PROCEDURE - SUPREME COURT PROCEDURE - Representation - McKenzie's friend - Representation by unqualified person

Bail Act 1992 (ACT), ss 19, 22, 41, 43

Human Rights Act 2004 (ACT), ss 18, 22

Legal Aid Act 1977 (ACT), s 31

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Burton v R (1974) 3 ACTR 77

Collier v Hicks [1831] EngR 686; (1831) 2 B & Ad 663

Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435

Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149

In the Marriage of Watson (2001) 28 Fam LR 481

In the matter of an application for bail by Blundell [2008] ACTSC 138

In the matter of an application for bail by Day [2008] ACTSC 121

In the matter of an application for bail by Marsh [2013] ACTSC 16

In the matter of an application for bail by Merritt [2009] ACTSC 56

In the matter of an application for bail by Rodrigues [2008] ACTSC 50

In the matter of an application for bail by Skeen [2009] ACTSC 30

KT v KJ [2000] FamCA 831; (2000) 158 FLR 451

McKenzie v McKenzie [1970] 3 All ER 1034

R v Fraser [1892] NSWLawRp 23; (1892) 13 LR (NSW) 150

R v Kristiansen [2008] ACTSC 83; (2008) 221 FLR 127

R v Light [1954] VicLawRp 25; [1954] VLR 152

R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325

R v Watson (1947) 64 WN (NSW) 100

Stergiou v Citibank Savings Ltd (1998) 148 FLR 244

1. The application by the Director of Public Prosecutions to revoke bail be refused.

2. Further consideration of the application by Ammar Dhaimat to have the security refunded be deferred until the Legal Aid Committee has made a decision regarding Legal Aid funding.

1. The accused, Ammar Dhaimat, is a medical practitioner who, until his arrest for the offences with which he has been now charged, practised in Belconnen. As a result of his activities during a consultation with a female patient on 25 April 2013, he was charged with two counts of committing an act of indecency on the patient without her consent and being reckless as to whether she was consenting.

2. He appeared in the Magistrates Court on 27 April 2013 and bail was initially refused. On 1 May 2013, however, he was granted bail on strict terms, which included the deposit of two sums of $10,000, in cash, as a security, a curfew and daily reporting conditions. There were of course conditions to prevent contact with the complainant.

3. On 29 August 2013, he was committed for trial to this court. The matter was listed for callover on 17 February 2014 and also it appears that it has now been listed in the central criminal listing pilot for a trial said to take three days from 24 February 2014.

4. On 20 December 2013, Dr Dhaimat made an application to vary his bail. Though he had, until then, been legally represented, he made this application by himself. He sought to have the curfew removed to "ease" the daily reporting and for a return of the cash sums deposited as security for his bail. The application explained:

To have one of the $10,000 bond placed by myself returned to me for legal fee's [sic] for my legal aid has been refused and for medical treatment (currently in and out of hospital for mental and suicide prevention treatment). I have no more fund [sic] but my Centrelink benefits.

5. The application came before Master Mossop on 23 December 2013, but because the notice of the application given to the Director of Public Prosecutions had been too short to allow for proper investigation, it was adjourned until 6 January 2014. It came then before Penfold J as duty judge, but her Honour was presented with a bundle of documents without any kind of order to them. Her Honour directed that they be annexed to an affidavit which outlined the facts on which Dr Dhaimat relied to disclose that he had no funds apart from the $10,000 security; that he has debts to pay, including medical bills and legal fees and that the attachments include bank statements and documents relating to the sale of houses he had previously owned.

6. The matter was then adjourned. I heard the application initially on 14 January 2014. At that stage Dr Dhaimat withdrew his application to revoke the curfew condition and to vary the reporting condition. He maintained, however, one of the cash securities of $10,000 be refunded, so as to provide for legal representation. That application was opposed by the prosecution.

7. An affidavit purporting to comply with the direction of Penfold J was handed up. It was said to have been filed, but was not on the file. No objection was taken to its filing in court on that morning. No objections were taken to its contents. The affidavit itself was relatively brief. In it Dr Dhaimat deposed that there had, since his arrest, been a "great change" in his health and financial situation where both were "at an extreme low".

8. He is currently receiving $592.17 per fortnight from Centrelink, of which he paid $350 per week rent and $265.80 per fortnight, said to be "bankruptcy". I refer later to the latter amount. I do not, however, understand how he finds the substantial difference between the income and expenditure. That was unexplained unless I am expected to infer, from an inference that he is receiving financial support from his family, that this is the source of that discrepancy.

9. He deposed that he has no more savings and, which, as I have said, may explain the discrepancy between his income and expenditure, he depends on the support of family and friends. He deposed that he had a legal bill of $34,000. He had also been admitted to hospital for psychiatric and suicide prevention treatment. He is currently prescribed various medications.

10. He deposed that he had made an application for legal aid but this was declined. An annexed letter from Legal Aid (ACT) referred to queries about a cheque for $10,000 cashed on 23 August 2013, a cheque for $68,960 cashed on 5 September 2013 and a withdrawal of $66,000 on 10 September 2013. They were unexplained in the material before me. It requested further details about his bank accounts and property assets.

11. On 8 November 2013, he was advised that his application for legal assistance had been refused as Legal Aid was

not satisfied [he is] not able to pay for private representation with the financial assistance of a financially associated person.

12. He deposed that he had sought a reconsideration but that was rejected. He has now sought a review and I was told by Ms K James, of the DPP, who has been of great assistance in ensuring that some contacts were made, and information obtained, which was difficult for Dr Dhaimat as an unrepresented person, that a Legal Aid Review Committee was being convened and would later meet. I will refer to that later in these reasons.

13. Arrangements had been made for Dr Dhaimat to be represented by Mr Frank Wilson, but he required $10,000 to be deposited into his trust account before he would accept instructions to appear for Dr Dhaimat. It is of course very advantageous for an accused person, especially facing serious charges, to be represented by a legal practitioner. It is recognised as an appropriate right in criminal proceedings by s 22(2)(d) and (f) of the Human Rights Act 2004 (ACT). It is also of great benefit to the Court, and indeed to the prosecution, for accused persons to be legally represented. To facilitate this while meeting the objectives of bail is highly desirable.

14. Dr Dhaimat deposed that he had complied with all his conditions of bail since 25 April 2013. There was no assertion to the contrary. There were a large number - forty-seven pages - of documents annexed to the affidavit. They were not specifically referred to in the affidavit. They were not explained or identified. Indeed, they were not asserted to be accurate or true copies of the documents they purported to be. In the light of the allegations to be referred to below, that is of some concern. In effect, they were simply attached unsorted and unexplained. Nevertheless, doing the best I can, they seemed to show:

(a) The first, in Isaacs (the first Isaacs property), was purchased by him in October 2010 for $890,000 was sold on 7 October 2013 for $785,000. A settlement statement for that sale was not attached to the affidavit, but was tendered at the hearing. It showed that the whole of the balance of the purchase price was paid to the bank, which I am prepared to assume was the mortgagee. It did not show who received the deposit of $39,250.

(b) The second, also in Isaacs (the second Isaacs property), was purchased by him in December 2011 for $675,000, was sold on 30 July 2013, for $600,000. The settlement statement showed that $593,914.33 was paid to the mortgagee bank and the balance available to Dr Dhaimat's company was $2,622.88. The deposit in this case was $1.

(c) The third, in O'Malley (the O'Malley property), was purchased by him for $1.43 million on an undisclosed date, but was sold on 17 October 2013 for $1.45 million, with over $1.28 million being paid to a mortgagee financier and the balance of $15,254.28 available to Dr Dhaimat's company. The deposit of $72,500 was released to Dr Dhaimat. There was also an unexplained allowance to the buyer of $70,000 which may, for example, have been some debt or claim that they had on Dr Dhaimat in respect of, for example, repairs or approvals in respect of the property. It was, however, unexplained.

2. He disclosed four bank accounts, one with an overdraft of $764.36 and the others with credit balances of $89.61, $4.01 and $4.49, as at late 2013.

3. His former lawyer required a deposit of $34,337.40 to be paid by 5 November 2013. I infer that he did not pay that amount, which is why he remained unrepresented.

4. He disclosed his personal medical records, which showed a diagnosis from his general practitioner of mixed anxiety, depression and post traumatic stress disorder. He was hospitalised for depression between 26 November and 13 December 2013. He is, or has been, prescribed diazepam, which is used to treat anxiety disorders; Panadeine Forte, an analgesic; Zoloft, an antidepressant drug; Setraline, an antidepressant drug; and Quetiapine, an antipsychotic drug. He has also been attending consultations with a psychologist and psychiatrist.

5. He received an international money transfer of $2,000 from the United Arab Emirates. He said that this was from his brother to help with living expenses.

6. He had retained the services of DCS Group Australia, debt mediators, to assist with bankruptcy. That arrangement with this group required fortnightly payments of $264.70, to which I have referred above.

15. Dr Dhaimat was initially unrepresented at the hearing. A Mr S Hajj sought leave to appear for him. He described his assistance as being a McKenzie's friend. That, however, is not accurate. A McKenzie's friend, so named after the English decision of McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472, is a friend or assistant who may sit beside a litigant in person for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally by assisting the litigant in presenting his or her case to the court, provided that the person does not disrupt the court proceedings.

16. An important limitation is that a McKenzie's friend may not act as an advocate for the litigant. That limitation has been recognised at least since 1831, when it was remarked on by Lord Tenterden, in Collier v Hicks [1831] EngR 686; (1831) 2 B & Ad 663 at 669; [1831] EngR 686; (1831) 109 ER 1290 at 1292, and reaffirmed as recently as 2000 by the Full Court of the Family Court of Australia, in KT v KJ [2000] FamCA 831; (2000) 158 FLR 451 at 453. It has, however, been held that, in exceptional circumstances, a McKenzie's friend may, with the leave of the court and, in exceptional circumstances, act as an advocate for the litigant: see In the Marriage of Watson (2001) 28 Fam LR 481. This was permitted in this Court in Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 at 247.

17. It has also been held that, in certain circumstances, an unqualified person may be given leave by the court to represent a litigant who is without legal representation. That the court has an inherent right to give such leave has been recognised by the New South Wales Court of Appeal in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 at 154; [33]. After a careful analysis of the authorities, the court identified six relevant interests. Those of importance here are the genuine difficulties of the unrepresented party, for the medical difficulties of Dr Dhaimat are not insignificant, and the interests of justice.

18. Not without some hesitation, I permitted Mr Hajj to represent Dr Dhaimat in the original proceedings. The prosecution, however, have now applied for a review and revocation of Dr Dhaimat's bail. That is a much more serious matter, and I have required legal representation for that purpose, indicating that I would release sufficient, but only reasonable, funds from the monies paid into court for that purpose. Ms T Warwick has now appeared for Dr Dhaimat on the two applications.

19. A further affidavit was read. It was an affidavit by Mr Hajj. In that affidavit he deposed that he was a friend of Dr Dhaimat and confirmed that he had deposited $10,000 as a gift security for his bail. He deposed that Dr Dhaimat's mortgage repayments were $15,800 per month and as he had ceased working, having, I also note, been suspended from practice on being charged, he could not afford this and had sold his three properties.

20. He also deposed that, after being charged, Dr Dhaimat started to gamble. Mr Hajj saw him lose sums of up to $30,000, but on one occasion he also won back such a sum. Mr Hajj said that since his application for bankruptcy, Dr Dhaimat had borrowed money from his friends and reduced his expenses. He also deposed to Dr Dhaimat's hospitalisation on 25 November 2013 to 13 December 2013 and 24 December 2013 to 7 January 2014 for mental problems, and on 20 January 2014 to 21 January 2014 for physical problems. He is said to be awaiting a bed for further psychiatric admissions.

21. The application for revocation was based on evidence that I had heard on the two occasions that the matter came before me. Constable Laura Hall gave evidence on 14 January 2014 and Detective Senior Constable Tracy Darragh gave evidence on 16 January 2014. From their evidence, I find as follows.

22. In addition to the counts of committing non-consensual acts of indecency to be heard in this Court, Dr Dhaimat faces a charge or charges for possessing illicit drugs, which is to be heard in the Magistrates Court very shortly. I had no further information, although it was advised to me from the bar table that the subject drugs were steroids.

23. Dr Dhaimat faced charges in the United Kingdom for apparently similar offences to those he faces in this Court. He failed to remain in the United Kingdom to face those charges and has breached his bail granted to him there. I note that the bail was granted to him before he was charged and pending further investigations, a rather different process than that to which we are accustomed in this jurisdiction. The United Kingdom authorities, I was informed, proposed to apply for Dr Dhaimat's extradition at the conclusion of the present proceedings in which he is involved.

24. Dr Dhaimat has an Australian passport and a Jordanian passport, both of which have been surrendered to the court as a condition of his bail. A search warrant was executed on Dr Dhaimat's property and a number of significant documents were found. These include:

(a) Valuations of the three properties sold by Dr Dhaimat. That for the first Isaacs property was for $859,000 to $899,000; that for the second Isaacs property was for $720,000 to $745,000; and that for the O'Malley property was for $1.4 million to $1.45 million.

(b) A large number of documents on which appeared a certification stamp and signature of a justice of the peace apparently transferred to the documents by cutting out the original and then taping it onto the other documents and photocopying the whole. There were also blank pages with the certification and signature on them. The documents related to a divorce application to the Family Court, documents admitted in support of visa applications to the Department of Immigration and a certificate of good character submitted to the Australian Medical Council. They were, however, not documents that could be used as travel documents. No charges have, so far as I am aware, yet been laid as a result of these discoveries.

25. When the warrant was executed, Dr Dhaimat had cash of $30,000 on him but that was not seized. Dr Dhaimat is presently unemployed. Police suspect that he has other, undisclosed bank or similar accounts. These include an account with Medfin Australia, being a medical finance company; another National Australia Bank account; a Bank of America account; and potentially a Bank of Etihad account. There was no information as to whether these accounts actually existed at present or whether there were any funds in them. It was suggested, however, from the bar table that, in fact, they had been closed or had nil balances.

26. Dr Dhaimat had a credit account with Casino Canberra, into which he had deposited just over $100,000 in August 2013. He had been involved with transactions totalling up to $500,000, though these included money being taken out and then repaid into the account from the proceeds of gambling. The balance is now nil and between mid-September and mid-December he lost $70,000 in gambling. He left in mid-December from the Casino with $30,000.

27. There have been no relevant movements of large amounts of money involving Dr Dhaimat, or associated entities, other than as disclosed above. There were, however, credit card limits of $60,000 associated with him, though the available credit in respect of those cards was not known.

The Bail Act

28. Under s 41 of the Bail Act 1992 (ACT), either an accused person or the informant may apply to a court for a review of a bail decision at any time. Section 43A, however, requires that the applicant must show:

(a) a change in circumstances relevant to the granting of bail since the court's decision; or

(b) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.

29. It seems to me that this latter test must be addressed first. In R v Kristiansen [2008] ACTSC 83; (2008) 221 FLR 127 at 131; [29], I indicated that:

... the change in circumstances or fresh evidence or information need not favour the grant of bail but full effect must be given to the words, "based on", and so an accused person can only rely on such factors to grant entitlement to a review where they form part of and are relied on in support of the application.

30. This reinforces the view that the applicant may be the informant, as well as the accused person, and both are bound by the provisions of s 43A.

31. I am not aware of detailed consideration, however, of the terms "change in circumstances" and "fresh evidence or information". Perhaps they do not need such consideration. I note that, in 2004, the precondition for a review then in s 43 of the Bail Act required that there be "significant change in circumstances". The requirement that such a change be "significant" was removed in 2011.

32. The circumstances, however, still need to be relevant to the granting of bail. Examples of significant changes in circumstances have included the availability of a surety since the earlier application, In the matter of an application for bail by Rodrigues [2008] ACTSC 50, In the matter of an application for bail by Merritt [2009] ACTSC 56; the laying of further charges, R v Kristiansen; a letter of attempted exculpation by an accused, In the matter of an application for bail by Day [2008] ACTSC 121; the offer of employment, In the matter of an application for bail by Blundell [2008] ACTSC 138; a declaration by a complainant that she no longer is concerned about the accused being granted bail, In the matter of an application for bail by Skeen [2009] ACTSC 30; a place to live, In the matter of an application for bail by Merritt.

33. So far as an application by an accused person is concerned, I have held that this requirement should be construed liberally having regard to the requirement of the Human Rights Act that legislation should be construed, as far as possible, consistent with its purpose, in a way that is compatible with human rights; in the case of bail, the right in s 18 to liberty and that people awaiting bail should not be detained in custody as a general rule. The implication of this for an application by an informant has not been the subject of submission and I do not need to consider it here at this stage. For a consideration of those issues, see In the matter of an application for bail by Marsh [2013] ACTSC 16.

34. The reference to "fresh evidence or information" is, in my view, similarly to be explained in ordinary terms. It has to be evidence or information that was not before the previous bail hearing or indeed any earlier bail hearings. I do not think, however, that this should be interpreted in the manner of a common law consideration of fresh evidence on appeal, where the High Court in Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444 said:

It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced; or if it was not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose to the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.

35. It seems to me that the provision should not be interpreted in this way. That, in part, also relies on the interpretation obligations under the Human Rights Act. It seems to me that it is more likely that it should be interpreted in somewhat the same way as I have considered that further evidence may be adduced on an appeal from the Magistrates Court (see Grooms v Toohey (2012) 7 ACTLR 1 at 8-10; [35]-[37]). So long as the evidence was not before an earlier bail hearing and is, to that extent, fresh, it may be admitted as long as it is relevant to bail.

36. Ms James relied on the sale of Dr Dhaimat's three houses, which occurred after he was granted bail, the investigation for serious fraud offences, the imminent hearing in the Magistrates Court, his suicidal ideation and hospitalisation as changed circumstances. She also referred to the fact that he had an outstanding breach of bail in the United Kingdom, the fact that he had no ties with this jurisdiction and the fact that he had no family ties in Australia, but properly conceded that these were matters that were all known and taken into account when he was granted bail earlier. Accordingly, they do not amount to changed circumstances, or fresh evidence or information.

37. Her submission was that the matters that I have mentioned which were changes now meant, she submitted, that I could infer an increased flight risk or, in the case of his suicide matter, a risk to himself, and were sufficient to justify me exercising jurisdiction in this matter. I have to say, with some hesitation, I am prepared to accept that those matters she mentioned, and which I accept as changed circumstances or fresh evidence or information, do just reach the level of being relevant to bail in the circumstances.

38. Section 22 of the Bail Act makes clear the legislative approach to bail that this Court must be concerned about and it identifies the following three matters:

(a) Whether the accused person will attend to take his or her trial.

That was a traditional common law consideration (see R v Fraser [1892] NSWLawRp 23; (1892) 13 LR (NSW) 150 at 154). In R v Watson (1947) 64 WN (NSW) 100, Herron J said:

The object of bail is to secure by pecuniary penalty the appearance of the prisoner at the trial.

That case was followed by Sholl J in R v Light [1954] VicLawRp 25; [1954] VLR 152 at 155.

(b) The likelihood of the accused misbehaving while on bail by committing an offence, by harassing or endangering the safety or welfare of anyone or by interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice.

(c) The interests of the accused which clearly recognises that a person has a defeasible right to liberty pending trial (s 18 of the Human Rights Act), but also proper preparation for his or her trial, which is usually best done at liberty, which is in the public interest so as to ensure a fair trial, a matter noted by the Chairman of the Quarter Sessions in R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325 at 326.

39. In this case, the concern expressed by the prosecution was the question of whether Dr Dhaimat would appear to take his trial. That is often summarised as "flight risk".

40. As to the matter of the sale of the properties, I accept that, without property owned by Dr Dhaimat, there is a somewhat easier prospect of him leaving the country, especially if the sale of the three properties presents him with funds from which he can achieve that. The sale of the properties themselves, however, I find completely innocuous, and the speculation that he was somehow engaged in some clandestine plan to assist his failure to comply with his bail undertaking comprehensively unsatisfactory.

41. Given his loss of job and the massive mortgage payments, the sales are entirely unexceptional. Indeed, for example, if he had waited for a further one month in order to try to obtain a higher price without any certainty of doing so, he would have completely lost the whole of the small amount he recovered from the sale of the first Isaacs property. He would also have owed money on the second Isaacs property.

42. As to the suggestion of unaccounted for bank accounts or cash, there was no evidence, but only innuendo. The prosecution have had since 1 May 2013 to produce such evidence and none has been forthcoming. In the light of that time period for proper investigation, I dismiss the so-called "belief" in such accounts as not a matter on which, in fairness, I should rely. That Dr Dhaimat has money for which he has not been able to account is, to some extent, correct. There were large payments that were not the subject of evidence to which I have already referred.

43. Of course in a bail application I am not bound by the rules of evidence. See s 19(2) of the Bail Act. That is confirmed by the reference to "information" in s 43A(1)(b) also. Indeed, most bail applications are properly and perfectly satisfactorily heard and determined on assertions from the bar table. Nevertheless, that a court is not bound by the rules of evidence does not mean that a court should ignore the sound policy for those rules and simply rely, without discrimination, on the flimsiest of assertions, particularly where the opponent challenges them.

44. The seriousness of what is involved, namely the liberty of the subject, is also relevant to the approach a court must take to the evaluation of the evidence and information it receives (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336). There were suggestions from the bar table, although they were not agreed, which did put the matter of his unaccounted for funds in some perspective. The evidence was that, since May 2013, Dr Dhaimat had become a very heavy gambler.

45. In the absence of clearer information, I am not satisfied that he has been able to secrete financial funds which should be regarded as likely justification for a flight risk. I am supported in that by the fact that since he has sold those houses in late 2013, the latest settlement bring in October, he has had the opportunity to use any funds he there had for flight if he wished to.

46. I accept that Dr Dhaimat has had significant problems with depression. He has, however, had treatment and is undergoing continuing treatment for that.

47. Indeed, the discharge summary from his earlier period in Calvary Hospital reported:

Ammar showed gradual signs of improvement in mental state and resolution of suicidal ideation during his admission.

48. That needs to be balanced, of course, against the fact of his further psychiatric admission, but there was no information that this was linked to suicidal ideation rather than the diagnoses of depression and anxiety, which are, of course, unsurprising in the light of the traumatic events of, and following, his arrest. I accept that the imminent hearings may increase, somewhat, the likelihood of flight, but to take that too far would result in every bail granted an offender being revoked as the hearing of the relevant charges approached. That cannot be the proper approach of bail. It does not seem to me that this is affected by the decision in Burton v R (1974) 3 ACTR 77.

49. Dr Dhaimat was granted bail, taking into account a whole range of factors. He has now been on bail for nearly ten months. It has been a very strict regime. He has not been reported to the Court for breaching that bail at any time. The additional matters to which I have been referred do not seem, to me, to change the situation. If Dr Dhaimat had amassed funds for flight, it seems to me he would have left well before now. I am not satisfied that there is an increased risk of flight to any degree that would warrant the revocation of his bail. The application to revoke his bail is refused.

50. As to the question of the refund of the cash security deposited in accordance with the bail in order to secure his legal representation, the matter is somewhat more complicated.

51. I was invited to accept that Legal Aid, which has undertaken, it was suggested, a more thorough investigations than the prosecution, an interesting suggestion in itself, had formed the view that he had sufficient resources for his legal representation. In fact, Legal Aid concluded, on the evidence I have seen and as noted above, not that he had funds but that he had "financial assistance of a finically associated person". That of course may have been his company, or it may have been the person who put up the other $10,000 security; it was not explained.

52. It seems to me that if Dr Dhaimat attends to take his trial, the security bond he has lodged with the Court will be available to him, as there will be no basis for forfeiture. It can then be applied to his legal costs. The risk to his lawyer will be that the money will be returned to Dr Dhaimat and he will not pass it to his lawyers. That may, of course, be resolved by the giving, by Dr Dhaimat, to his lawyers or to the Court, of an irrevocable authority supported as a deed or by consideration that the money be paid to Mr Wilson's trust account. I would do whatever I could to ensure that the Court complied with such an authority.

53. I have been told, however, that the $10,000 may not be sufficient to meet the costs that will be incurred by the hearing in this court and in the Magistrates Court. That is a matter for Dr Dhaimat and his legal advisers. I have concerns about the power of the Court to give effect to directions about the payment of the security that has been deposited, other than to comply with an irrevocable authority. I also accept that the security is primarily an element of the bail and therefore should remain in court.

54. I have also been advised that the Legal Aid Review Committee will meet on 30 or 31 January 2014 at 1:00 pm.

55. Accordingly, I propose to defer further consideration of this issue until the Legal Aid Review Committee has met, noting that the Legal Aid Commission may itself, under s 31 of the Legal Aid Act 1977 (ACT), require a payment of a contribution which could come from the security for bail. Accordingly, I will adjourn the further hearing of Dr Dhaimat's application for a variation of the bail for the refund of the $10,000 security until after he has received a decision from Legal Aid (ACT).

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the defendant: Wilson Phillips Lawyers

Dates of hearing: 23 December 2013, 6, 14, 16, 21, 29 January 2014