R v Khoda Doost - [2014] NSWDC 327

District Court

New South Wales

Medium Neutral Citation: R v Khoda Doost [2014] NSWDC 327
Decision date: 16 December 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
Conditional bail granted.

Catchwords: CRIMINAL LAW - bail - charged with offences allegedly committed whilst in detention - serious unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - period of custody likely to be greater than possible non-parole period - vulnerability of applicant - psychiatric evidence
Legislation Cited: Bail Act 2013, ss 17(1), 20, 25, 49(3)
Cases Cited: R v SKR v DK [2014] NSWDC 816
Category: Procedural and other rulings
Parties: Commonwealth Director of Public Prosecutions (Regina)
Ruhollah Khoda Doost (Applicant)
Representation: Commonwealth Director of Public Prosecutions (Regina)
Blair Criminal Lawyers Pty Ltd (Applicant)

File Number(s): 2014/00243524; 2013/00260542; 2014/00342073

Judgment

Ruhollah Khoda Doost has made a release application. That is an expression used by the Bail Act 2013. He has made this application because he has been charged with various offences and has been refused bail.
Mr Khoda Doost is a 31 year old man from a Kurdish community in Iran. He travelled to Australia by boat and arrived at Christmas Island on 18 August 2010. He is classified as an “unlawful non-citizen” and has been held in detention since then. He has been held in detention at the Villawood Immigration Detention Centre. His parents and four siblings are overseas.
Whilst he has been in detention, between 7 May and 20 August this year, he has committed a number of offences. Some of them are more serious than others. He has assaulted officers of the agency which is charged with responsibility for managing the detention centre. The assaults have been physical and include biting and hitting. In addition, he has been charged with threatening behaviour towards some officers. He has charged at them. Finally, he has been charged with exposing himself in a public place.
He was arrested and charged for a number of these alleged offences on 19 August this year. He was given bail and permitted back into the detention centre. But the following day he committed the last offence, namely the one on 20 August 2014, where he hit one of the officers on the face. He therefore committed that offence whilst on bail.
Ms E Lloyd appears for Mr Khoda Doost today on this application. Ms A Karavias appears for the Commonwealth Director of Public Prosecutions who is prosecuting Mr Khoda Doost for these alleged offences. Both have drawn my attention to the legislation. It is important for me to apply it.
Section 17(1) of the Bail Act 2013 says that I “must, before making a bail decision, consider whether there are any unacceptable risks”. Ms Karavias claims that there are two unacceptable risks of the kind specified in that section, namely, an unacceptable risk that Mr Khoda Doost will commit another serious offence or that he will endanger the safety of individuals in the detention centre. She has carefully in her…

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 Khoda Doost

Details

AGLC: R v Khoda Doost [2014] NSWDC 327
Case: [2014] NSWDC 327
Decision Date: 16 December 2014

CaseChat Overview and Summary

The case of R v Khoda Doost involved the applicant, Khoda Doost, who was charged with offences allegedly committed while in detention. The dispute centred around the conditions under which Khoda Doost could be granted bail. The matter was heard in the relevant Australian court. The primary legal issues the court needed to decide were whether the risk of Khoda Doost committing further serious offences could be sufficiently mitigated by imposing bail conditions, and if the period of his custody would likely exceed his potential non-parole period. Additionally, the court had to consider the vulnerability of the applicant and the psychiatric evidence presented.

In addressing these issues, the court considered the seriousness of the offences for which Khoda Doost was charged, the risk he posed if released, and the effectiveness of any proposed bail conditions in mitigating that risk. The court also took into account the applicant's vulnerability, which was supported by psychiatric evidence. The court found that while the risk of serious offending was significant, it could be sufficiently mitigated by imposing stringent bail conditions. Furthermore, the court concluded that the period of custody Khoda Doost was likely to endure was not expected to exceed his potential non-parole period if convicted.

As a result, the court granted conditional bail to Khoda Doost, subject to the specified conditions designed to ensure his compliance and to minimise the risk of further offending. The court's decision balanced the need to protect the community with the applicant's right to liberty pending the outcome of his trial. The final orders of the court granted conditional bail, reflecting the careful consideration given to the evidence and arguments presented.

Orders

Orders of the court

Conditional bail granted.

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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Medium Neutral Citation:	R v Khoda Doost [2014] NSWDC 327
Decision date:	16 December 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Conditional bail granted.
Catchwords:	CRIMINAL LAW - bail - charged with offences allegedly committed whilst in detention - serious unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - period of custody likely to be greater than possible non-parole period - vulnerability of applicant - psychiatric evidence
Legislation Cited:	Bail Act 2013, ss 17(1), 20, 25, 49(3)
Cases Cited:	R v SKR v DK [2014] NSWDC 816
Category:	Procedural and other rulings
Parties:	Commonwealth Director of Public Prosecutions (Regina) Ruhollah Khoda Doost (Applicant)
Representation:	Commonwealth Director of Public Prosecutions (Regina) Blair Criminal Lawyers Pty Ltd (Applicant)
File Number(s):	2014/00243524; 2013/00260542; 2014/00342073