[2024] SADC 32

Prosecution: R Counsel: MR M HINTON KC WITH MS J HOULAHAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: CAMERON BRODIE-HALL Counsel: MR C CALDICOTT - Solicitor: CRAIG CALDICOTT LAWYERS Hearing Date/s: 30/01/2024 to 05/02/2024 File No/s: DCCRM-22-007934 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v BRODIE-HALL Criminal Trial by Judge Alone [2024] SADC 32 Reasons for the Verdicts of his Honour Judge Muscat 28 March 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER The defendant is charged with one count of Possessing a Document or Record for Terrorist Acts (Count 1) and one count of Possessing Extremist Material (Count 2), relating to books located in a bookcase in the common living area of a Unit that he shared with two others. Possession of the books is disputed in relation to both counts and in addition, in relation to Count 2 only, whether the book contained extremist material. Verdicts: Not Guilty of each count. Criminal Law Consolidation Act 1935 (SA) s 83CA; Summary Offences Act 1953 (SA) ss 36, 36A, 37; Criminal Code Act 1995 (Cth) Chapter 5, Part 5.3; Evidence Act 1929 (SA) ss 34P and 34R, referred to. R v G; R v J [2010] 1 AC 43; R v Benbrika (2010) 29 VR 593; R v GNN (2000) 78 SASR; R v Myall (1986) 43 SASR 258; Hobson v Impett (1957) 41 Cr App R 138; R v Wood (2017) 131 SASR 291; R v Dimitropoulos S3625 Unreported Judgment of the CCA 18 September 1992; R v Arrol [1999] SASC 293; R v Anderson [2004] SASC 201; R v Britten [2018] SASCFC 36, considered. -- 1 of 36 -- -- 2 of 36 -- R v BRODIE-HALL [2024] SADC 32 Charges 1 Cameron Brodie-Hall (‘the defendant’) is charged with the following offences: Count 1 Offence Details Possessing a Document or Record for Terrorism Acts. (Section 83CA of the Criminal Law Consolidation Act, 1935). Particulars Cameron Brodie-Hall on the 7th day of April 2021 at Dudley Park, possessed a document or record containing information of a kind likely to be of practical use to a person committing or preparing a terrorist act. Count 2 Offence Details Possessing Extremist Material (Section 37 of the Summary Offences Act 1953). Particulars Cameron Brodie-Hall on the 23rd day of February 2022 at Dudley Park, possessed extremist material without reasonable excuse. Elements of the offences Count 1: Possessing a Document or Record for Terrorism Acts: s 83CA of the Criminal Law Consolidation Act (SA) 2 83CA—Information for terrorist acts (1) A person who, without reasonable excuse— (a) collects or makes a record of information of a kind likely to be of practical use to a person committing or preparing a terrorist act; or (b) has possession of a document or record containing information of that kind, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. (2) … -- 3 of 36 -- [2024] SADC 32 2 (3) … (4) In this section— Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a law of the Commonwealth that replaces that Code; terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code. 3 The offence was modelled on s 58 of the Terrorism Act 2000 (UK). 4 Under Chapter 5, Part 5.3, s100.1(1) of the Criminal Code Act 1995 (C’th) terrorist act is defined as: terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. Elements of the definition of terrorist act are set out in s 100.1 (2) and (3): (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person’s death; or (d) endangers a person’s life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or -- 4 of 36 -- [2024] SADC 32 3 (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person’s death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. 5 In order to prove this offence, the prosecution must establish each of the following matters beyond a reasonable doubt: i. that the defendant was in possession of the record or document; and ii. that the defendant had knowledge of, or was aware of, the nature of the information contained within the record or document;1 and iii. that the record or document in the defendant’s possession contained information of a kind likely to be of practical use to a person committing or preparing a terrorist act.2 1 It is not necessary that the prosecution prove that a defendant knew everything that was contained in the document or record. It is sufficient to prove that a defendant knew the nature of the material contained in the document or record. That may be apparent from the title of the document or even from a cursory glance at its contents: R v G; R v J [2010] 1 AC 43. 2 The defendant’s intention in relation to the record or document is not relevant unless it amounts to a reasonable excuse for possession of the record or document: R v G; R v J at [49]. Here attention is focused on proving the characteristics of the record or document possessed and poses what is, in essence, a hypothetical question namely, ‘If a person was committing or preparing an act of terrorism, would a record or document of this kind be likely to be useful to that person?’: R v Benbrika (2010) 29 VR 593 at [316]. -- 5 of 36 -- [2024] SADC 32 4 Count 2: Possession of Extremist Material: s 37 of the Summary Offences Act (SA) 6 Part 7A—Extremist material 36—Interpretation In this Part— Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth, or a law of the Commonwealth that replaces that Code; extremist material—see section 36A; internet content host has the same meaning as in Schedule 5 of the Broadcasting Services Act 1992 of the Commonwealth; material includes— (a) any written or printed material; or (b) any picture, painting or drawing; or (c) any carving, sculpture, statue or figure; or (d) any photograph, film, video recording or other object or thing from which an image may be reproduced; or (e) any computer data or the computer record or system containing the data; or (f) any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced; terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code; 36A—Extremist material (1) In this Part (and subject to subsection (2)) extremist material means— (a) material that a reasonable person would understand to be— (i) directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts; or (ii) seeking support for, or justifying, the carrying out of terrorist acts; or (b) material that a reasonable person would suspect has been produced or distributed by a terrorist organisation. (2) …. -- 6 of 36 -- [2024] SADC 32 5 37—Possession, production or distribution of extremist material (1) A person who, without reasonable excuse— (a) has possession of extremist material; or (b) takes any step in the production or distribution of extremist material, is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. (2) Without limiting the circumstances in which a defendant may be found to have a reasonable excuse for the purposes of subsection (1), the defendant will have a reasonable excuse if the defendant establishes that— (a) the conduct constituting the offence was for a legitimate public purpose; or (b) in the case of an offence against subsection (1)(a)—the material to which the charge relates came into the defendant's possession unsolicited and that the defendant took reasonable steps to get rid of it as soon as the defendant became aware of the material and its nature. (3) … (4) … (5) … 7 In order to prove this offence, the prosecution must establish each of the following matters beyond a reasonable doubt: i. that the defendant was in possession of material; and ii that the defendant had knowledge of, or was aware of, the nature of the material; and iii. that the material was extremist in nature. Brief overview of the case 8 In April 2021, the defendant was residing at Unit 1/9 - 13 Cowley Avenue, Dudley Park, with Duncan Cromb and Jackson Pay. 9 At the time, each of them were active members of the South Australia European Australian Movement (EAM) and the South Australian Men’s Health Club (a front for the EAM from which to enable the recruitment of national socialist members). The EAM is affiliated with the Nationalist Socialist Network (NSN). Thomas Sewell, from Victoria, is regarded by many as the leader of the NSN. Sewell is also personally known to the defendant.3 3 P1. Agreed Fact 14. -- 7 of 36 -- [2024] SADC 32 6 10 On 7 April 2021 police conducted a search of the Unit. In a bookcase in the common living area, and amongst a number of other books on the shelves, was a booklet, entitled A Practical Guide to the Strategy and Tactics of Revolution4 by David Myatt. This booklet is alleged by the prosecution to contain information that is likely to be of practical use to a person committing or preparing a terrorist act. The defendant’s left thumbprint was located on the inside front cover of the booklet. The alleged possession of this booklet on 7 April 2021 is the subject of Count 1. 11 On 23 February 2022, the police conducted another search of the Unit. Residing at the Unit at that time were the defendant (and his partner Lilly Nichols5), Pay and Aaron Woodland. Cromb was no longer residing at the Unit at that time, although the evidence does not disclose when he moved out after 7 April 2021. There was no evidence adduced from which to make a finding that Woodland was a member of EAM or that he held or shared any similar ideologies to the defendant, Pay, and previously Cromb, although it is likely that at the very least, he did hold those ideologies as he was living in a household with two known active members of EAM, and it would be unlikely that they would have permitted someone who did not share their ideologies to live at the Unit with them. 12 On the bottom shelf of the same bookcase in the common living area,6 where A Practical Guide to the Strategy and Tactics of Revolution had been located on 7 April 2021, the police located a coil bound manual entitled on the inside as IM-RFM-01 Mental Liberation,7 the contents of which are alleged by the prosecution to contain extremist material. The alleged possession of this manual on 23 February 2022 is the subject of Count 2. 13 The issues in this case are whether the defendant was in possession of the booklet and the manual at the relevant time, and whether the manual, IM-RFM-01 Mental Liberation, contained extremist material. It was not disputed that the booklet, A Practical Guide to the Strategy and Tactics of Revolution, contained information that would be of practical use to a person preparing a terrorist act. From here on I will refer to the booklet and the manual as a ‘book’ respectively for ease of description. Also, in dispute is whether the defendant had knowledge of or was aware of the contents of each book. Trial by judge alone 14 The defendant pleaded not guilty and elected to be tried by judge alone.8 4 P5. 5 T 158.27 - 29. 6 Although the bookcase was now positioned in a different location in the common living area to its location on 7 April 2021. 7 P14. IM-RFM stands for Iron March Revolutionary Fascist Manuals. 01 is the first in the series of manuals and was published on 4 November 2015. The preface states that it is a series of manuals aimed to ‘help one get actively involved in the Fascist Struggle against the System’. 8 Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 dated 20 December 2022 and filed 21 December 2022. -- 8 of 36 -- [2024] SADC 32 7 Legal principles 15 The defendant is presumed to be innocent of each charge. The obligation is upon the prosecution to prove each charge separately and to do so beyond a reasonable doubt. The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of either charge. The defendant is not required to prove anything. 16 The defendant elected not to give or call any evidence. No adverse inference can be drawn against the defendant from this decision. 17 I am to bring an open and fair mind to a consideration and determination of the case. I must make my decisions without prejudice or fear, and not be influenced by public opinion in relation to the subject matter or the admitted national socialist ideologies of the defendant. Possession 18 As I have stated, this case is principally about possession. Possession has been described as a notoriously elusive legal concept.9 There are a wide variety of circumstances where a person may or may not be in legal possession of an item, depending on the particular factual scenario. 19 Possession is not the same as ownership, for a person can be in possession of an item temporarily or for some limited purpose. 20 Possession involves a person exercising either exclusive or joint custody or control of an item, together with an intention to exercise exclusive or joint custody or control over the item. 21 Knowledge of the existence of an item is essential to possession, but of itself does not prove possession, nor does merely having some association with the item suffice for possession.10 22 Indeed, as Goddard LCJ observed in Hobson v Impett, a case involving a conviction for receiving:11 It is not the law that, if a man knows goods are stolen and puts his hands on them, that in itself makes him guilty of receiving, because it does not follow that he is taking them into his control. The control may still be in the thief or the man he is assisting, and the alleged receiver may be only picking the goods up without taking them into his possession, the goods all the time remaining in the possession of the person whom he is helping.12 9 Doyle CJ in R v GNN (2000) 78 SASR 293 at [21]. 10 See R v Myall (1986) 43 SASR 258 and the authorities referred to and discussed by Matheson J. 11 (1957) 41 Cr App R 138 at 141. 12 See also R v Dimitropoulos S3625 Unreported Judgment of the CCA 18 September 1992; R v Arrol [1999] SASC 293; R v Anderson [2004] SASC 201; and R v Britten [2018] SASCFC 36. -- 9 of 36 -- [2024] SADC 32 8 23 In R v Wood,13 Vanstone J approved the following directions given by the trial judge to the jury on joint possession: 7. The accused would be in joint possession of any of the relevant substances, that is to say the substance to which each charge relates, if he and another person or persons were parties to an agreement or arrangement for them to collectively exercise control over the disposition of the substance in the sense that each of them was aware of its existence, each had the power to exercise control over it and they had agreed that they would exercise control over it on behalf of themselves and each other to the exclusion of all others. Such an agreement does not have to be in existence for very long and it can be formed as a result of conversations or a tacit agreement with an old-fashioned expression ‘on the nod’ without a word being spoken. If you and some other person live in the same premises, then some of the property in the premises could well be in joint possession of both of you in this sense, in that you are both aware of its existence, a television set, for example, you both regard it as your joint property and you both have the intention and power to exercise control over it to the exclusion of all others. I imagine you can also see how other examples of inclusive possession can be easily adapted to illustrate joint possession. 8. Now your second question is: ‘Can you please explain the standard of proof required to establish possession or joint possession? Is mere access enough? Does the prosecution have to prove that there was an actual agreement explicit or implied?’. Ladies and gentlemen, in order to establish exclusive possession or joint possession, the prosecution is required to prove it beyond reasonable doubt. The prosecution must prove exclusive possession beyond reasonable doubt, or it must prove joint possession beyond reasonable doubt. Mere access is not enough. 11. As far as proof of joint possession is concerned, there has to be some form of express or tacit agreement before something is in the joint possession of two or more people. The prosecution do not have to point to a particular spoken agreement and it does not necessarily have to point to an exchange of looks, or nods, or gestures which give rise to the inference that there is an agreement jointly to possess some item. 12. The circumstances of a particular case may be such that the only inference that is open to the exclusion of all other possibilities was that a substance is in the joint possession of two or more people even though there is no agreement that can actually be pointed to. 13. The mere fact of the circumstances in which an object is found might satisfy you beyond reasonable doubt that it is in the possession of two or more people, even though there is nothing specific by way of evidence of an agreement, and I trust that is plain. But at the end of the day, the prosecution has to prove exclusive or joint possession beyond a reasonable doubt. 24 What is required to establish that a person is in possession of an item is: i. knowledge of the item; and 13 (2017) 131 SASR 291. -- 10 of 36 -- [2024] SADC 32 9 ii. having custody of the item or an ability to exercise control over the item to the exclusion of others not jointly involved;14 and iii. an intention to exercise custody or control of the item to the exclusion of others not jointly involved. Circumstantial Evidence 25 The prosecution’s case establishing that the defendant was in possession of the book, the subject of each charge, is based entirely on circumstantial evidence. As such, the inferences to be drawn in establishing that the defendant was in possession of each book must be the only rational or reasonable inference open on the evidence. 26 If a reasonable hypothesis is open on the circumstantial evidence that is inconsistent with the defendant being in possession of the book, the subject of the charge, then the defendant must be given the benefit of the doubt necessarily created by that alternative hypothesis. 27 In determining whether an inference is reasonable, I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of different circumstances. I am not required to analyse each circumstance individually, each one of which on its own would not support the inference that the defendant was in possession of the book. The case must be approached by viewing all of the facts together, in the light of the circumstances of the case, to determine if an inference of guilt (in this case possession) may be properly drawn from those combined facts. While the defendant’s possession of the book must be established beyond reasonable doubt, the individual primary circumstances or facts relied upon by the prosecution to establish his possession of the book need not themselves each be proved beyond reasonable doubt.15 28 I do not have to reject one circumstance because, considered alone, no reasonable inference that the defendant was in possession of the book can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances combined. 29 It is not for the defendant, either to establish that some inference other than he was in possession of the book should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an alternative conclusion. If the evidence, viewed as a whole, is susceptible to a reasonable alternative explanation, then the prosecution would not have established the 14 A person may assume, exercise, or resume physical control of an item: Moors v Burke (1919) 26 CLR 265, where the High Court accepted the definition of possession in Pollock and Wright on Possession in the Common Law. 15 This is not a case where a fact or circumstance is an indispensable link in the chain of reasoning to a conclusion of guilt. -- 11 of 36 -- [2024] SADC 32 10 defendant’s possession of the book, the subject of the particular charge, under consideration. Discreditable Conduct Evidence 30 The Director of Public Prosecutions, who also appeared as counsel, adduced a significant amount of evidence demonstrating that the defendant was a member of EAM and subscribed to and actively practised, advocated and promoted the ideologies of racial nationalist socialism. In simple terms, the evidence disclosed that the defendant was a ‘neo-Nazi’ and a ‘white supremacist’. By its very nature, this evidence plainly demonstrated that the defendant engaged in discreditable conduct. 31 The evidence was admitted pursuant to s 34P(2)(a) of the Evidence Act 1929, as circumstantial evidence from which it could be inferred that the defendant, through his membership of EAM and practised ideology of national socialism, was more likely to have an interest in the content of the material the subject of each count and therefore more likely to have been in possession of the book in question. 32 In admitting the evidence for this permissible use, I was satisfied that the probative value of the evidence outweighed the prejudicial effect the evidence would have on the defendant, and further, that I was satisfied that the permissible use of the evidence could be kept sufficiently separate and distinct from the impermissible use (namely mere ‘bad person’ evidence) so as to remove any appreciable risk that the evidence would be used for that purpose. I indicate that I have directed myself in these terms in accordance with s 34R of the Evidence Act. Facts 33 Most of the evidence called by the Director of Public Prosecutions was not challenged by the defence. 34 The evidence establishes the following matters: 35 On 7 April 2021, the defendant was living at Unit 1/9 - 13 Cowley Avenue, Dudley Park, along with Cromb and Pay. The defendant had been living at the Unit since 2 December 2020.16 Each man had their own bedroom.17 There was no evidence as to how long Pay had been residing at the Unit and the defendant told the police during his interview on 7 April 2021 that Cromb was only living at the Unit temporarily and had moved in about two weeks earlier.18 36 All three men were members of the NSN, and the defendant was also a member of EAM and the South Australian Men’s Health Club (SAMHC - a front for the recruitment of potential members to NSN or EAM). 16 P1 Agreed Fact 2. 17 See P3 Floorplan. 18 See ROI P8. (MFI P8A 14.24 – 14.6.) -- 12 of 36 -- [2024] SADC 32 11 37 The NSN uses a Telegram Channel19 to promote its ideologies and activities, thereby seeking to recruit members. Exhibit P7 are posts from the NSN Telegram Channel between 8 January 2020 and 10 February 2023 demonstrating the sorts of online promotions of NSN and its ideology. 7 April 2021 search 38 The Unit was searched by the police on 7 April 2021. The bookcase in the common living area 39 Inside a bookcase in the common living area (the bookcase was covered by a Nazi Flag) police located a copy of the booklet, A Practical Guide to the Strategy and Tactics of Revolution, by David Myatt.20 It was next to another booklet, National Socialism – The Biological Worldview,21 another IronMarch publication that was also seized by the police. 40 The bookcase contained a number of other books, many of which related to white supremacist ideology, national socialism, national socialist culture and Nazi Germany.22 41 The evidence does not disclose where within the bookcase, A Practical Guide to the Strategy and Tactics of Revolution was located by the police. 42 This book is alleged to contain information that is likely to be of practical use to a person committing or preparing a terrorist act and is the subject of Count 1. The defendant’s bedroom and electronic devices 43 The defendant’s bedroom was searched by the police, and evidence of the defendant’s national socialist ideologies and membership of EAM was located. For example, inside a drawer in the television cabinet were three SAMHC patches and in a bookcase in the defendant’s bedroom were also a number of books about national socialist ideologies.23 Some of the books in the bookcase in the defendant’s bedroom were also found in the bookcase in the common living area.24 19 Telegram is an encrypted chat application. 20 Myatt was listed as one of the World’s most dangerous extremists. 21 See P5 and P1 Willdin photograph 122. A book by Povl H. Riis-Knudsen. 22 P1 Agreed Fact 4d. and Willdin photographs 1, 3, 4, 5, 6 ,7, 122. 23 The books are identified in P1 Agreed fact 4h. See also Willdin photograph 66. Photographs of the books also appear in P20. The books are The History of Tomorrow – Some Things Never Change by Julian Archer; Gottglaubig – Writings on German Faith by Anton Holzer; The Lightning and the Sun by Savitri Devi; Traditional Living – A Handbook; The SS Warrior Poet Collected Writings by Kurt Eggers; NOS Book of the Resurrection by Miguel Serrano 24 Detective Dawson agreed that the books NOS The Book of the Resurrection; The Lightning in the Stars and Gottglaubig – Writings on German Faith and a fourth book were located in the defendant’s bookcase and in the bookcase in the common living area: T 111 – 119. -- 13 of 36 -- [2024] SADC 32 12 44 Inside the defendant’s wardrobe was a black shirt with red lapels with a SAMHC patch attached and a name badge bearing the name ‘Cam’. This was clearly a SAMHC uniform belonging to the defendant.25 In a photograph in P12 the defendant is seen wearing the uniform while holding a Nazi flag. 45 The defendant’s electronic devices were seized by the police and forensically examined. On the defendant’s laptop was downloaded material, including a power point presentation entitled Ideology and Praxis – Building National Socialism in the 21st Century, and PDF copies of The Turner Diaries26 and Kaczynski 227 and various Nationalist Socialist images.28 46 Also discovered on the defendant’s laptop was the National Socialist Network Activism Manual and the National Socialist Network Reading List Document.29 The reading list comprised nine books, namely: National Socialist Network Activism Manual; A Squire’s Trial; 88 Precepts; IM-RFM-01 Mental Liberation;30 National Socialism - Selected Writings; Next Leap; Faith and Action; Zero Tolerance and Mein Kampf. 47 Self-evidently, David Myatt’s book, A Practical Guide to the Strategy and Tactics of Revolution, was not part of the NSN reading list. 48 Of the books in the reading list, only Mein Kampf and Faith and Action were found in the bookcase in the common living area. 49 The National Socialist Network Reading List Document states: This reading list includes a small selection of texts every National Socialist should read. It is not, by any means, a complete list, but it is a thorough, sound and comprehensive introduction. The National Socialist Network Reading List must be read by all activists. It is mandatory for you to complete all the texts, as they are a major part of the organisation’s educational component. For practical reasons, these texts are the main medium of education and spreading understanding of our worldview and doctrine within the organisation. After you finish reading through all of them, your learning isn’t over, only your mandatory reading. These texts will form a solid basis for further reading. 25 P1 Agreed Fact 4j. and Willdin photograph 137. 26 Written by Andrew Macdonald (a pseudonym of Willian Luther Pierce – an American neo-Nazi, white supremacist and far right political activist and founder of the nationalist National Alliance in America). It is a fiction novel about a violent revolution in the USA which leads to the overthrow of the Federal Government, a nuclear war and ultimately a race war which results in the extermination of non-whites and Jews. The book inspired multiple hate crimes, including the 1995 Oklahoma City bombing by Timothy McVeigh. Detective Ager described the book as a ‘sort of dystopian version of the USA, where the Zionist occupational government, or a sort of pseudo-Jewish State has taken over the country and the protagonist has to fight against it over numerous attacks. The book ends in this infamous scene where they line up all the race traitors as they see it, torture them, and hang them in what’s called “The Day of the Rope”’: T 146. 27 Theodore John Kaszynski, also known as the Unabomber. 28 P13. 29 P13. 30 IM-RFM-01Mental Liberation is the book the subject of Count 2. -- 14 of 36 -- [2024] SADC 32 13 … The practical benefits of reading these texts cannot be overstated. This reading list will bring you closer to our common understanding of what we believe and what we must do. This common understanding creates a common will. Collective action can only arise from a unity of will. … 50 Of the books on the reading list, the defendant had in his personal possession (on his laptop) a downloaded version of the National Socialist Network Activism Manual, being the first book on the reading list, and Mein Kampf, being the last book on the reading list.31 I am satisfied that it is open to infer that the defendant had read the National Socialist Network Activism Manual on his laptop and had read his copy of Mein Kampf. 51 The National Socialist Network Activism Manual is an important document for NSN activists. The introduction says so and adds: Read this manual all the way through at least once, going through section by section and completing all the recommendations before moving on to the next section. Afterwards, you will have a good understanding of all of this manual’s contents, which you can refer back to easily at any time, should the need arise. It will provide answers to many frequently asked questions and help activists avoid a lot of common mistakes. Most importantly, it will improve the quality of the work we do for our cause. Activists are responsible for bringing the National Socialist message to White Australians, staging media provocations to make the organisation itself better known and recruiting suitably committed people into the organisation. Because of the importance of this responsibility, activists should routinely re-read this manual, in particular sections that pertain to their regular activities. 52 On the defendant’s iPhone was downloaded material, including a photograph of the defendant performing a Nazi salute while standing in front of a Nazi flag draped over the bookcase in the common living area of the Unit; an image of a number of books on national socialism; a web history revealing that on 13 February 2021 the defendant undertook a Google search for Aryan Nationa (sic); another Google search on 16 February 2021 was made for Theory of The Acausal by David Myatt (the author of A Practical Guide to the Strategy and Tactics of Revolution); text conversations between Dylan Clarke and the defendant about the Christchurch mass shootings committed by Brenton Tarrant,32 in which the defendant is praising Tarrant and describing Tarrant as a ‘freedom fighter’;33 various images depicting national socialist symbology, posters and national socialist activism books and an image of Tarrant appearing in court; various images of the defendant associated with NSN (including being in company with 31 In the ROI the defendant admitted he had his own copy of Mein Kampf in his bedroom: P8. 32 Brenton Tarrant is a white supremacist, who committed mass shootings on two mosques in Christchurch, New Zealand on 15 March 2019. 33 At page 22 of A Practical Guide to the Strategy and Tactics of Revolution Myatt states ‘National Socialist revolutionaries are freedom fighters who are resisting this government of occupation’. (Emphasis added) -- 15 of 36 -- [2024] SADC 32 14 other EAM members performing the Nazi salute); a photograph of the bookcase in the defendant’s bedroom alongside a photograph of the defendant holding up two books; a copy of the EAM Leadership Meeting 20 January 2021 minutes (in which Cromb is described as ‘chairman’, the defendant as ‘activism’ and Pay as ‘activism understudy’); and a paper entitled Something for the Rising Generation that examines national socialism.34 53 One of the photographs saved on the defendant’s iPhone was a chat posted by Thomas Sewell, that, in part, stated: All we ask of you was that you help build our collective, that you attend meetings, that you read these books, that you come train with us, that you pay your dues, that you help with activism, that you lend your help to the wider community when needed.35 Cromb’s electronic devices and bedroom 54 A number of Cromb’s hard drives were seized by the police and forensically examined. 55 The first hard drive contained downloaded material including: i. a copy of Andrew Berwick’s36 manifesto entitled 2083 - A European Declaration of Independence, which had been saved as a word document; and ii. numerous nationalist socialist images. 56 A second hard drive contained the following downloaded material: a. a document entitled, EAM Leadership Meeting 20/1/2021;37 b. minutes of an EAM meeting held on 5/2/2021;38 c. National Socialist Network images;39 d. a photograph of the defendant wearing his SAMHC shirt whilst carrying the Nazi flag;40 and 34 P10. 35 P11. Sewell’s post itself is undated and the evidence does not establish when the defendant saved it on his iPhone. 36 Andrew Berwick is one of a number of aliases used by Anders Behring Breivik, the Norwegian neo-Nazi terrorist who committed the terrorist attacks in Norway on 22 July 2011. 37 P12. 38 P12. 39 P12. 40 P12. -- 16 of 36 -- [2024] SADC 32 15 e. PDFs of various Nazi, Fascist and Nationalist Socialist publications in addition to a National Socialist Network reading list and Activism Manual. 57 A third hard drive contained downloaded material depicting nationalist socialist images and photographs of Anders Breivik. 58 A laptop was found to contain downloaded material including PDF and word documents of various Nazi, Fascist and National Socialist publications. 59 A Lenovo ThinkPad series laptop was found to contain a downloaded online book entitled, How to Start and Train a Militia Unit. 60 A search of Cromb’s bedroom by the police located the following items: i. a tube containing various national socialist themed posters;41 ii. a manilla folder containing documents; iii. a plastic resealable bag containing several white supremacist stickers;42 iv. an envelope containing white supremacist stickers;43 v. a black spiral notebook containing white supremacist sketches; vi. eight books about white supremacist ideology;44 vii a black A5 2020 diary located on top of a suitcase in the corner of the room, inside of which was drawn 1488;45 viii on the first shelf of the bookcase were SAMHC cards;46 and ix. various documents about national socialist ideology and white supremacy found inside a cardboard box in the corner of the room. 41 P1 Willdin photographs 35 - 40. 42 P1 Marshall photograph 4. 43 P1 Marshall photograph 6. 44 P1 Marshall photograph 7; P15. 45 P1 Willdin photographs 151 and 152. The number 1488 has significance to national socialists or white supremacists, as the number 14 refers to the 14 words of 'We must secure the existence of our people and a future for white children', first coined by David Lane, a white supremacist with the terrorist group, The Order; while the number 88 is a reference to Hail Hitler (the letter H corresponding to the eighth letter in the alphabet). This is also indicative of the numerical symbology that NSN subscribes to: Detective Dawson T 57 – 59. 46 P1 Willdin photographs 157 and 158. -- 17 of 36 -- [2024] SADC 32 16 Pay’s electronic device 61 Pay’s hard drive was seized by the police and found to contain downloaded material that included:47 i. Brenton Tarrant’s manifesto entitled The Great Replacement. Towards the New Society; ii. Andrew Berwick’s manifesto entitled 2083 - A European Declaration of Independence; and iii. A Practical Guide to the Strategy and Tactics of Revolution by David Myatt. The interest of each occupant in NSN ideology 62 As the above evidence clearly establishes, all three occupants held national socialist world views, with strong ideological beliefs of neo-Nazism and white supremacy. Each were active in proselytizing the nationalist socialist cause. The defendant’s police interview 63 The defendant was interviewed by Detective Dawson on 7 April 2021.48 The defendant stated: • there would not be any extremist material on any of the items the police had seized from him; • that of the books that were seized from his bedroom he would need to speak with a lawyer because he was not aware that any of them would be ‘legally seizable (sic) items’; • that if there was anything that amounted to extremist material then he was unaware of it. He was not aware that anything he possessed was illegal; • Cromb had only been living at the Unit temporarily and had moved in ‘a couple of weeks ago’. Cromb told him that he was only intending to stay for ‘a couple of months’; • that he associated with EAM, which has the purpose of preserving white Australia as a separate group of people and that he associates with other people that have the same world view as him; 47 P1 Agreed Fact 4e. 48 P8. -- 18 of 36 -- [2024] SADC 32 17 • he described national socialism as ‘a racially based collectivism, uniting people in one country based around the common factor of ancestry’; • he described EAM as being involved in ‘peaceful community building’, which is more productive than ‘agitation propaganda’, claiming that NSN and EAM are very explicit about their non - violent stance. He said that the Christchurch killings were illegal and an act of violence that did not achieve anything other than make EAM ‘look like monsters’; • the Nazi flag that was over the bookcase originally belonged to him before he took it down from its position in his bedroom when he started focussing on ‘religious stuff’. He folded the flag and gave it to Pay. He could not say if Pay placed the flag over the bookcase in the common living area; • the swastika on the Nazi flag is a symbol of ‘our people and the oldest and most recurring’ symbol; • all of the books that were in his bedroom belonged to him; • the copy of Mein Kampf in the bookcase in the common living area did not belong to him. He had his own copy in his bedroom; and • that apart from The Hitler Club (which he ‘donated to the bookshelf’), none of the books in the bookcase belonged to him. 64 The defendant was not arrested at that time. Forensic analysis of A Practical Guide to the Strategy and Tactics of Revolution 65 A subsequent forensic analysis of A Practical Guide to the Strategy and Tactics of Revolution discovered a left thumbprint along the left edge of the back of the front cover of the book. The thumbprint matched that of the defendant.49 66 While there were other fingerprints located in the book none were able to be identified because they were smudged.50 49 See the evidence of Stacey Miller from the Fingerprint Bureau of the Forensic Services Branch of the South Australian Police: T 173 – 191. 50 Stacey Miller’s evidence. -- 19 of 36 -- [2024] SADC 32 18 Joint possession 67 It is the prosecution case that all three men who occupied the Unit on 7 April 2021 were in joint possession of all the books in the bookcase in the common living area. 23 February 2022 search 68 On 23 February 2022, the police conducted another search of Unit 1/9 - 13 Cowley Avenue, Dudley Park. At that time Pay was still residing at the Unit51 and another person, Aaron Woodland, was also residing there.52 The defendant’s girlfriend was present at the Unit when the police searched it.53 The defendant’s bedroom and the common living area were searched by the police.54 There was no evidence relating to the search of other rooms in the Unit. 69 Detective Ager took a series of photographs of the bookcase in the common living area and of items located in the defendant’s bedroom.55 The bookcase in the common living area 70 It appears that the bookcase had been moved to another position within the common living area since it was last searched by the police on 7 April 2021. 71 The police searched the bookcase in the common living area and seized a manual that was on the bottom shelf. This manual, IM-RFM-01 Mental Liberation, is alleged to contain extremist material and is the subject of Count 2.56 The manual appears to have been printed and then ring bound in a black cover.57 It was lying flat on the shelf next to a wooden book end.58 There was no title on the outside cover, the title only appearing on the first page of the book. 72 No fingerprints belonging to the defendant were found on IM-RFM-01 Mental Liberation.59 73 The bookcase was photographed.60 Some of the books in the bookcase were there during the police search conducted on 7 April 2021. The manual IM-RFM-01 Mental Liberation was not in the bookcase on 7 April 2021. 51 Detective Ager T 163 - 164. 52 P1 Agreed Fact 7. 53 Detective Ager T 158. 27 - 28. 54 Detective Ager T 164. 55 P19. 56 Exbibit P14. 57 P14; See also photographs 55 and 56 in P19. 58 P19 photograph 55. 59 P1 Agreed Fact 8. 60 P19 photographs 49 - 54. -- 20 of 36 -- [2024] SADC 32 19 74 There were other books in the bookcase that were not identified as relating to national socialism.61 There were also books in the bookcase that were not there on 7 April 2021, and other books that had been there on 7 April 2021 that were no longer in the bookcase on 23 February 2022. Drinks cabinet in the common living area 75 In a drinks cabinet in the living area were a number of bottles of sprits with labels containing propaganda for NSN.62 On top of the fridge and the fridge itself also contained stickers similarly promoting NSN.63 The defendant’s bedroom 76 The defendant’s bedroom was searched by Detective Agers. 77 Above the defendant’s bedhead was a banner, known as the Sonnenrad or the Black Sun or Sun Wheel, an image dating back to Norse mythology and adopted by national socialists. It is a symbol equivalent in standing to the Swastika amongst national socialists.64 78 Inside the defendant’s wardrobe were a number of T-shirts, some of which had symbology associated with NSN.65 79 On a shelf in the bookcase in the defendant’s bedroom and next to some books and a ‘Death’s Head’ patch was a photograph of Horst Wessell,66 a member of the paramilitary wing of the Nazi party, who became a propaganda symbol for Nazi Germany following his murder by members of the German Communist Party in 1930. Following Wessell’s death, Goebbels turned Wessell into a martyr for the Nazi Party. There was also a separate photograph of Adolf Hitler alongside of Wessel’s.67 80 Detective Agers was not familiar with some of the books in the bookcase in the defendant’s bedroom, although some clearly were of interest to national socialists, such as Hitler’s Mein Kampf68 and Invocation of the Black Sun. 81 There were also a number of pamphlets about the White Australia Policy and the Australia First Party.69 61 P19 photograph 54 and the evidence of Detective Ager. 62 P19 photographs 58 – 62; 64 – 67. 63 P19 photograph 63. 64 P19 photograph 1; Detective Ager T 132. 65 P19 photographs 3, 4, 9, 10, 11. 66 P19 photograph 12. 67 P19 photograph 12. 68 I note that a copy of Mein Kampf was in the defendant’s bedroom when it was searched on 7 April 2021: See P8 ROI where the defendant said that he had his own copy of Mein Kampf in his bedroom at that time. 69 P19 photographs 19 – 27. -- 21 of 36 -- [2024] SADC 32 20 82 In a cupboard was a uniform of the SAMHC with the name tag ‘Cam’ attached.70 Inside the cupboard was a patch of an American prison based national socialist group,71 a T-shirt with a motive on one side ‘Holy War Against Communism’ and on the other a line through a symbol of the hammer and sickle with the words ‘Better Dead than Read’ around it,72 and a SAMHC patch.73 The other occupants in the Unit on 23 February 2022 83 There was no evidence adduced relating to the other occupants in the Unit on 23 February 2022, namely Pay or Woodland, or the defendant’s girlfriend, including whether any other bedrooms were searched by the police. The defendant’s arrest 84 The defendant was arrested and charged. He was remanded in custody. Prison calls 85 While the defendant was on remand, he called Sewell twice on 23 March 202274 and called a friend, Tariq Evans, twice on 26 March 2022.75 Recordings of those calls were admitted into evidence.76 Parts of the calls are replicated below. First call between the defendant and Sewell on 23 March 2022 at 11:56 am Sewell: What were the two books? Can you say what the two books were? Defendant: ‘Practical Guide to Aryan Revolution’ by David Myatt and the Iron March manual ‘Mental Liberation’, I think. Sewell: Mental Liberation? Defendant: But they, um – but neither of them, like, were actually mine. They were just fucking lying around in the common area, because some dumb c … s left them there. But yeah. (Emphasis added) Sewell: So, what is it? ‘Practical Guide to Aryan Revolution’? Defendant: Yeah, by David Myatt. Sewell: Yep. All right, well I’ll just let people know, because I don’t think anyone knows that the books are illegal. Defendant: At least in South Australia. But yeah, basically like, I’ll make sure to, like, call you up and that. But just tell – just tell my boys, and all of, like the boys in Victoria as well, like 70 P19 photograph 31. 71 P19 photograph 33. 72 P19 photographs 35 – 36. 73 P19 photograph 47. 74 P1 Agreed Fact 11. 75 P1 Agreed Fact 12. 76 P 18. -- 22 of 36 -- [2024] SADC 32 21 I’m doing all right. It’s a bit – it was a bit daunting when I came in in solitary, but being in mainstream is pretty easy. … Defendant: The only trouble – like, the only trouble I had was when it came out that I was in here for terrorism offences. But it wasn’t because I’m a Nazi, it’s because I initially lied about it. Sewell: You lied about what? Defendant: Well, I just – I just said that I was in here for, like, shivving my housemate to a lot of people, because I was told by, like everyone, not to say what I was in here for. Sewell: Yeah. Defendant: But yeah, when they found out I was in the shit, but then when I just owned it, like ‘yeah I’m a Nazi’, like no one gave a fuck. Sewell: Yeah. Defendant: Even, like, fucking like Aboriginal, like bikies. They didn’t care. They asked me and I just started owning it. Second call between the defendant and Sewell on 23 March 2022 at 12:13 pm 86 In the second call at 12:13 pm the defendant speaks to Sewell about a person named Anthony Dobson, as well as Cromb, and asks Sewell to make sure that ‘the boys’ know that he is doing well because he does not want them to worry about him. He ends this call by saying to Sewell, ‘Blood and Honour’77 and Sewell replicates that saying. Second call between the defendant and Evans on 26 March 2022 at 11:16 am 87 In the second call between the defendant and Evans on 26 March 2022 the defendant tells Evans that he ‘made the mistake of having, fucking like housemates who are fucking sloppy’. He also tells Evans that he suspects Pay to have informed police because Pay was granted police bail for more charges than he was facing. Joint possession 88 As with Count 1, it is the prosecution case that all occupants of the Unit on 23 February 2022 were in joint possession of all the books in the bookcase in the common living area. Defendant does not give evidence 89 The defendant elected not to give evidence. No adverse inference can be drawn against the defendant for this decision. His decision not to give evidence 77 ‘Blood and Honour’ is one of the tenets of National Socialism. -- 23 of 36 -- [2024] SADC 32 22 cannot be used as a makeweight for the prosecution’s evidence nor does it strengthen the inferences to be drawn from the circumstantial evidence presented by the prosecution. Determination of charges Count 1 90 I have read A Practical Guide to the Strategy and Tactics of Revolution. 91 The content of the book is directly associated with the commission of terrorist acts as defined in Part 5.3 of the Criminal Code Act. 92 That conclusion is self-evident from the clear content of the subject matter of the book, being ‘the preservation of the Ayran culture through victory in a war against tyrannical governments that enslave them’. It calls upon Ayrans to fight for their survival and the future of the Aryan race and demands that active resistance is a duty. 93 There is a part in the book that discusses four methods of covert direct action.78 Those four methods are: ‘(1) assassination of individuals; (2) terror bombing (including targets where civilian casualties are probable); (3) sabotage of infrastructure of the System – such things as roads, communications, television transmitters, airports, railways, power stations, food supplies, businesses, shops, financial institutions and so on; (4) terror campaigns directed at our enemies – indiscriminate or otherwise’.79 Each method is then explained in detail by the author. 94 The defence did not challenge that such a finding about the book was open, although realistically there could not have been any challenge based on the overt subject matter and content of the book. 95 I am satisfied beyond a reasonable doubt that A Practical Guide to the Strategy and Tactics of Revolution contains information of a kind likely to be of practical use to a person committing or preparing a terrorist act. This element of the offence has therefore been proved. 96 The real issues in dispute in relation to this book, are whether the evidence establishes beyond a reasonable doubt that the defendant was in joint possession of it with Cromb and Pay at the relevant time and that the defendant had knowledge or was aware of its content, although this latter aspect would, as I have already said, be self-evident to anyone who even skim read the book. 97 In support of his case proving that the defendant was in joint possession of the book and had read it, or sufficient of it, to have gained knowledge of or an 78 Part II. 79 Page 24 of A Practical Guide to the Strategy and Tactics of Revolution. -- 24 of 36 -- [2024] SADC 32 23 awareness of the nature of the information contained within it, the Director relied upon the following pieces of circumstantial evidence: 1. The discreditable conduct evidence 98 The Director submitted that the discreditable conduct evidence clearly established the defendant’s strong NSN ideologies, as co-shared by Cromb and Pay, to argue that the book formed part of a communal resource, available to each of the occupants of the Unit, in their pursuit of their shared NSN cause and their active part in proselytising that cause. 99 The Director emphasised the importance of honour, loyalty, discipline, and brotherhood amongst members of NSN. He noted that the evidence clearly established that NSN ideologies were practised by all members of the Unit, each of whom held a senior position within EAM, as disclosed by the minutes, with the defendant’s role being that of ‘activism’. 100 The Director submitted the ideologies that each of them subscribed to were all pervasive. Their approach to life was to live by the Socialist worldview and to strive to create a parallel society. As part of doing so, it was their responsibility to recruit and indoctrinate others to their cause. Indeed, as the Director submitted, the importance of recruitment is featured in the minutes of the meeting of 20 January 2021. 101 The Director described recruiters for NSN as being in the nature of disciples. He submitted that each occupant of the Unit was part of a ‘brotherhood’, in the sense that what they were cultivating was an intense, all pervading, all controlling worldview, that dictated every aspect of their lives and relationships. 102 The references by the defendant to ‘the boys’ when speaking with Sewell during the prison call, submitted the Director, was symbolic of the preoccupation of a brotherhood within NSN. In the second prison call Sewell reminded the defendant to stay true to NSN and its worldview, with the defendant responding that to do otherwise would be dishonourable. Likewise with the defendant and Sewell farewelling each other with the phrase ‘Blood and Honour’. The Director’s submission that honour was important to the defendant and members of EAM was confirmed by the T-shirt located in the defendant’s bedroom on 23 February 2022 which had written on the front of it ‘Honour is Eternal’,80 and a similar T-shirt was worn by another EAM member on a banner drop in the Adelaide Hills.81 The Director submitted that ‘honour’ is an important part of national socialist ideology that the defendant took seriously. 103 The Director submitted that the evidence found in the Unit revealed that each occupant was equally immersed in NSN ideology. Each occupant had books, insignia, patches, stickers and posters or paraphernalia in their bedrooms relating 80 P19 photograph 11. 81 See P21 photograph 7. -- 25 of 36 -- [2024] SADC 32 24 to white supremacist ideologies. Each also had literature on their devices, indicating the extent to which NSN formed part of their identity and their lives. The Director submitted that the Unit was essentially a ‘neo-Nazi house devoted to NSN’. 104 The Director submitted that everything in the common living area was there to advance the cause of NSN and that everything was available to each occupant for that purpose. 105 The Director submitted that the all-pervading nature of NSN, the ‘revolutionary nature’ of its cause and the extent to which each occupant was immersed in NSN, clearly suggested that there existed an agreement of proselytising the cause that was shared by each of them, and from this evidence it could be inferred that there was an agreement by each of them that they would recruit and indoctrinate members of EAM, such that each occupant was in joint possession of all of the books in the bookcase, as the books were a necessary part of understanding and living their revolutionary movement. 2. The defendant is a known reader of books 106 The Director pointed to the fact that the defendant is a known reader of books, as evidenced by the numerous books found in his bedroom and of the photographs he had taken of the bookcase in his bedroom, and indeed, of himself holding up books, indicating that he was proud of the fact that he is a reader of NSN literature, as a circumstance pointing towards his joint possession of the book. 107 Similarly, with the evidence of the defendant’s PowerPoint presentation and the papers Something for the Rising Generation82 and Extremity of Right Wing Politics,83 the Director submitted, strongly suggested that not only is the defendant a reader but that he is also a researcher and that his interest is national socialism. 108 The Director submitted that it would be expected, in such a Unit shared by three committed and senior members of EAM, that the Unit would contain books that EAM members were required to read, and that this gave rise to the inference that the books in the bookcase in the common living area were jointly possessed because they are consistent with and necessary to proselytise the NSN cause. 3. The defendant’s statement to police that he ‘donated’ a book to the bookcase 109 The Director submitted that during the defendant’s police interview when the defendant said that he had donated his copy of The Hitler Club to the bookcase, the defendant had meant by this that it was no longer his book but was now part of the common resource available to all occupants of the Unit. 82 P10. 83 P16. A paper authored by the defendant and found on Cromb’s laptop. -- 26 of 36 -- [2024] SADC 32 25 110 The Director submitted that donating something is consistent with it belonging to the collective and as such no longer belonging to the individual. In this way, submitted the Director, everything in the bookcase can also be said to have been donated, and hence, belonging to the collective, strengthening the inference that there was joint possession of all of the books in that bookcase. 111 The Director submitted that the Unit comprised of the ‘chairman’ (Cromb), and members responsible for activism (the defendant and Pay as his understudy) and as such, one would necessarily expect to find books that they are encouraged and required to be read because that is a necessary part of proselytising and advancing their cause, leading to the inference all three were in joint possession of the books in the bookcase in the common living area. 4. The prison calls as ‘implied admissions’ 112 In a prison call made by the defendant to Sewell after the defendant’s arrest, the defendant told Sewell the titles of the books he was charged with being in possession of, but then said that those books did not belong to him. He told Sewell that the books had been ‘lying around the common area because someone had left them there’. 113 The Director relied on this latter comment made by the defendant to Sewell and of the defendant later telling Evans, during the second of the prison calls with him, that he ‘made the mistake of having, fucking like housemates who are fucking sloppy’ as amounting to implied admissions by the defendant of his knowledge of the two books. I do not accept this submission that this evidence amounts to an admission by the defendant. 114 I consider that the defendant was doing no more than blaming his housemates for his arrest, because they had brought into the Unit publications that were unlawful and leading to his arrest as an occupant of that Unit. 115 I do not consider that I can infer from this evidence that the defendant was admitting knowing that the books he was charged with being in possession of were in the bookcase. Indeed, I consider that what the defendant was saying to Sewell was that he was not in possession of the books and that they were in the possession of another. 116 It is impossible to place any weight on this evidence, especially in the face of the defendant telling Sewell, at the same time, that he did not own the books. 117 During the second of the defendant’s prison calls with Evans, the defendant said that he suspected that Pay may have been a police informer. The Director relied upon this as another implied admission by the defendant to being in possession of the books, submitting that what the defendant was telling Evans was that he was remanded in custody because of his possession of the books. Once again, I am unable to accept the Director’s submission that this amounts to an implied admission by the defendant being in possession of the books. As with the -- 27 of 36 -- [2024] SADC 32 26 Director’s other submissions on aspects of the defendant’s prison calls amounting to implied admissions, I consider that all this amounts to is the defendant questioning his arrest and searching for a reason why he was arrested and no more than that. 118 I have decided to place no weight on this as a piece of circumstantial evidence because such an inference is, in my view, not reasonably open. Indeed, this evidence tells against the defendant being in joint possession of the books. 5. The defendant’s thumbprint on the inside of the front cover of the book 119 The defendant’s thumbprint on the inside cover of the front page of A Practical Guide to the Strategy and Tactics of Revolution proves that he touched the book at some point in time. The Director submitted that this piece of circumstantial evidence strengthens the inference, together with the other pieces of circumstantial evidence, that the defendant was in possession of the book. 6. The defendant’s interest in David Myatt 120 The evidence reveals that the defendant made a Google search for one of David Myatt’s other books,84 suggesting an interest in Myatt’s works. The Director submitted that this was not merely coincidental given that Myatt is the author of A Practical Guide to the Strategy and Tactics of Revolution and is another strand of circumstantial evidence pointing to the defendant’s joint possession of the book. 7. The freedom fighter comment 121 The Director also relied upon the defendant describing Brenton Tarrant as a ‘freedom fighter’ during his text communications with Dylan Clarke and the fact that same expression is used by David Myatt at page 22 of A Practical Guide to the Strategy and Tactics of Revolution, where Myatt describes national socialist revolutionaries are ‘freedom fighters.’ This, submitted the Director, enabled the inference to be drawn that the defendant had read A Practical Guide to the Strategy and Tactics of Revolution. It is hard to place much weight on this piece of evidence, given that the expression ‘freedom fighter’ and ‘revolutionary’ are commonly interchangeable. It is not as if the expression ‘freedom fighter’ is unique to Myatt’s writings. Consideration of the circumstantial evidence 122 I accept what the Director has submitted the discreditable conduct evidence discloses of the defendant’s (and Cromb’s and Pay’s) NSN world views and of proselytising the NSN cause. This was not challenged by the defence.85 84 See P1 Agreed Fact 4i (ii). On the defendant’s iPhone was a Google search on 16 February 2021 for David Myatt’s work Theory of the Acausal. 85 See discourse during Defence closing address: T 217 – 220. -- 28 of 36 -- [2024] SADC 32 27 123 In my view, in and of itself, this would not be sufficient to establish that the defendant was in joint possession of the books with Cromb and Pay. Even holding such strong NSN ideologies as the defendant and the others did, does not necessarily mean that the defendant was in joint possession of the book. 124 However, I acknowledge that this evidence is an important piece of circumstantial evidence, to be added to the other items of circumstantial evidence, when considering whether the totality of the evidence permits me to reach the conclusion advanced by the Director that the defendant was in joint possession of the book. 125 It is trite to observe that merely having access to the books in the bookcase in the common living area would not establish joint possession of the books in that bookcase, no matter how intense one’s interest in NSN is. 126 I also note here that of the many books in the bookcase, A Practical Guide to the Strategy and Tactics of Revolution, was the only one, possession of which was illegal. Importantly, it was also not one of the books on the National Socialist Network Reading List. There were also many books in the bookcase, that while clearly related to nationalist socialism, were not exclusively so.86 127 The evidence could not establish where, within the bookcase, A Practical Guide to the Strategy and Tactics of Revolution was located by the police. From my inspection of the photographs, I could not make out where the book was, nor indeed, where the other book that was seized along with it was found. 128 The fact that Pay had his own copy of the book that he had downloaded onto his computer,87 indicates that Pay most likely would not have had any need for the hardcopy of the book in the bookcase, does strengthen the inference that the defendant may have been in possession of the book in the bookcase, although it does not exclude the book as belonging to Cromb and having been placed in the bookcase by Cromb. 129 It can be readily inferred that the occupants of the Unit placed various books into the bookcase at different times, without the other occupants necessarily knowing about that. The fact that the defendant had access to the books in the bookcase in the common living area and therefore the ability to read those books, if he chose to, does not mean that he knew about each book in the bookcase nor what the content of each book contained. 130 Assuming that each occupant contributed various books to the bookcase in the common living area for each occupant to read if they chose to, does not necessarily lead to the only rational conclusion being that they were in joint 86 For example, some were religious in nature such as Roman Catholic Daily Missal and The Framework of the Christian State and others included Homer’s The Iliad and The Odyssey; Tales of Norse Mythology; Dictionary of Ancient Deities; The Art of Mysticism by Gabriyell Sarom. 87 P1 Agreed Fact 4e. -- 29 of 36 -- [2024] SADC 32 28 possession of all the books in the bookcase, even holding the strong NSN ideologies they did. The defendant’s reference to having donated a single book (The Hitler Club) to the common living area bookcase does not equate to a change of sole ownership or possession of the book to joint ownership or possession of that book. In my view, it can equally mean that the defendant is permitting the other occupants of the Unit to read the book he donated to the bookcase by placing it in the bookcase in common living area. 131 Indeed, I consider the fact the defendant had his own collection of books in his room suggests that he was less likely to have an interest in what was in the bookcase in the common living area, hence his donation of his copy of The Hitler Club to the bookcase in the common living area. The defendant had what he wanted to read in his bedroom or on his devices. That the defendant may have donated his copy of Mein Kampf to the bookcase in the common living area, in my view, is simply an act on his part signifying that he is permitting others to read it. The book still belongs to him. The same can be said of other books in that bookcase donated by the other occupants. It does not follow from this that all the books in that bookcase were in the joint possession of all the occupants of the Unit. Furthermore, as the defendant had his own bookcase in his bedroom, it would be somewhat unusual to be in joint possession of books duplicated in the bookcase in the common living area. This tends to suggest that the books in the bookcase in the common living area were not in the joint possession of all the occupants. 132 I consider the fact the defendant was a known reader of books is of only marginal weight in consideration of whether he was in joint possession of A Practical Guide to the Strategy and Tactics of Revolution. 133 While the defendant’s google search of David Myatt’s Theory of the Acausal suggests some interest in Myatt’s work, it adds little weight to whether he read A Practical Guide to the Strategy and Tactics of Revolution. Similarly, being a known reader of books on national socialism is of only little weight to whether he jointly possessed the book or had read it. 134 The fact of the defendant’s left thumbprint being on the inside of the front cover of the book proves that at some point in time he touched or handled the book. 135 I acknowledge that the presence of the defendant’s left thumbprint is an important piece of circumstantial evidence, that is to be added to the other pieces of circumstantial evidence in considering, whether in combination, the totality of the evidence proves that the only rational inference is that the defendant was in joint possession of the book. 136 The defence has contended that there exist other reasonable explanations for the presence of the defendant’s thumbprint that are inconsistent with him being in joint possession of the book with Cromb and Pay and of knowing or being aware of the content of the book. -- 30 of 36 -- [2024] SADC 32 29 137 A number of different scenarios were suggested by the defence as reasonable explanations for the defendant’s thumbprint being on the book. The book may have been left lying around the living area by one of the other occupants and the defendant picked it up and placed it in the bookcase. The defendant may have momentarily handled or moved the book when looking for another book in the bookcase. The defendant may even have opened the front cover of the book and decided that he would not read the book at that time but would do so later. These alternative explanations for the presence of the defendant’s thumbprint, in the defence submission, were equally consistent with the defendant not being in possession of the book, in the sense that he had not intended to exercise joint control over it, nor being aware of the contents of the book. 138 I do not accept the Director’s submission that from the mere fact of the direction of the thumbprint on the inside cover of the book that an inference can be drawn that the book was read. There are countless explanations for a single thumbprint on the inside front cover of a book that might be inconsistent with the book being read by the person who had left their thumbprint in that position as I have already observed. Indeed, the left thumbprint is exactly where you would expect it to be if the front cover of a book was simply being opened or closed for that matter. The opening or closing of the front cover of a book does not prove possession, least of all that the book was read. 139 What is important, as I have indicated, is not so much that the defendant had, at some point in time, handled the book (which his thumbprint proves), and so may have had knowledge of the book in the sense of being aware of its presence in the Unit or bookcase, but whether the defendant intended to exercise control of it. 140 However, as I have stated more than once in considering a circumstantial evidence case, regard must be had to the totality of the circumstantial evidence viewed as a whole. 141 I do not accept the Director’s submission that because the ‘Death Head’ appears on the cover of the book and the font used in the title was one consistent with that used by the Nazi Party, that it follows that in combination with the other circumstantial evidence, there is no reasonable possibility that the defendant in leaving his thumbprint on the front inside cover of the book, would not have known what the book was about or that the book was not read by him. The symbology and font on the front cover of the book are not exclusive to books promoting or encouraging acts of terrorism. This is, indeed, a case of not being able to judge a book by its cover, despite the defendant’s national socialist ideology. Of all the books in the bookcase in the common living area and in the defendant’s bookcase, or on his devices, this was the only one that contained information of a kind likely to be of practical use to a person committing or preparing a terrorist act. 142 When the police searched the Unit on 7 April 2021, despite the National Socialist Network Reading List Document listing the various books that NSN members had to read, Mein Kampf and Faith and Action were the only books from -- 31 of 36 -- [2024] SADC 32 30 the list located in the Unit. This weakens the Director’s submission that the defendant (and indeed Cromb and Pay) was so immersed in NSN ideology that he would follow the directions contained in the National Socialist Network Reading List Document and Sewell’s request, when most of the books on the reading list were not located in the Unit at that time. 143 Assessing and weighing all the pieces of the circumstantial evidence in combination, I am not satisfied beyond a reasonable doubt, that the only rational inference to be drawn from that evidence is that the defendant was in joint possession of the book. 144 Further, accepting that the defendant did know of the book’s existence, because he had handled it at some point in time, as his thumbprint proves, the evidence does not prove that he intended to exercise control over it, nor that he had read it, or sufficient of it, to have been aware of its content. 145 The prosecution has not excluded as a reasonable possibility, on the whole of the evidence, that Pay or Cromb were not in exclusive possession of the book. 146 The circumstantial evidence certainly raises a suspicion in my mind that the defendant was in joint possession of the book and may had read it, but that is not sufficient to prove those matters beyond a reasonable doubt. 147 It follows that the defendant is not guilty of Count 1. Count 2 148 The manual, IM-RFM-01 Mental Liberation, appears to be a downloaded copy from the internet that was then printed, and coil bound by someone. 149 There was no title on the cover, with the title only appearing on the first page of the manual upon opening the cover.88 150 The preface to the manual states: IM-RFM or IronMarch Revolutionary Fascist Manuals, are a series of documents meant to help one get actively involved in the Fascist Struggles against the System. The System is the dominant, purely mechanical societal structure which sprung forth from the modern worldview of lies and falsehood, whereas the Fascist worldview advocated the search for, discovery and realization of the Truth in societal matters, leading to the creation of the Organic State. The world we know today is a product of self-serving lies or interest, as well as a purely material, rationalistic, intellectual mindset that is detached from a spiritual view of life without which understanding material reality is impossible. It is a limited scope that focuses on the wrong things, placing value in man himself. The Fascist worldview is one that promotes a broader field of vison that encompasses the spiritual reality and finds the Truth as the core value which thereafter reveals the inherent nature of the world at large, 88 See P19 photograph 56. -- 32 of 36 -- [2024] SADC 32 31 society and individuals, applying the truth to everything, including oneself, without egotism. 151 The manual describes the target audience as ‘actual Fascists and National Socialists, those who understand the Fascist Worldview’. 152 While the content of the manual is not exclusively about encouraging, glorifying, promoting or condoning terrorist acts; or seeking support for, or justifying, the carrying out of terrorist acts, I am satisfied beyond a reasonable doubt that certain passages of the manual do just that. 153 The manual explains to the reader why a revolution is the only way to ‘beat the System’ and that ‘Fascists/Socialists are at war with the System’. It emphasises that action is necessary ‘because ideas only truly acquire force when they are accompanied by action’. 154 The manual details the terrorist acts perpetrated by ‘successful and true Lone Wolves’, in Timothy McVeigh and Anders Breivik.89 This subject matter ends with ‘Finally, no less important is knowing where to strike the enemy, so that if worst come to worst the sacrifice made by the wolf is not wasted on someone or something purely symbolic and ultimately meaningless to the System’s stability and ultimate survival. In the words of James Mason: “I don’t mind paying the price but, by God, I demand the price be worth paying!”’. 155 I acknowledge the defence submission that not all revolutions involve acts of terrorism to achieve their goal, however, the manual specifically references two notorious terrorists and when read in context, I am satisfied beyond a reasonable doubt that it is ‘encouraging, glorifying, promoting or condoning terrorist acts; or seeking support for, or justifying, the carrying out of terrorist acts’ such that the particular content amounts to extremist material. 156 As with Count 1, the primary issue in respect to this count centres on the defendant’s joint possession of the book. 157 The prosecution case proving the defendant’s joint possession of the book relied on the same evidence as Count 1, and in addition, the defendant’s possession, on his laptop, of a downloaded copy of the National Socialist Network Activism Manual and the National Socialist Network Reading List Document.90 89 See page 27. At page 49 in answering a hypothetical objection to the revolution being sought namely, ‘… we need the masses, a small movement can’t beat the System, It’s too large!’ the manual states: ‘All historic revolutions were done by a small group of capable fanatics with the masses joining in only when victory of the revolutionaries was assured Breivik all on his own put the capital of Norway on total lockdown and was free to act elsewhere. A handful of people like him can cause entire cities to come to a dramatic standstill. A few hundred can beat the System’. 90 P13. -- 33 of 36 -- [2024] SADC 32 32 Consideration of the circumstantial evidence 158 The book was located by the police during their search of the Unit on 23 February 2022. It was lying flat on the bottom shelf of the bookcase.91 159 There was no inventory made by the police of the books in the bookcase during the search on 7 April 2021, nor of the books in the bookcase during the search on 23 February 2022. I only have photographs of the bookcase taken by the police on 7 April 2021 and 23 February 2022 from which to attempt to identify the books within the bookcase. 160 From what I can observe of the bookcase, there are some books that were in the bookcase on 23 February 2022 that were not there on 7 April 2021 and vice versa. There appears, to my eye, to be fewer national socialist books in the bookcase on 23 February 2022 than on 7 April 2021, with more religious and other books in the bookcase on 23 February 2022, but it is difficult to be certain about that. 161 The difference in the content of the bookcase between 7 April 2021 and 23 February 2022 suggests that the number and nature of the books fluctuated, with books coming and going from the bookcase at different times. 162 However, I am satisfied on the evidence, that IM-RFM-01 Mental Liberation was not in the bookcase when it was searched by the police on 7 April 2021. 163 There is no evidence as to how long this book was in the bookcase before 23 February 2022 or who had coil bound it. There was evidence that Cromb had downloaded other publications and coil bound those.92 164 There was no evidence of when Cromb had moved out of the Unit, nor was there any evidence about when Woodland began to reside in the Unit, or for that matter, whether the defendant’s girlfriend, who was at the Unit when it was searched on 23 February 2022, was living there with the defendant, and if so, for how long. 165 No fingerprints belonging to the defendant were found on IM-RFM-01 Mental Liberation.93 166 The National Socialist Network Reading List Document comprises, amongst other books and publications, IM-RFM-01 Mental Liberation. The National Socialist Network Reading List Document states the reading list includes a small selection of books that every National Socialist should read and later states that the books must be read by all activists. 91 See P19 photographs 54 – 55. 92 See evidence of Detective Dawson at T 100 – 103. 93 P1 Agreed Fact 8. -- 34 of 36 -- [2024] SADC 32 33 167 The document also states that ‘it is mandatory for National Socialists to complete reading all the texts, as they are a major part of the organisation’s educational component. For practical reasons, the texts are the main medium of education and spreading understanding of our worldview and doctrine within the organisation’. The document adds that ‘the practical benefits of reading the texts cannot be overstated and that the reading list will bring the National Socialist closer to our common understanding of what we believe and what we must do. This common understanding creates a common will. Collective action can only arise from a unity of will’. 168 The Director also referred to a photograph saved on the defendant’s iPhone of a chat posted by Sewell, that, in part, stated: All we asked of you was that you help build our collective, that you attend meetings, that you read these books, that you come train with us, that you pay your dues, that you help with activism, that you lend your help to the wider community when needed.94 169 There is no reference to what books Sewell expected members to read, although the strong inference is that he must have been referring to the NSN reading list. 170 The Director submitted that the defendant, being a staunch national socialist, who willingly followed NSN instructions, would have followed Sewell’s request that ‘you read these books’ and as IM-RFM-01 Mental Liberation was on the reading list, the inference to be drawn from this and the other circumstantial evidence, is not only was the defendant in joint possession of it in the bookcase, but that he must also have read it. 171 Of the books in the bookcase in the common living area and those located in the bookshelf in the defendant’s bedroom on 7 April 2021, only Mein Kampf and Faith and Action from the National Socialist Network Reading List Document were discovered in the bookcase on 7 April 2021. None of the other books on the reading list were discovered in the Unit on 7 April 2021. I have previously referred to this as a matter tending against the inference contended for by the Director. 172 From my own viewing of the photographs of the bookcase depicted in P19, I cannot conclude that Mein Kampf and Faith and Action were still in the bookcase on 23 February 2022. The only additional books from the National Socialist Network Reading List Document that were discovered in the Unit on 23 February 2022 were IM-RFM-01 Mental Liberation (in the bookcase in the common living area) and Mein Kampf (located in the defendant’s bedroom95, as it was on 7 April 2021).96 94 P11. 95 See P19 photograph 16. 96 See ROI where the defendant admits that he had his own copy of Mein Kampf in his bedroom on 7 April 2021. -- 35 of 36 -- [2024] SADC 32 34 173 As such, on 23 February 2022, there were only two out of the nine books from the reading list that were in the Unit. This suggests that the defendant did not strictly follow Sewell’s instructions to read all of the books on the reading list. 174 I have already stated that I am satisfied that the coil bound copy of IM-RFM-01 Mental Liberation was not in the Unit on 7 April 2021 and so must have been placed in the bookcase by someone after the police left the Unit on 7 April 2021, and before the police returned to search it again on 23 February 2022. During that time, Cromb had left the Unit and Woodland had moved in, and possibly also the defendant’s girlfriend. 175 As with A Practical Guide to the Strategy and Tactics of Revolution that was found in the bookcase on 7 April 2021, accepting that the defendant was an active and senior member of EAM, the fact that the defendant had access to and therefore able to read the books in the bookcase in the common living area on 23 February 2022, if he chose to, does not mean that he knew of all of the books in the bookcase, least of all what their actual content contained. 176 Equally, IM-RFM-01 Mental Liberation could have been placed in the bookshelf by either Pay or Woodland without the defendant knowing that it was there. 177 I have already addressed some of the Director’s submissions about the circumstantial evidence in my consideration of Count 1 and will not repeat that. Assessing and weighing the circumstantial evidence in its totality, I am unable to reach a conclusion, beyond a reasonable doubt, that the only rational inference to be drawn from the whole of the circumstantial evidence relevant to Count 2 is that the defendant was in joint possession of IM-RFM-01 Mental Liberation on 23 February 2022, in that he knew of its presence in the bookcase. 178 The prosecution has not excluded as a reasonable possibility, on the whole of the evidence, that one of the other occupants of the Unit at that time was not in exclusive possession of the book. 179 I am also unable to exclude, on the evidence, the reasonable possibility that the defendant was unaware of the book being in the bookcase or exclude, if he was aware of it, that he had read it, or sufficient of it, to be aware of its content. 180 It follows that the defendant is not guilty of Count 2. Verdicts 181 I find the defendant not guilty of each count. -- 36 of 36 --