Application for Bail by Kaya [2016] VSC 712 (30 November 2016)

2 The applicant is charged with 1 offence, namely, preparations for incursions into foreign countries for the purpose of engaging in hostile activities. The charge is presently stated by the Australian Federal Police in the "Statement of Facts" as follows:[2]

That between 6 May 2016 and 10 May 2016, in the State of Victoria and elsewhere, he did an act, namely the purchase of a motor vehicle, boat and trailer, for the purpose of undertaking travel to northern Queensland in order to depart Australia by boat, preparatory to the commission of an offence against s 119.1 of the Criminal Code (Cth) being the entry into a foreign country, with the intent to engage in a hostile activity in Syria or northern Iraq, contrary to s 119.4 of the Criminal Code (Cth).[3]

3 The applicant is 25 years old. He was born on 14 February 1991 in Melbourne, Australia.

4 The applicant is a tiler by trade and owns his own business, "Kaya Tiling". That business has operated for approximately 4 to 5 years. If the applicant were granted bail, it is likely he would be in gainful employment by way of subcontracting to a contractor, for whom the applicant has previously worked between March 2015 and the time of his arrest in May 2016.

5 The applicant is of Turkish descent. His father, Haci Kaya, is currently 50 years old and arrived in Australia in 1969. He worked at the Ford Motor Company for 25 years. Since his retrenchment from that employment, he has worked in the building industry and in general trades work, including tiling and landscaping. The applicant's father was working with the applicant in tiling prior to the applicant being remanded into custody.

6 The applicant's mother, Senal Kaya, is 47 years old. She was also born in Turkey and arrived in Australia in 1986. She has worked primarily in the sewing industry, but now works as a food processor.

7 The applicant has 4 siblings: 3 sisters and a brother. His older sister resides in Turkey with her husband and 3 children. He has a sister aged 24 residing in Victoria, who is married with 2 children and is currently pregnant. His younger sister, aged 10, currently lives with her parents.

8 His younger brother, Kadir, is 22 years old. He, with 5 other co-accused, is charged with the same offence as the applicant and is currently being held on remand.

9 The applicant commenced a relationship with Pervin Cakici in 2010. Ms Cakici and the applicant were married in 2013. They have 1 child together, who is 2 years old. Ms Cakici was studying psychology at Victoria University before the birth of their child and says she wishes to return to her studies once child-minding responsibilities allow.

10 The applicant and Ms Cakici were living in a rental property in Plumpton, in the State of Victoria, at the time of the applicant's arrest. A lease was signed approximately 1 month before that time.

11 Upon moving into this property in around April 2016, the applicant and Ms Cakici acquired furniture and other household items so that they could live at the property. They also had some items such as bedding, which they already owned, that were moved into the property. It was common ground that the fitout of the property in May 2016 was consistent with them being occupiers intending to reside at the property on an ongoing basis.

12 The residential lease has approximately 4 months remaining, but inquiries have been made by the landlord as to whether or not there is an intention to renew that lease for a further term. The court was informed that, if bail were granted, the applicant intends that he, his wife and their child would reside at this property on an ongoing basis.

13 After the applicant's arrest, Ms Cakici moved to her parents' home approximately 2 kilometres away. The reason for this relocation was that, in addition to not wanting to live on her own with her child, she was struggling to pay for bills associated with living alone without the benefit of the applicant's income.

14 Ms Cakici's parents, Huesyan and Saadet Cakici, are prepared to act as sureties in the sum of $300,000. Evidence was led concerning ownership of their family home in order to establish their suitability as sureties. A recent rate notice indicates a capital improved value of $553,000. Mr Cakici gave evidence, which was not objected to, that their home was worth approximately $800,000. A mortgage loan secured by that property has an outstanding balance of slightly more than $200,000, which suggests that there is equity in the property of between approximately $350,000 and $600,000.

15 The court was informed that if bail were granted with a surety of $300,000 as a condition, and then the applicant breached his bail, this would result in the Cakici family home having to be sold.

16 The application for bail is opposed on the basis that there are no exceptional circumstances or on the basis that, if exceptional circumstances do exist, the granting of bail would result in an unacceptable risk of any of the following with respect to the applicant: [4]

(3) Endangering the safety or welfare of members of the public.

17 The Crown contends that the case against the applicant is a strong one. The applicant's position is that there is no case against him on the charge as presently stated and, in any event, the case could not be "characterised as 1 of the stronger Crown cases". It is necessary to set out further background before returning to this issue.

18 It is neither necessary nor desirable to set out with specificity the evidence presently put forward to support the charge. The "Statement of Facts" is 77 pages long. In addition, the informant has exhibited a further 10 pages of extracts of surveillance recordings. This evidence may or may not be evidence before a jury in the event that this matter proceeds to trial. It is sufficient for the determination of the present application to make the following observations.

19 In February 2016, the applicant and his wife were living with his wife's parents. Unbeknownst to the applicant, at that time he was the subject of lawful surveillance.

20 On 19 February 2016, the applicant and another co-accused left Melbourne by car to drive to Darwin. The transcripts of discussions relied upon by the Crown include alleged recordings made during the course of this trip. Taken at face value, those recordings indicate:

(1) The applicant and his co-accused were intending to buy a boat in Darwin for the purpose of traveling from Darwin to the Philippines.

(2) The applicant and his co-accused either intended to or did travel to Darwin with tens of thousands of dollars.

(3) The applicant wanted to "make Hijrah",[5] and in that context made derisory comments about living in Australia.

(4) The applicant and his co-accused discussed, with jocularity, performing certain seriously violent acts on others.

(5) The applicant discussed with his co-accused having a false passport.

21 At the same time this surveillance was being conducted, the applicant's wife was also the subject of surveillance. On 23 February 2016, a telephone conversation between her and another female was recorded. According to the Federal Police, the 2 women spoke partly in code and the conversation related to the applicant and his co-accused travelling to Darwin. The conversation also refers to Ms Cakici having spoken to another woman who the Federal Police believe is 1 of the other co-accused's wives.[6] The Crown contend this recording suggests that Ms Cakici had spoken to this other woman, who had told Ms Cakici that the trip to Darwin was cancelled. Also during the conversation, Ms Cakici stated that she had fully prepared to travel herself and that she was excited about it.

22 The only other matter necessary to refer to with respect to the applicant's trip to Darwin is that, during the course of the cross-examination of the informant, the applicant's senior counsel indicated that, for the purposes of this application only, it was accepted that the applicant travelled to Darwin with the intention of getting on a boat in Darwin and travelling to the Philippines "for whatever reason". On this limited basis, it was also accepted that the applicant's wife intended to join him either in the Philippines or in Malaysia.

23 After the applicant returned from Darwin, he and his wife decided to no longer live with his wife's parents. This decision resulted in them setting up their own residence as referred to above.[7] According to the police, the applicant then appeared to "adopt a normal routine" which did not involve preparing to leave Australia.

24 However, on 10 May 2016, it is alleged the applicant attended with another co-accused, Robert Cerantonio ("Cerantonio") at a residential address in Bendigo. The person residing at this address was selling a 7 metre boat.

25 Cerantonio is described in the "Statement of Facts" as "a Melbourne based self-styled Islamic cleric and historian who, prior to July 2015, had been identified [by authorities] in Australia and overseas owing to his high profile and extreme ideological support for an Islamic Caliphate". Reference is made to a number of Cerantonio's public statements, including on live television in Egypt, promoting, as a religious war, the establishment of an Islamic State. Further, reference is made to Cerantonio's statements expressing a desire to bring back the light of Islam to the Philippines and concerning his links with persons in the Philippines who also have engaged in conduct promoting Islamic State.

26 Returning to 10 May 2016, it is alleged in the morning of that day that the applicant inspected the boat "inside and out". Then it is said the applicant and Cerantonio asked various questions of its then owner about the boat's features. A price of $13,000 was negotiated, purportedly on behalf of a friend named "Phil", and a cash deposit of $2,000 was made.

27 The very next day, it is alleged, 2 of the other co-accused (including the applicant's brother) attended at the same premises in Bendigo, paid the remainder of the purchase price and took possession of the boat. The boat was then attached to a car.

28 Over the next few days, all the co-accused, except for the applicant, travelled in that car to far north Queensland with the boat attached. These co-accused were arrested on 10 May 2016. It is alleged the boat and car contained material and equipment that demonstrated an intention to make an incursion into a foreign country or foreign countries for the purpose of engaging in hostile activities. Again strictly for the purposes of this application, the applicant's senior counsel accepted it could be assumed the co-accused who travelled to Cape York intended to travel by boat to the Philippines.

29 The time spent with Cerantonio on 10 May 2016 is not the only association the applicant has had with this person. For example, the evidence in opposition to the application includes a photograph taken in Footscray Park, on 17 July 2015, depicting the applicant standing with Cerantonio and others, including his brother, posing with a "black IS flag".[8] There is also evidence of other communications between the applicant and Cerantonio, but further details of these are unnecessary.

30 The Crown also alleges that the applicant has, in the past, subscribed to telecommunication services under false names in order to avoid detection.

31 The applicant has not been convicted of any offences prior to his arrest on 27 May 2016.

32 Upon his arrest, the applicant was remanded to the Melbourne Custody Centre until 1 June 2016, when he was moved to the Melbourne Assessment Prison. He was then transferred to Port Phillip Prison, where he is currently housed; more specifically, in the protection unit of Sirius A by reason of the nature of the charge against him.

33 On 19 September 2016 and 20 September 2016, the applicant sought bail in the Melbourne Magistrates' Court. That application was refused. The applicant has been remanded to appear again before the Magistrates' Court at a committal mention hearing on 20 February 2017.

34 The informant, Adam Foley, who is a special member of the Australian Federal Police currently attached to the Joint Counterterrorism Team at the Melbourne office, swore 2 affidavits in opposition to the application. He was also the subject of cross-examination. In the course of the cross-examination, he acknowledged the following:

(1) Since the charge was formulated, the investigations have moved on.

(2) The Crown's present position is that the attempt to travel by the other co-accused in May 2016 was an attempt to travel to the Philippines, not Syria or northern Iraq.

(3) There is no evidence of which the informant is aware that the applicant had any direct association with anybody in the Philippines.

(4) The Crown contends that Cerantonio boasted that he had associations with radicals in the Philippines.

(5) In conversations held in May 2016, there was talk of travel by female travellers to Malaki in Malaysia.

(6) The vehicle in which the 5 other co-accused travelled to Cape York, Queensland, from Melbourne (via Bendigo) was a 7 seater.

(7) The applicant has always done some fishing and was somebody who knew something about boats.

(8) There was no evidence to suggest that in May 2016 the applicant was planning on leaving Australia at that time.

(9) There were 17 days from the time of the co-accused's arrests on 10 May 2016 (which coincided with a search warrant being executed at the applicant's home) and the time at which he was arrested, and the applicant made no attempt to leave the jurisdiction. During this time the applicant was well aware that the police suspected his involvement with the co-accused.

(10) When the applicant's home was the subject of search warrants on 2 occasions in May 2016, nothing was found in terms of explosive devices or anything that would indicate that the applicant was involved in any plan to harm anyone in Australia.

(11) None of the recordings from surveillance devices indicates that the applicant had any involvement in a plan to harm anybody in Australia.

F. Proposed conditions of bail and the applicant's contentions

35 The proposed conditions of bail, proffered by the applicant,[9] are as follows:

(2) The applicant report twice daily to the Keilor Downs police station.

(3) The applicant be the subject of a curfew and not leave his residential address between the hours of 7.00 pm and 6.00 am each day.

(5) The applicant not approach any port, airport or point of international departure.

(6) The applicant not apply for any passport or travel document relating to travel other than within Victoria.

(7) The applicant not associate with or contact any prosecution witness, other than the informant or his nominee, either directly or indirectly.

(8) The applicant not associate with any co-accused either directly or indirectly.

(9) The applicant not associate with or contact, either directly or indirectly, a specified list of persons (the detail of which is not necessary to set out here).

(10) The applicant only make or receive telephone calls or communications on 1 communications device, being a mobile phone service subscribed to in the applicant's name, the details of which must be provided to the informant within 12 hours of the service being obtained.

(11) The applicant not access the internet from any device.

36 The following factors were relied upon in support of the applicant's contention that there were exceptional circumstances in existence to justify bail:

(1) The likelihood of significant delay before the trial will take place. Having been arrested on 27 May 2016, it was submitted on the applicant's behalf that the trial was not likely to take place until 2018. No submission was put to the contrary.

(2) The applicant's personal circumstances, including:

(a) no prior criminal history and being of good character;

(b) the applicant being married and having a young child;

(c) the availability of work immediately upon his release;

(e) strong ties to Melbourne, including with his wife, child and family;

(f) the hardship that will be caused to his wife and child if bail is not granted in circumstances where the applicant is the sole income earner.

(4) The ability of the court to set appropriate conditions for bail.

(5) The absence of any evidence of plans to commit any terrorist act in Australia.

(6) The applicant's present conditions of custody, namely his placement in a protection unit at Port Phillip Prison where he is likely to remain whilst on remand.

(7) The fact that there is no evidence known to the informant to support the particulars of the charge as presently formulated.

37 The applicant also relied upon the matters set out in the previous paragraph to demonstrate that, if exceptional circumstances were established, he was not, relevantly, an unacceptable risk.

38 The onus is on the applicant to establish that "exceptional circumstances" exist. The term "exceptional circumstances" is not defined in the Bail Act. They are ordinary English words. Something out of the ordinary needs to be demonstrated before a fact or circumstance can be considered to be an exceptional circumstance. The court is required to look at all the relevant circumstances, whether or not those circumstances individually are exceptional, to determine whether the circumstances as a whole are exceptional.[10]

39 If the applicant discharges his onus, then the onus of establishing an unacceptable risk is on the prosecution.

40 On the question of delay, it is plain that this single factor is capable of giving rise to exceptional circumstances.[11] The applicant submitted that an 18 month to 2 year delay before the matter gets to trial was, of itself, an exceptional circumstance. Further, it was submitted that the fact that delay is usual in "terrorism type" cases was irrelevant. I do not accept this submission. Whether or not a particular length of time amounts to delay that could be considered an exceptional circumstance must be viewed in the particular circumstances of the case, including the nature of the offence the subject of the charge.

41 As has been previously observed,[12] terrorism cases, of their nature are likely to be long and involved.[13] This may particularly be so in a case that involves 6 co-accused. If the court failed to take into account the nature of this type of case, it would follow, as a matter of logic, that every such case would give rise to an exceptional circumstance.

42 In summary, the delay to date together with the expected delay does not, of itself, amount to an exceptional circumstance.[14]

43 As an extension of the submission based solely on delay, the applicant referred to his particular circumstances and submitted that he would be seen on the evidence to have a significantly lesser role than the other co-accused with respect to the relevant events in May 2016. So much is readily apparent from the fact that, unlike the others, the applicant chose to stay in Melbourne. There is no suggestion by the Crown that the applicant had any plans to join the co-accused either in Australia or upon their arrival in the Philippines. Further, it was submitted that, given the trial is not likely to commence until 2018, the time spent in custody may well exceed the sentence given to the applicant in the event he is found guilty. The Crown's senior counsel made a contrary submission.

44 It is sufficient for the disposition of this application to state that I cannot be satisfied that, on a charge that has a maximum penalty of life imprisonment, any time spent in custody up to the likely trial date in 2018 would be likely to exceed any sentence that might ultimately be imposed.[15]

45 As to the applicant's personal circumstances, the mere fact that the applicant has no prior convictions and is of good character cannot be considered exceptional. There must be many instances where persons are charged with serious offences for the first time. Further, the fact that he is married and has a young child and is the sole income earner are matters of everyday life for many in our community. Equally, the fact that the applicant intends, if bail were granted, to return to his home and continue with his previous employment is not exceptional.

46 As to the suggestion that the applicant has "strong ties" to Melbourne, including his wife and child, in my view this submission is contrary to the evidence. Whilst the applicant has lived in Melbourne all his life, from the matters set out above it is plain that both the applicant and his wife have very recently had intentions to leave Melbourne and Australia without any specific plans for a return. It was accepted in closing submissions that the intention in February 2016 to depart for the Philippines was "no doubt with their child". This intention to depart cannot be ignored, even though it appears that, from around late February 2016 to May 2016, the applicant may have changed his plans, temporarily or otherwise.

47 The unquestionable hardship being caused to the applicant's wife and child by reason of his incarceration is undoubtedly substantial. Nothing said in this ruling ought to be taken as diminishing the significance of this circumstance. However, it is not exceptional. It ordinarily follows that if the sole breadwinner of a family is incarcerated that hardship for the other dependent family members will follow.

48 Next, the applicant submitted that significant surety, of itself, is capable of being an exceptional circumstance and is also capable of being taken into account as 1 of a number of circumstances in determining whether or not exceptional circumstances exist. There can be no issue with the latter proposition. As to the former proposition, the applicant referred to Mustica v Director of Public Prosecutions.[16] That case does not suggest that the surety offered of $500,000 was an exceptional circumstance in itself.[17] The exceptional circumstance was held, in combination with a range of other factors, to be an estimated delay of between 24 and 30 months from the time of the accused's arrest until the likely time for trial.[18] No other authority was referred to on this point.

49 In any event, whilst a surety of $300,000 may be an exceptional circumstance in some cases, given the nature and gravity of the charge against the applicant, in my view such a surety is not exceptional in this case.

50 As to the next point raised, the ability of the court to set appropriate conditions for bail is nothing out of the ordinary.

51 The fact that the applicant has no plans to commit any terrorist act in Australia can hardly be stated to be exceptional. There was no submission suggesting this fact alone could amount to an exceptional circumstance.

52 The next issue concerns the fact that the applicant has been placed in a protection unit. The evidence shows that there is a direct relationship between the charge and his housing at this location. It must follow that this fact, of itself, cannot be exceptional for the charge in question.

53 The final matter concerns the current particulars of the charge. As a result of the cross-examination of the informant, the prosecution acknowledged that the charge would need to be amended. Shortly after the hearing, the court was informed the prosecution intends to amend the charge against the applicant at the next hearing of this matter in the Magistrates' Court, being the committal mention on 20 February 2017.[19] The proposed amended charge reads as follows:

That between the 5th day of May 2016 and the 10th day of May 2016, Murat KAYA engaged in conduct, within Australia, preparatory to the commission of an offence against s 119.1 of the Criminal Code (Cth), namely the purchase of a motor vehicle, boat and trailer for the purpose of persons undertaking travel to Northern Queensland in order that those persons enter a foreign country with the intention of engaging in a hostile activity in a foreign country, contrary to s 119.4(1) of the Criminal Code (Cth).

54 Plainly, such a charge is consistent with the intention of the other co-accused to travel to the Philippines and the applicant's alleged involvement. Having read the evidence relied upon, and exercising due caution about commenting on the strength of the case on this application, it presently appears that the Crown's case is not a weak case.

55 In summary, each of the individual matters referred to above is not an exceptional circumstance. Further, in my opinion, when viewed collectively they do not amount to exceptional circumstances. In other words, having been charged under the relevant provisions of the Criminal Code with a terrorism offence, the position the applicant now finds himself in cannot be considered exceptional. Thus, the applicant has failed to discharge the onus established by s 15AA of the Crimes Act.

56 In light of the findings above concerning exceptional circumstances, it is unnecessary to consider whether the applicant presents an unacceptable risk. For completeness, the following brief observations are made.

57 I refer to the comments above concerning the strength of the Crown's case.[20] Speaking generally, the nature of the charge, when properly made on substantial evidence, would ordinarily mean the relevant circumstances of the alleged offending are likely to be attended with significant risk with respect to the safety or welfare of members of the public.

58 As to the particular circumstances of this case, again, it is not appropriate to go into the detail of the evidence. It is sufficient to state that the evidence of the applicant and his wife, together with their child, intending to depart Australia earlier this year with no plans of return, in the context of the other evidence before the court, demonstrates there is an unacceptable risk that, if bail were granted, the applicant would fail to surrender himself into custody in answer to his bail.

59 Further, given the alleged stated desires of the applicant and his association with Islamic State, even though there is no evidence of any previous intention to cause harm to anyone in Australia, in my view, the evidence when looked at as a whole demonstrates there is an unacceptable risk that if bail were granted the applicant would commit an offence whilst on bail, or endanger the safety or welfare of members of the public.

60 Accordingly, the application for bail is refused.

[2] Paragraph 4. The preamble to the Statement of Facts includes: "This statement has been prepared as a guide only. It does not purport to summarise all the relevant evidence in the case. It is provided as an aid and does not form part of the evidence in the hand-up brief".

[3] Sections 119.1 and 119.4 are located in Part 5.5 of the Schedule of the Criminal Code Act 1995 (Cth). Section 15AA(1) of the Crimes Act provides that offences covered by subs (2) are governed by the "exceptional circumstances" threshold. The charge is covered by subs (2)(a), by reason that the alleged offence is a "terrorism offence", as defined in s 3 of the Crimes Act.

[4] Bail Act, s 4(2)(d)(i).

[5] Hijrah is a reference to the flight of Mohammed from persecution in Mecca to his successes in Medina: Macquarie Dictionary (5th ed), 779.8, col 1.

[6] Only the woman's first name was used during the conversation.

[8] It is not clear from the photograph tendered whether there is 1 or 2 of these flags on display.

[9] On the possibility that bail might be granted, the Crown was invited to suggest any further conditions, but no additional conditions were put forward.

[10] Director of Public Prosecutions v Cozzi [2005] VSC 195; (2005) 12 VR 211, 215 [19] (Coldrey J), citing Re Bail Application by Moloney (unreported, 31 October 1990, Vincent J); Re Whiteside [1999] VSC 413, [10], [11], [13] (Warren J). For a more recent summary of the relevant authorities see R v NK [2016] NSWSC 498, [26] (Hall J).

[11] See, for example, Cox v The Queen [2003] VSC 245, [15]-[20] (Redlich J), and the cases there cited.

[12] Raad v Director of Public Prosecutions [2007] VSC 330, [13] (Bongiorno J).

[13] This fact was also acknowledged by the applicant's senior counsel in submissions.

[14] Of course, any further delay or evidence of likely delay beyond what is presently anticipated may give a proper basis for a further application for bail.

[15] Cf Raad v Director of Public Prosecutions [2007] VSC 330, [14] (Bongiorno J). See also Gray v Director of Public Prosecutions [2008] VSC 4, [11]-[12] (Bongiorno J).

[16] [2006] VSC 441 (Hollingworth J).

[19] The Magistrates' Court has power to amend charges that are defective in substance or form: Criminal Procedure Act 2009 (Vic), s 8; cf Magistrates' Court Act 1989 (Vic), s 50. The charge is for a Commonwealth offence, but these provisions apply by operation of the Judiciary Act 1903 (Cth), s 79(1); see also s 68(1).