Regina v Khazal

[2004] NSWSC 548

CITATION:	REGINA v. KHAZAL [2004] NSWSC 548
HEARING DATE(S):	16/06/04; 18/06/04; 22/06/04
JUDGMENT DATE:	22 June 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Greg James J at 1
DECISION:	Bail granted
CATCHWORDS:	Criminal law - bail - s.8A Bail Act - onus on applicant - standard varying for offences to which section applies dependent on seriousness of offence - statutory maximum penalty and likely penalty - application of s.32(6) - proffered undertakings to be taken into consideration when considering s.32 criteria and whether bail should be refused under s.8A.
LEGISLATION CITED:	Bail Act 1978 Criminal Code Act (Cth) Commonwealth Constitution Judiciary Act 1903 (Cth)
CASES CITED:	N/A
PARTIES :	REGINA v. KHAZAL, Belal Saadallah
FILE NUMBER(S):	SC No. 72164/2004
COUNSEL:	Crown: D.J. Fagan, SC. Resp: C. Murphy (Sol.)
SOLICITORS:	Crown: Commonwealth DPP Resp: Murphys Lawyers

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	N/A
LOWER COURT JUDICIAL OFFICER :	Leslie J. Brennan

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

TUESDAY 22 JUNE 2004

No. 72164 of 2004

REGINA v. BILAL SAADALLAH KHAZAL

JUDGMENT
(On application for bail)

1 HIS HONOUR: Belal Saadallah Khazal was admitted to bail on 2 June 2004 by a magistrate sitting in the Central Local Court. That grant of bail to him had been varied by another local court magistrate at the Downing Centre Local Court.

2 Bail was granted to him subject to a number of conditions, including that he reside at his home at Lakemba, he report between certain hours to the officer in charge of Campsie Police Station, that he not apply for any travel documents, that he agree to forfeit $10,000 if he fails to appear, that he obtain a surety in the sum of $10,000 and that he not approach points of overseas departure and appear in court when and as required. The variation to which I have referred, related to the premises at which he resides.

3 Pursuant to s.45 of the Bail Act 1978 application was made by the Director of Public Prosecutions for the Commonwealth, to review the grant to Mr. Khazal of that bail. On such an application it is for the court to determine, by way of a fresh hearing, whether the applicant, now the respondent, should be admitted to bail.

4 Subsequent to the decisions of their Honours, the magistrates, the law has changed in respect to the onus on the applicant, that is to say, on Mr. Khazal.

5 The offence with which he is charged is an offence under s.101.5 of the Criminal Code Act, Commonwealth. That is an offence of collecting, or making a document connected with preparation for, or assistance in a terrorist act. That is an offence punishable by imprisonment for 15 years.

6 A defence is provided by s.101.5(5), that is, that the provisions do not apply if the collecting or making of the document was not intended to facilitate preparation for the engagement of a person in, for, or assistance in a terrorist act.

7 Terrorist act is defined by s.100.1 as meaning an action or threat of action. Where the action falls within subsection 2 and does not fall within subsection 3 and the action is done, or the threat is made with the intention of advancing a political, religious or ideological cause and the action is done or the threat is made with the intention of coercing or influencing by intimidation the Government of a Commonwealth or a State, Territory, or foreign country, or part of a State, Territory or foreign country, or intimidating the public, or a section of the public. What I have said concerning the ambit of the term "public" in its ordinary meaning is, however, within the definition section expanded to include reference to the public of a country other than Australia.

8 Subsection 2 sets out the matters which are required to relate to the action, if that action is to be caught by the provisions.

9 Plainly enough it covers what is said to be the Commonwealth's case here. It relates to the action causing serious physical harm, serious damage to property death, or endangerment to life, health or safety, or disrupting certain systems.

10 Action is expressed not to fall within the penal section, if it is advocacy, protest, dissent or industrial action and is not intended to cause serious harm, death, endangerment of life, or serious risk to health and safety.

11 That offence has been caught up with those to which s.8A of the Bail Act 1978 applies. It is that Act which is applicable in respect of bail concerning offences against the laws of the Commonwealth charged in this State, by virtue of the combined operation of the Commonwealth Constitution and the Judiciary Act 1903 (Cth).

12 Section 8A has been amended so that it provides that in respect to offences to which the section applies by subsection 2, a person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the authorised officers or court, that bail should not be refused. The position is, in that respect, different before me to that which it was before the magistrates.

13 A deal of evidence has been put before me concerning the nature of the offence and the circumstances of the applicant. That is, in particular, because s.32 of the Bail Act provides that in making a determination as to the grant of bail, the court shall take into consideration only certain matters as are set out in that section, including the probability of whether or not the person will appear in court, having regard only to certain specified matters, the interests of that person, having regard only to certain specified matters, the protection of other persons, and with the community, having regard again to certain specified matters.

14 In that last regard the Act provides that the court is to consider whether the person is likely to commit one or more serious offences while at liberty on bail, but only if the court holds that the person is actually likely to commit the offences and that likelihood, together with the likely consequences, outweighs the person's general right to be at liberty.

15 Certain other matters are also referred to, including as to the nature of the offence, whether it be of a sexual or a violent nature and in particular, in subsection 6. That subsection applies to an offence to which s.8A applies. It relaxes the limits under s.32 so as to allow consideration of any matter accepted by the authorised officer or court as relevant to the question of whether bail should not be refused.

16 It is common ground in the two sets of submissions supplied to me, that the effect of subsection 6 is that I may in regard to a matter to which s.8A applies, look more widely than would be permitted, having regard to the use of that word "only" in the section, in the case of other offences.

17 Section 36 provides a limit to the conditions that might otherwise be applied to bail. It is not asserted here by either party, as I understand it, that for this offence I am limited to the conditions set out in s.36.

18 In particular, it appears common ground that I may have, by reason of s.32(6), regard to the proffered conditions which Mr. Khazal had tendered to me on the last occasion, as conditions upon which he was prepared to remain if granted his liberty. I shall have regard to those conditions.

19 In addition, some material was tendered as Exhibit E. This material made certain assertions about what it was said had happened at a Beirut military tribunal on 20 December 2003. In particular, that material included an assertion the source of which was unidentified, that Mr. Khazal was sentenced in absentia, to 10 years imprisonment with hard labour and deprived of his civil rights. Matters were referred to in that document, as suggesting that Mr. Khazal's involvement in whatever it was that was said to have given rise to the sentence, was as a "chief financier".

20 Another document which did not, unlike the first document, even bear the letterhead of the Australian Federal Police, purported to discuss some events involved in Lebanon, in terms that make it perfectly clear that what is referred to is the anonymous author's commentary and it may or may not be that it is some form of information, or intelligence report. It makes reference to matters said to have been demanded by a prosecutor, or judge in Lebanon. No evidentiary support for either documents is proffered.

21 It is not suggested that Mr. Khazal is to be extradited to Lebanon, or that in any way the Commonwealth Government seeks to use the material contained in those documents for the purpose of itself showing any reason why Mr. Khazal should be deprived of his liberty. They are however, put forward on the basis that they show some context to the offence Mr. Khazal is alleged to have committed in Australia. I will have regard to them to that extent only and for that purpose only, since the Bail Act provides that for the purposes of applying s.32, I may take into account any evidence, or information, which I consider credible or trustworthy in the circumstances, notwithstanding that it does not comply with the principles or rules of law regarding the admission of evidence, notwithstanding its author’s anonymity and lack of support. In having regard to it, I will afford to it that limited utility of providing a context.

22 It is to be noted that as best I can see from looking at the material, no matter of violence, of personal violence, is alleged against the applicant. His involvement is said to have been of some facilitative kind connected apparently, with money.

23 The gravamen of the offence against the applicant charged here, is that he collected a number of pronouncements from different sources, said to be from scholars and compiled or collected them into one document on a computer, releasing them into a web site and did so under the pseudonym of Abu Mohamed Attawheedy.

24 Exhibit D, as provided to me, is said to be a translation of the material that appeared on the web site and also upon the hard disk of Mr. Khazal's computer.

25 Not surprisingly, there appears to be a good deal of room for differing interpretations and translations of various of the portions of the material, even including the title of the collection. Whether there is a substantial difference or not, it seems on such a reading of it as I have been able to give, that the material is fully capable of being considered to be a document which has been made, or compiled, or collected and to which s.101.5 may apply. It contemplates matters which embrace, at least, the carrying on of violent acts against persons said to be infidels and against persons, who it is said for religious reasons, should be attacked and assassinated.

26 It is accepted however, that this compilation expresses the views that it does in generalities, urges no particular action to be taken by any particular persons at any particular time, or at any particular place. It does identify persons against whom actions might be launched, in the main as office holders, rather than as individuals. It is also clear that not much, if anything, represents the creative individual work of Mr. Khazal.

27 All of that being said and accepting that the drafting of the offence under s.101.5 is such that it is likely to be a matter of considerable dispute over a very lengthy period of time, as to what the offence means and whether the offence can be made out in the circumstances, there is nonetheless, a substantial Crown case. Given that there is a substantial Crown case, one looks to the culpability of the actions in the event that they were to be proved against Mr. Khazal.

28 Section 8A contemplates offences punishable by maximum terms of imprisonment, of as much as for the whole of an offender's natural life. The offence with which Mr. Khazal is charged, is punishable by a maximum of 15 years imprisonment.

29 Much of the jurisprudence in respect to the application of s.8A has been coloured by the fact that until recently the offences to which that section applied, were all punishable by sentences of the order of 25 years maximum, to life imprisonment maximum.

30 Plainly, when applying s.8A, it is necessary to have regard not only to the fact that it now applies to offences, the maximum sentence for which is substantially less and indeed, substantially different in the case of life imprisonment offences, to those in respect of which s.8A was originally introduced but also it is necessary to have regard to the particular culpability of the relevant offence charged.

31 So that when one has regard to s.32 and in particular s.32 (1)(A)(iii), the circumstances of the offence including its nature and seriousness, the strength of the evidence against the person and the severity of the penalty, or probable penalty, one can consider what sentence might be likely as best one can say, since it will be some considerable time before the proceedings are concluded.

32 It is accepted in the circumstances put by the Commonwealth as an example of offences to which s.101.5 may apply, that this is not one of the greatest seriousness. Not only might that be accepted but it could further be accepted that the overall conduct, so far as it is shown to be in the material with which I have been provided, was not itself of the most substantial significance, in that Mr. Khazal removed the matter from the web site when asked by officers to do so (and it had been there apparently, not for a particularly long period) and that what he is alleged to have put there is not shown to have moved, or inspired any person to do anything.

33 Mr. Khazal has a number of needs to be free for lawful purposes, a matter to which s.32 applies. He suffers from asthma, hay fever, migraine, a fractured right ankle, a left knee problem, a prolapsed disk, neck pain. A cholecystectomy was performed on him on 26 July 2001. He had gastroesophageal reflux. He has bilateral loss of hearing, a distorted and fractured left wrist and diabetes. His back condition is apparently one of some seriousness for which, at least, one referring specialist has said he requires surgery.

34 A psychological report done on him indicated that he suffered from a debilitating mood state with ongoing depression anxiety, poor sleep, low esteem. He states that he spends most of his time indoors cared for by his wife and family. He is suffering from an adjustment disorder, in accordance with the DSMIV criteria, which is apparently chronic and seemingly unremitting.

35 It is not surprising that the psychologist makes the observation that his mood state has been further aggravated by his arrest and the circumstances of his incarceration. He was not however, incarcerated for very long. It is said by the psychologist that he is in need of ongoing therapeutic assistance which can be furnished to him in the community.

36 That said, there is a problem for him within the community. He was apparently stabbed some years ago in what seems to have been his intervening in a dispute, causing some lung damage.

37 In addition, Mr. Murphy appearing for him, has submitted that the applicant has been spat upon and abused, been bashed and his car maliciously damaged. That, notwithstanding that he has never threatened, abused or threatened violence to any person.

38 It has further been put and without demurrer from the Commonwealth, that he has for the past 11 to 12 years co-operated with the authorities, including undergoing questioning as to matters going to, no doubt, those who also profess the same faith as he does and who might have extreme views in support of that faith, that he has continued to co-operate and assist not only before, but also on the occasion on which he was arrested and on which his premises were searched and this material found, but also thereafter.

39 On the occasion on which he was arrested and this material found, it is obvious in his discussions with the officers, that he had some failing in his appreciation of how serious his situation was.

40 It is submitted on the Commonwealth's behalf that s.8A provides that bail should not be granted unless Mr. Khazal satisfies the court that bail should not be refused and that in looking to whether that onus is satisfied, I should conclude that a heavy burden rests upon him, that the strength of the Crown case is the most important consideration and that countervailing circumstances, common to other applications for bail, are to be accorded less weight than in the ordinary case.

41 I should make it clear that so far as these submissions suggest that an applicant, in this case the respondent to a review application, has not only got to persuade the court that bail should be granted but in doing so is required, as a legal duty, to persuade the court that his circumstances are exceptional, the Act does not say that. Such, no doubt, was the effect of judicial authority at a time at which s.8A applied to offences all punishable by 25 years imprisonment, or life imprisonment.

42 The strength of the Crown case, the seriousness of the offence charged, the culpability of the conduct exposed, are matters which go to the likelihood of the offender receiving a lengthy sentence of imprisonment.

43 These are matters, s.32 in its various detailed requirements, makes it incumbent upon me to consider but the Bail Act does not exist for the purpose of sentencing persons to imprisonment prior to their trial. It provides for a system of conditional liberty to ensure certain objectives. They are to be gathered in particular, from s.32; for the protection of individuals in the community and the community, to ensure that people attend their trial and to ensure that they commit no further offences whilst on bail.

44 Mr. Khazal has no prior record, at least in this country, subject to whatever one might make of what is said to be contained in the documents forming Exhibit E. He has proffered undertakings which are such as to lead to a form of quasi custody and a degree of electronic isolation.

45 There is no suggestion that since he has been on bail, whether or not under the conditions set by the magistrate, or under those conditions, together with the undertakings given to the court, enforceable by the sanction of contempt, when the matter was adjourned from last week, he has in any way breached those conditions or in any way exposed himself to be any risk to the community in Australia, or more widely.

46 The document in question has been removed from the web site. The difficulties of the legislation which is novel and of course, what might have to be considered in regard to it, are such that it could be a very long time before the matter is finally disposed of.

47 The culpability of the crime and its seriousness is such that the sentence would not be likely to be the maximum sentence or indeed a sentence approaching that. So that a substantial portion of the time that might otherwise have been devoted to the sentence would have to be served on bail, rather than after conviction, if there is substantial delay.

48 His needs to be at liberty I have referred to in terms of his medical condition. His personal circumstances show that he lives in premises in south western Sydney. He had a solid employment history, in which however, he suffered injury to his knee and injury to his back. He lives with his wife and two children. He has a degree of religious pre-occupation and it has been put he resides in a home equipped with a very extensive religious library. He expresses particular views concerning the incidents of detention in custody and in particular, their effects from the point of view of his religious beliefs, on his having to expose his body and to expose his body in physiological functions.

49 The psychologist expresses a view that he is essentially an invalid, who has been rendered housebound as a consequence of his physical limitations and the aggravating impact of his disabilitative mood state.

50 Nonetheless, the potential for the commission of further offences nowadays is not limited by a party's ability to get about physically. This is one of the reasons why the undertakings that were proffered, no doubt referred to rendering the applicant electronically incommunicado.

51 Should he go into custody he will have his case considered by the Senior Assistant Commissioner Inmate and Custodial Services, or the Assistant Commissioner Security, in consultation with the Commissioner for Corrective Services on information provided to them by the Australian Federal Police. To that information he will not necessarily be privy. He will then be detained on remand in a corrective services establishment.

52 The affidavit of Mr. Brian Raymond Kelly, the Acting Assistant Commissioner Security, is to the effect that should Mr. Khazal be returned to custody, he would return to a maximum security correctional centre that caters for inmates on remand. It has available health staff and he would be with the general body of remand prisoners, one could infer, unless a determination was made that he be placed on segregation or protection.

53 Mr. Murphy, who appears for him, has led a deal of material to suggest that of those persons charged with offences of this general kind in the gaol population, they are detained in a degree of isolation, arising either from segregation or from protection.

54 Mr. Kelly accepted, in questions from me, that for the sake of the general good conduct of the gaol and to avoid disruption to the gaol population, or because of the manifestation of particular views which might be disruptive to other members of the population, or because of the vulnerability of the prisoner who otherwise might be placed within the general community and not subject to any particularly onerous disability by comparison with other prisoners, he might nonetheless be required to go into segregation, or protection, even though that matter did not arise from that individual's particular fault.

55 I infer that it could simply arise because of an individual's notoriety and there have been over the years many occasions in which persons, with no particular fault whose case has attracted notoriety, have attracted as a result, adverse influences within the gaol which have led to them being placed on protection, or segregation.

56 However, the evidence before me as to that is within limited compass and the best I can say to that is that there is some probability of some such thing occurring and being taken into account on the continued assessment of Mr. Khazal's case should he re-enter custody, which assessment would apparently be carried out by those persons of whom I have spoken, including the Commissioner.

57 At bottom, the question remains, am I persuaded by Mr. Khazal that bail should not be refused and in that regard I can turn to the certificates as to his character that have been tendered in evidence. I can turn to what has been submitted by Mr. Fagan of Senior Counsel for the Crown and to what has been submitted in the written submissions provided to me by Mr. Murphy.

58 I am unable to see that there is any particular flight risk. I am unable to see that there is any particular risk of any harm to any individual, or to the community. I am unable to see that the general flight risk arising from the likelihood of conviction and sentence, having regard to the seriousness of the offence that has been outlined to me, approaches the seriousness of those other crimes to which s.8A has previously been referable.

59 Although I do not consider that he would be under any particular disability in custody, having regard to the evidence before me I am of the view that the conditions of bail which have been proffered, are such as to overcome the burdens he might otherwise have had to discharge under s.8A.

FAGAN: There is no objection to the conditions of bail continuing from last Friday.

BAIL CONTINUED OVER THE ADJOURNMENT ON EXISTING TERMS

ADJOURNED TO THURSDAY 24 JUNE 2004

**********

Last Modified: 06/25/2004