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Court of Criminal Appeal 9 June 2011

Khazaal v R

[2011] NSWCCA 129

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION S101.5(1) CRIMINAL CODE ACT 1995 (CTH) "INCONSISTENT VERDICTS" APPLICATION OF THE PROVISO CONVICTION QUASHED

Citation: Khazaal v R [2011] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 9 June 2011
Judge(s): McClellan CJ at CL; Hall J; McCallum J

Background

The appellant was charged with two offences under the Criminal Code Act 1995 (Cth). The first count alleged that he made a document connected with assistance in a terrorist act, knowing of that connection, contrary to s 101.5(1). The second count alleged he attempted to urge others to engage in a terrorist act.

The Crown's case was that between 20 and 23 September 2003, the appellant compiled an electronic book in Arabic, drawn from internet material, titled "Provisions on the Rules of Jihad." He edited the content, added a dedication and foreword, and submitted the book under a pseudonym to a website alleged to be connected with al-Qaeda. The book included detailed chapters on assassination methods, targets, and operational security for attackers.

Following a jury trial in the Supreme Court, the appellant was convicted on count 1 and the jury was unable to reach a verdict on count 2. He was sentenced to 12 years' imprisonment with a non-parole period of 9 years. He appealed against conviction and sought leave to appeal against sentence.

  • Whether the trial judge erred by failing to discharge the jury after prejudicial material was inadvertently tendered by the defence
  • Whether the trial judge's directions to the jury adequately addressed the delay in removing the disputed material from the internet
  • Whether the phrase "connected with" in s 101.5(1) of the Criminal Code was correctly interpreted and applied
  • Whether the verdicts were inconsistent (conviction on count 1, hung jury on count 2)
  • Whether the appellant had discharged the evidential burden under s 101.5(5), which provides a defence where the making of the document was not intended to facilitate a terrorist act
  • Whether the sentence was manifestly excessive, and whether the trial judge erred in considering foreign convictions and the deterrence rationale

Decision

The three judges reached different conclusions on several grounds, producing a split outcome. McClellan CJ at CL would have dismissed the conviction appeal, finding no reversible error on the contested grounds. However, he was in the minority on the overall result.

Hall J upheld grounds of appeal that, in his Honour's view, could have led to an acquittal. McCallum J agreed with McClellan CJ at CL on most grounds but agreed with Hall J on ground 4, which concerned whether the appellant had discharged the evidential burden under s 101.5(5).

On that decisive ground, McCallum J held that the trial judge erred in concluding that the appellant had failed to discharge the evidential burden. Her Honour found that evidence before the court suggested a reasonable possibility that the book was not intended to facilitate assistance in a terrorist act, satisfying the definition of "evidential burden" under s 13.3 of the Code. That error was sufficient to quash the conviction.

By majority, the Court allowed the conviction appeal, quashed the conviction, and ordered a new trial. On sentence, McClellan CJ at CL would have granted leave to appeal but dismissed the sentence appeal, though this was a minority view and the sentence orders were overtaken by the quashing of the conviction.

Orders Made

  • The conviction appeal was allowed (by majority).
  • The conviction was quashed.
  • A new trial was ordered.
  • McClellan CJ at CL (minority) would have dismissed the conviction appeal, granted leave to appeal against sentence, and dismissed the sentence appeal.

Key Takeaways

  • Under s 101.5(5) of the Criminal Code Act 1995 (Cth), a defendant bears only an evidential burden in raising the defence that the making of a document was not intended to facilitate a terrorist act. The evidential burden, as defined in s 13.3, requires only that the defendant point to evidence suggesting a reasonable possibility that the matter exists, not that the defendant positively prove it.

  • A trial judge's erroneous conclusion that the evidential burden under s 101.5(5) had not been discharged constitutes a legal error capable of vitiating the conviction, where evidence before the court was sufficient to raise the relevant reasonable possibility.

  • The Court of Criminal Appeal confirmed that the test for discharge of an evidential burden under s 13.3 of the Code is consistent in substance with the formulation later articulated by the High Court in Braysich v The Queen [2011] HCA 14, though the Court did not need to definitively resolve any difference between the two formulations.

  • A split appellate bench can produce a majority result through partial agreement across judges on distinct grounds. Here, two judges agreed on the critical evidential burden ground, producing a majority sufficient to quash the conviction and order a new trial, even though the judges disagreed on other grounds.

  • The decision engaged questions about the scope of the phrase "connected with" in s 101.5(1), the treatment of prejudicial material inadvertently tendered at trial, and the adequacy of jury directions. These issues arose in the context of one of Australia's early terrorism prosecutions under the Security Legislation Amendment (Terrorism) Act 2002 (Cth) framework.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 100.1, 101.1, 101.5, 11.1, 11.4, 13.3, 13.4
- Security Legislation Amendment (Terrorism) Act 2002 (Cth)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1914 (Cth)
- Crimes Act 1900 (NSW)
- Terrorism Act 2000 (UK)
- Terrorism Act 2006 (UK)

Cases:
- Braysich v The Queen [2011] HCA 14
- Benbrika & Ors v The Queen [2010] VSCA 281; (2010) 247 FLR 1
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Crofts v R [1996] HCA 22; (1996) 186 CLR 427
- Driscoll v R (1977) 137 CLR 517
- Beckwith v R (1976) 135 CLR 569
- El Hassan v R [2007] NSWCCA 148
- GAR v R (No 2) [2010] NSWCCA 164
- Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485
- R v Khazaal [2009] NSWSC 1015 (the sentencing decision below)