Director of Public Prosecutions v Abdelkhalek
[2024] VSC 111
•14 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0041
| Between: | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| -and- | |
| JAMAL ABDELKHALEK | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING & ORDERS: | 7 March 2024 |
DATE OF WRITTEN REASONS: | 14 March 2024 |
CASE MAY BE CITED AS: | DPP v Abdelkhalek |
MEDIUM NEUTRAL CITATION: | [2024] VSC 111 |
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CRIMINAL LAW — Appeal by DPP against order varying bail — In March 2022, JA charged with rape and released on bail — Trial listed to commence in County Court in July 2024 — In February 2024, judge varied bail by suspending conditions to allow JA to travel to Morocco for two weeks to farewell his dying mother — Instead of surety, judge imposed condition requiring JA to provide deed acknowledging forfeiture of work tools and vehicle should he fail to return to Australia — Whether condition lawful and enforceable — Whether unacceptable risk of failing to answer bail if allowed to travel to Morocco — JA, a Moroccan national, resident in Australia but not Australian citizen — If convicted, imprisonment inevitable, deportation possible — No extradition treaty between Morocco and Australia — No prior convictions — JA in Australia for last six years without return to Morocco — On bail for two years — JA’s partner and six‑month‑old child Australian citizens and would travel to Morocco with JA — Appeal allowed — Orders of judge set aside — Fresh bail hearing — In viva voce evidence, partner said she believes JA will answer bail, and is prepared to be surety in sum secured by equity in her mortgaged apartment — JA bailed on own undertaking with conditions — Temporary suspension of conditions to allow travel to Morocco, conditional upon partner being surety in the amount of $100,000 — Bail Act 1977 (Vic), ss 3AAA, 4, 4D, 4E, 5AAA, 9, 18AC, 18AD & 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A. Sprague | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Ms M. Brown | Cogent Legal |
HIS HONOUR:
Overview
In March 2022, Jamal Abdelkhalek was charged with rape. He was released on bail on conventional conditions. His trial is listed to commence in the County Court in July this year. In February, he applied to a judge of that court to vary his bail conditions in a way that would allow him to travel to his homeland of Morocco for a fortnight to farewell his dying mother.
The judge granted the application, but did not require any surety. Instead, her Honour fashioned a series of additional conditions designed to require Mr Abdelkhalek to give a form of security to ensure he answered bail. One of those conditions required that he provide a deed acknowledging that he would forfeit his (quite valuable) work tools and his work vehicle should he fail to return to Australia in answer to his bail (“the forfeiture condition”).
Last week, I heard an appeal by the Director of Public Prosecutions, pursuant to s 18A of the Bail Act 1977 (Vic), against the judge’s orders varying bail. I allowed the appeal on the ground that, whatever may be said about the validity or enforceability of the forfeiture condition, neither that condition nor the others were adequate to offset an otherwise unacceptable risk that Mr Abdelkhalek would fail to return to Australia in answer to his bail. In my opinion, only a substantial surety could offset that risk so that it was not unacceptable. Accordingly, I set aside the orders of the judge.
At a fresh hearing, I heard viva voce evidence from Mr Abdelkhalek’s partner, who was prepared to be a surety secured by the equity in her investment apartment. I released Mr Abdelkhalek on bail on his own undertaking with the same conditions as had been in place before the variation application. In addition, I made orders allowing for a temporary suspension of some of his bail conditions to allow him to travel to Morocco for two weeks, conditional upon his partner acting as a surety in the amount of $100,000, which was to be secured against her equity in her apartment.
My reasons (couched mostly in the present tense) for making those orders follow.
Summary of alleged offending
In summary, the prosecution case is as follows.[1]
[1]This summary, and the summary of the application in the County Court (below), are based only on the affidavit filed on behalf of the Director, and on what I was told by counsel, as no transcript of the hearing below was put before this Court.
On the night of Saturday 22 January 2022, Mr Abdelkhalek (who was then 31) met the complainant (who was 25) at a bar. They had not met previously.
After the bar closed at 1:00 a.m., the complainant and three of her friends went to a hotel. The complainant was permitted entry on the proviso that she did not drink any more alcohol. For reasons unknown, Mr Abdelkhalek was not permitted entry.
At a later point, the complainant and two of her friends took a ten‑minute walk with Mr Abdelkhalek to his flat, where they continued drinking, listening to music and dancing.
Another person who had been working at the bar, and was now at Mr Abdelkhalek’s flat too, invited a co‑worker over, who arrived between 4:30 a.m. and 5:00 a.m. The co‑worker noticed that the complainant appeared to be heavily intoxicated, as she was unsteady on her feet and had to be held up when dancing.
It is alleged that, between 4:30 a.m. and 5:30 a.m., Mr Abdelkhalek took the complainant to his bedroom, placed her on his bed, and pulled down her pants and underwear. The complainant alleges that she passed out but awoke to find Mr Abdelkhalek inserting his fingers in her vagina and asking, “Is this okay?” She says that he then inserted what she believed to be his penis into her vagina when she lost consciousness again.
A little later, two of the complainant’s friends — who had left the premises briefly — saw Mr Abdelkhalek coming out of his bedroom. When they asked him where the complainant was, he said she was in his bedroom, asleep. The same two went to the room and found the complainant passed out on the bed. One of them pulled up the complainant’s pants, which were partially down and undone.
When the complainant awoke, she felt that her vagina was sore and not feeling right. One of her friends called her an Uber at about 6:00 a.m.
After the complainant returned to her home, her vagina was still sore and she felt like she had been raped. She called her husband, who in turn contacted his parents and arranged for them to look after the complainant until he returned home. Later, the complainant told her mother‑in‑law that she had been raped.
Soon afterwards, police attended the complainant’s home. She was taken to hospital and forensically examined.
On 19 March 2022, Mr Abdelkhalek was arrested and interviewed. Police charged him with a single count of rape alleging both digital and penile penetration.
Subsequent procedural history
The same day, Mr Abdelkhalek was released on bail on various standard conditions, including a nominated residence, thrice‑weekly reporting, the surrender of any passport held by him, and a prohibition on attending points of international departure.
In June 2022, a second charge of rape alleging penile‑vaginal penetration was added, and the original charge was amended to allege only digital‑vaginal penetration.
On 6 March 2023, following a contested committal hearing in the Magistrates’ Court, Mr Abdelkhalek was committed for trial in the County Court on the two charges of rape.
On 31 October 2023, Mr Abdelkhalek’s bail was varied administratively to change the reporting condition to once a week and to change his address.
His trial is listed to commence in the County Court on 1 July 2024. A final directions hearing is listed on 20 May.
Application to County Court to vary bail
First day, 15 February 2024
On 15 February this year, Mr Abdelkhalek applied to the County Court to vary his conditions of bail.
As I have said, the variation was sought to allow him to travel to Morocco to see his mother, who is believed to be suffering from a blood cancer and to have little time left to live. Mr Abdelkhalek’s plan was to travel, with his partner and their six‑month‑old child, so that he could pay his last respects to his mother and introduce her to his child, and then return to Australia to face his trial.
While perhaps a little thin in some respects, the evidence before her Honour — which included documents from an oncology and haematology hospital in Marrakech — showed that Mr Abdelkhalek’s mother is suffering from a blood condition or cancer, and is in palliative care.
Mr Abdelkhalek was born in Morocco. He is not an Australian citizen but is a permanent resident. He has lived and worked here for the past six years. He has his own business in floor polishing.
Mr Abdelkhalek offered his work tools as a form of security to persuade the judge of his bona fides in promising to return to Australia.
The Director opposed the application. It was submitted that the tools could not amount to a surety. That said, counsel for the Director (who did not appear in this Court) also indicated that, were a proper surety in the amount of $100,000 offered, the necessary variation would not be opposed.
The judge adjourned the application to allow Mr Abdelkhalek to provide further materials and other information requested by the Director.
Second day, 27 February 2024
Upon the return of the matter on 27 February, further documentary evidence was provided by Mr Abdelkhalek, including an affidavit sworn by him, an estimate of the value of his tools (the receipts for which showed that their replacement cost was about $70,000), information concerning his business, a copy of his daughter’s passport, and an affidavit affirmed by his partner, Dana Rus.
In his affidavit of 24 February, Mr Abdelkhalek said that he only learned of his mother’s illness and prognosis on 2 February, and that he had been receiving updates on her condition from his brother in Morocco. He last spoke to his mother the day his affidavit was affirmed. It was apparent that she had lost a lot of weight over the past two months. While he was earning between $3,000 and $5,000 a week in his business, he was the sole income earner at the moment, because his partner was on maternity leave. He did not have $100,000 in cash to be used as a “surety”. However, he was prepared to offer his work tools as a form of “surety” — security, really — to ensure his return.
In her affidavit of 24 February, Ms Rus confirmed that she had been in a de facto relationship with Mr Abdelkhalek since the end of 2022 and that their daughter was born in September 2023. She is an Australian citizen. She works full time as an aged care worker, and earns about $1,500 a fortnight, but she was currently on maternity leave. She also confirmed that Mr Abdelkhalek’s mother was in palliative care with a blood condition that, it is believed, will cause her to pass away shortly. She did not think she had the capacity to afford a surety of $100,000.
At that second day of the hearing, prosecuting counsel indicated that, in view of the fact that Ms Rus owned an apartment, the Director would be content with a surety from her of $20,000. It was submitted that the tools, however, would not be an appropriate form of “surety”, as the funds or property would be coming from Mr Abdelkhalek, which was inconsistent with s 9 of the Bail Act.
Counsel for Mr Abdelkhalek submitted that, instead of a surety, the tools could form the basis of a conduct condition pursuant to s 5AAA of the Bail Act. It was proposed that Mr Abdelkhalek could surrender to police his keys to his work van containing his tools, which he could collect only upon his promised return to Australia.
Mr Abdelkhalek also gave viva voce evidence before the judge. He confirmed that he wanted to travel to see his mother and say goodbye. He had not seen her since he came to Australia six years ago. He said his understanding of her medical condition was that she was suffering from blood cancer, and was not eating much. He said he has two brothers and two sisters in Morocco. He said that he does not have Australian citizenship but is a permanent resident here.
During cross‑examination, Mr Abdelkhalek confirmed that he discovered that his mother was unwell on 2 February 2024. He explained that the medical documents in evidence came from his family, and that he had not had contact with his mother’s doctor. Rather, the information he had on her health was relayed by his family. He said that only his cousin was aware of the charges against him, and his immediate family was not aware of his upcoming trial. He said that he had about $6,000 in savings, and he was not sure how he was going to fund his trial.
Ms Rus also gave viva voce evidence. She said that she had never been to Morocco, had no family there, and had no intention of staying there after their proposed visit. She owned an apartment for which she paid $411,000, and she believed she owed the bank over $300,000 on her mortgage.
Mr Abdelkhalek did not offer to the court that Ms Rus might act as a surety.
Decision and orders of judge
After hearing submissions, the judge granted the application and varied Mr Abdelkhalek’s bail conditions.
According to the affidavit filed in this Court on behalf of the Director, among the reasons her Honour gave for doing so were that:
a) Ms Rus was an Australian citizen and had ties to the community;
b) Mr Abdelkhalek had no prior convictions;
c) he had complied with his bail conditions for nearly two years; and
d) he had his own business here, part of which were his tools, which were of substantial value.
The pre‑existing conditions of Mr Abdelkhalek’s bail that the judge incorporated into the varied bail included the following:
a) he is to report to [redacted] police station each Monday between 9:00 a.m. and 9:00 p.m.;
b) he is to reside at [redacted];
c) he is not to contact, directly or indirectly, any witness for the prosecution save for the informant;
d) he is to notify the informant within 24 hours of any proposed change of address.
In addition, as varied, Mr Abdelkhalek’s further bail conditions provided that:
a) he is to provide an itinerary, details of accommodation in Morocco, and contact details of the persons with whom he will be staying, to the informant within 24 hours of departure;
b) his reporting condition is suspended between 18 March and 1 April 2024;
c) he is permitted to travel overseas to Morocco between 18 March and 1 April 2024;
d) he is permitted to attend points of international departure between 18 March and 1 April 2024;
e) he is to provide the keys to his work vehicle with tools locked inside to the informant prior to departure;
f) he is to provide proof of ownership of the work tools and vehicle to police prior to departure;
g) he is to provide a deed to the informant acknowledging he will forfeit his ownership of those tools and vehicle in the event that he does not return to Australia; and
h) upon return to Australia, he is to surrender his passport to the County Court Registry by 3 April 2024.
The appeal in this Court
Section 18A of the Bail Act
I turn now to the appeal in this Court, commencing with the relevant parts of s 18A of the Bail Act, which are as follows:
(1) If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if—
(a) the Director is satisfied that—
(i) the conditions of bail are insufficient; or
(ii) the decision to grant bail contravenes this Act; and
(b) the Director is satisfied that it is in the public interest to do so.
…
(6) On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
Director’s right of appeal against order varying bail
In Re Zhang (“Zhang”), Emerton P held that s 18A permits (and governs) appeals against orders varying conditions of bail. In particular, her Honour said this:[2]
[16]In my view, this provision permits (and governs) an appeal against an order by a Magistrate varying a bail condition. The respondent did not contend otherwise.
[17]Although s 18A does not expressly refer to the Director’s right to appeal against a decision to vary a condition of (existing) bail, it must be construed as conferring such a right. A successful application to vary bail conditions results in the court — in granting the application to vary — making a fresh grant of bail with new conditions.[3] It cannot have been the intention of Parliament that s 18A would confer upon the Director a right of appeal against a decision fixing bail conditions on an initial grant of bail, while conferring no such right in relation to a subsequent decision varying bail conditions in a manner that reduces their stringency and compromises the protections that they afford.
[2]Re Zhang [2023] VSC 8 at [16]–[17].
[3]At this point in the reasons, her Honour added in a footnote that “[the] successful variation application obliges the accused to give a fresh bail undertaking acknowledging the new conditions”.
Nature of appeal under s 18A
As to the nature of the appeal under s 18A, Emerton P referred in Zhang[4] to what had been said by the Full Court of this Court in Beljajev v Director of Public Prosecutions[5] (“Beljajev”) in relation to an earlier (but substantially similar) version of s 18A(6), and to the position as summarised by Weinberg JA in DPP v Molinaro (“Molinaro”), where his Honour said the following:[6]
[4]Re Zhang [2023] VSC 8 at [18]–[21].
[5]Beljajev v Director of Public Prosecutions (Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) at 29–30.
[6]DPP v Molinaro [2017] VSC 624 at [7] & [9] (my emphasis in bold italics).
[7]… It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.
…
[9]In the event that the court finds relevant error, and sets aside the decision below, it must then conduct a fresh hearing in relation to the grant of bail to the respondent. In other words, the relevant provision contemplates a two‑stage process, one regarding correction of error, and the second, in effect, a hearing de novo.
Mr Sprague, who appeared for the Director in this Court (but not in the court below), pointed out that, in a footnote to his reasons in Molinaro at [7], Weinberg JA added the following concerning the nature of an appeal under s 18A:[7]
It does not follow … that this Court will only allow an appeal if it concludes that the magistrate below arrived at a finding or findings that were ‘not reasonably open’. That may be too high a threshold. Put that way, it comes very close to saying that nothing short of an error of law, and perhaps even a jurisdictional error, in the sense described by the High Court in Craig v The State of South Australia[8] … is essential in order for the Director to succeed under s 18A. If a judge of this Court is of the firm view that, on the material before the Court below, there were no exceptional circumstances, or that the respondent represents an ‘unacceptable risk’ that should trigger a finding that ‘a different order should have been made’, within the language of s 18A(6). In other words, the appeal under that section should be seen as being by way of rehearing, rather than akin to judicial review of a discretionary judgment.
[7]My emphasis in bold italics.
[8]Craig v The State of South Australia (1995) 184 CLR 163 at 179.
Mr Sprague added that, as Emerton P did in Zhang, both Tinney J in DPP (Cth) v Khan[9] and then Champion J in Re Molla[10] applied Weinberg JA’s analysis in Molinaro of the test under s 18A(6). He also submitted that Weinberg JA’s statements of principle in this regard are correct and apply to this appeal. I did not understand Ms Brown, who appeared for Mr Abdelkhalek, to disagree with those submissions.
[9]DPP (Cth) v Khan [2021] VSC 224 at [18]–[21] (this matter involved an appeal against an order granting bail, not against an order varying conditions of bail).
[10]Re Molla [2023] 729 at [17]–[23].
Bail decision re unacceptable risk is not “discretionary” but “evaluative”
Only very recently, and since all of the foregoing cases were decided, the Court of Appeal (Walker, Taylor and Boyce JJA) in Zayneh v The King (“Zayneh”) made the following remarks about the nature of a decision to grant or refuse bail, and whether it is correct to describe such a decision as discretionary:[11]
[11]Zayneh v The King [2023] VSCA 311 at [38]–[40] (footnotes omitted).
[38]Although it has been said that a decision to grant or refuse bail is discretionary, that label is not, strictly speaking, accurate in relation to a decision pursuant to s 4E of the [Bail Act]. That is because, pursuant to that section, a bail decision maker must refuse bail if (relevantly for present purposes):
(a) the bail decision maker is satisfied that there is a risk that the accused would, if released on bail, fail to surrender into custody in accordance with the conditions of bail; and
(b) that the risk of which the bail decision maker is satisfied is an ‘unacceptable risk’;
and, if the decision maker is not so satisfied, then the accused has an entitlement to bail under s 4.
[39]The power thus conferred on the decision maker ought not be described as a ‘discretion’ — rather, it is a duty to be exercised if a particular state of satisfaction is reached. The respondent accepted as much.
[40]Nonetheless, in accordance with the authorities in this Court concerning the standard of review on an appeal from a bail decision, such an appeal is to be decided in accordance with the principles set out in House v The King. That is because, although not discretionary, the decision to grant or refuse bail, turning as it does on whether the decision maker is satisfied that a particular risk is ‘unacceptable’, is one that requires appellate restraint. …
Next, after setting out the same passage in Beljajev that had been extracted by Emerton P in Zhang, their Honours in Zayneh, after noting that no specific error was alleged, went on to hold that the primary judge did not err in refusing bail on the basis that he was satisfied that there was an unacceptable risk that the appellant would not surrender himself into custody.[12] That is, said their Honours, that decision was not unreasonable or plainly unjust, and it was open to the judge to reach the “evaluative conclusion” that he reached.[13]
[12]Zayneh v The King [2023] VSCA 311 at [41].
[13]Zayneh v The King [2023] VSCA 311 at [41].
Possible tensions in the authorities?
Given the Court of Appeal’s rejection in Zayneh of the notion that a bail decision concerning unacceptable risk is discretionary in nature, and the preference for classifying such a decision as involving “a duty to be exercised if a particular state of satisfaction is reached” and as an “evaluative conclusion”, it might be thought that, given Weinberg JA’s description in Molinaro of bail decisions as involving a “discretion”, his Honour’s suggested approach to appeals under s 18A might require reconsideration.
It is also apparent from the foregoing extract from Zayneh that the Court of Appeal considered that House v The King[14] principles were to be applied in determining an appeal to that court from a bail decision. In Molinaro, Weinberg JA was dealing with the nature of an appeal (against a magistrate’s decision to grant bail) brought under a particular statutory provision, namely s 18A, which, as we have seen, has its own inbuilt test in s 18A(6) — namely, “if the Supreme Court thinks that a different order should have been made” — whereas, in Zayneh, the Court of Appeal was dealing with an appeal to it, pursuant to s 17(2) of the Supreme Court Act 1986 (Vic), from the decision of a judge of this Court refusing bail.
[14]House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
In the course of argument on this appeal, I raised some of the tensions that might be thought to arise between the statements of principle in Zayneh and Molinaro. However, I did not hear submissions on how these questions might be resolved. In the circumstances of this case, it became unnecessary to do so. This is because, as I understood their submissions, it was accepted by both Mr Sprague and Ms Brown that, on whichever test were applied when hearing this appeal under s 18A, and notwithstanding the need for appellate restraint concerning bail decisions (which was recognised in both Zayneh and Molinaro), given the firm view I formed about the inadequacy of the forfeiture condition to curtail the risk of flight to something short of an unacceptable risk, and the absence of a surety (about which I shall say more later), the appeal had to be allowed in any event.
Thus, the resolution of these possible tensions — if there be any — will have to await a case in which it might matter to the outcome, and when the Court has heard full argument on the issues.
All of that said, I shall determine this appeal in accordance with the approaches endorsed by Weinberg JA in Molinaro and Emerton P in Zhang, but with a recognition that a bail decision concerning unacceptable risk is not discretionary but rather is as the Court of Appeal described in Zayneh — namely, that such a decision involves “a duty to be exercised if a particular state of satisfaction is reached” and is an “evaluative conclusion”.
Grounds of appeal
The Director’s notice of appeal pleaded the following grounds:
Ground 1: It was unreasonable, having regard to the material before the County Court, and the surrounding circumstances, for the Court to grant bail on the conditions as varied, including the special conditions permitting the respondent to travel to Morocco between 18 March and 1 April 2024, and suspension of regular conditions. An order dismissing the application to vary bail should have been made.
Ground 2: On the material before the Court below, the Court should have found that there was an unacceptable risk pursuant to ss 4D and 4E of the Bail Act, that if the application to vary bail was granted there was an unacceptable risk that the respondent would fail to surrender into custody in accordance with the conditions of bail.
Ground 3: Taking into account the surrounding circumstances, the conditions as varied by the County Court are insufficient, and the risk that the respondent would fail to surrender into custody if released on those conditions of bail is unacceptable for the purposes of ss 4D and 4E of the Bail Act.
Ground 4: The condition ordered by the court that “The accused is to provide a deed to the informant acknowledging he will forfeit his ownership of those tools and vehicle in the event he does not return to Australia” was:
(i) not empowered under the section it was purported to be made under, namely s 5AAA of the Bail Act, “Conduct Conditions”; and
(ii) was unenforceable at law in substance and in its terms.
The issues on this appeal
Notwithstanding these four grounds of appeal, the Director’s case, as argued by Mr Sprague, reduced essentially to the following propositions:
a) First, the judge erred because the forfeiture condition was neither empowered by s 5AAA of the Bail Act nor enforceable at law or in its own terms. (This complaint is reflected in Ground 4.)
b) Secondly, and in any event, the judge erred because, in all the circumstances (including the inevitability of a prison sentence were Mr Abdelkhalek found guilty, his family ties to Morocco, and the fact that there is no extradition treaty between Morocco and Australia), the new conditions (including the forfeiture condition) were not capable of offsetting an otherwise unacceptable risk that Mr Abdelkhalek would fail to return to Australia.
c) Thirdly, only a substantial surety could offset that risk to a point where it was acceptable. (The second and third propositions are reflected, more or less, in Ground 3.)
Thus, putting aside the questions of law involved in the first proposition, at its heart, this appeal concerns whether the judge’s decision to vary bail — to allow Mr Abdelkhalek to travel to Morocco for two weeks — and the conditions by which her Honour sought to allow that to occur were open notwithstanding the Director’s submission that, in all the circumstances, there was an unacceptable risk that he would fail to return to Australia.
Discussion and submissions
While I did not have the benefit of transcript of either the hearing in the County Court or the judge’s reasons, her Honour must not have accepted the Director’s submission that there was an unacceptable risk that Mr Abdelkhalek would fail to return to Australia if bailed on the conditions she fixed. Plainly, her Honour must have accepted that Mr Abdelkhalek’s mother was believed to be dying, that Mr Abdelkhalek should be allowed to farewell her (and to introduce his daughter to her) in person in Morocco, and that the conditions, including the forfeiture condition, were sufficient to reduce to an acceptable level the risk that he would fail to return to this country in answer to his bail, notwithstanding matters pointing towards an unacceptable risk, including the inevitability of a prison sentence were he found guilty, his family ties to Morocco, and the absence of an extradition treaty between Morocco and Australia.
In the course of the hearing in this Court, I indicated to Ms Brown that I was quite troubled by the absence of a condition requiring an independent surety in a substantial amount, as opposed to the forfeiture condition, as a means of offsetting what might otherwise be an unacceptable risk of Mr Abdelkhalek’s failing to return to Australia to face trial. In particular, I indicated that I was of the view that, whether or not the judge was empowered under s 5AAA to fix the forfeiture condition, and whether or not that condition was valid and enforceable, I was concerned that, while it may be described as an innovative condition and may reasonably have been thought to provide some incentive for Mr Abdelkhalek to return to face trial, its inherent difficulties were that the property put at risk was his, not another’s, and it did not require another to ensure his return under risk of forfeiture of that person’s security.
Ms Brown indicated that, if I considered that a surety must be in place, she would propose that the appeal be allowed, that the forfeiture and related conditions be removed, and that, upon a fresh hearing, a temporary condition requiring a surety could be substituted. She explained that, while some further documents were required to confirm the necessary information, she understood that Ms Rus had about $150,000 of equity in her apartment and that she would be prepared to use some of that equity as security. Further, Ms Rus would be prepared to give viva voce evidence in support of the fresh application.
Mr Sprague indicated that, if I were persuaded that the forfeiture condition was insufficient to mitigate the risk to the required degree and that, instead, there had to be a substantial surety in place to allow Mr Abdelkhalek to travel to Morocco, that would be enough to cause the appeal to be allowed and the orders below to be set aside. He indicated that, if, upon a fresh hearing, and with a substantial surety and other conditions in place, I was not satisfied that there would be unacceptable risk of Mr Abdelkhalek failing to return if he were allowed to travel to Morocco for two weeks, then I should grant bail on conditions that reflected that view.
Fresh hearing
Ms Rus’s viva voce evidence
Before the appeal was formally allowed, without objection by Mr Sprague, I allowed Ms Brown to call Ms Rus to give viva voce evidence as if on a fresh hearing.[15]
[15]This was done for reasons of convenience which need not be explained here.
In evidence‑in‑chief, Ms Rus explained that she came to Australia from Romania at the age of about 16. She has worked as a nurse in aged care for the last 15 years. Presently, she is on maternity leave caring for her daughter, who was born in September 2023.
Ms Rus confirmed that she and Mr Abdelkhalek have been in a de facto relationship since December 2022.
She explained that she intends to travel to Morocco with Mr Abdelkhalek and their daughter, so that he can say goodbye to his mother and so that his mother can meet her granddaughter.
Ms Rus has never met her partner’s mother. She has seen her on video calls but she has been unable to speak to her because of the language barrier between them. Mr Abdelkhalek’s mother speaks Arabic, but Ms Rus does not. Nor does Ms Rus speak French, the other language of Morocco.
Ms Rus said she knows no one in Morocco and has no plans to live there. She intends to live in Australia, which is where she has grown up and worked, and where her friends are. In anticipation of her return to work, she has enrolled her daughter in childcare close to their home in Melbourne.
Ms Rus is an Australian citizen. She is not a dual citizen as she does not plan to live in Romania.
Ms Rus said she is prepared to be a surety in the event that her partner is allowed to travel to Morocco for two weeks. She is aware of her obligations as a surety, and that, if her partner did not return from Morocco, she could lose whatever sum she offered as security. In answer to the question why she is prepared to be a surety, Ms Rus said, “Because I know we’re coming back and I don’t have any problem trusting that we [will] come back.” When asked if she was confident that her partner will come back, she said, “Yes, I am.”
Ms Rus bought her apartment in Kew in 2011 for $411,000. She believes she owes about $252,000 on the loan. The mortgage repayments are about $2,000 per month. She has the property rented out for about $1,900 per month. The bank has told her that the valuation of her apartment is currently about $470,000 to $480,000. (I note that, on these figures, her equity in the apartment would exceed $150,000.)
In cross‑examination, Ms Rus said she understood that, if there were a breach of any condition of her partner’s bail, the surety offered could be forfeited. She also said she understood that it would be her responsibility as a surety to take all reasonable steps to ensure that her partner returns to Australia in accordance with his bail. She said that she was willing to put up her property as security because she is confident that he will return.
As to the amount of surety she was willing to offer, she would offer whatever amount she was asked for, including a substantial proportion of her equity, which she agreed was over $150,000.
Further documentation
The matter was then stood down until after the lunch break to allow Ms Brown’s instructing solicitor to obtain the further documentation needed to satisfy the Registry’s requirements for Ms Rus to be a surety.
Upon the resumption of the matter, Ms Brown indicated that the documents were in place in electronic form and that, if bail were granted with a surety, Mr Abdelkhalek could attend the Registry, with Ms Rus, via Zoom from his solicitor’s office, and give the necessary undertakings.
Submissions on fresh hearing
Mr Sprague submitted that the provision of a substantial surety could mitigate the risk of failing to appear, but could not remove it. Whether that risk was unacceptable or not was, he submitted, a matter for me.
He further submitted that, if, having heard Ms Rus’s evidence and having considered all the other evidence, I was minded to require a (temporary)[16] surety, it should be for a substantial sum — relative to Ms Rus’s means — so that there would be a sufficient “deterrent effect”. Mr Sprague submitted that, given Ms Rus’s equity in her apartment, that amount should be $100,000.
[16]There was no issue that the surety should only be temporary — i.e. while Mr Abdelkhalek was overseas — and that that requirement should be lifted upon his return.
Ms Brown agreed that the amount of the security should be related to Ms Rus’s means, but in this case $20,000 was sufficient to achieve the desired deterrent effect.
In this connection, Ms Brown contrasted the surety given in Zhang. Mr Zhang was facing several charges arising out of a car accident, including the serious charge of culpable driving causing death. He was released on bail. Before the committal hearing, Mr Zhang’s bail conditions were suspended for two months while he travelled to Singapore with his wife. While the surety fixed by the magistrate was $1.5 million, Mr Zhang was a cardiothoracic surgeon of considerable means. The Director’s appeal under s 18A against that bail variation was dismissed by Emerton P.
Ms Brown also submitted that Mr Abdelkhalek’s ties to the jurisdiction (which were said to be evidenced by the fact of his being in Australia for six years without return to Morocco, that his business was here, and that his partner and child were Australian citizens living here), the confidence Ms Rus has in her partner’s return, the fact that he has no criminal history, the triable issues on the charges, and his two years on bail, should combine to reduce the amount of the surety below $100,000.
Consideration
Appeal
Other relevant provisions
I turn now to my conclusions, commencing with some other provisions relevant to the disposition of the appeal.
Upon Mr Abdelkhalek’s application to vary his bail, the judge was required to vary the conditions of bail if it appeared to her Honour that it was reasonable to do so having regard to the “surrounding circumstances”.[17]
[17]See ss 18AC and 18AD of the Bail Act 1977 (Vic).
Section 3AAA(1) of the Bail Act provides that, where a bail decision maker (here, a court) must take into account the surrounding circumstances, the court must take into account all the circumstances that are relevant including, but limited to, a list of matters set out that provision, which I need not set out here.
Section 4D(2) provides that the prosecutor bears the burden of satisfying the court as to the existence of the relevant risk in s 4E(1)(a), and that that risk is an unacceptable risk. The relevant risk in this case is whether, if released on bail in a way that allowed him to travel to Morocco, Mr Abdelkhalek would fail to surrender into custody in accordance with the conditions of bail.
Consideration
Plainly, there is a risk that, if allowed to travel to Morocco, Mr Abdelkhalek would fail to return to Australia in conformity with the conditions fixed by the judge. That risk arises from the inevitability of a prison sentence were Mr Abdelkhalek found guilty as charged, his family ties in Morocco (where his mother and siblings live), and the lack of an extradition treaty between Morocco and Australia. Thus, he would have strong cause to believe that, once in Morocco, he would not be forced to return to Australia to face trial. In my judgment, these matters, in combination, create an unacceptable risk that he would indeed fail to return to Australia in answer to bail.
On the other hand, the matters before the judge capable of mitigating that risk included the following:
(a) The judge heard viva voce evidence from Mr Abdelkhalek and Ms Rus, and was therefore in a position to assess the genuineness of Mr Abdelkhalek’s promised return and the significance to him of offering his work tools and vehicle as security for his return.
(b) There was (and is) no dispute that Mr Abdelkhalek has no prior convictions of any kind and is of good character.
(c) There are triable issues on the charges he faces. It is apparent, from the summary of the prosecution case I was given (and which I assume was before the judge), that the Crown may well have difficulties proving the charges. While it may be accepted that the complainant was very drunk, her account of Mr Abdelkhalek’s act of digital penetration and his remarks at the time (“Is that okay?”) are capable of implying that he reasonably believed she was consenting. As to the allegation of penile penetration, the complainant’s account in the summary sounds rather uncertain. It appears to reduce to an ex post feeling that she had been raped, as opposed to an account of witnessing a rape as it occurred. Thus, I think it can reasonably be said that, while convictions would inevitably lead to a prison sentence, on the limited summary I have seen, convictions of rape are far from inevitable. It follows that the incentive to avoid trial could not be as great as it might seem at first blush.
(d) Mr Abdelkhalek has been on bail for about two years without any suggestion that he has sought to leave the country — or that he has any special ability to do so — contrary to his pre‑existing bail conditions.
(e) He has ties to this jurisdiction (which include his family ties with his partner and their daughter, his business ties, and the fact that he has worked here for six years).
(f) He was prepared to provide an itinerary and details of his accommodation and those with whom he would be staying in Morocco (which is reflected in one of the conditions the judge imposed).
(g) He was prepared to execute a deed acknowledging that he would forfeit his work tools and vehicle should he fail to return (which is reflected in the forfeiture condition).
However, notwithstanding these matters mitigating the risk, I am of the firm view that, if allowed to travel to Morocco pursuant to the bail conditions (including the forfeiture condition) fixed by the judge, there would be an unacceptable risk that Mr Abdelkhalek would fail to return to Australia to answer his bail.
Putting aside the questions whether the judge was empowered to fix the forfeiture condition or whether it was valid or capable of being enforced, I accept that that condition — whether considered by itself or in combination with the other additional conditions the judge imposed — is capable of providing some mitigation of the relevant risk. While $70,000 might not seem like much to some, it is plain enough that it would be a lot of money to Mr Abdelkhalek. It is also significant that those tools are essential to his business.
However, the forfeiture condition involves a risk calculus personal to Mr Abdelkhalek. He might ask himself, “Would I prefer to stay in Morocco (with or without my partner and child), give up my work tools and vehicle, and not face trial or, thereby, the risk of imprisonment? Or would I prefer to return to Australia with my partner and child, keep my tools and vehicle, and face a trial at the conclusion of which I may be convicted of rape and sentenced to prison?” The context in which those questions must be considered is not so much when Mr Abdelkhalek is here but when, ex hypothesi, he is in the bosom of his family in Morocco and considering whether he should board a plane back to Australia. When considered in that way, I am compelled to the conclusion that there is an unacceptable risk that he would decide not to return.
What was required, instead of the forfeiture condition, was a substantial surety. While a substantial surety could not eliminate the risk of failing to return to Australia, only a condition of that kind could adequately mitigate that risk to a level short of an unacceptable risk. This is because, unlike the forfeiture condition, a condition requiring a temporary surety would require the surety (a) to undertake to do all that is reasonable to ensure that the accused answers bail and (b) to risk the loss of his or her property — not the accused’s property — should the surety fail in that endeavour.
In those circumstances, it becomes unnecessary to determine whether the judge was empowered under s 5AAA to fix the forfeiture condition, or whether that condition was valid and enforceable.
Accordingly, the appeal must be allowed and the orders of the judge must be set aside. Returning to the terms of s 18A(6) of the Bail Act, instead of the forfeiture condition, the “different order that should have been made” was that there be a substantial surety in place before Mr Abdelkhalek’s other conditions of bail might be suspended while he travelled to and from Morocco.
Fresh hearing
Other relevant provisions
Turning then to the fresh hearing required by s 18A(6), I note that s 5AAA(1)(d) provides that a court, in considering the release of an accused on bail, must impose any condition that, in the opinion of the court, will reduce the likelihood that the accused may fail to surrender into custody in accordance with the conditions of bail.
Section 5AAA(2) provides that, if a court imposes one or more conditions, each condition and the number of conditions (a) must be no more onerous than is required to reduce the likelihood that the accused may (in this case) fail to surrender into custody and (b) must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused.
Section 5AAA(4) provides that a court may impose all or any of a number of conditions listed in the provision about the conduct of the accused, including “any other condition that the [court] considers appropriate to impose in relation to the conduct of the accused”.
Further, I note that, relevantly, s 9 of the Bail Act provides as follows:
…
(2) Where an accused is required to provide a surety or sureties regard may be had in considering the suitability of a proposed surety to the following in addition to any other relevant matters—
(a) the surety’s financial resources;
(b) his character and any previous convictions; and
(c) his proximity (whether in point of kinship place of residence or otherwise) to the person for whom he is to be surety.
(3) Before admitting an accused to bail with a surety or sureties the bail decision maker or other person authorized by section 27 shall—
(a) be satisfied of the sufficiency of the means of the surety or sureties and for this purpose may require the surety or sureties (as the case may be) to—
(i) lodge in cash the amount of the bail; or
(ii) lodge a document that is evidence of the ownership and the value of property or any other asset to the amount of the bail; and
…
Consideration
Having seen and heard Ms Rus give evidence in the flesh, I am satisfied that I should accept her evidence. She struck me as a straightforward, honest and reliable witness. In particular, among other things, I accept that:
(a)Ms Rus believes that, if allowed to travel to Morocco to farewell his mother and introduce his daughter to her, Mr Abdelkhalek will return to Australia in accordance with the proposed conditions of bail;
(b)she understands her obligations as a surety, including that she must do all she reasonably can to ensure that Mr Abdelkhalek returns to Australia and answers his bail; and
(c)she understands that, should she fail in those obligations and should he fail to answer his bail, she is at risk of forfeiting the value of the interest in her apartment she is required to give as security.
In view of Ms Rus’s evidence and all of the other relevant circumstances, I am satisfied that it is appropriate to grant bail on conditions similar to those that were in place before Mr Abdelkhalek’s application to vary his bail in the County Court, and to effect a temporary suspension of those conditions that would otherwise prevent him from travelling to Morocco, conditional on Ms Rus acting as a surety in a substantial amount.
Of course, I recognise that, as Mr Abdelkhalek’s de facto partner and the mother of his daughter, Ms Rus may well be put in a difficult position were he, once in Morocco, to have second thoughts about returning to Australia. However, I accept that she understands her duties to ensure he returns, and I accept that the risk of losing the security she will be required to pledge will provide a powerful incentive for her to stick to her task in that regard. Moreover, it is also because of their relationship and because of her plans to travel with him and their daughter to Morocco that, at the end of the two weeks there, she will be in the prime position to ensure, as best she reasonably can, that he boards the plane and returns to Australia in accordance with the proposed conditions of bail.
Thus, for these reasons, notwithstanding that the burden of proving an unacceptable risk of flight rests with the prosecution, I am satisfied that, if those conditions are put in place, there will not be an unacceptable risk of Mr Abdelkhalek failing to return from Morocco in answer to his bail.
I am also satisfied that the proposed conditions are no more onerous than is required to reduce the likelihood that Mr Abdelkhalek may fail to surrender into custody, and that those conditions are reasonable, having regard to his circumstances and the nature of the alleged offences.
As to the amount of the surety, I accept Mr Sprague’s submission that it should be $100,000. I do not accept Ms Brown’s submission that $20,000 would be sufficient. While I note that, in the court below, a surety of $20,000 was mooted by counsel for the Director as being sufficient, I do not accept that that would represent a sufficient potential imposition on Ms Rus to dissuade her from giving in to any possible change of heart by Mr Abdelkhalek, especially once he was in the bosom of his family in Morocco. In my judgment, $100,000, which represents about two‑thirds of Ms Rus’s equity in her apartment, creates a sufficient incentive — and no more than is necessary — for her to ensure that he returns to Australia in answer to his bail. It also creates an incentive for Mr Abdelkhalek not to risk the loss of a substantial amount of property belonging to his partner, who is also the mother of his child.
Orders
Having heard submissions on their precise terms, I shall make the following orders:
1) The appeal is allowed.
2) The orders of the County Court on 28 February 2024 varying the bail conditions of Mr Abdelkhalek are set aside.
3) Mr Abdelkhalek is admitted to bail on his own undertaking and on the following conditions:
(a) Mr Abdelkhalek is to report to [redacted] Police Station each Monday between the hours of 9:00 a.m. and 9:00 p.m.;
(b) he is to reside at [redacted];
(c) he is not to contact, directly or indirectly, any witness for the prosecution except the informant;
(d) he is to notify the informant within 24 hours of any proposed change of address;
(e) he is to surrender all valid passports and any other valid travel documents held prior to release and he is not to apply for any other; and
(f) he is not to attend any points of international departure.
4) Upon an undertaking by Dana Rus, on or before 8 March 2024, as a surety, with security in the amount of $100,000:
(a) Mr Abdelkhalek’s reporting condition (in Order 3(a)) is suspended between 18 March and 1 April 2024;
(b) his residential condition (in Order 3(b)) is suspended between 18 March and 1 April 2024;
(c) his prohibition on attending points of international departure (in Order 3(f)) is suspended between 18 March and 1 April 2024;
(d) he is permitted to travel overseas to Morocco between 18 March and 1 April 2024; and
(e) he may collect his passport from Victoria Police.
5) At least 24 hours before his departure to Morocco, Mr Abdelkhalek is to provide an itinerary, details of accommodation in Morocco, and contact details of the person with whom he will be staying, to the informant or her nominee.
6) Upon his return to Australia, Mr Abdelkhalek is to surrender his passport to the County Court Registry by 3 April 2024.
7) Upon compliance with Order 6 by Mr Abdelkhalek, Order 4 expires and he is subject again to the conditions of bail in Order 3(a) to (f) inclusive.
8) Mr Abdelkhalek is to appear in the County Court of Victoria at Melbourne for a final directions hearing at 9:30 a.m. on 20 May 2024, and thereafter as directed by that court.
At the request of the parties, and for the avoidance of doubt, I also made a notation under the “Other matters” section of the orders to the effect that, upon Mr Abdelkhalek’s return to Australia and the surrender of his passport to the County Court Registry in accordance with Order 6, Ms Rus will be released from her undertaking as surety in Order 4.
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