Director of Public Prosecutions v Ayoub (No 4)
[2022] ACTSC 255
•15 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Ayoub (No 4) |
Citation: | [2022] ACTSC 255 |
Hearing Date: | 15 September 2022 |
DecisionDate: | 15 September 2022 |
Before: | McCallum CJ |
Decision: | Bail is refused. |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Bail — Likelihood of the accused appearing for trial if bail granted — Where accused is remanded in custody following failure to appear — Where previous solicitors had difficulty contacting accused to obtain instructions |
Legislation Cited: | Bail Act 1992 (ACT), s 9B, s 9C, s 20C |
Parties: | Director of Public Prosecutions Joseph Ayoub ( Accused) |
Representation: | Counsel L Ethridge (Director of Public Prosecutions) J Purnell ( Accused) |
| Solicitors ACT Director of Public Prosecutions Tu’ulakitau McGuire Legal ( Accused) | |
File Numbers: | SCC 57 of 2021 SCC 58 of 2021 |
McCALLUM CJ:
Before the Court is an application for bail by Joseph Ayoub, who is to be arraigned on an indictment alleging the following offences: inflicting actual bodily harm with intent to engage in sexual intercourse and, in the alternative, intentionally and unlawfully choking, suffocating or strangling; four counts of sexual intercourse without consent; and common assault. There is no presumption either for or against the grant of bail for those offences: ss 9B and 9C of the Bail Act 1992 (ACT).
The applicant has been in custody since his arrest on a Bench warrant issued following his failure to appear at the criminal call-over on 24 March earlier this year. On that date, Mr Wassef, then the applicant’s legal representative, sought leave to withdraw, informing the Court that he no longer had instructions.
Mr Purnell SC, who appears for the applicant today, explained that that communication to the Court ought to have been understood as the common euphemism for the fact that Mr Wassef was not in receipt of the funds he had sought from the applicant in order to appear at the trial. That particular difficulty has been resolved, as I understand it, by a grant of legal aid and the applicant is again legally represented now. In the meantime, however, the Bench warrant having been executed, the applicant has been in custody since 29 April 2022.
There is before the Court a chronology of the proceedings which demonstrates an unhappy history of participation in the proceedings by the applicant, suggesting that he poses a real risk of not appearing for the trial if granted bail now. He resides in New South Wales. His principal reasons for seeking bail at this stage are threefold and are appropriately established in an affidavit affirmed by Mr O'Keefe, his current solicitor. In short, the applicant seeks bail because he needs to be at liberty to prepare his case, in order to care for his ailing mother, and in order to obtain proper medical treatment for himself.
As to the need to be at liberty to prepare his case, I have some considerable sympathy. Plainly, it will be important for Mr Purnell and Mr O'Keefe to spend time with the applicant before the trial, which is currently listed for 4 October 2022.
That said, the history of difficulties experienced by previous solicitors in communicating with the applicant, combined with the material before the Court tendered by the prosecution as to visit arrangements at the Alexander Maconochie Centre, prompt me to think that there is every likelihood that the applicant will be equally accessible to his legal advisors whether he is granted bail or not. I do not say that in any cynical way, but only to emphasise that his current circumstances are such that he seems to be more likely to be organised and available for his legal advisors if he remains in custody.
As to the need to care for his ailing mother, again, I have some sympathy, but she is not without other support. The applicant was previously living with her as her carer, so the evidence contends. Plainly, however, he was also spending time in other places; for example, in Canberra during the time of the alleged commission of the offences for which he now stands trial. While the offences remain to be proved (or not), his presence in Canberra and absence from the home of his mother for that time are not in doubt. The applicant has a sister and a brother who are able, to some extent, to care for the mother.
As to the need to access proper medical treatment for himself, there is often conflicting evidence about that kind of issue. I am nonetheless satisfied that it is appropriate for the Court to proceed on the premise that medical treatment is available in the Alexander Maconochie Centre. I am not persuaded that that on its own is a matter that warrants a grant of bail at this stage.
Again, when one compares the likely circumstances of the applicant if granted bail and if he remains in custody, it must be noted that there is an allegation as part of the Director’s case that, whilst at liberty in the community, apart from seeking appropriate medical treatment, the applicant has in the past used prohibited substances. That may have contributed to some of his chaotic personal history.
The Court is told that the applicant has a job offer, but that is with his brother and would only be applicable for the short period between now and the trial. As to where the applicant would stay during the trial, the Court is told that the same brother, the potential employer, would travel to Canberra with the applicant and that they would stay in a hotel for the period of the trial.
Separately, the Court has been told that the applicant's sister has agreed to go surety in the amount of $10,000, and that is some comfort. But, on balance, having assessed all of the material before me, I am of the view that the applicant poses an unacceptable risk of failure to appear if granted bail and that bail should be refused.
In saying so, I note that this determination triggers the application of s 20C of the Bail Act 1992, according to which the Court would only consider a further application for bail if there were a change of circumstances or fresh evidence or information of relevance to the granting of bail that was unavailable at the last application. I record that I have indicated to Mr Purnell that, in the event that he is unable to obtain appropriate access to his client at the Alexander Maconochie Centre in the period leading up to the trial, I would hear any further bail application and would regard evidence about those matters as coming within s 20C(2) so as to empower the Court to consider a further application at that stage, should the need arise. In the meantime, for the reasons I have given, bail is refused.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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