Citation: R v Kahtan ABDUL-WAHAB No 2 [2025] NSWLC 6
Court: Local Court of NSW
Date: 19 August 2025
Judge(s): Donnelly LCM
Background
In October 2024, the defendant attended a pro-Palestine protest in Hyde Park, Sydney, where approximately 10,000 people were present. He placed a placard on a bin displaying a Nazi flag superimposed over the Israeli flag, accompanied by the words "The irony of becoming what you once hated." Police charged him with displaying a Nazi symbol without reasonable excuse under section 93ZA(1) of the Crimes Act 1900 (NSW), which was the provision in force at the time of the alleged offence.
The parties agreed on most of the underlying facts through a statement of agreed facts tendered under section 191 of the Evidence Act. The defendant did not dispute that he displayed the Nazi symbol or that he knew it was a Nazi symbol. When asked by police, he said he was speaking out against genocide. The sole contested issue was whether he had a reasonable excuse for the display.
Legal Issues
- Whether the prosecution bears the onus of proving each ingredient of the offence beyond reasonable doubt, including the absence of reasonable excuse
- Whether the defendant's political purpose in displaying the Nazi symbol could constitute a reasonable excuse under section 93ZA
- Whether the display satisfied any of the statutory reasonable excuse categories: academic, artistic, educational purpose, or another purpose in the public interest
- What weight, if any, could be given to the defendant's election to remain silent and to the contextual documentary evidence tendered on his behalf
Decision
Issue 1: Onus of proof and evidentiary burden
The court followed the principles in Woolmington v DPP and King v The Queen, holding that the prosecution must prove each ingredient of the offence beyond reasonable doubt. The defendant carries only an evidentiary burden if he wishes to raise the reasonable excuse exception (at [4]-[5]). The defendant exercised his right to silence and did not give evidence. Consistent with Azzopardi v The Queen, the court directed itself that no adverse inference could be drawn from that election and that silence could not be used to fill gaps in the prosecution case (at [25]).
Issue 2: The purpose of section 93ZA and the scope of reasonable excuse
The court rejected the defendant's narrower characterisation of the provision as being limited to preventing the promotion of Nazism. The court found the purpose to be broader: to prohibit public displays of Nazi symbols because of the offence they cause and the harm they inflict, including on victims of the Nazis and their descendants (at [15]). Applying Taikato v The Queen, the court held that reasonable excuse requires an objective assessment that considers both the purposes of the law and the individual circumstances of the case (at [10]-[11]). The court also noted that the word "political" does not appear in section 93ZA(3), in contrast to equivalent provisions in Victoria and under the Commonwealth Criminal Code (at [21]).
Issue 3: Whether a reasonable excuse was established
The court found the defendant had met the evidentiary burden of raising reasonable excuse, based on his statement to police and the contextual documents tendered as exhibits (at [46]). However, the court found the prosecution had negatived reasonable excuse beyond reasonable doubt. The harm caused by this particular display was not slight, particularly given the juxtaposition of the Nazi and Israeli flags and the accompanying text (at [47]-[48]). A political purpose alone is insufficient to constitute reasonable excuse, as that would too easily defeat the object of the law (at [20], [48]). The court drew the inference that the display was made to make a political point about Israel and did not fall within the categories of academic, artistic, educational, or public interest purpose in section 93ZA(3) (at [49]).
Issue 4: Contextual and background evidence
The court took judicial notice of the Genocide Convention, Australia's and Israel's status as parties, the ongoing conflict in Palestine and Israel, the ICJ proceedings against Israel, relevant UN reports, and the ICC arrest warrants for Israeli officials (at [29]). This material was accepted as background context. However, the court made no findings on the truth of any allegations of genocide, noting those matters are for international judicial forums (at [30]). Even with that context taken into account, the reasonable excuse exception was not established (at [48]).
Orders Made
No orders were made in this decision.
Key Takeaways
- Under section 93ZA(1) of the Crimes Act 1900 (NSW), the prosecution bears the onus of proving the absence of reasonable excuse beyond reasonable doubt; the defendant carries only an evidentiary burden to raise the excuse (at [4]-[5]).
- A political purpose, standing alone, does not automatically constitute a reasonable excuse for displaying a Nazi symbol in public. The court assessed reasonableness by reference to both the statutory purposes of the provision and the specific circumstances of the display, as required by Taikato v The Queen (at [10]-[11], [20]).
- The purpose of the Nazi symbol prohibition is broader than preventing the promotion of Nazism. It encompasses protecting community members, including victims and descendants of Nazi atrocities, from the harm and offence caused by public displays of Nazi symbols (at [15], [47]).
- Where the harm caused by a particular display is not slight, the degree of offence becomes a relevant factor weighing against a finding of reasonable excuse, even where the defendant's stated motive was to criticise rather than promote the ideology depicted (at [47]-[48]).
- No adverse inference flows from a defendant's election not to give evidence in proceedings of this kind. The defendant's silence cannot be used against him, treated as an admission, or deployed to fill evidentiary gaps, consistent with the High Court's direction in Azzopardi v The Queen (at [25]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) , s 93ZA( 1) (rep)
Cases
- Azzopardi v The Queen (2001) 205 CLR 50
- Commissioner of Police v Gray [2020] NSWSC 867
- King v The Queen (2003) 215 CLR 150
- Mark v Henshaw (1998) 85 FCR 555
- Oshlack v Richmond River Council (1998) CLR 72
- Police v Bassi [2020] NSWSC 710
- Police v Rintoul [2003] NSWSC 662
- Taikato v The Queen (1996) 186 CLR 454
- Wong Pooh Yin v Public Prosecutor [1955] AC 93
- Woolmington v DPP [1935] AC 462