Eissa v The Queen
[2003] WASC 92
EISSA -v- THE QUEEN [2003] WASC 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 92 | |
| Case No: | MCS:23/2003 | 9 MAY 2003 | |
| Coram: | MCKECHNIE J | 22/05/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMMED KAHLIL EISSA THE QUEEN |
Catchwords: | Criminal law and procedure Grant of bail Risk of flight No new principles Turns on own facts |
Legislation: | Bail Act 1982 (WA) |
Case References: | Clark II [2001] ACTSC 39; (2001) 118 A Crim R 585 Re Kurt (1999) 107 A Crim R 424 WCVB v R (1989) 1 WAR 279 Bellissimo v The Queen (1996) 84 A Crim R 465 Christie v The Queen [2002] WASC 256 Gillis v Gawned & Anor (1992) 8 WAR 211 Jemielita v The Queen (1994) 12 WAR 362 KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988 Lim v Gregson [1989] WAR 1 Pinkstone v The Queen [2000] WASC 321 R v Shrestha (1991) 173 CLR 48 Saka v The Queen [2001] WASC 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : EISSA -v- THE QUEEN [2003] WASC 92 CORAM : MCKECHNIE J HEARD : 9 MAY 2003 DELIVERED : 22 MAY 2003 FILE NO/S : MCS 23 of 2003 BETWEEN : MOHAMMED KAHLIL EISSA
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Grant of bail - Risk of flight - No new principles - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr D Grace QC
Respondent : Ms J Martin
Solicitors:
Applicant : Shane Michael Brennan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Clark II [2001] ACTSC 39; (2001) 118 A Crim R 585
Re Kurt (1999) 107 A Crim R 424
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Bellissimo v The Queen (1996) 84 A Crim R 465
Christie v The Queen [2002] WASC 256
Gillis v Gawned & Anor (1992) 8 WAR 211
Jemielita v The Queen (1994) 12 WAR 362
KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988
Lim v Gregson [1989] WAR 1
Pinkstone v The Queen [2000] WASC 321
R v Shrestha (1991) 173 CLR 48
Saka v The Queen [2001] WASC 92
(Page 3)
- MCKECHNIE J:
Introduction
1 This is an application for bail under the Bail Act s 14, bail having been refused in the Court of Petty Sessions on 7 April 2003.
2 At the time of hearing of this application, the applicant faced one charge of possessing a prohibited drug with intent to sell or supply contrary to s 61A of the Misuse of Drugs Act 1981 (WA). He also faced one charge of unlawful possession of a firearm, the charge being aggravated by reason of the fact that the firearm was alleged to be a handgun.
3 I was told the applicant will be formally charged on 13 May 2003 with a charge of possession of amphetamines with intent to sell or supply, and conspiracy to supply amphetamines, and a further charge relating to the use of a firearm. I determine this application with these charges in mind. It is not necessary to go into the facts alleged in any great detail. On 12 March 2003, police executed a search warrant at the applicant's residence in Como, finding 390.91 grams of methylamphetamine. The applicant was asleep when investigators entered his bedroom. They located a 9 mm Smith and Wesson 5906 pistol under his pillow. The pistol contained a loaded magazine. No round was chambered. The amphetamine was in various containers and the contents of the containers were analysed, showing quantities of methylamphetamine ranging from less than one per cent through to 28 per cent.
4 The proposed charges relate to conversations between the applicant and another person "Z", recorded by a listening device.
5 The further charges also relate to the discovery of more amphetamine and another firearm at the applicant's residence.
Evidence
6 At the hearing I took evidence from a detective familiar with the matter, and from a constable, fluent in Arabic, who has provided translation of some material obtained by way of a surveillance device. Each was cross-examined.
7 In addition, I have had regard to an affidavit by the applicant's solicitor, certificates of analysis and some photographs. I have also noted
(Page 4)
- the content of a report from the Department of Immigration and Multicultural and Indigenous Affairs.
The applicant's background
8 The applicant was born in Palestine on 21 January 1977 and is therefore 26 years old.
9 He arrived in Australia unlawfully and without documentation on 17 August 2000 and was detained until 15 February 2001 when he was granted a temporary protection visa on the basis of claims of fear of persecution by Jordanian authorities for being believed to be associated with Hamas. His temporary visa will expire on 15 February 2004.
10 At the time of arrest the applicant was living at an address in Como. The premises were rented in his own name and that of another person. It appears that the applicant was the only occupant of the premises.
11 The applicant has supplied a letter in which he is offered a job as a labourer notwithstanding the charges against him.
The seriousness of the charges
12 The State contends that the charges are so serious that the applicant must show exceptional grounds to justify the grant of bail: cf WCVB v The Queen (1989) 1 WAR 279.
13 There is no question that the charges are serious and if convicted the applicant will face a lengthy period of imprisonment.
14 I do not consider, however, that the charges are so serious as to impose upon the applicant the burden of exceptional circumstances to justify the grant of bail.
15 The evidence by the police officer is that two other persons have been charged with the offence of conspiracy to supply a prohibited drug. Each of those persons has been granted bail without objection by police.
16 Consistently, therefore, the applicant's proposed charge cannot be regarded as exceptionally serious.
17 The charges which he presently faces are serious. They involve a significant quantity of amphetamines. For the purposes of considering a grant of bail only, I evaluate the Crown's case as very strong. This does
(Page 5)
- not, however, automatically translate into making the charges exceptionally serious. Many people charged with similar offences are granted bail. I do not impose an extra requirement of exceptionality on the applicant.
Whether the applicant will fail to appear in court in accordance with his bail undertaking
18 To my mind, this is the sole issue in this application. The issue arises under the Bail Act Sch 1 Pt C 1.(a)(i).
19 The following factors are relevant.
20 The applicant is facing a very strong Crown case and if convicted a long period of imprisonment. The applicant has no ties to Australia. He arrived illegally. If convicted, he will not be eligible for the grant of a permanent visa: Migration Act 1958 (Cth) reg 866.22A.
21 Furthermore, his protection visa may be set aside: Migration Act s 91U.
22 The mere fact that a person is a foreign national should not prevent the grant of bail. In Re Kurt (1999) 107 A Crim R 424, Higgins J said:
"Persons with overseas citizenship charged with serious offences are not by reason thereof, without other significant adverse indications, to be assumed to be flight risks."
23 In that case, Higgins J concluded that it had not been demonstrated that the risk of flight rose beyond suspicion or speculation.
24 In Clark II [2001] ACTSC 39; (2001) 118 A Crim R 585, the Full Court of the ACT further considered the question of flight, noting that the Crown had the onus of demonstrating that the likelihood of flight raised by the seriousness of the charges faced by the applicant, his lack of ties to Australia, and his obvious record of deceit and untrustworthiness, outweighed the clear need for him to be at liberty albeit on restrictive conditions.
25 Among the factors leading that Court to grant bail included the "clear need for the applicant to be at liberty to properly instruct his legal advisers" and the fact that it was by no means certain that the sentences actually imposed would require the applicant to serve any further period in custody. The Court therefore granted bail. A postscript to the report
(Page 6)
- notes that Mr Clark failed to appear in court and his whereabouts are not presently known.
Conclusion on the aspect of flight
26 In my judgment there is a real, not perceived, risk of flight. The surveillance device record of the applicant's conversations, in the remand centre with "Z", indicate that the applicant may have access to significant amounts of money. His mode of entry into Australia indicates that he is knowledgeable about travelling internationally without papers. The likelihood of conviction is another factor. If convicted, there is little or no prospect that the applicant would be permitted to remain in Australia, a country in which such ties as he has have been acquired only since the beginning of 2001.
27 The applicant proposes strict conditions of bail, including twice daily reporting to police, morning and night, and residential and any other conditions that the Court may regard as appropriate. Bail cannot be refused unless I have considered whether there are any conditions which would sufficiently remove the possibility of flight: Bail Act Sch 1 Pt C 1.(e). In my opinion, even strict reporting conditions cannot sufficiently remove the prospect of illegal flight having regard to the possibility of access to money from "Z" and the applicant's knowledge of unlawful travel as previously referred to.
Conclusion
28 I have borne in mind the question of delay and the prejudice to the applicant which delay entails. The next committal mention date is 18 June 2003. The new charges may slow down the process. I work on the basis that a trial is unlikely before the end of this year and perhaps into next year. Notwithstanding the delay, I have reached the conclusion that the interests of justice require the applicant to remain in custody because of my conclusion on the risk of flight.
29 The applicant through counsel, makes a valid point. With the abolition of preliminary hearings there is no opportunity to test the strength of the prosecution case so far as may be relevant to the issue of bail.
30 With this in mind, I suggested that it might be better to adjourn the proceedings sine die rather than simply dismiss them leaving the applicant the burden of showing changed circumstances.
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31 I have further considered this aspect. The case is at an early stage and the prosecution brief has not been completed or served. The material I have heard is indicative of the strength of the Crown case rather than dispositive of the issue.
32 The delivery of a prosecution brief disclosing a case weaker than indicated, would constitute changed circumstances, allowing a further application for bail. If I simply adjourn the application, the applicant's rights to appeal this decision may be compromised. In the circumstances I dismiss the application.
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