1 HIS HONOUR: This is an application for bail sought by Mohamed Ali Elomar. I shall refer to him in the course of this decision as the applicant.
2 The applicant was arrested in November 2005, and he has been in custody since that time. He is presently situated at the MRRC at Silverwater and his trial is under way, in the sense that pre-trial applications are being determined by the Court. The applicant has been charged with conspiracy to do acts in preparation for a terrorist act or acts contrary to ss 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995. This is a serious charge. The legislation in s 101.6 provides for a maximum penalty for this category of offence of imprisonment for life.
3 There is no contest in the present matter but that the onus falls on the applicant to show exceptional circumstances before bail can be granted. This is as a consequence of s 15AA of the Crimes Act 1914 (Cth). As I observed in the case of the bail application of Mohammed Omar Jamal, (as it happens one of the co-accused in the present trial), the need to show exceptional circumstances poses a significant hurdle for an applicant. The traditional notion of a presumption in favour of bail for a person facing but not convicted of, a criminal charge has undoubtedly been significantly eroded by the provisions of s 15AA of the Crimes Act.
4 The expression "exceptional circumstances" has been the subject of a number of recent decisions. One of those was the decision of Osborne J in Haddara v Commonwealth Director of Public Prosecutions (2006) VSC 8 where his Honour noted at paragraph 4:
"It may be that the requirement to establish 'exceptional circumstances' has the potential to operate in a harsh manner. Nevertheless, this Court is required to implement the law as enacted by Parliament and it is necessary for the applicant to satisfy the threshold requirement of 'exceptional circumstances' before the Court turns to other considerations."
5 Osborne J noted that the concept of exceptional circumstances is necessarily a flexible one, and it is clear that it may be constituted by a combination of matters which, when examined together, render the case exceptional.
6 A similar approach has been taken by judges in the Supreme Court. I will just briefly refer to some of those. A similar approach was taken by Studdert J in The Queen v Cheikho, 15 May 2006, and in The Queen v Mulahalilovic, a decision of Rothman J in August 2006.
7 Mr Ozen referred me to other authorities. These related to the expression "exceptional circumstances" in the New South Wales legislation. The first case referred to by counsel was the decision of Johnson J in The Queen v Young (2006) NSWSC 1499. In that case at paragraph 20 Johnson J said:
"It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail."
8 His Honour also noted that there is a need to determine the issue of exceptional circumstances on a case-by-case examination.
9 The second case referred to by Mr Ozen was a decision given only two days later. It was the decision of Rothman J in The Queen v Jacobs [2008] NSWSC 417. His Honour examined the parameters of the term "exceptional circumstances" and drew conclusions about the general nature of the hurdles faced by an applicant that were similar to those reached by Johnson J and in the other authorities to which I have made reference.
10 In the present matter there is no submission made that the Crown case against Mr Elomar is not a strong one. No submissions were made to me in that regard. It has not been necessary for me to address that aspect of the matter.
11 The "exceptional circumstances" relied upon in this matter appear clearly enough from the affidavit of Kate Kroon sworn 28 May 2008, and from the material annexed to that affidavit. Ms Kroon states in the affidavit that last Saturday she was contacted by the applicant's niece. She was informed that the applicant's mother had suffered a stroke and was in Bankstown Hospital. Thereafter, according to Ms Kroon, there were a number of contacts and attempted contacts with Mr Mick Hovey, the Corrective Services liaison person assigned to the applicant's case at Silverwater. The purpose of these calls was to see whether an escorted hospital visit could be arranged between the applicant and his mother. As at yesterday at lunchtime that had not been achieved, and it was in those circumstances that the Court was informed that a bail application would be made.
12 Annexed to the affidavit of Ms Kroon are two reports. The first in point of time, as I understand it, is from Dr Tien Chu. He is the Geriatric Registrar at Bankstown Lidcombe Hospital, the hospital operating under the auspices of Sydney Southwest Health Service. Dr Chu confirms that the applicant's mother was admitted to hospital on 23 May 2008 having suffered a major cerebral vascular accident. This was complicated by severe aspiration pneumonia. Her condition was made even more serious due to her background of renal transplant and immuno suppressive therapy. Dr Chu said that the applicant's mother was currently being treated in the hospital in Ward 2B.
13 The second medical report is an update. It is dated 28 May 2008. Once again, it is from Dr Chu, who confirms that the applicant's mother is still an inpatient at the hospital. He says, however, that her condition is "serious and critical with a likely poor outcome".
14 Mr Ozen made no bones about the meaning of this last update. He said that it really is a certificate which indicates that the applicant's mother will not survive and is likely to pass away probably fairly soon.
15 The facts I have indicated in that material comprise, in essence, the exceptional circumstances relied upon by the applicant. Mr Ozen has put it quite bluntly. He says that unless bail is granted the applicant will not see his mother again.
16 I should mention that the Department of Corrective Services, quite apart from any recommendation I may have made, came to an independent decision to allow the applicant to see his mother in the hospital. A window of opportunity presented itself yesterday evening for that to occur. It is obvious enough, I suppose, that the applicant's position, the charges he faces, the classification he is under, and the generally emotive nature of the situation involving his mother could well involve security difficulties. Conscious of those difficulties, the Department apparently took advantage of the window of opportunity that presented itself yesterday and the applicant was able to see his mother yesterday evening, albeit for a fairly brief period of time, about twenty minutes.
17 Against the background of that visit, Mr Ozen developed his submission and said that this visit may be, unless bail is granted, the last time the applicant will see his mother alive.
18 Mr Ozen took me to the provisions of the New South Wales Bail Act 1978 and in particular to s 7. He pointed to the fact that bail may be granted to enable a person to remain at liberty "until the person is required to appear before a Court in accordance with the person's undertaking". He argued that the language was sufficiently wide to allow what might be described as the grant of short-term bail. Mr 0zen, in that context, submitted that if bail were granted here, it would really be bail for a very short period of time, perhaps a matter of hours. So the threshold or subsidiary question is whether the Bail Act should be interpreted in that way. I must say that it is my view that the Bail Act should not be interpreted in that fashion. It appears to me that the Act does not contemplate short-term bail being granted. Bail should not, in general terms, be used to allow a visit or visits to a sick or dying relative or friend. I do not think, as a matter of policy, that such a construction is either desirable or appropriate. It should remain the province, I think, of the Department of Corrective Services to make decisions as to whether to allow an inmate who has been bail denied, to visit a sick or dying relative or friend. It is a difficult decision; and one would hope that it is one that is made with a degree of compassion, as indeed it seems to have been made in the present case. But I put to one side that consideration. It is not necessary, however, to make a final decision about the construction of the legislation. I think I have sufficiently indicated that I am not overly impressed or in favour of such an interpretation, for the reasons I have mentioned.
19 The real issue here though is whether exceptional circumstances have been shown. In my view, while I have considerable sympathy for the position of the applicant, exceptional circumstances have not been demonstrated. The prospect of the death of a close relative is not in a general sense an exceptional circumstance. Illness and death, sadly enough, are the common lot of all of us. It is something that is as much a part of our experience as any other factor of life; birth illness and death are on the common pathway trod by all human beings.
20 In any event, as I have pointed out, the applicant was given the opportunity and grasped it yesterday to see his mother. He was given the opportunity to say goodbye to his mother. It is sad that, perhaps, that made the visit harder for him, but I suppose one can only observe that even if he were given a second visit today for a short period of time, that too would not be suffice. The applicant might well come away from a second visit feeling a similar sense of frustration and disappointment. But this is perhaps speculation on my part. I am simply pointing to the fact that a visit was allowed and that, although it is unlikely that a further visit will occur before his mother's death, that situation does not in itself amount to exceptional circumstances in this case.
21 I would only add that, whilst I have said that it is the province of the Department to make decisions about whether an inmate should be permitted to visit a sick or dying relative, if the fact be that the applicant's mother does linger on, and if a window of opportunity were to present itself a second time, I would hope that the Department would give him the opportunity to see his mother once again.
22 For those reasons I refuse the bail application.