Citation: AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042
Court: Supreme Court of New South Wales
Date: 29 July 2016
Judge(s): Beech-Jones J
Background
The applicant, referred to as AB, was a seventeen-year-old with diagnosed intellectual disability and Asperger's syndrome. In May and June 2016 he posted a series of statements on Facebook describing plans to carry out a knife attack on members of the public in Sydney's CBD, killing as many people as possible before taking his own life. Police deployed to the target locations arrested him at his home on 14 June 2016.
The Commonwealth Director of Public Prosecutions (CDPP) charged AB with two offences: doing an act in preparation for a terrorist act under s 101.6(1) of the Criminal Code Act 1995 (Cth), and using a telecommunications network with intention to commit a serious offence under s 474.14(2) of the same Act. Both charges carry a maximum penalty of life imprisonment. AB had been in custody from the date of his arrest and applied to the Supreme Court for bail.
The CDPP did not allege that AB acted in association with any extremist group or sought to advance any religious or political cause. Instead, it alleged he intended the attack as a statement about the mistreatment of people with mental illness.
Legal Issues
- Whether "exceptional circumstances" existed under s 15AA(1) of the Crimes Act 1914 (Cth) to displace the presumption against bail for a terrorism offence
- If exceptional circumstances were established, whether AB presented an unacceptable risk of committing a serious offence or endangering community safety under the Bail Act 2013 (NSW)
- Whether the proposed bail conditions, including a form of strict home detention, were sufficient to mitigate any identified risk
Decision
On exceptional circumstances: Beech-Jones J was satisfied that exceptional circumstances existed. The prosecution case was characterised as weak for two principal reasons. First, the weight of the evidence suggested it was unlikely that AB actually intended to carry out his threats. Second, and more significantly, the court considered the CDPP had minimal prospects of establishing that the planned attack was a "terrorist act," which requires proof of an intention to advance a political, religious, or ideological cause. The court noted AB's own statements that his motivation had nothing to do with terrorism and everything to do with his personal experiences of mistreatment. AB's youth and the mental fragility that would be aggravated by continued incarceration also contributed to the exceptional circumstances finding.
On unacceptable risk: Despite finding exceptional circumstances, the court refused bail. The form of attack described by AB in his posts, a spontaneous knife attack in a public space, could be carried out almost instantly with a readily available weapon, regardless of a curfew or house arrest condition. Even with his parents' genuine commitment to monitoring him, the court concluded that the risk of a nihilistic attack on members of the public could not be adequately addressed by the proposed conditions. The court acknowledged the relatively low likelihood of AB acting on his threats but found that the potential consequences, the killing of many people in a public place, were so catastrophic that the risk remained unacceptable.
On the broader picture: The court expressed clear discomfort with the outcome, observing that detaining a vulnerable young person on charges it considered weakly supported amounted in substance to preventative detention. The court noted that the CDPP had indicated the charges would be very carefully reviewed, and remarked that maintaining weak terrorism charges served primarily to extend AB's pre-trial custody and delay the therapeutic intervention he plainly needed. The court observed that such intervention was, in the medium to long term, far more likely to protect the community than continued detention.
Orders Made
- Bail refused.
Key Takeaways
- Under s 15AA(1) of the Crimes Act 1914 (Cth), a court must refuse bail for a terrorism offence unless "exceptional circumstances" are established; the weakness of the prosecution case, particularly on the element of ideological intent, and the vulnerability of the accused can together satisfy that threshold.
- A "terrorist act" under the Criminal Code Act 1995 (Cth) requires proof of intention to advance a political, religious, or ideological cause; where evidence of such intention is minimal or contradicted by the accused's own statements, the prosecution case on that element may be characterised as weak.
- Refusing bail on the basis of unacceptable risk does not require a finding that harm is probable; where the potential consequences of a threatened act are catastrophic, even a relatively low likelihood of that act occurring may render the risk unacceptable.
- The adequacy of proposed bail conditions must be assessed against the specific character of the threatened conduct; conditions amounting to house arrest were found insufficient where the threatened attack required no planning, no associates, and could be executed in under a minute.
- In dismissing the application, Beech-Jones J expressly flagged that detaining a vulnerable youth on weakly supported charges functions as preventative detention, and that therapeutic and community-based intervention is likely to offer greater long-term protection to the public than continued pre-trial custody.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Crimes Act 1914 (Cth), ss 3, 15AA(1)
- Criminal Code Act 1995 (Cth), ss 101.6(1), 474.14(2)
Cases:
- R v Ebrahimi [2015] NSWSC 335
- R v Hantis [2004] NSWSC 153
- R v Mulahalilovic (Supreme Court (NSW), Rothman J, 1 August 2006, unreported)
- R v NK [2016] NSWSC 498
- R v Xi [2015] NSWSC 1575