Re Kent
[2008] VSC 431
•20 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1415 of 2008
IN THE MATTER of the Bail Act1977 (Vic)
and
IN THE MATTER of an Application for Bail by SHANE KENT
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 14 October 2008 | |
DATE OF RULING: | 20 October 2008 | |
CASE MAY BE CITED AS: | Kent v R | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 431 | |
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Criminal Law - Bail Application – Applicant charged with offences relating to terrorism - Exceptional circumstances on the basis of delay – Unacceptable risk not shown - Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J.V. O’Sullivan | Robert Stary & Associates |
| For the Respondent | Mr M.E. Dean S.C. with Mr D. Lane | Director of Public Prosecutions (Commonwealth) |
HIS HONOUR:
By application dated 18 September 2008, Shane Kent makes application for bail. Mr Kent was committed to this court to stand trial on indictment for three counts. The first count was for intentionally being a member of a terrorist organisation contrary to s.102.3(1) of the Criminal Code (“the Code”). He was also indicted on one count of providing resources to a terrorist organisation contrary to s.102.7(1) of the Code and one count of making a document connected with preparation for a terrorist act contrary to s.101.5(1) of the Code.
The applicant was arrested and charged with the offences on 8 November 2005 and has remained in custody since. His application for bail on 20 December 2005 was unsuccessful. He was committed for trial on 20 September 2006. A further application for bail was refused. He was ordered to stand trial with 12 others. One of them, Izzydeen Atik, later pleaded guilty. The applicant was placed on trial before Mr Justice Bongiorno on 4 February 2008. The counts were severed, so that he stood trial only with respect to Count 1.
On 16 September 2008 the jury announced that it was not able to reach a unanimous decision in relation to the case of the applicant. Of the other accused, seven were convicted and four were acquitted entirely. All seven of those convicted were convicted on the count which the applicant had been charged. The applicant has been remanded for retrial and that trial would be unlikely to commence before the middle of next year. He will have been in custody for three years on 8 November next.
When application was first made to this court, reliance was placed upon the Charter of Human Rights and Responsibilities Act 2006. Notices were duly given. When the matter first came on for hearing on 7 October 2008, counsel for the applicant Mr J.V. O'Sullivan abandoned that argument. It would seem as a matter of statutory interpretation it was doomed to failure in any event.
The hearing was adjourned on 7 October 2008 to give the Commonwealth Director of Public Prosecutions an opportunity to reconsider his position in relation to the second and third counts. Having considered his position, he decided to proceed with those counts and the matter then came on for full hearing before me on 14 October 2008.
The law applicable to the grant of bail for a person in the circumstances of the applicant is governed by s.15AA(1) of the Crimes Act 1914 (Commonwealth). That sub-section would command me not to grant bail unless satisfied that exceptional circumstances exist to justify bail. There is no doubt that the applicant has been charged with offences which pursuant to s.15AA(2) attract the operation of s.15AA(1). The Bail Act 1977 (Victoria) applies to the applicant by virtue of the operation of s.68(1) of the Judiciary Act 1903 (Commonwealth).
It has long been established in this State that delay alone[1], or in combination with other factors, may constitute exceptional circumstances. Here the delay before trial is now almost three years and will be, by the actual time of trial at the earliest, three and a half years. As it was submitted by Mr Dean S.C. who appeared with Mr D Lane for the respondent, that it would be open for me to find exceptional circumstances while not conceding the matter. He made no concession as to the operation of the conditions under which the applicant had been held or his psychological condition. It is trite to observe that very serious cases will take a long time to be tried. However, these proceedings have reached the point where I am satisfied that the feature of delay is sufficient to constitute the existence of exceptional circumstances to justify bail.
[1]Beljajev v DPP (1998) 101 ACrimR 362.
That, however, is not the end of the matter. The Crown submits that pursuant to s.4(2)(d)(i) of the Bail Act 1977, I should be satisfied that there is an unacceptable risk that if the accused person was released on bail, he would fail to surrender himself into custody in answer to his bail, commit and offence whilst on bail, or endanger the safety or welfare of members of the public. Those matters are closely related in this case. The matters were strongly pressed by the Crown.
In the long run, as I suggested in argument, the nub of the matter depends on whether or not I am satisfied that there is an unacceptable risk that the applicant would commit an offence whilst on bail. It is at the centre of the argument that the offence there referred to would be a terrorism offence as disclosed in the Code. No other particular risk of offending is pressed upon me.
I am obliged when considering the matters in s.4(2)(d)(i) and the question of unacceptable risk, to have regard in particular to: (a) the nature and seriousness of the offence. Mr Dean urged on me the view that since terrorist offences are not only very serious and dangerous, but also attacked our fundamental institutions, a not particularly high risk would be an unacceptable one. I would however, first of all, need to be satisfied that there is an actual and identifiable risk, otherwise a problem arises that the very nature of the charge overwhelms the question which must be answered.
The Crown relied upon affidavits by Detective Senior Sergeant Christopher Murray, Detective Senior Constable Mark Thomas and Detective Senior Constable Benedict Condon. I will not repeat all the arguments in detail because there is still a trial to be conducted in relation to these matters. The case against the applicant commences with the fact that he engaged in paramilitary training in Afghanistan in 2001 and at that time swore allegiance to Osama bin Laden to pursue jihad. It is suggested that he has a long term commitment to violent jihad, as demonstrated by the collection of a large library of material on the subject. That commitment can be shown to have carried through to 2005 when he was involved in the creation of the video, "Such are the Messengers Tested". On the evidence, he had a long term commitment to the Benbrika organisation, it is argued. When he returned to Australia in 2003 he had a large amount of written material favourable to al-Qaeda. However it must be said as to that material, many of the sources of it were common ones. It is also argued that he was treated as a valuable adviser to the Benbrika organisation.
To be balanced against that, in part, the applicant has a wife and three children and other family who support him. His mother is prepared to provide a surety of $50,000. Although the applicant expressed a desire to be outside Australia in 2004, he did nothing about it in the next 14 months. He does not have a passport. His passport was cancelled by the Australian authorities in 2003. It is not suggested that he has applied for another.
Although the jury disagreed on his case, they did convict a number of the other co-accused. That is significant in that his alleged “fellow travellers” in that regard are now in custody, in particular Benbrika and Joud. There is no evidence that he has any financial backing of a kind which would enable him to escape from Australia. The so-called Benbrika organisation was dependent at least in part for its financial support, upon the skills of Atik to defraud others. Atik is also now in custody.
The applicant has now been in custody for almost three years. The lesson to him of engaging in unacceptable conduct of this kind has been brought home and brought home very severely. Taking into account all the material that's been provided to me, I am not satisfied that it has been shown that he is an unacceptable risk and I will grant bail.
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CERTIFICATE
I certify that this and the 3 preceding pages are a true copy of the reasons for Ruling of Coghlan of the Supreme Court of Victoria delivered on 20 October 2008.
DATED this twentieth day of October 2008.
Associate
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