Case Brief: R v S [2020] NZHC 1710

September 13, 2021

In May 2021, the Government introduced the Counter Terrorism Legislation Bill. This omnibus Bill amends three terrorism related Acts with a purpose of better preventing and responding to terrorism. The New Lynn Mall terrorist attack by Ahamed Samsudeen in September 2021 increased debate on whether this Bill should be passed with urgency and whether further amendment is required.

In this case, Police attempted to charge Samsudeen for the preparation of a terrorist act, but the Court held current anti-terrorism laws have no offence for planning and preparation.  Samsudeen is referred to as “S” in this case due to a name suppression order made by the Court. This has now been lifted.

Summary

S was arrested and charged for possessing weapons and harboring publications sympathetic to Islamic State. The Crown applied to add charges against S under the Suppression of Terrorism Act 2006 (the Act) for planning to carry out a terrorist act. The Court ruled the provision the Police relied on did not provide an offence for preparing for a terrorist act and dismissed the charges.

Background

S came to New Zealand from Sri Lanka in 2011. In 2016, Police gave him a warning against posting violent and Islamic State sympathetic material online, which S ignored.S was arrested in 2017 at Auckland Airport before boarding a one-way international flight. Police found a large knife and Islamic fundamentalist material in his home. S was sentenced to supervision in 2018.

S was again arrested in 2018 for purchasing the same model of knife. In another search of his home Police found similar fundamentalist and ISIS sympatric material. He was charged for possession offensive weapons and offensive publications.

The Case

The Crown applied to add an offence under s 6A of the Act to the charges against S.

Section 6Amakes it an offence to engage in a terrorist act. Defined under s5, a terrorist act is an act intended to induce terror in a population or unduly compel a government to act in certain way, and carried out to advance promote an ideological or religious cause. It must have one of a list of outcomes in s5(3) such as the death of a person or serious bodily injury.

Under section 25(1)(a) of the Act, a terrorist act is “carried out” if “planning or other preparations to carry out the act” occurs. This is regardless of whether the act is actually carried out or not.

The Crown argued S’s purchase of a hunting knife was planning and preparation of a terrorist act by virtue of s 25(1)(a) and this was sufficient for an offence under s 6A. Defence Counsel opposed adding the charge under s 6A, as s 25(1)(a)did not make “planning and preparation” part of s 6A’s offence.  

The Court found in favour of S.

Downs J ruled  s 25(1)(a) did not affect the offence in s 6A for five reasons. Firstly, despite the generality of its language, section 25 is under a heading of sections related to powers given to the Prime Minister to designate groups as terrorist entities. Therefore, s 25only applied to activity carried out by designated groups. In support of this, His Honour looked at Parliamentary debates affirming how s 25 could be used to freeze the assets of designated terrorist groups before they carried out an act.

Secondly, allowing s 25 to affect s 6A’s offence would invite “conjecture”. His Honour asked: what does a “knife attack” involve? A “knife attack” must be assessed with surrounding context in order to ascertain whether the Act applies – whether it was going to be committed to advance a religious or ideological cause to induce terror in a civilian population not established on the facts.

Thirdly, allowing s 25 to affect the offence in s 6A would crowd out other provisions. For example, s 13A makes it an offence to harbor a terrorist where a person knows a terrorist “intends to carry out a terrorist act”. His Honour said that it would be unclear why s 13 would need to criminalise assistance before the commission of an act if s 25 had the affect the Crown argued.

Fourthly, interpretation of criminal provisions has softened in the past 25 years. To adopt the Crown’s interpretation of s 25 would be “radical”. A purposive approach taking into account the legislative history of the Act does not support the Crown’s radical interpretation.

Fifthly, the 2007 amendment Act, which inserted s 6A, created new offences. Nothing in the amendment Act’s Parliamentary debates suggested the amendments were intended to modify pre-existing provisions. For that reason, the offence added by s 6A in 2007 was not meant to make s 25 part of the pre-existing definition of terrorist act.

Result

His Honour dismissed the Crown’s application to add the charges after ruling an offence for planning and preparation of a terrorist act did not exist under the Act. He acknowledged  terrorism is a great evil and the absence of a clear offence for preparation was an “Achilles heel” in New Zealand law. But this was an issue for Parliament to solve, and the Court could not create an offence.

For further information on this case, please contact Director Brigitte Morten.

Give the team a call

We’re likely to know who makes the decisions, why, and how politics or the law can compel you or trip you up.
If it takes less than 20 minutes we rarely charge.
There are not many specialist public lawyers. Even fewer have commercial experience. We start and end with commercial interests at heart.

Contact Us

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Contact information
Level 5
Wakefield House
90 The Terrace
Wellington 6011
PO Box 10388
The Terrace
Wellington 6143
Main: +64 4 815 8050
Fax: +64 4 815 8039
Email: info@franksogilvie.co.nz