APPLICATION FOR BAIL BY FADI HADDARA
[2014] VMC 18
•10 SEPTEMBER 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
Case No.E10971310
| FADI HADDARA | Applicant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 4 SEPTEMBER 2014 |
DATE OF DECISION: | 10 SEPTEMBER 2014 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY FADI HADDARA |
REASONS FOR DECISION
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Catchwords: Bail Act S 4 (2)(a)(a): “Exceptional Circumstances” – previous bail application granted by Supreme Court due to availability of intensive, supervised residential drug treatment program at Raymond Hader Clinic – Accused failed to comply with program and General Manager of Clinic failed to comply with undertaking given to Supreme Court - Delay: possible delay of 18 months - 2 years before trial constitutes “exceptional circumstances” – availability of specialised outpatient Alcohol, Drug & Psychological treatment – alleged risk of committing offences whilst on bail and interfering with witnesses: risks not speculative or fanciful – risks cannot be made acceptable by imposition of stringent bail conditions. Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Dickinson QC | Z Garde-Wilson |
| For the Respondent | Mr D Porceddu | DPP |
HIS HONOUR:
1 Mr Haddara is charged with numerous offences including; trafficking not less than a commercial quantity of methylamphetamine, attempted aggravated burglary, intentionally or recklessly causing serious injury and numerous firearm offences.
2 The drug and firearm offences are listed for a Committal Hearing with co-accused on 10 November 2014. The injury charges are listed for a Committal Hearing on 4 December 2014 and the attempted aggravated burglary charge is listed for trial in the County Court on 27 January 2015.
3 On 9 May 2014, Magistrate Harding refused an application for bail by Mr Haddara on the grounds that he had not demonstrated “exceptional circumstances” and that he was an “unacceptable risk” of committing offences if released on bail and interfering with witnesses. On 18 June 2014, Justice Hollingworth granted bail and said;[1] “In coming to the conclusion that the applicant has just made it over the hurdle of “exceptional circumstances”, I have been particularly persuaded by the availability of the intensive, supervised, residential drug treatment program at the clinic. Without that program, the remaining factors (delay, substantial surety and family support) would not have been sufficient to get the applicant anywhere near persuading me that exceptional circumstances exist”.
[1] [2014] VSC 284 para 55.
4 For reasons that I will discuss, on 2 July 2014, Magistrate Reynolds granted an application to revoke Mr Haddara’s bail without opposition by him. With this history in mind, the parties did not take issue with me determining his further application for bail.
5 Because of the nature of the drug trafficking charges, Mr Haddara must demonstrate the existence of “exceptional circumstances”, that is, that there must be something unusual or out of the ordinary in the circumstances relied on before they can be considered as exceptional. An individual or combination of circumstances, can constitute “exceptional circumstances”. The DPP contend that “exceptional circumstances” do not exist and also allege that if released on bail, Mr Haddara would be an unacceptable risk of committing further offences and interfering with witnesses if released on bail. The burden of establishing unacceptable risk lays with the DPP and they are required to establish something beyond mere speculation or suspicion. Therefore, the application requires a consideration as to whether Mr Haddara has demonstrated “exceptional circumstances” to justify the granting of bail, and, if demonstrated, whether the DPP has established that he would represent an “unacceptable risk” of committing further offences or interfering with witnesses if released on bail, to justify the refusal of the application.
6 I do not propose to detail all matters that were canvassed in Justice Hollingsworth’s decision in relation to the nature of the prosecution case, family support and jurisdictional ties other than noting that since 18 June the following developments have occurred;
a. DNA evidence obtained links Mr Haddara to handling the semi automatic handgun found in the side foot well of his vehicle on 21 March 2014;
b. the transcription/translation of telephone intercept and listening device recordings are yet to be served on the lawyers acting for Mr Haddara;
c. the charges relating to the assault occurring on 23 November 2013 may be downgraded as a consequence of medical evidence recently obtained which apparently indicates the nature and severity of the injuries sustained by the victim were as a result of the motor vehicle accident rather than the assault;
d. for reasons which will be discussed, Mr Haddara did not cope with the conditions at the Raymond Hader Clinic and requested to be discharged and have his bail revoked on 2 July 2014.
7 It is apparent that Justice Hollingworth decided to grant bail on the basis that;
i. an intensive, supervised, residential drug treatment program was available at the Raymond Hader Clinic which made the alleged risks acceptable; and
ii. Mr Oppy, General Manager of the Clinic, was requested and gave a written undertaking that he would personally notify the informant immediately of any breach of bail conditions.
8 Justice Hollingworth stated;[2] “Whilst it cannot be said that there is no possible risk of the applicant committing further offences, interfering with witnesses, or endangering the safety and welfare of members of the public, while on bail, I am satisfied that those risks are not unacceptable while the applicant is residing at the Raymond Hader Clinic on strict bail conditions”.
[2] Paragraph 68.
9 Evidence was given to Her Honour by Mr Oppy as to the nature of the facility and the treatment regime provided. It was noted that the initial course of residential treatment was usually 90 days and any continuation of treatment at the Clinic or elsewhere was dependent on the patient’s progress. It was also noted that the clinic is not a secure facility.
10 Before Her Honour and in this application, concerns were raised by the prosecution as to the past failure of Mr Oppy and others at the clinic to “promptly” notify informants where breaches of bail conditions occurred notwithstanding undertakings being given to the court to do so. One instance of such failure was raised before Her Honour. A number of instances were raised before me which I will discuss in due course.
11 Justice Hollingworth imposed 13 conditions of bail which included, for present purposes, that Mr Haddara;
- reside at the Raymond Hader Clinic;
- not leave the approved residence at any time, except in the company of one of the staff of the clinic;
- apply to the court to vary bail if he ceased residing at the clinic;
- undertake random urine screenings for drugs of dependence as directed by Mr Oppy or his nominee, the results of all such screenings to be provided forthwith to the informant or her nominee.
12 Mr Oppy gave evidence to this court that he transported Mr Haddara from Port Phillip Prison to the Clinic on 19 June. He said that drug screens were performed each day of the first week Mr Haddara resided at the clinic and that he was compliant for a “majority” of the time but was not prepared to engage in group therapy. Mr Oppy described Mr Haddara’s reaction, on at least four or five occasions, when told he must participate in group therapy as, “irrational and childlike”. Mr Oppy told the court that on 1 July, Mr Haddara was asked to sign a “behavioural contract” as a result of his behaviour which had included frequent outbursts of anger and foul language. He said Mr Haddara refused to sign the document and requested that he be returned to prison. Mr Oppy said that in his opinion the environment at the Clinic is unsuitable for Mr Haddara.
13 DSC Klein gave evidence that despite it being a condition of bail that the results of drug screens be forwarded to her forthwith by the Clinic, it did not occur and that she was not provided with them until she requested them after Mr Haddara was exited from the Clinic. She told the court that the screens revealed that Mr Haddara had opiates, cannabis, amphetamine type substances and benzodiazepines in his system during the first week, indicative of him using those substances whilst on remand. She also told the court that she requested the names of employees of the Clinic to whom she could contact to obtain details about Mr Haddara’s behaviour whilst he was a resident and although Mr Oppy initially promised to provide them to her he subsequently refused to do so for privacy reasons. During cross examination, DSC Klein conceded that the drug screening revealed the level of drugs in Mr Haddara’s system did decline during his stay.
14 During the cross examination of Mr Oppy, he eventually conceded that there have been at least 3 occasions where he has breached undertakings given by him to courts to immediately notify informants of breaches of bail by residents at the Clinic. He also conceded that he failed to comply with the written undertaking he gave to Justice Hollingworth to provide Mr Haddara’s drug screens forthwith to the informant, because he said he did not understand what “forthwith” meant and understood his obligation was only to provide them on the request of the informant. I found his explanation to be unconvincing.
15 Mr Oppy was also cross examined concerning details of his prior criminal history involving dishonesty and a drug addiction, which although relevant to the issue of his credibility, were not relevant to the determination of this application.
16 Mr Haddara tendered a medical report from Dr Danny Sullivan, Consultant Psychiatrist, who assessed him by way of videoconference to Port Phillip Prison on 22 August 2014. Dr Sullivan obtained a history from Mr Haddara that he found the program at the Clinic difficult as he was required to “share problems” and had to participate in “group therapy” which made him edgy and anxious. Mr Haddara told him that he did not want to talk about the death of his brother in 2009 or the death of his father from cancer 18 months ago. He also told Dr Sullivan that he would be able to work “one on one” with a Psychologist and would be prepared to take medication to assist with his anger problems.
17 Dr Sullivan noted a past diagnosis in 2011 by Ms Lechner, Psychologist, of post traumatic stress disorder and moderate depression. Dr Sullivan reported that Mr Haddara has a significant problem with polysubstance dependence involving methamphetamine, alcohol, gamma-hydroxybutyrate and alprazolam. He diagnosed that Mr Haddara suffers from PTSD, moderate in severity and a mild to moderate major depressive episode and that these conditions contribute significantly to his substance abuse.
18 Dr Sullivan recommends that Mr Haddara engage in drug, alcohol and PTSD treatment and he noted that specialised “one on one” psychological treatment is not available in prison. He also recommends, that if granted bail, Mr Haddara should be trialled on PTSD medication and receive specialised psychological counselling on referral from his doctor.
19 Mr Brown, Clinical Services Manager at Raymond Hader Clinic gave evidence. He told the court that he has significant educational and practical experience in providing alcohol and drug services in New Zealand and Australia. He said that he has been employed at the Clinic since February 2014 in order to assist in the development of the alcohol and drug program. He told the court that the Clinic can provide drug and alcohol counselling to Mr Haddara and organise for him to undergo PTSD treatment as recommended by Dr Sullivan. He confirmed that the Clinic cannot provide the “one on one” counselling as recommended as their program involves “group” therapy only.
20 Mr Brown gave evidence that if bailed, Mr Haddara could attend the Clinic several times per week for drug and alcohol counselling as an outpatient and that he could arrange for him to receive psychological treatment through his own doctor at a place other than the Clinic.
21 The prior criminal history of Mr Haddara was tendered and the details of some of his prior offending was outlined in the decision of Justice Hollingworth. It indicates a number of driving offences (speeding x 9 – drive unlicensed/ suspended/disqualified x 14) , causing injury, affray, dishonesty offences and harass witness. Of particular concern is his past failure to comply with court orders which has included breach of a community based order, driving whilst disqualified and suspended, breaching an undertaking and breaching two suspended sentences resulting in those sentences being restored.
22 In reaching my decision, I have also considered the issue of parity with other accused most of whom have been granted bail. However, the issue of parity, whilst a relevant consideration, needs to be looked at on an individual basis. In the matters where I granted bail to co-accused, I concluded on the individual circumstances that the accused in each case posed a risk of further offending if released on bail but that stringent bail conditions made that risk acceptable.
Conclusion
23 I accept as valid the submission made on behalf of Mr Haddara that the committal hearing listed for 10 November 2014 is likely to be adjourned or at least not concluded within 2 days. Other co-accused, Kaddour, Minh Pham and Quach are also scheduled for committal hearing on that date. There are a number of other accused whose cases are listed for committal mention in the near future and may join the committal proceeding. DSC Klein conceded that the committal hearing is unlikely to conclude within the two days set aside. In addition, the translation and service of hundreds of pages of listening device and telephone intercept evidence is yet to be served on Mr Haddara’s lawyers. It is more likely that the committal hearing will proceed in early 2015 meaning that if committed and bail is refused, he will be remanded in custody for a period of approximately 18 months to 2 years.
24 In my opinion, a delay of this magnitude, of itself, amounts to “exceptional circumstances” for the purposes of the Bail Act.
25 The prosecution contend that if released on bail Mr Haddara would be an unacceptable risk of committing further offences, endangering the safety and welfare of members of the public and interfering with witnesses or otherwise obstructing the course of justice. In considering these matters I have had regard to the fact that the offences for which he is facing are very serious and have involved the use of firearms. On the information provided to the court, it appears that the prosecution has a strong case. His past behaviour has also indicated a preparedness to engage in acts of violence and to disregard court orders. I find that the prosecution’s allegation that he would be a risk of committing further offences if released on bail is not speculative or fanciful. His past conduct indicates that he would be a risk. The fact that some of the firearms seen on optical devices have not been recovered, heightens the risk and also leads to a conclusion that if released on bail he may endanger the safety and welfare of members of the public. The question then becomes whether these risks can be made acceptable to the court and therefore the community by the imposition of stringent bail conditions.
26 In my opinion, the imposition of stringent bail conditions which may include a surety ($200,000 offered), daily reporting, a static address and a curfew will not make the risks which I have found to exist, acceptable.
27 The fact that Mr Haddara requires alcohol, drug and specialised psychological treatment which can only be provided in the community does not outweigh the need to ensure that the community is protected from what I have found to be a realistic risk that if released on bail he will commit further offences and endanger the safety and welfare of the public.
28 Accordingly, the prosecution has satisfied the onus of satisfying the court that Mr Haddara represents an unacceptable risk of further offending and endangering the public if released on bail. Therefore, I refuse his application.
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