Khazaal v R

Judgment

1. [1]

   McCLELLAN CJ at CL: The appellant pleaded not guilty to one count of making a document connected with preparation for, the engagement of a person in, or assistance in a terrorist act, knowing of that connection contrary to s 101.5(1) Criminal Code Act 1995 (Cth) ("the Code") and to one count of attempting to urge another to engage in a terrorist act contrary to ss 11.1(1), 11.4(1) and 101.1(1) of the Code. Following a trial in the Supreme Court, the appellant was convicted in relation to count 1. The jury was unable to reach a verdict in relation to count 2. The offence of which the appellant was convicted attracts a maximum penalty of 15 years. The appellant was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years (R v Khazaal [2009] NSWSC 1015). He appeals against his conviction and seeks leave to appeal against his sentence. THE INDICTMENT

2. [2]

   The indictment dated 3 July 2008 was in the following terms: "Count 1: That between 20 September 2003 and 23 September 2003 at Sydney and elsewhere in the world he did make a document connected with assistance in a terrorist act knowing of that connection contrary to the provisions of s 101.5(1) of the Criminal Code. Count 2: That between 22 September 2003 and about 8 October 2003 at Sydney and elsewhere in the world he did attempt to urge the commission by others of an offence, namely, engaging in a terrorist act contrary to s 101.1(1) of the Criminal Code."

3. [3]

   In relation to count 1 the indictment alleged: "1.1 The document made was a book titled 'Provisions on the Rules of Jihad - Short Judicial rulings and organisational instructions for fighters and Mujahideen against infidels'. 1.2 The terrorist act was an action or threat of action against any one or more of a number of persons identified in the document including diplomats, military personnel and holders of public offence done or threatened" (a) with the intention of advancing a political religious or ideological cause, namely the advancement of the Muslim religion in the world including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christians and other non-Muslims from that region; and (b) with the intention of: i. coercing, or influencing by intimidation, the government of the Commonwealth or of a foreign country; or ii. intimidating the public or a section of the public; and (c) in circumstances where the action, if carried out, would:- i. cause serious harm that is physical harm to a person; or ii. cause serious damage to property; or iii. cause a person's death; or iv. endanger a person's life, other than the life of the person taking the action; or v. create a serious risk to the health or safety of the public or a section of the public; and (d) the action or threat of action was not to be done as advocacy, protest, dissent or industrial action. Alternatively, if the action or threat of action was to be done as advocacy, protest, dissent or industrial action, it would be of a kind intended to: i. cause serious harm that is physical harm to a person; or ii. cause a person's death; or iii. endanger the life of a person, other than the person taking the action; or iv. create a serious risk to the health or safety of the public or a section of the public." THE CODE PROVISIONS

4. [4]

   The relevant provisions of the Code read as follows: 100.1 Definitions (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. 101.5(1) Collecting or making documents likely to facilitate terrorist acts (1) A person commits an offence if: (a) the person collects or makes a document; and (b) the document is connected with preparation for, the engagement of a person in, or 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) or (2) even if: (a) a terrorist act does not occur; or (b) the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act; or (c) the document is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act. (5) Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act. Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)). 13.3 Evidential burden of proof--defence (1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only. (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. 13.4 Legal burden of proof--defence A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly: (a) specifies that the burden of proof in relation to the matter in question is a legal burden; or (b) requires the defendant to prove the matter; or (c) creates a presumption that the matter exists unless the contrary is proved. THE CASE AT TRIAL

5. [5]

   In summary, the Crown case was that between 20 - 23 September 2003, the appellant downloaded from the Internet material of a religious and "jihadist" nature and compiled an electronic book entitled "Provisions on the Rules of Jihad - Short Judicial Rulings and Organisational Instructions for Fighters and Mujahideen Against Infidels" ("the e-book"). After downloading the material, which was in Arabic, the appellant edited parts of it and renumbered the footnotes. He inserted a dedication and a foreword. Using a pseudonym, he submitted the e-book (which he described as "urging for jihad") to the administrators of a website which was connected with al-Qaeda ("the Almaqdese website"). The Almaqdese website contained a number of other publications composed by leaders of known terrorist groups. The appellant made some final formatting changes and the e-book was published on the Almaqdese website. The Crown contended that the appellant's acts of selecting, compiling and editing the downloaded content and introducing his own material constituted the "making of a document" and those acts must have been "intentional".

6. [6]

   Chapter 10 of the e-book was entitled "Reasons for Assassination". This and other chapters commenced with the appellant's own commentary endorsing the substance of the chapter. Chapter 10 contained the following sub-headings: "Characteristics of the Assassination Team Training Team members Optimal conditions for assassination Features and stages of the assassination process Security precautions First: Wireless Distant Detonating Device (Remote Control) Security measures prior and post detonation Second Method: letters and letter bombs Third Method: Booby Trapping a car Security alerts to Mujahideen in some battle fields like Palestine Fourth method: Detonating a car from a distance Caution to the wanted Mujahideen who fear assassination by Mossad in Palestine Fifth Method: Sniping Sixth Method: Smothering Seventh Method: Hitting with a Hammer Eighth Method: Booby Trapping a room Other methods Targets that should be assassinated Benefits of assassination Modern Assassination stories Successful operations."

7. [7]

   The section entitled "Characteristics of the assassination team" identifies traits that are necessary or desirable for assassins. These include physical fitness, courage and "terrorist psychology". The section headed "Optimal conditions for assassination" provides a list of scenarios in which targets are most vulnerable to attack. Those include "When the target is alone, unprotected and unaccompanied", "When the target is away from his home or office with little protection", "When target announces his movements such as attending a conference", and "When target opens his own mail or doors for his guests".

8. [8]

   The section headed "Features and stages of the assassination process" summarises the various means by which targets can be assassinated. It concludes with the following comments: "These types of assassination were listed in order of safety and cost. Regardless of the style, assassination operations require special characteristics and a talented Mujahid. After several successful assassination operations the element becomes a professional specialist. After three successful assassination operations and a kidnapping operation the element becomes an advanced specialist and can be appointed to lead a cell."

9. [9]

   Chapter 10 also outlines the functions of the "Distracting Group" whose primary task is said to be to divert the attention of security personnel prior to a terrorist attack: "Such group works on distracting enemy security. Timing is of key importance and so is coordination with the execution party. For instance, if the assassination was to use mortar then a high-pitch noise such as cars, engines or car horns would be appropriate to cover the noise of the mortar shell or the noise of snipers in case no silencer was used."

10. [10]

    Chapter 10 goes on to provide detailed information about various assassination techniques including remote-controlled bombs, letter bombs (and the means by which such devices can pass through security screening) and smothering. The latter section reads: "It primarily works on plugging the air ducts particularly the mouth and the nose which could be done by placing one's hand and keeping it on the target's nose till he dies. Alternatively, keeping his face to the ground or wrapping the face with tape that would prevent him from breathing ... One of these techniques is to tie the target with a metal rope over his chest and tighten the rope till the trachea contracts and can not open. This leads to suffocation the same way a boa would hold and kill its prey. ... Another method albeit one that requires more than one person to carry it out is wrapping the target in a strong plastic bag. This hardly leaves a trace on the body of the target. Enemy security could have the impression that it was a suicide."

11. [11]

    The section entitled "Targets that should be assassinated" reads as follows: "Identities that should be assassinated are in this order, as far as I think: 1 - All Jewish, Christian and Arab atheists among the diplomats, ambassadors and the military in Arabia. The definition of Arabia for Mujahideen is the area that covers Yemen, Oman, Saudi, Kuwait, Qatar, The Emirates and Bahrain. This extension is due to the legal texts that call for the expulsion of Jews and Christians and Infidels from Arabia. The enemy nationalities are ranked in accordance to their importance: 1. American. 2. British 3. French 4. Rest of NATO members 5. Rest of Christians 6. Hindus and Buddhists 7. Russians These nationalities, with the aid and participation of Jews, fight, kill, rape and pillage Muslims. This is well-known world wide and is for everyone to see. ... 2 - Imams of apostasy: Who exist in Arabia such as state presidents, ministers of the Interior, Foreign ministers, ministers of Defense who are promoting and defending atheism. The rest of the Imams of apostasy in the Arab Countries which are falsely called Islamic states such as Abu Reghal and his four men, Barvez - Brazen - Mussharaf, Hosni Mubarak, Yasser Arafat and the rest of the list. In addition to anyone who blasphemes God or the prophet such as journalists and the media whose insult has been proven publicly, by confession or through witnesses has joined the list of enemies. I have explained this in my book (Guide book for the rulings on killing policemen and investigators) 3 - Holders of key positions in the original countries of atheism fighting us such as the president, then the minister of defense, foreign minister, Chief of Intelligence, National Security and the high ranking generals. The countries are listed in the following order: First: America Second: Britain, and between the two Israel which is the misnomer for the Jews Third: France Fourth: Germany Fifth: Australia Sixth: Canada Seventh: Rest of NATO countries Eighth: Russia Ninth: India And by way of example the assassination of president (Bush), minister of Defense (Rumsfeld), state secretary (Powell) and General (Tommy Franks) and Chief of intelligence (Tenet). However, this is not an exhaustive list it is intended only to illustrate and to clarify."

12. [12]

    The final chapter, "The Last Word", contains the following headings: "No solution without Jihad 2 - Duties confirmed The enlisting of the Fundamentalist movement Small groups can cause havoc among Americans Towards a Fundamental Base in the heart of the Muslim World How and who should wage the clash? Striking the Americans and the Jews Taking the battle to the enemy Selecting Targets and focusing on Martyr Operations It is every Muslim's battle."

13. [13]

    The section entitled "Small groups can cause havoc among Americans" contains the following: "Pursuing Americans and Jews is not an impossible task. Killing them with a single shot, a stab or a pack of a popular mix or with an iron rod is not a difficult deed. Neither is burning their properties with a Molotov bottle. Small groups with small available means can cause horror to American and Jew alike."

14. [14]

    According to the Crown, the first half of the e-book (Chapters 1 - 9) sets out the religious or ideological justifications for jihad and the second half (Chapters 10 - 13) provides a practical guide to achieving martyrdom and destroying those who oppose or oppress the Islamic faith. The Crown contended that the nature of the material contained in the e-book demonstrated that the preparation of the e-book was "connected with" assistance in a terrorist act.

15. [15]

    There was no evidence capable of establishing that the appellant had any direct communications with prominent al-Qaeda members or with the authors of the adopted material in the e-book. However, the Crown case was that the evidence showed that during the relevant period, the appellant was an enthusiastic supporter of al-Qaeda and was keen to promote its ideals and practices. This evidence was said to be of relevance to count 1. The trial judge required the Crown to frame its case on that aspect on this limited basis. In particular, it could not submit that the appellant was an al-Qaeda member or had communicated directly with any of its prominent operatives. THE DEFENCE AT THE TRIAL

16. [16]

    The appellant argued at his trial that the e-book was merely a compilation of various existing works, all of which were readily available for download from the Internet. Much of its content was uncontroversial. He emphasised that the first half contained historical justifications for jihad in Islam and the second half contained contemporary writings on the topic. It was submitted that the second half of the e-book could not be described as a "terrorist manual" as it did not provide concrete instructions as to how to commit acts of terrorism. The appellant emphasised that at the time at which the alleged offences occurred, he was an accredited journalist with an interest in religious affairs. AGREED FACTS

17. [17]

    The following matters were not in dispute: that the appellant made the e-book; that he downloaded the majority of its contents from various websites with the intention of compiling it into the e-book; that he caused it to be published on the Almaqdese website; that the e-book refers to methods of assassination and identifies targets for assassination; and that the appellant has a journalist's card and had contributed regularly to a publicly-available Islamic affairs magazine entitled "Nida ul-Islam" or "The Call of Islam" ("the magazine"). The magazine was published by the Islamic Youth Movement ("IYM") and was freely available to the public. The appellant was largely responsible for its content. GROUNDS OF APPEAL

18. [18]

    The grounds of appeal were expressed as follows: CONVICTION Ground 1 A miscarriage of justice occurred as a result of her Honour failing to discharge the jury in circumstances in which counsel for the appellant had inadvertently tendered magazines, which made clear reference to material suggesting there was a link between al-Qaeda and the appellant; Ground 2 Her Honour erred in directing the jury to disregard the submission made by counsel for the appellant during his closing address, in which he suggested that the jury should, when considering whether the book was connected with preparation for, the engagement of a person in, or assistance in a terrorist act, take into account the delay by the authorities in seeking the removal of that book from availability at large; Ground 3 Her Honour erred in directing the jury in relation to count 1 that the words "connected with" were simply to be given their ordinary meaning; and Ground 4 Her Honour erred in holding that the appellant had failed to discharge the evidential burden provided for by s 101.5(5) of the Code, and in consequence declining to direct the jury that the Crown was required to prove beyond reasonable doubt that the document was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act. SENTENCE Ground 1 Her Honour erred in concluding that the objective seriousness of the offence was "not far removed from the worst category of an offence under s 101.5(1) of the Code; Ground 2 Her Honour erred in concluding that the appellant could not be regarded as a person of prior good character in light of various foreign convictions, even though these were obtained in violation of the principle of procedural fairness; Ground 3 Her Honour erred in failing to give proper consideration to the question of deterrence; Ground 4 Her Honour erred in giving inadequate weight to the onerous conditions to which the appellant had been subject while on bail; and Ground 5 The sentence imposed was manifestly excessive. CONVICTION APPEAL Ground 1 Failure to discharge the jury following inadvertent tender of magazines

1. [19]

   During the trial, the Crown called Dr Evan Kohlmann, who was accepted as an expert on international terrorism and terrorist organisations including al-Qaeda. His evidence was extensive, and included explanations of the operation and practices of al-Qaeda, concepts of jihad and martyrdom, the Almaqdese website, and the contents of the e-book. He was cross-examined by the appellant's counsel and asked about the appellant's prior journalistic publications, which included his work on the Nida ul-Islam magazine. The apparent purpose of the cross-examination was to establish that the e-book was, like the magazine, a journalistic work compiled for literary purposes.

2. [20]

   During the cross-examination, Issue 9(1) of the magazine (Feb - Mar 2002) was tendered without objection. It became Exhibit 2. A bundle containing four other issues of the magazine was marked MFI 14. The prosecutor later called for the tender of MFI 14 which became Exhibit 4. A bundle containing 32 other issues of the magazine became Exhibit 5. The Crown had an opportunity to peruse Exhibit 5 overnight, apparently for the first time, those issues of the magazine having previously been with the jury.

3. [21]

   Exhibit 5 included Issues 10(2) and 10(3) of the magazine. Within those issues were two articles written by the appellant which referred to allegations that the appellant had links to al-Qaeda and had assisted in the financing of overseas terrorist acts ("the allegations"). I will refer to the articles contained in issues 10(2) and 10(3) as "the disputed articles".

4. [22]

   The disputed article in Issue 10(2) of the magazine was entitled "Four Corners Missed the Target". The article criticises a segment aired on the television program Four Corners on 9 June 2003. In that segment, Ms Sally Neighbour of the ABC referenced a "secret CIA report" which, she said, identified the appellant as the Australian head of al-Qaeda and as someone who had been trained in Afghanistan and who was involved in the planning of terrorist attacks overseas. The disputed article contains a comprehensive denial of the allegations and challenges the cogency of the claimed CIA intelligence. It reads, relevantly: "For the record, Belal Khazal is a member of the IYM; he did not receive training of any kind in Afghanistan or elsewhere; he did not raise any funds for any organisations, and he did not, nor intend to, plan 'terrorist' attacks in the Philippines, Venezuela or anywhere else. Belal and other members of the IYM have been targeted because they are Muslims and they have been labelled as 'terrorists' by the likes of CIA, ASIO, and other security agencies."

5. [23]

   The disputed article in Issue 10(3) of the magazine was entitled "No Evidence: Just Fabrication against Bhelal Khazal." That article, which concerned the same Four Corners segment, vehemently denied the allegations and argued that the CIA report was a fabrication.

6. [24]

   The Crown sought to use the disputed articles for a limited purpose. It was the Crown's contention that the material, in conjunction with the evidence given by Dr Kohlmann, was capable of establishing that the appellant associated himself with al-Qaeda in the following ways: through his membership of the IYM (the publisher or the magazine), by contributing to the content of the magazine, and by selecting the Almaqdese website - which had been advertised in the magazine - as the forum for publication of the e-book.

7. [25]

   The prosecutor urged the jury to exercise caution when considering the disputed articles. He said: "One reason for drawing attention to this is: Please do not think, because the magazine itself contains an allegation in Four Corners by Sally Neighbour or anyone else against Mr Khazaal that you can act on that. We are submitting that you do not act on that. We did not tender exhibit 5. Care needs to be exercised. Merely because the ABC reports something that this is responding to - it is saying it is not right - merely because the ABC reports something, you cannot use that against Mr Khazaal. That is just a news report. Do you follow what I mean? I am sure you do. I think I have made the point. They say: 'For the record, Bilal Khazaal is a member of the IYM, Islamic Youth movement.' The significance for the Crown is that this magazine records that Bilal Khazaal is a member of the IYM. Forget this allegation of Sally Neighbour. That is no part of the Crown case whatever against Mr Khazaal. But where the magazine is tendered in his case, it records that he is a member of the Islamic Youth Movement. The Crown submits it is fair of you to accept that. The article goes on to say that Four Corners is completely wrong. My point is just to refer to this statement that he is a member of the Islamic Youth Movement. At page 4 there is another defence of Bilal Khazaal. He is entitled to defend himself, if Four Corners has attacked him. This trial is not about what happened on the media, on television, or in a response. In this example, we did not put it in. Exercise care please, or there could be an unintended unfairness. Finally today, if I may just very briefly refer to the last issue in exhibit 5, June to August 2004, again commencing at page 4, 'No evidence, just fabrication, against Bilal Khazaal.' We do not want you to take account of this kind of debate between the magazine and Four Corners or 60 Minutes in any part of your deliberations as to whether or not the Crown has proved these two charges beyond reasonable doubt. But we do draw your attention to the fact that in this edition it commences: 'It is now in the open. A member of the Lakemba based Islamic Youth Movement (IYM) Bilal Khazaal and his brother... lies and false accusations', et cetera. Our point is that this magazine describes the accused as a member of the Islamic Youth Movement, and I will relate that to some evidence about him being involved in a publication, and hence assuming some responsibility for the content of those magazines."

8. [26]

   In the course of the Crown address, counsel for the appellant, apparently for the first time, learnt of the content of the disputed articles. Concerned that a mistake had occurred and troubled by its impact on the jury, he made an application to have the jury discharged on the basis that the relevant articles were so devastating to the appellant that he was denied any possibility of a fair trial. Exhibit 5 had been in the jury's possession for seven hearing days by the time the application for discharge was made. When making the application, defence counsel said: "Clearly, this material is devastating as far as the accused is concerned. The object here is to have a fair trial. We accept that the material has been put in by the defence. However, it has been put in in circumstances where, as a result of an oversight, this material was not picked up. Our object in putting all of the material relating to these magazines was obvious. That is, the magazine is relevant to the proceedings. My friend suggests that there is a connection between the accused and the magazine, which we accept. It is, indeed, part of our case. My friend goes further and says that there is a connection between this magazine and al-Qaeda based on the evidence of Dr Kohlmann. We accept the basis upon which that contention is made. However this material really goes to far and puts - - HER HONOUR: When you say 'this material', you are referring just to the two articles? [Counsel for the appellant]: Yes. ..."

9. [27]

   The trial judge refused the application, concluding that the disputed articles categorically denied the allegations and accordingly, the potential for prejudice was minimised. Her Honour's judgment reads as follows: "The perspective that jurors properly perform their tasks, are true to their oaths and comply with the trial judge's directions has been repeatedly applied in appellate courts over recent years; see R v Milat and R v Bell, R v Long and R v Richards [1999] NSW CCA 114, [1999] 107 ACrimR 318, R v Dudko, R v D'Arcy and R v Burrell. I am not persuaded that the jury will fail to abide by the directions I have given and propose to give. In any event, the articles themselves rebut the allegations made in the programme. It may be the case that some members of the jury did see the programme when it aired in June 2003 and that the articles have only served to remind them of the allegations made therein. If that is so, then the Crown's reference to the articles does not add significantly to what those members of the jury already knew. Furthermore, it is not irrelevant that the magazines were tendered by the accused. Nothing in the magazines was thought to be so prejudicial that they could not be placed before the jury. For these reasons the application is refused."

10. [28]

    In her summing-up, the trial judge directed the jury in the following terms: "There have also been references made in the course of the address to the Al-Nida magazine and to a Four Corners programme in 2004. Of course, the subject of that programme, which was the accused's alleged links to al-Qaeda and his alleged funding of terrorist acts, was strongly refuted by the accused throughout the magazine itself. The fact that such allegations have been made against the accused do not prove anything. We are all exposed to media coverage on a daily basis of many controversial events. It will not surprise you to hear that media outlets are fallible. They have been shown to be wrong in the past and they will be shown to be wrong in the future. As I have said a number of times in this trial, you must put these matters completely to one side and objectively consider the evidence brought against the accused on the specific charges in the indictment. He is not charged with being a terrorist. He is not charged with committing a terrorist act. There is no evidence that the accused is a member of al-Qaeda. There is no evidence that the accused communicated directly with any prominent member of al-Qaeda or any of the authors of the chapters of the book. ... Now, there is no direct evidence, and I repeat this, ladies and gentlemen, of any links between the accused and al-Qaeda itself, but the Crown case is that an inference can be drawn, at the very least, that the accused was a supporter and an enthusiast of al-Qaeda." THE RELEVANT PRINCIPLES

11. [29]

    The principles governing applications for the discharge of a jury and the review of that decision by an appellant court were summarised by Toohey, Gaudron, Gummow and Kirby JJ in Crofts v R [1996] HCA 22; (1996) 186 CLR 427 as follows (at 440 - 441): "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. ...[M]uch leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ... [I]n the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account."

12. [30]

    See also Maric v R (1978) 20 ALR 513 per Gibbs J at 520; Stirland v DPP [1944] AC 315; [1944] 2 All ER 13 at 321; Driscoll v R (1977) 137 CLR 517; (1977) 15 ALR 47 at 69. APPELLANT'S SUBMISSIONS

13. [31]

    The appellant submitted that this Court could not conclude that but for the admission of the disputed material, the conviction was inevitable (Crofts at 440 - 441).

14. [32]

    The appellant drew an analogy between the disputed articles and evidence of a defendant's prior convictions or bad character which, it was suggested, will normally jeopardise the prospects of a fair trial: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 604 per Mason CJ and Toohey J, quoting Maxwell v DPP [1935] AC 309 at 317; Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 90 per Toohey J.

15. [33]

    The appellant argued that the revulsion with which acts of terrorism are regarded by members of the public and by the courts increased the risk of unfair prejudice (R v Wood [1996] 1 Cr App Rep 207 at 219A per Staughton LJ). This risk was said to be further elevated by Dr Kohlmann's evidence that the Internet was al-Qaeda's preferred means of communication. The appellant submitted that the jury could not avoid concluding that the contents of the e-book were published or at least endorsed by al-Qaeda and further, that the e-book was published on the Internet because that was the forum preferred by al-Qaeda.

16. [34]

    The appellant emphasised that although there was no evidence establishing that the appellant had any direct links with al-Qaeda or with the authors of the material contained in the e-book, "the material, to which the articles referred, effectively closed that gap, by asserting that the Appellant was a sponsor of, or participant in, terrorism."

17. [35]

    The appellant did not agree that the risk of prejudice was minimised because he had used the magazine as a forum in which to deny the allegations. The appellant drew attention to a number of United States authorities which recognised the tendency on the part of juries to regard false or incorrect assertions as 'facts' notwithstanding their vehement denial by the witness (see, eg, Scheri v DePaolo 68 NJ Super 297, 172 A 2d 233; Ebron v United States 838 A.2d 1140 cf United States. v Pugh, 436 F.2d 222, 225 (C.A.D.C. 1970)).

18. [36]

    It was submitted that the source of the material further elevated the risk of prejudice. Not only was material conveyed in a television program that was likely to be regarded by the jury as a reputable source of current affairs information (ABC v Comalco Ltd (1986) 12 FCR 510 at 520 per Smithers J); that material was said to have originated from governmental intelligence agencies including the CIA. The appellant submitted that the jury: "might quite legitimately assume that such intelligence agencies would (or at the very least should) be aware of who is involved in terrorist activity. There is a particular danger when the prejudicial information is said to come from an authoritative source. See, e.g., R v. McCann (1991) 92 Cr.App.R. 239 per Beldam LJ..."

19. [37]

    According to the appellant, no direction was capable of curing the unavoidable prejudice caused by the introduction of the disputed articles. CROWN SUBMISSIONS

20. [38]

    The Crown asserted that the material was not so damaging as to require the discharge of the jury. It distinguished R v Halliday [2009] VSCA 195 (in which a document containing prior convictions was inadvertently put before the jury) and Pak v R [2000] WASCA 309 (in which evidence of bad character was inadvertently led in cross-examination) from the present case. It argued that it is ultimately for the trial judge to determine whether in the interests of a fair trial, there is a need for the jury's discharge (R v Hortis [2004] VSCA 143 per Nettle JA at [18], citing R v Boland (1974) VR 849 at 866; R v Vaitos (1981) 4 Crim App R 238 at 243 and R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533).

21. [39]

    The Crown submitted that the material contained in the disputed articles was of a different nature to evidence of a prior criminal record, bad character or antecedents. It was submitted that the material was evidence of the appellant's support for a terrorist group, a fact in issue which went to a core requirement of the offence, namely, that the appellant knew of the connection between the e-book and assistance in a terrorist act. It was submitted that: "references to assertions of the Appellant's involvement in acts of terrorism which he chose to publish in a publicly available magazine in order to refute them are a far cry from inadmissible evidence of prior criminal acts, much less criminal acts of terrorism."

22. [40]

    The Crown argued that R v Wood involved prejudice of an entirely different order to that involved in the present case. The prejudice in that case was occasioned by "constant press material during the course of the accused's trial for a terrorist offence [as well as] the trial judge's slanted summing up against the accused."

23. [41]

    It was argued that the trial judge's direction was sufficient to guard against the possibility that the jury, knowing that the charge related to terrorism, would attach undue significance to the material. There was a clear direction to: "put completely to one side the allegations against the Appellant in the Four Corners program of links to al Qaeda and funding of terrorist acts, which he strongly refuted through the magazine itself, and [to] objectively consider the evidence brought against him on the specific charges in the indictment."

24. [42]

    It was submitted that it was relevant that the appellant himself refuted the allegations. He was not merely "attempting" to refute them (as contended by the appellant) but refuting them in no uncertain terms. The submission reads: "The articles contain detailed arguments in support of their themes that the program and newspaper stories were untrue, unfair, unbalanced and calculated to inflame community passions against Australian Muslims, using the Appellant and his brother as the vehicle for the attack. The program and newspaper articles had plainly been widely disseminated in the community. The magazines containing the refutations were openly published and distributed. Each of the magazines is bilingual, containing an Arabic portion and an equivalent English portion. Rather than constitute irrefutable evidence of bad character of the kind exemplified in Crofts and Marec, they present the Appellant as the innocent victim of a malicious media campaign 'inciting hatred against Muslims in Australia' (close of first article)." (emphasis in original)

25. [43]

    The Crown said that the United States authorities referred to by the appellant were not relevant as they concerned assertions put to witnesses in the course of cross-examination. Further, they did not take account of the principle recognised by Gleeson CJ in R v VPH (Unreported, New South Wales Court of Criminal Appeal, 3 March 1994 at 7) that appellate courts in this country have no choice but to assume that juries understand and comply with the directions given to them by trial judges.

26. [44]

    The Crown made a number of submissions in response to the appellant's assertion that the source of the material increased the potential for prejudice. First, it was said that Smithers J in ABC v Comalco was not suggesting at 520 that the ABC or its Four Corners program "had any particular reputation for truth and accuracy in relation to the content of its programs." Having reviewed the relevant portion of Smithers J's judgment, I would agree. Second, it was submitted that the appellant's reliance on R v McCann & Ors (1991) 92 Cr App R 239 was misplaced. That case concerned a government announcement, aired by the BBC at a critical stage of the trial, to the effect that the right to silence would be narrowed by legislation. The announcement attracted significant publicity and the support of Lord Denning, who stated publicly that the right to silence was a right exercised by the guilty. The trial judge's decision to refuse to discharge the jury was overturned on appeal. It was submitted by the Crown that "nothing about the articles in question comes close to the extreme prejudice discussed in McCann."

27. [45]

    The Crown submitted that any unfair prejudice occasioned to the appellant as a result of the tender of the disputed articles was remedied in the trial judge's directions to the jury and accordingly that the present case is distinguishable from Crofts and Maric. DETERMINATION

28. [46]

    The appellant's purpose in tendering the magazine was to demonstrate that the e-book was, like the magazine, a legitimate literary publication. The prosecutor sought to rely on the disputed articles as evidence that the appellant was a member of the IYM but urged the jury to disregard the allegations contained in the disputed articles.

29. [47]

    The trial judge gave numerous directions in relation to the disputed articles. The jury was advised in clear terms that the appellant was not being tried for crimes of terrorism or for being a member of al-Qaeda. He was not accused of having any direct communications with al-Qaeda operatives. At its highest, the Crown case suggested that the appellant had been an al-Qaeda enthusiast. The jury was reminded of the fallibility of media outlets and of the fact that the allegations were strongly denied by the appellant in the disputed articles themselves.

30. [48]

    In my judgment the directions given by the trial judge were adequate to deal with the issues which had arisen. I am satisfied that the jury was made aware of the limited purpose for which the Crown relied on that evidence. The prosecutor and the trial judge took various opportunities to caution the jury against improper use of the disputed articles. The trial judge was alive to the atmosphere of the trial and to the disposition of the jury and was in the best position to assess whether the circumstances demanded the jury's discharge (El Hassan v R [2007] NSWCCA 148 per Hunt AJA at [15], citing House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505; Kanaan & Ors v R [2006] NSWCCA 109 at [50]; R v Ngo [2003] NSWCCA 82 at [49]; R v Ball (1960) 61 SR 37 at 41-42; see also GAR v R (No 2) [2010] NSWCCA 164). I am not satisfied that the trial judge's refusal to discharge of the jury occasioned a risk of a substantial miscarriage of justice (Crofts at 441).

31. [49]

    The arguments ventilated in relation to this issue are illustrative of the tensions which have increasingly emerged between the unfair prejudice which may be occasioned to an accused when the jury receives information which it should not have had (whether in evidence or otherwise) and the jury's capacity to act on instruction given to it by the trial judge. If the assumption of the common law that jurors understand and follow the judge's instruction is to be more than hollow rhetoric it is important that appellate courts pay appropriate respect to the discretion of the trial judge who is in a far superior position to the appellate court to appreciate the atmosphere of the trial and determine whether appropriate instruction will ensure that the trial is fair.

32. [50]

    Although not adverted to by the trial judge, given the appellant's propensity for publishing material relating to jihad and apparent support for assassination it would hardly have come as a surprise to the jury that he was under suspicion from security authorities. It was an inevitable background to the charges which were laid by the Crown.

33. [51]

    I would dismiss this ground of appeal. Ground 2 Alleged misdirection with respect to delay by authorities in seeking the removal of the book from the Almaqdese website

34. [52]

    In his closing address, counsel for the appellant submitted that the evidence clearly established that ASIO and the Australian Federal Police had delayed in procuring the removal of the e-book from the Internet. These agencies had known about the e-book when it was uploaded onto the Almaqdese website in September 2003 yet, according to the appellant, took no active steps to have it removed until May 2004. It was submitted that, given the delay, the jury was entitled to conclude that the elements of the charge were not made out. The trial transcript reads, relevantly: "Authorities knew about it, you might think, within a reasonable time. Nothing was done. Nothing. This conduct said by the Crown to have posed such a terrorist threat didn't cause the authorities to act. What were they waiting for, the thing to happen? We know it never happened anyway. Or was it the case that the authorities really didn't think back then that it was the thing that they now claim it to be? Of course, we had the intervening - before the events in September/October '03 and the date of arrest in June of '04, almost a year later, we had the interviews, search of a home. The Crown can only say in relation to the home, 'Well, look, we rely on the book. Our case is the book, the book, the book, the book. That's enough.' Or, what, is it not a legitimate point that when they raided the home they did so for a purpose? They did so, you might think, in the belief that something would be produced. And yet there is no evidence. They took the computer, they took a copy of the computer, went through the home. Not one piece of evidence to support the allegations that are made in this case."

35. [53]

    In her Honour's summing-up, the trial judge directed the jury to disregard that portion of the appellant's closing address. Her Honour remarked: "It would be wrong and perverse to assume, as [counsel for the appellant] invited you to do, that one explanation for the arrest of the accused some time after he first came to the notice of the authorities was that the prosecution was waiting for a terrorist act to be committed. There is no evidence of that and, in fact, the evidence supports a completely different explanation, namely, that a careful translation of the document was necessary before the serious step of laying criminal charges could be taken..."

36. [54]

    Counsel for the appellant addressed her Honour on this direction in the absence of the jury. Her Honour quite rightly questioned how any delay on the part of the authorities could bear upon the jury's consideration of the elements of the charge. Counsel for the appellant responded as follows: "Well, the imputation is - well, those in authority, who were dealing with this matter, may or may not themselves have perceived this material as being anything but advocacy."

37. [55]

    The appellant now asserts that the trial judge misunderstood the appellant's submission. It is said that her Honour assumed that the evidence of the delay was being relied on as a form of opinion evidence to establish that the authorities did not believe that the appellant was guilty of the offence. The true purpose was said to be to demonstrate that the authorities did not consider the e-book to have posed a threat of imminent danger. As a result, it was said, the jury could not conclude that there was a connection between the e-book and assistance in a terrorist act as required by s 101.5(1)(b) the Code. If the jury was entitled to consider the evidence of Dr Kohlmann in determining that the e-book did pose an imminent threat, then it was also entitled to consider contrary evidence adduced by the appellant.

38. [56]

    It was submitted that the trial judge's direction to the jury was "particularly harmful" to the appellant because it required the jury to ignore evidence favourable to him (that the e-book could not assist a potential terrorist) and because it personally criticised the appellant's trial counsel.

39. [57]

    It was said that the jury's inability to reach a verdict in respect of Count 2 demonstrated that the evidence about the e-book's utility to a potential terrorist was critical, and that any contrary evidence was of fundamental importance to the appellant's defence to Count 1. DETERMINATION

40. [58]

    As the Crown observes, no evidence was elicited at the trial to suggest that either ASIO or the Australian Federal Police had the means to compel the removal of the e-book from the Almaqdese website. In those circumstances, I doubt very much whether it could be said that the authorities "delayed" in procuring the removal of the e-book from the Internet. Leaving that to one side, the difficulty with the appellant's submission, even as rephrased or clarified, is the opinion evidence rule. As the Crown submitted: "Just as an ASIO or AFP officer could not give admissible evidence that in his/her opinion the Appellant had not done anything wrong, the jury were not entitled to take into account in arriving at their verdict whether the authorities were of the opinion the book did not constitute an imminent danger and for that reason was not connected with assistance in a terrorist act." (reference omitted)

41. [59]

    I do not accept the appellant's submission that he was "entitled" to adduce evidence that the e-book posed no imminent threat. Dr Kohlmann was the only witness to give evidence on the e-book's connection with assistance in a terrorist act. He was never asked whether the e-book posed a threat of imminent danger. I accept the Crown's submission that the Appellant's argument is underpinned by the incorrect proposition that a document which does not constitute an imminent danger is thereby not connected with assistance in a terrorist act.

42. [60]

    There being no evidence that the e-book posed a threat of imminent danger, it cannot be said that her Honour's direction removed from the jury's consideration "evidence capable of supporting defence counsel's submission that the book was incapable of assisting a potential terrorist."

43. [61]

    I do not believe that her Honour's direction unduly criticised counsel. Nor is it appropriate to speculate upon the jury's reasoning process in relation to Count 2 and to extrapolate from that an inference that the "evidence" was improperly excluded from the jury's consideration in relation to Count 1.

44. [62]

    This ground of appeal should be dismissed. Ground 3 Alleged misdirection with respect to the words "connected with"

45. [63]

    Section 101.5(1)(b) of the Code requires that the relevant document be "connected with preparation for, the engagement of a person in, or assistance in a terrorist act." The Crown case proceeded on the basis that the e-book was "connected with...assistance in a terrorist act."

46. [64]

    At the trial, the appellant's counsel sought a direction in the following terms: "The words 'connected with' mean that the book must itself have been capable of directly assisting in the commission of a terrorist act. A mere remote connection will not suffice."

47. [65]

    The trial judge declined to direct the jury in those terms, instead directing that the words "connected with" be given their ordinary meaning. Her Honour told the jury: "So, let me go to element (c). You will see that the focus of this element is on the connection between the document ... 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, 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."

48. [66]

    The appellant modified his position on appeal. It was said that the jury should have been directed that, before the necessary connection could exist, the e-book must have factually and appreciably furthered the commission of a terrorist act, making it "more likely" to take place.

49. [67]

    The appellant's counsel filed supplementary submissions which appear to qualify this modified position. The supplementary submissions read: "Whether or not the jury should have been told they had to treat the words in the way suggested by the appellant's counsel ... they should at least have been directed that more than a remote connection was required."

50. [68]

    It seems that the appellant no longer claimed that a positive definition of the phrase "connected with" was required (whether in the terms originally advanced or as put on appeal). As I understand it, the appellant now simply contends that the jury should have been told that more than a remote or tenuous connection was required.

51. [69]

    The appellant submitted that the words "connected with" did not have a plain English meaning that was "appropriate to all occasions". Accordingly, a restrictive interpretation was necessary to avoid latent ambiguity (Beckwith v R (1976) 135 CLR 569 at 576; Arnold v R (1993) NSWLR 73 at 86 - 87 per Abadee J).

52. [70]

    Reference was made to the remarks of Spigelman CJ in R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [28] where the Chief Justice said: "The phrase 'in connection with' is capable of considerable breadth, however it always takes its colour from its surroundings. The full scope of the dictionary definition is rarely, if ever, appropriate."

53. [71]

    It was submitted that the "highly penal" statutory context in which the phrase appears (R v Novakovic [2007] VSCA 145; (2007) 172 A Crim R 414 per Ashley JA at [59]; citing Murdoch v Simmonds [1971] VR 887 per Adam J at 889) demands a more confined interpretation. The appellant cited the remarks of Hall J in Halpin v Department of Gaming and Racing (2006) 68 NSWLR 211 at [47] ("where provisions creating or extending criminal liability can reasonably be construed in two or more ways, they are to be given the narrowest of the alternative interpretations").

54. [72]

    Reference was made to the decision in R v Zafar [2008] QB 810 which concerned an offence under s 57 of the Terrorism Act 2000 (UK) (the equivalent of s 101.4 of the Code), which reads: "A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism." (emphasis added)

55. [73]

    Lord Phillips CJ observed at [28] - [29] that considerations of certainty required that the phrase "for a purpose connected with" be defined narrowly. That approach was endorsed by Lord Osborne in Siddique (Mohammed Atif) v HM Advocate [2010] HCJAC, in which it was held that the phrase "in connection with" "requires a direct connection between the object possessed and the act of terrorism" (at [82]).

56. [74]

    Following the hearing of oral argument the court drew the parties attention to the decision of the Victorian Court of Appeal in Benbrika & Ors v R [2010] VSCA 281. That case was concerned with an alleged breach of s 101.4 of the Criminal Code. The issue considered by the Court of Appeal was concerned with the direction to be given to the jury when a person is charged with possessing a "thing" which is "connected with preparation for a terrorist act."

57. [75]

    No application was made to amend the grounds of appeal in the present case.

58. [76]

    The appellant submitted that Benbrika decided that before Benbrika could be convicted three requirements must be proved. Firstly, there must be a terrorist act which is either proposed or contemplated, secondly some activity which assists that act and the thing must be intended to be used in aid or as part of that assistance.

59. [77]

    It was further submitted that the "connection" contemplated in the section was informed by the intention or purpose of the person which existed at the time the thing was possessed.

60. [78]

    The appellant submitted that Benbrika was an authority which this Court should accept to be binding and which provided the approach which this Court should take to s 101.5. CROWN SUBMISSIONS

61. [79]

    The Crown did not accept the appellant's assertion that the plain English meaning of "connected with" is so broad as to require some restriction in the context of the Act.

62. [80]

    It was submitted that the true significance of Orcher lay in affirming that the meaning of phrases such as "in connection with" is heavily context-dependent: per Spigelman CJ at [30], quoting with approval Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146 ("The words 'in connection with' are words of wide import and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear"). Reference was also made to the remarks of Davies J in Hatfield v Health Insurance Commission (1987) 15 FCR 487. His Honour remarked at 491 that the words "in connection with" and similar phrases (e.g. "relating to", "in respect of") are likely to vary in meaning from statute to statute, and although theoretically capable of wide import, their meaning is generally confined by the context in which they appear.

63. [81]

    The authorities which restricted the meaning of "for a purpose connected with" in the context of s 57 of the Terrorism Act 2000 (UK) were of no value. The offence under s 57 (possession for terrorist purpose) permits guilt to be proved on the basis of a reasonable suspicion that the possession is connected to the commission, preparation or instigation of an act of terrorism. Accordingly, it is unsurprising that s 57 was interpreted to require a direct connection between the object possessed and the terrorist act.

64. [82]

    The Crown drew attention to the decision of R v Lodhi [2006] NSWSC 691 which also concerned an offence under s 101.5(1) of the Code. The offender had collected maps which were intended to be used in the preparation for a bombing of Australia's electricity supply system. Whealy J directed the jury in the following terms: "The words 'in connection with the preparation for an action or threat of action' really underline that we are concerned with actions taken, for example the collection of documents, where the documents themselves are connected with preparation taken towards the implementation, and hence in advance, of the projected act. Now, in relation to that, you need to understand that the concept of preparation requires proof of something intended to advance the implementation of the projected terrorist act."

65. [83]

    It was submitted that the directions given by the trial judge in the present case accorded with those given by his Honour in Lodhi.

66. [84]

    In its supplementary submissions, the Crown argued that the trial judge's directions relating to knowledge prevented the jury from acting on a remote connection. Those directions were in the following terms: "The elements of the offences, which the Crown must prove beyond reasonable doubt, are as follows:- Count 1 ... (e) The accused knew (that is, he was aware) at the time he made the document, of the connection between the document and assistance in the action, or threat of action, referred to in (c), that is: i) he was aware of the action, or threat of action, referred to in (c) ; and ii) he was aware of the intention by that action, or threat of action, to advance a political, religious or ideological cause, namely, the advancement of the Muslim religion in the world, including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christian and other non-Muslims from that region ; and iii) he was aware, by that action or threat of action, it was intended to coerce or influence by intimidation one or more of the following - the Government of the Commonwealth, the government of a foreign country, or to intimidate the public or a section of the public ; and iv) he was aware that the action or threat of action, if carried out, would cause serious physical harm to a person; or serious damage to property; or a person's death; or endanger a person's life, other than the life of the person taking the action; or create a serious risk to the health or safety of the public or a section of the public; and v) he was aware that the action or threat of action was not advocacy, protest, dissent or industrial action OR he was aware that the action or threat of action was intended to cause serious physical harm to a person; or a person's death; or was intended to endanger a person's life, other than the life of the person taking the action; or was intended to create a serious risk to the health or safety of the public or a section of the public."

67. [85]

    It was said those directions "necessarily excluded the possibility of a conviction based on an indirect or remote connection" and accordingly there was no need for the direction which the appellant argues was required.

68. [86]

    Finally it was submitted that this Court should apply the proviso in the event that error was found with respect to the directions given by the trial judge. DETERMINATION

69. [87]

    The initial question is whether the trial judge was required to direct the jury that more than a remote or tenuous connection between the e-book and the relevant assistance was required.

70. [88]

    Section 101.5 of the Code creates a serious criminal offence punishable by a maximum of 15 years imprisonment. The offence falls within Part 5.3 of the Code. Part 5.3 was originally inserted into the Code by the Security Legislation Amendment (Terrorism) Act 2002 (Cth). The second reading speech to that Act reads, relevantly: "No country has ever been immune to the threat of terrorism. While there is no known specific threat of terrorism in Australia at present, we must ensure that we are as well prepared as possible to deal with the new international security environment. Terrorist forces, through violent and intimidatory methods, are actively working to undermine democracy and the rights of people throughout the world. We must direct all available resources, including the might of the law, at protecting our community and ensuring that those responsible for threatening our security are brought to justice. And we must do so as swiftly as possible. The Howard Government emphatically rejects any suggestion that because we have not experienced any direct terrorist threat in Australia since September 11 this package of legislation is not justified or is an over-reaction. We are actively involved in the war against terrorism. We cannot assume that we are not at risk of a terrorist attack. We cannot afford to become complacent. And we should never forget the devastation of September 11. The Howard Government takes very seriously the responsibility to protect Australia against terrorism. We will be seeking to bring this important package of legislation on for debate as soon as possible."

71. [89]

    The significance of the events leading to the enactment of Part 5.3 cannot be overstated. The explanatory memoranda to Part 5.3 make plain that the legislative intention underpinning that Part is to eradicate the threat and occurrence of terrorist acts in Australia. Although there is no "purpose clause" specific to Part 5.3, Parliament's intention in enacting the offence under s 101.5(1) of the Code is discernable from s 100.4 (which extends Part 5.3 to preliminary acts that concern terrorist acts but are not in themselves terrorist acts) and from s 100.6 (which preserves the operation of State and Territory laws). That Part 5.3 was intended to operate expansively gains support from the judgment of Spigelman CJ in Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 at [66]: "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, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."

72. [90]

    That same legislative policy is found in s 101.5(3)(b) of the Code, which reads: "A person commits an offence under subsection (1) or (2) even if ... the document is not connected with preparation for, the engagement of a person in, or assistance in a specific terrorist act..."

73. [91]

    The question is not whether the words "connected with" give rise to ambiguity, but whether the words "the document is connected with ... assistance in a terrorist act" give rise to ambiguity. As the Victorian Court of Appeal said in Benbrika at [323], "it is erroneous to construe the words 'connected with' in isolation from their context."

74. [92]

    A connection can exist between innumerable things and occur in almost innumerable ways. Whether the e-book was connected with assistance in a terrorist act was a question of fact for the jury, applying its understanding of the relevant words.

75. [93]

    The appellant argued that the trial judge should have imposed a qualification on the words of the statute so that the jury were instructed that "more than a remote connection was required." I do not accept the submission. The words in "connection with" are ordinary words which the jury were obviously capable of understanding. I accept that the connection must be more than ephemeral but I see no reason why the jury should have been given a judicial gloss on the words used by the legislature. There is nothing in the legislation to suggest that the jury should be required to do other than apply their ordinary understanding of the words "connected with" to the fact finding required of them. If they consider the alleged connection to be ephemeral or so remote that it could not be described as "connected with" the relevant assistance, they would respond accordingly.

76. [94]

    Benbrika was concerned, inter alia, with an offence under s 101.4(1) of the Code, which reads: "101.4 Possessing things connected with terrorist acts (1) A person commits an offence if: (a) the person possesses a thing; and (b) the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b)."

77. [95]

    The charge in Benbrika related to the possession of a "thing" being a compact disc containing extremist literature, videos and images ("the Mansura CD"). Copies of the Mansura CD were found at two of the accused's premises. The trial judge directed the jury in the following terms: "The second thing that the Crown has to prove is that the [Mansura] compact disc was connected with preparation for a terrorist act. In the context of this case, what that means is that the compact disc had some sort of connection to, or relationship with, a terrorist act, and, in the circumstances of this case, that means no more than that if you were satisfied that the organisation of which Benbrika was a member, if you found that he was a member, was engaged in fostering or preparing a terrorist act, that terrorist act, whatever it was, would be sufficient to found that connection if you thought that something on the CD was connected with a terrorist act. 'Connected with' is a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act (Court of Appeal's emphasis)."

78. [96]

    A question on appeal was whether a "direct connection" between the Mansura CD and preparation for a terrorist act was required. The Court of Appeal (Maxwell P, Nettle and Weinberg JJA) said: [324] The question is not, as the English cases suggest, whether there is a direct connection between the thing and the act of preparation. It is rather whether the connection, as manifested in all the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term 'connected with'. The possession of innocuous and everyday items, such as a cheque book, even one intended to be used, as one of its purposes, for a nefarious end, is not sufficient, in our view, to meet the statutory requirement. ... (references omitted)."

79. [97]

    I respectfully agree with this approach and adopt it in relation to the question in the present appeal.

80. [98]

    There was a particular problem in Benbrika which is not present in the present case. Because the relevant thing was an inanimate object Benbrika's possession of it may have been innocuous. The thing alone could not determine whether there was the relevant connection. For this reason the court said that before Benbrika could be found to have committed an offence against the statute there had to be a terrorist act for which preparatory activity was, at least, in contemplation [338]. Once this was recognised the problem with the trial judge's direction becomes apparent.

81. [99]

    The trial judge directed the jury that "connected with" was: "a very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act."

82. [100]

    The omission which caused the problem was the failure to refer to "preparation" for the terrorist act which informed the nature of the required connection. The Court of Appeal identified the problem and said: "Used in s 101.4(1) the phrase does have a particular meaning. It means that the thing must be shown to have been 'connected' with preparation for a terrorist act' by virtue of some person's having had the purpose of using the thing in, or in aid of, preparation for the terrorist act."

83. [101]

    In the present case the appellant was charged with making a "document connected with assistance in a terrorist act." The connection which the prosecution identified 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. There was more but this 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 appellant (Benbrika [338]). Proof of a specific terrorist act was not required.

84. [102]

    The trial judge took a different approach to the trial judge in Benbrika. Her Honour told the jury that the phrase "connected with assistance in an action or threat of action" has no special or technical meaning. She directed their attention to the particulars saying: "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 anyone of the persons that are set out in the particulars, then the Crown has proved that element of the offence."

85. [103]

    The particulars identified persons including diplomats, military personnel and holders of public office. Her Honour continued: "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."

86. [104]

    By taking this course her Honour, as was appropriate, confined the jury's deliberation to the issues raised at the trial and directed the jury's attention to the content of the document which the appellant was proved to have created. Her Honour's direction was faithful to the words of the section and placed the words "in connection with" in their appropriate context. Her Honour did not, as occurred in Benbrika, place any gloss on those words. The jury were not invited to act upon "some connection" or a "remote connection." They were instructed to look at the document and determine from the document whether the Crown had proved the relevant connection.

87. [105]

    I would dismiss this ground of appeal. Ground 4 Alleged error with respect to the application of s 101.5(5) of the Code

88. [106]

    There are two fault elements for the offence constituting count 1 on the indictment. The first is that the appellant intentionally made the document. The second is that he knew that the document was connected with assistance in a terrorist act. Section 101.5(5) (para [2] above) provides a possible defence. It provides, inter alia, that s 101.5(1) will not apply if "the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act." The defendant bears an evidential burden in relation to the defence. Section 13.3(3) is in the following terms: "A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification in relation to an offence bears the evidential burden in relation to that matter."

89. [107]

    Section 13.3(6) further provides: "(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."

90. [108]

    Whether the evidential burden has been satisfied is a question of law (s 13.3(5)). If a defendant discharges that burden, the prosecution must then disprove it beyond reasonable doubt. Sections 13.1(2) and (3) provide: "(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant. (3) In this Code: 'legal burden', in relation to a matter, means the burden of proving the existence of the matter."

91. [109]

    At the trial, counsel for the appellant made an application for a direction in the following terms: "If there is a reasonable possibility that the appellant did not make the book with the intention of facilitating assistance in a terrorist act, then the jury must be satisfied beyond reasonable doubt that the making of the book was intended to facilitate assistance in a terrorist act."

92. [110]

    Counsel for the appellant drew the trial judge's attention to evidence which, he submitted, supported the relevant inference. Her Honour ruled that the defence had not been engaged or, if it had, that the appellant had not discharged his evidentiary burden.

93. [111]

    As to the issue of engagement, her Honour remarked: "When pressed to explain what was to be submitted to the jury as to the accused's intention in making the book, the answer was, and I quote, 'The accused intended 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.' That was later amended by the addition of the words 'by lawful means' after the word 'intended'. That adds nothing to the submission but merely restates that the accused denies liability. ... However, ultimately the only direction sought by Mr Thomas and Mr Lange is that outlined at paragraph 2 of these reasons. It was submitted that no other direction was necessary. The reluctance to express the accused's case in terms of what he intended as opposed to what he did not intend exposes the flaw in the accused's submission that section 101.5(5) applies in the circumstances of this trial. ... Whilst it is true that section 101.5(5) states that liability is avoided where there is no intention to facilitate assistance in a terrorist act, the note to the subsection refers to 'the matter' in subs 5 and to section 13.3(3). The latter provision and section 13.3(6) make it clear that, 'An exception, exemption, excuse, qualification or justification,' is 'the matter' and that its existence or non-existence may be suggested as a reasonable possibility by the evidence relied upon to discharge the burden. It is also clear that a fault element is not a matter; see section 13.1(1) and (2). It is therefore difficult to accept the proposition that the matter relied upon by the accused as the exception is, in effect, the fault element which the Crown must negative beyond reasonable doubt."

94. [112]

    Her Honour then addressed the sufficiency of the evidence said to suggest an absence of intention. Her Honour's reasons read, relevantly: "In the case of an offence under section 101.5, subs 5 contemplates the advancement of a defence by adducing or pointing to evidence which suggests the reasonable possibility that the defendant did not intend to facilitate assistance in a terrorist act. Whilst the threshold for the discharge of the evidentiary burden is relatively low, in that the evidence taken at its highest need only be suggestive of the possibility of the absence of intention, it is not sufficient that it is a mere possibility. The example proffered by the Crown of such a defence, and one that was a real point of discussion and debate in the formulation of the offence, is the terrorism consultant or adviser to government or law enforcement agencies, who collects and collates material advocating the commission of terrorist acts in the course of his or her employment. Whilst technically guilty of an offence under section 101.5, the fact of the person's employment status and duties suggest a reasonable possibility that he or she made such a document without any intention to facilitate assistance in a terrorist act. ... These factors ... are inconsistent with an intention to facilitate assistance in a terrorist act. The accused's status as a journalist and researcher is not of the same character. His occupation as a journalist and the circumstances under which he made the book, namely, at short notice at the behest of 'the brothers', are not objectively inconsistent with an intention to facilitate assistance in a terrorist act. As I have already observed, in the absence of any evidence from the accused, his counsel sought to rely upon various categories of evidence in the trial from which the inference might reasonably be drawn that the accused did not intend to facilitate assistance in a terrorist act. It is not necessary to set out in detail that evidence save to say that the Crown relies upon precisely the same evidence to prove the book's connection with assistance in a terrorist act and the accused's knowledge of that connection. Herein lies the paradox inherent in the accused's application to leave subs 5 to the jury. The accused proposes to submit to the jury that the evidence in the trial would not allow them to draw the conclusion beyond reasonable doubt that the accused knew of the book's connection with assistance in a terrorist act and, in the event that those submissions fail, rely on the same evidence as suggestive of a reasonable possibility that the accused did not intend facilitating assistance in a terrorist act. The effect is to put the Crown to proof on a fault element that does not form part of the offence." APPELLANT'S SUBMISSIONS

95. [113]

    The appellant's submissions to this Court were concerned with the issue of the evidence necessary to discharge the evidential burden. They do not appear to address her Honour's finding that the defence was not engaged.

96. [114]

    The appellant submitted that the evidential burden only required him to point to evidence suggesting a reasonable possibility that "the matter" did or did not exist (s 13.3(6)). It was said that her Honour erred in requiring the appellant to point to evidence that was inconsistent with an intention to facilitate assistance in a terrorist act. This was said to have imposed a legal rather than evidential burden. In other words, instead of assessing whether the evidence left the defence open, her Honour considered whether the defence would succeed.

97. [115]

    The appellant submitted that proof of a negative state of affairs (that the appellant lacked a particular intention) required "slender evidence" (Jeffrey v DPP (1995) 121 FLR 16; (1995) 79 A Crim R 514 at 518; Fowkes v DPP [1997] 2 VR 506; (1996) 88 A Crim R 166 at 512; Brauer v DPP [1991] 2 Qd R 261; (1989) 45 A Crim R 109 at 113). It was not possible for the appellant to entirely exclude the possibility that he intended the e-book to facilitate the assistance of a terrorist act. What mattered was: "whether the accused can point to evidence, or some factual thing, which suggests a reasonable possibility that his purpose was one other than that criminalised by the section."

98. [116]

    It was submitted that the appellant was not required to point to evidence suggesting that he made the e-book for a purpose other than to facilitate assistance in a terrorist act. He merely had to point to evidence suggesting a reasonable possibility that his intention in making the e-book was to assist in educating others about jihad (Texas Department of Community Affairs v Burdine 450 US 248, 101 S. Ct 1089 and Board of Trustees of Keene State College v Sweeney 439 US 24, 99 S. Ct 295). It was said that that was what the appellant did. He pointed to his previous work as an accredited journalist, which included his work on the magazine. He also pointed to the e-book itself, which he said merely collated various works on the topic of jihad. Some of the writings were centuries old and written in script that would not be readily comprehensible to speakers of modern Arabic.

99. [117]

    It did not matter that the evidence was the same as that relied on by the Crown in its case. Section 13.3(4) makes it clear that "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."

100. [118]

     According to the appellant, the evidential burden had been discharged and it was for the Crown to rebut the defence by proving beyond reasonable doubt that the appellant intended to facilitate assistance in a terrorist act. CROWN SUBMISSIONS

101. [119]

     The Crown submitted that the trial judge was correct to find that the defence had not been engaged.

102. [120]

     The Crown accepted the appellant's formulation of the relevant test and agreed that it imposed a low threshold. Nevertheless, it was submitted that the evidence pointed to by the appellant did not satisfy that threshold.

103. [121]

     The trial judge could not be said to have imposed a legal burden upon the appellant. Her Honour did not require the appellant to point to evidence which necessarily excluded the incriminating intention.

104. [122]

     The Crown accepted that if the appellant discharged its evidential burden, the prosecution was required to satisfy the jury beyond reasonable doubt that the defence did not apply. What the Crown was required to negative was not, as the appellant submitted, the fault element (that the appellant did not intend to facilitate assistance in a terrorist act) but rather, the defence. The submission reads: "[The appellant's] position was that the evidence he identified as not permitting the jury to be satisfied beyond reasonable doubt that he knew of the book's connection with assistance in a terrorist act could also be relied on, if the jury were so satisfied, as evidence suggestive of a reasonable possibility that he did not intend facilitating assistance in a terrorist act. Had this been permitted the effect would have been to require the Crown to prove beyond reasonable doubt a fault element not forming part of the count 1 offence."

105. [123]

     The Crown then turned to the authorities cited by the appellant which concerned the extent of evidence required to prove a negative state of affairs. In Jeffrey, the appellant was required to prove that certain property "was not used in, or in connection with any unlawful activity and was not derived, directly or indirectly, by any person from any unlawful activity". Cole JA remarked at 518 that "[d]epending on the circumstances of each particular case, 'slender evidence may suffice to satisfy an evidential burden in relation to a negative state of affairs'" (footnote omitted). The Crown submitted that Cole JA's qualification was significant. Brauer was distinguished on the basis that the party upon whom the evidential burden was placed had limited means to produce the required evidence.

106. [124]

     In the Crown's view, the trial judge was correct to find that the threshold requirement of "slender evidence" required more than a mere possibility of the relevant matter. None of the evidence identified by the appellant went beyond a mere possibility that "in making the book knowing it was connected with assistance in a terrorist act the Appellant did not intend to facilitate such assistance." Any evidence of his scholarly intention was, in the submission of the Crown, equally consistent with a guilty intention to support Islam by terrorist means. DETERMINATION

107. [125]

     It is unnecessary to resolve the issues surrounding the direction suggested by the appellant. However, it confuses the role of the judge in deciding the threshold question and that of the jury if the threshold question is decided by the judge in the appellant's favour.

108. [126]

     It is also unnecessary to resolve the argument in relation to her Honour's analysis of the inter relation between s 101.5(1) and (2). However, evidence relevant to the evidential burden in ss (5) must, if the burden is discharged, be given consideration by the jury when determining whether an offence has been committed.

109. [127]

     The appellant identified four aspects of the evidence which it was submitted justified a finding that the evidentiary burden in s 13.3(6) was discharged. They included the fact that the appellant was an accredited journalist, a researcher and publisher, the fact that he had acquired and built up a library which he used in his research, he had a significant interest in the Islamic religion and had written and published articles on benign Islamic issues.

110. [128]

     Whatever be the difficulties with her Honour's approach to the legislative provision I am satisfied that this evidence was insufficient to discharge the evidentiary burden which fell upon the appellant. To discharge that burden the appellant 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 appellant 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 appellant 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.

111. [129]

     I would dismiss this ground of appeal.

112. [130]

     Since preparing my judgment I have become aware of the decision of the High Court in Braysich v The Queen [2011] HCA 14. In that case the majority said: "If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be: 1. In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived? 2. In a case in which both the legal burden and the evidential burden rest upon the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established? It is the latter question which should have been asked in this case at trial. It can be reframed by reference to s 998(6) into an inquiry whether there was evidence from which a reasonable jury, properly instructed, could find that it was more likely than not that the appellant lacked the proscribed purpose. Put another way - was there evidence from which the jury could conclude that it was unlikely, in the sense of improbable, that the appellant had the proscribed purpose?"

113. [131]

     As I understand the position nothing I have written is inconsistent with the approach to the resolution of this ground of appeal favoured by the majority. Relevant observations are also made by Haydon J [57] and Bell J [101] although their Honours were in the minority. "INCONSISTENT" VERDICTS

114. [132]

     The appellant made a further complaint which, although not articulated as a ground of appeal, is said to be relevant to the conviction appeal. In essence the appellant contended that the jury's inability to reach a verdict in relation to Count 2 calls into question its verdict in relation to Count 1. For Count 2 to have been established, the jury was required to be satisfied that the appellant intended that the offence alleged to have been incited would be committed: s 11.4(2). It was submitted that the jury's failure to find that the appellant intended to bring about an act of terrorism, or that he was aware that an act of terrorism would occur in the ordinary course of events (s 5.2(3)) was inconsistent with its finding, in relation to Count 1, that the e-book was connected with assistance in a terrorist act. The appellant submitted that: "If the Appellant had been aware that the document would, in the ordinary course of events, be connected with, in a direct and meaningful sense, any of these actions, the Appellant must necessarily also be said to have meant to bring about the commission of a terrorist act, or at the very least been aware that a terrorist act would be committed in the ordinary course of events. Each of these actions is, after all, a preliminary, and, indeed, necessary step to the commission of a terrorist act, where the author of the document is not the person committing the terrorist act. However, the jury's inability to reach a verdict in respect of count 2 demonstrates a contrary belief ... [namely that] the connection between the document and the actions is no more than tenuous."

115. [133]

     I reject this submission. As the Crown observed, the jury's inability to reach a verdict on Count 2 cannot be translated into a de facto verdict of not guilty. There is no necessary overlap between the element of knowledge in Count 1 and the element of intention in Count 2. It was open to the jury to find that the appellant knew that the document was connected to assistance in a terrorist act but not that the appellant intended to bring about an act of terrorism. This submission is without merit. THE PROVISO

116. [134]

     The Crown submitted that even if one or more grounds of appeal are upheld, the present case is suitable for the application of the proviso (Criminal Appeal Act 1912 (NSW) s 6(1)). I agree.

117. [135]

     The appellant compiled and published a lengthy document advocating the ruthless slaughter of innocent persons in the name of religion. He described the e-book as "urging for jihad", an entirely accurate description. The document contained detailed descriptions of the methods by which those assassinations could be carried out and identified particular groups and individuals as appropriate targets of assassination. Although primarily written by others the appellant adopted the text and endorsed its content.

118. [136]

     To my mind, accepting the approach I have endorsed to the construction of s 101.5(1) the Crown case was overwhelming. Even if the trial judge committed any of the errors asserted by the appellant, no substantial miscarriage of justice has occurred. The prosecution case was dependent upon both the content of the document and its method and place of publication. The connection with assistance in a terrorist act was obvious from the document as was the appellant's knowledge of that connection and his intention in publishing. THE SENTENCE APPEAL Ground 1 Alleged error in assessment of objective seriousness

119. [137]

     Her Honour commenced her consideration of the objective seriousness of the offence by considering the legislative policy underpinning Part 5.3 of the Code (which I have related above at [80] - [82]) and the remarks of Spigelman CJ in Lodhi concerning the need for condign punishment for terrorism offences. Her Honour observed at [11]: "The dissemination of extremist literature, connected or unconnected with a terrorist plot, is caught by the legislative scheme, no doubt because literature of the type sourced by the prisoner is capable of, and has been shown to, foment terrorist activity."

120. [138]

     At the sentence hearing, counsel for the appellant submitted that the jury's failure to reach a verdict in relation to Count 2 justified a submission that although the appellant knew of the connection between the e-book and assistance in a terrorist act, he did not intend to incite the commission of an act of terrorism. This, in turn, was said to reduce the objective seriousness of the offence to "the lowest end of the spectrum." Her Honour disagreed, remarking that intention was not an element of the Count 1 charge. Although its presence may aggravate the offence, its absence could not be a matter in mitigation (at [14]).

121. [139]

     Her Honour regarded it as significant that the e-book was published on the Internet, observing (at [15]): "[15] ... In circumstances where material of this nature is published on an internet site, chosen by the prisoner because of its connection with adherents of violent struggle against the enemies of Islam, allowing for almost instantaneous and international distribution, the Crown may never be in a position to bring forward evidence of the identity or numbers of people who read the document, or whether they are influenced by its contents to commit terrorist acts. That is precisely why the gravamen of the offence lies in the construction of a document likely to facilitate a terrorist act, whether or not such an act occurs."

122. [140]

     The sentencing judge took into account the substantial "volume, detail and accuracy" of the content of the e-book (at [19]). Her Honour accepted the Crown's description of the second half of the e-book as a "terrorist training manual" and noted the extent of harm that would be caused should the matters urged therein be carried through to completion (at [20]).

123. [141]

     Her Honour concluded that the objective seriousness of the offence was "not far removed from the worst category" for offences under s 101.5(1) of the Code (at [21]). In the appellant's view, this conclusion was "extraordinary".

124. [142]

     The appellant argued that her Honour's refusal to take into account intention when considering Count 1 "entirely disregard[ed] the factual matrix underlying the charges." He submitted: "Count 1 charged the Appellant with having compiled a document. In respect of count 2, the Crown alleged that the Appellant attempted to incite the commission of terrorist acts. The incitement was to be seen in the compilation and posting of the document. Accordingly, the intentions underlying counts 1 and 2 must have been identical. If the intention was lacking in respect of count 2, it must similarly have been lacking in respect of count 1."

125. [143]

     The appellant accepted that the jury's inability to reach a verdict on Count 2 did not definitively prove that the appellant lacked an intention to incite an act of terrorism. However, it was said that it meant that that the sentencing judge could not sentence the appellant for Count 1 on the basis that he did intend to incite an act of terrorism. Because the objective criminality of the offence could not be assessed without regard to the offender's intention, the trial judge's inability to find that the appellant intended to incite an act of terrorism should have considerably reduced the objective criminality of the offending.

126. [144]

     It was submitted that the sentencing judge erred in classifying the second half of the e-book as a terrorist manual. It was "entirely devoid of detail...provid[ing] no effective guidance as to how to put ideas into practice". It could not be viewed as the most reprehensible form of document contemplated by the offence.

127. [145]

     It was further submitted that it was wrong for her Honour to conclude that "the nature and extent of the publication of the document... was designed to maximise the speed and the reach of the dissemination of the document." Although publishing a document on the Internet may facilitate its distribution, there was no admissible evidence establishing that the appellant caused the e-book to be published online in order to maximise its impact. Further, there was no evidence that the appellant took any additional steps to facilitate the dissemination of the e-book once it had been published on the Almaqdese website.

128. [146]

     The Crown submitted that the jury's failure to reach a verdict on Count 2 did not suggest that the appellant lacked an intention to incite a terrorist act. Further, the elements of the Count 2 charge were irrelevant to the consideration of the elements of Count 1. The Crown disputed the appellant's assertion that the offence was "not one at which the legislation is principally aimed". It questioned the logic of the appellant's submission that the objective criminality of the offence was reduced by reason of her Honour's incapacity to find that appellant intended to incite an act of terrorism.

129. [147]

     It was further submitted that her Honour was entitled to adopt Dr Kohlmann's description of the second half of the e-book. Absent a finding that her Honour's conclusion was not rationally open, this Court could not substitute its opinion for that of her Honour's. Any attempt to characterise the e-book as "innocuous" owing to an apparent lack of detail would be to disregard the jury's verdict.

130. [148]

     According to the Crown, her Honour was entitled to find that the appellant published the e-book online in order to facilitate its dissemination. Dr Kohlmann's evidence laid a sufficient foundation for this finding. Judicial notice could be taken of the capacity of the Internet to facilitate the spread of information (Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 at 278). In addition, there was evidence that the e-book had actually been distributed. Finally, the Crown pointed to material which it said disproved the appellant's assertions (i) that his actions were confined to causing the e-book to be published online, and (ii) that he took no steps to bring the e-book to the attention of others. DETERMINATION

131. [149]

     The appellant complains that the sentencing judge failed to have regard to the jury's inability to reach a verdict in relation to Count 2. That is incorrect. Her Honour considered the matter, but determined, in my view correctly, that it was irrelevant to the sentencing task. The element of intention in Count 2 was no more relevant to the consideration of Count 1 than the fault element of any other Code offence. For the reasons provided by her Honour at [13], the possibility that the appellant intended to incite an act of terrorism was not excluded by the jury's failure to reach a verdict. For the reasons outlined by her Honour at [14], it cannot be said that the objective gravity of the Count 1 offence is reduced by reason of the absence of a verdict on Count 2. In addition, the absence of a finding of intention on Count 2 cannot possibly mitigate Count 1, the fault element of which is "knowledge". As the sentencing judge stated, "the absence of an aggravating factor does not, as a matter of logic, mitigate an offence."

132. [150]

     It was open to her Honour to accept Dr Kohlmann's classification of the second half of the e-book. Having considered the contents of the e-book (see above at [5] - [12]) I have no hesitation in concluding that her Honour's finding was open on the evidence. I have reviewed the material in the documents included in the confidential volume. They do not suggest that her Honour's conclusion was other than correct.

133. [151]

     I reject ground 1. Ground 2 Alleged error relating to the appellant's character

134. [152]

     At the sentence hearing, counsel for the appellant submitted that a finding of prior good character should be made, the appellant having no criminal record in Australia: s 16A(2)(m) Crimes Act 1914 (Cth).

135. [153]

     The Crown tendered evidence of the appellant's criminal history in Lebanon. The appellant had been convicted by the Permanent Military Court in Beirut for a number of offences in 2003 and again in 2005. The first set of convictions related to charges of forming a terrorist association, possessing explosive charges for the purpose of carrying out terrorist operations, and becoming concerned in a crime aimed at carrying out terrorist activities through explosive charges. The appellant was sentenced to a total term of imprisonment of 10 years in relation to those offences. The second set of convictions related to the formation of a criminal group with the intention of committing crimes against people and property, and attempting to commit crimes that undermined the security of the Lebanese State. The proceedings were conducted in the appellant's absence.

136. [154]

     The sentencing judge declined to make a finding of prior good character. Her Honour remarked that even if she was wrong in concluding that the appellant's foreign convictions were relevant, in offences concerning terrorism, "good character is of minimal significance to the sentencing exercise" (R v Lodhi (2006) 199 FLR 364 at [71], [91]). APPELLANT'S SUBMISSION

137. [155]

     According to the appellant, a court should not take into account an offender's foreign convictions where doing so would outrage the court's sense of justice (R v Postiglione (1991) 24 NSWLR 584 at 591 - 592). In the present case it was submitted that it would outrage this Court's sense of justice to take into account the appellant's foreign convictions because they were imposed in breach of the universal doctrine of procedural fairness.

138. [156]

     The appellant tendered a transcript of proceedings before the Permanent Military Court which he said confirmed that he had been served in absentia. The appellant also tendered an English version of the relevant Lebanese statute which permitted service in absentia. The appellant submitted that the obligation to provide notice to an accused person of the time and place of his or her trial is a universal tenet of criminal justice. The appellant also drew attention to allegations made by some of the appellant's co-accused to the effect that they had been tortured by the authorities during the investigation phase. Those allegations, combined with the denial of procedural fairness, required the sentencing judge to disregard the foreign convictions. Absent any evidence capable of contradicting the appellant's evidence of prior good character, the appellant submitted that the sentencing judge was bound to make a finding of prior good character. Her Honour's alternative conclusion that character was "of little moment" in terrorism offences was erroneous. Her Honour had to give the appellant "some credit" for his good character: R v Stafrace (1997) 140 FLR 427 at 432 per Hunt CJ at CL. CROWN SUBMISSIONS

139. [157]

     The Crown submitted that there was no evidence that the appellant was denied procedural fairness in Lebanon. The appellant did not give evidence at the sentence hearing disputing his guilt of those offences. Her Honour correctly applied the relevant principles taking into account the matters raised by the appellant and properly refused to sentence the appellant on the basis that he was a person of prior good character. The sentencing judge was also correct to conclude, in the alternative, that good character was of minimal relevance to the sentencing exercise given the nature of the offence. Even a finding of prior good character would not, in the Crown's view, have resulted in a lesser sentence. DETERMINATION

140. [158]

     The relevant principles can be succinctly stated. A court may have regard to foreign convictions even where the system under which they were imposed does not conform with the common law criminal justice system: Postiglione at 593B. The question is whether the procedures leading to those convictions were such as to evoke the outrage of this Court. The evidence relied on by the appellant does not support an affirmative response to that question. As her Honour observed (at [40]): "[40] I note that the prisoner did not give evidence disputing his guilt of these offences, nor was there evidence that he had no notice of the charges. The evidence went no further than an extract from the relevant code which prescribed the method of service in the absence of a residential address. To the extent that the prisoner seeks to call into question the fairness of the trial process in Lebanon, the same complaint in R v Postiglione (1991) 24 NSWLR 585 was met with the following: 'The essence of complaint is that, in distinction from the common law trial method, the appellant was convicted without the opportunity of confronting and cross examining persons who incriminated him. Such an opportunity is fundamental to our system of trial but it does not follow that another system which involves proof of guilt by different procedures in investigation, evidence gathering and analysis must include the same step. The argument misapprehends that a course which is essential to the achievement of justice in one particular system must necessarily be an ingredient in another.'"

141. [159]

     Without more, this Court has no way of knowing whether the Permanent Military Court took steps to bring the charges to the appellant's attention. The material upon which the appellant relies demonstrates that many of the appellant's co-accused were arrested in person and were present at the trial in Beirut. The logical inference is that there were procedures in place for alerting accused persons to charges that had been brought against them and for inviting them to secure representation ahead of the trial. I agree with the sentencing judge that the appellant's submission goes no further than an unsubstantiated assertion that he was denied procedural fairness.

142. [160]

     Even if the appellant could demonstrate that he did not receive notice of the charges, I am not persuaded that the Military Court's practice of serving notice in absentia is so outrageous as to render the appellant's convictions a "nullity", as the appellant contends.

143. [161]

     This ground of appeal should be rejected. Ground 3 Alleged failure to give proper consideration to the question of deterrence

144. [162]

     Her Honour considered the question of deterrence at [47]: "[47] Terrorism offences have been described as crimes of notoriety and heinousness in the name of a political cause, requiring the imposition of a significant sentence in order to mark the seriousness with which the offence is viewed. General and specific deterrence, and denunciation, must be manifestly reflected in the sentence ultimately imposed, given that the objects of terrorism are to use violence, or the threat thereof, as an instrument of coercion and/or intimidation of governments, in the pursuit of a political, religious or ideological cause. The offence committed by the prisoner falls within this rubric. The potential for great harm to members of the public, the economy and the social fabric, reinforces the obligation of the courts to denounce terrorism in all its forms by the imposition of sentences that have a strong deterrent effect : R v Demirian (1988) 33 A Crim R 441; R v Lodhi (2006) 199 FLR 364; R v Barot [2007] EWCA Crim 1119; R v Benbrika [2009] VSC 21."

145. [163]

     The appellant submitted that the sentencing judge erred in failing to analyse the extent to which the appellant's sentence would deter the appellant and others from committing similar offences. It was said that her Honour incorrectly assumed that the greater the sentence, the greater its deterrent effect. The appellant's submission reads: "Indeed, a sentence may become counter-productive, not simply undermining the principle of deterrence, but instead provoking the commission of further offences."

146. [164]

     The appellant cited the case of Rahman v R [2008] EWCA Crim 1465 in which Lord Phillips CJ observed at [8]: "As Calvert-Smith J remarked when imposing sentence in R v. Adel Yahya at the Central Criminal Court on 5 November 2007: 'The offence to which you have pleaded guilty - under section 58 of the Terrorism Act 2000 - is one which may be committed in an almost infinite variety of ways. The sentence appropriate for a particular offence of this kind will need to reflect the particular facts and circumstances of the offender.' If sentences are imposed which are more severe than the circumstances of the particular case warrant this will be likely to inflame rather than deter extremism. ..."

147. [165]

     The Crown was of the view that her Honour gave appropriate weight to the question of deterrence. Considerations of denunciation and deterrence are of particular significance in terrorism offences: R v Lodhi [2006] NSWSC 691 (per Whealy J at [89], [92]); Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 (per Spigelman CJ at [88], per Barr J at [210] - [214] and per Price J at [273] - [274]); see also R v Barot [2007] EWCA Crim 1119 at [45]. The Crown distinguished Rahman on the basis that the remarks of Calvert-Smith J (cited with approval by Lord Phillips CJ) were made in the context of an offender who, unlike the appellant, was found to have been merely reckless.

148. [166]

     I reject the appellant's submission. The sentencing judge appropriately recognised that offences relating to terrorism have a particular capacity to raze the social, cultural and economical foundations of our community. As her Honour observed, the means by which terrorists achieve their aims include violence or threats of violence, coercion and intimidation. There is a need to impose sentences adequate in length to deter offenders and would-be offenders. I am unable to accept the appellant's contention that the sentencing judge overlooked the practical impact of the sentence. The appellant's reliance on Rahman reveals the circularity inherent in his submission. Lord Phillips CJ was addressing the problems associated with the imposition of excessive sentences for terrorism offences. It is not possible to reason, on the basis of his Honour's remarks, that the sentencing judge gave excessive weight to considerations of general and specific deterrence.

149. [167]

     I would reject this ground of appeal. Ground 4 Alleged failure to give proper weight to appellant's bail conditions

150. [168]

     The appellant's bail conditions included the usual requirements of good behaviour, residence at a notified address and daily reporting. Additional conditions required the appellant to undertake not to publish any material, not to make any public appearances, not to use the Internet, not to make any international telephone calls, not to initiate any contact with persons overseas, to permit the authorities to monitor his mobile telephone calls and to remain within the geographical limits of Metropolitan Sydney. The appellant was subject to a total of 37 bail conditions over a period of more than 4 years.

151. [169]

     The sentencing judge rejected the appellant's claim for leniency, remarking (at [50]): "[50] Throughout this period of time, the prisoner was subject to bail conditions which were deemed necessary by the court, having regard to the nature of the charges the prisoner was facing. Whilst those bail conditions restricted the prisoner's movements to the extent that he was required to reside at a notified address, report daily to Campsie police station and travel only in the metropolitan area of Sydney, they do not qualify as quasi-custodial."

152. [170]

     The appellant asserted that the sentencing judge erred in limiting her consideration of the appellant's bail conditions to those that restricted his freedom of movement. It was submitted that her Honour did not take into account the limits placed upon the appellant's freedom of expression and association.

153. [171]

     In the Crown's view, the sentencing judge considered all relevant conditions, including those restricting the appellant's freedom of movement, and determined that they were not "quasi-custodial". In any event, significantly less weight should be given to bail conditions, factors such as deterrence and denunciation being more salient (R v Fowler (2003) 151 A Crim R 166).

154. [172]

     In my view, although the appellant's bail conditions were onerous, they were appropriate given the nature of the offence. Her Honour determined that notwithstanding that the nature, extent and duration of the conditions resulted in significant limits being placed upon the appellant's liberties for a very lengthy period of time, they were not "quasi custodial". To my mind, that finding was open. Her Honour was not obliged to reduce the appellant's sentence on account of those conditions.

155. [173]

     I reject this ground of appeal. Ground 5 Manifest excess

156. [174]

     The appellant submitted that the sentence was manifestly excessive as a result of the matters complained of in grounds 1 - 4 of the sentence appeal. I reject the submission. To my mind her Honour had appropriate regard to the criminality involved and gave adequate consideration to the circumstances of the appellant. The sentence imposed was within the appropriate range of sentence for this offence. ORDERS

157. [175]

     It would follow from my reasons for judgment that I would dismiss the appeal. I would grant leave to appeal against sentence but dismiss that appeal. However, mine is a minority view.

158. [176]

     Hall J would uphold grounds of appeal which may have led to an acquittal. However, McCallum J agrees with me but for ground 4 in respect of which she agrees with Hall J. The consequence must be that the appeal is allowed in relation to ground 4, the conviction is quashed and a new trial is ordered.

159. [177]

     HALL J: The appellant, Belal Khazaal, was charged with two offences. The first offence was a count of making a document connected with the preparation for, the engagement of a person in, or assistance in a terrorist act, knowing of such a connection contrary to the provisions of s.101.5(1) of the Criminal Code 1995 (Cth).

160. [178]

     The appellant was also charged with one count of attempting to urge another to engage in a terrorist act, contrary to s.11.1(1), s.11.4(1) and s.101.1(1) of the Criminal Code.

161. [179]

     The appellant was tried before a judge and jury in the Supreme Court. The jury returned a verdict of guilty in respect of the first count, but were unable to reach a verdict in relation to the second count.

162. [180]

     The trial judge sentenced the appellant to a term of imprisonment of 12 years with a non-parole period of 9 years.

163. [181]

     The Crown has yet to decide whether it wishes to proceed to a re-trial in respect of Count 2.

164. [182]

     By notice of appeal dated 28 June 2010, the appellant relied upon the following grounds of appeal:- "1) A miscarriage of justice occurred, as a result of her Honour failing to discharge the jury in circumstances in which counsel for the Appellant had inadvertently tendered magazines, and which made clear reference to material suggesting there was a link between al-Qaeda and the Appellant; and, further, her Honour erred in: 2) directing the jury to disregard the submission made by counsel for the Appellant during his closing address, in which he suggested that the jury should, when considering whether the book was connected with preparation for, the engagement of a person in, or assistance in a terrorist act, take into account the delay by the authorities in seeking the removal of that book from availability at large; 3) directing the jury in relation to count 1 that the words 'connected with' were simply to be given their ordinary meaning; and 4) holding that the Appellant had failed to discharge the evidential burden provided for by s.101.5(5) Criminal Code (C'th), and in consequence declining to direct the jury that the Crown was required to prove beyond reasonable doubt that the document was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act."

165. [183]

     By the notice of appeal, the appellant also sought leave to appeal in respect of the sentence imposed on him on 25 September 2009.

Count 1

1. [184]

   The appellant was charged by way of indictment dated 3 July 2008 in which he was charged that between 20 September 2003 and 23 September 2003 at Sydney and elsewhere in the world he did make a document connected with assistance in a terrorist act knowing of that connection contrary to the provisions of s.101.5(1) of the Criminal Code.

Count 2

1. [185]

   He was charged on the same indictment with an offence that between 22 September 2003 and about 8 October 2003 at Sydney and elsewhere in the world he did attempt to urge the commission by others of an offence, namely, engaging in a terrorist act contrary to s.101.1(1) of the Criminal Code.

2. [186]

   For the purposes of the present appeal, the full terms of the indictment in relation to the offence alleged under s.101.5(1) are set out below. In that respect, the indictment alleged:- "1.1 The document made was a book titled 'Provisions on the Rules of Jihad - Short Judicial rulings and organisational instructions for fighters and Mujahideen against infidels'. 1.2 The terrorist act was an action or threat of action against any one or more of a number of persons identified in the document including diplomats, military personnel and holders of public office done or threatened" (a) with the intention of advancing a political religious or ideological cause, namely the advancement of the Muslim religion in the world including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christians and other non-Muslims from that region; and (b) with the intention of: i. coercing, or influencing by intimidation, the government of the Commonwealth or of a foreign country; or ii. intimidating the public or a section of the public; and (c) in circumstances where the action, if carried out, would:- i. cause serious harm that is physical harm to a person; or ii. cause serious damage to property; or iii. cause a person's death; or iv. endanger a person's life, other than the life of the person taking the action; or v. create a serious risk to the health or safety of the public or a section of the public; and (d) the action or threat of action was not to be done as advocacy, protest, dissent or industrial action. Alternatively, if the action or threat of action was to be done as advocacy, protest, dissent or industrial action, it would be of a kind intended to: i. cause serious harm that is physical harm to a person; or ii. cause a person's death; or iii. endanger the life of a person, other than the person taking the action; or iv. create a serious risk to the health or safety of the public or a section of the public."

Outline of facts

1. [187]

   The appellant made a document, in the sense that he compiled a book in Arabic entitled "Provisions on the Rules of Jihad". This was the result of a number of downloads by him of various articles from internet sites over the relevant period of the charge (20 to 23 September 2003). The appellant selected the contents of the book and placed the chapters in a designated order. He undertook a number of editorial changes and contributed some commentary of his own to the book, including a dedication and part of an introduction. The appellant also added a small number of footnotes and renumbered others.

2. [188]

   In the second part of the book, there were parts which promoted and referred to methods of assassination and the commission of acts of violence in the name of restoring the nation of Islam.

3. [189]

   The appellant, using a pseudonym, submitted the document for publication on an internet site, "Al Maqdessy", which, according to expert evidence at the trial, was endorsed by al-Qaeda and contained a number of publications of leaders of known terrorist organisations. At the time of submitting the document, the appellant expressed the hope that it would be published on the website or anywhere else that the administrators of that site saw fit.

4. [190]

   Evidence, including Optus records, traced the relevant internet service to the appellant's residence in Lakemba. At that address, investigators located a personal computer used by the appellant in connection with internet communications relevant to the compilation of the book which he, in due course, caused to be posted on the Al Maqdessy website.

5. [191]

   Two or three sections of the book were accessed by the appellant on the Al Maqdessy website and were downloaded. An editing process was applied to the downloaded documents before their final presentation appearing in the book.

6. [192]

   On 22 September 2003, the appellant sent the book to the Al Maqdessy website with a request for the book to be published on that website.

7. [193]

   A little later, on 23 September 2003, the accused reformatted the book from A5 size sheets down to A4 size sheets and again sent it to the Al Maqdessy website via the internet.

8. [194]

   The appellant was alleged to have sent an Arabic message with the A4 version of the book. The message was translated as follows:- "Dear Brother, Should you wish to publish my message, which I have recently sent, namely, 'Provisions on the Rules of Jihad', I hope you would use the attachment sent with message. It is copied on A4 and thus becomes suitable for publication, making 102 pages rather than the previous arrangement, which was on 188 pages. God's blessing."

The Crown case

1. [195]

   In the Crown case on Count 1, it was alleged that, in terms of making the document, referred to in this judgment as "the book", the appellant was not the author in the sense of being the original composer of the downloaded material and carried out work as detailed above. The Crown case was that the book had a certain quality to it in that it was connected with assistance in a terrorist act (transcript 13 August 2008 at AB 21).

2. [196]

   In assembling the material for the purpose of compiling the book, the evidence was that the appellant himself selected content from material that was downloaded from the internet, as well as the dedication and part of the introduction.

3. [197]

   The prosecution relied upon the contents of the book in order to establish what it contended was a connection within the meaning of s.101.5(1)(b) with a terrorist act.

4. [198]

   The Crown further alleged that the appellant knew of that connection.

5. [199]

   The full title of the book was "Provisions on the Rules of Jihad - Short Judicial Rulings and Organisational Instructions for Fighters and Mujahideen against Infidels". It became Exhibit G in the proceedings.

6. [200]

   The Crown called a translator, Dr Muhammad Gamal. Dr Gamal's native language is Arabic. His evidence was directed at the translation of the book prepared by the appellant and other Arabic language documents in evidence in the trial.

7. [201]

   The Crown alleged that the terrorist act was an action or threat of action. The Crown did not allege that in consequence any incident ultimately happened. It was pointed out by the Crown in its opening to the jury that it was not necessary for an actual action to be carried out provided it otherwise met the statutory definition of the expression "terrorist act". Accordingly, a threat of an action of a certain kind, it was observed, would be sufficient to amount to a terrorist act.

8. [202]

   The Crown case alleged that the terrorist act was an action or threat against any one or more of a number of persons identified in paragraph 1.2 of the indictment ("including diplomats, military personnel and holders of public office ...").

9. [203]

   The action alleged to be done or threatened was purported to have been done with the intention of advancing a political, religious or ideological cause, namely, the advancement of the Muslim religion in the world.

10. [204]

    The Crown alleged that the action or threat of action amounted to assistance in a terrorist act. If done, it was not going to be mere advocacy nor protest or dissent.

11. [205]

    The Crown observed in its opening address that the document prepared by the appellant represented itself as having been compiled and prepared by Abu Mohamed Attawheedy. The Crown case was that that name referred to the accused. It alleged that he deliberately did not use his true name and that it was a deliberate attempt to distance himself from being connected with the document.

12. [206]

    The first entry in the dedication to the book, (p.9), was entitled "Militant Jihad is the Best Form of Jihad". Whilst the Crown acknowledged that the term "Jihad" may not, in certain contexts, have a sinister meaning, in this case it was alleged that it was expressly dealing with militant Jihad, not a peaceful, passive or persuasive type of Jihad, but one that was of a forceful, violent and coercive type (AB 29).

13. [207]

    It will be necessary to refer to specific parts of the book upon which reliance was placed upon the Crown in order to establish the offence under Count 1.

14. [208]

    The Crown case was that the first half of the book contained religious or ideological justifications for Jihad, meaning "violent struggle". The second half of the book, it was said, provided a practical guide to achieving martyrdom and destroying those who would oppose or oppress Islam.

15. [209]

    The book bore the date 18 September 2003. It was put on the Al Maqdessy website a few days later.

16. [210]

    It was the Crown's case that the words written on the introductory page to the book were written by the appellant. They were in the following terms:- "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."

17. [211]

    These introductory comments continued:- "With God's help I set on its compilation and I completed it in a 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."

18. [212]

    In the next paragraph, the statement continued:- "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 to pray that I may attain martyrdom."

19. [213]

    The Crown case was that the evidence relating to the downloading of materials and the compilation of them provided evidence that the appellant had directly turned his mind to important sections of the book by editing them before they appeared in a final format. The Crown contended this would indicate preparation beyond mere selection of documents at random without giving any thought when compiling them and before sending them to a website. The Crown argued that the evidence indicated there had been a thoughtful and considered process of editing of the chapters in the book in the form the appellant wanted them to be expressed (Crown opening at AB 45-46).

20. [214]

    Although there was evidence that the work was compiled in haste, it was the Crown contention that, whatever haste was involved it was not such that the appellant failed to appreciate the true message of the book.

21. [215]

    In the opening, the Crown Prosecutor stated (AB 46):- "The Crown case is that the accused knew that in making that book he was assisting terrorism, and by the accused causing that book to be posted on the Al Maqdessy website, he was attempting to urge others to engage in a terrorist act."

22. [216]

    In the course of the Crown case, emphasis was given to particular parts of the material constituting the book. In particular, there was material that made reference to the targeting of foreign governments, including the Presidents, Foreign Ministers, Ministers of Defence and "high ranking generals" of the Governments of America, Britain, France, Germany, Australia, Canada, Russia, India and other NATO countries.

23. [217]

    The Crown, as earlier indicated, in particular, relied upon passages in the book entitled "Reasons for Assassination". The Crown contended that these promoted methods of assassination and the commission of acts of violence in the name of restoring the nation of Islam.

24. [218]

    Some of the sub-headings in that chapter reflected or were indicative of the tenor of the material in question. These included the sub-headings "Characteristics of the Assassination Team" (AB 655-657), "Optimal Conditions for Assassination" (AB 657), "Features and Stages of the Assassination Process" (AB 657-661), "Aspects of the Assassination Mission" (AB 661-663), "Methods and Means of Assassination" (AB 663-674), "Targets that should be Assassinated" (AB 675-676) and "Benefits of Assassination" (AB 676-677).

25. [219]

    The chapter in the book, Reasons for Assassination, according to the introduction was, subject to "minor changes", said to have been the work of a known author. The introduction was in the following terms:- "This chapter was copied with minor changes from a message by our esteemed brother, Sheikh Abu Jandal Alazzdy, may God protect him, in which he motivates Mujahideen to revive the ritual of assassination. Today, there are many reasons and motives for assassination as far as Mujahideen are concerned. For others there are scores of reasons."

26. [220]

    In the part of the chapter entitled "Targets that should be Assassinated", the "identities" to which the chapter refers are indicated as "atheists" and by reference to "nationalities". In that respect, it was recorded:- "Identities that should be assassinated are in this order, as far as I think: 1. All Jewish, Christian and Arab atheists among the diplomats, ambassadors and the military in Arabia. The definition of Arabia for Majahideen is the area that covers Yemen, Oman, Saudi, Kuwait, Qatar, The Emirates and Bahrain. This extension is due to the legal texts that call for the expulsion of Jews, Christians and Infidels from Arabia. The enemy nationalities are ranked in accordance to their importance: 1. American 2. British 3. French 4. Rest of NATO members 5. Rest of Christians 6. Hindus and Buddhists 7. Russians These nationalities, with the aid and participation of Jews, fight, kill, rape and pillage Muslims. This is well-known world wide and is for everyone to see. This is how they infiltrate: ..."

27. [221]

    The document also sets out other categories of "identities" including those referred to as "Imams of Apostasy". In part, the description is as follows (Exhibit G at p.675 - 676):- "2. Imams of Apostasy: Who exist in Arabia such as State Presidents, Ministers of the Interior, Foreign Ministers, Ministers of Defense who are promoting and defending atheism. The rest of the Imams of Apostasy in the Arab Countries which are falsely called Islamic states such as ... in addition to anyone who blasphemes God or the prophet such as journalists and the media whose insult has been proven publicly ... 3. Holders of key positions in the original countries of atheism fighting such as the president, then the Minister of Defense, Foreign Minister, Chief of Intelligence, National Security and the high ranking generals. The countries are listed in the following order: First: America Second: Britain and between the two Israel which is the misnomer for the Jews Third: France Fourth: Germany Fifth: Australia Sixth: Canada Seventh: Rest of NATO countries Eighth: Russia Ninth: India ..."

28. [222]

    The chapter "Reasons for Assassination" and the chapter entitled "The Last Word" were introduced by the appellant's composition expressed in what was said to have been favourable terms in the first paragraph of each of those chapters.

29. [223]

    There was expert evidence called in the Crown case that the internet site used for the book was one that was endorsed by Al-Qaeda and that it contained a number of publications by leaders of known terrorist organisations. It was noted by the trial judge in the course of her remarks on sentence that the appellant, when submitting the document for publication, expressed the hope that it would be published on this website, or anywhere else that the administrators of the website saw fit.

30. [224]

    The appellant referred to the document as an "Urging for jihad" which he said was prepared in haste following a request from "the brothers".

31. [225]

    The Crown case was opened on 13 August 2008. The explanation by the Crown of the indictment included reference to the fact that the terrorist act was "... an action or threat of action against one or more of a number of persons identified in the document ... including diplomats, military personnel and holders of public office ... it goes beyond that category, but they are, on the Crown case, certainly in there (transcript 13 August 2008, AB 22).

32. [226]

    The Crown added (AB 22-23):- "We are setting out to prove that matter (an action or threat of action done or threatened with the intention of advancing a political, religious or ideological cause and that his identified as the advancement of the Muslim religion in the world) ... beyond reasonable doubt, together with, that is plus, (b), and with the intention of coercing or influencing by intimidation the Government of the Commonwealth, that is the Government of the Commonwealth of Australia or of a foreign country ..."

The provisions of the Criminal Code

1. [227]

   Section 101.5(1) of the Criminal Code is in the following terms:- "101.5 Collecting or making documents likely to facilitate terrorist acts (1) A person commits an offence if: (a) the person collects or makes a document; and (b) the document is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and (c) the person mentioned in paragraph (a) knows of the connection described in paragraph (b)."

2. [228]

   Section 101.5(5), essentially provides the basis for a specific defence with a defendant having the evidential burden in relation to the matter in s.101.5(5). That provision is in the following terms:- "(5) Sub-sections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, engagement of a person in, or assistance in a terrorist act. Note: a defendant bears an evidential burden in relation to the matter in sub-section (5) (see sub-section (13.3(3))."

The elements of Counts 1 and 2

1. [229]

   The elements of each of the offences may be identified as follows:- (1) Elements of the offence under s.101.5(1) (a) The accused is guilty of the offence if:- (i) the accused made the document: a physical element - conduct (s.4.1 Criminal Code) (ii) that he did so intentionally: fault element: intention and knowledge (s.11.1(3)(1) Criminal Code) (iii) the document was connected with assistance in a terrorist act: as defined in s.100.1 Criminal Code (the second physical element) and (iv) the accused knew of that connection: a fault element (knowledge) (s.101.5(1)(c) Criminal Code).

Count 2

1. [230]

   The accused is guilty of the offence of attempt if:- "(i) The accused attempted to urge the commission of an offence, namely, the offence of engaging in a terrorist act ("terrorist act" is used as defined in s.100.1 Criminal Code) and (ii) the accused's conduct in attempting to urge the commission of the offence was more than merely preparatory: s.11.1(2) Criminal Code; and (iii) the accused intended that the offence be committed: fault element (intention) (s.11.4(2) Criminal Code)."

Crown submissions on the elements of the offence in Count 1

1. [231]

   In the document "Crown Submissions concerning Jury Directions", the Crown set out its submissions in relation to Counts 1 and 2. In relation to Count 1, the written submission was in the following terms:- "Count 1: The accused made a document 3. The Crown case is that the accused's acts in selecting the content of and compiling the Arabic script document represented by Exhibits D, E and EE, including adding his own words and making editorial changes to parts of the compilation, constitutes the making of a document. He did so intentionally 4. On the evidence, the above acts must have been intentional; they could not have been unintentional. The document was connected with assistance in a terrorist act 5. The meaning of 'terrorist act' is addressed hereafter. For present purposes, it is sufficient to note that 'terrorist acts' means an action or threat of action having certain characteristics. 6. In the trial of Faheem Lodhi, Whealy J directed the jury that:- The phrase 'connected with preparation for an action or threat of action' is an ordinary English expression and requires no special analysis. It is submitted that the phrase 'connected with assistance in an action or threat of action' is in the same category. 7. It is the document itself that must be connected with such preparation. Based on the examples given by Whealy J in Lodhi (at p 39 of the summing up), and having regard to the ordinary meaning of the phrase 'connected with assistance in an action or threat of action', the connection need be no more than a link between the making of the document and the preparation for an action or threat of action. This is a question of fact. 8. In relation to 'assistance', all that must be established is that the making of the document is connected with assisting an action or threat of action. 'Assistance' has its ordinary meaning, namely, 'to help', or to make it easier for someone to do something. The accused knew of that connection 9. The Crown must prove that the accused knew that the document was connected with assistance in an action or threat of action."

2. [232]

   In written submissions on behalf of the appellant dated 28 August 2008, it was submitted, inter alia, as follows:- "2. As already raised in oral argument, the accused specifically seeks the following two directions: · You must be satisfied beyond reasonable doubt that the book was connected with assistance in a terrorist act. The words 'connected with' mean that the book must itself have been capable of directly assisting in the commission of a terrorist act. A mere remote connection will not suffice. The word 'assistance' is, of course, a word that is used in everyday language and is to be understood in that sense, that is, aiding, making easier or facilitating. · If you are satisfied beyond reasonable doubt that the book was connected with assistance in a terrorist act and that the accused knew of that connection, you must consider whether it was at least a reasonable possibility that the collection or making of the book was not intended to facilitate assistance in a terrorist act ..."

Written trial directions concerning Count 1

1. [233]

   In respect of Count 1, the directions were in the following terms:- "The elements of the offences, which the Crown must prove beyond reasonable doubt, are as follows:- Count 1 (a) Between 20 September 2003 and 23 September 2003 at Sydney in the State of New South Wales and elsewhere, the accused made a document; and (b) He intended to make the document; and (c) The document was connected with assistance in an action or threat of action against any one or more of a number of persons, including diplomats, military personnel and holders of public office; and (d) The action or threat of action referred to in (c) was a terrorist act (see NOTE 1); and (e) The accused knew (that is, he was aware) at the time he made the document, of the connection between the document and assistance in the action, or threat of action, referred to in (c), that is: (i) he was aware of the action, or threat of action referred to in (c); and (ii) he was aware of the intention by that action, or threat of action, to advance a political, religious or ideological cause, namely, the advancement of the Muslim religion in the world, including the dominance of that religion in Arabia as defined in the document and/or the establishment of a Muslim nation in that region and/or the expulsion of Jews, Christians and other non-Muslims from that region; and (iii) he was aware, by that action or threat of action, it was intended to coerce or influence by intimidation one or more of the following - the Government of the Commonwealth, the Government of a foreign country or to intimidate the public or a section of the public; and (iv) he was aware that the action or threat of action, if carried out, would cause serious physical harm to a person; or serious damage to property; or a person's death; or endanger a person's life, and other than the life of the person taking the action; or create a serious risk to the health or safety of the public or a section of the public; and (v) he was aware that the action or threat of action was not advocacy, protest, dissent or industrial action OR he was aware that the action or threat of action was intended to cause serious physical harm to a person; or a person's death; or was intended to endanger a person's life, other than the life of the person taking the action; or was intended to create a serious risk to the health or safety of the public or a section of the public. If the above elements are proved beyond reasonable doubt, the offence charged in Count 1 of the Indictment is committed, even if a terrorist act does not occur."

The defence case

1. [234]

   It was contended on behalf of the appellant, that the book was a journalistic work and that it consisted of a compilation of various works by various authors throughout a number of different periods in history. The first portion of the book was said to be largely uncontroversial and dealt with historic justifications for jihad in Islam. The second was described in submissions for the appellant as being "more belligerent" and provided a collection of modern writings. The defence argued that the book was not a work that could be considered a terrorist manual, since it did not provide concrete instructions on how to commit terrorist acts. Instead, it was said to be merely a collection of points of view. This argument was supported by the fact that the appellant, at the relevant time, had been an accredited journalist and one who had a considerable interest in religious matters.

2. [235]

   The contention on behalf of the appellant was that there was no evidence that, at the time of making the book, it was connected with assistance in a terrorist act. Specific attention in this respect focused upon the meaning to be attributed to the phrase "in connection with". It was contended that there was no evidence of the required connection. The defence was that the connection element for an offence under s.101.5(1) of the Criminal Code had not been established.

The Grounds of appeal

1. [236]

   The appellant relied upon four grounds of appeal. I respectfully agree with the reasons for judgment given by the presiding judge, McClellan CJ at CL, in respect of Ground 2. I, however, have reached different conclusions in respect of the remaining grounds.

(1) The facts

1. [237]

   There were two articles that had been published in the periodical magazine "The Call of Islam" (at trial referred to as the "Al-Nida ul Islam" magazine). Both formed part of defence Exhibit 5. The first is styled as a "Media Release" and formed part of Issue 2, Volume 10, July/September 2003 (p.5). The article was entitled "Four Corners Missed the Target". It was a publication in response to material, including allegations, that had been made on the programme entitled "The Australian Connections" on the ABC's Four Corners programme presented on 10 June 2003. The article was in the nature of a rebuttal, expressed in fairly strong terms, of the allegations that had been made against the appellant.

2. [238]

   In the formulation of the rebuttal, explicit references were made to the content of "the Australian Connections" programme which was broadcast on national television. Accordingly, a reader of the article would become aware of the material said to have been relied upon by the ABC journalist and, in particular, and the source of the material identified in the Four Corners programme.

3. [239]

   It is sufficient, for the purposes of Ground 1, to refer only to parts of the published article. It commenced as follows:- "Based on a so-called 'secret CIA intelligence report' containing allegations on terrorism, Four Corners' Sally Neighbour identified Bilal Khazaal, one of the members of the Islamic Youth Movement (IYM), as a leader of Al-Qaeda in Australia, claiming that he had been trained in Afghanistan; he was a financier of the 'Isbat Al-Ansar' in South Lebanon; and that he was planning for terrorist attacks in the Philippines and Venezuela. Although Four Corners in the past has produced some excellent reports with in-depth analyses, last night's report was a giveaway to Australia's racist and special interest groups. Four Corners must have been desperate to rely on a 'secret CIA intelligence report' simply because, although the ABC are aware of the fascicle nature of so-called reports from 'intelligence' agencies, it chose to run with it, hailing it as 'new intelligence'."

4. [240]

   The article stated that if the CIA had had the "intelligence" since June 2002, it had not made Australian security agencies aware of it. The article also belittled the CIA in various respects which need not, here, be reproduced. The article maintained that:- "In the absence of hard facts, Four Corners based its story on a CIA fabricated report; and it also rehashed old allegations of training camps, linkage to terrorist organisations and threats to Australia's security, all of which were refuted several years ago".

5. [241]

   In the second article entitled "No evidence, just fabrication against Bilal Khazal [sic]" published in Issue 3, Volume 10, June/August 2004 in the periodical, The Call of Islam, similar statements are to be found. The article opened by saying that the appellant and his brother were facing a barrage of "... lies and false accusations, mounted in a propaganda campaign by the Western intelligence and media agencies, to link them to al-Qaeda and 'terrorism'."

6. [242]

   The article referred to the ABC Four Corners programme and noted that it was "... based on a so-called CIA report, that Bilal Khazal [sic] was identified as an al-Qaeda member who had been trained in Afghanistan ...". The article re-stated similar material as appeared in the first article.

7. [243]

   A reference was made to the fact that media networks had seized on what was referred to as "... the fabricated CIA report ...". The article also made reference to published articles and, in particular, media articles that had named the appellant as having "... strong links to numerous Islamic extremist groups including al-Qaeda and Jemaah Islamiyah". The article again contained rebuttals of the allegations and, in doing so, stated:- "... The only link between Bilal Khazal [sic] and Mohammed Kaaka is the Nidual Islam magazine."

8. [244]

   The forensic purpose of the cross-examination of Mr Kohlmann was said to have been aimed at establishing that the magazine was a legitimate publication and one that was freely available and for the production of which the appellant was largely responsible. The forensic purpose was to establish the appellant's past journalist endeavours so as to demonstrate that the book, the subject of the charges, had been compiled for literary, rather than for nefarious purposes. One of the magazines on which Mr Kohlmann was cross-examined became an exhibit in the defence case (Exhibit 2).

9. [245]

   On the following day of the trial, the disputed articles were tendered on 25 August 2008 at t.569, line 45. It is recorded:- "CROWN PROSECUTOR: Could I mention one matter that slipped my mind. Mr Thomas showed Mr Kohlmann a number of Al-Nida ul Islam magazines which were marked MFI 14, in cross-examination. They are not before the jury. I invite my friend to tender them. If he declines, then I would call on him in front of the jury to tender them."

10. [246]

    The members of the jury were then recalled into Court. The transcript records at p.570:- "CROWN PROSECUTOR: There were some Al-Nida ul Islam magazines shown to Mr Kohlmann which were marked for identification 14 in addition to the magazine that became Exhibit 2. I understand my learned friend is going to tender them. He may have some additional ones as well. (APPELLANT'S THEN COUNSEL): I tender MFI 14. With the consent of my learned friend, I tender all of the other magazines that are in my possession. HER HONOUR: Do we need all of them? (APPELLANT'S THEN COUNSEL): I think so, given the nature of the issues in the case. Only parts of the magazine are in the English language. These are, as I understand it, all of the editions published back to 1994. HER HONOUR: There are four in MFI 14? (APPELLANT'S THEN COUNSEL): Yes, there are. HER HONOUR: How many are there in the other bundle? (APPELLANT'S THEN COUNSEL): 32. EXHIBIT #4: FOUR AL-NIDA UL ISLAM MAGAZINES, PREVIOUSLY MFI 14, TENDERED, ADMITTED WITHOUT OBJECTION EXHIBIT #5: ADDITIONAL 32 AL-NIDA UL ISLAM MAGAZINES TENDERED, ADMITTED WITHOUT OBJECTION"

11. [247]

    Counsel for the prosecution at some point soon after took the opportunity to uplift Exhibits 4 and 5 to peruse the magazines overnight (t.597, lines 5 to 7).

(2) The application for a discharge

1. [248]

   Some days later, counsel then appearing for the appellant stated (t.810, lines 36 to 48):- "We accept that these magazines were tendered as a bundle. Your Honour will recall that we tendered all of the magazines that were in our possession in relation to the Call of Islam magazine. I must say, for my part, I had relied upon what I had been instructed in relation to content. Clearly, this material is devastating as far as the accused is concerned. The object here is to have a fair trial. We accept that the material has been put in by the defence. However, it has been put in in circumstances where, as a result of an oversight, this material was not picked up. Our object in putting all of the material relating to these magazines was obvious. That is, the magazine is relevant to the proceedings. My friend suggest that there is a connection between the accused and the magazine, which we accept. It is, indeed, part of our case."

2. [249]

   The application for a discharge of the jury was refused.

3. [250]

   In her Honour's judgment delivered on 2 September 2008 on the application, the trial judge noted the submission made by the appellant's then counsel to the effect that the contents of the articles and the Crown's reference to them gave rise to "an incurable prejudice". It was said that this was despite the fact that the articles themselves contained a refutation, in strongest terms, as to the accused's alleged links to al-Qaeda and to alleged funding by him of terrorist acts.

4. [251]

   The trial judge referred to the fact that it was pertinent to observe that, at the beginning of the trial, the jury panel and the jury were told to disregard any publicity about the accused that they may have been exposed to and, additionally, they were told that they must confine themselves to the evidence in the trial.

5. [252]

   The trial judge also observed that those instructions, and similar instructions in strong terms, would be included in the summing up. The question, the trial judge stated, was "... whether such directions will be ignored or overlooked by the jury to the prejudice of the accused" (p.2).

6. [253]

   Her Honour then proceeded to refer to observations of Spigelman CJ in R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 and to those made by the Chief Justice in John Fairfax Publications Pty Limited v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344.

7. [254]

   Reference was made to observations of Gleeson CJ in Regina v VPH (CCA, unreported 4 March 1994) and to McHugh J in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425 concerning compliance by juries with directions given by a trial judge.

8. [255]

   The trial judge also referred to the fact that the perspective that jurors properly perform their tasks, are true to their oaths and comply with the trial judge's directions has been repeatedly applied in appellate courts over recent years. The trial judge concluded (AB 591):- "I am not persuaded that the jury will fail to abide by the directions I have given and propose to give. In any event, the articles themselves rebut the allegations made in the programme. It may be the case that some members of the jury did see the programme when it aired in June 2003 and that the articles have only served to remind them of the allegations made therein. If that is so, then the Crown's reference to the articles does not add significantly to what those members of the jury already knew. Furthermore, it is not irrelevant that the magazines were tendered by the accused. Nothing in the magazines was thought to be so prejudicial that they could not be placed for the jury. For these reasons, the application is refused."

9. [256]

   In relation to this last-mentioned statement, I observe that the trial judge did not refer to the fact that the potentially damaging parts of the articles had been tendered inadvertently, that is, through oversight. I will return to this aspect later in this judgment.

10. [257]

    In the course of the summing up, the trial judge referred to the fact that there had been references made in the course of the addresses to the Call of Islam magazine and to a Four Corners programme in 2004. The trial judge added that "of course, the subject of that programme, which was the accused's alleged links to al-Qaeda and his alleged funding of terrorist acts, was strongly refuted by the accused through the magazine itself".

11. [258]

    In the summing up, the trial judge directed the jury in the following terms (AB 379-380):- "That is a particularly important consideration in the context of this trial. Notorious acts of terrorism have been referred to in the course of the evidence and it would be surprising if those events, particularly when they have resulted in the deaths of many innocent people, do not conjure up strong emotions and feelings of revulsion. We would all be less than human if that was not the case. There have also been references made in the course of the addresses to the Al-Nida magazine and to a Four Corners programme in 2004. Of course, the subject of that programme, which was the accused's alleged links to al-Qaeda and his alleged funding of terrorist acts, was strongly refuted by the accused through the magazine itself. The fact that such allegations have been made against the accused does not prove anything. We are all exposed to media coverage on a daily basis of many controversial events. It will not surprise you to hear that media outlets are fallible. They have been shown to be wrong in the past and they will be shown to be wrong in the future. As I have said a number of times in this trial, you must put these matters completely to one side and objectively consider the evidence brought against the accused on the specific charges in the indictment. He is not charged with being a terrorist. He is not charged with committing a terrorist act. There is no evidence that the accused is a member of al-Qaeda. There is no evidence that the accused communicated directly with any prominent member of al-Qaeda or any of the authors of the chapters of the book. It would be quite wrong of you to conclude that he is guilty of these offences merely because the book refers to act[s] of terrorism or to terrorist organisations or because there has been media reports about the accused's alleged links to al-Qaeda. It is much more complex than that."

Appellant's submissions

1. [259]

   In the detailed written submissions on behalf of the appellant, it was contended that the trial judge's reasons indicate error. Firstly, this was maintained insofar as the refusal of the application was, in part, based upon the proposition that the appellant had staunchly denied the allegations made in the Four Corners programme, thereby minimising any potential prejudice. Secondly, given that the allegations were highly prejudicial, directions could not counteract the prejudicial effect with the result that a fair trial was improbable.

2. [260]

   It was further argued that the prejudicial matters referred to in the articles went to matters directly in contest in the trial. In particular, it was observed that there was no admissible evidence of any direct link between the appellant and the organisation known as al-Qaeda. However, tender of the articles resulted in information going to the jury alleging that there was in fact a direct link or association between the appellant and al-Qaeda.

3. [261]

   A matter of particular importance was said to be that the damaging allegations referred to in the articles had been made in the programme on an alleged CIA report, a well-known intelligence agency.

Crown's submissions

1. [262]

   In the Crown submissions, reference was made to the fact that there was an issue in the trial which it was entitled to prove, namely, that the appellant was an enthusiastic al-Qaeda supporter. Additionally, it was observed, the claimed prejudicial material in the two articles had been flatly denied by the appellant in those articles.

2. [263]

   The Crown also argued that the material in the articles was not of the nature of a criminal record or bad character or antecedents and did not have the quality of inadmissible evidence of a prior conviction. A high degree of necessity to discharge the jury did not arise in this case.

3. [264]

   The Crown relied upon the trial judge's stated reasons to the effect that the articles rebutted (in strong terms) the allegations made in the programme. In particular, it was submitted (at [10]):- "... The articles contain detailed arguments in support of their themes that the programme and newspaper stories were untrue, unfair, unbalanced and calculated to inflame community passions against Australian Muslims, using the Appellant and his brother as the vehicle for the attack ..."

Applications for discharge of jury - relevant principles

1. [265]

   There is no rigid rule to be applied in deciding an application to discharge a jury when an inadvertent and potentially prejudicial event occurs during a trial: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440. In the present case, the tender of Exhibit 5 involved the inadvertent tender in the defence case of potentially very prejudicial material which occurred by reason of an oversight by counsel then appearing for the appellant.

2. [266]

   In a determination of the application, important considerations include the seriousness of the material tendered in the context of the contested issues, the stage at which the inadvertent tender occurred, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact: Crofts (supra) at 440.

3. [267]

   In the evaluation of these and other considerations, much leeway must be allowed to the trial judge: Crofts (supra) at 440. The expression "other considerations" include, in particular, the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading the transcript: Crofts (supra) at 440 to 441.

4. [268]

   However, standing alongside or overlying these principles remains the duty of an appellate court where the exercise of the discretion to refuse a discharge is challenged. The duty is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind (Crofts (supra) at 441):- "... The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate courts say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ..."

5. [269]

   An important consideration is, of course, the nature of the statements said to have given rise to the prejudice from the tender of the particular parts or passages of the articles and the relevance of those statements to the issues in the proceedings.

6. [270]

   One issue is whether the statements may be of a character that can be fairly classed as "highly prejudicial" or even "inflammatory": Crofts (supra) at 441. In that respect, it is necessary to consider whether there was special difficulty in the trial judge fashioning a direction to the jury which would help them to eradicate from their minds any highly prejudicial statements contained in the articles, noting that "... it is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts": Crofts (supra) at 441.

7. [271]

   Where highly prejudicial evidence is wrongly admitted and that evidence is central to the issues to be determined at the trial, a real question arises in this case as to whether the jury should have been discharged: see generally Maric v The Queen (1978) 52 ALJR 631 at 635.

8. [272]

   Wrongly admitted evidence which can be said to be damning evidence may not be capable of remedy by trial directions. In other words, such damage as was caused by the admission of the evidence may not be capable of being undone: Maric (supra) at 635.

9. [273]

   In the present case, the direction given to the jury did, of course, refer expressly to the evidence that had been wrongly admitted. This was necessary, given the nature of the evidence, so as to ensure the jury had their minds properly focused on the point of the directions. A dilemma, however, arises in that respect. A direction which refers to the objectionable evidence thereby may have the effect of impressing the evidence on the minds of the jurors: Maric (supra) at 635.

10. [274]

    In evaluating the trial judge's decision to refuse the application for a discharge, as earlier indicated, evidence may be so damaging that no directions may be capable of removing its detrimental effect. In such cases, the only course open to a trial judge in those circumstances is to discharge the jury: Maric (supra) at 635.

11. [275]

    The discretion in a trial judge to determine whether or not the jury should be discharged is then one to be exercised according to the circumstances of the particular case. In cases where there has been an irregular disclosure, unless it can be said that such disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, it has been observed that the trial judge should exercise his discretion in favour of the accused: R v Knape [1965] VR 469 at 472-474 (Winneke CJ, Pape and Stark JJ).

12. [276]

    Accordingly, whilst the authorities have established principles for the exercise of the discretion by a trial judge to discharge a jury, they do not purport to prescribe or lay down principles as to how the discretion ought be exercised.

13. [277]

    In Knape (supra) at 474, it was noted in the joint judgment:- "In this case, having regard to the prejudicial nature of the objectionable disclosure, and to the fact that it is apparent that it destroyed the underlying basis of the defence, we find it impossible to say that the jury would inevitably, or without doubt, have convicted if such inadmissible evidence had not been given, and accordingly, the Crown has not satisfied us that no substantial miscarriage of justice has actually occurred."

14. [278]

    However, in R v Hortis [2004] VSCA 143, the Supreme Court of Victoria (Court of Appeal) expressed its disagreement with the principle as stated in Knape (supra) stating at [18]-[19] per Nettle JA:- "... the informing of principle is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial. That approach was sanctioned by the High Court in Crofts v The Queen, in which it was said that much depends on the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. The point was reiterated by this Court in R v Su. There are no rigid rules. The principle is one of necessity. There must be a high degree of need for discharge before that course should be adopted."

15. [279]

    In R v Halliday [2009] VSCA 195 at [60] the Victorian Court of Appeal stated that the question to be considered in the circumstances as occurred in Knape (supra), is whether there is a "high degree of necessity" for the jury to be discharged.

16. [280]

    It is clear that the discretion in a trial judge is intended to be "broad and general": Halliday (supra) at [63]. It was there noted, at [65], that this test was originally stated as far back as Winsor v R (1866) LR 1 QB 390. Reference was also made to R v Weaver [1967] 1 QB 353. The Court in Halliday (supra) stated that that principle had been endorsed by the High Court and was therefore binding on the Victorian Court of Appeal.

17. [281]

    The statements contained in the material tendered in the appellant's case and the source or sources of such material require close examination.

18. [282]

    As earlier noted, the magazines (p.5, Issue 2, Volume 10, July - September 2003 and pp.4-5 of Issue 3, Volume 10, June - August 2004) included references to allegations that the appellant had links to al-Qaeda and had been involved in the financing of overseas bombings, allegations that brought strong and early denials and refutations on behalf of the appellant.

19. [283]

    The first document was a "Media Release" entitled "Four Corners Missed the Target" in the magazine, The Call of Islam, issued 10 July/September 2003 refuting allegations aired in the Four Corners programme, "The Australian Connections". The media release, in refuting the allegations, referred to the allegations as having included references concerning the appellant, inter alia, as a leader of al-Qaeda in Australia, that he had been trained in Afghanistan and that he was a financier of a named terrorist organisation in South Lebanon and that he was planning for terrorist attacks in the Philippines and Venezuela. The "source" of the intelligence on these matters was identified in the Four Corners programme as a CIA report. The media release published the next day, as I have noted, strongly refuted the allegations.

20. [284]

    The second article was entitled "No Evidence Just Fabrication against Belal Khazaal" was dated June/August 2004 and was in similar terms to the above media release.

21. [285]

    The Crown accepted and stated that there was no evidence that the appellant was a member of al-Qaeda.

22. [286]

    In the Crown's closing address, reference was made to the magazines including the following observations at t.807, line 25 to t.808, line 34) "There are only two more brief references in exhibit 5. I am going to go to July to September 2003, page 5, an article entitled 'Four Corners missed the target'. It identifies a Four Corners programme of June 2003 said to be titled 'The Australian connections'. The response is that this programme just fans propaganda and hatred against Islam and Muslims. That may be a fair political comment. People can have that sort of response. They do not have to like Four Corners either. But, in the context of the actual article responding to Four Corners, they record that: 'Sally Neighbour of Four Corners identified Bilal Khazaal, one of the members of the Islamic Youth Movement, as the leader of al-Qaeda in Australia, claiming that he had been trained in Afghanistan ... and that he was planning for terrorist attacks in the Philippines and Venezuela'. One reason for drawing attention to this is: Please do not think, because the magazine itself contains an allegation in Four Corners by Sally Neighbour or anyone else against Mr Khazaal that you can act on that. We are submitting that you do not act on that. We did not tender exhibit 5. Care needs to be exercised. Merely because the ABC reports something that this is responding to - it is saying it is not right - merely because the ABC reports something, you cannot use that against Mr Khazaal. That is just a news report. Do you follow what I mean? I am sure you do. I think I have made the point. They say: 'For the record, Bilal Khazaal is a member of the IYM, Islamic Youth Movement'. The significance for the Crown is that this magazine records that Bilal Khazaal is a member of the IYM. Forget this allegation of Sally Neighbour. That is no part of the Crown case whatever against Mr Khazaal. But where the magazine is tendered in his case, it records that he is a member of the Islamic Youth Movement. The Crown submits it is fair of you to accept that. The article goes on to say that Four Corners is completely wrong. My point is just to refer to this statement that he is a member of the Islamic Youth Movement. At page 4 there is another defence of Bilal Khazaal. He is entitled to defend himself, if Four Corners has attacked him. This trial is not about what happened on the media, on television, or in a response. In this example, we did not put it in. Exercise care please, or there could be an unintended unfairness. Finally today, if I may just very briefly refer to the last issue in exhibit 5, June to August 2004, again commencing at page 4, 'No evidence, just fabrications, against Bilal Khazaal'. We do not want you to take account of this kind of debate between the magazine and Four Corners or 60 Minutes in any part of your deliberations as to whether or not the Crown has proved these two charges beyond reasonable doubt. But we do draw your attention to the fact that in this edition it commences: 'It is now in the open. A member of the Lakemba based Islamic Youth Movement (IYM) Bilal Khazaal and this brother ... lies and false accusations', et cetera. Our point is that this magazine describes the accused as a member of the Islamic Youth Movement, and I will relate that to some evidence about him being involved in a publication, and hence assuming some responsibility for the content of these magazines."

Conclusion

1. [287]

   The allegations made in the material published in the Four Corners programme can, in my opinion, only be characterised as "highly prejudicial". In particular, they were directly relevant to issues in the trial. These included, firstly, the issue as to whether the book possessed the character of a document that could assist in a terrorist act, secondly, whether the appellant knew of the connection in that respect and, thirdly, their impact upon any possible defence that may have become available in accordance with the provisions of s.101.5(5) which would involve the appellant's state of mind.

2. [288]

   The Crown acknowledged that there was no evidence of any direct link or association between the appellant and al-Qaeda. It contended any association he had was an indirect one by reason of his membership of the Islamic Youth Movement (the publisher of the Call of Islam magazine and being a contributor to it). The Crown made it clear that it did not contend that the appellant was directly linked to the al-Qaeda organisation. The particular vice in the material published by the Four Corners programme and republished in the articles was not merely that it contained allegations by an ABC journalist that was adverse to the appellant, but that the Four Corners programme was said to have had as its source an alleged report made by the CIA. In other words, the allegations were expressly presented as made on the basis of material of a well-known intelligence agency.

3. [289]

   The material broadcast on the Four Corners programme constituted allegations, repeated in the articles, to the effect, that the appellant had been involved in past criminal activities. In particular, the allegations were to the effect that he had participated in terrorist activities involving extremely serious criminality. Such material could, in my opinion, only properly be classified as "highly prejudicial". The fact that the appellant rebutted or denied the allegations could not, in my opinion, be said to have neutralised the alarming nature of the allegations said to have been sourced to a CIA report.

4. [290]

   Taken in conjunction with the allegation concerning the allegation of a direct association with al-Qaeda, the material in the articles, in my assessment, was such as to destroy any prospect of a fair trial.

5. [291]

   In summary:- (1) The material referred to in the articles was highly prejudicial to the appellant, firstly, by reason of the nature of the allegations directed against him and, secondly, by the statement of the journalist as to the alleged source for the allegations (the CIA). (2) Evidence of the kind referred to in (1) is calculated to render a fair trial improbable. The articles were in the possession of the jury for a number of days before the application for the discharge was made and remained with the jury thereafter. I note that express reference was later made to the prejudicial material in closing addresses when other matters were referred to by counsel. (3) It cannot, in my opinion, be said that such prejudicial allegations referred to in the tendered articles could not affect the judgment of the jury in coming to their decision of guilty or not guilty. (4) Directions to the jury to put the articles out of mind and to the effect that they were not to be taken into account could not operate to remove the impact of such highly prejudicial allegations, particularly having regard to the fact that the allegations concerned alleged terrorist activities by the appellant himself when he was being tried for a terrorist offence. (5) The effect of the material in the articles was to effectively destroy the underlying basis for the defence. The fact that the articles contained strong rebuttals and denials by the appellant could not be considered to have neutralised the nature and severity of the allegations made. (6) In the above circumstances, in my assessment, consistent with the right every accused person has to a fair trial conducted according to law, the discretion of the trial judge could only have been exercised in favour of discharging the jury and a new trial ordered.

6. [292]

   I have concluded that the trial judge's decision to refuse the application for a discharge of the jury was, with respect, an erroneous exercise of the discretion. Although the material was tendered in the defence case, it was done by the inadvertence of the appellant's counsel. The material in the prejudicial articles expressly having identified the appellant as the subject of allegations said to have been based upon a CIA report, was, in my opinion, so damaging that no directions from the trial judge were capable of removing its detrimental effect. Accordingly, in my opinion, the only course open to the trial judge in those circumstances was to discharge the jury.

7. [293]

   I, accordingly, would uphold Ground 1 of the appeal.

Ground 2: Alleged misdirection with respect to delay by authorities in seeking the removal of the book from the Al Maqdessy website

1. [294]

   The issue raised by this ground concerns a period of time between the detection of the book on the website and its removal in May 2004.

2. [295]

   It was contended on behalf of the appellant that ASIO and the Australian Federal Police had delayed in removing the e-book from the internet even though they had known that it had been uploaded onto the abovementioned website in September 2003. The delay, it was contended, was evidence which the jury were entitled to conclude meant that the elements of the charge had not been established.

3. [296]

   In the submissions for the appellant, it was contended that there was no evidence that any steps had been taken to cause the removal of the book from the internet and that, indeed, its removal appeared only to have occurred because of the actions of the appellant one month after he was compulsorily interrogated by members of ASIO. The appellant's arrest, it was noted, did not take place for a further month.

4. [297]

   It was noted in the appellant's submissions that during the first portion of the summing up, the trial judge stated, in effect, that the jury should disregard the submission made by counsel on behalf of the appellant in relation to this matter, instead explaining that any delay was the result of the time required by the Australian Federal Police to obtain a proper translation.

5. [298]

   In the appellant's submissions, it was stated that the clear purpose of the evidence was to show that the document (the book) had not been considered by the abovementioned authorities to be helpful and, hence, that it was less likely to be connected with preparation for, the engagement of a person in or assistance in a terrorist act.

6. [299]

   In the Crown's submissions, the relevant chronology was set out. This indicates:- (1) The appellant had been interviewed by members of ASIO over a period of 10 days concluding on 23 April 2004. (2) Search warrants had been executed on the appellants home on 6 May 2004 and, on 9 May 2004, a request was made by the appellant that the book be removed from the website. (3) On 22 June 2004, he was arrested and charged.

7. [300]

   I accept the Crown submission that there was no evidence that there were means available to ASIO or the Australian Federal Police to compel removal of the book from the website. On that basis, the contention of delay by the authorities was always a doubtful proposition.

8. [301]

   I additionally accept the submission for the Crown that the jury was not entitled to infer that "the authorities" took no action to get the book removed from the website in the absence of evidence that they had the means for doing so. No suggestion had been put to either Mr Roden or the Federal Agent, Redfern, to the effect that their respective organisations had any power or control in respect of the content on the Al Maqdessy website and further it was not put to them that they had the belief or opinion that the book on the website did not constitute an imminent danger.

9. [302]

   I do not consider that there is any merit in relation to this ground.

Ground 3: Alleged misdirection with respect to the words "is connected with"

1. [303]

   In considering this ground, it is necessary to restate the elements of the offence in question.

2. [304]

   An offence under s.101.5(1) involves the following elements:- (1) A person (the appellant) does something - makes a document (the physical element of the offence: s.101.5(1)(a)). (2) The document "is connected with" one or more of the following:- (a) preparation for a terrorist act; (b) the engagement of a person in a terrorist act; (c) assistance in a terrorist act: s.101.5(1)(b); and (3) That person:- (a) knows of the connection referred to in (2): s.101.5(1)(c) (the fault element).

3. [305]

   The connection element referred to in (2) above refers to a connection between a document and one or more of the actions referred to in (2) - each being a purposeful action that is likely to facilitate a terrorist act.

4. [306]

   In the present case, the connection is said to have been between the document (or the book) and "assistance in a terrorist act".

5. [307]

   In terms of the fault element under s.101.5(1)(c), the Crown must establish that the appellant knew certain facts sufficient to know of the connection described in s.101.5(1)(b).

Appellant's submissions

1. [308]

   In the submissions for the appellant, it was contended that the phrase "in connection with" is capable of carrying a broad meaning but that it always takes its colour from its surroundings. Reliance was placed upon dicta of Spigelman CJ in R v Orcher [1999] NSWCCA 356 at [28]; (1999) 48 NSWLR 273 at 278.

2. [309]

   It was further contended that it was particularly relevant that the phrase appeared in a "highly penal provision". Further, it was submitted that, in the criminal context, there must be "in a very real sense" a link, that is, a "substantial connection" between the document and the terrorist act.

3. [310]

   It was contended that the trial judge's direction that the words "connected with" could be taken to carry the ordinary meaning of the words did not provide the requisite guidance and did not inform the jury as to the role the connection element played in the offence.

4. [311]

   Mr Barker QC, who appeared with Mr P Lange of counsel on behalf of the appellant, submitted that, having regard to the inability of the jury to reach a verdict in respect of Count 2, they appeared to have attached "the most tenuous meaning to the phrase 'connected with' ..." (transcript, 6 October 2010, p.6).

5. [312]

   Mr Barker also contended that it was dangerous to leave to the jury the words constituting the connection element without the requisite instruction and guidance. The words "in connection with", he contended, must be construed in their context and that a mere or remote connection will not suffice. He submitted that a narrow, rather than a broad, interpretation should be adopted and that that would be achieved by construing the phrase as meaning "directly connected with" (transcript, 6 October 2010, p.7).

6. [313]

   Following the conclusion of the hearing of the appeal, the parties were invited to make further submissions in light of the subsequent judgment of the Victorian Court of Appeal in Benbrika & Ors v The Queen [2010] VSCA 281; (2010) 247 FLR 1. In the further submissions on behalf of the appellant, it was submitted that the three requirements specified in Benbrika (supra) at [315] could be readily transposed to the present case, it being emphasised that there must be a terrorist act, which is either proposed or contemplated. Additionally, some activity, which assists that terrorist act, it was argued, must be underway, proposed or contemplated. Finally, the thing (the document) must be used or intended to be used in aid, or as part of, that assistance. The submission, accordingly, was that only where all three of those elements have been proved beyond reasonable doubt by the prosecution can it be said that the document was connected with a terrorist act.

7. [314]

   It was also contended that, contrary to the Crown's earlier submissions, the approach taken in Benbrika (supra) emphasised that the appellant's intention was a matter that could be taken into account, relying upon the observations in that case at [317] and [318]. In other words, the "connection" was stated to be a function of the intention or purpose which must be shown to have existed - in that case, at the time of possession, with respect to both the terrorist act and the use of the thing.

8. [315]

   It was, accordingly, contended that the reasoning in Benbrika (supra) applied to an offence under s.101.5(1) and to the term "assistance in" as opposed to "preparation for" a terrorist act.

9. [316]

   Finally, reference was made to the principle that the High Court had made it clear that intermediate appellate courts should not depart from an interpretation of a uniform national legislation by another Australian intermediate appellate court unless convinced that the interpretation was plainly wrong: Benbrika (supra) at [116], citing with approval Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485. Reliance was also placed upon the observations of the High Court in Hili v The Queen [2010] HCA 45 at [57]; (2010) 85 ALJR 195 at 207 and R v JS [2007] NSWCCA 272 at [87] (2007) 175 A Crim R 108 at 127 per Spigelman CJ.

10. [317]

    It was submitted on behalf of the appellant that the reasoning of the Victorian Court of Appeal was not clearly wrong and, accordingly, should be followed by this Court.

Crown submissions

1. [318]

   It was submitted for the Crown that the meaning of "connected with" as used in sub-section (1)(b) was not influenced by authorities which circumscribe the meaning of that phrase as used in other penal statutes.

2. [319]

   According to the Crown submission, an offence under that sub-section, falls to be determined according to the ordinary meaning of the words in the English language. Reliance was placed upon the trial directions given by Whealy J in R v Lodhi (2005/1094, reproduced at AB 540) which it was contended supported the trial judge's direction in the present case. In accordance with the directions in Whealy J's summing up in Lodhi (supra), it was submitted, no special or technical meaning is to be given to the phrase.

3. [320]

   The Crown took issue with the submission for the appellant that the expression required "a close nexus between the document and the (terrorist) action". It observed that it had been submitted on behalf of the appellant before the trial judge that the jury should be given a direction in the following terms:- "You must be satisfied beyond reasonable doubt that the book was connected with assistance in a terrorist act. The words 'connected with' mean that the book must itself have been capable of directly assisting in the commission of a terrorist act. A mere remote connection will not suffice. The word 'assistance' is, of course, a word that is used in everyday language and is to be understood in that sense, that is, aiding, making easier or facilitating."

4. [321]

   The Crown argued that the additional directions sought by the appellant sought to introduce a reference to the appellant's intention with respect to his purpose in making the book when that was not an element of the Count 1 offence.

5. [322]

   Finally, the Crown disputed the appellant's contention that the words "connected with" are of such wide meaning in their ordinary usage, in the context of s.101.5(1)(b), that there was a requirement for a trial judge to direct the jury as to a restricted meaning to be applied to them. It was also contended that the appellant was bound by his application for the directions reproduced at AB 2/555-6.

6. [323]

   In response to the further submissions made on behalf of the appellant and, in particular, in relation to the judgment of the Victorian Court of Appeal in Benbrika (supra), the Crown submitted that it was not appropriate to transpose the Court's criteria in Benbrika (supra) at [315] for the possession of a thing to be "connected with preparation for a terrorist act" under s.101.4(1) as the criteria for making a document "connected with assistance in a terrorist act" under s.101.5(1) because of "... the qualitative difference between the two kinds of conduct": Crown's submissions in response to the further submissions for the appellant (at [12]).

7. [324]

   The submission referred to the observation of the Court in Benbrika (supra) at [314] that a "thing" being an inanimate object, says nothing as to the reason it is possessed. However, a document was said to be of a different character. Making a document necessarily invests the maker with knowledge of its content at the time it is made (at [12]).

8. [325]

   The Crown observed that, whilst a thing per se has no intellectual component beyond an intention to possess it, making a document (absent outside directive, as in the present case) required intellectual input into its content (at [14]):- "... A document cannot be made without the maker deciding upon its composition and/or compilation. The maker therefore knows both the content of the document at the time it is made and his or her purpose in making it. Evidence of what is done during the process of making the document can also evidence the maker's knowledge of how that purpose is to be achieved."

9. [326]

   The Crown submitted that where, as in the present case, the content of the document (at [15]):- "... can fairly be construed as a call to terrorist arms, and where the maker sends drafts of it to a known terrorist website with urgings for the final document to be posted on the website, a connection between making the document and assistance in a terrorist act exists; further, the maker knows of the connection"

10. [327]

    The Crown, additionally, drew attention to the particular direction given by the trial judge as to the meaning of the phrase "connected with assistance in an action or threat of action" which was given in the context of the evidence in the case. It was emphasised that the direction to interpret that phrase according to its plain English meaning was one associated with the direction that the jury had to be satisfied that the Crown had proved beyond reasonable doubt, inter alia, that the document the appellant intentionally made was connected with assistance in an action or threat of action, being conducted against any one or more of a number of persons, including diplomats, military personnel and holders of public office in the manner set out in detail in the written directions.

11. [328]

    The Crown further argued that the fault identified in Benbrika (supra) of a failure to identify what had to be proved for the requisite connection to be established did not occur in the present case. It was submitted that the trial judge's direction precisely identified what had to be proved to establish the fact that when the appellant made the document he knew of its connection with assistance in a terrorist act. The trial judge's direction in the present case, it was submitted, contained no error. Alternatively, any error was inconsequential in the context of the full direction. It did not lead to a miscarriage of justice (at [17]).

Consideration

1. [329]

   In determining the meaning of the expression "is connected with", s.105.5(1)(b) refers to a document that "is" connected with assistance in a terrorist act. It does not state, for example, that the document "could have" or "may have" a connection with a terrorist act.

2. [330]

   A provision such as s.101.5(1), as Spigelman CJ observed in Lodhi v The Queen [2006] NSWCCA 121 at [65] to [66]; (2006) 199 FLR 303 at 318 is directed to the preliminary steps for action which may have one or more effects. The legislative regime established by the provisions in Part 5.3 of Chapter 5 is directed at criminalising what may be termed preparatory acts. It is clear that the intention of the Parliament was to create offences even where the offender, who intended to commit a terrorist act, 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, eg, well before an agreement has been reached for a conspiracy charge ..."

3. [331]

   A terrorist act, whether it is the act of an individual or the act of a number of persons conspiring together, will usually involve varying degrees of planning and a number of acts of preparation.

4. [332]

   A person charged with an offence under s.101.5(1)(b), as earlier noted, must be shown to have known of the connection between the document and the assistance in a terrorist act. This provision, properly construed, means that, whilst a person prosecuted under that provision may be unaware of a specific target for a terrorist act, he or she may have knowledge of certain facts concerning a terrorist act in contemplation or an existing proposal, decision, plan or preparatory acts to commit a terrorist act.

5. [333]

   Accordingly, in order to prove the offence, there must be circumstances established in evidence of a connection, that is, a link, an association or a relationship between the making of a document and assistance in a terrorist act. The phrase "is connected with" may apply to a connection between a document and either a preparatory stage for a terrorist act or to the actual implementation of such an act.

(1) The reasons for judgment in Benbrika & Ors v The Queen

1. [334]

   In Benbrika (supra), Maxwell P, Nettle and Weinberg JJA considered, inter alia, appeals by two men against their convictions for an offence of possessing "a thing connected with preparation for a terrorist act" being an offence under s.101.4(1)(b) of the Criminal Code.

2. [335]

   In Benbrika (supra), the Crown case at trial was that the applicants were members of a Melbourne-based terrorist organisation, which was fostering or preparing for the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The cause to be advanced by terrorist action in that case was said to be the belief - taught by Benbrika and accepted by members of the organisation - that they were under a religious obligation to pursue violent Jihad against the kuffar (non-believers).

3. [336]

   During investigations, police executed a search warrant at Benbrika's home and located a number of audio cassettes and other material. Amongst the CDs were two copies of a CD with a handwritten label entitled "Supporters of Shariah Islamic Info Lectures, Mansura Movies of Shuuhaddah [sic] and heaps more" (referred to as the "Mansura CD").

4. [337]

   The Court of Appeal concluded that the trial judge had erred in the directions given as to the nature of the connection which must be proved in an offence under s.101.4(1)(b).

5. [338]

   The Court there posed the question as to what will determine whether the requisite connection exists. In that respect, the Court stated there were three requirements (at [315]):- "... It seems to us that, as a matter of ordinary language, a thing cannot be said to be 'connected with preparation for a terrorist act' unless:- (a) a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be); (b) some activity in preparation for that terrorist act is underway, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) ('preparatory activity'); and (c) the thing is being used, or is intended to be used, in aid of that preparatory activity."

6. [339]

   The Court stated that the requirement for some preparatory activity to be underway or in contemplation flowed from the key words "connected with preparation" (at [316] to [317]):- "... Had Parliament had in mind to criminalise the possession of articles which might be suitable for use should such a preparatory activity be undertaken, then quite different statutory language would have been appropriate. Parliament could, for example, have adopted the language of s.58(1) of the Terrorist Act 2006 (UK), which makes it an offence to collect or record 'information of a kind likely to be useful to a person committing or preparing an act of terrorism'. A provision of that kind would direct attention to the characteristics of the thing possessed, and would pose what is, in essence, a hypothetical question, namely:- 'If a person was committing or preparing an act of terrorism, would an act of this kind be likely to be useful to that person?' The third requirement likewise follows from the words 'connected with preparation'. Plainly, it could not be sufficient simply to establish that preparatory activity was underway or in contemplation. For the thing to be connected with that preparatory activity, it must be shown that it was being used, or was intended by someone (whether or not by the possessor of the article) to be used, in aid of that preparatory activity."

7. [340]

   The Court of Appeal in Benbrika (supra) emphasised that the "connection" which the section requires is not a property of the thing itself. The connection, the Court emphasised, is a function of the intention or purpose which must be shown to have existed (at the time of possession), with respect to both a terrorist act and the use of the thing. As I indicate below, the same may be said of certain documents.

8. [341]

   I will return below to the reasons for judgment of the Court in Benbrika (supra) in relation to interpretative principles in relation to the connection element of the offence.

(2) The reasoning in Benbrika applies to an offence under s.101(5)(1)(b)

1. [342]

   The reasoning of the Victorian Court of Appeal in Benbrika (supra) is instructive in relation to Ground 3 although the particular offence in question in that case was one under s.101.4 and not s.101.5. However, the terms are companion provisions and employ similar expressions. The Victorian Court of Appeal observed (at [318]):- "The fact that the item in question was capable of being used, or was suitable for use, in connection with a terrorist act could not be enough. As we have said, the 'connection' which the section requires is not a property of the thing itself. The connection is a function of the intention or purpose which must be shown to have existed (at the time of possession), with respect to both the terrorist act and the use of the thing." (emphasis added)

2. [343]

   Applying the analysis employed by the Court in Benbrika (supra) to a s.101.5(1)(b) offence, if there was no evidence that anyone had in contemplation or was planning or proposing or preparing for a terrorist act at the time the document (namely, the book) was made in this case, then it must follow that there would be no evidence capable of establishing a connection between the making of the book and a terrorist act.

3. [344]

   The Court of Appeal in its analysis in Benbrika (supra) emphasised that the words "connected with" cannot be construed in isolation from their context (at [323]).

4. [345]

   Whilst in that case the Court stated that it is erroneous to ask whether the connection must be shown to have been a "direct" one, it acknowledged that it could be argued that what Parliament had in mind when it spoke of the need for the thing to be "connected with", relevantly, preparation for a terrorist act, was a "real and substantial connection", and not one that was peripheral. The Court emphasised, however, that this was not to adopt a test of "directness", stating (at [324]):- "... The question is not, as the English cases suggest, whether there is a direct connection between the thing and the act of preparation. It is rather whether the connection, as manifested in all of the circumstances of the case, is sufficiently tangible to fall, properly and sensibly, within the meaning of the term 'connected with'.

5. [346]

   The analysis of principle in the context of s.101.4(5) emphasises that, in an offence under that provision dealing with possession, circumstances may exist in which a person is in possession of an object which is capable of being used (for example, the preparation of a bomb) but exculpatory circumstances may also exist which would then engage the defence under s.101.4(5). The exculpatory circumstance is not an objective feature of the object in the possession of the person concerned but rather is the absence of a subjective purpose linking the defendant's possession of it with the preparation for the terrorist act. The person, accordingly, may lead evidence that, for example, it was simply an accident of circumstance that he was in possession of the material in question and that the possession was not for any purpose associated with the terrorist activity.

6. [347]

   I am of the opinion that similar reasoning is to be applied in the interpretation and application of s.101.5(1)(b) of the Code. In particular, the analysis in Benbrika (supra), with respect, convincingly reveals why, as the Court observed, it is erroneous to construe the words "connected with" in isolation from their context. It is only when considered in context that the particular meaning of the phrase can be derived.

(3) Application of interpretative principles to broad expressions in a criminal statute

1. [348]

   In Orcher (supra), Spigelman CJ considered an issue of interpretation in relation to an offence under s.326(1) of the Crimes Act 1900. An offence under that provision relates to threatened action on account of anything lawfully done by a person "... as a public justice official in or in connection with any judicial proceeding".

2. [349]

   The Chief Justice observed (at 278):- "The second question in the stated case turns on the proper construction of the words 'in connection with any judicial proceedings'. Words of such generality are often read down in the process of interpretation: see, eg, R v Young (1999) 46 NSWLR 618 at 689 [22]-[25], ... The phrase 'in connection with' is capable of considerable breadth, however, it always takes its colour from its surroundings. The full scope of the dictionary definition is rarely, if ever, appropriate."

3. [350]

   In the article, Principle of Legality and the Clear Statement Principle (2005) 79 ALJ 769, the author, Spigelman CJ, referred to the observations of Lord Simon of Glaisdale (described as "a master of statutory interpretation"):- "Words and phrases of the English language have an extraordinary range of meaning. This has been a rich resource in English poetry (which makes fruitful use of the resonances, overtones and ambiguities), but has a concomitant disadvantage in English law (which seeks unambiguous precision, with the aim that every citizen shall know as exactly as possible, where he stands under the law: Stock v Frank Jones (Tipton) Limited (1978) 1 WLR 231 at 236."

4. [351]

   In the last-mentioned article, the Chief Justice stated (at 772):- "While all statutory interpretation is text based, it has long been accepted that the words of the text must be understood in their context. The words do not exist in limbo ... As Professor Sunstein has put it:- 'Legal words are never susceptible to interpretation standing by themselves, and in any case they never stand by themselves.' Context is always important ..."

5. [352]

   In Benbrika (supra), the Court proceeded to state in relation to s.101.4 (at [334]):- "... The question is not whether the connection has to be (and be proved to be) a 'direct' connection. The question is whether the requisite purpose existed (at the relevant time) with respect to the thing possessed, so as to connect it in the relevant sense with a terrorist act."

6. [353]

   A little later, the Court stated (at [338] and [339]):- "As pointed out earlier, for a relevant connection to have existed, there had to be a terrorist act for which the preparatory activity was underway or in contemplation. Otherwise there was no 'terrorist act' with which the thing in question could be shown to have had a connection ... ... However, his Honour then failed to direct the jury as to how to determine whether the Mansura CD had the requisite connection with that preparatory activity. Doubtless reflecting the submissions advanced on both sides, his Honour construed the phrase 'connected with' in isolation from its legislative context, which led him to tell the jury that it was 'A very wide phrase. It does not mean connected with in any particular way. There just has to be some connection between the thing and a terrorist act.' For the reasons we have given, and with respect, this was not a correct statement. Used in s.104.4(1), the phrase does have a particular meaning. It means that the thing must be shown to have been 'connected with preparation for a terrorist act' by virtue of some person's having had the purpose of using the thing in, or in aid of, preparation for the terrorist act."

7. [354]

   The Court there further observed that the interpretation of the phrase "in connection with" as outlined in the judgment of that case accorded generally with the approach to that expression favoured in a number of authorities. In that respect, reference was made to observations of Vickery J in Nolan v MBF Investments Pty Limited [2009] VSC 244 at [79] in which the observations of Giles JA (then CJ in Comm Div) in Elkateb v Lawindi (1997) 42 NSWLR 396 noted at 402:- "The phrase 'in connection with' has on many occasions been said to be of considerable width, satisfied by a link or an association ... or a relationship ... and summed-up in the phrase 'having to do with' ... As with the phrase 'in relation to', no doubt the context or the purpose may require that the link, association or relationship be of a particular kind, sometimes described as an appropriate or relevant relationship ..."

8. [355]

   In Benbrika (supra), the Court turned to examine the trial judge's directions and stated at [343]:- "The language of the trial judge's direction in the present case leaves open the real possibility that the jury reasoned to guilt without directing any attention to whether the requisite connection had been established. The content of the Mansura CD was such that, in the absence of an appropriate direction, it was but a short step from a conclusion that a terrorist act was being prepared to a conclusion that there was 'some connection' between the Mansura CD and that preparatory activity."

9. [356]

   The Court, accordingly, concluded that the conviction had to be set aside.

10. [357]

    I am of the opinion that the reasoning and approach adopted by the Victorian Court of Appeal in relation to s.101.4(1)(b) equally applies to the interpretation and application of the provisions of s.101.5(1)(b) of the Criminal Code. In my opinion, there is no basis for a different approach to be taken with respect to s.101.5(1)(b).

(4) The elements of an offence under s.101.5(1)(b)

1. [358]

   There are three elements of the offence under s.101.5(1):- (1) The making of a document, (2) Connection, (3) Knowledge.

2. [359]

   The ground of appeal presently under consideration concerns the second of these three elements. What has to be proved under s.101.5(1)(b) in the present case is that the "document" (the book) made by the appellant:- "is connected with ... assistance in a terrorist act."

3. [360]

   The expression "terrorist act" is defined in s.100.1 as "an action or threat of action ..." where such action falls within paragraphs (a), (b) and (c) of the definition. As the Court in Benbrika (supra) noted, the language of s.104(1)(b) (which employs a similar formulation as appears in s.105(1)(b)) includes a terrorist act which is in contemplation or which is being prepared for or proposed: at [312]. The Court there also noted, on the authority of Lodhi (supra), that it will include a terrorist act which is proposed or contemplated even though no decision has been made as to what kind of act will be committed.

4. [361]

   The expression "assistance in" in s.101.5(1) can be said to include the dictionary meaning of "assistance", namely, the action of helping, aiding or supporting a terrorist act. A document that contains material indicating support for the concept of "terrorism" in a broad or an unspecified way is not a document that is relevantly connected with a terrorist act within the meaning of s.101.5(1). (Without expressing any concluded view, such a document, of course, may form the basis for some other offence under the Act.) This is so even if the book in question (or parts of it) may be seen to be capable of being a source of inspiration or information to a "would-be" terrorist. The test to be applied in relation to s.101.5(1)(b) is whether the document is connected in the sense of helping, aiding or supporting a terrorist act. Adopting the analysis in Benbrika (supra) at [315], the test is not a different or a lower test of whether the book was such that it could be useful to a person who may at some future point in time contemplate or prepare for the commission of a terrorist act.

Conclusions

1. [362]

   The provisions of s.101.5(1)(b) are not directed towards conduct that seeks to promote or apostolize terrorism per se. The section presupposes that a terrorist act is in contemplation or that a decision has been made in favour of such an act or acts have been or will be taken by someone towards the commission of a terrorist act. Additionally, the appellant must have knowledge of one or more such acts. It is both the making of the document and the maker's knowledge of facts concerning a terrorist act or acts which is fundamental to the criminality of an offence under that provision.

2. [363]

   As the reasons in Benbrika (supra) indicate, in determining the issue of "connection" it is relevant to inquire as to the appellant's purpose in making the document. Was the purpose to inspire or to educate in some general way not related to a terrorist act? Or was its purpose to inform or instruct in order to assist the commission of a terrorist act?

3. [364]

   A document may or may not (as with a thing which is in a person's possession) have a necessary or an objective connection with a terrorist act within the proper meaning of that expression in s.105(1)(b). I leave to one side, for the purposes of the present discussion, a document that explicitly refers to it having been made for the purpose of preparing for or assisting in a particular or a proposed or contemplated terrorist act. Whether otherwise a document has the requisite connection with a terrorist act will depend upon the document, the circumstances of its making and on other relevant surrounding circumstances. The requirements for an offence under s.101.5(1)(b) are, in my opinion, with appropriate changes in terminology, the same requirements that exist in relation to "connected with ... assistance in a terrorist act", as the Court in Benbrika (supra) made clear, applies with respect to whether a thing is "connected with" preparation for a terrorist act.

4. [365]

   Any other approach would, in my opinion, be anomalous. There is no clear-cut distinction or differentiation to be made between preparation for a terrorist act and assistance in a terrorist act. They are concepts that in many factual situations will overlap one another. The making of a document that contains, for example, instructions on the process for constructing an explosive device may, depending upon the particular circumstances, be seen as one that is both connected with preparation for a terrorist act as well as one that provides assistance in such an act.

5. [366]

   In order to derive the proper meaning the phrase "is connected with" in s.101.5(1)(b), the three requirements stated in Benbrika (supra) at [315] for determining whether the requisite connection exists must, in my opinion, with appropriate changes in terminology equally apply in determining whether a document is connected with assistance. Construed otherwise without regard to its context would leave the connecting element of the offence unacceptably broad in an offence - creating provision that carries a very high maximum penalty. Where there is no explicit or sufficient evidence from the contents of the document of such a connection there must be evidence that satisfies the requirements referred to in Benbrika (supra).

6. [367]

   The ordinary dictionary meaning of the word "assist" includes the notion of helping another "in" or "with" something. Section 101.5(1)(b) is not, as earlier noted, expressed in terms of assistance in "terrorism" in a general sense or as a concept. It is confined, inter alia, to a document connected with assistance in an act - a terrorist act. Hence, as earlier discussed, it is necessary, in my opinion, for an alleged offence that there be evidence, at least, of a terrorist act in contemplation or one that is planned or in preparation.

7. [368]

   Whilst, of course, the construction of s.101.5(1)(b) is text based, the proper meaning of its provisions can only be understood and established by their context. The requirements stated in Benbrika (supra) (with appropriate adaptation) are, in my opinion, directly relevant in establishing the context in which paragraph (1)(b) is to be considered. Further, no reason exists for a conclusion that those requirements do not apply to an offence of making a document under s.101.5(1)(b).

8. [369]

   The interpretation of the provisions of s.101.5(1)(b), in my opinion, when considered in context and upon the basis of the reasoning in Benbrika (supra), supports the following propositions:- (1) The phrase "is connected with" in ordinary language is one of considerable width. (2) The phrase, however, must be interpreted, not in accordance with what might be considered by a jury to be its ordinary meaning but, in its legislative context as part of a criminal statute (Part 5.3 - Terrorism in Chapter 5 of the Criminal Code). (3) The phrase does have a particular meaning to which effect must be given in the application of s.101.5(1)(b). Its meaning is to be ascertained having regard to the fact that it is a connecting element between two events or matters, namely, a document made by a person charged with an offence under the section and a terrorist act, in particular, assistance in such an act. (4) The phrase means that, in the present case, the document (namely, the book) must be shown as having been connected with assistance in a terrorist act in accordance with the particular meaning referred to in (3). (5) Such a connection may be established if, for example, there is evidence that the book was made by the appellant for the purpose of it being used in or in aid of the commission of (including the preparation for) a terrorist act. (6) Whether a document in itself can be said to establish the required connection may depend upon its contents. A question in that respect is whether the book's contents expressly or impliedly indicate that the book constituted assistance in a "terrorist act" as that expression is to be properly understood.

9. [370]

   In determining whether the requisite connection exists, it follows that a document cannot be said to be "connected with assistance in a terrorist act" unless requirements such as those identified in Benbrika (supra) are satisfied. To satisfy such requirements, there would, in my opinion, need to be evidence in the Crown case as to the following:- (1) That a terrorist act was, at the time of the making of the book, in contemplation or that a decision had been made by a person to undertake a terrorist act or that there was a proposal for a terrorist act or that such an act was in its preparatory stages. (2) That the appellant knew of facts concerning the fact that a terrorist act was in contemplation or planned or that a decision to commit such an act had been made or that a proposal existed to that end or there was or would be preparation in relation to a terrorist act.

10. [371]

    The Crown case focused upon the chapter in the book which was expressed in extremist terms. These included the parts dealing with assassination. As horrific or abhorrent as the discussion of such matters may be, for the document to constitute an offence under s.101.5(1)(b), there is a requirement for the evidence to establish facts and circumstances, to the requisite standard, that the book was connected with assistance in a terrorist act, being an act proposed, planned, in preparation etc, as discussed above.

11. [372]

    The contents of the book must, of course, be examined in order to determine whether the book in itself establishes that it is "connected with ... assistance in a terrorist act". Extremist references to militant Jihad and related matters discussed in the book clearly fall for consideration in relation to the provisions of s.101.5(1)(b). In particular, in relation to "targets", reference to "Identities" in wide-reaching terms ("... All Jewish, Christian and Arab atheists among the diplomats") and the reference to nationalities" and "enemy nationalities" there is, in my, assessment, a question as to whether such descriptions and references are sufficient to establish an action or threat of action within (contemplated or planned) the meaning of the expression "terrorist act" and assistance in such an act within the meaning of s.101.5(1)(b).

12. [373]

    In particular, are such general expressions, without more, capable of establishing that, at the time of the making of the book, someone (whether or not the appellant), was contemplating, proposing or planning a terrorist act and that the book was to assist in such an act?

13. [374]

    I am of the opinion that the direction given by the trial judge in relation to the meaning of the expression "is connected with" in s.101.5(1)(b) was erroneous in that the direction did not provide information or guidance to the jury on the particular meaning attaching to that statutory formulation. The trial judge, in my opinion, was required to direct the jury that, to establish the relevant connection, it was necessary that there be evidence, and that they were satisfied on that evidence, that the book was connected with assistance in a terrorist act that, at the time of making the book, was either proposed or contemplated or to an activity that was proposed, contemplated or was underway in relation to a terrorist act.

14. [375]

    I am of the opinion that Ground 3 has been made out.

Ground 4: Alleged error with respect to the application of s.101.5(5) of the Code

1. [376]

   On 1 September 2008, the trial judge delivered a judgment on the question as to whether s.101.5(5) of the Criminal Code had been engaged and on whether the accused had discharged the evidential burden imposed by s.101.5(5) of the Code.

2. [377]

   The submission for the appellant was that, in the event that the jury was satisfied beyond reasonable doubt of the essential ingredients of the offence in Count 1 on the indictment, then the summing up should contain a direction to the jury to the effect that, if there was a reasonable possibility that the accused did not make the book with the intention of facilitating or providing assistance in a terrorist act, then the jury had to be satisfied beyond reasonable doubt that the making of the book was, in fact, intended to facilitate assistance in a terrorist act.

3. [378]

   On 29 August 2008, the trial judge rejected the submissions for the appellant and held that a defence under s.101.5(5) did not arise for consideration by the jury. In her Honour's judgment (p.3), the trial judge referred to evidence relied upon by the appellant which it was claimed supported an inference that amounted to an exception under s.101.5(5), namely, that the making of the book was not intended to facilitate assistance in a terrorist act.

4. [379]

   In the judgment of 1 September 2008, the trial judge reproduced what was said on behalf of the appellant as to what would be submitted to the jury concerning the appellant's intention in making the book. In that respect, counsel for the appellant stated:- "The accused 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."

5. [380]

   The trial judge observed (AB 581):- "... The method adopted by the accused to support the Islamic religion, that is, the compilation of the book, ignores the precise nature of the book's contents, including references to the assassination of foreign leaders of state and to other acts of violence carried out in the course of Jihad. Thus, the difficulty with this statement of the accused's intention is that it corresponds with the Crown case, but for the fact that some of the authors collected in the book promote the commission of terrorist acts and that, by the addition of certain comments and introductions evidencing the accused's approval of the cause espoused by these authors, the accused knew of the book's connection in assistance in a terrorist act."

6. [381]

   In the course of her Honour's reasons for judgment, the trial judge stated (AB 583):- "... Whilst it is true that section 101.5(5) states that liability is avoided where there is no intention to facilitate assistance in a terrorist act, the note to the sub-section refers to 'the matter in subs 5 and to s.13.3(3)'. The latter provision and s.13.3(6) make it clear that, 'An exception, exemption, excuse, qualification or justification' is 'the matter' and that its existence or non-existence may be suggested as a reasonable possibility by the evidence relied upon to discharge the burden. It is also clear that a fault element is not a matter; see section 13.1(1) and (2). It is therefore difficult to accept the proposition that the matter relied upon by the accused as the exception is, in effect, the fault element which the Crown must negative beyond reasonable doubt. Section 105.5(5) is also consistent with the drafting convention adopted by the Commonwealth in order to signal the distinction between elements of the offence and exceptions to liability; see the discussion at pp.23, 89, 339 and 343-347 of 'the Commonwealth Criminal Code - A Guide for Practitioners', published by the Commonwealth Attorney-General's Department and the Australian Institute of Judicial Administration in March 2002. Some meaning must be attributed to 'exception, exemption, excuse, qualification or justification' in order to give expression to that distinction."

7. [382]

   The trial judge went on to draw a distinction between "a mere possibility" and the expression "a reasonable possibility" and the definition of "evidential burden" in s.13.3(3).

8. [383]

   Her Honour also referred to an example proffered by the Crown in relation to such a defence, namely, that of a terrorism consultant or advisor to Government or law enforcement agencies who collected and collated material advocating the commission of terrorist acts in the course of his or her employment. The objective circumstances, in such a case (including the nature of the person's occupation), would usually be relied upon as establishing a reasonable possibility that he or she made such a document without any intention to facilitate assistance in a terrorist act.

9. [384]

   After considering the example, the trial judge continued (AB 586-587):- "The accused's status as a journalist and researcher is not of the same character. His occupation as a journalist and the circumstances under which he made the book, namely, at short notice at the behest of 'the brothers', are not objectively inconsistent with an intention to facilitate assistance in a terrorist act. As I have already observed, in the absence of any evidence from the accused, his counsel sought to rely upon various categories of evidence in the trial from which the inference might reasonably be drawn that the accused did not intend to facilitate assistance in a terrorist act. It is not necessary to set out in detail that evidence, save to say that the Crown relies upon precisely the same evidence to prove the book's connection with assistance in a terrorist act and the accused's knowledge of that connection. Herein lies the paradox inherent in the accused's application to leave subs 5 to the jury. The accused proposes to submit to the jury that the evidence in the trial would not allow them to draw the conclusion beyond reasonable doubt that the accused knew of the book's connection with assistance in a terrorist act and, in the event that those submissions fail, rely on the same evidence as suggestive of a reasonable possibility that the accused did not intend facilitating assistance in a terrorist act. The effect is to put the Crown to proof on a fault element that does not form part of the offence. I have, accordingly, come to the view that section 101.5(5) has not been engaged, 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."

10. [385]

    In the written submissions for the appellant at trial, it was contended that the trial judge imposed upon him a requirement to point to evidence, which necessarily excluded the possibility that the document was intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act and that her Honour erred in that respect. As discussed below, it was contended that the approach taken by the trial judge imposed a legal burden of proof, and not an evidential burden upon him.

11. [386]

    It was further contended that the evidential burden involved substantiating a negative - in this case that the making of the book was not intended to facilitate assistance in a terrorist act. In that respect it was argued "slender evidence may suffice to satisfy an evidential burden in relation to a negative state of affairs". Reliance for this proposition was placed upon the decisions in Jeffrey v DPP (1995) 79 A Crim R 514 per Cole JA; Fowkes v DPP [1997] 2 VR 506 at 512 per Winneke P, Charles JA and Southwell AJA; DPP v Brauer (1989) 45 A Crim R 109 at 113 per Thomas J.

12. [387]

    It was further argued that, even assuming the burden under sub-section (5) was a legal burden (which, of course, it is not), it would be impossible for an accused to exclude the possibility that he held the particular criminal intention (Submissions on behalf of the appellant at [63]):- "... all an accused can do is to point to solid indications of the intention, which he asserts he did, in fact, hold. Put another way, proof of that intention cannot, by definition, exclude the possibility that he concurrently held the intention which the statute criminalises. ... Where, however, as here, there is no legal burden cast upon the Appellant, the weighing process simply does not come into play (in respect of the accused). The sole question of the consideration by the Court is whether the accused can point to evidence, or some factual thing, which suggests a reasonable possibility that his purpose was one other than that criminalised by the section. He can do this only by pointing to evidence, or something factual, that there was a reasonable possibility of an intention other than the one which is criminalised by the statute."

13. [388]

    Set out below are the particular factual matters in the evidence said to have been sufficient to discharge the evidential burden in relation to an exception or excuse capable of constituting a defence under s.101.5(5):- (1) That the appellant was an accredited journalist and that he had pursued journalism as his occupation, as well as his work as a publisher. (2) The appellant was a researcher who owned an extensive library that was used for research purposes. The evidence of Mr Dandan was relied upon as corroborating both the existence and the nature of the library and as confirmation that material held in it related to Islamic jurisprudence: transcript (secret), 28 August 2008, p.693. The library, according to the evidence of Mr Redfern, was very extensive and occupied one whole room and he estimated it contained hundreds of books, possibly thousands (t.582). He stated that there were also hundreds of audio tapes found (t.582). The library contained a desk, computer, hardware, a printer and photocopier (t.582). The computer contained thousands of files ranging over issues, including in particular, Islamic issues, amongst other things (t.582). A video of that part of the search involving the library was shown to the jury (t.583). (3) The range of material published on the relevant website was relied upon as relevant in determining the appellant's state of mind in publishing the book. The evidence of Mr Kohlmann was criticised by the appellant, insofar as it was said to have been to the effect that the website, Al MaqdessY.com, was extremist in nature. The evidence of Mr Dandan was relied upon as indicating that it was a site which contained more general material dealing with Islamic affairs whilst also acknowledging that there were parts of the website which were extremist in nature. Mr Dandan's evidence was that there was a range of Islamic issues that were available to be viewed, downloaded or interacted from the website (t.695). The website was the site chosen by the appellant to upload the book. The argument advanced for the appellant was that the site was a more general site, though one which could be said to have had an extremist component to it. Accordingly, the argument was that there was nothing sinister in the appellant's selection of the site as the place for uploading the book. (4) The inclusion of detailed footnotes and other references in the book. These were relied upon as being consistent with an intention in the appellant to produce a relatively high standard and well-referenced work in the nature of a research or reference book. Such attention to detail, it was argued, was consistent with an intention to produce a reference work and was not one which was sinister in nature. (5) The book was described, in parts (in particular, the first part), as a work that was difficult to comprehend and otherwise difficult to read. This, at least in part, was attributed to the fact that some parts were heavily referenced. This again was said to be inconsistent with the sinister intention propounded by the Crown. The book, it was suggested, represented a serious, if, in parts, difficult to read, reference work. (6) It was contended that paragraphs that were written by the appellant himself did not convey the notion that he was adopting or promoting the views of other people whose work had been included in the book. (7) The internet chats, it was argued, engaged in at the time the book was being compiled and immediately after its compilation, supported an inference that the compilation and uploading and publication of the book was consistent with the preparation of a reference book with a historical aspect on the subject of Jihad in its different forms. (8) The references in the book, for example, to the Koran, were verified as accurate. Accuracy in such matters was relied upon as a factor to be taken into account in terms of assessing the appellant's intention to produce a reference work (t.709). (9) In relation to the words "cell" and "Jihad" in the book's introduction, Dr Gamal's evidence was relied upon as indicating that such words may have varying meanings according to context. Hence the word "cell" can have a formal meaning ("small group") whilst "Jihad" can have a positive as well as a negative connotation (t.709). (10) Reliance was also placed on the title to the book and its general layout and indexing, all of which was said to be consistent with the publication of a book in ordinary circumstances. (11) The differentiation between those parts of the book that were authored by the accused, on the one hand, and those parts which were authored by others. The distinction or differentiation was relied upon on the question of the intention and knowledge of the appellant. Those parts written by the accused were to be considered in support of the contention of a benign intention. (12) The internet chat interceptions (said to be part of "the green folder") along with the appellant's membership of the Journalists' Association (his membership card was tendered in evidence and marked as an exhibit) were said to attest to his previous work as a journalist. His occupation was relied upon as consistent with a genuine interest in producing a reference work in the nature of a journalistic research project. (13) The jury were entitled to take into account the type of material produced within the magazine with which the appellant was associated over a fairly extensive period of time. This would assist in a determination as to whether the book compiled by the accused was intended or made for the purpose of a terrorist act or whether there was a reasonable possibility that the book was produced and published for another (benign) purpose.

14. [389]

    In relation to the "Dedication" in the book, the following matters are noted:- (1) The "Dedication" is addressed to various classes of people including all "Mujahideen" and "all the martyrs of Islam" and "to the prisoners languishing in the prisons of tyrants ... etc". (2) It is then addressed to a number of "great scholars" who were named (eight in number). (3) The Dedication concludes:- "May they be free from the prisons of tyrants, the enemies of the people and religion. Amen."

15. [390]

    In relation to the "Introduction", the following matters are noted:- (1) There are various statements of dedication and thanks to God and extolling "God's words". (2) In the second half of the "Introduction" there appears the following paragraphs:- "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 a 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 running away from it. I beseech my brothers who read this message to pray that I may attain martyrdom. Abu Mohamed Attawheedy 18/9/2003"

The appellant's submissions

1. [391]

   In the submissions on behalf of the appellant on this appeal, it was observed that the affirmative defence under s.101.5(5) depended upon the appellant satisfying an evidential, and not a legal, burden. It was submitted that it was not incumbent upon an accused to "prove" anything. The burden was one of "adducing or pointing to" evidence that suggests a reasonable possibility that the matter exists or does not exist.

2. [392]

   It was submitted that the Court, in determining whether the evidential burden had been satisfied, may have regard to the totality of the evidence, that the test was a very broad one and that no level of certainty had to be achieved. Evidence that fell short of proof, it was argued was sufficient. Reliance was placed upon the observation of the learned authors of the service, Federal Offences, wherein it was stated in relation to the word "suggest": - "... The Macquarie Dictionary defines 'suggest' to mean 'to place or bring (an idea, proposition, plan, etc) before a person's mind for consideration or possible action'. ... Applying that definition, the defence need only adduce or point to evidence that places before the Court 'for consideration' a particular defence."

3. [393]

   It was contended that the trial judge had imposed a requirement upon the appellant to point to evidence which, necessarily excluded the possibility that the document was intended to facilitate preparation for or assistance in a terrorist act. It was submitted that her Honour erred in this respect and, effectively, imposed a legal burden of proof upon the appellant.

4. [394]

   It was observed in the written submissions for the appellant that the burden was to adduce evidence substantiating a negative - in this case, that the book was not intended to facilitate assistance in a terrorist act and that, accordingly, slender evidence would suffice to satisfy such an evidential burden in relation to a negative state of affairs. Reliance was placed upon observations in Jeffrey (supra), Fowkes (supra) and Brauer (supra).

5. [395]

   The submission was also made that the assessment required did not involve a "weighing process". The sole question for consideration was whether the appellant could point to evidence suggesting a reasonable possibility that his purpose was one other than that criminalised by the section. It was contended that the duty of the Court was not to weigh up the various pieces of evidence and to determine whether the defence would be successful in light of the evidence and otherwise this would impose a legal burden of proof upon the appellant.

6. [396]

   Accordingly, the contention was that, if the appellant were able to point to evidence that suggested a reasonable possibility that the making of the document was intended to assist in education on the topic of Jihad, then the evidential burden had been satisfied.

7. [397]

   The appellant's submissions pointed to the evidence which, it was contended, satisfied the evidential burden. These matters included the fact that the appellant had worked as an author or journalist, that he was an accredited journalist, that the book itself was not a terrorist manual, but was a collection of works on the topic of Jihad, some articles being controversial, and others not. It was submitted that these and other matters drawn to the trial judge's attention were more than sufficient to overcome what was described as the "low hurdle" placed in the appellant's way by the evidential burden.

8. [398]

   Emphasis was also placed upon the purpose of an evidential burden. It was said to be designed to ensure that prosecution was not required to negative defences which may or may not be raised by an accused. On this basis too, it was submitted the burden was not an onerous one.

9. [399]

   In his oral submissions, Mr Barker described the evidential burden as setting "a pretty low threshold" (transcript, p.12). Additionally, he submitted that the position with respect to the provisions of s.101.5(5) were no different to the situation that arose with a defence of provocation to murder. The accused in such a case bears an evidential onus. The trial judge must find that there is sufficient evidence to go to the jury. It then becomes a matter for the Crown to prove the offence of murder beyond reasonable doubt. Whether there was evidence fit for consideration by the jury was, Mr Barker observed, on the question of provocation, a question of law.

10. [400]

    Mr Barker took issue with the trial judge's reference to the proposition that the evidence that was pointed to as having satisfied the evidential onus was the same evidence upon which the Crown relied proving the elements of the offence against the appellant. On that basis, the trial judge suggested that s.101.5(5) had not been engaged. Mr Barker submitted that any such proposition was "quite wrong". The fact that there was a coincidence of evidence, he submitted, was neither here nor there and, if there be a coincidence in that regard, that just reflected the way in which the evidence had fallen out. If the evidence did point to a reasonable possibility, then the trial judge was obliged to give the appropriate direction to the jury.

Crown submissions

1. [401]

   The Crown submitted that the evidential burden had not been satisfied as the evidence relied upon by the appellant in support of the affirmative defence was "devoid of the necessary quality": Crown's Written Submissions at [55].

2. [402]

   The Crown contended that it was an incorrect characterisation to say, as the appellant did, that the trial judge imposed upon him a requirement to point to evidence which necessarily excluded the possibility that the document was intended to provide assistance in a terrorist act. It was equally incorrect to say, it was submitted, that the trial juge imposed a legal burden of proof upon the appellant or that her Honour had paid insufficient regard to the nature of the task cast upon the appellant.

3. [403]

   The Crown accepted that the evidential burden on the appellant was low, in that the evidence, taken at its highest, need only be suggestive of the reasonable possibility of the absence of intention but that "a mere possibility" is insufficient.

4. [404]

   The Crown also observed that the appellant's case was that, by making the book, he intended by lawful means to support the Islamic religion, including the role and rules of Jihad in that religion. It was contended, however, that that intention was consistent with an intention by making the book to facilitate assistance in a terrorist act: Crown's Written Submissions at [60]. It was then submitted that evidence suggesting, as a reasonable possibility, the former intention, was incapable of amounting to even the slightest evidence of the absence of the latter intention because the two intentions do not, in the slightest, conflict. The validity of this submission will be dealt with later in this judgment.

5. [405]

   The Crown's contention was that none of the evidence pointed to by the appellant rose above what was termed "the mere possibility that in making the book knowing it was connected with assistance in a terrorist act, the appellant did not intend to facilitate such assistance": Crown's Written Submissions at [61].

6. [406]

   It was further contended that all of the evidence relied upon by the appellant was consistent with him having an intention to support the Islamic religion by "terrorist means": Crown's Written Submissions at [61].

Consideration

1. [407]

   Section 101.5(5) provides for a special defence which is expressed in terms of a negative concept, namely, "... if the ... making of the document was not intended to facilitate ... assistance in a terrorist act".

2. [408]

   The "Note" to s.101.5(5) refers to "an evidential burden" on a defendant. It is noted that it does not refer to an evidential burden of proof.

3. [409]

   Referring to an evidential burden in Jayasena v R [1970] 1 All ER 219 at 221-222; [1970] AC 618 at 624, Lord Devlin stated:- "But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof."

4. [410]

   Moreover, it was observed in L v Director of Public Prosecutions [2002] 2 All ER 854 at 861, [23] per Pill LJ:- "... the so-called burden may not in substance be a burden on the defendant at all. Evidence raising the issue will often emerge from the evidence, direct and circumstantial, called by the prosecution ..."

5. [411]

   The provisions of s.101.5(5) state:- "(5) Subsections (1) and (2) do not apply if the collection or making of the document was not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act. Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3))."

6. [412]

   It is clear from the terms of s.13.3(3) and s.101.5(5) that the "matter" referred to is the matter constituting the defence exception, excuse or justification.

7. [413]

   The intention of an accused person is an important fault element in determining criminality in many criminal offences. What a person's intention was at the time of undertaking or committing an act may be established by the surrounding objective circumstances. An offence under s.101.5(1)(b) does not require the Crown to prove as an element of the offence that the person charged intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act. It is only when a person charged with such an offence satisfies the evidential burden under s.101.5(5) that the accused's intention then becomes an issue in the trial. In the event that the evidential burden is satisfied, the Crown must then prove beyond reasonable doubt that the defendant intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act and the trial judge must give appropriate directions to the jury on that aspect.

8. [414]

   Given that s.101.5(1) and (2) do not apply if the document in question was not intended to facilitate, inter alia, assistance in a terrorist act, the evidential burden may play an important and focal role in offences charged under those provisions. A trial judge's responsibility to examine the relevant evidence for that reason is, of course, critical.

9. [415]

   The word "suggests", as well as the phrase, "a reasonable possibility" in the definition of "evidential burden" in s.13.3(6) confirms that there is no requirement on an accused to prove anything. The burden is limited to one of adducing or pointing to evidence "... that suggests a reasonable possibility that the matter exists or does not exist".

10. [416]

    In Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 (a case in which the applicant was convicted on charges of carrying on the business of unlawful trafficking in a dangerous drug and the possession of a quantity of drug), a defence was raised in which the applicant claimed that he had acted under compulsion within the meaning of s.31(1)(d) of the Criminal Code (Qld).

11. [417]

    In the High Court's decision granting special leave to appeal, but dismissing the appeal, the Court examined the legislative history in relation to the defence of compulsion under the Code. In the course of doing so, the Court (French CJ, Heydon, Crennan and Bell JJ) referred to the issue of the burden of proof in relation to an issue of fact, citing Professor Glanville Williams in Textbook of Criminal Law, 2nd ed, Steven & Sons, London, 1983, p.49 at 106 [30], in which it was stated:- "Burdens are in respect of facts; questions of law are decided by the judge, without any question of burden. But some questions, such as the question of reasonableness, are in an intermediate position. They are value-judgments marking the boundary between criminal and non-criminal conduct, and therefore are really decisions on law; yet they are made by the jury, except that there must be evidence that, in the view of the trial judge, would justify the jury in finding that there has been reasonableness or unreasonableness or whatever."

12. [418]

    The question as to what constitutes a reasonable possibility may arise in a variety of contexts. Thus, for example, an issue may arise at trial as to the cause of death, whether by an act of an accused person or otherwise. In R v Puckeridge [2000] NSWCCA 193, James J (with whom Heydon JA (as his Honour then was) and Bell J agreed) dealt with an issue as to a jury direction concerning the cause of death in the following terms (at [38]):- "It was submitted that an important issue in the trial was whether the Crown could prove beyond reasonable doubt that an act of the appellant had caused Mr Thomas' death or, differently expressed, whether the Crown could eliminate any reasonable possibility that Mrs Thomas' death had occurred otherwise than as a result of an act of the appellant. It was for the jury to determine whether any such possibility raised in the evidence was a reasonable possibility. The jury could conclude that such a possibility was a reasonable possibility, even though it had not been characterised as a reasonable possibility in the evidence of any witness."

13. [419]

    The trial judge referred (AB 526) to s.13.3(3) and s.13.3(6). It was there observed:- "... an exception, exemption, excuse, qualification or justification" is "the matter and that its existence or non-existence may be suggested as a reasonable possibility by the evidence relied upon to discharge the burden. It is also clear that the fault element is not a matter; see s.13.1(1) and (2)."

14. [420]

    The trial judge then stated (AB 582):- "It is therefore difficult to accept the proposition that the matter relied upon by the accused as the exception is, in effect, the fault element which the Crown must negative beyond reasonable doubt."

15. [421]

    The example given in the course of the judgment in relation to s.101.5(5) of a consultant or advisor to government or law enforcement agency who collects and collates material advocating the commission of terrorist acts in the course of his employment was set out in the reasons for judgment followed by the comment "... the objective demonstration of the possibility resides in the defendant's occupation, coupled with the circumstances under which the document is made ..." (AB 585).

16. [422]

    This observation, with respect, is clearly correct. That is to say, a person's occupation will often be relevant in determining the intention of the person in collecting or compiling a document. A professional writer may be seen as possessing qualities, skills and interests that are different from an unskilled and unemployed person. Additionally, the circumstances surrounding or that led to the production of a document may also be relevant on a question as to the state of mind of a person in making a document.

17. [423]

    The trial judge in fact observed that in particular circumstances, matters such as the nature of an author's expertise and the duties and responsibilities of a person who has created a document may be matters that are inconsistent with an intention to facilitate or provide assistance with a terrorist act. I might add that evidence that the maker of a document has had a special interest in certain subjects or topics about which he or she has previously written may also become a relevant circumstance on a state of mind issue.

18. [424]

    As the trial judge observed, a person may be able to point to objective circumstances that support the conclusion that "... the purpose in making the document was benign" (AB 585).

19. [425]

    Her Honour there added:- "Whether or not that defence is successful is ultimately a matter for the jury."

20. [426]

    In disposing of the matter, the trial judge (AB 586) dealt with the submission as to the availability of the defence under s.101.5(5) in the appellant's case. In that respect:- (1) The trial judge noted the accused's status as a journalist and researcher - but stated that it was "not of the same character" (at AB 586) (contrasting his position with that of a consultant advisor to government or law enforcement agencies in the abovementioned example who collated materials that advocate the commission of terrorist acts in the course of his or her employment). (2) Her Honour then proceeded (AB 586):- "... His occupation as a journalist and the circumstances under which he made the book, namely, at short notice at the behest of 'the brothers', are not objectively inconsistent with an intention to facilitate assistance in a terrorist act."

21. [427]

    The trial judge then referred to submissions made on behalf of the appellant as to various categories of evidence in the trial from which it was said an inference might reasonably be drawn that the accused did not intend to facilitate assistance in a terrorist act. Her Honour did not refer to the detail of such evidence but immediately observed at that point (AB 586):- "... save to say that the Crown relies upon precisely the same evidence to prove the book's connection with assistance in a terrorist act and the accused's knowledge of that connection".

22. [428]

    Her Honour then concluded (AB 586-587):- "Herein lies the paradox inherent in the accused's application to leave subs 5 to the jury. The accused proposes to submit to the jury that the evidence in the trial would not allow them to draw the conclusion beyond reasonable doubt that the accused knew of the book's connection with assistance in a terrorist act and, in the event that those submissions fail, rely on the same evidence as suggestive of a reasonable possibility that the accused did not intend facilitating assistance in a terrorist act. The effect is to put the Crown to proof on a fault element that does not form part of the offence. I have accordingly come to the view that s.101.5(5) has not been engaged, 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."

23. [429]

    A trial judge, in determining whether an evidential burden has been satisfied by an accused person by pointing to evidence that suggests a reasonable possibility that the making of the document was not intended to facilitate assistance in a terrorist act, does not, of course, decide whether the evidence in fact establishes on the probabilities, or by some other standard, the relevant exception, exemption, excuse or justification.

24. [430]

    Accordingly, in the present case, the task of the trial judge in terms of s.101.5(5) was not to determine whether parts of the evidence were in fact objectively consistent or inconsistent with the state of mind to which that provision refers. The trial judge did not have to determine whether a particular matter was "proved" as matters of fact have to be proved concerning an ultimate issue in the case.

25. [431]

    Whether the two matters referred to by her Honour, namely, the appellant's occupation as a journalist and the circumstances in which he made the book at short notice at the behest of "the brothers", could be said to be objectively inconsistent with an intention to facilitate assistance in a terrorist act would not properly address the question as to whether the appellant has discharged the evidential burden.

26. [432]

    Those two matters, in conjunction with other parts of the evidence relied upon, had to be considered by the trial judge, but not for determining consistency or inconsistency with the ultimate question as to whether or not a particular intention was held or as to the ultimate probative weight of it in terms of s.101.5(5). The issue was whether or not the evidence to the effect that the appellant was a career journalist who had an established history of researching matters associated with the Islamic religion and any other of the matters set out above was sufficient to "suggest" as a reasonable possibility that the appellant's intention in making the book was not that asserted by the Crown.

27. [433]

    With all due respect to the trial judge's reference to "the paradox inherent in the accused's application ..." (even assuming such paradox existed) that was not a matter which should have been taken into account in the determination. Whether there was evidence that "suggests a reasonable possibility" in the sense that the evidence puts forward an idea or a proposition for consideration is a matter that demands attention to the evidence in order to determine whether any of the evidence could, as a reasonable possibility, go to supporting the relevant excuse, exemption or justification.

28. [434]

    In that determination, it does not, with respect, bear upon the performance of that task to consider whether or not the effect of the submission in support of the application is to "... put the Crown to proof on a fault element that does not form part of the offence" (AB 586).

29. [435]

    Nor, in my opinion, does it assist in determining, as a matter of law, whether the evidential burden has been satisfied, that the claimed intention of the accused in making the book "corresponds with the Crown case". In that respect, the trial judge stated that there was a difficulty with the statement as to the accused's intention in that it corresponded with the Crown case. Whether or not an evidentiary aspect corresponds with the Crown case or not, is not, in my opinion, a relevant matter to a judgment being made as to whether or not the evidence does or does not suggest a reasonable possibility that a matter exists or does not exist.

30. [436]

    Whether or not the accused's status as a journalist and researcher was or was not of the same character as the occupation of a terrorist expert in the example referred to in the judgment is, with respect, neither an important consideration nor a decisive one.

31. [437]

    The trial judge's observation that the appellant's occupation as a journalist and that he made the book at short notice at the behest of the "brothers" as being facts that are not objectively inconsistent with an intention to facilitate assistance in a terrorist act again, with respect, does not engage the issue to be determined, merely whether the evidence suggested a reasonable possibility that the appellant's intention in making the book was other than for which the Crown contended.

32. [438]

    In determining whether the evidential onus had been satisfied, it is necessary to take into consideration, firstly, the facts that were established in the evidence relied upon and, secondly, the approach to be taken in determining whether the evidential onus was satisfied.

33. [439]

    As to the evidence:- (1) The evidence related to certain matters that were not in dispute and hence no issue of reliability of the evidence arises. These included the fact that the appellant was a career journalist, a researcher and a publisher. (2) That the appellant had acquired and built up a library which was used as his research facility. (3) The applicant had a strong interest in the Islamic religion. (4) The applicant had written and published articles on a range of issues, in particular, on benign Islamic issues.

34. [440]

    The evidence in relation to these matters was not irrelevant. They were relevant to the circumstances of the making of the book as an issue relevant to the appellant's state of mind. In other words, it was evidence which was cogent and reliable evidence as to those matters.

35. [441]

    The case argued for the appellant in terms of s.101.5(5) was that, upon those facts, there was at least an arguable basis for a contention that there was evidence which at least suggested (in the sense of placing or bringing forward a proposition for consideration) that in making the document the appellant had not intended to facilitate assistance in a terrorist act. As a matter of law, it could not, in my opinion, be said that the evidence to which I have referred above was incapable of suggesting, as a reasonable possibility, that the appellant acted as a professional journalist with an intention that was not one to facilitate assistance in a terrorist act as that expression is to be understood under the Code.

36. [442]

    In circumstances in which I consider it has been established that the trial judge erred in relation to the reasoning process adopted in the judgment of 1 September 2008, I have concluded that Ground 4 has been made out.

Conclusions

1. [443]

   The errors in relation to Ground 1 - failure to discharge the jury - meant that the appellant did not receive a fair trial according to law. The failure to discharge the jury resulted in a substantial injustice. It follows that on that ground the conviction must be set aside.

2. [444]

   The errors in relation to each of Grounds 3 and 4 operated in a fundamental way. Those errors gave rise to a miscarriage of the proceedings.

3. [445]

   In relation to Ground 3, concerning the provisions of s.101.5(1)(b), the jury were not properly directed in relation to a central element of the offence. Such error itself vitiated the jury's verdict. That ground, accordingly, constitutes an additional basis upon which the conviction should be set aside. The proviso to s.6(1) of the Criminal Appeal Act 1912 cannot apply to an error which necessarily leads to a substantial miscarriage of justice: cf Regina v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558.

4. [446]

   As to Ground 4, the error concerning s.101.5(5) fundamentally undermined the appellant's right to a fair trial. It is a separate, but additional basis for setting aside the conviction. Similarly, the proviso to s.6(1) of the Criminal Appeal Act cannot apply to a substantial error which had the effect of depriving the appellant of an affirmative basis for a defence under s.101.5(5).

5. [447]

   The setting aside of the conviction on Count 1 on Ground 3 would ordinarily indicate that there should be an order for a new trial on that count. The grounds of appeal do not assert that, in the event that the conviction is quashed on this ground, the Court should direct that a verdict of acquittal be entered. Additionally, there was no submission made on that question.

6. [448]

   For the purpose of determining what order in terms of the preceding paragraph should be made, consideration needs to be given to the question as to whether the evidence before the jury could have established, and similarly on a retrial could establish, beyond reasonable doubt that the book was "connected with" assistance in a terrorist act and that the appellant knew of that connection.

7. [449]

   The question as to what order should be made on the basis of an order quashing the conviction on the basis of Ground 3 is one that raises issues as to the evidence at the trial relevant to the provisions of s.101.5(1)(b) and (c). In the circumstances in which there has not been any attention given to the matter to which I refer above, I am of the opinion that the parties should be invited to make such submissions as they care to make on that matter.

8. [450]

   Accordingly, the orders I propose are:- (1) Appeal allowed. (2) The appellant's conviction be set aside. (3) An order for directions in the following terms:- (a) Written submissions on behalf of the appellant on the question as to whether the appropriate order of the Court is an order of acquittal or an order that there be a new trial on Count 1 are to be lodged with the Registrar of the Court within seven days of the date of judgment. (b) Written submissions on behalf of the Crown on the matter referred to in (a) are to be lodged with the Registrar of the Court within seven days of the receipt of written submissions on behalf of the appellant in accordance with (a) above. (4) Liberty to either party to apply for further directions.

9. [451]

   McCALLUM J: I have had the benefit of reading in draft the judgments of both the Chief Judge at Common Law and Hall J. As to grounds 1 and 2, I respectfully agree with the Chief Judge, for the reasons given by his Honour. I also agree with the Chief Judge that the third ground of appeal should be dismissed. In the case of that ground, however, my reasons differ slightly from those given by his Honour. My reasons are stated below.

10. [452]

    As to ground 4, I respectfully agree with Hall J that the learned trial judge erred in concluding that the appellant had failed to satisfy the evidential burden borne by him in relation to section 101.5(5) of the Code. In my view, the question whether the appellant's conduct fell within the exception under 101.5(5) of the Code should have been left to the jury. In respect of that ground, I am of the same view as Hall J as to the application of the proviso to s 6(1) of the Criminal Appeal Act. I am not able to conclude that no substantial miscarriage of justice has actually occurred. Accordingly, the proviso does not apply.

11. [453]

    In light of the nature of issue raised by ground 4, being a challenge to the determination of a question of law as to the satisfaction of an evidential burden, I consider it appropriate to state my own reasons for the conclusion I have reached. Those reasons are also stated below.

Ground 3: alleged misdirection with respect to the words "connected with"

1. [454]

   The detailed analysis in the judgments of the Chief Judge and Hall J permits me to state my reasons briefly. The starting point is to recall that offences under the Criminal Code consist of physical elements and fault elements: see section 3.1(1) of the Code. As explained by Whealy J (as his Honour then was) in R v Lodhi [2006] NSWSC 584 at [79] to [86], the offence under section 101.5 of the Code has as its first physical element the making of the document. No fault element is specified in respect of that physical element. It follows, in accordance with section 5.1 of the Code, that the fault element in relation to the physical element of making the document is intention to make the document.

2. [455]

   The requirement that the document be connected with (in the present case) assistance in a terrorist act is the second physical element of the offence. Specifically, it is a circumstance in which conduct (the making of the document) occurs: see section 4.1 of the Code. The fault element specified in respect of that second physical element is the requirement in section 101.5(1)(c) that the person know of the connection described in paragraph 101.5(1)(b). Nothing in the judgments of the Court of Criminal Appeal allowing an appeal from the decision of Whealy J in Lodhi derogates from his Honour's analysis of those matters: see Lodhi v R [2006] NSWCCA 121 at [80] to [91] per Spigelman CJ; McClellan CJ at CL relevantly agreeing at [96]; Sully J agreeing at [111].

3. [456]

   Importantly, the content of the elements of the offence is informed by the definition of "terrorist act" in section 100.1 of the Code. The term "terrorist act" means an act done with certain specified intentions. In the appeal in Lodhi, the Chief Justice explained that the intentions there specified are not fault elements of the offence: Rather they identify the character of the action that falls within (2) of the definition. This is a physical element, being a "circumstance" within s4.1(1)(c) of the Criminal Code.

4. [457]

   In Benbrika, the Crown submitted in respect of an offence under section 101.4 of the Code that the determination as to whether the thing possessed was "connected with preparation for ... a terrorist act" was an objective question. The court rejected that submission, stating (at [314]): We do not see how an inanimate object can have an 'objective' connection with an act of terrorism. The proposition could only be valid if the object had some property or characteristic which (independent of any person's subjective intent with respect to the object) connected it with a terrorist act. However, even the quintessential item of terrorist equipment, a bomb, has no such necessary 'objective' connection with a terrorist act. A bomb may be used for one of a number of possible purposes - or for none at all. Whether a bomb possessed by a particular accused is connected with (preparation for) a terrorist act must, necessarily, depend upon the circumstances of his or her possession, and on the surrounding circumstances.

5. [458]

   The court held that "as a matter of ordinary language", a thing cannot be said to be connected with preparation for a terrorist act unless the following requirements are satisfied (at [315]): (a) a terrorist act is proposed or contemplated (whether or not a decision has been made as to what kind of terrorist act it will be); (b) some activity in preparation for that terrorist act is under way, or is proposed, or contemplated (whether or not a decision has been made as to what kind of activity that will be) ('preparatory activity'); and (c) the thing is being used, or is intended to be used, in aid of that preparatory activity.

6. [459]

   By way of fuller explanation as to why such requirements should be read into the language of section 101.4(1)(b) of the Code, the court (at [318]) discussed the example of possession of an ingredient for a bomb or a bomb-making manual and expressed the view that "the fact that the item in question was capable of being used, or was suitable for use, in connection with a terrorist act could not be enough". A footnote contrasted the position under section 58(1) of the Terrorism Act 2006 (UK). The court concluded that "the connection" required under section 101.4(1)(b) is not a property of the thing itself but rather a function of the intention or purpose which must be shown to have existed (at the time of possession) with respect to both the terrorist act and the use of the thing.

7. [460]

   I would respectfully disagree with that conclusion. In my view, the analysis in Benbrika overlooks the distinction specified in the Criminal Code between the physical elements and the fault elements of an offence.

8. [461]

   I acknowledge that, in some instances, the only connection of a thing with preparation for a terrorist act would be the fact that some person (not necessarily the person in possession of the thing) had the purpose of using it in aid of a terrorist act. The case of possession of a cheque book discussed in Benbrika is an obvious example. In my view, however, it inverts the logic of that illustration to hold that the "connection" which the section requires is not a property of the thing itself but rather a function of the intended use of the thing at the time of possession.

9. [462]

   Against that analysis, I would respectfully disagree with Hall J that a document cannot be said to satisfy the requirement that it be "connected with...assistance in a terrorist act" within the meaning of section 101.5 of the Code unless requirements such as those identified in Benbrika are satisfied. His Honour has concluded that, to satisfy such requirements in the present case, there would need to be evidence in the Crown case as to the following: (1) That a terrorist act was, at the time of the making of the book, in contemplation or that a decision had been made by a person to undertake a terrorist act or that there was a proposal for a terrorist act or that such an act was in its preparatory stages. (2) That the appellant knew of facts concerning the fact that a terrorist act was in contemplation or planned or that a decision to commit such an act had been made or that a proposal existed to that end or there was or would be preparation in relation to a terrorist act.

10. [463]

    In my opinion, to read such requirements into section 101.5(1)(b) of the Code erroneously imports a fault element into a physical element of the offence. The fault element in respect of the requirement that the making of the document be connected with assistance in a terrorist act is the requirement of section 101.5(1)(c) that the person know of the connection.

11. [464]

    As I have already acknowledged, in the case of an anodyne object such as a cheque book, neither the objective connection, nor knowledge of it, will be established unless some person planned or intended its use in a relevant way. That example serves to illustrate that, in some cases, proof of the physical element of "connection with" assistance in a terrorist act will require proof of a particular terrorist act in the contemplation of some person. In my view, however, there is no warrant for generalising a gloss on the words of the section from that particular example.

12. [465]

    As I would see it, to the extent that the proper construction of the statute should include requirements of the kind sought to be read into section 101.5(1)(b) according to the analysis of Hall J (or of the kind sought to be read into section 101.4(1)(b) according to the analysis in Benbrika), those requirements are contained within the definition of "terrorist act". There can be no offence under section 101.5 unless the circumstance of connection with an action of that character (including the requirement that the action or threat of action be done with the specified intentions) is established. In the present case, the trial judge gave careful and helpful directions to the jury on that issue. Her Honour's directions were faithful to the relevant provisions of the statute and, in my respectful opinion, entirely correct (see summing up pages 50 to 65).

13. [466]

    I am mindful of the principle relied upon on behalf of the appellant that an intermediate appellate court should not depart from the decision of another Australian intermediate appellate court as to the construction of uniform national legislation unless convinced that the interpretation was plainly wrong. The relevant authorities are collected in the judgment of Hall J. Mindful of that principle, I would respectfully hold that the principles stated at [315] of Benbrika should not be followed.

14. [467]

    In my view, the directions given to the jury by the trial judge in the present case were appropriate, for the reasons stated by the Chief Judge.

Ground 4: alleged error with respect to the application of section 101.5(5) of the Code

1. [468]

   The defendant bore an evidential burden in relation to "the matter in subsection (5)". The matter identified in that subsection is expressed as a negative proposition: the exception (to the offences created by subsections 101.5(1) and (2)) is where the document was not intended to facilitate one of the three relevant objects (preparation for a terrorist act, the engagement of a person in a terrorist act or assistance in a terrorist act). The Crown case against the appellant was put on the basis of the third of those objects, assistance in a terrorist act. As observed by the trial judge during the argument before her Honour, the only sensible construction of that requirement in the context of the present case is that the document was not so intended by the appellant.

2. [469]

   The question whether the evidential burden had been discharged was a question of law: section 13.3 (5) of the Code. The question was, did the evidence pointed to by the appellant suggest a reasonable possibility that the document was not intended (by the appellant) to facilitate assistance in a terrorist act? Or, conversely, was it the case that the only reasonable possibility suggested by that evidence was that the document was intended (by the appellant) to facilitate assistance in a terrorist act?

3. [470]

   Her Honour approached the determination of the application in two steps. First, leaving aside the evidence relied upon by the appellant, her Honour dealt with a matter to which she referred as a question of the construction of section 101.5 (see page 5.3 of the judgment).

4. [471]

   Her Honour was evidently troubled by the fact that the evidence pointed to by the appellant to discharge the evidential burden was the same evidence as that relied upon by the Crown to prove the elements of the offence. Her Honour noted (at page 5.8 of the judgment) that it is clear that a fault element is not a "matter", citing section 13.1(1) and (2). It may be accepted that those provisions draw a distinction between the elements of an offence (dealt with in subsection 13.1(1)) and any "matter" in relation to which the defendant has discharged an evidential burden of proof imposed on him (dealt with in subsection 13.1(2)).

5. [472]

   It does not follow, however, that a "matter" in relation to which there is an evidential burden on a defendant cannot be a state of mind of the kind identified in the definition of "fault element" in section 5 of the Code. Nor does it follow that a defendant may not point to the same body of evidence to discharge an evidential burden of proof in relation to a "matter" as that relied upon by the Crown to prove a fault element of the offence. The only question with which the Court need concern itself is whether the evidence relied upon suggests a reasonable possibility that the relevant matter exists (or does not exist, as the case may be).

6. [473]

   The judge noted, apparently in reference to the question of the construction of section 101.5, that the effect of acceding to the application would have been to put the Crown to proof of a matter that amounts in substance to a fault element but which is not an element of the offence. Nonetheless, that is the clear effect of the section, in my view. So much is illustrated in the example given by the Crown in argument and referred to in her Honour's judgment of a terrorism consultant or advisor to government who collects material advocating the commission of terrorist acts in the course of his or her employment. Once it is accepted that such a person might readily point to evidence such as to bring himself within the exception in section 101.5(5) of the Code, it may be seen that the difference with the present case is one of degree, not of the proper construction of the section.

7. [474]

   Accordingly, with great respect to her Honour, I do not agree that the fact that the evidence pointed to by the appellant was the very evidence relied upon by the Crown to prove the elements of the offence was in itself an impediment to the engagement of the exception in section 101.5(5) of the Code to the offences created by sections 101.5(1) and (2) of the Code.

8. [475]

   Separately, her Honour determined that, if her construction of the section was wrong, the appellant had not discharged the evidential burden borne by him.

9. [476]

   Her Honour observed that the circumstances and material relied upon by the appellant were not "objectively inconsistent with an intention to facilitate assistance in a terrorist act". Those remarks appear to have been construed by the appellant as revealing that her Honour misapprehended the question to be determined so as, in effect, to impose a legal burden of proof on the appellant, and not simply an evidential burden. The judge's remarks must, however, be read fairly and in the context of the exchanges during the hearing of the application. Her Honour expressly adverted in the judgment (at page 7.9) to the proposition that "the evidence taken at its highest need only be suggestive of the possibility of the absence of intention." I am not persuaded that her Honour misapprehended the evidential burden as a legal burden of proof.

10. [477]

    However, a close consideration of the evidence pointed to on behalf of the appellant at the trial has persuaded me that her Honour's determination (that the evidential burden had not been discharged) must have entailed the application of a higher test than that imposed by an evidential burden under the Code.

11. [478]

    I agree, as submitted on behalf of the appellant (citing the authors of the practice Federal Offences), that the critical concept that differentiates an evidential burden from a legal burden is the word "suggests". The view is there expressed that, having regard to the ordinary meaning of the word "suggests", a defendant need only adduce or point to evidence that brings the relevant matter to mind or places it before the court for consideration.

12. [479]

    Further, as noted in the authorities relied upon by the appellant, where the relevant "matter" is a negative proposition, slender evidence might satisfy that requirement: R v Brauer (1989) 45 A Crim R 109 per Thomas J at 113.5; cited with approval in Jeffrey v DPP (Cth) (1995) 79 A Crim R 514 at 518.4 per Cole JA; Handley JA agreeing at 515. It may be acknowledged that the "robust examples" of that proposition given by Thomas J in Brauer are very different from the circumstances of the present case, where the matter in question is a state of mind the establishment of which will rest on inference. However, as acknowledged in Brauer at 114.2, a circumstantial case with a sufficient basis for an inference is all that is needed to surmount an evidential burden.

13. [480]

    It is important, of course, not to overlook the requirement that what is brought to mind or placed before the court must amount to a reasonable possibility. A possibility that could be dismissed as being fanciful or beyond reason would not satisfy the evidential burden.

14. [481]

    The material pointed to by the appellant is summarised in the judgment of Hall J. My own examination of all of the material in question has satisfied me that the evidence did suggest a reasonable possibility that the book was not intended by the appellant to facilitate assistance in a terrorist act.

15. [482]

    It may readily be acknowledged that the chapter of the book headed "Reasons for Assassination" is deeply troubling. Plainly, it contains much in the nature of practical instruction in addition to religious rulings. It is difficult to know what inference should be drawn as to what was intended by its inclusion in the book. What are the possibilities as to why a person would republish a text openly seeking to motivate Mujahideen to revive the ritual of assassination? What is to be inferred from the introduction to the book written by the appellant, which concludes with a prayer that it would be "of benefit to everyone working to support this religion"?

16. [483]

    In any event, it is neither necessary nor desirable for present purposes to speculate as to precisely what the book was intended to achieve so far as the appellant was concerned. The critical question is whether the only reasonable possibility is that the book was intended to facilitate assistance in a terrorist act. If the evidence pointed to by the appellant suggested a reasonable possibility that the book was not intended by him to achieve that object, the matter should have been left to the jury.

17. [484]

    The hypothesis sought to be left 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." The appellant pointed to evidence in the Crown case to support each of the factual propositions underlying that contention. It included evidence that the religious rulings in the book were properly sourced. There was evidence capable of establishing that the appellant was a journalist by occupation; that he had been involved in the publication of a magazine concerned with discussion of religious issues and that he held an extensive personal library with an emphasis on religious rulings.

18. [485]

    There was ample evidence from which a jury could conclude that the appellant'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 appellant for that particular purpose.

19. [486]

    A point made by counsel when the matter was argued before the trial judge was that, for the purposes of section 101.5(1), "the mere urging of a terrorist act is not sufficient". Whilst such conduct might be criminalised under section 101.1 of the Code, it would not be captured by section 101.5 (see T664 lines 42-49). That argument alone, in my view, pointed to a reasonable possibility that the book was intended for some purpose different from that identified in section 101.5(5) (albeit one that sounded in count 2 on the indictment).

20. [487]

    In my view, applying the definition of evidential burden in section 13.3 of the Code as I construe it, the evidence of those matters suggested, in the sense of bringing to mind or placing before the court, a reasonable possibility that the book was not intended to facilitate assistance in a terrorist act. I am accordingly satisfied that her Honour erred in concluding that the appellant had failed to discharge the evidential burden. The orders I propose are that the appeal be allowed, that the conviction be quashed and that there be a new trial.

21. [488]

    ADDENDUM: Since preparing these reasons, my attention has been drawn to the decision of the High Court in Braysich v The Queen [2011] HCA 14. In that case, in the context of a prosecution under the Corporations Law of Western Australia, as incorporated into the Corporations Act 2001 (Cth), the majority of the court said (at [36] per French CJ, Crennan and Kiefel JJ, footnotes omitted): If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be: 1. In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived? 2. In a case in which both the legal burden and the evidential burden rest upon the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?

22. [489]

    The court was not there concerned with the definition of evidential burden contained in section 13.3 of the Code. It is doubtful, in my view, whether there is any difference in substance between the test posed by that definition and the test formulated in Braysich at [36](1), but for present purposes it is not necessary for me to resolve that question. It is enough to say that the application of the test in Braysich at [36](1) would not have lead me to any different conclusion in the present case.