Hammoud v DPP [2006] VSC 516

2 Each of the offences upon which Hammoud is indicted is a terrorism offence. The presumption is rebutted only if exceptional circumstances exist to justify bail. Thus, the onus is upon the applicant to satisfy the court affirmatively that such circumstances exist. The word "exceptional" has received judicial attention in many cases, including cases involving a reverse onus with respect to bail; see, for example, United Mexican States v. Cabal[1] where the case concerned bail pending extradition; and DPP (Cth) v. Tang & Ors[2], a case in this Court concerning bail pending trial. There are many others.

3 What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective "exceptional".

4 Here the applicant has put an argument which relies upon a combination of factors as constituting exceptional circumstances. He says that he would have, if he were released on bail, appropriate living conditions in that he would reside with his wife and children in a house partly owned by his father. He says that his wife has recently had a baby and he has a two-year-old son, so that he has at least legal care and guardianship of two young children. He says he has a supportive family. He says that they are strong and close. I accept the evidence of the applicant's father that he would support the applicant to the best of his ability on bail, but I am not so sure that he has the influence over the applicant that he believes he has.

5 The applicant points to the prospect of full employment and there is a letter from his employer to that effect which has not been challenged by the Crown. He says that he would report to police, undergo a curfew, abide by a curfew and that he could put up adequate surety, or it could be put up on his behalf. He says that the circumstances of his remand are onerous. In this regard the Crown has filed an affidavit by David Maxwell Prideaux, the manager of Barwon Prison, which sets out in some detail the conditions of the applicant's remand. Those conditions, as set out by Mr Prideaux, have not been challenged and, in particular, there has been no allegation made of its being difficult beyond the ordinary for the applicant to obtain legal advice and to consult with counsel with respect to his trial, however onerous it might be for them having to travel to Barwon to undertake that activity.

6 Finally, the applicant says that the Crown case is not strong. This ground was sought to be advanced by cross-examination of a police officer who swore a very long affidavit, very little of which related to the applicant. However, what did relate to him constituted some evidence of association with others in what might ultimately be proved to be an organisation. Whether it will be proved to be an organisation having the necessary characteristics to be appropriately classified as a terrorist organisation must await a full ventilation of the evidence.

7 There is some evidence of payment to a common fund by the applicant, although again the characteristics of that fund must also await the trial. No weapons, chemicals or other nefarious things usually associated or said to be associated with persons engaged or to be engaged in terrorist activities were found on the applicant or at his house.

8 The applicant's problem at this application is that none of these circumstances is in any sense unusual, let alone exceptional. About the only circumstance which is not yet, but which may become exceptional, is that created by the relatively low level of the applicant's involvement in these alleged crimes and the low level of the crimes themselves in the panoply of terrorism offences as measured by their maximum penalties when compared to others of those offences.

9 When one compares those factors with the length of time the applicant might have already spent in custody at some time in the future, it would not be appropriate to say that a bail application would not succeed.

10 A bail application at some point in the future may be able to be based on an exceptional circumstance related to the length of a possible sentence compared to the time already served on remand, but that situation has not yet arisen and it may never arise.

11 Mr Backwell for the applicant placed much emphasis on the presumption of innocence to which the applicant is entitled, and the obvious fact that bail is not intended as punishment, but as merely ensuring the accused's attendance at trial. Neither of these principles has been forgotten, but the legislature has seen fit to remove the ordinary presumption as to bail in cases such as this.

12 In this case, unfortunately for the applicant, I am not satisfied that the facts are such that the statutory presumption against bail has been rebutted in this case.

[1] [2001] HCA 60; (2001) 183 ALR 645.

[2] (1995) 83 A Crim R 593, 596.