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Court of Criminal Appeal 27 September 2021

Commonwealth Director of Public Prosecutions v Saadieh

[2021] NSWCCA 232

Public order & justice offences
CRIMINAL LAW TERRORIST OFFENCE DETENTION APPLICATION RELEVANCE OF STRENGTH OF CROWN CASE DETENTION APPLICATION APPLICATION REFUSED

Citation: Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 27 September 2021
Judge(s): Bathurst CJ; Beech-Jones CJ at CL; Adamson J

Background

A 24-year-old man was arrested in June 2021 and charged with being a member of a listed terrorist organisation, Islamic State, over a period from June 2018 to June 2021, contrary to s 102.3(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 10 years' imprisonment. The alleged conduct was largely confined to activity on his mobile phone at home; there was no suggestion he had travelled to an airport, met with others locally, or possessed any ingredients associated with making explosives.

Hamill J (the primary judge) granted the respondent conditional bail on 17 September 2021. The Commonwealth Director of Public Prosecutions (the DPP) applied to the Court of Criminal Appeal to detain him, relying in part on additional evidence not before the primary judge.

Because terrorism offences under federal law attract the presumption against bail in s 15AA of the Crimes Act 1914 (Cth), the respondent was required to demonstrate "exceptional circumstances" justifying his release. The central contest was whether those circumstances existed and whether the identified bail risks could be adequately managed by conditions.

  • Whether the respondent demonstrated "exceptional circumstances" within the meaning of s 15AA of the Crimes Act 1914 (Cth) to justify release on bail despite the terrorism charge.
  • Whether the risk that the respondent would commit a serious offence or endanger community safety if released was unacceptable under the Bail Act 2013 (NSW).
  • What weight, if any, to give to the Crown's assessment of the strength of its case at a stage when the full brief of evidence had not yet been served.
  • Whether electronic monitoring was an appropriate or effective bail condition in the context of a terrorism-related charge.
  • Whether the duration of pre-trial remand, potentially exceeding the likely non-parole period if convicted, could constitute exceptional circumstances.

Decision

Exceptional circumstances established. The Court found that exceptional circumstances within s 15AA were made out. The key factor was the very real prospect that the respondent's time on remand would exceed, or consume a very substantial proportion of, any non-parole period he might receive if convicted. The evidence suggested the matter would not reach trial until at least the first quarter of 2023. Beech-Jones CJ at CL noted that the Crown accepted the objective seriousness of the offending was probably less than that of an offender in a comparable South Australian case who received a non-parole period of two years and three months. The respondent would also serve any pre-trial custody in the High-Risk Management Centre at Goulburn under more onerous conditions, with an attendant risk of radicalisation.

The Crown case and the difficulty of pre-trial assessment. The Court accepted the primary judge's characterisation of the Crown case as "reasonably strong" but "far from overwhelming." Adamson J observed that images of explosives instructions or violent material on a mobile device do not, without more, support an inference that the owner intended to act on that material. The absence of any bomb-making ingredients, and the fact that no charges had been laid for preparing for or facilitating a terrorist act, were significant. The Court was cautious about assessing the strength of the case before the full brief of evidence had been served.

Risk of serious offending. The Court accepted that even a low probability of a terrorism offence can constitute an unacceptable risk. However, Adamson J found that the risk here was relatively low and capable of being managed by conditions. The Court noted the Crown's concession that the respondent had been under some form of continuous surveillance from 2018 to 2021, and that his arrest in June 2021 was not prompted by any specific concern that he was planning a terrorist act. Had there been such a concern, more serious charges reflecting preparatory conduct would have been expected.

Electronic monitoring. The DPP did not press for electronic monitoring as a condition, and Adamson J accepted AFP evidence that such monitoring by the relevant provider would be of limited utility. Beech-Jones CJ at CL, however, took the opportunity to reiterate reservations about arguments against electronic monitoring for federal offenders. His Honour observed that principles of equal justice and s 68 of the Judiciary Act 1903 (Cth) contemplate that a person charged with a federal offence should, absent specific legislative provision to the contrary, be treated comparably to a person charged with a similar state offence. His Honour also noted an inconsistency in agencies arguing that electronic monitoring is ineffective for pre-trial supervision when tracking devices are routinely imposed under control orders and post-conviction terrorism supervision regimes administered by the same agencies.

Orders Made

  • The detention application was refused.
  • The respondent's release on bail was confirmed on the conditions specified by Hamill J on 17 September 2021.

Key Takeaways

  • The prospect that pre-trial remand will consume a very substantial proportion of, or exceed, the likely non-parole period upon conviction can constitute "exceptional circumstances" under s 15AA of the Crimes Act 1914 (Cth), particularly where the conditions of remand are more onerous than ordinary custody.

  • A court assessing bail risk before the full brief of evidence has been served should exercise caution in evaluating the strength of the Crown case, especially where the case rests significantly on material found on a mobile device that may have an innocent explanation.

  • Continuous law enforcement surveillance of a respondent without any identified specific terrorism planning, and the absence of charges reflecting preparatory conduct, are relevant to the assessment of the risk of a serious offence being committed if bail is granted.

  • Beech-Jones CJ at CL confirmed that observations in Trinh v R [2016] NSWCCA 110 about a broader discretion to refuse bail applications were not accepted by a majority of the Court of Criminal Appeal, and that the specific discretionary grounds in s 73 of the Bail Act 2013 (NSW) tell against the existence of any broader discretion.

  • Arguments by law enforcement agencies that electronic monitoring is ineffective for terrorism suspects sit in tension with the routine imposition of tracking device requirements under federal control orders (s 104.5 of the Criminal Code) and state post-conviction supervision regimes administered by those same agencies.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 4, 17, 18, 50, 67, 75
- Crimes Act 1914 (Cth), s 15AA
- Criminal Code Act 1995 (Cth), ss 101.4, 101.5, 101.6, 102.1, 102.3, 102.8, 104.5, 119.4
- Judiciary Act 1903 (Cth), s 68
- Crimes (High Risk Offenders) Act 2006 (NSW), s 11
- Terrorism (High Risk Offenders) Act 2017 (NSW), s 29

Cases
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 (primary judge decision)
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Trinh v R [2016] NSWCCA 110
- The Queen v Abdirahman-Khalif [2020] HCA 36; (2020) 283 A Crim R 272
- R v Abdirahman-Khalif (Supreme Court (SA), Peek J, 16 April 2019, unreported)
- AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042
- Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
- R v NK [2016] NSWSC 498
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45