Palestinian Australian assaulted and abused on Sydney train ‘shocked’ police charged assailant with assault but not hate speech

Original article by Penry Buckley

Palestinian Australian film-maker Shamikh Badra, who alleged to police that he was assaulted and racially abused on a Sydney train after an anti-immigration march, is “shocked” that police charged his assailant with common assault but not hate speech.

The August assault, which was filmed by Shamikh’s brother, Majed Badra, on his phone and also captured on CCTV, has raised questions about the NSW government’s controversial attempt to criminalise racial vilification – and the lack of prosecutions.

The Badra brothers – who had family members killed during the Gaza war and were recently reunited with their elderly mother – were verbally abused after a March for Australia rally. They allege the confrontation began when Majed was told to take off a Palestinian scarf.

A 46-year-old man, Nicholas Haskal, was charged in October with common assault against Shamikh. Haskal pleaded guilty in mid-November and received a 12-month conditional release order. No criminal conviction was recorded.

Shamikh said this week he was “shocked” to discover police had not pursued additional charges.

“They did not include the racist insults or the targeting of me and my brother as Palestinians.”

The agreed facts state that Shamikh and Majed entered a train at Sydney’s Town Hall station at about 2.43 pm on Sunday 31 August, after attending a separate pro-Palestine rally in the city.

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Police say Haskal boarded the train at Central station “after participating in the March for Australia rally”, sitting down a few metres away.

About two minutes later, “an argument” occurred.

The facts state that as it became “more heated”, Haskal got up from his seat and approached the brothers while “continuing to yell at them”. Shamikh stood up to position himself between the accused and Majed.

The facts state that “due to the escalation of the interaction”, Majed took out his mobile phone and began to film.

Police say Haskal lashed out at Majed “due to not wanting to be filmed”, trying to grab the mobile phone, and “in doing so has struck the victim [Shamikh] in his right arm”.

The facts state that “a short physical confrontation” ensued before the parties separated after the train stopped at Macdonaldtown.

A second verbal altercation began, during which Haskal pushed Shamikh, “with the victim [Shamikh] kicking out at the accused to keep him back”, the document states.

The three men then exited the train.

The agreed facts do not reference any of the men’s allegations of racist abuse or what the Badras say was the cause of the argument – Majed being told to remove his keffiyeh.

Shamikh alleges Majed was told: “If you want to fight for Palestine, go back there.” This comment was not captured in the mobile phone footage.

The facts reference that the incident was captured on mobile phones and CCTV. In Majed’s footage, which Guardian Australia has seen, the verbal abuse appears to escalate as the brothers are confronted by a group of several people.

“Get the fuck out of here. We don’t like you in our country. We don’t want you in our country,” Haskal says. “We don’t want you here. Fuck off.”

Haskal, in another clip, says, “This is Australia, you love getting free money, you fucking loser cunt,” as Shamikh shouts “Racists” and “Free Palestine” while the brothers retreat towards the train doors.

Shamikh said he and his brother went to Canterbury police station that day and provided a statement. Majed later provided mobile phone footage.

The agreed facts state that Haskal attended Cabramatta police station on 24 September and provided a version of the incident in a recorded interview.

Shamikh said police later contacted him to tell him a man had been charged with common assault. He was advised that the matter would be heard “in November” and he would be updated “once this occurs”.

He said police called him after Haskal’s only court appearance to advise him that the 46-year-old had pleaded guilty. He said requests to be put in touch with the police prosecutor went unanswered.

The brothers’ lawyer, Nick Hanna, said police communication had been “unsatisfactory”. The fact that the Badras weren’t told why charges in relation to the alleged racial abuse hadn’t been laid added to their distress.

“We do not know all of the evidence that the police obtained in the course of their investigation,” Hanna told Guardian Australia.

“It might be that there’s a reasonable explanation for this, but both the Badras and the public deserve to know what it is.”

Hanna said police had told him they had sought legal advice on whether additional charges could be laid.

University of Sydney law expert Prof Simon Rice said the relevant provisions of NSW’s Crimes Act – section 93Z covering inciting violence on the grounds of race, and section 93ZAA, which covers inciting hatred – had to be proven beyond a reasonable doubt.

Rice said 93ZAA didn’t necessarily cover conduct that was itself hateful. Critics of the offence, which came into effect just before the train assault, have accused the Minns government of ignoring its own 2024 review into hate speech.

That report argued such laws would “introduce imprecision and subjectivity into the criminal law”.

In the absence of a stated intention to incite hatred, “it has to be inferred from what is said and done”, Rice said this week. It was not clear from Majed’s video that the accused had such an intention, the academic added.

Rice said attending an anti-immigration march could be considered by a court during any discussion of intention.

“What we really need is a court decision that decides how this provision works,” he said.

“We’ll only get that case if the police charge someone. [But] I can understand why they thought this was not the best case to try it.”

Asked why hate speech charges were not laid in Shamikh’s case, a NSW police spokesperson said section 93Z required the threat of violence to be directly linked to a protected attribute, including a person’s race or religion.

“In relation to this matter, the racial/religious element required by section 93Z could not be proven,” they said. NSW police did not address why charges weren’t pursued under 93ZAA.

“Police have continued to communicate with the complainant and his legal representative throughout the court process,” a police spokesperson said.

Haskal’s defence lawyer, Declan Quinn, said: “It is up to the police as to how they frame their facts sheet and what allegations they put in there.”

Quinn said his client pleaded guilty “at the earliest opportunity and the police facts sheet was not negotiated in any way”.

“He pleaded guilty to it as the arresting officers had framed it,” the defence lawyer said.

The NSW attorney general, Michael Daley, said the incident had been dealt with independently by the courts. He added: “This kind of conduct is unacceptable and has no place in NSW.”

The NSW Greens justice spokesperson, Sue Higginson, said she was concerned police appeared to have decided that the alleged racial abuse “somehow wasn’t a relevant fact”.

“I just can’t understand how a cop could have looked at the video evidence … and decide that racism doesn’t rate a mention in the fact sheet detailing this assault.”