Ahmad v The Queen
[2002] WASCA 266
•23 SEPTEMBER 2002
AHMAD -v- THE QUEEN [2002] WASCA 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 266 | |
| COURT OF CRIMINAL APPEAL | 23/09/2002 | ||
| Case No: | CCA:78/2002 | 12 SEPTEMBER 2002 | |
| Coram: | SCOTT J | 12/09/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | SYED REDZA FAROUK AHMAD THE QUEEN |
Catchwords: | Criminal law Jurisdiction, practice and procedure Bail Application for bail pending appeal against sentence Appeal against conviction heard and refused prior to bail application Exceptional circumstances required Sch 1, Pt C, cl 4 of Bail Act 1982 |
Legislation: | Bail Act 1982 |
Case References: | Ahmad v The Queen [2002] WASCA 70 Cameron v The Queen (2002) 187 ALR 65 Caratti v The Queen [1999] WASCA 91 Dietrich v The Queen (1992) 177 CLR 292 Mullally v The Queen (2000) WASCA 26 Robinson v The Queen (1991) 65 ALJR 519 United Mexican States v Cabal (2001) 75 ALJR 1663 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : AHMAD -v- THE QUEEN [2002] WASCA 266 CORAM : SCOTT J HEARD : 12 SEPTEMBER 2002 DELIVERED : 12 SEPTEMBER 2002 PUBLISHED : 23 SEPTEMBER 2002 FILE NO/S : CCA 78 of 2002 BETWEEN : SYED REDZA FAROUK AHMAD
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Jurisdiction, practice and procedure - Bail - Application for bail pending appeal against sentence - Appeal against conviction heard and refused prior to bail application - Exceptional circumstances required - Sch 1, Pt C, cl 4 of Bail Act 1982
Legislation:
Bail Act 1982
Result:
Bail refused
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Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr P J Urquhart
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ahmad v The Queen [2002] WASCA 70
Cameron v The Queen (2002) 187 ALR 65
Caratti v The Queen [1999] WASCA 91
Case(s) also cited:
Dietrich v The Queen (1992) 177 CLR 292
Mullally v The Queen (2000) WASCA 26
Robinson v The Queen (1991) 65 ALJR 519
United Mexican States v Cabal (2001) 75 ALJR 1663
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1 SCOTT J: This application for bail pending an appeal against sentence was heard on Thursday, 12 September 2002. The application was dismissed with reasons to be published at a later date. These are those reasons.
2 The applicant was charged with and convicted of a number of serious offences in the District Court. That conviction occurred in August 1999. The applicant deposes that he was convicted of one count of aggravated burglary; six counts of deprivation of liberty; one count of kidnapping; and one count of extortion.
3 The applicant appealed against his conviction and the Court of Criminal Appeal dismissed that appeal: see Ahmad v The Queen [2002] WASCA 70. I am told by counsel that the applicant has sought special leave to appeal to the High Court.
4 The facts relating to each of the offences were outlined by the learned trial Judge in her sentencing remarks on 9 September 1999. It is not necessary to repeat those sentencing remarks in full, but a summary of the facts as outlined by her Honour was:
"Shortly after 8 pm on December 14, 1997 Kuc (a co-offender) carrying a rifle and the applicant a hunting knife and both masked forced their way into the Foo family home (the Foo family being the victims of the offences).
Mr Foo was overpowered and he and his wife Mrs Choo and their four children aged 13 to 22 were bound hand and foot and put into one room and the house was plunged into darkness. At some time in the night Mrs Choo was separated from the family, taken to the master bedroom, where $1000 was taken from her and she was questioned about the family finances, including any safe, but denied that they had one.
She was then returned to the family room and Mr Foo was questioned about the family finances, including the whereabouts of any safe. At some stage it became apparent to Ahmad that there was no large amount of money in this house, but searching through bank records he became aware that Mr Foo had a total of $46,000 in various bank accounts. Ahmad then left the house but telephoned Kuc at the house twice at about 1.30 am. These telephone calls were made from Ahmad and Hanby's home and were later traced by the police.
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- Ahmad then returned and brought with him Buntuan Donatti and another person who has never been charged. Then Mrs Choo was blindfolded and carried to the blue van earlier hired by Kuc. She was taken to the home of Ahmad and Hanby and kept a prisoner, tied and blindfolded, from about 2 am to about 1.30 pm on December 15, when she was dumped in a cardboard box at High Street in Fremantle. While a prisoner she was tended to by Miss Hanby.
In the meantime, Kuc and Ahmad remained with the rest of the Foo family. At about 5 am Mr Foo was told he must pay $46,000 or his wife would be harmed. Ahmad gave him directions as to how to deal with the bank to get the money quickly. At 5 am he was sent out to wait in a nearby park with a direction to telephone the bank at 9 am using a telephone at the park and arrange to withdraw the money at 10 am. It was then to be taken to the men's toilet at a nearby cinema complex. Mr Foo went out at 5 am as directed. Kuc and Ahmad stayed with the children until 6 am and then left.
When they left they took with them some boxed bottles of alcohol which had been gifts to Mr Foo, Mrs Foo's jewellery, the $1000 and a blue travel bag. They warned the children not to contact the police and told them to wait in the house until their father returned. Mr Foo withdrew the money from the bank and delivered it as directed at around midday. That money has never been recovered.
Mr Foo then went home and received a telephone call advising him that Mrs Choo had been left at a nearby shopping centre and he immediately went to look for her. She had not been left at the shopping centre at all. She had been left many miles away, and the family suffered more terror looking for her over the next several hours and eventually reported the matter to the police. The family were reunited by the police who by then had located Mrs Choo in Fremantle."
5 The learned trial Judge then went on to describe the trauma suffered by the victim, Mrs Foo, and her family and referred to the fact that since the event Mrs Foo had suffered a nervous breakdown.
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6 The learned Judge sentenced the applicant after trial and so was well aware of the facts of the case. In her sentencing remarks the learned trial Judge said:
"This matter was planned in advance. A firearm was used. The van was hired in advance. This family suffered this terror over a period of approximately 18 hours. There was a physical confrontation and there were threats made. Then Mrs Choo was taken away and kept bound and blindfolded for many hours.
… [T]here has been no sign that any of you are sorry for what you have done, that you feel any remorse, regret or concern for the shameful thing you did to these people."
7 The learned trial Judge referred to the scheme thought up by the applicant as "harebrained". Her Honour then went on to consider the respective positions of each of the offenders she was sentencing. In relation to the applicant, her Honour said:
"It is abundantly clear that you were the leader of this group and had it not been for you been for you these crimes would not have happened. Mr Kuc is easily led, Miss Donatti is very poorly educated and in one area unsophisticated, and Miss Hanby is very dependent on you."
8 The learned trial Judge then went on to refer further to the applicant's leadership role in the events, and the contents of a psychological report that she had commissioned indicating that the applicant needed psychological help.
9 In the end result, the applicant was sentenced to a total term of 13 years' imprisonment and made eligible for parole. The sentence was directed to run from 16 December 1997, the date upon which the applicant was taken into custody.
10 A co-accused, Mr Kuc, was sentenced to a total term of 10 years' imprisonment with parole eligibility. Miss Hanby was sentenced to a total term of 7 years' imprisonment with parole and Miss Donatti also to a total term of 7 years' imprisonment with parole. Each sentence was backdated to the commencement of the offenders' time in custody.
11 As I have said, the applicant's appeal against conviction has already been heard by the Court of Criminal Appeal. The applicant did not appeal against sentence at the same time as his appeal against conviction. His
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- reason for not doing so, he said, was because he was not aware of his right to appeal against sentence until recently. In addition, the applicant said that he was under the impression that if he had appealed against sentence and conviction at the same time, it would affect his prospects of a successful appeal against his conviction because, as he expressed it, "It would appear, as I thought it then, that it would be an acceptance of my conviction as such."
12 In the end result, there has been a substantial delay between the time of the applicant's sentencing and this application for bail which is running with his application for leave to appeal against sentence.
13 The applicant's grounds for the application are:
(1) The applicant's sentence was longer than that imposed upon his co-offender, Kuc, in circumstances where there was no basis to distinguish between them.
(2) He has already served a substantial portion of the non-parole part of his sentence;
(3) If his sentence was adjusted to reflect the sentence imposed upon Kuc, he would have already served the non-parole portion of the sentence.
(4) His record for answering bail is unblemished;
(5) There is no risk to any of the witnesses involved in his trial.
(6) He is prepared to provide a substantial bail undertaking with a surety and comply with any reporting conditions on bail.
(7) He is unable to obtain proper representation through Legal Aid and can only be properly represented at the hearing of the further matters arising out of this trial if he can be released on bail, return to employment and earn sufficient funds to engage counsel of his choice. In that respect he has indicated that he would like senior counsel from the Eastern States to appear as his counsel in due course.
(8) The grounds of appeal against sentence, the applicant contends, are strong and sufficient to justify the granting of bail pending appeal.
14 In developing the submissions concerning the applicant for bail, the applicant relied upon the decision of Kirby J in Cameron v The Queen
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- (2002) 187 ALR 65 and in particular the judgment of Kirby J at [95] to [97].
15 The applicant contends that he has been denied appropriate resources to conduct his appeal against sentence. He says that he should be resourced on an equal basis to the Director of Public Prosecutions. The applicant referred to the judgment of Kirby J in Cameron's case (supra) where his Honour referred to the doctrine of "legal equality" in support of that proposition. An examination of that judgment, however, does not support the applicant's contention. To the extent that Kirby J was referring to the implied constitutional principle of "legal equality", it was not in relation to the comparative resources between the applicant and the Director of Public Prosecutions. As I understand Kirby J's reference, it was to the fact that persons involved in offences to the same extent should ordinarily receive the same sentence. In that context, of course, the applicant also maintains that the same doctrine would justify the same sentence being imposed upon him as was imposed upon his co-offender, Kuc. It does not follow from that principle, however, in my opinion, that the applicant should be provided with the same resources to argue his applications as are available to the Director of Public Prosecutions.
16 Kirby J, however, went on to consider the question of legal representation of prisoners at [96] and [97] and said:
"[96] Legal representation of prisoners
The appellant was obliged to apply for special leave to appeal to this court, in person, without legal representation. Inferentially, such representation has been refused by Legal Aid. When special leave was granted by the court counsel appeared for the appellant at the hearing of the appeal. In accordance with the practice observed in Western Australia (but not in some other States and Territories of the Commonwealth) the appellant was brought to court so that he could argue his special leave application in person. There is a risk that, but for his appearance and oral argument, the error of the Court of Criminal Appeal that is now exposed might not have been detected. The limitations on the recourses of Legal Aid, in Western Australia, as elsewhere, make it inevitable that cases occur where legal representation before this court is not provided. This court cannot forfeit its judicial responsibilities to the decisions of legal
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- aid bodies constrained by resource allocations of the executive government.
- [97] Where an applicant is not legally represented, a heavy burden is cast on the Justices of this court to scrutinise often voluminous and ill-expressed materials against the risk that an error of law or miscarriage of justice has occurred. As is perfectly proper, the Crown is commonly represented on the return of such applications by one and sometimes two counsel and by solicitors, as happened here. The principle established by this court in Dietrich v R (1992) 177 CLR 292 in respect of criminal trials does not, in its terms, apply to appeals or applications for leave or special leave to appeal to this court. Appellate courts, including this court, are sometimes forced to rely on their own resources or voluntary assistance occasionally provided by legal professional bodies. Yet if Dietrich rests, as I think it does, on a broader, and possibly a constitutional, foundation, whether generally or at least in cases within federal jurisdiction, improved arrangement for the presentation of applications by indigent prisoners in custody may be required. If necessary, it would be open to the courts, by their orders, to ensure such arrangements in defence of the utility of their exercise of the judicial power in a just way to all persons invoking that power. Ultimately, in proper cases, such orders might be enforced by requiring the release of a prisoner on bail pending the provision of proper representation before the appellate court. The courts of the Australian judicature, including this court, are not helpless in the face of a lack of provision of legal facilities to indigent prisoners who seek to enliven a right of appeal or of an application for leave or special leave that is now standard to prisoners who are not indigent or who can secure public legal assistance."
17 The applicant contends that he has strong grounds of appeal and that he should be released from custody so that he can earn sufficient funds to instruct counsel of his choice from the Eastern States to handle his application for leave to appeal against sentence. The applicant contends that this can only happen if he is released to bail as he will otherwise be unable to raise the necessary funds.
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18 It should be noted, however, that the applicant has applied for legal aid to conduct his application for leave to appeal against sentence. That application has been refused and the applicant is taking steps to appeal against that refusal.
19 It is then necessary to consider the grounds of appeal against sentence: Caratti v The Queen [1999] WASCA 91 per Miller J at 11. In this case it is not necessary to deal with the issue as to whether the appropriate test for bail is "strongly arguable grounds of appeal" or grounds of appeal which will "obviously succeed" as, in my view, neither test is satisfied on the facts of the case. It is not possible to reach any final view as to the merits of the appeal on a bail application. All of the materials are not before the Court and a proper examination of the whole of the transcript of the trial cannot be undertaken. However, examination of the sentencing remarks of the learned trial Judge does not reveal any obvious error.
20 It should be mentioned in passing that the applicant has some legal training and the documents prepared by him, both in relation to his application for leave to appeal against sentence and on the bail application, reveal the extent to which he is familiar with legal principles and court process.
21 It seems the conclusion is open that the applicant was aware of his right to appeal against sentence from the time the sentence was imposed upon him, but did not exercise that right prior to the filing of the present application because he believed it would detract from his conviction appeal.
22 The applicant, in his submissions, contends that the substance of his appeal against sentence is that he was, but should not have been, treated differently to his co-offender, Kuc. The applicant says that the learned trial Judge was in error in categorising his part in the offences as being more serious than that of Kuc and therefore imposing a greater sentence upon him. The applicant contends that both he and Kuc should have been treated equally so that the appropriate term of imprisonment for his conduct was a prison term of 10 years with parole.
23 It is to be noted that Kuc was a year and a half younger than the applicant and, in the view of the learned trial Judge, a person who was easily led. The trial Judge indicated the basis upon which she had formulated that view. The learned trial Judge also took into account the antecedents of each of the offenders she sentenced. I have already
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- extracted from her sentencing remarks the essence of her reasoning as to why she imposed a greater sentence on the applicant than she did on the co-accused Kuc.
24 As I have emphasised earlier in these reasons, it was not possible to reach any final view on the merits of the applicant's appeal against sentence. I took into account the applicant's affidavits, the sentencing transcript and the submissions of the applicant and the respondent.
25 Taking all those matters into account, I came to the conclusion that the applicant had not demonstrated exceptional reasons why he should be released to bail: Sch 1, Pt C, cl 4 Bail Act 1982.
26 For these reasons the application was dismissed.
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