Citation: R v WE (No.9) [2019] NSWSC 1170
Court: Supreme Court of New South Wales
Date: 4 September 2019
Judge: Bellew J
Background
The applicant, a young man arrested in October 2016 at age 16, faced a charge of committing acts in preparation for a terrorist act. At his first trial in 2018, the jury was unable to reach a unanimous verdict. At his second trial in July 2019, the empanelled jury was discharged due to disharmony among its members. The Commonwealth Director of Public Prosecutions indicated it would present a further indictment, with a third trial expected sometime in the first half of 2020.
Against that backdrop, the applicant sought bail pending his third trial. The bail proposal included residing with his parents, a surety of approximately $700,000 secured against the unencumbered family home, and electronic monitoring amounting to a form of house arrest.
Legal Issues
- Whether the applicant had established "exceptional circumstances" under section 15AA of the Crimes Act 1914 (Cth), which creates a presumption against bail for terrorism offences.
- Whether, if exceptional circumstances were made out, the proposed conditions adequately mitigated the unacceptable risk of flight or the commission of a further serious offence, as required under the Bail Act 2013 (NSW).
- Whether the applicant's father could be regarded as an acceptable person to act as surety, given his conduct towards a key Crown witness.
Decision
Issue 1: Exceptional circumstances
The court held that exceptional circumstances must be affirmatively established by the applicant, and that the test sets a high hurdle (at [10]). Bellew J examined two grounds: the alleged weakness of the Crown case and the extent of the delay in bringing the matter to trial.
On the Crown case, the court declined to find it weak. Having presided over two trials, Bellew J saw no reason to depart from his earlier view that the Crown case is strong (at [50]). Drawing any inference from the second jury's discharge that it would not have reached a unanimous verdict required impermissible speculation (at [51]).
On delay, the court was satisfied that exceptional circumstances were established. Bellew J rejected the Crown's submission that delays of this magnitude are normal in terrorism cases, finding that a period of between 3.5 and 4 years in custody awaiting trial is not a common experience, particularly given the applicant's age as a teenager (at [52]). Exceptional circumstances were therefore made out (at [53]).
Issue 2: Unacceptable risk of flight and further offending
The court found that neither identified risk was adequately mitigated by the proposed conditions. Bellew J identified six reasons for this conclusion. The applicant had a repeated history of breaching rules and conditions in custody, demonstrating either an inability or a fundamental unwillingness to comply with imposed requirements (at [56]). A notable April 2019 incident, in which the applicant sat atop cricket nets for three days in deliberate defiance of authorities, illustrated that pattern starkly (at [57]).
Material found in the applicant's possession in custody was capable of sustaining an inference that he continues to subscribe to the violent ideology said to underpin the alleged offending (at [58]). Electronic monitoring was found to be imperfect and insufficient to mitigate either risk, supported by unchallenged evidence from an Australian Federal Police Commander documenting system failures in other terrorism prosecutions (at [59]).
Issue 3: Suitability of release into parental custody
The court found two compounding problems with releasing the applicant to his parents. The applicant's father had made two unsolicited approaches to an important Crown witness shortly before the second trial, conduct the court described as impermissibly and inappropriately directed at a prosecution witness, which may have constituted an offence (at [60]). Additionally, releasing the applicant to his parents would place him in the same environment where the alleged offending occurred, in circumstances where the father had previously been unable to monitor or control the applicant's movements and associations (at [61]).
Orders Made
- Application for release refused.
Key Takeaways
- Under section 15AA of the Crimes Act 1914 (Cth), a person charged with a terrorism offence must affirmatively establish exceptional circumstances before bail can be considered, with the onus resting squarely on the applicant (at [6], [10]).
- A delay of between 3.5 and 4 years in custody awaiting trial can constitute exceptional circumstances, particularly where the accused was a teenager at the time of arrest, even when other personal factors advanced by the applicant were not regarded as out of the ordinary (at [52]).
- Finding exceptional circumstances does not produce release: the court must then apply the unacceptable risk test under the Bail Act 2013 (NSW), and a strong Crown case and robust proposed conditions do not automatically resolve that inquiry (at [53]-[54]).
- Repeated disciplinary breaches in custody, even when individually minor, may collectively support a finding that an applicant is unwilling or unable to comply with bail conditions, undermining the efficacy of even comprehensive proposed conditions (at [56]-[57]).
- Evidence of extremist material found in an applicant's possession while on remand can support an inference of continued adherence to a violent ideology, bearing directly on the risk of further offending for bail purposes (at [58]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code 1995 (Cth)
- Evidence Act 1995 (NSW)
Cases
- Barr (A Pseudonym) v The Director of Public Prosecutions (2018) 97 NSWLR 246; [2018] NSWCA 47
- Hammoud v The Director of Public Prosecutions [2006] VSC 516
- R v NK [2016] NSWSC 498
- R v WE [2017] NSWSC, 19 December 2017 unreported
- R v WE (No 3) [2019] NSWSC 881
- R v WE (No 8) [2019] NSWSC 1030
- R v WE (No.1) [2019] NSWSC 38
- R v NK [2016] NSWSC 498