AB v Director of Public Prosecutions (Cth)

[2016] NSWSC 1042

Supreme Court

New South Wales

Medium Neutral Citation:

AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042

Hearing dates:

26 July 2016

Date of orders:

29 July 2016

Decision date:

29 July 2016

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

Bail application refused

Catchwords:

CRIMINAL LAW – bail – release application – terrorism charges – youth – no association with extremists – mental illness - whether exceptional circumstances exist – weak case – risk assessment – unacceptable risk of committing a serious offence and endangering the safety of the community established – bail refused

Legislation Cited:

Bail Act 2013 (NSW)
Children (Criminal Proceedings) Act 1987
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:

R v Ebrahimi [2015] NSWCS 335
R v Hantis [2004] NSWSC 153
R v Mulahalilovic (Supreme Court (NSW), Rothman J, 1 August 2006, unrep)
R v NK [2016] NSWSC 498
R v Xi [2015] NSWSC 1575

Category:

Principal judgment

Parties:

AB (Applicant)
Director of Public Prosecutions (Cth)(Crown)

Representation:

Counsel:
Ms J Ghabrial (Applicant)

 

Solicitors:
Mr I Dib
Eidan Havas & Associates Lawyers (Applicant)

  Ms K Marinos
Director of Public Prosecutions (Cth)(Crown)

File Number(s):

2016/187430

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of the applicant for bail is not to be published. On 26 July 2016 the Court ordered that pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the names and identities of AB’s family, the address at which any reside and the name of his former school are not to be published.

Judgment

1. The Applicant for bail (“AB”) is seventeen years of age. “A” and “B” are not his initials. AB has been diagnosed as having an intellectual disability and Asperger’s syndrome.

2. The Commonwealth Director of Public Prosecutions (the “CDPP”) alleges that on or about 13 June 2016 AB published a series of posts on a website which revealed that he intended to attack members of the public with a knife in a suicidal attack on a crowded public area in Sydney. The CDPP does not allege that AB planned his attack in association with any group or other person or that he sought to promote any religious or radical cause. Instead the CDPP alleges he intended to carry out his threats to make a statement about the mistreatment of persons with mental illness.

3. AB faces two charges under the Criminal Code 1995 (Cth) (the “Code”) one being that he did an act in preparation for a terrorist act contrary s 101.6(1) of the Code and the other that he used a telecommunications network with intention to commit a serious offence contrary s 474.14(2) of the Code. Both offences carry a maximum penalty of life imprisonment.

4. AB was arrested on 14 June 2016 and has been in custody since that time. He now seeks bail. As an offence under s 101.6(1) is defined by s 3 of the Crimes Act 1914 (Cth) to be a “terrorism offence” it follows that the Court must refuse AB bail unless it is satisfied that “exceptional circumstances” exist (Crimes Act 1914, s 15AA(1)). If such circumstances are made out then AB’s application falls to be assessed in accordance with Division 2 of Part 3 of the Bail Act 2013 (NSW) (“the Bail Act”).

5. For the reasons that follow I am satisfied that exceptional circumstances exist. In particular I am satisfied that the prosecution case against AB is weak partly because the preponderance of evidence before the Court suggests that it was unlikely that AB intended to carry out his threats but principally because I consider that the prosecution has minimal prospects of establishing that he planned a “terrorist attack”, that is, one carried out with the “intention of advancing a political, religious or ideological cause”. Despite this finding and despite my acceptance that AB will be affected by his incarceration due to his youth and mental fragility and notwithstanding the strictness of the proposed bail conditions I am obliged to refuse bail. This is so because the proposed bail conditions do not address the form of attack that AB discussed in his online posts and because the potential harm that could result from the materialisation of the appreciable risk that he will carry out of those threats is so great it means that the risk of harm to the community is unacceptable even allowing for the hardship that will be occasioned to AB from being detained pending trial.

6. The result that such a vulnerable youth is to be detained even though the charges against him are weak is concerning. It is an outcome mandated by the Bail Act but it, nevertheless, strongly suggests that what has been undertaken is an exercise in preventative detention. Even if that is justified, it can only provide a measure of short term security for the public. I note that at the hearing of the application the solicitor for the CDPP advised the Court that the charges would be “very, very carefully reviewed”. While the outcome of that process is a matter exclusively for the CDPP, I note that the maintenance of terrorism charges that I have found to have only weak support in the evidence serves only to prolong the period that AB is in pre-trial custody and prevents him receiving the supervision, counselling and assistance that he clearly needs. In the medium to long term it is that form of intervention which is far more likely to protect the community rather than the continued detention of AB.

The CDPP Case

7. It is necessary to describe the material before the Court concerning the CDPP’s case as well as AB’s personal circumstances.

8. Placed before the Court was a detailed statement of facts prepared by the Joint Counter-Terrorism Team attached to which were copies of various “Facebook” entries, a record of a conversation that occurred between a police officer and AB shortly after his arrest on 14 June 2016 and the transcript of a recorded interview with AB in the presence of his father that commenced at 6.32pm that day.

9. This material is capable of demonstrating that on 23 and 25 May 2016 a number of posts were placed on a Facebook account associated with AB which the CDPP contends amount to serious threats to public safety. The 23 May 2016 posts include a discussion about committing a massacre with a knife on a train or in Sydney’s central business district before the author kills themself. One of the posts states “I can get a real long sharp knife and just cut up and kill as many people that I can under a minute.” Another states “if I were to do this it would be the most far worst bloody massacre ever to happen in Australia since the Port Arthur massacre”. In another post the author refers to barricading themselves in their house with a knife to their own throat and then charging at the police. The post states “they’ll have no choice but to shoot me on the spot”. The Facebook entries include five website links referring to news articles and videos relating to the Port Arthur massacre in April 1996.

10. In the entries on 25 May 2016 the author referred to killing himself and his parents. One of the entries on this date also contain a lengthy discussion of the author’s anxieties and fears.

11. On or about 2 June 2016 an entry was posted on the Facebook account which stated amongst other matters “Attack type: mass murder (Free for all), Hostage taking Suicide attack w homemade explosive. Time of day: during early – late morning, (during peak) Expectation: Late 2016, Early 2017.” Alarming as this entry appears to be it is not a description of the type of attack that is the basis of the charge against AB.

12. On 13 June 2016 a number of comments that the CDPP contends were authored by AB were posted on the Facebook account of a television station in California that carried an article concerning the terrible events that occurred in Orlando, Florida on the previous day. These posts included a statement to the effect that the victims of the Orlando shooting deserved it and that it was “my turn for retribution”. Included with the post was a map indicating four possible targets in Sydney’s central business district (“CBD”). Two were marked as “most likely” and the others as “least likely”. A number of other posts refer to the carrying out of a massacre. They included statements that the author would “whip out my blade and start slashing every man and woman, even a child, around me”, that “its going to happen tomorrow morning, 10-11am AEST”, that the author would take his own life afterwards and “[b]ut as long it’s over 25, 50. than Ill be happy”. The CDPP alleges that the latter comment is a reference to the number of intended victims. The CDPP contends that soon after making these posts AB deleted his Facebook account and undertook a factory reboot of his computer.

13. In response to the threats a large number of police were deployed to the possible target locations. At about 11.40am on 14 June 2016 the police attended AB’s home. The CDPP contends that there were four relevant discussions with AB in which he made at least some admissions, namely a discussion with the police at the time of his arrest, a discussion with an ambulance officer who took him from his home, a discussion with a police officer in the ambulance and an electronically recorded interview with AB in the presence of his father that commenced at 6.32pm on the night of 14 June 2016 and concluded at 9.22pm. It is unclear whether either of his parents were present during the first and third of these discussions such that there is some doubt about their admissibility at any trial (see Children (Criminal Proceedings) Act 1987 (NSW), s 13).

14. No transcript or statement has been provided in relation to the first of these discussions. The only material available concerning that discussion is the references to it in the transcript of the third discussion and the recorded interview. It is alleged that during that discussion AB admitted authorship of the posts and stated that he had been planning an attack for three months. In relation to the second discussion, the CDPP contends that AB told the ambulance officer that he was “going to get a knife and go into the city and kill as many as people as I could, at least twenty”. The CDPP also alleges that he told the ambulance officer he was “going to do it to make a statement” and that it was “a statement about mental health and bullying”.

15. The transcript of the third discussion records AB stating that “it still has nothing to do with terrorism whatsoever” but instead the threatened conduct was motivated by “his wanting to seek revenge in a way for how I was treated during my childhood.” He denied that his plans had anything to do with “hate or any religion whatsoever” and said that he wanted “to make a statement and raise awareness for issues that just go silent”. He said that the issues were, or at least included, “mental health” and “depression”.

16. Possibly out of a concern about the admissibility of the earlier discussions, during parts of the recorded interview later that day the police referred AB to what he said at the time of his arrest, including what I have just summarised, and asked him to confirm that he said those words. On most occasions AB confirmed he said words to the officers at the time of his arrest that confirmed his intention to carry out his threats although he did not remember stating in the ambulance that he “wanted to make a statement and raise awareness for issues that just go silent” (p 25). However throughout this interview AB repeatedly stated that he did not in fact intend to carry out his threats and that he made the statements as either some form of “cruel joke thing” or attention seeking (p 12). He also stated that he had drunk alcohol prior to making some of his posts (p 12; 25). At one point in the interview he stated (p 38):

“…. I could never hurt anybody, not in my life. It’s not part of who I am, but yeah, I can be a troublemaker and I like to stir things up really badly, but I have to admit what I done last night was just not all right. It was just not acceptable, and I was not thinking about the consequences at that time. I just thought, I just wanted to get my own slice of attention for once. I just, because I’m regularly just so ignored all of the time by everybody. They don’t pay attention to me and I don’t have … friends or anybody to ... talk to”.

17. During the interview AB was asked about why he deactivated his Facebook account and erased his hard drive. He said that:

“... I kind of started panicking. Really kind of panicked. Like, actually panicking and I just thought, OK, OK, this has gone too far … I’m just going to deactivate my account, because I had a feeling that I could’ve, I could get tracked and traced down”.

18. Four further matters should be noted. First, the investigating police searched AB’s home and did not find any knife that could be used in the alleged attack. Second, as noted the police went to AB’s home at 11.40am. One of the posts on 13 June 2016 referred to the attack occurring at 10 to 11am the next day. AB’s home is at least 2 hours from the CBD of Sydney using public transport. Third, in his discussions with the police AB made reference to having researched the legal meaning of “terrorist act”, a matter I will return to. Fourth, the Court was advised that an examination of AB’s computer is being undertaken however it will take some time as there are approximately 3.5 million files to review. Also it is proposed to approach the entity that operates “Facebook” to obtain entries from his deleted account although it is anticipated that this will take some time.

The Strength of the CDPP Case

19. Although a bail application is not a mini trial or even a rehearsal for a trial it is necessary to make some assessment of the strength of the CDPP’s case as that is relevant to any assessment of whether exceptional circumstances have been established and, if so, the assessment of the risk of any bail concern materialising (Bail Act; s 18(1)(c)).

20. Section 101.6(1) of the Code provides for an offence punishable by a maximum penalty of life imprisonment where a person “does any act in preparation for, or planning, a terrorist act.” Section 100.1(1) defines a terrorist act as follows:

"terrorist act" means an action or threat of action where:

(a)    the action falls within subsection (2) and does not fall within subsection (3); and

(b)    the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)    the action is done or the threat is made with the intention of:

(i)    coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)    intimidating the public or a section of the public.”

21. The reference to subsection (2) in this definition is to s 100.1(2) and includes action that “causes serious harm that is physical harm to a person”. The reference to subsection (3) is not relevant for present purposes.

22. The offence created by s 474.14(2) involves the use of equipment connected to a telecommunications network in the commission of, inter alia, a serious offence against the law of the Commonwealth which in this case is said to be an offence under s 101.6(1). It follows that any deficiencies in the evidence supporting the charge under s 101.6(1) affect the charge under s 474.14(2).

23. The CDPP case contends that AB’s actions in identifying potential targets, allegedly identifying a knife for use in the attacks, using his Facebook account to post his planned attacks and deleting his Facebook account all constituted intentional acts done in preparation for, or the planning of, a terrorist act contrary to s 101.6(1) of the Code.

24. The matters should be noted assist the CDPP’s case.

25. First, it is apparent from the material tendered on this application that there is a significant issue about whether the acts said to be undertaken by AB were in fact done in preparation for, or planning, a violent attack on the public as opposed to, say, being threats made by an isolated and depressed youth who had no genuine intention to carry them through. On that issue the CDPP relies on AB’s own words and his apparent confirmation when apprehended that he intended to carry through with his chilling threats and that he had been planning to do so for a number of months. However, there are a number of matters that suggest to the contrary. As stated even though he had been supposedly planning the offence for some time no knife has been identified. AB was arrested at 11.40am at his home which is at least a 2 hour journey on public transport to the CBD. He threatened to carry out the attack between 10am and 11am that morning. There is no evidence that AB ever travelled outside his room to prepare to harm others much less that he travelled to the CBD to scope out a potential attack. As I will explain there is a substantial body of evidence that AB has a history of making very serious threats but not giving effect to them.

26. Second, the definition of “terrorist act” requires that the CDPP demonstrate that the relevant action be undertaken “with the intention of advancing a political, religious or ideological cause”. It is not suggested that AB had any connection to any religious or political group or that he even sought to identify with any such group. Instead the CDPP contends that the “ideological or political purpose for the [proposed] attacks was to raise awareness of mental health and suicide awareness”. The only material concerning this are the statements he allegedly made to the ambulance officer and, assuming they are admissible, the statements he is said to have made to the police in the ambulance. I have great difficulty in accepting that that material is capable of demonstrating an intention to advance a “political, religious or ideological cause”. Instead, those statements suggest that AB was motivated by disaffection, despair or revenge arising out his own perception that he has been ignored. While such a motivation is not necessarily inconsistent with acting with an “intention of advancing a political, religious or ideological cause” it is not sufficient to establish such an intention.

27. Based on the materials before me I consider that the CDPP has very little prospect of proving beyond reasonable doubt that, even if AB was proposing to give effect to his threats, that he was proposing to do so “with the intention of advancing a political, religious or ideological cause”. The result is that I consider the CDPP’s case against AB to be weak.

Likely delay (Bail Act; s 18(1)(h))

28. The brief of evidence against AB is due to be served on the date this judgment is published. Based on what the Court was told, the brief will not be complete as the police will not have completed their forensic examination of AB’s computer or obtained access to his deleted Facebook account. In any event if the current charges against AB are maintained and if bail is refused, then even allowing for some expedition given that AB is a juvenile in custody, I expect that he would not obtain a trial date for some 15 months.

Bail proposal

29. The bail proposal put forward on behalf of AB involves his effective confinement to his home except for the purposes of reporting to police or attending Court, the disability service provider referred to in [31], his Doctor or psychologist and, if it is considered appropriate, an educational service that his parents wish him to attend. Under the proposal, AB is to only leave home in the presence of one of his parents unless he is collected from his home by the disability service provider. It is proposed that he not access the internet or any form of social media, not possess any mobile phone with internet access and not consume any drugs or alcohol. Compliance with these conditions is sought to be ensured by the supervision of his parents, reporting to police, electronic monitoring and a requirement that he attend at the front door of his premises if required by the direction of a police officer.

AB’s Circumstances

30. As stated, AB is now 17. He is an only child. He has not attended school for a number of years. The only entry on his criminal record is a caution for a charge of assault committed in January 2014 when he was 14. No material was placed before the Court concerning that charge. From the bar table I was advised that AB was charged after he threw a rock at a car.

31. Affidavits from each of AB’s parents were read on this application. They reveal that in preschool AB was diagnosed with Asperger’s syndrome and in year 7 he was diagnosed with major depression and a mild cognitive disability. AB attended mainstream schools until he withdrew from school in year 7 after a suicide attempt following reports of being bullied. His mother stated that he attended a special needs school in 2014 but withdrew when he was bullied and again attempted suicide. His mother stated that AB was medicated in 2012 but the medication made him aggressive. She considers that his behaviour has improved since he left school and avoided “daunting social situations”.

32. AB’s mother stated that, from his birth until just before he was taken into custody, she has been with her son every single day and night. She says that three weeks ago she was contacted by other staff advising her of threats against AB from other inmates. AB was moved to a new unit which appears to have improved his mood. However, he has still expressed suicide thoughts to her. She said that her son has seen a psychologist on a number of occasions and is now taking anti-depressant medication.

33. AB’s mother also stated that if her son is released she proposes to supervise his treatment by a psychologist and a general practitioner and ensure he takes his prescribed medication. She is prepared to accompany him to Court and to such educational classes that he is permitted to attend. It is proposed that AB will attend four days a week upon a disability service that provides instruction on life, vocational and social skills for people with intellectual disabilities and mental health issues. It is also proposed that the service collect him from his home at 8.30am and return him at 3.30pm. Both of AB’s parents confirm that they will supervise the proposed bail conditions including those preventing AB from accessing the internet or social media.

Dr Dayalan’s report

34. A forensic psychiatrist’s report from Dr Sathish Dayalan dated 20 July 2016 was tendered. Dr Dayalan was provided with hospital records concerning AB and conferred with him and his family. Based on that material Dr Dayalan noted that AB had experienced delays in attaining developmental milestones and experienced difficulty in regulating his behaviour and his emotions. Although Dr Dayalan was not able to undertake a formal assessment of AB’s intellectual functioning, he nevertheless concluded that AB’s presentation was consistent with an individual with an “intellectual disability which is mild in severity” (p 11). Dr Dayalan also considered that his presentation and history supported a “diagnosis of autism spectrum disorder of mild severity”. I note three matters about Dr Dayalan’s report.

35. First, Dr Dayalan’s describes ten incidents from 2012 to 2015 in which AB received attention from a hospital or Doctor following an alleged threat to harm himself or someone else (p7-8). By far the most serious incident was a threat to place a bomb at his school. None of the threats to harm others had been acted upon. He is reported to have taken an overdose of medication on one occasion (p 7). Dr Dayalan concluded that AB “has a history of making threats of significant violence in an impulsive manner with no clear intent to act on his threats” (p 13).

36. Second, Dr Dayalan’s assessment of AB’s behaviour as alleged by the CDPP was that AB “engaged in an impulsive and attention seeking behaviour of posting threats on social media” which was consistent with his behaviour on earlier occasions. Dr Dayalan 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 to his behaviour” (emphasis added). The solicitor for the CDPP, Ms Marinos, contended that this opinion needs to be qualified because Dr Dayalan was only provided with an earlier version of the statement of facts which did not include the material concerning the Facebook posts on 23 and 25 May 2016. Even if that is correct I doubt that knowledge of those posts would cause Dr Dayalan to revise his opinion.

37. Third, Dr Dayalan addressed the impact of continued incarceration upon AB. He noted that we subject to an increased risk of being exploited and bullied at a Juvenile Justice Centre and, in light of his medical history, he is at “a heightened risk of acute decompensation in his mental state from ongoing detention in custody”. I accept that assessment.

Home monitoring

38. Part of the bail proposal for AB is that he will be fitted with a GPS based electronic monitor. An affidavit from Mr Richard Lord, a business development manager for 3M Australia Pty Ltd (“3M”), was read. 3M acquired “Abakus” which conducted a business of providing electronic monitoring systems. Mr Lord stated that electronic monitoring is implemented by a 3M technician attending on AB at the detention centre. After a device is fitted, 3M then communicates with a designated police officer and the system becomes operational. AB would then be required to carry a device that is effectively a modified mobile phone. The electronic tag on the monitor maintains radio frequency contact with that device. The monitoring system can be calibrated so as to set off an alarm if the person monitored either moves outside a specified inclusion zone or moves into a specified exclusion zone. Mr Lord explained that, if a so-called violation event occurred, then an electronic message would be automatically generated and sent to an employee of 3M. Within another “20 seconds or so” any nominated police officer who was listed with 3M as responsible for the supervision of the applicant's bail will also receive a message. A violation event occurs when the equipment is tampered with, a curfew is broken or where the person monitored moves inside an exclusion zone or outside an inclusion zone.

39. It is not clear from Mr Lord’s evidence as to whether a monitoring device can be easily removed although that appears to constitute a violation event. Another limitation of the device is that it appears to be dependent upon the adequacy of the local mobile phone coverage and GPS satellite system. The cost of the system is $20,000.00 per annum. AB’s parents have stated that they are willing to meet that cost.

40. I described the operation of an electronic monitoring system and its interrelationship with the Bail Act in in R v Ebrahimi [2015] NSWCS 335 at [31] to [33] as did Hamill J in R v Xi [2015] NSWSC 1575 at [39] to [41]. In Ebrahimi at [34] I noted that the use of such a system mitigated the risk of a person absconding but added that “it does not eliminate it” in that “[i]f a person on bail was determined to abscond and had the means to arrange it, then the delay between the notification of any violation event … and action being taken by the relevant members of the police force to apprehend them is such that they might be able to leave the jurisdiction” in the meantime. This observation applies equally to a person who is determined to commit a random violent attack.

Sureties and other material

41. In support of the bail substantial sureties are offered. In his affidavit AB’s father states that he is prepared to “put up our home for surety” which has an estimated value of $650,000 and is mortgaged for the sum of $279,000. AB’s grandparents are also prepared to mortgage their home to support their grandson’s bail. They estimate the value of their home at $550,000. It is unencumbered.

42. A number of testimonial statements were also placed before the Court from friends and acquaintances of AB’s family. The authors of the statements have known AB for many years, are aware of the charges against him and the mental health issues he faces. They describe AB as polite, quiet and well behaved. Their assessment is that he is not capable of inflicting violence.

Exceptional circumstances

43. I have already referred to the test posited by s 15AA(1) of the Crimes Act 1914. In R v NK [2016] NSWSC 498 (“NK”) at [26] Hall J synthesised the discussion in the cases concerning s 15AA as follows:

Section 15AA of the Crimes Act 1914 has been said to enact a rebuttable presumption against bail being granted to a person charged with a terrorism offence: Hammoud v DPP [2006] VSC 516 per Bongiorno J at [1].

Section 15AA of the Crimes Act 1914 prevents the court from granting bail unless it is satisfied that exceptional circumstances exist to justify bail. While such a provision requires the applicant to satisfy the court, it does not prohibit bail in all cases. I has been observed that each application for bail, even under these provisions:

“…must be so dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances do alter cases and that it is rarely, if ever, that a simple, not to say a simplistic one size fits all approach, will be the best way of achieving a just individual result”: Regina v Mirsad Mulahalilovic 2006/763, 1 August 2006, per Rothman J quoting dicta in R v Newbury, Sully J, NSWSC, 27 January 2006, unreported)

In Hammoud v DPP, supra, it was observed that as the “presumption” referred to in (1) above is rebutted only if exceptional circumstances exist to justify bail, the onus is upon an applicant to satisfy the Court affirmatively that such circumstances exist: at [2].

Section 15AA sets an extremely high hurdle. The requirement for exceptional circumstances imposes a high test.

The word “exceptional” has received judicial attention in many cases. What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective “exceptional”: Hammoud v DPP at [3].

The concept of exceptional circumstances is necessarily a flexible one. Such circumstances may be constituted by a combination of matters which taken together may render the case exceptional: Haddara v Commonwealth DPP [2006] VSC 8 at [5] per Osborn J and R v Young [2006] NSWSC 1499 at [19] and [20] per Johnson J (as to s 9C of the Bail Act 1978).

Exceptional circumstances is a threshold issue that requires a case-by-case examination and that there is no definitive definition that would apply to all cases: R v Maywand Osman 2015/12786, 12 February 2015 at p 6 per Hall J.

In considering the issue of exceptional circumstances, not only can a combination of matters constitute such features but they can include features that are subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise, absent the particular test, that the applicant is otherwise a person who will answer bail: R v Mulvihill [2013] NSWSC 1190 at [10] and [11] per Price J.

44. In NK at [44] Hall J stated that the “youth of an alleged offender is potentially an important consideration in the application of s 15AA.” In NK at [49] Hall J accepted that the psychological evidence as to the deleterious effects of detention upon an applicant for bail can “provides an additional element or factor supportive of a finding” that special circumstances are made out.

45. One matter of great potential significance to whether exceptional circumstances have been demonstrated is an assessment of the strength of the CDPP case and, in particular, whether it can be determined that the CDPP case is weak. As noted, bail applications are generally unsuitable vehicles for making any detailed assessment of the strength of a CDPP case. Hence it is not uncommon for Courts to state that they are not positively satisfied that a CDPP case is weak before concluding that exceptional circumstances have not been made out (see for example R v Mulahalilovic (Supreme Court (NSW), Rothman J, 1 August 2006, unrep)). However, if the Court does determine that the CDPP’s case is weak then that is a matter that can strongly weigh in favour of a conclusion that “exceptional circumstances” are made out (see R v Hantis [2004] NSWSC 153 at [2]). It follows from [25] that this is such a case. When that matter is considered alongside AB’s youth, his special needs and Dr Dayalan’s assessment of the impact that continued detention would have upon him, then it follows that exceptional circumstances have been demonstrated.

Bail Act 2013 (NSW)

46. The finding that exceptional circumstances exist to justify bail removes the impediment to the grant of bail created by s 15AA(1) of the Crimes Act 1914 (Cth). Instead the application for bail falls to be considered under the risk assessment process found within Division 2 of Part 3 of the Bail Act 2013 (NSW).

47. The CDPP’s submissions identified three bail concerns namely the concern that AB would fail to appear (s 17(12)(a)), that he would commit a serious offence (s 17(2)(b)) and that he would endanger the safety of the community (s 17(2)(c)). Sub-section 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” a matter I will return to.

48. The assessment of the potential concerns is to be taken having regard to the matters specified in s 18(1), many of which have already been canvassed, specifically, AB’s background, criminal history and community ties (s 18(1)(a)), the length of time AB is likely to spend in custody if bail is refused (s 18(1)(h)), any special vulnerability of AB including any cognitive or mental health impairment (s 18(1)(k)) and the bail conditions that could be reasonably be imposed (s 18(1)(p)). I am satisfied that, if he is refused bail, AB is likely to remain in custody for a substantial period and that will occasion him great hardship given his age, his mental fragility and his closeness to his family.

49. Sub-section 18(1)(l) refers to the need for an accused person to be free to prepare for his or her appearance in Court. In the case of AB his youth and mental health conditions are such that his preparation for trial is likely to be much more difficult if he is not released on bail. Sub-section 18(1)(d) refers to whether an accused person has a history of violence. AB has a history of making violent threats but not acting on them except perhaps towards himself.

50. Subsection 18(1)(b) refers to the nature and seriousness of the prosecution case, s 18(1)(c) refers to the strength of the prosecution case and subs-section 18(1)(i) refers to the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence. They can be considered together. The current charges are of the utmost seriousness and, if AB was convicted of them, I would expect that he would receive a significant custodial sentence. Any conviction would entail a conclusion that he genuinely intended to carry out an attack on the public. However, for the reasons already indicated I consider the prosecution case to be weak. If AB was only to be convicted of lesser charges involving the use of a telecommunication network to make threats or similar conduct then, given his age and circumstances, it seems unlikely that a custodial sentence would be imposed or at least not one of any significant length.

51. As stated, the CDPP contended that there is a bail concern that AB would fail to appear at Court. I accept that the potential for AB to receive a substantial custodial sentence raises a concern that he might fail to appear. However given AB’s family ties, the lack of suggestion that he has the means to abscond and the strictness of the proposed bail conditions that would be imposed to monitor his presence at home, I am not satisfied that there is an unacceptable risk of his failing to appear.

52. The remaining two suggested bail concerns, namely, committing a serious offence and endangering the safety of the community, can be considered together. There is no doubt the Facebook posts raise this concern but does an assessment of that concern give rise to an unacceptable risk? I have already referred to Dr Dayalan’s assessment that it was “unlikely” that AB intended to give effect to his threats. Although the CDPP disputes that assessment I accept it. It accords with the other matters that I have identified in [25]. However an acceptance that it is “unlikely” that AB intended to give effect to his threats must leave allowance for a realistic possibility that AB had that intention.

53. On any view, over a period of time AB ruminated about an attack on a crowded public area that is hard to secure. This form of attack is one that could potentially be carried out with minimal or no assistance, using an easily available weapon, in a short period of time and which could inflict significant harm on the community. If AB’s ruminations are accepted at face value, which I do not but cannot positively exclude, then it follows that he was prepared to carry out such an attack without any intention of surviving. AB has a history of suicidal ideation.

54. The submissions made on AB’s behalf contended that the risk that arises from these concerns could be mitigated by the imposition of bail conditions, including conditions equivalent to the imposition of house arrest at his parent’s home. I have seriously considered the bail proposal. I have no doubt that AB’s parents will do everything they can to monitor their son if he is released. No reasonable person could fail to sympathise with the anguish they must be enduring. However, I am driven to the conclusion that the risk posed by a nihilistic attack on people congregating in a public place cannot be adequately mitigated, even by a form of strict house arrest. Realistically someone willing to perpetrate that form of attack would be able to leave their house and inflict harm even if the authorities are immediately informed that they have absconded. As AB stated “I can get a real long sharp knife and just cut up and kill as many people that I can under a minute.”

55. One aspect of the application of a test of unacceptable risk is an assessment of the consequences of the relevant risk materialising together with the likelihood of it materialising. The assessment of whether the risk is unacceptable is also informed by the deleterious effect of refusing bail on the accused person, which in this case is significant. The acute difficulty for AB on this application is that, while the likelihood of him giving effect to his threats is relatively low, the consequences if he did so are likely to be horrific. As for the potential mitigating effects of the proposed bails conditions, in the events that transpired, AB identified a form of attack that is not addressed by even the strict bail conditions that are proposed. Even allowing for the effects on him of detention, I am satisfied that there is an unacceptable risk of AB committing a serious offence and endangering the safety of the community. It follows that bail must be refused. I so order.

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Decision last updated: 29 July 2016