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Supreme Court of Victoria |
Last Updated: 27 September 2018
AT MELBOURNE
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IN THE MATTER of an Application for Bail by NASSER ALSULAYHIM
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Bail – Charges of rape, sexual assault by compelling sexual touching, rape by compelling sexual penetration, sexual assault, detention for sexual purposes, false imprisonment and unlawful assault – Requirement to show a compelling reason exists that justifies grant of bail – Whether a compelling reason established – Whether unacceptable risk – Compelling reason established – Not unacceptable risk – Bail granted – Bail Act 1977, ss 4C and 4E.
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APPEARANCES:
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Counsel
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Solicitors
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For the Crown
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Mr J Cain, Solicitor for Public Prosecutions
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For the Applicant
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Doogue + George
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1 The applicant is currently facing charges of unlawful assault, sexual assault, sexual assault by compelling sexual touching (two charges), rape by compelling sexual penetration (three charges), rape (three charges), false imprisonment (two charges), and detention for a sexual purpose (two charges). The charges arise out of events alleged to have occurred on 29 April 2018, involving the one complainant.
2 The applicant was arrested on, and has been in custody since, 9 July 2018. On 21 August 2018, the applicant filed an application for bail in this Court. The applicant has previously been refused bail, in the Magistrates’ Court, on 23 July 2018.
3 Having been accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — that is, rape (and also rape by compelling sexual penetration and detention for a sexual purpose)[1] — pursuant to s 4C of the Act, the Court must refuse bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.
The alleged offending
4 The applicant and the complainant are both international students. The Crown case is that at approximately 4:00 am on 29 April 2018, the complainant was approached by the applicant whilst in the vicinity of university accommodation in which they both resided separately. The applicant allegedly told the complainant that he was looking for ‘some fun’ and ‘a good night’, and invited the complainant back to his apartment.
5 During the course of ensuing conversation, the complainant offered to perform oral sex on the applicant. Both men then went to the applicant’s apartment. Upon arriving at the apartment, they proceeded to the bedroom, where the complainant commenced performing oral sex on the applicant whilst simultaneously masturbating.
6 In summary, the Crown case is that the applicant became aggressive toward the complainant, telling him that he had to stop because he (the applicant) ‘wasn’t gay’. It is alleged that the applicant proceeded to slap, push and strangle the complainant, before forcing the complainant’s head toward his penis so that the complainant could not breathe properly.
7 Subsequently, it is alleged that the complainant was pushed into the bathroom by the applicant and made to masturbate over the toilet until he ejaculated. During this time, the applicant is alleged to have repeatedly hit the complainant’s ‘behind’, despite objections from the complainant.
8 The Crown alleges that the complainant was later subjected to further strangling, slapping and forced oral sex in the applicant’s bedroom, and that attempts made by the complainant to leave were thwarted by the applicant. It is the complainant’s evidence that, later during the course of the alleged events, he made it to the front door of the apartment, but was blocked by the applicant who told him that he could not leave until he ‘finished him off’.
9 The Crown case is that the applicant proceeded to force the complainant to perform oral sex on him, holding the complainant’s head so he could not move away, and then made the complainant masturbate him. The Crown further alleges that the applicant moved his penis and ejaculated into the complainant’s mouth, before opening the front door and pushing the complainant out of the apartment.
10 Later that morning, the complainant reported the matter to a customer service coordinator employed at his accommodation. The complainant detailed the sexual interaction he alleged occurred with the applicant. The complainant said he did not wish to lodge an official complaint. According to the customer service coordinator, the complainant said that because the applicant had told him to leave immediately after the incident, the complainant did not think that the applicant would realise that anything was wrong with what happened. In her statement, the customer service coordinator said:
I asked [the complainant] explicitly whether he felt that he had been sexually assaulted or harassed or not. His response at the time was no.
11 On 24 May 2018, the complainant reported the alleged incident to police. On 9 July 2018, the applicant was arrested at Tullamarine Airport upon returning from Saudi Arabia. He subsequently provided a ‘no comment’ record of interview, save to concede that he had invited the complainant to his apartment.
Applicant’s background
12 The applicant is 31 years of age. He has no criminal history, and there are no other outstanding charges against him.
13 The applicant is a Saudi Arabian citizen, currently in Australia pursuant to a student visa. He has been in Australia since February 2017. He is married with two children. His wife, children, parents and siblings all reside in Saudi Arabia.
14 The applicant is a doctoral candidate, having successfully completed his doctoral candidature during the 2017 and the first semester of 2018. If granted bail, the applicant intends to resume his research and studies. Between June 2017 and July 2018, he has returned to Saudi Arabia to visit his family three times.
15 The applicant is in receipt of a scholarship from the government of Saudi Arabia. This pays his tuition fees, accommodation and a living allowance. The applicant is a full-time employee of the Institute of Public Administration in Saudi Arabia and is on study leave for three years. During this period, he has been paid part of his salary as an employee, which money is used to support his wife and children. Since arriving in Australia, the applicant has acquired ‘a substantial friendship group particularly among fellow Saudi students and their families’. He has continued to receive support from those friends while on remand.
Applicant’s material and contentions
16 The application for bail is supported by an affidavit affirmed by the applicant’s solicitor, Andrew George. The affidavit deposes to the various background matters to which I have referred. Mr George also deposes to having contacted the relevant coordinator at the Melbourne Magistrates’ Court about the prospective date for a contested committal. Mr George was told that a two-day contested committal would likely be listed four months after the committal mention (5 October 2018). Mr George’s enquiries with criminal listings at the County Court suggest that, for a seven-day trial, there would likely be a nine-month delay between the initial directions hearing and a first trial date. Mr George deposed that the result of the advice he had received was that a likely trial date was ‘at least 16 months after initial remand’.
17 In his notice of intention to make application for bail, the applicant identifies the following grounds on which bail is sought to be granted:
1. That the applicant can show compelling reasons.2. Strength of the prosecution case.
3. Delay.
4. Stable and supervised accommodation.
5. Absence of prior convictions.
6. Full-time studies.
7. Availability of surety.
18 The applicant submitted that he is not a ‘flight risk’, in circumstances where he is without a passport — which fact is known by immigration authorities and the Saudi Embassy. The applicant, it was submitted, has a ‘significant self interest in remaining in Australia undertaking his doctoral studies’. He has no prior convictions of any kind and ‘wants to defend his reputation’. Additionally, a surety is available which, it is submitted, would ameliorate any risk of flight.
19 The applicant contended that the Crown case is weak — being word on word, with the complainant having made statements to the customer service coordinator that he did not feel he had been sexually assaulted or harassed, and also that the applicant might not realise that anything was wrong with what had happened.
20 A compelling reason justifying the grant of bail was said to be found in the weakness of the prosecution case, the likely delay between initial remand and trial, the applicant’s stable environment, full-time studies and absence of any criminal history, and the availability of a surety and other conditions capable of ameliorating risk. In his affidavit, Mr George proposed the following bail conditions:
(a) a condition as to residence;(b) reporting to police as required;
(c) a curfew between 11:00 pm and 6:00 am;
(d) the surrendering of passports, with the applicant not to apply for any travel document or attend any point of international departure;
(e) the applicant not ‘contact[ing] or hav[ing] another contact any prosecution witness except the informant’; and
(f) ‘any other conditions considered appropriate by the Court’.
Respondent’s material and contentions
21 The respondent opposed bail, relying upon an affidavit of Carlin Grant, a solicitor employed in the Office of Public Prosecutions. Mr Grant deposes that the informant opposes bail, considering the applicant to pose an unacceptable risk of flight if he were to be released on bail.
22 The informant’s position is that the applicant has not shown a compelling reason justifying the grant of bail. The proposition that the prosecution case is not a ‘strong’ case is contested. It is asserted that the complainant has maintained consistency in his retelling of the incident to witnesses and police, and that weight should be given to the complainant’s disclosures to the witnesses.
23 As to the risk of failing to answer bail, the informant notes that enquiries with Australian Border Force reveal that ‘Border Force cancellations are currently assessing the [applicant’s] suitability to remain in Australia based on the nature of the charges’. The informant notes that the applicant may be assessed as unsuitable to remain in Australia and deported ‘not being put before the courts in relation to the allegations’.
24 The informant also says that there is a flight risk, with the applicant having no ties to the Australian community and his family residing in Saudi Arabia. It is alleged that the applicant has ‘previously bragged about having money’, which ‘police believe will assist his ability to leave Australia’.
25 In relation to the applicant’s proposed residence (if bail is granted), the informant made enquiries, before this morning’s hearing, with the property manager of the residence proposed in Mr George’s affidavit. Those enquiries revealed that the residence was already occupied by other people, and that the applicant would not be able to stay there. This morning, the applicant proposed another address. Such enquiries as the informant was able to be made this morning, about that address, did not disclose any unsuitability.
Analysis
26 Section 4C of the Act requires this Court to refuse bail to the applicant unless ‘satisfied that a compelling reason exists that justifies the grant of bail’.[2] The applicant bears the burden of satisfying the Court as to the existence of a compelling reason.[3] In considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’ — being, amongst other things, the matters set out in s 3AAA of the Act.[4]
27 The expression ‘compelling reason’ was considered in Re Ceylan.[5] In that case, the Court held:
(1) For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.(2) It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.
28 The test in Ceylan was whether there was compelling reason why an applicant’s detention in custody was not justified. Section 4C of the Act requires a compelling reason ‘that justifies the grant of bail’. While the statutory language is slightly different, the expression ‘compelling reason’ remains. Having considered s 4C in context, there is no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression ‘compelling reason’. Further, the presence of the indefinite article in s 4C before the words ‘compelling reason’ does not mandate any different approach, to the issue of whether bail should be granted, from that described in Ceylan. While the indefinite article was not present in the former s 4(4) of the Act, nothing suggests that its insertion was intended to limit an applicant’s ability to rely on all of the circumstances of the case to satisfy the compelling reason test.[6] Indeed, to the contrary.[7]
29 Put shortly, the applicant in the present case, if he is to be successful, must establish a compelling reason (in the sense of a reason that is forceful and therefore convincing) that justifies the grant of bail. Moreover, consistently with what was said in Ceylan, a compelling reason can be established by the combination of a number of circumstances – being circumstances relating to the strength of the prosecution case against the applicant, the personal circumstances of the applicant and all of the other matters now referred to in s 3AAA of the Act.
30 In my view, the applicant has established a compelling reason justifying the grant of bail. It is not appropriate for me to express a definitive view about the strength of the Crown case. That said, there are clearly disputable aspects of the case. Moreover, on the material filed in this Court, it cannot be said that the Crown case is an overwhelming one. The strength of the Crown case is a relevant circumstance in determining whether there is a compelling reason justifying the grant of bail.[8]
31 The applicant has no prior criminal history and there will be a substantial delay before any trial is listed for hearing. Those matters, coupled with the strength of the Crown case and the applicant’s background (to which I have already referred) lead me to conclude that there is a compelling reason justifying the grant of bail. In coming to that conclusion, I have had regard to the guiding principles set out in s 1B of the Act, which principles include ‘taking account of the presumption of innocence and the right to liberty’.[9] The question now becomes whether the applicant (or more particularly his release on bail) is an unacceptable risk as described in s 4E of the Act.[10]
32 The respondent contended that the applicant’s release on bail would constitute an unacceptable risk that he would ‘fail to surrender into custody in accordance with the conditions of bail’.[11] Two points were relied upon: first, that the applicant may be deported prior to trial; and secondly, that the applicant would simply flee the jurisdiction.
33 The informant’s concern that the applicant would be deported prior to trial is without relevant foundation. That concern fails to have regard to the provisions of div 4 of pt 2 of the Migration Act 1958 (Cth) (‘the Migration Act’). Section 148 of the Migration Act provides for the granting of a ‘criminal justice stay certificate’. A criminal justice stay certificate may be granted by an official for the State of Victoria who has been appointed by the relevant Commonwealth minister.[12] If a criminal justice stay certificate is in force, ‘the non-citizen’ cannot be removed or deported.[13] Subject to an appropriate official of the State of Victoria (highest ranking member of the police force, Director of Public Prosecutions or Attorney-General) giving a criminal justice stay certificate, there is no realistic prospect that the applicant could be deported prior to his committal or any subsequent trial.[14]
34 Turning now to the applicant’s risk of flight, in my view, any such risk can be ameliorated by the imposition of appropriate bail conditions as to a surety, residence, curfew, reporting to police, surrendering of passports and travel documents and the like. In the result, I am persuaded that there should be a grant of bail on a surety in the amount of $200,000 on the following conditions:
Conclusion
35 The applicant will be admitted to bail on the above conditions.
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[1] See items 9, 10 and 12 of Schedule 2 of the Act.
[2] Section 4C(1) of the Act.
[3] Section 4C(2) of the Act.
[4] See s 4C(3) of the Act.
[5] [2018] VSC 361 (‘Ceylan’).
[6] See s 3AAA and 4C(3) of the Act, s 37(c) of the Interpretation of Legislation Act 1984 and Ceylan [2018] VSC 361 [46].
[7] Ibid.
[8] See ss 3AAA(b) and 4C(3) of the Act.
[9] Ceylan [2018] VSC 361 [32].
[10] See ss 4C(4) of the Act.
[11] See s 4E(1)(iv) of the Act.
[12] A person eligible for appointment is the Attorney-General, the Director of Public Prosecutions or the highest ranking member of the police force in Victoria (see s 144).
[13] See s 150 of the Migration Act.
[14] See further, R v Sahhitanandan [2018] VSC 550 [36].
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2018/570.html