Re Kaya & Granata
[2018] VSC 420
•3 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0184
IN THE MATTER of an Application for Bail by Murat Kaya
Between:
| MURAT KAYA | Applicant |
| -and- | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
S CR 2018 0188
IN THE MATTER of an Application for Bail by Antonino Alfio Granata
Between:
| ANTONINO ALFIO GRANATA | Applicant |
| -and- | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24, 25 & 30 July 2018 | |
DATE OF JUDGMENT: | 3 August 2018 | |
CASE MAY BE CITED AS: | Re Kaya & Granata | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 420 | |
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CRIMINAL LAW — Applications for bail — Applicants two of six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country — Whether exceptional circumstances justifying bail — Whether each applicant, if bailed, presents an unacceptable risk of failing to appear at trial, committing an offence and/or endangering the safety or welfare of another — Delay of at least two years and seven months, and up to two years and eleven months, between arrest and trial to verdict — Delay of at least two years and ten months, and up to three years, between arrest and sentence if convicted – Whether delay might exceed sentence likely to be imposed if convicted — Each applicant has family support, a wife and young child to support, a stable residence, ties to jurisdiction, a substantial surety and no relevant prior convictions – One applicant has employment to go to if bailed — In each case, exceptional circumstances established but unacceptable risk of committing offence and thereby endangering the safety or welfare of public also established — Low to moderate risk of a catastrophic incident, if bailed, is sufficient to amount to an unacceptable risk — Bail refused — Criminal Code (Cth), ss 11.2A & 119.4; Crimes Act 1914 (Cth), ss 3 & 15AA; Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4A, 4B & 4E.[1]
[1]This judgment was the subject of an interim proceeding suppression order made pursuant to s 20 of the Open Courts Act 2013 (Vic) on 6 August 2018. The order was made for the purpose of ensuring that any potential or empanelled jurors on the proposed joint trial of Murat Kaya and Antonino Alfio Granata did not, before verdict, learn of information that may ultimately not have been adduced at trial, or that may ultimately have been ruled as inadmissible at trial. The order was expressed to have effect until the conclusion of the proposed trials of Murat Kaya and Antonino Alfio Granata, whether by jury verdict or by discontinuance of the prosecution. Both applicants ultimately pleaded guilty and, on 22 February 2019, were sentenced in this Court. (See The Queen v Cerantoinio & Ors [2019] VSC 284.) The suppression order lapsed at that point. But for my own administrative oversight, this judgment (sans this footnote and footnote 15) would have been published back then, not today (14 May 2021).
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Appearances: | Counsel | Solicitors |
| For the Applicant Murat Kaya | Mr D. Dann Q.C. with Mr M. Goldberg | James Dowsley & Associates |
| For the Applicant Antonino Alfio Granata | Mr C. Farrington with Mr C. Terry | Patrick W. Dwyer Barristers & Solicitors |
| For the Respondent | Mr R. Maidment Q.C. with Ms R. Sharp and Ms A. Peek | Solicitor to the Commonwealth Director of Public Prosecutions |
HIS HONOUR:
Overview
On 10 May 2016, Robert Cerantonio, Paul Dacre, Antonino Granata, Shayden Thorne and Kadir Kaya, all of whom hail from Melbourne, were arrested by police near Laura, a hamlet in the far north of Queensland. The five men had travelled there from Victoria in a Hyundai SUV towing a seven-metre Haines Hunter boat. Police had had the men under surveillance for a considerable period and suspected that they had been preparing to head overseas in the boat to a foreign country for the purpose of engaging in a hostile activity in Syria or Northern Iraq. Each man was later charged with an offence of that nature against s 119.4(1) of the Criminal Code Act 1995 (Cth) (“the Code”). A sixth man, Murat Kaya (the brother of Kadir Kaya), who remained in Victoria but was arrested on 27 May 2016, was charged with the same offence.
All six have been committed for trial in this Court. They are now indicted jointly by the Commonwealth Director of Public Prosecutions (“the Director”) with an offence against s 119.4(1) committed by way of joint commission pursuant to s 11.2A of the Code. All have remained in custody continuously since their arrest.
Two of the accused, Mr Granata and Murat Kaya, now apply to this Court for bail.
At present, all of the parties are engaged in pre-trial argument in this Court, which is not expected to conclude for some weeks, and perhaps not before late-September. The trial proper has not been listed yet, but it is hoped that it will commence no later than early-October and conclude by December this year. If there were guilty verdicts, it is unlikely that the accused would be sentenced until March next year. Equally, if the trial proper is not reached this year, which is a distinct possibility at the current rate of progress, it will not commence until February 2019, in which case it would not conclude with verdicts until April and, if guilty verdicts were returned, the accused would not be sentenced before late-May.
Given the nature of the charge, this Court “must not grant bail … unless … satisfied that exceptional circumstances exist to justify bail”.[2] Each applicant submits, and the Director disputes, that exceptional circumstances exist by reason of a combination of matters but principally because of the delay between arrest and trial or sentence and the risk that, if convicted and sentenced, the non-parole period to be imposed might be exceeded by the time spent in custody before the imposition of sentence.
[2]See ss 3(1) (and, in particular, definition (b) of “terrorism offence”) and 15AA of the Crimes Act 1914 (Cth).
Even if there are exceptional circumstances, bail still must be refused if the Court is satisfied that there is an unacceptable risk that, if bailed, the applicant in question will commit an offence, endanger the safety or welfare of another person and/or fail to appear at trial.[3] The Director’s alternative submission, which each applicant opposes, is that an unacceptable risk of one or more of those kinds has been established with respect to each applicant.
[3]See ss 3AAA, 4, 4A(4), 4B and 4E of the Bail Act 1977 (Vic), which apply by virtue of s 68 of the Judiciary Act 1903 (Cth) and s 109 of the Constitution (Cth).
Having considered the evidence and counsel’s submissions, I am satisfied, on each application, that exceptional circumstances exist to justify bail. However, also in each case, while I am not satisfied that there is an unacceptable risk that the applicant will fail to appear, I am satisfied (albeit only just) that there is an unacceptable risk that he will commit a grave offence and thereby endanger the safety or welfare of another or others. Accordingly, I must refuse each application. My reasons follow.
Summary of alleged offending
Overview
I turn first to a summary of the alleged offending. This summary is largely an amalgam of information taken from the affidavits filed on the applications on behalf of the Director. I note that some of the evidence referred to in these reasons may well be under challenge either as to its admissibility in the trial proper or as to whether the inferences the Director urges from it are open in any event. With that in mind, the Director alleges the following.
The six accused are Australian citizens. On the Director’s case, they agreed to engage, and did engage, in conduct – including buying a boat and then towing it to Queensland – preparatory to an intended covert departure from Australia, by use of that boat, for a foreign country (such as Indonesia), with the ultimate destination being entry to the Philippines, with the intention of engaging in a hostile activity in that country. The intended hostile activity alleged was to engage in conduct with the intention of achieving the objective of the overthrow of the government of the southern Philippines. The particular intended conduct alleged was the encouragement of acts of, and/or participation in acts with, persons of the Islamic faith who are engaged in, or willing to carry out or facilitate, acts directed at achieving the overthrow by force or violence of the government of the southern Philippines.
It is alleged that the motivation for the intended hostile activity in the Philippines stems from a belief in the cause of violent jihad and an associated desire ultimately to bring about and live under Islamic rule in that country.
As I said earlier, Mr Granata was one of the five who travelled to Queensland with the boat in tow. Mr Kaya, on the other hand, did not go to Queensland. Instead, he was involved in preparations for overseas travel, including an earlier attempt to buy a boat in Darwin and then the ultimate purchase of the boat that was taken to Queensland by the other accused.
Background
The background to these alleged events is as follows.
In early-2013, the leader of the Islamic State formally announced the creation of the Islamic State of Iraq and al-Sham (“ISIS”). On 29 June 2014, after significant territorial gains in Iraq and Syria, ISIS adopted its final name the Islamic State and declared a caliphate. At this time, the Islamic State also called upon all Muslims to declare their allegiance to the new caliphate.
On 22 September 2014, an Islamic fatwa was issued by the official spokesperson of the Islamic State. The fatwa ordered followers to make Hijrah by travelling to Syria to fight for the Islamic State; and, failing that, to target, amongst others, the Australian Government and/or the wider Australian public because of Australia’s involvement in the conflict in Syria and Iraq. Among other things, the fatwa included this charming rant:
If you can kill a disbelieving American or European – especially the spiteful and filthy French or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill them in any manner or way however it may be. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him or poison him.
The fatwa was widely reported and is readily accessible to the public.
The growing strength and presence of the Islamic State in Iraq and Syria since early-2014 raised the potential that Islamist militant groups in the Philippines may more actively pursue transnational Islamist aims. A number of factions of the Philippines-based terrorist organisation known as the Abu Sayyaf Group (“ASG”), including that of the group’s main operational commander Isnilon Hapilon, as well as factions of the Bangsamoro Islamic Freedom Fighters (“BIFF”), pledged allegiance to the Islamic State in July and August 2014. Mr Hapilon and other the Islamic State supporters in the Philippines reaffirmed the pledge on 4 January 2016. The Islamic State officially recognised this pledge and constituted these Filipino forces as part of the Islamic State group. On 22 June 2016, the Islamic State announced that Mr Hapilon had been selected as the leader of the group’s military forces in the Philippines.
Robert Cerantonio
Mr Cerantonio is a Melbourne-based self-styled Islamic cleric and historian who espouses extremist Islamic rhetoric. Since 2013, he has been identified during a number of counter-terrorism-related investigations both in Australia and offshore.
In June 2013, Mr Cerantonio travelled to the Philippines, where he met with associates of groups who engage in acts of politically motivated violence. He also publicly espoused support for the Islamic State, and for the formation of an Islamic caliphate, including in the Middle East and the Philippines, and justified terrorist attacks against Western countries and the “Crusaders”.
On 4 July 2014, the Australian Minister for Foreign Affairs cancelled Mr Cerantonio’s Australian passport. On 11 July 2014, the Philippines National Police arrested Mr Cerantonio and took him into custody prior to his deportation to Australia. At the time of his arrest, Mr Cerantonio possessed various Islamic State material.
Murat Kaya
Murat Kaya was born in Australia on 14 February 1991, and is therefore aged 27. He and Pervin Cakici were married in 2013. Ms Cakici currently resides in Hillside with their four-year-old daughter and her family. Mr Kaya holds dual Australian and Turkish citizenship. His mother and father reside in Victoria. Prior to being arrested, Mr Kaya worked as a self-employed tiler and lived with his wife and child in Plumpton. He has tiling work to go to if bailed.
He has no prior convictions but has a subsequent appearance for possession of a knuckleduster, for which no conviction was recorded.
Mr Kaya is a close friend and associate of Mr Cerantonio, and a follower of his extremist religious ideology. On 21 August 2015, Mr Cerantonio described Murat Kaya as his “right-hand man here in Melbourne”.
On 10 February 2015, Murat Kaya attended Melbourne Airport with the intention of travelling to Turkey. He was subsequently denied travel and interviewed by investigators from the Joint Counter-Terrorism Team of the AFP (“the JCTT”). Examination revealed information inconsistent with his stated travel plans and indicating a likely intention to travel to Syria to participate in the civil conflict as a foreign fighter. As a result, on 25 February 2015, the Minister for Foreign Affairs cancelled Murat Kaya’s Australian passport.
Mr Granata
Mr Granata was born in Australia on 10 November 1990. He is 27 years old. He married Esma Demirok in 2013. They have a three-year-old daughter. Ms Demirok resides with her parents and sister in Cairnlea. Mr Granata has previously worked as a self-employed painter, but, from 30 May 2015 until his arrest, had been in receipt of the Newstart Allowance from Centrelink. Mr Granata’s father and mother separated in 2008. His father is in prison for unrelated matters.
Mr Granata has no prior convictions.
He too is a friend of Mr Cerantonio. On a number of occasions, Mr Granata has requested religious advice and rulings from Mr Cerantonio. Investigators believe that the two men hold similar beliefs regarding violent Salafist jihadism.
In 2014, the JCTT conducted “Operation Hohensalzburg”, an investigation into the actions of Hasan El Sabsabi. It was alleged that Mr El Sabsabi was financing a US foreign fighter by the name of Abdullah Karram and enabled him to travel from New York to engage in fighting in Syria with a listed terrorist organisation. During the course of this investigation, Mr Granata was identified as being a friend of both Mr El Sabsabi and Mr Karram. A number of conversations were intercepted indicating that Mr Granata possesses a religious ideology aligned with Islamic extremist groups and a desire to travel to the conflict zone.
Investigators believe that, during a message sent on Facebook on 25 January 2014, Mr Granata asked Mr Karram to pray for him to get the chance to die fighting in the cause of Islam.
On 13 June 2014, Mr Granata told Mr El Sabsabi that he went to a talk about the fall of the Iraqi city of Mosul to the Islamic State. It is alleged that, when describing the talk, it was apparent that Mr Granata was very happy about it and said it was the start of the Islamic rising and the caliphate. His use of language indicated that he wanted only to give loyalty to the believers of Islam and for the fighters of the Islamic State (“the Mujahedeen”) and no one else, and that he supported their actions in killing non-Muslims and driving them out of Mosul.
On 30 June 2014, Mr Granata sent an SMS to Mr El Sabsabi rejoicing at the Islamic State’s declaration of a caliphate.
On 22 July 2014, Mr Granata sought advice from Mr Karram on Facebook concerning Hijrah and the position of his wife.
On 19 March 2015, the Minister for Foreign Affairs refused to grant Mr Granata’s application for an Australian passport.
Investigators believe that Mr Granata’s arrest in Queensland prevented him from leaving the country to engage in violent jihad and dying in the cause of Islam.
On the other hand, Mr Farrington, who appears with Mr Terry for Mr Granata, points to other evidence of his client questioning aspects of extremist groups or extremist ideology. For example, on one occasion, he asked a chat group on Quranic jurisprudence whether it is permissible to go to the Islamic State but not engage in fighting and instead live there and serve the State otherwise than in battle.
On another occasion during a Facebook chat with Abedellah Karram Allahslave, Mr Granata questioned whether the caliphate is legitimate and which of the various groups should be supported. Mr Allahslave responded to the effect that “[the Islamic State] is not a real [caliphate]. Wake up. It’s causing fitna and bloodshed”. On a separate occasion, Mr Granata asked whether the caliphate declared by the Islamic State is false, to which Mr Allahslave responded in the affirmative. Mr Granata did not express a firm view either way.
On another occasion, Mr Granata rang Melbourne radio station 3AW and spoke to Neil Mitchell live on air. Mr Mitchell asked Mr Granata whether he was a supporter of ISIS. Mr Granata responded, “No, I can’t stand them. I don’t support any terrorist organisation ever, overseas or here.” For her part, the Director submits that this interview contains self-serving statements and lies.
Links with other accused
On 30 April 2015, investigators intercepted a conversation between Murat and Kadir Kaya, Mr Granata and an associate known as Deniz Hasan. Mr Hasan departed Australia on 18 June 2014 for Turkey, where investigators suspect he subsequently joined the Islamic State. The four men discussed “hot spots” in the vicinity of the Turkish/Syrian border, the likely difficulties in getting across the border and the best way of safely facilitating a female associate’s travel from Istanbul to the Syrian border region. Murat Kaya also indicated that he would organise her travel from Istanbul to Kayseri, then on to Hatay, near the Syrian border. Murat Kaya and Mr Hasan then discussed the latter’s recent military training with the Islamic State. Investigators allege that Murat Kaya was organising and facilitating the female’s transit to Syria in order to join the Islamic State.
On 7 June 2015, investigators intercepted a telephone conversation between the same four men. They discussed tensions with their group owing to differing allegiances to the Islamic State or other jihadi groups. Mr Hasan explained that “there are some things they do which I don’t agree with, but it doesn’t mean they are wrong”. He also said, “You’ll understand when you get here.” The other three told Mr Hasan that the only thing stopping them from moving forward was money.
On 17 July 2015, Murat and Kadir Kaya and Messrs Cerantonio, Granata and Thorne came to the attention of Australian law enforcement agencies as a result of attending a congregation at Footscray Park, on Ballarat Road, Footscray, of between 40 and 50 people. The group was dressed in Islamic clothing and holding two large the Islamic State flags.
On 14 August 2015, the JCTT commenced a new inquiry into Mr Cerantonio’s activities, which was eventually codenamed “Operation Middleham”. During the operation, Mr Cerantonio’s five co-accused were identified as being closely associated with him and as being suspected of making preparations to travel overseas and engage in hostile activities. Each of the six accused had had his passport cancelled or his passport application denied by the Department of Foreign Affairs (“DFAT”) on security grounds.
During the investigation, it became apparent that members of the group used a series of falsely subscribed telephone numbers in an attempt to avoid law enforcement monitoring and interception.
Preparations for Hijrah
On 13 December 2015, Murat Kaya was identified discussing the compilation of documents in support of loan applications with Mr Cerantonio and Mr Granata. Investigators allege these loans were for the group’s planned travel overseas by boat and subsequent participation in hostile activities.
The same day, the same three accused watched a video produced by the Islamic State in November 2015. During the video, Mr Cerantonio said, “Ninety-nine percent of your time is just going to be sitting around waiting. You wanna make sure at the time of battle you haven’t got a sore knee.”
On 23 December 2015, Murat Kaya contacted a truck hire firm in Queensland. The next day, he contacted another firm that specialises in transporting boats across Australia.
On 31 January 2016, Mr Granata conducted a series of online searches for a link to the website named “Jihadology”. One was an embedded link to an Islamic State propaganda video entitled ‘Kill them wherever you find them’. This video related to the November 2015 Paris terrorist attacks by the Islamic State, and depicted multiple beheadings and executions. Another was an embedded link to an Islamic State propaganda video also containing images of beheadings.
The trip to Darwin
On 6 January 2016, Murat Kaya contacted Tracy Geddes regarding the possible purchase of her 24-metre marine vessel, the MV Rushcutter, which had been advertised for sale in Darwin for $50,000. He told her that the vessel would be used to travel to Bali. On 11 January 2016, Murat Kaya paid Ms Geddes a deposit of $5,000 for the boat.
On 15 January 2016, while in the presence of Murat and Kadir Kaya, their father Haci Kaya, and Messrs Granata and Thorne, Mr Cerantonio sermonised about the Muslims of Cebu and Mindanao, in the Philippines.
On 10 February 2016, Murat Kaya and Mr Granata attended the Boating, Camping & Fishing (“BCF”) store in Braybrook, where Mr Kaya ordered various pieces of equipment to navigate a vessel on open waters, including waterway maps and charts of the Indian Ocean and the South China Sea.
On 13 February 2016, Murat Kaya attended the Anaconda Outdoor and Camping store in Taylors Lakes, where he bought a large backpack, valued at nearly $300. The same day, he also went to the DFO in Essendon Fields Shopping Centre and bought additional clothing.
On 19 February 2016, Murat Kaya and Mr Dacre headed to Darwin to inspect the MV Rushcutter. They had $45,000 in cash in their possession. While on that trip, Mr Kaya told Mr Dacre, “I never wanted to make Hijrah so bad in my life, bro. After that, I was like, ‘I do not want to die in this piece of shit country, bro.’ Straight out.”
On 20 February 2016, the two men arranged with Mr Cerantonio to meet them in Ballarat to collect another $5,000 they had left behind. They spoke of a need to use the “code” (covert) phones, about which (they said) “Musa” (Mr Cerantonio) would not be happy.
On 21 February 2016, Murat Kaya and Mr Dacre are recorded in conversations arguably consistent with an intention to make Hijrah in the Philippines.
On 22 February 2016, the two men arrived in Darwin, where they subsequently met with an undercover operative (“UCO”) codenamed “Felix”, who had been tasked by investigators to facilitate the sale of the MV Rushcutter. The three of them discussed the technical capabilities of the vessel and repairs that were required to make it seaworthy for extended travel. Murat Kaya said that he was seeking to purchase the boat in order to sail it to Bali, via Cairns, for both a family holiday and as an eventual business venture as a party boat. Mr Kaya and Mr Dacre also made enquiries with local businesses about the purchase of a generator, extra fuel bladders and other equipment.
On 23 February 2016, investigators intercepted a coded conversation involving Mr Dacre’s wife and Murat Kaya’s sister and his wife, the contents of which suggested that the respective spouses and families of the accused were aware of their travel plans, and that they intended on joining them in Darwin.
On 24 February 2016, Murat Kaya and Mr Dacre departed Darwin, for Melbourne. The sale of the MV Rushcutter did not proceed as the men were not satisfied with the condition of the vessel.
On 25 February 2016, Murat Kaya spoke in code on a phone to Mr Cerantonio about meeting at “the usual place” upon their return. Later that day, all six accused met at the home of the parents of the Kaya brothers. They also searched for a listening device in the vehicle that Mr Dacre and Murat Kaya had been driving. Four days later, Murat Kaya told his wife that he had found such a device.
Purchase of Haines Hunter boat and Hyundai SUV
On 5 May 2016, Murat Kaya and Mr Cerantonio attended a residential address, in Bendigo, in relation to the purchase of a seven-metre Haines Hunter boat. They told the owner that they were enquiring on behalf of an associate named “Phil”. They then discussed the condition of the vessel, the size of the fuel tank, fuel usage, and the speed and size of the motor. They settled on a price of $13,000 and paid a cash deposit of $2,000.
The same day, Mr Granata went to Glenroy and bought a red 2005 Hyundai Terracan SUV, that was later driven to the far north of Queensland. He paid between $3,400 and $3,600 in cash.
The next day, Mr Granata attended Fleximake Pty Ltd in Pickett Street, Dandenong, where he paid $450 cash for two 75-litre bladders and one 50-litre bladder. He also provided false details, namely the name “Tony Gandalusi” with a false email address.
Arrests
On 10 May 2016, five of the co-accused, including Mr Granata, were arrested in the far north of Queensland.
On 27 May 2016, Murat Kaya was arrested in Melbourne.
All six accused have remained in custody since arrest.
Bail history
I turn now to the previous applications for bail in these matters.
On 1 September 2016, Mr Dacre made an unsuccessful application for bail in the Magistrates’ Court.
On 23 September 2016, Murat Kaya made an unsuccessful application for bail in the Magistrates’ Court.
On 30 November 2016, a further application for bail by Murat Kaya to this Court was refused by Elliott J.[4]
[4] See Kaya [2016] VSC 712.
Committal proceedings in relation to all accused were held between 15 and 19 May 2017.
On 9 June 2017, Murat Kaya’s further application for bail to the Magistrates’ Court was refused.
Mr Granata has not previously applied for bail.
The applicable law
The parties in each application are agreed, and I accept, that the applicable law on this application is as follows.
First, pursuant to s 15AA(1) of the Crimes Act 1914 (Cth), this Court must not grant bail to a person charged with the offence alleged in this case unless satisfied that exceptional circumstances exist to justify bail.[5] The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.[6]
[5]Section 15AA(2)(a) of the Crimes Act 1914 (Cth), read with ss 15AA(1) and (3), (4) and (5), as well as definition (b) of “terrorism offence” in s 3(1), means that, while the offence charged in this case is not a terrorism offence within the meaning of Part 5.4 of the Criminal Code Act 1995 (Cth) (“the Code”), nevertheless, because the offence charged is an offence contrary to Part 5.5 of the Code (and is also an ancillary offence, given the reliance on s 11.2A of the Code as well), the test set out in s 15AA(1) is applicable.
[6] See Hammoud v DPP [2006] VSC 516 at [2] (Bongiorno J).
Secondly, s 68 of the Judiciary Act 1903 (Cth) and s 109 of the Constitution operate in the present case so as to pick up those provisions of the Bail Act 1977 (Vic) (“the Bail Act”) to the extent that they are not inconsistent with s 15AA of the Crimes Act (Cth). That leads to the following additional propositions.
Thirdly, the parties accept that “the surrounding circumstances” referred to in s 3AAA of the Bail Act, and which must be taken into account when determining whether exceptional circumstances exist under that Act,[7] are among the same matters that inform the question whether exceptional circumstances exist under s 15AA of the Crimes Act.
[7] See ss 4A(1) and (3) of the Bail Act 1977 (Vic).
Fourthly, the parties accept that, if satisfied that exceptional circumstances exist to justify bail under s 15AA of the Crimes Act, the Court must then apply the unacceptable risk test in the Bail Act, just as would be the approach if exceptional circumstances had been found in a case attracting both the exceptional circumstances test and the unacceptable risk test under the Bail Act.[8] The onus of establishing an unacceptable risk of the kinds alleged here rests with the prosecution.[9]
Exceptional circumstances
[8]See ss 4A(4), 4B and 4E of the Bail Act 1977 (Vic). The same approach was taken by Elliott J in Mr Kaya’s previous application to this Court in Kaya [2016] VSC 712 at [1], and by Coghlan J in Kent v R [2008] VSC 431 at [8], when considering the interaction of s 15AA of the Crimes Act 1914 (Cth) and the relevant provisions of the previous version of the Bail Act. See also Beech-Jones J in AB v DPP (Cth) [2016] NSWSC 1042 at [4], where his Honour considered the interaction of s 15AA and the relevant provisions of the Bail Act 2013 (NSW). (See also AB v R [2016] NSWCCA 191 at [13].)
[9]See s 4E(2) of the Bail Act 1977 (Vic).
Introduction
I turn now to the question whether exceptional circumstances exist to justify bail.
As a preliminary matter, I note that, while the threshold of “exceptional circumstances” is very high, it should not be set so high that it is impossible for a person charged with an offence that attracts that test ever to be granted bail.[10] Indeed, it is not impossible. Many a person has met that threshold — whether under State or Commonwealth law — and been granted bail in consequence.
[10]See, for example, Lasry J’s survey of authority on “exceptional circumstances” in Obian v DPP [2016] VSC 607 at [25]-[34].
Section 3AAA of the Bail Act lists a number of surrounding circumstances which, as I have said, the parties accept are the same considerations as are applicable to an assessment of whether exceptional circumstances exist for the purposes of s 15AA of the Crimes Act.
Unless otherwise indicated, I shall treat the following factors as more or less equally applicable to each applicant.
Delay
The most important of those factors in this case is delay — or the length of time each applicant is likely to spend in custody if bail is refused.[11] The delay, in absolute terms, is very substantial. The period between arrest (May 2016) and expected verdicts (December 2018 or April 2019) ranges from two years and seven months to two years and eleven months. If allowance is made for plea and sentence, those periods blow out to two years and ten months (March 2019) to three years (May 2019).
[11]See also s 3AAA(k) of the Bail Act 1977 (Vic).
Part of the delay was occasioned by an interlocutory application taken by all six of the accused to the Court of Appeal. Following a ruling delivered on 28 February 2018,[12] the accused sought, and were granted, certification for an application for leave to appeal to the Court of Appeal against that interlocutory decision. The Court of Appeal heard the accused’s application on 27 April 2018 and delivered judgment rejecting that application (by a majority) on 7 June 2018.[13] Following a mention on 13 June 2018, pre-trial argument did not resume until 16 July 2018. Thus, at least three months, and perhaps as much as four-and-a-half months, of the delay has been occasioned by the accused’s decision to take the interlocutory application. However, I do not think — and it was not suggested by the Director — that that fact should diminish the applicants’ argument that delay is a factor going to exceptional circumstances. As it happened, the point taken on the interlocutory application was important and conceded by the Director to be one befitting certification, a concession with which the Court of Appeal agreed.[14]
[12]See The Queen v Cerantonio & Ors (Ruling 15) [2018] VSC 77.
[13] See Jarratt (a pseudonym) & Ors v The Queen [2018] VSCA 150.
[14]Jarratt (a pseudonym) & Ors v The Queen [2018] VSCA 150 at [10] (Maxwell ACJ, with whom Kyrou JA agreed). (Since Priest JA would have granted the application, allowed the appeal and set aside the interlocutory decision, it is implicit that he too considered certification was appropriate.)
In my view, it is in general unsatisfactory that an accused person should have to wait up to three years in custody pending trial, conviction and sentencing. That said, while such delay alone might be regarded as an exceptional circumstance in some cases, I do not say that that is so here.[15] Instead, it is only when this very long delay is considered against the background of other matters that, in combination, the delay and those matters become exceptional.
Nature/seriousness of alleged offending
[15] I think I would take a different view today (see, for example, Re Raffoul [2021] VSC 48 at [67]-[93]).
The next of those factors concerns the relative gravity of the alleged offence.
In this case, the offence alleged against each applicant is potentially very serious. It involves engaging in behaviour, by agreement, preparatory to a foreign incursion offence. The alleged hostile activity ultimately intended in this case involved the overthrow of the government of the southern Philippines by force or violence. The offence carries a maximum penalty of imprisonment for life, which is a measure of how seriously the Commonwealth Parliament views at least the worst examples of the offence.[16]
[16] See also s 3AAA(a) of the Bail Act 1977 (Vic).
On the other hand, as was conceded by Mr Maidment QC, who appeared with Ms Sharp and Ms Peek for the Director, the particular offence alleged here is “a comparatively low level example”, albeit “not at the bottom end of the scale”.
There are at least three reasons for that view. First, in so far as the particular objective of the intended hostile activity can be a measure of gravity, while the objective of overthrowing a government by force or violence is necessarily a serious wrong, there are arguably far more serious objectives within the offence that have not been alleged, such as causing the death of others, including a head of state.[17]
[17]See paragraph (d) of the definition of “engage in a hostile activity” in s 117.1(1) of the Criminal Code (Cth).
Secondly, the Director concedes that the accused’s intended conduct in the Philippines had not been determined and may have been confined to the encouragement of others who were simply willing to be involved in the overthrow of the government by force or violence. In turn, such encouragement may have involved, for example, merely providing sustenance to such persons. On the other hand, the Director submits that those who are motivated enough to head overseas with the intention of engaging in conduct the ultimate intended objective of which is to overthrow the government are likely to be intending to do something meaningful in pursuit of that objective.
Finally, the acts of preparation engaged in here in Australia were very remote from participation in any insurgency and even further removed from achieving the objective alleged. While the offence of course can still be made out despite such extreme remoteness, that the accused were nowhere near participating in anything meaningful must have some impact on the gravity of the offence. In Mr Granata’s case, he got as far as travelling to Queensland with the boat in tow. While it must be conceded that many so-called boat people have made it to these shores in rather flimsy vessels, I should have thought that Mr Granata and his pals had little chance of getting very far beyond the breakers in what might be described as a seven-metre tinnie. Mr Kaya, of course, was even further removed again, given that he stayed in Melbourne. That said, it is arguable that his role in travelling to Darwin to inspect a boat, and his role in actually purchasing the boat that was taken to Queensland, were important acts of participation in acts allegedly preparatory to the intended departure from Australia by others.
Support for terrorist organisations
On the other hand, a factor telling against exceptional circumstances is this. While Mr Maidment conceded that there was not, strictly speaking, evidence that either applicant “has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation”, which is a factor mentioned in s 3AAA(m) of the Bail Act, there is evidence that the applicants were supportive of, or at least sympathetic to, such organisations and their actions, albeit expressed privately to others of a like mind. As will be seen, this factor is also relevant to the question whether there is an unacceptable risk of the kinds alleged.
Strength of prosecution case
Another factor to be weighed in assessing whether there are exceptional circumstances is the strength, or otherwise, of the prosecution case.[18] Mr Dann QC, who appeared with Mr Goldberg for Mr Kaya, did not submit that the prosecution case was weak, but nor did he concede that it was strong. I understood Mr Farrington’s references to the evidence that Mr Granata questioned aspects of extremist thought and his express disavowal of ISIS on the radio as effectively making a similar submission.
[18] See also s 3AAA(b) of the Bail Act 1977 (Vic).
At this stage of proceedings, I think it is difficult to evaluate the strength or otherwise of the prosecution case, particularly given that the admissibility of many items of evidence is still to be determined. That said, while I should have thought that there is a relatively strong case that five of the accused were heading to the Philippines, and that Mr Kaya was aware of and a party (albeit an absent one) to that venture, the more difficult issue will be what the accused agreed and intended would occur once they got there. There seem to be some significant challenges of proof in respect of that aspect of the prosecution case, but I am not prepared to conclude that it is either so weak as to amount to exceptional circumstances or so strong as to deny such a finding based on other factors.
Likely sentence if convicted
This brings me to another relevant factor, which is the likely sentence to be imposed should the accused be found guilty of the offence charged.[19]
[19]See also s 3AAA(l) of the Bail Act 1977 (Vic).
Mr Dann and Mr Farrington both submitted that there is a risk that, if not bailed now, their clients will end up serving more time in custody before sentence is imposed than the duration of the respective non-parole periods likely to be imposed upon them.[20] In particular, it was submitted that a sentence in the order of four years’ imprisonment with a non-parole period of three years might be imposed. They also submitted that such a conclusion was open given the lower level of seriousness involved in the offence alleged and their clients’ respective roles in the alleged offending, as well as other factors such as their clients’ personal circumstances[21] (which include family support, a stable residence and a reasonable work history) and the absence of prior convictions.[22]
[20]Pursuant to ss 3 and 19AG of the Crimes Act 1914 (Cth), the non-parole period must not be less than three-quarters the length of the head sentence for this offence (because it is “a terrorism offence”).
[21]See also s 3AAA(g) of the Bail Act 1977 (Vic).
[22]See also s 3AAA(c) of the Bail Act 1977 (Vic).
Mr Maidment submitted that, even allowing for those factors and his concession that the particular offence alleged here is “a comparatively low level example” of the offence, nevertheless, the seriousness of the offence means that a sentence “significantly higher” than the sentence suggested by defence counsel would likely be imposed.
In order to give some guidance on the sentencing range for offences of this type, counsel referred me to some sentences imposed for various foreign incursion offences.[23] While I have had regard to those sentences, as counsel rightly conceded, they were imposed for different offences and under the previous regime of maximum penalties, which, in some cases, were much lower than the new maximum of life imprisonment, all of which limits their utility as comparators.
[23]See R v Biber [2018] NSWSC 535 (I note, however, that Mr Maidment QC advised that this sentence is subject to an appeal by the Director); R v El Sabsabi [2016] VSC 740; DPP (Cth) v El Sabsabi [2017] VSCA 160; R v Alqudsi [2016] NSWSC 1227.
It is very difficult at this stage of proceedings to estimate the order of sentence likely to be imposed if there were a conviction. That said, and doing the best I can without the certainty of all factors in mitigation and aggravation that might be found following a trial and a plea in mitigation, I think there is enough information before me to conclude that it is at least possible that a sentence and non-parole period of the order suggested by defence counsel might be imposed on both applicants if convicted following a trial. However, I think there is a much better chance that the sentences would be longer. I doubt that they would be any shorter, but I could not rule out the bare possibility of the imposition of non-parole periods marginally shorter than the periods of pre-sentence custody likely to be served in this case.
In my view, these possibilities do impact on whether exceptional circumstances exist. Generally speaking, it would be very unsatisfactory if, by refusing bail, the Court would be committing a person to custody for a period that is likely to exceed the non-parole period to be imposed on conviction.[24] While the fact that this eventuality is possible contributes to my view that, in combination, there are exceptional circumstances in this case, that it is only a bare possibility – and the least likely among the possibilities I considered – denies this factor rising to an exceptional circumstance by itself.
Sureties
[24]See, for example, Gray v DPP [2008] VSC 4 at [12] (Bongiorno J); Re Vickers [2009] VSC 202 at [10] (Cavanough J).
Each applicant has offered a substantial surety. In Mr Granata’s case, his grandmother gave sworn viva voce evidence that she is prepared to be a surety and to put up her home, which is valued at about $750,000 and the title to which is unencumbered. I accept her evidence, including that she understands that her home would be at risk if her grandson failed to appear at trial. She is confident that he would do the right thing, if he were granted bail.
In Mr Kaya’s case, his parents-in-law are also prepared to put up their home, which is valued at about $500,000 and the title to which is also unencumbered. Mr Maidment accepted the same sorts of things as I found about Mr Granata’s grandmother were applicable to Mr Kaya’s parents-in-law and thereby relieved them of the need to give evidence. I am prepared to act on Mr Maidment’s very fair concession.
In my view, that these family members are prepared to provide substantial sureties to the applicants adds to the argument that exceptional circumstances have been shown in each case.
Conclusion on exceptional circumstances
Thus, it is a combination of several factors that causes me to conclude that exceptional circumstances have been established in each case. First and foremost among those factors is the very long delay between arrest and possible verdict or sentence. The additional supporting factors are the “comparatively low level example” of the alleged offending; the absence of prior convictions; the risk, albeit small, that, if not bailed, the applicants will spend a period of time in custody which is longer than the non-parole period to be imposed, if convicted; and the provision of a substantial surety. In my view, factors pointing in the other direction – such as the private expression of support for terrorists – cannot deny that the delay of up to three years, when set against these other considerations, amounts to exceptional circumstances.
Unacceptable risk
Overview
As will be seen, despite that conclusion, my concern about the applicants’ apparent support for terrorist actions and, at least in Mr Kaya’s case, some behaviour since his arrest, particularly when considered against the background of the nature of the offence alleged and the evidence of their involvement in that alleged offence, are among the reasons why I am satisfied that there is an unacceptable risk that, if bailed, they will commit offences and thereby endanger the safety or welfare of others. More of that shortly.
Risk of flight/failing to appear
Let me deal first, instead, with the question whether there is an unacceptable risk that, if bailed, the applicants will fail to appear at trial.
The Director points to the evidence that Mr Granata was indeed prepared to undertake Hijrah in committing the offence alleged. The submission is that, given the evident strength of his commitment to a belief in the need to follow the command that Muslims should undertake Hijrah, coupled with his preparedness to put to water in a seven-metre boat off the coast of Queensland in order to follow that command, leaving behind his wife and child and wider family, there is indeed an unacceptable risk that he will attempt to finish what he started by fleeing the jurisdiction. There is also a risk that he would be motivated to flee to avoid conviction and the substantial prison sentence that would follow.
As for Mr Kaya, he too has shown commitment to Hijrah, in at least three ways. First, he has shown interest in the subject in the recorded conversations. It will be remembered that, while on the Darwin trip, Mr Kaya told Mr Dacre, “I never wanted to make Hijrah so bad in my life, bro. After that, I was like, ‘I do not want to die in this piece of shit country’.” Secondly, he sought to leave the country previously to go to Syria, but was stopped. Thirdly, he assisted his co-accused to attempt to leave the country surreptitiously by driving to Darwin to find a boat and then by being involved in the purchase of the boat that was ultimately towed to Queensland. While he was not part of the trip, there is still an unacceptable risk that he will seek to flee either for Hijrah or to avoid prison. In addition, Mr Kaya’s father had sold up and was contemplating leaving the country, ostensibly to go to Turkey for six months, at about the same time as the accused were attempting to leave. He also provided $50,000 to his sons a few days before Murat’s trip to Darwin.
Defence counsel both submitted that, if bailed, it is unrealistic that their clients would risk being caught attempting to skip bail, given all they have gone through and given what would be at stake. They each have a wife and child and family here in Melbourne. Thus, they have ties to the jurisdiction. Further, if they fled, each would be putting at risk the property to be put up as substantial security by family.
While I accept that there is some risk that the applicants would fail to appear at trial if bailed, I am only nearly but ultimately not satisfied that that risk is unacceptable. On the Director’s case, Mr Granata has tried to make Hijrah but failed. It is hard to conceive that he would attempt to rush off overseas again, absent most of his friends allegedly involved in the last attempt, or that he would have the wherewithal to do so without them. Similarly, if the Director’s case in the broad be accepted, Mr Kaya tried but failed to achieve Hijrah on an earlier occasion, and then contented himself with helping his co-accused attempt to do so.
In addition, neither applicant has any history of failing to appear, although neither has been on bail previously. Further, the proposed bail conditions — which include a static residence, a requirement to report to police twice daily, a curfew, limitations on their telephone usage, a prohibition on internet usage and prohibitions on leaving the State, applying for travel documents and attending points of international departure – would severely limit the opportunities for attempted departure without detection. When the substantial sureties are added to the mix, there is a strong incentive for both applicants to stay and face trial.
It is for these reasons that, while it is a close-run thing, on balance, I am not satisfied that the risk of failing to appear at trial would be unacceptable.
Risk of offending/endangering others
As I have said, however, I take a different view about whether the risk of committing very serious offences, and thereby endangering others, is at an unacceptable level. Let me explain why.
There is evidence that Mr Granata and Mr Kaya have held violent jihadist beliefs for some time leading up to and including the offending period. Despite the evidence to the contrary to which Mr Farrington pointed, if I were to attempt an assessment of the comparative strength of the evidence of these beliefs, I would tend to the view that there appears to be more, and more cogent, evidence against Mr Granata than there is against Mr Kaya about the holding of such beliefs at or near the time of the alleged offending.
While Hijrah for the applicants has been thwarted and perhaps lost its immediate appeal, there is another alternative available to those who feel compelled to follow the putrid commands issued in fatwas. It will be remembered that the fatwa declared by the Islamic State in September 2014 also spoke of killing Australians:
in any manner or way however it may be [including smashing] his head with a rock, … slaughter[ing] him with a knife, … run[ning] him over with your car, … throw[ing] him down from a high place, or chok[ing] him or poison[ing] him.
Thus, the Director’s submission, at base, is this. Having failed to achieve Hijrah, and in the absence of any evidence that they have renounced the views that compelled them to be involved in the offence with which they are charged, there is an unacceptable risk that, if released on bail, the applicants would commit an offence by attempting to carry out an atrocity of the type they have been commanded to commit in the alternative instructions — namely, the slaughter of Australians.
It is also submitted by the Director that none of the conditions proposed by the applicants can meaningfully ameliorate the risk of such behaviour. Recent experience, both in Australia and overseas, shows that a person bent on destruction could simply drive a car down a busy thoroughfare and cause unspeakable carnage to numerous innocent civilians, as the fatwa commands. Curfews, twice-daily reporting to police and limitations of telephone and internet use are no shield against such behaviour.
The Director also refers to two further fatwas as evidence of a heightened risk of such behaviour. On 20 May 2016, the Islamic State’s spokesman acknowledged that the path of Hijrah to the Islamic State had become more difficult owing to law enforcement intervention. With that in mind, he made the following statement:
If the oppressors close the door of Hijrah in your face, open the door of jihad in their face and make [their] decision a regretful one. … Muslims in Europe and [the] US should attack on [the] home front.
As if that were not bad enough, the next hateful missive was even more specific, even more chilling, particularly for the people of Melbourne and Sydney. For, on 6 September 2016, an English-language media arm of the Islamic State released a digital magazine containing an article which included the following passage:
Therefore, O lions of the Ummah, and those living in Australia in particular, follow the path of these righteous souls for there is no other path. The Khilafah has called for you to mobilize from your dens to alleviate the pain afflicting the hearts of the Muslims by striking the kuffar in their homelands. It is only from the hikmah of Allah that he has scattered you around the earth and in the various lands of the Crusaders to see which of you are best in deeds. So here before you are the doors of jihad – unhinged, and in their lands! Light the ground beneath them aflame and scorch them with terror. Kill them on the streets of Brunswick, Broadmeadows, Bankstown, and Bondi. Kill them at the MCG, the SCG, the Opera House, and even in their backyards. Stab them, shoot them, poison them, and run them down with your vehicles. Kill them wherever you find them until the hollowness of their arrogance is filled with terror and they find themselves on their knees with their backs broken under the weight of regret for having waged a war against the believers, and by Allah’s will, and then through your sacrifices, this Ummah will be victorious.
Mr Dann and Mr Farrington both submitted, correctly, that there is no evidence that the applicants were aware of these later fatwas. While the applicants, if they have been listening, must be aware of those remarks now, I think that fairness dictates that I must – and do – put those two more recent fatwas aside in assessing whether there is an unacceptable risk of the kind alleged.
Counsel also submit, correctly, that, while there is no evidence of any post-arrest renunciation of the extremist beliefs alleged against the applicants, there is no onus on them to prove renunciation or to disprove any unacceptable risk of the kinds alleged. Rather, the onus is on the Director to show that there is a risk and that it is an unacceptable risk. Counsel also point to the fact that the allegation of adherence to violent jihadist beliefs is disputed and remind the Court of the importance of the presumption of innocence and the Director’s concession that the applicants have no prior convictions or any history of violent acts in this country.
While I accept that there is only rather thin circumstantial evidence of a risk that the applicants, if bailed, would feel compelled to follow the alternative command in the earlier fatwa and attempt an atrocity of the type considered, I am nevertheless satisfied, albeit only just on the balance of probabilities, that such risk as there is of behaviour of that type is unacceptable. Put shortly, despite the absence of any prior convictions or any history of acts of violence, there is evidence that both applicants had very strong violent jihadist beliefs upon which they had sought to act by their involvement in the offence alleged against them. This, I am satisfied, in turn gives rise to the inference that, having failed in their attempts at Hijrah, there is an unacceptable risk that they would feel compelled to commit serious acts of violence in this country, in accordance with the fatwa of September 2014. Further, I do not think that bail conditions of the type suggested could ameliorate that risk in any meaningful way.
The risk with which this branch of each application is concerned is an unacceptable risk that, if released on bail, the applicant in question would “endanger the safety or welfare of any person” or “commit an offence while on bail”.[25] When considering notions such as “endangerment”, it is commonplace in the law to distinguish between the level of risk that an event will occur and the gravity of harm that would be caused if the risk were to materialise. Thus, in the matter of Percy,[26] when dealing with the concept of “serious endangerment” in the context of a hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), Eames J took into account the gravity of the potential harm by drawing the distinction between a highly probable risk of minor moment and a mathematically improbable risk of serious import. The former may not satisfy a court that the public would be seriously endangered were the person in question released into the community, whereas the latter may satisfy the court of such a criterion, provided that it could be established to the applicable standard of proof. In particular, his Honour said this:[27]
In my opinion, a conclusion that there is a less than 50% chance of violent behaviour if the reviewee is released might, in some cases, support a conclusion that the judge is satisfied that the safety of the public would be ‘seriously endangered’. The risk of serious harm being done, were the anticipated danger to eventuate, may constitute a release to be a serious endangerment, on the balance of probabilities, even though the risk of the event happening was less than a 50% chance. Similarly, a very high risk of a relatively minor act occurring (for example, indecent exposure) might not constitute serious endangerment of the public.
[25]See s 4E(1)(a)(i) and (ii) of the Bail Act 1977 (Vic).
[26]Percy [1998] VSC 70.
[27]Percy [1998] VSC 70 at [56]. See also, for example, NOM v DPP (2012) 38 VR 618 at 636[57]-640[65].
In my view, similar reasoning may be applied in considering whether there is an unacceptable risk that, if released on bail, the applicants would “endanger the safety or welfare of any person” or “commit an offence while on bail”. Indeed, that the risk in question must be “unacceptable” – a normative term – lends itself quite readily to this type of analysis. So, for example, a relatively high risk that, if released on bail on a charge of shoplifting, an accused would steal a Mars Bar for the umpteenth time might not amount to an unacceptable risk, whereas a relatively low or moderate risk that, if released on bail, another accused would kill or seriously harm another person might amount to an unacceptable risk.
To construe the relevant provisions in this way is also consistent with the directive, via the Bail Act, that the Parliament recognises the importance of “maximising the safety of the community and persons affected by crime to the greatest extent possible”, as well as “Parliament’s intention that this Act is to be applied and interpreted having regard to [such matters]”.[28]
[28] See ss 1B(1)(a) and (2) of the Bail Act 1977 (Vic).
Thus, while the evidence only just satisfies me of a low or moderate risk that, if bailed, the applicants would attempt to cause catastrophic harm to others in line with the fatwa’s command, I am satisfied that there is an unacceptable risk that that would occur. It follows that I am satisfied, in each case, that, if released on bail, there is an unacceptable risk that an offence would be committed involving the endangerment of the safety or welfare of other persons.
In coming to this view, I have cast the onus of proof of unacceptable risk squarely upon the Director and taken into account “the presumption of innocence and the right to liberty”, as Parliament, via the Bail Act, commands.[29] Further, I have not imposed any onus upon the applicants to disprove that there is an unacceptable risk of the kind alleged. That said, the forensic reality is that, absent any reasonable or compelling evidence of renunciation of the types of belief alleged against them, and which the evidence supports, and absent any evidence on oath from the applicants themselves, I have found the inference of an unacceptable risk of the occurrence of something catastrophic a little easier to draw.
[29] See ss 1B(1)(b) and (2) of the Bail Act 1977 (Vic).
I have also had regard to the question of unacceptable risk in view of the very long delay faced by the applicants. As Kellam J said in Mokbel v DPP (No 3):[30]
The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.
[30] Mokbel v DPP (No 3) (2002) 133 A Crim R 141 at 143[10].
However, despite those noble sentiments, I am still satisfied, albeit only just, that there is an unacceptable risk that, if released on bail, the applicants will commit an offence while on bail and thereby endanger the safety or welfare of members of the public.
In view of the foregoing conclusions, I must refuse each application for bail.
The rap song
Finally, while the next piece of evidence is unnecessary to my decision to refuse bail to Mr Kaya, I should mention it in any event, for it serves only to confirm my view that bail must be refused in his case. In March this year, discovered in Mr Kaya’s cell were the lyrics to a rap song written by him. The song goes like this:
You won’t hear me coming, I’m a silent assassin
Hide your kids I’ll kill ‘em in [their] sleep
This aint no war it’s a one way slaughter
Dick in hand, Joystick man, flying these Muslin lands
I’m killing anybody looking like Russel Brand
Join our ranks if you wanna be a hero
I hope your family burns like Rome during Nero
killing every atheist, can’t stand their stupidity
I’m a bloody an anarchist, causing mass atrocities
I was born on a land stolen from indigenous people
White Australia policy wasnt just a fable
When you come up against me, bring heavy artillery
I’m like a bad tragedy, causing mass atrocity
they are accusing me of Islamic insurgency
Power to the people, stick it to the man
my words are bloody lethal, Democracy is a sham
I’m always blastin em, walk around wit my kuf (illegible)
taking back [Jerusalem], sallahadin al ayob!
These motherfuckers are destroying [M]uslim families
You fake ass Imams are worthless little fleas
Bootlickers going against the [prophet’s] creed
You dogs really are a special kind of breedWhat [I’d] do to watch you blood suckers bleed
I think it would be fair to say that Mr Kaya cannot have had this bail application in mind when penning this song. It is chilling. While Mr Dann urged me to consider that these words should not be taken literally, and while they may admit of differing interpretations, particularly if considered against an innocent explanation given by the Mr Kaya himself (which is not forthcoming on this application), given the other evidence against him, they are words which give me substantial additional cause for concern about his thoughts and, in turn, the risk of his participating in something catastrophic. In my view, they reveal the thoughts of a person who should not be on bail on a charge of the type Mr Kaya faces, particularly in view of the other evidence of his beliefs.
Orders
The orders of the Court are that:
a) the application for bail by Murat Kaya is refused; and
b) the application for bail by Antonino Alfio Granata is refused.
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