R v WE (No.1) [2019] NSWSC 38

Supreme Court New South Wales

Medium Neutral Citation: R v WE (No.1) [2019] NSWSC 38 Hearing dates: 1 February 2019 Date of orders: 01 February 2019 Decision date: 01 February 2019 Jurisdiction: Common Law Before: Bellew J Decision: Application for release refused Catchwords: BAIL – Application by accused for release pending re-trial – Applicant charged doing an act or acts in preparation for, or planning, a terrorist act or acts – Where jury could not reach a unanimous verdict in first trial – Exceptional circumstances test – Application refused Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Evidence Act 1995 (NSW) Cases Cited: R v NK [2016] NSWSC 498 R v XX 12 February 2015, Hall J (unreported) Category: Procedural and other rulings Parties: Regina – Crown WE – Accused Representation: Counsel: R Ranken – Crown S Alexander (Solicitor) – Accused

Solicitors: Director of Public Prosecutions (Cth) – Crown Alexanders Lawyers – Accused File Number(s): 2016/305103 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. The applicant, to whom I shall refer as WE, has previously pleaded not guilty to an indictment alleging an offence of doing an act or acts in preparation for, or planning, a terrorist act or acts. That is an offence contrary to s 101.6 of the Criminal Code 1995 (Cth). It carries a maximum penalty of life imprisonment. 2. The applicant stood trial in this court with a co-accused, to whom I shall refer as HG, before a jury in 2018. At the conclusion of that trial, the jury found HG guilty of the offence to which I have previously referred. HG has since been sentenced to a term of imprisonment. However, the jury could not reach a unanimous verdict in respect of the applicant, notwithstanding some considerable period of deliberation. 3. The Crown proposes to present a further indictment against the applicant. His re-trial is listed to commence on 8 July this year. 4. The applicant made an application for release before Button J prior to his trial, which was refused. However, no issue arises in terms of the threshold imposed by s 74 of the Bail Act 2013 (NSW) ("the NSW Act"). The Crown, quite properly in my view, has accepted that the jury's inability to reach a unanimous verdict overcomes that threshold. 5. A large amount of documentary evidence was tendered on the application by each party. In addition, oral evidence was given by the applicant's father, Linda Champion, a Commander within the Australian Federal Police and the manager of the Counter Terrorism Operations North, and Laura Windsor, the Product Manager for the Australian and New Zealand division of the Attenti Group Limited. The evidence of the applicant's father went, amongst other things, to the level of supervision that he could exercise over the applicant if he were released. The evidence of Commander Champion was brief, and went to the nature and extent of monitoring conducted by the Federal Police of persons who are released on bail. The evidence of Ms Windsor went to the workings of monitoring system, the implementation of which has been proffered by the applicant as one of the conditions of his release. 6. The material tendered by the Crown included a revised Crown case statement. I do not propose, in view of its length, to recite that document in its entirety. For the purposes of the present application, the Crown case against the applicant may be shortly summarised. 7. The applicant and HG are alleged to have purchased, and later jointly possessed, two fixed-blade M9 Bayonet knives. It is the Crown case that they intended to use those knives in the perpetration of a politically, religiously or ideologically motivated attack on members of the public in suburban Sydney. The knives having been purchased, the applicant and HG were arrested at an Islamic prayer room in Bankstown. That prayer room was in close proximity to the Bankstown Court House and the Bankstown Police Station. Evidence given at the trial established that only a short time prior to their arrest the applicant and HG were in a locked bathroom in the prayer hall premises. 8. At the time of the applicant's arrest, the knives were found inside a backpack which had been in his possession earlier that day. In addition to the knives, the applicant and his co-offender had a number of other items which were consistent with preparing for an act of terrorism. They included what were referred to in the trial as neck gaiters, which had a camouflaged pattern and which were capable of being used as a type of balaclava. There was also a handwritten note, partly in Arabic and partly in English, which was located in the same backpack, and which contained what was, on the Crown case, a pledge to what might be described as extremist Islam. 9. Over and above that evidence, a large amount of electronic material was located on a phone and a computer linked to the applicant. That material, to put it bluntly, was extreme in nature. Much of it advocated killing and injuring innocent members of the community in the name of Jihad. 10. It is the Crown case that on the whole of the evidence, and bearing in mind the circumstances in which the applicant and HG were arrested, a terrorist attack, using one or other (or both) of the knives was imminent. 11. Because the applicant is charged with a "terrorism offence" as that term is defined in s 3 of the Crimes Act 1914 (Cth), the provisions of s 15AA of that Act govern this application. That section mandates that this court must refuse the applicant's release unless satisfied that exceptional circumstances are established. However, even if exceptional circumstances are established, that does not end the matter. If that point is reached, then I must consider, in accordance with the NSW Act, the question of any risks pertaining to the applicant's release. 12. In written and oral submissions, the applicant relied on a series of factors which, it was submitted, met the exceptional circumstances test when taken in combination. Those factors included: 1. the strength (or what was submitted to be the lack of strength) of the Crown case; 2. the delay in the matter coming to trial; 3. the applicant's strong family support; 4. the availability of stable and suitable accommodation for the applicant upon his release; 5. the desirability of the applicant being able to commence tertiary studies at home rather than in custody; 6. the low risk of further offending or flight; 7. the applicant's minor criminal history; 8. the applicant's relative youth; and 9. the applicant's strong ties to the jurisdiction; 10. the applicant's willingness to accept stringent conditions including electronic monitoring; and 11. the availability of a substantial security to be provided by the applicant's father. 1. As to the first of those matters, the applicant relied heavily on the fact that the Crown, having conducted its case in full, had been unable to convince the jury beyond reasonable doubt of the applicant's guilt. It was submitted, in effect, that that was a powerful exceptional circumstance and went directly to the question of the strength, or as the applicant would have it, lack of strength, of the Crown case. 2. The Crown accepted that its inability to prove the guilt of the applicant beyond reasonable doubt at his trial was a relevant factor. However, it was submitted that it was not determinative. It was the Crown's submission that none of the matters relied upon by the applicant constituted exceptional circumstances, either alone or in combination. The Crown submitted that despite the outcome of the applicant's trial, the Crown case retained what was described as a "degree of cogency", and was a strong one. 3. The Crown also accepted that the inability of the jury to reach a unanimous verdict necessarily went to the question of delay, and that by the time the applicant's case comes to trial again, he will have been in custody for approximately three years. The Crown acknowledged the obvious, namely, that that was a substantial period of time. However, even accepting all of those factors, it was the Crown's submission that such a delay was not exceptional. 4. In the event that exceptional circumstances were made out, it was the Crown's submission that there was an obvious risk of the applicant re-offending which could not be properly addressed or mitigated by the imposition of any condition or conditions. 5. It follows from what I have said that in order to succeed on the present application, the applicant must establish exceptional circumstances. Whilst the imposition of such a threshold does not prohibit the applicant's release, it constitutes a significant initial hurdle R v NK [2016] NSWSC 498 at [26]; R v XX 12 February 2015, Hall J (unreported). 6. It has been observed on more than one occasion that the expression "exceptional circumstances" is not defined, and may not be capable of precise definition for the simple reason that the facts of each case will differ. The ordinary English meaning of the term "exceptional" connotes something which is out of the ordinary or which is unusual. It would be both impossible and undesirable to lay down fixed criteria for the purposes of determining whether or not circumstances are exceptional. It follows that any determination of whether or not circumstances are exceptional must be made on a case by case basis. However, what is clear is that it is open to an applicant to rely upon a combination of factors in order to establish the exceptional circumstances required by s 15AA: NK at [26]. Moreover, it is to be borne firmly in mind that the onus of establishing exceptional circumstances is upon the applicant. 7. In light of some of the factors relied upon by the applicant, and leaving aside for one moment the question of whether or not those factors are exceptional, it is necessary for me to refer briefly to some parts of the oral evidence. 8. The applicant's father gave evidence before me and was cross-examined by the Crown. His evidence went to a number of factors, including what is said to be the applicant's strong family support, the availability of stable accommodation, and his close ties to the jurisdiction. The applicant's father impressed me as an honest and candid witness who told the truth. However, it was apparent from his evidence that in the period leading up to the applicant's arrest, the applicant was engaging in activities of which his father was completely unaware. I emphasise that I do not make that observation by way of criticism of the applicant's father. He was, as I have said, an honest and truthful witness. Equally however, his inability to exercise supervision over the applicant in the period leading up to his arrest, and his lack of awareness of some of the applicant's activities, and the identity of persons with whom the applicant was associating, obviously gives rise to a grave concern as to what might occur if the applicant were released. 9. I have also made reference to the fact that the applicant relied on his willingness to accept the imposition of electronic monitoring at his own cost. Ms Windsor gave lengthy evidence about the operation of that system of monitoring. Clearly, in terms of keeping track of somebody's whereabouts, the system has its imperfections, although I must say that such imperfections (in terms of dropouts, breaks in communications and the like) seem to me to be relatively minor. A more significant factor is that Ms Windsor expressly conceded that such system would be of no utility whatsoever in monitoring the commission of any further offence by the applicant. 10. Having considered the factors relied upon by the applicant, I am not satisfied that they amount to exceptional circumstances. The simple fact is that the vast majority of those factors are common in matters of this nature. Strong family support, availability of accommodation, minor criminal history, youth and strong ties to the jurisdiction, as well as a willingness to accept stringent conditions, are invariably proffered in support of applications for release. 11. The Crown properly accepted that the failure of the jury to reach a unanimous verdict had an impact upon the present application. However, it is not determinative and, in my view, it is not exceptional. I have obviously had the advantage of seeing and hearing the entirety of the evidence which was led by the Crown against the applicant at this trial. Whilst it is not a matter for me to determine the applicant's guilt or otherwise, in my view the circumstantial evidence relied upon by the Crown remains strong. 12. I am cognisant of the fact that when the matter comes to trial later this year the applicant will have been in custody for a substantial period. That is regrettable on any view. However, it is not exceptional and is not at odds with the delays that one sees in these applications from time to time. It should also be noted that earlier trial dates were offered, but were rejected by the applicant on the basis of his preferred counsel's availability. 13. Having come to the conclusion that exceptional circumstances have not been made out, it is unnecessary for me to make any assessment of risk. 14. In those circumstances the application will be refused.