Citation: R v WE (No.1) [2019] NSWSC 38
Court: Supreme Court of New South Wales
Date: 1 February 2019
Judge(s): Bellew J
Background
The applicant (referred to as WE) faced a charge of doing an act or acts in preparation for, or planning, a terrorist act contrary to s 101.6 of the Criminal Code 1995 (Cth), an offence carrying a maximum penalty of life imprisonment. He had stood trial in 2018 alongside a co-accused, HG. The jury convicted HG but could not reach a unanimous verdict in relation to WE, and the Crown proposed to retry him with a hearing listed for July 2019.
The Crown case alleged that WE and HG purchased and jointly possessed two fixed-blade M9 Bayonet knives, intending to use them in a politically, religiously or ideologically motivated attack on members of the public in suburban Sydney. At the time of arrest at an Islamic prayer room in Bankstown, the knives were found in a backpack previously in WE's possession, along with camouflaged neck gaiters and a handwritten note partly in Arabic and partly in English containing a pledge to extremist Islam. Electronic material found on a phone and computer linked to WE was described as extreme, advocating killing and injuring members of the community in the name of Jihad.
WE applied for bail pending his retrial. A prior bail application before Button J had been refused, but the Crown accepted that the hung jury overcame the threshold imposed by s 74 of the Bail Act 2013 (NSW). The central question before Bellew J was whether WE could establish the "exceptional circumstances" required by s 15AA of the Crimes Act 1914 (Cth).
Legal Issues
- Whether the applicant established "exceptional circumstances" under s 15AA of the Crimes Act 1914 (Cth), which must be satisfied before bail can be granted to a person charged with a terrorism offence.
- Whether the jury's failure to reach a unanimous verdict at the first trial constituted, or contributed to, exceptional circumstances.
- Whether the anticipated period of pre-trial custody (approximately three years by the time of retrial) was exceptional.
- Whether the proposed electronic monitoring condition and other personal factors (family support, accommodation, youth, ties to jurisdiction) collectively amounted to exceptional circumstances.
Decision
Issue 1: The exceptional circumstances threshold
Because WE is charged with a terrorism offence within the meaning of s 3 of the Crimes Act 1914 (Cth), s 15AA of that Act applies and mandates refusal of release unless exceptional circumstances are established (at [11]). Bellew J confirmed that the expression "exceptional circumstances" is not capable of precise definition, as each case turns on its own facts, and that an applicant may rely on a combination of factors (at [18]). The onus of establishing exceptional circumstances rests on the applicant (at [18]).
Issue 2: The hung jury and strength of the Crown case
The Crown accepted that the jury's inability to reach a unanimous verdict was a relevant factor but submitted it was not determinative (at [14]). Bellew J agreed, finding that the hung jury outcome is not exceptional, noting that the circumstantial evidence relied upon by the Crown remains strong (at [23]).
Issue 3: Length of pre-trial custody
By the time of the retrial, WE would have been in custody for approximately three years. Bellew J acknowledged that this was regrettable, but found it was not exceptional and was consistent with delays commonly seen in such applications (at [24]). He also noted that earlier trial dates had been offered but declined by the applicant on the basis of his preferred counsel's availability (at [24]).
Issue 4: Personal circumstances and proposed conditions
Bellew J found that factors such as strong family support, stable accommodation, minor criminal history, youth and ties to the jurisdiction are common in such matters and do not, individually or collectively, constitute exceptional circumstances (at [22]). Although the applicant's father gave evidence that impressed as honest, it also emerged that he had been unaware of WE's activities and associations in the period before arrest, giving rise to grave concern about his capacity to supervise WE if released (at [20]). On the proposed electronic monitoring, the court accepted that the product had minor imperfections, but the product manager expressly conceded it would have no utility in monitoring the commission of any further offence (at [21]). Having found that exceptional circumstances were not established, no separate assessment of risk was required (at [25]).
Orders Made
- Application for release refused.
Key Takeaways
- Under s 15AA of the Crimes Act 1914 (Cth), a court must refuse bail to a person charged with a terrorism offence unless the applicant establishes exceptional circumstances. This is a significant initial hurdle, even where the prior threshold under the Bail Act 2013 (NSW) has been met (at [11], [17]).
- A jury's failure to reach a unanimous verdict at a first trial is a relevant factor in a subsequent bail application but is not, of itself, determinative or exceptional, particularly where the Crown's circumstantial case retains significant cogency (at [23]).
- Factors commonly advanced in terrorism bail applications, including family support, accommodation, minor criminal history, youth and ties to jurisdiction, do not ordinarily amount to exceptional circumstances because they are routinely proffered in such matters (at [22]).
- Proposed electronic monitoring conditions may carry limited weight where evidence establishes the system would have no utility in detecting or preventing the commission of a further offence (at [21]).
- A substantial pre-trial custody period, while regrettable, does not automatically satisfy the exceptional circumstances test, particularly where the applicant has declined earlier trial dates offered by the court (at [24]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Criminal Code 1995 (Cth)
- Evidence Act 1995 (NSW)
Cases
- R v NK [2016] NSWSC 498
- R v XX 12 February 2015, Hall J (unreported)