R v WE (No.9) - [2019] NSWSC 1170

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.9) [2019] NSWSC 1170
Hearing dates: 4 September 2019
Date of orders: 04 September 2019
Decision date: 04 September 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
Application for release refused

Catchwords:
BAIL – Applicant charged with doing acts in preparation for a terrorist act or acts – Where applicant arrested in 2016 aged 16 – Where jury at the applicant’s first trial in 2018 could not reach a unanimous verdict – Where jury in the applicant’s second trial was discharged due to disharmony – Where applicant will have spent between 3½ and 4 years in custody awaiting trial – Whether such circumstances should be regarded as exceptional – Exceptional circumstances made out
BAIL – Evidence of the applicant having repeatedly engaged in breaching the rules of his custody – Evidence of the applicant’s father having approached important Crown witness prior to the applicant’s second trial – Where bail proposal involved the applicant being released to reside with his father and mother – Evidence of previously fractured relationship between the applicant and his parents – Evidence given by the applicant’s father on a previous application for release which established that he was unable to control the applicant’s conduct in the period leading up to his arrest – Evidence that the applicant had been found to have religious texts in his possession in custody which espoused violent ideology – Risks of flight and the commission of further offences if released – Where risks could not be mitigated by the imposition of conditions – Application for release refused.
Legislation Cited: Bail Act 2013 (NSW)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: Barr (A Pseudonym) v The Director of Public Prosecutions (2018) 97 NSWLR 246; [2018] NSWCA 47
Hammoud v The Director of Public Prosecutions [2006] VSC 516
R v NK [2016] NSWSC 498
R v WE [2017] NSWSC, 19 December 2017 unreported
R v WE (No 3) [2019] NSWSC 881
R v WE (No 8) [2019] NSWSC 1030
R v WE (No.1) [2019] NSWSC 38
R v NK [2016] NSWSC 498
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
J Trevallion – Applicant
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Alexanders Lawyers – Applicant

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

Judgment – EX TEMPORE (REVISED)

INTRODUCTION

On 24 July 2018, the applicant pleaded not guilty to a charge that between 6 October 2016 and 12 October 2016 he committed acts in preparation for a terrorist act or acts. On that occasion he was indicted with a co-accused, to whom I shall refer as HG. Following a joint trial, HG was found guilty. However, the jury could not reach an unanimous verdict in relation to the applicant.
On 8 July 2019, a further indictment was presented by the Crown against the applicant alleging that he committed acts, jointly with…

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.9)

Details

AGLC: R v WE (No.9) [2019] NSWSC 1170
Case: [2019] NSWSC 1170
Decision Date: 04 September 2019

CaseChat Overview and Summary

In the matter of R v WE (No.9), the applicant, WE, is before the court seeking bail after being charged with offences related to preparing for a terrorist act. The case involves complex circumstances, including multiple trials, extended periods of custody, and allegations of misconduct in custody and family relations. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court involved whether the applicant's circumstances were exceptional enough to warrant bail and, if so, whether the risks of granting bail could be adequately mitigated by conditions. The court had to consider the length of time WE had already spent in custody, the outcomes of previous trials, and the potential risks if WE were to be released on bail. In particular, the court focused on the evidence of WE's prior breaches of custody rules, the strained relationship with his parents, and the presence of religious texts promoting violent ideology in his possession while in custody.

The court found that although WE had spent a considerable amount of time in custody, this alone did not constitute exceptional circumstances warranting bail. The court also considered the risks associated with WE's release, including the potential for further breaches of custody rules, the fractured relationship with his parents, and the ideological material found in his possession. The court concluded that these risks could not be sufficiently mitigated by any conditions of bail, leading to the conclusion that the interests of justice did not favour granting bail. Consequently, the application for bail was refused.

The final orders of the court were that WE would remain in custody until the conclusion of his criminal proceedings. The court's decision was based on the significant risks associated with his release, which outweighed the exceptional circumstances of his prolonged detention.

Orders