, that is the name of the document and I can see that from that table document I took your Honours to before. So, questions regarding life in the Islamic State:

1. WHAT WILL HAPPEN AFTER I’VE REACHED TURKEY?

Once you have arrived in Tukey, you probably have to buy a new sim –

Et cetera. And at about point 3:

You might ask, how I’m able to find a contact?

So, that is a contact in order to help someone across the border:

I’ll explain that in another post In sha Allah.

2. WHAT HAPPEN NEXT AFTER I’VE CROSSED THE BORDER?

For sisters, all of you will be taken to Makkar. You’ll stay in Makkar until your mahram brings you out.

The mahram is a non‑sexual partner, male, who will look after you or a – I think – sorry, I will just make sure I do not mislead you – yes, brother or a father or someone like that. This is important information, with respect, that is available to the respondent and, of course, to the jury. It goes on:

Staying in Makkar is quite challenging due to many factors. Sometimes it can be overcrowded.

It seems that this is a building or a place rather than a town:

Less privacy, sharing restroom and etc. But you’ll be taken care. As long your stay in Makkar, you’re not allowed to go out and this is due to many reasons. Although it’s safe to go out, but the authority has responsible over you until your mahram comes to you. Lets say if you need something, you can simply tell to the sister‑in‑charge and she will get it for you.

I would like to advice you to be patient because sometimes the stay prolonged but you have to keep in mind that Dawlah really have set some paperwork regarding this matter. Alhamdulillah, dawlah able to infiltrate true muhajir and undercover spy during their stay in Makkar.

So, that would indicate, although the English is not as clear as could be, that they seem to be keeping the women there to see if there are any spies amongst them. Then it goes on to say that one has to:

pledge allegiance to Caliph and to obey him is a must . . . The caliph has set some protocols –

Over the page, page 592, second full paragraph:

You’ll be taken a good care during your stay in makkar. But lets say you wanted to change the location of makkar, In sha Allah you can ask the authority and they will sort it out.

Then, halfway down the page:

You’ll be given a house. Your residency can be at any wilayah and normally its depends based on your husband’s khatibah or jama’ah.

Now, wilayah, there was evidence from Dr Shanahan that that is the word for provinces that Islamic State had. And page 595, halfway down the page:

3. DELETE EVERYTHING

Just delete all the nasheed, videos, pictures, messages and etc. I heard stories where they were few brothers –

Then, over the page at page 596:

Perhaps, after you have landed in Turkey –

Et cetera, so there is reference to Turkey, updating your contact, “don’t trust anyone”. Page 597, bottom of the page, second last line:

Do lots of charity because the good deed will return to you. Be good to your parents because this could be the last time you see them...

Now, none of this, even though there was that broad reference to this type of material, this detail was not referred to in any way shape or form by the Chief Justice, and to sort of perhaps tie it up a touch more, noting that back at page 479, that many of these blogs from someone called “diary‑of‑a‑muhajira.tumblr.com” or “al‑muhajirat.tumblr.com”.

So it appears to emanate from these immigrant girls and there seems to be one – at least the evidence is available to the jury to infer that Islamic State is calling women to come and make up the society. And perhaps I could leave the blogs to page 603, halfway down the page:

Furthermore, by migrating to Sham you are not just benefitting yourself but you are also benefitting the Islamic State in its expansion and advancement. By raising your kids here, you are increasing its population and hence creating more Mujahideen of the future. A society cannot survive without inhabitants and just by you living in Sham you are helping its economy grow. Likewise, by living in Dar Al‑Kufr ‑ ‑ ‑

Which is not Islamic lands like Australia:

you are indirectly helping the society advance.

Et cetera. So, there is clear evidence, we would say that the Chief Justice failed to advert to in relation to the organisation making a direct pitch to women to migrate to the state. Whether nor not that constitutes a membership is a jury question. It also demonstrates, the inferences available at least, that travellers like the respondent were willing to submit, it would appear, to Islamic State control, yet that type of evidence was not adverted to by the Chief Justice at all, for example, at paragraph 65 of the Chief Justice’s reasons.

If I could perhaps go to some of the images from the telephone now. I am skipping over a number of other references. At P14, which is in volume 2 of the appellant’s book of further materials, this is made up of two sets of downloads from the phone, this book is. The first ones were downloaded essentially after the airport incident, when she was stopped from travelling to Istanbul. And the second lot, starting at page 170, were downloaded in September 2016, around about the execution of the search warrant by the police on 22 September, keeping in mind that the Kenyan women’s terrorism attack on the Kenyan police station was on 11 September 2015.

So at page 11 – so this is the first tranche of photos ‑ we have an AK‑47, one might think, on flowers, the relevance of that being at page 13.

BELL J: I am sorry, this volume 2?

MS McNAUGHTON: Volume 2 of the appellant’s book of further materials.

BELL J: Yes.

MS McNAUGHTON: Sometimes, your Honour, the page numbers are very difficult to see, because they are imposed on the photograph.

BELL J: It is just, I am looking at an electronic copy and I see page 11 appears to be a list of the images.

MS McNAUGHTON: I am told that it might be page 29 in your Honour’s electronic copy.

BELL J: Yes.

MS McNAUGHTON: Yes.....hold up the picture and look ‑ ‑ ‑

BELL J: Is that the photograph – no, it is not that. What does the photograph depict because my pagination is completely different to yours?

MS McNAUGHTON: Well, it is the 11th photo ‑ okay, if I can perhaps just take your Honours quickly through the first page.

BELL J: I think I have ‑ at the top right‑hand corner I see a number which ‑ ‑ ‑

MS McNAUGHTON: Yes, it is very hard to read. So, there is a whole range of photos there, which I would invite your Honours to look at, but if I could just draw your Honours’ attention to. That is, one would infer, an AK‑47 with some flowers. Page 13, one can see a screenshot, and there is detailed ‑ the prosecution in closing dealt with this at 313 to 314 ‑ this is a screenshot of someone’s phone, probably not the respondent’s, but it was found on her phone.

And you can see that photo with the AK‑47 against a number of posts, towards the bottom of that page, Umm Al‑Barāā, and the Crown case was that she was Umm Al‑Barāā, or Umm Barāā, and she was a part of this group called the Baaqiyah Sisters, she was the fourth member, three of them killed on 11 September 2016. And the Crown goes in some detail as to her interaction with these people.

Also, in the chronology ‑ again I will not take your Honours to it, but at the chronology in ABFM exhibit P70, pages 731 to 732, item, then the chronology at 79 and 75 and 78 all relate to that page of this screenshot of the chat between the Baaqiyah sisters and indicate an interaction with videos and that video in particular on that page.

If I can skip across, there are, as I say, a number of other ones, but to page 19. There is another screenshot, the Naughty Sisters. The Crown case was that they were the same group of four people, the three Kenyan women who were killed on 11 September and her. There is a message at the top from the person “Qween”, who was one of them, and it talks about “recording the whole or Qariban”.

And in our outline – I will not go to it now, but we referred to ‑ perhaps we do not refer to it, but perhaps I will draw your Honours’ attention to these references as to ‑ it was a nasheed, which is a religious song with no instrumental music but all a cappella. There are some references in our outline at 9D to Qariban, so I do not need to take your Honours to them, they are is set out there. And there are also multiple references set out there in the chronology document, that she is often apparently playing this a cappella nasheed, it is being recorded by the listening device.

We would also take your Honours to page 30, and again here is a screenshot in relation to the Naughty Sisters. This was dealt with at the Crown closing at page 320 and in our chronology document entries 107, 108 and 109, we say very important for showing the level of engagement that the respondent had in videos. The respondent, down below, indicated, correctly, that there was no technical evidence to show engagement with videos. But this is circumstantial evidence, and powerful circumstantial evidence, that there was engagement with videos, she was downloading them at the.....of the Naughty Sisters. And apparently, from the last line there, OMG the first video, she was clearly engaging with them. So, we would just point that out in terms of the importance of this circumstantial evidence.

BELL J: Ms McNaughton, I understood when you took us to some of the blogs that the significance was to show that there was material supporting an inference that the Islamic State was making provision for women to come to it, to pay them, to supervise them until they married or commenced working for it and all of that might support your submission respecting evidence of membership. To bring you back to the matter I first raised, though, some of the material you are now taking us to merely evidences what seems to be uncontroversial, which is that the respondent was an enthusiastic believer in the ideology of the Islamic State.

MS McNAUGHTON: Your Honour said “uncontroversial”. It was not entirely uncontroversial that she was enthusiastic. The defence case below was that in fact she might have had this material on her phone, but she was not really engaging with it, that in fact some of it could have been automatically downloaded and, indeed, that could be the case. That was how the evidence ended up falling out.

But we say it goes to that, that in fact she was a much more active person than the defence below were making out and also that goes possibly to the notice of contention as well in relation to what she stated in her recorded interviews on the various occasions where she indicated she was not particularly active in this way, but also there were indications in the interview that she was going to Turkey and she stated that she would be provided for by some aid agency who would look after her.

So it goes to a few of those issues which we say indicate to the jury or it would be available for the jury to find that she was engaging with this material and that her activity to go over there was in fact and could constitute a step or could be steps to become a member or taking steps to become a member.

BELL J: Yes.

MS McNAUGHTON: The notice of contention, if I may just refer to it, indicates that, for example, the trial judge was unfair in not going to the detail of the recorded interviews. We say actually that that could well have been the proper forensic decision by a senior defence counsel to not go too closely to it because it was in fact perhaps unhelpful to her, that there was something wrong in that.

All of this goes to inform, hopefully, your Honours as to various aspects of the Crown case, which went quite deeply into different aspects of what life in Islamic State in Syria and Iraq may have been. At least it was available for the jury to infer that.

BELL J: Thank you.

MS McNAUGHTON: The Chief Justice’s judgment, if I could now return to that, at paragraph 58 on page 232, the last two sentences of the paragraph. Perhaps I could take you to – sorry, the second‑last sentence of paragraph 58:

Moreover, it can be inferred that a terrorist organisation operates covertly and through a limited and carefully controlled membership. There was no evidence to contradict that inference which arises naturally from the intended nature, aims and actions of terrorist organisations.

We say that the fact that the Chief Justice could say that indicated that the Chief Justice had not engaged with the material before the jury. We also would invite the Court to look at paragraph 63 at page 233:

The call to Muslims described by Dr Shanahan is not a recruitment of members of Islamic State, the organisation, but an invitation to migrants to live, work and fight for its utopian Islamic State.

Again, we say that it is not a conclusion open to his Honour if his Honour, in fact, had engaged in detail with the material before the jury. So, noting the time, we say at paragraph 10 of our outline, the real issue in the trial was whether or not the respondent had intended to take steps to become a member of Islamic State. There were essentially admissions in relation to Islamic State being a terrorist organisation and the respondent knew it was a terrorist organisation.

As to whether or not attempting to travel to Islamic State could even constitute the physical element of conduct which would constitute taking steps was not really in issue. There was a comment made at one point by the defence, but it was not an issue in the trial, we would contend.

BELL J: .....distributed copies of an aide‑mémoire to the jury setting out the elements of the offence. Is that so?

MS McNAUGHTON: Yes, indeed.

BELL J: What is the content of that aide‑mémoire discussed with counsel before it was distributed to the jury?

MS McNAUGHTON: Yes, indeed it was and in fact there was agreement by the defence that that was appropriate.

BELL J: At any time did the defence raise an issue concerning the sufficiency of the directions to identify the capacity to be a member of Islamic State based on the particulars as an issue in the trial?

MS McNAUGHTON: There was a reference, but it was not more than a reference in this way, in the defence closing address. At page 435, line 18:

If you don’t know what the person is going to be doing, it perhaps becomes a little bit hard to work out exactly what the steps are that are being taken. But that’s merely an observation that I make to you.

Then, straight over the page, according to the transcript:

But the principal step, as I said earlier, is the trip to the airport –

So it was not really grappled with, it was not really contested, it was merely raised in that very informal way and, in terms of the directions, the written directions the defence adopted said in terms - the material is before your Honours, I will just find that reference. There is a reference going somewhere in the transcript where the defence says in terms that he agreed to the memorandum, and I am sure one of my team can provide that reference to me. It is in the supplementary book of further material at page 141 to 143.

BELL J: Thank you.

MS McNAUGHTON: So we would, with respect, endorse the approach of Justice Kelly, as we have set out in our written submissions, and perhaps I would leave it there, allowing my friends to address your Honours.

BELL J: Yes, thank you, Ms McNaughton.

MS McNAUGHTON: Thank you, your Honour.

BELL J: Ms Shaw.

MS SHAW: If the Court pleases. In our respectful submission, it must be borne in mind, in particular, the basis upon which the trial was run. Our essential proposition in relation to the material, which we will develop in oral submissions, is.....of the Court of Criminal Appeal in relation to the unsafe ground was plainly correct, having regard to the way in which the case was advanced at trial and, in particular, the absence of evidence as to the criteria for membership of the terrorist organisation the subject of the charge, namely the terrorist organisation known as Islamic State.

In relation to the notice of contention ground, we submit that a majority of the Court of Appeal was right to quash the verdict for the additional reasons encapsulated in the two grounds raised, firstly, that although the majority accepted the unreasonable verdict ground about the absence of evidence on membership, together with the trial judge’s conflation of the physical and mental element, it meant that the directions did not properly relate the evidence to the elements.

Secondly, although the majority rejected in isolation there were some distinct aspects on the unbalanced summing‑up ground, it did not have a cumulative effect of the complainant’s.....and moreover, it failed to deal at all, or at least squarely, with the complaint that the trial judge did not properly present to the jury the innocent hypotheses contained in the respondent’s interviews as material in the case that had to be negatived beyond reasonable doubt.

Turning then to the appellant’s appeal, in our submission, when regard is had to the forensic conduct of this trial by the prosecution, the two errors set out in paragraphs (a) and (b) of the notice of appeal at core appeal book 286 are not made out. The first, in our submission, mischaracterises the majority’s reasons concerning proof of membership, but moreover fails to address the dispositive reasoning of the majority in this case.

The second asserted error also raises a false point, because the case was decided by reference to the absence of evidence about the organisation the subject of a specific regulation within limb (b) of the definition of “terrorist organisation” in section 102.1(1) of the Code.

In order to make good these submissions, it is submitted that it is necessary to understand some key features of the trial and the way it was conducted by the prosecution. We submit that it is important to understand that the prosecution case was based on six categories of conduct that are set out in the Chief Justice’s judgment at paragraph 55, core appeal book 231, which were said to be steps to become a member, but that the prosecution case was not that the respondent had in fact become a formal or informal member of Islamic State whilst residing in Australia. This observation was made by the Chief Justice at paragraph 48, at core appeal book 30, of his judgment where his Honour stated:

I observe at the outset that the prosecution case was that the appellant was a member because she ‑ ‑ ‑

BELL J: Ms Shaw, we just had a little difficulty hearing you. The screen and audio froze for a moment. Could you just repeat that last submission?

MS SHAW: Yes, your Honour. Your Honours, I refer to the observation of the Chief Justice at paragraph 48. Did your Honours pick up that in his Honour’s judgment, where his Honour stated:

I observe at the outset that the prosecution case was that the appellant was a member because she had taken steps to become a member. It was not that she had become a formal or informal member –

But, indeed, we note in our response submissions at paragraph 16, prior to his closing, the prosecution said at the volume of further materials, page 229, transcript 1205:

I don’t think I’d be in a position to say that they could find she was an informal member because of the evidence they’ve heard. I think it would be difficult to.

Indeed, Mr Boucaut, senior counsel for the respondent, had submitted to his Honour that – in the book of further materials at page 121 – I will give your Honours the correct reference in a minute, but importantly Mr Boucaut submitted that there was in fact no evidence that did show what a member was, or an informal member was.

BELL J: I am sorry, can I just interrupt you, Ms Shaw? We are having some difficulty hearing you. Are you, in that last submission, directing our attention to somewhere defence counsel complained that there was no evidence of what, if any, steps might constitute steps taken in order to become a member of the Islamic State?

MS SHAW: No, your Honour. With respect, I was indicating that what defence counsel had submitted at page 224 of the book of further materials, was that – and this is to his Honour – in terms of a discussion about summing‑up. There was no evidence as to what a member is and no evidence as to what an informal member is, which he said are very difficult for the jury to assess how one would take steps to become a member if one does not know exactly what a member is. So that was the position put by defence counsel about the status of the evidence.

BELL J: How, Ms Shaw, was the matter put to the jury? Did defence counsel invite the jury to consider, even if the six particulars on which the prosecution relied were established to the jury’s satisfaction, that would still not establish that any steps had been taken to become a member?

MS SHAW: Your Honour, the way the trial was conducted was that his Honour directed the jury and defence counsel and prosecution both addressed in this way that, in order to convict, the jury had to be satisfied beyond reasonable doubt that the first of the six particulars was proved beyond reasonable doubt and was a step and that that was critical and that they could convict on that basis alone.

What was said about the balance of the evidence was firstly that as at 14 July, that was the commencement date of the charge so the basis upon which the flight to Turkey – although it was a step as such of a singular, in discussion it was pointed out that it was about 14 July so, in terms of satisfying the element of taking a step or steps, the booking of the flight the day before included the taking of the step to Turkey – in that sense, taking a step to go to Turkey.

So the case that was, essentially, pitched in its final form was that there were no steps that could be described as steps before 14 July. That evidence, obviously – his Honour directed the jury – could go to the respondents in.....and whatever occurred after 14 July until 23 May 2016, the end timeframe, were also steps only. So, the fundamental plank of the defence response was that, firstly – and her prime response was, as she had said in each of her three interviews, her intention was only to go to Turkey and to look for an aid organisation.

Insofar as the question of membership, could I refer your Honours to 435, which obviously was something ‑ a prior matter for the defence, than a matter of proof by the prosecution. At page 435 in the book of further materials, 342 of the address, Mr Boucaut said to the jury:

The Crown don’t specifically point to anything by way of an act that she may intend to be doing. They simply say she was on her way to embrace Islamic State in Syria.

But, members of the jury it is a bit of a vague situation, this notion of member or membership, and the same, I would suggest, could be said for the notion of taking steps to become a member.

So clearly he had made an admission in his address for the jury to consider and in the context of what the final position of the defence was it has squarely raised the lack of evidence about frequent membership.

BELL J: Ms Shaw, on one view it was a very muted way of identifying for the jury a real issue in the case when the statement was accompanied by the qualifier:

But that’s merely an observation that I make to you –

and then defence counsel went on to identify as the principal step the issue of the purchase of the ticket and the intended trip to Turkey.

MS SHAW: Your Honour, that plainly, in terms of the focus of the address, is the way defence counsel expressed himself, but it is plain that the argument in terms of what the prosecution had to prove, which was discussed, was that here where you had Dr Shanahan giving evidence that, for example.....the Baqiyaa sisters was a collective noun to describe people who were members of.....the real issue was what.....whether or not the prosecution had adduced evidence to demonstrate that the material that they relied on, in particular the trip to Turkey was a step to becoming a member as compared to a supporter, as compared to a member of society.

That is not to say that it was necessary for the prosecution to prove that there was, indeed, a membership process by Islamic State, and that is not to say that there is necessarily going to be a particular method of proof of membership. The point was that there had to be evidence that there was a distinction or not a distinction.

If the evidence was that, indeed, Islamic State treated anyone who supported the ideals and their.....views, was indeed a member, that is one way the case could have gone. On the other hand what Dr Shanahan’s evidence made clear was that insofar as he referred to, for example, as I mentioned the Baqiyaa sisters, the taking of the - she singing the nasheed, these were Salafist ideological activities that occurred.

The complaint that was made to the Court of Appeal, in essence, was that at its highest the evidence of Dr Shanahan did not distinguish between whether the evidence relied upon by the Crown could show someone was a member as compared to a supporter or as compared to a member of society or a person who would be better described as associating because to – or being a subject of the organisation because critically what is in issue here is that the charge relates to Islamic State, the organisation, it does not relate to Islamic State, the geographical area that it governs.

It does not relate to the society that it governs necessarily because, in effect, we know from the history of the.....in 2014 that Islamic State was merely the renaming of earlier organisations going back to 2005 which, in particular, more well‑known Al‑Qaeda names and other names by which this organisation eventually was renamed Islamic State in 2014, and when I say “renamed” I mean the acquiring of a territory that it proclaimed as a state in a geographical sense occurred. But the organisation itself which is the subject of the charge that she is alleged to be a member of, that is, she is intentionally being a member of this terrorist organisation is, we submit, not necessarily the same as the society which Islamic State ‑ ‑ ‑

BELL J: Ms Shaw, did defence counsel invite the jury to consider that the admission that Islamic State was a terrorist organisation said nothing as to the significance of travelling to an area of territory controlled by Islamic State? Was this – I am just trying to understand the way the trial was run.

MS SHAW: Your Honour, the way - defence counsel did not address or argue in that way specifically and obviously his case was very much focused on her intention was only to go to Turkey. The layer of whether or not that achieved – whether the Crown case achieved its case on – that the evidence it proposed was obviously a second layer of submissions but, more importantly, your Honour, if I can refer you to the fact that what his Honour in his summing‑up directed the jury about was that – and the basis upon which the prosecution, therefore, were conducting this case, was that indeed the meaning of “organisation” within the scope of a terrorist organisation was the meaning that was taken from Benbrika or adapted, if you like, in some respects from Benbrika.

Importantly, if I can take your Honours, for example, to the core appeal book at page 36, I refer your Honours to the particular need to prove that step and 37 where that step, unless that was proved, that she was taken intentionally to become a member of Islamic State the case would fail. But his Honour’s directions in relation to the meaning of “organisation” go back to page 21 at line 15, bearing in mind the definition of “organisation” under section 100.1 of the Code means:

a body corporate or an unincorporated body –

and this direction follows or, in some respects reflects, the discussion by the Court of Appeal in Benbrika in relation to Kibby v Registrar of Titles. His Honour directs the jury:

The essence of an ‘organisation’ or an ‘unincorporated body’ for present purposes may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method of identification of its members.

That.....was repeated at page 32 of the appeal book because it was included in the jury memorandum which is in the book of further materials at 746 where his Honour has said what the essence of an organisation is.

In other words, we submit that the way in which this case was conducted, the meaning of “terrorist organisation” and her membership of the particular organisation therefore required the prosecution to prove whether or not, insofar as her conduct was concerned, it did mean that the steps she was taking would be or could be to membership of Islamic State. In other words, it was not sufficient, if, for example, it was a step to become a member of the society, or a supporter, more importantly, a new supporter of Islamic state.

The question in terms of proving what membership of Islamic State entailed was very much part of what the prosecution had to prove, and as has been submitted, and as is plain from the judgment, the prosecution’s case, as it was presented to the Court of Appeal and below, was that, effectively, you were a member of Islamic State if you, in fact, became a member of the society, not by way of joining in the military or in terrorist activities, but merely because you become a wife, or you provide them assistance.

And so the prosecution case that went to the jury and, indeed, in the Court of Appeal, was that ‑ as seen in the Court of Appeal perhaps ‑ to arrive at the position that everybody who lived in Islamic State was indeed a member, that is, everyone who was part of the society was a member. And the argument, obviously, that the Court of Appeal addressed in relation to that was the fact, as I have indicated already, the history of that regulation did not support that proposition.

BELL J: Ms Shaw, as I understand the way the matter is put today, the appellant does not set out to establish that every person who is committed to the ideology of the Islamic State, and who, at the date the Islamic State assumed de facto control of territory, every person within that territory was a member of Islamic State. The appellant seeks to make the narrower case that a person who, in answer to a call for recruits from Islamic State, took steps to travel to the territory controlled by Islamic State, in order to foster the caliphate either by, in the case of a woman, bearing children, or acting as a paramedic, would become a member on the extended definition in the Act.

MS SHAW: Your Honour, there are two points we make about that. The first is that the evidence did not suggest, from Dr Shanahan, or any in particular, that someone who undertook that conduct was therefore a member as compared to a supporter, and his Honour Chief Justice Kourakis at paragraph.....in particular, referring to the way that the trial was run. That is at paragraph 80. It says, and this is at 237, his Honour sets out the facts on which the prosecution relied to prove that the appellant fell within this extended definition of membership based on their closing address, and in particular, as his Honour has italicised at point 15:

What the Crown does say, however, is a person can be a member and is a member of IS if that person knows of and agrees with and embraces the ideology and aims of the organisation and participates or takes steps to participate in advancing those aims and ideology and goals for the organisation.

And then, his Honour repeats, a further paragraph.....the prosecutor:

So if a person knows of, agrees with and embraces the ideology and aims of the organisation and with intention, for example, puts into place steps to head off to Syria and Iraq or undertakes a pledge to participate in the advancement by offering obedience to the directives of the leaders, the Crown says that that person is taking steps to become a member –

That was the way that it was pitched by the prosecution in the address and further at page 30, line 33 on that page, the further italicised section dealing with:

a woman who . . . embraced the ideology and . . . marrying . . . a fighter . . . or otherwise actively assisting in the creation . . . she would likewise be a member ‑

That is why it is, having addressed or summarised the prosecution’s closing submissions his Honour concluded at paragraph 81 about:

The italicised sentences clearly show that the prosecution case was that Islamic State, the organisation, had as its formal or informal members all of:

• the wives of the fighters who fought on its side; and

• the nurses who tended to the fighters

who embraced and supported its ideals.

In essence, we submit that the difficulty or the gap in proof that his Honour the Chief Justice and Justice Parker alluded to was that there was no evidence to distinguish between whether or not persons who took on those roles were supporters.....members. Her Honour took the view that ‑ this is picking up on the learned trial judge’s directions in terms of the way in which the trial judge directed the jury ‑ that is at page 239, paragraph 86 ‑ his Honour adopted the judge’s definition of organisation.

Bear in mind that that was the way in which the jury were directed and the jury had to consider the question of membership having regard to the direct layer of.....as to what an organisation or an unincorporated body necessarily included or required.

GAGELER J: Ms Shaw, as I understand the Crown case on the appeal to this Court, paragraph 81 of his Honour’s judgment is incomplete. What it leaves out of the Crown case is the importance of this notion of deliberate migration to the caliphate, the concept of being ‑ I might have the word wrong ‑ a muhajira, the women who deliberately went there to support the aims of the organisation. What do you say about that point?

MS SHAW: Your Honour, again, there was no evidence to suggest that a woman who did travel to Islamic State deliberately to support the aims would indeed be a member. Again, no distinction from being a supporter, no evidence, and in terms of the discussion as to the dearth of evidence and the comparison, or the observation that is made about absence of evidence as to the role of women in Islamic society or the organisation of Islamic State, the place.....compared to the organisation.

The Court has been taken, your Honour, I believe, to paragraph 67, where Dr Shanahan’s evidence was discussed. Bearing in mind Dr Shanahan had given evidence about the role of women in Islamic society, leaving aside the separate notion of an organisation, but what his Honour observes at paragraph 67, is that what Dr Shanahan described was not inconsistent with:

the traditional role of women as homemakers.

And then at paragraph 68 his Honour the Chief Justice says:

In the absence of evidence specifically addressing the role of women in Islamic State, the organisation, within its territory in Iraq and Syria, it is unsafe to infer that wives and female nurses sufficiently participated in the organisational structure of this radically conservative Islamic organisation, so as to be, even informal, members. To be clear, I make no assumption that women are precluded from membership. Nor do I assume that female supporters of Islamic State were precluded from fighting or engaging in terrorist activities. The points I make are twofold. First, Dr Shanahan did not give any evidence that Islamic State viewed the role of women in the Levant as members or fighters for its organisation. The second point I make is that the prosecution case was that the appellant intended to travel to Iraq to be the wife of a fighter or a nurse.

In other words, this was not a case where his Honour was saying, or found, that you cannot be a member if you travel there as a migrant, in the way that has been argued. What he is saying is that there was no evidence from Dr Shanahan or anywhere else to confirm that indeed you would thereby become a member as compared to being a supporter, or subject to the organisation as a member of the society. That is the thrust of his Honour’s judgment, and so far as it is suggested that his Honour failed to have regard to all of the.....

BELL J: Ms Shaw, again, we are having some difficulty with your audio. I note the time. It might be convenient for us to adjourn now until 2.15 and I wonder if you can endeavour, during the course of the break, to just test ‑ I do not know whether it would be of assistance to wear headphones, but it would be good to endeavour to improve the quality of the link, if that can be done over the break. The Court will now adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BELL J: Yes, thank you, Ms Shaw.

MS SHAW: If the Court pleases. Can the Court hear me any clearer now? We have moved the microphone closer.

BELL J: That is a great deal better. Thank you, Ms Shaw.

MS SHAW: Thank you. I apologise for the inability to get my ‑ ‑ ‑

BELL J: Not a bit.

MS SHAW: Your Honours, I am just about to address two points in relation to the submissions.

KEANE J: Ms Shaw, before you go to that, can I just ask you, arising out of what you were saying before lunch, is it your contention that the prosecution case was deficient because it did not establish that Islamic State would have regarded your client as a member or as someone who was taking steps to be a member?

MS SHAW: If I can qualify it in this way, the evidence did not say one way or another whether Islamic State did recognise someone living in the society as a member. It might well have, but Dr Shanahan was specifically not asked that question. He gave evidence about supporters, members, residents and talked about the various matters relied on by the prosecution. But he was not asked at trial, compared to the voir dire, as to whether or not, for example, the taking of the oath – the bay’ah – would mean that a person – even if it is in their heart – would thereby.....Islamic State be regarded as.....

So the deficiency is, on the unsafe verdict, the prosecution had to exclude as a reasonable probability that someone who travelled to, or intended to travel to Islamic State as a step, but the membership claim was being a member of society, performing as Dr Shanahan explained, the traditional role of a woman in Salafist ideology and the society, whether that person, as a member of that society, was, therefore, a member, that is, they had to exclude the reasonable possibility that all women in the society who travelled there in that way were not, in fact, regarded as members.

KEANE J: Without getting into ‑ ‑ ‑

MS SHAW: I am sorry, your Honour.

KEANE J: You finish.

MS SHAW: I was going to say, of the terrorist organisation, Islamic State; not the territory, but the terrorist organisation.

KEANE J: Without getting into the facts of the case, just at a higher level of generality, is it your submission that it is relevant or necessary for the Crown to prove what Islamic State thought or how Islamic State would describe its relationship with those whom it invites to participate in its activities?

MS SHAW: It is plainly relevant how they describe it. It may not be decisive - in terms of a label.

KEANE J: Yes. I mean, how Islamic State describe those associated with it cannot actually matter, can it, to how the words in an Australian statute operate?

MS SHAW: Yes, we agree with your Honour. It does depend on substance not form. But that does not deny that in this particular case, in accordance with the meaning of an unincorporated body, which is what the charge is, that she is a member of this particular body, does not have any – can be an amorphous body, to put it in the converse to the way in which it is expressed in Benbrika, that is, the very notion of an unincorporated body in accordance with the criteria that, for example, we have already referred to and was the subject of direction from the trial judge, necessarily includes, as the jury were directed, a criteria for membership, not that it needs to be written, but that it distinguishes this person who is a member from someone who the organisation would not regard as a member.

In that respect, we submit, it plainly is organisation specific. The way in which this organisation views women or views someone who comes to their territory for a particular purpose, whether that organisation used that person as, therefore, their member or merely a member of the society when they are trying to populate an area from 2014 or close thereby, is the critical point, because this offence, the very serious offence is punishing and targeting the status of being a member, not wishing ‑ ‑ ‑

KEANE J: What if the population of the area is an objective of Islamic State, a terrorist organisation?

MS SHAW: If there was evidence, in fact, from Dr Shanahan, the expert?

KEANE J: No, no, not just from Dr Shanahan, from the blogs and anything else?

MS SHAW: Well.....

BELL J: Ms Shaw, I am afraid we have lost you. Ms Shaw, I am sorry, just for a moment then the screen froze, and we did not hear from you, so I am going to have to ask you to repeat it.

MS SHAW: I apologise. I am not sure where I cut out but, Justice Keane, I was referring to - responding to your question about the blogs and what I was indicating was that plainly those blogs.....do not in any shape or form and nor was the Court taken to a suggestion that women who came in that way to fulfil the needs of the society were to become a member of the organisation of Islamic State, that is the organisation ‑ ‑ ‑

KEANE J: Who is speaking for the society as opposed to the organisation?

MS SHAW: In terms of having a spokesperson, plainly, in this case, al‑Baghdadi is both the leader of Islamic State but he is also the caliph. He is the religious leader. That was the evidence of Dr Shanahan – that he became the leader of the Sunni Muslims. So, in terms of the society – certainly the Islamic State governed those areas that they were conquering and did conquer. But I am not sure how to respond any better to your Honour’s question about who speaks for the society.

But the organisation, if it was part of the organisation’s – or there was evidence that the organisation took the view that everyone living in that society was a member – as distinguished from being a mere supporter – then that would be a different case. If the charge was associating with a member or providing support for Islamic State in some other way, then that is a different question. But this is a very serious offence of achieving status, of being a member by taking steps to achieve that status.

That cannot be, we submit, based on the way in which the legislation is framed. There are no qualifications, beyond taking steps, that members should be given a meaning beyond what was discussed in Benbrika following on from a link to, we submit, necessarily, the court’s discussion of organisation of an unincorporated body.

Importantly, in Benbrika, by way of example in relation to the way the court approached a case where the issue was whether the persons involved were, in fact, an organisation, that is, as compared to here where we know we are dealing with – or the court was dealing with and the prosecution was attempting to prove – we have a specific known organisation about which evidence can be led that the respondent is alleged to be a member of.

In Benbrika, on the other hand, where the issue was whether or not what the various persons charged did resulted in them being an organisation and, therefore, a terrorist organisation.....the court was able to consider the interaction between the members, in particular, the leadership of Benbrika, in particular that they gave themselves the name “the jema’ah”, in particular that they take an oath - “a bayat” to Benbrika and he accepted it, and therefore the court, from a relatively small organisation, considered it applying the Kibby criteria, namely some stability of membership and here, in this case, included criteria for membership, the court could.....deduce it was an organisation. .

Therefore when one came to the next step in Benbrika, to say, well was this individual person a member of that organisation, that step involved acknowledging that a question of membership must be organisation specific, that is, it must relate to this particular organisation and so, for example, one of the appellants was found to be a member because he had given the “bayat” and, more importantly, we submit, it had been accepted by the group.

So that drives our submission back to the point that one cannot, based on the unilateral intentions and actions of an individual, determine that by that conduct, that is, their willingness and commitment to the ideology of a particular – assuming.....organisation as apart from the religious organisation, therefore is necessarily a member for the purposes of this statute.

In that respect, we submit that, true it is that it is a terrorist organisation and true it is there is a policy in terms of ensuring that these matters are detected, but the legislation does not in any way allow for a different approach to membership than one would take it in any other context such as in Benbrika.

So, in our respectful submission, our starting point is the way in which the jury were addressed, and the second point is the way in which the Crown adduced its evidence. So when it came to Dr Shanahan’s evidence, for example, he was asked specifically what was the purpose, what was the need – this is at book of further materials page 130, transcript page 1008:

What was the purpose, what was the need, did you understand, for women to travel there.

1. Women were to fulfil several roles. To look after jihadis is very – as I said, Salafists, literalists and traditionalists, so it was a literalist and traditional way of viewing the role of women, it was to provide support to her husband. It was to provide support to the jihadis, it was to produce children and to raise children in the appropriate Islamic way as leader of that household.

17. So if the situation is that the desire was to establish a functioning society according to Sharia law, what are you saying, you need to have all sorts of people go there to enable that to occur?
1. Well to have a – again, the short answer is yes, but if you’re trying to produce the ideal Islamic society, you also want the ideal Islamic woman as well, so somebody who is ideologically attuned to creating the Islamic State.

We submit that at no stage was Dr Shanahan asked, insofar as Islamic State, the organisation was concerned that governed that society, did that therefore mean as part of this society either that status or any other conduct of a person who migrated to Islam would achieve membership. That is in contrast, we might say, to what he had said on the voir dire when he had given evidence that if you took the bay’ah, then he considered that you would become a member.

However, he was cross‑examined as to the basis on which he was claiming that and the source that he had relied on that indicated that this would only arise if it was, in effect, a bay’ah by an organisation rather than an individual. But Dr Shanahan went on to say that he thought it was arguable.....a bay’ah could thereby become a member.

The prosecution made a forensic decision not to lead that evidence from Dr Shanahan in the trial. So this is not a case where there was evidence either that there was secrecy surrounding who were members and who were not members or where there was an attempt to lead it and it could not be led for one reason or another. In our respectful submission, for whatever reason, it was not led.

We point out that in relation to the bay’ah which the prosecution had relied on – it is set out in Chief Justice Kourakis’ judgment – that, of course, was on 2 October.....insofar as it was described by the prosecution in their address in terms of another step to become a member, but critically from the point of view of the question of whether the verdict was unsafe, that the focus of it needing to be established beyond reasonable doubt that taking the step on 14 July at that time was indeed a step to become a member – that is, by arriving in an Islamic State after that departure and becoming a wife or a member of society, the respondent ‑ ‑ ‑

BELL J: I am sorry, Ms Shaw. Again, we are having difficulty with the sound breaking up.

MS SHAW: Can I perhaps, your Honours, on this topic submit to the Court that insofar as we do and the Court below relied on Benbrika to, in particular, as it is analysed by Justice Parker at paragraphs 246 to 252, core appeal book, page 225, he adopted the approach Benbrika to in effect demonstrate that the prosecution had not excluded the rational possibility that indeed this was an amorphous group or, as described by the prosecution, or had not excluded the reasonable possibility that by the conduct alleged against the respondent she therefore became a member of Islamic State.

Insofar as the Chief Justice did not deal better with Benbrika by endorsing the trial judge’s direction at paragraph 86 at page 239 he was endorsing a direction that was derived from the language of the Court in Benbrika in relation to, as I have said, Kibby’s Case.

We submit it is not to be misunderstood that the existence of.....is something that does not admit of a wide membership. If indeed that – and it may not necessarily be ascertainable to outsiders; rather, it is a simple recognition of that fact that it is essential in the notion of an organisation that it can identify and define who are its members and who are not. That is, a body will not meet the description of an organised combination of persons unless it has the capacity to identify criteria or methods for membership and that is the observation made by Justice Parker at paragraph 92. Those are the submissions of the respondent.

BELL J: Ms Shaw, how does that analysis fit with the extended definition of member on which the prosecution relied, including an informal member? If one takes the dictionary definition that Justice Kelly set out at paragraph 190 of her Honour’s reasons, one definition of informal involves an act:

Not done or made according to a recognised or prescribed form; not observing established procedures or rules; unofficial; irregular.

So that, to the extent the complaint is the absence of evidence of any formal criteria for membership by ISIS, it might be that that deficiency would be overcome by a conclusion as to informal membership.

MS SHAW: Your Honour, we do not submit that there is a need for formal criteria. What we submit, though, is that a member and a prosecution for membership of an organisation must be organisation‑specific. That says nothing about the formalistic processes that might surround membership, the criteria for ISIS might be that everyone who does come and live in the society is a member, but the evidence did not say that.

The criteria might be that everybody who supports ISIS ideology is a member, not just at the border, but the evidence did not say that, and so, in essence, there is nothing in the evidence to distinguish someone who is a supporter from a member, no matter what one ‑ where one placed the standard.....But, in our respectful submission, in essence, that the error in Justice Kelly’s approach, that it depends, for example, where she speaks at paragraph 221 of her judgment, it in effect depends on the unilateral intention of the person who is.....

In our respectful submission, it is a step to be a member, not to be a supporter, and it is a step to be a member of that organisation, not a step to be a member of a society that the organisation governs, if there is a difference, and we do not know, what the evidence can show. And so, we do not ‑ we agree with your Honour that there is no need.....but that does not mean that it can simply be.....as it turns out, whatever the prosecution locate as being the belief or indicated beliefs or inferences of the particular.....

BELL J: But just to be clear, Ms Shaw, you are not submitting that it is necessary that there be evidence to establish that ISIS had a means of knowing who were its members and informal members?

MS SHAW: Not necessarily by name but certainly by criteria – by status.

BELL J: Criteria for informal membership or, to use another word, unofficial membership.

MS SHAW: Yes, I mean, in other words, you cannot be a member of an organisation because you just want to be a member.

NETTLE J: Well, why not? If I wanted to join, say, the Melbourne Club and I wined and dined the committee with the intention of getting them to get me in there but it turned out all my steps were totally inept and there was no way in the world that that club was ever going to accept me, why would I not have taken steps with the intent of becoming a member?

MS SHAW: In that case, your Honour, the end point would be membership. You are wining and dining with the football club. That is your intention and plainly if the football club is entertaining your Honour they consider that your Honour has the capacity to become a member. What we do not know here is what view, if any, ISIS has about people who simply wish to come and live in their territory.

NETTLE J: The point I am making is that even if the Melbourne Club would not have me for a moment, if I took steps ignorant of that, calculated to try to get me membership, I would be taking steps to become a member, surely.

MS SHAW: The difference, your Honour, with respect, here is that your Honour’s end status is membership. We know the Melbourne Football Club has membership where it can embrace your Honour’s application. As far as ISIS is concerned, we have no idea whether what this ‑ saying something in your heart has any connection with ISIS with what it means to be.....In other words, you cannot be guilty of this offence if you take steps that actually have – not about capacity, not about formality but have no link to the specific organisation that you are, in fact, charged with, linked, in the sense of a member as a complete supporter and that is the critical point. In our respectful submission, where there was positive evidence from Dr Shanahan, as I have said, alluding to those different statuses, namely, members and supporters, it was.....to have a case as to why she was a member and not only a supporter.

GORDON J: Can I ask you, Ms Shaw, about that support submission? Putting aside Dr Shanahan’s evidence about support, does the definition of the effects under 102.7 about providing support cut across that submission? In this sense, it seems as though this Act is crafted in such a way that there are categories of offences, one of which is membership. The way in which the support offences seem to be drafted here are quite specific and referable to sources being provided for a terrorist act i.e. within paragraph (a) of the definition of terrorist organisation.

MS SHAW: With respect, it does not because what the offence relating to membership relates to is an offence punishing status and being a supporter is a different status to being a member, as we know with football clubs who have plenty of supporters but not necessarily as.....So, that is where we draw the distinction. Similarly.....

GORDON J: I am sorry, Ms Shaw, could you speak up again? I just missed that last answer.

MS SHAW: The football part, your Honour or the – I indicated that the offence of membership is an offence targeting status. It is not targeting providing the support and in the same way as a football club can have many supporters and few members, similarly an organisation – which is what this charge is about – can have members and many supporters. That is the distinction that Dr Shanahan talked about but did not delineate whether the conduct involved here was on the side of supporter or member.

So, it was not that there was an absence of evidence, there was evidence about how this organisation functioned and why it was that the Court of Appeal noted Dr Shanahan’s evidence as to its hierarchical structure, its leadership and the way in which it had set up councils in various areas. That is, this was an organised terrorist organisation. It was not like Benbrika and, therefore, it did not exclude, necessarily, the hypothesis that there was also membership.

Indeed, if I can take your Honours to the particular regulation – the Islamic State regulation – which was summarised by the Chief Justice at 2014, at 39 to 43 – and the 2014 regulation which is in the joint book of authorities at volume 4, page 700. In addition, more importantly, we have supplied the explanatory statement separately in the appellant’s further book of authorities at page 37. This set out, your Honours – the content of it is set out – both the judgment of Justice Parker – referred to by Justice Kelly – and set out and, also, referred to in Chief Justice Kourakis’ reasons. But as Justice Parker noted at paragraph 254, at core appeal book, page 276, the appellant – as the respondent below:

has supported its contentions –

In effect, what the material showed was that, first of all, the organisation that had been proscribed in 2014 had had earlier forms and it was simply a change of name. In addition, the submission we make is that there is nothing in the legislation ‑ that is the regulation ‑ nor the explanatory statement of a kind which suggests that it is other than an organisation which had members, criteria for membership in the sense of criteria or methods by which it ascribes to that status, it does not.....

There are positive indications in the explanatory statement that, indeed, it does recognise membership. It is set out, your Honours, in some detail in Justice Kelly’s judgment at core appeal book page 256, at paragraph 156. If I can just take your Honours to that passage.

Your Honours will see it commences at 255, where the explanatory statement is reproduced, and it is said it reflects a change in the name of the organisation as at 2014, and as the regulation makes plain, it had, in effect, been through a number of changes of names since 2004, and then it goes on to say:

The first listing of this group for proscription purposes was under the Arabic name . . . in 2005. It has also been listed as –

these other names. Then:

On 29 June 2014, the group proclaimed an Islamic caliphate in areas it controls and changed its name to . . . the Islamic State. This statement . . .

The use of the name Islamic State in this statement does not represent a change in the leadership, membership or methods of the group that was originally proscribed in 2005, but reflects the expansion of its operating area and its announcement of an Islamic caliphate.

In other words, although the prosecution relied on it below to demonstrate how it was.....how it was that it extended to the society by the declaration. In fact, the content also was not inconsistent with the reasoning of the majority that the evidence did not demonstrate that this organisation did not have leadership, membership or methods in relation to its operations, and the fact of the matter was that, bearing in mind its - prohibit use of propaganda and publicity about its actions, Dr Shanahan, as Chief Justice Kourakis observed, was simply never asked to question the necessity on this - whether or not the conduct of the respondent could have achieved membership or whether, more importantly, the conduct relied upon by the prosecution as constituting membership, namely being in the society, was one that the organisation Islamic State recognised.

So, your Honours, we submit that importantly at paragraph 255 of Justice Parker’s judgment, at 277, Justice Parker sets out further material from attachment B to that regulation – to the explanatory statement and, importantly, it has a heading “Leadership”, that is, its leadership is known to Parliament insofar as it is able to incorporate it, refers to its hierarchical structure, its council, different provincial governments, and then under the heading of “Membership” it states:

The Islamic State has several thousand members in Iraq, mostly young Iraqi Sunni men -

and then goes on to refer to Syria:

has several thousand additional members drawn from both Syrian nationals and foreign fighters -

and then goes on to refer to recruiting new members, mostly targeting:

young Sunni men worldwide –

What Justice Parker said about all of that publicly available information was that paragraph 256, much of the evidence of Dr Shanahan was broadly similar to the explanatory statement. He also indicated IS had controlled larger areas of Syria and Iraq, whereas it reported to establish ‑ ‑ ‑

KEANE J: Ms Shaw, can I just suggest or ask you, when one looks at that attachment B, and it speaks about membership and recruitment, it does seem to be talking about those who answer the call to join in the Islamic State’s enterprise in restoring the caliphate as its members.

MS SHAW: Well, it certainly refers to Sunni men. It does not ‑ ‑ ‑

KEANE J: Yes. Yes, mostly men. I mean, it speaks mostly of men. That is absolutely correct. But to speak of mostly men suggests the possibility that maybe women are involved too.

MS SHAW: Your Honour ‑ ‑ ‑

KEANE J: The point I am asking you to address is that the explanatory statement to which you are referring suggests that the criteria for membership, or the understanding of the relationship involved in membership, consists of answering the call to assist Islamic State’s enterprise in re-establishing the caliphate. That seems to be all that is involved in this notion of membership.

MS SHAW: Well, your Honours, in terms of that summary attached to the regulation, that is one aspect of it, but more importantly it does have a concept of.....and what the jury were told and the court.....is whether or not, bear in mind Dr Shanahan was the expert.....might be in the explanatory statement, in fact does include women in the society’s members. So, if indeed membership was by simply answering the call to be part of the society then one possibility, that could be a member, but the evidence does not exclude the possibility that in fact it was not what was necessary.

GORDON J: Just so that I can understand that, Ms Shaw, in Justice Kelly’s judgment at paragraph 167 after setting out the general evidence about social media and recruitment consistently with attachment B, the evidence of Dr Shanahan about the role of women and the way in which they are recruited at 167, you say does not take.....answer that question. Is that right?

MS SHAW: No, your Honour, it does not, because it does not address whether or not all of those actions therefore mean that the person is becoming a member of society or a supporter or a member ‑ ‑ ‑

GORDON J: Is that right, given the second answer of paragraph 167, which summarises all of the extracts of Dr Shanahan’s evidence?

MS SHAW: Yes, because Dr Shanahan specifically addressed particular features of conduct and gave evidence as to whether or not that might mean the person was a supporter or a member and did not ever suggest that insofar as the way he describes the role, reproduced at 167, that therefore meant that the person indeed had a relationship with Isis. They were.....were members. I am sorry, your Honours, I have lost the screen.

The prosecution conceded, as I have said, that they did not ask Dr Shanahan that question. They did not ask.....what all of this conduct actually meant in terms of whether the person was a supporter or a member. So, in our respectful submission, that does not ‑ ‑ ‑

BELL J: What Dr Shanahan gave evidence of, at appellant’s further materials volume 1, 130, was that:

women were often – western women, found their way to Islamic State territory –

through connections with online recruiters. Now, to the extent that there was evidence of online recruiters attracting women to come to the territory, taken with the blog posts, it might be thought there was an inference that Islamic State was in the business of recruiting people, including women, to come to join its caliphate. If a woman answered that call knowing that Islamic State was a terrorist organisation it might not be a big leap to conclude that she was, at the least, taking steps to become an unofficial member of it or informal member.

MS SHAW: Your Honour, even as an informal member, that does not connote that there is no need for Islamic State to have any contribution to who are its members and who are not, who are supporters and who are not. That is where the gap in the evidence is. That is why the prosecutor nailed his colours to the mast in identifying, as I have read out, that membership was based on effectively being – going there to be the wife of a.....or fighter. It is that specific notion that accompanied.....the matter your Honour has raised. It does not take it any further in terms of excluding the possibility that that person may not be....from Islamic State.....

GAGELER J: Ms Shaw, you referred earlier to the explanatory statement.....what use do we make of it?

MS SHAW: Your Honour, as I said, it was relied on by the prosecution below. In our respectful submission, it does not exclude and it is not inconsistent with the existence of ISIS ‑ membership of ISIS. It does assist in construction in that respect because it does not suggest any way that “member” for the purposes of one or two – three, has a meaning that needs to ignore the possibility that ISIS does have membership and ISIS does have leadership. That is why, as I have said, the Court of Appeal took the view that it was not inconsistent with the absence of evidence on Dr Shanahan and the potential for there to be in fact, as acknowledged, members and supporters known to ISIS. In our respectful submission, it is an assistance bearing in mind the construction sought to be placed on “member”, in particular being evidence in this case by Dr Shanahan.

So, we submit that – and for the reason that all of the other evidence that was relied on this morning did not inform whether or not someone was a supporter or a member. That is why his Honour Chief Justice Kourakis said, on that particular issue, the evidence could only be important – was only important by the..... His summary of Dr Shanahan’s evidence demonstrates, from paragraphs 57 to 76, that there was evidence from Dr Shanahan showing that it did have some level of hierarchical control.....concept of membership. Critically, as we have said, Dr Shanahan was never asked to explain the distinction that he himself was drawing between members and supporters and whether all supporters were members. Therefore, as we see the Chief Justice concluded at paragraph 76, core appeal book page 235, that:

the prosecution led no evidence from which the jury could distinguish supporters from members, formal or informal, of Islamic State, and, in particular, from which the jury could find that the [respondent] was one or the other.

That then came to the question of unsafe – had that been excluded on any view beyond reasonable doubt that she may not have been a member but an avid supporter. His Honour observed that Dr Shanahan’s evidence, as we have referred to.....any reference to the organisational involvement of women in Islamic State.

Therefore, we submit the Chief Justice, as he made clear, made no assumption one way or the other, as we have referred to at paragraph 68, about the role of women one way or the other. Indeed, as we have pointed out in our submissions at paragraph 49, at appellant’s book of further materials volume 1 at page 227, transcript 1203, line 31, the prosecutor specifically conceded that:

I didn’t ask Dr Shanahan what a member of this organisation is –

Insofar as Dr Shanahan’s evidence did specifically address symbols, gestures, rituals that were associated with Islamic State, it did not establish that those things were exclusively associated with Islamic State as distinct from the Salafist ideologies. Bear in mind, that the caliph was the religious leader as well as the political leader.

Therefore, when the Court of Appeal below, in the majority at paragraphs 70 to 75.....263, addressed the evidence that was led about these features that the prosecution relied on that might point to what membership might involve as compared to supporters, the concession by the prosecutor that he did not specifically ask about these particular features in terms of saying to Dr Shanahan well, you say that this particular ritual can mean that the person is a supporter or a member, are you using those terms interchangeably or are you referring to them as having a difference from the perspective of the organisation, Islamic State. So, in that context, for example, al‑Baghadi was, of course, the caliph – as Dr Shanahan gave evidence at appeal book – book of further materials page 113 that:

he announced himself as the caliph or the successor to the prophet Muhammad –

That is, he was both the head of Sunni Muslims as well as the head of Islamic State.

It is in that respect, therefore, that Dr Shanahan gave evidence that this was an oath to a leader but did not suggest that some way therefore it meant he became a member of the organisation. So we submit where the prosecution say at paragraph 48 of their submissions that if Dr Shanahan had been asked directly for his opinion on what is sufficient to constitute membership of Islamic State there is little doubt he would have been prevented from answering and suggestion is made in footnote 60 to the effect that this was the decision of the trial judge.

We submit, with respect, that submission misstates the..... Firstly, the issue was not whether Dr Shanahan could have expressed an opinion on what was sufficient in terms of conduct to amount to membership. The question was whether an expert who was called to give evidence of specialised knowledge – that is, the nature of the operation of Islamic State – could have given evidence of what, if anything, was known about his.....of membership and whether Islamic State regarded membership as restrictive in some way or as extending to all supporters or all persons taking a bay’ah, for example, or subject to some kind of limitation rider.

What Dr Shanahan obviously could not do was provide expert evidence on what the statutory expression of membership meant, but what he could do was give evidence as to what any formal or informal status a person, and a female in particular, living in relevant territory as a wife or a nurse had in the structure of Islamic State and what if any labels or terms Islamic State use to describe participants in its organisation.

Secondly, we would submit there is no basis to assert that the trial judge explicitly or implicitly ruled against the admission of such evidence. His actual order, bearing in mind there was an objection to the admissibility of Dr Shanahan’s evidence, was in favour of admissibility and that.....

The appellant has referred to the voir dire transcript at pages 80 and 81 of the book of further material. However, the observation at pages 80 and following was a reference back to questions asked by the trial judge on the voir dire which simply reflected the proper limits of expert opinion. One needs to go further than that to page 75 in the book of further materials, starting at transcript page 72, line 28, where his Honour asked some questions in a general, neutral way as to whether if a person wanted to join Islamic State it would be sufficient to make contact with persons who are generally accepted within Islamic State to be members of that organisation as distinct from going to the head.

Dr Shanahan gave an answer at page 76 of the book of further material, at line 24, and indeed made reference to the concept of a recommendation and the avoidance of infiltration. It was then, at page 76 of the book and line 32, that the judge was careful not to encourage the witness to speak to the legal meaning of “membership” but asked questions in the ordinary lay sense, but notwithstanding recognising that limitation, the judge went on to ask questions which produced answers which were about what may or may not suffice to make someone a member.

Therefore, the trial judge did not rule that the witness could not give evidence in the trial about what his knowledge was, based on.....specialised knowledge about the attitude of Islamic State membership and whether there was a distinction between supporters and subjects in a smaller group or its members. Such evidence was submitted on the voir dire, as was.....did support the submission that there was a relevant distinction.

Indeed, and it said earlier on at page 73 of the book of further materials, Dr Shanahan gave evidence of the giving of “the bay’ah” and the need for acceptance, and there was some debate about what the source of that evidence was and that is why we ‑ ‑ ‑

BELL J: Ms Shaw, I am conscious of the time. I really wonder about the utility of taking us at length to the voir dire.

MS SHAW: Your Honour, what we were endeavouring to show was that there was evidence led on the voir dire that addressed this very question, but ‑ ‑ ‑

BELL J: I understand that, but to the extent that this issue arises not as on the issue of construction but on the issue of the sufficiency of the evidence to support the verdict, we are not assisted by the voir dire discussion.

MS SHAW: Thank you, your Honours. Could I then move to point 5 of our skeleton. The approach of the prosecution at trial to the membership can be seen in the passages from the prosecution address, which I have taken the Court to at paragraph 80 of the Chief Justice’s judgment. In essence, as has been stated, if a person embraced the ideology and aims, going to live in the territory and wishing to create and provide support in that way, they were to be regarded as a member.

In our respectful submission, the correctness of that proposition cannot be made good without, as a minimum, an evidential foundation that support of that kind is regarded by the organisation, Islamic State, as resulting in the status which meets the ordinary perception of membership. If the evidence did go that far a question might arise whether the putative organisation is indeed an organisation in the sense contemplated by the Code, but we submit that question did not arise in this case because the evidence did not go that far.

.....matter.....to make a value judgment that a person has so aligned themselves with an organisation that they ought to be treated as a member, that an absence of evidence is a fundamental defect, we submit, here, in the prosecution case, that is, unless the concept of membership is treated as something akin to support for an organisation and we submit for reasons in our written submissions, for example, at paragraph 37, it should not be, then one is inevitably driven to a consideration of the limits.

We submit, with respect, that the analysis of Justice Kelly in dissent does not assist the appellant. Although his Honour was plainly right to hold, at paragraph 201, that the statute does not define particular steps that must be taken so as to render a person a member of an organisation and therefore does not prescribe the matters of proof, that is not the issue, nor is it the.....approach.

The majority approach is that without regard to how the organisation operates and who comprises its members or participants and how people achieve that status, we cannot be satisfied that one cannot be satisfied beyond reasonable doubt from the mere fact of unilateral support.....that a person is a member.

Hence, when Justice Kelly says at paragraph 201 that proof of membership can be advanced by considering the aims, objectives and goals of the organisation, that can be accepted, but it only takes the matter so far. A person’s intention or subjective commitment to an organisation could only conceivably render them a member of the organisation if that organisation considers that a subjective or unilateral commitment is enough. One must know how the organisation.....

BELL J: I am sorry, Ms Shaw, we have lost you again. Periodically the screen freezes and we lose sound. I think we are back to normal now.

MS SHAW: We emphasise that the offence in section 102.3 is being a member, not wanting to be a member, or wishing you were a member, or doing something that you think might endear you to an organisation. It is correct to say that the offence is expanded by steps to become a member, but that is not to transform it into an offence that is completed by any conduct of any kind committed with a subjective desire to be part of an organisation.

Ultimately, we respectfully submit that the majority was correct to conclude, at paragraph 9 at the core appeal book 217, that the prosecution adduced no evidence about Islamic State’s organisational structure and no evidence about its membership other than to identify several of its leaders and commanders, no evidence about how members other than fighters participated in the organisation and no evidence as to how members were recruited or selected, or any process by which they were inducted and finally accepted into the organisation. At paragraph 10, his Honour’s conclusion:

There was therefore no evidence against which to evaluate any connection between the proved conduct of the [respondent], her communications, pledge of allegiance, singing and attempt to travel to Turkey, with formal or informal membership of Islamic State.

We submit that Justice Parker was correct to observe at paragraph 259, core appeal book 278, that the evidence suggested:

a distinct possibility that admission to membership of IS may require something more than mere mutual recognition and acceptance of the type considered in Benbrika.

We submit in that respect the dispositive reasoning of the majority was correct, and the error attributed by the appellant to the majority in ground (2)(a) subtly misstates the effect of the majority’s reasons. The majority approach in relation to the steps was simply that the expanded admission appears to contemplate a process, but that was in the context of observing that deciding whether one had embarked on a process towards membership could not be decided in a vacuum and requiring something to be known of the organisation’s rules, formal or informal, or at least its common practices.

It is not to say that one can only have a prosecution for membership of a terrorist organisation if there is a prescribed application process. The critical and dispositive reason was that however one approached the steps, if they are steps towards something, which is not proved to be membership, the prosecution has failed.

BELL J: I think we have that point.

MS SHAW: If I can then, your Honour, turn to the notice of contention, which is at core appeal book page 289, we submit that the subject of ground 1 of the notice of contention, which in large part reflects grounds 1 and1(a) in the amended notice of appeal to the Court of Criminal Appeal below, which is at core appeal book 311, were implicitly accepted by the majority and support at least the quashing of the verdict of guilty. That implicit acceptance is in Chief Justice Kourakis’ reasons at paragraphs 44, 74, 86 and 124. In particular, as we will come to under ground 1.2 of our notice, the Chief accepted.....that the trial judge failed to apply the evidence to the elements of membership.

We submit that proposition is correct whether or not this Court upholds a further proposition that the evidence lacked the capacity to prove membership beyond reasonable doubt. Although at paragraph 90 at appeal book 240 the Chief Justice did not formally rule on what were grounds 1 and 1(a) below, we would submit those grounds provide alternative bases upon which the court below was right to quash the convictions. In these circumstances, even if this Court is not persuaded the verdict is unsafe, we submit the court below was right by majority to quash the conviction.

If I might elaborate briefly in relation to, firstly, ground 1.1 of our notice, the first part of our misdirection complaint relates to the manner in which the judge directed the jury in respect to how they should consider whether the particularised conduct relied upon by the jury and most critically the booking of a flight to Turkey satisfied the elements of the.....submission.

Our essential complaint that we set out in some detail in our written submissions at paragraphs 65 to 69 is that the trial judge conflated two separate aspects of the jury’s consideration and in doing so distracted attention away from the critical question of whether what was done, irrespective of the intention of the respondent in doing it, was, in fact, capable of being characterised as a step to.....

The judge did this by framing a critical question to the jury in terms which tended to assume that the conduct was a step and the real issue was whether she did it intending to be a member. The examples are set out in our written submissions at paragraph 65, page 14, and I will not take the Court through them.

We note that the prosecutor himself appeared to express a concern about this issue in relation to the proposed jury memorandum and that appears in the supplementary appeal book – the appellant’s appeal book at page 139. What the prosecutor said, in effect, was he wondered why his Honour had inserted “intentionally” into the memorandum:

was necessary there. I wonder whether that concept of ‘membership of an organisation’ ought to be dealt with discretely rather than being caught in the net.

We submit the directions of his Honour failed to highlight that the question of the respondent’s intention would only be relevant if the conduct.....against it could be said to be a step to becoming a member of Islamic State. Furthermore, the trial judge gave a number of directions which tended to encourage an uncritical and broad approach to the physical element of what.....

Whilst it is probably right to say that the statute itself did not identify any bright line as to what accounted for membership, instead of directing the jury that the answer would have to rely on the evidence led at trial, his Honour gave directions concerning what lay behind the approach of Parliament when drafting.....of membership in a manner that tended to encourage an uncritical approach.

As to ground 1.2, this builds upon our ground 1.1 and also the submissions we have made that it was the safety of the verdict. We address this at paragraphs 70 and 71 of our written submissions. It complains that the trial judge’s directions essentially failed to draw the jury’s attention to the limits of the evidence pertaining to the question of membership of Islamic State organisation involved and thereby what might mount the steps to becoming a member.

The directions failed to relate the evidence to the legal issues in the manner that, in our respectful submission, is required in cases.....for example, Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 and in the context of the limits of expert evidence in Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170 at paragraph 32. In this regard we rely on the observations of his Honour Justice McHugh in Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 at paragraphs 80 and 84, in particular, they were dealing with what might be described as relatively novel events.

We submit it is telling that the trial judge did not really direct the jury as to Dr Shanahan’s evidence at all – and refer your Honours to the core appeal book at page 120 to 121, where his Honour said it was for the jury to remember what they had heard of Dr Shanahan’s evidence. In this respect, the Chief Justice essentially accepted the complaints of the appellant, in particular, as we have said, at paragraph.....core appeal book....and at paragraph 36, and at core appeal book 226 to 229 and 104. In relation to ground 2.1, the summing‑up was unbalanced. The relevant principles were collected and explained.....and, obviously, the summing‑up ‑ ‑ ‑

BELL J: I am sorry, again, Ms Shaw. We have just had a slight difficulty with your visual briefly, but I think things are back to normal – do go on.

MS SHAW: If I can turn, your Honours, to 2.1, our ground that the summing‑up was unbalanced.

BELL J: Yes.

MS SHAW: I have referred the Court to..... Our essential point in this regard is that partly because the majority only addressed this ground on what I might call a residual basis – this is at paragraph 91 of the Court of Appeal Chief Justice’s reasons, core appeal book, 240 - that is, having accepted criticisms of the summing‑up relating to the elements and the relating of the evidence to them and partly because in respect of those residual complaints, which are grouped into five categories, the Chief Justice assessed the matters seriatim and I refer to his judgment at paragraphs 91 to 109, core appeal book, 240 to 246. That is seriatim, rather than cumulatively, or comprehensively.

We say in that respect the court erred by not also formally upholding the unbalanced summing‑up ground. For example, at paragraph 104 of core appeal book 245, the Chief Justice states that:

There is nothing further to be gained by considering –

the legislative imperative point in isolation. That is his Honour explaining to the jury what the legislative imperative was. But the point is his Honour, we submit, should have considered it cumulatively but never did. In that regard, we obviously rely upon the misdirections complained of or implicit from the submissions as to membership that we have already made, that is, the failure of the trial judge to identify the limited evidence or, indeed, the absence of evidence as to how Islamic State approached the question of membership and the implicit endorsement of a broadening of the concept of a membership and steps to become a member by reference to the legislative concern with terrorism.

But in our written submissions at paragraph 73, in paragraphs 1 to 13, we set out further matters, which I will not take the Court through, but we rely on in cumulative effect and, we submit, give rise to a grave imbalance in the summing‑up. We note that defence counsel complained at the time - this is at summing‑up page 100, core appeal book 113 - that the trial judge had aligned himself with the Crown case and had, in effect, delivered another Crown address. The response of the trial judge was that remarks against counsel were verging on the impertinent.

The riposte of the appellant below and, indeed, accepted to a large extent by the majority below, was to the effect that the judge’s summing‑up reflected that on the one hand the prosecution adduced a large volume of evidence and, on the other, the defence did not. Our answer to that general response is conveniently answered in our last ground of contention, to which I now turn, namely the failure of the trial judge to properly present the defence case to the jury.

Whilst it is true that a summing‑up, insofar as it deals with the evidence, will inevitably spend more time on the prosecution case than the defence case, where the defence adduced.....by way of a positive case, in our respectful submission, consistent with the authorities that were referred to in footnote 3 of our written submissions at an intermediate level, that may serve to heighten the trial judge’s obligation to clearly and cogently put the defence case to the jury, and thirdly lend the weight of his authority to the defence case, where it includes records of interview adduced in the prosecution case and hypotheses consistent with instances that are reliant on evidence, or an absence of evidence, in the prosecution case.

We would respectfully add to those references the analysis by the Victorian Court of Appeal in R v Soldo [2005] VSCA 136, in the supplementary joint book of authorities at page 4, and in particular at paragraphs 74 to 75, where the importance of fully summarising the evidence of the defendant through a record of interview was emphasised, but in this particular case the respondent had given three records of interview, firstly on 14 July, secondly on 22 September 2016, and again on 8 February 2017 - over 500 questions in the February interview. There were approximately.....more than 300 in the July interview, and about 80 questions in the September interview. We do not suggest that every question necessarily had content, but it merely indicates there were substantive matters to be put.

So we submit that in that respect the majority failed to consider and apply these authorities and focused only, for example, at paragraph 93, on the observation that the jury could use the interview both for and against the accused. That was, on the authorities, not enough where the interview forms an important part of the defence case, which must be negatived by the prosecution.

The Chief Justice did not, in fact, deal in terms with ground 2(a) of the appeal to the Court of Criminal Appeal, namely the failure to put the defence case. We submit it follows from his treatment of the case on membership that he would have accepted that the defence case in that respect was not properly put to the jury, but he also ought to have..... The trial judge failed in summing‑up to put the.....obtained in her records of interview.

As I have said, the respondent did not make a bare denial but provided positive explanations which needed to be negatived beyond reasonable doubt, and there was some other evidence in the case capable of supporting her suggestion that she was going to Istanbul to see if she could be part of aid work, given the number of refugees in the country. That was, as we point out in our submissions at paragraph 13 of our written submissions, evidence of increased bank account statements consistent with having made charitable donations.

She said in her interview, for example, that she did not want to go to another war‑torn country and was not planning to go to Syria, and that she did not have any contacts there. We submit that the judge did not bring home to the jury that this positive was consistent with the absence of any evidence in the Crown case of her having contacts in Syria, notwithstanding the relatively extensive surveillance. Indeed, the way in which his Honour introduced his footage of the defence case was to refer to.....as being that he was going to summarise the submissions of the.....Mr Boucaut, which he thereby proceeded to do.

Instead, as we have explained in our written submissions, the summary of the defence case when he did address Mr Boucaut’s submissions was interspersed with points by way of rebuttal and a.....and a mistake by counsel that had already been acknowledged and retracted given prominence.

We invite the Court simply to dismiss the appeal on the basis that the appellant’s grounds of appeal fail. Alternatively, and in any event, by reference to the grounds of contention, we would submit that the court below was correct to quash the verdict. There are circumstances in the present case too, which speak against ordering a retrial. This Court has discretion not to so order, and we refer in that respect to Director of Public Prosecutions for Nauru v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 and 631.

The head sentence in this case was three years and the non‑parole period was two years, three months, that date to be commenced on 23 May 2017. The respondent was not released until she had served her non‑parole period, as well as a further two months, because she was only released at the time of the judgment of the Court of Appeal on 31 October 2019. That is, we submit, a term of imprisonment which would by now have expired and the interests of justice do not favour the respondent being exposed to the stress and for a conviction to be obtained for the particularly burdensome prospect of serving a short further term in prison, having attempted already to ‑ ‑ ‑

BELL J: We have lost you again, I am sorry, Ms Shaw. I think we had it ‑ ‑ ‑

MS SHAW: Sorry, your Honour. I have completed my submissions. I do not know if your Honours heard the last submission I made.

BELL J: We did. The submission based on Director of Public Prosecutions for Nauru v Fowler. Yes.

MS SHAW: Yes, that is so. Thank you.

BELL J: Yes. Ms McNaughton, anything in reply?

MS McNAUGHTON: Thank you. In reply, at paragraph 86 of the Chief Justice’s judgment, we take issue with the contention there that the trial judge provided a definition of “organisation” which required clear criteria. In fact, if one goes – we say that was out of context. If one goes to the summing‑up at the core appeal book, first of all at page 23, at the top of the page, there the trial judge is qualifying the written document. He says:

As to what an organisation or an unincorporated body might mean, for that matter –

is a useful way. Then over the page, 24, line 19, the trial judge says:

Now, why you do not have to be too fussed about all of this is that you do have the admission by the defendant in this particular case that Islamic State was at all relevant times a terrorist organisation –

et cetera. Then at the bottom of that same page, page 24, we say it is clear that he did not require clear criteria because rather he was talking in the terms of:

the indicia, the accompaniments, the things you look for in relation to membership are going to be quite different to, as I think a cricket club -

Again, very clearly at page 26, last paragraph:

There is no ‘bright line’ which enables one to say –

that is a quote from Benbrika:

that there are sufficient characteristics of a member of an organisation present to conclude that the defendant is intentionally a member of an organisation, nor is there any set of necessary conditions, the absence of one of which would render the term ‘member of an organisation inapplicable. Rather, it is a question of fact and degree.

So clearly not clear criteria. In relation to evidence, different point, as to what Dr Shanahan said about remaining and expanding, can I just refer the Court to the appellant’s book of further material, page 117, line 19 and page 116, lines 18 to 28. Both of those are referred to in our outline.

BELL J: Yes.

MS MCNAUGHTON: It was contended by Ms Shaw that there was a forensic decision by the prosecution below not to adduce evidence from Dr Shanahan before the jury in relation to whether or not the respondent was a member. That, in our respectful submission, is not a fair characterisation of what occurred. Rather, that is clear in it - the appellant’s book of further material at pages 227 to 228 where the learned Crown Prosecutor.....I suspect it would have been an objectionable question and there was clear indication by the trial judge in the course of the voir dire that it was not appropriate for the expert to comment on the legislative definition of “member”.

As to Ms Shaw’s contention, and I think twice she made it, that perhaps we relied on the explanatory statement in relation to the regulation below. That is, in our respectful submission, not entirely accurate - indeed, not accurate. It was provided - the submissions in relation to this question were requested by the Chief Justice, I am informed, and we answered in relation to his request for more information. We did not rely on it as some form of supplementary fresh evidence and we would contend that it is therefore irrelevant. That would be my submissions in reply to Ms Shaw.

In relation to the notice of contention, could I say this. As to the suggestion that the trial judge conflated the elements, we say that that is not the case, that at the appellant’s book of further materials at pages 750 and 751 – that is the written charge to the jury, if I could actually go to that. At line 4:

It is for the jury to consider whether or not: first, those acts were done in order to fly to Istanbul, Turkey ‘in order to engage with the terrorist organisation, IS’ and, secondly, were ‘steps to become a member of IS’.

That was in relation to particular one and then he said the same thing in the next paragraph in relation to particulars 2 to 6. At page 751, the second‑last heading on the page “Conduct between 14 July 2016 and 23 May 2017 may constitute ‘steps taken’”:

It is for the jury to consider whether or not conduct by the defendant between 14 July 2016 and 23 May 2017 constituted ‘steps to become a member of IS’.

We would also direct the Court’s attention to the core appeal book at 110 to 111 in the course of the summing‑up. From the words at the bottom of page 110:

So, ladies and gentlemen, as you know, I will recount Mr Boucaut’s opposing submissions to all of this later, so keep an open mind. But when you do retire to the jury room after you have heard everything, it will be for you to consider whether, in light of all of the evidence and addresses by both counsel, you find it proven beyond reasonable doubt that the flight to Turkey was for the purpose of engaging with Islamic State as asserted in prosecution particular one and, if you do come to that conclusion, if you were to come to that conclusion, then you would decide whether you find, on all of the evidence, and I have talked about how you look at all of the evidence, you know, the time frames in the Information, all of that, whether you find on all of the evidence that the defendant ‘took steps to become a member’ of Islamic State.

Also at 138 of the core appeal book as well, just to draw your Honours’ attention to that, when asked at the end of the summing‑up whether or not the defence sought any sort of redirection, fourth line from the bottom:

MR BOUCAUT: No, I thought that was clear, with respect.

I have already indicated in relation to the written directions themselves at ASBFM at page 141 the defence had no problem with those written directions.

As to the summing‑up in terms of whether or not it was unbalanced, one of course has to match the length of the prosecution closing address versus the length of the defence closing address. The summing‑up was structured chronologically; it was thematically structured. In fact, also relevant to the point before, really membership was not an issue. But just going back now to whether or not it was unbalanced, we would say it was appropriate and properly set out the various aspects of the defence case.

Whilst there was a complaint at one point during the course of the summing‑up, that complaint was not renewed at the end of the summing‑up, after the judge had properly covered all aspects that the defence had covered in their closing address. In terms of the interviews of the respondent, as I alluded to before, whether or not those answers if they had been gone through in any more painstaking fashion were helpful, it is clearly available to draw the inference that they were seriously unhelpful answers in that summing‑up – quite different to the situation in the case of Soldo, where Mr Soldo’s defence put clearly in the course of that - a detailed alternative narrative was put in that.

Also in Soldo, the length of time that the judgment records the trial judge gave to that dealing with the records of interview was much shorter, with respect, much, much shorter than what occurred in this case.....where there was no relevant unfairness or lack of balance.

In terms of what should happen should the notice of contention succeed, we would respectfully urge upon the Court that the appropriate order would be for a retrial. It is notable that in the Nauru Case referred to by my learned friend there, that was quite a different factual circumstance leading up to the order.

What happened in that case was that the prosecutor below had not asked for a retrial in a situation where the court on appeal thought that they
could not order a retrial where a prosecutor had not asked - clearly a very different situation to this, where we have an acquittal situation with the court down below. They would be my submissions in reply.

BELL J: Yes, thank you, Ms McNaughton. The Court will reserve judgment in this matter. Adjourn the Court until 9.45 am on Friday, 4 September.

AT 3.44 PM THE MATTER WAS ADJOURNED