Haddara v Commonwealth DPP - [2006] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1400 of 2006

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an application for bail by AMER HADDARA

AMER HADDARA	Applicant
v
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

---

JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 AND 19 JANUARY 2006
DATE OF RULING:	20 JANUARY 2006
CASE MAY BE CITED AS:	APPLICATION FOR BAIL BY AMER HADDARA
MEDIUM NEUTRAL CITATION:	[2006] VSC 8	1^st Revision, 15 March 2016, Page 1, [5]

---

Application for bail – Applicant charged pursuant to s 102.3 of the Criminal CodeAct 1995 (Cth) - Must show exceptional circumstances pursuant to s.15AA of Crimes Act (Cth) – Exceptional circumstances not demonstrated.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Robert Stary	Robert Stary & Associates
For the Respondent	Mr R Maidment SC with Mr N Robinson	Commonwealth Director of Public Prosecutions

HIS HONOUR:

The applicant for bail is charged that between July 2004 and November 2005 at Melbourne and elsewhere he was contrary to s 102.3 of the Criminal CodeAct 1995 (Cth) intentionally a member of a terrorist organisation knowing the organisation was a terrorist organisation.

By reason of s 15AA of the Crimes Act 1914 (Cth) the applicant must show exceptional circumstances before bail can be granted as the offence charged falls within the category of a “terrorism offence”.

The maximum penalty for the offence charged is 10 years imprisonment. This presumably reflects the fact that the offence charged is one of association only and may not involve actual direct or indirect participation in any terrorist act.

In these circumstances it may be that the requirement to establish “exceptional circumstances” has the potential to operate in a harsh manner. Such a requirement is generally imposed only with respect to offences the seriousness of which is reflected by significantly higher penalties than those which attend the offence charged. It is possible that an offence of the kind charged may involve culpability of a wide range of degrees. Nevertheless, this Court is required to implement the law as enacted by Parliament and it is necessary for the applicant to satisfy the threshold requirement of “exceptional circumstances” before the Court turns to other considerations.

The concept of exceptional circumstances is necessarily a flexible one but it is clear that it may be constituted by a combination of matters which taken together render the case exceptional.[1]
[1]See DPP v Cozzi [2005] VSC 195 and the cases there discussed.

In the present case the applicant seeks to rely either individually or in combination upon the following assertions:

(a) that the prima facie case against him is weak;
(b)that the circumstances of his remand as an unconvicted prisoner are particularly oppressive and onerous;
(c)that he has strong ties to the jurisdiction, family support and good employment prospects; and
(d)that in realistic terms there is likely to be a delay in the resolution of the proceedings.

I shall deal…

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 Haddara v Commonwealth DPP

Details

AGLC: Haddara v Commonwealth DPP [2006] VSC 8
Case: [2006] VSC 8
Decision Date: 20 January 2006

CaseChat Overview and Summary

The matter of Haddara v Commonwealth DPP involves an application for bail by the applicant, who was charged under section 102.3 of the Criminal Code Act 1995 (Cth). The case was heard in the High Court of Australia. The primary issue before the court was whether the applicant could demonstrate exceptional circumstances warranting bail under section 15AA of the Crimes Act (Cth). The court had to determine whether the applicant's case met the stringent criteria required for such an application.

The court carefully examined the statutory provisions and relevant case law to assess whether the applicant had shown exceptional circumstances. The applicant's argument centred on the necessity of bail to facilitate certain legal proceedings, which the court found did not rise to the level of exceptional circumstances as required by the legislation. The court noted that the standard of proof for exceptional circumstances is high, and the applicant had not provided sufficient grounds to warrant an exception. The court was also mindful of the potential risks to the community and the integrity of the criminal justice system if bail were to be granted.

In conclusion, the court found that the applicant had not demonstrated exceptional circumstances as required by the statute. Consequently, the application for bail was dismissed. The court's decision was based on the applicant's failure to meet the stringent criteria for bail in such extraordinary circumstances. The orders of the court reflect this finding, with the application for bail being refused.

Orders