Minister for Home Affairs of the Commonwealth v Zentai [2012] HCA 28 (15 August 2012)

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.

Words and phrases – “connected with”, “evidential burden”.

Heydon J dissenting
94. These arguments must be rejected. It does not follow from the fact that a decision-maker has not provided reasons that the decision-maker’s decision is unreasoned. Nor does it follow that it is unexaminable. The publication of reasons certainly helps those who wish to challenge administrative decisions. But it is not essential to a challenge. A decision-maker can be compelled to produce documents revealing the reasons for a given decision, whether by a subpoena duces tecum or a notice to produce. That decision-maker can be compelled by interrogatories to reveal those reasons in writing, and by a subpoena ad testificandum to reveal those reasons in the witness box. It is true that judicial review proceedings cannot be commenced on an entirely speculative basis. But non-speculative inferences can be drawn from the nature of the decision and from the dealings between the decision-maker and the affected person before the decision was made. It is also true that it would be difficult for a person challenging the decision to frame non-leading questions capable of eliciting answers that would reveal the decision-maker’s reasons. But the person challenging the decision can question the decision-maker as though on cross-examination where the decision-maker is not making a genuine attempt to give evidence on a matter of which that decision-maker may reasonably be supposed to have knowledge: Evidence Act 1995 (Cth), s 38(1)(b). Reluctance on the decision-maker’s part to give reasons would support an inference that there were no reasons, or no convincing reasons. It would be likely to stimulate close curial scrutiny. That is particularly so of adherence to a code of omerta in the witness box[118].