Citation: Regina (C'Wealth) v Baladjam & Ors [No 21] [2008] NSWSC 1446
Court: Supreme Court of New South Wales
Date: 29 May 2008
Judge(s): Whealy J
Background
One of the accused in a large-scale Commonwealth terrorism prosecution applied for bail while his trial's pre-trial applications were being determined. The accused had been in custody since his arrest in November 2005, facing a charge of conspiracy to do acts in preparation for a terrorist act under the Commonwealth Criminal Code. The maximum penalty for the offence is life imprisonment.
The basis for the bail application was compassionate: the accused's mother had suffered a major stroke on 23 May 2008 and was admitted to Bankstown Lidcombe Hospital. Her condition was complicated by severe aspiration pneumonia and her background of renal transplant and immunosuppressive therapy. Medical evidence before the court indicated her condition was "serious and critical with a likely poor outcome," and the defence put the position plainly, that without bail the accused would not see his mother alive again.
Separately, while the bail application was being prepared, the Department of Corrective Services independently arranged for the accused to make an escorted hospital visit to see his mother the evening before the hearing.
Legal Issues
- Whether the applicant had demonstrated "exceptional circumstances" sufficient to justify bail under s 15AA of the Crimes Act 1914 (Cth), which displaces the traditional presumption in favour of bail for persons charged with certain Commonwealth offences.
- Whether the prospect of a close relative's imminent death constitutes "exceptional circumstances" for the purposes of that provision.
Decision
Whealy J confirmed that s 15AA of the Crimes Act 1914 (Cth) places the onus squarely on the applicant to establish exceptional circumstances before bail can be considered. His Honour noted this represents a significant erosion of the traditional presumption in favour of bail for unconvicted persons. The Crown did not contest that its case against the applicant was a strong one, and no submission was made to the contrary.
Drawing on a line of authority from both Victorian and NSW courts, Whealy J accepted that "exceptional circumstances" is a flexible concept that may be constituted by a combination of factors considered together. However, his Honour found that the prospect of a close relative's death does not, in a general sense, amount to exceptional circumstances. Illness and death, the judgment observed, are part of the common human experience.
His Honour also took into account that the Department of Corrective Services had already facilitated an escorted visit for the accused to see his mother the previous evening. While acknowledging the considerable sympathy warranted by the applicant's situation, Whealy J held that this visit, and the circumstances overall, did not lift the case to the threshold of exceptional circumstances. The application was refused.
The judgment also touched briefly on whether the bail legislation could be interpreted to permit release specifically for compassionate visits to dying relatives. His Honour expressed reservations about such an interpretation, noting it was preferable for Corrective Services to retain discretion over such visits, though no final determination on the legislative construction was necessary.
Orders Made
- Bail refused.
Key Takeaways
- Under s 15AA of the Crimes Act 1914 (Cth), an accused charged with a Commonwealth terrorism offence must establish "exceptional circumstances" before bail can be granted, reversing the traditional presumption in favour of bail for unconvicted persons.
- The prospect of a close relative's imminent death does not, of itself, constitute exceptional circumstances for bail purposes. Whealy J characterised illness and death as part of the universal human experience, not circumstances that are genuinely exceptional.
- A combination of factors considered together can amount to exceptional circumstances, and the concept remains flexible. However, each application requires a case-by-case assessment.
- Where Corrective Services had already facilitated a compassionate visit, this was a relevant factor weighing against a finding that bail was necessary to address the compassionate concern raised.
- Whealy J expressed a preference for leaving decisions about compassionate visits to sick or dying relatives in the hands of the Department of Corrective Services, rather than treating bail as the mechanism to facilitate such access.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 15AA
- Criminal Code Act 1995 (Cth), ss 11.5 and 101.6
- Bail Act 1978 (NSW)
Cases:
- Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8 (Osborne J)
- The Queen v Cheikho, 15 May 2006 (Studdert J)
- The Queen v Jacobs [2008] NSWSC 417 (Rothman J)
- The Queen v Mulahalilovic, August 2006 (Rothman J)
- The Queen v Young [2006] NSWSC 1499 (Johnson J)