HIS HONOUR: The applicant Alo-Bridget Namoa seeks release on bail and makes an application, according to her written submissions, for bail pursuant to s 15AA(1) of the Crimes Act 1914 (Cth) (hereinafter "the Commonwealth Crimes Act") and Part 3 of the Bail Act 2013 (NSW). The circumstances of this "reserved" judgment and the hearing of the matter need recounting.
The matter was given an estimate of one hour by the parties and was brought on for hearing in the Bail list at 3 PM. At 4:20 PM, the Commonwealth DPP (hereinafter "the DPP") was asked how much longer they would be, to which they responded they had only been "20 minutes". Of course, that was 20 minutes after having filed a 17-page written submission, accompanied by a 117-page bundle of material including affidavits. 20 minutes is the time provided for special leave applications in the High Court.
Because the reporting service no longer sits beyond 5 PM, there was insufficient time at the conclusion of the hearing for the Court to issue judgment. As a consequence, even though, technically, this judgment is reserved, it has been dealt with as if it were a judgment delivered ex tempore on account of a full bail lists on the following days of the week.
Despite the 17 pages of written submission, on behalf of the DPP, and 14 pages of written submissions by the applicant, neither party referred the Court to the circumstances that give rise to the jurisdiction of the Court to grant bail.
On a previous occasion, in matters unrelated to the current matter, the Court, as presently constituted, has expressed the view that, notwithstanding the limiting provisions in the Bail Act, the Court has or may have inherent jurisdiction to grant bail. If the Court were possessed of inherent jurisdiction arising from its establishment as a superior court of record with the jurisdiction of all the courts of Westminster under the Third Charter of Justice of 1824 and/or s 23 of the Supreme Court Act 1970 (NSW), such jurisdiction ought not be exercised, other than in exceptional circumstances, when there is a legislative scheme dealing with the grant and/or refusal of bail.
The jurisdiction of the Supreme Court under the Bail Act is conferred by s 66 of the Bail Act and confines the Court's capacity to hear a release application for any offence to circumstances where bail for the offence has been refused by another court, authorised justice or police officer. No material before the Court, at least provided by either party, refers to any prior refusal of bail in relation to this applicant.
The provisions of the Commonwealth Crimes Act, and in particular s 15AA thereof, are a restriction on the jurisdiction otherwise to grant bail and not, in and of themselves, a grant of jurisdiction. As earlier stated, there is no reference, in any of the voluminous documents provided by the DPP, or by the applicant, to a prior application for and refusal of bail.
Apparently, as a result of the Court's own enquiries through electronic records, otherwise known as JusticeLink, bail was refused for Ms Namoa on 28 July 2020 by Magistrate R. Brender at the Local Court at Parramatta. As a consequence, s 66 of the Bail Act grants to the Court, as presently constituted, jurisdiction to deal with the release application.
[2]
Charges and background
The applicant was originally charged and convicted by a jury of conspiring to do acts in preparation of a terrorist act, contrary to ss 101.6(1) and 11.5(1) of the Criminal Code Act 1995 (Cth) ("the Criminal Code"). For that offence, the applicant was sentenced to a term of imprisonment of three years and nine months, commencing 23 March 2016.
As a consequence of the terrorism nature of the offence with which the applicant was convicted, the Federal Court determined that there was a risk such that it imposed a 12 month Control Order on the applicant. That Order was made by Rares J, on 19 December 2019.
The Control Order had a number of conditions. The conditions were imposed pursuant to an Interim Control Order, which was made final by order of Rares J on 3 February 2020. That Control Order was issued pursuant to s 104.4 of the Criminal Code, the Court having found that the respondent had been convicted of an offence relating to terrorism and that the conditions in the Control Order are, or were, reasonably necessary, reasonably appropriate and adapted as prescribed by that provision.
During the course of the submissions on this application for bail, the applicant relies upon the appeal to the High Court of Australia, for which leave has already been granted, relating to the initial conviction. However, the appeal raises the issue as to whether a conspiracy can arise between spouses. It does not challenge the underlying facts that gave rise to the agreement or conspiracy.
The making of an order, being a Control Order, under the provisions of ss 104.4 and/or 104.14, is not confined to circumstances where there is an existing conviction. It is sufficient for the Court to be satisfied, in order to make a Control Order or an Interim Control Order, that, on the balance of probabilities, the order "would substantially assist in preventing a terrorist act".
A Control Order may also be based upon a conviction and, in this case, was based on a conviction. But, if the applicant were able to persuade the High Court that the conviction should be overturned, as a result of her conduct together with her then spouse not constituting a conspiracy, because of the relationship between the two of them, the conduct would, by definition, involve a terrorist act and a Control Order would, necessarily, substantially assist in preventing a terrorist act.
Thus, the possibility that the High Court will overturn the initial conviction, because of the basis upon which that conviction is being challenged, does not or would not render the Control Order invalid. However, having made that comment, given that the Federal Court relied upon the conviction, as the basis for the Control Order, if a Control Order were a continuing requirement, it would seem, on its face, that the Commonwealth would need to reapply and have the Court exercise its jurisdiction otherwise than on the basis of the conviction, assuming, for present purposes, that the conviction were overturned.
Nothing in the foregoing should be taken as a view that, in the 21st century, the High Court would accept that it is inappropriate or impossible to have a conspiracy between spouses, which is based upon the ecumenical or Canon Law rule that husband and wife were but one person: Erunt animae duae in carne una. For all practical purposes, historically, the "one person" was the husband and the jurisprudential basis, assuming there is a basis, was said to be that "the very being of legal existence of a woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband". [1]
The doctrine was the subject of comment in Charles Dickens' Oliver Twist in which Bumble, the beadle, uttered the immortal words: "if the law supposes that … then the law is an ass". It is a legal fiction that, as a result of this grant of special leave, the High Court will have the opportunity to consider.
The fiction accompanied the capacity of a husband to chastise a woman with a rod; the proposition that women were unable to own property independently of their husband; that a woman killing her husband was guilty not of murder but of petty treason; and that a wife had no capacity to sue or be sued in common law, separately from the husband.
The historical basis for the proposition has never been expressly abolished, but, as it applies to conspiracy, was overruled in the United Kingdom. [2]
The Control Order issued by Justice Rares on 3 February 2020, or, more accurately, confirmed on that date, required the applicant to remain at particular premises; report to police officers at particular times; and imposed a number of other prohibitions. Of most relevance, there is a prohibition from accessing or using any mobile telephone or device other than one that has been permitted by the relevant AFP authorities and, further to that restriction, prohibits the applicant from causing or permitting any other person to use or access the permitted mobile phone, either on behalf of the applicant or otherwise, and, in relation to any such mobile phone, the applicant is prohibited from accessing a number of encrypted services including "WhatsApp".
On 25 July 2020, the applicant was arrested and charged with seven counts of contravening the Control Order and three counts of attempting to contravene the Control Order. It is in relation to those offences, for which the applicant was arrested on 25 July 2020, that bail is sought.
Those charges include two counts of use, either personally or by another on her behalf, of Whatsapp; seven counts of permitting or causing another person to use the otherwise permitted phone; and one count of failing to report to the Police in accordance with the Control Order.
Each count and/or offence carries a maximum penalty of imprisonment for five years. Each offence is defined as a terrorism offence for the purposes of the Criminal Code and none of the offences are "show cause" offences for the purposes of s 16A of the Bail Act 2013 (NSW). As a consequence of the operation of the Criminal Code and, in particular, s 15AA thereof, the Court is required, in order to grant bail, to be satisfied that exceptional circumstances exist to justify bail.
[3]
Exceptional circumstances
The Court has been provided with authority on the use of the term "exceptional circumstances". [3] It is sufficient for present purposes to refer to a judgment of the Court, as presently constituted, albeit one in which exceptional circumstances was analysed in the context of the former Act [4] and, in particular, s 9D of the former Act. It is sufficient for present purposes also to refer, as did Adamson J, to the expression of Harrison J that, to be exceptional, is "a reference to the regularity with which [the circumstance] might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question."
The former Act required the Court to be satisfied of exceptional circumstances justifying the grant of bail in relation to repeat offenders in personal violence matters and in that context the Court, as presently constituted, said:
"[19]. Clearly the expression contemplates satisfaction by the Court or, although irrelevant for current purposes, an authorised officer, and the satisfaction must be to "exceptional circumstances" justifying the grant of bail. Section 32 of the Act provides that the Court must take into account certain
considerations and only those considerations in determining the question
of whether or not to grant bail. Section 32 has been described as a
mandatory, exhaustive and exclusive statement of the criteria to be
considered in bail applications. (See R v Hilton (1987) 7 NSWLR 745 at
750B).
…
[21]. I have been referred to a Judgment of His Honour Justice Dowd in
Tapueluelu (NSWSC, unreported, 5 January 2001) in which His Honour
considered the provisions of s 9D of the Act and commented:
"Section 9D mandates that a Court must not grant bail in respect of a serious personal violence offence, which this is, if the person is a repeat offender, unless the Court is satisfied that exceptional circumstances justify the grant of bail.
The Legislature has, in the past used the words 'special and exceptional circumstances' and has done so in this Act, but has not previously just used the words, 'exceptional circumstances'. It sets an onus on the applicant of a very high order and requires something more than special circumstances or just circumstances."
[22]. With respect to His Honour, the use of the term "special and exceptional circumstances" would require that the circumstances be both special and exceptional. The use of the term "exceptional circumstances" means that the circumstances need to be exceptional but not necessarily special. "Special" is defined by the Macquarie Dictionary as "relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional". Thus the distinction between "special and extraordinary" and "extraordinary" may be more illusory than substantial.
[23]. The Macquarie Dictionary defines the word "exceptional" as:
"1. forming an exception or unusual instance; unusual;
extraordinary.
2. exceptionally good, as of a performance or product.
3. exceptionally skilled, talented or clever."
[24]. The Oxford English Dictionary defines the word "exceptional" as:
"Of the nature of or forming an exception; out of the ordinary course; unusual, special."
[25]. Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or
situation out of the ordinary or unusual the mandatory requirement otherwise contained within s 9D(1) of the Act will no longer apply. "Special" on the other hand, seems to imply a unique situation or one which pertains only to that individual" [5]
[4]
Consideration
The applicant submits that the Crown case is weak essentially on the basis that the evidence points to another person using the permitted phone but does not establish, beyond reasonable doubt or at all, that the applicant "caused or permitted" the use of the phone by that other person. The underlying assumption in this submission is that in order to permit another person to use the permitted phone, the applicant was required to solicit the use of it. On its face, there seems to no such requirement.
Unless it can be said that the use of the phone by another was accidental or forced, by duress or otherwise, there is an obvious inference that such use was permitted and therefore the breach arises. It may be that, at trial, a court takes a different view, but it cannot be said, on the facts before the Court, that the Crown case is weak.
Over and above the foregoing, the applicant relies upon the fact that there had been no breaches of bail; she may spend 12 months in custody awaiting trial; she has suffered mental distress in custody; and has some symptoms of a psychiatric disorder, albeit in circumstances where no such disorder has been diagnosed.
The breach of the Control Order by the applicant does not, in and of itself, seem to give rise to a threat or danger or risk of threat or danger to the safety of any individual or the community at large. Further, the applicant does not seem to be a flight risk.
There is evidence of the existence of a threat posed by the applicant, which, view was confirmed by Dr Furst. But that "threat" is conditioned on circumstances that have not been shown in these proceedings to subsist currently.
If the Court were unconstrained by the provisions of s 15AA of the Commonwealth Crimes Act, there would be good reason to grant parole. Even if the Court were constrained only by the requirement of the applicant to satisfy the Court that her continued incarceration on remand is unjustified, it would seem that such a test would have been satisfied. It is unnecessary for the applicant to satisfy the Court as to the unjustified nature of her continued detention on remand.
However, the circumstances of the case do not, in my view, bring the case outside one that would regularly be expected to occur, regardless of whether the nature and quality of the circumstances are "just" or otherwise.
In all the circumstances, the Court, constrained as it is by the provisions of s 15AA of the Commonwealth Crimes Act, does not find "exceptional circumstances" and bail is refused.
[5]
Endnotes
B1. Comm., Vol 1, p 442.
Midland Bank Trust Co Ltd v Green [1981] 3 All E. R. 744.
R v Khayat (No 11) [2019] NSWSC 1320, per Adamson J, at [12]-[13]; R v Naizmand [2016] NSWSC 836, per Harrison J, at [8] and [38].
Bail Act 1978 (NSW).
R v Daron John Wright (Supreme Court of New South Wales, Rothman J, 7 June 2005).
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Decision last updated: 18 December 2020