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R v Naizmand

R v Naizmand

Case [2016] NSWSC 836 27 June 2016

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Naizmand [2016] NSWSC 836
Hearing dates: 16 June 2016
Date of orders: 27 June 2016
Decision date: 27 June 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
Application for bail refused

Catchwords: BAIL – application for bail – Crimes Act 1914 (Cth) – terrorism offences – whether offences serious examples of the particular offending – access to proscribed online content – alleged breach of control order –where applicant required to show the existence of exceptional circumstances – where applicant held in harsh custodial conditions – where applicant in custody for first time – whether Crown case strong – whether unacceptable delay likely – exceptional circumstances not shown
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Crimes Act 1900 (NSW)
Cases Cited: Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8
R v Azari (Unreported, Supreme Court of New South Wales, Garling J, 3 September 2015)
R v Khaled Cheikho (Unreported, Supreme Court of New South Wales, Studdert J, 15 May 2006)
R v Mulahalilovic (Unreported, Supreme Court of New South Wales, Rothman J, 1 August 2006)
R v Mulvihill [2013] NSWSC 1190
R v NK [2016] NSWSC 498
R v Young [2006] NSWSC 1499
Raad v DPP [2007] VSC 330
Category: Principal judgment
Parties: Ahmad Saiyer Naizmand (Applicant)
Crown (Respondent)
Representation:
Counsel:
E Ozen (Applicant)
M England (Respondent)
Solicitors:
Hisham Karnib, Birchgrove Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/75977
Publication restriction: Nil

Judgment

HIS HONOUR: Ahmad Naizmand makes a release application. He is charged with five offences under s 104.27 of the Criminal Code 1995 alleging contravention of a control order issued by the Federal Court of Australia on 30 November 2015. The maximum penalty for each offence is 5 years imprisonment and/or a fine of $102,000.
An offence under s 104.27 is a “terrorism offence” as defined by s 3 of the Crimes Act 1914, being an offence against Part 5.3 of the Criminal Code. Section 15AA of the Crimes Act provides that bail must not be granted to a person charged with a terrorism offence unless the Court is satisfied that “exceptional circumstances exist to justify bail”.
The application is opposed.
The applicant contends that the existence of special circumstances is satisfied in his case by reason of the existence of one, or a combination, of the following factors:

The seriousness of the offences.

The prospect of significant delay.

His onerous custodial conditions.

His subjective circumstances.

Background

The applicant was arrested on 29 February 2016. He was at that time subject to a control order which included the following restriction:

“Control 6
12. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:
(i) acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form or electronic media), or attempting to acquire, take possession of, produce, access or supply documentation (including in electronic form),…

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 Naizmand

Details

AGLC: R v Naizmand [2016] NSWSC 836
Case: [2016] NSWSC 836
Decision Date: 27 June 2016

CaseChat Overview and Summary

The case involved an application for bail by a defendant charged with terrorism offences under the Crimes Act 1914. The matter was heard in the Federal Court of Australia. The defendant was alleged to have accessed proscribed online content and breached a control order. The central legal issues revolved around whether the alleged offences constituted serious examples of the particular offending, whether the applicant could demonstrate exceptional circumstances to justify bail, and whether the Crown's case was strong enough to warrant continued detention. The court was also required to consider the harsh conditions of the defendant's custody and the likelihood of an unacceptable delay in the proceedings.

The court examined the nature and seriousness of the alleged offences, noting that the defendant's access to proscribed content and the breach of a control order were indicative of potential radicalisation. However, the court emphasised the need for the applicant to show exceptional circumstances to justify bail. The harsh custodial conditions and the defendant's first-time incarceration were considered, but the court found that these factors did not constitute exceptional circumstances on their own. The court also weighed the strength of the Crown's case and the likelihood of an unacceptable delay, ultimately determining that the Crown's case was strong and that there was a low risk of delay.

The court concluded that the exceptional circumstances required to grant bail were not present. The defendant's access to proscribed content and breach of a control order were seen as serious matters, and the strength of the Crown's case did not support the grant of bail. The court was mindful of the defendant's first-time incarceration and the harsh conditions but found that these factors, while regrettable, did not meet the threshold for exceptional circumstances. The application for bail was therefore dismissed.

Orders