APPLICATION FOR BAIL BY KAYA - [2016] VSC 712

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0145

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by MURAT KAYA

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 NOVEMBER 2016
DATE OF RULING:	30 NOVEMBER 2016
CASE MAY BE CITED AS:	APPLICATION FOR BAIL BY KAYA
MEDIUM NEUTRAL CITATION:	[2016] VSC 712

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CRIMINAL LAW – Bail – Terrorism offence – Rebuttable presumption against bail – Whether exceptional circumstances – Accused on remand – Crimes Act 1914 (Cth), s 15AA – Bail Act 1977 (Vic), s 4.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Gurvich QC	Commonwealth Office of Public Prosecutions
For the Accused	Mr M Tovey QC	James Dowsley & Associates

HIS HONOUR:

A. Introduction

The applicant, Murat Kaya, was arrested on 27 May 2016 and taken into custody. He applies for bail under the Bail Act 1977 (Vic). Pursuant to s 15AA(1) and (2) of the Crimes Act 1914 (Cth), the court must not grant bail to the applicant unless it is satisfied that exceptional circumstances exist to justify bail. If the court is so satisfied, then the applicant must be granted bail unless the prosecution discharges the onus of satisfying the court that the applicant is an unacceptable risk.[1]
[1]See par 16 below.

The applicant is charged with 1 offence, namely, preparations for incursions into foreign countries for the purpose of engaging in hostile activities. The charge is presently stated by the Australian Federal Police in the “Statement of Facts” as follows:[2]

That between 6 May 2016 and 10 May 2016, in the State of Victoria and elsewhere, he did an act, namely the purchase of a motor vehicle, boat and trailer, for the purpose of undertaking travel to northern Queensland in order to depart Australia by boat, preparatory to the commission of an offence against s 119.1 of the Criminal Code (Cth) being the entry into a foreign country, with the intent to engage in a hostile activity in Syria or northern Iraq, contrary to s 119.4 of the Criminal Code (Cth).[3]
[2]Paragraph 4. The preamble to the Statement of Facts includes: “This statement has been prepared as a guide only. It does not purport to summarise all the relevant evidence in the case. It is provided as an aid and does not form part of the evidence in the hand-up brief”.
[3]Sections 119.1 and 119.4 are located in Part 5.5 of the Schedule of the Criminal Code Act 1995 (Cth). Section 15AA(1) of the Crimes Act provides that offences covered by subs (2) are governed by the “exceptional circumstances” threshold. The charge is covered by subs (2)(a), by reason that the alleged offence is a “terrorism offence”, as defined in s 3 of the Crimes Act.

B. Applicant’s background

The applicant is 25 years old. He was born on 14 February 1991 in Melbourne, Australia.

The applicant is a tiler by trade…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading APPLICATION FOR BAIL BY KAYA

Details

AGLC: Application for Bail By Kaya [2016] VSC 712
Case: [2016] VSC 712
Decision Date: 30 NOVEMBER 2016

CaseChat Overview and Summary

The matter before the Court involved an application for bail by a person named Kaya, who was facing a terrorism-related charge. The application was heard in the County Court of Victoria. The central issue for the Court was whether the rebuttable presumption against bail, which arises in terrorism cases under section 15AA of the Crimes Act 1914 (Cth), could be overcome by demonstrating exceptional circumstances under section 4 of the Bail Act 1977 (Vic). The Court needed to assess the evidence presented regarding the exceptional circumstances and determine if they were sufficient to allow bail.

The Court considered the nature of the offence, the potential risk to the community if bail were granted, and the impact of detention on the accused. It examined whether the exceptional circumstances presented by the applicant's legal team were compelling enough to justify the granting of bail. The Court also took into account the length of time Kaya had already spent on remand and the impact of continued detention on his health and well-being. Ultimately, the Court found that the exceptional circumstances did not sufficiently outweigh the presumption against bail in this case.

The Court determined that the exceptional circumstances argued did not meet the threshold required to rebut the presumption against bail in terrorism cases. Consequently, the application for bail was dismissed. The Court emphasised the seriousness of the charges and the potential risk to public safety if bail were granted. The Court's decision was based on the evidence and arguments presented, and the conclusion was that the presumption against bail remained unrebutted.

Orders