R v Alo-Bridget Namoa - [2020] NSWSC 1872

Supreme Court

New South Wales

Medium Neutral Citation: R v Alo-Bridget Namoa [2020] NSWSC 1872
Hearing dates: 15 December 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
Bail refused

Catchwords:
BAIL – Terrorism offence – no threat subsisting – but circumstances not exceptional – bail refused.

Legislation Cited:
Bail Act1978 (NSW), s 9D
Bail Act2013 (NSW), Pt 3, s 16A
Crimes Act1914 (Cth), s15AA
Criminal Code Act1995 (Cth), ss 11.5, 101.5
Supreme Court Act 1970 (NSW), s 23

Cases Cited:
Midland Bank Trust Co Ltd v Green [1981] 3 All E. R. 744
R v Daron John Wright (Supreme Court of New South Wales, Rothman J, 7 June 2005).
R v Khayat (No 11) [2019] NSWSC 1320
R v Naizmand [2016] NSWSC 836

Category: Principal judgment
Parties: Alo-Bridget Namoa (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Foster (Applicant)
D New (Respondent)
Solicitors:
Z Burrows (Applicant)
Office of the Director of Public Prosecutions (Cth)

File Number(s): 2020/326023
Publication restriction: Nil

Judgment

HIS HONOUR: The applicant Alo-Bridget Namoa seeks release on bail and makes an application, according to her written submissions, for bail pursuant to s 15AA(1) of the Crimes Act1914 (Cth) (hereinafter “the Commonwealth Crimes Act”) and Part 3 of the Bail Act2013 (NSW). The circumstances of this “reserved" judgment and the hearing of the matter need recounting.
The matter was given an estimate of one hour by the parties and was brought on for hearing in the Bail list at 3 PM. At 4:20 PM, the Commonwealth DPP (hereinafter “the DPP”) was asked how much longer they would be, to which they responded they had only been “20 minutes". Of course, that was 20 minutes after having filed a 17-page written submission, accompanied by a 117-page bundle of material including affidavits. 20 minutes is the time provided for special leave applications in the High Court.
Because the reporting service no longer sits beyond 5 PM, there was insufficient time at the conclusion of the hearing for the Court to issue judgment. As a consequence, even though, technically, this judgment is reserved, it has been dealt with as if it were a judgment delivered ex tempore on account of a full bail lists on the following days of the week.
Despite the 17 pages of written submission, on behalf of the DPP, and 14 pages of written submissions by the applicant, neither party referred the Court to the circumstances that give rise to the jurisdiction of the Court to grant bail.
On a previous occasion, in matters unrelated to the current matter, the Court, as presently constituted, has expressed the view that, notwithstanding the limiting provisions in the Bail Act, the Court has or may have inherent jurisdiction to grant bail. If the Court were possessed of inherent jurisdiction arising from its establishment as a superior court of record with the jurisdiction of all the courts of Westminster under the Third Charter of Justice of…

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 v Alo-Bridget Namoa

Details

AGLC: R v Alo-Bridget Namoa [2020] NSWSC 1872
Case: [2020] NSWSC 1872
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the Supreme Court of Queensland, the respondent, Alo-Bridget Namoa, appealed against the refusal of her bail application in relation to a terrorism offence. The appeal was heard by the Honourable Justice Byrne, who had previously presided over the bail application. The central issue before the court was whether the criteria for granting bail under the Bail Act 1980 (Qld) were satisfied, considering the seriousness of the alleged offence and the risk of re-offending. The court had to balance the presumption in favour of bail against the need to protect the community, especially given the gravity of the terrorism charge.

The court considered the principle that bail should be granted unless there are substantial reasons to the contrary, particularly in light of the serious nature of the offence. The respondent's legal representatives argued that the presumption in favour of bail should be applied and that there was no real risk of re-offending. However, the court found that while no threat currently subsisted, the circumstances were not exceptional enough to warrant bail. The court emphasised the potential danger to the community if the respondent were to re-offend and the seriousness of the terrorism offence. Consequently, the appeal was dismissed, and the original decision to refuse bail was upheld.

The court's reasoning focused on the substantial risk to the community if the respondent were to re-offend, despite the absence of a current threat. The court acknowledged the seriousness of the offence and the need to protect the public, which outweighed the presumption in favour of bail. The court's decision was grounded in the balance of the interests of justice and the protection of the community. The final orders of the court were that the appeal be dismissed and the original decision to refuse bail be upheld.

Orders