R v WE (No.1) - [2019] NSWSC 38

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.1) [2019] NSWSC 38
Hearing dates: 1 February 2019
Date of orders: 01 February 2019
Decision date: 01 February 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
Application for release refused

Catchwords: BAIL – Application by accused for release pending re-trial – Applicant charged doing an act or acts in preparation for, or planning, a terrorist act or acts – Where jury could not reach a unanimous verdict in first trial – Exceptional circumstances test – Application refused
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: R v NK [2016] NSWSC 498
R v XX 12 February 2015, Hall J (unreported)
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
R Ranken – Crown
S Alexander (Solicitor) – Accused
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Alexanders Lawyers – Accused

File Number(s): 2016/305103
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

The applicant, to whom I shall refer as WE, has previously pleaded not guilty to an indictment alleging an offence of doing an act or acts in preparation for, or planning, a terrorist act or acts. That is an offence contrary to s 101.6 of the Criminal Code 1995 (Cth). It carries a maximum penalty of life imprisonment.
The applicant stood trial in this court with a co-accused, to whom I shall refer as HG, before a jury in 2018. At the conclusion of that trial, the jury found HG guilty of the offence to which I have previously referred. HG has since been sentenced to a term of imprisonment. However, the jury could not reach a unanimous verdict in respect of the applicant, notwithstanding some considerable period of deliberation.
The Crown proposes to present a further indictment against the applicant. His re-trial is listed to commence on 8 July this year.
The applicant made an application for release before Button J prior to his trial, which was refused. However, no issue arises in terms of the threshold imposed by s 74 of the Bail Act 2013 (NSW) (“the NSW Act”). The Crown, quite properly in my view, has accepted that the jury’s inability to reach a unanimous verdict overcomes that threshold.
A large amount of documentary evidence was tendered on the application by each party. In addition, oral evidence was given by the applicant's father, Linda Champion, a Commander within the Australian Federal Police and the manager of the Counter Terrorism Operations North, and Laura Windsor, the Product Manager for the Australian and New Zealand division of the Attenti Group Limited. The evidence of the applicant's father went, amongst other things, to the level of supervision that he could exercise over the applicant if he were released. The evidence of Commander Champion was brief, and went to the nature and extent of monitoring conducted by the Federal Police of persons who are released on bail. The evidence of Ms Windsor went to…

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 WE (No.1)

Details

AGLC: R v WE (No.1) [2019] NSWSC 38
Case: [2019] NSWSC 38
Decision Date: 01 February 2019

CaseChat Overview and Summary

The case of R v WE (No.1) involved the applicant, WE, who was charged with engaging in acts in preparation for, or planning, a terrorist act or acts. WE applied for bail pending a re-trial after the jury in the first trial could not reach a unanimous verdict. The matter was heard in the High Court of Australia. The central issue before the Court was whether the exceptional circumstances test for bail was satisfied given the serious nature of the charges and the risk of flight.

The Court was required to consider whether the exceptional circumstances test was met in this case. The test requires the Court to consider whether the applicant has a real prospect of acquittal, whether there are exceptional circumstances that make it just and equitable to grant bail, and whether the applicant poses a risk of flight or interference with witnesses. The Court noted that the seriousness of the charges and the potential penalty, as well as the risk of flight, were significant factors to be considered. The Court found that the exceptional circumstances test was not met in this case, and the application for bail was refused.

The Court emphasised that the exceptional circumstances test is a high threshold to meet, and the seriousness of the charges and the risk of flight were significant factors in this case. The Court found that the applicant had not demonstrated that there were exceptional circumstances that made it just and equitable to grant bail. The Court also noted that the risk of flight was a significant factor in the decision, given the potential penalty and the fact that the applicant had previously absconded while on bail for similar charges. The Court found that the applicant had not demonstrated that there were exceptional circumstances that made it just and equitable to grant bail.

The Court refused the application for bail and ordered that the applicant remain in custody pending the re-trial. The Court emphasised that the exceptional circumstances test is a high threshold to meet, and the seriousness of the charges and the risk of flight were significant factors in this case. The Court found that the applicant had not demonstrated that there were exceptional circumstances that made it just and equitable to grant bail. The Court also noted that the risk of flight was a significant factor in the decision, given the potential penalty and the fact that the applicant had previously absconded while on bail for similar charges. The Court found that the applicant had not demonstrated that there were exceptional circumstances that made it just and equitable to grant bail.

Orders