This article is from the Australian Property Journal archive
DETAINED Australians Matthew Joyce and Marcus Lee are a step closer to returning home, after winning their appeals in the Dubai Court of Appeal.
Joyce and Lee have been acquitted on Sunday, with the appellate court overturning an earlier Dubai Criminal Court of First Instance judgment, which found the pair guilty of bribery and fraud, over a $14 million Dubai Waterfront land deal involving Sunland.
Dubai Waterfront is a development by Nakheel, a state-owned property developer.
In May this year, Joyce along with Angus Reed were found guilty of fraud and sentenced to 10 years jail. In addition, they were ordered to repay DHS44 million and an additional fine of DHS44 million, which meant that after serving out his sentence, Joyce must pay the $AU25 million before he can be released.
Joyce said the fine amounted to a life sentence in jail because he did not have $25 million. Reed was sentenced in absentia, but the Dubai government never sought an extradition.
At the same time, the Ruler’s Court acquitted Marcus Lee and Anthony Brearley. However the Dubai Public Prosecutor immediately appealed the decision.
Yesterday after more than 50 court hearings over almost five years, the Dubai Court of Appeal has dismissed the DPP’s appeal and confirmed Lee’s innocence of all charges.
In addition, the Court of Appeal has acquitted Joyce and Lee.
Although it is a monumental victory for the detained pair, they are not free to return to Australia immediately, because prosecutors still have up to 30 days to appeal to Dubai’s Court of Cassation, the last remaining legal avenue, equivalent to the High Court of Australia.
It has been reported that the DPP is considering appealing Joyce and Lee’s acquittal.
Lee said he hopes the Australian government will lobby to ensure no further appeals are lodged.
“This is the best possible outcome. It is all we could have ever hoped for,” Lee said in a statement.
“This is the correct result and we thank the Dubai Appeal Court judges for their verdict.
“We simply hope that we will now be allowed to return to our families in Australia and resume our lives after almost five years of constant anxiety, stress and hardship,” he added.
“Although we appreciate all of the contact we have received from Australian Government officials, we now also call on the Australian Government to make representations on our behalf at the highest levels in Dubai and the UAE to ensure this clear acquittal is no accepted [by the Dubai Authorities and Prosecutor], and no further appeals are lodged
“Julie and I desperately want to be able to see our families again,” Lee said.
Lee’s Dubai-based lawyer, Ali Al Shamsi from Al Shamsi and Partners Dubai said that it is clear Marcus worked hard for his employer Nakheel and followed all procedures to the letter and for that Marcus and his wife Julie have had to face the criminal courts in an action he should never have been included in.
“I have seen the stress this has taken on Marcus and Julie for almost five years and pray that Marcus and Julie are now able to get on with their lives, see their families again, and for Marcus to be able to return to work soon,” Al Shamsi said.
The family have been forced to sell everything they owned including their family home to meet the bail conditions and pay their legal and living expenses in Dubai. They have been represented by Shand Taylor Lawyers on a pro bono basis since 2009.
Lee’s Australian lawyer John Sneddon of Shand Taylor Lawyers said in a statement “I really couldn’t see any legal basis for the appeal but you never stop worrying about the prospect of a wrong decision or miscarriage of justice,”
“I have seen the physical and mental impact this has had on Marcus and Julie first hand. Marcus has been fighting for his innocence for almost 5 years and Julie has supported him on every step of that journey. They are absolutely exhausted. They are sick, they are tired and they have lost everything they ever owned. It is a testament to their character that they have been able to keep going for 5 years. I am proud to have represented them.
“I therefore urge the Dubai authorities to remove Marcus from the case now and let him come home. Any further appeals would be devastating. We have now had two emphatic acquittal verdicts this year and Marcus was also exonerated in the report prepared by the expert committee from the Court of His Highness Sheikh Mohammed bin Rashid Al Maktoum in April.
“I also hope that the many recent representations made by the Australian government to Dubai and the UAE’s leaders are not disregarded. In recent months, my clients’ plight has been raised with the Dubai and UAE authorities by Prime Minister Abbott, former Prime Minister Gillard, the former Foreign Minister Bob Carr and the former Attorney General Mark Dreyfus. There have also been numerous representations made by Australia’s Ambassador to the UAE, Mr Pablo Kang,” Sneddon said.
“I am totally overwhelmed by today’s acquittal – it has been a very emotional day for our family,” Joyce told the Sydney Morning Herald.
“It is just an enormous relief that the truth has emerged through the Dubai justice system. There is now a period of 30 days for any appeal but I am hopeful that today’s verdict will be accepted and we will be free to go home. I understand that my passport will be returned shortly – all I’m focused on now is returning home and restarting our lives.” Joyce said.
Over the last five years, the detained pair have spent nine months in jail and more than three-and-a-half years under house arrest.
Last month Sunland, which claimed it was duped by the land deal, decided not to take its appeal against a Supreme Court of Victoria – Court of Appeal judgment to the High Court.
The Court of Appeal also ordered the company to pay the costs, which amounted to $5.74 million. The Court of Appeal Judges said the company should have known its appeal was “hopeless”.
The Court of Appeal Judges said, “In our view, the question of whether a special costs order for costs in the appeal should be made turns on whether Sunland, having had the benefit of a trial judgment, knew or should have known that the appeal had no chance of success in the sense that (even if an incidental error in the reasoning was made out) it would be unable to alter the result below.
“Sunland submits that the fact that, first there was no suggestion in this Court’s reasons that the appeal was hopeless and secondly that the appeal involved large and complex litigation, occupied four days of hearing time and the judgment was lengthy, all weigh against a special costs award being made.
“Sunland further submits that this Court’s reasons in some aspects differed from those of the trial judge, and identifies several examples. We are not persuaded that the examples given assist the appellants in establishing that their appeals had merit. The question is whether (even if in fact unsuccessful in the result) the appeals had a prospect of success,”
“In our view, it is open to the Court to find that Sunland ought to have known its appeal was hopeless. Sunland ought to have realised that it would fail at the first hurdle. Even if it could overcome the first by succeeding on its claim that it pleaded a lesser right, then it would have failed at the second, or at the third hurdle.
“We also consider that Sunland’s appeal against the costs judgment of the trial judge had no chance of success,” The Judges said.
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