SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Al-Harazi (No 4)
Citation: / [2016] ACTSC 298
Hearing Date: / 29 September 2016
DecisionDate: / 4 October 2016
Before: / Refshauge ACJ
Decision: /

The application be dismissed

Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – special or exceptional circumstances – trial for alleged offence of murder – trialdelay – delay as a special or exceptional circumstance –whether delay of two years between alleged offence and trial is inordinate – delay not shown to amount to special or exceptional circumstances – delay not unreasonable – psychiatric or medical condition or treatment may be a considered factor for special or exceptional circumstances – a combination of circumstances may lead to special or exceptional circumstances – criteria for granting bail - interests and wishes of children highly relevant – bailnot granted – s 9C of the Bail Act 1992 (ACT) – s 22 of the Bail Act 1992 (ACT)
Legislation Cited: / Bail Act 1992(ACT)ss 5, 9C, 22, 23A, 57AA
Corrections Management Act 2007 (ACT)s 53
Crimes Act 1900(ACT)s 315
Migration Act 1958(Cth)s 155
Cases Cited: / Cooper v Corvisy [2010] ACTSC 165
DeShaneyvWinnebago County Department of Social Services 489 US 189 (1989)
Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
Estelle v Gamble 429 US 97 (1976)
In the matter of an application for bail by Allen [2009] ACTSC 64
In the matter ofanapplication for bail by Connors [2015] ACTSC 407
In the matter of an application by Costa [2013] ACTSC 15
Inthematter of a bail application by Culibik [2010] ACTSC 112
In the matter of an application for bail by Kien [2010] ACTSC 113
In the matter of an application for bail by Matthew Massey [2010] ACTSC 163
In the matter of an application for bail by Massey [2008] ACTSC 145
In the matter of application for bail byMassey(No 2) [2009] ACTSC 70
Inthe matter of an application for bail by SA [2010] ACTSC 114
In the matter ofanapplication for bail by Sebbens [2014] ACTSC 281
Re an application for bail by Anderson [2011] ACTSC 121
Re Elphick [2014] ACTSC 372
R v Al-Harazi (No 3)[2016] ACTSC 290
R v Goodwin (2009) 233 FLR 473
R vRubino [2012] ACTSC 157
R v Walmsley [2011] ACTSC 173
Saka v The Queen [2001] WASC 92
Parties: / The Queen (Crown)
Maged Mohammed Ahmed Al-Harazi (Accused)
Representation: / Counsel
Mr S Drumgold (Crown)
Mr K Archer (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused)
File Number: / SCC207 of 2015

REFSHAUGE ACJ:

1.Having been charged for the murder of his wife, Sabah Al-Mdwali, the applicant, Maged Mohammed Ahmed Al-Harazi, was to stand trial for that offence beginning on 7September 2016. The trial has now been adjourned, and any trial or special hearing will not reasonably be able to commence until sometime in early 2017, hopefully no later than March.The reasons for the adjournment are that a question has been reserved under s 315 of the Crimes Act 1900(ACT), as to MrAl-Harazi's fitness to plead. See RvAl-Harazi (No3)[2016] ACTSC 290.

2.MrAl-Harazi has now applied for bail pending the trial. The application was opposed by the Crown.

Background

3.MsAl-Mdwali died on 17 March 2015, apparently from multiple stab wounds. MrAl-Harazi was arrested later that day and has remained in custody since then. Thus, he will have been in custody for about twoyears before either his trial or special hearing can commence.

4.MrAl-Harazi was born in Yemen. It is stated in the Case Statement for the proceedings (see R v Goodwin (2009) 233 FLR 473 at 478-9; [26]-[35]), that he married his wife there in 2005. His wife and her parents migrated to Australia in 2007. MrAl-Harazi is said to have remained in Yemen initially, but after his wife returned to Yemen a short time after, they both moved to Australia together in 2008.

5.MrAl-Harazi and MsAl-Mdwali have three children – Akram, now aged nine years old, Mayasa, now aged seven years old and Kareem, now aged two years old.

6.In 2012, the family returned to Yemen to live close to where MrAl-Harazi's family lived but, MrAl-Harazi, it is said reluctantly,returned to Australia with his family in late 2013 where they have since remained.

7.On the night of his wife's death, MrAl-Harazi afterwards drove with his children to Tuggeranong Police Station early in the morning of 17 March 2015. He had his passport in the glove box of the car. At the police station, MrAl-Harazi, with Akram translating for him, told police, "My mother has been stabbed by my grandfather”.

8.Akram repeated that allegation a number of times, but more recently has told police that his father, MrAl-Harazi, had told him that his mother had been killed by his grandfather and this was why he had said that, but he now believed that it was his father who killed her.

9.Detective Senior Constable Mills, the informant, who gave oral evidence, referred to two particular incidents. While this evidence was not challenged in the hearing, the fact that this was a bail application does not mean that it is therefore accepted by MrAl-Harazi for all purposes, but I can accept it in this application.

10.The first incident was said to have occurred on 28 January 2015, when MrAl-Harazi and his wife fought over his reluctance to take his medication. His father-in-law and mother-in-law went to the family home as a result of a call from MsAl-Mdwali. MrAl-Harazi abused his father-in-law and assaulted him. He then went into the kitchen, returning with a knife. Police arrived and MsAl-Mdwali and the children left the family home with her parents.

11.The second incident was said to have occurred on 22 September 2014, when MrAl-Harazi took a video film of his house. At the time, MsAl-Mdwali had moved out, although the elder children were still there. The video showed that the contents of the house had been smashed up. The two older children, Kareem being only four months old, were shown sitting on the lounge. MrAl-Harazi asked them whether they were “for Australia or Yemen.” They replied by starting to say "Australia", but corrected themselves and, reluctantly and apparently without any enthusiasm, said, "Yemen". MrAl-Harazi asked them again and again they said without conviction, "Yemen". He asked the third time and this time the two children said, with apparent enthusiasm, "Yemen". The video was sent to MsAl-Mdwali. Police were told that MsAl-Mdwali had said that MrAl-Harazi had smashed the furniture and made the video to show that the family now had nothing in Australia and would have to return to Yemen.

12.While in custody, MrAl-Harazi has made a number of phone calls to his brother and mother in Yemen. In the phone calls to his brother, he states his wish to return to Yemen. He explains, for example, that he "arrived in this country as a man of dignity, proud in [his] personality, [his] wife, [his] children and [his] integrity”, but that his "heart" had been hurt, it made him "desperate", "destroyed [his] reputation and [his] mental state". In another he says, "I don't like to live in Australia ... It's full of problems and stress ... I want to go back to Yemen." He says he will, "try to get a visa to Saudi Arabia or Dubai.”

13.He expressed antipathy to his father-in-law and mother-in-law, saying, "they fought me and hurt me and tortured me ...my father-in-law used to humiliate me in front of people ... once my father-in-law hit me in front of people, in front of my wife and children”. In the same telephone call, he spoke of opening a corner shop in Yemen which is "better than all this suffering here, and being away from my homeland”.

14.He states his innocence of the charge a number of times and, unsurprisingly, expresses his upset at the separation from his children, whom he says he wants to bring up and start a new life "either going to Sydney to live with him or go back to Yemen".

15.In another call, he expresses concern that his father-in-law, whom he clearly dislikes, has committed serious crimes in Yemen, punishable by lengthy prison sentences, perhaps for conspiracy with police to "fix things up and even get themselves out of it", presumably meaning the killing of MsAl-Mdwali, whose death, he says, her father caused.

16.In calls to his mother, he refers to wishing to return to Yemen. He expresses his deep feelings for his children and how he suffers being in custody and being separated from them; his "heart aches" for his children and he says he constantly thinks about them. He expresses his frustration at being in custody which he describes as "bleak, horrible, indeed suffering", saying, "I have had enough and can't tolerate this any longer." He says that, once released he should return to Yemen with his children. He says, "I never wanted this country right from the start. As you know, they forced me to come here."

17.MrAl-Harazi had also sought to place the telephone contacts of some of the Crown witnesses on to his contact list at the Alexander Maconochie Centre, but those persons have refused to accept any calls from him.

18.The three children are presently living with their maternal grandparents.

19.The Director-General of the Community Services Directorate has parental responsibility under a Care and Protection Order for the children until they are 18 and has placed them with their grandparents in what is known as “kinship care”.

20.The older children are presently attending school. They were, until April 2016, also receiving counselling at Melaleuca Place, a Trauma Recovery Centre conducted by the Office of Children, Youth and Family Services.It is, as I understand it, a facility to support children recovering from abuse and neglect, with an aim to prevent severe and complex psychological or behavioural problems, or both. It provides services which facilitate healing, recovery, and positive life outcomes based on evidence informed intensive therapeutic services. This assistance has reduced their experiences of nightmares and helps to give them a sense of safety by building a secure attachment with their maternal family members.

Matters of Concern

21.A number of matters of concern about bail being granted to Mr Al-Harazi were expressed by police and other agencies. Detective Senior Constable Mills expressed concern about the possibility of MrAl-Harazi absconding.

22.He said that he had made inquiries of officers of Australian Border Force, who had advised him that, while police had possession of MrAl-Harazi’s passport, he may be able to obtain another one. There is neither an Embassy nor a Consulate for the Republic of Yemen in Australia.MrAl-Harazi could, Detective Senior Constable Mills was advised, apply at an overseas consulate or through the relevant offices in Yemen and, if granted a passport, the Australian authorities would not be informed.

23.He accepted, however, that were MrAl-Harazi to be granted bail, he would be placed on a watch list so that his name and photograph would be circulated to immigration officers at points of departure, requesting that he be prevented from departing this country were he to attempt to do so.

24.It also appeared that MrAl-Harazi’s visa would be cancelled. I am not clear whether this would make him an illegal non-citizen. If so, that would render him liable for deportation but, of course, the ACT Director of Public Prosecutions could obtain, without apparent difficulty, a criminal justice stay visa under s 155 of the Migration Act 1958 (Cth).

25.The officers of Care and Protection of the Community Services Directorate had also expressed concern about the possibility of MrAl-Harazi being granted bail because of interviews they had had with him.

26.In their interviews, when MrAl-Harazi had been told of the Care and Protection Order, he stated that, when released, he would take the children back to Yemen "as it is the best place for them to reside", despite the Order.

27.MrAl-Harazi knows where the children are presently residing, and Care and Protection officers are concerned that in the community, MrAl-Harazi could jeopardise the present kinship care arrangement.

Victim's Concern

28.Section23A of the Bail Act 1992(ACT)requires the prosecution to tell the Court of any concerns of which the prosecution is aware that have been expressed by a victim.

29.A victim is defined in the Dictionary to the Bail Act in a way that would include the children of MsAl-Mdwali and MrAl-Harazi.

30.The children were said by Detective Senior Constable Mills to be feeling safe and secure in their present situation, but have expressed fears for their safety were MrAl-Harazi to be released from custody. He said that MrAl-Harazi’s release would be likely to cause them "a lot of trauma". This is, in fact, based in part on the incidents to which I have referred above (at [10]-[11]).

31.Akram has also stated to his case manager at Victim Support ACT that he did know who had killed his mother but that "my father told us what to say”. He also said that he and his sister were sleeping in the same bed and that when his father came to put Kareem to bed with them, he had blood on his shirt.

32.Both Akram and Mayasa have expressed to officers of Care and Protection Services their views and wishes in clear terms. They do not wish to have any further contact with their father due to the circumstances in which they entered care.

33.An officer of Care and Protection Services indicated his opinion that, were MrAl-Harazi to be released from custody, it is likely that the current stability of the children will be "severely impacted" which may "require further involvement in respect of their trauma". Further, Care and Protection Services will not approve any contact by MrAl-Harazi with his children as that is regarded as not being in their best interests.

Mental Health

34.I explained in R v Al-Harazi (No 3)at [3]-[6], that MrAl-Harazi had been examined by a psychiatrist, DrAbdulatif Burhan. He found MrAl-Harazi to have a "chronic and recurrent mental illness".

35.He appears not to have a confirmed diagnosis, but believed that he had a Schizoaffective Disorder, although it was possible that he had Psychotic Depression or aBipolar Affective Disorder. He considered that other diagnoses, that were "of interest in this case", were a Post-Traumatic Stress Disorder, a Dissociative Disorder, and a Substance Abuse Disorder.

36.In any event, he considered that MrAl-Harazi was currently suffering from "persistent psychotic symptoms and mild depression."

37.It was submitted by MrK Archer, counsel for MrAl-Harazi, that he required treatment and that such treatment would be provided more effectively in the community.

38.It was highly desirable, he submitted, that a qualified clinician who spoke Arabic be available and, preferably, one who had some experiences and understanding of the Yemeni culture and circumstances.

39.DrBurhan is so qualified but he practises in Wollongong. MrAl-Harazi has an Arabic speaking General Practitioner in Canberra, DrJamal, with whom he appears to have a good relationship, but who is not a qualified psychiatrist.

40.DrBurhan's opinion was as follows:

I am of the opinion that MrAl-Harazi is a case of chronic and recurrent mental illness, mainly episodic in nature at the beginning, but in the last two years it appears that it has taken a chronic course with significant residual symptoms inter-episodically. These symptoms are still active now, and despite what some may consider as a distressing matter, being in gaol, however, the gaol is also containing him from being exposed to a variety of stressors and stimulation. It is possible that he even could deteriorate further outside of the gaol or a psychiatric unit due to the absence of the structure unless he is adequately treated.

The Law

41.Bail in this Territory is generally regulated almost exclusively by the Bail Act. Thus, s57AA of this Act abolishes any inherent power in this Court to grant bail.

42.Under s 5 of the Bail Act, the Court may grant bail to an accused person, such as MrAl-Harazi, in relation to any period when he is not required to attend Court. The Act then regulates that grant of bail.

43.In the first place, s 9C of the Bail Act provides that, where a person is charged with, inter alia, murder, as is MrAl-Harazi, the Court may not grant him bail unless special or exceptional circumstances exist favouring the grant of bail.

44.If I find such circumstances, then I am required to have regard to the matters set out in s22 of the Bail Act in making the decision to grant bail. That sectionrelevantly provides:

22 Criteria for granting bail to adults

(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider –

(a) the likelihood of the person appearing in court in relation to the offence; and

(b) the likelihood of the person, while released on bail –

(i) committing an offence; or

(ii) harassing or endangering the safety or welfare of anyone; or

(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and

(c) the interests of the person.