Citation: R v Raad Fajloun [2007] NSWDC 379
Court: District Court of New South Wales
Date: 13 December 2007
Judge(s): Cogswell SC DCJ
Background
The accused had been convicted by a jury the previous month of two serious offences: invading his wife's residential unit and kidnapping and detaining her. No bail application had been made immediately after the verdict, and he had remained in custody since that time.
At the December hearing, he applied for bail through counsel. Two main arguments were advanced: first, that he required further psychiatric assessment best facilitated by his being at liberty in the community; and second, that he had significant family and community ties in New South Wales.
The Crown opposed the application on two grounds, pointing to a risk of flight and, importantly, to the ongoing security of the victim, who was the accused's wife.
Legal Issues
- Whether the need for further psychiatric assessment, including a report from a forensic psychiatrist, justified releasing the accused on bail pending sentence
- Whether the accused's community and family ties constituted sufficient grounds for bail following a jury conviction on serious offences
- Whether the security and safety of the victim weighed against the grant of bail
Decision
The court accepted that further psychiatric evidence was needed, and had already vacated the sentencing date for that reason. However, it was not satisfied that the accused being in the community was necessary to obtain that evidence. Arrangements had already been made for the forensic psychiatrist, Dr Allnutt, to assess the accused in custody, and the court was satisfied that a forensic psychiatrist would be capable of conducting such an assessment in a correctional facility.
On the victim's security, the court noted that arrangements protecting the victim had changed as a result of the accused being in custody, meaning her circumstances were no longer as secure as they had been before his imprisonment. This weighed materially against release.
The court acknowledged the accused's substantial family ties but found that community ties alone did not warrant bail in the circumstances. The court observed that a custodial sentence was likely following conviction for two serious offences, a prospect the accused's own counsel acknowledged realistically. The preparation of the sentencing case would not be prejudiced by the accused remaining in custody.
For these reasons, the application was refused.
Orders Made
• The bail application is rejected
• The hearing date for sentence proceedings is vacated
Key Takeaways
- Refusing bail after a jury conviction for serious offences, the District Court found that community and family ties, while genuine, were insufficient on their own to justify release.
- A convicted person's claim that psychiatric assessment is better conducted in the community will not readily succeed where a qualified forensic psychiatrist can conduct the assessment in a custodial setting.
- The security of a crime victim is a distinct and weighty consideration in post-conviction bail applications, particularly where the victim's protective arrangements have been altered by the accused's imprisonment.
- Where a custodial sentence is the likely outcome following conviction, that prospect bears on the bail calculus, even before sentencing has occurred.
- Preparation of sentencing submissions is not, without more, a basis for bail where counsel and experts can access the accused in custody.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW)
Cases cited: None cited in the judgment.