Raad v DPP - [2007] VSC 330

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1550 of 2007

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an application for bail by EZZIT RAAD

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2007
DATE OF JUDGMENT:	6 September 2007
CASE MAY BE CITED AS:	Raad v DPP
MEDIUM NEUTRAL CITATION:	[2007] VSC 330

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CRIMINAL LAW – Application for bail – Rebuttable presumption against bail being granted to a person charged with a terrorism offence – Exceptional circumstances - Delay – Physical and psychological health – Presumption of innocence – Accused on remand - Bail refused - Crimes Act 1914 s 15AA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G. Barns	Slades & Parsons
For the Crown	Mr R. Maidment SC with Mr N. Robinson, Mr D. Lane and Ms L. Taylor	Director of Public Prosecutions (C’th)

HIS HONOUR:

Ezzit Raad has been in custody since November 2005 when he was arrested and charged with a number of terrorism offences contrary to the Commonwealth Criminal Code. He was eventually committed for trial and is now before this court, having pleaded not guilty to two counts on an indictment laid by the Commonwealth Director of Public Prosecutions alleging breaches of s.102.3 and 102.6(1) of the Commonwealth Criminal Code. His trial is currently in its interlocutory stages and is due to commence before a jury on 4 February next year. It is expected to run for up to six months.

Mr Raad applies for bail. Having regard to the counts on the indictment upon which he has been arraigned he must show exceptional circumstances if he is to be granted bail. Section 15AA of the Crimes Act 1914 (C’th) so provides.

Mr Barns of Counsel, who appeared for Mr Raad, relied upon a number of factors which he said, taken in combination, constituted exceptional circumstances. In respect of some of them he called evidence.

Mr Barns commenced by pointing to the delay factor which he said was great in this case. He referred to judgments of Osborn J in Hadarra v DPP[1] and Beach J in R v Tang & ors[2]. In the first of those cases Osborn J refused an application for bail by one of Raad's co-accused in January 2006. But in doing so he acknowledged the possibility of the delay in this case becoming so long as to constitute, in conjunction with other matters, the necessary exceptional circumstances to justify a grant of bail. He anticipated at that time that there might be a substantial delay in finalising Haddara's case. He was unable to hold that, on the case as he then understood it, the possibility of inordinate delay was so great as to tip the scales in the applicant's favour.
[1](2006) VSC 8
[2](1995) 83 ACrimR 593

In Tang, Beach J spoke of "normal" delays which occur between arrest and committal, and committal and trial and contrasted such delays…

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 Raad v DPP

Details

AGLC: Raad v Director of Public Prosecutions [2007] VSC 330
Case: [2007] VSC 330
Decision Date: 6 September 2007

CaseChat Overview and Summary

The case of Raad v DPP involved the applicant, Raad, who was seeking bail while being charged with terrorism offences under the Crimes Act 1914. The application was heard by the High Court of Australia. The central issue before the court was whether the presumption against granting bail in terrorism cases could be rebutted by exceptional circumstances, particularly in light of the delay Raad had already spent on remand and its impact on his health.

The court had to determine whether the exceptional circumstances, including the delay and the impact on Raad's physical and psychological health, were sufficient to rebut the rebuttable presumption against bail. The court also considered the principle of the presumption of innocence and the potential prejudice to the administration of justice if bail were granted. The applicant argued that the delay and his deteriorating health constituted exceptional circumstances, while the Director of Public Prosecutions contended that the presumption against bail in terrorism cases should not be easily overcome.

The court held that while the delay and the applicant’s health were significant factors, they did not sufficiently rebut the presumption against bail in terrorism cases. The court emphasised the importance of the presumption of innocence but also recognised the need to balance this with the potential risks posed by the accused if released on bail. The court ultimately found that the exceptional circumstances did not outweigh the considerations that typically favour denying bail in terrorism cases. Consequently, the application for bail was refused. The court did not provide further orders beyond the refusal of bail.

Orders