Friday, August 10, 2012

High Court restores conviction for making document in connection with terrorist act

The High Court of Australia in The Queen v Khazaal today upheld a prosecution appeal and reinstated the conviction and sentence of Belal Khazaal, who had been convicted in the NSW Supreme Court of an offence against section 101.5(1) of the Commonwealth Criminal Code, in that he made a document connected with assistance in a terrorist act, knowing of that connection.
The document the subject of the charges 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 contained material concerning Islam and jihad that Khazaal had downloaded form the internet, together with a dedication, foreword and other short passages written by Khazaal.  The e-book was submitted to the administrators of the “Al Maqdese” website which, according to expert evidence adduced at the trial, was a website linked to the terrorist group Al-Quaeda, and which contained a number of publications by leaders of known terrorist organisations.  The website also, according to the expert evidence, contained benign material on Islamic issues.
The introduction to the e-book, written by Khazaal, was as follows:
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”.
Chapter 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 Chapter 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.
Evidence was also adduced as to Khazaal’s occupation as an accredited journalist who regularly contributed to an Islamic affairs magazine, and had a large personal collection of materials relating to Islam which cinluded various documents, tapes and videos.
Khazaal did not give evidence at his trial.  There was no real factual dispute about the making of the e-book or its content.  What was in issue was what inferences could be drawn from that material.
The elements of the offence with which Khazaal was charged required the Crown to establish that:
(a) Khazaal made the e-book;
(b) the e-book was connected with assistance in a terrorist act; and
(c) the Khazaal was aware of the connection between the e-Book and assistance in a terrorist act.  It was not an element of the offence that Khazaal intended to provide assistance in a terrorist act. 
However, Khazaal sought to invoke an exception to the offence contained in section 101.5(5) which provides that the offence provision does not apply if the collection or making of the document was not intended to facilitate … assistance in a terrorist act.”  Khazaal’s case was that the evidence taken as a whole raised a real possibility that Khazaal did not make the e-book with the intention of facilitating assistance in a terrorist act, and therefore the jury could not convict Khazaal unless satisfied beyond reasonable doubt that the making of the e-book was intended to facilitate assistance in a terrorist act.  The issue ultimately raised in the High Court was whether or not the evidence in fact suggested a reasonable possibility that the making of the e-book was not intended to facilitate assistance in a terrorist act, sufficient to discharge Khazaal’s evidential onus necessary to invoke the exception provision in section 101.5(5).
The High Court accepted that satisfying that evidential onus required no more than slender evidence, and that for the purposes of establishing whether the onus had been discharged the evidence should be taken at its most favourable to Khazaal. 
However, the High Court held that in the absence of any evidence of his intention in making the e-book, the evidence that Khazaal 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 his making of the e-book was a lawful activity not intended to facilitate a terrorist act. Furthermore, the e-book contained information and instructions to any possessor and others in methods of assassination of identified persons described as “targets”. For that reason, the e-book was incapable of raising or supporting an inference that Khazaal’s intention in making the e-book was lawful, scholarly, or educational in the sense of making or compiling an inoffensive reference work.  As Heydon J noted, “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 [Khazaal’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 [Khazaal’s] perception, that terrorist acts be committed.”
Khazaal also argued that the words “connected with” required the Crown to establish that the e-book itself must have been capable of directly assisting in the commission of a terrorist act.  This contention was rejected.  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.


  1. So, what is the difference between this case and Braysich v R [2011] HCA 14 (other than the outcome?) In Braysich, a majority of the High Court (including French and Crennan) held that a stockbroker who a jury found knowingly facilitated an apparent share trade where there was no change in beneficial ownership of the shares had discharged the evidential burden of a defence of having a purpose other than misleading the stock market, simply because he had led evidence of his generally good character. And that was a case where his principal defence was that he didn't know what he was doing (rejected by the jury) and where there was a reverse onus on the purpose defence.

    Tellingly, the majority in Khazaal distinguished Braysich (at [75]) on a procedural point (the Braysich TJ refused to consider the good character evidence), even both High Court appeals turned on a substantive point (whether the evidential burden was or wasn't discharged.) So, what other difference is there, other than one case involving a professional accused of facilitating a white collar crime, while the other involved an amateur accused of facilitating terrorism?

  2. Part of the difference can be explained in this way. The charges before the Court in Braysich raised an issue of dishonesty. The purpose of creating a false or misleading appearance of active trading is a dishonest purpose. Evidence of the appellant's honesty was capable of supporting a submission that it was improbable that he acted with that dishonest purpose. Of course the Court split 3-2 in Braysich. And it was a case where the potentially relevant evidence had not been left to the jury, and other evidence that bore upon the issue was not admitted into evidence. So it was not a case where all of the evidence was in and left to a jury to make of it what they could properly directed according to law. That is an important feature that distinguishes it from the Khazaal appeal. Ultimately, following a retrial, Mr Braysich may find himself in a position where the jury do not accept that evidence is sufficient to establish the defence.

  3. Neither of these differences convinces me at all. Surely, the defendant's character has at least as much bearing on whether or not the defendant's purpose was to promote terrorism as it does on whether or not his purpose was to mislead the stock market? And Khazaal's jury never got to consider what Khazaal's intentions were, as Latham J didn't leave that issue to them. Interestingly, though, the jury rejected a separate charge of attempting to incite terrorism, possibly because they weren't convinced that was his intention?

    It's true that Braysich's judge refused to admit expert evidence that apparently suggested an honest reason to facilitate fake share trades. But the majority in Braysich was quite clear that that wasn't the reason they allowed Braysich's appeal: see [52]. Rather, it all came down to the 'good character' evidence - six folks said he was an honest guy. I agree with you that Braysich may not have succeeded at a retrial, not that he appears likely to ever get on. And maybe Khazaal wouldn't have either. The problem is, thanks to the HCA, we'll never know.

    But what we do know is that French and Crennan at least should have provided a compelling account of why they reached opposit conclusions on Braysich and Khazaal. Heydon and Bell were at least consistent and, if Braysich was wrongly decided, maybe they were right in both cases. But I also think there were further differences between the two cases - notably the lack of a reverse onus in Khazaal, the higher sentence for his offence, the relative importance of the defence in question (compared to Braysich's, where the defence he was initially denied has since been dropped from the statute book altogether) and the relative rarity of terrorists in comparison to frauds - that suggest that maybe Khazaal should still have got his defence heard by a jury even if Khazaal didn't.