R v Khayat

Supreme Court of NSW|2019-06-06|Before: Adamson J

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Birchgrove Legal (Accused) File Number(s): 2017/236835

Introduction

Mahmoud Khayat, the applicant for release, has been in custody since his arrest on 29 July 2017. The Crown opposes the application. The applicant stands charged with an offence of conspiring to do acts in preparation for, or planning, a terrorist act contrary to ss 101.6(1) and 11.5(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of life. It was accepted that the applicant has been charged with a terrorism offence within the meaning of the Crimes Act 1914 (Cth).
The applicant was jointly tried with his brother Khaled Khayat (the first trial). The first trial commenced on 18 March 2019. On 1 May 2019 the jury returned a verdict of guilty in respect of Khaled Khayat. I discharged the jury on 3 May 2019 after having satisfied myself that the jury could not reach a unanimous verdict in respect of the applicant.
The re-trial of the applicant is listed to commence on 5 August 2019. It appears to be common ground that there will be some differences between the evidence called in the first trial and that called in the second, some of which will inevitably relate to the fact that the second trial has one accused, the applicant, whereas the first trial had two accused. There may be other differences.

Relevant legislation

The relevant legislation is accepted to be s 15AA of the Crimes Act and the Bail Act 2013 (NSW). Section 15AA(1) provides: "(1) 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."
It was common ground that s 15AA(1) applied. It was accepted by the Crown that any requirement to "show cause" why the accused's continued detention is not justified under the Bail Act would be subsumed in any finding of exceptional circumstances, the latter constituting a higher threshold than the former. Although ss 22 and 22A of the Bail Act do not apply in terms to the present case, this construction is consistent with those two provisions which provide that where special or exceptional circumstances are required before bail can be granted, that requirement applies instead of the requirement that the accused person show cause.
The Bail Act requires an assessment of bail concerns under s 17, of which the concern in s 17(2)(a), that the applicant will fail to appear at any proceedings for the offence, is the only one of relevance, it having been the only one identified by the Crown.

The parties' contentions

Mr Walmsley QC, who appeared for the applicant, contended that there were several circumstances which ought to be regarded as exceptional. These matters were also relied on in support of the contention that any risk posed by the applicant could be adequately ameliorated by the grant of bail on conditions.
The primary circumstance relied upon was the result of the first trial and the consequences which were said to flow from that result. Mr Walmsley accepted that it could not be inferred from the hung jury that the Crown case was relatively weak. However, he did not accept the Crown's contention that the Crown case was relatively strong. He contended that the applicant was much more likely to attend a second trial when the jury was hung in the first because he could be expected to have been encouraged by the dissension between the jurors. Mr Walmsley implied that this dissension might indicate that he has a real prospect of being acquitted. He also relied on the applicant's consistent maintenance of innocence from the time of his arrest, up to and including giving sworn evidence in his trial and in final address.
Mr Walmsley also relied on the circumstance that any flight risk was, in essence, non-existent, not least because flight to any of the two potential destinations where he has family ties, Lebanon and Syria, could reasonably be expected to result in his immediate arrest. This was the fate of Amer Khayat who, on the Crown case, was to take the bomb on an Etihad Airlines flight from Sydney to Beirut via Abu Dhabi. He also relied on what he contended were extradition agreements between Australia and Lebanon, about which there was no evidence.
The applicant also relied on his family ties, particularly his close association with his two sons and his wife and said that this was more than sufficient to mitigate any flight risk.
The Crown submitted that, on proper analysis, the applicant had not identified any features, or combination of circumstances, whether objective or subjective, which were out of the ordinary, and that therefore the threshold required by s 15AA had not been reached.

General principles

The general principles which are relevant to the assessment of whether exceptional circumstances have been established are as follows. Section 15AA of the Crimes Act has been described as a rebuttable presumption against bail being granted for a person charged with a terrorism offence. The onus has been found to be on an applicant to satisfy the court affirmatively that such exceptional circumstances exist. While the requirement for special circumstances plainly does not prevent the grant of bail in all cases, it is a high hurdle for the applicant to meet.
What must be shown is that there is some situation which is out of the ordinary or unusual in some respect which the applicant can point to as being exceptional. Harrison J considered the requirement for exceptional circumstances in R v Naizmand [2016] NSWSC 836 at [8] as follows: "The expression 'exceptional circumstances' is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what I looked for are circumstances that are, or that appear to be, an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics."
The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case-by-case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence and features which emphasise that the applicant is otherwise a person who will answer bail.
It was common ground that the strength of the Crown case was relevant to exceptional circumstances. Having presided at the first trial, I am in a position to judge the strength of the Crown case, which was, in large part, a circumstantial one. The Crown case against the applicant relied, in part, on his presence or involvement in many of the critical stages whereby the Crown alleged the conspiratorial agreement between Tarek, the Controller and, ultimately, Khaled was performed. The evidence indicated that the applicant helped Khaled Khayat obtain the correct name and address of Abdul Karem Merhi, which was said to relate to the delivery of the parcel which Tarek wanted to send to Australia. The applicant also communicated with the delivery company, pretending to be Abdul Karem Merhi. He was, on his own admission, present when Khaled opened the package and found a meat grinder in which the bomb was secreted.
There was incontrovertible evidence which demonstrated that the applicant assisted in research concerning timers and was responsible for purchasing an analogue timer through his wife's eBay account. It was also not in dispute that he went with Khaled and Amer to the airport on 15 July 2017, being the day on which Amer was to fly. There was uncontroverted expert evidence that the applicant's fingerprints were found on the plastic in which, on the Crown case, the bomb was wrapped after Khaled brought it back from the airport. The digital evidence indicated that the applicant was also party to various messages between himself and Khaled about ingredients or equipment which could be used in what was described on the Crown case as the poisonous gas plot or the acetone plot, which were other schemes relied upon by the Crown in addition to the bomb plot.
The applicant and Khaled Khayat were both present on 29 July 2017 when, on the Crown case, Khaled was conducting a test burn of two chemicals required to make a compound from which the poisonous gas was to be made.
Several of the circumstances I have referred to were not in dispute, although some were, and many were established by objective or uncontroverted evidence. The question for the jury was, in essence, whether the whole of the evidence, taken in combination, was sufficient to rebut the hypothesis consistent with innocence. This hypothesis was, in substance, that the applicant's role was no more than that of a younger brother, who was often called upon to run errands and provide assistance to his older brother, Khaled, and who had no knowledge of any conspiracy between Tarek, the Controller and Khaled.
It is not appropriate for me, notwithstanding my familiarity with the evidence adduced in the first trial, to express any detailed evaluation of the Crown case. I accept the description applied by the Crown that it is reasonably strong. However, I do not propose to say more than that. I do not consider this description to have been gainsaid or, indeed, altered by the circumstance that the jury could not reach a unanimous verdict. It would be a matter of pure speculation as to what the views of the jurors were, and what effect it had on their individual and collective minds that the case against Khaled would appear to have been measurably stronger than the case against the applicant by reason of the many admissions made by Khaled in his recorded interview.
I do not regard the fact that the applicant has already been tried and that the jury was hung to amount to an exceptional circumstance. It is one of the three possible outcomes of a criminal trial. The prospect of a jury being hung is increased by the requirement for unanimity for Commonwealth offences, such as the present. It is not an uncommon outcome. Nor is it exceptional for an accused who maintains his innocence to give sworn evidence at trial consistent with that position. Indeed, this situation is one of the usual scenarios in a criminal trial.
Mr Walmsley raised the difficulties of preparing for a trial when an accused person is in custody. Those difficulties are well-known and have been well-documented. It is a regrettable consequence of an accused person being in custody that his or her access to legal representatives is limited in time and by location. Nonetheless, having observed Mr Walmsley present the applicant's case at the first trial, I could discern no impediment or difficulty occasioned by that circumstance. This is not to say that it did not present a challenge for both the accused and his legal representatives. However, I am satisfied that the challenge was met and that the accused's interests were not compromised by the inevitable separation and the limitations on access. While I accept that there will be differences between the first trial and the second trial, I have no reason to consider that Mr Walmsley will, on the next occasion, be unable to obtain instructions to permit him to present the case on behalf of the applicant in his usual way.
I am required to assess the question whether exceptional circumstances exist independently of whether there is an unacceptable risk that the applicant will, if released from custody, relevantly, fail to appear at his trial: McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99 at [14] (White JA, Harrison and R A Hulme JJ agreeing). However, it was accepted that questions relating to the risk constituted by the bail concern are, or may be, relevant to the determination of exceptional circumstances. These matters are addressed below.
The applicant relied on the apparent unavailability of other countries to which he could resort. While it may be exceptional to have two brothers in custody in two different countries outside Australia in circumstances where at least one, Amer, is in custody relating to the events the subject of the applicant's trial, this quirk of the narrative is not sufficient to make the applicant's circumstances relevantly exceptional. Many applicants for bail have no realistic exit plan which involves overseas flight, even if they had the wherewithal to engineer it.
Nor are the applicant's lack of criminal history, strong family ties and connection with the community exceptional. The hardship caused by his separation from his wife and young children is, regrettably, an almost inevitable feature of incarceration. His conditions of custody are, as the evidence adduced by the Crown established, normal for persons in his position. While the time the applicant has spent in custody has been lengthy, this is not an exceptional consequence of the complexity of the evidence for an offence such as the present. The need for a second trial has caused further delay but the time between the first and second trials is, in the circumstances, relatively short, although I accept that each day is very long for the applicant as he is in custody.
Despite the strenuous submissions made by Mr Walmsley on behalf of the applicant, I am not satisfied that exceptional circumstances exist to justify bail. Accordingly, I am prohibited from granting bail to the applicant by reason of s 15AA of the Crimes Act.

Order

For the reasons given above, I make the following order: 1. Refuse the application for bail.

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: 30 September 2019

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