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Bail

Updated: Jun 3


Bail, Bail Application, Show Cause, Release application

Published by Geoff Harrison | 10 July 2023


The current bail laws are based upon a risk assessment and presumptive based model as opposed to the previous presumption based model in the Bail Act 1978. Under the current Bail Act 2013 ('The Act)' certain offences are listed as Show Cause offences (s16B(1)) where an accused is required to Shows Cause as to why his or her detention is not justified (s16A(1)). Whilst the rules of evidence do not apply under the Act (s31), the burden of proof for any decision made under the Act is on the balance of probabilities (s32(1)). If the offence charged is not a Show Cause offence or if an accused has shown cause then the court decides the question of bail (release application s49) in regards to the bail concerns and as to whether any unacceptable risk can be mitigated or not via bail conditions. The Bail concerns (s17) are as follows:


"bail concern" is a concern that an accused person, if released from custody, will--

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.


In assessing the bail concerns under Division 2 of the Act, the court is only to consider the matters raised in s18 of the Act (below). If any bail concern/s can be addressed/mitigated via bail conditions (s20A of the Act ) then the accused is to be admitted to conditional release on those bail conditions. If the bail authority determines that there is an unacceptable risk on an assessment of the bail concerns bail must be refused. If the matter was a Show Cause matter and the person shows cause that his or her detention is not justified, this is not relevant to the determination of whether or not there is an unacceptable risk (s19(3) of the Act).


The court is to refuse to hear further release applications unless the accused can show grounds for the making of a further release application. Grounds for making a further release application include, that material information is to be presented that was not presented to the court in the previous application or that circumstances relevant to the grant of bail have changed since the previous application was made (s74(3) of the Act). As to what may amount to a change in circumstance or material information is a question of fact and degree as noted by Garling J in R v BNS [2016] NSWSC 350 at [43-44]:


43. The purpose of s 74 of the Bail Act is not to give an applicant the right to a second hearing of a bail application simply because a lawyer thinks that they might put a better or more persuasive argument to the Court than that put on an earlier occasion. On the contrary, s 74 addresses the issue by first requiring a court to refuse to hear a further release application unless particular grounds are established. Relevantly, in this case, those grounds are that material information is available which was not presented earlier, or that circumstances relevant to the grant of bail have changed.


44. ...


45. The change in the identity of a surety and a change in the amount offered by the surety are not always to be regarded as a change of circumstances relevant to the grant of bail, nor are they necessarily always to be regarded as material information relevant to the grant of bail. It is always a question of fact and degree. A court needs to assess, in the context of the seriousness of the charge and all of the other circumstances relevant to a bail application, whether a change in the identity of a surety and the sum being offered are “material”.


During the period following conviction and prior to sentence, if an accused will be sentenced to imprisonment of full-time custody the accused is to be refused bail unless they can establish special or exceptional circumstances (s22B of the Act). This section was considered in: R v Isaac [2023] NSWSC 22 and DPP (NSW) v Hayne [2023] NSWSC 37.


Other Sources:



Cases:



____________________________________________________________________


16 FLOW CHARTS--KEY FEATURES OF BAIL DECISIONS


(1) The flow charts illustrate the key features of bail decisions under this Act.


(2) Flow Chart 1 illustrates the show cause requirement (set out in Division 1A), which applies only to show cause offences.


(3) Flow Chart 2 illustrates the unacceptable risk test (set out in Division 2) as it applies to all offences, other than offences for which there is a right to release.


(4) In the flow charts--

"conditional release" means a decision to grant bail with the imposition of bail conditions.

"unconditional release" means a decision--

(a) to release a person without bail, or

(b) to dispense with bail, or

(c) to grant bail without the imposition of bail conditions.


Flow Chart 1 Show cause requirement


Bail, Bail Application, Release Application, Show Cause


Flow Chart 2 Unacceptable risk test


Bail, Release Application, Show Cause, Bail Application

16A ACCUSED PERSON TO SHOW CAUSE FOR CERTAIN SERIOUS OFFENCES


(1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.


(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test--all offences).


(3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.


16B OFFENCES TO WHICH THE SHOW CAUSE REQUIREMENT APPLIES


(1) For the purposes of this Act, each of the following offences is a

"show cause offence" --

(a) an offence that is punishable by imprisonment for life,

(b) a serious indictable offence that involves--

(i) sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years, or

(ii) the infliction of actual bodily harm with intent to have sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years,

(c) a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence,

(d) any of the following offences--

(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm,

(ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,

(iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying, manufacturing or giving possession of a pistol or prohibited firearm or a firearm part that relates solely to a prohibited firearm,

(e) any of the following offences--

(i) a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon,

(ii) an indictable offence that involves the unlawful possession of a military-style weapon,

(iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,

(f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,

(g) an offence under Part 9.1 of the Commonwealth Criminal Code that involves the possession, trafficking, cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,

(h) a serious indictable offence that is committed by an accused person--

(i) while on bail (whether granted under this Act or a law of another jurisdiction), or

(ii) while on parole (whether granted under a law of this State or another jurisdiction),

(i) an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order,

(j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,

(k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section,

(l) a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under--

(i) this Act, or

(ii) Part 7 of the Crimes (Administration of Sentences) Act 1999 , or

(iii) the Criminal Procedure Act 1986 , or

(iv) the Crimes (Sentencing Procedure) Act 1999 .


(2) In this section, a reference to the facts or circumstances of an offence includes a reference to the alleged facts or circumstances of an offence.


(3) In this section--

"firearm" ,

"firearm part" ,

"prohibited firearm" and

"pistol" , and

"use" ,

"acquire" ,

"supply" or

"possession" of a firearm or firearm part, have the same meanings as in the Firearms Act 1996 .

"prohibited weapon" and

"military-style weapon" , and

"use" ,

"buy" ,

"sell" ,

"manufacture" or

"possession" of a prohibited weapon, have the same meanings as in the Weapons Prohibition Act 1998 .

"serious indictable offence" has the same meaning as in the Crimes Act 1900 .

"serious personal violence offence" means--

(a) an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more, or

(b) an offence under a law of the Commonwealth, another State or Territory or any other jurisdiction that is similar to an offence under that Part.


17 ASSESSMENT OF BAIL CONCERNS


(1) A bail authority must, before making a bail decision, assess any bail concerns.


(2) For the purposes of this Act, a

"bail concern" is a concern that an accused person, if released from custody, will--

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.


(3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.


(4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).


18 MATTERS TO BE CONSIDERED AS PART OF ASSESSMENT


(1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division--

(a) the accused person's background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether the accused person has a history of violence,

(e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),

(f) whether the accused person has a history of compliance or non-compliance with any of the following--

(i) bail acknowledgments,

(ii) bail conditions,

(iii) apprehended violence orders,

(iv) parole orders,

(v) home detention orders, good behaviour bonds or community service orders,

(vi) intensive correction orders,

(vii) community correction orders,

(viii) conditional release orders,

(ix) non-association and place restriction orders,

(x) supervision orders,

(f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,

(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,

(q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code),

(r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism,

(s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.


(2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered--

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 ,

(b) the likely effect of the offence on any victim and on the community generally,

(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.


BAIL ACT 2013 - SECT 19 Refusal of bail--unacceptable risk


(1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.


(2) For the purposes of this Act, an

"unacceptable risk" is an unacceptable risk that the accused person, if released from custody, will--

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.


(3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.


(4) Bail cannot be refused for an offence for which there is a right to release under Division 2A.


BAIL ACT 2013 - SECT 20A

Imposition of bail conditions


(1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns.


(2) A bail authority may impose a bail condition only if the bail authority is satisfied that--

(a) the bail condition is reasonably necessary to address a bail concern, and

(b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and

(c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and

(d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and

(e) it is reasonably practicable for the accused person to comply with the bail condition, and

(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.


(3) This section does not limit a power of a court to impose enforcement conditions.

Note : Enforcement conditions are imposed for the purpose of monitoring or enforcing compliance with other bail conditions. Section 30 provides for this type of bail condition.



22B LIMITATION REGARDING BAIL DURING PERIOD FOLLOWING CONVICTION AND BEFORE SENTENCING FOR CERTAIN OFFENCES


(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court--

(a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b) on a detention application made in relation to the accused person--must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.


(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified.

(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.


(4) This section applies despite anything to the contrary in this Act.


(5) In this section--

"conviction" also includes a plea of guilty.

Note--:

"Conviction" is defined in section 4(1) to include a finding of guilt.


31 RULES OF EVIDENCE DO NOT APPLY


(1) A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence.


(2) This section does not apply--

(a) to proceedings for an offence in relation to bail, or

(b) to proceedings under Schedule 2 (Forfeiture of security).


74 MULTIPLE RELEASE OR DETENTION APPLICATIONS TO SAME COURT NOT PERMITTED


(1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.


(2) A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application.


(3) For the purposes of this section, the grounds for a further release application are--

(a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) circumstances relevant to the grant of bail have changed since the previous application was made, or

(d) the person is a child and the previous application was made on a first appearance for the offence.


(4) For the purposes of this section, the grounds for a further detention application are--

(a) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(b) circumstances relevant to the grant of bail have changed since the previous application was made.


(5) In this section,

"court" does not include an authorised justice.



______________________________________________________________________________


Zahed v R [2023] NSWCCA 86 (19 April 2023)


Court of Criminal Appeal


Supreme Court

New South Wales

Case Name:

Zahed v R

Medium Neutral Citation:

[2023] NSWCCA 86

Hearing Date(s):

20 March 2023

Date of Orders:

20 March 2023

Decision Date:

19 April 2023

Before:

Price J, N Adams J, Yehia J

Decision:

Application for bail refused

Catchwords:


CRIMINAL LAW – bail – appeal bail – release application – where charges not yet certified and charge certificate not yet filed – show cause offences – strength of prosecution case – requirement for medical treatment – cause shown – unacceptable risk – strong connections with organised crime – unacceptable risk of committing a serious offence –unacceptable risk of failing to appear – unacceptable risk of interfering with witnesses – bail refused

Legislation Cited:

Bail Act 2013 (NSW), ss 16A , 19, 31, 32, 67


[REDACTED]


Crimes Act 1900 (NSW), ss 18, 86


Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), s 5


Criminal Procedure Act 1986 (NSW), ss 55, 62, 66, 68

Cases Cited:

Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606


D108 v R [2023] NSWCCA 28


Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83


R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152


Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75

Category:

Principal judgment

Parties:

Tarek Zahed (Applicant)


Rex (Respondent)

Representation:

Counsel:


Mr P Lange (Applicant)


Mr D Scully (Respondent)


Solicitors:


One Group Legal (Applicant)


Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2023/53400

Publication Restriction:

In unredacted form, restricted to the parties and the NSW Crime Commission, until further order. The redacted version is published below.

Decision under appeal:


Court or Tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75

Date of Decision:

10 February 2023

Before:

Wilson J

File Number(s):

2022/353309

JUDGMENT


1. THE COURT: On 20 March 2023, this Court heard and refused a release application made by Tarek Zahed (‘the applicant’). The applicant is charged with the murder of Yousef Assoum on 10 December 2014, contrary to s 18 of the Crimes Act 1900 (NSW) and with Mr Assoum’s kidnapping (specially aggravated) on the same day contrary to s 86(3) of the Crimes Act.


2. The applicant has been refused bail since his arrest on 29 August 2022. Following two unsuccessful applications for bail in the Local Court, a release application was heard by Wilson J on 2 February 2023, with judgment reserved. Her Honour refused bail on 10 February 2023 (see Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 (‘Zahed’)). This Court’s jurisdiction to hear the release application is founded on s 67(1)(e) of the Bail Act 2013 (NSW), as a bail decision has been made by the Supreme Court.


3. There are two co-accused, namely Abdul Zahed (the applicant’s brother, charged with murder and specially aggravated kidnapping) and Triantafolis Vlangos (charged with accessory after the fact to murder).


4. These are our reasons for refusing bail:


Legal principle


5. The relevant legal principles were recently summarised in D108 v R [2023] NSWCCA 28 by Beech-Jones CJ at CL at [28]:

“The interrelationship between the necessity to show cause and the demonstration of the existence of unacceptable risk of a bail concern materialising was outlined in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 (“Tikomaimaleya”). It suffices to state that, where the show cause test applies, the Court must apply a two-stage test. The first is to determine whether or not the accused person has shown cause “why his or her detention is not justified” (s 16A(1)). The second stage arises if cause is shown, as the court must then assess whether or not the person’s release raises any bail concerns (s 17(1); s 16A(2)) and, if so, determine whether there is an unacceptable risk of those concerns materialising (s 19). A bail concern is a concern that the person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence (s17(2) and s19(2)). In relation to the first stage, the justification or otherwise for a person’s detention is to be determined by consideration of all the circumstances whereas the unacceptable risk test requires that consideration only be given to the factors in s 18 (Tikomaimaleya at [24]‑[26]), although it “may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test” (Tikomaimaleya at [24]).”


6. In the present application, s 16A of the Bail Act applies to both charges. Murder, which is an offence punishable by imprisonment for life, is referred to in s 16B(1)(a), and s 16B(1)(h)(ii) applies to each charge as the applicant was on parole at the time of the alleged offending. The applicant must show cause why his detention is not justified before the unacceptable risk test is considered.


Background


7. The proceedings against the applicant are presently in the Local Court as committal proceedings under Chapter 3 of the Criminal Procedure Act 1986 (NSW) (‘the CPA’). A fundamental requirement of committal proceedings is the filing of a charge certificate setting out the offences that are to be proceeded with and the service of the charge certificate by the prosecutor on the accused person.[1]

8. Division 4 of Chapter 3 of the CPA makes provision for charge certificates. Of particular relevance to the applicant is s 66(2)(a), which imposes an obligation on the prosecutor to certify in the certificate that:

“[T]he evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person.”


9. The failure of the prosecutor to file and serve a charge certificate may result in the discharge of the accused person. Section 68 of the CPA is as follows:

68 Failure to file charge certificate

(1) This section applies if the prosecutor fails to file and serve, or cause to be served, a charge certificate before—


(a) the day that is 6 months after the first return date for a court attendance notice in the committal proceedings, or


(b) any later day set by the Magistrate for doing those things.


(2) The Magistrate must—


(a) discharge the accused person as to any offence the subject of the committal proceedings, or


(b) if the Magistrate thinks it appropriate in the circumstances of the case, adjourn the committal proceedings to a specified time and place.


(3) In determining what action to take, the Magistrate is to consider the interests of justice.


...


10. In the proceedings against the applicant, the Crown prosecutor has been unable to certify either of the charges and a charge certificate has not been filed. The Crown prosecutor’s inability to certify the charge certificate arises from [REDACTED].


11. [REDACTED].


12. The Crown’s position is that [REDACTED], the charge certificate cannot be certified.


13. Following an application by the Crown, the Local Court made orders pursuant to s 45(4) of the CC Act that [REDACTED]. The Magistrate’s task is then to determine, after examining the evidence, whether “the interests of justice so require” that the evidence be made available to the applicant’s lawyers and the Crown.


14. This Court was informed by the Crown that it is expected that the Magistrate will deliver a ruling in the first week of April 2023.


15. On 28 February 2023, Swain LCM extended the time for the charge certificate to be certified, filed, and served to 26 April 2023 pursuant to s 68(2)(b) of the CPA.


16. In the release application before Wilson J, the Crown emphasised the importance [REDACTED]:

“[S]o far as we can tell, [REDACTED], as I frankly accepted in the submissions, we have no case.”[2]

Material tendered on behalf of the applicant


17. The applicant’s tender bundle of 87 pages included proposed bail conditions, various affidavits, and medical material. Four affidavits were sworn by Mohammad Chahine, the applicant’s solicitor. In an affidavit sworn on 12 September 2022, Mr Chahine refers to the applicant’s multiple requests to see a doctor, for medical treatment and pain relief, which he states have been unanswered.


18. The bail conditions that were proposed included a surety of $800,000, electronic monitoring, residence at a specified address in Victoria, house arrest conditions, daily reporting, non-contact with witnesses, and non-association with “any known OMCG member or any OCN member”.


The statement of police facts


19. The statement of police facts (‘SOF’) served on the applicant is annexure ‘B’ to the affidavit of Alexandra Katherine Pearson, a solicitor employed in the Office of the Director of Public Prosecutions, which was read in the release application.

Overview of the Crown case


20. The Crown, in written submissions in this Court, helpfully provided an overview of its circumstantial case. The overview refers to particular paragraphs of the SOF. The following is extracted from the Crown’s written submissions:


[REDACTED]


The police brief


21. Ms Pearson’s affidavit annexed material from the police brief of evidence. [REDACTED].


22. [REDACTED].


Further material


23. Ms Pearson’s affidavit included the applicant’s criminal history (annexure ‘F’) and a letter from the officer in charge of the investigation, Detective Senior Constable Matthew Fitzgerald (annexure ‘K’).


24. The applicant’s prior criminal history as an adult includes a conviction in 2001 for the offence of maliciously causing a dog to inflict actual bodily harm, for which he was sentenced to 8 months’ periodic detention. In 2001, he was also convicted and fined $400 for contravening an apprehended violence order. In 2004, he was sentenced to 5 years’ imprisonment with a non-parole period of 3 years for maliciously inflicted grievous bodily harm. He was also sentenced to 2 years’ imprisonment for the ongoing supply of prohibited drugs, with an offence of supply prohibited drug (indictable quantity and not cannabis) taken into account on a Form 1.


25. In 2011, the applicant was sentenced to 8 years’ imprisonment with a non-parole period of 5 years for discharging a firearm with intent to cause grievous bodily harm. He was on parole for this offence at the time of the alleged murder.


26. In 2020, the applicant was sentenced to imprisonment for 20 months and 12 days with a non-parole period of 15 months and 9 days for dealing with property with a value of $100,000 suspected of being the proceeds of crime. He was sentenced concurrently to 16 months’ imprisonment with a non-parole period of 12 months for wilfully making a false declaration.


27. In 2021, the applicant was sentenced to an 18 month community corrections order (‘CCO’) for doing an act intending to pervert the course of justice, which was varied on appeal to a 9 month CCO.


28. DSC Fitzgerald’s letter records the strong opposition by police to the applicant’s release application. He notes that the applicant has a lengthy criminal history and states that, at the time of the murder, the applicant was on parole. He further states:

“[The applicant] has a long and ongoing involvement with the organised criminal group the Comancheros. [The applicant] is a high-ranking member of the Comancheros Organised Crime Motorcycle club and is well connected in this criminal network. [The applicant] is the National Sgt at Arms. [The applicant] is supported by criminal associates and family with access to funds which would allow [the applicant] to live abroad. This backing of financial support, coupled with the likelihood of an extended custodial sentence if convicted would make [the applicant] an extreme flight risk.”[3]


29. Annexure ‘L’ to Ms Pearson’s affidavit is a further statement from DSC Fitzgerald. He states that following the applicant’s discharge from hospital on 20 June 2022, the applicant was driven to Mascot Airport where he was assisted onto a private plane and flown to Essendon Airport in Victoria. Relevant photographs were annexed to the statement.


Serious Crime Prevention Orders


30. On 8 December 2021, N Adams J made a serious crime prevention order within the meaning of s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (‘the CSCPO Act’) in respect of the applicant. The Commissioner of Police had sought the orders which were initially opposed by the applicant but were resolved by way of consent orders. Her Honour, however, was independently satisfied of the matters in s 5(1) and made the orders sought. Her Honour referred at [10] to the evidence of the Comanchero OMCG and their members engaging “in the supply and distribution of prohibited drugs and the possession and use of firearms and other weapons”, and to “an extensive documentary history of violence including shootings in public places”. Her Honour’s reasons for making the orders included the following at [34]-[35]:

“I am satisfied that the defendant's position of seniority is such that the nature of the criminal conduct he could sanction might include serious offences of violence on behalf of the OMCG. I also note Detective Groenewegen’s evidence that, by reason of his association with the OMCG, he could have knowledge of illegal conduct and be in a position to conceal such conduct from the authorities, including the destruction of evidence or influencing of witnesses.

The Commissioner also relied on the defendant's lengthy history of criminal offending, including violent offending, in addition to his involvement with the Comancheros. The defendant’s long-standing association with and involvement in the Comanchero OMCG, his seniority within the group and his lengthy history of violent offending leads me to conclude that he is likely to continue to be involved in serious criminal activity.”[4]


The applicant’s submissions


31. The central point of the applicant’s argument was the lack of strength in the Crown case. In written submissions, the applicant submitted that the Crown case was “doomed to fail” and referred to the Crown’s concession before Wilson J which has been quoted at [16] above.


32. The applicant submitted that significant portions of the SOF were mere conjecture for which there was no objective evidence [REDACTED].


33. In oral submissions in this Court, Mr Lange, the applicant’s counsel, contended that the Crown’s overview of its case, with the possible exception of paragraph ‘m’, did not demonstrate that the applicant had a case to answer on the charges of murder and specially aggravated kidnapping. Mr Lange submitted that the Crown’s case against the applicant was confined to an offence of being an accessory after the fact.


34. Whilst Mr Lange accepted that the SOF [REDACTED], he argued that there was neither evidence that was admissible, nor might become admissible against the applicant. He submitted that even if the material was [REDACTED].


35. Mr Lange contended that [REDACTED] should not be taken into account as the [REDACTED] and, [REDACTED], the Crown had been unable to certify the charges.


36. Mr Lange emphasised that the common law does not sanction preventative detention. He submitted that the Court would not conclude that a person’s detention is justified in circumstances where the prosecution concedes that there is no viable case but hopes that there may be at some future time.


37. The applicant also pointed to his medical condition and the nature of his custody as matters demonstrating that he had shown cause why his detention was not justified. The applicant submitted that his need for specialist medical attention because of the injuries he suffered as a victim of a shooting attack could not be met in custody.


38. The applicant further referred to his classification as an “Extreme High Risk” inmate, which he contended effectively meant that he was subject to solitary confinement with limited outside contact.


39. Another argument was that the applicant had complied with orders made under the CSCPO Act and these stringent conditions could be supplemented by the imposition of strict bail conditions.


40. The applicant submitted that, if cause had been shown, he did not pose an unacceptable risk. The availability of stringent bail conditions, supplementing orders under the CSCPO Act, as well as the applicant’s need for medical treatment and his community ties, meant that he was unlikely to abscond. Finally, given the age of the offence and the absence of any eyewitness evidence of the assault of the deceased, it was submitted that there was very limited, if any, opportunity for the applicant to interfere with witnesses or evidence. The applicant also referred to the lack of a viable prosecution case of being of particular importance.


41. Mr Lange informed the Court that if the applicant was granted bail, he would be bailed to an address in New South Wales rather than the address in Victoria.


The Crown’s submissions


42. In written submissions, the Crown contended the applicant’s argument that [REDACTED], the prosecution was “doomed to fail” proceeded upon the erroneous basis that for the matter to be certified and successfully prosecuted, it was necessary for the prosecution to obtain [REDACTED], referring to s 62(2) of the CPA. The Crown pointed out that the [REDACTED].


43. The Crown submitted that its case was neither limited to the material summarised in the SOF, nor to the applicant’s post-offence conduct. The Crown case was a circumstantial case of events prior to and after the shooting. Even after leaving aside entirely [REDACTED], the Crown argued that the Crown case was a viable circumstantial case for murder.


44. The Crown made concessions as [REDACTED]. In particular, the Crown accepted that the number plate of the vehicle could not be made out and there were no witnesses who identified the deceased’s Volkswagen by registration number.


45. In oral submissions in this Court, Mr Scully, who appeared for the Crown, said that the charge certificate would not be certified on [REDACTED] alone. He submitted that if [REDACTED], there was a viable Crown case for murder.


46. Mr Scully referred to the Justice Health records and selected pages from the Justice Health and Forensic Mental Health Overview of Services. He submitted that the applicant had been seen regularly by doctors and nurses under the framework of Justice Health and there was no reason to conclude that his treatment was inadequate.


47. In relation to the nature of the applicant’s custody, Mr Scully submitted that the applicant’s custodial conditions reflected his classification as a high-risk inmate. It was further submitted that the orders made under the CSCPO Act did nothing to assist the applicant in showing cause.


48. The Crown submitted that if cause was shown, the applicant posed an unacceptable risk. Particular reference was made to the charge of murder, the applicant’s extensive criminal history, his longstanding association and position of importance in the Comanchero OMCG, his continuing association with criminal associates, and access to funds which would allow him to live abroad. The Crown contended that in all the circumstances, bail conditions, no matter how stringent, could not address the risk the applicant poses if released.


Consideration


49. The applicant relied upon the combination of the lack of strength of the prosecution case, his medical condition, the nature of his custody, and the orders made pursuant to the CSCPO Act to show cause why his detention was not justified. The primary focus of the applicant’s argument was on the Crown case that was said to be “doomed to fail”, as well as his medical condition.


50. Much of the applicant’s submissions concerned the inadmissibility of evidence from witnesses upon whom the Crown would rely to establish the Crown case. This argument was misconceived. Section 31(1) of the Bail Act is as follows:


31 Rules of evidence do not apply

(1) A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence.


...


51. As s 31(1) makes clear, the admissibility of the evidence or information upon which the Crown relies is not the test in bail applications. The bail authority may take into account “any evidence or information that the bail authority considers credible or trustworthy in the circumstances”. Any matter is to be decided on the balance of probabilities: s 32(1) of the Bail Act. The applicant bears the onus of proof.


52. As is often the case in bail applications, the SOF is a summary of information known to the police who prepared it. Mr Lange accepts that the [REDACTED].


53. There is also evidence before this Court of the applicant’s strong connections with an organised criminal group and his prior criminal history of violent offending.


54. All of these matters lead us to conclude on the balance of probabilities that the information in the SOF is both credible and trustworthy in the circumstances known to the Court.


55. There is nothing to suggest that annexure ‘J’ in the [REDACTED].


56. Although we would reject the applicant’s contention that the Crown case is “doomed to fail”, we are unable to assess the Crown case as being strong. [REDACTED]. The concessions made by Mr Sully point to difficulties in the Crown’s circumstantial case. Neither the number plate of the vehicle in the CCTV footage of similar appearance to the deceased’s Volkswagen Touareg can be made out, nor are there witnesses who identify the deceased’s vehicle by registration number.


57. Mr Scully submitted that there was a “viable” case for murder with which we would agree, but our assessment of the strength of the Crown case is no higher than that, particularly when the Crown prosecutor has been unable to certify the charge certificate. We do not know what the outcome will be of the Crown’s application for access [REDACTED]. It appears that if the Crown’s application is unsuccessful, the charge certificate will not be certified and a Magistrate will discharge the applicant as to the charge of murder. In these circumstances, we consider that cause has been shown.


The applicant’s medical history


58. There was a quantity of material relating to the applicant’s medical condition provided by the applicant and the Crown. On 10 May 2022, the applicant was shot multiple times. He sustained small bowel wound injuries, a ruptured right eye, facial bone fractures, fractures to the left leg, and fractures to his right forearm. His operative treatment included the surgical removal of his right eye and the insertion of a rod and carpal plate in his right arm and hand.


59. In a report dated 14 November 2022, Dr Peter Lewis reported that the applicant’s ongoing medical procedures included the removal of the metal rod, follow up of infection of right eye socket, fitting of right prosthesis, orthopaedic review of poor healing of left tibia, and ongoing physical rehabilitation of both legs and arms.


60. Dr Lewis opined that “[w]ithout these treatments, [the applicant’s] physical function and health could deteriorate. More specifically, his right eye which has been infected will need prompt attention. Eye infections can lead to more severe disease, such as infectious encephalitis and meningitis, due to venous drainage behind the eye socket, into the cavernous sinus in the brain. Furthermore, delay in the fitting of the right eye prosthesis could lead to further scarring of the eye socket, which can subsequently cause more damage to the right eye.”


61. It was the applicant’s contention that whilst he has been in custody, he has not been seen by relevant specialists. He was arrested on 29 August 2022. The Crown’s submission was that the applicant has been regularly seen by doctors and nurses under the framework of Justice Health and there was no reason to conclude that his treatment was inadequate.


62. Annexure ‘N’ to Ms Pearson’s affidavit is a summary of the applicant’s Justice Health Records from 29 August 2022 to 29 January 2023. It appears from these records that the applicant has been seen almost daily by either a clinical nurse specialist, a registered nurse, or enrolled nurse for “welfare checks”. He has often been provided with medication for pain relief. He has also been seen by a specialist medical officer and an ophthalmology registrar.


63. The summary of the applicant’s consultation with Dr Hampton, a specialist medical officer, on 11 October 2022 includes an assessment that the applicant’s “enucleated eye needs follow-up” as did his “right arm and left leg”, and a plan for a an “orthopaedic review left tibia and right wrist” and for “ophthalmology which will need oculoplastics”.


64. Whilst he has been further seen by Dr Hampton and Dr Holmes, the ophthalmology registrar, it appears from the summary that the applicant continues to complain of pain in the right wrist and arm, and of problems with his eye socket. The summary of the applicant’s consultation with Dr Holmes includes the applicant being referred to the “Eye Clinic at the Prince of Wales Hospital”. It is unclear from the Justice Health records whether the applicant has been seen at the Eye Clinic.


65. A summary of a welfare check on 14 December 2022 includes “complains of the same pain... R) wrist/arm where there is a metal rod in arm... apparently supposed to be removed? Nerve pain?” Another summary on 20 January 2023 notes that “Chlorsig” was given. Mr Lange pointed out that Chlorsig was an antibiotic designed to counter eye infections which was a concern expressed by Dr Lewis.


66. It is normally the case, as Johnson J observed in R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152 at [126] that:

“...the Court should approach an appeal such as this upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Respondent whilst in custody.”


67. However, this is an exceptional case. The applicant entered into custody with serious continuing disabilities from his gunshot wounds.


68. We are satisfied that all of the applicant’s health needs have not as yet been met by Justice Health and there remains the need for further specialist treatment, including the removal of the metal rod and the fitting of the right eye prosthesis. We are satisfied that the applicant’s health needs are another reason for cause being shown.


Unacceptable risk


69. We are satisfied that there is an unacceptable risk that if the applicant is released from custody, he will commit a serious offence. The combination of the applicant’s prior history of serious offences, including violent offending and his seniority in the Comanchero OMCG, which has an extensive history of violent offending, creates a very real risk of the commission of serious offences: s 19(2)(b) Bail Act.


70. There is an unacceptable risk that the applicant will fail to appear at future proceedings. The prospect of a conviction of murder and of the imposition of a lengthy term of imprisonment provide an incentive to flee. The use of a private plane to fly the applicant to Victoria in June 2022 demonstrates that he has the connections and resources to enable him to leave Australia and live overseas: s 19(2)(a) Bail Act.


71. Furthermore, there is an unacceptable risk that the applicant might interfere with witnesses, even though the offence of murder is alleged to have been committed in 2014. [REDACTED]. We reach this conclusion by not only having regard to the applicant’s prior criminal history of violent offending and longstanding association with the Comancheros OMCG, but also his conviction in 2021 for an offence of intending to pervert the course of justice: s 19(2)(d) Bail Act.


72. We do not consider that these unacceptable risks can be ameliorated by stringent bail conditions.


73. Accordingly, bail was refused.

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