Re Kocoglu
[2017] VSC 715
•23 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0265
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by ISA KOCOGLU |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 November 2017 |
DATE OF JUDGMENT: | 23 November 2017 |
CASE MAY BE CITED AS: | Re Kocoglu |
MEDIUM NEUTRAL CITATION: | [2017] VSC 715 |
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CRIMINAL LAW – Bail – Giving money to another person with the intention of supporting or promoting the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Entitlement to bail – Whether bail should be granted – Presumption of entitlement to bail – No relevant prior criminal history – Whether applicant unacceptable risk if released on bail – Whether risks ameliorated by imposition of strict conditions – Bail granted on strict conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Doyle | Director of Public Prosecutions (Cth) |
| For the Accused | Mr S Bayles | Stary Norton Halphen |
HIS HONOUR:
On 24 October 2017, the applicant was arrested and charged with one count of giving money or goods to, or performing services for, another person with the intention of supporting or promoting the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (‘the CFIRA’), being the entry by a person into a foreign state, namely Syria, with intent to engage in hostile activity in Syria, contrary to s 7(1)(e) of the CFIRA. The maximum term of imprisonment for this offence is 10 years.
After he was charged, the applicant was conveyed to the Melbourne Custody Centre for a filing hearing in the Magistrates’ Court. By an email sent at 10:56 am on 24 October 2017, the prosecution advised that it did not oppose bail provided that the Court fixed a residence condition and conditions requiring the applicant to report three times per week to police; surrender valid passports and not apply for any other passport; not depart the State of Victoria; not depart Australia; not go within 500 metres of a point of international departure; not access the internet for the purpose of using any social media platforms; not communicate with any prosecution witness other than the informant; not use any telephone service other than one nominated handset and SIM card subscribed in his name, the details of which were to be provided to the informant prior to its use; and not contact or attempt to contact any person involved with, or supportive of, Islamic State.
Later on 24 October, the applicant applied to a magistrate for bail. The admission of the applicant to bail was not opposed. While the magistrate noted that there was a presumption of an entitlement to bail, her Honour determined that bail should be refused because the applicant ‘represented an unacceptable risk to the community as a consequence of his beliefs’. The magistrate also noted that there was a possibility that further charges may be laid against the applicant.
Having been refused bail by the magistrate, the applicant now applies to this Court for bail.
The alleged offending
The prosecution case is that between 1 November 2013 and 31 August 2014, the applicant received money from third parties and forwarded this money for use by a US citizen, one JG. JG is alleged to have used the money forwarded to him to engage in hostile activity in Syria. The total that the applicant is alleged to have sent is $3,905.17. The details of these alleged transactions are as follows:
·$587.74 sent on 25 January 2014;
·$587.74 sent on 14 May 2014;
·$253.75 sent on 22 July 2014; and
·$2,475.94 sent on 4 August 2014.
The prosecution case is that JG pledged allegiance to Abu Bakr al-Baghdadi, the emir of Islamic State on 3 June 2014.[1]
[1]I have taken this date from the informant’s affidavit sworn 3 November 2017. While, the informant’s affidavit gives this date as 3 June 2014, the summary of facts exhibited to that affidavit gives the date as 3 July 2014. Nothing, however, turns on this apparent discrepancy in this application.
On 29 June 2016, a search warrant was executed at the applicant’s residential address and various items were located and seized. The applicant voluntarily authorised AFP Digital Forensics to take over the control and use of internet online identities and accounts held by him. As a result, AFP Digital Forensics accessed and digitally captured a number of accounts.
At the conclusion of the execution of the search warrant, the applicant consented to attending the Narre Warren police station for the purpose of participating in a record of interview. The applicant was subsequently interviewed. During the interview, various admissions were made. The applicant, however, claimed that JG was not a terrorist, and that he believed JG was engaged in humanitarian work in Syria. The applicant was released without charge.
The applicant’s background
The applicant was born in Australia on 14 February 1974 and is 43 years old. He has no relevant criminal history. His one prior court appearance was in May 1998 where he was fined $500 in respect of charges of careless driving, failing to conspicuously display L-plates and using an unregistered motor vehicle.
The applicant lives with his wife and children. At the time of his arrest, he was in receipt of a disability support pension in relation to mental health issues and obesity. The applicant is supported by his wife, who is his carer. The applicant’s wife has no criminal history. The applicant is also supported by a number of other relatives including his parents and siblings who are resident in Victoria.
The respondent’s contentions
Notwithstanding that the respondent did not oppose bail before the magistrate, the respondent filed material that appeared to suggest that it opposed bail in this application. This morning, however, I was informed that the material filed indicates the AFP’s and the informant’s opposition to bail, whereas the Crown’s position is that bail is not opposed, if appropriate conditions are imposed on any such grant of bail.
The material filed by the Crown discloses an acceptance by the informant that the applicant has no relevant criminal history. The informant, however, says that due to the seriousness of the offence with which the applicant is charged, the applicant poses both an unacceptable risk of interfering with witnesses and an unacceptable risk of failing to surrender into custody in answer to bail.
As to the risk of the applicant interfering with witnesses, the informant says that the relevant witnesses are medical and allied health professionals from whom the applicant has sought professional advice and the translation of a Turkish medical report relating to an injury sustained by JG. The informant contends that if the applicant is granted bail then ‘it is highly probable that he would be able to contact the witnesses by easily utilising social media’. Moreover, it is submitted that any contact by the applicant with these witnesses ‘would greatly affect the testimony of those witnesses’.
As to the risk of failing to answer bail, the informant notes the existence of current passports held by members of the applicant’s family, the fact that the applicant has family ties to Turkey and has travelled to Turkey on two previous occasions in 2011 and 2015, the fact that the applicant has expressed a very keen desire to migrate to Syria and the fact that the applicant has a close association with other persons of interest who it is alleged have attempted to depart Australia illegally.
Resolution of the application
As the magistrate who refused bail correctly observed, in this case there is a presumption of an entitlement to bail.[2] Specifically, in making the present application for bail, the applicant is not subject to any statutory provision requiring him to ‘show cause why his detention in custody is not justified’,[3] or requiring him to establish that ‘exceptional circumstances exist which justify the grant of bail’.[4]
[2]R v Light [1954] VLR 152, 157; s 4(1) of the Bail Act 1977 (‘the Act’), given application by s 68(1) of the Judiciary Act 1903 (Cth).
[3]Cf s 4(4) of the Act.
[4]Cf s 4(2) of the Act and s 15AA of the Crimes Act 1914 (Cth).
The crime with which the applicant has been charged is undoubtedly serious.[5] That said, the critical question in this application is whether, if released on bail, the applicant would pose an unacceptable risk of the kind contended for by the informant (interfering with witnesses or failing to answer bail).
[5]See generally, Director of Public Prosecutions (Cth) v El Sabsabi [2017] VSCA 160 [48], but note also [47].
The applicant has no relevant prior convictions. He also has no negative bail history. Additionally, there is no evidence of any offending by the applicant between the time he was first interviewed in October 2016 (following the execution of the search warrant) and his arrest 12 months later in October 2017.
It can never be said that a particular applicant for bail, if admitted to bail, poses no risk of not answering bail or interfering with witnesses. In my view, however, such risk as the applicant might pose of not answering bail or interfering with witnesses in this case can be addressed by the provision of a surety and the imposition of strict conditions. I propose to grant bail on such terms. I should also say that the risk of interference with witnesses is likely to be mitigated not only by the terms on which I will grant bail, but also by the fact that one would expect that any contact by the applicant with any witness is likely to be reported by that witness to the informant and result in the revocation of the applicant’s bail.
The surety and the conditions upon which I will grant bail will, in my view, ameliorate the risks about which the respondent is concerned. The surety will be in an amount of $50,000.
The conditions upon which I will grant bail will include a condition that the applicant reside at his family home with his wife; a curfew between 10.00pm and 6.00am; a requirement that the applicant present himself at the front door of his premises upon request by police during curfew hours; and a requirement that the applicant report daily to police. There will also be conditions requiring the applicant to surrender all passports and any other travel documents and not apply for any other passport or travel document; not depart the State of Victoria; not depart Australia; not go within 500 metres of a point of international departure; not access the internet for the purpose of using any social media platforms, apart from any non-encrypted communication service for the purpose of communicating with family members; not communicate with any prosecution witness other than the informant; not use any telephone service other than one nominated handset and SIM card subscribed in his name, the details of which are to be provided to the informant prior to its use; and not contact or attempt to contact any person involved with, or supportive of, Islamic State.
Order
There will be an order granting bail on the terms set out above.
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