R (Cth) v IA

[2025] NSWSC 761

Supreme Court

New South Wales

Medium Neutral Citation:

R (Cth) v IA [2025] NSWSC 761

Hearing dates:

8 July 2025

Date of orders:

15 July 2025

Decision date:

15 July 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Grant the variation to delete the condition for electronic monitoring and consequential alterations.

(2)   Grant bail in relation to the offences with the number 2025/72410, being six counts of using a carriage service to access child abuse material and six counts of possession or control of child abuse material with the same conditions as for the terrorism offences as amended hereby.

(3)   Dismiss the detention application.

(4)   Conditions of bail will be as per Exhibit 3 in the proceedings.

Catchwords:

CRIME — bail — variation application — detention application — terrorist offences — “exceptional circumstances” — Bail Act 2013 (NSW) s 30A — private electronic monitoring — variation granted

CRIME — bail — release application — child abuse material offences — bail granted

Legislation Cited:

Bail Act 1978 (NSW), s 9D

Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 22A, 30A, Sch 3, Pt 6

Crimes Act 1914 (Cth), s 15AA

Criminal Code Act 1995 (Cth), ss 11.5, 101.6, 474.22, 474.22A

Firearms Act 1996 (NSW), s 51

Cases Cited:

Director of Public Prosecutions (Cth) v Dirani [2022] NSWCCA 89

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Daron John Wright (unreported 7 June 2005)

R v Hilton (1987) 7 NSWLR 745

R v Mahoney-Smith [1967] 2 NSWR 154

R v Michael John Brown [2013] NSWCCA 178

R v NK [2016] NSWSC 498

SZTAL v Minister for Immigration (2017) 262 CLR 362; [2017] HCA 34

Xerri v R [2025] NSWSC 560

Category:

Procedural rulings

Parties:

IA (Applicant)
Rex (Crown)

Representation:

Counsel:
C Austin (Applicant)
E McGuiness (Crown)

Solicitors:
Office of the Director of Public Prosecutions (Cth) (Crown)
Legal Aid (Applicant)

File Number(s):

2025/248822

JUDGMENT

1. HIS HONOUR: The Court must deal with three applications relating to a juvenile, IA, who is 17 years of age. The applications relate to his imprisonment and are applications by IA for variation of bail that had been granted and a release application in relation to an offence or offences for which bail had been refused. The third application is a detention application made by the Commonwealth Director of Public Prosecutions (hereinafter “the CDPP” or “the Commonwealth”) in respect of the bail that had already been granted.

2. The offences with which IA (hereinafter “the applicant”) has been charged are most serious. The first two offences charged against the applicant are terrorism or terrorism related offences. The applicant is charged with conspiracy to engage in an act in preparation for, or planning, a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Criminal Code”) and supply, or knowingly take part in the supply, of a firearm to another person who was not authorised to possess the firearm by a licence or permit contrary to s 51(1) of the Firearms Act 1996 (NSW).

3. For those offences, notwithstanding the legislative limitations, the applicant was granted bail. However, the bail conditions included a requirement for private electronic monitoring, which, under legislation recently passed by the NSW legislature, is no longer permissible as a condition of bail.

4. The second set of charges arose as a consequence of the investigation of the first set of charges. The law enforcement personnel on the search of electronic equipment, said to be possessed by the applicant, discovered material which gave rise to six counts of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code and a further six counts of possession or control of child abuse material, contrary to s 474.22A(1) of the Criminal Code. Those subsequent charges led to the applicant’s subsequent arrest and the refusal of bail.

5. The seriousness of the offences that have been charged are obvious. The conspiracy to engage in a terrorist act carries a maximum sentence of life imprisonment; the supply of a firearm carries a maximum sentence of five years imprisonment; the offence of using a carriage service to access child abuse material carries a maximum sentence of 15 years imprisonment (for each offence); as does each offence of possession or control of child abuse material.

6. As stated, the applicant is 17 years of age. He is a juvenile and is currently housed in a maximum-security prison, on account of the circumstance that he has been charged with a terrorist offence and all persons so charged are, until they are otherwise classified, accommodated in such a facility. A prisoner is never classified while on remand.

7. The applicant was arrested on 22 April 2024 in relation to certain different offending, contrary to the Crimes Act 1900 (NSW) (hereinafter “the Crimes Act”), being an alleged assault which occurred at a bottle shop. Because of that arrest, the applicant’s mobile phone was seized. The search of the mobile phone resulted in the terrorism charges for which the applicant was arrested and charged on 24 April 2024.

8. On 10 July 2024, Magistrate Mulroney of the Parramatta Children’s Court granted bail on strict conditions, which included electronic monitoring conducted otherwise than by the State. Apparently, the Commonwealth does not have the facility to conduct electronic monitoring.

9. After the arrest on the terrorism charges and over a period of some ten months, law enforcement authorities searched the applicant’s mobile phone further and discovered child abuse material for which the second sequence of offences was charged, and the applicant was arrested on 24 February 2025.

10. On 25 February 2025, Magistrate Herridge of the Campbelltown Children’s Court refused the applicant bail. The two terrorism charges were certified by the CDPP on 28 February 2025 and, on 21 March 2025, the applicant applied for bail to the Parramatta Children’s Court on the child abuse material charges. Magistrate Heywood refused bail.

11. The bail granted already for the terrorism charges imposes an electronic monitoring condition not conducted by the State. Since the imposition of such a condition, the State legislature has enacted s 30A of the Bail Act 2013 (NSW), which disentitles a Bail Authority, including the Children’s Court and this Court, from imposing such a condition.

12. While the legislature has promulgated transitional provisions, [1] which allow three months from the date of assent of the Amendment Act before the provision deems a person on bail to be in breach of the conditions imposed, given the impending date of that occurrence and the other applications that are before the Court, a variation is sought to delete from the conditions of bail imposed in relation to the terrorism charges, the condition for electronic monitoring.

    1. Bail Act 2013 (NSW), Sch 3, Pt 6.

13. If the Court were minded to grant the variation sought by the applicant to delete the condition for private electronic monitoring and impose certain other reporting requirements, the appropriate conditions are agreed between the CDPP and the applicant.

14. Thus, there are two general issues requiring the Court’s attention. First, whether, in the absence of private electronic monitoring, bail should be granted for the applicant; and, secondly, whether bail should be granted for the offences relating to child abuse.

The prohibition on electronic monitoring

15. I reiterate that which was the subject of comment by me on earlier occasions relating to the prohibition on private electronic monitoring. [2] In Xerri, supra, I said:

“The Court has been provided with a copy of the Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025. The Bill provides, in some senses as a corollary to provisions which already apply relating to certain offences, that private electronic monitoring will not be acceptable as a condition of bail.

The conditions that already apply require, in relation to certain offences, for Corrective Services to monitor its own electronic monitoring. In relation to other offences, that is those not covered by the current provision, electronic monitoring will be, under the impending legislation, prohibited.

It has to be said that the provision is an unusual one, to say the least. Electronic monitoring is not a panacea. It does not guarantee compliance with conditions of bail or absolute safety.

Frankly, very little would ever guarantee absolute safety, not even incarceration in most instances, but be that as it may, it is not a panacea. It is no more of a panacea when it is conducted by Corrective Services than it is when it is done by private monitoring services, save for the fact that, understandably, the legislature relies on the Corrective Services personnel to report and supervise electronic monitoring more carefully than the private monitoring services might. Also, there has been a recent issue with the bankruptcy of a monitoring service provider. Nevertheless, we start with the proposition that electronic monitoring is not a panacea.

The effect of the legislation is to prohibit the Court from allowing or permitting a condition of private electronic monitoring. There are only two possibilities that arise as a consequence of that prohibition. The first of them is that bail will be refused because the electronic monitoring is essential to ameliorating the unacceptability of the risk associated with the conditional liberty of the applicant.

Secondly, bail will be allowed without electronic monitoring. The effect of that necessarily means that, in the latter case, a protection, albeit not a guarantee but a protective condition, will not be permitted to be imposed upon persons who are thought to be a risk to society. Alternatively, the State will have to bear the cost of incarcerating the people.” [3]

2. Xerri v R [2025] NSWSC 560.

3. Xerri, supra, at [13]-[18].

16. As the Learned Chief Justice recently stated in an extra-curial statement, for a person to remain in prison costs the community over $100,000 per person per annum. It costs significantly less to operate an electronic monitoring system, which may be a means by which any risk to the community can be rendered not unacceptable.

17. Thus, that which is “achieved” by the legislation prohibiting private electronic monitoring is either a huge imposition on the community for each person who is, because electronic monitoring is unavailable, refused bail, or, if the person were granted bail, reduces the level of oversight and consequently increases the level of risk, albeit to a standard that is assessed as not unacceptable.

18. Nevertheless, the Court is required to deal with an application for release on bail in accordance with the legislative scheme enacted by the parliament. It is for the parliament to make laws and the Courts to interpret those laws and enforce them.

19. When learned Magistrate Mulroney granted bail for the terrorism offences, he was bound by the provisions of s 15AA of the Crimes Act 1914 (Cth) (hereinafter “the Commonwealth Act”). A terrorism offence is an offence covered by the provisions of s 15AA(1) and the Commonwealth Act prohibits a bail authority, which for present purposes includes the Court and the Children’s Court, from granting bail unless “satisfied that exceptional circumstances exist to justify bail”. [4]

    4. Crimes Act 1914 (Cth) (“the Commonwealth Act”), ss 15AA(1) and 15AA(2)(a).

20. As already stated, the terrorism offence carries with it a maximum sentence of life imprisonment. As a consequence, ordinarily, the provisions of the Bail Act provide that any offence punishable by imprisonment for life is a “show cause offence” and a bail authority, including the Court, “must refuse bail unless the [applicant] shows cause why his … detention is not justified”. [5] For obvious reasons, in relation to a person seeking bail, the term “detention” involves “continued detention”.

    5. Bail Act 2013 (NSW), s 16B(1)(a).

21. No party has suggested that both the provisions of s 15AA of the Commonwealth Act and the provisions of s 16A of the Bail Act apply at the same time. As it happens, the provisions of s 16A of the Bail Act do not apply to an applicant who is under the age of 18 years at the time of the offence, which necessarily, includes the applicant in these proceedings.

22. Nevertheless, the similar provisions to s 15AA of the Commonwealth Act in the Bail Act provide that the exceptional circumstances that are required to be established for an applicant charged with a terrorism offence to be granted bail replaces the requirement to show cause under s 16A of the Bail Act. [6]

    6. Bail Act 2013 (NSW), s 22A(2).

23. An assessment of the reasons for judgment of Magistrate Mulroney results in the circumstance that private electronic monitoring was proposed and was imposed as a fundamental aspect of the basis upon which the learned Magistrate granted bail. In those circumstances, the Court should approach the application for variation of the bail conditions as if the Court were assessing afresh whether the conditions for the grant of bail have been met.

24. Those conditions include the exceptional circumstances to which the Commonwealth Act refers and the assessment that, taking into account the conditions to be imposed on bail, the applicant does not pose an unacceptable risk if he were granted conditional liberty. The assessment of unacceptable risk assesses each of the bail concerns both individually and collectively.

Child abuse material

25. Because the applicant is charged with a Commonwealth terrorism offence, the applicant is required to show exceptional circumstances to be granted bail even for the child abuse material charges. The facts can be briefly stated.

26. On 16 January 2025, investigators, in the circumstances already outlined, identified four video files in the applicant’s physical mobile phone in the photo application. Each of those videos is Category 1 Child Abuse Material as per the Australian Child Abuse Categorisation Schema. It seems that the videos have been saved from Snapchat and Instagram applications into the applicant’s photo application.

27. The first video depicts a naked prepubescent male under the age of 7 with an adult female. It depicts the adult female with the child’s penis in her mouth. There is also a depiction of the penis in the direction of the woman’s vagina.

28. The second video depicts a naked prepubescent female under the age of 10 squatting and inserting a pen into her anus.

29. The third video is a closeup of a prepubescent female’s genitalia and anus.

30. The fourth video is five short video clips within the one video compilation. All five are prepubescent females under the age of 10. The first video clip concentrates on the child’s vagina. The second clip depicts an adult penis in the vicinity of the young child’s vagina and bottom and the text refers to a “foot job”. The third video clip depicts a prepubescent vagina being penetrated by an adult male penis. The fourth video clip also depicts an erect male penis penetrating a prepubescent vagina. It has text. The fifth video clip focuses on a prepubescent vagina being touched and/or penetrated by fingers.

31. Two further videos in the Category 1 Child Abuse Material classification are relevant. One of them depicts a prepubescent male under the age of 10 with a clothed adult female and shows the child being rendered naked. The sixth file involves two prepubescent naked males under the age of 10 engaging in oral and anal penetration.

32. The original application for bail, refused in the Children’s Court, involved the applicant residing with younger siblings, which circumstance seemed critical to the refusal of bail.

Terrorism offence

33. The CDPP has provided a useful Executive Summary of the terrorism charges and the substance of the facts. The charges are based upon communications evidence and the communications and agreement between the applicant and his co-accused is set out in an encrypted messaging application, being a group chat named “Plans” (hereinafter referred to as “the Plans Chat”). It included five individuals. [Redacted.]

34. [Redacted.]

35. The participants agreed to engage in a “Bayah” on Monday. A Bayah is a pledge of allegiance to the leader of the Islamic State and brings the person making it under the authority of the Caliph.

36. There are a number of discussions between the co-accused including discussions as to logistics, the need for patience, the obtaining of weapons and a vehicle, locating an abandoned “stash house”, and other ancillary issues.

37. One of the co-accused conducted virtual and physical reconnaissance of Christ the Good Shepherd Church, Monastery of Saint Charbel Lebanese Maronite and Southern Cross Catholic College in Burwood. It is not suggested that the applicant was the leader of the group. The Crown alleges that the planning was interrupted by the arrest of the applicant and two of the co-accused.

38. Each of the co-accused (including the applicant) demonstrated support for violent jihad and an interest in Islamic State. The co-accused shared graphic and violent extremist material.

39. Part of the submissions on behalf of the applicant was to the effect that the applicant withdrew from the conspiracy. During the course of the discussions, the applicant says [redacted].

40. [Redacted.]

41. I accept the CDPP submission, at least for present purposes, that in so far as there is an indication of a reluctance to engage in any conduct or a withdrawal from conduct, it is conduct related only to the particular aspect of the attack on the Assyrian Church. That is why the applicant uses the term “if the drama is over”.

42. Even if the applicant were indicating withdrawal from the conspiracy, his conduct prior to that withdrawal would be sufficient to warrant the Court taking a view that the Crown case is a strong one.

Exceptional circumstances

43. The term “exceptional circumstances” needs to be understood in the context of the statute and bearing in mind the achievement of the purposes of the statute and the achievement of harmonious goals. [7] The term, where used in s 15AA of the Commonwealth Act and s 22A of the Bail Act, has been the subject of authoritative comment.

    7. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; SZTAL v Minister for Immigration (2017) 262 CLR 362; [2017] HCA 34.

44. The Court of Criminal Appeal accepted, with the agreement of the parties, [8] the principles stated by Hall J in NK. [9] There is authority of the Victorian Supreme Court for the approach of Hall J, accepted by the parties and the Court of Criminal Appeal in Dirani. However, I would hesitate to call the provisions of s 15AA a presumption.

    8. Director of Public Prosecutions (Cth) v Dirani [2022] NSWCCA 89 at [22] (Macfarlan JA; Adamson J and Wright J).

    9. R v NK [2016] NSWSC 498 (Hall J).

45. The provisions of s 15AA of the Commonwealth Act are a prohibition on the grant of bail except if a specified condition is satisfied. The specified condition is, in relation to the Court, the satisfaction of the Court that exceptional circumstances exist which justify the grant of bail.

46. While it may be understandable to refer to the provision as a “presumption” against bail, it is not the deeming or legislative creation of a set of facts. It does reverse the onus of proof (if there be an onus of proof in bail) such that the applicant is required to satisfy the Court that exceptional circumstances exist warranting the grant of bail, but even such a description may be misleading.

47. The Court could be satisfied of exceptional circumstances on the material presented by the Crown. Nothing seems to turn on such a difference.

48. The term “exceptional circumstances” is not novel as a test for the grant of bail. The Bail Act 1978 required the bail authority to be satisfied of exceptional circumstances justifying the grant of bail (precisely the same words as utilised in s 15AA of the Commonwealth Act and s 22A of the Bail Act 2013) for repeat offenders charged with a serious personal violence offence. [10]

    10. Bail Act 1978 (NSW), s 9D.

43. Like the 2013 Act, the 1978 Act prescribed mandatory and exhaustive criteria for the consideration of a bail application. [11]

    11. R v Hilton (1987) 7 NSWLR 745 at 750B (Street CJ, with whom, relevantly, Hunt and Rogers JJ agreed).

44. In dealing with the requirement to be satisfied of “exceptional circumstances” in s 9D of the 1978 Act, I said:

“The requirements of s 32 of the Act are requirements as to the grant of bail and considerations appropriate thereto. Section 9D of the Act, on the other hand, deals with particular issues associated with repeat offenders and it seems that factors which would make an applicant an exceptional case from the point of view of a repeat offender may fall outside the criteria in s 32 of the Act. There may be criteria which satisfy the purpose of the mandatory requirements of s 9D of the Act which are not matters to which s 32 refers. In R v Magrin [2004] NSWCA 354, Wood CJ at CL, with whom Mason P and Santow JA agreed, made clear that the two factors relied upon by Ellis DCJ, namely, the greater difficulty in obtaining a presentence report while in custody and the compliance with the conditions of bail thus far were not sufficient to make the matter ‘exceptional’.

I have been referred to a Judgment of His Honour Justice Dowd in Tapueluelu (NSWSC, unreported, 5 January 2001) in which His Honour considered the provisions of s 9D of the Act and commented:

‘Section 9D mandates that a Court must not grant bail in respect of a serious personal violence offence, which this is, if the person is a repeat offender, unless the Court is satisfied that exceptional circumstances justify the grant of bail.

The Legislature has, in the past used the words ‘special and exceptional circumstances’ and has done so in this Act, but has not previously just used the words, ‘exceptional circumstances’. It sets an onus on the applicant of a very high order and requires something more than special circumstances or just circumstances.’

The use of the term 'special and exceptional circumstances' would require that the circumstances be both special and exceptional. The use of the term 'exceptional circumstances' means that the circumstances need to be exceptional but not necessarily special. 'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial.

The Macquarie Dictionary defines the word 'exceptional' as:

'1. forming an exception or unusual instance; unusual; extraordinary.

2. exceptionally good, as of a performance or product.

3. exceptionally skilled, talented or clever.'

The Oxford English Dictionary defines the word 'exceptional' as:

'Of the nature of or forming an exception; out of the ordinary course; unusual, special.'

Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or situation out of the ordinary or unusual the mandatory requirement otherwise contained within s 9D(1) of the Act will be satisfied. 'Special' on the other hand, seems to imply a unique situation or one which pertains only to that individual." [12]

12. R v Daron John Wright (unreported 7 June 2005), Rothman J; R v Michael John Brown [2013] NSWCCA 178 at [23]-[28] (Rothman, Fullerton and Beech-Jones JJ).

51. As was adopted in R v Brown, supra, and the authority cited therein, the provisions do not amount to a total prohibition on the grant of bail. Rather, it is a prohibition on the grant of bail, other than in exceptional circumstances, which the courts have defined as being able to be shown by prescribed criteria, or a combination of them, or criteria that are not prescribed but relevant to the existence of an exceptional situation relevant to the grant of bail, or a combination of prescribed and non-prescribed criteria.

52. Further, provided the person applying for bail is charged with or convicted of a terrorism offence, the Court (and any other bail authority) is required to be satisfied of the exceptional circumstances in order to grant bail in relation to any charge. Thus, the applicant, being a person who has been charged with a terrorism offence cannot be granted bail in relation to the 12 counts of access and possession of child abuse material, unless the Court is satisfied that exceptional circumstances exist to justify bail. I accept that the requirement for “exceptional circumstances” is an “extremely high hurdle”.

53. Once the Court is satisfied, if it were satisfied, that such exceptional circumstances exist, the Court must still assess whether the applicant poses an unacceptable risk in order to determine the application for bail.

54. The assessment of unacceptable risk requires the Court to assess the risk posed by the applicant in relation to the four bail concerns prescribed by s 17 of the Bail Act. In determining whether the applicant is an unacceptable risk, the Court may only consider those criteria that are specified in s 18 of the Bail Act and must consider each of those criteria, so far as they are relevant to the question before the Court.

55. The assessment of risk is the evaluation of two related but different issues. The Court must assess the likelihood of certain events occurring, which events pose a risk, and whether the manifestation of such a risk, should it occur, would be such as to render conditional liberty unacceptable. In other words, both the likelihood of the manifestation of events which would relate to one or other of the bail concerns must be assessed and the harm that would be done in relation to that risk by its manifestation.

56. The most obvious example is the commission of a serious offence which is one of the concerns with which the Court is required to deal. The Court must assess the likelihood that a serious offence will occur and, if it were to occur, the effect of the manifestation of such a risk on the administration of justice, the finalisation of the charges preferred and the safety of the community, any alleged victim and witnesses.

57. The four concerns prescribed by s 17 are: the risk of non-attendance or flight; the risk of the commission of a serious offence; the endangerment of the safety of any alleged victim, individual or the community; and interference with a witness or evidence.

Consideration

58. The nature of the charges will, necessarily, result in a significant delay in the finalisation of each set of charges, namely the terrorism charges and the child abuse material charges. It may be that both sets of charges will not be heard together, should the matters go to trial.

59. Over and above the complexity of the matters and the nature of the evidence ordinarily adduced in such trials, there is, currently, the added delay associated with the flooding of the Downing Centre, which has delayed criminal trials beyond that which can ordinarily by expected.

60. As earlier stated, the applicant was arrested and charged with the terrorism offences on 22 April 2024. He spent approximately eleven weeks on remand before Magistrate Mulroney granted the applicant strict conditional bail. The conditional bail granted by the Children’s Court included conditions of house arrest, electronic monitoring and non-association conditions to guard against perceived risks.

61. The child abuse material offences were committed before the terrorism arrest and before the preferring of the charge on the terrorism matters. It is alleged that the child abuse material offences were committed between August 2023 and April 2024.

62. As already stated, the Court must be satisfied of the exceptional circumstances justifying the grant of bail in order to grant bail on the child abuse material offences. While the applicant has, understandably, dealt with the additional risk associated with the absence of electronic monitoring in the application for the bail variation (and, necessarily, the detention application by the Commonwealth), the Court still needs to be satisfied of exceptional circumstances in order to grant bail with the different conditions.

63. In the proceedings before the Children’s Court, the applicant relied upon electronic monitoring as one of the factors showing exceptional circumstances. Given that it is no longer available as a criterion, the Court should determine afresh whether it considers there are exceptional circumstances warranting the grant of bail before granting the variation to bail on the terrorism charges as well.

64. It cannot be said that the Crown case is weak. On the contrary, given that the Crown case depends almost entirely on material obtained by a search of communication devices owned by the applicant or used by the applicant and the inculpatory nature of the material, it should be said that the Crown case is strong.

65. Nevertheless, bail is not a punishment. [13]

    13. R v Mahoney-Smith [1967] 2 NSWR 154 at 158 (O’Brien J).

66. A Court on a bail application is not determining guilt or innocence. To the extent that the strength or otherwise of the Crown case is a factor, which is required to be considered, it is considered because of its relevance both to the risk of flight and the risk of the commission of further serious crimes or the interference with witnesses and the like. Leaving aside the necessity to be satisfied of exceptional circumstances, the task of the Court is risk assessment.

67. The material before the Court discloses that the family of the accused do not support the radical views with which the applicant was enamoured. The Court is informed that the parents, siblings and grandparents of the applicant are prepared to supervise the applicant and have already supervised the applicant in the periods in which he has been on bail.

68. The applicant is 17 years of age and a juvenile. He is housed in a maximum-security prison. Involved in that process is additional vulnerability beyond the mere youth in an adult prison. It should be noted, as is earlier mentioned, that the housing of the applicant in maximum security is not the result of an assessment. Rather, it is an automatic response to the nature of the terrorism charges that the applicant faces.

69. The applicant has spent seven-and-a-half months on strict bail. During the time the applicant has spent on bail, there has been no suggestion of any breach of bail or any inappropriate, let alone criminal, conduct. The applicant has a history of compliance with Court orders.

70. Notwithstanding the absence of electronic monitoring, the bail conditions proposed are extremely stringent and require house arrest unless prior written notification is given to the officer in charge and, even in those circumstances, any absence from the residence occurs in the company of one or other accepted responsible persons and only for the purpose of reporting to police, attending court, conferences with legal representatives or a medical appointment or medical emergency.

71. The combination of prior written notification and the accompanying of one of the four responsible adults adequately deals with the absence of electronic monitoring in a way which, in some respects, is more stringent than electronic monitoring, and gives the Court confidence that the applicant, during his period of conditional liberty, will not be able to commit a serious offence which directly harms any individual or the community. Nor is there, as a consequence of those conditions, a serious risk of flight.

72. When one adds to those aspects, the condition imposed of prohibiting contact with any person which might be seen to be a co-accused or victim and the inability to be in possession of any internet capable device, it seems that the risk of the commission of a serious offence, either in the nature of preparing for a terrorism offence or possession or access to child abuse material, is minimal.

73. Further, in relation to exceptional circumstances related solely to the offences of possession, control or use of a carriage to access child abuse material, it is not inevitable that there would be a control order imposed for those offences, given the applicant’s youth and lack of prior serious convictions. The circumstance that the applicant has a very limited criminal history is itself a factor to be taken into account, combined with the other factors, in assessing exceptional circumstances justifying the grant of bail.

74. The Court is satisfied, on the basis of the combination of the foregoing factors, of exceptional circumstances justifying the grant of bail.

75. It is necessary to deal with the assessment of risk.

76. As already stated, given the strict conditions of bail, the risk of flight or failure to appear at proceedings is limited. So too is the risk that there would be the commission of a serious offence.

77. In the absence of a risk of the commission of a serious offence, given the nature of the conditions imposed, it also becomes unlikely that anything will be done that would risk endangering the safety of victims, individuals or the community or interfering with witnesses or evidence.

78. The above assessments depend heavily on the existence of the strict conditions to be imposed, which conditions have otherwise been agreed. The issue raised in relation to the possession and/or access to child abuse material in proceedings before the Children’s Court related to the fact that, if the applicant were to live at home, he would be in the company of his young siblings.

79. None of the charges relate to the sexual assault of any child. Nevertheless, the possession of such material does disclose a risk or a tendency that understandably the Commonwealth and the learned Magistrate took into account in determining to refuse bail.

80. The last-mentioned risk has been ameliorated by the change in address to which the applicant will be bailed and the condition that is proposed, which the Court accepts, is that the applicant will live with his grandparents. Such a change in condition gives the Court some comfort in determining a different outcome to that determined by the learned magistrate.

81. The Court, in dealing with the applications before it, deals with the matters afresh. These are not appeals from any prior decision. Nevertheless, the Court, as presently constituted, gains comfort from the alteration in the proposal so that the serious concern of the learned magistrate has been ameliorated. The Court also gains comfort from the agreement between the parties as to appropriate conditions.

82. I have considered the criteria in s 18 of the Bail Act. The applicant has strong family ties and the support of his family, who oppose his actions and leanings, and are prepared to report any misbehaviour. He has almost no serious criminal antecedents. I have already referred to the seriousness of the offences, his contacts with other persons charged with terrorist offences and I include such as an organisation, and the statements made in support of terrorism and the willingness to undertake a “Bayah”. These are the only criminal associations of the applicant.

83. I have also already referred to the strength of the Crown case. The applicant has little history of violence, no prior offending or breach while on bail, total compliance with previous bail conditions, and the applicant’s special vulnerability on account of his youth and his accommodation in an adult facility.

84. Further, while the Child Abuse Material charges may not result, if guilty, in a custodial sentence, the terrorism charges are in a different category. He will, if bail is refused, spend an undetermined time in custody, and, given the complicated and serious nature of the charges, the applicant needs significant time to prepare his defence and receive appropriate advice. I take into account the disastrous impact that would occur if the risk of the commission of a terrorist act manifested.

85. Ultimately, the very strict conditions otherwise agreed between the parties ameliorate sufficiently the unacceptability of the risk that would, without those conditions, plainly be posed.

86. For the foregoing reasons, the Court grants the variation to the bail conditions to delete the condition for electronic monitoring; grants bail in relation to the offences with the number 2025/73410, being six counts of using a carriage service to access child abuse material and six counts of possession or control of child abuse material; and consequently, dismisses the detention application.

87. The conditions of bail will be as per Exhibit 3 in the proceedings.

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Endnotes

Decision last updated: 16 July 2025