AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 14 October 2016

Lelikan v Director of Public Prosecutions (Cth)

[2016] NSWSC 1467

Public order & justice offences
RELEASE APPLICATION THREATS IN CUSTODY NO THREAT TO THE AUSTRALIAN COMMUNITY RELEASE APPLICATION GRANTED

Citation: Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467
Court: Supreme Court of New South Wales
Date: 14 October 2016
Judge(s): N Adams J

Background

The applicant, an Australian citizen of Kurdish background and a journalist by occupation, was charged with being a member of the Kurdistan Workers' Party (PKK), a proscribed terrorist organisation under the Criminal Code 1995 (Cth), over a period spanning December 2005 to October 2015. He had been in custody on remand since his arrest on 20 July 2016. The maximum penalty for the offence is ten years' imprisonment.

The applicant had a significant history connected to the PKK. He arrived in Australia in 1997, declared PKK sympathies in his asylum application, was arrested in France in 2007 on PKK-related terrorism charges, and twice fled France while on bail before spending years in northern Iraq. He returned to Australia in October 2015 after the Australian Government issued him a limited travel document and the AFP assisted in his repatriation. He remained in the community for approximately nine months before being arrested and charged.

The prosecution case rested on expert evidence, AFP internet inquiries revealing images of the applicant in HPG (the PKK's military wing) uniform and carrying weapons, articles allegedly written by him on pro-PKK websites, and accounts from two Danish journalists who met him at a PKK gathering in northern Iraq in 2013. A facial forensic examiner concluded that images of the applicant in HPG uniform depicted the same person as known photographs of him.

Legal Issues

  • Whether the applicant had established, on the balance of probabilities, that "exceptional circumstances" existed under section 15AA of the Crimes Act 1914 (Cth) to justify the grant of bail, overcoming the statutory presumption against bail for terrorism offences
  • If exceptional circumstances were established, whether any bail concerns under section 17 of the Bail Act 2013 (NSW), specifically the risk of failure to appear and interference with witnesses, amounted to "unacceptable risks" requiring refusal of bail under section 19 of that Act

Decision

Issue 1: Exceptional circumstances under section 15AA of the Crimes Act 1914 (Cth)

The court confirmed that the concept of exceptional circumstances is flexible and may be constituted by a combination of matters that together render the case exceptional, requiring the applicant to show something "out of the ordinary" about his situation (at [72]). The applicant relied on eight factors in combination: the absence of any evidence that he posed a threat to Australia; the distinctive nature of the PKK compared with other proscribed organisations; the Australian Government's active role in facilitating his return; his strong family and community ties in Australia; anticipated significant delay before trial; the character of the prosecution case; the onerous and unusual conditions of his custody; and the availability of conditions to mitigate any unacceptable risks (at [73]).

The court found the CDPP's express concession that the applicant posed no risk to the Australian community to be highly significant, describing such a concession as "out of the ordinary" in terrorism bail applications (at [74]). The court also found the circumstances of his custody to be unusual: he was held at Goulburn Supermax in high-security segregation not because he himself posed a risk to others, but because ISIS-sympathising inmates had threatened him, and Corrective Services could not safely house him elsewhere (at [81]-[83]). The court accepted that these matters, taken together with the other factors raised, established exceptional circumstances (at [87]).

Issue 2: Whether bail concerns amounted to unacceptable risks

The CDPP pressed two bail concerns: risk of failure to appear and risk of interference with witnesses or evidence. On the witness interference concern, the court found that no specific evidence or submissions supported it, and a standard non-contact condition would address any theoretical risk (at [90]).

On the flight risk, the court acknowledged a proper basis for concern given the applicant's two breaches of bail in France and his decade spent abroad (at [92]). However, the court was satisfied that the risk did not rise to an unacceptable level having regard to the combination of significant sureties (including a $2 million property offer from members of the Australian Kurdish community), the applicant's strong ties to Australia through family and community, the improbability that a person who sought governmental assistance to return to Australia would then flee again, the nine months he spent in the community without incident before his arrest, and the fact that the maximum penalty of ten years' imprisonment, while serious, did not involve the prospect of life imprisonment (at [94]-[99]). Strict bail conditions were to be imposed.

Orders Made

  • The release application is granted.

Key Takeaways

  • Under section 15AA of the Crimes Act 1914 (Cth), a terrorism accused must establish exceptional circumstances on the balance of probabilities before bail falls to be assessed under the ordinary Bail Act framework; the threshold is demanding but the concept is flexible, capable of being satisfied by a combination of factors that together render the case "out of the ordinary" (at [72], [87]).

  • The Supreme Court held that the CDPP's express concession that an accused poses no risk to the Australian community is a particularly significant factor in establishing exceptional circumstances, with Adams J observing that no prior bail decision involving a terrorism suspect had featured such a concession from the prosecution (at [74], [78]).

  • Onerous custody conditions can contribute to a finding of exceptional circumstances even where those conditions arise from the nature of the charge rather than from any personal risk the accused poses; here, the applicant's high-security classification resulted from threats by ISIS-sympathising inmates, not from any assessed danger he himself presented to others (at [81]-[83]).

  • A history of fleeing bail in another jurisdiction is a proper basis for a flight-risk concern, but does not automatically produce an unacceptable risk finding where substantial sureties, strong domestic ties, and other countervailing factors are present and strict conditions are available to address the concern (at [92]-[99]).

  • Once an organisation is declared a terrorist organisation under Australian law, the motives of its alleged members are irrelevant to the determination of any charge; however, the court confirmed that the nature of a particular proscribed organisation may remain relevant to bail considerations, including the assessment of risk to the community and the circumstances of an accused's custody (at [82]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW) ss 17, 19 Bail Act 1978 s 9C Crimes Act 1914 (Cth) ss 3,15AA(1) (2)(a) Criminal Code Act 1995 (Cth) s 102.3

Cases
- R v NK [2016] NSWSC 498 R v Shoe Hammoud v DPP [2006] VSC 516 Haddara v DPP (Cth) [2006] VSC 8 R v Khaled Cheikho, Studdert J, NSWSC, unrep, 15.5.06 AB v R [2016] NSWCCA 191 Vinayagamoorthy & Anor v DPP (Cth) [2007] VSC 265 R v Mulahalilovic, Rothman J, NSWSC, unrep, 1.8.06 Raad v DPP [2008] VSC 330 R v Young [2006] NSWSC 1499 R v Hantis [2004] NSWSC 153