Ahmad: Application for Bail
[2003] VSC 209
•17 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 1425 of 2003
| IN THE MATTER OF AN APPLICATION FOR BAIL BY |
| NADIM AHMAD |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2003 | |
DATE OF JUDGMENT: | 17 June 2003 | |
CASE MAY BE CITED AS: | In the matter of an application for bail by Nadim Ahmad | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 209 | |
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Criminal Law - Bail – Further Application – Exceptional circumstances – significant delay – Applicant aged 64 in poor health – Significant risk of re-offending – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Sargent | Office of Public Prosecutions |
| For the Applicant | Ms N Gobbo | Slades & Parsons |
HIS HONOUR:
This is an application for bail made by Nadim Ahmad. The applicant is due to stand trial on two sets of charges. Both sets relate to the possession and trafficking of illegal drugs. The first set of charges arises out of events that occurred in April 2001. The second set of charges arises primarily out of events that occurred in November 2001. The charges against the applicant include a charge of trafficking in not less than a commercial quantity of ecstasy in April 2001. Accordingly, under the Bail Act, the applicant must show exceptional circumstances before he can be granted bail.
It is put on his behalf that there are exceptional circumstances by reason of a combination of matters. They include: the delay in the charges being brought on for trial; his health problems; and his having been at times in 2001 a provider of information to the police.
There is clearly a significant delay problem. As to the first set of charges, there was a committal hearing in July 2002. As to the second set of charges, there was a committal hearing in June 2002. The hearing of the trials on both sets of charges is unlikely to take place this year. Delays in the trials being heard are linked to investigations being carried out by the Police Ethical Standards Division. In February last, there was no satisfactory indication as to when those investigations would be completed. The position appears to be no further relatively advanced at the present time. There is a mention listing date on 5 August next, but it appears that it is unlikely that a trial date will be fixed on that date. Given the limited information which is available to me, it is difficult even to speculate as to when the trials may be listed for hearing.
The applicant clearly has a significant health and a related life expectancy problem. He is 64 years of age. He has been diagnosed as suffering from Hodgkinson lymphoma stage 4. He has been receiving chemotherapy. It appears that he is in remission at the present time. He was certainly in remission at the time of the latest medical reports, which were obtained earlier in the year. I have before me a report from Dr Byron Collins. Dr Collins provides a more pessimistic assessment of life expectancy than that which was provided earlier by Dr Lee.
The applicant was granted bail on the first set of charges in April 2001; that was two days after being charged. Various conditions of bail were set. The applicant was arrested in November 2001 and has been in custody since then, a period now of over 19 months. An application for bail on the second set of charges was made in December 2001 to a magistrate. The magistrate refused to grant bail. The grant of bail on the first set of charges was revoked in June 2002.
After the applicant was arrested on the first set of charges he had some discussions with the police. Those discussions led to his becoming, at least in his eyes, a provider of information to the police. The material before me contained a statement of the applicant which was made in October 2002. There are many references to the applicant and to his dealings with a policeman referred to as “Brendan”. I take “Brendan” to be the informant in the first set of charges. What the applicant claims in that statement includes that his links with drugs later in 2001 were allied to his efforts to provide information to “Brendan”, and that a check of telephone records and other materials available to the police would support his claims.
The applicant applied for bail to the County Court in February of this year. The application was heard before Judge Morrow on 13 February. Judge Morrow refused the application. On 20 March 2003 an application was made to this court. A hearing was scheduled for 4 April but did not proceed on that day. Judge Morrow had before him two medical reports, including that of Dr Lee. As I have already mentioned, I have before me a report from Dr Collins which is dated 18 March 2003. Again I note that it provides a prognosis somewhat more pessimistic than that of Dr Lee. Judge Morrow accepted that the delay was unacceptably long by usual standards. He accepted that there would not be a trial during 2003. It goes without saying that four months have passed since that statement was made and it appears that there is no significant change in the available information as to the time when the trials will take place.
As to the position of the applicant’s role in the drug scene, allegedly to obtain information to provide to the police, Judge Morrow noted that the second set of charges involved 19 charges in all as to six different types of illegal drugs, and that that was contra-indicative of a situation contrived to help the police. The applicant appears not to have promptly upon arrest in early November 2001 told the then investigating police of his contacts with “Brendan” as the provider of information.
Judge Morrow concluded that there was an unacceptable risk of further offending and, notwithstanding the delay and the other factors, he was not satisfied that there were exceptional circumstances warranting a grant of bail.
I would say that I am not disposed to treat as adding to or detracting from the assessment of relevant risks the very uncertain position as to the applicant being a provider of information to the police.
As noted earlier, there have been changes in circumstances since the hearing of the application before Judge Morrow. More specifically, four months have passed with no more satisfactory information being available with respect to the matter of delay, and there is a more pessimistic assessment of the prospects of survival.
In my opinion, the balance has now swung to my saying that I am prepared to re-assess what is still a significant risk of further offending, to say that I do not now treat it as being unacceptable, and, because of the delay and health and life expectancy problems, and not without some reservations in coming to that conclusion, I am satisfied that there are exceptional circumstances and I would propose to order that Mr Ahmad be admitted to bail on his own undertaking with one surety or more than one surety in the sum of $200,000, conditioned in the proper form for his appearance as required by law at the County Court at Melbourne on 5 August 2003 and at such further times as are advised by the Office of Public Prosecutions, and upon the following special conditions:
1.That the said Nadim Ahmad reside at 30 Besant Street, Moorabbin and on all days and between the hours of 10 p.m. and 6 a.m.
2.That the said Nadim Ahmad report daily to the officer in charge of the police station at Moorabbin or his nominee between the hours of 6 a.m. and 9 p.m.
3.That the said Nadim Ahmad give 48 hours’ notice to the informant Van der Duim or his nominee of any proposed change of address.
4.That the said Nadim Ahmad not contact directly or indirectly any witness for the prosecution except the informant Van der Dum.
5.That the said Nadim Ahmad surrender any passports which he may hold to the said informant, permit the informant to retain same and not apply for another passport; any such passport not to be returned to Nadim Ahmad except upon order of this court or that of a judge of the County Court of Victoria.
6.That the said Nadim Ahmad not attend any point of international departure during the period of bail.
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