CROWN APPEALS RESPONDENT’S QUASHED CONVICTION OF AN OFFENCE OF INTENTIONALLY BEING A MEMBER OF A TERRORIST ORGANISATION
The Queen v Abdirahman-Khalif [2020] HCA 36 (14 October 2020)
This is an appeal against a judgment and orders of the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal quashing the respondent's conviction of an offence of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code on the ground that there was a miscarriage of justice.
Facts:
Respondent was convicted of the offense of intentionally being a member of a terrorist organisation contrary to the Criminal Code. The appellant files this appeal against a judgment and orders of the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal quashing the respondent's conviction of an offence of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code on the ground that the trial judge misdirected the jury as to the physical and mental elements of the offence which would result to a miscarriage of justice.
The prosecution case was put rather on the basis that the respondent fell within para (b) of the extended definition of "member" in s 102.1(1) of the Code because the respondent was "a person who had taken steps to become a member of the organisation". The prosecution sought to rely for the taking of the requisite "steps" on the respondent having engaged in six categories of conduct, ranging from "attempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with the terrorist organisation, Islamic State" to "self-identification as 'muwahideen', a term used as an identifier by Islamic State members".
Issue: Did the court Court erred in holding that the evidence that the Crown adduced at trial was incapable of sustaining the conviction because it did not establish how members of the organisation were recruited or selected, or the process by which members were inducted and finally accepted into the organisation?
Law:
- S102.1(1) lf the Criminal Code defines “member of an organisation” as including:
- A person who has taken steps to become a member of the organisation
- S158 pp(1) The Full Court, on any such appeal against conviction, will only allow the appeal if it thinks that:
(c) on any ground there was a miscarriage of justice
Analysis:
In the court's opinion, a person cannot be said to be a person who has intentionally "taken steps to become a member of the organization" within para (b) of the extended definition of "member" in s 102.1(1) of the Code unless two conditions can be shown to have been met. The first is that the person has engaged in conduct intending that conduct to be a step in causing a state of affairs to come into existence. The second is that, were that state of affairs to come into existence, the person would be identifiable by reference to that state of affairs as one of the body of persons of whom the particular "organisation" in question consists.
Adequately to identify the factual issues to be determined in order for the jury to be satisfied beyond reasonable doubt that the respondent had intentionally taken steps to become a member of the organisation identified in the Regulation as "Islamic State" therefore required more than that the trial judge instruct the jury that it needed to be satisfied beyond reasonable doubt that the respondent had attempted to travel to Turkey intending to "engage" with "Islamic State". The trial judge needed to go on to instruct the jury that it needed to consider the nature of the intended engagement with "Islamic State" and to be satisfied beyond reasonable doubt that engagement of that nature, were it to occur, would result in the respondent becoming objectively identifiable as one of the body of persons of whom the organisation identified in the Regulation and described in the Explanatory Statement consists.
The court’s concern, however is not that the evidence did not leave it open to the jury to convict but that the directions given to the jury did not adequately identify the issues of fact of which the jury needed to be satisfied beyond reasonable doubt on the evidence in order to convict. The court’s opinion is that the directions were inadequate in consequence of which there occurred a miscarriage of justice in that the respondent was deprived of a chance of acquittal fairly open to her.
Conclusion: The ground of appeal in s158(1)(c) of the Criminal Procedure Act 1921 being established, the orders of the Full Court allowing the appeal against conviction and quashing the conviction must stand.
