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Supreme Court 22 June 2004

REGINA v. KHAZAL

[2004] NSWSC 548

Public order & justice offences
CRIMINAL LAW BAIL S.8A BAIL ACT ONUS ON APPLICANT APPLICATION OF S.32(6)

Citation: Regina v Khazal [2004] NSWSC 548
Court: Supreme Court of New South Wales (Common Law Division)
Date: 22 June 2004
Judge(s): Greg James J

Background

The accused was charged with collecting or making a document connected with preparation for, or assistance in, a terrorist act, contrary to s 101.5 of the Criminal Code Act (Cth), an offence carrying a maximum penalty of 15 years' imprisonment. A magistrate at the Central Local Court had initially granted bail, with a second magistrate later varying the conditions. The bail conditions included residence at a specified address in Lakemba, reporting obligations to police, a $10,000 surety and forfeit undertaking, and a prohibition on approaching international departure points or applying for travel documents.

The Commonwealth Director of Public Prosecutions applied under s 45 of the Bail Act 1978 to review the grant of bail. Because the review proceeded as a fresh hearing before the Supreme Court, and because s 8A of the Bail Act had been amended after the magistrates' decisions, the accused faced a reversed onus that had not applied at the earlier stages.

  • Whether the accused could satisfy the reversed onus under the amended s 8A of the Bail Act 1978, which required him to demonstrate that bail should not be refused
  • What standard that onus imposed, given the seriousness of the particular offence charged
  • How broadly the court could consider relevant material under s 32(6) for offences caught by s 8A, compared with the more limited considerations that apply for ordinary offences under s 32
  • Whether proffered bail conditions could be taken into account when assessing whether the accused had discharged the burden under s 8A
  • Whether documentary material concerning alleged foreign proceedings against the accused was admissible and, if so, for what purpose

Decision

Greg James J confirmed that the NSW Bail Act 1978 governs bail applications for Commonwealth offences charged in New South Wales, by operation of the Commonwealth Constitution and the Judiciary Act 1903 (Cth). Section 8A, as amended, placed the onus on the accused to satisfy the court that bail should not be refused. This was a higher burden than had applied before the magistrates, and the court treated the hearing as entirely fresh.

The court held that s 32(6) applies to offences caught by s 8A, and that its effect is to permit the court to consider any matter accepted as relevant to whether bail should not be refused, going beyond the more confined list of matters that the word "only" in s 32 would otherwise allow. Crucially, the court accepted that the proffered bail conditions tendered by the accused could be taken into account when assessing whether he had discharged his burden. Both parties accepted this approach.

Regarding two documents referencing alleged proceedings before a Beirut military tribunal, including assertions that the accused had been sentenced in absentia for 10 years with hard labour and described as a "chief financier," the court treated these with considerable caution. Neither document carried reliable evidentiary support, and the court limited its consideration of them to providing some context for the nature of the Australian charge, no further.

Greg James J concluded that the accused had satisfied the reversed onus. The court found no particular flight risk and no particular risk of harm to any individual or the community. The court also observed that the general flight risk arising from the prospect of conviction and sentence did not approach the seriousness of other crimes to which s 8A had previously applied. The proffered bail conditions, taken together, were sufficient to overcome the burden the accused faced under s 8A.

Orders Made

  • Bail granted to the accused on the existing terms, which continued over the adjournment
  • Matter adjourned to 24 June 2004

Key Takeaways

  • Under the amended s 8A of the Bail Act 1978, an accused charged with a terrorism-related offence must satisfy the court that bail should not be refused, reversing the usual onus and requiring the court to conduct a fresh assessment regardless of any earlier bail grant.
  • The standard imposed by this reversed onus is not fixed: the court's reasoning indicated that its weight varies with the seriousness of the particular offence, including by reference to the statutory maximum penalty and the likely sentence.
  • Section 32(6) of the Bail Act 1978 operates to expand the range of matters a court may consider for s 8A offences beyond the confined criteria that ordinarily apply under s 32, allowing consideration of any matter accepted as relevant to whether bail should not be refused.
  • Proffered bail conditions, offered by the accused as undertakings, can constitute relevant material under s 32(6) and may assist an accused in discharging the reversed onus.
  • Unsupported documentary material, such as foreign intelligence-style reports lacking identified authorship or evidentiary foundation, may be received only for strictly limited purposes, and the Supreme Court here confined its consideration of such material to contextual background only.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 8A, 32, 32(6), 36, 45
- Criminal Code Act 1995 (Cth), ss 100.1, 101.5, 101.5(5)
- Commonwealth Constitution
- Judiciary Act 1903 (Cth)

Cases cited: None cited in the judgment.