R v Al-Harazi (No 4)
[2016] ACTSC 298
•4 October 2016
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 later than March. The reasons for the adjournment are that a question has been reserved under s 315 of the Crimes Act 1900 (ACT), as to Mr Al-Harazi's fitness to plead. See R v Al-Harazi (No 3) [2016] ACTSC 290.
Mr Al-Harazi has now applied for bail pending the trial. The application was opposed by the Crown.
Background
Ms Al-Mdwali died on 17 March 2015, apparently from multiple stab wounds.
Mr Al-Harazi was arrested later that day and has remained in custody since then. Thus, he will have been in custody for about two years before either his trial or special hearing can commence.
Mr Al-Harazi was born in Yemen. It is stated in the Case Statement for the proceedings (see R v Goodwin (2009) 233 FLR 473 at 478-9; [26]-[35]), that he married his wife there in 2005. His wife and her parents migrated to Australia in 2007. Mr Al-Harazi is said to have remained in Yemen initially, but after his wife returned to Yemen a short time after, they both moved to Australia together in 2008.
Mr Al-Harazi and Ms Al-Mdwali have three children – Akram, now aged nine years old, Mayasa, now aged seven years old and Kareem, now aged two years old.
In 2012, the family returned to Yemen to live close to where Mr Al-Harazi's family lived but, Mr Al-Harazi, it is said reluctantly, returned to Australia with his family in late 2013 where they have since remained.
On the night of his wife's death, Mr Al-Harazi afterwards drove with his children to Tuggeranong Police Station early in the morning of 17 March 2015. He had his passport in the glove box of the car. At the police station, Mr Al-Harazi, with Akram translating for him, told police, "My mother has been stabbed by my grandfather”.
Akram repeated that allegation a number of times, but more recently has told police that his father, Mr Al-Harazi, had told him that his mother had been killed by his grandfather and this was why he had said that, but he now believed that it was his father who killed her.
Detective Senior Constable Mills, the informant, who gave oral evidence, referred to two particular incidents. While this evidence was not challenged in the hearing, the fact that this was a bail application does not mean that it is therefore accepted by Mr Al-Harazi for all purposes, but I can accept it in this application.
The first incident was said to have occurred on 28 January 2015, when Mr Al-Harazi and his wife fought over his reluctance to take his medication. His father-in-law and mother-in-law went to the family home as a result of a call from Ms Al-Mdwali. Mr
Al-Harazi abused his father-in-law and assaulted him. He then went into the kitchen, returning with a knife. Police arrived and Ms Al-Mdwali and the children left the family home with her parents.
The second incident was said to have occurred on 22 September 2014, when Mr
Al-Harazi took a video film of his house. At the time, Ms Al-Mdwali had moved out, although the elder children were still there. The video showed that the contents of the house had been smashed up. The two older children, Kareem being only four months old, were shown sitting on the lounge. Mr Al-Harazi asked them whether they were “for Australia or Yemen.” They replied by starting to say "Australia", but corrected themselves and, reluctantly and apparently without any enthusiasm, said, "Yemen". Mr Al-Harazi asked them again and again they said without conviction, "Yemen". He asked the third time and this time the two children said, with apparent enthusiasm, "Yemen". The video was sent to Ms Al-Mdwali. Police were told that Ms Al-Mdwali had said that Mr Al-Harazi had smashed the furniture and made the video to show that the family now had nothing in Australia and would have to return to Yemen.
While in custody, Mr Al-Harazi has made a number of phone calls to his brother and mother in Yemen. In the phone calls to his brother, he states his wish to return to Yemen. He explains, for example, that he "arrived in this country as a man of dignity, proud in [his] personality, [his] wife, [his] children and [his] integrity”, but that his "heart" had been hurt, it made him "desperate", "destroyed [his] reputation and [his] mental state". In another he says, "I don't like to live in Australia ... It's full of problems and stress ... I want to go back to Yemen." He says he will, "try to get a visa to Saudi Arabia or Dubai.”
He expressed antipathy to his father-in-law and mother-in-law, saying, "they fought me and hurt me and tortured me ... my father-in-law used to humiliate me in front of people ... once my father-in-law hit me in front of people, in front of my wife and children”. In the same telephone call, he spoke of opening a corner shop in Yemen which is "better than all this suffering here, and being away from my homeland”.
He states his innocence of the charge a number of times and, unsurprisingly, expresses his upset at the separation from his children, whom he says he wants to bring up and start a new life "either going to Sydney to live with him or go back to Yemen".
In another call, he expresses concern that his father-in-law, whom he clearly dislikes, has committed serious crimes in Yemen, punishable by lengthy prison sentences, perhaps for conspiracy with police to "fix things up and even get themselves out of it", presumably meaning the killing of Ms Al-Mdwali, whose death, he says, her father caused.
In calls to his mother, he refers to wishing to return to Yemen. He expresses his deep feelings for his children and how he suffers being in custody and being separated from them; his "heart aches" for his children and he says he constantly thinks about them. He expresses his frustration at being in custody which he describes as "bleak, horrible, indeed suffering", saying, "I have had enough and can't tolerate this any longer." He says that, once released he should return to Yemen with his children. He says, "I never wanted this country right from the start. As you know, they forced me to come here."
Mr Al-Harazi had also sought to place the telephone contacts of some of the Crown witnesses on to his contact list at the Alexander Maconochie Centre, but those persons have refused to accept any calls from him.
The three children are presently living with their maternal grandparents.
[REDACTED]
The older children are presently attending school. They were, until April 2016, also receiving counselling [REDACTED]
This assistance has reduced their experiences of nightmares and helps to give them a sense of safety by building a secure attachment with their maternal family members.
Matters of Concern
A number of matters of concern about bail being granted to Mr Al-Harazi were expressed by police and other agencies. Detective Senior Constable Mills expressed concern about the possibility of Mr Al-Harazi absconding.
He said that he had made inquiries of officers of Australian Border Force, who had advised him that, while police had possession of Mr Al-Harazi’s passport, he may be able to obtain another one. There is neither an Embassy nor a Consulate for the Republic of Yemen in Australia. Mr Al-Harazi could, Detective Senior Constable Mills was advised, apply at an overseas consulate or through the relevant offices in Yemen and, if granted a passport, the Australian authorities would not be informed.
He accepted, however, that were Mr Al-Harazi to be granted bail, he would be placed on a watch list so that his name and photograph would be circulated to immigration officers at points of departure, requesting that he be prevented from departing this country were he to attempt to do so.
It also appeared that Mr Al-Harazi’s visa would be cancelled. I am not clear whether this would make him an illegal non-citizen. If so, that would render him liable for deportation but, of course, the ACT Director of Public Prosecutions could obtain, without apparent difficulty, a criminal justice stay visa under s 155 of the Migration Act 1958 (Cth).
The officers [REDACTED] had also expressed concern about the possibility of Mr Al-Harazi being granted bail because of interviews they had had with him.
In their interviews, when Mr Al-Harazi had been told of [REDACTED] , he stated that, when released, he would take the children back to Yemen "as it is the best place for them to reside", [REDACTED] .
Mr Al-Harazi knows where the children are presently residing, and [REDACTED] are concerned that in the community, Mr Al-Harazi could jeopardise the present [REDACTED] arrangement.
Victim's Concern
Section 23A of the Bail Act 1992 (ACT) requires the prosecution to tell the Court of any concerns of which the prosecution is aware that have been expressed by a victim.
A victim is defined in the Dictionary to the Bail Act in a way that would include the children of Ms Al-Mdwali and Mr Al-Harazi.
The children were said by Detective Senior Constable Mills to be feeling safe and secure in their present situation, but have expressed fears for their safety were Mr
Al-Harazi to be released from custody. He said that Mr Al-Harazi’s release would be likely to cause them "a lot of trauma". This is, in fact, based in part on the incidents to which I have referred above (at [10]-[11]).
Akram has also stated to his case manager at Victim Support ACT that he did know who had killed his mother but that "my father told us what to say”. He also said that he and his sister were sleeping in the same bed and that when his father came to put Kareem to bed with them, he had blood on his shirt.
Both Akram and Mayasa have expressed to officers [REDACTED] their views and wishes in clear terms. They do not wish to have any further contact with their father [REDACTED] .
An officer [REDACTED] indicated his opinion that, were Mr Al-Harazi to be released from custody, it is likely that the current stability of the children will be "severely impacted" which may "require further involvement in respect of their trauma". Further, [REDACTED] any contact by Mr Al-Harazi with his children as that is regarded as not being in their best interests.
Mental Health
I explained in R v Al-Harazi (No 3) at [3]-[6], that Mr Al-Harazi had been examined by a psychiatrist, Dr Abdulatif Burhan. He found Mr Al-Harazi to have a "chronic and recurrent mental illness".
He appears not to have a confirmed diagnosis, but believed that he had a Schizoaffective Disorder, although it was possible that he had Psychotic Depression or a Bipolar Affective Disorder. He considered that other diagnoses, that were "of interest in this case", were a Post-Traumatic Stress Disorder, a Dissociative Disorder, and a Substance Abuse Disorder.
In any event, he considered that Mr Al-Harazi was currently suffering from "persistent psychotic symptoms and mild depression."
It was submitted by Mr K Archer, counsel for Mr Al-Harazi, that he required treatment and that such treatment would be provided more effectively in the community.
It was highly desirable, he submitted, that a qualified clinician who spoke Arabic be available and, preferably, one who had some experiences and understanding of the Yemeni culture and circumstances.
Dr Burhan is so qualified but he practises in Wollongong. Mr Al-Harazi has an Arabic speaking General Practitioner in Canberra, Dr Jamal, with whom he appears to have a good relationship, but who is not a qualified psychiatrist.
Dr Burhan's opinion was as follows:
I am of the opinion that Mr Al-Harazi is a case of chronic and recurrent mental illness, mainly episodic in nature at the beginning, but in the last two years it appears that it has taken a chronic course with significant residual symptoms inter-episodically. These symptoms are still active now, and despite what some may consider as a distressing matter, being in gaol, however, the gaol is also containing him from being exposed to a variety of stressors and stimulation. It is possible that he even could deteriorate further outside of the gaol or a psychiatric unit due to the absence of the structure unless he is adequately treated.
The Law
Bail in this Territory is generally regulated almost exclusively by the Bail Act. Thus, s 57AA of this Act abolishes any inherent power in this Court to grant bail.
Under s 5 of the Bail Act, the Court may grant bail to an accused person, such as Mr Al-Harazi, in relation to any period when he is not required to attend Court. The Act then regulates that grant of bail.
In the first place, s 9C of the Bail Act provides that, where a person is charged with, inter alia, murder, as is Mr Al-Harazi, the Court may not grant him bail unless special or exceptional circumstances exist favouring the grant of bail.
If I find such circumstances, then I am required to have regard to the matters set out in s 22 of the Bail Act in making the decision to grant bail. That section relevantly provides:
22 Criteria for granting bail to adults
(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider –
(a) the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail –
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
...
(3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including –
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties; or
(c) the likely effect of a refusal of bail on the person’s family or dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.
Also, as mentioned above (at [28]), s 23A of the Bail Act requires the prosecutor to tell the Court of any concerns expressed by a victim. That section requires the Court to receive such information and to consider it in the context of s 22(1)(b) as set out above.
Special or Exceptional Circumstances
The first matter to be considered is the question of special or exceptional circumstances.
In this Territory, there is now a well-recognised understanding of what this means. In In the matter of an application for bail by Massey [2008] ACTSC 145 at [7]-[8], I said:
7.The term ‘special or exceptional circumstances’ has not been defined in the Bail Act. It is, however, a phrase commonly used in relation to bail. In DPP v Tang (1995) 83 A Crim R 593, Beach J said (at 596):
Exceptional' is a word commonly used in legislation. One definition of it in the New Shorter Oxford English Dictionary is: 'Of the nature of or forming an exception, unusual, out of the ordinary, special' (see vol 1, p 872). Webster's Dictionary contains the following definition: 'Relating to or forming an exception, out of the ordinary course, unusual, uncommon, extraordinary'. In my opinion, it does not matter which of those definitions one chooses to adopt. I consider it was the clear intention of the legislature that any person charged with an offence falling within the provisions of s 4(2)(aa) bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail'.
8.That is to say, the applicant has, in my view, to establish that there is some unusual or uncommon circumstances which justify the granting of bail and those circumstances must relate to the granting of bail. I will consider each matter in turn.
It may be accepted that when I said "which justified the granting of bail", I was explaining or paraphrasing the phrase in the legislation, such as in s 9C(2) of the Bail Act, that the special or exceptional circumstances which exist must be those "favouring the grant of bail". Perhaps my formulation put the matter too highly, but they must clearly favour the grant of bail, not, for example, simply relate to bail, a wide expression I did not use. See, for example, In the matter of an application for bail by Allen [2009] ACTSC 64 at [10].
I also said in In the matter of an application for bail by Massey at [28], a combination of circumstances, none of them in themselves special or exceptional alone, may in some cases amount to special or exceptional circumstances. This has been accepted in a number of decisions in this Court: In the matter of application for bail by Massey (No 2) [2009] ACTSC 70 at [51]; In the matter of an application by Costa [2013] ACTSC 15 at [12]; Re Elphick [2014] ACTSC 372 at [23]; In the matter of an application for bail by Connors [2015] ACTSC 407 at [38].
In this case, Mr Al-Harazi relied on two matters. The first was the delay in bringing Mr Al-Harazi to trial. The second was the asserted desirability of him receiving psychiatric treatment in the community, though this would also be relevant to a consideration of the factor mentioned at s 22(1)(c) of the Bail Act.
As to delay, there has also been some consideration of this issue in this jurisdiction. There is no doubt that, in an appropriate case, delay can be a special or exceptional circumstance: In the matter of an application for bail by Kien [2010] ACTSC 113 at [9]. That, however, is not when delay is merely the passage of time or the time taken to undertake the normal processes for dealing with a serious criminal charge. See In the matter of an application for bail by Allen at [39]. It must be an inordinate delay: In the matter of an application for bail by Costa at [45]-[47].
In addition, delay caused by the prosecution failing to progress the proceedings in a proper manner can be a special or exceptional circumstance: In the matter of an application for bail by Sebbens [2014] ACTSC 281 at [24]. Similarly, delay caused by the failure to provide adequate resources to the criminal justice system may amount to a special or exceptional circumstance: In the matter of an application for bail by Allen at [41].
Other such circumstances include where the period of detention in custody would exceed any period during which the applicant is likely to serve in custody if convicted: In the matter of an application for bail by Kien at [9]. In each of these cases, however, the delay must be more than the passage of time that would ordinarily be expected in the proper processing of the criminal proceedings.
Some indication of the relevant time may be gained from a consideration of some of the cases. In In the matter of an application for bail by Massey I said at [19]-[22]:
19.It is now clear that delay can constitute special or exceptional circumstances for the purposes of the bail application: Beljajev v DPP (1998) 101 A Crim R 362 at 368. The amount of delay that would justify such a finding is by no means precise.
20.For example in Tang at 596-7, a delay of six months between arrest and committal and six to eight months expected between committal and trial was held not to be an exceptional circumstance. On the other hand, cases of pre-trial custody of 18 months to 2 years have been held to amount to exceptional circumstances. See the cases collected by Kellam J in Mokbel v DPP (Vic) [No 2] (2002) 132 A Crim R 290 at
294-5.)
21.The complexity of the case is, however, a factor to be considered in determining the acceptability of the delay: Raad v DPP (2007) 175 A Crim R 240 at 242-3. The fact that there are, I am told, to be 100 witnesses in the case is also relevant both to the complexity and the time the court will take to hear the matter and therefore when court time can reasonably be available.
In that case, the prospect of Ms Massey remaining in custody, being between 28 July 2008 and a trial date in 2010, was held not to be inordinate.
In R v Rubino [2012] ACTSC 157, a delay of two years and two and a half months was held to be relevant but not inordinate. In In the matter of an application for bail by Costa at [41], [44]-[47], I considered that a delay between arrest and refusal of bail on 22 July 2012 and a trial in mid-2014, or possibly 2015 was, in the circumstances of that case not an inordinate delay. Similarly, in In the matter of an application for bail by Matthew Massey [2010] ACTSC 163 at [93], [95], [97], a delay of 28 months was held not to be inordinate. Finally, in In the matter of an application for bail by SA [2010] ACTSC 114, a delay of two and a half years was held not to be inordinate.
It is clear, however, that the particular circumstances of each case are relevant, but these decisions assist in assessing the appropriate range of consideration.
So far as Mr Al-Harazi’s mental health is concerned, that is a factor that may also be taken into account. Thus, in Re an application for bail by Anderson [2011] ACTSC 121 at [7]-[8], I accepted that a medical condition may be a factor that is relevant to the question of whether there are special or exceptional circumstances. That is, however, unlikely to be sufficient in itself, but combined with other circumstances may support a finding of special or exceptional circumstances.
That persons detained in custody often have mental impairment is common; it is hardly special or exceptional. See, for example, Dan Howard and Bruce Westmore, Crime and Mental Health Law in New South Wales (LexisNexis Butterworths, 2nd ed, 2010) 755; 19.3. That a person's mental health may deteriorate in custody is regrettable, but also common and not a special or exceptional circumstance. See Cooper v Corvisy [2010] ACTSC 165.
That treatment is better available in the community will not add much to other circumstances: In the matter of an application for bail by Costa at [48]-[49]. It is to be accepted that ACT Corrective Services and ACT Justice Health have an obligation to provide health services of a level that is not of a lesser quality than that in the community. See, for example, Estelle v Gamble 429 US 97 (1976) and DeShaney v Winnebago County Department of Social Services 489 US 189 (1989). See also s 53 of the Corrections Management Act 2007 (ACT).
Criteria for Bail
The various criteria for bail set out in s 22 of the Bail Act have been subject to consideration from time to time. It is not necessary to consider them in detail.
It is, however, important to recall the overarching considerations that were expressed in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184; [55]-[56], by Gyles J, with whom Whitlam J agreed when it was said:
55.In my view, it is wrong to approach the issue under ss 8(2) and 22(1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not: see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346-348; 27 ALR 367 at 380-382. If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.
56.It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.
It should be noted that the reference to s 22(1)(c) was in the context of the Bail Act at the time, and that factor required consideration of the protection of the community, amongst other things, having regard to the likelihood of the person granted bail committing further offences.
Although that quotation expressly referred to one aspect of s 22 of the Bail Act, it is, to my mind, clear that the need for cogent reasons applies more generally to all the considerations in that section, namely, that any refusal of bail must be based on evidence and not mere suspicion or speculation.
So far as the likelihood of not appearing to take his trial, it is relevant to consider matters such as whether the applicant has a regular place of residence or ties to the Territory: R v Walmsley [2011] ACTSC 173 at [28].
As far as Mr Al-Harazi’s interests are concerned, his mental health is relevant: In the matter of a bail application by Culibik [2010] ACTSC 112.
Consideration
Special or Exceptional Circumstances
The period during which Mr Al-Harazi will be confined in custody prior to his trial is more than is desirable. See, for example, Saka v The Queen [2001] WASC 92 at
[38]-[40].
It has to be seen, however, in the context of the charge laid and the course of the proceedings. The Crown prepared a helpful chronology as follows:
Date
Event
18 March 2015
The accused is charged with murder of Sabah Al-Mdwali by ACT police during a recorded interview.
19 March 2015
The accused is brought before ACT Magistrates Court and formally charged with murder and adjourned for mention on 7 April 2015.
7 April 2015
The accused enters a plea of not guilty in the ACT Magistrates Court and matter is listed for committal for trial in the ACT Supreme Court.
22 September 2015
The accused is committed for trial in the ACT Supreme Court.
1 October 2015
Directions are made by the Deputy Registrar for the filing of committal documents on 5 November 2015.
5 November 2015
Committal documents are filed by the DPP.
23 May 2016
The matter is listed for Callover for provision of a trial date. It is adjourned for trial on 5 September 2015. Pre-trial applications (tendency and relationship) are adjourned to 27 May 2016 for hearing.
27 May 2016
The pre-trial applications (tendency and relationship) are vacated due to a change in the accused’s legal representation.
11 August 2016
Matter is listed for hearing of pre-trial applications in relation to relationship and tendency evidence.
Concern is raised in Judge’s Chambers about accused’s instructions to legal representatives and fitness to stand trial.
The application for tendency proceeds. The application for relationship evidence is adjourned at the request of the accused’s counsel.
18 August 2016
Matter listed for Mention. Legal representative for the accused indicate that they are seeking a report from a psychiatrist in relation to the question as to the accused’s fitness to plead.
6 September 2016
Court directs that the trial be postponed until after a fitness to plead assessment has been undertaken by a psychiatrist retained by the accused.
21 September 2016
A finding is made that there is a “real and substantial” question about the accused’s fitness to plea and reserves the question of fitness to plead for investigation.
Crown notes that the next available date for the Crown appointed psychiatrist to see the accused is 14 November.
The matter is listed for mention on 14 December, with a view to obtaining a date for investigation in February 2017.
As can be seen, there has been no unreasonable delay in the progress of the proceedings, though there were events – change of representation by Mr Al-Harazi, the emergence of the issue of his fitness to plead, the need for obtaining a psychiatric report by the Crown – that were out-of-the-ordinary and which caused some further delay.
While the period during which Mr Al-Harazi will be in custody pending his trial is longer than is generally desirable, there has been no inappropriate delay by either party in the relevant circumstances.
The charge faced by Mr Al-Harazi is a very serious one, the most serious in the criminal calendar. This imposes on both the Crown and Mr Al-Harazi’s legal representative particular care in the preparation of the trial. The issue of his fitness to plead is also one of significant consequence. See R v Al-Harazi (No 3) at [1].
I have regard to the considerations of delay in other cases, some of which also involved charges of murder.
I am not satisfied the delay in this particular case is inordinate. I am not satisfied that, of itself, the delay is a special or exceptional circumstance favouring bail.
I must then consider the issue of Mr Al-Harazi’s mental health. It is clear to me that he is suffering while in custody. He clearly believes and believes fervently that he is innocent of the charge, that his father-in-law killed his wife and that he will be acquitted. He also clearly wishes to return to Yemen, where it is clear on the material that I have seen, that he considers that he will be happier. Further, he is missing contact with his children, and I have no reason to believe other than that he loves them very much.
These stresses would be significant for anyone. For Mr Al-Harazi, who has some mental impairment and who, apart from phone calls to his brother and mother in Yemen, has no family or other visitor contact at the Alexander Maconochie Centre, this is additional pressure.
On the other hand, Dr Burhan advises that, despite his distress at being in gaol, the structure and containment that custody provides does shield him from stressors and stimulation such that his mental condition may deteriorate further outside without proper treatment.
That seems to me sound. For example, he will still not be able to return to Yemen; he will still have no personal family support; he will still not be able to see his children. I have no information about his involvement with the Yemeni community in Canberra, or indeed, in Australia. I was informed that it was a small community. No doubt his parents-in-law, who settled here before he did may well have stronger links with that community, which may cause some difficulty in his gaining the community's support. It may be that such support be at least desirable, if not necessary, if Mr Al-Harazi is to be protected from the further deterioration of his mental condition. Thus, for example, I had no evidence of any member of the community who had visited him in custody. His counsel submitted that he expected to be able to live with someone from within that community if granted bail, but that was a very vague and uncertain offer.
It was further said that he would be better able to access treatment while in the community. Apart from his general practitioner, however, no specific proposals were before me that would show that he would be accessing such particular treatment as would be more than merely preferable in the community.
I am not satisfied that Mr Al-Harazi’s mental health, either by itself or together with the delay in bringing him to trial are special or exceptional circumstances favouring the grant of bail.
Criteria for Granting Bail
Were I to be wrong about the question of special or exceptional circumstances, I turn briefly to consider whether I would have granted Mr Al-Harazi bail in any event.
The first issue raised was whether he would abscond. I had cogent, carefully assembled and helpful evidence from Detective Senior Constable Mills about this.
I accept that Mr Al-Harazi has a very strong desire to return to Yemen. It appears at least possible that he may be able to secure a passport to replace the one that is currently with the Australian Federal Police and which would inevitably be surrendered to the Court, were he granted bail. I am satisfied, however, that points of departure would be alerted to the prohibition from him leaving Australia.
I do not consider Mr Al-Harazi would have the skills to avoid detection should he seek to try and return to Yemen.
In addition, were he granted bail, he offered through his counsel to report to a police station more than once a day. That would be a significant protection, since were he to fail to report, no doubt the need for special vigilance to prevent his departure would become obvious.
I add that it seems to me that, at least culturally, he is likely to remain where he can attempt to fulfil his wish to have contact with his children, though, I accept that, as time passes, and, it would seem, the likely [REDACTED] such contact might provide less of an attachment for him to Canberra.
Finally, Mr Al-Harazi has a very strong belief in his innocence and that a trial will prove that. He has expressed that forcefully in telephone calls to his family, which he may well not have appreciated were being recorded. Thus, he does not have the motivation that some accused persons have, namely, their fear of conviction, to abscond.
I am not satisfied that Mr Al-Harazi will, if granted bail, fail to attend his trial.
The second ground is that he may interfere with evidence or intimidate witnesses.
On the assumption that the Crown has a reasonable case in assessing that Mr
Al-Harazi’s son, Akram, is now telling the truth, Mr Al-Harazi has in the past influenced his son to make a statement exculpating Mr Al-Harazi and identifying another offender.
This is somewhat a complex matter, for Akram is not an eyewitness to the killing and has not been persuaded by Mr Al-Harazi to change any evidence that he may give.
Further, while Mr Al-Harazi may well, were he granted bail and to be permitted access to his children, influence them again such that the evidence of what he did in encouraging Akram to give a version of the events which is said to be untrue, may no longer be available to the Crown at trial.
On the other hand, it seems quite unlikely that Mr Al-Harazi will have access to his children. On the evidence I have, they do not want it and [REDACTED].
There is no doubt that, were I minded to grant Mr Al-Harazi bail, it would be, among other matters, on condition that he not approach his children. I have no doubt that the instant he tried to do so, the breach of this condition would be reported to police and his bail would, no doubt, be revoked. I accept that Mr Al-Harazi would understand that.
Subject to one matter with which I will deal below (at [97]-[99]), I am not satisfied that there is a real likelihood of Mr Al-Harazi being able to intimidate his children, who, at least Akram, would be a witness in the trial.
He is also said to have attempted to make contact from the Alexander Maconochie Centre with other members of the Yemeni community who are likely to be called as witnesses. It is not clear, other than as a suspicion, based on the interaction with his son, Akram, that Mr Al-Harazi is likely to intimidate them or encourage them to give false or misleading evidence. That they have declined to accept his contact may lead him to making further attempts to contact them were he granted bail.
This, however, may result in him harassing them which is also a relevant consideration under s 22 of the Bail Act. That, however, is no more than speculation, and I am not satisfied that this would be a reason not to grant bail.
The wishes of Mr Al-Harazi’s children is relevant, however, and it is clear to me that were Mr Al-Harazi granted bail that would have a deleterious effect on the welfare of the children. In the first place, it would upset their sense of security and safety which they have, on the evidence, begun to achieve after the incredibly traumatic events that for such young children they have experienced.
Secondly, Mr Al-Harazi clearly knows where his parents-in-law live, and I accept that they would have to consider carefully whether they would have to move, perhaps out of Canberra, to avoid feeling insecure that Mr Al-Harazi would approach them in order to try and see his children. Whether that is an accurate fear, the evidence seems to suggest that it is highly likely that this is what they would believe.
This would affect the present stability of that household, including that of the children, which would be detrimental to their welfare.
In my view, this would be a powerful reason why bail should not be granted.
Finally, I am not satisfied that the interests of Mr Al-Harazi himself would justify a grant of bail.
He has, at this stage, no place of residence where, even were bail to be granted, he would live. This is a significant problem. I was told that he has had some contact with the imam of his local mosque and that he may be able to live, at least temporarily, with a member of the community.
That is entirely speculative and, in Mr Al-Harazi’s mental state, that lack of certainty is not in his best interests, in my view.
In addition, there is no direct evidence as to how he would access what was described as the preferable treatment for his mental health. That has not been specified in any detail, other than described in a way that suggests it would not be available in Canberra. To grant him bail without a clear plan for the treatment of his mental health would not, in my view, be in his best interests.
Conclusion
I am not satisfied that there are special or exceptional circumstances favouring a grant of bail to Mr Al-Harazi. Accordingly, he has not satisfied me of the precondition to consideration of the bail application required by s 9C of the Bail Act.
If I am wrong about this, I have considered the application and, having regard to the matters set out in s 22 of the Bail Act, I am not satisfied that bail should be granted to Mr Al-Harazi.
I will accordingly dismiss the application.
| I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 1 November 2016 |
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