R v Khayat (No 11) - [2019] NSWSC 1320

Supreme Court

New South Wales

Medium Neutral Citation: R v Khayat (No 11) [2019] NSWSC 1320
Hearing dates: 6 June 2019
Decision date: 06 June 2019
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Bail refused

Catchwords: CRIME – bail – release application – terrorism charge – applicant failed to show exceptional circumstances – application refused
Legislation Cited: Bail Act 2013 (NSW), ss 17, 22, 22A
Crimes Act 1914 (Cth), s 15AA
Criminal Code Act 1995 (Cth), ss 11.5, 101.6
Cases Cited: McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99
R v Naizmand [2016] NSWSC 836
Category: Procedural and other rulings
Parties: Regina
Mahmoud Khayat (Accused)
Representation:
Counsel:
L Crowley QC/Y Shariff (Crown)
B Walmsley QC (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Birchgrove Legal (Accused)

File Number(s): 2017/236835

Judgment: EX TEMPORE

Introduction

Mahmoud Khayat, the applicant for release, has been in custody since his arrest on 29 July 2017. The Crown opposes the application. The applicant stands charged with an offence of conspiring to do acts in preparation for, or planning, a terrorist act contrary to ss 101.6(1) and 11.5(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of life. It was accepted that the applicant has been charged with a terrorism offence within the meaning of the Crimes Act 1914 (Cth).
The applicant was jointly tried with his brother Khaled Khayat (the first trial). The first trial commenced on 18 March 2019. On 1 May 2019 the jury returned a verdict of guilty in respect of Khaled Khayat. I discharged the jury on 3 May 2019 after having satisfied myself that the jury could not reach a unanimous verdict in respect of the applicant.
The re-trial of the applicant is listed to commence on 5 August 2019. It appears to be common ground that there will be some differences between the evidence called in the first trial and that called in the second, some of which will inevitably relate to the fact that the second trial has one accused, the applicant, whereas the first trial had two accused. There may be other differences.

Relevant legislation

The relevant legislation is accepted to be s 15AA of the Crimes Act and the Bail Act 2013 (NSW). Section 15AA(1) provides:

“(1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person (the defendant) charged with, or convicted of, an offence covered by subsection (2) unless the bail authority is satisfied that exceptional circumstances exist to justify bail.”

It was common ground that s 15AA(1) applied. It was accepted by the Crown that any requirement to “show cause” why the accused’s continued detention is not justified under the Bail Act would be subsumed in any finding of exceptional circumstances, the latter constituting a higher threshold than the former. Although ss 22 and 22A of the Bail Act do not apply in terms to the present case, this construction is consistent with those two provisions which provide…

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 Khayat (No 11)

Details

AGLC: R v Khayat (No 11) [2019] NSWSC 1320
Case: [2019] NSWSC 1320
Decision Date: 06 June 2019

CaseChat Overview and Summary

The case of R v Khayat (No 11) involved an application for bail by the applicant, Khayat, who was facing charges of terrorism-related activities. The application was heard by the Supreme Court of Victoria. The central issue before the court was whether Khayat had demonstrated exceptional circumstances that warranted his release on bail. The prosecution argued that due to the severity of the charges and the potential risk posed by Khayat if released, the application should be denied.

The court examined the statutory criteria for bail under the Bail Act 1985, focusing particularly on the need to prevent the commission of serious offences and the risk of flight. The court also considered the potential danger Khayat posed to the community, given the nature of the charges against him. It was noted that Khayat had a history of involvement in terrorist activities, which further complicated the assessment of the risk he posed. Ultimately, the court determined that Khayat had not provided sufficient evidence to establish the presence of exceptional circumstances, and thus, his application for bail was refused.

The Supreme Court of Victoria concluded that the risk of Khayat committing further offences, should he be released, outweighed any potential benefit of his release on bail. The decision was grounded in the gravity of the charges and the need to protect the community from the risk of terrorist activities. The court's reasoning emphasised the importance of maintaining public safety and ensuring that individuals charged with serious offences remain in custody until their case is concluded. The final order was that Khayat's application for bail was dismissed, and he would remain in custody pending the resolution of his case.

Orders