What happened
Belal Saadallah Khazaal, an accredited journalist in New South Wales who contributed regularly to an Islamic affairs magazine and maintained a substantial personal library of materials on Islam, compiled an electronic book between 20 and 23 September 2003. He downloaded Arabic-language articles from the internet concerning Islam and jihad, edited and rearranged them, numbered chapters, renumbered footnotes, and inserted his own dedication, foreword and brief commentary. The finished work, entitled Provisions on the Rules of Jihad: Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels, was submitted under the pseudonym "Abu Mohamed Attawheedy" to the administrators of the Al-Maqdese website, which expert evidence linked to Al-Qaeda and which hosted publications by known terrorist leaders. After minor formatting changes the e-book was published on that site.
The e-book's introduction, written by Khazaal, stated that it had been prepared hastily in response to a request from "brothers working to support this religion" and was intended as a reference for "small cells desiring to support this religion". Khazaal expressed the hope that it would benefit those working to support the religion and concluded with a personal prayer for martyrdom, stating "I seek the Almighty's reward and I seek martyrdom for his sake. I do so running towards it not away from it." Chapters 1–9 contained religious justifications for jihad, defined as "fighting the infidels to make God's word supreme", emphasising that militant jihad involving the killing of infidels was the highest form and that it could involve attaining martyrdom. Chapter 10, headed "Reasons for Assassination", set out characteristics required of assassination team members, training requirements, stages of the assassination process, and multiple specific methods including wireless detonation, letter bombing, car booby-trapping, sniping, smothering, hammer blows and room booby-trapping. It listed targets "that should be assassinated", expressly including diplomats, ambassadors, military personnel, holders of public office of "enemy nationalities" or of Jewish, Christian, Hindu or Buddhist faiths, Arab atheists, and holders of key positions in "original countries of atheism", a list that included Australia. Chapter 13, attributed to Dr Shaikh Aymen Al Zawahry, contained further calls to violent jihad and martyrdom.
Khazaal was charged in July 2008 with the offence under s 101.5(1) of the Criminal Code (Cth) of making a document connected with assistance in a terrorist act knowing of that connection (count 1), and with attempting to incite others to engage in a terrorist act (count 2). At trial before Latham J in the Supreme Court of New South Wales the jury convicted him on count 1 but could not agree on count 2. On 25 September 2009 he was sentenced to 12 years' imprisonment with a nine-year non-parole period. He appealed against conviction and sentence. The Court of Criminal Appeal (McClellan CJ at CL, Hall and McCallum JJ) heard the appeal in October 2010. By majority (Hall and McCallum JJ, McClellan CJ at CL dissenting on the evidential burden point) the Court allowed the appeal on the fourth ground, holding that Khazaal had discharged the evidential burden under s 101.5(5) and that the trial judge had erred in not leaving that defence to the jury. The conviction was quashed and a retrial ordered. The Court unanimously dismissed the second ground and a majority dismissed the first and third grounds. No separate judgments were delivered on the sentence appeal by Hall and McCallum JJ.
The Crown sought and was granted special leave to appeal to the High Court on 7 October 2011 limited to the evidential burden issue. Khazaal filed a notice of contention asserting that the Court of Criminal Appeal majority had erred in dismissing his ground concerning the trial judge's direction on the words "connected with" in s 101.5(1)(b). On 10 August 2012 the High Court (French CJ, Gummow, Heydon, Crennan and Bell JJ) unanimously allowed the Crown appeal, set aside the Court of Criminal Appeal orders, dismissed the appeal against conviction on count 1, and remitted the sentence appeal to the Court of Criminal Appeal. The Commonwealth Director of Public Prosecutions agreed to pay Khazaal's costs in the High Court.
Why the court decided this way
The High Court decided the matter principally on the basis of the statutory text of ss 101.5 and 13.3 of the Criminal Code, read in the light of the legislative purpose of Pt 5.3. French CJ, and Gummow, Crennan and Bell JJ in their joint judgment, emphasised that s 13.3(3) places an evidential burden on a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the offence. Section 13.3(6) defines that burden as "the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist". The question whether the burden has been discharged is one of law for the trial judge (s 13.3(5)).
Both French CJ and the joint judgment held that the evidence relied upon by Khazaal—his status as an accredited journalist, his research library, his strong interest in Islam and his publication of articles on benign Islamic issues—was "entirely neutral" on the critical question of his intention in making this particular document. McClellan CJ at CL's analysis in the Court of Criminal Appeal was approved: the evidence said nothing about Khazaal's intention in compiling a work that gave concrete instructions on assassination methods, identified specific targets (including in Australia) and contained his personal endorsement and prayer for martyrdom. Evidence that is merely consistent with an innocent intention does not "suggest" a reasonable possibility that the prohibited intention was absent. The Court rejected the proposition that slender evidence of past lawful journalistic activity could raise the necessary inference when the document itself supplied powerful evidence of the opposite intention. The joint judgment noted that once Khazaal chose to rely on the content of the e-book to characterise it as "scholarly" or "educational", he could not compartmentalise favourable passages while ignoring the integrated message of the work as a whole.
On the notice of contention the Court held that the trial judge's direction was adequate. The judge had told the jury that the question whether the document was connected with assistance in a terrorist act was objective, depended upon an examination of its contents, and that the phrase had no special or technical meaning and should be interpreted according to its plain English meaning. The jury was directed that it was sufficient if they were satisfied beyond reasonable doubt that any part of the document was connected with helping or facilitating the commission of an action or threat of action against persons identified in the particulars, and that it did not matter if the document was not connected with a specific terrorist act or was connected with more than one. That direction, read with the written directions on the elements, the definition of "terrorist act" in s 100.1 and the requirement of knowledge, did not authorise conviction on an ephemeral or remote connection. The reasoning in Benbrika v The Queen on s 101.4 was distinguished because that case concerned possession of an inanimate object whose connection to a terrorist act depended on a person's purpose; here the connection was supplied by the document's own content describing terrorist acts that the jury could find were contemplated by Khazaal. The statutory context of Pt 5.3, which according to Lodhi v The Queen was intended to cast a wide net over preparatory acts, supported a construction that did not require the jury to be given a further judicial gloss on ordinary words.
Heydon J, in a separate judgment, reached the same conclusions, emphasising that the book's integrated message of instruction in assassination could not be severed into "scholarly" and "non-scholarly" parts, and that evidence of Khazaal's general professional life was neutral as to his intention on this specific occasion.
Before and after state of the law
Prior to this decision the law on evidential burdens in Commonwealth criminal law was governed by the general law principles discussed in He Kaw Teh v The Queen and by the statutory scheme inserted into the Criminal Code in 2002. The Explanatory Memorandum to the Criminal Code provisions had referred to He Kaw Teh as reflecting basic principles, although the High Court noted that the reference was only glancing. Under the general law an evidential burden is discharged if there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury to have a reasonable doubt that the defence had been negatived. Section 13.3(6) used the phrase "suggests a reasonable possibility", which the Court held was to be applied according to its ordinary meaning and required evidence capable of supporting the relevant inference.
The terrorism offences in Div 101 were enacted in 2002 against the background of the 11 September 2001 attacks and subsequent outrages. The original s 101.5(3) provided that the offence was committed even if the terrorist act did not occur. In 2005 the Anti-Terrorism Act 2005 (Cth) and the Anti-Terrorism Act (No 2) 2005 (Cth) substituted a new s 101.5(3) making clear that it was unnecessary to prove a specific terrorist act or to limit the offence to a single act. Those amendments were given retrospective operation subject to certain limitations not relevant here. Lodhi v The Queen had confirmed that the legislative policy was to create liability at an early stage of preparatory conduct.
After the decision the law is settled that, for the s 101.5(5) exception, background evidence of an accused's profession or past lawful activity will not discharge the evidential burden where that evidence is neutral and the document's content strongly indicates the prohibited intention. Trial judges must themselves decide as a matter of law whether evidence is capable of suggesting a reasonable possibility; they may not leave that question to the jury. Jury directions on "connected with" that use the statutory language and plain English meaning, and that are given in the context of directions on all elements including knowledge and the statutory definition of terrorist act, will ordinarily be sufficient. The decision reinforces that Benbrika reasoning about purpose attaching to an inanimate object does not automatically transpose to a document offence where the connection arises from the document's own instructional content. The statutory purpose of early intervention in terrorism preparatory activity continues to inform the breadth of the relational phrase.
Key passages with plain-English translation
French CJ stated: "The statutory collocation 'evidence that suggests a reasonable possibility' is not readily amenable to translation into other terms. But, applying the ordinary meaning of the words of the definition, it is sufficient for the disposition of the Crown's appeal that s 13.3(3), read with s 13.3(6), requires evidence that is at least capable of supporting the inference that the matter to which the evidential burden applies 'exists or does not exist.' Evidence which is merely consistent with or not inconsistent with such a possibility does not 'suggest' it." In plain English this means the law demands evidence that actually points towards the defence being possible, not evidence that is simply silent or compatible with it; ships passing in the night do not "suggest" anything.
McClellan CJ at CL (approved by the High Court) wrote: "The evidence to which attention was drawn was entirely neutral in relation to that issue. Whether or not [the respondent] 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 respondent] 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." This translates as: being a journalist in general does not tell us what he meant to do with this book; if the book itself screams terrorist instruction and he offers no direct evidence of a different purpose, the defence never gets off the ground.
The joint judgment adopted Spigelman CJ's statement from Lodhi v The Queen: "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." Plain English version: Parliament deliberately decided that with terrorism we cannot wait until someone has a finished plan; we criminalise the early steps so police can intervene before plots mature.
On the direction issue the Court approved the trial judge's instruction that the phrase "has no special or technical meaning. You should interpret that phrase according to its plain English meaning." Coupled with the direction that the jury must be satisfied 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", this told the jury in everyday language to look at the assassination manual and decide whether it helped or made easier the killing of the people listed in it.
What fact patterns trigger this precedent
This precedent is triggered whenever an accused is charged under s 101.5(1) or cognate provisions in Div 101 with collecting or making a document and seeks to rely on the s 101.5(5) exception. It applies with particular force where the accused points only to general character evidence—such as professional status as a journalist, academic researcher or librarian—or to a history of publishing on religious or political topics, but the document itself contains concrete instructional material on violent methods, target selection, team organisation or religious justification for terrorist acts. The case makes clear that such background evidence will be regarded as neutral and incapable of suggesting a reasonable possibility of innocent intention if the document's content supplies the contrary inference.
The decision also governs cases in which a trial judge is asked to give additional directions on the meaning of "connected with", "connected with preparation for", or like phrases in Div 101. Where the connection is said to arise from the document's own content rather than from extrinsic purpose evidence, a direction that the words bear their ordinary English meaning, that the assessment is objective, and that the jury must be satisfied beyond reasonable doubt of a connection to helping or facilitating an action or threat of action of the kind charged, will usually suffice. The precedent is engaged whenever the prosecution relies on s 101.5(3) to prove the offence without identifying a specific terrorist act or limiting the charge to a single act.
Fact patterns that fall outside the precedent include those in which the accused gives direct evidence of intention, calls expert evidence that the document is purely scholarly, or produces evidence that the document was prepared for a government or law-enforcement counter-terrorism purpose. The decision leaves open what degree of connection is required in cases involving inert objects rather than instructional documents.
How later courts have treated it
Within the judgment itself the High Court treated the Court of Criminal Appeal's majority reasoning as erroneous on the evidential burden point and upheld McClellan CJ at CL's dissenting analysis. The Court expressly approved McClellan CJ at CL's conclusion that the evidence was "entirely neutral" and that, without evidence from Khazaal or other material from which his intention could be inferred, the evidential burden could not be discharged. The reasoning in Benbrika v The Queen was carefully distinguished rather than overruled; the High Court accepted that the Victorian Court of Appeal's insistence on a person's purpose attaching to an inanimate object was appropriate on the facts of that possession case but had no direct application to a document whose connection arose from its instructional content. Lodhi v The Queen was treated as correctly stating the legislative purpose of Pt 5.3 and its passage on the early stage at which liability arises was adopted without criticism. The glancing reference to He Kaw Teh v The Queen in the Explanatory Memorandum was noted but the Court insisted that the text of s 13.3(6) must prevail.
The decision reinforces the statutory allocation of functions: the trial judge decides as a matter of law whether the evidential burden is satisfied; the jury decides questions of fact only after that threshold is crossed. Later courts are therefore bound to treat general character or professional-status evidence as insufficient where it does not logically support an inference about the accused's intention in respect of the particular document. The High Court's emphasis on reading the direction on "connected with" in the context of all other directions on elements, knowledge and the definition of terrorist act means that appeals alleging misdirection will succeed only where the summing-up, read as a whole, leaves open the real possibility that the jury convicted on a merely remote or tenuous link.
Still-open questions
The joint judgment expressly left open whether the phrase "reasonable possibility" in s 13.3(6) excludes evidence that suggests no more than a "mere possibility" or "bare possibility". That question awaits a case in which the evidence is so thin that the distinction matters. The Court did not decide the precise degree of connection required in circumstances where the document is not itself instructional but is said to be connected with assistance in a terrorist act by extrinsic evidence of a person's purpose. Although the decision distinguishes Benbrika, the boundaries of that distinction in hybrid cases remain to be worked out.
It remains open whether evidence of concurrent intentions—one lawful, one unlawful—could ever discharge the evidential burden. The prosecution had submitted that pointing to a non-proscribed purpose was required; the Court did not need to decide whether an accused must negate the proscribed purpose or merely point to some evidence of another purpose. The interaction between the fault element of knowledge in s 101.5(1)(c) and the s 101.5(5) exception also received only limited treatment. French CJ noted the trial judge's observation that the respondent's argument appeared to put the Crown to proof on a fault element that did not form part of the offence, but the point was not determinative.
Finally, the precise content of a direction that would be required in a case where the document is ambiguous or the connection is said to arise from the accused's later conduct rather than the document's face was not settled. The High Court emphasised that relational terms are ambulatory and should not be comprehensively defined beyond the needs of the instant case; that caution leaves scope for argument in future matters involving different statutory phrasing or different factual matrices.