Citation: R (Cth) v OK [2024] NSWSC 1411
Court: Supreme Court of NSW
Date: 5 November 2024
Judge: Dhanji J
Background
The applicant, referred to as "OK", is a 16-year-old who was arrested on 24 April 2024 and charged with conspiring to engage in an act in preparation for or planning a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth). He had been in custody for over six months at the time of the application, without any prior criminal convictions. He is diagnosed with mild intellectual disability and autism spectrum disorder, and functions at a very low level.
The Crown case alleged that the applicant subscribed to an extremist ideology supportive of Islamic State and participated in encrypted group chats with three alleged co-conspirators, at least one of whom was actively planning a terrorist attack. The applicant joined the relevant "Plans" chat on 20 April 2024, just four days before his arrest.
The applicant applied for release on bail under s 49 of the Bail Act 2013 (NSW). Because the charge is a terrorism offence, s 15AA of the Crimes Act 1914 (Cth) applied, requiring the court first to be satisfied that exceptional circumstances exist to justify bail before proceeding to assess whether the applicant posed an unacceptable risk.
Legal Issues
- Whether exceptional circumstances existed to justify bail under s 15AA of the Crimes Act 1914 (Cth), including the proper weight to be given to community protection and the best interests of a person under 18
- Whether, if exceptional circumstances were established, the applicant presented an unacceptable risk under s 19 of the Bail Act 2013 (NSW), having regard to risks of failing to appear, committing a serious offence, endangering the community, or interfering with witnesses or evidence
Decision
Issue 1: Exceptional Circumstances
The court confirmed that the exceptional circumstances test under s 15AA imposes a rebuttable presumption against bail and is demanding, though flexible. It can be satisfied by subjective or objective matters, including the relative strength of the Crown case, and may be fulfilled by a combination of circumstances (at [5]). For an applicant under 18, the court is required to treat community protection as the paramount consideration and the best interests of the young person as a primary but subordinate consideration (at [6]).
Dhanji J assessed the Crown case as viable but not particularly strong. The applicant joined the Plans chat for only four days and made minimal contributions, failing to respond to direct questions posed to the group (at [23]-[24]). The WhatsApp exchange about "idrib" (a hit or strike) was found to be ambiguous and did not clearly establish that the applicant had intentionally entered into an agreement to commit a terrorist act (at [25]-[26]). The court noted that the question of whether any relevant agreement existed remained genuinely open (at [30]-[31]).
The court also weighed the applicant's personal circumstances. His age of 16, absence of prior convictions, intellectual disability and autism spectrum disorder, strong family support including a brother-in-law as a role model, recent approval for NDIS funding, and available bail conditions all contributed to the court's conclusion that the combination of circumstances was sufficiently exceptional to justify bail (at [41]-[45]).
On the question of re-radicalisation, the court accepted that the applicant's vulnerabilities made him potentially susceptible to extremist influence, but assessed the likelihood of re-radicalisation as very low. The court noted that the applicant's former views had become known to his family during his six months in custody, and that available conditions would curtail his movements and provide ongoing monitoring (at [37]-[39]).
Issue 2: Unacceptable Risk
The court then applied the unacceptable risk test under s 19 of the Bail Act 2013 (NSW), considering the three principal bail concerns in turn. The risk of failing to appear, while real given the maximum penalty of life imprisonment, was not considered unacceptable in light of the applicant's age, limited capabilities, and available conditions (at [48]). The risk of committing a serious offence or endangering the community was similarly not assessed as unacceptable, for the same reasons given in the exceptional circumstances analysis (at [49]). The risk of interfering with witnesses or evidence was regarded as low, given that the critical evidence was already in the hands of prosecuting authorities (at [50]).
Orders Made
- Bail granted subject to conditions.
Key Takeaways
- Under s 15AA of the Crimes Act 1914 (Cth), the exceptional circumstances test is a demanding but flexible standard that can be satisfied by a combination of factors, including a Crown case that is not strong, and personal circumstances such as youth, disability, and family support (at [5], [45]).
- Where the applicant is under 18, community protection remains the paramount consideration, but the best interests of the young person must also be treated as a primary consideration, even though it is subordinate to community protection (at [6]).
- A relatively short and passive engagement with a terrorist planning chat, combined with ambiguous communications and a lack of active participation, contributed to the Supreme Court's assessment that the Crown case was viable but not particularly strong, a finding that carried significant weight in the exceptional circumstances analysis (at [23]-[26], [31]).
- Risks associated with a terrorism charge, including the risk of re-radicalisation of a vulnerable young person, are not automatically unacceptable where the evidence supports a low likelihood of reoffending and where tailored conditions, family supervision, and NDIS supports are available to manage ongoing risk (at [37]-[39], [49]).
- The court's treatment of the applicant's "mild intellectual disability" reflects the clinical meaning of that term: the word "mild" is part of a formal diagnostic label, not a minimising descriptor, and the applicant in this case was found to function at a very low level (at [42]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code (Cth)
Cases
- Abbas v R [2022] VSCA 39; 297 A Crim R 1
- Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232; 291 A Crim R 191
- R v NK [2016] NSWSC 498