Re Talib[2022] QSC 11

SUPREME COURT OF QUEENSLAND

JACKSON J:

1. [1]
   The applicant applies for bail for a charge of preparations for foreign incursions into foreign States for the purpose of engaging in hostile activities contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).
2. [2]
   On 25 March 2021, the applicant was arrested and charged with the offence.
3. [3]
   On 8 April 2021, the applicant filed an application for bail in this court.  On 30 April 2021, the application was refused.
4. [4]
   On 27 April 2021, the respondent provided the applicant’s solicitor with a redacted copy of a statement by the respondent’s principal witness (“Witness One”).  On 25 June 2021, on a return at the Magistrates Court at Brisbane, the respondent advised that a further statement of Witness One was being obtained and an adjournment for review was sought and granted.  On 1 October 2021, at a further review at the Magistrates Court, the respondent advised that a further three month adjournment was sought for the purpose of serving or disclosing additional material.  On 10 December 2021, the respondent provided a copy of Witness One’s second statement to the applicant’s lawyers.  On 17 December 2021, on further review at the Magistrates Court, the respondent requested a further adjournment to serve or disclose additional material.  The matter was adjourned to 6 May 2022.
5. [5]
   There is still a significant amount of additional evidence or material that the respondent intends to provide to the applicant’s lawyers before the matter can be listed for committal in the Magistrates Court.  There is no clear time within which it will be provided.  It could still be many months as some requested information or material is to come, or may come, from overseas through international request for evidence procedures.  After that, if committed for trial, the delay until an indictment is presented and the matter can be brought on for trial is presently unclear.
6. [6]
   Apart from two periods of six weeks when the applicant was held in unit S2, the applicant has been held in the detention unit at the Brisbane Correctional Centre.  He is classified as or under the maximum security order referral management.
7. [7]
   His detention is, in effect, solitary.  He is not permitted contact with other prisoners.
8. [8]
   He is not permitted to buy goods except for toiletries.  He is denied shoes to wear and has limited access to basic hygienic essentials.  He is not permitted nail clippers or hair trimmers.
9. [9]
   He has no access to a television.  Everything has been taken out of his cell including photos of his eight children.  He has had no visits approved including that he has not been permitted a single visit with his wife or children.  He has not been permitted to access a chaplain.
10. [10]
    He has two hours of yard time per day but the yard door connected to his cell is locked and he cannot access a bathroom when in the yard.  Prior to a corrections officer entering his cell he must lie on his stomach and he is then shackled at the waist and legs.
11. [11]
    He has limited permitted phone calls – apparently two per week.  If his wife does not answer one of the two permitted weekly telephone calls and it goes to voicemail, that constitutes one of his two weekly permitted calls.  To date, the applicant has been permitted one video call with his wife.  It lasted twenty minutes and corrections officers remained present in the room sitting next to him on either side.  He has not been permitted to make further video call bookings with his wife.
12. [12]
    The applicant’s solicitor’s video conference appointments have occurred with the applicant handcuffed in the conference room alone.  The applicant and the solicitor need to shout to be able to hear each other.
13. [13]
    The applicant’s solicitor has inquired as to the reasons for these conditions and his classification, but no response has been given.
14. [14]
    As previously stated, the respondent has not yet completed disclosure and no date has been set for the committal hearing of the applicant’s charge.  From this point, it appears that the respondent is still to disclose evidence that is yet to be obtained and to ascertain whether further evidence it seeks is available, or when it will be obtained, before a committal hearing can be set down.  Assuming committal, it will be several months at least until the process of indictment and trial can take place.  It is likely that the applicant will be in custody on remand under these conditions for two years or more before trial.
15. [15]
    In support of the present application, the applicant has obtained an offer of a surety from the applicant’s mother-in-law to deposit a sum of $20,000.00.
16. [16]
    The applicant submits that the delay in prosecution of his case, the custodial conditions under which he is remanded, and the availability of a surety for his appearance constitute a material change in the circumstances that obtained when bail was refused by this court previously so as to support a fresh application for bail.^[1]
17. [17]
    The respondent accepts that the matter has moved “relatively slowly” through the Magistrates Court to date.  It also accepts that the applicant will be in prison on remand for two years or more before the matter reaches a trial.  The respondent submits that even at that point it is not likely that the applicant, if convicted, will have served a longer period on remand than any likely non-parole period that will be imposed by way of sentence.  Second, the respondent submits that the addition of a surety of relatively modest value does little to alleviate the applicant’s risks of flight or committing further offences and is not a material change in the circumstances.  Third, the respondent submits that the applicant’s conditions in custody are not in and of themselves capable of demonstrating material change and are only of marginal relevance to the question of bail.
18. [18]
    In my view, that the applicant will be imprisoned on remand for more than two years before trial in the conditions described above is capable of and does constitute a material change of circumstances from those that obtained when the first application for bail was refused.
19. [19]
    The significance of delay as a factor in relation to a question of bail has long been recognised. In 2001 it was said in an intermediate appellate court that:

“… [a]s to the interests of the applicant he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He’s been in custody for over a year. I am told by the Crown that the present charges might not come to trial but [sic] a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights.”^[2]

The continuing importance of that consideration was confirmed in November 2021.^[3]

20. [20]
    Section 15AA(1) of the Crimes Act 1914 (Cth) provides that a bail authority must not grant bail to a person covered by subsection (2A) in relation to an offence against the law of the Commonwealth unless the bail authority is satisfied that exceptional circumstances exist to justify bail.  Subsection (2A)(b) provides that the subsection covers a person who the bail authority is satisfied has made statements or carried out activities supporting or advocating support for terrorist acts within the meaning of Part 5.3 of the Criminal Code.  A “terrorist act” within the meaning of Part 5.3 is defined in s 100.1(1).  The applicant accepts that the actions alleged against him as constituting the charged offence, if proved, would amount to supporting terrorist acts within the meaning of Part 5.3 of the Criminal Code (Cth).  However, the applicant submits that subsection (2A) does not apply because this court, as the bail authority, should not be satisfied that the applicant carried out those actions to the extent or degree necessary to engage the exceptional circumstances requirement under s 15AA(1).
21. [21]
    The applicant submits that in its context in subsection (2A), the word “satisfied” requires that the court be convinced in the sense that the proof is made out to the reasonable satisfaction of the court, having regard to the factors identified in the well-known passage in Dixon J’s reasons in Briginshaw v Briginshaw.^[4] In particular, the applicant relies on the part from that passage that:

“… the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained. When in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight has to be given to the presumption of innocence and exactness of proof is expected.”^[5]

22. [22]
    It is uncontroversial that an application for bail under s 10 of the Bail Act 1980 (Qld) is a civil proceeding.
23. [23]
    It is unnecessary to decide and may be assumed, for present purposes, that the applicant’s submission as to the degree of the required proof should be accepted.  Even if it is, the material in evidence includes two statements by Witness One setting out the facts to which he might testify when called as a witness.  Prima facie, if accepted as facts proved beyond reasonable doubt, they will be enough to convict the applicant of the charged offence, absent some circumstance that might relieve him from criminal responsibility.  The applicant submits that there are reasons why Witness One’s evidence might not be accepted.  One of them is that Witness One is presently charged with a terrorism offence or offences in connection with the same and other activities as found the offence against the applicant.  Witness One might be challenged as a witness of credibility for a number of possible reasons.
24. [24]
    Notwithstanding those considerations, in my view, in circumstances where there is no evidence that makes it likely that Witness One’s evidence if given in accordance with his statements would be rejected, it should be concluded that this court as the bail authority is satisfied that the applicant has carried out activities supporting or advocating support for terrorist acts within the meaning of Part 5.3 of the Criminal Code (Cth) for the purposes of subsection (2A).  It follows, in my view, that the applicant must show exceptional circumstances before this court may grant bail.
25. [25]
    Similar considerations to those relied upon to show a material change in circumstances were relied upon by the applicant to show that there were exceptional circumstances to justify a grant of bail.  Additional facts included that the offence alleged against the applicant is historical, that the likely sentence on conviction is such that there is a risk the applicant will be held on remand for longer than his non-parole period if convicted, that the applicant is held on remand in Queensland whereas his wife and children reside in Victoria, and that they are experiencing hardship because of his detention in custody.
26. [26]
    It is unnecessary in this case to examine the requirement of exceptional circumstances further or the particular facts relied on to meet it in this case.  That is because considering the application for bail as a matter of substance, in my view, it should be refused, notwithstanding the disquieting features of the delay in the prosecution of the offence and the conditions under which the applicant is detained.
27. [27]
    The reason for that conclusion is that the applicant represents an unacceptable risk of failing to appear and surrender into custody if released on bail.^[6]
28. [28]
    The offence with which the applicant is charged may result in a maximum penalty of imprisonment for 10 years.  It is a single offence of assisting Witness One to enter Syria for the purpose of engaging in armed hostilities against the Syrian government.  It is alleged to have been committed by the applicant from 2012 to 2013.  The applicant has no other criminal history. 
29. [29]
    Both the applicant and the respondent referred to cases for comparative sentence analysis.  The applicant submits that R v Alqudsi^[7] and R v Succarieh^[8] support the view that the applicant’s alleged offending would warrant a 4 year or 4.5 year sentence or less.  The respondent submits the sentence might be as much or higher.
30. [30]
    The applicant is 32 years of age.  He was born in the United Kingdom to Sri Lankan parents but is an Australian citizen.  He appears to have either grown up or been educated, and has resided, in this country as well as overseas over many years. 
31. [31]
    In about 2010, he went to Turkey and lived there for a period with his now wife. He was apparently involved with the group known as the IHH Humanitarian Relief Organisation and joined the Gaza Flotilla to supply medical aid and construction materials into Gaza during the period of the blockade in 2010.  On 31 May 2010, he was shot in the leg when Israeli commandos boarded the ship on which he was travelling allegedly in international waters.  He returned to Turkey.
32. [32]
    Some time afterwards, the applicant returned to Australia to study or to complete studies.  Between 2011 and May 2013, the applicant lived in South East Queensland at times, although he appears to have lived or stayed in Egypt for a time in 2012 and travelled internationally twice before returning to Brisbane in the second half of 2012.
33. [33]
    On 22 May 2013, the applicant left Australia.   He appears to have returned to Turkey.  It is alleged that he met Witness One who stayed with him in July 2013 during which time he engaged in the alleged offence of assisting Witness One in his preparations to enter Syria to fight with a group described as Khattab Jamaat against the Syrian government.
34. [34]
    In 2014, Witness One says that the applicant told him that after leaving Turkey he had been blocked from returning to the country as a suspected terrorist.  After spending time in Qatar and in Europe, the applicant said, he re-entered Turkey illegally from Greece by a people smuggler.  After that, Witness One saw the applicant in Turkey in 2014.  In the winter of 2015, Witness One says that the applicant left Turkey for Cyprus.  There is no evidence that he returned to Turkey after that time.
35. [35]
    In the overall period after leaving Australia in May 2013, the applicant also lived or spent time in Qatar and Brazil and visited various countries including Sri Lanka, until his return to Australia in 2018.
36. [36]
    On 14 December 2016, the applicant was found in Panama City in possession of a genuine Venezuelan passport bearing his photograph in the name “Adam Ahmad TALEB” with his date of birth.  It had an expiry date of 17 July 2021.  Its present whereabouts are unknown.
37. [37]
    In December 2018, the Minister for Foreign Affairs cancelled the applicant’s Australian passport.  The applicant was then deported from Colombia to Australia.  Since returning to this country he has not had an Australian passport.  He appears to have resided in Melbourne.
38. [38]
    The respondent’s deponent says (although the sources of his information or opinions are not stated) that the applicant can apply for citizenship and a passport from Sri Lanka without the respondent or police’s knowledge.
39. [39]
    In March 2020, the applicant’s wife and children returned to Australia from Brazil where they had been living.  They lived with the applicant thereafter.
40. [40]
    On 19 October 2020, the United States Department of Treasury issued a press release that its Office of Foreign Asset Control had designated the applicant for having materially assisted, sponsored or provided financial, material or technological support for or goods or services to or in support of Al-Qa’ida and also designated Talib and Sons, for being owned, controlled or directed by the applicant.
41. [41]
    On 20 October 2020, the applicant was served with an order requiring him to provide information or assistance to police to access data on electronic devices.
42. [42]
    On 25 March 2021, the applicant was arrested near his home. 
43. [43]
    Also on 25 March 2021, the applicant’s home was searched and precious and semi-precious gemstones were seized.  The respondent alleges that the stones have a wholesale value more than $400,000 and a retail value of about $1,000,000.
44. [44]
    On 26 March 2021, he was extradited to Queensland and has been on remand in prison since then.
45. [45]
    The applicant is said to have had a “family gemstone business” conducted by Talib & Sons Pty Ltd (ACN 633 227 488).  The Talib Family Trust is or appears to be a registered taxation entity with an ABN but its business is not identified in the evidence. 
46. [46]
    No other information reveals the applicant’s means or assets or those that he may control.
47. [47]
    The applicant’s parents and siblings reside outside Australia.  His connection to this country at present is the result of living here since he was deported here, then living with his wife and children here and carrying on a gemstone dealing business here.
48. [48]
    The applicant’s parents and siblings now all live overseas and have done so for years.
49. [49]
    The applicant’s parents in law live in New South Wales.  His wife says that she is close to her parents.  As previously stated, his mother-in-law has offered a $20,000 surety deposit.
50. [50]
    There is no specific or objective standard that informs whether a person is an unacceptable risk of failing to appear if granted bail.^[9]  It is an evaluative judgment, to use modern language, having regard to the relevant factors from the evidence and the facts referred to above.
51. [51]
    It is true that before being charged with the present offence the applicant had been subjected to the cancellation of his passport, the designation of him as an al-Qa’ida associated facilitator and service on him of an order requiring him to provide information or assistance to police to access data on electronic devices, without apparently making any attempts or preparations to leave Australia.
52. [52]
    It is also true that since he was, in effect, forced to live in Australia from December 2018 the applicant’s wife and children have as she says “settled” here with him.
53. [53]
    Nevertheless, the applicant’s peripatetic lifestyle over many years, his apparent illegal entry into Turkey in 2014, his possession in 2016 without plausible explanation of a Venezuelan passport in a different (although similar) name, his business of international gem-trading and his strong family ties overseas all contribute to a raised risk that if granted bail he will fail to appear, because he may be better able or equipped to do so by leaving Australia than other alleged offenders.
54. [54]
    That risk is increased because if convicted the applicant is likely to receive a substantial sentence and, perhaps perversely, because of his knowledge of the extremely onerous conditions under which he may be required to serve the sentence, having regard to the conditions on which he has been held on remand.  Added to that, on the evidence presently available, in my view, there is nothing that undermines the strength of the respondent’s case to a degree that the applicant might sanguinely consider that this risk is insignificant.
55. [55]
    In the result, I have concluded that if granted bail the applicant is an unacceptable risk of failing to appear and surrender into custody when required to do so and that, accordingly, the application should be dismissed.
56. [56]
    Although it may be unnecessary to do so, I record that in reaching my decision I have rejected the respondent’s submission that if granted bail the applicant would be an unacceptable risk of endangering the safety or the welfare of the public based on the opinion of its deponent that “[i]nternational and domestic law enforcement experience has demonstrated that individuals who subscribe to a distorted radical Islamic ideology and a global jihadist ideology can, in an extremely short time frame, escalate from a perceived low level of threat to committing acts of extreme violence domestically when facing criminal charges with a potentially lengthy prison sentence.”
57. [57]
    I also record that I have not accepted the respondent’s submission that the applicant is an unacceptable risk of interfering with witnesses, being Witness One or his family.  At present, Witness One is in custody on remand facing a charge of a terrorist offence.  There is no evidence, just speculation described as a “belief”, that the applicant would attempt to interfere with his evidence or of any other (as yet unidentified) witness in any way, because he knows members of Witness One’s family or the other unidentified witnesses.