In re TCAA 3 and Criminal Code 51 2026 SDCR 33
In re TCAA 3 and Criminal Code 51 (Remanded) [2026] SDCR 43
| Date of judgment | 23rd April 2026 |
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| Ruling | 3-0 |
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REMANDED MAJORITY OPINION Per Curiam
Introduction
[1] This case is a Judicial Review of Article 3 of the Terrorist Connected Accounts Act (hereinafter “TCAA”) and against Article 51 of the Criminal Code 2020. Because Article 3 of the TCAA created and effectuated Article 51 of the Criminal Code, we treat the two as one provision-at-issue.
[2] We do not know what specifically Appellant Lucas (hereinafter "Appellant") wished to appeal—except that such provisions-at-issue allegedly violated the right to fair hearing, as enumerated in Article 21 of the Constitution. However, we may take judicial notice of prior proceedings privy in both party and subject matter, an argumentation for [2026] SDCR 33. In such argumentation, Appellant protested Crim Code 2020 Article 51, § 1.1, which relevantly stated:
Where it is proved, on a balance of probabilities, that a person is a member of a terrorist organization under the Terrorist Connection Accounts Act, Article 2 , it is presumed, until the contrary is proved, that the person is a supporter of said organization under the Terrorist Connection Accounts Act, Article 2.
Mootness
[3] Despite this petition, though, on 12 April 2026, the Senate passed the Minor Criminal Code, CPA and other law fixes Amendment. This repealed Criminal Code 2020 Article 51, § 1.1—the very statute at issue. Thus, there is nothing for the pleadings to object to, and the matter is moot. It makes no sense—policy or otherwise—to disrupt the judicial economy with matters moot. Given the fact, then, that we cannot ascertain any other contention levied by Appellant in this controversy, we must turn back to that “esoteric yet providentially applicable axiom: one cannot do what they cannot do.” Appeal of Non-Prosecution Agreement in SD v. Mythrows, [2026] Crim 21, [2026] SDCR 45, [14].
Verdict
[4] This matter is dismissed for mootness.
In re Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code [2026] SDCR 33
This matter has been repealed, voided, or is otherwise out of date
Quashed by the Supreme Court: In re TCAA 3 and Criminal Code 51 2026 SDSC 12, and dismissed as moot on remand. See the remanded decision above.
| Date of judgment | 31st March 2026 |
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| Ruling | 2-1 |
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MAJORITY OPINION by Judge Notcommunist366
(With Chief Judge Brandmal dissenting and Judge Zepz concurring)
Introduction
[1] The Petitioner is seeking that both Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code be struck down and ruled unconstitutional because they violate the right to fair hearing.
Summary of the petition
[2] The Petitioner makes a few key arguments on why, in their view, both Article 3 of the Terrorist Connected Accounts Act and Article 51 of the Criminal Code are both unconstitutional.
[3] First, the petitioner makes the argument that both sections in question violate Article 21, §2 of the Constitution because the balance of probabilities burden of proof does not “prove” that someone accused of Terrorist Conspiracy is not proven beyond reasonable doubt.
[4] Second, the petitioner argues that the second and third test for permissible infringement set in In re Fair Use of Alternate Accounts Act 2025 [2026] SDSC 1 is not met.
Summary of the response
[5] The respondent makes one key claim, that rebuttable presumptions proving one element of a crime ought to be upheld as constitutional, citing Former Judge ppatpat’s reasoning in his concurrence in Dominax273 (Appellant) v SD (Respondent) 2025 SDCR 1.
Considerations
[6] First of all, the court must consider if the burden of proof in trial itself is actually lowered to balance of probabilities, like the appellant has claimed.
[7] To this point, the court finds that the appellant has made a critical error in understanding what the sections they are challenging actually actually lowering the burden of proof of the trial itself.
[8] The article in Article 51 of the Criminal Code, as well as Article 3 of the Terrorist Connected Accounts Act which both mention balance of probabilities read as follows
“§1.1. Where it is proved, on a balance of probabilities, that a person is a member of a terrorist organization under the Terrorist Connection Accounts Act, Article 2, it is presumed, until the contrary is proved, that the person is a supporter of said organization under the Terrorist Connection Accounts Act, Article 2.”
[9] The appellant's main claim throughout his petition is that the actual burden of proof in the trial itself is lowered, but in actuality, only an element of the crime is lowered to being proven on balance. The court sees no conflict between the burden of proof in the criminal trial, and the burden of proof for one element of the crime itself.
[10] Furthermore, the section itself does not even say that on balance guilt is found, the section in question specifically states that a rebuttable presumption that one is a supporter of a terrorist organization is made if it is proven that they are a member of said terrorist organization.
[11] Rebuttable presumptions, in the court’s view, are constitutional, and fundamental differences between burden of proof and rebuttable presumptions exist that this court ought to address.
- [11.1] There is a key difference between the burden of production, that can shift to the defendant in specific circumstances, and the burden of persuasion, which is always on the prosecution to fulfill.
- [11.2] Article 2 of the Criminal Code governs all burden of proof in all criminal prosecution, including in cases involving terrorist conspiracy. After this, Article 2 §3 explicitly mentions how rebuttable presumptions shall be believed to be true, saying they may be rebutted on balance of probabilities.
- [11.3] Fundamentally, if someone is a member of a terrorist organisation, they are extremely likely to support and assist the activities of said terrorist group. The prosecution proving the action of being in a terrorist organisation allows the court to assume that the person who was proved to be a terrorist did actions to assist the terrorist group they are a part of. The defence has ample opportunity, and indeed the duty, to give any defence they have against the presumption.
- [11.3.1] To put it to an analogy, the rebuttable presumption is essentially the court assuming that someone who is a card carrying member of a political party votes for the party they are a card carrying member of.
- [11.4] If the defence then provides evidence to the contrary, enough to rebut the presumption, the prosecution would then be forced to prove beyond reasonable doubt that the accused was supporting the actions taken by the terrorist organisation, as is mandated under §2.1 of the Criminal Code.
[12] Fundamentally, being a member of a terrorist organisation is to offer your support and aid to said terrorist organisation. Thus, a presumption that one is supporting a terrorist organisation they are a part of is not unreasonable, but in fact is nigh unreasonable to deny.
- [12.1] Although it is almost unreasonable that one could be a member of a terrorist organisation without supporting said organisation, the fact remains that it is a rebuttable presumption. It is not an automatic conviction, and the prosecution still ultimately must prove all elements of the crime they are pursuing beyond a reasonable doubt, as is mandated in Article 2 of the Criminal Code.
[13] To take the appellant's arguments as factual would be to ignore the fundamental difference between the burden of production and burden of persuasion, and to call all rebuttable presumptions “changing the burden of proof.” The court summarily rejects this reasoning.
- [13.1] Furthermore, rebuttable presumptions were implicitly affirmed in Dominax273 (Appellant) v SD (Respondent) [2025] SDCR 1, when the court found no constitutional issues with rebuttable presumptions. This court finds itself in agreement with the court of Dominax273 in regards to rebuttable presumption.
[14] Next, the court needs to address the elephant in the room, one that neither the petitioner nor respondent has brought up. That Article 51, Division 1 of the Criminal Code has multiple different criteria to determine guilt.
[15] My interpretation, and indeed the consensus of the majority of the court itself, is that to convict for terrorist conspiracy, the state must prove that the accused has committed Terrorism Against the Individual, and membership in a terrorist organisation, as well as being a supporter of said terrorist organisation. There are several reasons for this.
- [15.1] First of all, Division 1 of the Criminal Code states
“A person engages in terrorist conspiracy if they commit terrorism against the individual as described in the Terrorist Connection Accounts Act, Article 1: Terrorism Against The Individual, is a member and supporter of a terrorist organization as described in the Terrorist Connection Accounts Act, Article 2: Terrorist Organization, 'or meets the standards for committing terrorism or being a terrorist under any other law.”
- [15.2] Given the existence of the multiple or’s within this sentence, it is clear that the article itself separates independent reasons for conviction by or. That alone shows that to convict based on Division 1 of Terrorist Conspiracy, there are multiple criteria, namely Engaging in Terrorism against the Individual as defined in Article 1 of TCAA and being both a member and supporter of a terrorist organisation as defined by Article 2 of TCAA, or meeting the standards for terrorism or being a terrorist under any other law. This alone is enough reasoning, but there is more.
- [15.3] Furthermore, if each article of Division 1 of Terrorist Conspiracy was independent, the law would be completely redundant, given the fact that there would be no reason to charge with either terrorism against the individual, or being a member and supporter of a terrorist organisation
- [15.3.1] For terrorism against the individual, there would be absolutely no reason to not charge for the specific crimes listed as terrorism against the individual, instead of charging for terrorist conspiracy itself
- [15.3.2] For article 2 of terrorist conspiracy, it would be completely redundant alone, considering that Division 2 of terrorist conspiracy has membership within a terrorist organisation, association with a terrorist organisation, and material support of a terrorist organisation all independently illegal.
- [15.3.2.1] Thus, with proving both Terrorism against the individual, as well as membership and support of a terrorist organisation, there exists a happy balance. If one committed an offense only fitting the definition of terrorism against the individual, the state should charge under the statute that fits the defendant’s actions best, as is said in Article 3, §1 and §3 of the Criminal Code. The same is true for membership and support of a terrorist organisation. Therefore, the natural solution would be that both are required to convict on the basis of terrorist conspiracy, or else all prosecutions attempting to charge under one criteria instead of both would end only in mistrial.
[16] Given the fact that the actual burden of proof in the trial itself is not lowered, instead only being lowered for the rebuttable presumption for one element of the crime, the appellants' arguments do not stand in regards to Article 21, §2 of the Constitution.
[17] Finally, I will address the petitioner made answering a question from my colleague, that Division 2 of Terrorist Conspiracy is unconstitutional because it allows courts on balance of probabilities to determine if organisations have been "directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of any of the Designated Crimes…”
[18] First, the court flatly rejects the premise that this, in the words of the appellant, “...strip(s) people of their rights to organize without justification.”
[19] The right to association has a key provision that critically damages the appellant's logic here.
“...the Legislature may impose such restrictions on the freedom of association as may be necessary or expedient in the interest of the security of SimDemocracy and its citizens.”
[20] The use of expedient is key for determining the constitutionality of restrictions on association. Expedient is defined by Cambridge Dictionary as “helpful or useful in a particular situation, but sometimes not morally acceptable.”
[21] This clearly creates permissible infringement on the right to association, essentially stating that the state may restrict freedom of association if it is helpful in the interests regarding the security of the state and its people.
[22] This creates an incredibly broad exception on freedom of association. Essentially, any infringement of the right to association by the legislative branch must either be necessary for the interest of security of SimDemocracy or its citizens, or be helpful in its interests regarding security of SimDemocracy and its people.
[23] Fundamentally, the section in question that the appellant brings up effectively only says that a court can, on balance of probabilities, find that a new organization is a previously proscribed organization.
[24] It would indeed be helpful in the interests regarding security of SimDemocracy if the courts could, as this legislation allows, act quickly in finding a new organization, which is effectively a proxy for the previously proscribed organization, to be proscribed without having to go through the processes listed in §1.2 (a) or (b).
[25] Essentially, this is similar to the rebuttable presumption, mentioned previously in the verdict. Rebuttable presumptions aren't unconstitutional, and neither is this.
[26] Thus, under the standard for permissible infringement set out in Article 18, §1 of the Constitution, this fits said standard and is thus constitutional.
[27] Furthermore, this matter is also both judicial and executive in nature, given the fact that proscription of an organization can occur in either (a) through the courts or (b) through the executive branch.
[28] The Supreme Court in In re EO 139-07 [2025] SDSC 19 found that executive proscription of terrorist organisations was constitutional, and no concerns of right to association were brought up by the court in said case.
- [28.1] Furthermore, part of Division 2 of Terrorist Conspiracy was found constitutional in In re Article 51, Division 2, Subdivision 4 of the Criminal Code 2020 [2025] SDCR 30. With regard to Ref re Stare Decisis in the Court of Review [2026] SDSC 8, this panel is not empowered to overturn this verdict, even if indirectly.
[29] Clearly, if the executive can, without proving anything in a court of law, proscribe an organization, then a court can find that an organization is simply a proxy for another proscribed organization on balance of probabilities.
Verdict
[30] Article 3 of the Terrorist Connected Accounts Act, and Article 51 of the Criminal Code 2020, are both constitutional and upheld.
Post Script
[31] I did not address the appellants second point in regards to permissible infringement, as the provisions in question were found constitutional and thus, there is no infringement to be permissible or non-permissible.
CONCURRING OPINION by Judge Zepz367
[A1] Whilst I agree with Judge Notcom regarding some of the reasoning, I feel I must also explain my point little further and address Judge Brandmal’s dissent
[A2] Alongside the 2 “or”s, and the fact that terrorism against the individual is just ordinary crimes, similar language in the rest of our criminal code leads me to believe that the original author meant that terrorism against the individual was a needed element of the crime of terrorist conspiracy.
[A2.1] Language used in Art. 51 Division 1 §1. is listed. The elements are all listed one after another which show exactly how a crime is committed, there is no “or” in between to differentiate different ways to commit terrorist conspiracy. A perfect example of how “or” is used in our statutes is Article 21 of the Criminal Code, which states:
“§1. A person who intentionally disobeys a lawful judgement or order of a court, or breaches any undertaking or legal obligation to a court, or acts in a manner that disrupts judicial proceedings or prejudices the administration of justice, commits contempt of court.”
[A2.2] As we can see here, “or” is used to differentiate different ways to commit a crime. Why wouldn’t this same choice of formatting be applied to Article 51? Especially when it’s the same statute and when there are 2 “or”s that are in Division 1 §1. already. Article 24 is another great example of how “or”s are used within the statute of SimDemocracy. As already mentioned in the majority opinion, Terorrism Against the Individual comprises a list of crimes in the criminal code. What would be the purpose of charging terrorist conspiracy on the basis of committing just terorrism against the individual? I fail to see the purpose.
[A3] Thus, for the reasons above I concur.
DISSENTING OPINION by Chief Judge Brandmal
[D1] I write separately to express my almost full dissent with the majority. I have much to say, but I hate yap, so I will keep it as short as possible.
[D2] The majority errs when it says that not all elements of Art. 51 Division 1 of the Criminal Code 2020 needs to be proven on the balance of probability only. There firstly is the question on whether somebody needs to have committed terrorism against the individual to be convicted under this section. The majority argues that due to the two “or”s and the second division, where membership alone suffices, that such terrorism is indeed required. I am not convinced by this argument.
- [D2.1] Firstly, the existence of two “or”s make it likely the original author merely forgot the third or. This is not a case of “legislating from the bench”, but rather a question on how the sentence is to be interpreted, as it is linguistically not perfectly clear. Additionally, an “and” was added between member and supporter, making it even more likely that for the commas, an or should suffice.
- [D2.2] That the Terrorist Connected Account Act did not want to criminalise accounts that are “merely” connected, through support, with terrorists, seems far stretched.
- [D2.3] The comparison with Division 2 fails due to historic analysis. Division 2 was later added by the Terrorist Organizations (Prevention) Act 2025, by a different author even. That the senate had a deep system in mind seems unlikely.
- [D2.4] Lastly, it appears highly unlikely that the act only wanted to criminalise acts like doxxing where the offender knowingly attempts to or causes real-life harm to an individual, group of individuals, SimDemocracy population at large, or members of any national institutions of SimDemocracy, or causes exceptional harm to public safety (see the definition in the TCAA). The majority says the membership and supporter qualifiers must be additional criteria, however they miss that there are crimes listed as terrorism against the individual that have a much lesser maximum sentence than the offenses under Division 1 Art. 51. The TCAA therefore leads to these crimes being heavier penalised than they would be without the additional qualifiers in Art. 1 TCAA. Hence, the purpose of Division 1 Art. 51 Criminal Code can be explained through this analysis as well.
[D3] All of this in mind, only membership and being a supporter of a Proscribed Organisation suffices to be convicted for Division 1 of Art. 51 CC. While membership can expressly be proven on the balance of probabilities, the majority argues that being a supporter is merely a rebuttable presumption. However, under Art. 2 §3. CC a rebuttable presumption is to be taken to be correct, unless the defense disproves it on the balance of probabilities, so effectively, the defense has to prove that something is more likely than something else, which is even harder than the prosecution having to prove something on the balance of probabilities.
- [D3.1] The Supreme Court has expressed its doubt regarding the constitutionality of such criminal statutes in [49] of In re Fair Use of Alternate Accounts Act 2025 [2026] SDSC 1. The argument circles around Art. 21 §2. of the Constitution which reads: “§2. Every person charged with a criminal offense shall be presumed innocent until proven guilty.”. The question is, whether this provision forces a certain standard of proof. The Criminal Code allows for a lesser burden of proof generally, but such statutory definitions cannot define the Constitution itself (although I believe in some instances they can, but this is not the place for that discussion). As a non-native speaker, I will turn to the trusty Black's Law Dictionary (2nd Ed.) to define “prove”: “To establish a fact or hypothesis as true by satisfactory and sufficient evidence”. Uncertainty remains regarding what is sufficient evidence. At this point one could defer to the Criminal Code, but instead of starting this discussion it may seem more prudent to refer to SimDem history. Criminal Law has a long standing tradition in SimDem and as such certain elements can be considered to be part of a genuine SimDem Common Law.
- [D3.2] Beyond reasonable doubt is a standard almost as old as our criminal law (see SD v xMikee [2020] Crim 1 [20]), as well as real Criminal Law (it pains me to quote the f*cking House of Lords Woolmington v DPP (1935)). If one was to ask any person of sound mind and with some experience what the sufficient standard for a criminal conviction is, beyond reasonable doubt would surely be the answer. That does not mean that all rebuttable presumptions are unconstitutional, since some elements do indeed follow from others (see also Tie (Appellant) v SD (Respondent) [2025] SDCR 37 [4] - [7]). When Judges are allowed, at times, to assume things, when they are supported by sufficient incidental evidence, then the law must also be allowed to do the same. But as the majority found in that case, the incidental facts itself must be proven beyond reasonable doubt. The same can be extrapolated for the Criminal Code. After all, the Supreme Court in In re Fair Use of Alternate Accounts Act 2025 [2026] SDSC 1 also did not strike the law merely because there was any form of a rebuttable presumptions, but rather because of a Right to Liberty issue. The standard must therefore be: A majority of the objective acts required for guilt to be established must be proven beyond reasonable doubt, regardless of other statute. The Constitution demands “sufficient evidence” and that demand cannot be lifted by statutory law.
- [D3.3] Under this lens, both membership and support for the case of division 1 of Art. 51 can be proven either on the balance of probabilities or assumed as a rebuttable presumption. That leaves no objective act to be proven beyond reasonable doubt. The statute should have hence been found unconstitutional
[D4] The majority further supports its finding by pointing towards Judge Ppatpat's Concurrence in Dominax273 (Appellant) v SD (Respondent) [2025] SDCR 1. There he, without quoting it, tried to establish the Common Law difference of the burden of persuasion v. the burden of production. To me, this appears as a semantic attempt to weaken the position of the defense (for the rejection of such see Kaizen ex parte Guava (Appellant) v SD (Respondent) [2026] SDCR 23 [3] - [7]). By splitting the burden of proof into two categories that can only exist in the mind of a theoretician, but are far departed from how actually being a Judge works, the majority now also violated the fundamental command of In re Fair Use of Alternate Accounts Act 2025 [2026] SDSC 1 [42]:
“What must be understood is that this framework is about when the court should go against prevailing trends and allow a right to be violated— the default in such cases, by most estimations, should be the presumption that such violations are not allowed”
[D5] Effectively, the prosecution must prove that by 51% the defendant is a member of a Proscribed Organisation, then the Defense must either disprove that or argue that the rebuttable presumption of support is incorrect by proving it is more likely to be incorrect than correct (in effect: 49% likelihood suffice for a conviction). This is not to be explained away by vaguely gesturing at Common Law concepts. It is a real infringement on the Right to a Fair Hearing, where no justification can be presented (for this I refer to the excellent analysis on infringement of the petitioner).
[D6] When the majority miraculously sees a remaining “beyond reasonable doubt” due to the aforementioned semantic difference, they misstate reality. Such can be proven easily by reading Art. 2 §3. CC: “A rebuttable presumption is taken as true until proven false. It may be rebutted on the balance of probabilities, unless otherwise specified.”. This must, in the interest of textual integrity, be read as an exception to §1., otherwise one would have to, as the majority did, sweat bullets trying to explain how the beyond reasonable doubt standard is still respected. I especially doubt the applicability of Art. 2 §2.1. CC for rebuttable presumptions, seeing how §3. exists.
[D7] The majority also puts a duty on the defense to construct a case for them. That is incorrect. The defense can remain silent, and indeed has a Right to do so, and the prosecution would still have to make their case mostly beyond reasonable doubt. That is the inviolable foundation of modern criminal law.
[D8] For all of these reasons, and having the Rights of my fellow citizens in mind, I dissent.