R v Al-Harazi (No 4) - [2016] ACTSC 298

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Al-Harazi (No 4)
Citation:	[2016] ACTSC 298
Hearing Date:	29 September 2016
DecisionDate:	4 October 2016
Before:	Refshauge ACJ
Decision:	The application be dismissed
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – special or exceptional circumstances – trial for alleged offence of murder – trial delay – delay as a special or exceptional circumstance – whether delay of two years between alleged offence and trial is inordinate – delay not shown to amount to special or exceptional circumstances – delay not unreasonable – psychiatric or medical condition or treatment may be a considered factor for special or exceptional circumstances – a combination of circumstances may lead to special or exceptional circumstances – criteria for granting bail - interests and wishes of children highly relevant – bail not granted – s 9C of the Bail Act 1992 (ACT) – s 22 of the Bail Act 1992 (ACT)
Legislation Cited:	Bail Act 1992 (ACT) ss 5, 9C, 22, 23A, 57AA Corrections Management Act 2007 (ACT) s 53 Crimes Act 1900 (ACT) s 315 Migration Act 1958 (Cth) s 155
Cases Cited:	Cooper v Corvisy [2010] ACTSC 165 DeShaney v Winnebago County Department of Social Services 489 US 189 (1989) Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 Estelle v Gamble 429 US 97 (1976) In the matter of an application for bail by Allen [2009] ACTSC 64 In the matter of an application for bail by Connors [2015] ACTSC 407 In the matter of an application by Costa [2013] ACTSC 15 In the matter of a bail application by Culibik [2010] ACTSC 112 In the matter of an application for bail by Kien [2010] ACTSC 113 In the matter of an application for bail by Matthew Massey [2010] ACTSC 163 In the matter of an application for bail by Massey [2008] ACTSC 145 In the matter of application for bail by Massey (No 2) [2009] ACTSC 70 In the matter of an application for bail by SA [2010] ACTSC 114 In the matter of an application for bail by Sebbens [2014] ACTSC 281 Re an application for bail by Anderson [2011] ACTSC 121 Re Elphick [2014] ACTSC 372 R v Al-Harazi (No 3) [2016] ACTSC 290 R v Goodwin (2009) 233 FLR 473 R v Rubino [2012] ACTSC 157 R v Walmsley [2011] ACTSC 173 Saka v The Queen [2001] WASC 92
Parties:	The Queen (Crown) Maged Mohammed Ahmed Al-Harazi (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr K Archer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 207 of 2015

REFSHAUGE ACJ:

Having been charged for the murder of his wife, Sabah Al-Mdwali, the applicant, Maged Mohammed Ahmed Al-Harazi, was to stand trial for that offence beginning on 7 September 2016. The trial has now been adjourned, and any trial or special hearing will not reasonably be able to commence until sometime in early 2017, hopefully no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTSC 298
Decision Date: 4 October 2016

CaseChat Overview and Summary

The case involved the application for bail by the defendant, Al-Harazi, who was awaiting trial for the alleged offence of murder. The case was heard in the Supreme Court of the Australian Capital Territory. The defendant sought bail, arguing that the delay in the trial constituted special or exceptional circumstances warranting bail. The court was required to determine whether the two-year delay between the alleged offence and the trial amounted to special or exceptional circumstances, and whether any other factors supported the granting of bail.

The court considered whether the delay was inordinate and whether it constituted special or exceptional circumstances. The court found that the delay was not unreasonable and did not, on its own, amount to special or exceptional circumstances. However, the court acknowledged that psychiatric or medical conditions or treatment may be considered in determining special or exceptional circumstances, and that a combination of circumstances may also lead to such a conclusion. The court further considered the interests and wishes of the children as a highly relevant factor in the decision-making process.

After considering all the circumstances, the court found that the application for bail did not meet the criteria for granting bail. The delay, while significant, was not unreasonable, and there were no other special or exceptional circumstances present that warranted bail. The court concluded that the interests of justice did not require the defendant to be granted bail. Consequently, the application for bail was dismissed.

Orders

Orders of the court

The application be dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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