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[2012] HCA 26
appellant. Appeal allowed. Orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 9 June 2011 set aside and in place thereof the appeal against conviction on count 1 dismissed....
The High Court held that Mr Khazaal's general background as a journalist and researcher into Islamic topics was not enough to raise the statutory defence that he did not intend his compiled e-book to help anyone commit or prepare a terrorist act. The book contained explicit instructions on how to assassinate people, lists of targets (including in Australia) and the respondent's own foreword seeking martyrdom; that content meant his background evidence was neutral and could not suggest a reasonable possibility of innocent intention. The trial judge had correctly decided this as a matter of law and had not been required to let the jury consider the defence. The Court also ruled that the jury instructions on whether the book was 'connected with' assistance in a terrorist act were sufficient: the phrase has its ordinary everyday meaning and the judge properly told the jury to look at the book's contents objectively. The Victorian decision in Benbrika on a similar but different section was distinguished because here the connection came from the document's own detailed terrorist instructions rather than an inert object. The conviction was restored, the appeal against conviction dismissed and the sentence appeal sent back to the Court of Criminal Appeal.
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2 cited instruments linked from this judgment.
3,148 words · generated 24/04/2026
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.
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.
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.
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.
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.
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.
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.
The Queen v Khazaal [2012] HCA 26 10 August 2012 S344/2011
On appeal from the Supreme Court of New South Wales
P W Neil SC with S G Callan for the appellant (instructed by Commonwealth Director of Public Prosecutions)
P D Lange with C C Waterstreet for the respondent (instructed by Lawyers Corp Pty Limited)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Criminal law - Terrorism - Collecting or making documents likely to facilitate terrorist acts - Jury misdirection - Respondent convicted of making document "connected with ... assistance in a terrorist act", knowing of that connection, contrary to s 101.5(1) of Criminal Code (Cth) ("Code") - Trial judge directed jury that words "connected with ... assistance in a terrorist act" had no special or technical meaning - Whether trial judge misdirected jury.
Criminal law - Terrorism - Collecting or making documents likely to facilitate terrorist acts - Exception to liability - Evidential burden - Section 101.5(5) of Code created exception to liability under s 101.5(1) if making of document "not intended to facilitate ... assistance in a terrorist act" - Respondent bore evidential burden under s 101.5(5), as defined in s 13.3(6) - Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in a terrorist act.
Words and phrases - "connected with", "evidential burden".
FRENCH CJ. Introduction Belal Saadallah Khazaal ("the respondent") was convicted on 10 September 2008 of an offence against s 101.5(1) of the Criminal Code (Cth) ("the Code") namely that he "did make a document connected with assistance in a terrorist act knowing of that connection." He was sentenced to 12 years' imprisonment dating from 31 August 2008 with a nine year non-parole period expiring on 31 August 2017. The Court of Criminal Appeal of New South Wales (McClellan CJ at CL, Hall and McCallum JJ) heard his appeal against conviction and sentence on 6 October 2010 and on 9 June 2011, by majority, allowed the appeal, quashed the conviction and directed a retrial. The document the subject of the indictment was an electronic book entitled Provisions on the Rules of Jihad: Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels ("the book"). It was the Crown's case that the respondent selected, compiled and edited downloaded material from the Internet and added his own text to it by way of a dedication and foreword. His conduct in so doing was said to constitute intentionally "making a document" for the purposes of s 101.5(1) of the Code. The book included advice on techniques of assassination and listed categories of targets for assassination, including holders of public office in a number of countries, one of which was Australia. A more detailed account of the content of the book and other evidence relevant to this appeal appears in the joint judgment. The appeal was allowed by the Court of Criminal Appeal on the basis that the trial judge erred in declining to leave to the jury the defence, under s 101.5(5) of the Code, that "the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act." The point of difference between the trial judge and the majority in the Court of Criminal Appeal was on the question whether the respondent had discharged the evidential burden necessary to invoke the defence. On 7 October 2011, Gummow, Hayne and Bell JJ granted the Crown special leave to appeal to this Court from the decision of the Court of Criminal Appeal. For the reasons that follow the appeal should be allowed. The issues The two issues for determination in this appeal were:
GUMMOW, CRENNAN AND BELL JJ. In September 2003, the respondent, Belal Saadallah Khazaal, compiled and edited an electronic book entitled "Provisions on the Rules of Jihad" and sub-titled "Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels" ("the e-book"), which comprised material concerning Islam and jihad that the respondent had downloaded from the internet, together with a dedication, foreword and other short passages written by the respondent. In July 2008, the respondent was charged in relation to the e‑book under s 101.5 of the Criminal Code (Cth) ("the Code") with making a document connected with assistance in a terrorist act, knowing of that connection (count 1). He was also charged under ss 11.1 and 11.4 of the Code with attempting to incite the commission by others of the offence of engaging in a terrorist act contrary to s 101.1(1) of the Code (count 2). The respondent stood trial before Latham J ("the trial judge") in the Supreme Court of New South Wales in August and September 2008. On 10 September 2008, the jury found the respondent guilty of the offence charged in count 1, but was unable to reach a verdict in relation to count 2. On 25 September 2009, the trial judge sentenced the respondent to 12 years' imprisonment, with a non-parole period of 9 years. The respondent appealed against his conviction on four grounds. By majority (Hall and McCallum JJ; McClellan CJ at CL dissenting), the Court of Criminal Appeal of the Supreme Court of New South Wales upheld the respondent's fourth ground of appeal, quashed the conviction and ordered a new trial. However, the Court of Criminal Appeal unanimously dismissed the respondent's second ground of appeal, and a majority (McClellan CJ at CL and McCallum J; Hall J dissenting) dismissed the respondent's first and third grounds of appeal. The respondent also appealed against his sentence. Neither Hall J nor McCallum J gave judgment in respect of the respondent's appeal against sentence. On 7 October 2011, a panel constituted by Gummow, Hayne and Bell JJ granted the prosecution special leave to appeal to this Court in relation to the fourth ground argued before the Court of Criminal Appeal. The prosecution contends that the majority of the Court of Criminal Appeal erred in holding that the respondent had discharged the evidential burden imposed on him in relation to the exception to liability in s 101.5(5) of the Code. By notice of contention filed 26 October 2011, referring to the third ground of appeal advanced before the Court of Criminal Appeal, the respondent contends that the majority of the Court of Criminal Appeal erred in holding that the trial judge was not required to give specific directions to the jury in relation to the meaning of the words "connected with" in s 101.5(1)(b) of the Code. For the reasons which follow, the appeal should be upheld and the notice of contention should be dismissed. The prosecution has agreed to pay the respondent's costs of the proceeding in this Court. The statutory framework Part 5.3 of the Code, which was introduced in July 2002, deals with terrorism. The context in which Parliament enacted, and later amended, Pt 5.3 of the Code included terrorist attacks in the United States of America on 11 September 2001 and subsequent major terrorist attacks in Bali, Madrid, Jakarta and London. This context was acknowledged by several members of this Court in Thomas v Mowbray, and in a joint judgment two members of the majority said of those incidents: "[M]any of these attacks on major urban targets were carried out by persons with some training and skills in handling explosives and a willingness to die in the course of the attack. Many such attacks have been explained, by those claiming responsibility for them, by reference to jihad, a term encompassing bellicosity, based at least in part on religious considerations, the use of which is not confined to a single nation state." Section 100.1 of the Code defines a "terrorist act", and provides relevantly: "(1) In this Part: … terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) ... (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. ..." Section 3.1(1) of the Code stipulates that an offence consists of physical elements and fault elements. Section 101.5 of the Code creates the offence with which the respondent was charged in count 1. Relevantly, s 101.5(1) creates the offence, s 101.5(3) clarifies the scope of the offence, and s 101.5(5) provides for an exception to liability for the offence, upon which the respondent sought to rely: "(1) A person commits an offence if: (a) the person collects or makes a document; and (b) the document is connected with ... assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b). Penalty: Imprisonment for 15 years. … (3) A person commits an offence under subsection (1) ... even if: (a) a terrorist act does not occur; or (b) the document is not connected with ... assistance in a specific terrorist act; or (c) the document is connected with ... assistance in more than one terrorist act. … (5) [Subsection] (1) ... [does] not apply if the collection or making of the document was not intended to facilitate ... assistance in a terrorist act." It should be noted that ss 101.5(3)(b) and (c) were introduced to the Code in November 2005. However, the other provisions of s 101.5, being those immediately relevant to the appeal and notice of contention, are in the form they took at the time of the offence charged in count 1 of the indictment, namely between 20 and 23 September 2003. The offence-creating provision (s 101.5(1)) and the exception-creating provision (s 101.5(5)) depend on the definition of "terrorist act", and the reference to "action" in that definition (s 100.1). Further, the provisions, in particular s 101.5(3), show that the purpose of the legislation is to create an offence under s 101.5 even if a terrorist act does not occur. Section 13.3 of the Code provides relevantly: "(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only. (2) ... (3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence. (4) 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. (5) The question whether an evidential burden has been discharged is one of law. (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." The indictment dated 3 July 2008 set out count 1 against the respondent as follows: "Between about 20 September 2003 and 23 September 2003 at Sydney, New South Wales and elsewhere in the world [the respondent] did make a document connected with assistance in a terrorist act knowing of that connection." Paragraph 1.1 of the particulars for count 1 identified the document which was the subject of count 1 as the e-book. The terrorist act particularised in par 1.2 of the particulars was "an action or threat of action [done or threatened] against any one or more of a number of persons identified in the document including diplomats, military personnel and holders of public office". The intention particularised in pars 1.2(a) and (b) was framed in terms of pars (b) and (c) of the definition of "terrorist act" in s 100.1 of the Code, and the action, or threat of action, was framed in terms of ss 100.1(2)(a) to (e) of the Code. The evidence at trial It was not disputed at trial that the respondent had made the e-book, or that he had intended to do so. The respondent made the e-book between 20 and 23 September 2003 by downloading from the internet various articles written in Arabic concerning Islam and jihad, editing and rearranging them, and inserting a dedication, introduction and other brief commentary of his own. Shortly after creating the e-book, the respondent submitted it to the administrators of the "Al-Maqdese" website under the pseudonym "Abu Mohamed Attawheedy", and, after some final formatting changes, it was published on that website. There was some dispute at trial about the nature of the "Al-Maqdese" website. An expert witness called by the prosecution gave evidence that the website was linked to the terrorist group Al-Qaeda, and that it contained a number of publications by leaders of known terrorist organisations. An expert witness called by the respondent gave evidence that the website contained benign material on Islamic issues. An English translation of the e‑book was tendered during the prosecution case. The introduction to the e-book, which (unlike the various chapters) had been written by the respondent, contained the following passage: "This is but a short message I hastily prepared in response to a request from brothers working to support this religion. I was requested to prepare it, in this fashion, to serve as a reference to all brothers or small cells desiring to support this religion. With God's help I set on its compilation and I completed it in few days. I am however convinced that had I sufficient time and had I been settled in my residence I would have produced a better job than this work which has been conceived in haste. However, better 'haste' than never. I pray to the Almighty that this essay would be of benefit to everyone working to support this religion. I seek the Almighty's reward and I seek martyrdom for his sake. I do so running towards it not away from it. I beseech my brothers who read this message to pray that I may attain martyrdom." Chapters 1-9 of the e‑book contained justifications for jihad emanating from religious sources. Jihad was defined as meaning "fighting the infidels to make God's word supreme." The recurrent themes in this part of the e‑book were that jihad is a religious duty, that militant jihad (that is, the killing of "infidels"), is the best form of jihad, and that jihad may involve attaining "martyrdom". Among other things, Ch 10 of the e-book (entitled "Reasons for Assassination") included commentary on: important characteristics for members of an assassination team; training members of an assassination team; stages of the assassination process; various methods of assassination, including wireless detonation, letter bombing, booby trapping or detonating a car, sniping, smothering, hitting with a hammer and booby trapping a room; and targets "that should be assassinated". The targets listed in Ch 10 included persons holding various public offices, including "diplomats, ambassadors and the military", of "enemy nationalities" or of the Jewish, Christian, Hindu and Buddhist religions, a group called "Arab atheists", and "[h]olders of key positions" in "original countries of atheism", the list of which included Australia. Chapter 13 (entitled "The Last Word"), which the respondent attributed to "Dr Shaikh Aymen Al Zawahry", contained a number of passages promoting violent jihad and martyrdom. Expert evidence was given at trial that the term "jihad" had a positive meaning in ordinary Arabic but that the term had acquired a much more sinister meaning in contemporary times. The respondent was an accredited journalist with a journalist's card in New South Wales, and contributed regularly to an Islamic affairs magazine called "Nida ul-Islam" (in English, "The Call of Islam"). This magazine was published by the Islamic Youth Movement, and was freely available to the public. The respondent was largely responsible for its content. The respondent also had a large personal collection of materials relating to Islam, referred to at trial as a library, which included documents, tapes and videos, and which was kept in the respondent's home office, from where he compiled the e‑book. The respondent did not give evidence at trial. What was essentially in dispute before the trial judge was not the body of evidence described above but rather the inferences to be drawn from it. At issue in this Court are two sets of directions requested by counsel for the respondent which the trial judge declined to give to the jury. These directions became the subject of the fourth and third grounds of appeal argued before the Court of Criminal Appeal, and are now the subject of the prosecution's appeal and the respondent's notice of contention in this Court respectively. These reasons deal first with the appeal, and then turn to the notice of contention. The appeal: "evidential burden" Counsel for the respondent sought a direction from the trial judge in the following terms: "[I]n the event that the jury are satisfied beyond reasonable doubt of the essential ingredients of the offence, the summing up should contain a direction to the jury that if there is a reasonable possibility that the accused did not make the [e‑book] with the intention of facilitating assistance in a terrorist act, then they must be satisfied beyond reasonable doubt that the making of the [e‑book] was intended to facilitate assistance in a terrorist act." Counsel for the respondent submitted that the direction was necessary because sufficient evidence had been adduced at trial to discharge the evidential burden imposed on the respondent in relation to the exception from liability in s 101.5(5) of the Code. In particular, it was argued that the respondent's status as an accredited journalist and researcher with an academic interest in Islam, and the circumstances in which he made the e-book (at short notice, at the behest of "the brothers"), were sufficient to suggest the "reasonable possibility" required by s 13.3(6) of the Code that, in making the e‑book, the respondent did not intend to facilitate assistance in a terrorist act. Counsel for the respondent claimed that the respondent intended, by lawful means, "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." The prosecution resisted this submission. The trial judge rejected the respondent's argument and determined that the exception from liability in s 101.5(5) did not arise for consideration by the jury. In so concluding, her Honour considered the text of ss 13.3 and 101.5(5), and placed some emphasis on the fact that the words "the matter" in s 13.3 referred to "an exception, exemption, excuse, qualification or justification" and not to a fault element. Having concluded that s 101.5(5) was not engaged, her Honour went on to say: "but if I am wrong in that regard, I fail to see how the accused has discharged the evidentiary burden placed upon him by the Code." In the Court of Criminal Appeal, Hall J described the evidence said by the respondent to discharge the evidential burden in relation to the exception from liability in s 101.5(5) as follows: the respondent was "a career journalist, a researcher and a publisher", he had "acquired and built up a library which was used as his research facility", he "had a strong interest in the Islamic religion" and "had written and published articles on a range of issues, in particular, on benign Islamic issues." Hall J concluded that the trial judge erred in determining that the respondent had failed to discharge the evidential burden because the abovementioned evidence suggested (in the sense of placing or bringing forward a proposition for consideration) the "reasonable possibility" that the appellant acted as a professional journalist with an intention that was not one to facilitate assistance in a terrorist act. In substance, McCallum J agreed with Hall J. In dissent in relation to this ground, McClellan CJ at CL held that the abovementioned evidence did not discharge the evidential burden and said: "To discharge that burden the [respondent] 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 [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." (Emphasis omitted.)
The issue raised by the prosecution in this Court is whether the majority of the Court of Criminal Appeal erred in finding that, at the close of evidence at the trial, the evidence suggested a reasonable possibility - sufficient to discharge the evidential burden imposed on the respondent in relation to s 101.5(5) of the Code - that the making of the e‑book by the respondent was not intended to facilitate assistance in a terrorist act. The prosecution relied on the contents of the e-book - especially Ch 10, which contained information and instructions for assassination and other violent acts in the cause of jihad, depicted as a means of advancing the respondent's religion. The prosecution contended that the contents of the e‑book were personally endorsed by the respondent. It was further contended that an intention to support one's religion does not engage s 101.5(5) where the acts supported constitute a terrorism offence or where the religion is relied upon as justifying the commission of terrorist acts. The respondent characterised s 105.5(5) as providing an affirmative defence, and relied on Braysich v The Queen to support the proposition that caution should be adopted before preventing a person in the position of the respondent from relying on an affirmative defence, and that the evidence must be taken at its most favourable to an accused in determining the availability of a defence. The respondent also relied on the use of the word "suggests" in s 13.3(6), and several authorities, to support the proposition that "slender evidence" might suffice to discharge an evidential burden which, like the evidential burden imposed in relation to s 101.5(5), is imposed in relation to a negative state of affairs. The respondent further submitted that the evidence that the respondent had acted lawfully in the past as a professional journalist interested in Islam constituted evidence which was capable of raising an inference that the respondent's action in making the e‑book was part of lawful or normal journalistic activity on his part, and that the e‑book itself should not be relied on to deny the engagement of s 101.5(5). It was agreed by the respondent that the e‑book was crucial evidence, but the respondent put a different complexion on the e‑book from that put upon it by the prosecution: the e‑book was said to contain "scholarly pieces of work" and to be educational. There was no dispute about well established principles for evaluating a trial judge's directions on so much of the law as the jury must understand to decide the case by reference to the real issues plainly arising from the evidence. The dispute was narrowly confined: was the evidential burden (as defined in s 13.3(6)) discharged in respect of the respondent's reliance on s 101.5(5) so as to require a direction from the trial judge in the terms proposed by the respondent? It may be accepted that the respondent was right to contend that the operative words in s 13.3(6), "adducing or pointing to evidence that suggests a reasonable possibility" in relation to the relevant negative state of affairs in s 101.5(5) required no more than slender evidence. The prosecution did not disagree. It may also be accepted that, for the purposes of establishing whether the evidential burden (as defined in s 13.3(6)) has been discharged, the evidence may be taken at its most favourable to the accused. In Braysich, evidence of good character upon which an appellant sought to rely in contending that he had discharged an evidential burden in relation to a statutory defence turning on honesty had been excluded from consideration. Here, there had been no exclusion of any evidence relied upon by the respondent to support his contention that his making of the e‑book was not intended to facilitate assistance in a terrorist act. In the absence of any evidence of his intention in making the e‑book, the evidence that the respondent had acted lawfully in the past as an accredited journalist interested in Islam, and had published material about Islam, was incapable of supporting or raising an inference that the respondent's making of the e‑book was a lawful activity not intended to facilitate the terrorist act particularised in the indictment in relation to count 1. Such evidence said nothing about the respondent's situation in making the e-book. As to submissions that the e‑book was scholarly or educational, the e‑book contained information and instructions to any possessor and others in methods of assassination of identified persons described therein as "targets". For that reason, the e‑book was incapable of raising or supporting an inference that the respondent's intention in making the e‑book was lawful, scholarly, or educational in the sense of making or compiling an inoffensive reference work. None of the evidence relied on by the respondent to discharge the evidential burden in respect of s 101.5(5) suggested a possibility that the respondent's making of the e-book was not intended to facilitate assistance in the terrorist act for which the e‑book provided information and instructions. This renders it unnecessary to determine whether the phrase "reasonable possibility", as it appears in s 13.3(6), excludes evidence which suggests no more than a "mere possibility" or a "bare possibility". That question is better left until facts before this Court require the question to be determined. In the absence of evidence on the question of the respondent's intention in the making of the e‑book, there was no error in the trial judge's refusal to give the direction sought by the respondent. The notice of contention: "connected with" Counsel for the respondent sought a direction from the trial judge in relation to the words "connected with" in s 101.5(1)(b) of the Code in the following terms: "The words 'connected with' mean that the [e-book] must itself have been capable of directly assisting in the commission of a terrorist act. A mere remote connection will not suffice." The trial judge declined to direct the jury in those terms, and instead directed the jury as follows:
"So, let me go then to element (c)[]. You will see that the focus of this element is on the connection between the document, that is 'Provisions on the Rules of Jihad', exhibit G, 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, more accurately the contents of the document, connected with assistance in a terrorist act? The phrase 'connected with assistance in an action or threat of action' has no special or technical meaning. You should interpret that phrase according to its plain English meaning. 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." The respondent's position on this aspect of the case changed before the Court of Criminal Appeal. The respondent first argued that the jury should have been directed that the e-book must have factually and appreciably furthered the commission of a terrorist act, making it "more likely" to take place, before the necessary connection could exist. Then, in supplementary written submissions, the respondent modified his position, contending only that the jury should have been directed that more than a remote connection was required. In advancing the relevant ground of appeal before the Court of Criminal Appeal, the respondent sought to rely on the decision of the Court of Appeal of the Supreme Court of Victoria in Benbrika v The Queen, in which the Court of Appeal (Maxwell P, Nettle and Weinberg JJA) considered appeals by two men against convictions under s 101.4(1) of the Code for possessing "a thing … connected with preparation for … a terrorist act", which led the Court to consider the words "the thing is connected with preparation for ... a terrorist act" as they occur in s 101.4(1). McClellan CJ at CL dismissed this ground of appeal, holding that the trial judge's direction was appropriate. His Honour distinguished Benbrika, and was right to do so. In concluding that this ground of appeal should be dismissed, McClellan CJ at CL stated that the relevant connection in relation to the e-book 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 … [T]his 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 [respondent] … Proof of a specific terrorist act was not required." McCallum J also dismissed this ground of appeal and held that the trial judge had directed the jury appropriately, but adopted a different path of reasoning. Her Honour declined to apply Benbrika on the basis that analogous application of the reasoning in Benbrika concerning s 101.4(1)(b) of the Code to s 101.5(1)(b) would erroneously import a fault element into the physical element of the s 101.5(1) offence. In dissent in relation to this ground of appeal, Hall J held that the ordinary meaning of the phrase "connected with" is inappropriately broad in the context of s 101.5(1)(b), and that reasoning analogous to that which applied in Benbrika must apply in determining whether the requisite connection for s 101.5(1)(b) exists. Hall J went on to hold that the trial judge's direction was erroneous. The essential issues raised by the respondent on the notice of contention in this Court were whether the trial judge had erred in refusing to direct in the terms sought by the respondent and whether the direction of the trial judge to the jury in relation to the second element of the offence (namely, the required connection) was adequate. The submissions made in this Court were not substantially different from those made before the Court of Criminal Appeal. The issues raised by the respondent's notice of contention are not to be resolved by considering whether the reasoning of the Court of Appeal of the Supreme of Victoria in Benbrika, on a different section of the Code, should be applied by analogy to s 101.5(1)(b). Rather, the issues are to be resolved by a close examination of the trial judge's directions. First, the trial judge correctly stated that whether the prosecution had proven the second element of the offence in count 1 depended on the contents of the e‑book. Because the e‑book contained information and instructions to possessors and others in methods of assassination of identified persons described in the e‑book as "targets", on any view the e‑book had an obvious and direct connection with assistance in the terrorist act particularised in the indictment. The jury was not directed or encouraged to act on what the respondent described as a "mere remote or tenuous connection" between the e‑book and assistance in the terrorist act particularised in par 1.2 of the indictment. Secondly, it is plain from the direction complained about that the trial judge gave that direction in the context that the jury had already been provided with a written direction about the elements of the offence in count 1. That written direction included direction about the respondent's knowledge, expressed as awareness of the required connection, at the time of the making of the e‑book. That written direction also referred the jury to another written direction on the meaning of the term "terrorist act" as it is dealt with in the legislation. No complaint was made by the respondent in respect of either of those written directions, without which the direction complained about cannot be considered properly. Thirdly, contrary to the way in which the relevant ground of appeal was framed in the Court of Criminal Appeal and addressed in this Court in the notice of contention, the trial judge did not confine her direction in relation to the second element of the offence in count 1 to the words "connected with", but directed the jury in terms of the whole collocation relevant to the respondent, namely the words "connected with assistance in an action or threat of action", reflecting the particulars in par 1.2 of the indictment, to which reference has already been made. Fourthly, the trial judge explained to the jury that her reference to "an action or threat of action" was a reference to an action or threat of action of "the kind specified in the charge". Fifthly, the trial judge told the members of the jury that if they were satisfied beyond reasonable doubt that any part of the e‑book was "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." In respect of the jury's tasks, including the task of deciding whether the prosecution had proved the second element of the offence in count 1, the trial judge's direction was adequate. Moreover, no error has been demonstrated in the trial judge's refusal to direct the jury in the terms sought by the respondent. Conclusions The appeal must be upheld because the evidential burden in respect of the exception from liability in s 101.5(5) of the Code was not discharged. The notice of contention must be dismissed because the trial judge's direction, of which the respondent complained, was adequate and no error was shown in the trial judge's refusal to direct as suggested by the respondent. Orders The following orders should be made:
HEYDON J. This appeal raises two issues concerning the Criminal Code (Cth) ("the Code"). Evidential burden The facts giving rise to the first issue are as follows. The respondent intentionally made a document by preparing an electronic book. That conduct fell within s 101.5(1)(a) of the Code. The book was entitled "Provisions on the Rules of Jihad". It was sub-titled "Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels". It advocated the widespread use of assassination. It described numerous methods of carrying out assassinations. The respondent downloaded the material for the book from the internet, reordered it into chapters, edited parts of it, renumbered the footnotes, inserted a dedication and provided a foreword. He published the book on a website connected to al-Qaeda. The website contained other publications written by leaders of known terrorist groups. The first issue is whether the making of the book "was not intended to facilitate … assistance in a terrorist act" within the meaning of s 101.5(5) of the Code. Section 101.5(5) is an "exception" to the offence charged. It therefore placed an evidential burden on the respondent within the meaning of s 13.3(3) of the Code. By reason of s 13.3(6) of the Code, that was a "burden of adducing or pointing to evidence that suggests a reasonable possibility" that the respondent did not intend to facilitate assistance in a terrorist act. The trial judge held that the respondent had failed to discharge that evidential burden. Hence her Honour declined to direct the jury that the prosecution bore a legal burden of proving beyond reasonable doubt that the respondent intended to facilitate assistance in a terrorist act. A standard method of establishing a person's intention, or of suggesting a reasonable possibility about that intention, is testimony by that person. But it is not the only method. For example, a person's intention can be inferred from that person's conduct. Indeed, at common law, the placing of an evidential burden on an accused person does not require that accused to meet it by giving or calling evidence. The accused person can meet it by pointing to evidence called in the prosecution case. That evidence might be the testimony of prosecution witnesses in chief or in re-examination, the testimony of prosecution witnesses in cross-examination, or some other evidence. Section 13.3(4) of the Code corresponds with the common law position. The respondent did not give evidence. But he was entitled to attempt, as he did, to discharge the evidential burden by pointing to evidence that the prosecution had adduced. The respondent's decision only to rely on evidence that the prosecution had adduced, however, led to a self-inflicted problem. The s 101.5(5) exception demands that an accused point to evidence of a negative. In relation to legal burdens of proof, Gulson said: "Negative evidence … is always in some sort circumstantial or indirect, and the difficulty of proving the negative lies in discovering a fact or series of facts inconsistent with the fact which we are seeking to disprove, from which it may be possible to infer its absence with anything like an approach to certainty." That observation does not hold for a negative fact like not possessing a particular intention. It does not hold because non-circumstantial and direct evidence could be called. Similarly, in discharging the evidential burden, the respondent was not confined to circumstantial or indirect evidence. But once the respondent chose not to give evidence, he was left only with circumstantial and indirect evidence to appeal to. That exposed him to a variant of the Gulson problem. Did the respondent discharge the evidential burden? In answering that question, it is desirable to assume without deciding that two of the respondent's submissions to this Court are correct. One is that evidence which satisfies the s 13.3(3) evidential burden can be slender. The second is that the evidence relied on should be taken at its highest in favour of the respondent. An aspect of this second assumption is that the test stated in relation to a different statutory enactment in Braysich v The Queen applies to s 101.5(5). The second assumption would ordinarily require that in this case significant matters be put to one side - the book's content, style and tone. The inferences to be drawn from those matters would have been extremely damaging to the respondent's case had the trial judge left the s 101.5(5) exception to the jury. But as they favour the prosecution, they would ordinarily not count against the respondent in deciding whether he had discharged his evidential burden. The Chief Judge at Common Law reached a conclusion adverse to the respondent. The respondent criticised that conclusion as "curtly expressed". The prosecution called it "pithily" expressed. It was certainly trenchantly expressed. It was also correct. So was the trial judge's conclusion. One member of the majority was McCallum J. Her Honour said that the hypothesis which the respondent wished to advance to the jury was that the book was: "not a terrorist manual, but rather a collection of works on the topic of jihad, published over many centuries, some controversial, others not, some by authors of great repute, and some in a form of Arabic which would not today be readily comprehensible to an ordinary Arabic speaker." McCallum J accepted the respondent's submissions. Her Honour concluded: "There was ample evidence from which a jury could conclude that the [respondent's] intention was to support his religion by preparing and publishing a properly-sourced collection of writings including religious rulings and other pieces condoning, and indeed encouraging, the ritual of assassination. Was the unequivocal purpose of doing so to facilitate assistance in a terrorist act? I think there was a reasonable possibility suggested by the evidence that the book was not intended by the [respondent] for that particular purpose." The respondent adopted that reasoning in this Court. He referred to the book's "scholarly" characteristics. He relied on its capacity to assist in "education". The respondent identified particular parts of the book as favourable to his case. And he submitted that other parts not favourable to his case ought be ignored. The respondent thus sourced his arguments in the book itself. That made them dangerous. The arguments attempted to meet the prosecution's contention that the respondent had an intention to facilitate assistance in a terrorist act by contending that he had a different intention which could be inferred from the book on its face. The argument involved abandoning the "second assumption" described above that the defence evidence be taken at its highest and aspects of the evidence favourable to the appellant be ignored. The respondent's argument that an intention can be inferred from the book's contents that is different from an intention to facilitate assistance in a terrorist act is to call attention to the entirety of the book's contents. It is to require the Court to examine the book as a whole. The book was not divisible into two parts, one consisting of favourable points to be relied on, the other consisting of unfavourable points to be ignored. The parts which were superficially favourable did not in fact support the respondent, because the book conveyed a single integrated message. It identified numerous people as meriting assassination. It identified many methods of assassination. And it endorsed their execution. The book promoted aims and techniques characteristic of terrorism. Once its contents are examined as a whole, it contains no material suggesting a reasonable possibility that a person who assembled and disseminated the book, as the respondent did, assembled it with some intention other than an intention to facilitate assistance in a terrorist act. The respondent's argument that there was a reasonable possibility that he had an intention to promote scholarship and education must fail. It must fail because the type of "education" and "scholarship" that the book promotes does not indicate a reasonable possibility that making the book was not intended to facilitate assistance in a terrorist act involving assassination. For example, as counsel for the respondent conceded in oral argument, the type of "education" and "scholarship" on jihad that the book supplied was instruction on who should be assassinated and how. Similarly, an intention to support a religion which, in the respondent's perception, encourages assassination does not indicate a reasonable possibility that making the book was not intended to facilitate assistance in a terrorist act involving assassination. A reasonable possibility of that type cannot exist where it is a tenet of the religion, in the respondent's perception, that terrorist acts be committed. In short, the tactics of the respondent legitimated the prosecution's extensive reliance on the book's contents. That reliance collided with the "second assumption". It destroyed the advantages which the second assumption gave the respondent. The manner in which the respondent used some parts of the book's contents to attempt to show that the evidential burden was discharged disabled him from claiming the advantages of the "second assumption". Hall J, the other member of the majority in the Court of Criminal Appeal, accepted a different argument of the respondent designed to show that he had met his evidential burden. The respondent relied on evidence which he claimed established the following matters. He was "a career journalist, a researcher and a publisher." He "had acquired and built up a library which was used as his research facility." He "had a strong interest in the Islamic religion." And he "had written and published articles on a range of issues, in particular, on benign Islamic issues." In this Court, the respondent submitted that Hall J had correctly concluded that it could not be said that this evidence "was incapable [sic] of suggesting, as a reasonable possibility, that the [respondent] acted as a professional journalist with an intention that was not one to facilitate assistance in a terrorist act". The evidence relied on suggests a reasonable possibility that the respondent lived a useful and blameless professional life in general. But the evidence relied on was entirely neutral about whether the respondent acted, in this particular instance, with an intention other than facilitating assistance in a terrorist act. The respondent submitted that the evidence of his past pursuit of lawful activities was not merely neutral, but favourable. That, he submitted, was because his past conduct as a journalist was relevant to the conduct charged. That is a difficult submission for a court to assess. It would need to be taken in detail to the respondent's past practices as a journalist with a view to comparing those practices to his conduct on the occasion charged. The argument assumes that the respondent was carrying out conduct as a journalist by publishing the book. His reliance on the book's contents does not reveal any reasonable possibility that he was publishing the book in his capacity as a journalist. Even if the contents are put to one side, the following circumstances negate the respondent's thesis that the publication was born of a journalistic intention. The respondent's case rests on the assumption that he published various articles in a magazine, The Call of Islam, which did not contain extremist material. He published them in his own name. The book, in contrast, was published on an overseas website that, whatever other information it made available, contained extremist material. The respondent conceded this much at trial. And the book was published using a pseudonym. The habitual behavior of the respondent as a journalist suggests that he was not acting as a journalist on the occasion charged. It does not suggest a reasonable possibility that making the book was not intended to facilitate assistance in a terrorist act. Before the trial judge, the respondent also additionally relied on the "circumstances under which he made the book (at short notice, at the behest of 'the brothers')". But these circumstances do not point one way or the other as to the respondent's true intention. They do not suggest a reasonable possibility that he lacked the intention of facilitating assistance in a terrorist act. The respondent alleged that the prosecution's argument in this Court was that "the evidential burden can only be satisfied in circumstances where the accused adduces evidence of a purpose and in doing so necessarily excludes the proscribed purpose" (emphasis in original). The submission continued: "The ultimate effect of this proposition is to impose upon the trial judge a duty which traditionally falls within the province of the jury. The absence of a particular purpose is almost invariably a matter proved circumstantially. Such proof would ordinarily consist of pointing to the existence of a purpose other than the proscribed purpose. In practical terms it will generally be impossible for an accused person to prove conclusively a negative …. The reason is plain: a person may hold two concurrent intentions, and these concurrent intentions might well motivate different purposes. It is properly a matter of inference for the jury to determine which purposes existed or, indeed, whether both existed. The course advocated by the [prosecution] requires the trial judge to engage in a searching analysis of the evidence. That is, however, not the role of the trial judge but rather that of the jury …. Accordingly, in order to discharge the burden, it was incumbent upon the respondent to point to evidence of another purpose. He did so. To impose an additional burden upon him, requiring him to negate the other, proscribed purpose, would present … an insurmountable difficulty for an accused person who seeks to avail himself of the affirmative defence." This submission should be rejected. The prosecution was not requiring the respondent to negate the proscribed purpose, only to point to evidence that there was a non-proscribed purpose. The respondent contended that the evidence he pointed to raised a reasonable possibility that there was a non-proscribed purpose. So far as that evidence lay outside the book, it was neutral or immaterial. So far as it came from the book, it was nullified by the balance of the book. "Connected with" The second issue in this appeal is whether the trial judge was required to give specific directions on the meaning of the words "connected with" in s 101.5(1)(b) of the Code. That paragraph creates an ingredient of the s 101.5(1) offence - that the document published be "connected with … assistance in a terrorist act". The respondent submitted to the trial judge that her Honour should distinguish between the type of connection to be found in direct assistance, on the one hand, and a "mere remote connection", on the other. But s 105.5(1)(b) does not use the word "directly". The terms of the provision do not support the view that "connection" implies "direct assistance" only. And the trial judge's direction to the jury did not suggest that a "mere remote connection" would suffice. The respondent submitted to the Court of Criminal Appeal that the trial judge should have told the jury that more than a remote and tenuous connection was needed. But the trial judge's direction did not suggest that a remote and tenuous connection would do. In this Court, the respondent argued that the directions the Court of Appeal of the Supreme Court of Victoria stipulated in Benbrika v The Queen should have been given. The Court of Criminal Appeal drew the parties' attention to that case after oral argument in that Court had concluded. Benbrika v The Queen is a decision on a different provision of the Code. The circumstances to which that provision, s 101.4(1), is directed concern possession of "a thing … connected with preparation for … a terrorist act". Issues which those words might raise in that context do not necessarily arise in relation to s 105.5(1)(b). They certainly do not arise in relation to the application of s 105.5(1)(b) to the present circumstances. These shifts in position raise considerable doubts about the validity of the respondent's stance. Whatever may be necessary in other cases involving different factual circumstances, it was not necessary for the trial judge to give any directions additional to those which her Honour gave.
Orders The appeal should be allowed and the orders proposed in the joint judgment should be made.
The Queen
Khazaal
Appeal allowed. Orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 9 June 2011 set aside and in place thereof the appeal against conviction on count 1 dismissed. Matter remitted to the Court of Criminal Appeal for consideration and determination of the appeal against sentence on count 1.