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Supreme Court 22 April 2016

R v NK

[2016] NSWSC 498

Public order & justice offences
CRIMINAL LAW APPLICATION FOR BAIL YOUTH OF THE APPLICANT

Citation: R v NK [2016] NSWSC 498
Court: Supreme Court of New South Wales
Date: 22 April 2016
Judge(s): Hall J

Background

The applicant, NK, was a 16-year-old girl charged under s 102.6(1) of the Criminal Code 1995 (Cth) with intentionally collecting funds for a terrorist organisation, namely Islamic State. The alleged offence occurred on 21 to 22 March 2016, and she was arrested on 24 March 2016. The maximum penalty for the offence is 25 years' imprisonment.

Bail was refused at Parramatta Children's Court on the day of arrest. The applicant then brought a fresh application before the Supreme Court, which the Crown opposed. A co-accused adult male faced separate proceedings, with a potential future joint trial anticipated to create further delay.

The applicant had no prior convictions, was an Australian-born citizen, and had always lived in New South Wales with her family. She was supported in her application by psychological evidence, affidavits from two aunts (one offering supervision, another offering a $500,000 surety), and a proposal to submit to electronic monitoring and strict residential conditions.

  • Whether the applicant could demonstrate "exceptional circumstances" justifying bail under s 15AA(1) of the Crimes Act 1914 (Cth), which creates a rebuttable presumption against bail for persons charged with terrorism offences
  • If exceptional circumstances were established, whether an unacceptable risk existed under ss 17 and 19 of the Bail Act 2013 (NSW) across the four bail concern categories (failure to appear, commission of a serious offence, endangering community safety, and interference with witnesses or evidence)
  • Whether proposed bail conditions could adequately address any identified bail concerns under s 20A of the Bail Act 2013

Decision

Hall J accepted that s 15AA(1) of the Crimes Act 1914 (Cth) applied because the charge under s 102.6 falls within Part 5.3 of the Criminal Code, making it a terrorism offence subject to the requirement to demonstrate exceptional circumstances. The Crown submitted that no such circumstances existed and that the prosecution case was strong.

His Honour found that the combination of factors present in this case did establish exceptional circumstances. Central to this conclusion was the applicant's age of 16 years and her particular vulnerability to adult influence or persuasion, factors that distinguished her situation from that of an adult accused in a similar position. The court also took into account her absence of any prior criminal history, her strong family ties within the community, and the psychological evidence that an extended period of pre-trial custody of 18 months to two years could cause significant harm to her mental health and her capacity to instruct legal counsel.

Having found exceptional circumstances, Hall J then assessed bail concerns under the Bail Act 2013. His Honour was satisfied that strict bail conditions, including electronic monitoring via an ankle bracelet, full-time supervision by her aunt, a substantial surety of $500,000, residence at her aunt's home, and conditions preventing any application for travel documents, could adequately address any unacceptable risk. The Court indicated it would grant bail on strict conditions, subject to hearing any further submissions from the parties on the precise formulation of those conditions.

Orders Made

• Grant bail to the applicant on strict conditions as proposed in paragraph 13.11 of the applicant's written submissions, subject to further submissions on conditions to be heard when the matter is relisted

Key Takeaways

  • Under s 15AA(1) of the Crimes Act 1914 (Cth), a bail authority cannot grant bail to a person charged with a terrorism offence unless the applicant demonstrates exceptional circumstances, a threshold that carries a heavy onus.
  • The Supreme Court held that the applicant's youth (aged 16) and her particular vulnerability to adult persuasion or influence, when combined with an absence of prior criminal history, strong family support, and significant psychological evidence of harm from prolonged pre-trial detention, were capable together of constituting exceptional circumstances.
  • Exceptional circumstances is not assessed by reference to a single factor in isolation; the court considered the combination of personal, psychological, and procedural factors before reaching its conclusion.
  • A robust package of bail conditions, including electronic monitoring, residential supervision by a family member, a substantial property surety, and travel document restrictions, was found sufficient to address any unacceptable risk under ss 17 and 19 of the Bail Act 2013.
  • The decision is fact-specific and turns on the particular characteristics of a young, first-time accused; it does not suggest that exceptional circumstances will readily be found in terrorism financing matters generally.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 20A, 31
- Bail Act 1978 (NSW)
- Crimes Act 1914 (Cth), s 15AA
- Criminal Code 1995 (Cth), s 102.6(1), Parts 5.3 and 5.5

Cases:
- Haddara v Commonwealth DPP [2006] VSC 8
- Hammoud v DPP [2006] VSC 516
- KT v R (2008) 182 A Crim R 571
- R v Hoang [2003] NSWCCA 380
- R v Maywand Osman 2015/12786, 12 February 2015
- R v Mulvihill [2013] NSWSC 1190
- R v Qutami [2001] NSWCCA 353
- R v Young [2006] NSWSC 1499