AB v R (Cth)

HOEBEN CJ at CL:

The applicant was also charged with using a telecommunications network with the intention to commit a serious offence, contrary to s 474.14(2) of the Criminal Code. The maximum penalty is imprisonment for life.

On 8 August 2016 the applicant was further charged by Court Attendance Notice with an offence under s 474.15(1) of the Criminal Code being an offence of using a carriage service to threaten to kill. The maximum penalty for that offence is imprisonment for 10 years.

The applicant was taken into custody and admitted to the Cobham Juvenile Justice Centre on 15 June 2016. Bail was refused in the Parramatta Children’s Court. A further application to the Supreme Court for bail (Beech-Jones J) was refused on 29 July 2016 (AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042). Application was then made to this Court pursuant to s 49 of the Bail Act 2013 (NSW) (the Act) for the applicant to be released on bail.

The matter came before this Court on 15 August 2016. The Court refused to grant bail with reasons to follow. These are the reasons for the Court’s decision.

The Court had available to it a detailed Statement of Facts prepared by the Joint Counter Terrorism Team (JCTT) attached to which were copies of various Facebook entries, a record of conversations that occurred between police and AB shortly after his arrest on 14 June 2016 and a transcript of a recorded interview with AB, in the presence of his father, that commenced at 6.32pm that day.

The following summary of the JCTT Statement of Facts is taken from the judgment of Beech-Jones J of 29 July 2016:

There were some other matters set out in the JCTT Statement of Facts to which Beech-Jones J did not specifically refer in his judgment. When talking to the ambulance officer, who was called by the police, the following was said:

Although police had not completed their review of the contents of the applicant’s laptop computer, which was seized from his bedroom, the JCTT Statement of Facts set out the following which was taken from the computer as of 8 August 2016:

The applicant left school at the completion of year 9. As of the date of his arrest he was not going to school nor was he in employment. He had not engaged in any employment since leaving school. He was residing with his parents. He told police that he had a long term issue with being bullied at school.

On 26 August 2015 police escorted the young person to the Emergency Department of a hospital where he is alleged to have said “Don’t take these handcuffs off, you’ll be sorry. I’ll take your gun and shoot you both [referring to the police]. I’ll then shoot everyone else and then myself”. A short time later, the young person was speaking to medical staff at the hospital when it is alleged that he said “I’m going to stab you first and then you twice [referring to police] when I get out of here I’m going to burn XXXX Police Station down”.

Police records indicate that on 28 February 2014 the young person’s mother contacted police in relation to his aggressive behaviour. Before police arrived, the young person said to his mother something to the effect of “I’m going to kill you and beat you with a broom until you bleed to death. I will kill you”. On 10 March 2014 the young person’s mother was named as a protected person in an interim Apprehended Violence Order against the young person. The young person’s father works lengthy hours and commutes 40 minutes to and from work on a daily basis.

AB accepted that for bail to be granted the following matters had to be considered:

The applicant accepted that s 101.6(1) of the Criminal Code is a “terrorism offence” as defined by s 3 of the Crimes Act 1914 (Cth) and accordingly, he must satisfy the Court that exceptional circumstances exist before an application for bail can be considered.

Although “exceptional circumstances” is not defined by the Act, the applicant relied upon the conclusions of Hall J in R v NK [2016] NSWSC 498 at [26] where his Honour summarised the principles derived from relevant case law in relation to s 15AA of the Crimes Act.

The applicant also relied upon the observations of Levine J in R v Hantis [2004] NSWSC 153 at [2] where his Honour highlighted the second reading speech of the Bail Amendment legislation in 2003:

AB submitted that the following matters in combination established exceptional circumstances:

AB submitted that the prosecution case was weak. The key requirement for the application of s 101.6(1) of the Code was the concept of a “terrorist act”. This was defined in s 100.1(1) as:

AB submitted that there was a real issue as to whether the acts alleged to have been done by him were done in preparation for or planning a violent attack upon the public, as opposed to being threats made by a mentally unwell young person with no genuine intention to cause serious harm to a person. He relied upon what he had said in his record of interview that he was simply “trolling” the internet by posting inflammatory messages with the intention of provoking readers into an emotional response.

AB relied upon the fact that the posts on Facebook threatened an attack in the Sydney CBD between 10 and 11am AEST on 14 June 2016. When police attended his residence at 11.40am on that day he was still in bed asleep. AB also noted that his residence was approximately two hours from the CBD.

AB submitted that the reference on Facebook was to using a knife or weapon, but no such knife or weapon was found in his possession when he was arrested.

AB relied upon his response to the ambulance officer to the effect that his posts had nothing to do with ISIS and that he was not religious. He submitted that the references to bullying and mental health were not sufficient to establish that he had the intention of advancing a political, religious or ideological cause.

AB submitted that throughout his record of interview, he made it clear that his posts were a joke in bad taste, that he was not serious, that he made the posts simply to draw attention to himself and that he had been drinking at the time.

AB relied upon the assessment of the forensic psychiatrist, Dr Dayalan, to challenge the strength of the Crown case and to also support his submission that he would not be an unacceptable risk if released from custody. He noted that Dr Dayalan had assessed him as an individual with a mild intellectual disability and that his presentation and history supported a diagnosis of autism spectrum disorder of mild severity and depression. AB relied upon the weekly visits of Professor David Greenberg (a psychiatrist retained by the Crown) while he was in detention who had not challenged the diagnosis of Dr Dayalan. He noted that Dr Dayalan had now taken into account the JCTT Fact Sheet of 8 August 2016 and could not detect any clear indications that he intended to carry out his threat. Dr Dayalan had concluded that the possibility of AB intending to carry out the terrorist threats was remote.

AB submitted that his youth was relevant to both issues, i.e. the existence of “exceptional circumstances” and whether he would constitute an unacceptable risk if released on bail. AB adopted the following observation by Hall J in R v NK at [35]:

AB submitted that because he acted alone, as opposed to in the company of older offenders, did not diminish the importance of youth, particularly in circumstances where there was evidence that he had a mild intellectual disability and a diagnosis of an autism spectrum disorder of mild severity. He submitted that his cognitive immaturity was relevant to an assessment of his likely intent and capacity to commit the alleged threats. He distinguished his circumstance from that where a young offender actively participates in a telephone discussion with older men intent on committing a terrorism offence.

AB referred the Court to the issue of delay. He submitted that there was likely to be significant delay before the investigators completed a forensic examination of the computer and a further delay until trial. This was relevant in the context of a juvenile in custody, given his mental fragility and his closeness to his family.

In relation to unacceptable risk, AB disputed the submission that there would be a failure to appear at any proceedings. There was no factual basis for the submission. He did not have a passport and had no personal means of supporting flight. He lived with his family and was dependent on their support. The family had offered a substantial security and were themselves hardworking members of the community. There was also the offer to wear an appropriate electronic device.

In relation to committing a serious offence and endangering the safety of the community, AB submitted that the comprehensive package of bail conditions, which in reality amounted to home detention, would substantially prevent anything of that kind occurring. He referred to the fitting of a GPS based electronic monitor. This would be activated if there were any attempt to tamper with it or remove it. It would automatically generate a signal directed to a particular police officer who was familiar with the applicant’s case. The applicant referred to the fact that his parents’ home was approximately two hours from the Sydney CBD by public transport.

AB relied upon the significant improvement in his mental health since his arrest. He relied upon the positive report of Dr Dayalan and the report of a psychologist, Mr Hudd, who had been seeing him while he was at the Cobham Juvenile Justice Centre. He relied upon the report from the Cobham Juvenile Justice Centre which included in it positive information as to his physical and mental health and to him resuming his education. He was responding well to counselling and to new anti-depressant medication which had been prescribed for him by Professor Greenberg. AB noted the opinion of Dr Dayalan that sufficient time had passed to allow the medication to have a therapeutic effect on him and that continued compliance with that medication regime would assist in maintaining a stable psychiatric state.

I agree with the applicant’s submission that the CDPP case insofar as it relies upon ss 101.6(1) and 474.14(2) of the Criminal Code is not strong. It is clear from the wording of the sections that any deficiencies in the evidence supporting the charge under s 101.6(1) affect the charge under s 474.14(2). The highest the CDPP can put its case is to say that “the ideological or political purpose for the attacks was to raise awareness of mental health and suicide awareness”. If that was the intention behind the applicant’s conduct, it is doubtful that it would amount to “advancing a political, religious or ideological cause”.

When one has regard to the relative weakness of the Crown case in relation to those sections, and the other matters relied upon by the applicant to establish exceptional circumstances, I am satisfied that exceptional circumstances exist and that the real issue before the Court is whether the applicant can satisfy the risk assessment process found within Division 2 of Part 3 of the Act. Subsection 19(1) provides that bail must be refused if the court is satisfied “on the basis of an assessment of bail concerns … that there is an unacceptable risk”.

The two particular concerns are that if released to bail, the applicant would commit a serious offence (s 17(2)(b)) and/or that he would endanger the safety of the community (s 17(2)(c)). The assessment of those concerns is to be made having regard to the matters specified in s 18(1). These include AB’s background, criminal history, the length of time that AB is likely to spend in custody if bail is refused, any special vulnerability of AB, including any cognitive or mental health impairment, and the bail conditions that could be reasonably imposed.

While it is clear that the refusal of bail means that the applicant will remain in custody for a substantial period of time, there are some qualifications to that finding. The Court was advised that a partial CDPP brief was served before 8 August with the remainder of the brief to be served by 29 August with the defence response to be 5 September. This is the next date for the matter to come back before the Children’s Court. The Court was also advised that the police analysis of the seized computer has been completed. The significance of those matters is that the CDPP will shortly be in a position to consider all the evidence and to determine what charge or charges are the most appropriate.

There is another consideration which should not be over-emphasised but which is important. The report from Cobham Juvenile Justice Centre of 8 August 2016 indicates that the applicant’s time in custody may not have imposed as much hardship as would normally be the case. Not only is the applicant receiving appropriate medication for his mental conditions, which appear to be improving, but he has resumed his education. The applicant has access to recreational activities, such as basketball and table tennis and TV. He is receiving regular counselling and treatment by a psychologist. In his report of 12 August 2016 the psychologist, Mr Hudd, said:

Given those circumstances and the nature of the material relied upon by the Crown the fact that the applicant will remain in custody should not greatly affect his ability to prepare for his court case.

This can be contrasted with his apparent lifestyle before going into custody. He had left school after completing year 9, was unemployed and appeared to spend substantial amounts of time at home with his computer. There was no evidence of any interaction with friends or with persons outside his family.

When considering the Crown’s concerns about the safety of the public, the report of Dr Dayalan is important. His diagnosis has not been seriously challenged. Although he was not able to undertake a formal assessment, he concluded AB’s presentation was consistent with that of a person with a “intellectual disability which was mild in severity”. He assessed AB’s presentation and history as supporting a “diagnosis of autism spectrum disorder of mild severity”.

Of considerable concern are the ten incidents described by Dr Dayalan when reviewing the applicant’s history. Those ten incidents covered the period 2012 to 2015. There were threats to harm himself or someone else. There was a threat to place a bomb at his school. None of the threats to harm others had been acted upon. The conclusion of Dr Dayalan was that AB “has a history of making threats of significant violence in an impulsive manner with no clear intent to act on his threats”.

By reference to the factual summary by the CDPP, Dr Dayalan concluded that AB had “engaged in an impulsive and attention-seeking behaviour of posting threats on social media” which was consistent with his behaviour on earlier occasions. In his report of 20 July 2016 he concluded that it was “unlikely” that AB had meant to engage in a terrorist activity, or had an understanding of the potential for serious consequences from such behaviour. Subsequently, in a report dated 12 August 2016, without having seen the applicant again, Dr Dayalan for reasons which he did not explain altered his assessment of the likelihood of the applicant carrying out a terrorist attack from “unlikely” to “a remote possibility”. Significantly, however, in that most recent report Dr Dayalan went on to say:

The problem which faced the court when deciding whether or not to grant bail was the sheer ferocity of some of the threats which AB posted on Facebook. As Beech-Jones J observed, an acceptance that it was “unlikely” that AB intended to give effect to his threats must leave open as a realistic possibility that AB did in fact have that intention.

On this issue the conclusions of Beech-Jones J remain valid and accord with my assessment of the evidence. His Honour said:

Those observations by Beech-Jones J are an effective answer to the detailed information provided to the Court concerning the operation of an electronic monitoring system. What the evidence discloses was that the system was relatively easy to dismantle, i.e. cut the strap. It is accepted that to do so would immediately produce a signal which, if the system operated correctly, would also produce a reaction. The relevant police would be informed and no doubt they would, as a first response, drive to the applicant’s home. The difficulty is that if the applicant did decide to implement one of his threats, by the time police arrived he would be at large in the community without police being in a position to apprehend him. This is so whether he chose to use public transport to travel to the CBD (if that was his destination, rather than another location closer to where he lived where people might congregate) or took a taxi or some other means of transport. As recent events overseas have made clear, a person wielding a knife can cause very considerable harm before that person is neutralised.

Without wishing to in any way to denigrate the efforts of his parents, they have in the past been unsuccessful in restricting AB’s activities. His father works long hours and would be away from home during the day. His mother was unaware that he was leaving home on occasions, acquiring and consuming alcohol which he blamed for the content of some of the material he posted on Facebook. He has in the past threatened his mother and on at least one occasion, she sought an order against him.

There have clearly been episodes of mental instability affecting AB’s conduct in the past. While in custody and complying with his regime of medication and attending counselling his behaviour appears to have settled substantially. Whether that improved behaviour and control would continue if he were released to bail is unknown and can only be assessed in a predictive way as Dr Dayalan has attempted to do.

Perhaps the most disturbing aspect of the posts on Facebook is that they took place over a significant period of time, i.e. 23 May – 13 June 2016. These do not appear to have been spur of the moment thoughts but rather to have been based on or driven by some deep-seated feelings of hostility which the applicant was experiencing at the time. In deciding whether or not to grant bail, this Court has to consider the possibility of such feelings recurring and AB attempting to give effect to them.

Although a substantial surety has been offered by the applicant’s family, it cannot be safely assumed that a person who is contemplating a violent attack which will probably result in his own death would give rational thought to the implications of that conduct on his parents and the surety which they have put forward.

It is for those reasons that I have concluded that there is an unacceptable risk of AB committing a serious offence and endangering the safety of the community and that bail must be refused.

In the course of the proceedings, the issue of delay was raised with both counsel. It was also suggested that the CDPP may wish to reconsider the charges which it has brought against the applicant, particularly the two which depend upon a finding that a “terrorist act” was in contemplation by AB. A variation of the charges or some more detailed information as to the likely delay may well constitute a change in circumstances which would justify a further release application by the applicant.

While this Court cannot direct what the Court of Criminal Appeal differently constituted might do in the future, this is the sort of case where the effluxion of time may of itself produce a change of circumstances. For example, AB has been in custody for approximately eight weeks during which time his mental condition has stabilised. He has resumed his education and appears to be reacting more positively in a number of other respects. Were that situation to continue or improve in ensuing months, that may well constitute a change in circumstances which would justify a further release application.

At this point in time bail is refused.

CAMPBELL J: The reasons given by Hoeben CJ at CL, with which I am in complete agreement, express my reasons for joining in the order of the court refusing bail pronounced on 15 August 2016.

BUTTON J: I agree with Hoeben CJ at CL.