The Queen v Abdirahman-Khalif

BELL, KEANE, NETTLE AND GORDON JJ. This is an appeal against a judgment and orders of the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal (Kourakis CJ and Parker J, Kelly J dissenting), quashing the respondent's conviction of an offence of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code (Cth) ("the Code"). The principal issue arising on the appeal is whether the majority of the Full Court erred in holding that the evidence that the Crown adduced at trial was incapable of sustaining the conviction because it did not establish how members of the organisation were recruited or selected, or the process by which members were inducted and finally accepted into the organisation. For the reasons which follow, the majority did so err, and the appeal should be allowed. The facts The respondent was born in Kenya, in a refugee camp in Utanga, on 1 January 1995. She later moved with her family to Kakuma Refugee Camp in Northern Kenya, where she remained until she immigrated to South Australia with her mother and brothers in 2009. She lived with her mother and brothers in an Adelaide suburb and was schooled, first, at the Adelaide Secondary School of English, then at the Islamic College of South Australia and, finally, in years 11 and 12, at the Roma Mitchell Secondary College. She completed year 12 at the end of 2013. While attending the Islamic College, she was generally regarded as a high achiever, and a very high achiever in Arabic, with a genuine interest in Islamic religious studies. She identified as a Sunni Muslim. In January 2014, she began to study for a Diploma in Science and Technology (which is a pathway toward studying nursing) at the University of South Australia, but in March 2016 she ceased study before completion of the course. She became an Australian citizen on 6 May 2015. On 13 July 2016, unbeknown to her family, and using almost all her savings, the respondent purchased a one-way ticket for a flight from Adelaide to Istanbul, Turkey, departing the next day, at a cost of approximately $1,200. On the next day, without telling her mother and brothers, she went to Adelaide Airport with only carry-on luggage, her passport and her certificate of Australian citizenship. She had with her just $180 in cash, and, with only $14.38 remaining in her bank account, she had no means of purchasing a return ticket. She was detained by Australian Border Force officers at the airport and interviewed by Australian Federal Police ("AFP") officers. When asked why she was intending to fly to Turkey, she answered that she was going on a holiday and had booked two nights' accommodation in a hotel at a cost of $74, which she intended to pay out of the cash she had with her. She also said that she had watched videos on YouTube (a video streaming website) of people working for aid organisations and suggested that she might find work of that nature, although she did not know any more details of it than that. The respondent's mobile phone was seized by the AFP and found to contain propaganda and other extremist material produced by and expressing support for Islamic State. For example, in a blog post downloaded to the respondent's phone, dated 23 November 2014, appeared the following: "We believe in humbling ourselves before the Prophet Muhammad, and that it is haram to ignore his words. And it is haram to make Takfeer upon those who have earned the highest of degrees and the noblest of positions, of which are the four rightly-guided caliphs (Abu Bakr, Umar, Uthman [and] Ali ), the Sahabah (companions of the Prophet), and members of his household. ... We believe that Jihad fisabilillah (fighting in the path of Allah) is an obligation upon every single Muslim in the effort to liberate occupied Muslim lands. And that the obligation of jihad is one that is constant, to be performed under the commands of a righteous leader or even one that is a sinner, and the biggest sin after Kufr (disbelief in Allah ) is to reject or hinder Jihad fisabilillah at a time when it is made Wajib (obligatory) upon every single Muslim. Imam Ibnu Hazm said: 'There is not a sin after (the sin of) Kufr which is worse, than the sin of one who prevents Jihad against the disbelievers when it is commanded by Islam, and that is the hindering of the Muslims to perform Jihad against the disbelievers with the excuse that a Muslim may be a Fasiq (venial sinner), though this (character of a Fasiq) is not considered as a justification (to prevent jihad).' ... And since the Muslim countries of today are ruled by the laws of the Tawagheet (tyrants) and disbelief, we are convinced of the Kufr and apostasy of the rulers of these lands and their military forces. And to fight them is more obligatory than to fight the leaders of the cross (Crusaders), and we give warnings and reminders that we will fight the forces (whose apostasy and loyalty to the disbelievers are clear) that fight the Islamic State, even if they call themselves with the names of the Arabs or Islam. ... We hold that those who preceded us in (leaving for) Jihad, they are those who are honoured, and it is our responsibility to support (taking care and be of service to) the families of the Mujahideen and their properties. ... Rasulullah said: 'Whoever provides for a fighter in the cause of Allah has actually fought, and whoever takes care of the family of a fighter has actually fought.'" AFP investigators identified 1,614 image files, 379 audio files and 127 video files of interest on the respondent's mobile phone. One image file depicted the respondent in Islamic dress with a right index finger raised, which evidence adduced at trial established is a salute used by Islamic State members. It was also ascertained that, before purchasing the ticket to Turkey, the respondent had used her mobile phone on a number of occasions to communicate with three Kenyan women referred to as "the Baaqiya sisters". After examination, the mobile phone was returned to the respondent and she was allowed to leave the airport. Within 20 minutes of the phone being returned to her on 18 July 2016, the respondent used it to warn one of the Baaqiya sisters not to contact her. On 11 September 2016, the Baaqiya sisters committed a terrorist attack at Mombasa police station in the name of Islamic State, in which they were killed. Islamic State later claimed responsibility for the attack. On 22 September 2016, a search warrant was executed at the respondent's home and investigators again seized her mobile phone, as well as a laptop computer. Analysis of the seized phone revealed that, since the respondent's release from the airport, she had used the phone to download more Islamic State material and extremist propaganda, and analysis of the seized laptop established that, at least between 21 July 2015 and 27 July 2015, the respondent had used another device to access blogs about Islamic State, hijrah (religious migration to the territory controlled by Islamic State) and practical advice for women travelling to Islamic State-controlled territory, which at that time included regions of Syria and Iraq. Among the many discovered blog posts discussing hijrah downloaded by the respondent, the following appeared as part of a blog post dated 17 June 2015 authored by Abu Sa'eed Al-Britani (from a video entitled "Message Of A Mujahid"): "Due to the heavy propaganda of the western media, many sisters start to question whether it is safe to live in Sham as a Muhajirah. ... Every Muhajir 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, free healthcare, no water and electricity bills, monthly stipends to all Muhaajirs (both males and females), and the list goes on." In a further post, of 22 July 2015, appeared the following, apparently also authored by Abu Sa'eed Al-Britani (also from a video entitled "Message Of A Mujahid"): "In migrating to Sham you are benefitting yourself both in this life and in the hereafter. Allaah has commanded us to migrate to Dar Al-Islam from Dar Al‑Kufr, and this is an obligation which we are sinning if we do not do. ... In Dar Al-Kufr, a Muslimah is subjugated to the many oppressive laws which control her ... In Sham however, a Muslimah is given her full rights and she is not seen as an object of enjoyment by the public but rather as a dignified sister. ... There are many questions which a sister needs to reflect upon if she is in doubt about doing hijrah to Dar Al-Islam. I hereby present to you the following cases for you to ponder over. Ask yourself ... Would you want to live in a society where the police and MI5 are constantly hassling your family, or would you want to live in a place where you can openly talk about Jihad without any repercussion? These are just some of the questions which a sister needs to ponder over if she is having any second thoughts about doing Hijrah to Dar Al‑Islam here in Sham. ... 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 Mujaahideen 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, you are indirectly helping the society advance. ... So come to the aid of your religion and State and secure an Islamic lifestyle for yourself and your future offspring here in Dar Al-Islam." Among the posts containing practical advice for women undertaking hijrah was a post of 28 March 2015 containing the following: "Heres a list me and group of sisters here made of what you should pack on your hijrah to the Islamic state. May Allah bring anyone who is sincere here safe and welll yar rab. [There followed an extensive list of clothes and other personal effects.] 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 [Telegram is an instant messaging service for the transmission of encrypted messages] for the journey you won't be able to get it back for a long while until you get a new number. ... Dont worry about bringing food you'll be fed well here ... Put your khimars abayas niqabs gloves etc in your HAND LUGGAGE very important cos when you get to dawlah you'll be putting it on straight away in sha Allah. When you arrive you'll be taken straight to the maqqar females stopped off first. 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 or anything incriminating at home so ur family won't figure out where you went the minute you've gone. ... Remember you will be running in your hand luggage across the border so be smart~ you need back pack. And if you have a suitcase DONT carry many items as hand luggage.. you will regret it. handbags will only weigh you down. The night we crossed the border it has rained during the day so running in deep wet mud tripping every so often isn't fun so good boots is a must. ... Keep your quran audios this will keep you saneee (delete everything else islamic tho)". In another post, dated 22 July 2015, apparently by the same author, appeared the following: "2. WHAT HAPPEN NEXT AFTER I'VE CROSSED THE BORDER? ... Staying in Makkar is quite challenging due to many factors. Sometimes it can be overcrowded. 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. 3. SO IF I'M NOT MARRIED I CAN'T GET OUT FROM MAKKAR? Sisters, first and foremost I would like to remind you that you have pledge allegiance to Caliph and to obey him is a must unless he disobey Allah and His Messenger The caliph has set some protocols and there are reasons behind it. So rather than provoking, accept it." A covert listening device was installed in the respondent's bedroom and later captured the respondent listening to lectures and sermons containing extremist Islamic teachings, nasheeds (Islamic chants), with which the respondent sometimes sang along, and conversations in which the respondent expressed views consistent with conservative extremist Salafist beliefs and support for the Baaqiya sisters. During one of the captured conversations, the respondent said that one of the Baaqiya sisters had provided advice about "hiding the passport somewhere, checking things all the house, she gave me all ideas". The listening device also captured the respondent swearing a bay'ah (a pledge of allegiance) to Abu Bakr al-Baghdadi, then the leader of Islamic State, in these terms: "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 to try to take the authority from the leaders, unless we see a clear disbelieving from them, and we got a clear evidence from god. We give our allegiance to migration and jihad. ... The Islamic State is lasting, lasting ..." On 8 February 2017, the respondent was interviewed again by AFP officers and was asked about various documents which had been located during the earlier execution of the search warrant on her home, including as to why she was in possession (on her laptop and mobile phone) of graphic material that was branded as "al‑Hayat" (the Islamic State media outlet) and marked as having emanated from the leader of Islamic State. The respondent denied that her Islamic beliefs accorded with the way in which Islamic State operated. On 23 May 2017, the respondent was arrested and interviewed again by the AFP and ultimately charged with intentionally being a member of a terrorist organisation, namely, Islamic State, between 14 July 2016 and 23 May 2017, contrary to s 102.3(1) of the Code. Relevant statutory provisions Section 100.1(1) of the Code defines an "organisation" as 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." A "terrorist organisation" is defined in s 102.1(1) as: "(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4))." A "terrorist act" is relevantly defined in s 100.1 as "an action or threat of action" to cause serious harm that is physical harm to a person or serious damage to property, cause death, endanger life, create a serious risk to health or safety of the public or a section of the public, or seriously interfere with or disrupt an electronic system, where, relevantly, the action is done or the threat is made with the intention of "advancing a political, religious or ideological cause" and "coercing, or influencing by intimidation" the government of the Commonwealth or of a State, Territory or foreign country, or intimidating the public or a section of the public. Section 102.1(1) of the Code defines "member of an organisation" as including: "(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." Section 102.3 creates the offence of membership of a terrorist organisation in the following terms: "(1) A person commits an offence if: (a) the person intentionally is a member of an organisation; and (b) the organisation is a terrorist organisation; and (c) the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 10 years. (2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation." The Crown case at trial The Crown case at trial was that the respondent had intentionally taken steps to become a member of Islamic State, and was thus a member of Islamic State in contravention of s 102.3(1) of the Code by reason of para (b) of the definition of "member" in s 102.1(1) of the Code. It was not in issue that Islamic State was a "terrorist organisation" within the meaning of s 102.1 of the Code. There were agreed facts that Islamic State was an organisation and a terrorist organisation; that from approximately 2006 onwards, including in its predecessor organisations, it did, on an ongoing basis, directly and indirectly engage in preparing, planning, assisting in or fostering the doing of various terrorist acts; and that, during the period encompassed by the charge, Islamic State was lawfully specified under the Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 (Cth) as a terrorist organisation. The Crown provided six particulars of conduct in which the respondent was alleged to have engaged as constituting the steps that she had intentionally taken to become a member of Islamic State. They were:

Attempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with Islamic State.
Possessing and accessing material promoting Islamic State and violent jihad.
Communicating with members of Islamic State.
Pledging an oath of allegiance (bay'ah) to the then leader of Islamic State, Abu Bakr al-Baghdadi.
Expressing support for Islamic State and violent jihad including by recitation of Islamic State and extremist nasheeds.
Self-identification as a "muwahideen", a term used as an identifier by Islamic State members. In proof of those particulars, the Crown adduced evidence of the respondent's purchase of the international flight to Turkey, her detention at the airport, the records of her interviews with AFP officers, transcripts of audio files captured by listening devices and the fact of the seizure and analysis of the contents of her electronic devices. The Crown also tendered a representative sample of videos drawn from 62 video files depicting extreme violence found on the respondent's mobile phone and two representative samples of image files stored in the respondent's mobile phone. The representative sample of the video files was played to the jury. The files consisted of Islamic State propaganda containing exhortations to migrate to Islamic State and join Islamic State's jihad, as well as extreme violence, including numerous executions. The two representative samples of images also largely consisted of Islamic State and other jihadist propaganda. The Crown adduced further evidence, extracted from the respondent's electronic devices, that the respondent had engaged in Telegram "chat groups" with the Baaqiya sisters and that, in those "chat groups", the respondent used an image of an assault rifle nestled in flowers as her profile picture (as noted above, Telegram is an instant messaging service for the transmission of encrypted messages). The Crown tendered the records of each of the respondent's three interviews with AFP officers. As will be recalled, in the first of those interviews, the respondent said she was going to Turkey for a holiday and possibly to do aid work, and added that she "wasn't planning to go like into Syria". In the second, she confirmed that she had Arabic language skills, and answered questions about a document seized from her possession which bore the handwritten words "Syria" and "I love you". In the third interview, she was asked about various files found on her seized devices and her use of certain apps, including Telegram. She denied attempting to travel to join Islamic State, supporting it, or believing in its version of Islam. The Crown also adduced expert evidence from Dr Roger Shanahan about the nature and activities of Islamic State. As will be seen, the capacity of Dr Shanahan's evidence to sufficiently illuminate what may or may not amount to membership of Islamic State was a matter of contention before the Full Court and this Court. In brief substance, Dr Shanahan's testimony was that Islamic State was an organisation that saw the world in conflictual terms, as divided between Islam and the enemies of Islam. Its members followed an extreme Salafist ideology according to which it is each member's individual religious obligation to wage jihad against the enemies of Islam, with the aim of imposing strict Sharia law on the territory controlled by Islamic State, as it was then, and as it was aimed to expand through offensive global jihad and strategic alliances. Members saw themselves as literally building a state in which Islamic law would prevail, which was to be populated by believers and in which services and support would be provided to members. Hence, the Islamic State motto, "remaining and expanding". As Dr Shanahan put it: "[T]hey wanted to control and administer this rump territory that they had won by force of arms and they wanted to expand it, expand it on the ground militarily but also expand it through achieving allegiance from groups in other countries." Dr Shanahan further explained that Islamic State sought to call Muslims from abroad to come to the areas controlled by Islamic State to help build Islamic State, and sought not just fighters (jihadis) but also doctors, engineers, and women. Migration to Islamic State was conceived of as a religious duty for both men and women. The women were recruited to provide support to the jihadis, and produce and raise children in the appropriate Islamic way in order to build up Islamic State with the indoctrinated youth of the next generation. As Dr Shanahan explained, that accorded to the motto "remaining and expanding", because, "[i]f you've got children as part of your organisation, you're looking at generations of Islamic State not just the here and now". And, as he said, "if you're trying to produce the ideal Islamic society, you also want the ideal Islamic woman as well ... somebody who is ideologically attuned to creating the Islamic State". In order to communicate with its followers and attract recruits, Islamic State used social media and had "online recruiters for other women to travel to Islamic State held territory". Dr Shanahan referred to evidence that women who had found their way to Islamic State-held territory maintained social media profiles for the purposes of being contacted by and recruiting other women. Dr Shanahan further gave evidence that, although there was no template for the pledge of allegiance (bay'ah) that the respondent recited to Abu Bakr al‑Baghdadi - it is "an individual oath of allegiance" - the effect of a bay'ah is to undertake to follow the directions of the person to whom it is given, and Islamic State had asked that the bay'ah be given to Abu Bakr al-Baghdadi, as the respondent did. Dr Shanahan also explained the significance of the respondent's one-finger salute to be that the notion of "tawheed" - the unity of God - is central to Islam in general, and to Salafists in particular. "Muwahideen" are people who follow the notion of tawheed, and, although "muwahideen" is not a very common term, members of Islamic State in particular refer to themselves often as muwahideen. The one-finger salute with the right index finger upwards is imagery for identifying as a muwahideen and asserting the tawheed. Dr Shanahan stated that the Telegram app, which was found on the respondent's mobile phone, was "often used by Islamic State" as a mode of communication between members of Islamic State and as a means of publicly claiming responsibility for jihadist attacks. Dr Shanahan also referred to the significance of nasheeds. Dr Shanahan explained that they have "a traditional function" as a form of chanted Arabic poetry, but "[w]hat Islamic State has done has taken that form and turned it into another social media platform for them". On the basis of that evidence, the Crown went to the jury in closing address as follows: "In the circumstances of this organisation, the Crown says that a person can be a member without undertaking any formal process, without being on a register, without submitting themself for approval of the membership of the organisation. What the Crown [says is that] a person can be a member and is a member of [Islamic State] 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. 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 of the organisation. ... [T]he Crown says the effect of [Dr Shanahan's evidence] is that the goals - the initial, the primary aim of Islamic State was literally to build a State operating on the basis of Shariah law to gain, to hold and expand physical territory in the area of the Middle East, in particular parts of Syria and Iraq and also some surrounding areas through allegiances that it makes or receives from other organisations but primarily to take an area of land, a patch of dirt in the Middle East and say 'This is our State. It's going to operate in the way in which we want it to operate and it's going to remain and expand' and you'll recall the motto I think Dr Shanahan used, the [Islamic State] motto was 'baqiya wa tatamadad', remaining and expanding. In order to establish that State on the ground in the Middle East the leadership of Islamic State required people, it required members and obviously it required fighters, people who would come to Islamic State and fight to gain territory, fight to hold territory and it also needed other people to come. I think Dr Shanahan mentioned engineers, doctors and nurses but it also needs women ... If you're going to develop a State you need women to, according to the notions of this organisation, you need women to participate in this State, whether as wives of fighters, nurses or whatever. They need the participation of female members of Islamic State. The second part or the second arm, if you like, of the dual aims was this notion of engaging in offensive jihad and that is the sort of thing that we hear about in the West all too often, that is taking the fight to the West and the sorts of calls or exhortations that are made by the leadership to kill Westerners in the same way that Westerners were killing Muslims and you will remember the speech that Dr Shanahan referred to by a person by the name of Abu Mohammad al-Adnani where he said this, this is al-Adnani said in September 2014: 'You must strike at the West. If you can kill a disbelieving American or European, especially the filthy French or an Australian or a Canadian, or any other disbeliever from the disbelievers waging war then you should do it and kill them in any way that you could.' ... So bearing in mind those ideologies ... Let me say this: if a person who wholly embraced the ideology and aims of [Islamic State] in its development of an Islamic State in the territory it took by force and violence in Syria and Iraq actively participated in achieving those aims by going to Syria, Iraq, to assist in holding or expanding the territory by being a fighter, that person would be a member. Likewise if a woman, who agreed with and embraced the ideology and goals of [Islamic State] and the creation of the Islamic State and was a participant in those goals within the territory taken by Islamic State by, for example, marrying or supporting a fighter, or nursing fighters, or otherwise actively assisting in the creation, functioning and operation of that State, she would likewise be a member of Islamic State for the purposes of the offence that you're considering. That is what the Crown says. Now bearing in mind the expanded definition of membership, the Crown says that if a woman took steps to do just that, that is to go to Islamic State-held territory with a view to actively participating in the territorial aims of Islamic State in the way in which I've just suggested, if [s]he took steps to do that, well, for the purposes of the charge that you are considering, she would be a member of Islamic State. ... What the Crown says is that she took steps to become a member on 14 July 2014 by attempting to leave Australia with the intention of entering Islamic State territory. ... [S]he strongly and persistently identified with the view or version of Islam espoused by [Islamic State], that is the extreme right spectrum or Salafist Islamic interpretation which involves ... acting, by taking ... the sorts of measures suggested by Islamic State. That is, in the first place, by establishing its own Sharia society in Iraq and Syria ... [which] she knew ... would involve the harsh dealings with those people described as rafidah, donkeys or filth ... the Shi'a who, amongst the other opponents of [Islamic State], have borne the brunt of Islamic State's terror. Those are the ones who have been killed by this group and whose property has been possessed. ... Let me make this clear: whilst it may seem extraordinary that a person in this country could wholly embrace those ideas, the Crown says that is not enough to make her a member of Islamic State. You need more. The Crown says there is more and that is you need to act, you need to take steps. For once a person takes steps to become a member of Islamic State, then she is a member because then she moves off the sidelines and she moves onto the playing field ... In other words, she steps away from the internet, from a digital reality and she moves into real [life]. ... [T]he Crown says that once you act, you are a member of Islamic State, remembering always the other elements of the offence. The Crown says that she acted or in other words took steps to become a member of Islamic State. The most important thing, the Crown says, is that she set off to go to Turkey, to engage with terrorists with a view of lending her support to Islamic State's venture. In doing so, she became a member of Islamic State. The Crown says that you can be satisfied beyond reasonable doubt that that was her intention when she set off to the airport and walked through towards the outward Customs area, but was then stopped. ... She intended to participate in the advancement of Islamic State in Syria and Iraq and she intended and knew that she would be a member of that organisation which was carrying out the terrorist activities in the lands that we have spoken of." (emphasis added) The defence case at trial The defence did not call any evidence but argued that the jury could not exclude the reasonable possibility that the respondent intended to go to Turkey for a holiday and to do aid work, as she had told the police. As defence counsel put the argument: "So what I say to you about the prosecution theory, the Crown says that this notion of a holiday is a lie, the notion of her doing aid work is a lie, all of that sort of thing, that's said because it doesn't fit the Crown's case concept. But when you actually look at it, it sort of fits the picture of what this young lady is all about. If she were going to Istanbul to meet up with someone and then troop from Istanbul - I don't know how far it is, you would have to look at an atlas I guess, but it would certainly be more than a couple of thousand kilometres from north to south Turkey - where is the evidence that she had these contacts that the prosecution speculate that she would have had? There is not the slightest hint of evidence that she had contacts to get her across Turkey. ... If she's running off to join [Islamic State], you may well wonder - maybe not - why would she go to Turkey? On the prosecution's own case, why would this woman go to Turkey? ... [I]f she wants to join [Islamic State], and this is all a big plan and these people from Kenya [the Baaqiya sisters] are involved, why in Heaven's name isn't she going to Kenya? Why go to Turkey?" The defence also contended that many of the images which had been downloaded to the respondent's devices via the Telegram app may have downloaded automatically or were otherwise capable of innocent explanation by reference to the respondent's deeply held Islamic beliefs; there was no evidence that the respondent had disseminated or distributed any of that sort of material as opposed to merely looking at it; and the fact that "she has a group of internet friends who turn out to be active, crazy terrorists, if you like, is not actually something which advances the Crown case at all because there is no link between that terrorist act that they do on the other side of the world and the [respondent], other than they have this common internet friendship". The trial judge's summing up The trial judge gave the jury an aide memoire, or jury memorandum, settled in consultation with the prosecutor and defence counsel, setting out the elements of the alleged offence. It included the following: "'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 The term 'member of an organisation' is not here limited to what might be thought to be the usual meaning of a 'member of an organisation'; namely a clear relationship between a person and an organisation with obvious indicia such as ceremonies, official records, membership cards and the like to verify it. Rather, Parliament has laid down a more expansive 'inclusionary definition' because of the nature of these organisations. While traditionally preparatory acts are not often made into criminal offences, the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct. Parliament has here created an offence that may apply at an early stage of a person's movement towards membership, and potentially participation in the activities, of a terrorist organisation. There is no 'bright line' which enables one to say that there are sufficient characteristics of a member of an organisation present to conclude that the [respondent] 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. 'A person who has taken steps to become a member of the organisation' As to the second part of the inclusionary definition of member, namely 'a person who has taken steps to become a member of the organisation', there is a continuum along which, at a certain point, one may conclude that a person has intentionally behaved in such a way as to demonstrate that he or she intentionally 'has taken steps to become a member of the relevant organisation' within the meaning of the legal definition reproduced above. In the present case, the prosecution proceed by reference to this second part of the definition and have specified the particulars of the types of conduct upon which they rely in order to establish this element of the offence thus:

GAGELER J. I would uphold the contention of the respondent that the trial judge failed adequately to direct the jury as to the application of the evidence relied on by the prosecution to prove intentional membership of a terrorist organisation. On that basis, I would dismiss the appeal. Against the background of the evidence and procedural history recounted by the majority, I can explain my reasons quite briefly. In doing so, I adopt the nomenclature and abbreviations of the majority. Departing in some respects from the standard scheme of the general principles of criminal responsibility set out in Ch 2 of the Code, s 102.3 spells out exhaustively and compendiously the "physical elements" and "fault elements" of the offence it creates. A person commits the offence of "membership of a terrorist organisation", without more, if three specified elements of the offence are satisfied. The first element is that "the person intentionally is a member of an organisation". For that element to be satisfied, the state of affairs that the person is in fact a member of an organisation must exist, that state of affairs must be the product of an exercise of the person's will, the person must be capable of exercising control over that state of affairs, and the person must mean that state of affairs to exist. The second element is that "the organisation is a terrorist organisation". The third is that "the person knows the organisation is a terrorist organisation". The second and third of those elements were not in issue in the trial. As to the second, the character of "Islamic State" as a "terrorist organisation" was the subject of formal agreement. The agreement was that "Islamic State" met each of the two alternative limbs of the definition of "terrorist organisation" in s 102.1(1) of the Code. It was an organisation directly and indirectly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts within the meaning of para (a) of the definition. And it was the organisation specified in the Criminal Code (Terrorist Organisation - Islamic State) Regulation 2014 (Cth) for the purposes of para (b) of the definition. The second part of the agreement brought to the identification of "Islamic State" a measure of precision lacking from the first part of the agreement. That was because the Attorney-General, as the Minister administering the Code, was required by s 102.1(2) of the Code to be satisfied on reasonable grounds that the organisation to be specified was one that either directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act or advocated the doing of a terrorist act before the Governor-General was permitted to make the Regulation. The grounds for the Attorney-General's satisfaction as to both of those matters in relation to "Islamic State" were set out in a Statement of Reasons. The Statement of Reasons became an attachment to an Explanatory Statement to the Regulation which was registered on the Federal Register of Legislation maintained under the Legislation Act 2003 (Cth). The Explanatory Statement, including the Statement of Reasons, was therefore available to be considered in confirming the meaning of "Islamic State" as specified in the Regulation or in fixing that meaning to the extent that the meaning was ambiguous or obscure. The Statement of Reasons identified "Islamic State" as the "Iraq and Syria-based Sunni extremist group and former al-Qa'ida affiliate" that had originally been specified in 2005 for the purposes of para (b) of the definition of "terrorist organisation" under the Arabic name "Tanzim Qa'idat al-Jihad fi Bilad al‑Rafidayn" and that had been re-specified in 2013 for the purposes of para (b) of the definition of "terrorist organisation" under the name "Islamic State of Iraq and the Levant (ISIL)". The Statement of Reasons explained that "[o]n 29 June 2014, the group proclaimed an Islamic caliphate in areas it controls and changed its name to Dawla al-Islamiya, or the Islamic State". "The use of the name Islamic State", it explained, "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". The Statement of Reasons identified "Islamic State's current leader and proclaimed caliph" as "Ibrahim Awwad Ibrahim Ali al‑Badri ... usually known as Abu Bakr al-Baghdadi or Abu Du'a". As to the leadership of "Islamic State", the Statement of Reasons stated: "The Islamic State has a hierarchical structure, featuring an overall leadership council and provincial governments in both Iraq and Syria. Regional and specialist cells act with relative autonomy under general direction from senior leaders." Under the heading "Membership", the Statement of Reasons continued: "The Islamic State has several thousand members in Iraq, mostly young Iraqi Sunni men. Its numbers have been boosted in 2014 by its success in capturing Iraqi cities and coercing or convincing Sunni tribes to ally with the group. It has also claimed responsibility for several mass prison breaks throughout Iraq that have freed hundreds of its members, most of whom are still at large. In Syria, the Islamic State has several thousand additional members drawn from both Syrian nationals and foreign fighters. Due to the Islamic State's Iraqi origins, a large number of its Syria-based senior operatives and leadership are Iraqi nationals. Fighters in both countries are able to pass freely across the border, which is no longer recognised by the Islamic State." The agreement that the organisation specified in the Regulation as "Islamic State" was the relevant "terrorist organisation" served to frame the critical issue in the trial as to whether the respondent was "intentionally ... a member of an organisation". The issue was whether the respondent was intentionally a member of the organisation specified in the Regulation as "Islamic State", being the particular organisation described in the Explanatory Statement. The prosecution case that the respondent was intentionally a member of the terrorist organisation identified as "Islamic State" was not put on the basis of the ordinary meaning of the term "member" as applied to that organisation. The prosecution case was put rather on the basis that the respondent fell within para (b) of the extended definition of "member" in s 102.1(1) of the Code because the respondent was "a person who [had] taken steps to become a member of the organisation". The prosecution sought to rely for the taking of the requisite "steps" on the respondent having engaged in six categories of conduct, ranging from "[a]ttempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with the terrorist organisation, Islamic State" to "[s]elf-identification as 'muwahideen', a term used as an identifier by Islamic State members". Drawing on observations in Lodhi v The Queen concerning the policy adopted by the Commonwealth Parliament in enacting the Security Legislation Amendment (Terrorism) Act 2002 (Cth) to insert Pt 5.3 into the Code in the aftermath of 11 September 2001, the trial judge directed the jury in relation to para (b) of the extended definition of "member" in s 102.1(1) as follows: "While traditionally preparatory acts are not often made into criminal offences, the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct. Parliament has here created an offence that may apply at an early stage of a person's movement towards membership, and potentially participation in the activities, of a terrorist organisation." Drawing on observations in Benbrika v The Queen concerning the breadth and flexibility of the term "organisation" in the context of Pt 5.3 of the Code, the trial judge went on to direct the jury as follows: "There is no 'bright line' which enables one to say that there are sufficient characteristics of a member of an organisation present to conclude that the [respondent] 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." Those directions were not wrong. They correctly stated the law so far as they went. The problem is that they did not go far enough in identifying for the jury the factual issues that needed to be determined by the jury if it was to be satisfied beyond reasonable doubt that the respondent had intentionally taken steps to become a member of the particular organisation specified in the Regulation and described in the Explanatory Statement. The directions were insufficient in that respect to discharge the overarching responsibility of the trial judge "(1) of deciding what [were] the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues [were]". The deficiency in the directions was exacerbated by the abstracted and overbroad way in which the prosecution chose to put its case in its closing address. The prosecution put to the jury that "a person can be a member and is a member of [Islamic State] 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". From that it followed, according to the prosecution, that "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 ... that person is taking steps to become a member of the organisation". The trial judge went some way towards correcting the overreach of the prosecution submission when his Honour directed the jury that it could only find that the respondent "took steps to become a member of [Islamic State]" if it was satisfied beyond reasonable doubt that the respondent intended to travel to Turkey "in order to engage with [the] terrorist organisation Islamic State". But the direction did not go far enough. The problem that remained was a problem that lurked in the unexplicated content of the word "engage". Section 100.1(1) of the Code contains a definition of "organisation" for the purposes of Pt 5.3. The definition makes clear that an organisation is a "body" that "consists of persons". No doubt, as the prosecution argued in an earlier case, the body must be "a standing body of people with a particular purpose; not a transient group of conspirators who may come together for a single discrete criminal purpose". A "member" of an organisation in that statutory context - even an "informal member" within para (a) of the extended definition of "member" in s 102.1(1) - is necessarily a person who is identifiable by reference to objective circumstances as one of the body of persons of whom that organisation consists. A person can sympathise with or support an organisation, agreeing with and embracing the ideology and aims of the organisation and even taking steps to promote that ideology or to advance those aims, without thereby becoming identified as one of the body of persons of whom the organisation consists. Though it is true that "[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", the Commonwealth Parliament has not gone so far in enacting and maintaining Pt 5.3 of the Code as did the United Kingdom Parliament in providing in s 11 of the Terrorism Act 2000 (UK) that "[a] person commits an offence if he belongs or professes to belong to a proscribed organisation". "The scope of 'profess'", Lord Bingham of Cornhill remarked in Sheldrake v Director of Public Prosecutions, was "so uncertain that some of those liable to be convicted and punished for professing to belong to a proscribed organisation may be guilty of no conduct which could reasonably be regarded as blameworthy or such as should properly attract criminal sanctions". The offence-creating provision was held in that case to infringe the presumption of innocence guaranteed by Art 6(2) of the European Convention on Human Rights, requiring it to be "read down" in accordance with the Human Rights Act 1998 (UK). The underlying purpose of the offence of "membership of a terrorist organisation" created by s 102.3 of the Code was and remains that identified by the Parliamentary Joint Committee on Intelligence and Security in its Review of Security and Counter Terrorism Legislation conducted in 2006 under the Intelligence Services Act 2001 (Cth) following its receipt of the Report of the Security Legislation Review Committee as required by s 4 of the Security Legislation Amendment (Terrorism) Act. The purpose, as then identified by the Parliamentary Joint Committee, is "to stop people from participating in entities/organisations that engage in or promote terrorism". In my opinion, a person cannot be said to be a person who has intentionally "taken steps to become a member of the organisation" within para (b) of the extended definition of "member" in s 102.1(1) of the Code unless two conditions can be shown to have been met. The first is that the person has engaged in conduct intending that conduct to be a step in causing a state of affairs to come into existence. The second is that, were that state of affairs to come into existence, the person would be identifiable by reference to that state of affairs as one of the body of persons of whom the particular "organisation" in question consists. Adequately to identify the factual issues to be determined in order for the jury to be satisfied beyond reasonable doubt that the respondent had intentionally taken steps to become a member of the organisation identified in the Regulation as "Islamic State" therefore required more than that the trial judge instruct the jury that it needed to be satisfied beyond reasonable doubt that the respondent had attempted to travel to Turkey intending to "engage" with "Islamic State". The trial judge needed to go on to instruct the jury that it needed to consider the nature of the intended engagement with "Islamic State" and to be satisfied beyond reasonable doubt that engagement of that nature, were it to occur, would result in the respondent becoming objectively identifiable as one of the body of persons of whom the organisation identified in the Regulation and described in the Explanatory Statement consists. In the Full Court of the Supreme Court, Kourakis CJ took the view that the only evidence from which any conclusions could be drawn about the structure of "Islamic State" and about the nature of its membership was that of Dr Shanahan, whose evidence did not squarely address the place of women within its organisational structure, did not clearly distinguish the organisation from the caliphate it had proclaimed, and did not clearly distinguish supporters from members. In taking that view, his Honour appears to have given no weight to inferences available to be drawn from material shown to have been downloaded by the respondent from the internet which had been tendered by the prosecution. The prosecution appeal to this Court proceeded on the basis, uncontradicted by the respondent, that the material had been admitted into evidence at the trial without relevant restriction as to its use. The extracts from that material quoted by the majority in this Court sufficiently illustrate that it was open to the jury on the totality of the evidence to be satisfied that the respondent intended more than just to live in the "Sham" as a "Muhajirah" (immigrant girl) and there either to marry a "Mujahid" (fighter) or to act as a nurse tending to "Mujahideen" (fighters). The inference was open that she intended from the time she arrived in Turkey to pledge her allegiance to the Caliph and voluntarily to subject herself to the direction and discipline of "Islamic State" operatives. The same material also left it open to the jury to have concluded that doing so would have rendered her identifiable as one of the body of persons of whom the organisation identified in the Regulation and described in the Explanatory Statement consists. That conclusion would have been open to the jury whether or not the respondent would have been formally recognised as a member of the organisation by the leadership of the organisation, a topic on which the evidence is silent. My concern, however, is not that the evidence did not leave it open to the jury to convict but that the directions given to the jury did not adequately identify the issues of fact of which the jury needed to be satisfied beyond reasonable doubt on the evidence in order to convict. In my opinion, the directions were inadequate in consequence of which there occurred a miscarriage of justice in that the respondent was deprived of a chance of acquittal fairly open to her. The ground of appeal in s 158(1)(c) of the Criminal Procedure Act 1921 (SA) being established, the orders of the Full Court allowing the appeal against conviction and quashing the conviction must stand. The circumstance that the respondent has now served nearly the whole of the sentence imposed on her for the offence with which she was charged has the consequence that the discretion conferred by s 158(3) is in my opinion appropriately exercised to leave undisturbed the judgment and verdict of acquittal which the Full Court ordered to be entered rather than to substitute an order for a new trial.

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