Palestinian Australian filmmaker Shamikh Badra, who alleged police attacked and racially abused him on a Sydney train after an anti-immigration march, is “shocked” that police charged his attacker with simple assault but not hate speech.
The attack in August, which Shamikh’s brother, Majid Badra, filmed on his phone and was also captured on CCTV, has raised questions about the NSW government’s controversial attempt to criminalize racial insults – and the lack of prosecution.
The Badra brothers – who had family members killed during the Gaza war and had recently reunited with their elderly mother – were verbally abused after the March for Australia rally. They allege that the confrontation began when Majid was asked to take off his Palestinian headscarf.
Nicholas Hascall, a 46-year-old man, was charged with simple assault against Shamikh in October. Hascall pleaded guilty in mid-November and received a 12-month conditional release order. No criminal convictions were recorded.
Shamikh said this week he was “surprised” to learn that police did not pursue additional charges.
“They did not include racist insults or targeting me and my brother as Palestinians.”
Agreed facts state that Shamikh and Majid entered a train at Sydney’s Town Hall station at about 2.43pm on Sunday 31 August, after attending a separate pro-Palestine rally in the city.
Police say Haskell boarded the train at Central Station “after attending a March for Australia rally” and sat a few meters apart.
About two minutes later, an “argument” occurred.
The facts state that as matters became “more heated,” Haskell 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 Majid.
The facts state that “as the conversation escalated”, Majid took out his mobile phone and started making videos.
Police say Haskal attacked Majid “due to his desire not to show the film”, tried to snatch the mobile phone and “in doing so struck the victim (Shamikh) on his right hand”.
The facts state that after the train stopped at Macdonaldtown there was “a short physical confrontation” before the parties separated.
A second verbal altercation ensued, during which Hascall pushed Shamikh, “and the victim (Shamikh) kicked at the accused to hold him back,” the document states.
After this all three people got out of the train.
The agreed facts do not reference any allegations of racist abuse by the men or what Badras says was the reason for the argument – Majid was asked to remove his keffiyeh.
Shamikh alleges Majid was told: “If you want to fight for Palestine, go back there.” This comment was not captured in the mobile phone footage.
The facts cited are that the incident was captured on mobile phone and CCTV. In Majid’s footage, seen by Guardian Australia, the verbal abuse appears to escalate as the brothers are confronted by a group of men.
Haskell says, “Get out of here. We don’t like you in our country. We don’t want you in our country.” “We don’t want you here. Fuck you.”
Hascall, in another clip, says, “This is Australia, you love getting free money, you fucking loser cunt,” while Shamikh yells “racist” and “free Palestine” as the brothers retreat towards the train doors.
Shamikh said he and his brother went to Canterbury Police Station that day and gave a statement. Majid later provided mobile phone footage.
The agreed facts state that Haskell 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 inform him that a man had been charged with simple assault. He was advised that the case would be heard “in November” and that he would be updated “when that happens.”
He said police called him after Haskell’s only court appearance to advise him that the 46-year-old man had pleaded guilty. He said a request to contact the police prosecutor remained unanswered.
The brothers’ lawyer, Nick Hanna, said police communication was “unsatisfactory”. The fact that the Badras were not told why charges were not filed in relation to the alleged racial abuse added to their distress.
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“We are not aware of any evidence that police have found during their investigation,” Hanna told Guardian Australia.
“There may be a reasonable explanation for this, but both Badr and the public deserve to know what it is.”
Hanna said police told him they had sought legal advice about whether additional charges could be filed.
University of Sydney law expert Professor Simon Rice said the relevant provisions of NSW’s Crimes Act – section 93Z, which covers inciting violence based on race, and section 93ZAA, which covers incitement to hatred – must be proven beyond reasonable doubt.
Rice said that 93ZAA does not necessarily cover conduct that is itself hateful. Critics of the crime, which came into effect just before the train attack, have accused the Minns government of ignoring its 2024 review of hate speech.
That report argued that such laws would “bring inaccuracy and subjectivity into the criminal law”.
In the absence of a declared intent to incite hatred, “it must be inferred from what has been said and done,” Rice said this week. The academic said, it is not clear from Majid’s video that the accused had any such intention.
Rice said her intention to participate in the anti-immigration march could be considered by the court during any discussions.
“What we really need is a court decision that dictates how this provision works,” he said.
“We’ll only get that case if the police charge someone. (But) I can understand why they thought it wasn’t the best case to prosecute.”
Asked why hate speech charges were not laid in Shamikh’s case, a NSW Police spokesperson said that under section 93Z the threat of violence is required to be directly linked to a person’s protected characteristic, including race or religion.
“In relation to this case, the racial/religious element required for section 93Z could not be proven,” he said. NSW Police did not explain why charges under 93ZAA were not pursued.
A police spokesperson said, “Police have continued to communicate with the complainant and her legal representative throughout the court process.”
Hascall’s defense lawyer Declan Quinn said: “It’s up to the police how they prepare their fact sheet and what allegations they make there.”
Quinn said his client “pleaded guilty at the earliest opportunity and was not negotiated in any way on the police fact sheet”.
“He confessed to his crime because the arresting officers had implicated him,” the defense lawyer said.
The NSW Attorney General, Michael Daly, said the incident was dealt with independently by the courts. He said: “This type of conduct is unacceptable and has no place in NSW.”
NSW Greens justice spokeswoman, Sue Higginson, said she was concerned that police had decided that the alleged racial abuse was “not in any way a relevant fact”.
“I simply cannot understand how a policeman can look at video evidence… and decide that racism does not merit mention in the fact sheet detailing this attack.”
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