Citation: R v Khayat (No 11) [2019] NSWSC 1320
Court: Supreme Court of New South Wales
Date: 6 June 2019
Judge: Adamson J
Background
The applicant faced a charge of conspiring to do acts in preparation for, or planning, a terrorist act under the Criminal Code Act 1995 (Cth), an offence carrying a maximum penalty of life imprisonment. He had been in custody since his arrest on 29 July 2017 and was jointly tried with his brother. The joint trial concluded on 1 May 2019 with a guilty verdict against the brother, but the jury was discharged on 3 May 2019 after it could not reach a unanimous verdict against the applicant.
A retrial was listed to commence on 5 August 2019. The applicant applied for release on bail, and the Crown opposed the application.
Legal Issues
- Whether s 15AA of the Crimes Act 1914 (Cth) applied, and what threshold the applicant was required to meet to obtain bail
- Whether the applicant had established "exceptional circumstances" justifying bail within the meaning of s 15AA
- Whether the bail concern identified by the Crown (failure to appear) was adequately addressed by the circumstances relied upon
Decision
The applicable threshold: It was common ground that s 15AA of the Crimes Act applied, creating a rebuttable presumption against bail for a person charged with a terrorism offence. The Crown accepted that any "show cause" requirement under the Bail Act was subsumed within the higher threshold of exceptional circumstances. The only bail concern identified by the Crown under s 17 of the Bail Act was the risk that the applicant would fail to appear at his trial (at [5]-[6]).
The strength of the Crown case: Adamson J, having presided over the first trial, assessed the Crown case as reasonably strong. The evidence against the applicant included his involvement in obtaining delivery details, communicating with a delivery company while impersonating another person, being present when a package concealing a bomb was opened, researching timers, purchasing a timer through his wife's eBay account, attending the airport on the day Amer was to fly, and having fingerprints on the plastic wrapping of the bomb. Digital evidence also linked the applicant to communications about components for alleged poison gas and acetone plots (at [15]-[19]).
The hung jury and maintenance of innocence: The court found that a hung jury is simply one of three possible outcomes of a criminal trial and is not uncommon, particularly for Commonwealth offences that require unanimity. That the jury could not agree did not establish that the Crown case was weak, and the outcome did not amount to an exceptional circumstance. Similarly, an accused person maintaining innocence and giving sworn evidence consistent with that position was described as one of the usual scenarios in a criminal trial, not something out of the ordinary (at [20]).
Other matters relied upon: The applicant's arguments regarding limited access to overseas destinations, his lack of criminal history, strong family ties, connection with the community, and the hardship of separation from his wife and young children were all considered and rejected as exceptional circumstances. The court noted that many bail applicants have no realistic overseas flight option, and that family separation and restricted access to legal representatives are regrettable but almost inevitable features of incarceration (at [21]-[24]). Not being satisfied that exceptional circumstances existed, the court refused bail by operation of s 15AA (at [25]).
Orders Made
- Application for bail refused
Key Takeaways
- Under s 15AA of the Crimes Act 1914 (Cth), an applicant charged with a terrorism offence must affirmatively satisfy the court that exceptional circumstances exist before bail can be granted, a threshold higher than the "show cause" requirement under the Bail Act (at [4]-[5], [12]).
- A hung jury, being one of three ordinary outcomes of a criminal trial, does not constitute an exceptional circumstance for the purposes of s 15AA, even where the requirement for unanimous verdicts in Commonwealth offences makes that outcome statistically more likely (at [20]).
- Exceptional circumstances require something genuinely out of the ordinary or unusual, and the concept is assessed case by case, potentially through a combination of subjective, objective, and offence-related features considered together (at [13]-[14]).
- Common features of incarceration, including family separation, restricted access to legal representatives, absence of a realistic overseas flight option, and a clean criminal history, do not individually or in combination constitute exceptional circumstances (at [21]-[24]).
- The Supreme Court confirmed, consistent with McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99, that the exceptional circumstances question must be assessed independently of the unacceptable risk inquiry, although evidence relevant to bail concerns may also inform the exceptional circumstances analysis (at [22]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 17, 22, 22A
- Crimes Act 1914 (Cth), s 15AA
- Criminal Code Act 1995 (Cth), ss 11.5, 101.6
Cases
- McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99
- R v Naizmand [2016] NSWSC 836