R v Albazoon

Parties: Rex (Crown)
Ali Albazoon (Applicant)

Representation: Counsel:
J Rose (Solicitor) (Crown)
E Srour (Solicitor) (Applicant)
Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Criminal Law Group (Applicant)

File Number(s): 2026/101530

JUDGMENT

1. This is an application for bail which comes forward in circumstances where the applicant has been in custody bail refused since 19 February 2026. Having that day been arrested and charged with two offences alleged to have been committed that day under the Road Transport Act 2013 (NSW) of driving a motor vehicle on road during disqualification period, as well as an offence of hinder or resist police officer in the execution of duty, an offence under the Crimes Act 1900 (NSW). He is next due before the Liverpool Local Court for sentence in respect of that offending on 26 May.

2. The application is pursued in circumstances where the bail concern which the applicant poses identified by the Crown is of the risk of danger to the victim, individuals and the community. The risk of further serious offending not being pursued given the nature of the charges for which the applicant is to be sentenced, which do not fall within the relevant definition.

3. There is not any real issue between the parties about the bail concern identified, which I am satisfied the applicant does pose.

4. It is relevant to the application that at common law, a person seeking bail is entitled to the presumption of innocence and has a general right to be at liberty, matters which still remain relevant to the resolution of what is in issue on this application. Although in this case the applicant has made admissions and is to be sentenced for his repeated offending.

5. In issue is whether, given all that is before the Court, it is open to conclude that if the applicant is released bail on the proposed conditions, that the risk which he would then pose would not be an unacceptable one. The Crown contending that in light of all that has to be considered, that conclusion is not available.

6. Section 19 of the Bail Act 2013 (NSW) requires that the application be refused if the Court is satisfied on the assessment of the bail concern that the applicant poses, that he would pose an unacceptable risk of the identified kind if released from custody on the proposed conditions.

7. The applicant relies on various evidence, including a report provided by the psychologist, Mr Albassit, to which the Crown did not object. Although it urged the Court to give the report limited weight, he not being a treating psychologist.

8. The applicant relied on the report at the initial hearing as being an important consideration on his application, given the light it shed on his traumatic upbringing; he not having had, to this time, any psychological treatment for the issues he faces; and there now being a treatment plan proposed by Mr Albassit in which the Court could have confidence. Which would result in the applicant using his time on bail constructively, to deal with issues which he faces.

9. On the applicant’s approach, he now having been diagnosed to be suffering severe depression, anxiety, and a mild form of PTSD, which had left him vulnerable in custody.

10. But the Crown contended that there were a number of problems with the report which would preclude it being given the weight that Mr Albazoon urged, relying then on authorities of which it had not given notice. The result was that the hearing was adjourned so that they could be considered and the applicant could have an opportunity to respond to the Crown case, so pressed.

11. In the adjournment, letters were obtained from Mr Albassit and the practice of the psychologist, Ms Nassif, who it is proposed would implement the treatment plan which has been devised for the applicant, to establish that they had no affiliation with each other. And that the appointment with Ms Nassif had been booked independently by the applicant’s wife.

12. The Crown took no issue with that evidence, that altering its position somewhat, at the adjourned hearing.

13. It is necessary to take into account, in resolving what is in dispute, that in his report, Mr Albassit indicated that it had been prepared independently and in accordance with his obligations as an expert witness under sch 7 to the Uniform Civil Procedure Rules 2005 (NSW). He having seen the applicant at the centre at which he is being held on remand while bail-refused, as well as having interviewed his wife.

14. Given authorities of which Mr Albassit, it seems to me, must undoubtedly be aware, given that they deal with other reports which he has provided about offenders on sentencing, it is difficult to accept this declaration.

15. The report also explains the applicant’s background; diagnostic criteria to which Mr Albassit had referred; his current evaluation, which contains an outline of what the applicant had reported when interviewed; as well as conclusions Mr Albassit had arrived at. They including that structured psychological treatment would assist the applicant in addressing the difficulties identified in his assessment.

16. Interventions such as cognitive behavioural therapy, it was explained, would focus on managing rumination, improving thinking patterns, and reducing the applicant’s level of alertness. This would also assist him to better understand the link between his thoughts, emotions and behaviour, and to develop more effective ways of responding under stress.

17. Medical review would also be relevant in assessing the applicant’s current symptoms including anxiety, low mood and pain, and in determining whether medication support is required. These difficulties appearing to be responsive to treatment. Regular engagement in psychological therapy would also assist the applicant to improve his emotional regulation, increase his ability to tolerate stress, and strengthen his coping strategies. Over time, this might assist in reducing the severity and frequency of his symptoms.

18. Mr Albassit considered that a community based setting would provide greater opportunity for the applicant’s consistent engagement in treatment and continuity of care. This would also provide opportunity for regular monitoring of his mental health and for interventions to be adjusted as required, based on his response to treatment.

19. He also noted that untreated symptoms of anxiety, low mood, and heightened alertness may affect an individual’s ability to manage stress, regulate emotional responses, and respond in a measured way during periods of pressure.

20. And that treatment assists in developing more adaptive coping strategies, improving emotional control and increasing overall stability.

21. Mr Albassit also said that a structured treatment plan had been prepared to address the conditions identified during his assessment and to assist in stabilising the applicant’s mental health through consistent and targeted intervention.

22. As the Crown submitted, the report shed little light on the connection between the problems identified and the applicant’s history of offending.

23. Mr Albassit also described the psychological treatment which he considered the applicant would benefit from, which included psychological therapy, weekly consultations with his GP to manage any pharmacological treatment he was prescribed, as well as weekly substance screening analysis, and the involvement of the acute mental health team of counsellors at Liverpool Hospital.

24. Mr Albassit also said, “I will monitor the applicant’s treatment plan provided to the Court, and to ensure he complies with the plan prescribed”.

25. The Crown opposed this, contending that the report established that Mr Albassit would benefit financially from what he proposed. With the further result that not much weight could be placed on the report given his obvious conflict and failure to comply with the expert’s code.

26. The Crown also contended that Mr Albassit was not qualified to make any diagnosis, relying on Taitoko v R [2020] NSWCCA 43 and WW v R [2012] NSWCCA 165. Submitting that his report itself established the conflict of interest Mr Albassit had, given what he proposed in respect of the treatment plan to be pursued by another psychologist, initially understood to be in the same practice as Mr Albassit. That proved not be the case.

27. The Crown still finally contended that any treatment plan ought to be implemented by someone not financially connected in any way with Mr Albassit. Relying on R v Kaplantzi [2023] NSWDC 42. At the resumed hearing it accepted that some of its concerns had been addressed, but still pressed those remaining, given the conflict and lack of independence the report established.

28. I have considered the concerns explained by Colefax DCJ in Kaplantzi as flowing from cl 2 of the expert’s code: Sch 7 of the Uniform Civil Procedure Rules (2005) (NSW), on which the Crown relied. It specifying the expert’s paramount duty to which Mr Albassit said he had adhered.

29. His Honour explained the glaring conflict which results when an expert who gives such a report is also prospectively offering services to the person who has been assessed, no doubt for financial reward. Despite the expert’s overriding duty being to assist the Court, impartially, on matters relevant to the witness’ area of expertise. That, his Honour considered, could result in a significant reduction in the weight to be given to a report of the kind Mr Albassit has again produced for this application.

30. His Honour took a similar approach in R v Tanswell; R v Leilua [2025] NSWDC 178, observing that an expert who, by word, purports to be bound by the code may, by conduct, reveal an intention, actual or implicit, not to be so bound. A report which reveals a conflict of that kind thus having to be given lesser weight. Such conflict being established by the pursuit of financial remuneration for future services to be provided, which Colefax DCJ explained in detail and criticised: at [72]-[99]. With the result, his conclusion in that case, that only limited weight could be given to the expert report there relied on.

31. On this application, it must be accepted that Mr Albassit’s report raises similar issues, the Crown criticising it as also shedding but little light on the connection between the applicant’s trauma, his history of offending, and his understandable depression and anxiety in custody. Which, it was argued, is shared by many of those held on remand.

32. I am satisfied that Mr Albassit’s report does disclose a conflict which would have been avoided if the expert’s code had truly been adhered to, and the problems Colefax DCJ explained had been addressed. They were not.

33. It is relevant to my conclusion that in Busa v South Eastern Sydney Local Health District [2025] NSWSC 130 at [173], Davies J explained the paramount duty which a treating doctor has to a patient, by way of a comparison to that of an expert. Which is namely, to assist the Court, accepting the view of Lloyd J in Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 at [5] that “the High Court decision in Pilmer v Duke Group Ltd (2001) 207 CLR 165 at [82]-[83] supports the proposition that the existence of an ongoing or existing relationship between an expert witness and a party, results in a breach of the necessary independence”.

34. The High Court in Pilmer having also explained the need to identify the conflicting interest. Most professional advisors hoping that the proper performance of the task at hand will lead the client to retain them again, in which case the hope or expectation of future dealings would not establish a substantial possibility of conflict.

35. I am satisfied that the position is different when an expert bound by the code intends to profit from the treatment suggested be pursued for the psychological injury the expert has identified in a report provided to the Court. The duty to assist the Court ought to preclude the expert from so seeking to profit from the opinions reported, so that conflict is avoided and the opinions are not tainted by conflict.

36. If it were a report from a psychologist about treatment which an applicant was actually receiving, such issues would not arise. Such a report not being advanced as expert evidence.

37. That is not the basis on which Mr Albassit purported to provide his report. With the result that, it must be accepted, he has not adhered to the Code, his report itself establishing that he does not have the necessary independence.

38. I have also considered what Johnson J explained in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164], referred to in Taitoko at [113]. Namely, that it is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results and their significance, so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry.

39. Mr Albassit referred to the involvement of the applicant’s treating GP in the proposed plan. But there is no evidence that he has been diagnosed to be suffering the disorders Mr Albassit has identified.

40. Still, despite these problems, I have concluded that some weight must be given to the report. On a bail application such as this, justice requiring that account be taken of the difficulties an applicant for bail faces, particularly one who has not in the past obtained treatment for mental health issues, in obtaining a diagnosis from a psychiatrist.

41. Not only because of the cost involved, but the practical difficulties presented by the need to obtain a referral to and appointment with a psychiatrist, which takes time that may not be available. Of which I am satisfied judicial notice should be taken, as explained in Holland v Jones (1917) 23 CLR 149 at 153; [1917] HCA 26.

42. The guiding principle being that, wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt is taken, as explained in Amante v R [2020] NSWCCA 34 at [66].

43. In this case the applicant, with the assistance of his wife, has gone to the difficulty and expense of obtaining a report from a psychologist who purported to adhere to the expert’s code of conduct, but whose report has disclosed an obvious conflict. One which his legal representative ought to have identified. But the applicant cannot justly be criticised for not being aware of these problems.

44. It is also pertinent that in Masters v R [2019] NSWCCA 233, it was accepted that “in some cases, in spite of the absence of a medical degree, a sentencing judge may find a psychologist’s opinion more persuasive than that of medically qualified experts”: at [12].

45. Given what has been said in the authorities I have referred to, some of which deal directly with other reports provided by Mr Albassit, who seemingly has not desisted from the pursuit of the identified conflict, there is real difficulty in placing much reliance on his report. The reason for that problem undoubtedly rests with him. He ought not to be seeking to profit from the expert’s report he was engaged to provide, as he plainly intends.

46. I am not prepared, in all of the circumstances, to grant bail on terms which would involve Mr Albassit in the supervision of the applicant’s treatment plan as he proposed. Bail on such a condition was properly not pressed. And it was accepted that a condition of bail requiring the applicant to authorise Ms Nassif notifying the officer in charge of any breach of bail which comes to her attention, should be imposed.

47. That, together with the other circumstances which require consideration, is what the application for bail turns on. It having to be determined on what all of the material before the Court discloses in the way specified in s 31 of the Bail Act. The Court not being bound by the rules of evidence and having to take into account any evidence or information it considers credible in the circumstances.

48. The Crown did not contend that what the report disclosed about the applicant’s background and history ought not to be accepted. It including that he is married with a two year old child, having had a traumatic and displaced childhood during the war in Iraq. Where he had been kidnapped and assaulted when aged eight, as a result of his father’s circumstances. The family later fleeing to Malaysia from where they travelled to Christmas Island and were later allowed to come to Australia to live. The applicant having since lived here, worked, married and had a child, having no family elsewhere.

49. The applicant also had a difficult experience during his schooling, turning to substance abuse from age 16, for which he has never had treatment. As an adult he was also injured at work, which left him unable to undertake physically demanding tasks. He was later able to reduce his substance abuse, but has continued to abuse cocaine.

50. The bail proposal has the applicant return home to live with his wife under home detention conditions, she offering $20,000 surety, albeit he resuming employment. In issue is whether the finally proposed conditions will permit the Court to conclude that the applicant will not pose unacceptable risks if granted bail, given his history, on which the Crown relied to oppose the grant of bail.

51. It included that the applicant has never been licensed to drive in New South Wales and is now disqualified from driving until 2029, although he obtained a licence to drive in Victoria while so disqualified. He was again arrested and charged with further driving offences, which he has admitted, having driven at speed while under the influence.

52. It is also relevant that the applicant has a history of offending which dates back to 2016 including repeated driving offences, breaches of bail, sexual intercourse with a person under 16, drug, knife and failures to report. Both Community Service Orders and terms of imprisonment having not deterred the applicant from driving while unlicensed, including while under the influence and at considerable speeds beyond the speed limit. He also breached the reporting obligations imposed in 2024 by a CCO.

53. In those circumstances I accept that while a further CCO may be an available sentencing option, it seems doubtful that this sentencing option is likely to be utilised, given the persistence of the applicant’s repeated offending. That the applicant was arrested having fled from a Mercedes he was seen driving and having been located after response by PolAir, the Dog Unit and other police may not be overlooked. Nor that on testing he responded positively to cocaine and cannabis.

54. There is no proposal for the applicant to pursue treatment for his drug use issues, but his pursuit, for the first time, it appears of treatment offered by the psychologist, Ms Nassif, if granted bail, must be accepted is a most positive step. Actually undertaking that treatment and complying with the stringent conditions which would have to be imposed on him if granted bail, which would include authorising the psychologist to report any bail breach to police, will be relevant to his sentencing in due course.

55. The applicant now has a young child and seeks to avoid a custodial sentence, in order not to be further separated from her. Compliance with his bail conditions appears the only path available to the applicant to achieve that outcome.

56. With that in mind, although with some difficulty, I have been persuaded finally that there are stringent conditions of bail which can be imposed on the applicant which leave open the conclusion that, if released on bail, the risks which he poses will not be unacceptable ones. Although no grant of bail can, of course, ever be risk free, the fact of the impending sentence hearing has contributed to my conclusions.

57. FOR BAIL CONDITIONS SEE FILE