Re application for bail by Brookman
[2020] VSC 470
•30 July 2020
| IN THE SUPREME COURT OF VICTORIA | REDACTED |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0100
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for bail by ADAM MATHEW BROOKMAN |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2020 |
DATE OF RULING: | 30 July 2020 |
CASE MAY BE CITED AS: | Re application for bail by Brookman |
MEDIUM NEUTRAL CITATION: | [2020] VSC 470 |
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CRIMINAL LAW – Bail – Charges of providing support or resources to a terrorist organisation and performing services in support or promotion of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment Act 1978 (Cth) – Delay – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail, or fail to surrender himself into custody – Exceptional circumstances made out – Unacceptable risk – Bail refused – Criminal Code (Cth) ss 102.7; Crimes (Foreign Incursions and Recruitment Act 1978 (Cth) ss 6, 7(1)(e); Crimes Act 1914 (Cth) ss 15AA, 15AB; Bail Act 1977 ss 1B, 3AAA and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson QC and Mr S Ginsbourg | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P Morrissey SC and Ms G Morgan | Stary Norton Halphen |
HER HONOUR:
Introduction
This is the first application for bail by Adam Brookman (‘the applicant’). He is charged with one charge of providing support or resources to a terrorist organisation[1] and one charge of performing services in support or promotion of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).[2]
[1]Criminal Code Act1995 (Cth) s 102.7(1).
[2]Crimes (Foreign Incursions and Recruitment) Act1978 (Cth) s 7(1)(e) repealed by Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014.
The applicant is an Australian citizen who travelled to Syria via Turkey in 2014. He was in Syria on 29 June 2014 when Abu Bakr al Baghdadi declared a caliphate on behalf of Islamic State (‘IS’).
An affidavit[3] (Exhibit 2) prepared by Detective Leading Senior Constable Ryan Forde (‘DLSC Forde’) sets out the charges the applicant faces and summarises the nature of his alleged offending:[4]
4.Police allege that BROOKMAN was in Syria between March 2014 and January 2015. In the period May – November 2014 he was involved with armed jihadi militant groups who were fighting, against the Syrian government and other State and non-State actors in the Syrian conflict, and in relation to the period of August to November 2014, in support of Islamic State.
5.When BROOKMAN travelled to Syria in March 2014, there is evidence to suggest he was initially providing medical services in Aleppo. In early May 2014, BROOKMAN attended boot camp training including weapons training and religious classes. From at least mid-May 2014, it is alleged that BROOKMAN joined a group of predominantly Chechen and North Caucasian fighters located in Syria. He is alleged to have resided with them primarily in Atmeh, Syria and performed tasks including guard duty, maintenance of weaponry and the provision of medical services.
6.In July 2014, BROOKMAN travelled with his group to the Latakia region of Syria, where he assisted in an operation and participated in a reconnaissance mission.
7.From early August 2014, it is alleged that BROOKMAN relocated to Manbij, an area that was held by Islamic State, with a group of Chechen and North Caucasian foreign fighters. It is alleged that by at least mid-August 2014, the Chechen group which BROOKMAN joined was fighting as part of or alongside Islamic State, and was engaged in supporting the activities of Islamic State. In late August 2014, the Chechen group fought as part of the Islamic State offensive in the battle at Tabqa Airport. A video captured on 25 September 2014 depicts BROOKMAN with a number of other armed militants at a base at Manbij Driving School, assembling and then leaving the location in trucks and vehicles marked with Islamic State flags…
8.In around January 2015, BROOKMAN left Syria and entered Turkey. He travelled back to Australia in July 2015 and was arrested upon his arrival.
[3]Exhibit (‘Ex’) R-2.
[4]Ibid 2 [4] – [8], [9].
The parties agree that the applicant was injured when in Syria, and that he left in 2015. It does not seem to be in dispute that after leaving Syria, the applicant re-entered Turkey and resided there for a period of time, without having custody of the passport that he left Australia with. Towards July 2015, the applicant, through his lawyers, sought to surrender himself to Australian authorities in Turkey under an arrangement whereby he would be escorted back to Australia, and face arrest and prosecution on his return. This occurred, and on 24 July 2015, upon his return to Australia, the applicant was arrested by the Australian Federal Police (AFP).
Applicable legal principles
Sections 15AA(1) and 15AA(2) of the Crimes Act 1914 (Cth) (Crimes Act) provide:
(1)Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
(2)This subsection covers a person (the defendant) charged with, or convicted of, any of the following offences:
(a) a terrorism offence;
…
A ‘terrorism offence’ is defined in s 3 of the Crimes Act to include an offence against Part 5.3 of the Criminal Code Act 1995 (Cth) (Criminal Code). The applicant is charged with an offence against s 102.7(1) of the Criminal Code (charge 1) which falls within Part 5.3 of that Act. Therefore, bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist to justify bail pursuant to s 15AA(1) of the Crimes Act.
The applicant is also charged with an offence against s 7(1)(e) of the Crimes (Foreign Incursion and Recruitment) Act 1978 (Cth) (charge 2). I note that this Act was repealed in December 2014, and that Charge 2 is not a ‘terrorism offence’ under s 3 of the Crimes Act. Section 15AB of the Crimes Act applies to charge 2, and sets out the requirements that the Court must consider in determining an application for bail by an applicant charged with that offence. Those considerations overlap with the considerations that the Court must take into account under the Bail Act 1977 (Vic)(‘the Bail Act’) as set out below. In any event, the lower threshold test as it relates to charge 2 takes second place to the requirement that the applicant overcome the ‘exceptional circumstances’ test in relation to charge 1.
The requirement for the applicant to establish exceptional circumstances
It was not in dispute that the applicant bears the onus of establishing exceptional circumstances. On the other hand, it is for the respondent (the Crown) to satisfy the Court as to unacceptable risk.
What might constitute ‘exceptional circumstances’ has not been defined in the Crimes Act, but the term is used in comparable State legislation where exceptional circumstances are required to be shown by an applicant for bail.
While s 3AAA of the Bail Act does not specifically apply to an analysis of the existence of exceptional circumstances under s 15AA of the Crimes Act, I consider that the matters set out in s 3AAA include the same kinds of matters that inform an analysis of whether exceptional circumstances exist under 15AA.
The following bail decisions relating to both Federal and State offences set out some key considerations that assist in applying the exceptional circumstances test and in determining whether exceptional circumstances can be established in the present case:
· Hammoud v Director of Public Prosecutions (Cth):[5] s 15AA of the Crimes Act enacts a rebuttable presumption against bail being granted to an individual charged with a terrorism offence.[6] The requirement to establish exceptional circumstances requires an applicant to show that there is some situation which is out of the ordinary in some respect which he can point to as justifying the adjective ‘exceptional.’[7]
[5][2006] VSC 516, Application for Bail by Muhaidat [2004] VSC 17, 2 [13], cited with approval in DPP (Cth) v Lee [2020] VSC 275; Re Brent Reker, Tara Egglestone and Pierce Williams [2019] VSC 81, Re Diab [2020] VSC 196.
[6][2006] VSC 516, 1 [1]-[2].
[7]Ibid 1 [3].
· Haddara v Director of Public Prosecutions (Cth):[8] the concept of exceptional circumstances is a necessarily flexible one and may be constituted by a combination of matters which taken together render the case exceptional.[9]
[8][2006] VSC 8, 5.
[9] Ibid.
· R v NK:[10] Section 15AA of the Crimes Act sets ‘an extremely high hurdle’:
[10][2016] NSWSC 498, [30].
What circumstances may amount to ‘exceptional circumstances’ cannot be determined by reference to any fixed category of class of case. The facts and circumstances of each case will guide the determination as to whether they evidence or are capable of constituting exceptional circumstances.
As noted above, the phrase ‘exceptional circumstances’ admits to a degree of flexibility. The circumstances may include the personal or subjective circumstances of an applicant for bail. They may also include circumstances relating to a strength or weakness of a Crown case.[11]
[11]Ibid [30]-[31].
· Re Brown:[12] the threshold for exceptional circumstances is high, but it is not impossible to reach, and may be established through a combination of factors that may not themselves be considered exceptional.
[12][2019] VSC 751 [65]-[66], see also DPP (Cth) v Lee [2020] VSC 275, [88], and Re Tong [2020] VSC 141, [19].
· Kent v The Queen;[13] Mokbel v DPP(No 3);[14] and Vinayagamoorthy & Anor v DPP (Cth):[15] Delay alone, or in combination with other factors, may constitute exceptional circumstances justifying bail in the context of s 15AA(1) of the Crimes Act.
[13][2008] VSC 431, [7].
[14][2002] VSC 393.
[15](2007) 212 FLR 326, 331 [19]-[20].
· Application for Bail by Kaya (‘Kaya’):[16] The question of delay must be considered in light of the particular circumstances of each case, including the nature of the offence and its complexity, bearing in mind that the nature of terrorism cases is such that they are likely to be ‘long and involved’. Elliott J observed:
Further, it was submitted that the fact that delay is usual in “terrorism type” cases was irrelevant. I do not accept this submission. Whether or not a particular length of time amounts to delay that could be considered an exceptional circumstance must be viewed in the particular circumstances of the case, including the nature of the offence the subject of the charge.
The requirement for the respondent to establish unacceptable risk under s 4E of the Bail Act
[16][2016] VSC 712, [40]-[42].
Even if the applicant establishes that there are exceptional circumstances, the Court must refuse bail, pursuant to 4E(1) of the Bail Act,[17] if satisfied that there is a risk that, the applicant would, if released on bail:
[17]Which apply by virtue of s 68 of the Judiciary Act 1903 (Cth).
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail and the risk is an unacceptable risk.
The respondent bears the onus of satisfying the court as to the existence of risk of a kind mentioned at 4E(1) of the Bail Act, and that the risk is an unacceptable risk.[18]
[18]Bail Act 1977 (Vic) s 4E(2).
In determining whether the relevant risk is unacceptable, pursuant to s 4E(3)(a) of the Bail Act, the Court must have regard to all of the relevant ‘surrounding circumstances’ (that includes, but is not limited to, the circumstances set out at s 3AAA of the Bail Act). Pursuant to s 4E(3)(b) of the Bail Act, the court must also consider whether there are any conditions of bail that could be imposed to mitigate the risk so that it is not an unacceptable risk.
In addition, the Court must take into account the guiding principles set out in s 1B(1) of the Bail Act.[19]
[19]Bail Act 1977 (Vic) s 1B(2).
The Bail Act does not define ‘unacceptable risk’ but the phrase has been applied in Victoria for many years.
In Haidy v DPP, Redlich J said:[20]
Bail when granted is not risk free…[21]
As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient...[22]
It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk…[citations omitted].[23]
[20][2004] VSC 247, see also Re Application for Bail by Ibrahim El Sayah [2016] VSC 716, [7].
[21][2004] VSC 247, [14].
[22]Ibid [15].
[23]Ibid [16].
In Kaya, Elliot J considered an application for bail for a person charged with a terrorism offence (namely, preparations for foreign incursions for the purpose of engaging in hostile activities). His Honour concluded:
Speaking generally, the nature of the charge, when properly made on substantial evidence, would ordinarily mean the relevant circumstances of the alleged offending are likely to be attended with significant risk with respect to the safety or welfare of members of the public.[24]
[24][2016] VSC 712, [57].
Because the contested issue of unacceptable risk was so prominent in this proceeding, I have found it more convenient to outline the respondent’s case in opposition to bail before coming to the applicant’s case in favour of bail. In doing so I have borne steadily in mind the onus on the respondent to establish unacceptable risk.
Summary of matters relied on by the respondent in opposition to bail
In putting forward their opposition to bail, the respondent relied on five affidavits; the affidavit of DLSC Forde deposed on 9 July 2020 (‘first affidavit’);[25] the supplementary affidavit of DLSC Forde deposed on 14 July 2020 (‘supplementary affidavit’);[26] the affidavits of Vera Oujaimi[27] (first affidavit deposed on 8 July 2020;[28] and her further affidavit dated 15 July 2020)[29] and the affidavit of Jennifer Anne Hosking, Acting Assistant Commissioner, Sentence Management Division, Corrections Victoria.[30] The Crown’s written submissions on the application for bail were also tendered.[31]
[25]Ex R-2.
[26]Ex R-3.
[27]An employee of the AFP who performs interpreting and translating of Arabic material.
[28]Ex R-4.
[29]Ex R-5.
[30]Ex R-1.
[31]Ex R-6.
Hosking’s affidavit
Ms Hosking deposed that she is responsible for the ‘oversight of the management and placement of prisoners,’ both sentenced and on remand within the Victorian Prison System. She reviewed Prisoner Information Management System notes for the applicant.[32]
[32]These notes record incidents involving the prisoner, Sentence Management Panel and case management review meetings with or about the prisoner.
On his reception at the MAP, the applicant was assigned a maximum security rating, due to the nature of his charges.[33] On 24 August 2015, the applicant was transferred to the [*Redacted] Protection Unit at [*Redacted] Prison.[34] He remained there until 6 January 2017. On 6 January 2017, the applicant was moved to a single cell [*Redated]. This was after other prisoners were said to have abused the applicant due to media coverage about his charges.[35] The applicant remains in the [*Redacted] Unit and receives the prison’s ‘standard of 11.5 hours out of cell each day.’[36]
[33]Ex R-1, [6].
[34]Ibid [7].
[35]Ibid [15].
[36]Ibid.
Ms Hosking stated that in April 2020 that the applicant was described by staff as ‘very quiet and he tries to reduce the interaction he has with other prisoners.’ He worked as a laundry billet, and ‘this has increased due to the partial lockdowns due to COVID-19.’ He was having regular contact with his mother and occasional contact with his children.[37] The applicant had an in-cell computer, and the issue of this equipment was reviewed and confirmed on 5 May 2020.[38]
[37]Ibid [18].
[38]Ibid [19].
Ms Hosking provided a list of the people currently on the applicant’s call and visit list and also deposed that the applicant has had ‘very regular correspondence with [Prisoner C] at [*Redacted].’[39]
[39]Ibid [23].
She advised that due to the pandemic, since 21 March 2020, all personal visits had been suspended with other means of contact such as Skype being made available to prisoners.[40] Prison chaplains were continuing to visit.[41]
[40]Ibid [25].
[41]Ibid [26].
Ms Hosking provided general information about the testing and precautionary measures being taken across the Victorian prison system to address the risk presented by COVID-19.[42] She also provided general information about the services available to prisoners across the system.
[42]Ibid [28]-[34].
Out-of-cell hours for most prisoners have been reduced by approximately 50% due to COVID-19,[43] and education and other programs have been reduced.[44] The applicant has accrued 69 notional Emergency Management Days due to being at [*Redacted] prison during COVID-19 restrictions.[45]
[43]Ibid [27], [56].
[44]Ibid [41].
[45]Ibid [42].
DLSC Forde’s affidavits
DLSC Forde deposed that his first affidavit was prepared based on information gathered by him and by other members of the Joint Counter Terrorist Team (JCCT) assigned to investigate the case, other members of the AFP, Corrections Victoria staff and from information provided by the Commonwealth Director of Public Prosecutions (CDPP).
In his first affidavit, DLSC Forde said that he is the case officer for the investigation relating to the charges brought against the applicant and that his involvement commenced in May 2016. In January 2018, he took over the carriage of the matter from Federal Agent, O’Neale (the informant) when FA O’Neale transitioned out of the JCCT, however FA O’Neale remains the informant for the matter.
DLSC Forde summarised the applicant’s personal history at paragraphs 38 to 45 of his first affidavit and none of those facts were disputed by the applicant:
38. BROOKMAN was born in Australia on 16 March 1976 and is the third child of Sandra Joy Brookman (nee Pattison) and Kevin Douglas Brookman. BROOKMAN has a twin brother and two other full brothers and one half brother.
39.Around 1994, after finishing high school, BROOKMAN travelled to Morocco to visit his family, being his mother and two brothers who were residing in Morocco at that time. While BROOKMAN was completing high school, his mother had married Hamid Bouzida ("BOUZIDA"), born 2 January 1960 an Australian citizen of Moroccan background. After the marriage, BROOKMAN's mother and two of his brothers moved from Victoria with BOUZIDA to Perth and subsequently onto Morocco.
40.During this trip to Morocco in 1994, BROOKMAN converted to the Islamic faith and adopted the Islamic name "Abdur Raheem". BROOKMAN was in Morocco for about four or five months and then returned to Australia where he took up residence in Melbourne and continued to practice the Islamic faith.
41.In June 2001, BROOKMAN married [Lina M], born 9 November 1981. They had five children together, now aged between six years to eighteen years old.
42.In October 2009, BROOKMAN completed a Bachelor of Nursing at Victoria University and subsequently worked as a nurse in various capacities at a number of healthcare institutions in Victoria until January 2014.
43.In May 2010, BROOKMAN enrolled in a Paramedic course with Ambulance Victoria; however, he did not meet the course requirements and did not become a qualified paramedic.
44.On the 3 February 2014, the accused left Australia departing on a flight bound for Dohar, with his identified destination as being Morocco. He did so leaving his wife and five young children, the eldest then aged 11 years old and the youngest of whom was at that stage aged less than 3 months old.
45.BROOKMAN and [Lina M] divorced in late 2018.
The procedural history of the prosecution of the current charges was précised in paragraphs 12 to 36 of DLSC Forde’s first affidavit. I note that the ensuing extract presents a modest summary of the extent and complexity of pre-trial applications and hearings to date as demonstrated by the voluminous written outlines produced by the parties since the applicant was committed for trial to this Court:
12. On Friday 24 July 2015 an arrest warrant was obtained for BROOKMAN pursuant to section 3ZA Crimes Act 1914 issued by the Melbourne Magistrates’ Court.
13. On Friday 24 July 2015, BROOKMAN arrived into Sydney, Australia on Emirates Airlines flight EK414. Following routine immigration and customs clearances, BROOKMAN was arrested by members of the AFP pursuant to the warrant.
14. BROOKMAN appeared before Parramatta Local Court on 25 July 2015 at which time he was ordered to be extradited to Melbourne to face remand before Monday 27 July 2015. BROOKMAN did not oppose the application for his extradition.
15. On 27 July 2015, a Filing Hearing was held before Magistrate Popovic at the Melbourne Magistrates' Court. The hand up brief was ordered to be served by 4 October 2015 and BROOKMAN was remanded to appear at a committal mention hearing on 16 November 2015.
16. At the committal mention on 16 November 2015, the matter was listed for contested committal on 12 and 13 April 2016.
17. On 23 March 2016, the contested committal date of 12 and 13 April 2016 was vacated. The contested committal was relisted to take place on 3-5 October 2016. A suppression order in relation to the identity and image of Witness A, was also granted on that occasion.
18.On 29 September 2016, legal representatives for BROOKMAN sought an adjournment to the committal proceedings on the basis that not all disclosure material had been provided and [*Redacted]. Magistrate Holzer granted an adjournment of the contested committal proceedings until 5 June 2017.
19.[*Redacted].
20.[*Redacted].
21.[*Redacted].
22.On 7 June 2017, following a contested committal hearing in the Melbourne Magistrates Court, BROOKMAN was committed to stand trial in the Supreme Court of Victoria.
23.On 29 January 2018, a mention hearing was held in the Supreme Court. The trial scheduled to commence on that day was vacated. Discussions were held between the parties but the matter did not resolve.
24.On 9 November 2018, a mention hearing was held in the Supreme Court and a new Indictment was filed by the Prosecution.
25.On 4 December 2018, a mention hearing was held in the Supreme Court where Justice Dixon delivered judgement in relation to the 6 to 7 June 2018 pre-trial arguments. DPP (Cth) v Brookman (Ruling No 1) [2018] VSC 749R refers.
26.On 19 to 21 February 2019, Basha hearings were heard at the Supreme Court for witnesses ORDAL, LAURITZEN, BØYUM and JOHNSEN. The witnesses appeared via video-link from Norway.
27.On 1 March 2019, a mention hearing was held in the Supreme Court to discuss witness availability and scheduling of pre-trial arguments. A tentative trial date of 30 September 2019 was suggested with the duration of the trial expected to be 6-8 weeks.
28.On 17 June 2019, pre-trial argument took place in relation to the admissibility of the “Norwegian evidence” (the contents of which includes Annexure B).
29.On 20 August 2019, Justice Dixon handed down her ruling in relation to the “Norwegian evidence” in DPP (Cth) v Brookman (Ruling No 2) [2019] VSC 558R.
30.On 4 October 2019, pre-trial argument continued at the Supreme Court in relation to the admissibility of social media evidence [*Redacted].
31.On 18 October 2019, pre-trial argument continued in the Supreme Court. The Prosecution advised the Court that they no longer intended to rely upon the social media records [*Redacted] and therefore did not seek for Justice Dixon to rule on the matter.
32.On 23 October 2019, a mention hearing was held in the Supreme Court. Defence indicated that as a result of the developments in the matter that they were issuing subpoenas on the AFP and Attorney General’s Department. Communications continued between the parties with Defence to narrow the scope of the subpoenas.
33.On 11 February 2020, a mention hearing was held in the Supreme Court in relation a suppression order application sought by the AFP. Justice Dixon granted the order.
34.On 21 February 2020, a mention hearing was held in the Supreme Court to discuss further timelines in responding to the Defence subpoenas. PII argument was scheduled to commence on 25 February 2020.
35.On 25 to 28 February 2020 and 3 March 2020, arguments commenced in the Supreme Court in relation to subpoena material. Justice Dixon adjourned the arguments sine die in order to consider the possibility of partial inspection of the documents.
36.BROOKMAN's trial is now scheduled to commence on 28 September 2020.[46]
[46]This date for a jury to be convened may be adversely impacted by the current pandemic.
The applicant’s association with [Prisoner C]
DLSC Forde summarised his opposition for bail and noted that whilst in custody, the applicant began corresponding with [Prisoner C].[47] Extracts from the correspondence between the applicant and [Prisoner C] in 2019 and 2020 were referred to in DLSC Forde’s affidavits. The respondent ultimately provided all of the correspondence between the applicant and [Prisoner C] that was held by the AFP.[48]
[47]Ex R-2, 8 [46].
[48]I will make that correspondence Respondent Exhibit 8 (‘Ex R-8’).
[*Redacted].
[*Redacted].[49][50]
[49][*Redacted].
[*Redacted].[51]
[51][*Redacted].
DLSC Forde’s oral evidence
DLSC Forde gave brief evidence and was cross-examined on behalf of the applicant. He agreed that the AFP did not prevent the applicant from speaking to [Prisoner C] once the AFP became aware of the correspondence going on between them. He also conceded that, leaving aside the correspondence with [Prisoner C], there was no evidence that the AFP could produce to show that the applicant had been communicating with others about flight, offending, or interfering with witnesses.
When cross-examined about the availability of Crown witness, [Witness A], for the trial of this matter, DLSC Forde said that he had received no communications [*Redacted] to suggest that anything had changed regarding [Witness A]’s availability to appear as a witness in the trial. DLSC Forde gave evidence that the same applied to the [*Redacted] witness proposed to be called at trial.
The respondent’s argument regarding delay not being sufficient to establish exceptional circumstances
Based on the evidence before the court, the respondent submitted that the argument for exceptional circumstances rests primarily, if not solely, upon delay and that there are no other factors that significantly support the existence of exceptional circumstances in this case.
It was argued that the delay in the present proceeding does not amount to exceptional circumstances because any assessment of the delay must consider the often long and complex nature of terrorism cases. Also, that the applicant’s forensic choices had contributed to the length of time taken up with the pre-trial argument, leading to delay arising from that circumstance. The delay was prolonged by the belated service of wide-ranging subpoenas by the applicant in October last year. The Court should treat the delay since that time as being largely the result of the issuing of subpoenas by the defence at a late stage.
Regarding the impact of COVID-19 it was argued that although COVID-19 is causing delays in all jury trials, this is not exceptional as it applies to all persons in custody awaiting jury trials.
The respondent’s submissions regarding ‘unacceptable risk’
The respondent argued that even if exceptional circumstances were able to be established, there is an unacceptable risk that the applicant would commit an offence, such as a terrorist act, if released on bail.
This is because, according to the Crown case, the applicant demonstrated his motivation and commitment to extremist ideology when he left Australia for Syria, leaving behind, unsupported, his young family of five children, including a three-month-old baby. The applicant posted statements and declarations on social media manifesting his support for violent Jihad and his contempt for ‘Kuffar’ and Western democracies who fought against the caliphate. The applicant engaged with the Chechen group with a view to advancing the ideology that he had taken with him to Syria.
Examples of the applicant’s expression of extremist ideology and support for violent Jihad were summarised by the Crown:[52]
In January 2014, the strength of the accused’s support for opposition forces in Syria drove him to leave his wife and 5 young children and travel to Syria to provide his assistance. He told his wife that he would “see [her] in Jannah [heaven].”
On 14 March 2014, after he had arrived in Syria, the accused posted to Instagram a photo with the caption “may Allah give victory to the mujahideen.”
In May 2014, the accused posted to Facebook a quote from a Muslim text that included “I would love to be killed in the Path of Allah /then be brough [sic] back to life again, then killed.”
The same month, the accused posted to Facebook the following: “Can we really say we love [Allah] and want to be like sahaabah when the idea of hijra or jihad isn’t even a consideration for many? If we want to be believed in our word then let our actions do the talking.”
Whilst in Syria, the accused’s association with militant opposition groups gained their trust to the extent that he was able to carry a firearm whilst with them.
On 21 August 2014, the accused posted to Instagram a photo of a military vehicle carrying an anti-aircraft gun, with a caption stating that it was “in the hands of The Islamic State common bring ur planes there is welcoming committee waiting for you” and “I support all mu-jahideen against kuffar.”
[52]Ex R-6 [15].
The respondent pointed out that the evidence suggests that the applicant had weapons training, did guard duty and lived among armed combatants in the Chechen group whilst in a war zone in Syria.
The respondent submitted that despite the long period on remand, it is apparent that the applicant adheres to the same ideology and commitment to jihad as at the time of the alleged offending. This is demonstrated by his uncritical support of [Prisoner C] despite [that person’s] explicit identification with extremist jihadist ideology. It is implicit in the correspondence that he admires [Prisoner C] and does not disapprove of [Prisoner C’s] ideology or past actions.
[*Redacted]. His perception of [Prisoner C] was likely to have been influenced by his awareness of [Prisoner C’s] crime and by his ideological standpoint. Rather than being [*Redacted] disapproving of [Prisoner C’s] crime, he commenced ongoing correspondence with [Prisoner C] [*Redacted]. The correspondence showed an awareness that it was likely to be read by the authorities, but this did not deter the applicant.
The respondent argued that the applicant’s letters show a contempt for the ‘Kuffar,’ who can be assumed to include the Australian public. There was an obvious risk that the applicant might commit a terrorist act in order to advance his extremist ideology. Such a consequence would be horrific. The applicant when in Syria spoke of his desire for martyrdom and desire to advance Islam with his death. The applicant has the ideology and has had the training that would enable him to commit a terrorist act. DLSC Forde also referred to the prospect that the applicant’s training in Syria could be used to the benefit of other likeminded persons who did not otherwise have those capabilities.
A terrorist act is easily performed using items or equipment domestically available to most householders, such as knives or other items that can be adapted as a weapon or by the use of a car to drive at pedestrians.
The respondent’s submissions on proposed bail conditions
The respondent argued that no conditions that could be fixed by the Court, including those proposed by the applicant, would appropriately manage the risk, or make it acceptable.
Effective reporting conditions are not presently available due to COVID-19,[53] but even if there was a capacity to go and do checks on the applicant’s whereabouts [*Redacted], there would be no way of guarding against the commission of a terrorist act, should the applicant be motivated to commit such an offence.
[53]Ex R-2 [59(a)].
In addition to the unacceptable risk of endangering the safety and welfare of a person or committing an offence whilst on bail, the respondent also submitted that the applicant could interfere with witnesses, particularly [*Redacted], who is a Crown witness.
The respondent relied on DLSC Forde’s explanation in his first affidavit, as to why the applicant posed a risk of failing to answer bail,[54] and submitted that although the applicant did surrender himself to the Australian authorities, this only occurred after he had been wounded. Prior to his return to Australia, he told his wife that he believed fatalistically that ‘Allah [would decide] the outcomes’.[55]
[54]Ibid [20].
[55]Ex R-6 [16].
DLSC Forde deposed that the applicant posed an unacceptable risk of failing to surrender himself into custody in answer to bail due to:
(a) the fact that the current pandemic has meant that Ballarat police has suspended reporting to police stations for people on bail;
(b) The fact that the applicant faces a maximum of 25 years imprisonment if convicted;
(c) The strength of the Crown case;[56]
(d) The fact that the applicant spent approximately six months in Turkey, in circumstances that are unknown, after leaving Syria and before returning to Australia; and
(e) The fact that the applicant has a number of close friends and family within Australia who could support him if he did not answer bail. The accused developed an ‘extensive network’ of associates during his time overseas who, it was said, could also provide him with support. This was supported by the fact that in April 2014, while the accused was in Syria, four cash withdrawals were allegedly made from the accused’s bank account using ATMs in Istanbul, Turkey.
[56]Ex R-2 [59(c)].
The respondent submitted that Court also should take into account that the applicant has not produced any direct evidence from family members in support of his bail application, nor has he offered any surety.[57]
[57]Ibid [19].
The applicant’s arguments in favour of bail
The applicant relied on the following documents in support of bail: The outline of submissions dated 16 July 2020;[58] the affidavit of Sean Kelly deposed 24 June 2020;[59] and the three documents tendered on the hearing of the application;[60] comprising case notes of the AFP, a one page extract from one of the letters written by the applicant to [Prisoner C] dated 22 August 2019, and a letter written by Brian McDonald, AFP Manager Counterterrorism National Disruption Group, to Stary Lawyers on 15 June 2015, regarding a possible negotiated return for the applicant from Turkey to Australia.
[58]Ex A-A.
[59]Ex A-B.
[60]Ex A-C.
The affidavit of Sean Kelly
The affidavit of Sean Kelly noted that the applicant has no criminal history, trained as a paramedic in Australia and went to Syria in 2014 with the intention of using his skills. He has four children to his ex-wife, [Lina M], and does not currently have contact with his children or their mother. He would not propose contact with them whilst on bail.[61]
[61]Ex A-B [10]–[12].
Mr Kelly stated that the applicant returned to Australia voluntarily in July 2015, aware that he faced investigation for his activities in Syria.[62]
[62]Ibid [11].
It was proposed that if granted bail, the applicant would receive support from his father and stepmother, and would live with them in their home. That property is a 3-bedroom house with no other occupants and the applicant would have his own room in the house. It is near a shopping centre and 10 minutes from the Ballarat CBD. The applicant’s father works one day per week for [*Redacted], whereas his stepmother, does not work and would mostly be at home. There is no internet connection at the home. The applicant’s father and step-mother have no criminal history and have regularly attended the applicant’s court hearings. They are aware of the allegations against him.[63]
[63]Ibid [13]-[18].
Mr Kelly deposed that the applicant is also supported by his mother, and that until personal visits were suspended on 21 March 2020 due to COVID-19, she visited the applicant on a weekly basis. They currently speak on Skype three times a week for about 20 minutes. It was not proposed that the accused live with her, and he would accept any limits on contact with her relevant to bail.[64]
[64]Ibid [19].
The applicant’s submissions regarding the existence of exceptional circumstances
The arguments advanced for the applicant in written and oral submissions focused on delay as a central factor establishing exceptional circumstances. Whilst a combination of factors was relied on – delay – from the date of arrest until now, and further likely delay before a jury trial could be convened – was the prominent consideration.[65] It was submitted that although the cause of the delay was not relevant,[66] fault for the delay could not be sheeted home to the applicant.
[65]Due to the need for further legal argument and rulings and due to possible ongoing deferment of jury trials caused by COVID-19.
[66]Ex A-A [9] citing Mokbel vDPP (no 3) [2002] VSC 393.
The following additional factors were also relied on:
(a) That the Crown case is contestable and ‘anything but overwhelming’;[67]
(b) That the strength of the case was currently ‘difficult to assess’ because ‘disclosure was not complete and major exclusionary applications are outstanding’;[68] and
(c) The evidence of the chief witness (a reference to [Witness A]) was ‘clearly controversial.’ [Witness A’s] evidence is central to proof of a course of conduct and the applicant submitted that ‘it is at least on the cards that a jury would doubt [Witness A’s] accuracy even if [Witness A’s] evidence of the applicant’s alleged representations be admitted.’[69]
[67]Ex A-B [20(b)].
[68]Ex A-A [19].
[69]Ibid 52 [20(b)].
There is outstanding pre-trial argument still to be advanced and a number of matters to be ruled on, and the applicant questions whether key witnesses, such as the informant and [*Redacted] [other] witnesses, have been ‘secured’ by the Crown to give evidence in the case.
Other factors relied on as combining to establish exceptional circumstances included the more restrictive conditions in prison due to COVID-19. However, Mr Morrissey SC mentioned that the applicant’s faith sustains him to a degree, and he is ‘bearing up surprisingly well in the circumstances.’[70]
[70]Transcript of Proceedings, Application for bail by Adam Matthew Brookman (Supreme Court of Victoria, SCR 2017 0100, Dixon J, 17 July 2020) 31 (P Morrissey SC)(‘Transcript’).
Regarding the likely sentence if convicted, it was submitted that the applicant went to Syria to assist medically, in a setting of civil war in Syria and that events evolved and changed during the charge period. After performing these actions, the applicant went to Turkey and remained there for many months before contacting the Australian authorities through his lawyers to surrender himself. The applicant is not charged with becoming a member of Islamic State. These matters were said to diminish the gravity of the offending were he to be convicted of the offences, with the possibility that ‘a conviction on the current charges will not clearly lead to a sentence significantly greater than the time currently served.’[71]
[71]Ex A-A [22].
The applicant’s submissions in relation to unacceptable risk
It was argued that the respondent’s position as to unacceptable risk cannot be made good.
The risk of failing to surrender himself on bail was submitted to be fanciful, given that the applicant returned voluntarily to Australia, despite the warnings of his wife [*Redacted] that he faced prosecution. The current restricted environment in Victoria and Australia meant that ‘no viable flight path is or could be suggested.’[72]
[72]Ibid [29].
Regarding the correspondence put forward by DLSC Forde, the applicant disputed that it revealed a plausible risk of committing an offence of domestic terrorism. It was submitted that ‘mere adherence to conservative Sunni Islam cannot suffice.’[73]
[73]Ibid [31].
The applicant invited the Court to look closely at what the applicant said in that correspondence, rather than what [Prisoner C] said. It was submitted that he shows himself as a devout Muslim who merely holds [*Redacted
]concern for [Prisoner C] [*Redacted].[74] The correspondence between them did not reveal a real danger of him committing a terrorist offence.[74][*Redacted].
One of the applicant’s letters[75] was relied on as suggesting that he is not in favour of violence. It was also argued that there is no expert evidence to say that his correspondence overall is consistent with condoning terrorism. The applicant’s willingness to meet with the Imams provided through the chaplaincy services was relied on as suggesting that he does not isolate himself from mainstream influences.
[75]Ex A-C.
It was put that while there are many ‘unbelievers’ in the prison environment, there have been no random attacks by the applicant on those people in the last five years. The affidavit of Ms Hosking shows that the applicant is a quiet and compliant prisoner.
The applicant’s submissions on available bail conditions
It was contended that conditions of bail would mediate any risk that the applicant presents. Such conditions could include a static residence condition, a police reporting condition (to be fashioned according to the current COVID-19 requirements), restrictions on telephone and internet use as well as restrictions on departure from Victoria or access to passport or travel documents or points of departure and non-association conditions.
In written and oral submissions, Counsel for the applicant also submitted that the applicant would abide by any order of the court limiting who he may have contact with. Further, in oral submissions, Mr Morrissey SC stressed the applicant would likewise abide by any such order relating to [Prisoner C].[76]
[76][*Redacted].
Regarding the lack of an offer of a surety in this case, the applicant’s parents are not in a financial position to offer such a surety. This should not discourage the granting of bail because sureties are mainly aimed at ensuring a person answers bail and there is no plausible risk that the applicant would not appear at his trial. The suggestion that the applicant would interfere with witnesses was submitted to be not made out by the respondent.
Finding as to whether exceptional circumstances are established
The fact that the applicant has been held on remand since July 2015, together with the fact that a jury may not be able to hear the trial this year due to the worldwide COVID-19 pandemic, is sufficient to establish that exceptional circumstances exist in this case.
I accept the respondent’s argument that lengthy delays can be difficult to avoid in cases such as the present involving complex terrorism charges of the type the applicant faces. This was observed in the matter of Re Kaya:
As has been previously observed, terrorism cases, of their nature are likely to be long and involved... If the court failed to take into account the nature of this type of case, it would follow, as a matter of logic, that every such case would give rise to an exceptional circumstance.[77]
[77][2016] VSC 712, [41].
The complexity and difficulty of such prosecutions is largely a result of the fact that the Commonwealth relies heavily on evidence obtained from outside Australia. Prosecuting authorities are compelled to rely on mutual assistance legislation and agreements and the voluntary cooperation of international agencies and foreign states.
I note however, that the accused has already been arraigned on the current indictment and his trial has commenced, and has been continuing in its pre-trial phase.
Whilst any significant delay in bringing the prosecution of accused persons to finality is regrettable, the procedural history put forward by DLSC Forde does explain how it is that we have reached this point of time without the matter being put to a jury for determination. Whilst COVID-19 might result in an inability for a jury trial to occur this year, the court intends that the ongoing inspection and ruling on subpoenaed documents and the determination of pre-trial argument should receive priority. The fact that the court is not conducting jury trials should enable the completion of all pre-trial steps this year, prior to the resumption of jury trials.
Regarding the argument that if convicted of both offences the sentence imposed may not greatly exceed the time spent on remand, I do not think this argument can be sustained. Recent authorities have emphasised the need for sentencing for terrorist offences to increase in order to serve the purposes of general deterrence and community protection.[78]
[78]DPP (Cth) v MHK [2017] VSCA 157, [51]-[53], [66], [72], [77], DPP (Cth) v Besim [2017] VSCA 158, [111]-[114], [121].
Further, the maximum penalty for charge 1 is 25 years. As such, if the accused is found guilty, it is unlikely that the time spent on remand would exceed his ultimate sentence.[79]
[79]Kaya [2016] VSC 712, [44], Re Diab [2020] VSC 196, [40].
Regarding the argument that the Crown case is contestable, (especially regarding charge 1) I accept that this is so, but the respondent is able to point to a body of evidence which, if accepted by a jury, would support both of the charges faced by the accused. The Summary of Prosecution Opening appended to DLSC Forde’s affidavit shows that the Crown case is not weak. The A-31 video files produced by the Norwegian witnesses are potent evidence relied on by the Crown to show the applicant’s association with and support of a group of militants wearing Islamic State insignia, apparently readying themselves for armed conflict.
Nonetheless, I accept that the length of the applicant’s current period of remand and likely wait until a jury trial can be conducted is such that the requirement for exceptional circumstances is met. Whilst the applicant relies on some other matters in combination with delay to make good his case for exceptional circumstances, in my view, all the other matters relied upon are common place matters, that, without the factor of delay, would not amount to exceptional circumstances.
I make the finding as to exceptional circumstances even though, in my view, some responsibility for the delay in the matter being ready to put before a jury is attributable to the Defence. The service of wide-ranging subpoenas on both the AGD and the AFP in October 2019 significantly slowed the processes of pre-trial argument. It was open to the applicant to subpoena material relevant to his investigation and prosecution well prior to October 2019.
Analysis of the Correspondence between the Applicant and [Prisoner C]
Both parties urged the court to read the correspondence chronologically and in full context. After the hearing and in addition to the matters set out below in the affidavit of DLSC Forde, the Crown provided, by consent between the parties, the entirety of the correspondence that was in the possession of the AFP (now marked Exhibit 8). The Court then attempted to read the correspondence chronologically, although at times the chronological sequence of the documents was complicated by the way in which the recipients experienced delays in their receipt of letters and sometimes received several letters at once. Greater attention was paid to letters written by the applicant.
Excerpts of correspondence in DLSC Forde’s affidavits
References in DLSC Forde’s affidavits to pertinent aspects of the correspondence are considered below, arranged in chronological order for ease of reference, and not the order they appear in the affidavits. Ms Oujaimi provided translations of certain terms used in the correspondence and those translations are incorporated in DLSC Forde’s affidavits:
On 31 May 2019 BROOKMAN wrote a letter to [Prisoner C], detailing his current circumstances, "...We have the blessing here at [*Redacted] of having a few good brother, approx 7 of us break fast together each night and we also pray and study Arabic and Tajweed (Recitation of Quran) and we help each other out Alhamdullillah (Thanks to Allah) for Islam. There are 4 of us on the big T charge, I've been here the longest yet I'm the last to go to trial, go figure. I have good support from family who visit me regularly, including my children (I have 5) and my Mother Barakallahh Leehim (May Allah bless them). My Mother is especially wonderful as every week I'm asking her research something for me in the religion and she'll print if off for me and send it in ....I could send it or I could have my mother do it ... believe me, any chance for reward is welcomed... "[80]
[80]Ex R-3 [4].
…
On 3 August 2019, [Prisoner C] wrote to BROOKMAN discussing the attempts of the prison chaplains to engage with [Prisoner C], informing BROOKMAN that " ...all they were focused to do was to convince me [*Redacted] I should be ashamed & sorry...they'd say vile things about the mujahideen (Muslim holy warriors) so as to make me believe that jihad is the wrong way...l was offered a chance for CISPS (sic) (Community Integration Support Program) but I refused [*Redacted]. [Prisoner C] wrote a further letter to BROOKMAN on that date. In this letter [Prisoner C] wrote about Jihad, "...The excellence of Jihad. Allah favoured the mujahideen over those who sit back with great reward...Jihad is the peak of lslam... No deed equals Jihad ...the mujahid (Singular form of Mujahideen) is the best of people". In the same bundle of mail, [Prisoner C] sent BROOKMAN a card with the image of a motorcycle on the front. The card has the hand written Arabic word 'BAQIYA' (Remaining) as well as a hand drawn 'Seal of Muhammad' (Mohamed is Allah's Messenger) and in Arabic 'There is no God but Allah'. These images on a black background are mirrors of the IS flag and the term 'Remaining' is synonymous with the IS propaganda 'Remaining and Expanding.[81]
[81]Ex R-2 [47].
…
On 27 September 2019 [Prisoner C] wrote a letter to BROOKMAN stating the following, "Thank you for sharing your family's photo, its so lovely to see them all together ... One more thing, I so much appreciate the fact that even after facing imprisonment and separation from your beloved family members, you have not compromised your aqeedah (Doctrine) & commitment to Allah's religion. Not everyone can do that and know that you've done an extremely amazing job in holding on to hot coals. May be Allah (swt) is using me to tell you that He is pleased with your effort, that you're on the right course, and that He wishes for you to keep pressing on and not give up. Do not change that which is in your heart. From all the verses and hadith that you quote I can tell how sincere and pure your intentions are for fee Sabilillah (in the cause of Allah). It's heartbreaking to see many people stray from the path or give up mid way in the slightest inconvenience while Allah (swt) had from the beginning promised that this path will be full of hardships. Only a few will tread it. Those are truly successful. May Allah (swt) make us one of them. Your effort will be rewarded in full measure lnshaaAllah (If Allah wills it / Allah willing). He is preserving you for a day when you will support His deen (religion/religion of Islam) and advance His cause. Be full of hope brother and be ready to stand and die for which your brothers and sisters have died. Btw, I won't ever feel shy to pull you up (if the need arises) as you may have noticed this is what I do: remind you so that it may be a reminder to myself first and foremost. I repeat: you're on the right path, with the right Jamaa'ah (Group), the saved sect. Have no doubt about it. We will be victorious, its just a matter of time.They see it for you but perhaps it is near .... "[82]
[82]Ex R-3 [5].
…
[Prisoner C] further states, "[*Redacted] thank you for the hadith! (hadith: Narrative of the Muslim Prophet Mohamed) [*Redacted].. do not worry much about the court. May Allah (swt) release you soon. Be patient with His decree, He will see you through this journey bro .. Your selfishness is commendable akhi (brother), and I hope to follow your example in doing everything for the sake of gaining Allah's pleasure. How wonderful is the matter with true believers .... "[83]
[83]Ex R-3 [6].
…
On 26 October 2019, after communicating over a period of months, BROOKMAN, aware of [Prisoner C]’s offending and extremist ideology [*Redacted] [said]"...we need to be aware of fitnah (Sedition/Trial/Strife/Seduction) and the influences of Shaytan (Satan). Moreover, we need to reaffirm our intention to please Allah and live according to that, which pleases Him. [*Redacted]. But please know I am committed to helping and supporting you in what ever way Allah allows regardless, now and for as long as Allah blesses me with life and ability [*Redacted]"[84]
…
On 27 November 2019, BROOKMAN wrote [Prisoner C] another letter and appeared concerned that he had not heard from [Prisoner C] [*Redacted] BROOKMAN then inserted an Arabic prayer. In the following paragraph BROOKMAN wrote, "I just saw on SBS news that seven 'islamist' were sentence (sic) to death in Dhaka for the attack that killed 200 plus people. He then wrote 'Allahumma anji al-mustad'afeena minal-mu'mineena ikhwatuna wa akhawaatuna, Allahumma ushdud wat'ataki alaa kuffaar aththalama, allahumma ij'alhaa alayhim sineen kasinee Yusuf' (O Allah, rescue the oppressed among the believing brothers and sisters. O Allah, be stern and harsh upon the oppressing disbelievers. O Allah, make it unto them many long severe years Yusuf)[85]
…
On 10 January 2020, [Prisoner C] replied to BROOKMAN after receiving his letters in one bulk delivery. In response to learning that BROOKMAN was a medic [Prisoner C] wrote that "...you were a hero, going around saving lives [*Redacted][86]
…
On 30 January 2020 [Prisoner C] sent a letter to BROOKMAN which contained the
following " ... 0 you who believe! Persevere, outlast (the Kuffar) (the Disbelievers) in patience, perform ribat (guarding and being stationed in the cause of Allah /Jihad), and fear Allah so that you might succeed ... The matter of waging Jihad is not complete without these four things ... "[87]…
[*Redacted].[88]
[84]Ex R-2 [48].
[85]Ex R-2 [49].
[86]Ex R-2 [50].
[87]Ex R-2 [51].
[88]Ex R-2 [52].
Excerpts from correspondence in Exhibit 8
DLSC Forde’s evidence was that it was the applicant who initiated correspondence with [Prisoner C] in May of 2019. [*Redacted]. In his letter dated 31 May 2019 the applicant said: ‘Wher[sic] are you with your [*Redacted] matters. [*Redacted] …?’ In the same letter he also asked: ‘if its okay with you I can ask my [family members] to write to you, maybe 1 or 2 will find the time. you’re not alone. And Allah is always with the believers.’[89]
[89]Ex R-8, CDPP file reference 13-Jun-2019 - Letter IR-2019-WU81C 6.
In a letter to the applicant dated 18 June 2019, [Prisoner C] [*Redacted] said (albeit some letters or words are cut off in the scanned document provided):
Alham [ ] still I wouldn’t take my allegiance off! [*Redacted]. These enemies of Allah (swt) [ ]an never shake my faith with anything. They [ ] an try, but they’ll fail InshaaaAllah.’[90]
[90]Ex R-8, CDPP file reference 26-Jun-2019 - Letter IR-2019-6YS78 10.
[*Redacted].[91]
[91][*Redacted].
Then, in the same letter, [Prisoner C] also wrote (albeit some letters or words are cut off in the scanned document provided):
May Allah (swt) bless us with an imminent [ ]ictory and use our hands to humiliate His enemies. May the temporary setback of the Ummah help to [ ]urify our ranks from the munafiquin. May Allah (swt) [ ]elp us to establish the flag of tawheed on His [ ]th. We shall conquer the world, bi-idh-nillah. Be [ ]tient my brother, because victory requires but an [ ] hour of patience…[92]
[92]Ex R-8, 2019.06.26 - Letter IR-2019-6YS78 10.
In a further letter sent around the same time [Prisoner C] wrote:
Thus should we pay the dues [*Redacted] - by walking humbly, side by side, in the ways of the Lord, with mutual aid and comfort, and heartfelt prayer backed by ACTION, that Allah’s good purpose may be accomplished in us all together! So PATIENCE is befitting. Because nobody said that it would be easy, they just promised it would be worth it.This road will surely lead us to a beautiful destination. This road to life which only a few find since it is less travelled by Alhamdulillah![93]
[93]Ex R-8, CDPP file reference 26-Jun-2019- Letter IR-2019-6YS78 3.
In some of [Prisoner C’s] letters, [Prisoner C] complained about, or sought to warn the applicant, against programmes such as CISP and prison visitors that [Prisoner C] perceived were part of de-radicalisation measures.
[*Redacted].[94]
[94]Ex R-8, CDPP file reference 25-Aug-2019 - Letter IR-2019-23HYW 5.
[*Redacted].[95]
[95]Ibid 10.
In a letter marked ‘Letter 3,’ also dated 3 August 2019, [Prisoner C] wrote:
I want to see you out soon akhi, you’re a precious asset for the Ummah. My advice to you would be to cooperate with your legal team in participating in recommended programs. None can change what’s in your heart; all of the kuffar & munafiqin can come together but they won’t be able to shake your faith to the least. But as I’ve mentioned in my previous letters, always keep in mind who you’re[sic] enemies are so as not to lose focus on what you know to be the truth. Don’t let your heart deviate by their twisting of daleel. Nevertheless, be wise and take in consideration that showing a bit of ‘remorse’
willmay help in minimizing the time. You’re under duress akhi, Allah knows what you’re going through. We must take our precaution against the enemies of Allah to the best of our ability, an in your case it has to be a strategic one. After you’ve done your part, put your complete trust in Allah (swt) who alone is in full control of all your affairs. Just be patientoverwith whatever befalls you.[96]
[96]Ex R-8, CDPP file reference 26-Aug-2019 - Letter IR-2019-7TGRT 5.
In correspondence dated 21 August 2019, the applicant stated that he received [Prisoner C]’s letters on 3 July 2019 and that three came at once ‘approximately’ two or three weeks after [Prisoner C] sent them:
And today [20/8] I received four of your letters at once, letters numbered 1-2-3 and the 4th being a card.
…
Because it took around one month and half[sic] from the time I mailed you until your reply, I will admit I got concerned that either I had upset you (I see now as untrue, Alhamdulillah you don’t know how much of a relief that is) or that it was being held up by certain authorities (most likely), photocopied and analysed, let them waste their money.[97]
[97]Ex R-8, CDPP file reference 23-Sep-2019 - Letter IR-2019-K6S89 24.
The applicant then wrote (albeit some letters or words are cut off in the scanned document provided):
[ ]ecause I was unsure the reason and due to mail I had sent to other brothers that were only taking less [ ] a week to arrive to them then similar time to return to me. Although I will admit, they will not approach [ ] of the topics you do, and that is not a criticism of you, no way May Allah be your guiding light, but we [ ]now what tickles Intel’s fantasy. Moreover, we do know everything goes under the microscope, which I [ ] me takes time. Ok enough of those losers. May Allah protect us from their evil, Ameen.[98]
[98]Ibid 25.
On 30 September 2019, [Prisoner C] wrote (albeit some letters or words are cut off in the scanned document provided);
I don’t know akhi, whether the topics I discuss [ ]ows down the mail speed. Even if I kept it general,[ ] don’t assume it would’ve made much difference (from [ ]hat I recall). Anyway, hell with the losers! And for us [ ]atience is befitting. Fasbir sabran jameela You [ ]ed occasions to send me more [*Redacted] cards… umm…[ ]w about ‘9/11’ that was a good occasion! Ahh you [ ] ssed it. SubHanAllah, may Allah (swt) raise the status [ ] our forerunners. They were solid! Ibn Taymiyyah (rh) attained martyrdom while in prison. He went into the prison as Ibn Taymiyyah and came out as ‘Shaykhul- Islam’ and he will be referred to as such for generations to come. Sometime[ ] to die is to gain. So what can our enemies do to us? [99]…
…
[99]Ex R-8, CDPP file reference 14-Oct-2019- Letter IR-2019-AASEU (1)(1) 19-20.
On 6 October 2019, [Prisoner C] wrote that ‘Imam Muslim, al-Tirmidhi and others narrated the story of the people of the trench:’
So which is better, victory or martyrdom? With every messenger Allah would give him & his followers victory while the disbelievers were destroyed. Martyrdom is a victory for principles. It is such a high status for a human being to give his life, which is the most valuable thing to him, for the sake of Allah.[100]
…
…preparation is, in fact, a duty and an obligation’[101] … So would you want to die a natural death or die as a martyr?’[102]…Who can face the people who love death like others love life?[103]
[100]Ex R-8, CDPP file reference 29-Oct-2019 - Letter IR-2019-GG6F9 4.
[101]Ibid 5.
[102]Ibid.
[103]Ibid 6.
On 22 October 2019, the applicant wrote:
Even knowing you as briefly as I have, I know anyone who would come to know you could do nothing but find you [*Redacted] wonderful individual’…[104]
…
Moreover, do not worry I’ll think of… appropriate… occasions =D to send you some [*Redacted] cards Inshallah and Ameen.[105]
[104]Ex R-8, 28-Dec-2019 - Letter IR-2019-66237 (2) 3.
[105]Ibid 4.
On 23 October 2019 the applicant wrote:
[*Redacted] Lol. SubhanAllah isn’t it amazing how Allah will guide whom He wills? Allah is indeed the best of planners.[106]
[106]Ibid 6.
On 30 October 2019 the applicant wrote to [Prisoner C] of Allah ‘May He place you within the heart of a green bird. Indeed he has honoured me with having known you.’[107]
[107]Ex R-8, CDPP file reference 28-Dec-2019 - Letter IR-2019-66237 (1), 4.
On 9 January 2020 [Prisoner C] wrote ‘I ask Allah to grant you the same residence, the same – residence in the heart of Green Bird.’[108] [*Redacted].
[108]Ex R-8, CDPP file reference 10-Jan-2020 PART 1 IR-2020-HCPVF; IR-2020-SB4UG; IR-2020-BLVY7; IR-2020-7QQT4.
Counsel for the applicant referred to and tendered an extract from a letter dated 22 August 2019[109] where the applicant stated:
I love Islam and all Muslims. No I do not condone violence against any innocents, nor does Islam for that matter. And yes, I wish the enemies of Islam and Muslims would adopt the same moral ground, sadly they never have and most likely never will. They are the biggest hypocrites. …‘I just want to be a Muslim, worshiping[sic] Allah and following the Prophet Muhammad (S) in my day-to-day living, living in peace with my family and loved ones…pleasing Allah and having him pleased with me, as is the freedom of religion afforded to people within free countries. but [sic] the trust is that they will never be pleased with us unless we turn our backs on our religion.
[109]Ex A-C.
The same document also quotes from an Islamic source and includes the words:
…’He then asked “What is the best Jihad?” the messenger of Allah replied, “The one who’s horse is slain and his blood is spilt.”
Unacceptable Risk
Despite my finding that the applicant has shown exceptional circumstances why bail should be granted, it is my view that bail should not be granted because the respondent has made good its case as to unacceptable risk.
The evidence before the court reveals the initiation and deepening of the applicant’s association with [Prisoner C] through written correspondence. This has occurred notwithstanding [Prisoner C’s] apparently extremist ideology extolling violent martyrdom [*Redacted]. [*Redacted]. The applicant’s pursuit of an ongoing association with [Prisoner C] must be considered within the context of what it is alleged the applicant did in Syria [*Redacted].
I have kept in mind that importing any particular meaning into statements made in the correspondence between the applicant and [Prisoner C] brings with it the risk of subjective interpretation. Personal correspondence of this nature may be influenced by the dynamics present in the relationship and the context in which it occurs.
Nevertheless, I regard it as significant that it was the applicant who initiated contact with [Prisoner C], by which time [Prisoner C’s] [terrorism related offending] was made public. As submitted by the respondent, the applicant cannot have known much about [Prisoner C] as a person apart from [Prisoner C’s][terrorism-related offending], at the time he opened his correspondence with [Prisoner C].
It is also significant that aspects of their correspondence reveal [Prisoner C] encouraging the applicant to hold fast to an ideology in which the Kuffar or non-believers are the enemy and the pursuit of martyrdom is idealised. Despite the expression of these ideas in [Prisoner C]’s correspondence and despite the applicant’s awareness that correspondence between himself and [Prisoner C] could be inspected by Corrections, he maintained their [correspondence][*Redacted].
When the correspondence with [Prisoner C], [*Redacted], [is] viewed alongside comments made by the applicant on social media contained in the Summary of Prosecution Opening, the inference is available that the applicant is prepared to condone violence or martyrdom if required in the pursuit of jihad and defeat of the unbelievers or oppressors.
I regard the risk of failing to surrender himself into custody in accordance with his conditions of bail as being linked to the risk that the applicant would commit an offence of such gravity that his appearance for trial in the present matter would be of secondary importance to him.
Whilst the respondent also relies on the risk that the applicant would interfere with witnesses or otherwise obstruct the course of justice, I am not persuaded that the risk of interfering with witnesses is especially significant in this case.
The above-mentioned matters support the conclusion that there is a risk that, if released on bail, the applicant would commit an offence while on bail; and endanger the safety or welfare of any person; and fail to answer bail. I am further satisfied that the risk is an unacceptable risk.
In coming to my conclusion, I have taken into consideration all of the surrounding circumstances as required by s 3AAA(1). I address the relevant circumstances below.
The applicant’s criminal history, his arrest, and his conduct in custody
The applicant has no prior convictions, surrendered to the Australian authorities, and has been a quiet and compliant prisoner. However, I regard the weight to be given to those matters as limited.
The strength of the Crown case, and the likely sentence to be imposed should the accused be found guilty
I accept the Crown case is ‘contestable’, but it is not a weak case of the kind that would weigh heavily in favour of granting bail.[110]
[110]See El Nasher v DPP [2020] VSCA 144, [52].
It is likely that a sentence on a finding of guilt on both charges particularly in relation to charge 1, would exceed the period spent on remand, although I accept this may not be true if the applicant were acquitted of charge 1.
Delay and the current conditions in custody due to COVID-19
I have considered the significant delay in this case above, and I accept that due to COVID-19 the applicant’s time in custody may be somewhat more difficult,[111] with potentially greater isolation and reduced access to education or rehabilitation opportunities.[112]
[111]Re Diab [2020] VSC 196, [38].
[112]Ibid.
The applicant’s personal circumstances, associations, home environment and background
I note that despite the reliance on the supportiveness of family members in the application for bail, no evidence was called on the applicant’s behalf.
It is not known to the court whether the applicant’s father and stepmother are aware of the extent of his correspondence with [*Redacted] [Prisoner C].
Counsel for the applicant said that his mother is a practising and conservative Sunni Muslim and frequently visited and now Skypes with him in prison. The correspondence before the Court shows that the applicant encouraged [Prisoner C] to correspond with [some of his family members]. The circumstances of any consequent contact are not known to the Court.
The nature and seriousness of the alleged offending and the applicant’s association with [Prisoner C]
The combined effect of the gravity of the charges on the indictment, the conduct alleged in the case against the applicant, and the evidence of the applicant’s state of mind as shown by his correspondence with [Prisoner C], leads to the conclusion that the risk that he would commit an offence, or endanger the safety or welfare of any person, or fail to surrender himself in answer to bail, is unacceptable.
The accused’s knowingly having an association with a person ([Prisoner C]) who has expressed support for a terrorist act and/or organisation
I accept the respondent’s submission that the evidence in the present application enlivens s 3AAA(m) and (n). Section 3AAA (m) is enlivened due to the nature of the charges the applicant faces, together with the evidence contained in the SPO such as that referred to in [15] of the Prosecution Bail Submissions.
Section 3AAA(n) is enlivened by reason of the applicant’s ongoing association with [Prisoner C] – someone he knows to have expressed support for a terrorist act (through [Prisoner C’s] offending), and for a terrorist organisation [*Redacted], as referred to in DLSC Forde’s first affidavit.)
I am satisfied that I can take these matters into account, pursuant to s 3AAA(2), because it is apparent from the correspondence that the accused was aware of the general nature of [Prisoner C’s] offending, and of [Prisoner C’s] motivations and allegiances.
Even if I were wrong about the direct applicability of s 3AAA(m) and (n) to the consideration of unacceptable risk under s 4E of the Bail Act, the facts underlying those matters remain relevant to the consideration of bail. The consideration of risk involves close consideration of the serious nature of the offences alleged against the applicant and the extremist ideology that is said to have motivated him to go to Syria. I accept the respondent’s submission that the applicant’s ongoing communication with [Prisoner C] demonstrates the applicant’s adherence to that ideology.
I have considered whether imposing conditions of bail could appropriately reduce the level of risk in this case.[113] Given the nature of terrorist acts and the difficulty in predicting or preventing them, I accept the respondent’s argument that none of the conditions proposed by the applicant, or indeed any other conditions, would be sufficient to render the risk acceptable.
[113]As required under the Bail Act 1977 (Vic) s 4E(3)(b).
Conclusion
What is in issue is the presentation of risk viewed in the context of the longitudinal history of the applicant’s life since he left his wife and young family and made his way to Syria. The applicant’s attitudes and conduct whilst in Syria viewed alongside the more recent correspondence with [Prisoner C] suggest that he remains committed to the ideology that motivated him to leave Australia for Syria.
Recent events in Victoria, and elsewhere show that acts of terrorism are difficult to predict or prevent, and can have devastating consequences. I accept the respondent’s submission that the unacceptable risk test requires an assessment of both the consequences of a risk eventuating and the probability that this will occur. This was the approach adopted in AB v DPP. In considering an application for bail in respect of terrorism charges concerning a youth who had been diagnosed with a mental and behavioural disorder, Beech-Jones J said:
One aspect of the application of a test of unacceptable risk is an assessment of the consequences of the relevant risk materialising together with the likelihood of it materialising. The assessment of whether the risk is unacceptable is also informed by the deleterious effect of refusing bail on the accused person, which in this case is significant.[114]
[114][2016] NSWSC 1042, [55].
His Honour said in that case: ‘the acute difficulty for AB on this application is that, while the likelihood of him giving effect to his threats is relatively low, the consequences if he did so are likely to be horrific.’[115]
[115]Ibid.
I am satisfied that although the likelihood of the applicant carrying out a terrorist act whilst on bail may not be great, the potentially horrific consequences of such a risk eventuating render the existing risk unacceptable.
This construction is consistent with the requirement placed on me under ss 1B(1) and (2) the Bail Act, that I consider the importance of ‘maximising the safety of the community and persons affected by crime to the greatest extent possible.’ In my analysis, I have also taken account of the presumption of innocence and the right to liberty, particularly given the length of time the applicant has spent on remand.[116]
[116]Bail Act 1977 (Vic) s 1B(1)(b).
I have given anxious consideration to the arguments put forward by counsel for the applicant, in particular the aspect of delay relied on by the applicant, but ultimately I am persuaded that there is an unacceptable risk that the applicant would commit an offence whilst on bail; endanger the safety or welfare of any person; or fail to surrender himself into custody for his trial.
For the foregoing reasons, bail is refused.
[50][*Redacted].
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