Alnaqbi v The Queen
[2010] WASC 325
•9 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ALNAQBI -v- THE QUEEN [2010] WASC 325
CORAM: BLAXELL J
HEARD: 27 OCTOBER 2010
DELIVERED : 9 NOVEMBER 2010
FILE NO/S: MCS 52 of 2010
BETWEEN: WALEED HASSAN RASHID ALNAQBI
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail - Application to vary terms of bail pending trial - Foreign student charged with importing child pornography into Australia - Bail granted on terms requiring that he remain in Australia until trial - Application to vary bail to enable him to return to home country (United Arab Emirates) - 'Guarantee' from Ambassador for United Arab Emirates that applicant will return to Australia for trial - Whether variation of bail should be granted
Legislation:
Bail Act 1982 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr T F Percy QC
Respondent: Ms P A Aloi
Solicitors:
Applicant: Dwyer Durack
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
BLAXELL J: The Applicant (Mr Alnaqbi) is a citizen of the United Arab Emirates ('UAE') where he lives with his wife and two children. He is employed there by the government of the Emirate of Sharjah as the manager of a non‑government organisation, but also holds a scholarship which requires him to make occasional visits to Western Australia for the purpose of post‑graduate studies at Edith Cowan University.
On 29 July 2010 Mr Alnaqbi was arrested at Perth International Airport by Australian Customs officers and charged with an offence of importing child pornography into Australia contrary to s 233BAB(5) of the Customs Act 1901 (Cth). On the following day he appeared in the Perth Magistrates Court and was released to bail on conditions which require him to reside in Perth and remain in Western Australia until trial.
On 5 October 2010 Mr Alnaqbi applied in the Perth Magistrates Court for a variation of his bail conditions so as to enable him to return to the UAE pending trial. That application was refused, and Mr Alnaqbi now makes a similar application to this court to vary the conditions of his bail.
The prosecution case against the applicant
Mr Alnaqbi arrived at Perth International Airport on 29 July 2010 on a flight from the UAE. Customs officers searched his baggage which included an external computer hard drive, a computer laptop and a Blackberry telephone. When an officer viewed the external hard drive he found a page of approximately 30 thumbnails as well as two movies all of which contained images of young children engaged in sexual activity.
Subsequently, the laptop computer and Blackberry telephone were examined and they were also found to contain images of child pornography. Altogether there were 62 movies in the three devices containing material which depicted young children in sexualised poses as well as children, or adults and children, engaging in acts of sexual penetration and oral sex. Some of the children depicted had apparent ages as young as three or four years.
A forensic examination of the external hard drive, laptop computer and Blackberry telephone also revealed that some of these offensive materials had been viewed, accessed and copied from one device to the other, with the materials then being deleted from the originating device.
On the date of his arrest Mr Alnaqbi participated in a video record of interview with Customs investigation officers. He said that the external hard drive and Blackberry telephone were his, and that the laptop computer belonged to his wife. He admitted that he had brought all three devices into Australia. In the course of the interview Mr Alnaqbi also made statements to the effect that he was 'not sure' whether there was any child pornography in the three devices.
The applicant's personal circumstances
Mr Alnaqbi is 30 years old, and lives with his wife and two children (aged 2 years, and 6 months, respectively) at Sharjah in the UAE. His wife works as a full time accountant and he is employed by the Sharjah government as the manager of an organisation known as the Sharjah Tatweer Forum (STF). The STF promotes business in the UAE by developing the skills of local business leaders.
Since 2006, Mr Alnaqbi has been enrolled as a research student at Edith Cowan University in Joondalup, Western Australia undertaking a PhD in Management. These studies are funded by a scholarship from the UAE government which is administered via the UAE Embassy in Canberra.
The scholarship was initially for a period of three years but was extended for a fourth year. Mr Alnaqbi is now in the final phase of his studies, and is drafting a thesis on the relationship between human resources practices and employee retention in UAE business organisations. The preparation of this thesis is being supervised by a professor at Edith Cowan University.
Whenever Mr Alnaqbi is in Perth for his studies he has leave without pay from his employment. However, he receives an amount equivalent to his normal salary (approximately $4,700 per month) from the UAE Embassy in Australia, and is also provided with air tickets to commute between the UAE and Perth. The Embassy receives regular progress reports and evaluations from the university for the purpose of confirming that Mr Alnaqbi is meeting the requirements of his course.
Mr Alnaqbi is required to complete his studies and submit his thesis by the end of this year. To this end, his supervising professor has required him to collect further data in the UAE by way of interviews, surveys and research. If he cannot return to the UAE to gather the necessary data he will be unable to submit his thesis, will fail his PhD in Management, and may have to repay to the Embassy the moneys that he has received under his scholarship.
Mr Alnaqbi was due to return to his employment on 15 August 2010 but because of the terms of his bail was unable to do so. He was able to obtain extensions of leave up until 1 October 2010 but is currently at risk of losing his employment. In this regard, it is his employer's policy to terminate an employee who remains absent from work for more than 14 days without an acceptable excuse. His employer has also given him a written warning that he would face 'severe action' if he did not return to work prior to the expiration of an earlier extension period.
If Mr Alnaqbi's employment is terminated he will suffer financial hardship. He has mortgage and credit card liabilities (totalling approximately $AUD60,000) with a bank in the UAE, and will be unable to meet these commitments if he is not receiving a salary. His wife and children are also experiencing personal hardship because of his absence.
The Director General of the Sharjah Police in the UAE has provided a 'police clearance certificate' stating that Mr Alnaqbi does not have any criminal record.
Other relevant circumstances
If the present application for variation of bail is granted, Mr Alnaqbi will reside with his family at his home address in Sharjah in the UAE, and will undertake not to change that address without the leave of this court. He will enter into a personal undertaking for an amount fixed by the court and will also pay into court the sum of $15,000 as security.
He also proposes that there be an approved surety in the sum of $80,000. In this regard Mr Alnaqbi has a close friend who is a Saudi Arabian student resident in Australia with assets within the jurisdiction encompassing that amount.
Mr Alnaqbi has also tendered a letter dated 1 September 2010 from the Ruler's Office of the Government of Sharjah addressed to the Ambassador of the UAE in Australia. This letter requests the Ambassador to take whatever steps are necessary to return Mr Alnaqbi to the UAE and goes on to state:
We hope that the relevant Australian Court will advise him of the time and date for the sitting of the Court giving him enough time to return to Australia. We guarantee him and we assure the Australian authorities that we shall take all steps required to relay to him the date and time as might be required to attend the Court in time. By the Sharjah Police we shall ensure that he shall be duly notified of the right procedures. We shall get from him an undertaking that he shall attend the court as may be required by the relevant Australian Authorities. This warranty shall be under the supervision of his colleague who is known to you Mr Ahmad Askar ALNAQBI.
I am informed that Mr Ahmad Askar Alnaqbi is a retired government official in the UAE who is a cousin of the applicant. I also have before me an affidavit from His Excellency Ali Nasser Al Nuaimi, the Ambassador of the UAE in Australia, who has deposed that:
6.The Embassy undertakes and guarantees that Mr Alnaqbi will return to Australia for any required Court appearances.
7.Further, the Embassy is confident that the Attorney General in the United Arab Emirates will take all the necessary steps to compel Mr Alnaqbi to return to Australia for any required Court appearances.
It is important to note that there is not yet any enforceable extradition treaty between the UAE and Australia. A treaty negotiated between the two countries was approved by the Australian Federal Executive Council on 30 November 2006 and signed by the then Minister for Justice on 26 July 2007. The document was tabled on 18 September 2007 but Parliament was dissolved less than 15 sitting days later. The treaty provides that it shall come into force 30 days after the date on which instruments of ratification are exchanged. Before this can occur, regulations will need to be made under the Extradition Act 1988 (Cth) to implement the treaty.
The charge against Mr Alnaqbi is still before the Magistrates Court, but the prosecution has provided full disclosure, and his committal can be expedited if he so wishes. The estimated length of trial is three or four days, and the District Court is able to list it on an expedited basis in either late December 2010 or January 2011.
Whether the conditions of the applicant's bail should be varied
The present application should be determined in accordance with s 17(2) of the Bail Act 1982 (WA), which provides that:
Conditions imposed on a grant of bail shall not be any more onerous on the accused than the judicial officer or authorised officer considers is required in the public interest having regard to the nature of the offence for which the accused is in custody and the circumstances of the accused.
In the present case, there is an obvious public interest in ensuring that Mr Alnaqbi will be present at his trial. However, there is also a public interest that he be dealt with fairly, and that he not be required to remain in Western Australia if appropriate conditions of bail can provide a reasonable assurance that he will return in time for trial. The essential question is whether the proposed conditions are sufficient to ensure this outcome having regard to the nature of the alleged offence and Mr Alnaqbi's personal circumstances.
The offence alleged against Mr Alnaqbi is a serious one and carries a maximum penalty of 10 years' imprisonment. In light of the materials presently before me I consider the case against him to be very strong. Furthermore, the child pornography that he allegedly imported can be categorised as the worst of its kind, given the nature of the sexual activities and ages of the children depicted. Accordingly, and in the event that Mr Alnaqbi is convicted, he is likely to receive a term of immediate imprisonment.
To my mind, it is self‑evident that in these circumstances Mr Alnaqbi has a strong incentive not to return to Australia if his bail is varied. He has no connection with Australia beyond the studies which he is scheduled to complete this year, and from his perspective, the consequences of any conviction would be very dire.
On the other hand, I must have regard to Mr Alnaqbi's personal circumstances, and the consequences for him if his bail is not varied and he is required to remain in Australia. If he has not already lost his employment then the probability is that it will be terminated. This will result in financial difficulties, and he will not be able to complete his thesis within the required time. I also accept that Mr Alnaqbi's absence is causing hardship to his family, and that their difficulties will increase if the present application is refused.
Having regard to the nature of the alleged offence and the surrounding circumstances generally, I do not consider that the proposed payment into court of $15,000 and the surety of $80,000 will be enough on their own to ensure that Mr Alnaqbi will return to Australia for his trial. Accordingly, the critical question is whether these proposed conditions combined with the undertaking and guarantee from His Excellency the Ambassador are sufficient to ensure that outcome, in circumstances where there is no extradition treaty with the UAE.
While I have no reason to doubt the sincerity of the undertaking from His Excellency the Ambassador, I am not informed of the laws and procedures within the UAE which would ensure its enforcement in the event that Mr Alnaqbi was unwilling to return to Australia. All I am told is that the Embassy is 'confident' that the Attorney General in the UAE will take all necessary steps to compel his return. Accordingly, and with all due respect to His Excellency, I am not persuaded that his undertaking and guarantee will definitely result in Mr Alnaqbi's return to Australia.
In the end, I must balance the public interest in ensuring that Mr Alnaqbi is present at his trial, against the potential injustice that would occur if his application is refused and he is not ultimately convicted. In my view, the strength of the prosecution case and the probable outcome if there is a conviction outweigh those factors which favour the proposed variation of bail. For these reasons, I have come to the conclusion that the application must be refused.
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