R v Vaziri

Judgment

1. Shabbir Mohammedbhai Vaziri made a release application under the Bail Act 2013, on 9 June 2016. It was filed at the same time as a Notice of Intention to Appeal was filed in the Court of Criminal Appeal.
2. On 13 September 2013, the applicant was charged with two counts of being an accessory after the fact to female genital mutilation ("FGM') contrary to s 45(1) of the Crimes Act 1900. His liability as an accessory is provided for in s 347 of the Crimes Act.
3. On 14 September 2015, the applicant stood trial before a jury in the Supreme Court of NSW. There had been significant pre-trial argument. On 12 November 2015, the applicant was found guilty of both charges.
4. On 18 March 2016, Johnson J, for the reasons which he then expressed, sentenced the applicant to an aggregate sentence of 15 months' imprisonment with a non-parole period of 11 months. Johnson J referred the applicant for assessment as to suitability to serve that sentence by way of home detention. Johnson J imposed similar sentences on the applicant's co‑accused: R v A2; R v Magennis; R v Vaziri (No.23) [2016] NSWSC 282 ("No.23").
5. On 9 June 2016, Johnson J, for the reasons which he then published, ordered that the applicant's co-offenders, A2 and Ms Magenis, serve their sentence of imprisonment by way of home detention. He ordered that the applicant serve his sentence by way of full time imprisonment: R v A2; R v Magenis; R v Vaziri (No.24) [2016] NSWSC 737 ("No.24").
6. The term of imprisonment imposed upon the applicant commenced on 9 June 2016. The non-parole period of 11 months will expire on 8 May 2017, and the balance of term of 4 months will expire on 8 September 2017. Johnson J, when imposing the sentence, directed pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 that the applicant be released on parole at the expiration of the non-parole period.
7. The applicant's grounds of appeal to the Court of Criminal Appeal, and his submissions in support of those grounds, have not yet been filed. There are good reasons for that delay. The applicant's trial counsel is no longer available to appear for the applicant on the appeal because he has accepted a judicial appointment. New counsel has had to be briefed. It is necessary for the new counsel to read the entirety of the proceedings before the jury to enable him to be satisfied as to which grounds of appeal are appropriate to be pursued, and to ensure that full submissions are made in support of those grounds.
8. There is no criticism to be made, at this point in time, of the delay between the filing of the Notice of Intention to Appeal and the filing of the Notice of Appeal with the grounds specified.

An Issue of Statutory Interpretation

1. One of the grounds of appeal, which has been identified and in respect of which submissions have been provided on this bail application, is a question of fundamental statutory interpretation.
2. In R v A2; R v KM; R v Vaziri (No.2) [2015] NSWSC 1221 ("No.2"), in a lengthy judgment of over 80 pages, Johnson J set out the manner in which he proposed to direct the jury at trial with respect to the word "mutilates" as that word appears in the phrase "excises, infibulates or otherwise mutilates" in s 45(1)(a) of the Crimes Act.
3. The judgment of Johnson J on this issue of statutory interpretation is the first in a superior court in Australia. At [249] of his judgment on this issue, his Honour reduced the competing constructions of the statute to the following propositions: "(a) The Crown submission that s 45(1) extends to the causing of any injury for non-medical reasons - a construction which would pick up physical contact with the relevant part of the genital area and the causing of some harm resulting in injury of any type - this approach serves to promote the purpose or object of s 45 in prohibiting or eradicating FGM procedures generally; (b) The defence submission which would allow under s 45 the infliction of injury as part of a FGM procedure, as long as it was not serious injury which cut off, destroyed or altered radically a part of a child's genital area - this construction would allow FGM procedures which caused injury or harm, but which fell short of the proposed defence construction - this construction would not serve to promote the purpose or object of the Act which was to prohibit and eradicate FGM procedures."
4. His Honour went on to consider these competing constructions, and indicated that he preferred that advanced by the Crown and rejected that advanced by the defence.
5. His Honour noted in his judgment at [112] that in the determination of this issue, he had the benefit of detailed written submissions from the Crown and each of the accused, together with oral submissions which lasted for a full day on 19 August 2015. He also noted that he had been provided with volumes of material relied upon by the parties on the issue of statutory construction. Further supplementary written submissions were also provided.
6. It is clear from a reading of his Honour's careful and thorough judgment that the issue of statutory interpretation was novel, complex and required reference to significant extrinsic material in order to assist in the decision which his Honour reached.

Bail Act 2013 and Relevant Principles

1. Section 22 of the Bail Act provides as follows: "22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision: (a) an offence for which an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment, (b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a). (2) ... (3) Subject to subsection (1), Division 2 (Unacceptable risk test-all offences) applies to a bail decision made by a court under this section."
2. Section 22 applies to this application because this is a bail application in which there is an appeal pending in the Court of Criminal Appeal against a conviction on indictment and a sentence imposed on conviction on indictment. Accordingly, the applicant must establish that special or exceptional circumstances exist. As well, the applicant must satisfy the Court that the unacceptable risk test in s 20 of the Bail Act is satisfied.
3. Hamill J (with whom Simpson and Davies JJ agreed), said in El-Hilli and Melville v R [2015] NSWCCA 146, at [13] this: "13. Given that the "special or exceptional" circumstances requirement in s 22 replaces the show cause requirement (where applicable) and the structure of the Bail Act, the same reasoning employed by the Court of Appeal in DPP v Tikomainaleya supports the following propositions. First, where s 22 is engaged, there are two stages. The applicant must demonstrate that "special and exceptional circumstances exist justifying the [decision to grant bail]". Then the Court must apply the "unacceptable risk test" and do so by application of the exhaustive list of matters set out in s 18. The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special and exceptional circumstances, it is likely that the same material will also succeed in satisfying the unacceptable risk test. However, that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act. A case may arise where a particular matter qualifies as a "special or exceptional circumstance" and yet the application of the unacceptable risk test results in the refusal of bail. Such a case is likely to be rare because the "unacceptable risk" factors are imported in the "special or exceptional circumstances" requirement by s 22(3)."
4. El-Hilli was the first appellate decision concerning the operation of s 22 of the Bail Act. Hamill J expressed the opinion that the decisions on an earlier similar requirement in s 30AA of the Bail Act 1978, were applicable in determining the principles to be applied with respect to s 22. He then reviewed in detail those authorities and said: "24. In some cases (including one of the applications in the present case) the requirement for the appeal to have merit has been elevated to a requirement that that the appeal is almost certain to succeed. …However, I should make it clear that I do not accept the suggestion that an applicant must establish that their appeal will either "inevitably succeed" or that success is "virtually inevitable". Neither the statutory language, nor the case law, supports such a strict test. It was rejected by the Court (Simpson, Johnson and Rothman JJ) in R v Antoun. 25. ... 26. In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulious v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is "most likely" to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v The Queen at 310-311; Marotta v The Queen at 266; R v Velovski at [24]-[25]. 27. This approach also accords with the language of s 18(1)(j) of the Bail Act 2013 which provides: '18 (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division: (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success.' 28. The list of factors in s 18 is specifically brought into s 22 by sub-s (3). However, those factors are subject to sub-s (1), that is, the requirement for special or exceptional circumstances. In a case where the appeal is from a conviction on indictment, the question is whether there are special or exceptional circumstances justifying the grant of bail. 29. The language used in earlier cases cannot supplant the statutory language or the terms of the limitation created by s 22 (and s 30AA before it). "Special or exceptional circumstances" may exist in the combination of factors or in "the coincidence of a number of features": cf the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20] when dealing with the requirement to establish "exceptional circumstances" in a murder case under the 1978 Act. It is not possible to determine or predict in advance what those features may be. Two features that frequently arise are (i) the merit of the appeal and (ii) the possibility that the applicant will have served their sentence or non-parole period, or a substantial part of it, before the appeal is determined."
5. I agree, with respect, with the views of Hamill J. As well, because they represent the unanimous views of three judges of the Court of Criminal Appeal, I am obliged to apply them.

Merit of Appeal

1. Against the background of these principles, it is necessary to proceed to deal with the application by considering the merit of the proposed appeal.
2. The affidavit of Mr John Sutton, the applicant's solicitor, includes as an annexure an outline of potential grounds of appeal. As senior counsel made plain to the Court, those grounds are still to be regarded as potential grounds of appeal, and are not yet settled. However, it is clear that there are at least two grounds of appeal which are in settled form and which will be pursued. There may be others. It is sufficient for the purpose of this application that I consider these two grounds. They are: "1. The trial Judge erred in his direction to the jury in relation to the meaning of the term "otherwise mutilates" in s 45(1)(a) of the Crimes Act; and 2. The applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offenders, A2 and Kubra Magennis."
3. As to the first ground, I have been provided with 23 pages of a settled outline of submissions with respect to the error of the Judge in his direction to the jury as to the proper statutory construction of s 45(1)(a) of the Crimes Act. Included in those submissions are the following: "17. Johnson J's approach, it is respectfully submitted, ignores the immediate context of the particular words and the expression 'excises, infibulates or otherwise mutilates'. This approach is at odds with what was said in Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 at 202. 18. In particular, the gravity of the kind of injury that the other words in the subject provision connote, stand in stark contrast to his Honour's preferred characterisation of 'mutilates' as representing 'any injury to any extent'. 19. It follows that the most important indicator of meaning, statutory context (namely the overall wording of the subject provision) strongly supports the appellant's position rather than justifying the interpretation favoured by the primary Judge. 20. The appellants make the related submission that his Honour's construction of the term 'mutilates' has the effect of rendering otiose the other operative words of the subject offence provision, namely 'excises' and 'infibulates'. 21. To interpret a term and a provision so as to give it an exhaustive meaning where Parliament has deliberately inserted two other operative terms, is contrary to general principles of statutory interpretation: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 21; (1998) 194 CLR 355 at [71]; Wilson v State Rail Authority of NSW [2010] NSWCA 198 at [13]."
4. The submissions also went on to challenge the extensive material used by Johnson J as amounting to legitimate extrinsic material capable of being used in a proper exercise of statutory interpretation. The applicant submitted that Johnson J had misused the legislative history and extrinsic material in a manner that impermissibly displaced the meaning of the statutory text contrary to the decision of the High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at [39].
5. It is not for me, in determining this application, to make any comment on the argument of this ground which could be used in support of an argument made on appeal. The comments which I make are based on a limited amount of material, in the absence of full argument - particularly from the Crown - and in circumstances where an assessment of the merit of the appeal is necessary to determine the question of whether the applicant has, on the balance of probability, established that special or exceptional circumstances exist as required by s 22 of the Bail Act.
6. It is my assessment that the ground identified with respect to the correct statutory interpretation of s 45(1)(a) of the Crimes Act is not only arguable, but appears to enjoy a reasonable prospect of success. If the ground does succeed, I am also persuaded that the convictions of the applicant would need to be set aside, and perhaps, depending on the reasoning of the Court of Criminal Appeal, an acquittal may be directed.
7. The second ground dealing only with sentence, is identified as one of parity. Caution must always be exercised in interfering with a careful decision of a sentencing Judge who has sentenced all three offenders, before holding that one of the offenders has a justifiable sense of grievance. The argument simply is that the two primary offenders, A2 and Ms Magennis, who actually carried out the acts of FGM, were both permitted to serve their sentence by way of home detention, but the applicant, a secondary offender who was only concerned with conduct after the primary offences had taken place, was sentenced to full-time imprisonment. On any view, a sentence of home detention involves a greater degree of leniency than does a sentence of full‑time imprisonment. The issue is therefore whether, for the reasons which Johnson J expressed (which mainly dealt with questions of general deterrence), a court would be satisfied that there was such a discrepancy between the imposition of a full‑time term of imprisonment and home detention as would merit interference.
8. My assessment is that this ground is arguable. I do not propose to express any further opinion as to the potential strength of the argument.
9. In summary, I am satisfied that the two grounds identified are both at least arguable, and that the first ground has reasonable prospects of success.

Other Relevant Circumstances

1. It is submitted that, given the complexity of the grounds of appeal, and that the applicant's two co-accused have lodged Notices of Intention to Appeal, the probabilities are that the Court of Criminal Appeal would hear all three appeals together. That seems to me to be inevitable. The combined appeals would not be short. They would be likely to last at least a full day and perhaps into a second day. In those circumstances, I am satisfied that it is unlikely that an appeal would be listed before February or March 2017. Again, given the nature of the appeals, it is likely that the Court of Criminal Appeal would need to reserve its decision for a period of time to consider the submissions. In those circumstances, the probability is that by the time the appeal has run its course and a decision has been delivered, the applicant will have served the greater part of his non-parole period.
2. There are also subjective features to which the Court ought to have regard. The first is that the applicant speaks a dialect called Lisan Al-Dawat. It is similar to the Gujarati language. His English is very limited and he can only speak a few words. The applicant has great difficulty communicating with Corrective Services Officers, welfare officers, medical staff and other inmates. The evidence is that he cannot properly communicate what medications he needs or how urgent his need for medication is. There is only one Corrective Services Officer with whom the applicant is able to communicate in his native tongue. Recently, the applicant was threatened by a fellow inmate and forced to hand over property. Communication with Corrective Services authorities largely occurs, in the absence of that officer, with the assistance of the applicant's son.
3. The second is that the applicant is not in good health. In August 2015, a tumour was surgically removed from his spinal cord. Follow up investigations were due to be undertaken in June 2016 by means of an MRI scan. That has not yet occurred. The applicant is naturally concerned to establish whether his tumour has re-occurred. As a consequence of that tumour, and the surgical procedure, the applicant has to self-catheterise. The necessary supplies to enable him to do this in a sterile way are not readily, nor always, available whilst in custody.
4. These are matters which were available to the sentencing Judge to take into account, which he did. Nevertheless, they are continuing issues connected with the applicant's period of time in custody and matters to which the Court can have regard in considering whether there are special or exceptional circumstances.
5. The third relevant matter is that the applicant is now 60 years old, and does not have any previous record of criminal convictions. After being charged, the applicant was granted conditional bail. That conditional bail continued throughout his trial until the jury returned with a conviction. Bail was continued by Johnson J until the sentencing proceedings were determined by his judgment. Because an assessment then had to take place for the purposes of home detention, Johnson J continued the applicant's bail on the existing terms. That bail continued until 9 June 2016, when judgment No.24 was delivered. There is no suggestion that bail conditions were not complied with in all respects. As well, during the course of his bail, the applicant was permitted to travel to India and returned to Australia.
6. As a matter of general context, at the time of his arrest, the applicant, who is an Indian national, held a current Indian passport. That passport has been surrendered to the authorities. The applicant is not an Australian citizen, and is not entitled to an Australian passport. He is residing in Australia on a visa. The original visa permitted him to work as a religious priest. At the time of being charged, the applicant occupied the position of the highest religious authority for the Dawoodi Bohra community in Sydney. That position has been terminated and the applicant has not been employed in any capacity since his conviction.
7. Fourthly, there are no expressed bail concerns other than the risk of the applicant failing to appear.

Crown Submission

1. The Crown submitted that bail ought not be granted. In support of that submission, the Crown submitted that no special or exceptional circumstances are made out.
2. The Crown submitted that, although in judgment No.2, Johnson J dealt with a novel question of statutory interpretation, his Honour's judgment was a careful and thoughtful one, well-reasoned and informed and which would not easily be set aside on appeal. The Crown submitted that the chance of the applicant succeeding on the first ground of appeal is slim.
3. The Crown did not make any submission on the ground relating to parity of sentence.
4. With respect to the applicant's health status, the Crown submitted that that material was before the sentencing Judge and that nothing has changed since that time.
5. The Crown also sought to argue that, given the circumstances of the shortness of time before the expiration of the applicant's non-parole period, there was a reasonable prospect that the applicant's appeal would proceed expeditiously and be dealt with by the Court of Criminal Appeal, promptly and possibly in November 2016, without regard to the appeals of his two co-accused.
6. The Crown also contended that there had been significant delay on the part of the applicant in preparing the grounds of appeal and submissions in support of them.
7. I am wholly unpersuaded by the Crown's submissions.
8. First, I have already considered and dealt with whether the applicant has reasonable grounds of success on the appeal. I do not accept that the chance of success would be properly described as slim. Even if it was so, such a conclusion necessarily means that the applicant has an arguable case on appeal.
9. Secondly, as to the applicant's health concerns, the applicant's recent difficulties which I have described above at [31] are in addition to those considered by the trial Judge. In any event, in considering special or exceptional circumstances on this application, in my view the Court is entitled to have regard to the overall health of the applicant, even if it has been referred to by the sentencing Judge.
10. Thirdly, I have already considered the question of delay. I do not think it reasonable that the delay should be considered from the date of conviction. The correct period of time for consideration of that question commenced when the applicant's term of imprisonment was confirmed as a full-time term. There has been no undue delay since that time, particularly in light of the need to change counsel.
11. The Crown advanced an argument in writing that there was an unacceptable risk of non-appearance. The Crown submitted: "The Crown submits that there is an unacceptable risk that the applicant would not appear at Court should he be granted bail. Further, the Crown submits that there are not reasonable bail conditions which could be imposed to address the bail concerns, and therefore the applicant is an unacceptable risk. The applicant was arrested on 13 September 2013. At the time of arrest, the applicant was on his way to the Sydney International Airport in order to board a flight to India. It is noted that the applicant is an Indian national who holds a current Indian passport. … There is evidence to show that the current worldwide spiritual leader of the Dawoodi Bohra community continues to support the practice of FGM within the community. As the applicant was regarded as the head of community within Sydney, it is the Crown submission that he too continues to support the practice. Police are concerned that as a result of the beliefs within community and the status of the applicant, that community members and would in fact be obliged to assisted, the applicant in fleeing the jurisdiction if given the opportunity."
12. It is necessary to examine the underlying statements of fact asserted in these submissions with respect to the arrest of the applicant.
13. As the evidence of Detective Sergeant Eugene Steck, the Officer in Charge of the investigation, demonstrates, on the day the applicant was arrested, he had return tickets for himself and his wife to go to India. His intention, as disclosed to the Detective Sergeant at the time of his arrest, was not to flee NSW permanently, but rather to go to India to have an eye operation. After he was granted bail, in due course, the applicant did travel to India for the purpose of the eye operation, and returned.
14. As well, the applicant had not been charged with any offence at the time he travelled to the airport, he had not been informed that there was any investigation into his conduct as being an accessory after the fact to the primary offence, nor that there was any legal or other restriction on his travel. In short, I am satisfied that at the time of this proposed trip, there was no basis for any rational conclusion that the applicant was fleeing the jurisdiction to avoid apprehension with respect to the offences for which he has now been convicted. On the contrary, he was taking a planned trip for the purpose of obtaining medical treatment in circumstances where he was intending to return to Sydney.
15. It is a matter of significant concern that the Crown would advance the event of the applicant of leaving the jurisdiction in these circumstances as being a rational basis for a properly held concern about the applicant fleeing the jurisdiction. That concern has been rejected on two previous occasions by a judge of this Court as being a sufficient basis for an unacceptable risk of failing to appear. As well, the behaviour of the applicant whilst on bail even after conviction and the initial imposition of sentence, does not support this asserted fear.
16. No basis of fact was advanced for the assertion in the Crown's submissions that as a result of beliefs within the Dawoodi Bohra community and the status of the applicant, those community members would be obliged to, and would, assist the applicant in fleeing the jurisdiction. This submission is contrary to what has, in fact, occurred.

Summary

1. In summary I am satisfied that the following matters are established, and are able to be considered as special and exceptional circumstances: 1. I am satisfied that the grounds of appeal presently available are arguable and one has a reasonable prospect of success. If successful, the statutory interpretation argument would likely result in a re-trial or, perhaps, an acquittal. 2. At all times up until the imposition of the final sentence, the applicant was granted bail, and complied with all of his bail conditions. This time on bail included the applicant travelling overseas and returning in order to comply with the requirements to appear at Court. At all times the applicant has appeared at Court when required. 3. By the time any appeal is heard and determined, the substantial part, if not all, of the non-parole period of the sentence imposed on the applicant will have been served. Accordingly, if the applicant is acquitted, the acquittal would be a hollow victory. 4. Even if the appeal is dismissed, a grant of bail would not adversely affect the public interest in the fact of the convictions and their consequences. The applicant's personal circumstances, including his health and communication difficulties, strongly point to there being no public interest in his being incarcerated and serving his sentence prior to the disposition of the appeal.
2. Accordingly, I conclude that not only has the applicant demonstrated that there are special and exceptional circumstances which apply to this bail application, but he has also demonstrated that there are no unacceptable risks of the kind dealt with in the Bail Act providing that a grant of conditional bail is imposed.
3. There will be a grant of conditional bail. The conditions are as follows: 1. The applicant is to be of good behaviour. 2. He is to reside at 63 Hampstead Road, Auburn NSW 2144 and nowhere else. 3. He is to present himself at the front door of that residence at the direction of any police officer to confirm compliance with the residential condition. Such a direction may only be given by a police officer who believes on reasonable grounds that it is necessary so to do, having regard to the rights of the applicant and the other occupants of the premises to quiet enjoyment of the premises and to their privacy. 4. The applicant is to remain at that address at all times except for the following: 1. To comply with his condition of reporting to police, in which case the applicant is to proceed directly from his residence to the police station, and after reporting, is to return directly to his residence; 2. to attend any scheduled medical appointment in which event he is to remain in the company of his son, Taher Vaziri. He is to proceed directly to, and return directly from, any such appointment; 3. to attend the Mosque for Friday prayer and prayer upon any specific days of religious observance in which event he is to remain in the company of his son, Taher Vaziri. He is to proceed directly to, and return directly from, the Mosque. 1. The applicant is to report to the Auburn Police Station daily between the hours of 8am and 8pm. 2. The applicant is to appear before the Court of Criminal Appeal as required. 3. He is not to associate or communicate by any means (except through his lawyer) with his co-offenders, Kubra Magennis and A2. 4. He is not to make or attempt to make contact in any way, either directly or indirectly through a third party, and whether in person, or by telephone or other electronic means including social media with the child victims of the offences, being those children known as C1 and C2. 5. He is to surrender his Indian passport and is not to apply for any new Indian or Australia passport or for any overseas travel documents. 6. He is not to go within 300 metres of any point of overseas departure. 7. One acceptable person is to deposit $30,000 and agree to forfeit that amount in the event that the applicant fails to appear before the Court in accordance with his bail conditions. 8. Pursuant to s 26(4)(a) of the Bail Act 2013, Abbas Hussein is an acceptable person for the purpose of the above condition. 9. Condition (11) above with respect to the deposit of a cash security is specified as a pre-release requirement for the purposes of s 29 of the Bail Act 2013. It must be complied with before the applicant is released on bail.

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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: 13 September 2016