R v Ali (No 2)
[2019] ACTSC 356
•27 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ali (No 2) |
Citation: | [2019] ACTSC 356 |
Hearing Date: | 27 November 2019 |
DecisionDate: | 27 November 2019 |
ReasonsDate: | 20 December 2019 |
Before: | Burns J |
Decision: | See [6] and [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – charges of act of indecency without consent – charge of sexual intercourse without consent –applicant failed to appear at his trial on 8 November 2017 – applicant absconded from Australia – retrial scheduled to commence on 6 April 2020 – consideration of whether applicant would appear at Court if granted bail – whether bail conditions could ameliorate that risk to an acceptable level |
Legislation Cited: | Bail Act 1992 (ACT) ss 9B, 22 |
Cases Cited: | R v Ali [2017] ACTSC 366 |
Parties: | The Queen ( Crown/Respondent) Haider Ali ( Accused/Applicant) |
Representation: | Counsel D Sahu-Khan ( Crown/Respondent) R Thomas ( Accused/Applicant) |
| Solicitors ACT Director of Public Prosecutions ( Crown/Respondent) A Eidelson ( Accused/Applicant) | |
File Number: | SCC 92 of 2017 |
BURNS J
The applicant, Haider Ali, was presented for trial on 6 November 2017 on an indictment containing four counts. The charges against the accused were:
Count 1: committing an act of indecency on OL without her consent, being reckless as to whether she was consenting on 9 October 2016.
Count 2: committing an act of indecency on OL without her consent, being reckless as to whether she was consenting on 9 October 2016.
Count 3: engaging in sexual intercourse with OL without her consent, being reckless as to whether she was consenting on 9 October 2016.
Count 4: committing an act of indecency on OL without her consent, being reckless as to whether she was consenting on 9 October 2016.
The accused was represented by a solicitor and a barrister at his trial. He had been at liberty on bail since being first charged with these offences on 12 December 2016. The majority of the prosecution evidence was taken on 6 and 7 November 2017. At the close of proceedings on the afternoon of 7 November 2017, the accused was permitted to remain on bail and was required to attend the Court at 10 am on 8 November 2017. The accused failed to appear at that time. I delayed the recommencement of the trial until 11 am so that enquiries could be made regarding the accused’s whereabouts. At that time, the informant gave evidence that information provided by Customs established that a person of the accused’s name and date of birth had boarded a flight from Sydney to Dubai that morning. It is now accepted that the accused boarded an Emirates Airlines flight to Dubai in Sydney at 5:47 am on 8 November 2017.
On 8 November 2017, I issued a warrant for the arrest of the accused, being satisfied that he had voluntarily absented himself from his trial. Unsuccessful attempts were made to arrange for the accused to be intercepted in Dubai, arrested and returned to Australia. Material obtained from Emirates Airlines establishes that the accused held a ticket to fly from Dubai to Islamabad in Pakistan on 8 November 2017. The accused, however, did not board that flight. Instead, he travelled from Dubai to Karachi on a different flight on 8 November 2017. It appears that the accused had originally booked a return flight from Islamabad to Dubai on 24 November 2017, and from Dubai to Sydney on 25 November 2017. The accused did not utilise those tickets.
I declined an application by the applicant’s then counsel to discharge the jury, and the trial proceeded in his absence. I subsequently gave reasons for refusing the application to discharge the jury: R v Ali [2017] ACTSC 366. On 13 November 2017, the jury returned a verdict of not guilty on Count 1 but was unable to reach unanimous verdicts on the remaining charges. I discharged the jury without it returning verdicts on those charges.
In November 2018, the applicant arrived in the United Arab Emirates on a 30-day visa. On 10 March 2019, the applicant boarded an Emirates Airlines flight at Dubai airport enroute to Manchester in the United Kingdom. On 16 April 2019, the applicant was booked on a flight from Manchester to Dubai, but did not board that flight. On 22 May 2019, he created a profile on a website for people looking for employment in the United Kingdom. On 8 June 2019, he was booked on a flight from Manchester to Dubai, but he cancelled that booking on 7 June 2019. On 21 July 2019, he was arrested in the United Kingdom prior to boarding a Cathay Pacific flight. He was booked to travel to Hong Kong and then on to Melbourne, Australia. On 22 July 2019, he appeared before the Westminster Magistrates Court in the United Kingdom and consented to his extradition to Australia. The Secretary of State for the United Kingdom ordered his extradition to Australia on 13 September 2019. On 1 October 2019 he was extradited from the United Kingdom to Australia, arriving at Perth International Airport. He was then arrested under the first instance warrant, which I had issued. On 3 October 2019, he appeared before the Perth Magistrates Court and was extradited to the ACT. He has remained in custody since being arrested on 21 July 2019 in the United Kingdom.
By an application dated 30 October 2019, the applicant applied for bail pending the commencement of his retrial on the remaining three counts on the indictment. That trial is scheduled to commence on 6 April 2020, with an estimate of 5 days. The previous trial, including jury deliberation time, occupied 6 days. On 27 November 2019, I heard and refused the application as duty Judge, indicating that I would give full reasons at a later time. These are those reasons.
The application
The relevant provisions of the Bail Act 1992 (ACT) are ss 9B and 22. Section 9B effectively provides that there is no presumption in favour of granting bail with regard to the charges on which the applicant is awaiting trial. Section 22 sets out the criteria for granting bail to adults. Relevantly for present purposes, it provides that in making a decision about the grant of bail to an adult in relation to an offence, a Court must consider the likelihood of the person appearing in Court in relation to the offence. Section 22(3) provides that in considering that matter, a Court may have regard to any relevant matter, including the nature and seriousness of the offence with which an applicant for bail is charged, the person’s character, background and community ties, any previous grants of bail to the person and the strength of the evidence against the person.
In support of his application, the applicant relied upon two affidavits. The first was an affidavit sworn by Aaron Abraham Eidelson, the applicant’s solicitor. Mr Eidelson practices as a sole practitioner in Melbourne. He was the applicant’s solicitor in his first trial, instructing Ms Warwick of Counsel. He stated that in 2017, whilst preparations were being undertaken for the first trial, the applicant told him of his concern over his, that is the applicant’s, father’s failing health. The father lived in Karachi in Pakistan. On the first day of the trial, the applicant informed Mr Eidelson that he had been informed by his family that his father was very ill and was asking for him.
Mr Eidelson noted that during the applicant’s first trial he failed to answer bail, and he was informed that the applicant had departed Australia and a warrant was issued for his arrest. A friend of the applicant, Majid Khan, gave evidence at the first trial that the applicant had been concerned about his father’s health, although he had not confided in Mr Khan that he intended to leave Australia. Mr Eidelson stated that he was later informed by Mr Khan that the applicant had arrived at his family home in Karachi and that his father had passed away a few days after his arrival.
Mr Eidelson stated that he was instructed by the applicant that in July 2019 the applicant had decided to return to Australia to answer the remaining charges. Mr Eidelson was informed that the applicant had contacted Mr Khan who had organised a ticket for him to return to Australia. Mr Khan bought a one-way ticket for a flight departing from London on 21 July 2019 and arriving in Melbourne on 22 July 2019. Mr Eidelson was informed that the applicant was arrested when he attempted to board the plane in London. He states that the applicant’s boarding pass was taken from him and he was taken to prison in London, and later appeared in the Magistrates Court in Westminster where he consented to extradition to Australia.
Mr Eidelson stated that the applicant had an address in Melbourne at which he could reside, being the home of Mr Khan. Alternatively, the applicant could reside at an address in the ACT with a friend of Mr Khan.
The second affidavit relied upon by the applicant was sworn by Majid Khan on 18 October 2019. Mr Khan was born in Karachi, Pakistan and migrated to Australia in 2006 as a student. He first met the applicant in 2006 through a mutual friend. He and the applicant became friends, and later shared a residence in Melbourne. At that time the applicant was employed as an accountant. In 2017 the applicant was living in Canberra and employed as a public servant. Mr Khan learnt that the applicant was charged with criminal sex charges and he offered him support as a friend. He gave his contact details to Mr Eidelson and told him that he would be available as a character reference. Mr Khan stated that he was aware that at the time of the trial in late 2017 the applicant was extremely concerned and anxious about his father, who was critically ill. Mr Khan stated that during the trial he was contacted by Mr Eidelson and told that the applicant had not attended Court. He was later informed that a warrant had been issued by the Court as the applicant had left Australia. Mr Khan stated that he had no inkling that the applicant intended to travel and he had not discussed any such plan with him. He assumed at the time that the applicant had returned to Pakistan to be at his father’s bedside. He later learned that the applicant’s father had passed away a short time after the applicant left Australia.
Mr Khan stated that in March 2019 he learned that the applicant was in the United Kingdom. He said that the applicant contacted him by telephone and asked that he organise a ticket for him to return to Australia. He said that he would reimburse him for the cost of the ticket when he got to Melbourne. Mr Khan stated that he purchased a one-way ticket for the applicant costing $2100. The flight was scheduled from London on 21 July 2019, with an arrival in Melbourne on 22 July 2019. A copy of the E-Ticket was annexed to Mr Khan’s affidavit. Mr Khan stated that he waited at the airport for the applicant on 22 July 2019, but the applicant was not on his flight. Mr Khan stated that he later received a telephone call from the applicant’s older sister who lives in Manchester in the United Kingdom, informing him that the applicant had been arrested as he boarded the plane to Melbourne. Mr Khan said that a few days later he received a call from the applicant that he had been arrested and taken to prison in London. He said that while in custody in the United Kingdom, the applicant had rung him several times repeating his intention to return to Australia to face the charges.
Mr Khan stated that if the applicant were granted bail he could live with him, Mr Khan, at his address in Melbourne. He stated that he was prepared to supervise the applicant and to guarantee that he would comply with all bail conditions. Alternatively, a residence in the ACT was available with a friend of Mr Khan. Mr Khan also said that a surety guaranteeing the applicant’s appearance at Court could be made by way of property, cash or both. Mr Khan said that were the applicant to breach his bail conditions, he would immediately inform the Police.
A bundle of documents was tendered by the Crown on the bail application. The first document was a copy of the applicant’s bank statement which showed a debit of $1259.79 on his account on 9 November 2017. The entry in relation to this transaction suggests that the purchase may in fact have occurred on 7 November 2017. This appears to be the purchase of the applicant’s airline ticket utilised to leave Australia on 8 November 2017.
The second document is a statement prepared and signed by Mr Khan. It is undated. In that statement, Mr Khan stated that the applicant’s father was about 89 years old and had been paralysed for many years and could not walk. Mr Khan stated that on Sunday 5 November 2017 he arrived in Canberra to support the applicant during his trial. That evening the applicant showed him a video of the applicant’s father in a hospital bed. Whilst Mr Khan stated that there was no sound on the video, he also stated that the applicant’s father was saying, “[Mr Ali] please come to me”. He stated that the applicant’s father looked weak and fragile, and close to death. Mr Khan stated that in Islamic culture it is extremely important that a son attends his father’s deathbed, receives a final blessing and attends his father’s funeral. Mr Khan stated that the applicant was distressed about his father’s health, was nervous and could not sleep on the night before the trial. Mr Khan stated that on Tuesday 7 November 2017, he attended the Court proceedings at about 10:15 am. He later had lunch with the applicant and his solicitor. He and the applicant also had dinner with the applicant’s solicitor after which they drove to a friend’s house. At about 10:30 pm or 11 pm, the applicant said that he would go home, because he needed to read a statement and prepare for Court on the following day. Mr Khan then went to a service station to buy cigarettes and petrol. He saw the applicant at the service station buying petrol. The applicant said to him, “See you in the morning”. The applicant did not attend Court the next morning.
The next document is a letter from the Chief of Group Security at Emirates Airlines dated 10 December 2017, setting out the flights on which the applicant travelled on 8 November 2017. I have set out the details of those flights above and will not now repeat them.
The next document consists of copies of two emails sent by the applicant to a person at his former place of employment in the ACT. The first such email is dated 17 November 2017 at 4:31 pm. In that email the applicant stated:
I am very sorry for not giving a notice for leave. I had to come in emergency. I was so stressed about my trial and at the same evening my mum told me that doctors said my father will not survive another day. I had to leave everything and rushed to see my father. As you know he has passed away.
My lawyer said jurey found me not guilty on the first charge. Rest two charges are dismissed. Prosecutor has an option for retail.
I will come back after by the end of December to appear before court and resume my trial.
I heard I have been given a notice of termination for not showing up at work.
I am very sorry I had to leave without yelling. For me my father was very important and I found myself very lucky to get here in time. At least I say him alive and got here on his funeral.
I hope you understand. As I said before I paid around $60000 to fight for my right and prove my innocence. I will come back again but I have to stay here for 40 days because it’s in our faith and everyday around couple of hundred people come for condolence at my house for everyday. It will be like this for 40days.
Can I please get leave with half pay and half no pay?
I have too many expenses here to serve these people and have to make a grave of my father too. If you can help me in this regard I will appreciate your help. I literally am broke.
Nothing I have done with my will. But I assure you I will come back to fight for my right and appear before court.
(Grammar and spelling as per original)
The second email is dated 20 November 2017 at 4:20 pm. The applicant refers to his father’s death certificate being attached to the email. The applicant states that he had spoken to his barrister and “I have been proven not guilty. There are no charges on me. I am innocent.”
The next document is a series of emails between the applicant and the Executive Director, Infrastructure Finance and Capital Works in the Chief Minister, Treasury and Economic Development Directorate in the ACT Government. On 9 April 2018, an email was sent to the applicant attaching an official notification of the intention to commence “forfeiture of office” proceedings as a result of the applicant’s unauthorised absence from work and lack of response to previous correspondence. The applicant was given a period in which to explain his absence and to return to work. By email dated 12 April 2018, the applicant responded stating he had been caring for his mother. He went on to state:
I have decided to stay in Pakistan with her and to lookafter her for good.
Therefore please consider this email as notice of resignation as of today 11th of April 2018 or any date you think is better.
The next document is, as I understand it, a screenshot of the applicant’s LinkedIn profile stating that he was looking for employment in the United Arab Emirates. It is undated, but I was advised that it was online in 2018.
The next document is an email chain between members of the AFP and the Chief of Group Security at Emirates Airlines, regarding the movements of the applicant into the United Kingdom in 2019 and his purchase of tickets to leave the United Kingdom. In particular, it confirms that the applicant had travelled from Dubai to Manchester on 10 March 2019, and had subsequently sought a refund on the return part of that ticket.
The next document is a screenshot of an online advertisement by the applicant for employment in the United Kingdom.
The final document to which I will refer was an AFP ACT Police Bail Consideration Form dated 22 November 2019. In this document it is stated that in late 2018 through to early 2019, the applicant had advertised his desire for work in the United Arab Emirates on his LinkedIn profile. Further, in May 2019 he created a profile on a job seeking site in the United Kingdom. The Form also states:
The defendant told Police he was returning to Australia to clear the charges. Police asked why he was flying to Melbourne and not Canberra. At first he stated that he didn’t know the charges couldn’t be resolved in Melbourne. Immediately after this though, he said that he planned on driving up to Canberra at a later date….
When Police asked why he originally booked flights to return to Dubai from the UK (in both March and June 2019) rather than Australia, he said he would have returned to Dubai first and then onto Australia. Upon Police advising there were no bookings recorded from Dubai to Australia in his name. He offered no response.
Later in the same document it is stated:
Bail conditions requiring the defendant to surrender his passport would be insufficient to prevent him leaving the country due to him being a citizen of Pakistan. Australian authorities have no ability to prevent him from applying for a Pakistani passport or to learn of the personal details recorded on such a passport should one be issued.
A copy of a death certificate said to relate to the applicant’s father was tendered as an exhibit on the application. The Crown did not dispute the authenticity of that certificate.
Consideration
The applicant himself did not swear an affidavit in support of his application for bail, and nor did he give any evidence in person. This, of course, meant that he was not subject to cross-examination about those matters which he has asserted to his solicitor and Mr Khan, and to which they have referred in their affidavits. There are questions arising from the material which give me grave concern about the version of events surrounding the applicant’s failure to appear in the course of his trial in November 2017, which only the applicant can answer. Why, for example, did he book a flight before he left Australia from Dubai to Islamabad on 8 November 2017? All of the evidence put before me in the application suggests that the applicant’s father was a resident of Karachi. This would be consistent with the applicant’s actions in not boarding the flight from Dubai to Islamabad on 8 November 2017, and instead boarding a flight to Karachi. I infer from the contents of the letter of 10 December 2017 from the Chief of Group Security at Emirates Airlines that the applicant purchased a separate ticket to travel from Dubai to Karachi. These actions by the applicant suggest an attempt by him to make it difficult to locate him in Pakistan, casting significant doubt on the proposition that he intended to return to Australia to face these charges.
It was accepted by the Crown that the applicant’s father died on or about 12 November 2017. I was therefore prepared to accept the evidence of Mr Eidelson and Mr Khan that the applicant had expressed concern to them about his father’s health in the period leading up to and during the first trial. I was therefore prepared to accept that concern about his father’s health was a factor in his decision to return to Pakistan. I am not satisfied, however, that this was the only consideration operating on the applicant’s mind. In his email to his employer on 17 November 2017, the applicant also referred to being “stressed about my trial”. It is also a matter of some significance to my mind that he absconded in the wake of evidence refuting a central plank of his defence, being that the complainant had entered a bedroom occupied by the accused on the evening in question and got into bed with him, rather than him entering her bedroom uninvited: see R v Ali [2017] ACTSC 366 at [11]. Without evidence from the applicant it is not possible to determine precisely when he purchased the airline ticket to travel from Sydney to Dubai, and then on to Pakistan.
As he last saw Mr Eidelson and Mr Khan late on the evening of 7 November 2017, it is probable that the applicant purchased his ticket earlier that day, as he was required to board the flight before 6 am the following morning in Sydney. There is no explanation for the applicant’s failure to contact his solicitor or his friend Mr Khan and tell them that he was immediately returning to Pakistan because of his father’s ill-health; nor did the applicant attempt to contact his solicitor or Mr Khan after he had left the country to explain his actions. There was, of course, no application made to adjourn the trial because of concerns about the applicant’s father’s imminent death.
Having left Australia on 8 November 2017, it appears that the applicant made no contact with Mr Khan until sometime after March 2019, at which time he requested Mr Khan purchase an air travel ticket for him from the United Kingdom to Australia. During the period between November 2017 and July 2019, the applicant left Pakistan and made no attempt to return to Australia. Instead he travelled to the United Arab Emirates and sought employment. He then travelled to the United Kingdom and again sought employment. In April and June 2019, the applicant booked flights from the United Kingdom to Dubai, but either did not show for the flight or cancelled the booking. There is no evidence of the applicant attempting to make any booking for travel beyond Dubai on those occasions, and in particular to Australia.
I was prepared to accept that the applicant told Mr Khan that he intended to return to Australia to face these charges. I am not persuaded that this was necessarily the truth. It was suggested on behalf of the applicant during the bail application that he may have chosen to return to Melbourne because that is where his solicitor and Mr Khan were to be found. That explanation, however, was not proffered by the applicant to Police after he returned to Australia. There was also no attempt by the applicant, for example, to contact his solicitor in Melbourne to make arrangements for them to meet, and to make arrangements for his continuing legal representation. There was certainly no evidence of any arrangements being made by or on behalf of the applicant to travel from Melbourne to Canberra. The applicant’s history of changing his flight arrangements at the last minute, or even in the course of travel, gave me cause to doubt that significant weight should be attributed to the fact that when he attempted to board his flight in the United Kingdom on 21 July 2019 he held a ticket for travel to Australia. The ticket anticipated that he would travel via Hong Kong, at which time he could have changed his arrangements.
In any event, even if it were the fact that the applicant intended to return to the ACT to face these charges, there could be no guarantee that the applicant may not again abscond for reasons which appear to be good to him at the time. Little weight could be attributed to any suggestion that a surety would ensure his attendance at trial. His relationship with Mr Khan was not one in which the applicant was prepared to confide his intentions to leave Australia before he did so in November 2017. The applicant has no family or other relevant community ties in the ACT or, indeed, in Australia. While the jury in the first trial acquitted the accused of Count 1, I am satisfied that the evidence against him cannot be described as weak.
In the light of the applicant’s failure to answer his bail in the course of his first trial, absconding from Australia and making no effort to return to Australia before July 2019, I was satisfied that there was an unacceptable risk that the applicant would not appear at Court if he were granted bail. I was satisfied that no bail conditions could ameliorate that risk to an acceptable level. For this reason, I refused bail.
Addendum
The above are the reasons why I refused bail on 27 November 2019. At that time, I accepted as genuine the death certificate, which was said to relate to the applicant’s father. The death certificate was tendered as exhibit 2. This was the approach taken by the Crown. In the course of preparing these reasons, I have had the opportunity to examine that certificate more closely. There are a number of matters that concern me about that certificate:
(a)the name of the deceased is not particularly legible;
(b)the age of the deceased is recorded as 78 years of age, whereas Mr Khan has previously stated that the applicant’s father was aged about 89 years old;
(c)the deceased was described as a resident of Abbottabad, whereas the applicant’s father was described as a resident of Karachi. As I understand it, Abbottabad is some 1500 km north-east of Karachi; and
(d)the certificate states that the deceased was admitted to the Ayub Teaching Hospital in Abbottabad on 3 November 2017, which is well before the applicant left Australia. Abbottabad is approximately 100 km from Islamabad. Why did the applicant change his flight plans in Dubai on 8 November 2017 to fly to Karachi instead of Islamabad if his father was in hospital at Abbottabad? If the applicant’s father died in Karachi, as appears to be asserted, why was his death certificate issued out of a hospital 1500 km away?
As I have said, these are not matters that I took into account when declining to grant bail. The DPP may, however, consider it appropriate to make some enquiries about these issues.
As the applicant is still awaiting trial, I order that these reasons not be published other than to the Crown, the AFP, the applicant and his lawyers until such time as his trial is completed.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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Amendments
27 May 2021 Replace “IB” with “Ali” Paragraph: Title
27 May 2021 Replace “IB” with “Haider Ali” Paragraph: [1]
27 May 2021 Replace “R v IB” with “R v Ali” Paragraph: [4]
27 May 2021 Replace “Council” with “Counsel” Paragraph: [8]
27 May 2021 Replace “[IB]” with “[Mr Ali]” Paragraph: [16]
27 May 2021 Replace “R v IB” with “R v Ali” Paragraph: [28]