R v WE (No.9)

On 24 July 2018, the applicant pleaded not guilty to a charge that between 6 October 2016 and 12 October 2016 he committed acts in preparation for a terrorist act or acts. On that occasion he was indicted with a co-accused, to whom I shall refer as HG. Following a joint trial, HG was found guilty. However, the jury could not reach an unanimous verdict in relation to the applicant.

On 8 July 2019, a further indictment was presented by the Crown against the applicant alleging that he committed acts, jointly with HG, in preparation for a terrorist act or acts. The jury empanelled on that day was discharged on 11 July 2019. [1] The applicant’s trial recommenced with a new jury on 15 July 2019. That jury was discharged on 13 August 2019 in circumstances set out in a judgment I delivered at that time. [2]

Against that background, and in circumstances where I have been informed that the Commonwealth Director of Public Prosecutions proposes to present a further indictment against the applicant in the same terms as that presented on 8 July 2019, the applicant now seeks that he be released on bail pending his further trial.

The applicant’s trial is listed before the arraignments judge tomorrow, 6 September 2019, for the purposes of setting a new trial date. The trial date will be a matter for the arraignments judge, having regard to (inter alia) the workload of the Court. In those circumstances I cannot predict, with any degree of certainty, when the applicant’s re-trial will take place. As best as I can estimate, it is likely to be at some time in 2020, most probably in the first six months of that year. In circumstances where the applicant was arrested in October 2016, that will necessarily mean that by the time the matter comes to trial for a third time, he will have spent somewhere between (approximately) 3½ and 4 years in custody. That is a factor which has assumed some significance on the present application, particularly in so far as I am required to determine whether the applicant has established that there are exceptional circumstances warranting his release.

Section 15AA of the Crimes Act 1914 (Cth) (“the Act”) is in (inter alia) the following terms:

The effect of s 15AA of the Act is that if I come to the conclusion that the applicant has failed to establish exceptional circumstances, the application must be refused. If, on the other hand, I am satisfied that exceptional circumstances have been made out, that does not mean that the applicant is released. In that event, I must consider the relevant provisions of the Bail Act 2013 (NSW) (“the NSW Act”), s 22A(2) of which replaces, in respect of an applicant charged with an offence of this nature, the show cause test with an exceptional circumstances test. Accordingly, if I am satisfied that exceptional circumstances have been made out I must then consider and apply the unacceptable risk test which is set out in s 22A(3).

There is one further provision of the NSW Act to which it is necessary to refer, and which arises from the fact that I have previously determined an application for release (“my previous judgment”). [3] That fact engages s 74 of the NSW Act which is in (inter alia) the following terms:

The Crown has conceded that in light of the chronology of the events that I have outlined, and in particular the fact that the applicant has gone to trial for a second time without receiving a verdict, s 74(3)(c) of the NSW Act applies.

Given the threshold which requires the applicant to establish exceptional circumstances, it is appropriate that I make some reference to authorities which have considered the meaning of that expression.

In R v NK, [4] Hall J summarised principles drawn from a number of authorities in which the meaning of the expression had been considered. His Honour observed that s 15AA creates a rebuttable presumption against bail being granted to a person charged with a terrorism offence. In that regard, his Honour made reference to the decision of Bongiorno J in Hammoud v The Director of Public Prosecutions. [5] His Honour also observed that s 15AA prevents the Court from granting bail unless satisfied that exceptional circumstances exist, but that the provision does not prohibit a grant of bail in all cases. His Honour observed that each application must be dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances of cases do alter, and that it is rarely (if ever) that a simple “one size fits all” approach will be the best way of achieving a just and individual result. He also observed that the onus is on the applicant to affirmatively satisfy the Court that exceptional circumstances are made out, and that the section imposes a high hurdle. He also observed that the use of the word “exceptional” indicates that what must be shown is that there is something which is out of the ordinary in some respect.

His Honour said that the concept of exceptional circumstances is necessarily a flexible one, and that such circumstances may be constituted by a combination of matters taken together. Moreover, not only can a combination of circumstances be exceptional, they may be circumstances which:

Contained within the Crown material is a lengthy Crown case statement. For present purposes, it is sufficient for me to adopt the summary that I set out in my previous judgment: [6]

It goes without saying that the allegations against the applicant are serious. If he is convicted, he will necessarily be sentenced to a substantial period of imprisonment.

The applicant relied on two affidavits, the first which was that of his father of 19 August 2019. That affidavit set out a number of circumstances, including what was, in effect, an undertaking by the applicant’s father that he would supervise the applicant if released, and would bring to the attention of the authorities any breach(es) of any condition(s). The applicant’s father also confirmed that there is an available security of approximately $700,000.00, to ensure the applicant’s attendance at court, such security being in the form of the family home which is unencumbered. In that respect, the applicant’s father offered himself as an acceptable person.

The applicant’s father did not give evidence before me on this occasion, but there was no objection to the tender of the transcript of his evidence from the hearing of the previous application. In those circumstances, I am obviously entitled to have regard, not only to what the applicant’s father said on that occasion, but also to the conclusions I expressed in my previous judgment in respect of his evidence which were as follows: [7]

The observations that I made on that occasion are consistent with the affidavit of Carrick May of 23 November 2018, the material annexed to which establishes that in the early part of 2016 (i.e. in the period leading up to his arrest) the applicant’s relationship with his parents was strained, to the point where the applicant’s father had reported him missing to the police.

The applicant also relied on an affidavit of his solicitor, Stephen Alexander, of 28 August 2019. Annexed to that affidavit was material relating to a proposed condition that the applicant be subject to electronic monitoring if released. The material included an affidavit of Laura Windsor which was before me on a previous application.

I made the following assessment of that evidence in my previous judgment: [8]

The Crown tendered a bundle of material which included the following:

All of the material to which I have referred was admitted without objection, and no deponent of any affidavit or statement was cross-examined.

Some of the evidence relied upon by the Crown was of considerable significance. It included the affidavit of Mr Vita, the manager of the Cobham Juvenile Justice Centre. The applicant was taken to that centre upon his arrest. He was transferred to the Frank Baxter Juvenile Justice Centre in May 2017, but returned to Cobham on 24 April 2019 where he remains. In his affidavit [9] Mr Vita expressed what might be described as a generally positive view of the applicant’s attitude since being taken into custody:

Those observations do not sit entirely comfortably with other aspects of Mr Vita’s affidavit, and in particular with documents which are annexed to it and which establish (inter alia) that:

Over and above those matters, there are two further instances of misbehaviour which are of some significance.

The first was on 17 April 2019, the report of which states (inter alia) as follows:

Mr Kilani is, as I understand it, an Imam who is employed within the Corrective Services system to assist Muslim inmates.

Dr Rodger Shanahan, an expert in Islamic studies who was called by the Crown in the applicant’s trial, provided a statement which is before me on the present application, in which he expressed a more benign view than that of Mr Kilani in respect of the material found in the applicant’s possession:

However, I was informed by the Crown (and I accept) that when providing that opinion, Dr Shanahan had available the list of contents of the publications, rather than the publications themselves. His views must therefore be assessed in that light.

In the course of submissions, the Crown took me to parts of the book entitled “Kitab At Tauhid”, in which reference is made to (inter alia) persons being guided to “the right path”, the necessity to “challenge evil doers”, the necessity to be “prepared to face every torture and atrocities from these selfish misguiders and their followers”, and to “make every effort to fight against circumstances up to the extent of Jihad”. [10] Those, and other passages to which I was taken in the course of submissions, are indicative of the general tone of the publication.

The second incident of significance arising from the applicant’s period in custody occurred on 13 April 2019 and was reported in the following terms:

The document confirms that the applicant continued his “protest” for a period of three days.

Also included in the Crown material is a statement of Steven Ballas, the proprietor of the Bankstown Gun Shop from where, on the Crown case, the applicant and HG purchased the knives to which I referred in my summary of the facts. It was Mr Ballas’ teenage son who served HG when the knives were purchased. Both Mr Ballas and his son are important witnesses in the Crown case. Each has given evidence in the applicant’s previous trials. Bearing those matters in mind, Mr Ballas stated the following: [11]

A further affidavit which assumes some significance in light of the proposal for release is that of Commander McLean of the Australian Federal Police. I have already noted that no deponent of any affidavit was cross-examined on this application. That necessarily includes Commander McLean. Accordingly, his evidence is unchallenged. In his affidavit, Commander McLean canvassed, at some length, systems of electronic monitoring, the level of their efficiency, and his experience of them. He made those observations by particular reference to two Commonwealth prosecutions which were commenced in this State. In one of those prosecutions the accused, who was the subject of electronic monitoring, absconded and remains at large. [12] In the other, the accused was released subject to electronic monitoring, the signal for which was interrupted on several occasions and which, in the opinion of Commander McLean, created an unwarranted impost upon the resources of the Australian Federal Police. [13]

Counsel for the applicant submitted that exceptional circumstances were made out on the basis of the strength (or lack of strength) of the Crown case, and the delay which will be occasioned in the applicant coming to trial for a third time. He also relied upon what might be described as a series of personal circumstances pertaining to the applicant, including his strong family support, his stable accommodation, his continuing education, his relative youth, his strong ties to the jurisdiction, his minor criminal history, what was said to be the low risk of flight or reoffending, and the fact that he had agreed to be subject to electronic monitoring. It must be said that many of those latter factors are not uncommon to those who seek release on bail. In fact, leaving aside issues of the strength of the Crown case and the question of delay, the vast majority of those remaining matters relied upon by the applicant to constitute exceptional circumstances could not, in my view, be said to fall into that category. I made observations to that effect in my previous judgment. [14] Nothing has changed in that respect.

It follows that in my view the real question, at least as to the issue of exceptional circumstances, is whether such circumstances can be made out having regard to the lack of strength of the Crown case, and the delay in the applicant coming to trial.

In terms of the first of those matters counsel submitted that the Crown case was weak. He emphasised the fact that at the applicant’s first trial in 2018, the jury was unable to reach a unanimous verdict. Whilst counsel accepted that the situation was different in the most recent trial, he submitted that having regard to the circumstances which led to the discharge of the jury, [15] the only available inference was that there had been substantial disagreement between the members of the jury at an early stage of their deliberations. Counsel’s submission effectively amounted to the proposition that I should conclude that had the members of the jury continued to deliberate, they would not have been able to reach a unanimous verdict.

As to the question of delay, and noting what I had said about that issue in my previous judgment, [16] counsel for the applicant submitted that the position had now been reached where, either of itself or in combination with what was said to be the weakness of the Crown case, the delay in the applicant coming to trial was exceptional. Counsel pointed out, consistent with the indications that I have already given, that it can reasonably be expected that by the time the applicant comes to trial again he will have been in custody for approximately 3½, and possibly up to 4, years.

On the assumption that I found that exceptional circumstances had been made out, counsel for the applicant appeared to accept that there were two identified risks, namely a risk of flight, and a risk of the commission of a further offence. Counsel submitted that both of these risks were comprehensively addressed by the conditions which were proposed and which, as I have said, effectively amount to a form of house arrest. Counsel submitted that those conditions, in combination, were obviously stringent, and that the electronic monitoring added what he described as “another layer of protection”.

In terms of the applicant’s disciplinary breaches in custody to which I have referred, counsel for the applicant submitted that most of them were “old”, and had occurred when the applicant was much younger. Counsel also pointed out that in relative terms, many of the breaches were of a minor nature. He cited, as an example, occasions on which the applicant had breached rules by praying in areas which were not designated for that purpose.

As to the more recent breaches, counsel for the applicant urged me to consider the context in which they had been committed, namely that the applicant had been in custody for a long period of time. In terms of the publications which were found in the applicant’s possession, it was submitted that there was no evidence that the applicant had been complicit in bringing them into the facility in some clandestine fashion, that there was no evidence that he was in possession of them in circumstances where he had previously been told that he could not have them, and that there was no evidence he had expressed a desire to keep them after they were found.

Counsel further submitted that whilst there was some evidence of the applicant and his parents having previously had a difficult relationship, that should again be viewed in the context of the applicant having been a much younger man at that time. In terms of the conduct of the applicant’s father towards Mr Ballas, counsel for the applicant described such conduct as “inappropriate and regrettable”. However he submitted that the evidence did not rise to the height of the applicant’s father asking, much less demanding, that Mr Ballas and/or his son not give evidence for the Crown. Counsel submitted that one interpretation of what had occurred was that the applicant’s father was simply apologising for his son’s behaviour.

The Crown turned firstly to the issue of the strength of the Crown case, and submitted that the case was no weaker, and was in fact stronger, than it had been when I had considered the previous application for release. Such increased strength was said to stem from the fact that the Crown had now amended the indictment to allege an offence committed by the applicant jointly with HG, which had the effect of facilitating the admissibility, in the applicant’s separate trial, of evidence relating to (inter alia) the acts and ideologies of HG.

The Crown submitted that it would not be open to infer from the circumstances which led to the discharge of the jury in the applicant’s most recent trial that, had the deliberations continued, the jury would have been unable to reach a unanimous verdict. It was the Crown’s submission that to reach that conclusion would involve engaging in impermissible speculation. The Crown submitted that, viewed as a whole, the note [17] which led, in part, to the decision to discharge the jury, should be interpreted as having been written in a state of disharmony which stemmed, in effect, from clashes of personalities rather than from differing views of the evidence. [18]

The Crown further submitted that the delay was not so significant as to amount, either of itself or in combination with other factors, to exceptional circumstances. The Crown submitted that as a general proposition, cases of this nature take longer to come to trial, and that delays of this magnitude should not be regarded as unusual or exceptional.

In the event that I found that exceptional circumstances were made out, the Crown proceeded on the basis that there were the two identified risks previously noted, namely the risk of flight, and the risk of the commission of a further serious offence.

As to the first of those matters, the Crown accepted that there was no history of the applicant failing to appear at court on any occasion. However, the Crown submitted that the applicant was necessarily facing trial for a serious offence, in circumstances where the Crown case was strong. It was submitted that in these circumstances, the risk of flight was necessarily greater. [19] The Crown further submitted that given the penalty that the applicant was obviously facing, he had a motive to flee and that he could do so effectively, given the history of his parents being unable to control him.

In terms of the risk of the commission of a serious offence, the Crown invited me to pay particular attention to the extremist material which was adduced in the Crown case at the applicant’s previous trial, which was found on devices to which the applicant was connected. In the Crown’s submission, that evidence demonstrated that the applicant held, and adhered to, a violent ideology. On the Crown case, that ideology is inextricably linked to, and indeed underpins, the alleged offending. The Crown submitted that in light of the publications which were recently found in the applicant’s possession in custody, the only available conclusion was that the applicant continues to adhere to that ideology, thus increasing the risk of further offending if he is released.

The Crown submitted that the applicant’s community ties were unremarkable, and were limited, in the sense that they were linked only to the applicant’s immediate family, and no-one else. The Crown also submitted that I should have particular regard to the conduct of the applicant’s father towards Mr Ballas, in light of which I would conclude that the applicant’s father was not an acceptable person for the purposes of acting as a surety.

Finally, the Crown drew my attention to the evidence of Commander McLean to which I have referred, and to his documentation of the failures and shortcomings of the system of electronic monitoring. The Crown submitted that I should conclude that electronic monitoring is, to say the least, imperfect, and is not necessarily effective in informing the authorities of the whereabouts of an alleged offender, let alone effective in preventing the commission of a further offence.

As I have already noted, the authorities make it clear that exceptional circumstances can be constituted by a combination of matters. In the circumstances of this case, two matters are relied upon, namely the strength of the Crown case, and delay.

As to the first of those matters, I have now presided over the trial of the applicant on two occasions. Having done so, I have no reason to alter the view I expressed in my previous judgment [20] that the Crown case is strong.

To conclude that the jury would not have reached a unanimous verdict in the last trial had their deliberations continued, necessarily involves, as the Crown submitted, an impermissible degree of speculation. There was, apparently, some disagreement between the members of the jury at an early stage of deliberations. To what extent that may have been promoted by, or linked to, the obvious personal disharmony between the members of the jury, as opposed to differing views of the evidence, is not entirely clear. However, I am not prepared to conclude that had the jury been allowed to continue to deliberate, they would have been unable to reach a unanimous verdict.

All of that said, I am satisfied that the totality of the delay in the applicant coming to trial is exceptional. I do not accept the proposition that a delay of between 3½ and 4 years is normal or usual. That is not my experience. I am also unable to accept the proposition that the delay in the present case is attributable to the fact that cases of this nature generally take longer to come to trial. In making those observations, I do not, in any way, seek to attribute the blame for the delay to any party. However, the delay has now reached the point where it is exceptional, particularly in circumstances where the applicant is a teenager.

For all of those reasons I am satisfied that exceptional circumstances have been made out. In accordance with the legislative scheme that I set out earlier in this judgment, that necessitates taking the second step and considering the unacceptable risk test proposed by the NSW Act.

There are, as I have said, two identified risks, the risk of flight and the risk of the commission of a further offence. Put simply, it is the applicant’s position that those risks are addressed and mitigated by the comprehensive conditions which are proffered. The Crown submits that this not so.

In considering those issues, it is necessary for me to make a number of observations.

Firstly, as a general proposition, and at the risk of stating the obvious, the efficacy of conditions of the kind which have been proposed in this case fundamentally depends on those conditions being complied with by the person against whom they are imposed. The applicant has an unfortunate history of not complying with rules and regulations to which he is subject. True it is that some of his disciplinary breaches in custody, such as praying in areas not designated for that purpose, might be regarded as relatively trivial. However, the significance of such breaches lies in the fact that they have been repeated. They demonstrate either an inability, or worse still a fundamental unwillingness, on the part of the applicant to abide by conditions and rules to which he is subject. How could I, I ask rhetorically, have any confidence at all in those circumstances that if the applicant were released he would comply with any conditions set by the Court?

Secondly, in my view it is no answer to say that the majority of those breaches are “old”. Whilst some do date back to 2017 and 2018, their significance as I have said, lies in the fact that they are repeated. Moreover, the incident in April 2019 where the applicant protested by sitting atop a set of cricket nets for three days was, quite simply, an act of complete defiance, committed over a long period of time, in the course of which the applicant consistently refused to comply with requests made of him to cease his behaviour. He apparently did so in the hope that the authorities would eventually capitulate, and cave in to his demands to be transferred to another recreational facility. In acting as he did over a prolonged period, the applicant demonstrated his complete and utter disregard for rules and regulations to which he is subject.

Thirdly, it is a significant part of the Crown case that the applicant subscribed to a violent ideology which motivated and underpinned his alleged offending. The material found in his possession in custody is capable of sustaining an inference that he continues to subscribe to that ideology. The views of Mr Kilani in relation to that material are obviously significant. The applicant’s possession of that material necessarily goes directly to the risk of further offending. In my view, nothing in the proposed conditions properly mitigates that risk.

Fourthly, I am unable to accept the proposition that electronic monitoring partly answers these difficulties, and adds another layer of protection. In my previous judgment [21] I made a number of observations as to the nature of the system of electronic monitoring, and its imperfections. The unchallenged evidence of Commander McLean supports those observations. The outcome of one of the cases referred to by Commander McLean makes it very clear that those who are electronically monitored can still abscond. The outcome of the other demonstrates the practical imperfections of the system.

Fifthly, one of the difficulties with the application is that it is proposed that the applicant be released into the custody of his father and mother. There is an obvious issue in adopting that proposal in view of the evidence of Mr Ballas. In my view, it is no answer to that evidence to say that the conduct of the applicant’s father was “inappropriate and regrettable”. Mr Ballas made it clear at the time of the first approach by the applicant’s father that he did not wish to speak to him. Notwithstanding that, the applicant’s father made a second attempt to speak to Mr Ballas, only a matter of days before the commencement of the applicant’s trial in July of this year. It may well be that in acting as he did, the applicant’s father committed an offence although that is not something that I have to determine for the purposes of this application. Even if he did not, the fundamental unacceptability of a proposal which would see the applicant released into the custody of his father, in circumstances where his father impermissibly and inappropriately approached an important Crown witness, needs no further elucidation.

Sixthly, and at an even more fundamental level, the proposal which has been advanced has the effect of placing the applicant in precisely the same environment in which he found himself when he allegedly committed this offence. I have already made reference to the evidence given by the applicant’s father before me on the last occasion. Put bluntly, and without wanting to unduly criticise him, the fact is that in the period leading up to the applicant’s offending, the applicant’s father did not know where the applicant was, or with whom he was associating. He was unable to control him. I accept that there is some anecdotal evidence that the applicant’s father and mother are supportive of him. For example, they consistently attended the applicant’s most recent trial. However, there is also evidence that the relationship between the applicant and his parents in the period leading up to his alleged offending was fractured. Despite their recent apparent support of the applicant, there is nothing to suggest that the applicant’s view of that relationship has changed in any material way.

In all of those circumstances, I have come to the view that the risks of flight and further offending are not adequately addressed or mitigated by the proposal which has been advanced. They remain unacceptable risks. Accordingly, the application will be refused.