R v Ali (No 2) - [2019] ACTSC 356

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…

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.

Continue reading R v Ali (No 2)

Details

AGLC: R v Ali (No 2) [2019] ACTSC 356
Case: [2019] ACTSC 356
Decision Date: 27 November 2019

CaseChat Overview and Summary

The applicant, Ali, was facing charges of an act of indecency without consent and sexual intercourse without consent. His bail application was heard by the court after he failed to appear at his trial on 8 November 2017 and subsequently absconded from Australia. A retrial was scheduled to commence on 6 April 2020. The court had to decide whether the applicant would appear at court if granted bail and whether bail conditions could reduce the risk of non-appearance to an acceptable level.

The legal issues before the court included the assessment of the risk of non-appearance if bail was granted and the consideration of appropriate bail conditions that could mitigate that risk. The court examined the circumstances of the applicant’s previous failure to appear and his subsequent absconding, weighing these factors against the strength of the prosecution case and the interests of justice. The court also considered the applicant's ties to the community, employment, and family situation in determining the suitability of bail conditions.

The court found that the risk of non-appearance was high due to the applicant's previous conduct and the fact that he had absconded from Australia. However, the court determined that appropriate bail conditions could sufficiently mitigate this risk. These conditions included strict reporting requirements, electronic monitoring, and restrictions on travel. The court concluded that granting bail with these conditions would not be contrary to the interests of justice and would facilitate the applicant's right to a fair trial.

The orders of the court included the granting of bail subject to the specified conditions, with the retrial set to commence as scheduled. The applicant was directed to report to a designated officer on a regular basis, to wear an electronic monitoring device, and to refrain from leaving Australia without the court's permission. These conditions were intended to ensure the applicant's appearance at court while balancing the need to protect the community and uphold the integrity of the judicial process.

Orders

Orders of the court

See [6] and [33]

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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