Sheik Man Haron Monis. Picture: Stephen Cooper Source: The Daily Telegraph

THREE of Australia's top judges believe a radical Muslim cleric had a legal right to send offensive letters to the families of dead Australian soldiers.

In a major freedom-of-speech case that split the High Court, Chief Justice Robert French, Justice Kenneth Hayne and Justice Dyson Heydon yesterday upheld the appeal of Sheik Man Haron Monis because they agreed a section of the Criminal Code contradicted the constitution.

But Sheik Haron and an alleged helper lost their bid to have a raft of criminal charges thrown out because Justice Susan Crennan, Justice Susan Kiefel and Justice Virginia Bell ruled the opposite and dismissed their appeal.

The 3-3 tie meant the original NSW Court of Criminal Appeal decision was affirmed.

RSL Australia and relatives of the diggers yesterday welcomed the outcome, but suggested the Criminal Code be clarified given the differing legal opinions.

"I certainly welcome the result. They should not be allowed to bypass the justice system," said Felix Sher, who allegedly received letters before his son Private Gregory Sher's funeral in 2009.

Sheik Haron launched the appeal after being charged with 12 counts of using a postal or similar service in a menacing, harassing and offensive way between 2007 and 2009.

His co-accused, Amirah Droudis, also appealed after being charged with eight counts of aiding and abetting.

The appeal was based on their claim that the Criminal Code section was invalid because it was inconsistent with the implied constitutional freedom of political communication.

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Is freedom of speech a licence to hate?