Director of Public Prosecutions (Cth) v Saadieh

Director of Public Prosecutions (Cth) v Saadieh - [2021] NSWSC 1186 - NSWSC 2021 case summary — Zoe

[3]

Judgment

Joseph Saadieh ("Mr Saadieh" or "the applicant") makes a release application pursuant to the provisions of the Bail Act 2013 (NSW). His application is constrained by s 15AA of the Crimes Act 1914 (Cth) because he is charged with a "terrorism offence". It is alleged that he was, between 12 June 2018 and 18 June 2021, intentionally a member of a terrorist organisation, namely the Islamic State of Iraq and Syria ("ISIS") or the Islamic State of Iraq and Levant ("ISIL"). The provision in s 15AA of the Crimes Act provides that the Court must not grant bail to a person charged with a terrorism offence unless it is satisfied that exceptional circumstances exist to justify bail.
On 12 June 2018 Mr Saadieh was 21 years of age and is now 24. He has no previous convictions and presents to Court with the support of his family and proposes a set of extremely stringent bail conditions. As compelling as those matters are, they do not, in this case, amount to "exceptional circumstances" for the purpose of s 15AA. The applicant relies on those circumstances, along with a number of other matters, to contend that he has overcome the "extremely high hurdle" presented by the provision in s 15AA. [1] The applicant also submits that he does not present an "unacceptable risk" of the kinds identified in s 19 of the Bail Act.
The Commonwealth Director of Public Prosecutions ("the Director") submits that the applicant has not established that exceptional circumstances exist to justify bail. It was submitted that "the exceptional circumstances test replaces any show cause test that might otherwise apply: s 22A(2) Bail Act 2013 (NSW)". [2] The reference to s 22A(2) of the Bail Act seems to be misconceived because that sub-section relates to the "exceptional circumstances" test that applies to offences caught by s 22A(1) [3] and s 16B does not capture terrorism offences under state or federal law. However, the applicant did not dispute that the exceptional circumstances test in s 15AA of the Crimes Act applied and did not contend that the "show cause" requirements in ss 16A and 16B of the Bail Act had any application. The Director further submitted that, even if the Court was satisfied that exceptional circumstances exist, there was an unacceptable risk that the applicant may fail to appear or commit a serious offence or endanger the safety of the community. [4]

[4]

An overview of the evidence and written submissions

Both parties tendered a significant amount of material on the release application.
Exhibit A was the prosecution's bundle of materials and included: 1. A detailed statement of facts prepared by Senior Constable Flyn Baker. 2. An addendum to those facts dated 1 September 2021. 3. A letter from the Joint Counter Terrorism Team ("JCTT") dated 1 September 2021. 4. An affidavit Commander Stephen Dametto of the Australian Federal Police (AFP), relating to the efficacy of the electronic monitoring system proposed by the applicant and the capacity of the AFP to support or police such monitoring. 5. An affidavit of Assistant Commissioner Stacey Maloney of the NSW Police asserting, amongst other things, that the NSW Police did not have the "policy, capacity or staff" to support or enforce the electronic monitoring condition proposed by the applicant. 6. A statement of Aftab Khan, an electronic monitoring officer of Corrective Services NSW. This statement explained the electronic monitoring systems employed by Corrective Services, the circumstances in which they were used, and explaining that his department does not provide an electronic monitoring function for people on bail. 7. A statement of Dr Roger Shanahan which annexed his expert report. Dr Shanahan provided a potted history of the ideological, religious and political controversies that led to the formation of ISIS, a number of pertinent definitions of terms contained within the statement of facts, and various opinions concerning the content of material located on a USB and mobile 'phone controlled or owned by the applicant. Dr Shanahan expressed the opinion that "bay'ah" (an expression used in a relevant, possibly critical, communication made by Mr Saadieh) was a pledge of allegiance to the Caliph and, in context, to ISIS and its leadership.
The Director also tendered the Court Attendance Notice setting out the charge under s 102.3(1) of the Commonwealth Criminal Code ("the Code") [5] levelled against the applicant (Exhibit B). I accept the Director's submission that, contrary the applicant's argument, the prosecution is not restricted to establishing membership by reference to any single one of the definitions in s 102.1(1) of the Code.
The applicant tendered proposed bail conditions as Exhibit 1. There were 33 conditions of bail suggested. It was submitted that, if the Court found there were exceptional circumstances under s 15AA of the Crimes Act and moved to consider the bail concerns in s 17 of the Bail Act, the conditions proposed mitigated the unacceptable risks in s 19 of the Bail Act which are identified by the prosecution. The onerous nature of the conditions also formed part of the combination of circumstances said to constitute exceptional circumstances.
Exhibit 2 was a bundle of material (some of which was not ultimately relied on) [6] including the following documents: 1. A psychological report of Sam Borenstein dated 6 July 2021. 2. A letter from registered psychologist, Mostafa El-Gashingi, dated 7 July 2021. 3. Affidavit of Michael Saadieh, the applicant's father, dated 12 July 2021. 4. Affidavit of Fadia Kanj, the applicant's mother, dated 12 July 2021. 5. An affidavit of Laura Windsor dated 6 July 2021. Ms Windsor is the product manager of Attenti Australia, a company that offered to provide electronic monitoring to ensure the applicant complied with the bail conditions. 6. Affidavit of Mohammed Trad, former religious support officer of Corrective Services NSW, dated 12 July 2021. 7. Affidavit of Rodney Van Huizen, the applicant's neighbour, dated 12 July 2021. 8. Affidavit of Michael Saadieh dated 14 July 2021. 9. Various medical reports relating to the applicant and his parents. 10. An expert report of Wesam Charkawi dated 11 July 2021. This report purported to answer some of the propositions and opinions expressed in Dr Shanahan's report. 11. A website printout styled 'NSW Police Counter Terrorism and Special Tactics'.
Exhibit 3 was a further statement of Ms Windsor. This responded to some of the criticisms of past bail cases in which Attenti was involved and which, on the material tendered by the Director, resulted in one accused absconding on bail and another case where Attenti's notifications proved unreliable.
The Director's submissions were MFI 1 and the applicant's submissions were MFI 2.

[5]

The strength of the prosecution case

The prosecution submits that the case against the applicant is strong. This contention is disputed by the applicant.
In R v Abdirahman-Khalif, [7] the High Court emphasised that terrorist organisations are often loose affiliations and membership of such organisations may require subtleties of proof. The majority said at [49]: "As was held in Benbrika in effect, the nature and purpose of the provisions found in Pt 5.3 and, in particular, Div 102 of the [Code] dictate that they must be taken to extend to groups devoid of structural hierarchy that function in secrecy, with little formality, without a written constitution or set of rules, and without a contractual relationship between members. In such cases, the existence of the terrorist organisation is thus more readily proved by evidence of what it does than by abstract analysis of its structure. And where such evidence does establish that persons have so informally associated together for the purposes of carrying out terrorist acts or supporting those who carry out terrorist acts, it is open to a jury to find that they are members of that terrorist organisation despite the absence of a constitution or rules of membership."
The present case is one where the prosecution will rely on inferences to be drawn from the evidence to establish that the applicant was a member of a terrorist organisation as that concept is defined. [8]
The offence was created by s 102.3 of the Code. There is unlikely to be any dispute that ISIS is a terrorist organisation (s 102.3(1)(b)) and that the applicant knew that it was a terrorist organisation (s 102.3(1)(c)). The likely dispute at trial will be whether the applicant was "intentionally a member of an organisation": s 102.3(1)(a). Relevantly, "member" is defined in s 102.1 of the Code as including: (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.
The statement of facts shows that the applicant has been subject to surveillance since 2018 and that material has been recovered from his mobile telephone and a USB located in the course of the investigation. There is an overwhelming body of evidence suggesting that he is, or at times was, a supporter of the actions and ideological views espoused by ISIS. The material establishing that fact is voluminous and largely emanates from evidence of Mr Saadieh's associations with people known to hold extremist views and, perhaps, organisations that foster and promote those views and also from an extensive amount of ISIS propaganda material located on his electronic devices. A great deal of that material includes chilling content such as videos of beheadings, instructions and ingredients to create explosives and calls to commit violent acts of terrorism. It is unnecessary to detail all of the material in this judgment. However, it is capable of establishing the applicant's interest in, if not strong and willing support of, extreme, radical and violent views. The material relating to explosives is particularly concerning and significant to the question of whether the applicant poses an unacceptable risk if I come to consider that question. Much of that material is also relevant, and may be admissible, to establish the allegation made against the applicant.
Even so, proving that the applicant was a "member", even taking into account the breadth of the definition of that term in s 102.1, is more difficult and complex. The prosecution relies on the contents of a "WhatsApp" conversation between the applicant and a person with the electronic handle of "Slow Reaction". That conversation is set out at paragraph 68 of the statement of facts and includes the accused saying: "No. [You're] mistaken again. He claimed it. I gave Bay'a. [T]he proof is on you for rejecting bay'a to the imamah."
The prosecution will rely on this conversation and the reference to "Bay'a" as evidence that the applicant made a pledge of allegiance to ISIS. Dr Shanahan provides the following opinion: "(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'at 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'at and then distribute them through all forms of media including the Internet."
Based on Dr Shanahan's opinion, paragraph [32] of the statement of facts tendered as part of exhibit A alleges that: "Bay'ah is a pledge of allegiance through verbal contract, a traditional tribal Muslim way of giving loyalty to either a religious scholar or Political leader. ISIS has traditionally called for Muslims to give Bay'ah to Caliph Ibrahmi (aka Abu Bakr Al-Baghdadi".
However, the applicant relies on the opinion provided by Mr Charkawi. Mr Charkawi provides the following alternative opinion: "Bay'a is defined at paragraph 29 of the Statement of Facts. [9] There are a number of issues with this definition and explanation. I do not completely agree with this interpretation of Bay'a. 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 (pbuh), 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. 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. Abu Bakr al-Baghdadi had claimed to be the next caliphate and used the occurrences in the Middle East to hold himself to be a saviour to Muslims. Al-Baghdadi did this by commonly referencing atrocities against Muslims in the Middle East such as Iraq and Syria as a means of invoking an emotional response from Muslims. An example of this is found in a conversation that that accused is alleged to have had in the month prior to the conversation with Slow Reaction where a conversation is captured between him and another unknown male at paragraph 28 of the Statement of Facts: Unknown Male: What concerns me…Syria Syria, refugees. I know that they're suffering a lot. Many Muslims suffering. I can do what I can, the minimum what I can do. We ask Allah to help us. Accused: You see what they've done to us in Iraq and Syria? They rape his mum in front of him. For humiliation, not just pleasure. Given these conversations and the extreme abundance of ISIS propaganda, it was common for people to ask me about Bay'a to Baghdadi. From memory, I had over 50 conversations in this regard. It was a particularly confusing time for young Muslims. Given the claims that Al-Baghdadi was making, young Muslims were not sure how to react. I would often be asked questions such as, are we supposed to be giving Bay'ah? What happens if we do not give Bay'ah? How do we know if this person is legitimate? Many of my conversations with young people at the time surrounded these topics. While all the globally recognised Islamic scholars immediately rejected al-Baghdadi's claim, the Islamic community had to work specifically with the youth against ISIS propaganda to dispel these ideas."
Contrary to the implication in parts of the applicant's submissions, Mr Saadieh's bare observation or statement that he "made Bay'ah" will not be considered in isolation. The tribunal of fact will need to consider the statement in the context of his ideological beliefs otherwise established on the evidence. In that context, it may be open to the jury to conclude that the statement is evidence that the applicant was a "member" of ISIS in the sense referred to in s 102.1 of the Code and the High Court's judgment in R v Abirahman-Khalif at [49]. [10]
The prosecution will also rely on evidence of the applicant's association with people who "have been convicted of terrorism related offences and identified as having extremist Islamic beliefs". Youssef Uweinat pleaded guilty to an offence of knowingly being a member of a terrorist organisation and is currently housed at the High-Risk Management Centre at Goulburn ("HRMCC") awaiting sentence before the Supreme Court. The applicant regularly socialised with Mr Uweinat and described him as "a good friend" during an electronically recorded interview with police in June 2021. The applicant has also been identified as a close associate of Radwan Dakkak, who pleaded guilty to offences of associating with members of a terrorist organisation, Isaac El-Matari (who pleaded guilty to terrorism offences including undertaking acts in preparation for a terrorist act), and Moudasser Taleb (who was convicted of engaging in conduct preparatory to committing a foreign incursion offence). Each of those men are currently in custody and Mr El-Matari and Mr Dakkak are both housed at the HRMCC. Mr El-Matari and Mr Dakkak have both sent letters to the applicant from custody anticipating that he will join them there.
Insofar as it is possible to make an assessment at this distance from the trial, I would assess the prosecution case as being a reasonably strong one. However, the evidence of membership is far from overwhelming. I accept the applicant's submission that there are no overt acts of membership such as those undertaken in R v Abdirahman-Khalif where the applicant took steps to travel to Turkey in order to join ISIS. The applicant relies on a statement made by the majority at [60] that: "The trial judge was accordingly right to direct the jury that they could not convict unless satisfied beyond reasonable doubt that the steps surrounding the attempt to travel to Turkey were intentionally taken by the respondent to become a member of Islamic State." [11]
The applicant also relies on obiter statements in the minority judgment of Gageler J. [12] However the observations in R v Abdirahman-Khalif must be considered in the context of its particular facts and the way in which the prosecution sought to prove membership in the circumstances of that case.
It is unnecessary to summarise any further the facts of the case. The weaknesses in the prosecution case relied on by the applicant are simply part of a host of matters said, in combination, to amount to exceptional circumstances for the purpose of s 15AA of the Crimes Act.

[8]

Sentencing

The applicant submitted that the length of the remand may mean that the applicant will have, in effect, served his sentence by the time his case is finally determined. This is a difficult submission to assess in the absence of guidance as to the "range" of sentences imposed for offences under s 102.3 of the Code. The offence carries a maximum penalty of 10 years' imprisonment. At the conclusion of the hearing, I reserved judgment but provided the parties with an opportunity to provide a table of cases relating to sentencing for offences of being a member of a terrorist group. Both parties availed themselves of this opportunity and each provided tables summarising a number of cases.
I have considered those tables which included the following cases: R v Abdirahman-Khalif (Unreported, South Australian Supreme Court, 16 April 2019), Abdirahman-Khalif v The Queen [2019] SASCFC 133; 352 FLR 230, R v Abdirahman-Khalif [2020] HCA 36; (2020) 94 ALJR 981, R v Lelikan (No 5) [2019] NSWSC 494, R v Lelikan [2019] NSWCCA 316, R v Kent [2009] VSC 375, R v Atik [2007] VSC 299, R v Benbrika [2009] VSC 21; (2009) 222 FLR 433, Benbrika v R (2010) 29 VR 593; [2010] VSCA 281.
The cases show that a full-time sentence of imprisonment was imposed in all but one case. Those sentences ranged from 2½ years to 5½ years. The one exception was R v Lelikan (No 5) [2019] NSWSC 494, where a community corrections order was imposed. That was an unusual case and there was a prosecution appeal against the asserted inadequacy of the sentence. The Court of Criminal Appeal exercised its residual discretion not to increase the sentence, in spite of finding error in the sentencing Judge's determination of the objective seriousness and moral culpability of the offender: R v Lelikan [2019] NSWCCA 316.
While those cases suggest that the applicant will not have served all of an appropriate sentence in the event he is found guilty, it is likely that he will have served a substantial part of it. Further, there is an unusual feature in the applicant's case which may result in a quite lenient outcome. I will discuss that feature now because it is also a matter upon which the applicant relies in attempting to establish exceptional circumstances justifying the grant of bail.

[10]

Family conflict over the applicant's ideology

In response to affidavits of support sworn by the applicant's parents, the Director referred to evidence of disharmony between the applicant and his mother. The Prosecutor described the parents as "well meaning" [14] but, amongst other things, it was submitted, that: (i) the applicant and his mother were in "constant conflict", (ii) the conflict arose from the applicant's extremist views, (iii) the mother assaulted the applicant in recent times, (iv) the applicant had told his mother he would not change and had accused his parents of "takfir" (disbelief). [15] There is evidence in Exhibit A supporting those contentions, although the applicant's lawyer submitted that the source of some of that conflict was related to a romantic relationship pursued by the applicant of which his mother did not approve. [16]
The letter from the JCTT to the Court dated 1 September 2021, which appeared to be responsive to the material tendered on the applicant's behalf in the release application, included the following: [17] "Evidence located on his electronic devices shows that the Accused, by his own admission, states he has previously been assaulted by his mother. About 7:55am on 28 October 2018 (UTC+0), the Accused stated in a WhatsApp group chat 'Today, I made takfir on my mother and father' … 'For making a mockery of deen' … '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!"'… 'and I said "And I do not love you"' … 'Tthen I got into an argument with them too' … 'I make takfir on my [mum]'. At 11:50 am on 29 October 2018 (UTC+0), the Accused stated in a WhatsApp group chat, 'My mum Is going around telling people in the family I'm a daeshi' (Member of Islamic State). At 11:55 am on 29 October 2018 (UTC+0), the Accused stated in a WhatsApp group chat, 'I'm not waging war on my mum I'm dissociating from her'. At 10:13 am on 1 December 2018 (UTC+0), the Accused stated in a WhatsApp group chat, 'Yet my own sister older than me'...'Calls me extremist'...'Mentally sick'....'Etv'...'Haha' Lawfully intercepted information (LII) reveals that the Accused is constantly arguing his mother more recently. About 3:20 pm 15 December 2020 (AEST), LII captures Fadia KANJ (F. KANJ) having a conversation with the Accused. During the conversation, F. KANJ tells the Accused to stop arguing and do what she says."

[11]

Psychological intervention and de-radicalisation

In January 2020, the applicant sought the assistance of a psychologist, Mr Mostafa El-Gashingi. Mr El-Gashingi provided a letter to the Court confirming that he had a number of sessions with the applicant throughout 2020. These sessions were focused on "his academic and work stress, familial stress, and his future plans regarding marriage". It is significant that the applicant sought this assistance before he was subject to any charges.
The applicant relies on the fact that, in addition to his opinion evidence, Mr Charkawi is in a position to provide the applicant with a treatment plan focused on "de-radicalisation". Mr Charkawi has experience providing outreach programs with organisations such as the Australian Federal Police and Juvenile Justice NSW to counter violent extremism in at risk youths. Mr Charkawi described the confusion in some young Islamic men, arising from the accessibility of ISIS propaganda material over the internet, which he says was particularly prolific in 2018. One of the bail conditions proposed by the applicant is that he undergo treatment with Mr Charkawi. The relevant part of that report is in the following terms: "Treatment Plan 110. I understand that if the Court grants Mr Saadieh bail, the Court will consider making a condition of his bail that he engage with deradicalization treatment with me. I am able and qualified to administer this treatment to Mr Saadieh. 111. The deradicalization treatment will involve the following: a. Weekly sessions, targeted physical sporting participation and workshops. The idea about my programs is mentoring and friendship. b. Daily meeting to discuss essential teachings. c. Exposure in empathy building: service to other three times a week. 112. If Mr Saadieh is not compliant with this treatment, I understand that this will amount to a breach of his bail. I can assure the Court that if Mr Saadieh is not compliant with the treatment program that I have proposed, I will notify the authorities immediately. I will also immediately notify the authorities if I have any concern for the safety of Mr Saadieh or anyone else in the community."
Sam Borenstein, psychologist, who interviewed the applicant on 2 July 2021 and provided a report on the bail application, supports the treatment plan proposed by Mr Charkawi stating that "combined psychological treatment, together with de-radicalisation strategies aimed at helping Mr Saadieh develop a stronger sense of self and the world around him will, in my opinion maximise positive outcomes". Although these statements are untested, I note that Mr Borenstein also directly asked the applicant about ISIS and extremist ideologies: "On direct questioning, Mr Saadieh denies being a member of ISIS. Mr Saadieh states ISIS 'has put a bad picture of Islam and caused chaos around the world. It's not anything any sane person should support'. When asked directly whether Mr Saadieh desired to join ISIS he replied, 'not in the slightest'. When asked whether he holds extremist ideologies, Mr Saadieh again answered 'no'. When asked whether he seeks to cause harm to himself or others, Mr Saadieh replied, 'not at all'."
Mr Borenstein suggests that the applicant should continue to engage in psychological treatment for a diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood with Mr El-Gashingi in the community. Mr El-Gashingi has confirmed that he is willing to provide that treatment and it is proposed as a condition of bail.

[13]

COVID-19, the applicant's health and conditions of incarceration

I accept the applicant's submission, based on the opinions expressed by Mr Borenstein and Mr El-Gashingi, that an extended period on remand will be detrimental to the applicant's mental health, particularly in circumstances where there is likely to be a significant delay before the matter goes to trial, and also in light of the ongoing COVID-19 pandemic. With the current restrictions, the applicant's family will not be able to visit him.
His lawyers are also unable to travel to the facility to discuss the matter and the evidence against him, which involves large digital files, and this is a significant impediment to preparing his defence.
There is medical evidence that the applicant suffers from asthma. Dr Kennan Ismail provided three short letters noting that the applicant suffers from asthma. [19] Dr Ismail expressed the opinion that if he contracted the virus "his life would be severely affected" and "his general health will be in danger".
The Prosecutor made the following submission: "The only other matter I wanted to raise that arises from my friend's materials is in respect to the impact of COVID 19 and I think my friend has raised on the material that the applicant suffers from asthma and my friend says he is therefore vulnerable to contract the virus. The Crown accepts, on its face, that that may be right. But again the impact that COVID 19 has or can have on prisoners at present is not exclusively suffered by this applicant. There is nothing extraordinary in what I will call the new normal about the impact that COVID 19 has in prisons. That affects every inmate and there is nothing extraordinary in respect of this applicant in terms of COVID 19." [20]
I am unable to accept these submissions. For one thing, they proceed on an erroneous understanding of the evidence. Dr Ismail does not suggest that the applicant is more "vulnerable to contract the virus" but rather that, if he does, the impact on his health is likely to be greater than the average person (or inmate). Corrective Services have done a remarkable job in keeping the virus out of the prison system for a long time, but it is well known that there are currently many positive cases in the system. This has caused the re-introduction of lockdowns and restrictions on visits. I reject the idea that the Court should approach the matter on the basis that the current pandemic, and its impact on prisoners, should be treated as "the new normal". Nor can I accept the implication that it is a matter worthy of little weight because all inmates are facing the same problems. The submission is contrary to any number of cases on both bail and sentencing. [21] While I accept that, of itself, this matter would not constitute "exceptional circumstances", especially in the absence of any evidence as to the current situation within the prison system, it is a matter that must be taken into account in assessing the applicant's submission that the combination of factors in his case amount to exceptional circumstances justifying the grant of bail.
The relevance of the COVID-19 pandemic is multifaceted and includes: 1. The conditions of incarceration (faced by all prisoners) are more onerous as a result of the strict regime established by Corrective Services. There is restricted access to work opportunities, training and education programs as well as mental health services. The procedures adopted also include a restriction on personal (face to face) visits with loved ones as well as more periods of lockdown and isolation. The potential impact on the mental health of inmates is real and well documented. [22] The additional hardship for young, first-time offenders has also been recognised. [23] 2. There is a limitation on lawyers gaining access to their clients. That is a matter affecting remand prisoners more than those serving a sentence. It is particularly acute in a case like the present where the case involves large amounts of electronic data and material. 3. Once the virus is inside the system, as it is now, there are difficulties in controlling its spread and the procedures introduced to do so create more onerous conditions of incarceration. 4. There is likely to be some strain on the resources of Justice Health, potentially creating problems for an inmate, like the applicant, who has a particular health condition like asthma. 5. There is a real concern that if the applicant contracts the virus, he will be more vulnerable because of his pre-existing medical condition. 6. The inability of the District and Supreme Courts to conduct jury trials during the period of the lockdown, will result in additional delay in the matter coming on for trial. [24] I have already taken this into account in attempting to assess the length of the delay in the applicant receiving a trial date; I have not taken it into account twice.

[14]

Good character, family support and bail conditions

The applicant also relied on a number of personal matters as well as an offer to comply with extremely stringent bail conditions. These are matters more relevant to addressing the bail concerns and risks identified by the Director. However, in deference to the structure adopted by his advocate, I will deal with them here. This is not to conflate the "exceptional circumstances" question with the issue of unacceptable risk. [25] Rather it is to acknowledge that similar considerations may arise at both stages and that "the concept of exceptional circumstances is necessarily a flexible one". [26]
The applicant is currently 24 years' old and was born in Western Sydney. He has no criminal history. He is the second oldest of six children and lives in the family home with his parents and four of his siblings. The affidavits of the applicant's mother and father show that he is an integral part of the family unit and assists his parents (who both have significant medical issues) with the cooking, cleaning, shopping, driving and other household chores. Both parents say he has an "incredibly strong bond" with his younger brother who is currently undertaking the Higher School Certificate. The applicant supports his younger brother with his mental well-being and his studies. Mr Saadieh's absence from the family home is having a significant impact on his brother.
The applicant left high school in year 11 to attend Western Sydney College TAFE where he completed a diploma in construction management over two years. He was working part time at Woolworths at the same time. In 2017, he commenced a bachelor's degree in construction at the University of Western Sydney. As at 6 July 2021, he had completed three quarters of that degree. He says he does not take drugs and he does not drink alcohol.
A neighbour, Mr Van Huizen, says that Mr Saadieh often helps him around the house with odd jobs and they regularly discuss common interests such as boating, fishing and the outdoors. The applicant also engages in volunteer work in the Western Sydney area. Mr Van Huizen says that they would often discuss the work that Mr Saadieh does at the local youth centre, helping children who "had been struggling in life for various reasons such as drug use or trouble at home".
In consultation with the applicant and his family, the applicant's lawyer has proposed an extremely stringent bail regime. This includes substantial surety, house arrest or a strict curfew, attendance for counselling including therapy directed to de-radicalisation and psychological treatment, cutting off the applicant's access to the internet, and an offer to pay for and be subjected to electronic monitoring. That last matter became the subject of evidence and controversy. I will deal with that issue later. In my view, in the circumstances of this case, and in light of the stringency of the conditions otherwise proposed, the proposal that he be subject to electronic monitoring does not add very much to the applicant's case that there are exceptional circumstances justifying the grant of bail.

[16]

Bail concerns and whether there are unacceptable risks

The Director submitted that there are three unacceptable risks in releasing applicant to bail. These are (i) the risk that the applicant will fail to appear, (ii) the risk that he will commit a serious offence, and (iii) that he will endanger the safety of the community. It was submitted that these bail concerns cannot be addressed adequately by bail conditions. I accept that each of these matters were identified correctly by the Director as bail concerns for the purpose of s 17 of the Bail Act.
I am satisfied that the first concern - that the applicant will fail to appear - can be addressed by the substantial surety offered by the applicant's family. However, the surety will have to be secured rather than, as is proposed by the applicant, a simple promise to forfeit that amount. For reasons that will become clear, there should be sufficient funds available for the acceptable person to deposit cash in the sum of $25,000. Further, daily reporting and a curfew will reduce any flight risk that arises in the applicant's case.
However, the second and third bail concern - that is, the concern that he will commit a serious offence and thereby represents a danger to the community - requires closer analysis. The material that the applicant collected from the internet is, as I have said, quite chilling and gives rise to a significant concern that the applicant may pose a danger of committing a serious offence and endangering the community. In particular, the graphic nature of the imagery and messaging may betray an indifference to human suffering of a very troubling nature. Of particular concern is the material the applicant collected concerning the methods of creating bombs and explosive devices.
Against that, the applicant's "Bay'ah" or (alleged) pledge of allegiance occurred in October of 2018. Apart from continuing to collect ISIS propaganda and post on various social media accounts, there is no suggestion that the applicant's conduct has escalated to the point of planning or contemplating any terrorist act. It is noted that the JCTT has been investigating, and no doubt monitoring, the applicant since June 2018. Further, the applicant has made more recent (even if untested) statements denouncing ISIS and extremist ideology to Mr Borenstein and has engaged in advocacy in the community against terrorism. The affidavit provided by the applicant's father annexed a pamphlet produced by the Islamic Dawah Centre of Australia (IDCA). That pamphlet was being distributed by the applicant to members of the public and was seized by the police. The pamphlet is entitled "Islam is not a religion of extremism" and includes a paragraph titled "Islam denounces terrorism" condemning acts of terror and promoting "peace, forgiveness and mercy".
Counsel for the Director referred to social media posts made in the months preceding the applicant's arrest and said this exhibited an escalation of the applicant's activities in May of 2021. A careful analysis of the material upon which the prosecutor relies does not indicate an "escalation" but rather the posting of material, alleged to be extremist in nature, openly to his Instagram accounts. For example on an Instagram account called 'grandsonsofthesahabah' the applicant posted: 1. An image of a figure in armour carrying a sword with words "Narrated 'Abdullah Din Adi' Aufa: Allah's messenger said: Know that paradise is under the shade of a sword" overlaid over the picture. 2. An image of a figure in armour carrying a sword with the words "Fighting against Shirk and kufr was the mission of Messengers… Now that they are gone, will you honour their legacy or pass by in this world as dust which was born, traversed in the land, disappeared, and gave no fruits to the earth?" overlaid over the picture. 3. An image of a figure in armour carrying a flaming sword with the words "5 things given to the Seal of all prophets" overlaid over the picture. 4. An image of a shadowy armoured figures riding horses and carrying weapons with the words "Zaid ibn Haritha, Jafar ibn Abi Talib, Abdullah ibn Rawahah in the battle of Mu'tah" overlaid over the picture. 5. An image of a figure in armour with angel wings with the words "carried by the angels" overlaid over the picture.
Dr Shanahan did not provide an opinion as to the significance of these posts, possibly because they were not included in the material available to him at the time he prepared the report. The Prosecutor submitted that the posts "speak for themselves". Mr Charkawi analysed each of the Instagram posts in the context of other Instagram posts from a similar time that were not included in the statement of facts. Mr Charkawi did not consider that the content was indicative of the applicant being a member of ISIS or holding violent extremist views. He said: "In my opinion, when these Instagram posts are considered in the context of the other historical posts and the posts referencing the overarching principles of the religion, a very different picture is presented than the one alluded to in the Statement of Facts, the posts are contextualised."
Reference was also placed by the prosecution on screenshots and posts found on "an initial review" of the applicant's mobile 'phone. [27] This included a "post" about "self defence knife fighting" wherein somebody (presumably the applicant) referred to the person who posed the material as "reckless" and somebody who should be "blocked". On a different mobile 'phone there were screenshots of guides to making explosives. Investigations are continuing and the timing and source of the material is unclear. In spite of the ambiguity surrounding these posts and images, their very existence on the applicant's devices raises real bail concerns.
While the applicant's parents are supportive and he is from a loving family, I accept the Director's submission that they may not, by themselves, be able to restrict or monitor all of the applicant's activities. So much is established by the fact that Mr Saadieh was able to collect the large amount of ISIS propaganda at a time he was living with at the family home, which is also the proposed bail address. However, the family have agreed to cut off their internet access during the period of remand and conditions can be fashioned that ensure the applicant is unable to continue to access extremist material on the internet. It must also be acknowledged that there was no evidence that the applicant had taken steps to engage in any violent activity or made any attempt, for example, to gain access to weapons or obtain ingredients to make explosives.
I am not convinced that the bail conditions need to be as detailed as those proposed by the applicant but I am satisfied that stringent bail conditions along those lines, including what amounts to house arrest except for particular identified activities (such as reporting to police and attending counselling directed to de-radicalisation), mitigate the risks to the point where the bail concerns do not rise to the level of being "unacceptable risks" for the purpose of s 19 of the Bail Act. In reaching that conclusion I have considered the magnitude of the risk involved rather than simply weighing the likelihood that the risk will manifest itself. [28] The conditions will include a prohibition on the applicant accessing the internet and communicating via social media and, if enforcement conditions are sought by the Prosecutor, a requirement that he agree to police accessing his home and searching any devices he is using or to which he has access.

[17]

Electronic monitoring

I have considered the evidence and arguments going both ways in relation to electronic monitoring. I have considered the observations of Fagan J in R v Bail Applicant M [2020] NSWSC 1685 which were also drawn to my attention in Bertucci v Director of Public Prosecutions (Commonwealth) [2021] NSWSC 240 (Decision Restricted). Some of the matters put against electronic monitoring, including the failure of Attenti in past cases and the resourcing issue raised in the statements of the NSW and Federal Police, are significant and must be taken into account. However, I remain of the view that there will be cases where electronic monitoring will be appropriate. I am unable to accept that the police are not able to respond to Attenti's notifications if electronic monitoring is ordered by this Court. Having said that, I am not satisfied that electronic monitoring is a practical and necessary condition to impose in the present case. I am satisfied that the house arrest conditions, along with enforcement conditions that can be imposed under the Bail Act, are sufficient and that electronic monitoring is not required in the particular circumstances of this case.
Further, the cost of the system is said to be $25,000 which was to be borne by the applicant's family. In the circumstances, I am of the view that the other stringent conditions can protect the community and the money that would have been spent on electronic monitoring can be used as a cash security, which provides greater protection against the concern that the applicant will not appear than the promise to forfeit $20,000 as proposed by the applicant.
For those reasons, I propose to allow conditional bail and will shortly read the conditions onto the record.
I have considered the comprehensive conditions proposed by the applicant, a copy of which will be annexed to this judgment and marked "A".
As I have said, I do not propose to include the electronic monitoring condition. I have amended the conditions to simplify them. In some instances, I have made the conditons more comprehensive by casting them in general, rather than specific, terms. For example, rather than listing some 17 particular social media and messaging platforms, I propose a general ban on accessing any social media or messaging website, app or platform. Rather than a complete ban on accessing a telephone, I would allow the applicant to possess one mobile telephone but not one capable of accessing the internet. He will be required to provide the details of that phone to the Officer in Charge. I have added three names to the list of people with whom he is not to associate. These are names referred to in the letter from the JCTT. [29] I have deleted the prohibition on employment and electronic commerce because those conditions are superfluous in the light of the conditions concerning house arrest and prohibition on access to the internet.
The enforcement conditions proposed by the applicant can only be imposed if requested by the prosecutor and if they are reasonable and necessary. If so requested, I will impose enforcement conditions including conditions allowing police to check that the applicant is complying with the house arrest condition and requiring the applicant to allow investigators to access any telephone or other device he owns, uses or possesses.
The bail conditions are annexed to this judgment and marked "B".

[18]

Stay

When I indicated my intention to reserve my decision and called for tables relating to sentencing the following exchange (as recorded in the transcript) occurred: "[COUNSEL FOR THE DIRECTOR]: Before your Honour adjourns, the issue of how your Honour is to deliver judgment (inaudible). HIS HONOUR: I did not hear that. [COUNSEL FOR THE DIRECTOR]: I indicate to the court at this stage and it is only ventilated for the purposes of the practical reality of your Honour reserving judgment is that I have instructions that, if your Honour were to grant bail and make a finding as to exceptional circumstances, that the Commonwealth Director would be filing an appeal. And the reason I raise that now is that, in order for your Honour's decision to be stayed, the court needs to be notified immediately upon delivering judgment by the Commonwealth Director. I just enquire as to how your Honour is delivering judgment, is your Honour intending to convene the parties or to simply publish the judgment? HIS HONOUR: I would be convening the court and the usual process would be that when I made a decision I would be advised that there was to be an appeal, and if I was asked to stay, I would probably do that as well." [30]
This exchange ought not to have occurred.
Subject perhaps to minor variations made by consent, bail decisions of this Court are delivered in open court in the presence of the parties. If one of the parties seeks a stay, or seeks to agitate the practicality of proposed conditions, or to foreshadow an appeal, the time to do so is after the decision is made. It is difficult to imagine a case where it would be appropriate to foreshadow an appeal before the decision is made. The appearance otherwise, especially with a large institutional client such as the Commonwealth Director, is that inappropriate pressure is being applied to the judicial officer to decide the case in a particular way.
I hasten to say that I believe counsel in this case did not intend any discourtesy and did not intend to act inappropriately or improperly. I am quite certain that the Director had no intention of exerting improper or inappropriate pressure on the Court. I believe there was genuine mistake arising out of an ill-founded concern that the judgment may not be delivered in open court and in the presence of the parties. Counsel also had a duty to raise the possibility of an appeal immediately after the decision was made in order that the decision be stayed (by order or operation of the statute). Counsel's error of judgment may also have arisen because many judgments in civil cases during the current COVID-19 crisis are being published on the internet with the parties being notified electronically. However, as far as I am aware, that is not a procedure adopted in criminal cases.
In the present case, there are two courses open to the Director.
First, they could make a detention application to the Court of Criminal Appeal pursuant to the powers of that Court under s 67(1)(e) of the Bail Act. If such an application is foreshadowed, and if a stay is sought, I will stay the orders I am about to make on appropriate conditions.
Secondly, s 15AA(3A)(a) of the Crimes Act provides for an appeal against a decision to grant bail if the bail authority (that is, this Court) is satisfied that exceptional circumstances exist. Section 15AA(3C) provides for a statutory stay of the decision to grant bail if the Director immediately notifies the authority that they intend to appeal against the decision. Section 15AA(3D) provides for the length of the stay, which relevantly in this case is a maximum of 72 hours.
Once I have read out the bail conditions, I propose I will hear further from counsel on this issue or a detention application or a stay.

[21]

Endnotes

See, for example, R v NK [2016] NSWSC 498 at [26] cited with approval in subsequent cases including AB v R (Cth) [2016] NSWCCA 191 at [15] and Lelikan v DPP (Cth) [2016] NSWSC 1467 at [29] ff.
Written submissions of counsel for the Director (DS) at [5].
Section 22A(1) provides that "[d]espite anything to the contrary in this Act, a bail authority must, unless it is established that exceptional circumstances exist, refuse bail for - (a) an offence under section 310J of the Crimes Act 1900, or (b) any other offence for which a custodial sentence may be imposed, if the bail authority is satisfied that the accused person - (i) before being charged with that offence, has been charged with a Commonwealth terrorism offence or an offence under section 310J of the Crimes Act 1900 and the proceedings relating to the offence have not concluded, or (ii) has previously been convicted of a Commonwealth terrorism offence or an offence under section 310J of the Crimes Act 1900, or (iii) is the subject of a control order made under Part 5.3 of the Commonwealth Criminal Code.
Bail Act, s 19; DS at [41]-[52].
Schedule to the Criminal Code Act 1995 (Cth).
Pages 97-100.
[2020] HCA 36; (2020) 94 ALJR 981 at [49] (Bell, Keane, Nettle and Gordon JJ).
See definition of "member" in s 102.1 of the Code.
It is assumed this is a reference to an earlier version of the Statement of Facts. The version tendered on the bail application defines "bay'ah" at paragraph [32].
R v Abdirahman-Khalif [2020] HCA 36; (2020) 94 ALJR 981 at [49] (Bell, Keane, Nettle and Gordon JJ).
R v Abdirahman-Khalif [2020] HCA 36; (2020) 94 ALJR 981 at [60] (Bell, Keane, Nettle and Gordon JJ).
R v Abdirahman-Khalif [2020] HCA 36; (2020) 94 ALJR 981 at [99].
See, for example, Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [44], R v Kugor [2015] NSWCCA 14 at [35], R v Cain (No.1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9].
Tcpt, 09/09/2021, p 15.
DS [59].
Tcpt, 09/09/2021, p 9.
Exhibit A, p 54.
See R v EB [2018] NSWSC 201 at [94] (Davies J) and R v Taleb (No 5) (Sentence) [2019] NSWSC 720 at [114] (Hamill J).
Exhibit B, pp 61-63.
Tcpt, 09/09/2021, p 21.
COVID-19 and bail considerations, see, for example: Rakielbakhour v DPP [2020] NSWSC 323 at [12]-[16]; 279 A Crim R 280, Re Hooper (No 2) [2021] VSC 476 at [55]-[57], Re Diab [2020] VSC 196; 282 A Crim R 462 at [38], Re Broes [2020] VSC 128 at [35]-[42]; (2020) 279 A Crim R 271, Gray (a pseudonym) v R [2020] NSWSC 390 at [18]-[19], [21], Re Kennedy [2020] VSC 187 at [6], Thomas v Kitching [2020] VSC 206 at [67]-[68], Re JB [2020] VSC 184 at [40]-[42], Re Nicholls [2020] VSC 189; (2020) 279 A Crim R 289 at [36]-[38]. COVID-19 and sentencing, see, for example: Brown v The Queen [2020] VSCA 60 at [48], McKinnon v R [2020] NSWCCA 106 at [32], Scott v R [2020] NSWCCA 81 at [166], R v Despotovski [2020] NSWDC 110 at [36], R v Tangi (No 12) [2020] NSWSC 547 at [57]-[58], R v Kelso [2020] NSWDC 157 at [46], Valentine v R [2020] NSWCCA 116 at [60], [62], DPP v Hersi [2020] VSC 347 at [26].
See, for example, Valentine v R [2020] NSWCCA 116 at [51] and [62], Scott v The Queen [2020] NSWCCA 81 at [162], [166], R v Tangi (No 12) [2020] NSWSC 547 at [55].
DPP v Hersi [2020] VSC 347 at [26].
See, for example, R v Broes [2020] VSC 128 at [46].
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25] in the context of the show cause test in ss 16A-16B of the Bail Act.
R v NK [2016] NSWSC 498 at 26.
Exhibit A, p 49 contained in the addendum to the statement of facts.
See, for example, State of New South Wales v Elomar (Final) [2021] NSWSC 411 at [12] (Hamill J) quoting State of NSW v Ceissman [2018] NSWSC 508 at [26]-[32] (Rothman J) in the context of determining "unacceptable risk" in terrorism high-risk offender matters.
Exhibit A, pp 55-56.
Tcpt, 09/09/2021, pp 28-29. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2021

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