In the Matter Of An Application For Bail By Ammar Dhaimat(No 2)

[2014] ACTSC 60

HUMAN RIGHTS ACT

IN THE MATTER OF AN APPLICATION FOR BAIL BY AMMAR DHAIMAT
(NO 2)
[2014] ACTSC 60 (11 February 2014)

CRIMINAL LAW – JURSIDICTION, PRACTICE AND PROCEDURE – Bail – Application to vary bail conditions – Release of money held by the Court into solicitor’s trust account and an undertaking of security given in its place – Application for variation allowed

Bail Act 1992 (ACT), ss 25(1)(b)(ii), 32
Human Rights Act 2004 (ACT), s 22(2)(d)
Legal Aid Act 1977 (ACT), s 31
Legal Profession Act 2006 (ACT), ss 290, 291

In the matter of an Application for Bail by Dhaimat (No 1) [2014] ACTSC 42

EX TEMPORE JUDGMENT

No. SCC 137 of 2013

Judge:             Refshauge J
Supreme Court of the ACT

Date:              11 February 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 137 of 2013
AUSTRALIAN CAPITAL TERRITORY )          

THE QUEEN

V

AMMAR DHAIMAT

ORDER

Judge:  Refshauge J
Date:  11 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Upon Dr Ammar Dhaimat lodging with the Court a deed containing:

(a) an irrevocable authority directed to the registrar to pay the $10,000 lodged as a cash deposit under s 25(1)(b)(i) of the Bail Act 1992 (ACT) to Frank Wilson Trust Account; and

(b)      an irrevocable authority directed to Frank Wilson Solicitor that, upon deposit of the $10,000 referred to in (a) into Frank Wilson’s Trust Account,

Mr Wilson is to hold the funds on trust on the following terms:

(1)      that it be forfeited and paid to the Territory in the event that Dr Dhaimat does not attend to take his trial;  but

(2) that in the event that Dr Dhaimat does attend and take his trial, the monies be paid to Frank Wilson for any legal fees and disbursements properly due to Frank Wilson by Dr Dhaimat on presentation to Dr Dhaimat of the bill in accordance with ss 290 and 291 of the Legal Profession Act 2006 (ACT), but not be paid until thirty days after the presentation of the bill;

and further

(3)      Dr Dhaimat’s bail conditions be varied to replace the condition that he deposits $10,000 cash with a condition that he lodge acceptable security with the Registrar, that acceptable security being a deed containing the terms of this order and which is otherwise in a form acceptable to the Registrar.

1. Dr Ammar Dhaimat, a registered medical practitioner, has been charged with two counts of committing an act of indecency on a patient without her consent and being reckless as to whether or not she was consenting.  He has been on bail for these offences since 1 May 2013.  Amongst the conditions of his bail were conditions that he and another person each deposit sums of $10,000 cash as security for his bail.  He has made application to vary the bail so that one of the amounts of $10,000 may be refunded.  This was sought in order to provide him with legal costs to provide for representation.  He claimed in support of the application that he had no funds with which to pay for his lawyer, Mr Frank Wilson, for his trial, which has been listed to commence on 24 February 2014.

1. I have already made some comments about the state of his finances in an earlier decision, In the matter of an application for bail by Dhaimat (No 1) [2014] ACTSC 42 (Dhaimat (No 1)).  That application was heard at the same time with an application by the Crown to have his bail revoked.  In Dhaimat (No 1), I refused that application.  In relation to the application to vary bail, however, I said at [52]

It seems to me that if Dr Dhaimat attends to take his trial, the security bond amount he has lodged with the court will be available to him, as there will be no basis for forfeiture.  It can then be applied to his legal costs.

1. The risk for his lawyer will be that the money will be returned to Dr Dhaimat and he will not pass it on to them.  That may, of course, be resolved by the giving by Dr Dhaimat of an irrevocable authority supported by a deed or by consideration that the money be paid to Mr Wilson’s trust account.  I would do what I could to ensure that the Court comply with such an authority.

1. I had concerns about the power of the Court to give effect to directions about the payment of the security that has been deposited other than to comply with an irrevocable authority. I also accept that the security is primarily an element of the bail and should ordinarily remain in Court. Accordingly, I proposed to defer further consideration of this issue after the Legal Aid Review Committee has met, noting that the Legal Aid Commission may itself, under s 31 of the Legal Aid Act 1977 (ACT) require a payment of a contribution, which could come from the security for bail.

1. I was informed today that the Legal Aid Review Committee met and accepted that the only money that was available to Dr Dhaimat was the $10,000.  However, it accepted that these was funds that were available to him and, on the basis of that, the decision to decline to provide him with legal aid was confirmed.  Once the $10,000 is exhausted, it was made clear that he could make further application for Legal Aid.  Accordingly, as at today, unless some step is taken to resolve the impasse created by the requirement for his solicitors to have the money in their trust account before acting for him and the unavailability of Legal Aid, it seems likely that Dr Dhaimat will be unrepresented.

1. The prosecution is concerned that should the $10,000 be taken out of the Court, there is a risk of flight.  I evaluated the risk of flight in Dhaimat (No 1) and determined that it was not such that bail should be revoked. Nevertheless, I am concerned that, if the $10,000 ceases to be part of the security for bail, then there is an increased risk of flight. On the other hand, it is in the interests of justice that Dr Dhaimat be represented. That is partly statutory: see s 22(2)(d) of the Human Rights Act 2004 (ACT). It is also obviously in the interest of Dr Dhaimat but, in my view, it is certainly in the interests of the Court and it is in the interest of the Crown that a proper and fair trial of serious matters such as this be conducted where the accused is legally represented.

1. Two proposals have been put to me.  One is that the $10,000, being the amount deposited by Dr Dhaimat, be paid to Mr Wilson.  The other is that the $10,000 provided by Mr Hajj, who is an acceptable person and has deposited the other amount of 10,000, be paid to Mr Wilson instead.

1. It seems to me that the Court would have more control over the moneys paid by Dr Dhaimat were I able to construct an appropriate mechanism where the relevant interests that I have identified, namely the interests of Dr Dhaimat, the interests of the Court and the prosecution in the proper conduct of the trial and the interests of the community in ensuring that Dr Dhaimat attends to take his trial, then it would be appropriate that the $10,000 paid by Dr Dhaimat be the one concerned.

1. There is also a further difficulty that Dr Dhaimat appears to have some debts.  I do not have details as to the debts, but it is clear that he has been assisted by an organisation that may be involved with debt consolidation, a compromise with creditors or perhaps even bankruptcy.  Whether the rights under a bankruptcy may affect the funds in Court or the funds in Mr Wilson’s trust account, if that is what should happen, I am unable to determine at this moment.  It seems to me unlikely, however, that there will be much difference between the two.

1. I have carefully considered the position and I am prepared to proceed in a way that, in my view, protects the interests of the community and the Court but also protects the interests of Dr Dhaimat and others involved and concerned about the need for a fair trial. I consider that a suitable deed as an irrevocable authority may be able to be constructed with specific terms that will allow the money to be paid to Mr Wilson’s trust account but that it will be forfeited should Dr Dhaimat fail to take his bail. That seems, to me, to be an acceptable security under s 25(1)(b)(ii) of the Bail Act 1992 (ACT).

1. In any event, I am permitted and will, under s 32 of the Bail Act, determine that such a deed is an acceptable security.  Accordingly, I propose to make orders permitting the payment of the $10,000 deposited with the court by Dr Dhaimat to be paid to Mr Wilson’s trust account in terms on which I shall seek the submissions of counsel.

1. Accordingly, I propose an order along the following lines, namely that Dr Ammar Dhaimat lodging with the Court a deed containing:

(a) an irrevocable authority directed to the registrar to pay the $10,000 lodged as a cash deposit under section 25(1)(b)(i) of the Bail Act 1992 (ACT) to Frank Wilson Trust Account; and

(b)      an irrevocable authority directed to Frank Wilson Solicitor that, upon deposit of the $10,000 referred to in (a) into Frank Wilson’s Trust Account

Mr Wilson is to hold the funds on trust on the following terms:

(1)      that it be forfeited and paid to the Territory in the event that Dr Dhaimat does not attend to take his trial;  but

(2) that in the event that Dr Dhaimat does attend and take his trial, the monies be paid to Frank Wilson for any legal fees and disbursements properly due to Frank Wilson by Dr Dhaimat on presentation to Dr Dhaimat of the bill in accordance with ss 290 and 291 of the Legal Profession Act 2006 (ACT), but not be paid until thirty days after the presentation of the bill;

and further

(3)      Dr Dhaimat’s bail conditions be varied to replace the condition that he deposits $10,000 cash with a condition that he lodge acceptable security with the Registrar, that acceptable security being a deed containing the terms of this order and which is otherwise in a form acceptable to the Registrar.

1. I shall hear the parties as to the terms of the order.

   I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 12 May 2014

Counsel for the Crown:  Ms K James
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Ms T Warwick
Solicitor for the defendant:  Wilson Phillips Lawyers

Dates of hearing:  23 December 2013, 6, 14, 16, 21, 29 January 2014

Date of judgment:  11 February 2014