R v NK

Case [2016] NSWSC 498 22 April 2016

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v NK [2016] NSWSC 498
Hearing dates: 18 April 2016
Date of orders: 22 April 2016
Decision date: 22 April 2016
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Bail granted

Catchwords: CRIMINAL LAW – application for bail – rebuttable presumption against bail being granted to a person charged with a terrorism offence – exceptional circumstances to justify the granting of bail – youth of the applicant – vulnerability of youth to adult persuasion or influence – bail conditions appropriately addressing bail concerns
Legislation Cited: Bail Act 1978
Bail Act 2013
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Haddara v Commonwealth DPP [2006] VSC 8
Hammoud v DPP [2006] VSC 516
KT v R (2008) 182 A Crim R 571
R v Hoang [2003] NSWCCA 380
R v Maywand Osman 2015/12786, 12 February 2015
R v Mulvihill [2013] NSWSC 1190
R v Qutami [2001] NSWCCA 353
R v Young [2006] NSWSC 1499
Category: Principal judgment
Parties: NK (Applicant)
Regina (Crown)
Representation:
Counsel:
Z Khatiz (Applicant)
C Shaw (Crown)
Solicitors:
Oxford Lawyers Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2016/96738

Judgment – ON APPLICATION FOR GRANT OF BAIL

The applicant, NK, is presently aged 16 years. On 30 March 2016 she made application for a grant of bail pursuant to the Bail Act 2013.
On 24 March 2016, the applicant was arrested and subsequently charged with an offence pursuant s 102.6(1) of the Criminal Code 1995 (Cth), being an offence of collecting funds for, or on behalf of, a terrorist organisation. It is alleged that the offence was committed between 21‑22 March 2016.
The applicant was charged in the following terms:

“That between 21 March 2016 and 22 March 2016 at XXX in the State of New South Wales, she did intentionally collect funds for a terrorist organisation, namely Islamic State, knowing that organisation was a terrorist organisation, contrary to s 102.6(1) of the Criminal Code.”

The maximum penalty for an offence under that provision is a term of imprisonment of 25 years.
On 24 March 2016, bail was refused at Parramatta Children’s Court. The present application for bail is opposed by the Crown.
Section 15AA(1) of the Crimes Act 1914 (Cth) provides:

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

By s 3 of the Crimes Act 1914 a terrorism offence includes an offence against Parts 5.3 or 5.5 of the Criminal Code. The applicant is charged under s 102.6, which is found in Part 5.3 of the Criminal Code. Accordingly s 15AA(1) applies.
The Crown has submitted that exceptional circumstances do not exist to justify bail.
In the event that the applicant is able to show exceptional circumstances, s 19 of the Bail Act

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 NK

Details

AGLC: R v NK [2016] NSWSC 498
Case: [2016] NSWSC 498
Decision Date: 22 April 2016

CaseChat Overview and Summary

The case involved an application for bail by an individual charged with a terrorism offence. The applicant, referred to as NK, was facing serious allegations and the prosecution argued that a rebuttable presumption against bail applied due to the nature of the charges. The matter was heard in the Supreme Court of Victoria, presided over by Justice Beach. The primary legal issues before the court were whether the rebuttable presumption against bail could be rebutted in light of the applicant's youth and vulnerability, and if so, what conditions could be imposed to appropriately address the concerns regarding bail.

The court examined the statutory framework and the common law principles governing bail applications. It acknowledged the seriousness of the charges and the need to protect the community. However, it also considered the exceptional circumstances presented by the applicant's youth and vulnerability to adult persuasion or influence. The court determined that, while the presumption against bail was strong, it was not insurmountable. The applicant's youth and vulnerability were significant factors that warranted careful consideration. The court found that, with appropriate bail conditions, the risks associated with granting bail could be adequately managed.

Consequently, the court decided to grant bail to the applicant, subject to strict bail conditions designed to mitigate the risks. These conditions included electronic monitoring, a curfew, restrictions on internet use, and regular reporting to a supervising officer. The court concluded that these measures sufficiently addressed the concerns regarding the applicant's potential to commit further offences while on bail. The orders were made in favour of the applicant, allowing for the release on bail with the specified conditions.

Orders