Yesterday (Monday, 30 March 2020) Abdul Rakielbakhou ("the applicant") made a release application under the Bail Act 2013 (NSW). At the conclusion of the evidence and submissions I made orders allowing the application and granting bail subject to a number of conditions. Due to the busyness of the list, and the significant body of evidence adduced in this case on a novel, current and important issue, I indicated that I would provide reasons for that decision within 24-48 hours. These are those reasons.
The applicant is charged with two serious domestic violence offences that arose out of a single incident. The offences were allegedly committed against the applicant's wife and in the sanctity of her home on 26 February 2020. On the prosecution case, the incident was an ugly one and resulted in the victim suffering facial injuries. The applicant is charged with one count of common assault and one count of assault occasioning actual bodily harm. The facts sheet prepared by investigating police indicates that a neighbour or neighbours heard the applicant's wife crying for help and saying that she was being bashed. Police were called to the scene and are expected to give evidence that they also heard her in distress. They noticed a number of injuries to her face. One of the injuries was still bleeding at the time the police attended.
That fact sheet alleges:
"The accused punched the victim repeatedly to the face and body, before tackling her to the ground and continuing to punch her. The accused took hold of a hair dryer and hit the victim with the hair dryer to her face and head. The accused's assault on the victim inflicted physical injuries to her causing significant bruising and swelling around both of her eyes, a 2-3 cm laceration to her forehead, and scratches to her neck area."
The source of the particulars of the assault as alleged in the facts sheet is not completely clear. The prosecution alleged that the motive for the assault was jealousy. The applicant believed his wife was having an affair after she had exchanged telephone numbers with a real estate agent, a fact reported to the applicant by his mother.
Those are the allegations in the facts sheet. At least one of the neighbours attended the premises and was present when police arrived. She indicated the alleged victim and said "she's all bashed". The only other person present was the applicant.
Mr Rakielbakhour entered pleas of not guilty to both charges. He denied the offences when spoken to by police but provided what might be thought to be an unlikely version of events. He said that the complainant had the injuries when he arrived at home early in the afternoon and that nobody else was present over the following hours and prior to the police attendance. I say that explanation is unlikely because of the evidence that the injuries were "fresh" when the police arrived and the evidence of the neighbours as to what they heard before the police were called.
A significant problem for the prosecution is the fact that the alleged victim has indicated that she does not wish to give evidence in the case. That is not an unusual circumstance in cases of domestic violence. It is a troubling aspect of many such cases. In some bail applications it provides, counter-intuitively, a reason for hesitating before granting bail. The concern is that the psychology of the victim of domestic abuse is such that they do not want to implicate their intimate partner out of fear or out of love or loyalty. The release of the alleged perpetrator may heighten those emotions.
In the present case, the evidence went further than a simple indication that the alleged victim did not wish to give evidence. As was acknowledged by the Prosecutor, she gave a positive account that exculpated her husband and explained the injuries. Again, that is not unique in cases of intimate partner violence. However, in this case Senior Constable Anita Fogarty made a statement tendered on the bail application in which she said that the alleged victim told her on 28 February 2020 "that she fell in the shower and hit her head on the step."
In those circumstances, the Prosecutor on the bail application accepted that there would be difficulties of proof for the prosecution at the hearing. Even so, and in spite of the denials by the applicant and the exculpatory account provided by the alleged victim, the Prosecutor submitted that it would still be open to the Magistrate to be satisfied beyond reasonable doubt that the applicant assaulted his wife and caused actual bodily harm to her. I accept the thrust of the Prosecutor's submission. There appears on the evidence to be a case to answer. Even so, the strength of that case is questionable in view of the stance taken by the applicant's wife and her (probably) admissible hearsay statement that she fell in the shower.
The applicant has a relatively minor criminal history including a common assault in 2008 for which he was placed on a bond without conviction.
The applicant tendered a large amount of evidence going to various matters relevant to the determination of the bail application. That material included evidence that the applicant enjoys significant family and community support and evidence that both he and his father suffer various illnesses. There was evidence from a friend that the applicant had developed a successful business in "landscaping, pressure cleaning and house cleaning." The friend has assisted in keeping the business going but there has been a significant turndown in the business due to the applicant's incarceration and, also no doubt, due to the current international medical crisis to which I will now turn.
The applicant tendered a body of evidence concerning the current "novel corona" or "COVID-19" pandemic. The evidence touched upon the medical crisis facing Australia as well as challenges for criminal justice and prison systems in New South Wales. The evidence tendered included material published by the Commonwealth Government's Health Authorities as well as Corrective Services and Justice Health. The Prosecutor also provided two memoranda published by the Chief Magistrate. I was also provided with some newspaper articles to which I give rather less weight. However, other matters are widely known and the Bail Act allows significant flexibility in terms of the way in which a bail authority (or court) is to inform itself of matters relevant to the determination of a release or detention application.
The existence of the COVID-19 pandemic creates a challenge for the criminal justice and penal systems of a kind not experienced in recent decades, if ever, in Australian law. While New South Wales moves steadily toward a complete "lock-down" the rule of law, and the courts and lawyers who administer it, are considered to be an essential service. Mr Rakielbakhour's release application was conducted with neither the lawyers, nor the applicant or his supporters, present in court. All participants were engaged in a "virtual court room" by means of video link.
The evidence tendered in this case, the memoranda of the Chief Magistrate, and matters generally known to the Court establish the following matters relevant to Mr Rakielbakhour's application:
1. Gaols and similar institutions are particularly susceptible to the rapid spread of the COVID-19 virus. It is difficult, if not impossible, to enforce or facilitate the kinds of restrictions currently being encouraged upon people in the community. NSW Health said on 20 March 2020:
"Based on what we know so far about COVID-19 and what we know about other coronaviruses, those at greatest risk of serious infection are … people living in group settings. This includes … people in detention facilities." [1]
1. While a number of inmates have been isolated for having flu-like symptoms, at this stage there has been no confirmed case of COVID-19 inside NSW prisons. "On 28 March 2020, the first case of COVID-19 in a NSW prison was confirmed, a health care worker at Long Bay Hospital. All necessary measures have been taken to protect staff and inmates." [2] There was one reported case of a positive test for COVID-19 in a staff member at the Long Bay prison hospital. The Department acted promptly to contain that case and believes it has dealt with the problem. Ms Ghabrial told the Court there were suspected cases in Bathurst Correctional Centre although no confirmed cases. [3]
2. Inmates are currently subject to more onerous conditions of incarceration. All personal visits have been suspended and it is unclear how long that situation will prevail. It seems that there are also more occasions now when inmates are kept within their cells for extended periods. Again, Ms Ghabrial indicated "there have been lengthy lockdowns at Bathurst Correctional Centre as a result of inmates suspected of having Covid-19 (i.e., they have not been tested yet, but are currently in isolation)". [4]
3. Many court cases, including criminal cases, are being adjourned. The Chief Magistrate's memorandum of 24 March 2020 indicates in paragraph 7:
"Regrettably, it will not be feasible to hear defended hearings where the defendant is in custody. These matters will require re-listing. At such time the court will entertain an application for release recognising that a lengthy period of continuing custody in the local Court may result in a period of incarceration that would exceed the ultimate penalty that would have otherwise applied should the defendant have been found guilty of an earlier time. Matters in this category should be adjourned for not less than 8 weeks for mention only. Where the defendant is legally represented appearance may be by email." [Emphasis in original document]
1. A memorandum of 26 March 2020 confirmed the contents of paragraph 7 and noted that the 8 week adjournment would apply whether the release application was granted or not.
2. As the Prosecutor submitted, it is not clear whether the applicant's case will be caught by these memoranda. His case is listed on 10 July 2020 which is just outside the 8 week adjournment period contemplated by the Chief Magistrate. However, there is nothing to suggest that the procedures referred to in the memoranda will not continue through April, May and possibly beyond. As the Prosecutor properly and fairly conceded, it is not known whether the criminal justice system will have resumed anything approaching normality by July. The applicant cannot know whether his case is likely to be heard on the date presently allocated for the hearing. Unless there is a decrease in the spread of the virus, it may be that his case will not be heard until much later in the year.
3. It may be expected that inmates waiting in gaol will have significant anxiety levels arising from the possibility that the virus is capable of spreading quickly within the prison if any positive cases of COVID-19 emerge.
4. Part of the evidence and submissions made on behalf of the applicant demonstrated the exponential rise in the number of cases being reported in and around Australia. A website operated by the Australian Government's Health Department indicated that on 27 March 2020 there were 2,985 recorded positive tests for the virus. The same website three days later indicated that the number had increased to 4,093. [5]
5. Within New South Wales the number of confirmed cases had risen from 1405 to 1918 in the same three day period. [6]
6. The circumstance of the current medical crisis led the New South Wales Parliament to introduce emergency legislation: COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) ("Emergency Measures Act"). [7] The legislation introduces significant changes to the Crimes (Administration of Sentences) Act 1999 (NSW). It allows the Commissioner to prohibit or restrict visits to inmates, a measure that has already been taken in relation to personal visits. It also allows the Commissioner to grant early parole, that is to authorise the release of inmates earlier then the conclusion of their non-parole period. That is a radical position for the New South Wales Government to take and reflects the seriousness of the current medical crisis confronting Australia and indeed the rest of the world. It has been widely reported that Iran has released many thousands of prisoners in an attempt to contain the danger to public health and in other countries there have been outbreaks and uprisings in gaols. [8]
7. The Emergency Measures Act also makes provision for a variety of procedures calculated to ensure that some court cases are able to continue. Jury trials in New South Wales have been temporarily suspended. Most jurisdictions are attempting to conduct "virtual courts" of the kind in which we conducted Mr Rakielbakhour's release application. The new procedures are working with the goodwill of the court, litigants and the legal profession but they create delay and will almost certainly lead to a backlog of cases. A lengthy jury trial was aborted last week because a barrister was concerned about the health risks inherent in the case continuing: Kahil v R [2020] NSWCCA 56. The decision of the trial Judge refusing to discharge the jury was overturned by the Court of Criminal Appeal.
These are matters properly to be taken into account in any case where a person charged with a criminal offence is making a release application under the Bail Act. This is not to place a gloss on the exhaustive list of factors in s 18 of the Bail Act. Rather it is to acknowledge the current medical crisis and give practical effect to certain paragraphs within s 18. Without attempting to be exhaustive, the pandemic may be relevant to the following paragraphs within s 18(1):
Section 18(1)(m) says it is relevant to consider "the need for an accused person to be free for any other lawful reason". That might (or must) include the need for an applicant to protect themselves from infection and to support their family if there is evidence to support such a finding. It is relevant to the present application because of the applicant's father's ill-health.
Section 18(1)(h) is also relevant. The length of time a person will remain in custody will often be affected by the measures courts are taking to ensure that participants in litigation are safe. As has been seen, many cases have been, and will be, adjourned or delayed.
Section 18(1)(l) relates to the need for the accused to prepare for their appearance in court or obtain legal advice. At present, all legal visits in NSW prisons are being conducted by video-link. While the same is probably true of most conferences between lawyers and their clients, the facilities within the prison system must be under great strain because so many court cases are being conducted by video link and the number of available audio-visual suites is finite.
Section 18(1)(k) refers to any "special vulnerability the accused person has". While not relevant to present application, the literature published by the Health authorities suggest Aboriginal and Torres Strait Islanders are particularly susceptible to the spread of the virus.
The situation is not unique to New South Wales. Ms Ghabrial referred me to the bail application of Re Broes [2020] VSC 128 in which Lasry J made the following observations:
"35 Turning to the matter of delay and the more unusual circumstances of this application. Since the filing of this application and the affidavit material, the entire community has been overtaken by the eventuality of COVID-19, which the World Health Organisation has declared a pandemic. At the time of hearing this application there were 150 confirmed cases of people infected with this virus in Victoria and 565 cases Australia-wide. At the time of revising this ruling, the nation-wide number has grown in excess of 1,300, with over 230 confirmed cases in Victoria.
36 Dramatic steps have been taken by both the state and federal governments to endeavour to, as they say, 'flatten the curve' in relation to the spread of this virus. On Sunday, 22 March 2020, federal and state governments announced further measures restricting people's activities with a promise that additional measures will be introduced in the near future. It seems clear that there will be significant delays occasioned within the courts as a result of this virus, which may result in lengthy periods of remand.
37 In this Court and the County Court, for example, jury trials have been postponed indefinitely; primarily for the reason to avoid the assembly of jury pools, which require large numbers of people, and which, obviously, create a significant risk of the transmission of the virus from person to person.
38 At least in this Court, other measures will be taken in order to slow the spread of COVID-19, including mechanisms that will hopefully truncate hearings - indeed, hearings such as this - so that they can all be dealt with on one day. Many hearings will be conducted, even within the criminal jurisdiction, without the requirement of the personal attendance of either the accused or counsel.
39 Further, it is unknown whether there have been any instances of COVID-19 in the prison population. As I follow it, as at the time of revising this ruling, Victorian prisons do not have any cases of the virus. However, as Mr McGrath submitted, on behalf of the applicant, in addition to issues of delay, there can be no question that once the virus is discovered in any of the Victorian prisons, there will have to be a significant lockdown for a number of reasons. The transmission between prisoners will be significant and likely to occur at a much greater rate than the transmission that is occurring in the community at present. That will result in a large number of prisoners becoming quite seriously ill, depending on their age and underlying conditions. I appreciate these are matters of speculation to a degree, but the situation is sufficiently urgent to required them to be taken into account. Further bearing in mind that the entire situation may have changed again within one or two weeks.
40 Mr McGrath outlined in his submissions the fact that the applicant is relatively young and healthy, and if the applicant were to be infected by COVID-19, she would be likely to make a recovery. However, in addition to the delay of her case, she would suffer the consequences of a significant lockdown in the prison, which would have substantial effects on her and, no doubt, her relationship with her family, which would be a dramatic development for a person who had not previously been in custody.
41 In the particular circumstances that now prevail within the criminal justice system, the likelihood that the applicant will spend more time on remand than the sentence that may be imposed should she be found guilty of the charges is overwhelmingly likely, as counsel for the respondent conceded.
42 Mr Kibel accepted that the present circumstances change the dynamics of an application such as this quite dramatically. It seemed to me that were this in an ordinary application, there was an argument to be put that the applicant did not establish exceptional circumstances. However, this is not an ordinary application in an ordinary time. Mr Kibel conceded that this was so and that exceptional circumstances were established by the applicant."
See also Re Tong [2020] VSC 141 and, in relation to sentence, Brown v The Queen [2020] VSCA 60 and Sazimanoska v The Queen [2020] VSCA 66.
Re Broes was a case where the applicant had breached bail by committing a drug offence. Under the relevant Victorian legislation, she was required to establish "exceptional circumstances" justifying the grant of bail. In the present case, the applicant does not have to establish exceptional circumstances. Nor is he required to show cause why his detention is not justified. Allowing for the differences in the legislative frameworks, the observations of Lasry J are relevant to the considerations that arise under the relevant provisions of the New South Wales Bail Act.
In some cases, and depending on the circumstances and evidence in a particular case, the issues that the COVID-19 pandemic throw up will be relevant to the question of whether an applicant has shown cause why their detention is not justified: Bail Act, ss 16A-16B. In other cases, and this is one of them, the factual issues arising out of the COVID-19 pandemic will be relevant to various factors under s 18.
In the present case, and in two or three other cases decided in the virtual bail court yesterday, bail was granted upon conditions that the applicant be subject to a form of house arrest along with an enforcement condition under s 30. This meant that the applicant was required to remain at the nominated residence except for the purpose of reporting to police (where that was appropriate), attending court or attending upon doctors or counsellors. Such house arrest might also be described as "self-isolation", a practice now commonly being practised by sensible citizens all over Australia at the urging of governments at both state and federal levels.
In Mr Rakielbakhour's case, having considered all of the relevant matters under s 18, and making an informed assessment of the risks involved in his release, I was satisfied that the bail concerns raised by the prosecution were able to be mitigated by the imposition of strict conditions. Accordingly, the concerns that arose under s 17 of the Bail Act were not "unacceptable risks" for the purpose of s 19. I paid particular attention to the safety of the alleged victim, keeping in mind that her failure to co-operate with police may be indicative of the psychology of a victim of intimate partner violence a matter that militated against, rather than in favour, of the grant of bail.
No grant of bail is ever risk free. The conditions settled upon in this case mitigate the risks to a substantial degree.
Accordingly, bail was granted on the following conditions (private information redacted):
1. To be of good behaviour.
2. To live at [ADDRESS REDACTED].
3. To report to the [REDACTED] Police Station each Monday, Wednesday and Friday between the hours of 8:00am and 10:00am.
4. To appear at [REDACTED] Local Court on 10 July 2020 and on such dates and at such courts thereafter as required.
5. The applicant is not to be absent from the address at which he is required to live except as follows:
1. To report to police.
2. In the case of a medical emergency.
3. To attend any pre-arranged medical or mental health assessments or appointments, 24 hours' notice of which must be given to the Officer in Charge of Police at [REDACTED] Police Station.
4. For the purpose of working on jobs and sites for his company, [REDACTED]. The applicant is to notify the Officer in Charge of Police at [REDACTED] of the times and addresses that he is required to attend such jobs at least 24 hours before he is required to attend them.
1. Not to have any contact in any way (except through a legal representative) with [REDACTED] except:
1. In accordance with any currently existing apprehended violence order.
2. In written communications only relating to the children of the marriage.
1. Not to have any contact in any way (except through his lawyers) with any person he knows to be prosecution witness.
2. The applicant is to possess only one mobile telephone only and must notify the Officer in Charge of Police at [REDACTED] of the telephone number and IMEI number of the phone within 24 hours of his release or the telephone's connection.
3. The applicant is not to engage in any encrypted communications or possess or use any encrypted applications whatsoever.
4. The applicant is to travel from the correctional centre from which he is to be released on bail in the company of [REDACTED] or [REDACTED] or [REDACTED], one of whom must be in attendance at the correctional centre before the applicant is released.
5. Not to apply for any new passport or travel document.
6. Not to go within 1km of any international point of departure from the Commonwealth of Australia.
7. That one acceptable person is to deposit the sum of $10,000 in cash and agrees to forfeit it if the applicant fails to appear in court in accordance with his bail acknowledgement.
8. To present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.
The latter figure was provided by counsel in the course of submissions. She was reading from the Government's web-site which I gather is updated daily.
Ibid.
The Act passed both houses of Parliament on 24 March 2020 and received assent on 25 March 2020.
Amendments
31 March 2020 - Amendment to [17].
31 March 2020 - Amendment to [14].
31 March 2020 - Amendment to [14].
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: 31 March 2020