Date of Judgment: 14 October 2020
Court: High Court of Australia
Partner Agency: Joint Counter-Terrorism Team / Australian Federal Police (South Australia)
A 25 year old Adelaide woman has had her conviction on a terrorism offence reinstated following the Commonwealth Director of Public Prosecution’s successful High Court appeal against orders directing her acquittal.
In September 2018, Zainab Abdirahman-Khalif was found guilty, following her trial in the Supreme Court of South Australia, of having been a member of the terrorist organisation Islamic State. Abdirahman-Khalif later appealed against her conviction to the Full Court of the Supreme Court of South Australia, which (by majority) set aside her conviction and entered a verdict of acquittal. The Commonwealth Director appealed against the judgment and orders of the Full Court to the High Court of Australia. By majority, the High Court of Australia upheld the Director’s appeal, set aside the intervention of the Full Court and re-instated Abdirahman-Khalif’s conviction.
The primary issue on the High Court appeal was whether the evidence led by the prosecution at trial was sufficient to establish that Abdirahman-Khalif had intentionally taken steps to become a member of Islamic State. The High Court found that the concept of membership of a terrorist organisation was not amenable to an exhaustive or rigid definition, but was a matter which falls to a jury, on a trial for this offence, to determine according to the evidence before the Court.
Abdirahman-Khalif was convicted on the basis that she was a member of Islamic State by virtue of her having taken steps to become a member of that organisation. Pursuant to the Criminal Code (Cth), a member of a terrorist organisation includes a person who has taken steps to become a member. At trial, the prosecution established that, between 14 July 2016 and 23 May 2017, Abdirahman-Khalif had engaged in a number of steps, intentionally taken to become a member of the organisation, namely:
- Attempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with Islamic State.
- Possessing and accessing material promoting Islamic State and violent jihad.
- Communicating with members of Islamic State.
- Pledging and oath of allegiance (bay’ah) to the then leader of Islamic State, Abu-Bakr Al Baghdadi.
- Expressing support for Islamic State and violent jihad including by reciting extremist Nasheeds (Islamic chants).
- Identifying herself as a ‘muwahideen’, a term used as an identifier by Islamic State members.
During the period of her offending, Abdirahman-Khalif had used encrypted applications (Telegram and WhatsApp) to access and download a substantial amount of Islamic State propaganda and extremist material. She had also used those applications to communicate with a group of women in Kenya, who later went on to commit a multi-mode terrorist attack in the name of Islamic State.
Abdirahman-Khalif was found to have accessed a series of blog posts containing advice for women intending to travel to join the Caliphate (Islamic State). On 13 July 2016, consistent with those instructions and unbeknownst to her family, she had used her savings to purchase a one-way ticket for travel to Turkey online for travel the next day. She attended Adelaide Airport on 14 July 2016, with only a small amount of clothing (consistent with the advice in the blog posts) and insufficient funds to support herself upon arrival, with the intention of travelling to Turkey to engage with Islamic State.
Significantly, on 2 October 2016, Abdirahman-Khalif pledged her allegiance to the leader of Islamic State, Abu Bakr Al-Baghdadi.
The sentencing judge (Justice Peek of the Supreme Court of South Australia) made clear that Abdirahman-Khalif had not been convicted on the basis of any personal involvement in, or intention to be involved in, violent acts of terrorism. However, His Honour observed that “terrorism legislation is designed to discourage people from supporting organisations directly or indirectly engaged in the preparation or planning of terrorist activity” and that, in sentencing an offender for terrorism offences, prominent considerations must include protection of the community, punishment of the offender, denunciation of the offence and deterrence.
In sentencing Abdirahman-Khalif, His Honour concluded that she had positively held extremist jihadist and Islamic State views and that he was not satisfied that she no longer held those extremist views. On 16 April 2019, Justice Peek sentenced Abdirahman-Khalif to three years’ imprisonment with a non-parole period of two years and three months.
Abdirahman-Khalif successfully appealed against her conviction. On 31 October 2019, the Full Court of the Supreme Court of South Australia (by majority) set aside her conviction and substituted a verdict of acquittal on the basis that the jury verdict was unreasonable and could not be supported having regard to the evidence.
On 14 October 2020, the High Court of Australia (Bell, Keane, Nettle, Gordon JJ; Gageler J dissenting) upheld the Commonwealth Director’s appeal against the Full Court’s judgment.
The majority judgment confirmed that it was for the jury to discern the nature of the organisation and, in effect, from the nature of its membership as it emerged from the evidence, to decide whether the proven conduct were steps intentionally taken to become a member of Islamic State.
The majority reiterated that the nature and purpose of the terrorism provisions in the Criminal Code (Cth) must be taken to extend to groups devoid of structural hierarchy that function in secrecy, with little formality, without a written constitution or set of rules, and without a contractual relationship between members.
The Court held that the question for the jury was not whether the respondent had taken all, or even any, of the steps necessary to become a member, but whether, by taking the steps that she was shown to have taken, she had intentionally taken steps to become a member. The majority concluded that given the evidence led at trial, it could not be reasonably doubted that it was open to the jury conclude that the respondent had intentionally taken steps to become a member of Islamic State.
Following the High Court’s judgment, Abdirahman-Khalif was taken back into custody to serve the balance of the term of imprisonment imposed by Justice Peek on 16 April 2019.