The Queen v Khazaal [2012] HCA 26

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HEYDON, CRENNAN AND BELL JJ

THE QUEEN APPELLANT

AND

BELAL SAADALLAH KHAZAAL RESPONDENT

The Queen v Khazaal [2012] HCA 26 10 August 2012 S344/2011

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 9 June 2011 and in place thereof dismiss the appeal against conviction on count 1 of the indictment.

3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for consideration and determination of the appeal against sentence in respect of the conviction on count 1 of the indictment.

On appeal from the Supreme Court of New South Wales

Representation

P W Neil SC with S G Callan for the appellant (instructed by Commonwealth Director of Public Prosecutions)

P D Lange with C C Waterstreet for the respondent (instructed by Lawyers Corp Pty Limited)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Khazaal

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Jury misdirection – Respondent convicted of making document "connected with ... assistance in a terrorist act", knowing of that connection, contrary to s 101.5(1) of Criminal Code (Cth) ("Code") – Trial judge directed jury that words "connected with ... assistance in a terrorist act" had no special or technical meaning – Whether trial judge misdirected jury.

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Exception to liability – Evidential burden – Section 101.5(5) of Code created exception to liability under s 101.5(1) if making of document "not intended to facilitate ... assistance in a terrorist act" – Respondent bore evidential burden under s 101.5(5), as defined in s 13.3(6) – Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in a terrorist act.