Lelikan v Director of Public Prosecutions

Supreme Court of NSW|2016-10-06|Before: Adams J, Studdert J, Rothman J, Mr P

Solicitors: Miers Legal (Applicant) Office of the Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2016/231441

Judgment

Renas Lelikan ('the applicant") makes a release application under s 49 of the Bail Act 2013 (NSW) ("the Bail Act"). He has been charged with being a member of a terrorist organisation, namely, the Kurdistan Workers' Party ("PKK"), between 17 December 2005 and 23 October 2015 contrary to s 102.3 of the Criminal Code 1995 (Cth). The maximum penalty for this offence is ten years' imprisonment.
The applicant has been in custody on remand in relation to this charge since his arrest on 20 July 2016.

The prosecution case

Against the above background the prosecution case against the applicant can be summarised as follows.
The PKK has been listed as a terrorist organisation in Australia under the Criminal Code since 17 December 2005. That listing was maintained as recently as 11 August 2015. This means that the CDPP does not need to prove that the PKK is a terrorist organisation; it need only prove that the applicant is a member of the PKK.
The official Australian Government National Security website describes the PKK as being recognised under 18 different titles, including Hezen Parastina Gel ("HPG") translated as the "People Defence Force". Its leader Abdullah Ӧcalan is currently in gaol serving a life sentence in Turkey. The website also states that, from its inception in 1978, the PKK was primarily committed to the creation of an independent Kurdish state in south-eastern Turkey, Syria and Iraq. Its objectives have changed over time and the organisation now calls for autonomy for Kurds within Turkey and seeks to promote the rights of Kurds living in Turkey, specifically to maintain a Kurdish ethnic identity. Repeated attempts at ceasefire and peace talks have thus far failed.
Following the applicant's return to Australia in July 2015, the AFP conducted extensive internet inquiries between October 2015 and February 2016 using search items including "Renas Lelikan", "Jehat Berti", "PKK", "HPG" and "PKK Guerrilla". The AFP located articles allegedly written by or about the applicant and images of him, some of which depict him wearing the HPG uniform. Police also located social media profiles that have published, posted or re-posted images of the applicant as a HPG member or participating in PKK related conduct.
One of the articles said to be written by the applicant was located on a pro-PKK website and is alleged to have been written by the applicant under the name "Jehat Berti". It concerned a PKK militant who was "martyred" on 8 October 1992. Another article was located on other pro-PKK websites and is described as an interview with the applicant in relation to two books that he had written about the PKK.
Some of the images of the applicant in uniform depict him with magazine pouches and grenades and/or carrying a Kalashnikov rifle consistent with HPG fighters. Some depict him wearing a PKK or HPG insignia above or on his left breast pocket. Some images depict him being equipped as an HPG fighter and also wearing a HPG or PKK insignia and other images depict him in the company of prominent HPG commanders.
Statements have been obtained from two PKK experts, Professor Nihat Ali Ӧzcan of Turkey and Doctor Mustafa Murat Yurtbilir of the Australian National University. Their expert evidence concerns the operation of the PKK. They assert that the HPG is the recognised military wing of the PKK, with their training tactics being guerrilla warfare. Although all HPG members are members of the PKK, not all PKK members are necessarily HPG members. The Makhmour refugee camp, located in northern Iraq, is controlled by the PKK. The role of HPG, in addition to fighting the military and police forces, is also to punish those civilians who oppose orders from the HPG leadership.
It is anticipated that the experts will opine that the HPG members use code names and are politically and ideologically indoctrinated. They wear khaki or camouflage uniform. The uniform comprises "Mekap" shoes, which are reddish dark brown or beige trekking style shoes, puffy pants known as 'Salva' and a shirt of matching camouflage colour worn under a vest with multiple pockets. Wrapped around the waist is a long fabric belt that has multiple tactical uses. On the vest, above the left breast pocket, some HPG members wear special insignia or badges. Some examples of the insignia are the PKK flag, the triangular HPG emblem, and a red badge that depicts the face of Abdullah Ӧcalan or a map of the notional Kurdistan borders. They are not standard on the uniform and their existence shows an attachment to the PKK.
The HPG relies on an established propaganda wing that publishes its military activities daily on the internet. The prosecution proposes to rely upon the expert evidence of Associate Professor Ӧzcan that the articles said to have been written by the applicant are typical propaganda publications used by the PKK and that the articles contain romanticised propaganda to inspire Kurds, especially the youth, to join the PKK. Associate Professor Ӧzcan was shown images that depicted the applicant in uniform with his face redacted. He concluded that the images depicted a member of the HPG/PKK.
An expert in firearms attached to the AFP, Cristian Pieterse, examined the images and opines that all the firearms depicted are a variant of the Kalashnikov rifle. In his opinion several images depict the same rifle based on that rifle's unique features and one image has a distinctly different variant of the Kalashnikov rifle.
Another AFP expert, facial forensic examiner Jason Prince, compared known images of the applicant with in an image where he is depicted equipped as a HPG fighter and wearing a PKK insignia. He concluded that the two images depict the same person.
Finally, the prosecution relies upon the evidence of two Danish witnesses. Danish journalist Jesper Larsen wrote an internet article titled 'Europe's Last Marxist' in June 2013. The article was about his visit to the PKK territory where he was accompanied by the Danish photographer Magnus Holm. During their visit they met with a number of PKK guerrillas, including the applicant who introduced himself as "Jehat Berti". In the article, the applicant was described to be "one of the older soldiers" who had "an aura of authority about him amongst younger soldiers." Mr Larsen observed fish scale-like scars from severe burns on the applicant, whose explained that he burnt himself because "I felt that I had nothing to lose, and it was the only way I could draw attention to the injustice it was". The applicant further explained that it was following his self-immolation that he joined the armed struggle.
On 17 May 2016, in response to the Mutual Assistance Request from Australian authorities, Mr Larsen and Mr Holm gave separate witness accounts of their meeting with the applicant to the Danish authorities. Mr Larsen stated that he met the applicant for about 45 minutes at the PKK gathering in the mountains of northern Iraq in June 2013. Mr Larson identified the applicant in a photo board procedure. Mr Holm recalled meeting the applicant briefly during their trip to Iraq in June 2013 when they stayed with the PKK. He further recalled that the applicant was dressed the same as the PKK guerrillas and that he declined his request for a portrait. Mr Holme too identified the applicant in a photo board procedure.

The relevant principles - s15AA

Section 3 of the Crimes Act 1914 (Cth) provides that a "terrorism offence" includes an offence against Parts 5.3 or 5.5 of the Criminal Code. The applicant is charged with an offence under s 102.3, which is in Part 5.3 of the Criminal Code. Section 15AA(1) of the Crimes Act hence applies in this bail application. It relevantly provides that: "Despite any other law of the Commonwealth, a bail authority must not grant bail to a person (the defendant) charged with, or convicted of, an offence covered by subsection (2) unless the bail authority is satisfied that exceptional circumstances exist to justify bail. (2) This subsection covers: (a) a terrorism offence (other than an offence against section 102.8 of the Criminal Code ); ……."
The onus is on the applicant to establish, on the balance of probabilities, that "exceptional circumstances" exist. If he does so, then his bail application falls to be assessed in accordance with Division 2 of Part 3 of the Bail Act.
In the recent decision of this court in R v NK [2016] NSWSC 498 ("NK"), Hall J conveniently summarised the relevant authorities concerning s 15AA of the Crimes Act as follows at [26]: "(1) Section 15AA of the Crimes Act 1914 has been said to enact a rebuttable presumption against bail being granted to a person charged with a terrorism offence: Hammoud v DPP [2006] VSC 516 per Bongiorno J at [1]. (2) Section 15AA of the Crimes Act 1914 prevents the court from granting bail unless it is satisfied that exceptional circumstances exist to justify bail. While such a provision requires the applicant to satisfy the court, it does not prohibit bail in all cases. It has been observed that each application for bail, even under these provisions: "…must be so dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances do alter cases and that it is rarely, if ever, that a simple, not to say a simplistic one size fits all approach, will be the best way of achieving a just individual result": Regina v Mirsad Mulahalilovic 2006/763, 1 August 2006, per Rothman J quoting dicta in R v Newbury, Sully J, NSWSC, 27 January 2006, unreported) (3) In Hammoud v DPP, supra, it was observed that as the "presumption" referred to in (1) above is rebutted only if exceptional circumstances exist to justify bail, the onus is upon an applicant to satisfy the Court affirmatively that such circumstances exist: at [2]. (4) Section 15AA sets an extremely high hurdle. The requirement for exceptional circumstances imposes a high test. (5) The word "exceptional" has received judicial attention in many cases. What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective "exceptional": Hammoud v DPP at [3]. (6) The concept of exceptional circumstances is necessarily a flexible one. Such circumstances may be constituted by a combination of matters which taken together may render the case exceptional: Haddara v Commonwealth DPP [2006] VSC 8 at [5] per Osborn J and R v Young [2006] NSWSC 1499 at [19] and [20] per Johnson J (as to s 9C of the Bail Act 1978). (7) Exceptional circumstances is a threshold issue that requires a case-by-case examination and that there is no definitive definition that would apply to all cases: R v Maywand Osman 2015/12786, 12 February 2015 at p 6 per Hall J. (8) In considering the issue of exceptional circumstances, not only can a combination of matters constitute such features but they can include features that are subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise, absent the particular test, that the applicant is otherwise a person who will answer bail: R v Mulvihill [2013] NSWSC 1190 at [10] and [11] per Price J.
In NK, Hall J found that exceptional circumstances had been established, being the vulnerability arising from the youth of the 16-year-old applicant. There was also evidence of the "deleterious effects of detention upon the applicant", but Hall J held that even in the absence of such evidence he would have found exceptional circumstances based on the applicant's vulnerability due to her age.
More recently, in AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042, Beech-Jones J held that a weak prosecution case, the youth of the applicant, his special needs and evidence as to the impact that continued detention would have upon him were such as to amount to exceptional circumstances. Despite this, bail was refused on the basis of unacceptable risks. That applicant made a further release application to the Court of Criminal Appeal: AB v R (Cth) [2016] NSWCCA 191. The Court of Criminal Appeal also held that exceptional circumstances had been established but refused bail on the basis of unacceptable risks. The finding of exceptional circumstances was based on a number of factors, including the weak prosecution case and the applicant's age.
In its written submissions the CDPP relied upon the following five decisions.
In Haddara v Commonwealth DPP [2006] VSC 8, Osborn J observed that the concept of exceptional circumstances is necessarily a flexible one but it is clear that they may be constituted by a combination of matters that taken together render the case exceptional. In that case, the combination of the applicant's seriously confined conditions of custody, including limited access to legal representatives, did not constitute exceptional circumstances.
In R v Khaled Cheikho (Studdert J, NSWSC, unrep 15 May 2006), the applicant was charged with conspiring to do an act in preparation for, or planning, a terrorist attack. That offence attracted a maximum penalty of imprisonment for life. In that case, the applicant relied upon a weak prosecution case, harsh conditions in custody including a negative impact on his mental and physical health, being impeded in the preparation of his defence, lengthy delay and family circumstances. Studdert J was not satisfied that exceptional circumstances had been established on the facts in that case.
In R v Mulahalilovic (Rothman J, NSWSC, unrep 1 August 2006), the applicant was also charged with conspiring to do an act in preparation for a terrorist attack. The applicant in that matter relied upon a weak Crown case, the delay before finalisation of the proceedings and difficulties in preparing his case. Rothman J found that those matters did not amount to exceptional circumstances.
In R v Shoue Hammoud [2006] VSC 516, the applicant had been charged with one count of being a member of a terrorist organisation as well as an additional count of intentionally making funds available to a terrorist organisation contrary to section 102.6(1) of the Criminal Code. In that case, the applicant relied upon favourable subjective circumstances including close family ties, family and community support, favourable employment prospects, and proposed bail conditions. Bongiorno J held that none of those circumstances were unusual let alone exceptional.
Finally, in Raad v DPP [2008] VSC 330 the applicant relied upon his onerous conditions of custody and evidence that he had fallen into a depressive state in custody and was a potential suicide risk. He had close family ties and adequate surety was available. Bongiorno J held that delay and the circumstances of detention were not sufficient to amount to exceptional circumstances on the facts in that case.

The Bail Act

If the applicant can establish that exceptional circumstances exist to justify bail, then that is not the end of the matter. Section 19 of the Bail Act provides that the court must refuse bail if satisfied, on the basis of an assessment of bail concerns pursuant to s 17, that there is an "unacceptable risk". Section 17 and 19 of the Bail Act are, relevantly, in these terms: 17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. … 19 Refusal of bail - unacceptable risk (1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk. (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence.

The applicant's evidence

Mr Phillip Boulten SC appeared on behalf of the applicant. He read a number of affidavits on the application.
First, he relied upon an affidavit from Chayanna Miers, solicitor, sworn on 5 October 2016, describing the conditions of the application's incarceration. She stated that the applicant is currently housed in the facility commonly known as Goulburn "Supermax". He was previously incarcerated at the Special Management Unit at Silverwater with a number of inmates who supported ISIS. He received threats from these inmates. Corrective Services NSW had to relocate him within that unit in order to mitigate the security risk to him. The applicant was only approved for a personal visit for the first time on 22 September 2016. Ms Miers recounted a telephone conversation that she had with Mr Rex Talbot, who is the Assistant Superintendent of the Extreme High Security Inmate Division within Corrective Services. He said to her: "Renas could be reclassified to a lower security classification; however because of the threats he is exposed to by ISIS, the safest environment to him is the super maximum-security facility."
An affidavit of another solicitor, Jessie Smith, affirmed on 5 October 2016 was also read. She deposed to the fact that she had made enquiries in relation to the applicant's failure to appear in France. She attached correspondence from Mr Jean-Louis Malterre, the lawyer who represented him in Paris, France between 2007 and 2013. Mr Malterre stated in correspondence annexed to her affidavit (translated from French to English) that, at the time the applicant departed France, the Turkish authorities had demanded to question any militant Kurds arrested in France. He stated that it is certain that the applicant had "several legitimate reasons to fear extradition to Turkey". Mr Malterre goes on to note that "the French magistrates understood this attitude because although he did not respect the first judicial supervision, he was nevertheless released a second time."
Five affidavits from members of the Kurdish community willing to act as surety for the applicant were also tendered.
Mr Boulten also relied upon documents showing the applicant's accreditation as a journalist and a character reference.
Finally, he relied upon a news item reporting upon the applicant's arrest in which the AFP is quoted as stating, "There is no current or impending threat of a terrorist act to the Australian community arising from this investigation."

The CDPP's evidence

Mr Troy Anderson of counsel appeared on behalf of the CDPP on this application. He relied upon a detailed Statement of Facts, images of the applicant said to be in PKK uniform, the applicant's criminal history, written submissions and a chronology. He also relied upon the affidavit of Angela West sworn on 5 October. The evidence of Ms West can be summarised as follows.
Ms West confirmed that the applicant is being held at the High Risk Management Correctional Centre ("HRMCC") at Goulburn Gaol, also known as "Supermax". That unit houses inmates who have been determined to represent a significant risk to Correctional Centre security and the wider community and who require a higher level of supervision than the general prison population. A number of remand inmates charged with terrorism offences have been housed in the HRMCC. There are currently 17 remand inmates charged with terrorism offences who are housed in the HRMCC.
When the applicant came into custody he was assigned an interim classification of "AA" and an interim National Security Interest ("NSI") designation pending a full security risk assessment. That classification was subsequently confirmed. An inmate is designated NSI if the Commissioner forms a view that the inmate may engage in or incite others to engage in activities that constitute a serious threat to the peace order or good government of the State or any other place.
The strict conditions that apply to the applicant's incarceration result from his security classification and the threats made to him. The applicant currently is not approved to mix with any other inmates. He is segregated from the mainstream population. He is in a cell closest to the wing office because of abuse yelled at him by other inmates. A person may only visit him if approved by the Commissioner. He currently has one approved legal visitor and seven approved personal visitors, which include a psychiatrist and a psychologist. Since being in custody he has only had a total of seven visits: two from his solicitor, four from a psychologist and one from his sister and friend.

The applicant's submissions

Mr Boulten submitted that the combination of eight separate matters together amount to exceptional circumstances in this case
First, he relied upon the fact that there is no evidence that the applicant is a threat to Australia. He returned to Australia about nine months before he was arrested and he was living in the community without any problems. He does not have a history of violence towards others, even in the course of his political activities. His criminal record is old and occurred when he was very young. There is no hint in recent times of any illegal activities in Australia or overseas, apart from his alleged membership of the PKK.
Second, Mr Boulten submitted that the PKK is a different type of terrorist organisation than every other terrorist organisation, either those proscribed under the provisions of the Criminal Code or those proved to be such. Mr Boulten submitted that the PKK is "contested political territory" in Australia, noting that a minority report recently favoured deproscription of the organisation.
Of the 20 organisations that have been declared to be terrorist organisations by the Attorney-General, every one of them besides the PKK is fundamentally an Islamist terrorist group. The politics of the PKK are important in the Australian context. It is no longer the objective of the PKK to establish a separate nation, but to support regional autonomy in Iraq, Syria and Turkey.
Mr Boulten outlined that the PKK announced a unilateral cease-fire in March 2013 and at the time of the consideration of the current proscription the organisation was involved in peace talks with the Turkish Government. Although that situation has since deteriorated, the PKK has recently been involved in extremely important encounters in the area around Mount Sinjar where 50,000 Yazidis were being held hostages by ISIS. It was essentially the PKK, working with Peshmerga and coalition forces, which created a humanitarian corridor to free these people.
It was submitted that the reason that the applicant is being held in such a high level of protective custody is because he is a member of an organisation that is fighting a war against ISIS and there are ISIS sympathisers in the HRMU at Goulburn Gaol. This case is unusual because Australia is fighting a war against ISIS in exactly the same location and in exactly the same circumstances that the PKK, Peshmerga and other Kurdish militias are fighting against ISIS.
Mr Boulten relied upon the decision in Vinayagamoorthy v DPP (2007) VSC 265. In that case two persons were charged with being members of the Liberation Tigers of Tamil Eelam ("LTTE"). Mr Boulten relied upon the fact that there is a similarity between the LTTE and the PKK. The basis of the similarity is said to be that they are both on the same side as the Australian Government.
The third factor relied upon by Mr Boulten is the circumstances of the applicant's return to Australia. His solicitors communicated with the Attorney-General's Department to try and reach some agreement about how he could be extricated from Makhamour. This was difficult process and attracted significant media coverage. The Australian Government made considerable resources available to extricate the applicant and repatriate him. This factor impacts on an assessment of both his risk of flight and his risk of interference with the prosecution. It impacts significantly on the question of risk because the applicant clearly wants to be in Australia.
The fourth factor relied upon as relevant to the question of whether exceptional circumstances exist is the applicant's strong links to Sydney and to the Australian Kurdish community. He has two sisters who live here. Many people are willing to support him by way of surety. He has very strong support from a number of people. This is to be contrasted with the circumstances of his leaving France where he had no family ties.
The fifth factor is the likely length of the proceedings. At the moment investigations are still ongoing. Everything that was seized from the applicant's computer is still being interrogated and it is not primarily in English. There are also Mutual Assistance requests to other countries which, experience shows, can take significant time.
The sixth factor relied upon by the applicant is the nature of the case that has been brought against him. The case is based on expert evidence and the evidence of two Danish journalists who described him as being amongst people who might be PKK militia. Although Mr Boulten accepted there was a case against the applicant, he submitted that it could not be described as strong.
The seventh factor relied upon to establish "exceptional circumstances" is the onerous conditions of custody. The evidence of Ms West was relied upon in support of this aspect of the application. In her affidavit Ms West indicates that even if the applicant were moved to another correctional centre he would have the same classification and the same conditions due to the threats made against him.
The eighth factor relied upon by the applicant is that any unacceptable risks contended for by the CDPP are capable of being mitigated by conditions. This includes over $2 million in sureties being offered as well as his ties to the community.
Overall, it was submitted by Mr Boulten that the rationale behind 15AA is to create an overarching protection for the community against terrorists because they pose threats to the lives of people in Australia and to people overseas. Despite this, s15AA is an Australian law. The Australian Parliament primarily has a duty of care to Australians.

Submissions of the CDPP

Mr Anderson accepted that the applicant does not personally pose a threat to the Australian community. He referred to the AFP Press Release that stated that the investigation of the applicant involves "no current or impending threat of a terrorist act to the Australian community" and submitted that the applicant's arrest neutralised any immediate threat to the community. Despite making that submission Mr Anderson went on to state, "the Crown accepts that he is not an immediate threat to the Australian community".
When questioned as to whether there was any intelligence concerning any risks posed by the PKK in Australia, Mr Anderson responded that he could not "point to any particular threats being made by this organisation".
Mr Anderson next addressed the issue of the applicant's classification in custody. He submitted that what Ms West had deposed to in her affidavit is the default position for someone charged with this type of offence. He conceded that the applicant is having difficulty in custody due to the nature of the offence with which he is charged. He submitted that the applicant is being isolated from all other prisoners, partly for his own safety. He agreed that it is the fact that Corrective Services cannot protect him from other prisoners with ISIS connections, which has led to his higher classification in custody.
Mr Anderson next submitted that the decision in Vinayagamoorthy v DPP is of no assistance because in that case the LTTE had not been declared to be a terrorist organisation by the Australian Government. It was the weakness of the case that was taken into account as a circumstance when granting bail. That is not the case here.
As for the 2006 minority report concerning whether the PKK should be declared a terrorist group by the Australian Government, Mr Anderson sought leave to file supplementary submissions in relation to that issue. Supplementary submissions were received by the court from the CDPP following the hearing which state that, although there was a minority report in 2006, the issue has been considered four times since then and no minority reports have been filed in relation to any of those subsequent declarations.
Mr Anderson next addressed the issue of delay. He conceded that the full brief was not served as yet. He could not indicate when it would be served. He conceded it would not be any time this year. He submitted that the requests for mutual assistance were of a limited scope.
It was next submitted that there was a risk that the applicant would fail to appear to answer his charge if he were released on bail. He submitted that the risk is not theoretical in this matter. There is a record of the applicant fleeing from France twice whilst on bail. He has connections with other countries. Although the affidavit of Jessie Smith annexes emails from the applicant's lawyer in France at that time, that evidence has not been tested. Mr Anderson submitted that there was nothing to explain why he would not do the same should the same circumstances arise again. Nor is there sufficient information before the court as to the relevant bail laws in France. He submitted there is a very real bail concern as to flight.
Mr Anderson relied upon detailed written submissions addressing the relevant case law. Those submissions focussed on the high hurdle presented by s 15AA of the Crimes Act. The CDPP's written submissions identified two bail concerns; namely, the concern that the applicant would fail to appear (s 17(2)(a) of the Bail Act), and that he would interfere with witnesses or evidence (s 17(2)(d) of the Bail Act).
Finally, it was contended on behalf of the CDPP in written submissions that the fact that the applicant is not a threat to the Australian community is not an exceptional circumstance. It was further submitted that the fact that his period in custody is made harsher because of his association with Kurdish politics, making him a target by ISIS inmates, is not an exceptional circumstance. It was further submitted that the fact that the PKK is an enemy of ISIS, which is in turn an enemy of the Commonwealth of Australia, does not put him in a different category to any other person who might be charged with the same offence. This is because the regulations prescribing terrorist organisations do not differentiate between them. If they are proscribed, the motives of their members are irrelevant.

Have exceptional circumstances been established?

The question of what might amount to "exceptional circumstances" has received considerable judicial attention. It is well established that the concept of what can amount to exceptional circumstances is flexible and may be constituted by a combination of matters, which taken together render the case exceptional. The applicant must show that there is something about his situation which is "out of the ordinary": Hammoud v DPP at [3].
In this application, the applicant relies upon a total of eight factors that in combination are said to amount to exceptional circumstances. These are: there is no evidence that the applicant is a threat to Australia; the PKK differs to other proscribed terror groups operating in Australia; the Australian Government assisted the applicant's return to Australia and then permitted him to remain at large for nine months; the applicant has strong family and community ties in Australia; there will be considerable delay until trial; the nature of the case brought against him; the onerous conditions of his custody including the unusual reason for his high security classification; and the fact that any unacceptable risks can be mitigated by appropriate bail conditions.
Turning to the first of the eight factors relied upon it is highly significant that the CDPP has no material to suggest that the applicant is any risk to the Australian community. At the hearing of this application, the CDPP expressly conceded this fact. To use the language of Bongiorno J in Hammoud v DPP at [3], an examination of the relevant authorities demonstrates that it is "out of the ordinary" for the CDPP to submit that a terror suspect poses no threat to the Australian community.
The decision of Bongiorno J in Vinayagamoorthy v DPP, relied upon by the applicant, concerned bail applications which had both similar and different features to the present application. In that case one of the applicants had admitted he was a member of the LTTE when he came to Australia; that was the basis for his legitimate fear of persecution. The applicants had assisted the authorities and remained in the community at a time when they knew they were being investigated. They had not fled the jurisdiction nor done anything to hamper the investigation. A similarity to the present case is that, when they were charged, a Press Release was issued by the AFP and the Victorian Police making it clear that the police did not regard their activities as posing any danger to anyone in Australia.
A significant difference between the bail application in Vinayagamoorthy v DPP and the present application is that the LTTE had not been declared a terrorist organisation by the Australian Government. There were significant difficulties in relation to the Crown case in that matter. As at the time of the charge the LTTE was recognised as a party to the peace process in Sri Lanka and was no longer regarded as a terrorist organisation in that country.
A finding of "exceptional circumstances" was made by Bongiorno J in Vinayagamoorthy v DPP based on a combination of factors; namely, the investigation process to that date had taken almost two years; the applicants had co-operated in that process; the Crown faced evidentiary difficulties; delay would be incurred to the finalisation of the matter; previous good character; and, significantly for the purposes of the present application, the lack of any evidence to support any allegation that the suspects might commit further offences or interfere with prosecution witnesses.
The lack of any evidence to suggest that the terror suspects in Vinayagamoorthy v DPP posed any threat to the community in the form of either further offences or interference with witnesses was just one of many factors that led to a finding of exceptional circumstances in that case. In both the LTTE case and in the present application there was an AFP Press Release to the effect that the suspects posed no risk to the Australian community. It is not clear from a reading of that decision as to whether the CDPP admitted that to be the case for the purposes of the bail application. I have been unable to find any bail application made by a suspected terrorist in which such a significant concession has been made by the CDPP.
The phrase "exceptional circumstances" was included in s 9C of the previous Bail Act 1978 (NSW). That provision provided, inter alia, that bail was not to be granted to a person in respect of an offence of murder unless the court was satisfied that "exceptional circumstances" justified the grant of bail. Some of the cases included in Hall J's summary in NK extracted at [29] include consideration of the phrase in that statutory context: see for example R v Young [2006] NSWSC 1499 at [18] - [21] per Johnson J.
Section 9C of the Bail Act 1978 was enacted in 2003 and considered shortly thereafter by Levine J in R v Hantis [2004] NSWSC 153. His Honour referred to the Second Reading Speech of the 2003 amendment, which listed as a "general guide" factors that could amount to exceptional circumstances including "a case in which the Court is satisfied that the offender poses no threat to the victim or the community." Although that reference in the Second Reading Speech cannot be used to construe the phrase in the context of s15AA of the Crimes Act, it is certainly consistent with the principles gleaned from the authorities I have cited above.
I have also had regard to the circumstances of the applicant's custody. Whether or not the CDPP can prove that the applicant is a member of the PKK, the nature of his charge is no doubt known to other inmates. This has led to threats being made against him by inmates in custody for offences pertaining to their support for ISIS. The affidavit evidence before me on this application showed that the applicant received threats from ISIS sympathisers while he was incarcerated at the Special Management Unit at MRRC at Silverwater and again after he was transferred to the HRMU of Goulburn Gaol on 27 September 2016.
I accept the CDPP submission that once an organisation is declared by the Australian Government to be a terrorist organisation then the motives of its members are irrelevant to the hearing of any charge. Despite this, it does not follow that this fact is necessarily irrelevant to the question of bail. It can potentially be relevant in a number of ways. In this application the CDPP cannot produce any material to suggest the applicant is a threat to the Australian community. This is due in part to the nature of the specific terrorist organisation of which he is charged with being a member. Similarly, it is the nature of the PKK that has created the situation whereby he is being kept as a high security prisoner when he himself poses no risk to the community. This has then led to the onerous conditions described by Ms West in her affidavit relied upon by the CDPP. The applicant would have been moved to a lower classification but for the ISIS threats which have led Corrective Services to keep him in high security for his own safety.
The applicant is being housed with inmates who have been assessed to represent a significant risk. His designation of NSI is reserved for prisoners who might engage in or incite others to engage in activities that constitute a serious threat to the peace order or good government of the State or any other place. His classification is due to threats made to him by inmates in custody on ISIS-related terrorism charges. Again, this seems out of the ordinary.
The maximum penalty for this offence is ten years' imprisonment. The offence is a serious one but by reference to the maximum penalty it is less serious than other terrorism offences that carry life imprisonment. No sentencing range was put before me as to what sentence the applicant might receive were he to be convicted of this charge. This was said to be because no such range exists; the numbers are too small.
It is unfortunate that the CDPP could not provide the court with any estimate as to when a brief of evidence might be finalised in this matter. When pressed Mr Anderson stated that it would not be any time this year, but beyond that was not able to give any estimate. In those circumstances, it is difficult to predict when the matter might come on for trial. In these circumstances delay is yet another relevant factor to take into account along with all of the other matters relied upon by the applicant.
The applicant did not rely upon a weak Crown case as a matter relevant to the assessment. Rather, it was submitted that the nature of the case against him relied upon academic and expert evidence and could not be described as strong. Given the other matters relied upon by the applicant it is not necessary for me to make any findings as to whether the case is either strong or weak for the purpose of this application.
I have had regard to all of the eight matters summarised above at [73] relied upon by applicant to establish that exceptional circumstances exist in relation to his application for bail. I am satisfied that the applicant has established that exceptional circumstances exist in this matter. The threshold test has been met, primarily by a combination of the CDPP's concession that the applicant poses no risk to the Australian community and the unusual circumstances leading to his security classification whilst in custody. The other matters have also been relevant to this conclusion to varying degrees of significance.

Are there any unacceptable risks?

Having found that the applicant has discharged his onus and that "exceptional circumstances" have been established, I then turn to the question of bail concerns.
Of the four bail concerns contained in s 17 of the Bail Act the CDPP relies upon two: that the applicant would fail to appear (s 17(2)(a) of the Bail Act), and that he would interfere with witnesses or evidence (s 17(2)(d) of the Bail Act).
The second of these two bail concerns relied upon by the CDPP was asserted in the CDPP written submissions but no submissions were specifically directed to it in either written or oral submissions. The Crown case is based upon expert evidence, police evidence and the evidence of two Danish journalists. Nothing was put before the Court to suggest that the applicant would interfere with any of these witnesses. A standard bail condition routinely imposed is an undertaking not to contact any prosecution witnesses. If there were a breach of such a condition the applicant's bail would no doubt be re-visited. Furthermore, it is a criminal offence to interfere with a prosecution witness. In the absence of any specific submissions or evidence directed at this bail concern I am satisfied that any theoretical concern would be met by such a standard condition.
The central focus of the CDPP's submissions was the concern that the applicant would flee the jurisdiction if released from custody.
I am satisfied that there is a proper basis for concern that the applicant would fail to appear to answer his charge if released on bail. The applicant breached his bail in France twice to flee that jurisdiction. Furthermore he spent the 10 years between 2005 and 2015 out of Australia.
Mr Boulten acknowledged that this concern is more than theoretical in this matter given the applicant's failure to appear in France as well as his connections outside of the jurisdiction. Despite this, he relied upon the differences between the circumstances of his flight from France compared with the risk he would flee Australia. He has strong ties here, as opposed to in France. Both of his sisters live here. Any concerns could be ameliorated by suitable conditions such that failure to appear is not an unacceptable risk in this matter within the meaning of s 19 of the Bail Act.
I have had regard to all of the material before me and I am satisfied that any bail concerns do not amount to unacceptable risks in this matter. I have reached this conclusion for the following reasons.
First, significant sureties have been offered in this matter. A couple involved in the Australian Kurdish Association are prepared to offer their family home as security in the amount of $2 million because they have "complete confidence" that the applicant would abide by his bail conditions and not do anything to jeopardise their home. Other members of the Association have offered to forfeit smaller amounts between $4,000 and $10,000. Mr Boulten indicated that a greater numbers of sureties could be provided beyond the five advanced on the application if need be. I am satisfied that the applicant has support within the Kurdish community in Australia. During the hearing of the application there was a large number of representatives of the Kurdish community present in court.
Second, I have had regard to the fact that the applicant sought the assistance of the Australian Government to return to Australia. The AFP then assisted his return to Australia. It seems to me unlikely that the applicant would go to such lengths to return to Australia at a time when he was aware the Australian Government suspected he had at the very least PKK sympathies and then flee again. He would no doubt be aware that should he depart Australia on some form of false documentation it is unlikely he would ever be able to return to Australia voluntarily again.
Third, I have had regard to the fact that the applicant was free in the community in Australia for nine months before he was charged.
Fourth, I have taken into account the fact that the maximum penalty for the offence with which he is charged is 10 years' imprisonment. Although this is a serious offence, he is not facing life imprisonment. The length of any term of imprisonment is relevant to the question of whether he would flee the jurisdiction.
Finally, although the applicant's failure to appear in France is of concern I am satisfied that any bail concerns have been met by the strict conditions I propose to impose.

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: 14 October 2020

Bail Act 2013(NSW)ss 17, 19

Crimes Act 1914(Cth)ss 3,15AA(1)

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