Aitken (a pseudonym) v The King - [2025] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

AITKEN (A PSEUDONYM) v THE KING
[2025] SASC 120
Reasons for Decision of the Honourable Acting Chief Justice Livesey (ex tempore)
18 July 2025
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
CRIMINAL LAW - PROCEDURE - BAIL - CONDITIONS
A review of bail is sought following a Magistrate’s decision to refuse bail on 15 May 2025, pursuant to s 14(2)(a) of the Bail Act 1985 (SA).
By an Information dated 15 May 2025, the applicant is charged with serious offences, including:
1.Two counts of blackmail, contrary to s 172(1) of the Criminal Law Consolidation Act 1935 (SA). By count 1 the applicant is charged with menacing a person, intending that the person submit to a demand, namely systemic changes at Glenunga International High School. By count 2 it is alleged that the applicant menaced a covert operative, intending that he submit to the demand of payment of large sums of Bitcoin and money.
2.The applicant is also charged with one count of an offence to contaminate goods, contrary to s 260(2)(a) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that the applicant made it appear that food (yoghurt, brownies, juice jelly, hot cross buns and apples) had been or would be contaminated with lead acetate intending to cause prejudice, or a risk of prejudice, or the apprehension of a risk of prejudice to the health and safety of the public and, by doing so, cause public alarm or anxiety.

The Director was initially opposed to all forms of bail. However, the Director’s position changed, and it was accepted that the Court may find special circumstances.
Held, granting bail on home detention conditions:
1.As the applicant is a prescribed applicant the presumption in favour of bail under s 10 of the Bail Act 1985 (SA) does not apply and the applicant cannot be released on bail unless he demonstrates the existence of “special circumstances”.
2.Notwithstanding the serious charges he faces, the applicant has demonstrated special circumstances which take this case outside the ordinary scope of the statutory provision.
3.Due to the ongoing nature of the police investigation into serious charges, and because it is likely that the applicant will need to be closely monitored whilst on home detention bail, the application is adjourned for two months pursuant to s 6(4) of the Bail Act 1985 (SA) so as to determine whether bail should be continued, varied or revoked.

Bail Act 1985 (SA) ss 10, 10A, 14; Criminal Law Consolidation Act 1935 (SA) ss 172, 260, referred to.
Dunstan v DPP (1999) 92 FCR 168; Palmieri v The King [2024] SASC 153; Question of Law Reserved No. 3 of 2023 [2024] SASCA 29; Reynolds v The King (2023) 306 A Crim R 173; R v Buhlmann [2010] SASC 123; R v Cekic (2014) 244 A Crim R 462; R v Lombardy (2013) 115 SASR 577; Saywell v Yiu (1976) 14 SASR 56; Smith v R (2020) 136 SASR 588, considered.

AITKEN (A PSEUDONYM) v THE KING
[2025] SASC 120
Application for bail review
LIVESEY ACJ (ex tempore):
Introduction

This is an application for the review of a refusal to grant bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Bail Act).
A magistrate refused bail on 15 May 2025 on the grounds that the applicant was a prescribed applicant and she was not satisfied that special circumstances had been demonstrated.
This hearing proceeds after my request for further material. I will outline that material in a moment, but it includes information from the applicant’s parents, and reports from the SA Prison Health Service and from Ms Heinrich, a psychologist who interviewed the applicant, both dated 14 July 2025.
Although I requested information from the prosecution as to why it would take police 12 months to review the applicant’s computer and other devices, in an affidavit received on 16 July, I was told that 39 devices had been seized and all but nine have been returned. I was told that it is a complicated process to recover information and that the 12-month estimate remains an estimate and “is unable to be expanded upon”. I will return to that issue.
Initially, the Director was opposed to all forms of bail. However, today I was told that the Director’s position had changed. It is now accepted that I may find special circumstances in the combination of the applicant’s young age, the likely delay of three years before a trial, that a completed search of the applicant’s home had not revealed any evidence of bombs or bomb-making equipment and that, with very stringent home detention bail conditions, any risk to the safety of the community can be mitigated.
There is a suppression order in place, including over some aspects of the applicant’s conduct so as to protect the ongoing police investigation.
The charges and the circumstances of the alleged offending
By an Information dated 15 May 2025, the applicant is charged with serious offences. By count 1 he is charged with menacing a person between 19 November 2024 and 4 February 2025 at Glenunga and other places, intending that the person submit to a demand, namely systemic changes at Glenunga International High School, contrary to s 172(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). That is a major indictable offence.
By count 2, the applicant is charged with another count of blackmail. It is alleged that this involved menacing a covert operative, intending that he submit to a demand comprising the payment of around $22.3 million in Bitcoin and just under $2.6 million in cash. This too is a major indictable offence, contrary to s 172(1) of the CLCA.
Count 3 concerns an offence of contaminate goods, contrary to s 260(2)(a) of the CLCA. It is alleged that between 19 February and 13 May 2025 at Glenunga and other places the applicant made it appear that food (yoghurt, brownies, juice jelly, hot cross buns and apples) had been or would be contaminated with lead acetate intending to cause prejudice, or a risk of prejudice, or the apprehension of a risk of prejudice to the health and safety of the public and, by doing so, cause public alarm or anxiety.
The applicant has also been charged with misusing a carriage service to menace, harass or cause offence, contrary to s 474.17 of the Commonwealth Criminal Code.
What follows is the recitation of a number of allegations. This is not evidence, and these allegations have not yet been tested. Whether they can or will be proved is the purpose of a criminal trial. Until then, the applicant is presumed innocent.
In broad outline, between November 2024 and February 2025, the Glenunga International High School received a series of emails which threatened and caused alarm. They required the school to take security measures. The sender of these emails described himself as the prophet of justice and a hero to cleanse and renew the corrupted institution known as the Glenunga International High School.
Two “futures” were threatened. One involved a physical attack or a “violent future”, and the second involved a future without a physical attack or a “non‑violent future”. To create a future free from physical attack, the sender demanded that the school respond. The sender threatened an attack involving blades and knives and said he was practiced in the severing of brain stems on animals and that he knew how to cut human thighs. Other threats included the desire to pour burning oil on a female student at a bus stop, and that a tilt-switch bomb had been designed so that when it was picked up the person would lose their hands.
SA Police quickly became involved and on 14 February 2025 police engaged with the sender. Further threats and demands were made. These included a demand for approximately $23.9 million involving a mixture of Bitcoin and cash to prevent a “violent future”. The sender said that he was experimenting with Triacetone Triperoxide, which is a homemade explosive, in conjunction with tilt‑switches, batteries and wiring. The sender said he had constructed a vest using the explosive as well as tape, wires, batteries and steel balls. The threat was that if the Bitcoin and cash were not received by 13 May 2025 there would no longer be a “non‑violent future”.
On Wednesday, 14 May 2025, the applicant was arrested and his mobile phone and backpack containing his laptop were seized.
The applicant is a former student of the high school. Staff at the high school say that he was technically proficient, having studied cyber-security and written about cyber-attacks and surveillance. He had previously been cautioned for unauthorised access to the school’s computer in 2023. Documents and other information were located on the applicant’s devices said to be consistent with the email threats. These documents indicated a familiarity with Prince Alfred College and notable Jewish community figures.
The prosecution brief includes that during 2018 the applicant attempted suicide and reported being a victim of bullying. The applicant’s girlfriend died during 2024 in what may have been a suicide.
Following arrest, police conducted a record of interview which was videoed. The applicant was charged and denied bail as a prescribed applicant.
The applicant has no relevant criminal offending history.
According to the case officer for Operation Recluse, the joint counter‑terrorism team within the Australian Federal Police (AFP), the applicant’s threats concerned what was described as a mass casualty attack at the Glenunga International High School. This school is the state’s largest public, single site secondary school with around 2,200 students and 160 staff.
The prosecution allege that an investigation of the applicant’s school Google drive revealed concerning searches, including on the following topics:
1.How to make mustard gas.
2.How to make a nuclear bomb.
3.Whether an orange tip could be put on a real gun to make it seem fake.
4.How to blow up a synagogue.
As I have said, a search of the applicant’s home revealed no evidence of any bombs or bomb making equipment or, indeed, anything of the kind described in the emailed threats.
Police anticipate that a full review of the applicant’s devices will take 12 months. I have been told that the analysis requires a “deep dive” into the use of virtual private networks (VPN) and Tor networks. A VPN creates a secure encrypted connection between a device and the internet which masks the IP address and location. A Tor “onion router” encrypts information in layers by routing user information through multiple servers. These make it “incredibly difficult to track the user behind an account”. I was also told that there was evidence of virtual machines on some of the devices which need to be reconstructed and examined. The investigation is complicated by evidence that data has been deleted and it is a complicated process to recover this data. Whilst police are using Digital Forensics (AFP) and the Digital Evidence Section (SAPOL), expert evidence may also be required.
Whilst I can understand the difficulties involved, I have difficulty understanding why no information, even some basic information given at a high level, can be given about what has been detected or why the 12-month timeframe cannot be improved upon.
The proposed bail conditions
In the period between this matter first coming on before me on 4 July and today, the parties have discussed the terms upon which home detention bail may be granted. It is fair to describe these as extremely stringent home detention bail conditions.
In substance, it is proposed that the applicant live with his parents and remain in the home under electronic monitoring unless he is receiving necessary treatment or attending court or necessary legal appointments. On what is proposed, the applicant cannot go out and he cannot go to university or any place of employment. It is not unfair to describe these conditions as amounting to incarceration in the home.
Apart from the usual conditions preventing access to drugs, alcohol or weapons of any kind, the applicant must give up any passport and it is proposed that he attend and complete intervention programs, counselling and treatment for de-radicalisation, terrorism and violent offending as well as other education and treatment.
There are, in addition, a large number of restrictions preventing contact of any kind with any person unless permission is given by a Community Corrections officer. In addition, the applicant is only allowed to use a device approved by Community Corrections in a way which is permitted by Community Corrections. Any device which he is permitted to use is at risk of being inspected and seized by Community Corrections at any time.
It is also a proposed condition that the applicant reveal any existing internet user details, email addresses, usernames and related passwords. Although there was some initial resistance to this last-mentioned condition, there is an obvious need to guard against the risks of tampering with evidence or of further offending.
In addition, I was given information about the applicant’s parents, their employment and their capacity to offer guarantees of $5,000 each as well as put up a cash surety of $5,000.
Mental health
Whilst I have a report from the SA Prison Health Service dated 14 July 2025 indicating that any mental health issues can be managed, it is noteworthy that no issues have yet been identified to the SA Prison Health Service.
In the report from Ms Heinrich dated 14 July 2025, she has described the applicant’s depression score being just shy of a clinical cutoff for a diagnosis of clinical depression and his description of symptoms as suggestive of trauma associated with incarceration. The applicant remains traumatised after his period in isolation and remains anxious to avoid any risk that he will again be detained in isolation. Ms Heinrich thinks it likely that the applicant’s mental state will worsen, and he will develop a diagnosable mental illness in custody.
The determination of the bail review
The applicant is a prescribed applicant because he was charged with blackmail, contrary to s 172 of the CLCA and taken into custody in connection with that alleged offending.[1]
[1] See the Bail Act, s 10A(2)(d)(iii). See also Question of Law Reserved No. 3 of 2023 [2024] SASCA 29, not following Smith v R (2020) 136 SASR 588 regarding the words “taken into custody”.
As a result, the presumption in favour of bail under s 10 of the Bail Act does not apply and the applicant cannot be released on bail unless he demonstrates the existence of “special circumstances”.
This restriction on the grant of bail to a prescribed applicant, notwithstanding the presumption of innocence, reflects Parliament’s view that some kinds of offending ordinarily carry a risk to the safety of the community greater than other kinds of offending. Whilst it has been held that the term “special circumstances” imports a wide and flexible approach,[2] it may be established by circumstances that demonstrate that the applicant or the alleged offending are “outside the contemplated scope” of the statutory provision.[3]
[2] R v Buhlmann [2010] SASC 123, [23] (Sulan J), relying on Saywell v Yiu (1976) 14 SASR 56, 58 (Mitchell J).
[3] R v Lombardy (2013) 115 SASR 577, [22] (Kourakis CJ).
As has been recognised on a number of occasions now, delay before trial in combination with other factors may amount to special circumstances.[4] However, even where special circumstances are established, the Court must nonetheless determine whether these and the other matters mentioned in s 10 of the Bail Act justify the grant of bail.[5]
[4] R v Cekic (2014) 244 A Crim R 462, [51] (Kelly J); Reynolds v The King (2023) 306 A Crim R 173, [23]-[27] (Kourakis CJ) (2 years); R v FN, 14 December 2022, Stein J, p11 (3 years or more).
[5] R v Cekic (2014) 244 A Crim R 462, [19]-[20] (Kelly J).
In this case, the delay associated with the investigation of the applicant’s electronic devices is likely to result in a delay to the charge determination date, a consequent delay to the committal date and the likelihood that the applicant will be incarcerated for around three years before trial during 2028. The parties were agreed about this being the likely period of delay in this case.
Long delays on remand of two or three years are, increasingly, not uncommon. Nearly one half of this State’s prisoners in custody are on remand. Delays such as these are due to a range of circumstances which include the limited number of available criminal courtrooms.
On a number of occasions, this Court has explained that delays of this order are not reasonable:[6]
A number of judges of this Court have expressed the view that a period on remand of two or three years is not reasonable.[7] All involved in the administration of criminal justice have a “heavy responsibility to … expedite trials within the constraints of ensuring a fair trial”,[8] and this extends to the obligation in the government to review and augment the resources necessary for the proper administration of justice.[9]
It has also been said that bail should not be approached on the basis that it should be denied so as to eliminate the risk of re-offending, and the better view is to determine whether “any risk is sufficient to justify … denying the accused person a legal right, the right to bail” recognised by the Bail Act. [10]
[6]    Palmieri v The King [2024] SASC 153, [28]-[29] (Livesey ACJ).
[7]    Reynolds v The King (2023) 306 A Crim R 173, [23]-[27] (Kourakis CJ) (two years); R v FN, 14 December 2022, Stein J, p11 (three years or more).
[8]    Reynolds v The King (2023) 306 A Crim R 173, [23] (Kourakis CJ).
[9]    Reynolds v The King (2023) 306 A Crim R 173, [27] (Kourakis CJ).
[10] Dunstan v DPP (1999) 92 FCR 168, [21] (Madgwick J).
In my view, and notwithstanding the serious charges he faces, the applicant has demonstrated special circumstances which take this case outside the ordinary scope of the statutory provision. Those circumstances can be identified in the combination of the following matters:
1.The applicant has only just turned 18 years of age and has no criminal history.
2.There is likely to be a long delay before any trial in this matter can take place. That delay approaches three years. Delay of that kind is not reasonable.
3.A search of the applicant’s premises has not revealed any of the materials the subject of the threats made in the email correspondence and this, together with the stringent home detention bail conditions proposed, suggest that any risk to the safety of the community can be mitigated.
4.The applicant is at risk of developing mental illness whilst incarcerated and will be unable to undertake the various courses proposed if he stays in prison. That will affect the scope for his treatment, if not his rehabilitation should there be a conviction.
Having found that there are special circumstances, and having reflected on these and the other matters set out in s 10 of the Bail Act, I am satisfied that there should be a grant of bail on condition that the applicant enter into a bail agreement containing strict home detention bail conditions.
However, because of the ongoing nature of the police investigation into very serious charges, and because it is likely that the applicant will need to be closely monitored whilst on home detention bail, I propose deferring this matter for two months pursuant to s 6(4) of the Bail Act so as to determine whether bail should be continued, varied or revoked.
Conclusion

Bail will be granted on the strict home detention bail conditions largely agreed between the parties and initialled by me.
It will be a condition of bail that the applicant’s parents jointly provide a cash surety of $5,000 and that they each provide a guarantee of $5,000.
The matter is adjourned to Tuesday, 23 September 2025 at 10.15 am.