MLJ707 BAIL Application PDF

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700052061

APPLICANT’S WRITTEN SUBMISSIONS

The applicant, Adam, is seeking to be released on bail following charges contrary to s 16 and s 321M of the Crimes Act 1958 (Vic), as well as s 4B of the Terrorism (community Protection) Act 2003. Therefore, pursuant to s 4AA (2)(b) of the Bail Act 1977 (Vic) (‘Bail Act’), he is required to establish exceptional circumstances justifying the grant of bail.1 In determining whether to grant bail, it is essential to account for Adam’s right to liberty in conjunction with a presumption of innocence, whilst also respecting the welfare of the community. 2 Despite the lack of a legislative definition for “exceptional circumstances”, surrounding circumstances pursuant to s 3 AAA of the Bail Act must be accounted for in assessing whether exceptional circumstances do apply [Do you have a citation for this?].

I.

EXCEPTONAL CIRCUMSTANCES

A. Adam’s personal circumstances:

1. Adam has no prior criminal history.3 Whilst Adam has been the subject of an intervention order prohibiting him from engaging in family violence, his wife, Sarah, was the victim in that case and had been opposed to such order. Further, there was never any evidence, beyond the neighbours’ complaint to qualify Adam’s conduct [What do you mean “qualify Adam’s conduct? I wouldn’t say this part at all. If you want to say something like that then say “Further, there was never any factual findings adverse to Adam”. You can’t revisit that old case and try to argue it differently now in this bail application – the point is that there was no finding against him]. 2. Nevertheless, Adam showed full compliance with the terms of the intervention order, which is greatly indicative of his ability to follow orders given by Courts as well as a suggestive finding [Is it really a “suggestive finding”? A finding by who?] that he would abide by strict conditions imposed on him by the court as a condition of his bail.

1 Bail Act 1977 (Vic) s 4C; Re Alsulayhim [2018] VSC 570 [28]; Re Gloury-Hyde [2018] VSC 393 [35]. 2 Re Ceylan [2018] VSC 361 [31]-[32]. 3 Bail Act 1977 (Vic) s 3AAA(1)(c).

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700052061 3. Adam has been diagnosed by a psychiatrist with paranoid schizophrenia. 4 Despite this mental condition, he has maintained stable employment and a supportive relationship with his family.5 4. A grant of bail will allow Adam to continue on with his employment, which will in turn allow the family, including Adam’s three children, to be financially supported during the investigation, and provide them will the remuneration necessary to afford legal advice to defend the charges against Adam.6 5. Unlike other applications for bail concerning applicants suffering from schizophrenia, Adam’s condition is stable. Apart from the aforementioned intervention order, he has no history of violence against other member of the community, nor does he suffer from a substance abuse.7 6. Adam’s charges are admittedly the least serious and complex8, and similarly to Re Walker [2019] VSC 804 [45], evidence from his psychiatrist has highlighted the fact that he would be vulnerable to the risk of his mental illness deteriorating on remand. It is doubtable that he would adapt to the change of environment, thereby reducing his chances of reintegration into the community and family life should he not be convicted. 7. Adam has better prospect of rehabilitation being surrounded by his family and his managing psychiatrist, allowing Adam’s mental functioning capacity to remain at its fullest potential, thereby minimising the risk of re-offending.9 8. The intensive and ongoing aspect of the investigation, in conjunction with the notoriously long character of terrorism charges, leave little doubt that a significant delay cannot be avoided.10 Furthermore, the prediction that all nine co-accused will be tried jointly adds to the complexity of the case, specifically the evidence required by the prosecution to establish proof beyond reasonable doubt in regard to all the charges alleged in the conspiracy to plan the terrorist attack.

B. Lawfulness of the arrest

4 Ibid s 3AAA(1)(h). 5 Ibid s 3AAA(1)(g). 6 Ibid. 7 Re Appln For Bail Revocation Re Kaleb Silcock [2017] VSC 536 [3]. 8 Bail Act 1977 (Vic) s 3AAA(1)(a). 9 Ibid s 3AAA(1)(i); Re Gaylor [2019] VSCA 46 [38]. 10 Bail Act 1977 (Vic) s 3AAA (1)(k); Re Appln for Bail by Murat Kaya [2016] VSC 712[41]; Raad v Director of Public Prosecution (2007) 175 A Crim R 240 [13].

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700052061 8. It is established at common law and by statute that the effectuation of a lawful arrest involves informing the person that they are under arrest and deprived of their liberty as well as informing the arrestee of the reasons for the arrest.11 There is no longer a reason to touch the arrested provided he is submissive, thus force is only required should the accused resist.12 This is supported by s 21 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which provides that a person must not be subjected to an arbitrary arrest. 9. In the morning of 1 July 2019, the team of Victoria’s Special Operations Group officers failed to give Adam an indication that he was, in fact, being arrested, and subsequently did not provide any reasons for his arrest. 10. Whilst s 3ZC of the Crimes Act 1914 (Cth) and s 462A of the Crimes Act 1958 (Vic) permit the use of force in effectuating an arrest, and s 3ZB of the Crimes Act 1914(Cth) permits force in entering the premises, it essential to highlight that the force must proportional, and must not deprive the person of their dignity beyond what is necessary to effectuate the arrest. 11. At the time of the raid, Adam and his family were asleep. There was no indication for the team to forcefully enter the premises without, at least, attempting to use ordinary methods of entry such as knocking on the door. Further, the team failed to communicate to ascertain whether Adam would voluntarily submit and follow them into the van, rather, force and shouting was automatically used leaving Adam and his family unnecessarily confused and frightened by the event. 12. The abuse of power entertained by the team in entering and arresting Adam, in conjunction with Adam’s mental illness left him to feel attacked and confused. Therefore, the subsequent use of force was his attempt, in self-defence, to regain his liberty. Further, the team did not account for the presence of Adam’s wife and young children in effectuating the arrest, and the loss of dignity including being forcefully escorted into a van in his pyjamas, by far exceeded what was reasonably necessary in the circumstances. 13. Whilst there is no denying the police’s power to arrest under s 3WA of Crimes Act 1914 (Cth) and Crimes Act 1958 (Vic) s 459, it is argued that the arrest did not follow common law or statutory procedures, allowing Adam to apply for a declaration the arrest, and his subsequent detention is unlawful.13

11 Christie v Leachinsky [1947] AC 573; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(4); Crimes Act 1914 (Cth) s 3ZD(1).

12 Alderson v Booth [1969] 2 QB 216 [219]. 13 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 21(7).

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700052061 14. Furthermore, it is likely Adam would succeed in a claim of self-defence given the aforementioned circumstances of the arrest, thus a custodial sentence is unlikely to be given for the charges contrary to s 16 of the Crimes Act.

C. Strength of Crown case:

14. The evidence so far brought forward against Adam is limited to the statement from the police officer, there is no factual evidence or admission from Adam himself, pointing to any acts beyond a preparatory stage such as the means to carry out the terrorist act, or the precise person who would do so. 15. s 20(1) of the Crimes Act 1958 (Vic) provides that a person will not be criminally responsible for an offence if at the time, he was suffering from a mental impairment. In R v Matthews (2004) 145 A Crim R 445, 450, the court held that a mentally ill person is ‘less in control of his cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgment’. 16. Indeed, there is authority for the proposition that mental impairment will reduce the accused’s culpability if it has the result of ‘making the offender disinhibited’14, ‘impair his ability to appreciate the wrongfulness of the conduct’15 or obscure the intent to commit the offence’. 16 17. Adam’s mental illness is a form of schizophrenia characterised mainly by delusions of persecution or grandeur17. Despite being allegedly aware of the purpose of the maps, the paranoid aspect of his disease not only greatly increases the risk of him succumbing to propaganda held by others, but it is unlikely he had the capacity to rationalise the thinking being a terrorist attack. It is therefore likely that, on the balance of probabilities, Adam could not appreciate the wrongfulness of his conduct, as perceived by reasonable members of the community18, allowing him to rely on the defence of mental impairment.19 18. The psychiatric evidence in relation to Adam’s illness will support a defence of not guilty by reason of mental impairment20, onus of disproving it remaining with the prosecution. Nevertheless, Adam’s case being admittedly the least serious of the co-accused, would leave 14 R v Verdins (2007) 16 VR 269 [26] (‘Verdins’), citing Ayoubi v R [2006] NSWCCA 364[27]. 15 Verdins (n 14) [26], citing R v Sebalj [2006] VSCA 106 [20]. 16 Verdins (n 14) [26], citing R v Yaldiz [1998] 2 VR 376, 383. 17 Macquarie Dictionary (online at 27 July 2019) ‘paranoid schizophrenia’. 18 Crimes Act 1958 (Vic) s 20(1). 19 Ibid s 20. 20 ?s 20

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700052061 open to the court to release Adam from custody subject to conditions such as remaining in the care of his wife and attending psychiatric appointments as ordered.21 19. The Victorian Supreme Court in Re CT [2018] VSC 559 [64] described the exceptional circumstances test as a ‘high hurdle’, however it is not an ‘impossible standard’22. Indeed, it was established in Re Fairest [2015] VSC 275 that a combination of circumstances can be sufficient to satisfy the test.23 20. Notwithstanding the serious nature of the charges, Adam’s personal circumstances viewed in light of the weakness of the prosecution case and unlawfulness of the arrest represent a strong case evidencing exceptional circumstances in favour of granting bail.24

II.

Unacceptable risk

21. Exceptional circumstances identified, the court must then consider whether granting Adam bail would pose an unacceptable risk, pursuant to s4E(1) of the Bail Act, of endangering the safety of the community, commit another offence, obstruct the course of justice or fail to attend court as required, 25 by virtue of the surrounding circumstances in s 3AAA.26 22. In addition to not having prior criminal history, In R v NK [2016] NSWSC 498 [37], Hall J, quoting Hammoud v DDP [2006] VSC 516 [8], noted that the applicant’s low level of involvement in what is a wide array of serious terrorist offences, is a matter to be taken into consideration. 23. Despite the serious nature of the charges, there is no evidence of Adam involvement in any more than a preparatory or peripheral way, nor is there evidence of Adam directly or imminently looking to attack others. Bail conditions directed at prohibiting the contact with any witnesses or co-accused and use of a single device for making or receiving phone calls would greatly mitigate the risk of Adam being involved in any terrorism conspiracy while on bail. 27 24. Further, the imposition of a curfew would provide a strict routine minimising time spent outside of work and family situations, thereby reducing the risk of involvement in criminal activities. 28 25. Further, he had previously shown full compliance with a court order, indicative his ability to follow strict bail conditions. It is therefore unlikely that he would disturb the welfare and safety of the community. 21 Crimes Act 1914 (Cth) s 20BJ(5); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 23. 22 Re CT [2018] VSC 559 [64]. 23 See also Haddara v Director of Public Prosecutions (Cth) (2016) 159 A Crim R 489 [5]. 24 Re Gloury-Hyde [2018] VSC 393 [35]; Re CT [2018] VSC 559 [65]. 25 Bail Act 1977 (Vic) s 4E 26 Ibid s 4E(3) 27 Ibid s 5AAA(4)(k); Re Appln for Bail by Murat Kaya [2016] VSC 712 [35]. 28 Ibid s 5AAA(4)(d); Re Appln for Bail by LT [2019] VSC 143 [76].

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700052061 26. Adam’s strong family ties to his wife and three children greatly diminishes the risk of him committing another offence or breaking bail conditions. Adam would be required to attend psychiatric sessions or support services as often as required by this court. 27. His mental illness also strengthens his attachment to his town and family which provide him with much needed stability, leaving him unlikely to abscond on his own without any support or familiarity. 28. Further, there is no evidence that Adam had organised any passports or made any attempt to leave the country and his prior compliance with court order is a positive sign that he would answer his bail. Notwithstanding the lack of evidence pointing to Adam attempting to contact any of the other co-accused, any concerns by the court regarding the risk of absconding or interfering with witnesses would easily be mitigated by strict bail conditions such as such as prohibition to apply for a passport29or leave the country,30 as well as daily reports to the local police station.31 Further, if financially able, his wife or another person close to Adam may be able to provide a surety to ensure Adam will answer his bail.32 As discussed in Robinson v R (2015) 47 VR 266, the risk associated with a grant of bail can never fully be abolished. While the onus is on the crown to prove there is an unacceptable risk, it is likely that stringent bail conditions would mitigate any such risk pursuant to s5AAA(1) of the Bail Act, . Drawing similarities from the decision in Director of Public Prosecution v Cozzi (2005) 12 VR 211 [35], the combination of Adam’s supportive home environment, stable employment and vulnerability arising out of his mental illness, in conjunction with the circumstances of the arrest and likely delay before trial represent exceptional circumstances pursuant to s 4A of the Bail Act, therefore making the present application favourable to overcome the statutory presumption to deny bail.

29 Ibid s 5AAA(4)(e) 30 Ibid s 5AAA(4)(f) 31 Ibid s 5AAA(4)(a) 32 Ibid s 5AAA(2)

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