Commonwealth Director of Public Prosecutions v Saadieh

1. [1]

   BATHURST CJ: I agree with the orders proposed by Adamson J and with her Honour’s reasons. I also agree with the additional reasons of Beech-Jones CJ at CL.

2. [2]

   BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Adamson J. Subject to the following five points I agree with her Honour.

3. [3]

   First, her Honour has accurately characterised my observations in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [49] which concern the unsatisfactory nature of the present structure of the Bail Act 2013 (NSW) in allowing for de novo reviews in this Court.

4. [4]

   Second, the observations of Basten JA in Trinh v R [2016] NSWCCA 110 at [21]-[22] and [29]-[33] that this Court has a broader discretion than that conferred by s 73 of the Bail Act to refuse to hear bail applications are only that; observations. They were not accepted by either McCallum J or Davies J in that case (at [40] and [44]) and have not been accepted by any majority of this Court since. Contrary to his Honour’s analysis, the identification in s 73 of particular discretionary reasons to refuse to hear a bail application tells against the existence of a broader discretion. Otherwise, if it was to be suggested that this Court had some “broader discretion” to refuse to hear a release application but was obliged to hear a detention application then that would only compound the unsatisfactory aspects of the Bail Act identified in Mawad.

5. [5]

   Third, like Hamill J at first instance, I accept that the Crown case is “reasonably strong” but “far from overwhelming” ([2021] NSWSC 1186 at [22]). However, of most significance is an assessment of the likely sentence if the respondent is convicted. Unlike many if not most other cases involving a charge under s 102.3(1) of the Criminal Code Act 1995 (Cth), in this case the acts taken by the applicant to effect, and in furtherance of, his alleged membership appears to involve nothing more than using his mobile phone in his bedroom. He did not, for example, travel to an airport much less travel overseas and nor did he meet locally with others. At the hearing of this application, it was accepted by the Crown that the objective seriousness of his offending was “probably” less than that of the offender in R v Abdirahman-Khalif (Supreme Court (SA), Peek J, 16 April 2019, unrep) who received a non-parole period of 2 years 3 months.

6. [6]

   At the present, the brief of evidence against the respondent is still being compiled. It seems likely that the respondent will not be arraigned in the District Court until, at the earliest, the first quarter of 2022 and any trial would not likely to be completed until, at the earliest, the first quarter of 2023. Hence it is very likely that the respondent will serve a very significant proportion, if not all, of the likely non-parole period prior to being sentenced. Further, any such pre-trial custody will be served in the High-Risk Management Centre at Goulburn. Thus, his conditions of custody will be both more difficult than other prisoners and carry with it a risk that he will become radicalised or radicalised into action. For these reasons I consider that exceptional circumstances were established within the meaning of s 15AA of the Crimes Act 1914 (Cth).

7. [7]

   Fourth, of the various bail risks the most significant was the risk of the commission of a serious offence or endangering the safety of the community (Bail Act, s 17(2)(b) and (c)). In essence the Crown contended that the material it relied on raised a risk that he might commit a terrorism offence. A risk of the commission of such an offence does not have to be very high for it to be unacceptable. Nevertheless, for the reasons given by Adamson J, I am satisfied that this risk is addressed. In that regard I note that it was accepted by the Crown that the Court could infer the Respondent was under some form of continual surveillance between 2018 and 2021. There is no suggestion in the material that his arrest in June 2021 was prompted by any particular concern that he was planning any form of terrorist act. If it had been then the charges laid would have reflected that.

8. [8]

   Fifth, some of the material relied on by the Crown before Hamill J and tendered on this application concerned the supposed inadequacy of electronic monitoring and the resourcing problem it represents for the Australian Federal Police (“AFP”). In that regard I repeat what I stated in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [26] to [44]. In particular, both the principles of equal justice and s 68 of the Judiciary Act 1903 (Cth) contemplate that, absent specific legislative provision to the contrary, if a person charged with a State offence can be released on bail and subject to electronic monitoring then so should a person charged with a comparable Federal offence (at [40]). Further the costs incurred by the AFP in monitoring a person on bail is simply part of the obligations that an investigative body assumes when it causes charges to be laid in this State (at [41]).

9. [9]

   Otherwise, it can be accepted that electronic monitoring is not foolproof and is unlikely to be of much assistance in preventing some types of spontaneous nihilistic terrorist attacks (AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042). However, if electronic monitoring is of no assistance in monitoring terrorism suspects, then it is difficult to reconcile with the Criminal Code. One of the conditions that can be imposed on a person the subject of a control order under Division 104 of the Criminal Code is the “requirement that the person wear a tracking device” (s 104.5(3)(d)). Control orders are supervised by the AFP. The same requirements can be imposed under the Terrorism (High Risk Offenders) Act 2017 (NSW) (s 29(1)(h)) and frequently are. They are commonly imposed under the Crimes (High Risk Offenders) Act 2006 (NSW) (s 11(1)(e)). At some point, the courts are entitled to receive some consistency in the approach taken by the various agencies to electronic monitoring as it applies to pre and post-conviction supervision.

10. [10]

    ADAMSON J: By application filed on 17 September 2021, the Commonwealth Director of Public Prosecutions (the DPP) applies pursuant to ss 50 and 67(1)(e) of the Bail Act 2013 (NSW) (the Act) for the detention of Joseph Saadieh (the respondent) who was granted conditional bail by Hamill J (the primary judge) on 17 September 2021: Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186. The primary judge’s orders were stayed until 4pm on 24 September 2021, being the day on which the DPP’s detention application was listed for hearing before this Court. This Court extended the stay until delivery of judgment which was listed at 2.15pm on 27 September 2021.

11. [11]

    This Court has jurisdiction to hear the application as the bail decision was made by the Supreme Court: s 67(1)(e) of the Act. There is no requirement that error in the grant of bail be shown as the detention application is to be dealt with “as a new hearing” and “evidence or information may be given in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision”: s 75 of the Act. In determining this application, this Court may have regard to the findings of the primary judge: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 (Mawad) at [8] (Beech-Jones J, Adams J agreeing at [5]).

12. [12]

    The DPP has adduced further evidence in this Court, which was not available to the primary judge, the significance of which will be addressed below. Although the DPP is the applicant in this Court, reference will also be made to the Crown since many of the submissions related to the strength of the Crown case.

13. [13]

    The respondent is 24 years old. On 18 June 2021, he was arrested and charged with a terrorism offence: being a member of a terrorist organisation, the Islamic State of Iraq and Syria (ISIS), which is also known as Islamic State of Iraq and the Levant (ISIL) (both will be referred to as Islamic State), for a period from 12 June 2018 until 18 June 2021, contrary to s 102.3(1) of the Criminal Code Act 1995 (Cth) (the Code). ISIL was originally listed on 14 December 2013. It was subsequently listed as “Islamic State” on 11 July 2014. The maximum penalty for the offence is 10 years’ imprisonment.

14. [14]

    In order to prove the elements of the offence, it will be necessary for the Crown to prove, first, that the respondent was, during the charge period, intentionally a member of Islamic State; second, that Islamic State is a terrorist organisation; and, third, that the respondent knew that Islamic State is a terrorist organisation: s 102.3(1) of the Code; see also the summary of the elements in The Queen v Abdiraham-Khalif [2020] HCA 36; (2020) 283 A Crim R 272 at [86]-[87] (Gageler J, whose dissent as to the outcome did not affect this analysis).

15. [15]

    Mr Samin, who appeared on behalf of the respondent, accepted, for the purposes of the detention application, that only the first (intentional membership) is in issue. Section 102.1 of the Code defines “member” as follows:

16. [16]

    It would appear from the following passage at [65] of the DPP’s submissions in this Court that the Crown will rely on both (a) and (b) to satisfy the definition:

17. [17]

    It would appear that a, b and d above are common ground since the defence case, in so far as it is apparent from the evidence before the primary judge and this Court, would appear to be that, although the respondent was interested in Islamic State (and had material on his mobile devices relating to Islamic State, including with respect to the making of bombs), he was not a member, did not hold violent extremist ideologies and, indeed, his conduct as a Muslim was both inconsistent and antithetical to violent jihad or membership of Islamic State.

18. [18]

    There is a significant dispute about the meaning and significance of the swearing of Bay’ah (an Arabic word which, when transliterated into English is also spelled “Bayah”, “Baya” and “Bay’a”), including whether the respondent actually swore Bay’ah, and to whom. The Crown case at trial will include evidence from Dr Rodger Shanahan, an expert in Islam, whose opinion will be relied on to establish the meaning of particular words and expressions used in the material referred to above. Of present relevance, Dr Shanahan opined as to the giving of Bay’ah as follows:

19. [19]

    In support of his bail application before the primary judge, the respondent relied on evidence of Mr Wesam Charkawi, a specialist in Islam, which countered that of Dr Shanahan. Mr Charkawi explained that giving Bay’ah is not necessarily associated with Islamic State or violent jihad and said:

20. [20]

    Although the DPP did not accept that, if the Crown could not prove c. above (swearing of Bay’ah), it would not be able to prove the offence, I understood the DPP to accept that the proposition that the respondent had sworn Bay’ah was an important part of the Crown case. Indeed, it would be reasonable to infer that the Crown would also need to prove that the respondent had sworn Bay’ah to Islamic State or someone associated with Islamic State (and not merely to an Islamic religious leader) since this appears to be the basis of its case on intentional membership.

21. [21]

    The Crown case against the respondent (as set out in the Crown’s Statement of Facts) is based on the Australian Federal Police’s (AFP) surveillance of the respondent for the approximately three-year period from June 2018 until his arrest in June 2021. The full nature and extent of the surveillance does not appear from the evidence. Nonetheless, it can reasonably be inferred that the methods used to conduct the surveillance comprised listening devices, as well as, potentially, tracking and optical surveillance devices, search warrants (including covert searches) and telephone intercepts. For example, the Crown case included material that showed (from allegedly “LOI”, lawfully obtained information) that, on 27 February 2021, the respondent was recorded in his car driving around the Holocaust Memorial and the Jewish and Christian sections at Rookwood Cemetery while stating “hellfire for all of you”.

22. [22]

    The Crown case is largely circumstantial and is based, in large measure, on content located on the respondent’s devices. At the time of his arrest, the respondent had three mobile phones in his possession: a Samsung S4 mobile phone; a Samsung S9 mobile phone, and a Samsung Galaxy S20 mobile phone on which the Telegram application (a highly encrypted application) had been downloaded. The Crown also relies on alleged admissions made by the respondent. The material said to be incriminating was principally contained on the Samsung Galaxy S20 mobile phone as well as the following items which were found on a USB stick in the respondent’s possession, which specifically refer to, or are associated with Islamic State: Dabiq magazines (propaganda published by Islamic State); sermons given by Anwar Al Awlaki (a radical Islamic cleric associated with Islamic State who was killed by a US drone in 2011); material produced by Hayat Media Centre (a media outlet for Islamic State), which included praise for previous terror attacks and encouragement for further attacks; and certain Anasheed (traditional chants or musical forms of Arabic poetry, some of which have been used by Islamic State to promote violent jihad) specific to Islamic State.

23. [23]

    The material seized also includes a photo of the respondent using the “one finger gesture”. Mr Charkawi said that the “one figure gesture” was a common Islamic symbol referring to oneness (which he likened to the Christian sign of the cross) but that it had been appropriated by Islamic State. He opined that its use depended on context and it could not be inferred from its use that the person using the gesture was an adherent of Islamic State. Mr Charkawi also explained that in 2018 many young Muslims (and others) around the world were observing the events in Syria and, in particular, the atrocities committed against Muslims there, including by President al-Assad.

24. [24]

    The material located on the respondent’s devices included 26 files which related to explosives, including instructions on how to make a bomb. According to the Crown’s Statement of Facts, on 27 February 2021, the Joint Counter Terrorism Team (JCTT), being a combined force involving AFP agents and police officers from the NSW Police Force, executed a delayed notification search warrant on the respondent’s vehicle. In the course of executing the warrant, the JCTT located a USB stick in the respondent’s satchel, which was partially copied before being returned to its original location to avoid the respondent becoming aware of the intervention.

25. [25]

    The evidence showed that the respondent took screenshots of posts made on Instagram, which included formula and written and photographic instructions for making bombs. Included in the material found on the USB stick was the following (as described in the Crown’s Statement of Facts):

26. [26]

    Although these screenshots were in evidence before the primary judge, it was only after the hearing before the primary judge that the JCTT’s analysis established that screenshots relating to bomb-making were taken on 25 March 2021. The DPP placed significance on this date in this Court in support of its contention that the respondent posed a risk of committing a serious offence if not detained and that his connection with Islamic State was “escalating”.

27. [27]

    Mr Charkawi said of the items found on the respondent’s USB:

28. [28]

    The Crown will rely at trial (and the DPP relied on it for the purposes of the bail application) on the following passage reproduced in the Crown’s Statement of Facts from a text conversation between the respondent and a person identified as “Slow Reaction”, which occurred on 2 October 2018, as an admission of the charge:

29. [29]

    The DPP’s counsel informed the Court that the words in parenthesis were added by those analysing the conversations and did not appear in the original. Thus, the word “foreign” in the fifth entry above after the word “prophet” signified that there was a foreign word after “prophet” which had not yet been translated. In these circumstances, no assumption can be made about the identity of the prophet or the provenance or antiquity of the principle cited by the respondent (that if you die without giving Bay’ah, you die a death of ignorance). I infer from this exchange that the respondent and Slow Reaction were debating aspects of Islam, including what Bay’ah meant and its effect.

30. [30]

    Mr Charkawi said of the conversation between the respondent and Slow Reaction:

31. [31]

    A few weeks after this conversation, in late October 2018, the respondent engaged in a WhatsApp group conversation in which he described an altercation with his parents in the following terms:

32. [32]

    The DPP submitted that “daeshi” meant member of Islamic State and that because the respondent told others that his mother had told his aunts that she considered that he was a “daeshi”, he was actually a member of Islamic State. I would infer from the WhatsApp message that there was conflict between the respondent on the one hand, and his parents and two of his aunts on the other, about Islam and what was required of Muslims. There are several difficulties with the inference for which the DPP contended. First, the evidence indicated that the word “daeshi” can mean either a supporter of Islamic State (which, without more, would not be sufficient to make out the offence charged) or a member of Islamic State. Second, the evidence would not appear to amount to an admission by the respondent, nor to be otherwise admissible, as it is a least secondary hearsay. At its highest, it would appear to amount to no more than a complaint (or boast) by the respondent that his mother was upset with him because she thought he supported Islamic State.

33. [33]

    At the time of the bail application before the primary judge, the AFP had not yet completed its analysis of the material on the devices associated with the respondent. In support of her detention application, the DPP also relied on a further extended conversation by text which occurred from 10 April 2021 to 11 June 2021 between the respondent and “EliseNew”, who lives in the United Kingdom and whom the respondent came to know through social media. The conversation comprises 1685 individual text messages between the two. Another male was party to the conversation although he did not play an active part. The Crown indicated that the third person would appear to have acted as a chaperone for the interactions between the respondent and EliseNew. In the course of the conversation, the respondent and EliseNew discussed their feelings for each other (and whether they wish to marry); whether the respondent planned to have a second wife; how EliseNew would travel to Australia given the restrictions as a result of the COVID-19 pandemic and her disinclination to be vaccinated; what the attitude of their parents was likely to be; their previous relationships; television series and movies (including Cars 2) which they had watched; the importance of physical attraction; and the relationship between the respondent’s parents. The respondent also sent at least one nasheed (religious chant) to EliseNew.

34. [34]

    In the context of a discussion on 19 April 2021 about the relationship between the respondent’s parents, the respondent told EliseNew that his father told him that he was a “good boy [b]ecause if [he] had [the respondent’s] looks when [he] was [his] age [he] would’ve been doing very bad things.” The respondent further clarified this in a subsequent message and said, “I know he said it as a joke though because my mother was the first woman he was with.” EliseNew responded:

35. [35]

    The conversation continued on 19 April 2021:

36. [36]

    The Crown relied on the extract in which the respondent referred to a “huge plan” as indicating that there was a risk that if the respondent were to be released on bail, he would commit a serious offence, which might endanger the safety of individuals or the community. The defence case would appear to be that the reference to “huge plan” was either a reference to matters of emotional consequence in the context of a discussion about marriage with EliseNew or that it was so oblique that no conclusion could be drawn about what the respondent had in mind when he said he had a “huge plan”.

37. [37]

    The conversation then turned to baby photos which they shared, following which the respondent asked her whether she had a particular nasheed, which he then sent to her. Subsequently they joked about how fast the respondent could run, to which he replied, also on 19 April 2021, “Well, I go to the gym, I work, I go to uni. I mean, do you really need to know my speed for marriage?” Later that day, they discussed the importance of physical attraction between marriage partners. In an exchange at 3.21am on 30 April 2021, the respondent said:

38. [38]

    On 17 May 2021, the respondent told EliseNew about being assaulted in a carpark by an “ex-friend”, who also slashed one of the tyres of his car. He said:

39. [39]

    The respondent also reported to her: “The end result, the older brother of this brother said he would assure his brother doesn’t do such a thing to me anymore, and said not to talk about the incident.” As the conversation continued, the respondent said:

40. [40]

    The Crown also highlighted the following entry which the respondent sent by text to EliseNew on 17 May 2021:

41. [41]

    The Crown contended that this text showed the respondent’s acute awareness of the need to ensure the secrecy of certain texts. Having regard to the surveillance being conducted on the respondent at the time, his awareness of the risks associated with police surveillance must be regarded as realistic. The text, in effect, informed EliseNew that she should advise her friend that, by connecting her Telegram account to her Instagram account, she had lost the benefit of encryption. The context does not reveal the basis of the implication that the material on EliseNew’s friend’s Instagram account was illegal. Nor can any inference be drawn that its illegality was anything to do with Islamic State, since this was not a topic which was discussed between the respondent and EliseNew.

42. [42]

    In oral argument, the Crown took the Court to an exchange between the respondent and “EliseNew”, which occurred on 21 May 2021, in which she stated that she did not want to raise children “in the west” but added “I know you don’t have plans to get out”. The respondent replied:

43. [43]

    They then discussed the use of Telegram before the applicant states “I am a moderate Muslim, born here and here to stay” which prompted EliseNew to respond with a laughing emoji.

44. [44]

    The reference to “social security” in this exchange appears to be a reference to supervision by the security services. This exchange provides some support for the Crown’s contention that the respondent concealed his radicalised opinions behind a moderate facade. On the other hand, it also reveals a consciousness (which proved to be correct) as to the extent of the AFP’s surveillance of young Muslims such as the respondent in Australia and a desire for privacy from such surveillance. It also suggests that the respondent wants to leave Australia for some other location, presumably where Muslims are in the majority (or, at least, was prepared to say that to EliseNew to further their relationship because that was what she wanted). Beyond that, it does not add to the other exchanges in terms of assessing his risk to the community in this country.

45. [45]

    On 3 June 2021, EliseNew sent a message ending the relationship, allegedly because of difficulties with her family, although further texts were exchanged between them up to 11 June 2021.

46. [46]

    The Crown alleged that, since 2017, the respondent has been, and continues to be, a “close associate” of several people who have been convicted of terrorism-related offences and who have been identified as having extremist Islamic beliefs, including:

    1. (1)

       Radwan Dakkak, who in December 2020 was arrested and charged with two counts of associating with terrorist organisations contrary to s 102.8 of the Code and who is presently on remand in the Goulburn High Risk Management Unit (Goulburn);

    2. (2)

       Yousef Uweinat, who on 4 December 2019 was arrested and charged with terrorism-related offences, including membership of a terrorist organisation, contrary to s 102.3 of the Code and who is presently on remand in Goulburn;

    3. (3)

       Isaac El-Matari, who, on 2 July 2019, was arrested and charged with doing acts in preparation for a terrorist act contrary to s 101.6 of the Code and membership of a terrorist organisation contrary to s 102.3 of the Code (to which he has pleaded guilty); and

    4. (4)

       Moudasser Taleb, who, on 4 April 2019, was found guilty of preparing for incursions into a foreign country for the purpose of engaging in a hostile activity contrary to s 119.4(4) of the Code and has served his sentence and been released. He attended a restaurant with the respondent on 18 March 2021 and conversed on 21 March 2021 about their phones being “heavily taped”. On 16 April 2021, the New South Wales Police located a firearm at Mr Taleb’s premises in Bankstown, while executing a firearms prohibition order.

47. [47]

    The Crown and the respondent tendered evidence before the primary judge, which was before this Court, which can be summarised as follows.

48. [48]

    The first tranche of the brief was served on 13 August 2021; the balance is due on 12 November 2021. The matter will be re-mentioned in the Local Court on 26 November 2021 at which time it is expected to proceed in accordance with the Local Court Early Appropriate Guilty Plea (EAGP) process. The respondent is likely to be committed for trial in the District Court in about March 2022, with a trial by about mid-2023. If this broad timetable comes to pass, the respondent is likely to spend approximately 2 years on remand.

49. [49]

    The Crown accepted that the respondent’s conditions of custody were more onerous as a consequence of the COVID-19 pandemic (including the prohibition on family visits and increased lockdowns within the gaol) but noted that, to date, there have been no positive cases at Goulburn. The respondent suffers from asthma. The Crown accepted that, if the respondent was infected with COVID-19, he would be likely to suffer increased effects of the virus.

50. [50]

    The respondent’s parents offered to arrange and pay for surveillance through the firm Attenti. The DPP tendered substantial evidence that such surveillance could not be monitored by the AFP (asserting that the AFP lacked resources) and was not regarded by the AFP as being either effective or reliable.

51. [51]

    On 12 February 2020, the respondent sought treatment from Mostafa El-Gashingi, psychologist, for anxiety, depression and career issues. He returned for treatment on 11 March 2020, 14 May 2020, 11 June 2020, 11 July 2020, 15 August 2020 and 10 September 2020. At that time, the respondent was in a relationship with a woman called Alaa, who, after ten months, ended the relationship in September 2020 when she formed a relationship with the respondent’s best friend. The respondent became stressed and addicted to pornography. His studies in Construction Management at the University of Western Sydney suffered as a consequence. He confided in his mother, who tried to comfort him. The respondent had difficulty focussing on his studies and took up computer games, to which he became addicted. According to the respondent, the treatment from Mr El-Gashingi was effective to help him overcome his addiction to pornography. He also became addicted to Netflix and watched “Zombie and action movies.” When asked about other addictions, the respondent did not report any issues relating to extremist material or ideology to Mr El-Gashingi.

52. [52]

    The respondent tendered a report dated 6 July 2021 of Sam Borenstein, a clinical psychologist, who assessed him on 5 July 2021, three weeks after his arrest. His history included what is set out above, as well as the respondent’s background. He was born in Auburn Hospital, the second child (and eldest son) in a family of six. His older sister is married with two children. There was conflict with his mother because of his relationship with Alaa but he described her as “supportive”. Although he proceeded through school until Year 11, he did not get his ATAR because he “lost [his] passion for school.” He has not yet completed his degree in Construction Management although he completed a Diploma in Construction Management at Western Sydney College.

53. [53]

    The respondent told Mr Borenstein that he began talking to “another woman” (EliseNew), who lived in the United Kingdom, at the beginning of 2021. He said, “we talked for a few months. There were obstacles, and it ended. We thought it best not to continue the relationship.” Mr Borenstein assessed the respondent as being “cognitively intact”. He found “no indication of serious psychiatric disorder” and described the content and process of the respondent’s thoughts as normal. He administered the Personality Assessment Screener, which resulted in a score of 14, which was in the normal range. Mr Borenstein said:

54. [54]

    Mr Borenstein also reported:

55. [55]

    Mr Borenstein recorded that the respondent “confirmed he researched ISIS, and he denies any intent of joining the organisation or believing in ISIS ideology.” He diagnosed chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, warranting ongoing psychological treatment.

56. [56]

    Mr Samin read affidavit evidence from the respondent’s parents. The respondent’s father annexed a copy of a pamphlet which the respondent handed out to members of the public with a view to educating the public about Islam. The headline of the pamphlet read: “Islam is not a religion of extremism”. The footer included, in enlarged text, “learn the basics”. The pamphlet contained text, which included the following:

57. [57]

    The evidence from the respondent’s parents set out the lengths to which they proposed to go to ensure that, if granted bail, the respondent would not have access to the internet and would remain under house arrest, unless reporting for bail or attending court. These measures included removing the door to his bedroom so that they could observe him at all times. His father instanced two recent occasions which were relied on to demonstrate that the respondent was neither aggressive nor violent: first, the incident involving the deflation of the tyre to the respondent’s car (about which he confided to EliseNew, as referred to above); and, second, an incident in 2020 when the respondent learned that one of their neighbours, who was not a Muslim, was assaulted. The respondent supported the neighbour and regularly checked on him and his family. The respondent’s parents also deposed to their own health problems, the respondent’s asthmatic condition, and the important role the respondent played in helping them with his siblings. The respondent’s father deposed to his concern that the respondent will fall victim to “negative influences” in custody, particularly because of the characteristics of other persons held in custody at Goulburn, who include convicted terrorists.

58. [58]

    The material located on the respondent’s devices showed that the respondent had made a number of Instagram posts, from his accounts which included an account entitled “grandsonsofthesahabah”. The Crown contended that this showed that the respondent had been radicalised. The Crown’s Statement of Facts alleges that the phrase “Grandsons of the Sahabah” is a reference to a quote by Osama Bin Laden in 2007, and Abu Bakr al-Baghdadi and that, accordingly, the phrase relates to taking up arms and/or committing terrorist acts.

59. [59]

    Mr Charkawi said that the phrase was used in 2013 by a group fighting President al-Assad in Syria in 2013. However, he also explained:

60. [60]

    Mr Samin relied on the respondent’s creation of posts on Instagram which would appear to be inconsistent with his having been radicalised, much less being a member of Islamic State, including the following:

61. [61]

    The DPP sought to counter such material by contending that the respondent led a double life: an outwardly peaceful one and a “secret” one. The DPP contended that the respondent’s views about violent extremism and his allegiance to Islamic State were concealed in his outward life but revealed by the contents of his devices and matters ascertained by the AFP’s substantial and long-term surveillance of him. Whatever the strength of the allegation that the respondent has a “double life”, it would appear to be weakened by the evidence, referred to above, that the respondent has continued to associate with men who have been charged or convicted of terrorist offences in circumstances where it can be inferred that his contact with them would be detected.

Consideration

1. [62]

   Mr Samin contended that, although this Court has jurisdiction to hear the detention application under s 67(1)(e) of the Act, it ought exercise its discretion to decline to exercise the jurisdiction in the present case. He argued, first, that this Court is, “by design”, an appellate court and not a court at first instance, which made it inappropriate for it to entertain the application. Second, the evidence alleged to be “fresh” would not, when viewed in context, warrant a different conclusion that the one reached by the primary judge. Third, he contended that, having been granted conditional bail, regard should be had to his right not to be deprived of his liberty before being convicted by a jury. Fourth, he argued that his liberty ought not be put in jeopardy twice.

2. [63]

   In support of the fourth contention, the respondent relied on what Beech-Jones J said in Mawad at [49]:

3. [64]

   Whatever the undesirability of the present structure of the Act, I am not persuaded that this Court could simply dismiss the DPP’s application summarily without addressing the matters on which the DPP relies in support of her detention application. Nor do I read Beech-Jones J’s observations in Mawad as other than a suggestion for legislative review, having regard to the effect of the enacted provisions. For these reasons, I consider this Court to be obliged to hear and determine the DPP’s application. Since preparing these reasons, I have had the benefit of reading the reasons of Beech-Jones CJ at CL in draft and note that he has confirmed my reading of what his Honour said in Mawad.

4. [65]

   I note for completeness that, as the application is brought under ss 50 and 67(1)(e) of the Act, it is not necessary for this Court to consider the nature and scope of any appeal that might have been available to the DPP pursuant to s 15AA(3A) and (3B) of the Crimes Act 1914 (Cth).

5. [66]

   Nor do I consider it necessary to address the observations made by Basten JA in Trinh v R [2016] NSWCCA 110 at [21]-[22] and [29]-[33] (see also McCallum J at [40], Davies J at [44], not deciding) as to whether this Court would be obliged to hear a bail application made by an accused person who had been refused bail by a single judge. The DPP has a right to make a detention application under s 50 of the Act. By reason of s 67(1)(e) of the Act, this Court is the appropriate bail authority within the meaning of s 4 of the Act.

6. [67]

   Sections 15AA(1) and (2) of the Crimes Act prohibit a bail authority from granting bail to a person charged with a terrorism offence, unless it is satisfied that exceptional circumstances exist to justify bail. It was common ground that the principles articulated by Hall J in R v NK [2016] NSWSC 498 at [26] and [28]-[31] are applicable. These include, of present relevance, that the requirement for exceptional circumstances imposed a rebuttable presumption against bail; the requirement that the circumstances be “exceptional” was a demanding test but one which was nonetheless flexible, could constitute subjective or objective matters, including the strength or weakness of the Crown case, and could be fulfilled by a combination of circumstances or a single circumstance.

7. [68]

   The primary judge considered that the circumstances were exceptional on the basis of a combination of facts which comprise the potential difficulties of proving membership of, as distinct from support for, Islamic State; the significant delay and the onerous conditions of custody; the significant period between the alleged giving of Bay’ah (the principal act relied on for the purposes of establishing the offence); and the availability of deradicalisation counselling in the community: see [55]-[55] of his Honour’s reasons.

8. [69]

   While the findings of the primary judge are relevant to this Court’s determination of the detention application, I am satisfied that exceptional circumstances are established on a different basis (which is open to me, since this is a hearing de novo): namely, the disproportionality between the likely period on remand and the potential sentence, if the respondent is convicted.

9. [70]

   In my view, there is a real prospect that the non-parole period of any custodial sentence imposed will exceed the period on remand. For example, the offender in R v Abdirahman-Khalif (Supreme Court (SA), Peek J, 16 April 2019, unrep) was convicted of an offence contrary to s 102.3(1) of the Code and was sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years and 3 months (in accordance with the mandatory ratio for such offences of 75%). In that case, the offender purchased a one-way ticket from Adelaide to Istanbul for the purpose of engaging in foreign incursion, as part of the performance of her allegiance to Islamic State, as well as communicating with the “Baaqiya sisters” who carried out a terrorist attack in the name of Islamic State. I understood the DPP to accept not only that an act in furtherance of a plan to travel overseas to take part in the activities of Islamic State would be relevant to an assessment of objective seriousness of an offence under s 102.3 of the Code but also that the offending conduct in R v Abdirahman-Khalif was more serious than the alleged conduct in the present case.

10. [71]

    There are limits to the assistance which can be gained from sentencing decisions said to be comparable: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). However, other decisions may provide guidance for the purposes of an application such as the present. It is neither necessary nor desirable, for the purposes of the present application, to analyse all the cases said to be comparable to the present. It is sufficient to observe that unless a sentence which included a non-parole period of at least 2 years (which would equate, given the statutory ratio, to a total sentence of 2 years and 8 months’ imprisonment) was imposed following conviction, the respondent would be required to spend more time in custody that his criminality (if convicted) warranted.

11. [72]

    The purpose of the requirement for exceptional circumstances would appear to be to safeguard the community from the risk posed by those who are charged with terrorist offences between the date of arrest and the trial. In the present case, the offence is one of membership and the evidence of membership would appear to be confined to a unilateral declaration. The respondent’s offending, if the Crown case as it appears on the detention application is made out at trial, is of relatively low objective seriousness. Further, the prospect that the jury will not be satisfied of the charge beyond reasonable doubt is, on the material before this Court, a real one. The chance, which may amount to a likelihood, of the period on remand exceeding any non-parole period if the respondent is convicted is sufficient, in the context of the present case, to constitute exceptional circumstances. In light of this conclusion, it is not necessary to address whether the matters identified by the primary judge are sufficient to constitute exceptional circumstances.

12. [73]

    The DPP has raised a number of bail concerns pursuant to s 17 of the Act: the risk that the respondent will fail to appear; the risk that he will commit a serious offence; and the risk that he will endanger the safety of individuals or the community.

13. [74]

    In deciding whether the detention application ought be granted, the matters in s 18 of the Act are relevant. The respondent has strong family ties and no criminal history. The offence, if established, is not a particularly serious example of the conduct covered by s 102.3(1) of the Code. I do not regard the Crown case as particularly strong, although this is difficult to assess in circumstances where service of the brief is not yet complete and the respondent’s devices have not been fully analysed. The respondent has no history of violence. Indeed, such evidence as there is, would tend to indicate a disinclination to resort to violence, even when provoked. The DPP relied on the respondent’s “criminal associations”, as referred to above and the contact which the respondent maintained with his friends, notwithstanding their convictions for terrorist offences. I have already addressed the length of time the respondent is likely to spend in custody, pending trial, and if convicted, if the detention application is granted.

14. [75]

    The respondent’s circumstances are also relevant: s 18(1)(a) of the Act. I accept, on the basis of evidence adduced on his behalf, that if he is detained in Goulburn until his trial, there is a considerable risk that he will be radicalised by reason of the concentration of men who are imprisoned there who have been charged with or convicted of terrorist offences. This risk gives rise to the unattractive prospect that the respondent (who is, until convicted, presumed to be innocent of the charge) might be acquitted but that on release he might commit a terrorist offence, having been radicalised in Goulburn. Thus, an extended period on remand has the potential to increase the risk that he will commit a serious offence. This matter weighs against the DPP’s detention application.

15. [76]

    I consider that the conditions of bail imposed by the primary judge, which include house arrest and daily reporting, are sufficient to ameliorate any risk that the respondent will fail to appear. His parents are highly alert to the conditions and the need to ensure that the respondent complies with those conditions.

16. [77]

    The DPP relied on the respondent’s possession of instructions (in the form of screenshots and feeds from Islamic State media channels) for making a bomb in support of its contention that the risk of the respondent committing a serious offence if not detained was unacceptable. As is apparent from the Crown’s Statement of Facts, the material disseminated by Islamic State is redolent with instructions for making explosives and violent scenes, including beheadings and calls to arms. In these circumstances, it is almost inevitable that anyone using a mobile device to conduct research into Islamic State (or who has been the target of propaganda from Islamic State) will have images and information relating to these topics which are retrievable from the mobile device if the device is analysed with the technology and expertise available to the JCTT.

17. [78]

    However, it does not follow from the mere possession of such images that the owner or user of the mobile device intends to manufacture a bomb in accordance with the instructions, any more than it can be inferred that someone with an image of a beheading on a mobile device intends to engage in decapitation. Indeed, the absence of any ingredients for making a bomb in the respondent’s possession tells against any such intention.

18. [79]

    I consider that the risk that the respondent will commit a serious offence if released to bail to be relatively low and one which can be ameliorated by the conditions. The evidence does not indicate that the respondent, while at liberty during the charge period, did anything to act on his interest in Islamic State, apart from, if the Crown case is accepted, declare allegiance in what would appear to be a unilateral way. As referred to above, there is no suggestion that any of the ingredients for making a bomb were found in the respondent’s possession or in the residence where he lived. I note that he has not been charged with possession of things connected with terrorist acts (s 101.4 of the Code); collecting or making documents likely to facilitate terrorist acts (s 101.5 of the Code); or doing acts in preparation for a terrorist act (s 101.6 of the Code).

19. [80]

    The evidence from the AFP as to the cost, inconvenience and lack of utility of electronic monitoring by Attenti is sufficient to indicate that it ought not be imposed as a condition of bail. I note that the DPP did not seek that such a condition ought be added to those imposed by the primary judge.

Proposed orders

1. [81]

   For the reasons given above, I propose the following orders:

   1. (1)

      Refuse the detention application.

   2. (2)

      Confirm that the respondent is to be released to bail on the conditions specified by Hamill J on 17 September 2021.