Release application following revocation of bail - show cause offences - alleged hardship - show cause not demonstrated.
Legislation Cited: Bail Act 2013 (NSW) s 16B(h)(i)
s 67(1)(e)
Source
Original judgment source is linked above.
Catchwords
Release application following revocation of bail - show cause offences - alleged hardship - show cause not demonstrated.
Legislation Cited: Bail Act 2013 (NSW) s 16B(h)(i)s 67(1)(e)
Judgment (3 paragraphs)
[1]
Solicitors:
Applicant: Oxford Lawyers
Respondent: NSW Director of Public Prosecutions
File Number(s): 2017/33465
[2]
JUDGMENT
THE COURT: Khaled Khair (the applicant) has been charged with a series of offences based on his driving, drug possession offences, and resisting and assaulting police officers, to the details of which it will be necessary to return. The charges relate to conduct on 4 December 2016, 23 January 2017 and 28 January 2017. At all relevant times, he has been disqualified from driving.
Following a serious motor vehicle accident on 4 December 2016, he was granted bail, one condition of which was that he not occupy the driver's seat of any vehicle. The serious driving charge based on the events of 28 January 2017 involved the applicant driving a vehicle during a time when, not only was he disqualified from driving, but he was also in breach of a condition of his bail.
The applicant was also charged with three serious indictable offences, namely assault an officer in the execution of duty, arising out of the events of 28 January 2017. These are "show cause" offences since they were committed whilst on bail: s 16B(h)(i) of the Bail Act 2013 (NSW).
On 29 January 2017, the applicant's bail was revoked by the Local Court. A further application was made to the Supreme Court, but was refused on 2 March 2017. The applicant does not contend there has been any change of circumstance. Notwithstanding the absence of any appeal, he applies under s 67 of the Bail Act 2013 (NSW), because, in the language of s 67(1)(e), "a bail decision has been made by ... the Supreme Court". By reason of s 67(2), read with s 29 of the Criminal Appeal Act 1912 (NSW), this Court cannot be constituted by a single Judge sitting alone. It is common ground that the application is determined afresh, and is not an appeal from, nor a review of, the decision on 2 March 2017.
As was said in Obeid v R (No 2) [2016] NSWCCA 321 at [6]
The hearing in this Court was not in the nature of an appeal; it was necessary for the Court to hear and determine the application afresh: R v Kugor [2015] NSWCCA 14. That did not preclude the Court having regard to the judgment and findings made in the application to the primary judge: Trinh v R [2016] NSWCCA 110 (Basten JA at [28], McCallum and Davies JJ agreeing at [40] and [44] respectively).
The Court heard the application on 17 March 2017. At the conclusion of the hearing, the Court refused the release application. These are the reasons for that decision.
The applicant's contention was that he satisfied the "show cause" requirements by way of a combination of factors. Those factors are
1. The applicant's entitlement to rely on the presumption of innocence and his intention to plead not guilty to all charges.
2. Asserted shortcomings in the prosecution case.
3. The applicant's impending wedding on 24 March 2017.
4. The applicant's strong family and community ties.
5. Asserted hardship to others, namely a number of persons employed by the applicant in a roofing business and members of the applicant's family who rely upon him for financial and physical support.
The strength of the prosecution case assumes some importance in this application. The statement of facts discloses that on Sunday 4 December 2016 at 7pm, the applicant was observed by two independent witnesses driving a utility erratically on the M4 motorway. Whilst the witnesses had the applicant under observation, the applicant collided with another vehicle, forcing it onto an embankment where it collided with trees. The applicant's vehicle did not stop. The witnesses continued to follow the applicant's vehicle until they were able to slow it down, engage the applicant in conversation and take photographs of the applicant driving the vehicle. The applicant sped away but was seen to enter premises in Greystanes a short distance away, where the applicant exited the drivers' side of the utility. The witnesses continued to follow the applicant when he left those premises, still driving the vehicle. Police were called and observed damage to the tray of the utility.
At 3:20am on 28 January 2017, according to a statement of facts, police observed the applicant driving a motor vehicle in Granville. The applicant's fiancée was in the passenger seat. Police followed the applicant's vehicle and saw it stop, the applicant's fiancée exit the passenger side and the applicant move from the driver's seat into the rear passenger seat. Both the applicant and his fiancée struggled with police when attempts were made to remove him from the car. The applicant admitted to using cannabis and ice earlier in the day.
The applicant maintains that all charges will be disposed of summarily and that he will contest the identification by witnesses of himself as the driver. The statements of facts and the witnesses' statements describe a powerful prosecution case on the driving charges. Of particular concern are the applicant's admissions with respect to the consumption of illicit drugs. Whilst the summary nature of the charges might, in other circumstances, allow the "show cause" threshold to be reached, the applicant almost certainly faces a period of imprisonment upon conviction. He has already served sentences of nine months and six months imprisonment for driving whilst disqualified and driving recklessly during a police pursuit. The applicant's conduct represents a considerable threat to the safety of the public.
Factors (iii), (iv) and (v) were the subject of affidavit evidence.
Turning firstly to (iii), the applicant's fiancée stated that following a two year relationship and a measure of opposition from members of their respective families, she and the applicant became engaged in November 2016. The wedding ceremony was planned for the applicant's home, followed by a reception at a wedding venue in Fairfield. The applicant's fiancée paid a deposit of $15,000.00 cash to the venue which is non refundable. Approximately 170 guests are expected at the reception, although not all have confirmed their attendance. The principal complaint made by the applicant's fiancée is that she will lose the deposit and face the embarrassment of cancelling the reception.
As to (iv), the evidence from the applicant's father, a sister, and a brother refer to the applicant's close and supportive family of two brothers, three sisters, elderly parents and numerous aunties, uncles, cousins, nieces and nephews. One of the applicant's adult sisters suffers from epilepsy and is unemployed. The applicant's parents, who are in their seventies, are retired. It is claimed that the applicant, who lives at home with his parents, is the only person upon whom the parents and his sister can rely for financial support and assistance around the home.
As to (v), leaving to one side the asserted hardship to his parents and epileptic sister to which reference has already been made, an affidavit from an employee of the applicant's roofing business deposes to the fact that the applicant is a sub-contractor to a company known as ABS Roofing. Apart from this adult employee, there are three "juniors" who started with the applicant's business within the last few months and are still in apprenticeships. The applicant's employee is paid by ABS Roofing. This employee is not a licensed roofer and cannot run the business on the applicant's behalf. It is claimed that in the event the applicant is not released, the employee will lose employment.
This evidence is not persuasive. It is regrettable that the applicant's detention will result in the deferral of his wedding but the loss of funds expended by his fiancée and the resulting social embarrassment does not take the matter any further. The deposit was paid on 12 January 2017, that is, just over a month after the motor vehicle accident in December 2016 which resulted in the bail condition that the applicant is said to have breached on 28 January. The applicant's fiancée was in the car on 28 January. The applicant must have appreciated that he was putting his liberty on bail at risk. Whilst the applicant takes issue with the allegations that he assaulted police and resisted arrest on 28 January, the direct observations by police that he was driving the car have not been the subject of challenge on this application. The applicant's conduct in this regard is the author of his fiancée's misfortune.
On the hearing of the application, it emerged that the applicant's parents receive a pension which is devoted to two mortgages in relation to two properties, including the family home. The financial support that the applicant provides is in the nature of general living expenses. However, there is nothing in the affidavits of the applicant's brother and sister that suggests that they and/or the applicant's other brother and sister cannot provide such assistance to their parents and unemployed sister. Nor is there any basis for concluding that no other able-bodied sibling or cousin or aunt or uncle can provide general domestic assistance to the applicant's parents.
The affidavit from one employee of the applicant's roofing business does not support a sufficient degree of hardship to justify the applicant's release, either alone or in combination with other factors. On closer examination, it appears that this employee's principal role is to drive the applicant to work sites, given that the applicant is disqualified from driving until January 2030. The remaining three "employees" are not named and appear to be relatively unknown to the deponent. The deponent is 33 years old and acknowledges that he is able to look for other work.
The Court is not satisfied that the applicant has demonstrated on the balance of probabilities that his continued detention is not justified. Even assuming that threshold were reached, the imposition of strict bail conditions would not be sufficient to address the risk of the applicant's commission of further driving offences. That risk is a product of the applicant's history. Notwithstanding strong family ties, his family's support has not dissuaded the applicant from committing serious traffic offences in the past.
[3]
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Decision last updated: 22 March 2017