Director of Public Prosecutions (Cth) v Sa'adat Khan
[2021] VSC 224
•30 April 2021
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted Revised |
CRIMINAL DIVISION
S ECR 2021 0046
| IN THE MATTER of s 18A of the Bail Act 1977 |
| - and – |
| IN THE MATTTER of an appeal by the Commonwealth Director of Public Prosecutions against an order granting bail to HADASHAH SA'ADAT KHAN |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12, 18 & 31 March 2021 |
DATE OF JUDGMENT: | 30 April 2021 |
CASE MAY BE CITED AS: | DPP (Cth) v Sa'adat Khan |
MEDIUM NEUTRAL CITATION: | [2021] VSC 224 |
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CRIMINAL LAW – Bail – Director’s appeal against magistrate’s grant of bail – Respondent charged with terrorist offending – Evidence of continuing commitment by respondent to extremist ideology – Whether reasonably open to magistrate to be satisfied of existence of exceptional circumstances that justified bail – Whether reasonably open to magistrate to fail to find risk posed by respondent unacceptable – Magistrate underestimated importance of recent conduct of respondent insofar as it went to the question of the risk she posed – Risk extreme – Risk could not be effectively mitigated – His Honour used his conclusion as to risk as an important plank in his decision to find exceptional circumstances – Evidence did not warrant a determination that exceptional circumstances existed – Unacceptable risk in any event – Error to have granted bail – Order granting bail set aside and grant of bail revoked – Fresh application for bail on same material as below – No exceptional circumstances – Unacceptable risk – Application refused – Bail Act 1977 ss 3AAA, 4E, 18A – Crimes Act 1914 (Cth) ss 3LA, 15AA – Criminal Code (Cth) ss 11.1, 102.8, 119.1, 119.4.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Ginsbourg | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr R Nathwani | Massi Ahmadzay & Associates |
HIS HONOUR:
Introduction
The Commonwealth Director of Public Prosecutions (‘the Director’ or ‘the appellant’) appeals against an order made in the Melbourne Magistrates’ Court on 1 March 2021 granting bail to Hadashah Sa’adat Khan (‘the respondent’) in respect of three charges she faces, including two of terrorist offending.
The charges and procedural history
Following an Australian Federal Police investigation between November 2017 and February 2020, the respondent was arrested and charged on 25 February 2020 in respect of offending which allegedly occurred in 2015 and 2016. The charges she now faces and in respect of which bail was granted are:
·Attempting to associate with a terrorist organisation contrary to ss 11.1(1) and 102.8(1) of the Criminal Code (Cth)(‘the Code’)(Charge 5)
·Performing a service for a person with the intention of supporting the commission of an offence against section 119.1, contrary to s 119.4(5) of the Code (Charge 3); and
·Failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth)(Charge 4)
The first offence is an offence against Part 5.3 of the Code. The second offence is an offence against Part 5.5 of the Code. The maximum penalty for the first charge is 3 years’ imprisonment. The maximum penalty for the second charge is life imprisonment. The third charge attracts a maximum penalty of ten years’ imprisonment.
The respondent applied for bail before a magistrate at Melbourne Magistrates’ Court in a hearing which proceeded on 3 February 2021 and 1 March 2021. For reasons which I will later spell out, the learned magistrate was required to refuse bail unless satisfied that exceptional circumstances existed to justify bail. Furthermore, even if satisfied of the existence of exceptional circumstances, his Honour was required to refuse bail if satisfied by the appellant that there was an unacceptable risk of any of the eventualities set out in s 4E(1)(a) of the Bail Act 1977 (‘the Act’).
Bail was opposed on the basis that the respondent had failed to establish the existence of exceptional circumstances, and on the further basis that even if exceptional circumstances were found to exist, there was an unacceptable risk that the respondent, if released on bail, would endanger the safety or welfare of any person, commit an offence while on bail or fail to surrender into custody in accordance with the conditions of bail.
For reasons which will be the subject of further consideration in this judgment, the learned magistrate was satisfied of the existence of exceptional circumstances, and was not satisfied that an unacceptable risk had been established by the Director. He granted bail to the respondent on her own undertaking with a surety of $550,000 and upon stringent conditions.
The committal hearing in respect of the charges proceeded in Melbourne Magistrates’ Court on 7 and 8 April 2021 before being adjourned to 23 and 24 June due to the then-unavailability of certain evidence concerning charge 3.
Grounds of appeal
By notice of appeal filed in this Court on 2 March 2021, the Director challenges the grant of bail to the respondent on the following grounds:
1.That the learned Magistrate erred in failing to find, pursuant to sections 4D and 4E of the Bail Act 1977 (Vic), that there was an unacceptable risk that if released on bail the Respondent would:
(a)endanger the safety or welfare of any person, pursuant to section 4E(1)(a)(i); or
(b)commit an offence whilst on bail, pursuant to section 4E(1)(a)(ii).
PARTICULARS OF GROUND 1
(a)The learned Magistrate failed to give any or proper weight to the following surrounding circumstances, as required by section 4E(3)(a) of the Bail Act 1977 and as defined in section 3AAA of the Bail Act 1977:
(i) the nature and seriousness of the alleged offending,
(ii) the strength of the prosecution case,
(iii) the nature of the risk posed by the Respondent,
(iv)that at the time of her arrest and remand on 25 February 2020, the Respondent was continuing to collect and store media depicting terrorist activity on an iPhone protected by a passcode that she refused to divulge to police, contrary to a Court order requiring her to do so,
(v)that following her remand, the Respondent engaged in written correspondence with another prisoner, known as ‘S’, in which she continued to express support for the doing of a terrorist act, within the meaning of section 3AAA(m)(i),
(vi)that by so corresponding, the Respondent had associated with ‘S’, within the meaning of section 3AAA(n)(i), whilst knowing that ‘S’ had expressed support for the doing of a terrorist act within the meaning of section 3AAA(2)(a)(i),
(vii)the failure of the Respondent to recant the ideological beliefs supportive of terrorist acts and violent jihad that she had expressed previously,
(viii)the accused’s home environment and background including the previous failure of the Respondent’s parents – with whom she was bailed to reside – to control the risk that she posed, and
(ix)the unavailability of any suitable or sufficiently protective treatment that could achieve her deradicalisation.
(b)The learned Magistrate gave improper weight to the following matters:
(i)the failure of investigating authorities to remand the Respondent in custody at an earlier time after she had come to their attention, and
(ii)the capacity of the bail conditions that he imposed to mitigate the risk.
2.That the learned Magistrate erred in finding that the risk posed by the Respondent could be reduced to an acceptable level so as to support a conclusion that exceptional circumstances existed to justify bail.
The law
Application of s 15AA of the Crimes Act 1914 (Cth)
Sections 15AA(1) and 15AA(2) of the Crimes Act 1914 (Cth) relevantly provide as follows:
(1)Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
(2)This subsection covers a person (the defendant) charged with, or convicted of, any of the following offences:
(a) a terrorism offence;
…
A ‘terrorism offence’ is defined in s 3 of the Crimes Act 1914 (Cth) to include an offence against Part 5.3 or 5.5 of the Code. As the respondent is charged with offences against ss 102.8(1) and 119.4(5) of the Code, which fall within Parts 5.3 and 5.5, a court cannot grant her bail unless satisfied that exceptional circumstances exist to justify bail.
Section 15AA(3A)(a) of the Crimes Act 1914 (Cth) provides the Director with a right of appeal against a decision to grant bail to a person covered by s 15AA(2).
Section 15AA(3B) of the Crimes Act 1914 (Cth) provides that such appeals may be made to a court that would ordinarily have jurisdiction to hear and determine appeals concerning decisions about bail, and are to be made in accordance with the rules and procedure applicable to that jurisdiction.
Sections 15AA(3C)–(3D) of the Crimes Act 1914 (Cth) create a mechanism for the stay of a decision to grant bail to a person covered by s 15AA(2). The Director utilised these provisions to stay the decision to grant bail to the respondent for the 72 hour period specified in s 15AA(3D)(c). At the brief hearing of this matter on 4 March 2021, I ordered that the order granting bail in the Magistrates’ Court be stayed until determination of the appeal.[1]
[1]Pursuant to an appellate court’s inherent jurisdiction to stay a decision pending appeal. See s 15AA(4) of the Crimes Act 1914 (Cth) which provides that except as provided by ss 15AA(1), (3AA), (3A), (3B), (3C) and (3D), s 15AA does not affect the operation of a law of a State or a Territory. See also Beljajev v DPP (1991) 173 CLR 28.
Section 15AA(4) of the Crimes Act 1914 (Cth) preserves the operation of the laws of a state to applications for bail and appeals covered by s 15AA, except as provided by ss 15AA(1), (3AA), (3A), (3B), (3C) and (3D).
Application of Bail Act 1967
The provisions of the Act dictate that in considering each step of the two-step bail process in this case, the learned magistrate was required to take into account the surrounding circumstances, including but not limited to the list of matters contained in s 3AAA(1) of the Act.
Director’s Appeal
The appeal is brought by the Director under s 18A of the Act. This provision represents the relevant procedure for the Court’s determination of appeals against an order of the Magistrates’ Court granting bail for the purposes of s 15AA(3B) of the Crimes Act 1914 (Cth).
Section 18A of the Act relevantly provides:
18AAppeal by Director of Public Prosecutions against insufficiency of bail etc.
(1)If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if—
(a) the Director is satisfied that—
(i) the conditions of bail are insufficient; or
(ii) the decision to grant bail contravenes this Act; and
(b) the Director is satisfied that it is in the public interest to do so.
…
(6)On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
In Director of Public Prosecutions vMolinaro (‘Molinaro’),[2] Weinberg JA summarised the principles governing s 18A appeals as follows:
The principles governing the application of s 18A of the Act are discussed in a number of authorities, including Beljajev v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (Cth), and Director of Public Prosecutions v Johnstone, but mostly usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro. It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.[3]
[2][2017] VSC 624.
[3]Ibid [7] (citations omitted).
His Honour elaborated as follows in footnote 4 to this paragraph:
It does not follow, as the respondent contended, that this Court will only allow an appeal if it concludes that the magistrate below arrived at a finding or findings that were ‘not reasonably open’. That may be too high a threshold. Put that way, it comes very close to saying that nothing short of an error of law, and perhaps even a jurisdictional error, in the sense described by the High Court in Craig v The State of South Australia (1995) 184 CLR 163, 179, is essential in order for the Director to succeed under s 18A. If a judge of this Court is of the firm view that, on the material before the Court below, there were no exceptional circumstances, or that the respondent represents an ‘unacceptable risk’ that should trigger a finding that ‘a different order should have been made’, within the language of s 18A(6). In other words, the appeal under that section should be seen as being by way of rehearing, rather than akin to judicial review of a discretionary judgment.
In considering the relevant test for such an appeal, Weinberg JA went on to state:
It was submitted on behalf of the respondent, and not challenged by the Director, that the test on an appeal of this kind, is whether the particular finding of the magistrate that is impugned was ‘reasonably open’. Frankly, I doubt that the words of s 18A should be so construed, almost akin to having to establish ‘Wednesbury unreasonableness’. However, as both parties have proceeded upon that basis, and the grounds of appeal are specifically drawn in those terms, I shall myself decide this appeal in accordance with the test so propounded.[4]
[4]Ibid [8].
In the present case, Mr Ginsbourg for the Director relied upon the analysis of Weinberg JA in Molinaro as set out in [7] and explained or qualified in footnote 4 to the decision. He submitted that there was no requirement for the Director to establish error of law. Rather, what was required was for the Director to show that for any reason, the discretion of the primary decision maker had miscarried. If this Court was of the firm view that on the material in the court below, there were no exceptional circumstances, or that the respondent did represent an unacceptable risk, that should trigger a finding that a different order should be made. The appeal should be seen as being by way of a rehearing. Mr Ginsbourg submitted, however, that even if the more stringent test actually acted upon by Weinberg JA in Molinaro of whether the particular finding of the Magistrate was ‘reasonably open’ was applied here, the appellant should still succeed.
Mr Nathwani for the respondent did not take issue that the submissions of Mr Ginsbourg in this respect were correct.
In the event that the Court finds relevant error, and sets aside the Magistrate’s decision, it must then conduct a fresh hearing in relation to the grant of bail to the respondent.[5]
[5]The Act, s 18A(6).
Summary of alleged offending
The facts of the alleged offending are set out in some detail in the statement of facts exhibited to the affidavit in response to the appeal,[6] and more briefly in the affidavit of Timeka Kennedy which is exhibited to the affidavit in support of the appeal.[7] In the circumstances I will set them out only briefly.
[6]Exhibit MA-7.
[7]Exhibit JPA-5.
The charge of attempting to associate with a terrorist organisation concerns alleged online communications in 2015 between the respondent and an Australian citizen named Abdullah El-Mir (‘El-Mir’). In June 2014, El-Mir travelled from Australia to Turkey before moving into hostile territory held by Islamic State (‘IS’). El-Mir purportedly held the self-titled position of ‘Commanding Officer of the 4th Shia Army Colonel’ and was reported as being involved in hostile activities in Iraq and Syria. In October 2014, El-Mir appeared in two widely distributed IS propaganda videos, and as a result, became known colloquially as ‘The Ginger Jihadi’.
It is alleged that in February and March of 2015, the respondent, who was aged 17 at the time and living at home in Melbourne with her family, engaged in online communication with El-Mir by the use of encrypted messaging services. During online engagement and conversations with El-Mir, the respondent displayed detailed knowledge of his location and the hostile activities in support of IS in which he was participating. The respondent saved numerous photographs of El-Mir depicting him with the IS flag, carrying and pointing assault rifles, possessing forms of artillery, and standing alongside other suspected IS fighters to a device which was later seized by law enforcement agencies. During the communications, the respondent repeatedly expressed her love for El-Mir, her willingness to marry him, and her support for him in his endeavours on behalf of IS. She made numerous promises to travel to Syria and join him, in the end claiming that her parents had refused her permission to do so. In late March 2015, the respondent ceased communication with El-Mir when they mutually decided that he should seek marriage to someone other than her. It is believed that El-Mir was killed in late 2015 whilst engaged in hostile activities on behalf of IS.
In June 2016, when she was 18 years old, it is alleged that the respondent engaged online using encrypted messaging services with an 18 year old American citizen named MA.[8] MA had been the subject of US law enforcement investigations for espousing extreme Islamic ideologies since December 2013. His investigated activities included numerous attempts to travel to conflict zones and recruit others to travel to conflict zones. It is alleged that between 15 and 21 June 2016, the respondent provided MA with the necessary gateways to support his intended travel to Syria to engage in hostile activities with IS. She acted as a conduit between MA and other IS members, including one named Abu Waqqas who was responsible for arranging MA’s ‘Tazkiya’, that is, a personal sponsor or referee required by prospective IS foreign fighters as a pre-requisite for being accepted as a member of the group. The respondent informed MA that it was her job to help people undertake ‘Hijrah’, that is, migration in the cause of Allah. She encouraged him to ‘concentrate on going there and returning to Allah as a green bird’. Investigators believe that this was a euphemism for travelling to a conflict zone and dying as a martyr in acts of religious and politically motivated violence on behalf of IS.[9]
[8]Initialised to protect the identity of the person.
[9]In Islam, there is recognition of a concept that following martyrdom, the soul of the martyr travels to paradise in the abdomen of a green bird.
During conversations with MA, the respondent claimed that she had previously assisted a female named Amina to reach IS controlled territory in Syria. Amina has been identified as a female Swedish citizen named Shabana Hashim Kamal, who departed Stockholm and migrated to Syria via Turkey in early December 2015. She is believed to have married a Pakistani IS fighter in Syria, and to be presently being held in custody in Turkey.
On 21 June 2016, MA was arrested at a location in the US[10] having purchased a bus ticket to New York. He was in possession of a one way airline ticket from New York to Casablanca, Morocco. Digital devices belonging to MA which were seized under warrant by the FBI were found to contain communications with the accused on the encrypted platforms, Kik and Telegram. These were provided to Australian authorities. MA was charged and ultimately was sentenced to imprisonment for 100 months.
[10]Location not disclosed pursuant to a proceeding suppression order made in the Melbourne Magistrates’ Court on 24 June 2021.
On 23 January 2018, a search warrant was executed at the home address of the respondent in Halam, Victoria. A number of digital devices were seized for forensic analysis. The respondent later participated in a formal police interview in which she admitted to knowing Amina from her time in Pakistan and stated that Amina was in Syria. The respondent was released pending further investigation. The examination of the digital devices revealed inter alia the stored contact details for El-Mir and IS images, videos, publications and other propaganda.
On 13 March 2019, MA met with investigators in the US and provided a formal statement implicating the respondent as one of the facilitators of his intended travel to IS territory in Syria.
The charge of performing a service for a person with the intention of supporting the commission of an offence against section 119.1 is laid in respect of the respondent’s dealings with MA.
Arrest of respondent and execution of search warrant on 25 February 2020
On 25 February 2020, investigators arrested the respondent following the execution of a second search warrant at her home address that same day. During the search, investigators seized an Apple iPhone X belonging to the respondent. Upon request of the police, the respondent refused to provide the passcode to unlock the device. That conduct is the subject of the charge of failing to comply with an order under s 3LA.
The iPhone was subsequently analysed and found to contain extremist material including 990 concerning images which included IS propaganda, IS flags, and images of beheadings, executions and IS fighters. There were 23 videos which included IS videos, Jihadist-related nasheeds,[11] and historical and instructional videos relating to Jihadism and encouraging martyrdom. The most recent video was saved to the device on 24 February 2020, that is, the day before the execution of the search warrant. This video was described by Mr Ginsbourg in his submission as an IS recruitment/propaganda video showing acts of violence including a roadside execution and espousing extremist ideology. In addition to the above, the analysis of the device revealed recent communications between the respondent and like-minded individuals, in which, amongst other things, the respondent expressed her desire to get to Jannah.[12]
[11]Islamic songs.
[12]Paradise.
Conduct of the respondent since her arrest
The respondent was received into the Dame Phyllis Frost Centre (‘DPFC’) on 26 February 2020 and has remained there ever since. Since being in custody, the appellant alleges that she has been in contact with a number of persons who share her beliefs in extremist ideology.
On 27 February 2020, a letter was sent by a male remand prisoner at Port Phillip Prison to the respondent. The male was on remand for terrorism offences, being an alleged returned foreign fighter. In the letter, the prisoner informed the respondent of the presence in DPFC of a female prisoner, referred to as S in the application and appeal, who was serving a long term of imprisonment for engaging in a terrorist act. The male prisoner recommended that the respondent get in contact with S and indicated that he would pass the appellant’s details on to S. This letter was seized by authorities at DPFC and was not received by the respondent.
In a later letter written by the male prisoner on 3 June 2020, he offered his support to the respondent, indicating that there were others of similar extreme views to the respondent who would be willing to support her.
Evidence indicates that the respondent sent and received a number of handwritten letters to and from S. This was able to be achieved outside the permitted channels of communication which were monitored by the authorities, by virtue of the fact that the respondent and S both resided in the A-side of the Murray Protection Unit at DPFC and would have been able to leave correspondence for collection outside their respective cells or at other locations in the Unit. A number of letters remained undetected by the authorities until they were later located in a number of searches of the cells of the respondent and S.
The contents of the letters showed an increasingly warm relationship between the two, with the respondent repeatedly expressing her admiration for S, and describing S as her ‘sister’. S appreciatively accepted the support of the respondent, and in a letter written by her which was seized in the cell of the respondent on 12 September 2020, stated:
May Allah …make a way out for us all and grant us an imminent victory. May He guide, protect and honour our mujahideen…And I eagerly look forward to share the fruits of Jannah with you my beloved sister, I wish this birdie was green on this card[13] ‘cause that how you’ll look with me under the …of Allah!
[13]The card featured an image of a cockatoo.
In a letter written by the respondent which was found in the cell of S on 31 October 2020, she said:
I love you to infinity and beyond…I think about you all the time, especially when I first came out and the girls told me how long you are sentenced. I remember that night in bed I cried so much I couldn’t breathe. Sounds too melodramatic but that night I cried for you more than myself…I really hope you do come out soon wallah, it would be a delight. PS I hope you know that I love you…And to the oppressors, I would just like to say, ‘They see it far (the day of Qiyamah[14] but we see it near’. The day when Allaah will be our judge…the kuffs[15] puffs better run J …I shall come as a birdie right behind you, don’t you worry.
[14]Judgment, resurrection.
[15]Alleged to be a reference to kuffars, or non-believers.
In a letter she wrote sometime prior to 31 October 2020, the respondent expressed her appreciation at having the benefit of such a deeply religious person as S to tell her if she was disobeying Allah. She claimed that she had lived her 23 years of life with a family who constantly disobeyed Allah.
In a letter which was located in the respondent’s cell on 12 September 2020, S praised the respondent for her willingness to act when given advice. She said that the likes of the respondent were:
exactly what we exactly need in our ranks – young & passionate Muslims who are ready to surrender to the will of our Maker and transform their lives so as to set an example for others to follow.
In the letter, S also expressed her sympathy to the respondent for having to deal with the frustration of living with adults who do not obey Allah.
On 30 October 2020, the respondent and S were observed seemingly deep in conversation a short time before S attacked another prisoner using secateurs, causing an injury to her finger. S later confirmed in a police interview that she was motivated by religious reasons to attack the prisoner, and had wanted to kill her. S is being investigated for terrorist offending in relation to this incident.
For her part, the respondent made a statement to Victoria Police admitting that she had spoken to S shortly before the attack, but denying any involvement. She denied any earlier communication with S via letters and downplayed the nature of their relationship. It is not alleged that the respondent was complicit in the attack upon the other prisoner.
The bail application the subject of this appeal
The respondent’s application for bail was listed before the learned Magistrate on 3 February 2021. At the commencement of the hearing, Mr Ginsbourg for the appellant withdrew a charge of recruiting for a terrorist organisation and a completed offence of associating with a terrorist organisation. A new charge of attempting to associate with a terrorist organisation was laid in its place.
The appellant tendered affidavits from Federal Agent Timeka Kennedy (‘Kennedy’) and Jennifer Hosking, Assistant Commissioner, Sentence Management Division of Corrections Victoria. An outline of submissions was also filed. Federal Agent Jan-Paul Antemes (‘Antemes’) gave sworn evidence on the hearing, adopting the affidavit of Kennedy. He gave evidence as to the meaning of a number of relevant terms used in the material, summarised the content of communications between the respondent and S, and laid out his concerns should the respondent be released on bail. In cross-examination on the second day of the hearing on 1 March 2021, Antemes gave evidence about consideration which had been given by the prosecution to amending the ‘perform services’ charge to an attempt. No amendment was now sought. He further indicated that no evidence was found of communication between the respondent and an online person known as ‘User 333’ on the respondent’s devices. Nor were any of the alleged communications with MA found on her devices.
The respondent relied upon an outline of submissions filed by Mr Nathwani and a number of letters, including one from a psychologist, Stephanie Brown.[16] Ms Brown gave sworn evidence on 1 March 2021 as to four Telehealth consultations she had had with the respondent. She diagnosed the respondent as suffering from an adjustment disorder with anxiety and depression. The respondent had reported severe and untreated mental illness stemming from early adolescence related to severe emotional abuse by her parents. Ms Brown indicated that her provisional view was that the respondent has an intellectual disability, ‘or at the very least pretty severe learning difficulties’.[17] Her initial treatment of the respondent dealt with her symptoms, and not the matter of her extremist ideology, which had not, in fact, been broached at all as a subject. Ms Brown summarised her experience in the field of deradicalisation and expressed great confidence that she would achieve success in this regard with the respondent. She indicated that she would report any risk of harm to the community to Victoria Police or the Australian Federal Police. In cross-examination, Ms Brown expressed some concern at the prospect of the respondent being bailed to live with her parents, in view of her allegation as to her treatment by them. There would be some need for family counselling. She indicated that the respondent had not expressed any acknowledgment that she has an extremist ideology, confirming that they had not discussed the matter. Her concern for the prospects of future treatment was more the respondent’s low IQ than the fact that they had not yet had any frank conversation about the matter. In spite of the negative sentiments expressed by the respondent concerning her family, Ms Brown indicated her confidence that the respondent would defer to their authority. She was concerned to hear about the alleged contact by the respondent with S, which she had not previously heard about. As for the particular letter in which the respondent had indicated that she would come as a birdie right behind S, this, too, concerned Ms Brown, but she stated that there is actually no research that links ideology with the perpetration of terrorist acts. Her lack of a history of criminal activity or problematic behaviour at school are stronger predictors of future violent activity that anything she was espousing right now, which sounded to Ms Brown ‘like rhetoric she’s picked up from the internet’.[18]
[16]Pseudonym used to protect the identity of the witness.
[17]Bail application transcript 49.
[18]Ibid 66.
As for the fact that the respondent had seemingly continued to express extremist views years after her earlier alleged offending, Ms Brown, when asked if she was concerned, said:
I’m not concerned at all around how deep seated, strongly held her irrational beliefs are, it is about her being able to access the right type of treatment so that those beliefs are challenged.[19]
[19]Ibid 67.
The fact that these extremist beliefs had endured through the years in spite of two arrests and a period of time in custody just reflected the fact that she had not been able to access the right treatment, she opined.
Ms Brown was cross-examined about the number of patients she had treated who had expressed extremist ideological beliefs and had gone as far as to commit offences. There were two.
The respondent’s father Padsha Sa’adat Khan gave evidence during the hearing. He indicated that he could provide a surety of $550,000. He indicated that neither he nor his wife was aware of what the respondent was doing online in the years 2015 to 2018. She had never confided in them. They were good Muslims. The respondent never discussed her ideology with them. This included in the period since she had been in prison, during which they spoke on the phone 1-2 times per week. If she was released on bail, they would do their best to ensure her good behaviour.
Mr Mukhtar Mohammed of the Islamic Council of Victoria (‘ICV’), Muslim Connect Program, gave evidence that the program was not designed to deal with alleged terrorist offenders. If the Board of Imams was unable to take on a client, then Muslim Connect could work with that client, but he acknowledged that their main dealings are with individuals charged with routine, rather than terrorist, offending. This was the first terrorist-linked case in which he had been involved. In cross-examination, Mr Mohammed indicated that he had raised the possibility of a deradicalisation program with the respondent. She had been accepting of the prospect. If any deradicalisation program was to be engaged in, the Board of Imams would provide it, and that could only be after sentence. Muslim Connect could not provide such a program.
Having heard the evidence referred to above, and considered the written outlines of submissions on behalf of the appellant and the respondent, his Honour provided a detailed ruling on the application which is contained in the transcript of the bail application at pages 87 to 100. His Honour correctly noted the two steps of the bail process in this case. In the ruling, his Honour described the prosecution case as ‘indeed not weak but it is certainly not an overtly strong one either’.[20] He acted on the basis that the trial would not be held before late 2022, meaning a delay of ‘2½ years or maybe longer in custody without a proper trial’.[21] Before setting out in summary the other matters that had led his Honour to find that exceptional circumstances had been made out, his Honour made it clear that in this first step of the bail process, he attached weight to his finding that any risk posed by the respondent could be ameliorated so as not to be unacceptable by the imposition of conditions. He noted the bail decision of Re Gloury-Hyde,[22] and then, seemingly paraphrasing what had been said by Priest JA at [30], said:
If an unacceptable risk is mitigated, this can also be regarded as persuasive as to whether exceptional circumstances have indeed been made out.
[20]Ibid 89.
[21]Ibid 89.
[22][2018] VSC 393.
He then outlined the following aspects of the surrounding circumstances as justifying the conclusion as to exceptional circumstances:
·The fact that the Crown case has been altered, amended and tweaked in various forms, and is now in part one charge of an attempt charge;
·The delay is an extraordinarily lengthy one until trial, in my view, some two and a half years since first remanded;
·The terrorism offences limited to internet use only and supportive administratively and not financially, and the use of what you might say no overt use of physical acts of violence;
·The length of sentence the younger (sic) adult is likely to face could be one close to serving any non-parole period;
·Additionally she had a supportive family and a substantial surety.[23]
[23]Bail application transcript 92.
His Honour then turned to unacceptable risk and detailed his reasons why he considered that the risk posed was not unacceptable. In doing so, he made repeated mention of the fact that charges were not laid at any earlier time than they were. At one point he stated:
The Crown relies on the accused applicant’s behaviour, namely the 2015 and 2016 events and then the conversations of January 20 and February 20 to persuade a court that she has gone from simply a person of interest to an unacceptable risk where she ought to be permanently remanded until trial. The Crown also relies upon her activities since remand and in custody to prove that she is a person who is committed to activities which may amount to Commonwealth criminal offending in a terrorism sense.[24]
[24]Ibid 97.
In respect of the conduct of the respondent in custody, his Honour stated that it must be viewed in the light of a person who has not been charged further in relation to the communications. As he put it:
It involves people of the same ideology, communicating with each other. Whilst these thoughts and expressions are troubling to our community, they are not necessarily unlawful or illegal, so long as they go no further than that.[25]
[25]Ibid 98.
His Honour went on to say:
To hold a young person in custody for an extended period of time based only on her, what I perceived to be historical actual offending and her recently expressed ideologies, and only ideologies, is extending the risk too far to require her to be remanded because of it.[26]
[26]Ibid 98.
The Director’s submissions
The position of the Director was set out in the amended outline of submissions and the oral submissions of Mr Ginsbourg before me.
In his oral submissions before me, Mr Ginsbourg went immediately to what he described as the main focus of the appellant’s submissions. He submitted, first, that the evidence revealed that the respondent had shown a continuing, if not escalating, commitment to extremist ideology of violent jihad, coupled with a preparedness to act on those beliefs. Secondly, he submitted that there was a lack of sufficient protection for the community offered by the conditions imposed from the risk posed by the respondent.
As to the first of these, Mr Ginsbourg submitted that the evidence comes from three sources. First, the conduct of the respondent which underlies the alleged offending. Secondly, the material found on the iPhone of the respondent at the time of her arrest in 2020 which, despite her denials, clearly belonged to her. This material shows that she continued to communicate with likeminded people about her ideological beliefs and to collect extremist material right up until the time of her arrest. Thirdly, the respondent’s association and communications with S since her incarceration.
As to the matter of the asserted lack of sufficient protection for the community from the risk posed by the respondent, Mr Ginsbourg submitted that a consideration of the evidence demonstrating the risk and the clear inadequacy of the protective measures should lead the Court to a firm view, to use the language of Weinberg JA in Molinaro, that the respondent would pose an unacceptable risk, and consequently, to a clear view that exceptional circumstances had not been demonstrated in the court below because the finding of the learned magistrate as to the existence of exceptional circumstances depended on a subsidiary finding that conditions could satisfactorily reduce the risk posed so that it would not be unacceptable. Mr Ginsbourg submitted that that subsidiary finding was simply not open on the evidence.
The front line of protection on which his Honour relied, it was submitted, was the fact that the applicant would live with her parents, and undertake treatment with Ms Brown. A significant difficulty with that supposed protection was that the respondent had not even broached the topic of her beliefs with either her parents or Ms Brown, and there was nothing to indicate that she would do so in future, let alone that she would recant those beliefs.
Mr Ginsbourg described as the nub of his argument the assertion that the learned Magistrate had incorrectly treated the evidence demonstrating risk on the part of the respondent as being confined to what had occurred in 2015 and 2016. That was an incorrect analysis of the evidence because the evidence demonstrated a continuum in the beliefs of the respondent right up until late 2020, ‘indicating that the risk is both present and prescient’.[27]
[27]Appeal transcript 8.
Mr Ginsbourg submitted that the learned Magistrate misapplied specific provisions in the Act dealing with terrorism-related offending, namely, s 3AAA(1)(m) and (n). These provisions, he submitted, are a part of the overall preventive legislative response to terrorism at the Commonwealth and State level, which response, submitted Mr Ginsbourg, was fundamentally misunderstood by the magistrate. He failed to treat the respondent’s communications with S as conduct which fell squarely within paragraphs (m) and (n), viewing the communications instead as simply an exercise by the respondent of her rights to free speech and free association. In doing so, it was submitted, his Honour failed to give proper weight in the bail synthesis to the conduct of the respondent after the period of the alleged offending. His Honour wrongly considered it to be an important matter that the conduct of the respondent did not amount to criminal offending, or at least, that no additional charges had been laid. This was not to the point. What was important was what the ongoing conduct of the respondent said about the question of the risk now posed by the respondent. The evidence showed that the risk had escalated, and there was a particularly concerning aspect to that risk, because the recent conduct ‘conveys an aspiration to cross over from online conduct to physical conduct’.[28] That, submitted Mr Ginsbourg, is a new risk now posed by the respondent, and one that would be especially difficult to control.
[28]Ibid 104.
All-in-all, Mr Ginsbourg submitted that the conduct of the respondent post-2016 should have been viewed by the learned magistrate as weighing heavily against a grant of bail in this case. The failure of his Honour to give this material due regard would be sufficient to show specific error, if that was needed to be demonstrated.
Mr Ginsbourg submitted that the learned magistrate sought to write off the significance of what was found on the iPhone of the accused at the time of her final arrest as being of historical interest only. This error was compounded by his Honour’s approach to the fact that the respondent denied that the phone was hers, and that she was entitled to the presumption of innocence in this regard. The evidence would overwhelmingly establish that the phone was hers. His Honour simply did not attach sufficient weight to what was found on it.
Furthermore, it was submitted, the learned magistrate wrongly drew an inference from the fact that the respondent was not arrested between 2016 and 2020 that she did not present a risk during that time. In addition, his Honour seemingly considered that the failure to charge during that period reflected adversely on the current strength of the prosecution case. This was not a legitimate process of reasoning.
Mr Ginsbourg dealt with the matter of the insufficiency of measures in place to control the risk posed by the respondent in his written outline. He submitted that the learned magistrate failed to give proper weight to the problems in the relationship between the respondent and her parents. He should have found that her home environment would not sufficiently control the risk she posed. She had lived with her parents throughout the period of her alleged offending, yet they have remained oblivious to her offending, and, importantly, to her continuing interest in matters associated with terrorism, in spite of their knowledge of her arrest in 2018. Throughout it all, the respondent’s parents never spoke to her about her beliefs, even during the regular contact they had with her from the time of her incarceration. There would be little to inspire confidence from an objective point of view about the level of control the respondent’s parents would be able to exert over her.[29]
[29]Ibid 106.
So, too, were there problems with the support being offered by the ICV. The topic of the respondent’s ideology had not been broached by the respondent, and had been raised by Mr Mohammad only between the dates of the two days of the bail application below. It would be entirely speculative to suppose that the respondent would meaningfully engage in a process of deradicalisation. She has shown a pattern of behaviour of being very careful not to discuss her ideology with those who she knows might act, from the community’s point of view, in a protective manner, including her parents, which is to be contrasted with her forthright conduct in communications with others who hold extremist views.[30]
[30]Ibid 109.
As for Ms Brown, she attested to problems in the family relationship which caused her to hold concerns about the respondent returning to live there in the near future. Furthermore, whilst Ms Brown expressed considerable confidence about her prospects of being able to deradicalise the respondent through counselling, and his Honour placed great weight on her confidence, the ‘plainly problematic and speculative nature of protection that that counselling would provide’[31] should have been apparent.
[31]Ibid 105.
The respondent’s submissions
The simple position of the respondent, as conveyed in both the written and oral submissions of Mr Nathwani, was that the learned magistrate correctly applied the facts of the case to the applicable legal principles, was right to find that exceptional circumstances existed, and furthermore, was correct in his view that any risk posed by the respondent would not be unacceptable with the imposition of stringent conditions of bail.
Mr Nathwani submitted that when considering the appellant’s contention that the learned magistrate failed to give proper weight to the post-2016 events, it was important not to confine his findings to the comments he made immediately in support of his finding as to exceptional circumstances. He submitted that a consideration of the reasons his Honour stated in the context of the evidence he heard and the questions he asked would reveal that he did, in fact, consider the evidence in question, and all of the other factors to which he was obliged by the Act to have regard. Having done so, he came to a proper, reasoned decision with which this Court should be slow to interfere.
Mr Nathwani took issue with the appellant’s submission that the conclusion by the learned magistrate that the respondent was not an unacceptable risk was not supported by the evidence. It was supported by the evidence, as his Honour’s decision clearly showed.
In respect of the nature and seriousness of the alleged offending, his Honour appropriately acknowledged that the alleged offending was serious. However, he was right to consider that the present allegations are not at the most serious end of the spectrum. The appellant’s submissions as to seriousness went almost as far as to say that no person charged under s 119.4 should ever be released on bail. That is not the case.
As to the claim that his Honour had wrongly considered that the case on charge 3 was weakened by the fact of the Director considering an amendment to the charge, the submission was incomplete. The fact is, his Honour simply considered the strength of the case as he was obliged to do, and correctly concluded that the case was neither strong nor weak.
Turning to the post-2016 conduct, Mr Nathwani submitted that the inclusion of parts (m) and (n) in s 3AAA(1) did not mean that those matters should be elevated any higher than other considerations when the surrounding circumstances were being considered. The fact was, submitted Mr Nathwani, his Honour did take the post-2016 conduct into account in the balance, as he was required to do. This was clear from the evidence he had heard and the questions he himself asked within a short time of handing down his decision. He was fully cognisant of what the material indicated as to the ideology of the respondent and a consideration of the entirely of the material would indicate he properly took it into account.
In respect of the effect of the post-2016 material, Mr Nathwani did not dispute that the significance of the material was that it showed that after the time of her alleged terrorist offending, and up until the time of her application for bail, the respondent continued to adhere to the extreme views which she had held at the time of the offending. As for the statement by the respondent in the letter to S that she would ‘come as a birdy right behind you, don’t you worry’, if taken at face value, this was ‘troubling’.[32] As Mr Nathwani frankly conceded, ‘There’s no getting away from the contact with Prisoner S and what it potentially indicates’.[33] He submitted, however, that the risk of reoffending was but one of the circumstances required to be considered by his Honour, and cited passages from Hall v Pangemanan[34] and Re Dillon[35] in support of this. He submitted that it was apparent that his Honour did properly consider the question of the risk posed by the respondent due to her ideology, but ultimately came to the conclusion that the risk could be managed so as not to be unacceptable.
[32]Ibid 57.
[33]Ibid 58.
[34][2018] VSC 533.
[35][2018] VSC 80.
Mr Nathwani took the Court to the affidavit of Ms Hosking, noting the difficult circumstances in which the respondent had been held before being released into mainstream prison. It was entirely unsurprising that she would have become associated with the only other Muslim woman in the unit where she was held. As the evidence showed, perhaps perversely, the removal of the respondent from prison and release on bail with the provision of treatment would be more likely to address her ideology than further time in custody.
Mr Nathwani addressed the strength of the prosecution case. He pointed to some deficiencies, in the end submitting that the case was neither strong nor weak. He also submitted that the offending alleged was not at the serious end of the spectrum. In doing so, he took the Court to sentences passed in a number of other loosely comparable cases. He submitted that in the event of a conviction, in light of the age of the respondent at the time of the events and now and the other circumstances applicable to her, any sentence would be likely to be relatively modest, with the non-parole period likely to be exceeded by the time on remand.
Mr Nathwani did not accept that the learned magistrate had placed the question of risk at the forefront of his consideration of whether exceptional circumstances had been made out. It was apparent that he considered all of the relevant matters in reaching his determination of that part of the bail test.
In respect of Mr Ginsbourg’s assertion that the evidence revealed that the respondent had shown a continuing, if not escalating, commitment to extremist ideology of violent jihad, Mr Nathwani made no challenge to the assertion, other than to faintly contend that what happened in recent times did not amount to an escalation because it did not result in the laying of charges. Nonetheless, he conceded that the material found on the respondent’s phone at the time of her most recent arrest and her having reached out in prison to a convicted terrorist who had been sentenced for a ‘terrible offence’[36] were concerning and troubling features of the case. As he put it, when confronted with the respondent’s words, ‘I shall come as a birdy right behind you’:
Yes, I understand the context and I understand if accepted at face value it is troubling…There’s no getting away from the contact with Prisoner S and what it potentially indicates’.[37]
[36]Appeal transcript 98.
[37]Ibid 57-8.
Mr Nathwani made submissions in respect of the circumstances and conditions under which the respondent has been held in custody, and will remain should bail be refused. Due in particular to her isolated and vulnerable position, detention in custody is particularly onerous for her.
In respect of the conditions imposed on the grant of bail by the court below, Mr Nathwani submitted that the age of the respondent and other features of the case would indicate that there was still the opportunity for her to be rehabilitated. The conditions set by the learned magistrate were directed towards achieving precisely that. It was notable that in the years at large during which time the respondent seemingly had the extremist views she has manifested again recently, she did not seek to act upon those views by martyring herself. This was at a time when no one knew of her thoughts. That has now changed. There would be many non-extremist Muslims who would be involved in her conduct on bail. They would seek to have her modify her thinking away from the extremist approach.
Mr Nathwani submitted that notwithstanding the apparently negative sentiments expressed by the respondent about her parents, there is some material indicating that she will be prepared to listen to them. Whilst she has not had much face-to-face contact with them since she was charged, she has maintained contact with them. Her father gave evidence in the court below and the respondent’s parents are supportive of her. These are not people who are infected by any extreme ideology. Being now aware of exactly what is alleged to have been done in the past by the respondent while locked away in her bedroom with her devices, they will be in a position to manage and monitor her. This, coupled with a prohibition on the use of internet-capable devices, will constitute an important element of control over her.
Mr Nathwani also spoke positively of the monitoring and treatment which would flow from the ongoing involvement of the ICV and Ms Brown, both of whom had undertaken to report any concerns.
On a different aspect of risk, Mr Nathwani submitted that in light of the fact that she had made no attempt to flee the jurisdiction through all the time when she knew she was under police investigation, the respondent is not a flight risk.
All-in-all, submitted Mr Nathwani, the conditions imposed by the learned magistrate were sufficient to reduce the risk she posed to a level where it would not be unacceptable.
Analysis
Due to the nature and seriousness of the charges she faces, the respondent was confronted at the bail application with the requirement of proving that exceptional circumstances existed to justify bail.
The phrase ‘exceptional circumstances’ is not defined in the Crimes Act 1914 (Cth). Act. It is apparent that the word ‘exceptional’ imposes a stringent test. What must be shown is that there is some situation which is out of the ordinary in some respect which the applicant for bail can point to as justifying the adjective ‘exceptional’.[38] The concept of exceptional circumstances is flexible and the test may be satisfied by a combination of matters taken together. The combination of features may include features that are subjective to the applicant, and others that bear on the nature of the alleged offence or the likelihood of the applicant answering bail. The youth of an applicant for bail is a potentially important consideration when assessing whether exceptional circumstances have been shown to exist.[39]
[38]Hammoud v DPP [2006] VSC 516.
[39]R v NK [2016] NSWSC 498.
It is apparent from the way in which the application before him proceeded and from the tenor and content of the learned magistrate’s eventual decision, including his reliance upon the passage from Re Gloury-Hyde which he paraphrased in his decision,[40] that the question of the risk posed by the respondent assumed great significance in his Honour’s determination that the respondent had surpassed the first hurdle in the test for bail.
[40]See [54] of this judgment.
Any consideration of the question of the risk posed by the respondent, of course, was required to be made in the context of the other surrounding circumstances of the case. Central amongst these was the nature and seriousness of the alleged offending, the first of the matters in the non-exhaustive list of surrounding circumstances required to be considered in both steps of the bail process pursuant to s 3AAA of the Act.
On that score, whilst his Honour described terrorism cases generally as ‘extremely serious’, it might be considered that he somewhat downplayed the seriousness of the offending alleged in this case by his description of the offending as being limited to internet use only and supportive administratively and not financially, with no overt use of physical acts of violence. The fact is, charge 3 involved assistance provided by the respondent to a prospective foreign fighter to leave his home country and travel to a conflict zone to fight in support of a terrorist organisation. As submitted by Mr Ginsbourg, the inherently grave nature of such offending, whether carried out by the use of the internet or otherwise, is reflected in the maximum penalty applicable of life imprisonment.
As for the strength of the prosecution case, his Honour considered the case to be neither weak nor strong. It does seem that part of his reasoning in that regard was to be found in one of the specific matters to which he referred in concluding that exceptional circumstances had been made out, namely:
The fact that the Crown case has been altered, amended and tweaked in various forms, and is now in part one charge of an attempt charge.[41]
[41]Bail application transcript 92.
It was incumbent upon his Honour to assess the strength of the case as it was at the time the matter was before him. That process would not have been assisted by a consideration of the matters referred to by his Honour. They would not have thrown any light on the question of the strength of the evidence. In reality, to the extent that it can and should be assessed, his Honour should have concluded that the case was a strong one. In the case of the performing a service charge, for example, the prosecution will be in the position of being able to call as a witness the person, MA, to whom it is alleged that the respondent provided assistance. His sworn evidence will be supported by the contents of his electronic devices which were seized upon his arrest in June 2016, showing the encrypted communications received from the respondent.[42] Evidence was found on the devices of the respondent at the time of her arrest which would also be supportive of the charge.
[42]For some weeks leading up to the delivery of these reasons, the status of the proposed evidence of MA and the contents of his devices was uncertain, due to an embargo effectively placed on the use of the evidence by US authorities. That issue has now been resolved and the evidence is available for use.
I now turn to the matter which was central to the grant of bail, and central to the appeal brought by the Director. Mr Ginsbourg submitted that the evidence revealed that the respondent had shown a continuing, if not escalating, commitment to extremist ideology of violent jihad, coupled with a preparedness to act on those beliefs. In my view, that two-faceted assertion has been made good.
As previously noted, Mr Nathwani did not challenge the first aspect of that assertion, other than to take issue with the ‘escalating’ part of it. Nor could he sensibly have done so.
In my view, the material before his Honour should have made it clear to him that as at the time of the application, the respondent adhered to the same extremist beliefs which had been at the heart of the offending alleged against her four years earlier. This was so in spite of her having progressed from being a teenager to a young adult, having gone through the process of arrest and police interest in her activities in 2018, and then having been arrested and spent 12 months in custody by the time of the application.
As a young adult female, and knowing that she was in custody charged with serious terrorist offending, the applicant knowingly sought out the company of another young adult female, S, who was serving a sentence for a shocking lone-wolf terrorist attack in which serious injury was caused to the immediate victim. The respondent expressed support, admiration and indeed, love, for S, who, in turn appreciatively accepted that support. The communications between the two make it abundantly clear that each fully understood that the respondent believed in the same extremist ideology as S herself. Furthermore, S seemingly contemplated that she would die as a martyr. Then, in her own words set out in [40] of this decision, in what could be considered to be quite chilling terms, the respondent seemingly held herself out as willing to die as a martyr shortly after her friend, S.
Mr Ginsbourg relied on that particular communication, in the context of the overall material, as being supportive of his contention that the risk posed by the respondent had escalated, and that there was a particularly concerning aspect to it, in that it ‘conveys an aspiration to cross over from online conduct to physical conduct’. In my view, that contention is well-founded.
It is plain to my mind that the overall conduct of the respondent from the time of her alleged offending would entirely justify the central contention of Mr Ginsbourg that the evidence revealed that the respondent had shown a continuing, if not escalating, commitment to extremist ideology of violent jihad, coupled with a preparedness to act on those beliefs.
That conclusion would make it clear that the risk posed by the respondent, while she continues to adhere to those entirely unacceptable views, is extreme. She would present a real danger to the community.
In my view, by the various statements he made about the matter of the post-2016 conduct, his Honour made it clear that he did not attach the weight to that material which it undeniably warranted. He dismissed this material as little more than the exercise by the respondent of her right to free speech and free association without seemingly properly accepting or understanding that this material said something very powerful about the degree of risk she would pose to the community should she be released on bail. I am satisfied that his Honour greatly underestimated the importance of this evidence on the question of whether the respondent had surpassed the high hurdle presented by the exceptional circumstances test.
As to the second of the main contentions of the appellant, that is, that there was a lack of sufficient protection for the community offered by the bail conditions imposed, I accept this contention as well. To my mind, confident though Ms Brown seemed that she would be able to assist the respondent to turn away from her extremist views, there is, at present, no reason to believe that, under the treatment of Ms Brown and even with the support and guidance of her parents and the ICV, the respondent would be at all willing to deviate from the path she has chosen for a number of years now. Her radical views have withstood the passage of time since her alleged offending, and the many things that have happened in her life since her incarceration. She has shown no willingness to modify her views, or even to discuss them with anyone who may seek to change them. It would be entirely speculative to think that she will be able to be deradicalised.
In my view, the material before the learned magistrate did not warrant a conclusion that the obvious risk to the community posed by the respondent should she be released on bail could be effectively ameliorated by the impositions of conditions.
There were, of course, a number of the surrounding circumstances of the respondent which were strongly in support of a grant of bail. These included her young age, her lack of prior convictions, the very substantial period she would be likely to be held on remand pending trial should bail be refused, the difficult conditions under which she had been held up to the time of the application and would be likely to be held in future, and the fact that there would be the prospect of the period on remand exceeding the likely non-parole period should she eventually be found guilty.
I am moved to the conclusion, however, that had his Honour not taken a particularly benign view of the risk posed by the respondent, and reached the positive finding that such risk as was posed by her could be mitigated effectively by the imposition of conditions, he would not have found that the respondent had established the existence of exceptional circumstances.
Considering for myself the circumstances as they were at the time of the application, I am of the firm view that the respondent had failed to establish the existence of exceptional circumstances which justified the grant of bail to her. She faced a strong case for very serious offending, and presented an ongoing danger to the community on account of her continuing adherence to the extremist ideology which was at the heart of the offending alleged against her. Not even the very significant considerations of the lengthy time she would be consigned to spending on remand and the relativity between such period and the sentence she would be likely to receive, along with the other matters in support of bail, could properly lead to the result of the respondent surpassing the high hurdle confronting her of establishing exceptional circumstances. In my view, the application for bail should have fallen at the first hurdle.
Furthermore, even if the learned magistrate had been satisfied of the existence of exceptional circumstances, the magnitude and nature of the risk posed by the respondent, in view of her strongly-held beliefs in extremist thinking, should have dictated that the measures proposed would fail to ameliorate the risk such that it would be an acceptable one. Bail should have been refused on that score in any event.
In my respectful opinion, it is clear that the learned magistrate erred in granting bail in this case. In my view, he acted on an erroneous view of the risk posed by the respondent as an important part of the material going to the existence of exceptional circumstances which justified the grant of bail. In reality, in my view it was not reasonably open to his Honour to find that exceptional circumstances had been established.
Furthermore, even if the material properly going to the question of exceptional circumstances would have justified his conclusion on the first step of the bail process, his conclusion that any risk posed by the respondent could be mitigated by the imposition of conditions so as not to be unacceptable was not reasonably open on the evidence. The risk posed by the respondent was extreme and the measures accepted by his Honour as being sufficient to control the risk were entirely inadequate in view of the entrenched views of the respondent and the lack of any acceptable material to indicate that she would be willing to change those views.
Conclusion on appeal
For the reasons set out above, I would allow the Director’s appeal and set aside the order granting bail below. I would revoke the grant of bail.
Fresh application for bail
In respect of the fresh hearing in relation to bail contemplated by s 18A(6) of the Act, Mr Nathwani was content for me to act upon the material on which he relied in seeking to resist the appeal against the original grant of bail. He did note that the unavailability for some time of prosecution evidence in respect of charge 3 caused a further delay in the matter. Neither he nor Mr Ginsbourg sought to put any additional material before the Court in respect of the fresh application. I note in particular that the evidence upon which I would form a view as to the strength of the prosecution case is the same as the evidence contemplated by the learned magistrate.
Conclusion on fresh application for bail
For reasons which I have endeavoured to spell out, I do not believe that the material before the Court below was sufficient to warrant a conclusion that the respondent had discharged the burden resting on her of proving the existence of exceptional circumstances which justified the grant of bail. Furthermore, I think that even if the first hurdle in the bail process had been surpassed by the respondent, the only reasonable conclusion on the second step would have been that the respondent posed an unacceptable risk which could not be rendered acceptable by the imposition of the conditions considered by the court.
The respondent is in no better position before me than she was in the Court below. Therefore, it follows that her fresh application for bail must be refused.
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