Permanent Stay Applications in Criminal Proceedings in New South Wales

It has been revealed that counter-terrorism police encouraged an autistic 13-year-old boy’s fixation on the Islamic State in an undercover operation which led to him being charged and held in custody, after his family sought assistance from Victoria Police to help with his behaviour.

The child, referred to under the pseudonym of ‘Thomas Carrick’, was 13-years-old at the commencement of the police investigation.

He has autism spectrum disorder (‘ASD’) with an IQ of 71 and was described by experts as ‘an isolated child without friends and has a tendency to fixate’.

Notably, one of the key diagnostic criteria for ASD is highly restricted, fixated interests that are abnormal in intensity or focus.

On 17 April 2021, his parents approached Victoria Police seeking help, as Thomas was looking at ISIS related videos on his computer and had asked his mother to purchase bomb making ingredients such as sulphur and acetone.

His family embraced assistance from the police and provided them with access to personal information such as Thomas’ school, psychologist, devices, as well as his mother’s device and virtually unlimited access to the family home and to Thomas himself.

However, more sinisterly, the Joint Counter Terrorism Team began an undercover operation on 23 July 2021 which aimed to collect intelligence and information for use in a criminal investigation against Thomas for the offence of ‘acts done in preparation for or planning terrorist acts’.

It was named ‘Operation Bourglinster’ and primarily involved an online covert operative engaging online with Thomas over 55 days, with contact spanning his breaks at school, and then later in the day, in the morning, and late at night.

The undercover operative presented to Thomas using two personas – the first being a 24-year-old Muslim man from New South Wales, and the second being a more extreme persona from offshore.

In evidence, the undercover operative noted that Thomas exhibited significant naivete, including by asking in chats “why can’t America go to Woollies or Safeway to get their oil” or in another chat asking whether he could be in “the kids section of ISIS if he joined”.

Thomas’ family were not informed of the undercover operation or the criminal investigation, with the therapeutic process undertaken by the Victoria Police undertaken concurrently.

The Children’s Court Magistrate, Lesley Fleming commented how the rehabilitation of Thomas was “doomed” once the undercover operative connected with him online.

“The [undercover operative] befriended [Thomas] and fed his fixation, providing him with a new terminology, new boundaries and an outlet for him to express, what was in part, his fantasy world.” she noted.

In their conversations, the undercover operative even told Thomas that his plan to make a bomb or kill a member of AFP was a good idea, and that he would make a good sniper or suicide bomber.

On 8 August 2021, Thomas sent a photo to the undercover operative which depicted him wearing his school uniform, a hoodie and a face mask and holding a knife with the word ISIS written in marker.

Magistrate Fleming found that the Joint Counter Terrorism Team deliberately delayed charging Thomas with terrorism offences until after he turned 14, to avoid issues associated with the principle of ‘doli incapax’.

She ruled that: “the JCTT in full awareness of the importance of the age of [Thomas] waited until the child was 14 to charge him thereby avoiding a claim of doli incapax.”

The doctrine of ‘doli incapax’ (meaning ‘incapable of wrongdoing’) provides that children under the age of 10 are treated as incapable of committing a criminal offence.

Whilst some states and territories have raised this age, presently in Victoria and New South Wales children between the ages of 10 and 14 are presumed to be ‘doli incapax’, however, this may be rebutted by the prosecution when pursuing criminal charges against someone of these ages.

Thomas turned 14 in September 2021, and was charged with intentionally being a member of a terrorist organisation (namely, the Islamic State) whilst knowing that the organisation was a terrorist organisation, and engaging in advocating terrorism, on 6 October 2021.

He spent three months in custody before he was granted bail in October 2022, after an earlier bail was revoked due to him failing to comply with onerous conditions.

Ultimately, the Children’s Court granted a permanent stay on the charges in October 2023, with a copy of the decision recently published.

Permanent Stay Applications in Criminal Proceedings in New South Wales

A permanent stay is a ‘last resort’ and results in the proceedings being forever halted – operating as a continuing immunity from prosecution in relation to the offences.

It may only be granted where a trial will be so ‘unfairly and unjustifiably oppressive’ as to constitute an abuse of process or the proceedings are brought or maintained for an improper purpose.

Therefore, as emphasised by Magistrate Fleming the test for granting a permanent stay is “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness,” as outlined in the case of Walton v Gardiner(1993) 177 CLR 378.

The power allows the court to ‘safeguard the administration of justice’ and the integrity of the system.

Whilst it was noted that “terrorist activities are an abomination that strike fear into every citizen” and the “community is right to expect police entities to do all that they can to identify, investigate and prosecute offender” this was contrasted with the right of the community to “expect police entities to engage in conduct that is beyond reproach.”

The Magistrate ruled that: “the chats between the [undercover operative] and [Thomas] were obtained in circumstances that do not meet the minimum standard that society expects of law enforcement officers.

“The community would not expect law enforcement officers to encourage a 13 – 14-year-old child towards racial hatred, distrust of police and violent extremism, encouraging the child’s fixation on ISIS.”

It was deemed that the AFP, by attempting to radicalise Thomas for the purposes of gaining evidence to prosecute him, undermined the therapeutic process initiated by his parents and Victoria Police.

The Magistrate was ultimately satisfied that to allow the proceeding to continue: “would not only be unjustifiably and unfairly oppressive to Thomas but would also lead to an erosion in public confidence in the Court’s processes.”

The AFP has confirmed that a ‘range of reviews’ are underway in relation to the case.

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