Raad v DPP [2007] VSC 330

1 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.

2 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.

3 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.

4 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.

5 In Tang, Beach J spoke of "normal" delays which occur between arrest and committal, and committal and trial and contrasted such delays to those which he described as "inordinate" which might amount to exceptional circumstances. Mr Barns submitted that here the delay may be so great that there must be a risk that Raad will serve longer on remand than he would in serving any sentence imposed upon him if he is ultimately convicted.

6 With respect to Raad's conditions of detention Mr Barns pointed out that those conditions, which are now well known to the court from other applications in these proceedings, are extremely onerous, involving, as they do, confinement in conditions normally reserved for criminals convicted of the most heinous crimes - convicted contract killers and the like. The court has heard and accepted evidence in other cases that the conditions in the Acacia Unit in Barwon Prison are such as to pose a risk to the psychiatric health of even the most psychologically robust individual. Close confinement, shackling, strip searching and other privations to which the inmates at Acacia Unit are subject all add to the psychological stress of being on remand, particularly as some of them seem to lack any rational justification. This is especially so in the case of remand prisoners who are, of course, innocent of any wrongdoing. In due course, it may become necessary, in another context, for the court to revisit this issue but, having regard to my conclusions in this case, it is not appropriate to do so at present.

7 Dr Lester Walton, a forensic psychiatrist, gave evidence as to Mr Raad's physical, as well as his psychological, health. He examined him on 17 August 2007. It would appear that Mr Raad has a physical condition which involves low iron levels in his blood for which he has been investigated, although not to the point where any conclusion has been reached as to why this condition exists. This is partly, at least, because an endoscopy procedure commenced at St Vincents in March 2007 had to be abandoned when Raad was affected by severe bradycardia, his pulse dropping to about 30 beats per minute. The cause of this bradycardia has not been established so that his medical state remains uncertain. His brother died of coronary artery disease at age 23 in 2003, which may or may not suggest some congenital problem, but however that may be, at the moment no definitive diagnosis of Mr Raad's problem has been made.

8 Psychologically Dr Walton regards Mr Raad as being at risk of slipping into a depressive state brought about by the conditions in which he is being held and his circumstances generally. He may even become suicidal. He is not currently prescribed antidepressant medication but such may become necessary. Dr Walton described Mr Raad in terms of "fading hope".

9 Mr Barns made a number of submissions as to the case against Mr Raad. He argued that Raad is on an outer fringe of the case against his co-accused; that the evidence does not implicate Raad very much in the activities of the Benbrika group and that in any event he never swore allegiance to Benbrika by giving him the bayat. Mr Barns argues that there is no evidence of Raad's active participation in the group. The Crown case is, thus, somewhat less serious than it might be in the case of others of the accused, argued Mr Barns.

10 As far as Mr Raad's personal circumstances are concerned evidence was lead from a proposed surety, a Mrs Ramadan, who, with her husband, is prepared to put their house up as security if Raad is released on bail. Mr Yousef Hussein, an electrician, gave evidence that he would employ Mr Raad as an electrician if he was bailed. Mr Barns also pointed to Mr Raad's family situation which he submitted was stable and provided a strong tie to the jurisdiction.

11 Mr Maidment SC opposing bail on behalf of the Crown relied upon an affidavit sworn by the informant Mr Ardley, a Federal Police Officer. This affidavit was unfortunately somewhat tendentious and descended to polemic in support of the deponent's opposition to Raad's application. Such an affidavit is of little use in a court on any application, including one related to bail. Affidavits should be confined to facts to which the deponent can swear. They should eschew opinion and never contain argument.

12 That said, the affidavit does set out the Crown case against Raad. It is seldom appropriate to comment extensively on the strength of the Crown case on a bail application for obvious reasons. It is sufficient for present purposes to say that case must not be assessed as certainly not weak having regard to the objective facts and the inferences which will be available from them. Its relative seriousness may be another matter, but not a relevant matter here having regard to the policy behind s 15AA of the Crimes Act 1914 (C'th).

13 As far as delay is concerned, Mr Maidment pointed out that Raad's trial has, in fact, commenced. This is, of course, correct both in law and in fact, although this insight does not rob Mr Barns' submissions on this point of all their efficacy. It has been a long time since Raad was arrested and may still be many months before the case against him is concluded. But having regard to the complexities of it as they have now emerged it cannot be said that that circumstance is, in this case, exceptional. Terrorism cases are going to be, of their nature, long and involved. So much has become clear, even from the relatively little experience of such cases in this country to date. Nor does Mr Raad's health combined with the circumstances of his detention and the delay to which I have referred together make up the exceptional circumstances necessary to overcome the statutory presumption against bail.

14 I accept Mr Maidment's argument that Mr Barns' submission as to the length of Raad's possible sentence being less than his possible remand period should be rejected. Proper consideration of the maximum sentences provided by the statute and such experience as already exists in respect of sentences passed in respect of terrorism offences suggests the contrary.

15 Mr Raad's personal circumstances have nothing of the exceptional about them. Many remand prisoners are in the same situation. Of course that situation would have been of greater relevance had the court been able to find exceptional circumstances so as to justify bail.

16 The applicant not having discharged the onus cast upon him by s.15AA of the Crimes Act 1914, his application for bail is dismissed.

[1] (2006) VSC 8

[2] (1995) 83 ACrimR 593