Almotared v Director of Public Prosecutions [2008] QCA 95

SUPREME COURT OF QUEENSLAND CITATION: Almotared v DPP (Qld) [2008] QCA 95 PARTIES: KOBLEN MANA ALMOTARED (applicant/appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) (respondent) FILE NO/S: Appeal No 2826 of 2008 SC No 996 of 2008 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 23 April 2008 DELIVERED AT: Brisbane HEARING DATE: 23 April 2008 JUDGES: Keane and Holmes JJA and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Application for extension of time granted 2. Appeal allowed 3. Applicant be admitted to bail on the following conditions: a. The applicant is to reside at 31/40 Glenefer Street, Runcorn in the State of Queensland unless he receives prior written permission from the Office of the Director of Public Prosecutions Queensland to do otherwise; b. The applicant must report personally to the Officer in Charge of the Upper Mt Gravatt Police Station each Monday and Friday between the hours of 8.00am and 6.00pm unless he receives prior written permission from the Director of Public Prosecutions Queensland to do otherwise; c. The applicant is to have no contact either direct or indirect with the Crown witness H or any other witness advised by the Office of the Director of Public Prosecutions Queensland to his solicitors; d. The applicant is not to commit any offences whilst -- 1 of 8 -- 2 the subject of this order; e. The applicant is to appear and surrender himself to custody at the Magistrates Court at Southport at 9.00am on Tuesday, 13 May 2008 and at all subsequent hearings or adjournments before the Court. Should the applicant at such future time be committed for a trial or sentence on the said charge this order is further conditional that the applicant surrender himself for trial or sentence at the date, time and place fixed for his trial or sentence of which notice is given to him by his solicitors, Robertson O'Gorman or the Office of the Director of Public Prosecutions Queensland; f. The applicant is not to leave Queensland whilst the subject of this order without receiving the prior written permission from the Office of the Director of Public Prosecutions Queensland to do so; g. The applicant forthwith surrender his passport to the Officer in Charge, Southport Police Station. The applicant is not to apply during the currency of his bail for any other passport; h. The applicant is not to attend any air or sea ports or other places of international departure from Australia; and i. Surety by a cash deposit in the sum of $60,000.00 is to be lodged with the Registry of the Magistrates Court at Southport CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – GENERALLY – where the applicant is charged with the offence of rape – where the applicant is a subject of the Kingdom of Saudi Arabia – where the applicant is enrolled in university study in Queensland – whether the learned trial judge erred in refusing to grant bail to the applicant Bail Act 1980 (Qld), s 16(1)(a), s 16(3) COUNSEL: A J Glynn SC for the applicant M J Copley for the respondent SOLICITORS: Robertson O'Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent KEANE JA: The applicant has been charged with the offence of rape. It is alleged that the offence was committed on 2 December 2007. The applicant applied to the Supreme Court for a grant of bail. That application was refused on 14 February 2008. -- 2 of 8 -- 3 The issue as to the applicant's bail comes before this Court as an application by him for an extension of time within which to appeal against the learned primary judge's decision. The applicant filed a notice of appeal on 31 March 2008. The late filing of a notice of appeal was evidently due to some confusion in the office of the applicant's solicitors. Having regard to the short period of delay, the absence of any fault on the part of the applicant and the absence of any prejudice to the respondent it is appropriate to grant the extension of time to enable the appeal to be dealt with on its merits. The principle contention advanced by the applicant is that the learned primary judge applied the wrong test for granting bail when refusing to grant bail. It is said that her Honour proceeded on the footing that the applicant bore the onus of showing that the risk of flight and of further offending, if he were granted bail, were acceptable. On the applicant's behalf it is said that section 16(1)(a) of the Bail Act 1980 placed the onus proof of an unacceptable risk in regard to flight and further offending upon the prosecution. I will consider this contention further after summarising the evidence before the learned primary judge. As to the charge against the applicant, the complainant is a 19 year woman who on the date of the alleged offence had evidently been drinking with two male companions. The three of them were asleep on the front steps outside the foyer of an apartment complex on the Gold Coast in which the applicant was a short term resident. Security video footage shows the applicant walking up to the complainant and assisting her to her feet and into the building at 3.56 am. The complainant says that she awoke on a bed in a room when the applicant was in the act of having sexual intercourse with her. She struggled and the applicant's penis was removed from her vagina. He then made a further attempt to insert his penis again. -- 3 of 8 -- 4 The complainant says that she fled from the unit and woke one of her friends who was asleep outside. There is evidence that she was observed to be in a distressed condition. Sperm was found in her underpants. DNA testing had not been carried by 14 February 2008. As to the applicant's circumstances, he is a male person 30 years of age. He is a subject of the Kingdom of Saudi Arabia. He is in Queensland on a scholarship from the Saudi Arabian government studying pharmacy at a university on the Gold Coast. He has lived in Australia for three and a half years. At the time of his arrest the applicant was within one year of completing his bachelor's degree in pharmacy. He has no criminal record in Australia. At the time of the alleged offence the applicant had purchased a return ticket to Saudi Arabia for the holidays. He was due to return in February 2008. The applicant offered to surrender his passport if granted bail, and the Saudi Arabian government has indicated that it will not facilitate the issue of a further passport during the currency of his bail. A cash deposit surety of $10,000 was also made available as a condition of bail. As to the decision of the learned primary judge, in relation to the risk that the applicant would fail to appear the learned primary judge said: "In considering the risk of flight I have to consider the risk of flight overseas and the risk of flight within Australia. The risk of flight overseas is probably adequately dealt with by the offer to surrender his passport and the indication from the Saudi government to which I have referred and the surety. His counsel submitted that he has a strong incentive to stay here in order to complete his university studies. On the other hand he is facing a very serious charge and the Crown case does seem to me to be a strong one at this stage. He is proposing to live in student accommodation where he would be sharing a room with another male student. I -- 4 of 8 -- 5 think there is a risk of flight at least within Australia, and I am not satisfied that it is an acceptable one." In relation to the risk that the applicant would commit an offence while released on bail the learned primary judge said: "I have also to consider the risk of re-offending. Police are investigating an earlier incident in which he allegedly exposed himself to a fellow student. Those investigations are not complete. Police found an image on his mobile phone of a man and a woman having intercourse, the woman apparently being stupefied. The identities of the man and the woman have not been established and it has not been established who created the image or who sent it to the applicant. It is difficult to assess the risk of re-offending in the circumstances, and I am very conscious of the words of Justice Thomas that no grant of bail is ever risk free. However, in a context where I am not satisfied that the risk of flight is an acceptable one, I am also not satisfied that the risk of re-offending is an acceptable one. In the circumstances I dismiss the application." On this application the applicant argues in relation to each of the risks to which her Honour referred, that the question was not whether her Honour was satisfied that the risk was acceptable, but whether the risk which would be created if the applicant were to be admitted to bail was unacceptable. On behalf of the respondent it is accepted that s 16(3) of the Bail Act, which obliges an applicant for bail to "show cause" as to why he or she should not be released, did not apply to the applicant and that the respondent bore the burden of satisfying the primary judge that there was indeed an unacceptable risk that the applicant would fail to appear and surrender into custody if released, or that he would commit a further offence or offences while on bail. The respondent argues, however, that the learned primary judge did not reverse the onus, and that her Honour was merely stating in different language that she was satisfied that the risks in question were unacceptable. I am respectfully unable to accept the respondent's submission on this point. Her Honour approached the issues explicitly on the basis that she was required to be satisfied that each -- 5 of 8 -- 6 risk was acceptable. It was simply not the case that the onus was upon the respondent to satisfy her that the risk was unacceptable. The difference between the correct approach and the erroneous approach to the assessment of risk is apt to be significant and is, I think, significant in the present case. Because of the applicant's willingness to surrender his passport, and the indication by his home government that it would not issue him with a fresh passport, the only flight risk of real concern was, as the learned primary judge appreciated, the risk of flight within Australia. In that regard there is no suggestion that the applicant has any ties at all in any other Australian State or Territory. There was also no evidence as to how the applicant might support himself if he were to flee interstate. Further, the applicant's presence can be monitored to a large extent by a reporting condition. It may I think even be said that the applicant is somewhat less of a flight risk than a Queensland resident charged with the same offence, in that flight from his situation at university would be likely to rupture the links with his home government and the maintenance and support which it provides him. However that may be, for the sake of argument I propose to proceed on the basis that the risk of flight by the applicant was no greater than would be the case with any other resident of Queensland. The respondent submitted that it was open to the learned primary judge to take the view, in the case of a Queensland resident confronted by a case as strong as that marshalled by the Crown in this case, that the risk of flight was so unacceptable as to warrant the refusal of bail. While the likelihood of flight by reason of the strength of the Crown case as a matter for assessment by the primary judge, in relation to which this Court should be show to conclude that that assessment was not reasonably open, in this case the learned Primary Judge did not conclude that she would have regarded a local resident, confronted by a case -- 6 of 8 -- 7 of the strength which the Crown can make against the applicant, as an unacceptable flight risk. It is necessary for this Court to address the real question. For my part, I am not convinced that the question posed in the correct way, having regard to the true incidence of the burden of proof, should be answered in the way the respondent contends. It may be conceded that the Crown case is a strong one but it is not, I think, so strong that the risk of flight is unacceptable. As to the risk that the applicant would re-offend while on bail, the applicant had not been charged in relation to the matters to which her Honour referred. The respondent did not seek to support this aspect of the learned primary judge's decision. The respondent was, I think, right to take that course. While it may be accepted that the allegations to which her Honour referred involved "inappropriate behaviour towards females" those allegations have not been pursued in any way. In summary, the risk of flight by the applicant was no greater than would be the case in relation to a Queensland resident charged with the same offence. It would I think be a strong thing to refuse bail to a Queensland resident because of a risk of flight interstate in such a case, and I am unable to conclude that that course is warranted by the strength of the Crown case here. As to the risk of further offending there was, in my respectful opinion, an insufficient basis to conclude that that risk was so serious as to refuse bail. In the course of argument the Court was assured by counsel for the parties that there had been no relevant change in the circumstances material to the grant of bail since 14 February 2008 save in relation to the provision of a greater cash security, and in relation to the proposed residence of the applicant should bail be granted. It is therefore convenient for this Court to move to deal with the question of bail rather than to remit the application to the Trial Division. -- 7 of 8 -- 8 I consider that the application for an extension of time should be granted and the appeal should be allowed. I consider the applicant should be admitted to bail on conditions that: he surrender his passport; not apply for any further passport; he live at the address of 31/40 Glenefer Street, Runcorn; that he not change that address without first giving written notice of the new address to the Director of Public Prosecutions; that he report twice weekly to the police station at Upper Mount Gravatt unless otherwise agreed between the hours of 8.00 am and 6.00 pm; and that there be a surety by way of cash deposit in the sum of $60,000. On that basis I would consider the application for bail should be granted and that the parties should prepare a draft order for signature by the Court. HOLMES JA: I agree. WHITE J: I agree also. KEANE JA: Mr Glynn. MR GLYNN: Your Honour, I'll have a draft order prepared. I'll have it delivered to my learned friend for initialling and then should I provide it to the Registrar, your Honour, or to your associate? KEANE JA: If you could have it sent to my associate Mr Glynn. ----- -- 8 of 8 --