Solicitors:
Commonwealth Director of Public Prosecutions (Applicant)
Australian Criminal and Family Lawyers (Respondent)
File Number(s): 2021/266193
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law
Citation: Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
Date of Decision: 17 September 2021
Before: Hamill J
File Number(s): 2021/227512
[2]
Judgment
BATHURST CJ: I agree with the orders proposed by Adamson J and with her Honour's reasons. I also agree with the additional reasons of Beech-Jones CJ at CL.
BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Adamson J. Subject to the following five points I agree with her Honour.
First, her Honour has accurately characterised my observations in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [49] which concern the unsatisfactory nature of the present structure of the Bail Act 2013 (NSW) in allowing for de novo reviews in this Court.
Second, the observations of Basten JA in Trinh v R [2016] NSWCCA 110 at [21]-[22] and [29]-[33] that this Court has a broader discretion than that conferred by s 73 of the Bail Act to refuse to hear bail applications are only that; observations. They were not accepted by either McCallum J or Davies J in that case (at [40] and [44]) and have not been accepted by any majority of this Court since. Contrary to his Honour's analysis, the identification in s 73 of particular discretionary reasons to refuse to hear a bail application tells against the existence of a broader discretion. Otherwise, if it was to be suggested that this Court had some "broader discretion" to refuse to hear a release application but was obliged to hear a detention application then that would only compound the unsatisfactory aspects of the Bail Act identified in Mawad.
Third, like Hamill J at first instance, I accept that the Crown case is "reasonably strong" but "far from overwhelming" ([2021] NSWSC 1186 at [22]). However, of most significance is an assessment of the likely sentence if the respondent is convicted. Unlike many if not most other cases involving a charge under s 102.3(1) of the Criminal Code Act 1995 (Cth), in this case the acts taken by the applicant to effect, and in furtherance of, his alleged membership appears to involve nothing more than using his mobile phone in his bedroom. He did not, for example, travel to an airport much less travel overseas and nor did he meet locally with others. At the hearing of this application, it was accepted by the Crown that the objective seriousness of his offending was "probably" less than that of the offender in R v Abdirahman-Khalif (Supreme Court (SA), Peek J, 16 April 2019, unrep) who received a non-parole period of 2 years 3 months.
At the present, the brief of evidence against the respondent is still being compiled. It seems likely that the respondent will not be arraigned in the District Court until, at the earliest, the first quarter of 2022 and any trial would not likely to be completed until, at the earliest, the first quarter of 2023. Hence it is very likely that the respondent will serve a very significant proportion, if not all, of the likely non-parole period prior to being sentenced. Further, any such pre-trial custody will be served in the High-Risk Management Centre at Goulburn. Thus, his conditions of custody will be both more difficult than other prisoners and carry with it a risk that he will become radicalised or radicalised into action. For these reasons I consider that exceptional circumstances were established within the meaning of s 15AA of the Crimes Act 1914 (Cth).
Fourth, of the various bail risks the most significant was the risk of the commission of a serious offence or endangering the safety of the community (Bail Act, s 17(2)(b) and (c)). In essence the Crown contended that the material it relied on raised a risk that he might commit a terrorism offence. A risk of the commission of such an offence does not have to be very high for it to be unacceptable. Nevertheless, for the reasons given by Adamson J, I am satisfied that this risk is addressed. In that regard I note that it was accepted by the Crown that the Court could infer the Respondent was under some form of continual surveillance between 2018 and 2021. There is no suggestion in the material that his arrest in June 2021 was prompted by any particular concern that he was planning any form of terrorist act. If it had been then the charges laid would have reflected that.
Fifth, some of the material relied on by the Crown before Hamill J and tendered on this application concerned the supposed inadequacy of electronic monitoring and the resourcing problem it represents for the Australian Federal Police ("AFP"). In that regard I repeat what I stated in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [26] to [44]. In particular, both the principles of equal justice and s 68 of the Judiciary Act 1903 (Cth) contemplate that, absent specific legislative provision to the contrary, if a person charged with a State offence can be released on bail and subject to electronic monitoring then so should a person charged with a comparable Federal offence (at [40]). Further the costs incurred by the AFP in monitoring a person on bail is simply part of the obligations that an investigative body assumes when it causes charges to be laid in this State (at [41]).
Otherwise, it can be accepted that electronic monitoring is not foolproof and is unlikely to be of much assistance in preventing some types of spontaneous nihilistic terrorist attacks (AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042). However, if electronic monitoring is of no assistance in monitoring terrorism suspects, then it is difficult to reconcile with the Criminal Code. One of the conditions that can be imposed on a person the subject of a control order under Division 104 of the Criminal Code is the "requirement that the person wear a tracking device" (s 104.5(3)(d)). Control orders are supervised by the AFP. The same requirements can be imposed under the Terrorism (High Risk Offenders) Act 2017 (NSW) (s 29(1)(h)) and frequently are. They are commonly imposed under the Crimes (High Risk Offenders) Act 2006 (NSW) (s 11(1)(e)). At some point, the courts are entitled to receive some consistency in the approach taken by the various agencies to electronic monitoring as it applies to pre and post-conviction supervision.
ADAMSON J: By application filed on 17 September 2021, the Commonwealth Director of Public Prosecutions (the DPP) applies pursuant to ss 50 and 67(1)(e) of the Bail Act 2013 (NSW) (the Act) for the detention of Joseph Saadieh (the respondent) who was granted conditional bail by Hamill J (the primary judge) on 17 September 2021: Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186. The primary judge's orders were stayed until 4pm on 24 September 2021, being the day on which the DPP's detention application was listed for hearing before this Court. This Court extended the stay until delivery of judgment which was listed at 2.15pm on 27 September 2021.
This Court has jurisdiction to hear the application as the bail decision was made by the Supreme Court: s 67(1)(e) of the Act. There is no requirement that error in the grant of bail be shown as the detention application is to be dealt with "as a new hearing" and "evidence or information may be given in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision": s 75 of the Act. In determining this application, this Court may have regard to the findings of the primary judge: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 (Mawad) at [8] (Beech-Jones J, Adams J agreeing at [5]).
The DPP has adduced further evidence in this Court, which was not available to the primary judge, the significance of which will be addressed below. Although the DPP is the applicant in this Court, reference will also be made to the Crown since many of the submissions related to the strength of the Crown case.
The respondent is 24 years old. On 18 June 2021, he was arrested and charged with a terrorism offence: being a member of a terrorist organisation, the Islamic State of Iraq and Syria (ISIS), which is also known as Islamic State of Iraq and the Levant (ISIL) (both will be referred to as Islamic State), for a period from 12 June 2018 until 18 June 2021, contrary to s 102.3(1) of the Criminal Code Act 1995 (Cth) (the Code). ISIL was originally listed on 14 December 2013. It was subsequently listed as "Islamic State" on 11 July 2014. The maximum penalty for the offence is 10 years' imprisonment.
In order to prove the elements of the offence, it will be necessary for the Crown to prove, first, that the respondent was, during the charge period, intentionally a member of Islamic State; second, that Islamic State is a terrorist organisation; and, third, that the respondent knew that Islamic State is a terrorist organisation: s 102.3(1) of the Code; see also the summary of the elements in The Queen v Abdiraham-Khalif [2020] HCA 36; (2020) 283 A Crim R 272 at [86]-[87] (Gageler J, whose dissent as to the outcome did not affect this analysis).
Mr Samin, who appeared on behalf of the respondent, accepted, for the purposes of the detention application, that only the first (intentional membership) is in issue. Section 102.1 of the Code defines "member" as follows:
"'member' of an organisation includes:
(a) a person who is an informal member of the organisation; and
(b) a person who has taken steps to become a member of the organisation; and
(c) in the case of an organisation that is a body corporate--a director or an officer of the body corporate."
It would appear from the following passage at [65] of the DPP's submissions in this Court that the Crown will rely on both (a) and (b) to satisfy the definition:
"As noted above the definition of a 'member' of an organisation includes a person who is an informal member and a person who has taken to steps to become a member. The prosecution will rely on the following as evidence that the Respondent had intentionally taken steps to become a member of ISIS:
a. The Respondent['s] possession and accessing material promoting ISIS and violent extremism and jihad.
b. The Respondent's association with persons who have advocated support for ISIS, violent extremism and/or terrorist acts.
c. The swearing of bay'ah [allegiance].
d. Expressing support for ISIS and violent jihad including by listening to extremis[t] nasheeds produced by ISIS and the possession of information showing ingredients and recipes to make explosive material capable of inflicting mass death and injury."
[Footnotes omitted.]
It would appear that a, b and d above are common ground since the defence case, in so far as it is apparent from the evidence before the primary judge and this Court, would appear to be that, although the respondent was interested in Islamic State (and had material on his mobile devices relating to Islamic State, including with respect to the making of bombs), he was not a member, did not hold violent extremist ideologies and, indeed, his conduct as a Muslim was both inconsistent and antithetical to violent jihad or membership of Islamic State.
There is a significant dispute about the meaning and significance of the swearing of Bay'ah (an Arabic word which, when transliterated into English is also spelled "Bayah", "Baya" and "Bay'a"), including whether the respondent actually swore Bay'ah, and to whom. The Crown case at trial will include evidence from Dr Rodger Shanahan, an expert in Islam, whose opinion will be relied on to establish the meaning of particular words and expressions used in the material referred to above. Of present relevance, Dr Shanahan opined as to the giving of Bay'ah as follows:
"(a) 5.1 Pledge of allegiance (bayah): A pledge of allegiance that is a traditional tribal Muslim way of giving fealty to a leader. There is an argument that the bay'ah is in effect a verbal contract between the commander and the commanded and that in the case of giving bay'ah to a caliph, such loyalty was unrestricted and covered all aspects of political, military and social life. There are a range of references to it in Islamic State publications
(b) Islamic State urged its followers to pledge their allegiance to its leader - '... try in your location to organize bay'ah to the Khalifah Ibrahim (Abu Bakr al- Baghdadi). Publicize them as much as possible. Gather people in the masajid, Islamic centers, and Islamic organizations...and make public announcements of bay'ah. Try to record these bay'ah and then distribute them through all forms of media including the Internet."
In support of his bail application before the primary judge, the respondent relied on evidence of Mr Wesam Charkawi, a specialist in Islam, which countered that of Dr Shanahan. Mr Charkawi explained that giving Bay'ah is not necessarily associated with Islamic State or violent jihad and said:
"One of the most commonly held usages of the word Bay'a in modern day is Bay'a in the spiritual sense. This is when one pledges a commitment to a teacher to help them overcome their own shortcomings and attain virtual traits. Bay'a can be given to five types of people and while it is correct that one of the types of Bay'a can be given to a Muslim leader, it is not absolute if what is requested amounts to contravention of the Sacred Laws of Islam.
Further, Bay'a is traditionally given when one places their hand in the hand of the one, they are giving Bay'a to or through clear verbal expression.
Bay'a in Islam has multiple definitions and does not necessarily connote to membership or total allegiance. For example, giving Bay'a to a spiritual person simply means that the person one is pledging allegiance to, is merely a guide for self-betterment in spiritual matters having nothing to do with land, physical actions or violence. In the time of the Prophet Muhammad …, for example, women gave Bay'a to the Prophet, but this did not involve an allegiance to take up arms.
There is another central detail to note here. Bay'a in Islam is considered a meritorious act in line with the Prophetic tradition of Islam. Being infatuated with the idea of Bay'a does not amount to Bay'a and neither does desiring the act of Bay'a. There is no question that the idea of 'belonging' is vital for any human being. Feeling isolated (as was the case here) and feeling the need to belong does not mean one has given Bay'a because they have claimed so. This is not how Bay'a occurs although it is understood that many desire the sound form of Bay'a."
Although the DPP did not accept that, if the Crown could not prove c. above (swearing of Bay'ah), it would not be able to prove the offence, I understood the DPP to accept that the proposition that the respondent had sworn Bay'ah was an important part of the Crown case. Indeed, it would be reasonable to infer that the Crown would also need to prove that the respondent had sworn Bay'ah to Islamic State or someone associated with Islamic State (and not merely to an Islamic religious leader) since this appears to be the basis of its case on intentional membership.
The Crown case against the respondent (as set out in the Crown's Statement of Facts) is based on the Australian Federal Police's (AFP) surveillance of the respondent for the approximately three-year period from June 2018 until his arrest in June 2021. The full nature and extent of the surveillance does not appear from the evidence. Nonetheless, it can reasonably be inferred that the methods used to conduct the surveillance comprised listening devices, as well as, potentially, tracking and optical surveillance devices, search warrants (including covert searches) and telephone intercepts. For example, the Crown case included material that showed (from allegedly "LOI", lawfully obtained information) that, on 27 February 2021, the respondent was recorded in his car driving around the Holocaust Memorial and the Jewish and Christian sections at Rookwood Cemetery while stating "hellfire for all of you".
The Crown case is largely circumstantial and is based, in large measure, on content located on the respondent's devices. At the time of his arrest, the respondent had three mobile phones in his possession: a Samsung S4 mobile phone; a Samsung S9 mobile phone, and a Samsung Galaxy S20 mobile phone on which the Telegram application (a highly encrypted application) had been downloaded. The Crown also relies on alleged admissions made by the respondent. The material said to be incriminating was principally contained on the Samsung Galaxy S20 mobile phone as well as the following items which were found on a USB stick in the respondent's possession, which specifically refer to, or are associated with Islamic State: Dabiq magazines (propaganda published by Islamic State); sermons given by Anwar Al Awlaki (a radical Islamic cleric associated with Islamic State who was killed by a US drone in 2011); material produced by Hayat Media Centre (a media outlet for Islamic State), which included praise for previous terror attacks and encouragement for further attacks; and certain Anasheed (traditional chants or musical forms of Arabic poetry, some of which have been used by Islamic State to promote violent jihad) specific to Islamic State.
The material seized also includes a photo of the respondent using the "one finger gesture". Mr Charkawi said that the "one figure gesture" was a common Islamic symbol referring to oneness (which he likened to the Christian sign of the cross) but that it had been appropriated by Islamic State. He opined that its use depended on context and it could not be inferred from its use that the person using the gesture was an adherent of Islamic State. Mr Charkawi also explained that in 2018 many young Muslims (and others) around the world were observing the events in Syria and, in particular, the atrocities committed against Muslims there, including by President al-Assad.
The material located on the respondent's devices included 26 files which related to explosives, including instructions on how to make a bomb. According to the Crown's Statement of Facts, on 27 February 2021, the Joint Counter Terrorism Team (JCTT), being a combined force involving AFP agents and police officers from the NSW Police Force, executed a delayed notification search warrant on the respondent's vehicle. In the course of executing the warrant, the JCTT located a USB stick in the respondent's satchel, which was partially copied before being returned to its original location to avoid the respondent becoming aware of the intervention.
The evidence showed that the respondent took screenshots of posts made on Instagram, which included formula and written and photographic instructions for making bombs. Included in the material found on the USB stick was the following (as described in the Crown's Statement of Facts):
"Screenshots from the Accused's Telegram application and internet site 'Vindictive Vampire'. The screenshots detail specific ingredients and recipes to make explosive material capable of inflicting death and destroying property. These recipes include, [descriptions of various chemical compounds]. JCTT expert analysis of the ingredients and recipes has concluded all processes contained within the images are generally viable, with the exception of [once chemical compound] recipe, which would not form [the one chemical compound]. All of these recipes were described as being able to be manufactured with little knowledge of chemistry or explosives. Additionally, all precursor materials are generally available in Australia;
(Telegram has access to a large number of IS mirror channels that are accessible through the app and IS use this to disseminate their news feed)."
Although these screenshots were in evidence before the primary judge, it was only after the hearing before the primary judge that the JCTT's analysis established that screenshots relating to bomb-making were taken on 25 March 2021. The DPP placed significance on this date in this Court in support of its contention that the respondent posed a risk of committing a serious offence if not detained and that his connection with Islamic State was "escalating".
Mr Charkawi said of the items found on the respondent's USB:
"I however do not agree that the possession of these items is conclusive that a person is a member of ISIS or that they hold violent extremist ideology. Particularly in 2018, these items became very common amongst young Muslim men as propaganda material was passed around trying to target Muslim youth."
The Crown will rely at trial (and the DPP relied on it for the purposes of the bail application) on the following passage reproduced in the Crown's Statement of Facts from a text conversation between the respondent and a person identified as "Slow Reaction", which occurred on 2 October 2018, as an admission of the charge:
"ACCUSED: No. But if you attack Dawla. I take offence to it. In fact. I take more offence to it if one claims to be a muwahid (monothesist) and hates them, before one doesn't even claim such and hates them.
ACCUSED: Don't dare speak a word against them.
…
ACCUSED: You don't know how much I love them.
…
ACCUSED: As for you, if you die, then prepare yourself to reason with why you have not gave bay'a! (Pledge of allegiance)
ACCUSED: The prophet (foreign) said that the one who dies without giving bay'a dies a death of Jahiliyali (ignorance).
…
ACCUSED: You don't need a reason to give Bay'a. It's the opposite. You need one to revoke it but you still haven't given bay'a therefore your in the wrong.
SLOW REACTION: Subhan allah. You need the imam to full fill the conditions of imammah.
ACCUSED: WHERE IS YOUR PROOF IT IS NOT A VALID IMAMAH (leadership).
SLOW REACTION: Subhan Allah. You claim he is a valid Imamah the proof is on your neck.
SLOW REACTION: Give me an example of a similar khilaf like dubahi from the history of islmn.
SLOW REACTION: Islam*
SLOW REACTION: My brother it is getting late.
ACCUSED: No. Your mistaken again. He claimed it. I gave Bay'a. the proof is on you for rejecting bay'a to the imamah.
ACCUSED: Not me.
SLOW REACTION: Insh allah we will talk tomorrow.
ACCUSED: Nope.
(Further conversation continues in reference to the above)
ACCUSED: You know I am with this group of brothers.
ACCUSED: We have events and stuff.
SLOW REACTION: My love for you is not diminished.
ACCUSED: But the thing is I will not let you join.
SLOW REACTION: Insh allah its fine.
ACCUSED: Cause if I do they will make beef with me.
ACCUSED: Cause they all support Dawla (state)."
[Emphasis added.]
The DPP's counsel informed the Court that the words in parenthesis were added by those analysing the conversations and did not appear in the original. Thus, the word "foreign" in the fifth entry above after the word "prophet" signified that there was a foreign word after "prophet" which had not yet been translated. In these circumstances, no assumption can be made about the identity of the prophet or the provenance or antiquity of the principle cited by the respondent (that if you die without giving Bay'ah, you die a death of ignorance). I infer from this exchange that the respondent and Slow Reaction were debating aspects of Islam, including what Bay'ah meant and its effect.
Mr Charkawi said of the conversation between the respondent and Slow Reaction:
"It is also important to contextualise this conversation to the time in which it occurred. In 2018, these were very common discussions that were taking place amongst young Muslims, and it was common for me to be engaged by young Muslims in these conversations. The year 2018 was a height of ISIS propaganda."
A few weeks after this conversation, in late October 2018, the respondent engaged in a WhatsApp group conversation in which he described an altercation with his parents in the following terms:
"Today I made takfir (charging with disbelief) on my mother and father … for making mockery of deen (religion) … May Allah guide them … I bursted shouting at them both … My mum hit me and this time I stood my ground and told her '(don't hit me) kill me!' … Then she said enough and I said 'No it's not enough' … She then said im a taghiyah (tyrant) and I love taghut (tyrants) … and I said 'And I do not love you' … Then she told 2 of my aunties in the park that I'm a daeshi … Then I got into an argument with them too."
[Emphasis added.]
The DPP submitted that "daeshi" meant member of Islamic State and that because the respondent told others that his mother had told his aunts that she considered that he was a "daeshi", he was actually a member of Islamic State. I would infer from the WhatsApp message that there was conflict between the respondent on the one hand, and his parents and two of his aunts on the other, about Islam and what was required of Muslims. There are several difficulties with the inference for which the DPP contended. First, the evidence indicated that the word "daeshi" can mean either a supporter of Islamic State (which, without more, would not be sufficient to make out the offence charged) or a member of Islamic State. Second, the evidence would not appear to amount to an admission by the respondent, nor to be otherwise admissible, as it is a least secondary hearsay. At its highest, it would appear to amount to no more than a complaint (or boast) by the respondent that his mother was upset with him because she thought he supported Islamic State.
[3]
Further evidence adduced in support of the detention application
At the time of the bail application before the primary judge, the AFP had not yet completed its analysis of the material on the devices associated with the respondent. In support of her detention application, the DPP also relied on a further extended conversation by text which occurred from 10 April 2021 to 11 June 2021 between the respondent and "EliseNew", who lives in the United Kingdom and whom the respondent came to know through social media. The conversation comprises 1685 individual text messages between the two. Another male was party to the conversation although he did not play an active part. The Crown indicated that the third person would appear to have acted as a chaperone for the interactions between the respondent and EliseNew. In the course of the conversation, the respondent and EliseNew discussed their feelings for each other (and whether they wish to marry); whether the respondent planned to have a second wife; how EliseNew would travel to Australia given the restrictions as a result of the COVID-19 pandemic and her disinclination to be vaccinated; what the attitude of their parents was likely to be; their previous relationships; television series and movies (including Cars 2) which they had watched; the importance of physical attraction; and the relationship between the respondent's parents. The respondent also sent at least one nasheed (religious chant) to EliseNew.
In the context of a discussion on 19 April 2021 about the relationship between the respondent's parents, the respondent told EliseNew that his father told him that he was a "good boy [b]ecause if [he] had [the respondent's] looks when [he] was [his] age [he] would've been doing very bad things." The respondent further clarified this in a subsequent message and said, "I know he said it as a joke though because my mother was the first woman he was with." EliseNew responded:
"I don't want you to do it because I want that or because I ask."
The conversation continued on 19 April 2021:
"[ACCUSED]: Because, like I said, there's a hikmah of my own behind doing it. And this, I will never tell you unless if I marry you, and this, I can never tell you online.
[ACCUSED]: I have a plan for Allah's sake
[ACCUSED]: Huge plan
EliseNew: I know you want to get involved in da'wah, and scale up what you are doing in shaa Allah"
[Emphasis added.]
The Crown relied on the extract in which the respondent referred to a "huge plan" as indicating that there was a risk that if the respondent were to be released on bail, he would commit a serious offence, which might endanger the safety of individuals or the community. The defence case would appear to be that the reference to "huge plan" was either a reference to matters of emotional consequence in the context of a discussion about marriage with EliseNew or that it was so oblique that no conclusion could be drawn about what the respondent had in mind when he said he had a "huge plan".
The conversation then turned to baby photos which they shared, following which the respondent asked her whether she had a particular nasheed, which he then sent to her. Subsequently they joked about how fast the respondent could run, to which he replied, also on 19 April 2021, "Well, I go to the gym, I work, I go to uni. I mean, do you really need to know my speed for marriage?" Later that day, they discussed the importance of physical attraction between marriage partners. In an exchange at 3.21am on 30 April 2021, the respondent said:
"My niyyah is to spread da'wah, I have no interest in anyone for marriage but you. And I don't intend to marry any 2nd wife at the moment.
My focus in marriage is you alone. (Just reminding you).
If it works out, there is khayr for us to be together.
If it doesn't work out, there is khayr for us to be separated."
On 17 May 2021, the respondent told EliseNew about being assaulted in a carpark by an "ex-friend", who also slashed one of the tyres of his car. He said:
"I just thought of talking about this to you to confide in you so I feel better. Forgive me if this makes you feel uncomfortable."
The respondent also reported to her: "The end result, the older brother of this brother said he would assure his brother doesn't do such a thing to me anymore, and said not to talk about the incident." As the conversation continued, the respondent said:
"I just want to throw all this behind and forget it, marry and move on with my life
…
I try to mind my own business and I still have trouble coming my way."
The Crown also highlighted the following entry which the respondent sent by text to EliseNew on 17 May 2021:
"@[XXXX], tell your friend @[XXXX] to delete her telegram because she's connected it to her instagram and it's red-hot. Tell her to delete it before she gets arrested."
The Crown contended that this text showed the respondent's acute awareness of the need to ensure the secrecy of certain texts. Having regard to the surveillance being conducted on the respondent at the time, his awareness of the risks associated with police surveillance must be regarded as realistic. The text, in effect, informed EliseNew that she should advise her friend that, by connecting her Telegram account to her Instagram account, she had lost the benefit of encryption. The context does not reveal the basis of the implication that the material on EliseNew's friend's Instagram account was illegal. Nor can any inference be drawn that its illegality was anything to do with Islamic State, since this was not a topic which was discussed between the respondent and EliseNew.
In oral argument, the Crown took the Court to an exchange between the respondent and "EliseNew", which occurred on 21 May 2021, in which she stated that she did not want to raise children "in the west" but added "I know you don't have plans to get out". The respondent replied:
"You're very wrong on the last part. I have plans but certain topics we should not talk about once we have talked about them already because of social security. I thought you came to realise my stance on that but if you want to know more, we can shift to continue [the] conversation on telegram if you desire."
They then discussed the use of Telegram before the applicant states "I am a moderate Muslim, born here and here to stay" which prompted EliseNew to respond with a laughing emoji.
The reference to "social security" in this exchange appears to be a reference to supervision by the security services. This exchange provides some support for the Crown's contention that the respondent concealed his radicalised opinions behind a moderate facade. On the other hand, it also reveals a consciousness (which proved to be correct) as to the extent of the AFP's surveillance of young Muslims such as the respondent in Australia and a desire for privacy from such surveillance. It also suggests that the respondent wants to leave Australia for some other location, presumably where Muslims are in the majority (or, at least, was prepared to say that to EliseNew to further their relationship because that was what she wanted). Beyond that, it does not add to the other exchanges in terms of assessing his risk to the community in this country.
On 3 June 2021, EliseNew sent a message ending the relationship, allegedly because of difficulties with her family, although further texts were exchanged between them up to 11 June 2021.
The Crown alleged that, since 2017, the respondent has been, and continues to be, a "close associate" of several people who have been convicted of terrorism-related offences and who have been identified as having extremist Islamic beliefs, including:
1. Radwan Dakkak, who in December 2020 was arrested and charged with two counts of associating with terrorist organisations contrary to s 102.8 of the Code and who is presently on remand in the Goulburn High Risk Management Unit (Goulburn);
2. Yousef Uweinat, who on 4 December 2019 was arrested and charged with terrorism-related offences, including membership of a terrorist organisation, contrary to s 102.3 of the Code and who is presently on remand in Goulburn;
3. Isaac El-Matari, who, on 2 July 2019, was arrested and charged with doing acts in preparation for a terrorist act contrary to s 101.6 of the Code and membership of a terrorist organisation contrary to s 102.3 of the Code (to which he has pleaded guilty); and
4. Moudasser Taleb, who, on 4 April 2019, was found guilty of preparing for incursions into a foreign country for the purpose of engaging in a hostile activity contrary to s 119.4(4) of the Code and has served his sentence and been released. He attended a restaurant with the respondent on 18 March 2021 and conversed on 21 March 2021 about their phones being "heavily taped". On 16 April 2021, the New South Wales Police located a firearm at Mr Taleb's premises in Bankstown, while executing a firearms prohibition order.
[4]
Other evidence germane to the detention application
The Crown and the respondent tendered evidence before the primary judge, which was before this Court, which can be summarised as follows.
The first tranche of the brief was served on 13 August 2021; the balance is due on 12 November 2021. The matter will be re-mentioned in the Local Court on 26 November 2021 at which time it is expected to proceed in accordance with the Local Court Early Appropriate Guilty Plea (EAGP) process. The respondent is likely to be committed for trial in the District Court in about March 2022, with a trial by about mid-2023. If this broad timetable comes to pass, the respondent is likely to spend approximately 2 years on remand.
The Crown accepted that the respondent's conditions of custody were more onerous as a consequence of the COVID-19 pandemic (including the prohibition on family visits and increased lockdowns within the gaol) but noted that, to date, there have been no positive cases at Goulburn. The respondent suffers from asthma. The Crown accepted that, if the respondent was infected with COVID-19, he would be likely to suffer increased effects of the virus.
The respondent's parents offered to arrange and pay for surveillance through the firm Attenti. The DPP tendered substantial evidence that such surveillance could not be monitored by the AFP (asserting that the AFP lacked resources) and was not regarded by the AFP as being either effective or reliable.
On 12 February 2020, the respondent sought treatment from Mostafa El-Gashingi, psychologist, for anxiety, depression and career issues. He returned for treatment on 11 March 2020, 14 May 2020, 11 June 2020, 11 July 2020, 15 August 2020 and 10 September 2020. At that time, the respondent was in a relationship with a woman called Alaa, who, after ten months, ended the relationship in September 2020 when she formed a relationship with the respondent's best friend. The respondent became stressed and addicted to pornography. His studies in Construction Management at the University of Western Sydney suffered as a consequence. He confided in his mother, who tried to comfort him. The respondent had difficulty focussing on his studies and took up computer games, to which he became addicted. According to the respondent, the treatment from Mr El-Gashingi was effective to help him overcome his addiction to pornography. He also became addicted to Netflix and watched "Zombie and action movies." When asked about other addictions, the respondent did not report any issues relating to extremist material or ideology to Mr El-Gashingi.
The respondent tendered a report dated 6 July 2021 of Sam Borenstein, a clinical psychologist, who assessed him on 5 July 2021, three weeks after his arrest. His history included what is set out above, as well as the respondent's background. He was born in Auburn Hospital, the second child (and eldest son) in a family of six. His older sister is married with two children. There was conflict with his mother because of his relationship with Alaa but he described her as "supportive". Although he proceeded through school until Year 11, he did not get his ATAR because he "lost [his] passion for school." He has not yet completed his degree in Construction Management although he completed a Diploma in Construction Management at Western Sydney College.
The respondent told Mr Borenstein that he began talking to "another woman" (EliseNew), who lived in the United Kingdom, at the beginning of 2021. He said, "we talked for a few months. There were obstacles, and it ended. We thought it best not to continue the relationship." Mr Borenstein assessed the respondent as being "cognitively intact". He found "no indication of serious psychiatric disorder" and described the content and process of the respondent's thoughts as normal. He administered the Personality Assessment Screener, which resulted in a score of 14, which was in the normal range. Mr Borenstein said:
"The only relative elevation of note was on acting out element, confirming [the respondent's] propensity to act impulsively without considering the consequences of his actions, more likely when subject to stress."
Mr Borenstein also reported:
"Results on the Depression Anxiety Stress Scale (DASS 21), confirms moderate symptoms of depression, severe symptoms of anxiety and moderate symptoms of stress. Symptoms include difficulty winding down, finding it difficult to work up the initiative or motivation to do things, worrying about situations in which he might panic and make a fool of himself, ease of agitation, feeling down hearted and blue, and increased personal sensitivity."
[Emphasis in original.]
Mr Borenstein recorded that the respondent "confirmed he researched ISIS, and he denies any intent of joining the organisation or believing in ISIS ideology." He diagnosed chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, warranting ongoing psychological treatment.
Mr Samin read affidavit evidence from the respondent's parents. The respondent's father annexed a copy of a pamphlet which the respondent handed out to members of the public with a view to educating the public about Islam. The headline of the pamphlet read: "Islam is not a religion of extremism". The footer included, in enlarged text, "learn the basics". The pamphlet contained text, which included the following:
"The act of inciting terror in the hearts of defenceless civilians, the wholesale destruction of buildings and properties, the bombing and maiming of innocent men, women and children are all forbidden and detestable acts according to Islam and the Muslims."
The evidence from the respondent's parents set out the lengths to which they proposed to go to ensure that, if granted bail, the respondent would not have access to the internet and would remain under house arrest, unless reporting for bail or attending court. These measures included removing the door to his bedroom so that they could observe him at all times. His father instanced two recent occasions which were relied on to demonstrate that the respondent was neither aggressive nor violent: first, the incident involving the deflation of the tyre to the respondent's car (about which he confided to EliseNew, as referred to above); and, second, an incident in 2020 when the respondent learned that one of their neighbours, who was not a Muslim, was assaulted. The respondent supported the neighbour and regularly checked on him and his family. The respondent's parents also deposed to their own health problems, the respondent's asthmatic condition, and the important role the respondent played in helping them with his siblings. The respondent's father deposed to his concern that the respondent will fall victim to "negative influences" in custody, particularly because of the characteristics of other persons held in custody at Goulburn, who include convicted terrorists.
The material located on the respondent's devices showed that the respondent had made a number of Instagram posts, from his accounts which included an account entitled "grandsonsofthesahabah". The Crown contended that this showed that the respondent had been radicalised. The Crown's Statement of Facts alleges that the phrase "Grandsons of the Sahabah" is a reference to a quote by Osama Bin Laden in 2007, and Abu Bakr al-Baghdadi and that, accordingly, the phrase relates to taking up arms and/or committing terrorist acts.
Mr Charkawi said that the phrase was used in 2013 by a group fighting President al-Assad in Syria in 2013. However, he also explained:
"The terms Sahabah in Islam refers to the Companions of the Prophet Mohammed. The Sahabah (i.e., Companions) are people that hold significant value and appreciation amongst all Muslims globally. The Sahabah in Islam are in essence the equivalent of what the disciples of Jesus are in the Christian faith.
The term Grandsons of the Sahabah is a term that all Muslims can relate to because it signifies a recognition of our ancestors and historical figures. The term is in no way indicative of a person being a member of ISIS or any violent extremist group."
Mr Samin relied on the respondent's creation of posts on Instagram which would appear to be inconsistent with his having been radicalised, much less being a member of Islamic State, including the following:
"30 March 2021: 'Allah sent the Prophet as a gentle teacher; 'Verily, Allah did not send me to be harsh or obstinate, rather he sent me to teach and to put at ease'.
24 March 2021: 'Invite all to the way of your lord with wisdom and kind advice and only debate with them in the best manner. Quran 16.125
08 March 2021: A monotheist must treat people with justice; 'Whoever would love to be delivered from the hellfire and entered into paradise, then let him die with faith in Allah and the … last day and let him treat people the way he would love to be treated'.
21 February 2021:'Islam commands freedom and liberation; 'feed the hungry, visit the sick, and set free the captives'."
The DPP sought to counter such material by contending that the respondent led a double life: an outwardly peaceful one and a "secret" one. The DPP contended that the respondent's views about violent extremism and his allegiance to Islamic State were concealed in his outward life but revealed by the contents of his devices and matters ascertained by the AFP's substantial and long-term surveillance of him. Whatever the strength of the allegation that the respondent has a "double life", it would appear to be weakened by the evidence, referred to above, that the respondent has continued to associate with men who have been charged or convicted of terrorist offences in circumstances where it can be inferred that his contact with them would be detected.
[5]
Whether this Court ought entertain the detention application
Mr Samin contended that, although this Court has jurisdiction to hear the detention application under s 67(1)(e) of the Act, it ought exercise its discretion to decline to exercise the jurisdiction in the present case. He argued, first, that this Court is, "by design", an appellate court and not a court at first instance, which made it inappropriate for it to entertain the application. Second, the evidence alleged to be "fresh" would not, when viewed in context, warrant a different conclusion that the one reached by the primary judge. Third, he contended that, having been granted conditional bail, regard should be had to his right not to be deprived of his liberty before being convicted by a jury. Fourth, he argued that his liberty ought not be put in jeopardy twice.
In support of the fourth contention, the respondent relied on what Beech-Jones J said in Mawad at [49]:
"For the sake of completeness I express my disquiet about the structure of the Bail Act 2013 in allowing de novo reviews in this Court of bail decision made by the Supreme Court. This is a court of appeal not a court at first instance. Yet it must conduct a fresh review even though the question of bail will ordinarily have already been considered by at least two levels of the judicial system. By allowing de novo reviews the Bail Act 2013 facilitates the making of more interlocutory applications which serves to fragment the criminal process, potentially delaying trials. It does so in a manner that diverts this court from its task of hearing appeals from convictions and sentences. It is also a process that generally advantages the Director in that in most cases he has superior resources than that available to an accused person. Thus the Director has a greater capacity to litigate and re-litigate the issue of whether bail should be granted."
Whatever the undesirability of the present structure of the Act, I am not persuaded that this Court could simply dismiss the DPP's application summarily without addressing the matters on which the DPP relies in support of her detention application. Nor do I read Beech-Jones J's observations in Mawad as other than a suggestion for legislative review, having regard to the effect of the enacted provisions. For these reasons, I consider this Court to be obliged to hear and determine the DPP's application. Since preparing these reasons, I have had the benefit of reading the reasons of Beech-Jones CJ at CL in draft and note that he has confirmed my reading of what his Honour said in Mawad.
I note for completeness that, as the application is brought under ss 50 and 67(1)(e) of the Act, it is not necessary for this Court to consider the nature and scope of any appeal that might have been available to the DPP pursuant to s 15AA(3A) and (3B) of the Crimes Act 1914 (Cth).
Nor do I consider it necessary to address the observations made by Basten JA in Trinh v R [2016] NSWCCA 110 at [21]-[22] and [29]-[33] (see also McCallum J at [40], Davies J at [44], not deciding) as to whether this Court would be obliged to hear a bail application made by an accused person who had been refused bail by a single judge. The DPP has a right to make a detention application under s 50 of the Act. By reason of s 67(1)(e) of the Act, this Court is the appropriate bail authority within the meaning of s 4 of the Act.
[6]
Whether there are exceptional circumstances
Sections 15AA(1) and (2) of the Crimes Act prohibit a bail authority from granting bail to a person charged with a terrorism offence, unless it is satisfied that exceptional circumstances exist to justify bail. It was common ground that the principles articulated by Hall J in R v NK [2016] NSWSC 498 at [26] and [28]-[31] are applicable. These include, of present relevance, that the requirement for exceptional circumstances imposed a rebuttable presumption against bail; the requirement that the circumstances be "exceptional" was a demanding test but one which was nonetheless flexible, could constitute subjective or objective matters, including the strength or weakness of the Crown case, and could be fulfilled by a combination of circumstances or a single circumstance.
The primary judge considered that the circumstances were exceptional on the basis of a combination of facts which comprise the potential difficulties of proving membership of, as distinct from support for, Islamic State; the significant delay and the onerous conditions of custody; the significant period between the alleged giving of Bay'ah (the principal act relied on for the purposes of establishing the offence); and the availability of deradicalisation counselling in the community: see [55]-[55] of his Honour's reasons.
While the findings of the primary judge are relevant to this Court's determination of the detention application, I am satisfied that exceptional circumstances are established on a different basis (which is open to me, since this is a hearing de novo): namely, the disproportionality between the likely period on remand and the potential sentence, if the respondent is convicted.
In my view, there is a real prospect that the non-parole period of any custodial sentence imposed will exceed the period on remand. For example, the offender in R v Abdirahman-Khalif (Supreme Court (SA), Peek J, 16 April 2019, unrep) was convicted of an offence contrary to s 102.3(1) of the Code and was sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years and 3 months (in accordance with the mandatory ratio for such offences of 75%). In that case, the offender purchased a one-way ticket from Adelaide to Istanbul for the purpose of engaging in foreign incursion, as part of the performance of her allegiance to Islamic State, as well as communicating with the "Baaqiya sisters" who carried out a terrorist attack in the name of Islamic State. I understood the DPP to accept not only that an act in furtherance of a plan to travel overseas to take part in the activities of Islamic State would be relevant to an assessment of objective seriousness of an offence under s 102.3 of the Code but also that the offending conduct in R v Abdirahman-Khalif was more serious than the alleged conduct in the present case.
There are limits to the assistance which can be gained from sentencing decisions said to be comparable: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). However, other decisions may provide guidance for the purposes of an application such as the present. It is neither necessary nor desirable, for the purposes of the present application, to analyse all the cases said to be comparable to the present. It is sufficient to observe that unless a sentence which included a non-parole period of at least 2 years (which would equate, given the statutory ratio, to a total sentence of 2 years and 8 months' imprisonment) was imposed following conviction, the respondent would be required to spend more time in custody that his criminality (if convicted) warranted.
The purpose of the requirement for exceptional circumstances would appear to be to safeguard the community from the risk posed by those who are charged with terrorist offences between the date of arrest and the trial. In the present case, the offence is one of membership and the evidence of membership would appear to be confined to a unilateral declaration. The respondent's offending, if the Crown case as it appears on the detention application is made out at trial, is of relatively low objective seriousness. Further, the prospect that the jury will not be satisfied of the charge beyond reasonable doubt is, on the material before this Court, a real one. The chance, which may amount to a likelihood, of the period on remand exceeding any non-parole period if the respondent is convicted is sufficient, in the context of the present case, to constitute exceptional circumstances. In light of this conclusion, it is not necessary to address whether the matters identified by the primary judge are sufficient to constitute exceptional circumstances.
[7]
The bail concerns raised by the DPP
The DPP has raised a number of bail concerns pursuant to s 17 of the Act: the risk that the respondent will fail to appear; the risk that he will commit a serious offence; and the risk that he will endanger the safety of individuals or the community.
[8]
Matters listed in s 18 of the Act
In deciding whether the detention application ought be granted, the matters in s 18 of the Act are relevant. The respondent has strong family ties and no criminal history. The offence, if established, is not a particularly serious example of the conduct covered by s 102.3(1) of the Code. I do not regard the Crown case as particularly strong, although this is difficult to assess in circumstances where service of the brief is not yet complete and the respondent's devices have not been fully analysed. The respondent has no history of violence. Indeed, such evidence as there is, would tend to indicate a disinclination to resort to violence, even when provoked. The DPP relied on the respondent's "criminal associations", as referred to above and the contact which the respondent maintained with his friends, notwithstanding their convictions for terrorist offences. I have already addressed the length of time the respondent is likely to spend in custody, pending trial, and if convicted, if the detention application is granted.
The respondent's circumstances are also relevant: s 18(1)(a) of the Act. I accept, on the basis of evidence adduced on his behalf, that if he is detained in Goulburn until his trial, there is a considerable risk that he will be radicalised by reason of the concentration of men who are imprisoned there who have been charged with or convicted of terrorist offences. This risk gives rise to the unattractive prospect that the respondent (who is, until convicted, presumed to be innocent of the charge) might be acquitted but that on release he might commit a terrorist offence, having been radicalised in Goulburn. Thus, an extended period on remand has the potential to increase the risk that he will commit a serious offence. This matter weighs against the DPP's detention application.
[9]
Risk of failure to appear
I consider that the conditions of bail imposed by the primary judge, which include house arrest and daily reporting, are sufficient to ameliorate any risk that the respondent will fail to appear. His parents are highly alert to the conditions and the need to ensure that the respondent complies with those conditions.
[10]
Risk that the respondent will commit serious offences if released
The DPP relied on the respondent's possession of instructions (in the form of screenshots and feeds from Islamic State media channels) for making a bomb in support of its contention that the risk of the respondent committing a serious offence if not detained was unacceptable. As is apparent from the Crown's Statement of Facts, the material disseminated by Islamic State is redolent with instructions for making explosives and violent scenes, including beheadings and calls to arms. In these circumstances, it is almost inevitable that anyone using a mobile device to conduct research into Islamic State (or who has been the target of propaganda from Islamic State) will have images and information relating to these topics which are retrievable from the mobile device if the device is analysed with the technology and expertise available to the JCTT.
However, it does not follow from the mere possession of such images that the owner or user of the mobile device intends to manufacture a bomb in accordance with the instructions, any more than it can be inferred that someone with an image of a beheading on a mobile device intends to engage in decapitation. Indeed, the absence of any ingredients for making a bomb in the respondent's possession tells against any such intention.
I consider that the risk that the respondent will commit a serious offence if released to bail to be relatively low and one which can be ameliorated by the conditions. The evidence does not indicate that the respondent, while at liberty during the charge period, did anything to act on his interest in Islamic State, apart from, if the Crown case is accepted, declare allegiance in what would appear to be a unilateral way. As referred to above, there is no suggestion that any of the ingredients for making a bomb were found in the respondent's possession or in the residence where he lived. I note that he has not been charged with possession of things connected with terrorist acts (s 101.4 of the Code); collecting or making documents likely to facilitate terrorist acts (s 101.5 of the Code); or doing acts in preparation for a terrorist act (s 101.6 of the Code).
The evidence from the AFP as to the cost, inconvenience and lack of utility of electronic monitoring by Attenti is sufficient to indicate that it ought not be imposed as a condition of bail. I note that the DPP did not seek that such a condition ought be added to those imposed by the primary judge.
[11]
Proposed orders
For the reasons given above, I propose the following orders:
1. Refuse the detention application.
2. Confirm that the respondent is to be released to bail on the conditions specified by Hamill J on 17 September 2021.
[12]
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Decision last updated: 27 September 2021