Ground 2 Her Honour erred in directing the jury to disregard the submission made by counsel for the appellant during his closing address, in which he suggested that the jury should, when considering whether the book was connected with preparation for, the engagement of a person in, or assistance in a terrorist act, take into account the delay by the authorities in seeking the removal of that book from availability at large;
Ground 3 Her Honour erred in directing the jury in relation to count 1 that the words "connected with" were simply to be given their ordinary meaning; and
Ground 4 Her Honour erred in holding that the appellant had failed to discharge the evidential burden provided for by s 101.5(5) of the Code, and in consequence declining to direct the jury that the Crown was required to prove beyond reasonable doubt that the document was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act.
SENTENCE
Ground 1 Her Honour erred in concluding that the objective seriousness of the offence was "not far removed from the worst category of an offence under s 101.5(1) of the Code;
Ground 2 Her Honour erred in concluding that the appellant could not be regarded as a person of prior good character in light of various foreign convictions, even though these were obtained in violation of the principle of procedural fairness;
Ground 3 Her Honour erred in failing to give proper consideration to the question of deterrence;
Ground 4 Her Honour erred in giving inadequate weight to the onerous conditions to which the appellant had been subject while on bail; and
Ground 5 The sentence imposed was manifestly excessive.
CONVICTION APPEAL
Ground 1 Failure to discharge the jury following inadvertent tender of magazines
19During the trial, the Crown called Dr Evan Kohlmann, who was accepted as an expert on international terrorism and terrorist organisations including al-Qaeda. His evidence was extensive, and included explanations of the operation and practices of al-Qaeda, concepts of jihad and martyrdom, the Almaqdese website, and the contents of the e-book. He was cross-examined by the appellant's counsel and asked about the appellant's prior journalistic publications, which included his work on the Nida ul-Islam magazine. The apparent purpose of the cross-examination was to establish that the e-book was, like the magazine, a journalistic work compiled for literary purposes.
20During the cross-examination, Issue 9(1) of the magazine (Feb - Mar 2002) was tendered without objection. It became Exhibit 2. A bundle containing four other issues of the magazine was marked MFI 14. The prosecutor later called for the tender of MFI 14 which became Exhibit 4. A bundle containing 32 other issues of the magazine became Exhibit 5. The Crown had an opportunity to peruse Exhibit 5 overnight, apparently for the first time, those issues of the magazine having previously been with the jury.
21Exhibit 5 included Issues 10(2) and 10(3) of the magazine. Within those issues were two articles written by the appellant which referred to allegations that the appellant had links to al-Qaeda and had assisted in the financing of overseas terrorist acts ("the allegations"). I will refer to the articles contained in issues 10(2) and 10(3) as "the disputed articles".
22The disputed article in Issue 10(2) of the magazine was entitled "Four Corners Missed the Target". The article criticises a segment aired on the television program Four Corners on 9 June 2003. In that segment, Ms Sally Neighbour of the ABC referenced a "secret CIA report" which, she said, identified the appellant as the Australian head of al-Qaeda and as someone who had been trained in Afghanistan and who was involved in the planning of terrorist attacks overseas. The disputed article contains a comprehensive denial of the allegations and challenges the cogency of the claimed CIA intelligence. It reads, relevantly:
"For the record, Belal Khazal is a member of the IYM; he did not receive training of any kind in Afghanistan or elsewhere; he did not raise any funds for any organisations, and he did not, nor intend to, plan 'terrorist' attacks in the Philippines, Venezuela or anywhere else.
Belal and other members of the IYM have been targeted because they are Muslims and they have been labelled as 'terrorists' by the likes of CIA, ASIO, and other security agencies."
23The disputed article in Issue 10(3) of the magazine was entitled "No Evidence: Just Fabrication against Bhelal Khazal." That article, which concerned the same Four Corners segment, vehemently denied the allegations and argued that the CIA report was a fabrication.
24The Crown sought to use the disputed articles for a limited purpose. It was the Crown's contention that the material, in conjunction with the evidence given by Dr Kohlmann, was capable of establishing that the appellant associated himself with al-Qaeda in the following ways: through his membership of the IYM (the publisher or the magazine), by contributing to the content of the magazine, and by selecting the Almaqdese website - which had been advertised in the magazine - as the forum for publication of the e-book.
25The prosecutor urged the jury to exercise caution when considering the disputed articles. He said:
"One reason for drawing attention to this is: Please do not think, because the magazine itself contains an allegation in Four Corners by Sally Neighbour or anyone else against Mr Khazaal that you can act on that. We are submitting that you do not act on that. We did not tender exhibit 5. Care needs to be exercised. Merely because the ABC reports something that this is responding to - it is saying it is not right - merely because the ABC reports something, you cannot use that against Mr Khazaal. That is just a news report. Do you follow what I mean? I am sure you do. I think I have made the point.
They say: 'For the record, Bilal Khazaal is a member of the IYM, Islamic Youth movement.' The significance for the Crown is that this magazine records that Bilal Khazaal is a member of the IYM. Forget this allegation of Sally Neighbour. That is no part of the Crown case whatever against Mr Khazaal. But where the magazine is tendered in his case, it records that he is a member of the Islamic Youth Movement. The Crown submits it is fair of you to accept that.
The article goes on to say that Four Corners is completely wrong. My point is just to refer to this statement that he is a member of the Islamic Youth Movement.
At page 4 there is another defence of Bilal Khazaal. He is entitled to defend himself, if Four Corners has attacked him. This trial is not about what happened on the media, on television, or in a response. In this example, we did not put it in. Exercise care please, or there could be an unintended unfairness.
Finally today, if I may just very briefly refer to the last issue in exhibit 5, June to August 2004, again commencing at page 4, 'No evidence, just fabrication, against Bilal Khazaal.' We do not want you to take account of this kind of debate between the magazine and Four Corners or 60 Minutes in any part of your deliberations as to whether or not the Crown has proved these two charges beyond reasonable doubt. But we do draw your attention to the fact that in this edition it commences: 'It is now in the open. A member of the Lakemba based Islamic Youth Movement (IYM) Bilal Khazaal and his brother... lies and false accusations', et cetera.
Our point is that this magazine describes the accused as a member of the Islamic Youth Movement, and I will relate that to some evidence about him being involved in a publication, and hence assuming some responsibility for the content of those magazines."
26In the course of the Crown address, counsel for the appellant, apparently for the first time, learnt of the content of the disputed articles. Concerned that a mistake had occurred and troubled by its impact on the jury, he made an application to have the jury discharged on the basis that the relevant articles were so devastating to the appellant that he was denied any possibility of a fair trial. Exhibit 5 had been in the jury's possession for seven hearing days by the time the application for discharge was made. When making the application, defence counsel said:
"Clearly, this material is devastating as far as the accused is concerned. The object here is to have a fair trial. We accept that the material has been put in by the defence. However, it has been put in in circumstances where, as a result of an oversight, this material was not picked up.
Our object in putting all of the material relating to these magazines was obvious. That is, the magazine is relevant to the proceedings. My friend suggests that there is a connection between the accused and the magazine, which we accept. It is, indeed, part of our case.
My friend goes further and says that there is a connection between this magazine and al-Qaeda based on the evidence of Dr Kohlmann. We accept the basis upon which that contention is made. However this material really goes to far and puts - -
HER HONOUR: When you say 'this material', you are referring just to the two articles?
[Counsel for the appellant]: Yes. ..."
27The trial judge refused the application, concluding that the disputed articles categorically denied the allegations and accordingly, the potential for prejudice was minimised. Her Honour's judgment reads as follows:
"The perspective that jurors properly perform their tasks, are true to their oaths and comply with the trial judge's directions has been repeatedly applied in appellate courts over recent years; see R v Milat and R v Bell, R v Long and R v Richards [1999] NSW CCA 114, [1999] 107 ACrimR 318, R v Dudko, R v D'Arcy and R v Burrell.
I am not persuaded that the jury will fail to abide by the directions I have given and propose to give. In any event, the articles themselves rebut the allegations made in the programme. It may be the case that some members of the jury did see the programme when it aired in June 2003 and that the articles have only served to remind them of the allegations made therein. If that is so, then the Crown's reference to the articles does not add significantly to what those members of the jury already knew.
Furthermore, it is not irrelevant that the magazines were tendered by the accused. Nothing in the magazines was thought to be so prejudicial that they could not be placed before the jury. For these reasons the application is refused."
28In her summing-up, the trial judge directed the jury in the following terms:
"There have also been references made in the course of the address to the Al-Nida magazine and to a Four Corners programme in 2004. Of course, the subject of that programme, which was the accused's alleged links to al-Qaeda and his alleged funding of terrorist acts, was strongly refuted by the accused throughout the magazine itself. The fact that such allegations have been made against the accused do not prove anything. We are all exposed to media coverage on a daily basis of many controversial events. It will not surprise you to hear that media outlets are fallible. They have been shown to be wrong in the past and they will be shown to be wrong in the future. As I have said a number of times in this trial, you must put these matters completely to one side and objectively consider the evidence brought against the accused on the specific charges in the indictment. He is not charged with being a terrorist. He is not charged with committing a terrorist act. There is no evidence that the accused is a member of al-Qaeda. There is no evidence that the accused communicated directly with any prominent member of al-Qaeda or any of the authors of the chapters of the book.
...
Now, there is no direct evidence, and I repeat this, ladies and gentlemen, of any links between the accused and al-Qaeda itself, but the Crown case is that an inference can be drawn, at the very least, that the accused was a supporter and an enthusiast of al-Qaeda."
THE RELEVANT PRINCIPLES
29The principles governing applications for the discharge of a jury and the review of that decision by an appellant court were summarised by Toohey, Gaudron, Gummow and Kirby JJ in Crofts v R [1996] HCA 22; (1996) 186 CLR 427 as follows (at 440 - 441):
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. ...[M]uch leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?
...
[I]n the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account."
30See also Maric v R (1978) 20 ALR 513 per Gibbs J at 520; Stirland v DPP [1944] AC 315; [1944] 2 All ER 13 at 321; Driscoll v R (1977) 137 CLR 517; (1977) 15 ALR 47 at 69.
APPELLANT'S SUBMISSIONS
31The appellant submitted that this Court could not conclude that but for the admission of the disputed material, the conviction was inevitable (Crofts at 440 - 441).
32The appellant drew an analogy between the disputed articles and evidence of a defendant's prior convictions or bad character which, it was suggested, will normally jeopardise the prospects of a fair trial: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 604 per Mason CJ and Toohey J, quoting Maxwell v DPP [1935] AC 309 at 317; Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 90 per Toohey J.
33The appellant argued that the revulsion with which acts of terrorism are regarded by members of the public and by the courts increased the risk of unfair prejudice (R v Wood [1996] 1 Cr App Rep 207 at 219A per Staughton LJ). This risk was said to be further elevated by Dr Kohlmann's evidence that the Internet was al-Qaeda's preferred means of communication. The appellant submitted that the jury could not avoid concluding that the contents of the e-book were published or at least endorsed by al-Qaeda and further, that the e-book was published on the Internet because that was the forum preferred by al-Qaeda.
34The appellant emphasised that although there was no evidence establishing that the appellant had any direct links with al-Qaeda or with the authors of the material contained in the e-book, "the material, to which the articles referred, effectively closed that gap, by asserting that the Appellant was a sponsor of, or participant in, terrorism."
35The appellant did not agree that the risk of prejudice was minimised because he had used the magazine as a forum in which to deny the allegations. The appellant drew attention to a number of United States authorities which recognised the tendency on the part of juries to regard false or incorrect assertions as 'facts' notwithstanding their vehement denial by the witness (see, eg, Scheri v DePaolo 68 NJ Super 297, 172 A 2d 233; Ebron v United States 838 A.2d 1140 cf United States. v Pugh, 436 F.2d 222, 225 (C.A.D.C. 1970)).
36It was submitted that the source of the material further elevated the risk of prejudice. Not only was material conveyed in a television program that was likely to be regarded by the jury as a reputable source of current affairs information (ABC v Comalco Ltd (1986) 12 FCR 510 at 520 per Smithers J); that material was said to have originated from governmental intelligence agencies including the CIA. The appellant submitted that the jury:
"might quite legitimately assume that such intelligence agencies would (or at the very least should) be aware of who is involved in terrorist activity. There is a particular danger when the prejudicial information is said to come from an authoritative source. See, e.g., R v. McCann (1991) 92 Cr.App.R. 239 per Beldam LJ..."
37According to the appellant, no direction was capable of curing the unavoidable prejudice caused by the introduction of the disputed articles.
CROWN SUBMISSIONS
38The Crown asserted that the material was not so damaging as to require the discharge of the jury. It distinguished R v Halliday [2009] VSCA 195 (in which a document containing prior convictions was inadvertently put before the jury) and Pak v R [2000] WASCA 309 (in which evidence of bad character was inadvertently led in cross-examination) from the present case. It argued that it is ultimately for the trial judge to determine whether in the interests of a fair trial, there is a need for the jury's discharge (R v Hortis [2004] VSCA 143 per Nettle JA at [18], citing R v Boland (1974) VR 849 at 866; R v Vaitos (1981) 4 Crim App R 238 at 243 and R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533).
39The Crown submitted that the material contained in the disputed articles was of a different nature to evidence of a prior criminal record, bad character or antecedents. It was submitted that the material was evidence of the appellant's support for a terrorist group, a fact in issue which went to a core requirement of the offence, namely, that the appellant knew of the connection between the e-book and assistance in a terrorist act. It was submitted that:
"references to assertions of the Appellant's involvement in acts of terrorism which he chose to publish in a publicly available magazine in order to refute them are a far cry from inadmissible evidence of prior criminal acts, much less criminal acts of terrorism."
40The Crown argued that R v Wood involved prejudice of an entirely different order to that involved in the present case. The prejudice in that case was occasioned by "constant press material during the course of the accused's trial for a terrorist offence [as well as] the trial judge's slanted summing up against the accused."
41It was argued that the trial judge's direction was sufficient to guard against the possibility that the jury, knowing that the charge related to terrorism, would attach undue significance to the material. There was a clear direction to:
"put completely to one side the allegations against the Appellant in the Four Corners program of links to al Qaeda and funding of terrorist acts, which he strongly refuted through the magazine itself, and [to] objectively consider the evidence brought against him on the specific charges in the indictment."
42It was submitted that it was relevant that the appellant himself refuted the allegations. He was not merely "attempting" to refute them (as contended by the appellant) but refuting them in no uncertain terms. The submission reads:
"The articles contain detailed arguments in support of their themes that the program and newspaper stories were untrue, unfair, unbalanced and calculated to inflame community passions against Australian Muslims, using the Appellant and his brother as the vehicle for the attack. The program and newspaper articles had plainly been widely disseminated in the community. The magazines containing the refutations were openly published and distributed. Each of the magazines is bilingual, containing an Arabic portion and an equivalent English portion. Rather than constitute irrefutable evidence of bad character of the kind exemplified in Crofts and Marec, they present the Appellant as the innocent victim of a malicious media campaign 'inciting hatred against Muslims in Australia' (close of first article)." (emphasis in original)
43The Crown said that the United States authorities referred to by the appellant were not relevant as they concerned assertions put to witnesses in the course of cross-examination. Further, they did not take account of the principle recognised by Gleeson CJ in R v VPH (Unreported, New South Wales Court of Criminal Appeal, 3 March 1994 at 7) that appellate courts in this country have no choice but to assume that juries understand and comply with the directions given to them by trial judges.
44The Crown made a number of submissions in response to the appellant's assertion that the source of the material increased the potential for prejudice. First, it was said that Smithers J in ABC v Comalco was not suggesting at 520 that the ABC or its Four Corners program "had any particular reputation for truth and accuracy in relation to the content of its programs." Having reviewed the relevant portion of Smithers J's judgment, I would agree. Second, it was submitted that the appellant's reliance on R v McCann & Ors (1991) 92 Cr App R 239 was misplaced. That case concerned a government announcement, aired by the BBC at a critical stage of the trial, to the effect that the right to silence would be narrowed by legislation. The announcement attracted significant publicity and the support of Lord Denning, who stated publicly that the right to silence was a right exercised by the guilty. The trial judge's decision to refuse to discharge the jury was overturned on appeal. It was submitted by the Crown that "nothing about the articles in question comes close to the extreme prejudice discussed in McCann."
45The Crown submitted that any unfair prejudice occasioned to the appellant as a result of the tender of the disputed articles was remedied in the trial judge's directions to the jury and accordingly that the present case is distinguishable from Crofts and Maric.
DETERMINATION
46The appellant's purpose in tendering the magazine was to demonstrate that the e-book was, like the magazine, a legitimate literary publication. The prosecutor sought to rely on the disputed articles as evidence that the appellant was a member of the IYM but urged the jury to disregard the allegations contained in the disputed articles.
47The trial judge gave numerous directions in relation to the disputed articles. The jury was advised in clear terms that the appellant was not being tried for crimes of terrorism or for being a member of al-Qaeda. He was not accused of having any direct communications with al-Qaeda operatives. At its highest, the Crown case suggested that the appellant had been an al-Qaeda enthusiast. The jury was reminded of the fallibility of media outlets and of the fact that the allegations were strongly denied by the appellant in the disputed articles themselves.
48In my judgment the directions given by the trial judge were adequate to deal with the issues which had arisen. I am satisfied that the jury was made aware of the limited purpose for which the Crown relied on that evidence. The prosecutor and the trial judge took various opportunities to caution the jury against improper use of the disputed articles. The trial judge was alive to the atmosphere of the trial and to the disposition of the jury and was in the best position to assess whether the circumstances demanded the jury's discharge (El Hassan v R [2007] NSWCCA 148 per Hunt AJA at [15], citing House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505; Kanaan & Ors v R [2006] NSWCCA 109 at [50]; R v Ngo [2003] NSWCCA 82 at [49]; R v Ball (1960) 61 SR 37 at 41-42; see also GAR v R (No 2) [2010] NSWCCA 164). I am not satisfied that the trial judge's refusal to discharge of the jury occasioned a risk of a substantial miscarriage of justice (Crofts at 441).
49The arguments ventilated in relation to this issue are illustrative of the tensions which have increasingly emerged between the unfair prejudice which may be occasioned to an accused when the jury receives information which it should not have had (whether in evidence or otherwise) and the jury's capacity to act on instruction given to it by the trial judge. If the assumption of the common law that jurors understand and follow the judge's instruction is to be more than hollow rhetoric it is important that appellate courts pay appropriate respect to the discretion of the trial judge who is in a far superior position to the appellate court to appreciate the atmosphere of the trial and determine whether appropriate instruction will ensure that the trial is fair.
50Although not adverted to by the trial judge, given the appellant's propensity for publishing material relating to jihad and apparent support for assassination it would hardly have come as a surprise to the jury that he was under suspicion from security authorities. It was an inevitable background to the charges which were laid by the Crown.
51I would dismiss this ground of appeal.
Ground 2 Alleged misdirection with respect to delay by authorities in seeking the removal of the book from the Almaqdese website
52In his closing address, counsel for the appellant submitted that the evidence clearly established that ASIO and the Australian Federal Police had delayed in procuring the removal of the e-book from the Internet. These agencies had known about the e-book when it was uploaded onto the Almaqdese website in September 2003 yet, according to the appellant, took no active steps to have it removed until May 2004. It was submitted that, given the delay, the jury was entitled to conclude that the elements of the charge were not made out. The trial transcript reads, relevantly:
"Authorities knew about it, you might think, within a reasonable time. Nothing was done. Nothing. This conduct said by the Crown to have posed such a terrorist threat didn't cause the authorities to act. What were they waiting for, the thing to happen? We know it never happened anyway. Or was it the case that the authorities really didn't think back then that it was the thing that they now claim it to be? Of course, we had the intervening - before the events in September/October '03 and the date of arrest in June of '04, almost a year later, we had the interviews, search of a home.
The Crown can only say in relation to the home, 'Well, look, we rely on the book. Our case is the book, the book, the book, the book. That's enough.' Or, what, is it not a legitimate point that when they raided the home they did so for a purpose? They did so, you might think, in the belief that something would be produced. And yet there is no evidence. They took the computer, they took a copy of the computer, went through the home. Not one piece of evidence to support the allegations that are made in this case."
53In her Honour's summing-up, the trial judge directed the jury to disregard that portion of the appellant's closing address. Her Honour remarked:
"It would be wrong and perverse to assume, as [counsel for the appellant] invited you to do, that one explanation for the arrest of the accused some time after he first came to the notice of the authorities was that the prosecution was waiting for a terrorist act to be committed.
There is no evidence of that and, in fact, the evidence supports a completely different explanation, namely, that a careful translation of the document was necessary before the serious step of laying criminal charges could be taken..."
54Counsel for the appellant addressed her Honour on this direction in the absence of the jury. Her Honour quite rightly questioned how any delay on the part of the authorities could bear upon the jury's consideration of the elements of the charge. Counsel for the appellant responded as follows:
"Well, the imputation is - well, those in authority, who were dealing with this matter, may or may not themselves have perceived this material as being anything but advocacy."
55The appellant now asserts that the trial judge misunderstood the appellant's submission. It is said that her Honour assumed that the evidence of the delay was being relied on as a form of opinion evidence to establish that the authorities did not believe that the appellant was guilty of the offence. The true purpose was said to be to demonstrate that the authorities did not consider the e-book to have posed a threat of imminent danger. As a result, it was said, the jury could not conclude that there was a connection between the e-book and assistance in a terrorist act as required by s 101.5(1)(b) the Code. If the jury was entitled to consider the evidence of Dr Kohlmann in determining that the e-book did pose an imminent threat, then it was also entitled to consider contrary evidence adduced by the appellant.
56It was submitted that the trial judge's direction to the jury was "particularly harmful" to the appellant because it required the jury to ignore evidence favourable to him (that the e-book could not assist a potential terrorist) and because it personally criticised the appellant's trial counsel.
57It was said that the jury's inability to reach a verdict in respect of Count 2 demonstrated that the evidence about the e-book's utility to a potential terrorist was critical, and that any contrary evidence was of fundamental importance to the appellant's defence to Count 1.
DETERMINATION
58As the Crown observes, no evidence was elicited at the trial to suggest that either ASIO or the Australian Federal Police had the means to compel the removal of the e-book from the Almaqdese website. In those circumstances, I doubt very much whether it could be said that the authorities "delayed" in procuring the removal of the e-book from the Internet. Leaving that to one side, the difficulty with the appellant's submission, even as rephrased or clarified, is the opinion evidence rule. As the Crown submitted:
"Just as an ASIO or AFP officer could not give admissible evidence that in his/her opinion the Appellant had not done anything wrong, the jury were not entitled to take into account in arriving at their verdict whether the authorities were of the opinion the book did not constitute an imminent danger and for that reason was not connected with assistance in a terrorist act." (reference omitted)
59I do not accept the appellant's submission that he was "entitled" to adduce evidence that the e-book posed no imminent threat. Dr Kohlmann was the only witness to give evidence on the e-book's connection with assistance in a terrorist act. He was never asked whether the e-book posed a threat of imminent danger. I accept the Crown's submission that the Appellant's argument is underpinned by the incorrect proposition that a document which does not constitute an imminent danger is thereby not connected with assistance in a terrorist act.
60There being no evidence that the e-book posed a threat of imminent danger, it cannot be said that her Honour's direction removed from the jury's consideration "evidence capable of supporting defence counsel's submission that the book was incapable of assisting a potential terrorist."
61I do not believe that her Honour's direction unduly criticised counsel. Nor is it appropriate to speculate upon the jury's reasoning process in relation to Count 2 and to extrapolate from that an inference that the "evidence" was improperly excluded from the jury's consideration in relation to Count 1.
62This ground of appeal should be dismissed.
Ground 3 Alleged misdirection with respect to the words "connected with"
63Section 101.5(1)(b) of the Code requires that the relevant document be "connected with preparation for, the engagement of a person in, or assistance in a terrorist act." The Crown case proceeded on the basis that the e-book was "connected with...assistance in a terrorist act."
64At the trial, the appellant's counsel sought a direction in the following terms:
"The words 'connected with' mean that the book must itself have been capable of directly assisting in the commission of a terrorist act. A mere remote connection will not suffice."
65The trial judge declined to direct the jury in those terms, instead directing that the words "connected with" be given their ordinary meaning. Her Honour told the jury:
"So, let me go to element (c). You will see that the focus of this element is on the connection between the document ... and assistance in an action or threat of action against certain persons. Now, this is an element that depends upon an examination of the contents of the document, nothing more, nothing less. We are only concerned about what the document says objectively. It is a matter for you to determine, because it is simply an objective factor, namely, is the document, connected with assistance in a terrorist act?
The phrase 'connected with assistance in an action or threat of action' has no special or technical meaning. You should interpret that phrase according to its plain English meaning. If you are satisfied beyond reasonable doubt that any part of the document is connected with helping or facilitating the commission of an action or threat of action against any one of the persons that are set out in the particulars, then the Crown has proved that element of the offence.
It does not matter if the document is not connected with a specific action or threat of action, or if it is connected with more than one action or threat of action. As long as the Crown has proved beyond reasonable doubt that the document is connected with an action or threat of action of the kind specified in the charge, that is sufficient to prove this element."
66The appellant modified his position on appeal. It was said that the jury should have been directed that, before the necessary connection could exist, the e-book must have factually and appreciably furthered the commission of a terrorist act, making it "more likely" to take place.
67The appellant's counsel filed supplementary submissions which appear to qualify this modified position. The supplementary submissions read:
"Whether or not the jury should have been told they had to treat the words in the way suggested by the appellant's counsel ... they should at least have been directed that more than a remote connection was required."
68It seems that the appellant no longer claimed that a positive definition of the phrase "connected with" was required (whether in the terms originally advanced or as put on appeal). As I understand it, the appellant now simply contends that the jury should have been told that more than a remote or tenuous connection was required.
69The appellant submitted that the words "connected with" did not have a plain English meaning that was "appropriate to all occasions". Accordingly, a restrictive interpretation was necessary to avoid latent ambiguity (Beckwith v R (1976) 135 CLR 569 at 576; Arnold v R (1993) NSWLR 73 at 86 - 87 per Abadee J).
70Reference was made to the remarks of Spigelman CJ in R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [28] where the Chief Justice said:
"The phrase 'in connection with' is capable of considerable breadth, however it always takes its colour from its surroundings. The full scope of the dictionary definition is rarely, if ever, appropriate."
71It was submitted that the "highly penal" statutory context in which the phrase appears (R v Novakovic [2007] VSCA 145; (2007) 172 A Crim R 414 per Ashley JA at [59]; citing Murdoch v Simmonds [1971] VR 887 per Adam J at 889) demands a more confined interpretation. The appellant cited the remarks of Hall J in Halpin v Department of Gaming and Racing (2006) 68 NSWLR 211 at [47] ("where provisions creating or extending criminal liability can reasonably be construed in two or more ways, they are to be given the narrowest of the alternative interpretations").
72Reference was made to the decision in R v Zafar [2008] QB 810 which concerned an offence under s 57 of the Terrorism Act 2000 (UK) (the equivalent of s 101.4 of the Code), which reads:
"A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism." (emphasis added)
73Lord Phillips CJ observed at [28] - [29] that considerations of certainty required that the phrase "for a purpose connected with" be defined narrowly. That approach was endorsed by Lord Osborne in Siddique (Mohammed Atif) v HM Advocate [2010] HCJAC, in which it was held that the phrase "in connection with" "requires a direct connection between the object possessed and the act of terrorism" (at [82]).
74Following the hearing of oral argument the court drew the parties attention to the decision of the Victorian Court of Appeal in Benbrika & Ors v R [2010] VSCA 281. That case was concerned with an alleged breach of s 101.4 of the Criminal Code. The issue considered by the Court of Appeal was concerned with the direction to be given to the jury when a person is charged with possessing a "thing" which is "connected with preparation for a terrorist act."
75No application was made to amend the grounds of appeal in the present case.
76The appellant submitted that Benbrika decided that before Benbrika could be convicted three requirements must be proved. Firstly, there must be a terrorist act which is either proposed or contemplated, secondly some activity which assists that act and the thing must be intended to be used in aid or as part of that assistance.
77It was further submitted that the "connection" contemplated in the section was informed by the intention or purpose of the person which existed at the time the thing was possessed.
78The appellant submitted that Benbrika was an authority which this Court should accept to be binding and which provided the approach which this Court should take to s 101.5.
CROWN SUBMISSIONS
79The Crown did not accept the appellant's assertion that the plain English meaning of "connected with" is so broad as to require some restriction in the context of the Act.
80It was submitted that the true significance of Orcher lay in affirming that the meaning of phrases such as "in connection with" is heavily context-dependent: per Spigelman CJ at [30], quoting with approval Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146 ("The words 'in connection with' are words of wide import and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear"). Reference was also made to the remarks of Davies J in Hatfield v Health Insurance Commission (1987) 15 FCR 487. His Honour remarked at 491 that the words "in connection with" and similar phrases (e.g. "relating to", "in respect of") are likely to vary in meaning from statute to statute, and although theoretically capable of wide import, their meaning is generally confined by the context in which they appear.
81The authorities which restricted the meaning of "for a purpose connected with" in the context of s 57 of the Terrorism Act 2000 (UK) were of no value. The offence under s 57 (possession for terrorist purpose) permits guilt to be proved on the basis of a reasonable suspicion that the possession is connected to the commission, preparation or instigation of an act of terrorism. Accordingly, it is unsurprising that s 57 was interpreted to require a direct connection between the object possessed and the terrorist act.
82The Crown drew attention to the decision of R v Lodhi [2006] NSWSC 691 which also concerned an offence under s 101.5(1) of the Code. The offender had collected maps which were intended to be used in the preparation for a bombing of Australia's electricity supply system. Whealy J directed the jury in the following terms:
"The words 'in connection with the preparation for an action or threat of action' really underline that we are concerned with actions taken, for example the collection of documents, where the documents themselves are connected with preparation taken towards the implementation, and hence in advance, of the projected act. Now, in relation to that, you need to understand that the concept of preparation requires proof of something intended to advance the implementation of the projected terrorist act."
83It was submitted that the directions given by the trial judge in the present case accorded with those given by his Honour in Lodhi.
84In its supplementary submissions, the Crown argued that the trial judge's directions relating to knowledge prevented the jury from acting on a remote connection. Those directions were in the following terms:
"The elements of the offences, which the Crown must prove beyond reasonable doubt, are as follows:-
Count 1
...
(e) The accused knew (that is, he was aware) at the time he made the document, of the connection between the document and assistance in the action, or threat of action, referred to in (c), that is:
i) he was aware of the action, or threat of action, referred to in (c) ; and
ii) he was aware of the intention by that action, or threat of action, to advance a political, religious or ideological cause, namely, the advancement of the Muslim religion in the world, including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christian and other non-Muslims from that region ; and
iii) he was aware, by that action or threat of action, it was intended to coerce or influence by intimidation one or more of the following - the Government of the Commonwealth, the government of a foreign country, or to intimidate the public or a section of the public ; and
iv) he was aware that the action or threat of action, if carried out, would cause serious physical harm to a person; or serious damage to property; or a person's death; or endanger a person's life, other than the life of the person taking the action; or create a serious risk to the health or safety of the public or a section of the public; and
v) he was aware that the action or threat of action was not advocacy, protest, dissent or industrial action OR he was aware that the action or threat of action was intended to cause serious physical harm to a person; or a person's death; or was intended to endanger a person's life, other than the life of the person taking the action; or was intended to create a serious risk to the health or safety of the public or a section of the public."
85It was said those directions "necessarily excluded the possibility of a conviction based on an indirect or remote connection" and accordingly there was no need for the direction which the appellant argues was required.
86Finally it was submitted that this Court should apply the proviso in the event that error was found with respect to the directions given by the trial judge.
DETERMINATION
87The initial question is whether the trial judge was required to direct the jury that more than a remote or tenuous connection between the e-book and the relevant assistance was required.
88Section 101.5 of the Code creates a serious criminal offence punishable by a maximum of 15 years imprisonment. The offence falls within Part 5.3 of the Code. Part 5.3 was originally inserted into the Code by the Security Legislation Amendment (Terrorism) Act 2002 (Cth). The second reading speech to that Act reads, relevantly:
"No country has ever been immune to the threat of terrorism. While there is no known specific threat of terrorism in Australia at present, we must ensure that we are as well prepared as possible to deal with the new international security environment. Terrorist forces, through violent and intimidatory methods, are actively working to undermine democracy and the rights of people throughout the world.
We must direct all available resources, including the might of the law, at protecting our community and ensuring that those responsible for threatening our security are brought to justice. And we must do so as swiftly as possible. The Howard Government emphatically rejects any suggestion that because we have not experienced any direct terrorist threat in Australia since September 11 this package of legislation is not justified or is an over-reaction. We are actively involved in the war against terrorism. We cannot assume that we are not at risk of a terrorist attack. We cannot afford to become complacent. And we should never forget the devastation of September 11. The Howard Government takes very seriously the responsibility to protect Australia against terrorism. We will be seeking to bring this important package of legislation on for debate as soon as possible."
89The significance of the events leading to the enactment of Part 5.3 cannot be overstated. The explanatory memoranda to Part 5.3 make plain that the legislative intention underpinning that Part is to eradicate the threat and occurrence of terrorist acts in Australia. Although there is no "purpose clause" specific to Part 5.3, Parliament's intention in enacting the offence under s 101.5(1) of the Code is discernable from s 100.4 (which extends Part 5.3 to preliminary acts that concern terrorist acts but are not in themselves terrorist acts) and from s 100.6 (which preserves the operation of State and Territory laws). That Part 5.3 was intended to operate expansively gains support from the judgment of Spigelman CJ in Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 at [66]:
"Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."
90That same legislative policy is found in s 101.5(3)(b) of the Code, which reads:
"A person commits an offence under subsection (1) or (2) even if ... the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act..."
91The question is not whether the words "connected with" give rise to ambiguity, but whether the words "the document is connected with ... assistance in a terrorist act" give rise to ambiguity. As the Victorian Court of Appeal said in Benbrika at [323], "it is erroneous to construe the words 'connected with' in isolation from their context."
92A connection can exist between innumerable things and occur in almost innumerable ways. Whether the e-book was connected with assistance in a terrorist act was a question of fact for the jury, applying its understanding of the relevant words.
93The appellant argued that the trial judge should have imposed a qualification on the words of the statute so that the jury were instructed that "more than a remote connection was required." I do not accept the submission. The words in "connection with" are ordinary words which the jury were obviously capable of understanding. I accept that the connection must be more than ephemeral but I see no reason why the jury should have been given a judicial gloss on the words used by the legislature. There is nothing in the legislation to suggest that the jury should be required to do other than apply their ordinary understanding of the words "connected with" to the fact finding required of them. If they consider the alleged connection to be ephemeral or so remote that it could not be described as "connected with" the relevant assistance, they would respond accordingly.
94Benbrika was concerned, inter alia, with an offence under s 101.4(1) of the Code, which reads:
"101.4 Possessing things connected with terrorist acts
(1) A person commits an offence if:
(a) the person possesses a thing; and
(b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and
(c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b)."
95The charge in Benbrika related to the possession of a "thing" being a compact disc containing extremist literature, videos and images ("the Mansura CD"). Copies of the Mansura CD were found at two of the accused's premises. The trial judge directed the jury in the following terms:
"The second thing that the Crown has to prove is that the [Mansura] compact disc was connected with preparation for a terrorist act.
In the context of this case, what that means is that the compact disc had some sort of connection to, or relationship with, a terrorist act, and, in the circumstances of this case, that means no more than that if you were satisfied that the organisation of which Benbrika was a member, if you found that he was a member, was engaged in fostering or preparing a terrorist act, that terrorist act, whatever it was, would be sufficient to found that connection if you thought that something on the CD was connected with a terrorist act. 'Connected with' is a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act (Court of Appeal's emphasis)."
96A question on appeal was whether a "direct connection" between the Mansura CD and preparation for a terrorist act was required. The Court of Appeal (Maxwell P, Nettle and Weinberg JJA) said:
[324] The question is not, as the English cases suggest, whether there is a direct connection between the thing and the act of preparation. It is rather whether the connection, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term 'connected with'. The possession of innocuous and everyday items, such as a cheque book, even one intended to be used, as one of its purposes, for a nefarious end, is not sufficient, in our view, to meet the statutory requirement. ... (references omitted)."
97I respectfully agree with this approach and adopt it in relation to the question in the present appeal.
98There was a particular problem in Benbrika which is not present in the present case. Because the relevant thing was an inanimate object Benbrika's possession of it may have been innocuous. The thing alone could not determine whether there was the relevant connection. For this reason the court said that before Benbrika could be found to have committed an offence against the statute there had to be a terrorist act for which preparatory activity was, at least, in contemplation [338]. Once this was recognised the problem with the trial judge's direction becomes apparent.
99The trial judge directed the jury that "connected with" was:
"a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act."
100The omission which caused the problem was the failure to refer to "preparation" for the terrorist act which informed the nature of the required connection. The Court of Appeal identified the problem and said:
"Used in s 101.4(1) the phrase does have a particular meaning. It means that the thing must be shown to have been 'connected' with preparation for a terrorist act' by virtue of some person's having had the purpose of using the thing in, or in aid of, preparation for the terrorist act."
101In the present case the appellant was charged with making a "document connected with assistance in a terrorist act." The connection which the prosecution identified was said to be found within the document itself which described methods of assassination, being terrorist acts, organisation of effective assassination teams and identified prospective targets for assassination. There was more but this is sufficient to identify the fact that the document itself described a variety of terrorist acts from which the jury could conclude that the document was connected with assistance in a terrorist act. They were the acts contemplated by the appellant (Benbrika [338]). Proof of a specific terrorist act was not required.
102The trial judge took a different approach to the trial judge in Benbrika. Her Honour told the jury that the phrase "connected with assistance in an action or threat of action" has no special or technical meaning. She directed their attention to the particulars saying:
"If you are satisfied beyond reasonable doubt that any part of the document is connected with helping or facilitating the commission of an action or threat of action against anyone of the persons that are set out in the particulars, then the Crown has proved that element of the offence."
103The particulars identified persons including diplomats, military personnel and holders of public office. Her Honour continued:
"It does not matter if the document is not connected with a specific action or threat of action, or if it is connected with more than one action or threat of action. As long as the Crown has proved beyond reasonable doubt that the document is connected with an action or threat of action of the kind specified in the charge, that is sufficient to prove this element."
104By taking this course her Honour, as was appropriate, confined the jury's deliberation to the issues raised at the trial and directed the jury's attention to the content of the document which the appellant was proved to have created. Her Honour's direction was faithful to the words of the section and placed the words "in connection with" in their appropriate context. Her Honour did not, as occurred in Benbrika, place any gloss on those words. The jury were not invited to act upon "some connection" or a "remote connection." They were instructed to look at the document and determine from the document whether the Crown had proved the relevant connection.
105I would dismiss this ground of appeal.
Ground 4 Alleged error with respect to the application of s 101.5(5) of the Code
106There are two fault elements for the offence constituting count 1 on the indictment. The first is that the appellant intentionally made the document. The second is that he knew that the document was connected with assistance in a terrorist act. Section 101.5(5) (para [2] above) provides a possible defence. It provides, inter alia, that s 101.5(1) will not apply if "the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act." The defendant bears an evidential burden in relation to the defence. Section 13.3(3) is in the following terms:
"A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification in relation to an offence bears the evidential burden in relation to that matter."
107Section 13.3(6) further provides:
"(6) In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist."
108Whether the evidential burden has been satisfied is a question of law (s 13.3(5)). If a defendant discharges that burden, the prosecution must then disprove it beyond reasonable doubt. Sections 13.1(2) and (3) provide:
"(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
(3) In this Code:
'legal burden', in relation to a matter, means the burden of proving the existence of the matter."
109At the trial, counsel for the appellant made an application for a direction in the following terms:
"If there is a reasonable possibility that the appellant did not make the book with the intention of facilitating assistance in a terrorist act, then the jury must be satisfied beyond reasonable doubt that the making of the book was intended to facilitate assistance in a terrorist act."
110Counsel for the appellant drew the trial judge's attention to evidence which, he submitted, supported the relevant inference. Her Honour ruled that the defence had not been engaged or, if it had, that the appellant had not discharged his evidentiary burden.
111As to the issue of engagement, her Honour remarked:
"When pressed to explain what was to be submitted to the jury as to the accused's intention in making the book, the answer was, and I quote, 'The accused intended to support the Islamic religion by compiling a reference book containing the views of authors concerning the role and rules of Jihad in the Islamic religion.' That was later amended by the addition of the words 'by lawful means' after the word 'intended'. That adds nothing to the submission but merely restates that the accused denies liability. ...
However, ultimately the only direction sought by Mr Thomas and Mr Lange is that outlined at paragraph 2 of these reasons. It was submitted that no other direction was necessary. The reluctance to express the accused's case in terms of what he intended as opposed to what he did not intend exposes the flaw in the accused's submission that section 101.5(5) applies in the circumstances of this trial.
... Whilst it is true that section 101.5(5) states that liability is avoided where there is no intention to facilitate assistance in a terrorist act, the note to the subsection refers to 'the matter' in subs 5 and to section 13.3(3).
The latter provision and section 13.3(6) make it clear that, 'An exception, exemption, excuse, qualification or justification,' is 'the matter' and that its existence or non-existence may be suggested as a reasonable possibility by the evidence relied upon to discharge the burden. It is also clear that a fault element is not a matter; see section 13.1(1) and (2).
It is therefore difficult to accept the proposition that the matter relied upon by the accused as the exception is, in effect, the fault element which the Crown must negative beyond reasonable doubt."
112Her Honour then addressed the sufficiency of the evidence said to suggest an absence of intention. Her Honour's reasons read, relevantly:
"In the case of an offence under section 101.5, subs 5 contemplates the advancement of a defence by adducing or pointing to evidence which suggests the reasonable possibility that the defendant did not intend to facilitate assistance in a terrorist act.
Whilst the threshold for the discharge of the evidentiary burden is relatively low, in that the evidence taken at its highest need only be suggestive of the possibility of the absence of intention, it is not sufficient that it is a mere possibility.
The example proffered by the Crown of such a defence, and one that was a real point of discussion and debate in the formulation of the offence, is the terrorism consultant or adviser to government or law enforcement agencies, who collects and collates material advocating the commission of terrorist acts in the course of his or her employment. Whilst technically guilty of an offence under section 101.5, the fact of the person's employment status and duties suggest a reasonable possibility that he or she made such a document without any intention to facilitate assistance in a terrorist act. ...
These factors ... are inconsistent with an intention to facilitate assistance in a terrorist act.
The accused's status as a journalist and researcher is not of the same character. His occupation as a journalist and the circumstances under which he made the book, namely, at short notice at the behest of 'the brothers', are not objectively inconsistent with an intention to facilitate assistance in a terrorist act. As I have already observed, in the absence of any evidence from the accused, his counsel sought to rely upon various categories of evidence in the trial from which the inference might reasonably be drawn that the accused did not intend to facilitate assistance in a terrorist act. It is not necessary to set out in detail that evidence save to say that the Crown relies upon precisely the same evidence to prove the book's connection with assistance in a terrorist act and the accused's knowledge of that connection.
Herein lies the paradox inherent in the accused's application to leave subs 5 to the jury. The accused proposes to submit to the jury that the evidence in the trial would not allow them to draw the conclusion beyond reasonable doubt that the accused knew of the book's connection with assistance in a terrorist act and, in the event that those submissions fail, rely on the same evidence as suggestive of a reasonable possibility that the accused did not intend facilitating assistance in a terrorist act. The effect is to put the Crown to proof on a fault element that does not form part of the offence."
APPELLANT'S SUBMISSIONS
113The appellant's submissions to this Court were concerned with the issue of the evidence necessary to discharge the evidential burden. They do not appear to address her Honour's finding that the defence was not engaged.
114The appellant submitted that the evidential burden only required him to point to evidence suggesting a reasonable possibility that "the matter" did or did not exist (s 13.3(6)). It was said that her Honour erred in requiring the appellant to point to evidence that was inconsistent with an intention to facilitate assistance in a terrorist act. This was said to have imposed a legal rather than evidential burden. In other words, instead of assessing whether the evidence left the defence open, her Honour considered whether the defence would succeed.
115The appellant submitted that proof of a negative state of affairs (that the appellant lacked a particular intention) required "slender evidence" (Jeffrey v DPP (1995) 121 FLR 16; (1995) 79 A Crim R 514 at 518; Fowkes v DPP [1997] 2 VR 506; (1996) 88 A Crim R 166 at 512; Brauer v DPP [1991] 2 Qd R 261; (1989) 45 A Crim R 109 at 113). It was not possible for the appellant to entirely exclude the possibility that he intended the e-book to facilitate the assistance of a terrorist act. What mattered was:
"whether the accused can point to evidence, or some factual thing, which suggests a reasonable possibility that his purpose was one other than that criminalised by the section."
116It was submitted that the appellant was not required to point to evidence suggesting that he made the e-book for a purpose other than to facilitate assistance in a terrorist act. He merely had to point to evidence suggesting a reasonable possibility that his intention in making the e-book was to assist in educating others about jihad (Texas Department of Community Affairs v Burdine 450 US 248, 101 S. Ct 1089 and Board of Trustees of Keene State College v Sweeney 439 US 24, 99 S. Ct 295). It was said that that was what the appellant did. He pointed to his previous work as an accredited journalist, which included his work on the magazine. He also pointed to the e-book itself, which he said merely collated various works on the topic of jihad. Some of the writings were centuries old and written in script that would not be readily comprehensible to speakers of modern Arabic.
117It did not matter that the evidence was the same as that relied on by the Crown in its case. Section 13.3(4) makes it clear that "the defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court."
118According to the appellant, the evidential burden had been discharged and it was for the Crown to rebut the defence by proving beyond reasonable doubt that the appellant intended to facilitate assistance in a terrorist act.
CROWN SUBMISSIONS
119The Crown submitted that the trial judge was correct to find that the defence had not been engaged.
120The Crown accepted the appellant's formulation of the relevant test and agreed that it imposed a low threshold. Nevertheless, it was submitted that the evidence pointed to by the appellant did not satisfy that threshold.
121The trial judge could not be said to have imposed a legal burden upon the appellant. Her Honour did not require the appellant to point to evidence which necessarily excluded the incriminating intention.
122The Crown accepted that if the appellant discharged its evidential burden, the prosecution was required to satisfy the jury beyond reasonable doubt that the defence did not apply. What the Crown was required to negative was not, as the appellant submitted, the fault element (that the appellant did not intend to facilitate assistance in a terrorist act) but rather, the defence. The submission reads:
"[The appellant's] position was that the evidence he identified as not permitting the jury to be satisfied beyond reasonable doubt that he knew of the book's connection with assistance in a terrorist act could also be relied on, if the jury were so satisfied, as evidence suggestive of a reasonable possibility that he did not intend facilitating assistance in a terrorist act. Had this been permitted the effect would have been to require the Crown to prove beyond reasonable doubt a fault element not forming part of the count 1 offence."
123The Crown then turned to the authorities cited by the appellant which concerned the extent of evidence required to prove a negative state of affairs. In Jeffrey, the appellant was required to prove that certain property "was not used in, or in connection with any unlawful activity and was not derived, directly or indirectly, by any person from any unlawful activity". Cole JA remarked at 518 that "[d]epending on the circumstances of each particular case, 'slender evidence may suffice to satisfy an evidential burden in relation to a negative state of affairs'" (footnote omitted). The Crown submitted that Cole JA's qualification was significant. Brauer was distinguished on the basis that the party upon whom the evidential burden was placed had limited means to produce the required evidence.
124In the Crown's view, the trial judge was correct to find that the threshold requirement of "slender evidence" required more than a mere possibility of the relevant matter. None of the evidence identified by the appellant went beyond a mere possibility that "in making the book knowing it was connected with assistance in a terrorist act the Appellant did not intend to facilitate such assistance." Any evidence of his scholarly intention was, in the submission of the Crown, equally consistent with a guilty intention to support Islam by terrorist means.
DETERMINATION
125It is unnecessary to resolve the issues surrounding the direction suggested by the appellant. However, it confuses the role of the judge in deciding the threshold question and that of the jury if the threshold question is decided by the judge in the appellant's favour.
126It is also unnecessary to resolve the argument in relation to her Honour's analysis of the inter relation between s 101.5(1) and (2). However, evidence relevant to the evidential burden in ss (5) must, if the burden is discharged, be given consideration by the jury when determining whether an offence has been committed.
127The appellant identified four aspects of the evidence which it was submitted justified a finding that the evidentiary burden in s 13.3(6) was discharged. They included the fact that the appellant was an accredited journalist, a researcher and publisher, the fact that he had acquired and built up a library which he used in his research, he had a significant interest in the Islamic religion and had written and published articles on benign Islamic issues.
128Whatever be the difficulties with her Honour's approach to the legislative provision I am satisfied that this evidence was insufficient to discharge the evidentiary burden which fell upon the appellant. To discharge that burden the appellant had to point to evidence that suggested a "reasonable possibility" that the making of the particular document was not intended to facilitate assistance in a terrorist act. The evidence to which attention was drawn was entirely neutral in relation to that issue. Whether or not the appellant was a journalist who had researched and published in relation to Islam it was his intention in making the document which was the issue in the trial. On that issue, apart from the document itself, without the appellant giving evidence or there being other evidence from which his intention could be inferred the evidential burden could not be discharged. There was nothing to support a reasonable possibility that he did not have the relevant intention.
129I would dismiss this ground of appeal.
130Since preparing my judgment I have become aware of the decision of the High Court in Braysich v The Queen [2011] HCA 14. In that case the majority said:
"If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be: