Ali v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2017-06-26|Before: Hoeben CJ, Hulme J, Garling J, Lonergan J, Hamill J, Davies JJ, Beech-Jones J, Adams J, Basten JA

Solicitors: Hajjar Legal Solicitor for Public Prosecutions File Number(s): 2017/112479

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: Ahmed Ali ("the applicant") applies for bail pursuant to s 49 of the Bail Act 2013 (NSW).
The applicant has been refused bail by the police following his arrest on 10 April 2017, by the Local Court on 11 April 2017 (Truscott LCM) and by the Supreme Court on 26 April 2017 (Lonergan J). Nevertheless, the applicant is provided with a further opportunity to apply for bail in this Court by virtue of s 67 of the Bail Act.
Notwithstanding this Court's usual and traditional role as a court of error, in applications for bail it must proceed to determine the matter afresh: El-Hilli and Melville v R [2015] NSWCCA 146 at [14] (Hamill J, Simpson and Davies JJ agreeing). Disquiet has been expressed about the Bail Act providing for this: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [49] (Beech-Jones J; Adams J agreeing at [6]).
Although the Court is not reviewing, or hearing an appeal from, the decision of Lonergan J to refuse bail, it is entitled to approach the application with a degree of flexibility and may have regard to the reasons of the primary judge: Trinh v R [2016] NSWCCA 110 (Basten JA at [28], McCallum and Davies JJ agreeing at [40]; [44]). However, the materials before this Court are more extensive than that which were before her Honour so it is appropriate that it should approach the task afresh.

The charges

The applicant has been charged with an offence of sexual intercourse without consent in circumstances of aggravation and two offences of indecent assault in circumstances of aggravation. These are offences contrary to s 61J and 61M(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation is that the alleged victim was under the applicant's authority.
Given that the alleged victim was under the age of 16 years, it is not apparent why the indecent assault charges were brought under s 61M(1) and not s 61M(2). At the hearing of the application it was indicated that this is a matter that was under review.
The maximum penalties applying to offences against s 61J and s 61M(1) are imprisonment for 20 years and 7 years respectively. Standard non-parole periods of 10 years and 5 years also apply.

Show cause

The charge brought under s 61J is listed in s 16B(1)(b)(i) of the Bail Act which means that pursuant to s 16A(1) the applicant is required to show cause why his detention is not justified.
The requirement to show cause requires a two-stage assessment; first whether cause is shown and, if so, an assessment of any bail concerns by reference (only) to the matters listed in s 18: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20]. Thus, bail must be refused if (a) cause is not shown, or (b) upon an assessment of bail concerns it is concluded that there is an unacceptable risk that the applicant will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence.

Facts

The complainant is a 15 year-old secondary school student with a hearing disability. The applicant was the driver of a mini bus that took her (and about five other children) to and from her school. The school had a specialist hearing program for such children but was a considerable distance from her home. From the beginning of this year the complainant was the first child to be picked up of a morning and the last to be delivered home of an afternoon.
It is alleged that on the morning of 3 April 2017 the applicant showed to the complainant a pornographic video on his mobile phone. He then parked the bus shortly before arriving at the home of the second child to be picked up. He entered the rear of the bus where he indecently assaulted her and digitally penetrated her vagina.
It is also alleged that the applicant indecently assaulted the complainant in the passenger area of the mini bus on as many as 10 occasions in the preceding month. He had also made comments to her about her appearance, including that her lips were "beautiful, like honey".
It is alleged that the applicant asked the complainant repeatedly whether she had told anyone about what he had been doing to her but she said she had not.
On 6 April 2017 the applicant sought permission from the complainant's family to come to their home that afternoon for a cup of tea. When he arrived the complainant went and remained outside because she was scared of him.
On Sunday 9 April 2017 the complainant told her family of the incidents. She was spoken to by police officers that afternoon and interviewed by specialist officers the following day.
The applicant was arrested on the evening of Monday 10 April 2017. He exercised his right to silence. He was refused bail and has been in custody since.
The Court was informed that the prosecution case relies upon the evidence of the complainant; evidence of a relatively early complaint; and evidence of witnesses who saw the applicant's bus parked in a location away from the home of the second child due to be picked up by the applicant on 3 April 2017.

Evidence

The applicant read affidavits of his wife, Ms Khadije Ali, and his daughter, Ms Sonia Ali, at the hearing of the application in this Court. The following emerges from that material.
The applicant has been married for over 30 years. Prior to his incarceration he lived with his wife and daughter at a home at Bass Hill. He and his wife have owned the home for over 15 years and there is a modest mortgage on the property. His wife consents to the equity in the home being used as security for bail. She is also willing to comply with a condition that the applicant remains at home at all times except if he is in her company.
The applicant is the primary income earner; his wife works part-time (two days per week) as a kitchen aid in a nursing home.
Ms Khadije Ali was diagnosed with breast cancer on or about 23 April 2017 and she underwent surgery on 14 June 2017. There is no evidence before the Court concerning her prognosis.
The applicant's daughter presently lives with her mother at the Bass Hill property. She has been a high school teacher for almost five years. She is engaged and the wedding is scheduled for 30 September 2017.
At the hearing of the application the Court was informed that the applicant has another daughter who is pregnant and due to give birth at the end of August.

Submissions for the applicant

Senior counsel for the applicant emphasised the following points in support of the application: * The applicant is 51 years old and has no criminal history. * He has strong community ties. He lives with his family and has their support. * The Crown case is reliant upon the word of the complainant. The allegation of sexual intercourse is affected by a degree of uncertainty. * There will be significant delay; it will likely be the case that a trial will not occur before mid-2018. * The applicant's wife was recently diagnosed with breast cancer. * The applicant's daughter wants her father in attendance at her wedding.
It was submitted that the combined force of these matters amounted to cause being shown why the applicant's detention was not justified.
The proposed conditions of bail include that he live at the Bass Hill home with his wife and not leave it unless in her company; that he report daily to police; that he surrender his passport and comply with related travel restrictions; that he not approach or contact any prosecution witnesses; and that an acceptable person provide security in the amount of $200,000.
It was submitted that an apprehended violence order ("AVO") that is in place provides protection for the complainant and her family in relation to the asserted bail concern about interference with witnesses.
It was submitted that the proposed conditions of bail, together with the AVO, address any bail concerns and so the Court would not conclude that there is any unacceptable risk if bail were to be granted.

The Crown's response

The Crown submitted that the various matters relied upon by the applicant, even when considered in combination, are not out of the ordinary and are insufficient in the circumstances of this case to show that the applicant's detention is not justified.
The delay until a trial may be held is not out of the ordinary; it is not unexplained, preventable, excessive or unreasonable.
It was submitted that this Court should have regard to the conclusion of Lonergan J to the effect that the various matters relied upon by the applicant were insufficient to show cause.
As to the strength of the case against the applicant, it was submitted that not only is reliance placed upon the evidence of the complainant, there is supporting evidence available from witnesses as to the applicant's mini bus being parked at locations where events are alleged to have occurred.
It was submitted that even if the Court concluded that cause was shown, there remained three bail concerns and, notwithstanding the proposed conditions of bail, they remained unacceptable risks. These were the risks of non-appearance; endangering the safety of victims, individuals or the community; and of interference with witnesses or evidence: s 17(2)(a), (c) and (d).

Determination

As in most cases that must come to the District Court for finalisation, delay is a significant factor. The case presently stands adjourned in the Local Court to 2 August 2017. The balance of the prosecution brief of evidence must be served by a date in July the defence reply is to be served by 2 August. It may be that there could be a committal for trial on that date, or fairly soon after. However, it seems likely that any trial would not likely occur until about 12 months from now.
The alleged offences are quite serious, involving allegations of sexual intercourse and repeated indecent assaults upon a 15 year old disabled girl who was entrusted to the applicant's care as her specially allocated school bus driver. The allegation of sexual intercourse concerns an incident which could be viewed as the culmination of a number of preceding occasions of indecent assault. If the applicant is convicted it is virtually certain that he will receive a significant custodial sentence.
There is some justification for the concern about interference with the complainant either directly, or through her family. It is alleged that the applicant repeatedly inquired of the complainant whether she had told anyone about the earlier indecent assaults and following the incident allegedly involving sexual intercourse he ingratiated himself into an attendance at the complainant's home. The complainant is a vulnerable person, not only because of her age and her disability, but it is recorded in the AVO application that she is "considerably small in stature and seems to be more emotionally delayed and naïve especially sexually".
There is some force, however, in the submission by Ms Davenport SC about there being uncertainty attending the allegation that gives rise to the need for the applicant to show cause. For the Crown to make good the charge brought under s 61J it would be necessary to persuade a jury beyond reasonable doubt that the applicant actually penetrated the complainant's genitalia to some extent: s 61H(1)(a) of the Crimes Act. In the transcript of her interview on 10 April 2017 the highest the allegation rises is in the following passage: "Q262 A few minutes, O.K. And then you said that he touched your vagina? A (No audible reply) Q263 Yeah. Tell me more about that? A With his hand, um, under my underwear and … Q264 So under your underwear? A Yeah. And I think he put his finger in a little bit. Q265 Yeah. So he put his finger where? A In my vagina." (Emphasis added)
The Crown will also rely upon the complaint made to the complainant's older sister. It comprised a detailed account of the incident that occurred on 3 April which included: "He put his finger inside me".
It may well be that the complainant will confirm in her evidence at trial that there was in fact penetration of her genitalia but it is likely that the jury will be required to consider why she used an expression indicative of some doubt in the above extract from her interview.
How the sightings by two witnesses of the parked bus might support the prosecution case is less than clear. It would seem from their statements that the bus was parked relatively near to the home of the second child due to be picked up. Perhaps the evidence that most assists the prosecution is that of a 79 year-old man out walking his dog who saw a man of similar description to the applicant seated in a passenger seat behind the driver's seat (where the complainant said the assault occurred on 3 April 2017). This man also said that the bus usually pulled into the driveway of the second child's home.
The evidence of these two witnesses, at its highest, might support the prosecution case in a general sense, but it is entirely neutral as to the s 61J offence.
I conclude that the prosecution case concerning the charge brought under s 61J is not, on the face of it, a strong one but I would not call it weak either. Much will depend upon the assessment a jury will make of the complainant's evidence. The best that can be said on the limited materials available to this Court is that neither conviction nor acquittal is assured.
Having regard to this, and to the applicant's age, his lack of previous convictions, the fact that there is no evidence of him having behaved inappropriately with any other child, and the likely time he would be required to remain in custody until the proceedings are finalised, I am satisfied that cause has been shown as to why his continued detention is not justified.
As to the bail concerns raised by the Crown, the most serious is the prospect of the applicant interfering with witnesses. I am not persuaded that there is an unacceptable risk in this respect having regard to the conditions of bail that could be imposed. The applicant should be prohibited from having any direct or indirect contact with the complainant or members of her family and required to comply with the conditions of any AVO that may be in force.
Given his family situation, I do not accept that there is any specific cause for concern that the applicant might not appear in court as required. A residential condition and reporting to police three times per week should be sufficient in that respect.
Having regard to the applicant's age and lack of prior criminal history, there seems only minimal concern about the commission of a serious offence or of the applicant endangering the safety of individuals and the community. The proposed curfew condition is unnecessary but given the nature of the charges there should be a condition that the applicant not be in the presence of a child under the age of 16 unless another adult is present.

Order

I propose the following orders: (1) Bail release application granted. (2) The applicant be admitted to bail upon the conditions set out in a schedule annexed to the court file copy of this judgment.
GARLING J: I agree that the applicant should be granted bail, on the conditions proposed, for the reasons given by R A Hulme J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2018

Bail Act 2013(NSW)ss 49, 67

Crimes Act 1900(NSW)ss 61J, 61M(1)

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