Atwani v Commissioner of Police [2020] QSC 123

Commonwealth Director of Public Prosecutions for the respondent

[1] Mr Atwani seeks a review of a decision in which he was refused bail. The central question to be determined is whether he has demonstrated the "exceptional circumstances" needed before bail may be granted.

[2] In these circumstances, if a court is satisfied that exceptional circumstances exist, then Mr Atwani has a prima facie right to bail unless the prosecuting authority demonstrates that there is an unacceptable risk of the kind mentioned in s 16(1)(a) of the Bail Act 1980 (Qld) or that he should remain in custody for his own protection.

[3] Mr Atwani is charged with attempting to provide support or resources to a terrorist organisation. The offence has a maximum penalty of 25 years imprisonment.

[4] Section 102.7 of the Criminal Code provides:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

(b) the organisation is a terrorist organisation; and

(c) the person knows the organisation is a terrorist organisation."

[5] Section 11.1(1) of the Criminal Code provides: "A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed."

[6] The prosecution case is that Mr Atwani attempted to provide support or resources namely some Sony Vegas video editing software to the terrorist organisation Islamic State. It is alleged that:

(a) in 2014 the applicant's brother joined Islamic State and was to commence work in that body's media unit,

(c) in October and November 2014, there were extensive communications between Mr Atwani and his brother arranging for the provision of the Sony Vegas editing software to Islamic State and, in particular, to their media unit where the brother was to commence work and which would assist Islamic State to create propaganda videos.

[7] The prosecution alleges that each of the acts relied upon for the commission of the offence were committed by Mr Atwani in New South Wales thus, any trial of these allegations must take place in New South Wales.[1]

[8] Mr Atwani moved to Queensland after the time during which he is alleged to have committed the offence. On 21 May 2019, he was charged with the offence in Queensland and was remanded in custody.

[9] On 2 April 2020, after having been in custody for 316 days, he was admitted to bail subject to strict conditions including the wearing of a tracking device, residential and reporting conditions, and a curfew condition.

[10] Deputy Chief Magistrate Brassington heard the application for bail and determined that she was satisfied both that exceptional circumstances existed and as to the criteria referred to in s 16 of the Bail Act 1980 (Qld). The factors which she nominated as establishing exceptional circumstances included:

(c) that he could live with his parents and siblings,

(e) the delay which had occurred in his being charged with the offence and that the authorities were aware of the matter during at least part of that time,

(g) the very real prospect of significant delay in the matter being heard.

[11] The prosecutor told the Deputy Chief Magistrate that it intended to discontinue the proceedings in Queensland once the applicant had appeared in a New South Wales court and an order was made to progress the proceedings.

[12] On 9 April 2020, a court attendance notice was filed in New South Wales and a warrant issued for Mr Atwani's arrest with respect to the same charge under s 102.7(1) and s 11.1(1) of the Criminal Code (Cth).

[13] On that evening, he was arrested by Australian Federal Police Officers at his home in Brisbane pursuant to s 82(1) of the Service and Execution of Process Act 1992 (Cth) (SEOPA).

[14] Two days later, he was taken before a magistrate in Brisbane for the purposes of an extradition hearing order pursuant to s 83 of the SEOPA. The hearing was adjourned to 14 April 2020 and Mr Atwani was granted bail for that purpose. Deputy Chief Magistrate Brassington conducted the hearing on 14 April 2020. Her Honour ordered that, under s 83(8)(b) of the SEOPA, Mr Atwani be taken into custody and taken to the Central Local Court in Sydney. Shortly after that order was made, Mr Atwani applied to this court for a review of that order. He also applied for, and was granted, a suspension of the order that he be taken to the Central Local Court in custody and he was granted bail pending the outcome of the review in this court.

[15] Mr Atwani seeks a review of the decision made on 14 April pursuant to s 86 of the SEOPA. So far as is relevant, that section provides:

(1) If an order has been made under section 83, the apprehended person or a person to whom the warrant was directed may apply to the Supreme Court of the State in which the order was made for review of the order.

(8) The Supreme Court may confirm, vary or revoke the order.

(9) If the order is revoked, the Supreme Court may make a new order.

(14) For the purposes of a review under this section, the Supreme Court of a State is not bound by the rules of evidence."

[16] It was submitted for the applicant that in a review of this nature, that is, a review by way of rehearing, the applicant was not required to demonstrate error on the part of the court which had originally refused bail. For the purposes of this application, I am content to agree with the contrary view expressed by Murray J in Lavelle v Commissioner of Police[2] where he said:

"The power of review by the Supreme Court of the State in which the order for extradition has been made is provided in s 86(1). Under s 86(7) the review is to be by way of rehearing. I see no reason to suppose that the use of the term 'rehearing' carries in this context any different connotation from that which would normally be applied to a review of an administrative decision by way of rehearing. Although the reviewing court may have conferred upon it a power to receive new or fresh evidence, essentially the review will be by way of a reconsideration of the materials before the court below and a hearing de novo will not be conducted. It will be for the applicant for a review to show error on the part of the court below or that its decision is insupportable having regard to the new evidence properly admitted before the reviewing court: see generally Bradshaw v Medical Board (WA) (1990) 3 WAR 322. Under s 86(8) and (9), the Supreme Court may confirm, vary or revoke the order and if it takes the last-mentioned course it may make a new order within the powers of the court below." (emphasis added)

[17] The applicant argued that the evidence before the magistrate demonstrated that exceptional circumstances existed and that a failure to find that they existed amounted to an error sufficient to allow for a review.

[18] Because Mr Atwani has been charged with a terrorism offence as defined in the Crimes Act 1914, he is subject to s 15AA(1) of that Act. It provides:

"Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail."

[19] The phrase "exceptional circumstances" is not defined. A useful summary of the basic principles can be found in AB v R:[3]

(i) The section creates a rebuttal presumption against bail being granted but does not prohibit bail.

(ii) The presumption is only rebutted if the applicant establishes that exceptional circumstances exist to justify bail.

(iii) The word "exceptional" imposes a high test/extremely high hurdle.

(iv) The concept of exceptional circumstances is nonetheless flexible and may be constituted by a combination of matters taken together.

(v) The combination of features may include features that are subjective to the applicant; features which bear on the nature of the alleged offence and whether the applicant will answer bail."

[20] Those principles were drawn from the examination of the case law undertaken by Hall J in R v NK:[4]

(1) Section 15AA of the Crimes Act 1914 has been said to enact a rebuttable presumption against bail being granted to a person charged with a terrorism offence: Hammoud v DPP [2006] VSC 516 per Bongiorno J at [1].

(2) Section 15AA of the Crimes Act 1914 prevents the court from granting bail unless it is satisfied that exceptional circumstances exist to justify bail. While such a provision requires the applicant to satisfy the court, it does not prohibit bail in all cases. I has been observed that each application for bail, even under these provisions:

"... must be so dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances do alter cases and that it is rarely, if ever, that a simple, not to say a simplistic one size fits all approach, will be the best way of achieving a just individual result": Regina v Mirsad Mulahalilovic 2006/763, 1 August 2006, per Rothman J quoting dicta in R v Newbury, Sully J, NSWSC, 27 January 2006, unreported)

(3) In Hammoud v DPP, supra, it was observed that as the "presumption" referred to in (1) above is rebutted only if exceptional circumstances exist to justify bail, the onus is upon an applicant to satisfy the Court affirmatively that such circumstances exist: at [2].

(4) Section 15AA sets an extremely high hurdle. The requirement for exceptional circumstances imposes a high test.

(5) The word "exceptional" has received judicial attention in many cases. What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective "exceptional": Hammoud v DPP at [3].

(6) The concept of exceptional circumstances is necessarily a flexible one. Such circumstances may be constituted by a combination of matters which taken together may render the case exceptional: Haddara v Commonwealth DPP [2006] VSC 8 at [5] per Osborn J and R v Young [2006] NSWSC 1499 at [19] and [20] per Johnson J (as to s 9C of the Bail Act 1978).

(7) Exceptional circumstances is a threshold issue that requires a case-by-case examination and that there is no definitive definition that would apply to all cases: R v Maywand Osman 2015/12786, 12 February 2015 at p 6 per Hall J.

(8) In considering the issue of exceptional circumstances, not only can a combination of matters constitute such features but they can include features that are subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise, absent the particular test, that the applicant is otherwise a person who will answer bail: R v Mulvihill [2013] NSWSC 1190 at [10] and [11] per Price J."

[21] It is not possible to provide an exhaustive definition of what might constitute exceptional circumstances. The myriad of differences that can occur from one case to another depend upon: the nature of the offence charged, the strength of the case, the circumstances on remand, the age of the applicant for bail, the applicant's criminal history and other factors are matters that can be taken into account. Matters which, by themselves, do not amount to an exceptional circumstance may, in combination with other matters, create such an exceptional circumstance. It is fair to say that an applicant needs to demonstrate circumstances that are unusual or uncommon.[5]

Did the applicant demonstrate "exceptional circumstances" before the magistrate or in this court?

[22] The Deputy Chief Magistrate said that she was satisfied that, on this application, exceptional circumstances were not shown. I have summarised above the matters which had led her Honour to grant bail on the first occasion.

[23] In considering the second application her Honour said:

"What I found was a very real prospect of significant delay - and this was based on the fact that although a lot of what is going to occur in the next few months because of the COVID-19 virus, one issue was that already there was likely to be significant delay in jury trials because ... trials have been suspended, I believe, since an early or mid-March, ... obviously New South Wales may well be similar, but in Queensland they've been suspended since mid-March and it was not a matter of speculation that there is inevitably would be some delay, and that there was going to be an extremely owner's circumstances of incarceration beyond the norm because of that delay. There was a very strong likelihood that physical contact with his family and lawyers would be prevented for a significant period of time, and that the other aspect that there was some concern about his own personal safety ongoing because of his own period of time where he was actually a recruit in the Queensland Police Service."[6]

[24] Her Honour went on to say that the particular combination of circumstances had, on the first occasion satisfied her that exceptional circumstances had been demonstrated. She reiterated that one of the issues at that time was the harshness of the extended period of incarceration that Mr Atwani might suffer because of the deprivation of personal contact with his family and also in preparing his defence. She went on to say:

"I am satisfied that the issues before me today are different. The issue is the timeframe involved here between the grant of the extradition and the appearance in the Local Court is of a very short duration."[7]

[25] Her Honour dealt with the issues concerning the prospect of electronic monitoring being able to continue and said:

"Nevertheless there's some difficulty in imposing conditions of significant severity as the ones presently in place to be in force when the period of time, the method of time and the method of transport into New South Wales, the place of accommodation in New South Wales and the return is completely unknown to the court. We can place the time and date and get permission, but in reality the time to travel by - from Brisbane and [by] what means, again, is not clear, and it's very difficult then to fashion conditions to the significant severity that they are presently in place, including curfew and the associations that may take place."[8]

[26] The Deputy Chief Magistrate based her decision upon the change in circumstances in which Mr Atwani found himself. When bail was originally granted there was considerable uncertainty about the time which might elapse before a trial could be held. Further uncertainty was created by the fact that any trial would need to take place in New South Wales. That the trial needed to be held in that State was known at that time. As no charge had been proffered in New South Wales at that time, no extradition proceedings could have been undertaken. The major change between the original grant of bail and the revocation was, as Her Honour correctly identified, that the extradition would result in Mr Atwani appearing before the Local Court in New South Wales at which time that court would have jurisdiction with respect to any application for bail. In other words, the circumstances which tipped the balance originally - the uncertainty as to when a trial might be conducted - no longer existed because the matter would be subject to proceedings and reconsideration in another jurisdiction.

[27] This was a relevant consideration to take into account and no error has been demonstrated in the Deputy Chief Magistrate relying upon it as the factor which determined the decision to revoke bail.

[28] Mr Atwani also argues that the whole of the circumstances that applied on 14 April were sufficient to demonstrate "exceptional circumstances" and that the change relied upon by the Deputy Chief Magistrate was insufficient to justify the refusal of bail.

[29] Ms O'Gorman submitted that the applicant did not need to demonstrate error in the decision below and that the review should be conducted afresh. I do not accept that but, should I be wrong, I will consider that argument.

[30] It was submitted that the necessary exceptional circumstances are demonstrated by the following:

(a) the applicant was 22 years old at the time of the alleged offence, he is now 28, and he has no criminal history,

(b) his response to the investigation by the Australian Federal Police demonstrates that he is not a flight risk - he was interviewed on three occasions between July 2017 and May 2019 - he did not attempt to evade police or flee the jurisdiction in the two years between the first and third interviews,

(c) he was living a stable and settled life in Brisbane and had, at one time, been a recruit in the Queensland Police Service,

(d) he was willing to submit to extensive bail conditions on his application earlier in April and had complied in all respects with them,

(e) the offence with which he is charged is not at the highest end of seriousness for offences of its kind, and

(f) that the alleged offence occurred approximately 5 ½ years ago.

[31] Ms O'Gorman submitted that there was no reason to think other than that the applicant would comply with any requirement to attend court in New South Wales. Further, he could do that without any major alteration to the bail conditions to which he had already been subject. I was told that, even in these times of restricted air travel, it would be possible for him to fly to Sydney in June and, assuming he obtained bail on the same conditions, return to Brisbane the same day.

[32] Putting to one side the decision below, I do not regard the circumstances outlined on behalf of the applicant as being exceptional. Mr Atwani's situation of, among other things, being a young man, with no criminal history, and facing a serious charge is not unusual. He would, on my assessment of the facts, be likely to obtain bail if the "exceptional circumstances" condition did not apply. But it does.

[33] Ms Holliday, who appeared for the respondent, told me that arrangements had been made for Mr Atwani to be taken to Sydney within a matter of days. At the hearing in Sydney it will be that court which has to consider any application for bail with respect to the new charge. Based on what I was told, that will occur within the next week. Thus, the consideration which might, with the other matters personal to the applicant set out above, have constituted exceptional circumstances does not apply.

[34] The applicant has not demonstrated any error on the part of the Deputy Chief Magistrate and, should it not be necessary to demonstrate error, the applicant has not established that exceptional circumstances apply so that a bail order might be made.

[35] The application is dismissed.

[1] Constitution, s 80.

[2] (1994) 72 A Crim R 402 at 406.

[3] [2016] NSWCCA 191 (per Hoeben CJ at CL, Campbell and Button JJ agreeing).

[4] R v NK [2016] NSWSC 498 at 20 [26].

[5] R v Naizmand [2016] NSWSC 836 at [8].

[6] Reasons for judgment of Deputy Chief Magistrate Brassington delivered ex tempore 14 April 2020 ("Decision") at p 2-3.