Citation: R v Kahtan ABDUL-WAHAB No 1 [2025] NSWLC 5
Court: Local Court of NSW
Date: 29 October 2025
Judge(s): Donnelly LCM
Background
The defendant was charged with displaying a Nazi symbol on a bin in Hyde Park, contrary to s 93ZA(1) of the Crimes Act 1900 (NSW). The offence, as it stood on 6 October 2024, required proof that a person knowingly displayed a Nazi symbol by public act and without reasonable excuse. The provision also set out, non-exhaustively, that a reasonable excuse includes displays made in good faith for academic, artistic, educational, or public-interest purposes.
At the commencement of the hearing, a dispute arose between the parties about who bore the onus of proof in relation to the "without reasonable excuse" element. The Magistrate ruled on the issue during the hearing and subsequently delivered these written reasons.
Three distinct positions were advanced. The defendant argued the prosecution must disprove reasonable excuse beyond reasonable doubt. The prosecution argued the defendant must prove reasonable excuse on the balance of probabilities. The Attorney-General, intervening, argued the defendant bears only an evidentiary burden to raise the excuse, after which the prosecution must negative it beyond reasonable doubt.
Legal Issues
- Whether "without reasonable excuse" in s 93ZA(1) is an element of the offence that the prosecution must disprove, or an excuse that the defendant must raise.
- Whether, if the defendant bears some burden, that burden is a legal (persuasive) onus to prove the excuse on the balance of probabilities, or merely an evidentiary burden to raise it.
- How s 417A of the Crimes Act 1900 (NSW), which permits accused persons to prove exceptions and excuses, interacts with s 93ZA(1) and the principles in Woolmington v DPP.
Decision
The Magistrate first rejected the defendant's submission that the prosecution bears the onus of disproving reasonable excuse as an element of the offence. Drawing on Chugg v Pacific Dunlop Pty (1990) 170 CLR 249, the court applied the distinction between a provision forming part of a general rule and a "statement of some matter of answer" by way of excuse. The phrase "without reasonable excuse" falls into the latter category: it does not define the core prohibition but provides a basis on which a defendant can step outside the operation of the general rule.
The Magistrate then rejected the prosecution's submission that the defendant bears a legal (persuasive) onus to prove reasonable excuse on the balance of probabilities. The critical point was that s 417A(2) states that an excuse "may" be proved by the accused, not that the accused "must" or "shall" prove it. Parliament had not used the mandatory language found in other provisions, such as s 23A(4) or s 93FB(2) of the Crimes Act, which expressly require the accused to "satisfy the court." The absence of such language meant the court was required to apply Woolmington v DPP, King v The Queen, and Braysich v The Queen, each of which confirm that a legal onus does not shift to an accused unless Parliament has made express provision to that effect.
The Magistrate accepted the Attorney-General's position. Reading s 93ZA together with s 417A, and by reference to CTM v The Queen and Braysich v The Queen, the court held that the defendant carries only an evidentiary burden: he must raise the excuse through his own evidence or other evidence in the proceedings. Once that evidentiary threshold is met, the onus shifts to the prosecution to negative the excuse beyond reasonable doubt.
Orders Made
The court confirmed its earlier ruling of 18 August 2025 in the following terms:
- The phrase "without reasonable excuse" in s 93ZA is not an element or ingredient of the offence, but an excuse available to the defendant.
- If the defendant relies on the excuse, he bears an evidentiary onus to raise it through his own evidence, other evidence, or both.
- Once the evidentiary onus is met, the prosecution must negative the excuse beyond reasonable doubt.
Key Takeaways
- Under s 93ZA(1) of the Crimes Act 1900 (NSW), "without reasonable excuse" is not an element of the offence that the prosecution must disprove as part of its case; it is an excuse on which the defendant may rely.
- A defendant charged under s 93ZA(1) carries an evidentiary burden to raise the reasonable excuse issue. That burden does not require proof on the balance of probabilities; raising the issue through evidence is sufficient.
- Where the evidentiary burden is satisfied, the prosecution then bears the onus of negating the excuse to the criminal standard of beyond reasonable doubt, consistent with the Woolmington principle.
- Section 417A(2) of the Crimes Act, which provides that an excuse "may" be proved by the accused, does not in itself impose a legal (persuasive) onus on the defendant. The permissive word "may" stands in contrast to mandatory language used in other provisions of the same Act.
- Braysich v The Queen (2011) 243 CLR 434, CTM v The Queen (2008) 236 CLR 440, and Chugg v Pacific Dunlop (1990) 170 CLR 249 formed the central pillars of the reasoning, confirming that express Parliamentary language is required before a legal onus of proof shifts to an accused in a criminal proceeding.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 23, 23A, 61AA, 93FB, 93ZA(1), 417A, 419, 545E(2)
- Magistrates (Summary Proceedings) Act 1975 (Vic)
Cases:
- Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
- Chugg v Pacific Dunlop Pty (1990) 170 CLR 249
- CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
- DPP v FD [2017] NSWSC 679
- King v The Queen [2003] HCA 42; (2003) 215 CLR 150
- Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272
- Taikato v The Queen (1996) 186 CLR 454
- Vines v Djordjevitch (1955) 91 CLR 512
- Woolmington v DPP [1935] AC 462