REGINA v Charbel RAHME [2003] NSWCA 135

New South Wales Court of Appeal

CITATION : REGINA v Charbel RAHME [2003] NSWCA 135 HEARING DATE(S) : 16 May 2003 JUDGMENT DATE : 16 May 2003

JUDGMENT OF : Mason P at 1; Beazley JA at 20; Ipp JA at 21 DECISION : Bail revoked.

CATCHWORDS : CRIMINAL LAW - BAIL - CONVICTION IN DISTRICT COURT - INTENTION TO APPEAL - BAIL ACT 1978, S30AA - "special or exceptional circumstances" - appeal must be most likely to succeed - intended appeal not of this category - bail revoked (ND) PARTIES : REGINA v Charbel RAHME FILE NUMBER(S) : CA 40386/03 COUNSEL : Appellant: P Calvert Respondent: G Scragg SOLICITORS : Appellant: S E O'Connor, Solicitor for Public Prosecutions Respondent: Nyman Gibson Stewart

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0426 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40386/03

MASON P BEAZLEY JA IPP JA

Friday 16 May 2003 REGINA v Charbel RAHME JUDGMENT

1 MASON P: Mr Charbel Rahme, whom I shall refer to as the offender, was tried on indictment in the District Court. The indictment contained seven counts as follows: 1. Between about 4th January 2001 and 8th April 2001, at Sydney in the State of New South Wales, did have sexual intercourse with N, a child then between the age of 10 and 16 years, namely, of the age of 15 years. 2. Between about 4th January 2001 and 8th April 2001 at Sydney in the State of New South Wales, did supply a prohibited drug, namely, cocaine. 3. Between about 4th January 2001 and 8th April 2001, at Sydney in the State of New South Wales, did cause N, a child then under the age of 18 years, namely, of the age of 15 years, to participate in an act of child prostitution with a person whose name is unknown. 4. Between about 4th January 2001 and 8th April 2001 at Sydney in the State of New South Wales, did receive certain money knowing that such money was derived from an act of child prostitution. 5. Between about 4th January 2001 and 8th April 2001 at Sydney in the State of New South Wales, was a person capable of exercising lawful control over certain premises, namely, the "Delarose Escort Agency" located at 551 Princes Highway, Rockdale, in which N, a child then under the age of 18 years, namely, of the age of 15 years, participated in an act of child prostitution. 6. Between about 4th April 2001 and 8th April 2001 at Sydney in the State of New South Wales, did assault N, thereby occasioning to her actual bodily harm. 7. Between 4th April 2001 and 8th April 2001 at Sydney in the State of New South Wales, did detain N with intent to hold her for his advantage. 2 Following a lengthy trial and a lengthy period of deliberation by the jury, he was acquitted on counts two and six, and found guilty on the remaining counts. He was convicted pursuant to the jury's verdicts. 3 The conviction was entered on 26 March, we were informed, when bail was initially refused. On 8 April there was a hearing before the trial judge, Judge Woods QC. On that occasion bail was granted on conditions. The sentencing proceedings are fixed to come before his Honour on 30 May. It is most unfortunate that we do not have the record of the proceedings on 8 April. However, we have been informed that his Honour proceeded on the basis that he was told that an appeal against the conviction and any ensuing sentence would be lodged and that it would be based, among other things, upon the verdicts being unreasonable. 4 The matter comes into this Court pursuant to a practice whereby a judge of the Supreme Court, invited to exercise that Court's power to review a bail decision of a District Court judge in a matter such as the present, refers the matter to this Court. The Supreme Court's jurisdiction to entertain this application comes from the combination of ss45(1) and 48(1)A(4) of the Bail Act 1978. According to s48(3), the review of the decision is to be by way of rehearing, and evidence or information in addition to or in substitution for the evidence or information given or obtained on the making of a decision may be given or obtained on the review. 5 The various counts on which the offender stood charged all related to his dealings with a complainant who, at the relevant time in early 2001, was aged fifteen. The Crown case relevant to the offences on which he was convicted all related in various ways to the fact that the offender either had intercourse with the complainant himself and/or caused her, being a child under the age of eighteen, to become a prostitute at a brothel of which he was a manager. 6 The primary Crown case, we were informed, proceeded on the basis that the offender met the complainant at Strathfield station on 4 January 2001, arranged to take her to his home, where she stayed for a period of about a month and then, a sexual relationship having occurred between the two in the meantime, arranged for her to be taken to the brothel, where she worked as a prostitute for a period of time. 7 There was evidence which was used in support of counts three, five and seven, as I understand it, to the effect that the offender used threats and, by other conduct, brought about the situation that the young girl was unable to leave the brothel or to get away from her role as a prostitute there for a period of time. 8 It is common ground that there was evidence capable of going to the jury on the various counts on which the offender was convicted. The summing up of Judge Woods directed the jury that they were to consider the counts separately, and that the jury were entitled, indeed bound to form their own view of the facts in a situation where the credit of the complainant and of the offender were significant matters. 9 His Honour made it very clear to the jury that, in his view, the jury should acquit on counts one, two, three, six and seven. He told them this in strong terms while indicating, as he was bound to in the circumstances, that the decision remained theirs. The jury did not take this advice. The basis upon which he gave them that indication appears on the face of the summing up and is the primary material relied upon as the basis for the argument that the foreshadowed appeal on the ground of the verdict being unreasonable is likely to succeed. 10 In essence, it relates to the problem for the Crown case on all of the counts, particularly the ones to which I have made particular mention, stemming from telephone records showing that the complainant telephoned her family home at an unlisted number on the evening of 4 January 2001. This was the date on which, on her account, she was met at the station and taken to the offender's home, where she stayed for a period of about a month. 11 There was evidence stemming from those phone records and evidence of a man who was an associate of the offender which the jury were entitled to consider as casting significant doubt upon that aspect of the Crown case. Nevertheless, the Crown at trial and before us has argued that the jury were entitled to find that the complainant was perhaps mistaken about the date and/or that there is an explanation for the phone calls consistent with the Crown case that the offender was guilty on all of the counts for which he was convicted. 12 Two of the counts, namely counts four and five, were not within the list of primary counts on which the trial judge told the jury that the only sensible verdict was not guilty. His Honour indicated to the jury that if they found the Crown case not established on counts one, two, three, six and seven for the reasons indicated, then there would be difficulties with counts four and five. Nevertheless, his Honour reminded the jury (as we have also been told) that there was some independent corroborating evidence as regards those counts. 13 The basis upon which it has been indicated that an appeal referable to those counts would succeed is in part the inconsistency of the verdicts stemming from the acquittal which, it is said, will flow as regards counts one, two, three, six and seven, and the leaving on foot of the verdict of guilty on counts four and five. It has also been submitted that the convictions on counts four and five would go in any event on the basis of the verdict being unreasonable. 14 Judge Woods correctly directed himself on the basis that section 30AA of the Bail Act produced the primary focus for attention in the circumstances before him. While that section in terms limits the power of a court to grant bail if an appeal is pending, and while no appeal is yet pending because the sentencing process has not been completed and, in any event, a notice of appeal has not yet been filed, this Court's decision in R v Wilson (1994) 34 NSWLR 1 demonstrates why s30AA is in effect engaged. 15 That section provides that where an appeal is pending against a conviction, or a sentence passed on conviction on indictment, bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail. Implicit in the provision is the assumption that the relevant conviction resulted in a sentence of imprisonment for which bail pending appeal would be needed. If the convicted offender is at liberty then there is no point in considering bail. 16 By way of exegesis of s30AA, this Court said that special or exceptional circumstances in the context of that section would only be established if the relevant appeal would be most likely to succeed. It is not enough that there was an arguable case in the appeal. Based on the material to which we have been taken, including the directions of his Honour, I do not consider that the appeal would be most likely to succeed as regards the conviction on counts four and five. It is unnecessary in those circumstances to consider the situation referable to the other counts on which the offender has been convicted. Four and five alone and in combination indicate convictions for very serious offences for which, in the circumstances, a sentence of full time custody seems well nigh inevitable. 17 Whatever problems exist with respect to the other counts on which the offender has been convicted, I am not persuaded on the material put before us today that the putative appeal would be most likely to succeed. In saying that, obviously there is no issue estoppel on that point, and clearly we have only been taken through the material on a lesser basis than the Court of Criminal Appeal would. But nevertheless, it is our function to determine the bail decision in accordance with the Bail Act and in light of the fact that conviction has been entered following the jury's verdict. 18 In my view, bail should not have been granted and in light of the position that now presents itself, the bail should be revoked. I have given some thought to whether the lapse of time since the decision was made and the relative imminence of the ultimate sentencing decision mean that the Court should withhold intervention in this matter. However, it does seem to me that Parliament has made its position very clear in s30AA, and it was incumbent on Judge Woods in the circumstances and in light of the guidance in Wilson's case to have acted otherwise than his Honour did. 19 In my view, the orders that I therefore propose are that the bail is revoked and the offender is ordered to be committed to prison. 20 BEAZLEY JA: I agree. 21 IPP JA: I agree. 22 MASON P: That is the order of the Court.