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)

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”).
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).
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.
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.
Relevant principles with respect to the exceptional circumstances test were discussed in R v NK

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 R (Cth) v OK

Details

AGLC: R (Cth) v OK [2024] NSWSC 1411
Case: [2024] NSWSC 1411
Decision Date: 05 November 2024

CaseChat Overview and Summary

In the case before the court, the Commonwealth sought to prevent the release of a young person, referred to as OK, who was alleged to have conspired to engage in an act in preparation for or planning a terrorist act. The case was heard by the Federal Court, which was tasked with determining whether OK should be granted bail pending the resolution of the criminal charges against him. The primary legal issue before the court was whether OK posed an unacceptable risk to the community that would prevent him from being granted bail. The court considered the nature of the offence, OK's ideological beliefs, and the potential for re-radicalisation if he were released.

The court examined the evidence presented regarding OK's involvement in the conspiracy and the risk he posed if released on bail. It was noted that OK had been radicalised and was influenced by extremist ideology. However, the court also considered the mitigating factors, including OK's age, his acknowledgment of the wrongfulness of his actions, and the support structures available to him if granted bail. The court was satisfied that while there was a significant risk of re-radicalisation, the risk could be sufficiently mitigated through the imposition of strict bail conditions. The court found that the unacceptable risk to the community could be managed, and granted bail subject to stringent conditions.

The court's decision hinged on its assessment of the risk of re-radicalisation balanced against the potential for OK to benefit from community support and rehabilitation services. The court concluded that with the appropriate conditions in place, OK could be released on bail without unduly compromising community safety. The court imposed strict conditions on OK's bail, including electronic monitoring, a curfew, and restrictions on his internet use and contact with certain individuals. These conditions were designed to mitigate the risk of re-radicalisation and ensure OK's compliance with the terms of his bail. The court's decision was based on a careful weighing of the risks and benefits, ultimately concluding that OK could be safely released on bail subject to the imposed conditions.

Orders