At Chidiac & Associates, we provide experienced criminal defence representation to clients facing Commonwealth terrorism-related charges throughout Sydney and New South Wales. We carefully examine the Prosecution evidence and the circumstances in which the alleged material or other thing came into the accused person's possession.

What is Possession of Things Connected with Terrorist Acts?

The offence is contained in section 101.4 of the Criminal Code Act 1995 (Cth).

Section 101.4 creates two offences concerning possession of a thing connected with:

• preparation for a terrorist act;
• the engagement of a person in a terrorist act; or
• assistance in a terrorist act.

The Prosecution does not need to establish that a terrorist act actually occurred. The legislation also provides that the thing does not need to be connected with a specific terrorist act.

What is Possession of Terrorist Material?

The legislation refers to possessing a “thing”, rather than simply “terrorist material”.

Depending upon the circumstances, an allegation may involve:

• documents;
• digital files;
• photographs or videos;
• electronic communications;
• instructional material;
• computer or electronic devices; or
• other things alleged to be connected with preparation for, engagement in or assistance in a terrorist act.

The nature of the thing and its alleged connection with terrorism are critical to the Prosecution case.

Elements of Possession of a Thing Connected with a Terrorist Act

To establish an offence under s 101.4, the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Accused Possessed a Thing

The Prosecution must establish that the accused possessed the relevant thing.

Possession can raise particular issues where material is located on:

• a mobile phone or computer;
• cloud storage;
• a shared device;
• shared premises; or
• an account accessible by multiple people.

2. The Thing Was Connected With Terrorist Activity

The Prosecution must establish that the thing was connected with:

• preparation for a terrorist act;
• engagement of a person in a terrorist act; or
• assistance in a terrorist act.

The legislation expressly provides that the offence can apply even where no terrorist act occurs or where the thing is not connected with a particular terrorist act.

3. The Accused Knew or Was Reckless as to the Connection

There are two separate offences.

Under s 101.4(1), the Prosecution must establish that the accused knew of the connection between the thing and the relevant terrorist activity.

Under s 101.4(2), the Prosecution must establish that the accused was reckless as to the existence of that connection.

What Are the Penalties?

The maximum penalty depends upon whether the Prosecution alleges knowledge or recklessness.

Section 101.4(1) — Knowledge

Where the accused knew of the connection between the thing and the relevant terrorist activity:

Maximum penalty: 15 years' imprisonment

Section 101.4(2) — Recklessness

Where the accused was reckless as to the existence of that connection:

Maximum penalty: 10 years' imprisonment

Penalties at a Glance

These are maximum penalties, not automatic sentences.

Statutory Exception

Section 101.4(5) provides an important statutory exception.

The offences under s 101.4(1) and (2) do not apply if the possession of the thing was not intended to facilitate:

• preparation for a terrorist act;
• engagement of a person in a terrorist act; or
• assistance in a terrorist act.

The defendant bears an evidential burden in relation to this exception.

Whether this exception is available will depend upon the particular facts and evidence.

Can I Defend a Possession of Terrorist Material Charge?

Being charged under s 101.4 does not mean that you are guilty. The Prosecution must establish the relevant elements of the offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not possess the relevant thing;
• the accused did not know the thing existed;
• the thing was not connected with preparation for, engagement in or assistance in a terrorist act;
• the accused did not know of the relevant connection;
• the accused was not reckless as to the connection;
• another person had access to the device, account or premises;
• the Prosecution cannot establish the necessary connection; or
• the statutory exception under s 101.4(5) applies.

The appropriate defence will depend upon the evidence in the individual matter.

Digital Evidence

Possession allegations may involve extensive digital evidence obtained from computers, mobile phones, tablets, online accounts or other electronic devices.

Evidence may include:

• forensic examination of devices;
• downloaded files;
• browser history;
• metadata;
• cloud storage;
• messages and communications;
• photographs and videos; and
• evidence concerning access to or possession of particular material.

The circumstances in which material was downloaded, accessed, stored or retained can be particularly important when determining whether the Prosecution can establish possession and the required knowledge or recklessness.

Evidence in Terrorism-Related Possession Cases

The Prosecution may rely upon:

• digital forensic evidence;
• search and seizure evidence;
• police statements;
• witness evidence;
• electronic communications;
• admissions;
• surveillance; and
• expert evidence concerning the alleged material or its connection with terrorism.

At Chidiac & Associates, we carefully examine the evidence and the circumstances in which it was obtained.

Sentencing

If a person is convicted, the court may consider matters including:

• the nature of the thing possessed;
• the nature of its connection with terrorist activity;
• the accused person's knowledge or degree of recklessness;
• the duration of possession;
• the purpose for which it was possessed;
• the extent of the accused person's involvement;
• the offender's criminal history;
• personal circumstances;
• remorse and prospects of rehabilitation; and
• whether an early guilty plea was entered.

The significant maximum penalties make early and detailed legal advice particularly important.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice concerning Commonwealth terrorism offences;
• detailed analysis of the Prosecution case;
• assessment of digital and forensic evidence;
• examination of search and seizure evidence;
• advice concerning s 101.4 and the statutory exception;
• advice concerning potential defences;
• representation in Commonwealth criminal proceedings;
• preparation for defended proceedings; and
• sentencing advice and representation.

Our approach is built on thorough preparation, careful analysis and strong courtroom advocacy.