Director of Public Prosecutions (NSW) v Tony MAWAD

Background

1. On 1 October 2014 the Respondent, Tony Mawad, was arrested and refused bail. On 23 July 2015 Hamill J granted Mr Mawad bail on strict conditions (R v Tony Mawad, unreported, Supreme Court of NSW, Hamill J, 23 July 2015). He was released on those conditions on 30 July 2015. On or about that date the Director filed the detention application. The application was referred to this Court because a bail decision had already been made by the Supreme Court (s 67(1)(e)). The application is to be determined by this Court de novo. It is not an appeal from or a review of the decision of Hamill J (R v Kugor [2015] NSWCCA 14 at [4]), although that does not mean the judgment of Hamill J cannot be considered for its persuasive effect which in this case was substantial.
2. At the time he was arrested Mr Mawad was charged with a series of offences arising out of an armed robbery of a home improvement store at Chullora at around 6.00am on 22 April 2014. The Director alleges that Mr Mawad and a co-accused each brandished pistols at two employees of the store and forced them to open a cash room. The amount stolen was $40,565.00. It is alleged they absconded from the scene in a car they had stolen some days prior to the robbery. The Director also alleges that they recruited an employee of the store, *** ***, who assisted them in gaining access on the morning of the robbery. Hamill J described the crime as a "reasonably well organised and executed robbery". I agree. *** *** has since been arrested. He has confessed to his involvement and has agreed to give evidence against Mr Mawad and his co-accused.
3. In relation to the robbery, Mr Mawad has been charged with a number of offences the most serious of which are two counts of armed robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. It seems that there are two counts because two employees of the store were terrorised. Mr Mawad was charged with various firearms offences arising out of his alleged possession of firearms during the course of the robbery. He was also charged with taking and driving a conveyance for use in the robbery. Further, at the time of his arrest on 1 October 2014, the police executed a search warrant on his home and located a "6 mm airsoft calibre KWC manufacture repeating air pistol". He did not have a licence or permit for the weapon. This resulted in another firearms charge. It is not clear whether the Director alleges that this firearm was used in the robbery. *** *** told police that one of the offenders used a "real" gun and another offender used a "cap" gun.
4. The charges under s 97(2) of the Crimes Act 1900 and one of the firearms offences arising from the robbery are all "show cause" offences for the purpose of s 16B of the Act as they are both serious indictable offences under Part 3 or 3A of the Crimes Act 1900 that involve the use of a firearm (s 16B(d)(i)) or an indictable offence involving the unlawful possession of a pistol or prohibited firearm in a public place (s 16B(d)(ii)). They are also show cause offences because Mr Mawad was on bail at the time the offences were allegedly committed.
5. 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 (s19). 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 a 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] to [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. Before I apply these tests I will address a number of further issues that were agitated at the hearing of this application which inform the analysis of both stages of the test for bail, namely the strength of the Crown case, the applicant's criminal record, the subjective material relied on by Mr Mawad, the likely time to trial, the bail conditions imposed by Hamill J, and the relevance or otherwise of certain statements made by the investigating police officer.

The strength of the Crown case (s 18(1)(c))

1. Neither of the victims of the robbery is able to identify Mr Mawad as one of the persons who terrorised them. The perpetrators wore masks. Instead, to implicate Mr Mawad the Director relies on evidence from *** *** and an intercepted telephone call between him and Mr Mawad. The Director contended that, in light of that intercept, *** ***'s evidence was "compelling". Counsel for Ms Mawad, Ms Francis, strongly disputed that assessment and the alleged significance of the recorded conversation.
2. It appears that during the immediate investigation of the robbery *** *** maintained that he was an innocent bystander or indeed a victim. However the police became suspicious of his involvement and immediately commenced surveillance. At around 11.30am on the day of the robbery *** *** was observed meeting Mr Mawad who handed him a brown paper bag. Telephone records indicate that there were telephone conversations between Mr Mawad and *** *** and Mr Mawad and his co-accused in the hours before and after the robbery.
3. On 6 August 2014 *** *** participated in an interview with the police and confessed to his involvement. He named Mr Mawad and his co-accused as his co-offenders.
4. On 1 October 2014 the police recorded a conversation between *** *** and Mr Mawad. A transcript of that conversation was placed before this Court. During the conversation *** *** was trying to extract admissions from Mr Mawad. The pretext for the call is *** *'s concern about the "State Crime Command" investigating him. At one point *** *** tells Mr Mawad "they [the police] reckon there was eighty grand Tonz" to which Mr Mawad ultimately replies "Liars brother, they are liars" and "I wish there was eighty grand" (transcript p 2). Later, the conversation continued as follows (transcript page 3): ": They reckon they got DNA on the safe, on that cupboard. Did you cut, did your gloves rip? TM: What cupboard? **: Where youse took the money from, Tony. Do you know the fuckin' … the cash you took from that bag or something? TM: He's the one who (indecipherable) took them. **: You didn't touch them? TM: He's the one who took them all. Most of them. Me? **: You didn't touch them? TM: One maybe. Not really." (emphasis added)
5. Ms Francis contended that the recorded conversation is at most suggestive of Mr Mawad having dealt with the proceeds of the robbery rather than having participated in it. I disagree. Prima facie it appears to be cogent evidence of Mr Mawad's participation in the robbery. It suggests that during the telephone call with *** *** he cast his mind back to recall whether or not he touched something at the scene.
6. Bail applications are not suitable forums to conduct mini trials. Nevertheless, an assessment of the strength of the Crown case is important to an assessment of prospective risk which is at the heart of the process of determining whether or not to grant bail. Based on the material presented, it is my assessment that the case against Mr Mawad is strong.

Mr Mawad's antecedents (s 18(1)(a), 18(1)(d))

1. Mr Mawad is 39 years of age. Between 1993 and 2002 he accumulated a few convictions for assault, break and enter, obtaining money by deception and driving offences. The most serious penalty imposed was a two year bond under former s 558 of the Crimes Act. The Director did not contend that much significance should be attached to these convictions.
2. In March 2014 Mr Mawad was charged with aggravated break and enter with intention to commit a serious indictable offence. He was on bail for this offence when he allegedly committed the offences the subject of this application. On 15 October 2014 this charge was withdrawn. On 2 March 2015 he pleaded guilty to being an accessory after the fact to the attempted commission of a serious indictable offence. On 4 March 2015 he received a two year bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. No material was placed before this Court in relation to the offence to which he pleaded guilty. In those circumstances it has played no part in my determination beyond the fact that it explains why the respondent was on bail on 22 April 2014.

Family circumstances (s 18(1)(a), 18(1)(m))

1. Mr Mawad is a qualified glazier. He has operated his own glazing business since 2004. In that year he married his wife. They have two children, a boy aged 5 and a daughter aged 2. In her affidavit, Mr Mawad's wife describes their relationship as close and states that he is a supportive father. Mr Mawad and his wife own their own home which has an estimated value of $750,000 and a mortgage of $320,000. It has already been offered as security for Mr Mawad's bail. Mr Mawad's glazing business supported the family. It has now folded.
2. A considerable amount of material was placed before this Court in relation to the vulnerability of Mr Mawad's family in his absence. This material was at the core of Ms Francis' contention that her client had shown cause why his detention was not justified.
3. Mr Mawad's son has poor vision and some hearing loss. The material included reports from a psychologist diagnosing him with a severe expressive language disorder and a mild receptive language disorder. As a result he was not able to commence school at age five. An assessment of his intellectual performance "across all adaptive skill areas" has placed him as only higher than 0.1% of children the same age.
4. The necessity for the presence of Mr Mawad for his son's wellbeing is three fold. First, the nature of his disabilities is such that the optimum time for professional intervention to address his deficits is now. Speech pathology and the other forms of professional assistance he needs are expensive. Mr Mawad's wife states that she does not have the means to pay for it unless her husband is released from custody and able to work. Second, the preschool that Mr Mawad's son attends has provided a report indicating that he has exhibited behavioural difficulties that have dramatically improved in the short time that Mr Mawad had been released from custody. Third, in her affidavit Mr Mawad's wife describes how she lacks family support in caring for their children which is especially difficult given their special needs. To make matters worse she needs to have surgery. She has been advised that, in the three months after her operation, she must rest and will not able to lift objects that are heavier than a kilogram.
5. The position is similarly difficult for Mr Mawad's daughter. A speech pathology assessment report assesses her as having "severe language difficulties, both receptive and expressive". As is the case with her brother she needs intensive speech pathology.
6. I accept this material.

Likely time to trial (s 18(1)(h))

1. Subsection 18(1)(h) identifies that one of the matters to be considered in an assessment of bail concerns is the "length of time the accused person is likely to spend in custody if bail is refused". This consideration is related to s 18(1)(l) which refers to the need for an accused person to be "free to prepare for his or her appearance in court or to obtain legal advice". Further this matter informs the unacceptable risk test in s 19(1) in that a consideration of what level of risk is "unacceptable" can involve a consideration of the undesirability of persons spending prolonged periods in pre-trial custody. Such an outcome is inimical to a system of justice that has as its foundation the presumption of innocence.
2. In this case the Court had the benefit of estimates from an experienced Crown Prosecutor and Defence Counsel. Mr Mawad's committal hearing is listed to be heard on 13 August 2015. The estimated length of his trial is 7 to 10 days. Depending on where Mr Mawad stands trial it is expected that, if he is refused bail, he would obtain a trial date between December 2015 at the earliest and June 2016 at the latest.

Bail conditions (s 18(1)(p))

1. The bail conditions imposed by Hamill J involved Mr Mawad residing at his home and observing a curfew. Strict reporting conditions and conditions of non-association were imposed. His Honour also imposed a requirement that an acceptable person agree to forfeit $300,000 in the event that Mr Mawad failed to comply with his bail requirements and that the agreement be supported by security. His Honour also required that another acceptable person deposit the sum of $10,000 in cash and agree to forfeit that amount in the event that Mr Mawad failed to comply with his bail acknowledgement. Both of the security conditions have been complied with. The latter security was provided by an elderly lady who has known Mr Mawad for almost eight years through their local church.

Police views

1. During the hearing of the application the Crown Prosecutor sought to rely on a letter written by the investigating officer, dated 14 July 2015, addressed to the "Presiding Judge" outlining, inter alia, the officer's view on various matters relevant to the bail application that was before Hamill J and relevant to the detention application in this Court. At the time it was provided to Hamill J his Honour noted that it was "received but disregarded [officer's] views as to outcome of [the] application as not relevant".
2. Ms Francis objected to the Court receiving the letter. The Crown Prosecutor indicated that she only wished to rely on the following extracts from the letter being matters potentially relevant to an assessment of bail concerns: "This investigation has uncovered evidence that the Accused has contacts with known criminals who have access to firearms. Police are of the view that firearms can easily be sourced by the Accused and he would have a reason/ motive to do so against parties involved in this investigation particularly *** *** and his family. … The Accused can easily find the whereabouts of *** *** and his immediate family as *** *** currently remains at his normal residential address with his partner and children. These concerns have previously been expressed by *** *** and his family … The Accused is well known by myself as the officer in charge of this investigation … to have a lot of criminal connections in the suburbs where the *** *** … family reside."
3. Ms Francis objected to the Court receiving the emphasised passages in the above extract on the basis that they were mere expressions of opinion that are inscrutable in light of the absence of any detail to support them.
4. Ms Francis referred to the following passage from the judgment of Garling J in JM v R [2015] NSWSC 978 at [48] ("JM"): "Section 18 does not permit a court to have regard to the views of investigating police, or any other police officer, about whether bail should, or should not, be granted. The only views to which a court may have regard are those of a victim, or the family member of a victim and then, only to a limited extent: s 18(1)(o) of the Act. A police officer may, and commonly will, put material or relevant facts relating to the matters required by s 18 of the Act, to be considered by a court. But this is, or should be, limited to nothing more than a factual account. Statements of police opinion, or views as to the appropriateness of a grant, or refusal, of bail fall outside the terms of s 18 and are thus unable to be considered."
5. I respectfully agree with his Honour that the opinion of a police officer that bail should be refused is a matter that is "unable to be considered". This is the view that was adopted by Hamill J. However, the present issue concerns police opinions and assertions on factors affecting bail such as the bail applicant's ability to access weapons and his alleged "criminal connections".
6. Section 31 of the Bail Act provides: "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)."
7. A provision in the same form was found in s 32(3) of the Bail Act 1978. Provisions dispensing with the necessity to apply the rules of evidence are "intended to be facultative, not restrictive" and are meant to free the relevant decision maker from constraints that may be otherwise applicable (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [49] per Gleeson CJ and McHugh J) although the extent to which they do so is to be ascertained from a consideration of statutory context (see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26).
8. The bail authorities referred to in this provision include a "police officer, an authorised justice [and] a court" (s 4) most, if not all, of whom deal with a significant volume of bail applications in a limited time frame. Thus the provision facilitates the orderly and expeditious disposition of bail applications by not requiring bail authorities to undertake a process of determining whether or not evidentiary material in whatever format should be admitted. Instead the bail authority can receive material it "considers credible or trustworthy". Further, the bail authority can determine whether that relatively low threshold is met at the time the information is provided to it or at the time it determines the bail application. In effect s 31 enables a bail authority, including a court, if it so choses, to avoid making "rulings" on whether or not material that has apparent relevance should be received. Instead the bail authority can receive the material and give it such weight as it considers appropriate in its deliberations.
9. In this case the objected to opinions of the police officer can be considered at least "trustworthy" in that there is no reason to doubt the bona fides of its author. However, just because this Court is not bound by the rules of evidence does not mean it is obliged to ignore the policy and rationale underlying those rules (R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J). This includes scepticism of conclusions unsupported by any factual detail. In my view, the absence of any detail setting out the basis for what are otherwise potentially damaging assertions warrants this Court not attributing any weight to those assertions. They played no part in my deliberations.

Has cause been shown?

1. The Director submitted that Mr Mawad had failed to show cause why his detention was not justified. The Director contended that the matters pointed to on behalf of Mr Mawad are "common features" and they "should [not] be endorsed as sufficiently special to overcome the show cause requirement on a charge as serious" as that which he faces. In so submitting the Director relied on the following passage from Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190 at [22] per R.A. Hulme J: "As was submitted by the Crown, there is nothing particularly special or unusual in what the respondent has put before the Court. Age, lack of criminal antecedents, ties to the community and strong family support do not amount to showing cause. This is particularly so when one has regard to the seriousness of the offence with which the respondent has been charged and the apparent strength of the Crown case. In view of the conclusion which we have reached, it is not necessary to consider the question of unacceptable risk." (emphasis added)
2. Brooks was a detention application. The Respondent had been charged with murder.
3. I do not understand Brooks to have stated that either "special or unusual" or "particularly special or unusual" circumstances must be demonstrated before cause can be shown. If it did then I disagree. This Court has no authority to add glosses to statutory tests. This is particularly so when s 22(1) of the Act specifically imposes a requirement to establish "special or unusual circumstances" when an appeal is pending in this Court or from this Court to the High Court against a conviction on indictment or a sentence imposed after conviction on indictment. In such case, the establishment of special or unusual circumstances is deemed to satisfy the show cause test where it is otherwise applicable (s 22(2)). These provisions are inconsistent with any suggestion that in all cases where the show cause test applies, special or unusual circumstances must be shown (JM at [39] to [41] per Garling J; see also El-Hilli v Melville v R [2015] NSWCCA 146 at [11] per Hamill J).
4. Equally I do not understand Brooks to be stating that "age, lack of criminal antecedents, ties to the community and strong family support" could never amount to showing cause, only that they did not amount to cause in that case. Again if Brookes did state that then I disagree for the same reason. Each case must turn on its own circumstances. A test posited in terms as to whether detention is "justified" or not necessarily defies any judicial attempt to circumscribe the circumstances in which it can be met.
5. It is clear that the relative strength of the Crown case is relevant to whether cause has been shown but it is not determinative (JM at [41]). In this case and notwithstanding the strength and seriousness of the Crown case I considered that Mr Mawad had shown cause. The evidence as to the particular vulnerability of his family in his absence was compelling.

Unacceptable risk

1. Next it must be considered whether the DPP has demonstrated the existence of an unacceptable risk.
2. First, the Director contended that there was an unacceptable risk that Mr Mawad would fail to appear. I do not accept that is the case. His family ties to Sydney are deep. There is no reason to doubt his attachment to his young family. If he absconded he would leave his wife homeless. While there exists a residual bail risk that he might fail to appear, the conditions imposed by Hamill J certainly reduced it to below an unacceptable level.
3. Second, the Director contended that his release represented a risk to the victims of the robbery and *** ***. Given that the victims of the robbery are not able to identify him then any risk to them does not reach a level that is unacceptable. It is difficult to conceive of anything that could be gained by intimidating or harming them. The position of *** *** is more troubling. There is material suggesting that threats have been made to *** *** and he has been harassed. As stated by the police officer in the extract at [32] he apparently lives close to Mr Mawad. The difficulty is that it seems unlikely that the release of Mr Mawad would lead to any heightened risk to *** ***. Assuming in favour of the Director that Mr Mawad has the level of involvement in organised criminal activity that is alleged, then the threat to *** *** exists regardless of whether Mr Mawad is released or not. While there is a bail concern in relation to *** *** I do not consider that there is an unacceptable risk to his safety that would arise from the release of Mr Mawad.
4. Third, the Director contended that Mr Mawad poses a risk of committing further offences. Unfortunately for Mr Mawad it is at this point that the nature of the alleged offending and the strength of the DPP's case coalesce to establish an unacceptable risk. In the case of persons who engage in organised violent crime of the kind of which Mr Mawad is accused, the nature of the offending is such as to create an appreciable risk that they will either directly participate in or at least facilitate the commission of similar offences. The ready access to weapons revealed by such offending heightens the risk they pose. The finding that the case against Mr Mawad is strong engages those concerns. The position is made worse by the fact he was on bail on 22 April 2014. The result is the risk of re-offending rises to a level that is unacceptable, even allowing for the effect of the strict bail conditions that were imposed. For that reason I agreed that bail should be refused.

Other matters

1. For the sake of completeness I express my disquiet about the structure of the Bail Act 2013 in allowing de novo reviews in this Court of bail decision made by the Supreme Court. This is a court of appeal not a court at first instance. Yet it must conduct a fresh review even though the question of bail will ordinarily have already been considered by at least two levels of the judicial system. By allowing de novo reviews the Bail Act 2013 facilitates the making of more interlocutory applications which serves to fragment the criminal process, potentially delaying trials. It does so in a manner that diverts this court from its task of hearing appeals from convictions and sentences. It is also a process that generally advantages the Director in that in most cases he has superior resources than that available to an accused person. Thus the Director has a greater capacity to litigate and re-litigate the issue of whether bail should be granted.
2. For the benefit of the parties I indicate that this judgment will be published on Caselaw. If the parties consider that the interests of justice warrant it being removed at some point, for example because a trial is proximate, then they should notify the Court accordingly.

Amendments 21 August 2015 - Remove semi-colon from title. 24 August 2015 - Pursuant to the order of Magistrate Burns (Burwood Local Court) made 13 August 2015, the name of a witness has been removed from the judgment. 27 August 2015 - Insertion of correct citation for R v Wamad. 02 September 2015 - Insert the word "not" before "amount" in last sentence of paragraph [2] (requested by Justice Gleeson's Associate) 02 September 2015 - Insert the word "not" before "amount" in the last sentence of paragraph 2 (requested by Justice Gleeson's Associate). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2015