R v Abdul-Hamid [2025] NSWSC 1158 | Case summary | Zoe

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R v Abdul-Hamid [2025] NSWSC 1158 | Case summary | Zoe

HIS HONOUR: Adam Abdul-Hamid has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act). The applicant is presently 19 years of age. He has been in custody since 17 June 2025, a period now in excess of three months. That custody relates to his arrest and charge with respect to five counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW), the circumstances of aggravation being that the applicant was in company.
On the bail application, the prosecution has tendered the Crown Case Statement in relation to the charges. It details the allegations against the applicant and three alleged co-accused. It is alleged that the complainant was sexually assaulted by various of the alleged co-accused across five distinct episodes. Each episode involved a number of brutal sexual assaults. I do not propose to detail the allegations as set out in the Crown Case Statement. It is sufficient to observe that that Crown Case Statement makes for difficult reading.
The document in the context of this application needs to be read having regard to what is alleged to be this applicant’s involvement. His involvement, and the evidence against him in particular, are relevant to an assessment of both the strength of the case against him, and also to the risk that he would present if granted bail.
It might firstly be observed that on any view, the applicant was the least involved of the four alleged co-accused. That, of course, may not be saying a great deal in the context of the very high level of criminality involved. On the application, it was accepted that in terms of this applicant’s involvement, it is not alleged that he was involved at all in the first incident, the fourth incident, or the fifth incident.
It is alleged with respect to the first incident that the complainant was sexually assaulted by the first of the co-accused at a shopping centre in Liverpool. It is alleged that the first co-accused then drove with the complainant from that location. It is alleged the first co-accused directed her to a location in Sadleir. On arriving there, the complainant noticed, on her description, “two or three” of the first co-accused’s friends. It is alleged that one of those persons was the applicant.
The complainant was sexually assaulted at this location by multiple persons multiple times. Those sexual assaults took place in the complainant’s car. The Crown Case Statement indicates that this applicant did not get into the car but walked up to the car at one point while the complainant was in the back seat, before leaving with one of the alleged co-offenders, BI.
It was fairly accepted by the prosecution on this application that there are multiple inferences available in relation to the applicant’s presence at this point. In other words, on the material presently available, there appears to be difficulty drawing any inference beyond reasonable doubt that the applicant was criminally complicit in the acts performed by others with respect to the second episode.
Having left the location of the second incident with BI, it appears the applicant and BI attended a third location. The complainant was subsequently taken from the location of the second incident to the third location by the first co-accused. On her arrival, she observed two persons, apparently the applicant and BI, already present. At this location, the complainant was again sexually assaulted multiple times by multiple persons.
The direct involvement of this applicant is set out at paragraphs (72) and (73) of the Crown Case Statement. At paragraph (72), it is stated that the “complainant thinks that [the applicant] was recording on his phone because she could see the flash from the phone”. Whilst the complainant expresses some uncertainty, at the very least it must be accepted that on her evidence, the applicant was in close proximity to the criminal events. Further, it may be that the uncertainty expressed in the word “thinks” is no more than a logical acknowledgment of the reality that she could not know precisely what operation was being performed with the phone.
In terms of the alleged further involvement of the applicant, on the Crown Case Statement, as set out at paragraph (73), the complainant was sexually assaulted in the back seat of her vehicle by use of the handle of a hairbrush, which was used to penetrate her vagina. On the Crown case, one of the co-accused asked the applicant “do you want to have a turn” to which the applicant is said to have replied “no, I’m all right”.
It is not the Crown case that the applicant in the course of incident three, or indeed, at any other stage, himself performed any of the acts constituting the sexual assault offences although the complainant’s version was that it was either the applicant or a co-accused that, at one stage, was responsible for the use of the hairbrush. Given the absence of proof that the applicant was himself responsible for any of the physical acts, his liability is said to be by way of principles of complicity, such that he is responsible for the acts of others. He might be found to be complicit and, therefore, liable for the offences as a result of his participation in a joint criminal enterprise. It is understood that that is how the Crown puts its case at present. Alternatively, it may ultimately be put that if not party to an agreement, he is responsible for the crimes of others, as a result of him being present at the scene intentionally assisting and encouraging the principal offender or offenders.
There is, in my view, a reasonably strong inference available supporting the Crown case as to the applicant’s complicity with respect to offences committed in the course of the third episode. There is an inference that the applicant’s presence at incident three was as a result of some level of pre-concert, there clearly having been some coordination with the co-accused resulting in the complainant arriving at the applicant’s location. That pre-concert of course needs to be understood in the context of what had previously occurred.
The applicant, moreover, arrived at the location of incident three with the co-accused, BI. BI had, at that point, himself performed the physical acts forming the basis of sexual assaults against the complainant at the location of incident two. Further, the applicant was in close proximity to events as they transpired. Whilst it is not entirely clear when the applicant touched the complainant’s vehicle, it appears to have occurred at some stage, the applicant’s fingerprints having been located on various windows of the complainant’s vehicle.
Whilst, in my view, there is a strong inference supporting the Crown case with respect to the sexual assaults committed in the course of incident three, the Crown case cannot be described as incontestable. The applicant’s presence does not, of itself, make him party to an agreement. It may be arguable he was not intentionally assisting or encouraging the principal offenders. There is, it seems to me, a real issue to be tried which will only ultimately be resolved by the verdict of a jury.
The application is one to which the unacceptable risk test applies. That is to say, pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of bail concerns that the applicant presents an unacceptable risk, then bail must be refused. The bail concerns are the matters set out in s 17 of the Act. In the context of the present matter, having regard to the nature of the allegations, I must necessarily have a concern with respect to the risk that the applicant would commit a serious offence or otherwise endanger the safety of victims, individuals or the community.
The applicant’s risk in this regard is, as I have said, to be assessed in the context of, firstly, the Crown case having not yet been proved against him; secondly, that case presenting at the least contestable issues; and thirdly, as relevant to risk, the applicant’s alleged role in the offences.
It is significant that the applicant is not suggested to have either instigated any offending, nor, indeed, actively participated in the physical acts comprising the offending. That in itself is significant in assessing risk. Additionally significant for the purposes of assessing risk are the applicant’s young age, he being just nineteen, and his lack of any prior criminal record. When those factors are weighed together with the proposed conditions of bail, my view is the risks to which I have referred are mitigated so as not to be unacceptable. The conditions of bail which are proposed are strict, including a condition of home detention.
That calculus is of course performed in a context in which, if refused bail, the applicant will be in custody for a significant period of time. It is clearly of concern that the applicant is unlikely to be tried until 2027. Should he remain in custody, that would be a substantial period of time to spend in gaol not convicted of any criminal offence. The concern in that regard is particularly acute in the context of this case where it cannot be said that conviction is inevitable.
There is a concern that the applicant may attempt to interfere with witnesses or evidence. The concern in that regard relates particularly to the complainant. Against that, the applicant has no record. Any attempt by him to interfere with the complainant would, in all likelihood, only have the effect of making the Crown case against him stronger. Further, having regard to his experience of custody, the applicant is unlikely to jeopardise his liberty by breaching his bail conditions. The applicant should be well aware that any attempt to contact the complainant or otherwise interfere with the Crown case is very likely to have him found to be in breach of bail and back in custody.
In relation to this issue, I note the Crown’s submission that the applicant obtained the complainant’s telephone number in the course of the relevant events. It is not known whether the complainant still uses that telephone number. As I remarked in the course of the hearing, it is certainly not incumbent on her to change her telephone number and, indeed, there is an unfairness to her should she feel the need to do so. That said, whatever the situation is in that regard, the strict conditions of the applicant’s bail and his understanding of the risks involved in making any contact are such that I do not regard there to be an unacceptable risk that the applicant would make any attempt to contact the complainant.
The Crown submitted that there was a risk in this matter of the applicant failing to appear. There is some evidence that at some stage he at least made reference to moving to Western Australia. Two things might be observed. First, the circumstances have changed since any such intention was expressed. The applicant has since been arrested and has been in custody for in excess of three months, and if granted bail, will be subject to strict conditions. The second thing that might be observed is that, were he to continue with previously voiced plans to travel to Western Australia, he would be extradited from there, one would have thought, very quickly. There is no suggestion the applicant has any capacity to flee to a location overseas from which he would be unlikely to be returned, particularly having regard to the proposal that he surrender his passport to police. Further, he has close ties to family within the jurisdiction. As a result, I am not of the view the applicant presents an unacceptable risk of failing to appear.
In those circumstances, the various risks having been assessed as not unacceptable, bail is granted subject to conditions.