R (Cth) v OK

[2024] NSWSC 1411

Supreme Court

New South Wales

Medium Neutral Citation:

R (Cth) v OK [2024] NSWSC 1411

Hearing dates:

4 and 5 November 2024

Date of orders:

5 November 2024

Decision date:

05 November 2024

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

Bail granted subject to conditions.

Catchwords:

CRIME – bail – release application – young person – conspiring 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 (Cth) – show cause – unacceptable risk – extremist ideology – co-conspirators – risk of re-radicalisation – bail concerns – community supports – risk mitigated – bail granted subject to conditions

Legislation Cited:

Bail Act 2013 (NSW)

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

Abbas v R [2022] VSCA 39; 297 A Crim R 1

Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232; 291 A Crim R 191

R v NK [2016] NSWSC 498

Category:

Principal judgment

Parties:

Rex (Crown)
OK (Applicant)

Representation:

Counsel:
R Rodger (Crown)
G Scragg (Applicant)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Birchgrove Legal (Applicant)

File Number(s):

2024/352253

Publication restriction:

Statutory Non-Publication Order re identity of the applicant or any young person.

Court Suppression and Non-Publication Orders made by the Children’s Court of New South Wales on 2 August 2024 and 23 October 2024, and varied on 4 November 2024.

ex tempore JUDGMENT (revised)

1. HIS HONOUR: OK, to whom I shall refer as "the applicant", has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (“the Act”).

2. The applicant is presently 16 years old, having been born in November 2007. He has been in custody since his arrest on 24 April 2024, a period now in excess of six months. That custody relates to a charge of conspiring 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 (Cth).

3. It is convenient to first identify the tests to be applied on this application. Section 15AA of the Crimes Act 1914 (Cth) applies. As such, bail must not be granted unless I am satisfied that exceptional circumstances exist to justify bail. In the event that I am so satisfied, it remains to apply the unacceptable risk test pursuant to s 19 of the Act.

4. With respect to the exceptional circumstances test, it is clear from the text that the test is directed to exceptional circumstances not at large but such as exist to justify bail. What will or will not justify bail will be informed by the nature of bail itself; that is, a decision directed to protection of the community and the integrity of the justice system, but applied in a context where, at least here, a refusal of bail will result in a person not convicted of any offence remaining in custody.

5. Relevant principles with respect to the exceptional circumstances test were discussed in R v NK [2016] NSWSC 498. In Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232; 291 A Crim R 191, Adamson J, at [67], referred to the decision in R v NK. Her Honour noted as relevant to the decision in Saadieh, and similarly relevant to the present case, the requirement to show exceptional circumstances imposes a rebuttable presumption against bail. Further, the requirement that circumstances be exceptional is a demanding test but one that is nonetheless flexible and can constitute subjective or objective matters, including the strength or weakness of the Crown case, and can be fulfilled by a combination of circumstances or a single circumstance.

6. It is necessary to apply the test in s 15AA(1) having regard to s 15AA(3AA); that is, in determining whether exceptional circumstances exist to justify granting bail to a person who is under 18 years of age, the Court must have regard to the protection of the community as the paramount consideration and, additionally, to the best interests of the person as a primary consideration. That section makes clear that while the best interests of the applicant are relevant, and indeed a primary consideration, that consideration is subordinate to the protection of the community.

7. In order to apply the test, it is necessary to say something of the allegation itself. The nature of the case and its strength are relevant to the potential danger posed by the applicant if released to bail. It is also relevant to any motive the applicant may have to flee the jurisdiction and any potential motive to interfere with witnesses or evidence.

8. The elements of an offence of conspiracy to commit an offence against s 101.6(2) were set out in Abbas v R [2022] VSCA 39; 297 A Crim R 1 at [6]. Without repeating all of what was said there, critical to proof of the charge in this case is proof the applicant entered into an agreement with one or more of the alleged co-conspirators to do an act or acts in preparation for or planning a terrorist act or acts; that he did so intentionally; and that, when he did so, he intended that an act or acts in preparation for, or planning, a terrorist act would be carried out in furtherance of the agreement, an intention which was shared by at least one other party to the agreement; and that common intention was a matter known to, or at least believed by, the applicant. There is the further requirement that at least one party to the agreement committed an overt act in furtherance of the agreement.

9. In terms of the evidence against the applicant to establish the offence, there is a strong case that the applicant subscribed to a form of extremist ideology supportive of Islamic State at the time he is alleged to have entered the conspiracy. On arrest, the applicant's phone was analysed and was found to contain a large quantity of disturbing extremist material, including material suggesting the applicant held such views. Evidence of the applicant's support for Islamic State dates from at least 27 December 2023.

10. Photographs on the applicant's phone revealed him holding weapons such as a knife and a meat cleaver, overlaid with graphics indicating support for violence in the name of the extremist ideology apparently adopted by him. That material on the applicant's phone provides strong evidence of motive and, indeed, perhaps beyond motive, an interest in carrying out or at least planning for or preparing for an attack.

11. As to the evidence going beyond motive or interest, the facts reveal a relationship between the various alleged co-conspirators, being three other young persons charged together with the applicant.

12. It appears that on 6 March 2024 the applicant became part of a chat group with his three alleged co-conspirators and five other unidentified persons. That chat group was titled with a name that translates to "Brothers in Allah". Members of the group shared a significant number of files containing violent extremist material, including beheadings and firearm executions. It is not suggested that this particular chat went beyond the sharing of such material.

13. On 15 April, a group chat called "Plans" was created on an encrypted application called Signal. The chat was set up by a person who, [REDACTED] I will identify for the purposes of this judgment as "AB". [REDACTED].

14. The applicant joined the group on 20 April 2024. As I have indicated, he was arrested on 24 April 2024 with the result that he was a member of that chat group for a period of just four days. His contribution to the chat was more limited still. Entries attributed to him appear to have been posted within a space of about 15 minutes on 20 April 2024, there being a total of four such entries. Those entries are not suggested to be in and of themselves incriminating. The applicant's entry and participation in that chat is, however, to be seen in the context of the other evidence.

15. The strongest evidence of any agreement for the purposes of the alleged conspiracy appears to be of an agreement between the applicant and the co-offender, JZ. There is strong evidence that the co-offender JZ was committed to planning an attack and was part of the Plans chat for that purpose.

16. The applicant's communications with the young person JZ surrounding his entry to the chat are of importance. The applicant and the young person JZ spoke at 11.05pm on 19 April 2024 for a period of about five minutes and then spoke again at 11.55pm. Whilst the content of those conversations has not been captured, their timing is a significant part of the Crown case; that is, they precede by a matter of minutes the applicant joining the Plans chat. Further, immediately prior to that joining, the young person JZ said to the person AB, in a private chat:

[REDACTED]

17. The young person JZ continued:

[REDACTED]

18. There was then some discussion between the young person JZ and AB as to the name to be used by the applicant.

19. There is an inference available from the young person JZ's communications with AB that he, that is JZ, believed that the applicant was a willing party to an agreement with at least the young person JZ to further JZ's intended preparations or planning for a terrorist act.

20. Assuming the admissibility of the young person JZ's utterances to AB, one inference is that he held that belief based on what he had been told by the applicant and, consequently, that the applicant did in fact intend to join in a relevant agreement. That inference is further supported by the fact that the applicant did indeed join the chat.

21. Further evidence in support of the inference the Crown would have drawn is available in a WhatsApp exchange between the applicant and the young person, JZ, at around 10pm the following night, that is the evening of 20 April 2024. In the course of that chat, the following exchange occurred:

OK

Ayri fi that dog

JZ

Whaddaya reckon, ldrib or na

OK

Yes

JZ

ldk what I said

But yes to what

OK

Idrib

idrob

JZ

Yea

OK

Means like hit

JZ

I meant as in What we’re planning

OK

Yes

JZ

akhi idk i wanna make hijrah that's the only thing that's pulling me back

I can do more if i make hijrah

22. The applicant's reference to "idrib" is a reference to a hit or a strike in Arabic, a matter explained by the applicant himself in the exchange. Those statements do provide support for the Crown case.

23. Against the inference the Crown would have drawn, however, is the applicant's lack of participation in the Plans chat from 20 April 2024. This includes a lack of response to a direct question posed to the group less than an hour after the applicant joined. That is in the context of a complete absence of active participation from 20 April.

24. While it seems likely that the applicant was aware of communications as a result of push notifications being activated on his phone, that, if anything, tells against the Crown case in that it tends to suggest the applicant ignored the messages despite being aware of them.

25. The WhatsApp chat on the night of 20 April is clearly significant, but it is arguably ambiguous. JZ's question "idrib or na", on one view, suggests that the young person JZ was not committed to carrying out a hit or a strike. The applicant's immediate response is unclear. Clarification is sought by the young person JZ. The applicant's response, on one view, would appear to confirm his view that a hit or a strike should be pursued. The young person JZ's response, in particular his reference to "what we're planning", is unclear as to whether it is a reference to what he and the applicant are planning, or what he (JZ) and the other members of the Plans chat are planning.

26. The young person JZ ultimately refers to there being something pulling him back, suggesting, or at least expressing, a lack of a clear commitment in the context of his discussion with the applicant. There is, as a result, an alternative view that the applicant, whilst sympathetic to and perhaps supportive of an attack, has not, at this time, intentionally entered into an agreement with the young person, JZ, which contemplates that objective.

27. The Director also relies on a conversation between the applicant and the young person JZ after the arrest of the other two alleged co-conspirators for an unrelated offence. That arrest led to the phones of those young persons being searched. Conversation takes place in which the young person JZ is clearly concerned that the authorities will access the Plans chat and this will implicate him in an offence of planning a terrorist act.

28. The recording was played before me. On the playing of the recording, it is reasonably clear that the applicant expresses himself in a way suggesting he shares the young person JZ's concern. The applicant, however, submitted that the conversation shows the applicant was somewhat unconcerned and in fact was laughing at points.

29. The interpretation of that call, and indeed the totality of the evidence, will be a matter for the jury. The inference sought to be drawn by the Crown is certainly available. My own impression, however, is that the applicant’s apparent concern may have simply been him reflecting the young person JZ's obvious concern. That impression is, to an extent, also informed by the evidence led in relation to the applicant's cognitive abilities and autism diagnosis.

30. In assessing the case, I warn myself that some care must be taken. It is, of course, the cumulative effect of all the evidence which will ultimately fall to be assessed by the jury. The ability to assess parts of the evidence in the context of this application is necessarily limited. The jury will have all of the relevant conversations and the benefit of argument and time for deliberation. Nonetheless, doing the best I can on the material provided to me, the case does not appear to be one that could be described as overwhelming. In fairness, counsel for the Director did not submit it to be so.

31. Ultimately, whilst I would not suggest the case is not a viable one, I would not assess it as a particularly strong Crown case. That is a finding of some significance in applying the exceptional circumstances test. It is significant because it goes to the obvious concern of denying a person bail in circumstances where that person may not be guilty of any offence.

32. It is of particular significance in this situation where questions over the existence of any agreement, and the applicant's inaction beyond the chats to which I have referred, also inform the danger that he does or does not present. That is, of course, significant in the context of the paramount consideration being the safety of the community.

33. In considering the safety of the community, it is also of some significance that the evidence is to the effect that the applicant no longer holds extremist views. The applicant relied on a risk assessment report assessing the risk of the applicant committing a terrorism offence to be low. The Director raised questions as to the validity of the assessment tool used.

34. The Director did not, however, suggest that there was any reason to doubt the applicant's report that he no longer held such extremist views. The Director's position is, with respect, sound. While a degree of caution is required with any such self-serving or apparently self-serving report, it is also true that people who subscribe to firmly held ideologies tend not to disavow such views. Further, in the particular case, the applicant's level of functioning suggests that he is less likely than others to be able to continue over a period of time to create a false impression.

35. Also significant to community protection are the family supports available to the applicant. He is able to return to live with his parents. He has, in his brother-in-law in particular, an important role model. Through that connection, he will have available to him employment.

36. Counsel for the Director submitted that whilst the applicant may not now hold radical views, there is, in the applicant's case, a danger that he will be re-radicalised.

37. Counsel for the Director submitted that evidence of the applicant's vulnerability based on his particular mental conditions suggested this to be a matter of concern, with the consequent potential for significant harm to the community. I would accept that the applicant, as a result of his particular vulnerabilities, is at least potentially susceptible to influences, including influences from persons who hold extreme views and would do harm to our community in the name of such views.

38. I regard, however, the likelihood of the applicant becoming re-radicalised as very low. That assessment is informed by the fact that the applicant has now spent over six months in custody, together with his previously held views becoming known to members of his family and those around him.

39. In those circumstances, it seems to me the applicant will be very wary of, again, falling prey to the influence of such persons. In addition, there are conditions available which will significantly curtail his movements and provide that he is effectively monitored at all times by a combination of responsible persons and electronic monitoring.

40. I also have regard to the fact that the applicant has no prior criminal convictions. I accept there is evidence of involvement in some violent and destructive episodes. However, those are not such as to significantly inform the risk of the applicant committing an act involving serious harm to the community.

41. In application of the exceptional circumstances test, I also take into account the particular circumstances of the applicant. He is, as I have said, just 16 years of age. He has never been in custody before. Further, he suffers a number of conditions, including a mild intellectual disability and autism spectrum disorder.

42. I should note, in the context of an intellectual disability, the word "mild" can be misleading. It is not used as an adjective but, rather, part of a proper noun which describes a clinically significant condition. The testing suggests the applicant functions at a very low level.

43. It is also relevant to note that the applicant has recently been approved for NDIS funding. Such support, together with available conditions, suggest the applicant will be better managed in the community, thereby reducing the likelihood of him engaging with antisocial peers or activities.

44. Finally, as I have already observed, the applicant has strong family support.

45. Having regard to that combination of circumstances, I am satisfied that the circumstances are sufficiently exceptional to justify bail being granted.

46. It is necessary, then, to apply the unacceptable risk test. That is to say, pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of bail concerns the applicant presents an unacceptable risk, then bail must be refused. Conversely, if I am not so satisfied, an order should be made which will allow the applicant to be released.

47. The bail concerns are those matters set out in s 17 of the Act. They are to be assessed having regard only to the matters set out in s 18 of the Act, which includes the conditions available to mitigate any concerns.

48. The first of the bail concerns in s 17 is the risk of the applicant failing to appear. That is necessarily a risk, particularly in circumstances where the offence with which the applicant is charged carries a maximum penalty of life imprisonment. However, having regard to the applicant's young age and his limited capabilities, together with the conditions available, I am not of the view that the risk of him failing to appear is unacceptable.

49. Most significant in an application of this nature is the risk the applicant will commit a serious offence or otherwise endanger the safety of the community more generally. Again, that is necessarily a risk, having regard to the applicant's former views and his engagement with others in that context. However, for the reasons given in applying the exceptional circumstances test, I am not of the view that that risk is, in this case, unacceptable.

22. Finally, I consider whether there is an unacceptable risk of the applicant interfering with witnesses or evidence. In this case the critical evidence would appear to be in the hands of the prosecuting authorities. I do not regard there to be an unacceptable risk with respect to this bail concern.

23. Having regard to those findings, bail is granted subject to conditions.

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Decision last updated: 15 November 2024