R v Elshaimy

Legislation Cited: Bail Act 2013 (NSW)
Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW)

Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380
Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
R v Kaddour [2025] NSWSC 872
R v Mehajer [2018] NSWSC 1687
R v S [2016] NSWCCA 189

Category: Principal judgment

Parties: Proceedings 2025/272979
Crown (Applicant)
Adam El Shaimy (Respondent)
Proceedings 2025/285185
Adam El Shaimy (Applicant)
Crown (Respondent)

Representation: Counsel:
Proceedings 2025/272979
D Hannan (Applicant)
P Strickland SC (Respondent)
Proceedings 2025/285185
P Strickland SC (Applicant)
D Hannan (Respondent)
Solicitors:
Proceedings 2025/272979
Director of Public Prosecutions (Applicant)
Karnib Saddik Law Firm (Respondent)
Proceedings 2025/285185
Karnib Saddik Law Firm (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2025/272979
2025/285185

Publication restriction: Published as redacted to excise any matters the subject of a statutory protection pursuant to the Crime Commission Act 2012 (NSW).

JUDGMENT

Background

1. In the early hours of 23 July 2023, a shooting occurred in Mayvic Street, Greenacre. As a result, one person was killed, and two others were seriously injured.

2. Adam Elshaimy stands charged with one count of murder, two counts of shoot at person with intent to murder and one count of participating in a criminal group. The charges arise from the events surrounding and involving the shooting just referred to.

3. It is the Crown case that Mr Elshaimy was part of a joint criminal enterprise (“JCE”) with two others to shoot and kill persons who were suspected (wrongly) of seeking retribution against one of them (Chahal) for an earlier alleged drug theft (or drug “rip”). As it turns out, the person murdered, and those injured, were innocent people with no known connections to drugs or those people said to be part of the alleged JCE.

4. On 8 October 2024, Wright J granted Mr Elshaimy bail on strict conditions. Those conditions included that he wear a privately provided, funded and monitored electronic monitoring device. On 11 June 2025, the Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW) came into force. The effect of this act is that no person on bail can have an electronic monitor that is privately operated. There is a transition period in which those persons, such as Mr Elshaimy, who had private electronic monitoring as a condition of bail must apply for a variation of bail to remove private electronic monitoring or be taken to be in breach of bail.

5. It should be added that on 20 May 2025, Mr Elshaimy attended Burwood police station by arrangement and was charged with nine domestic violence (“DV”) offences (eight of intimidation and one of assault) against his former wife. He was bail refused by the police.

6. On 21 May 2025, a detention application and bail application were heard at the Burwood Local Court. The learned magistrate was not satisfied that any breach of bail had been established, and Mr Elshaimy was granted bail.

7. Before the Court are two applications. First, the Crown makes a detention application under s 50 of the Bail Act 2013 (NSW) (“the Act”). Second, Mr Elshaimy makes a variation application to remove the electronic monitoring condition. It was accepted at the hearing that whilst the applications would run together and are inter-linked, I would determine the detention application first. If I refused the detention application the Crown accepted that the variation sought by Mr Elshaimy should be made.

8. I heard the matter on 5 August 2025. Having regard to the nature of the applications, particularly the detention application which if granted would have placed Mr Elshaimy in custody, at the conclusion of the hearing I indicated to the parties that my decision was that the Crown detention application was refused, and the variation application was granted. I said I would give my reasons later. These are those reasons.

The Crown application

9. In its written submissions, the Crown indicated that this was the second detention application made for these offences and thus a relevant change of circumstances had to be shown: s 74(4)(a) and (b) of the Act. In oral submissions, however, the Crown noted that this was an error in that there had been a release application made (and granted) by Mr Elshaimy before Wright J on 8 October 2024 and no detention application had been made in this court. There had been a detention application made with respect to the DV charges brought against Mr Elshaimy in the Burwood Local Court as referred to at [6] above. However, as that application was not made in this court, the Crown said, and I accept, s 74 does not apply.

10. There was no question in this case that the Court had the power to hear the detention application brought by the Crown (cf the discussion in R v Kaddour [2025] NSWSC 872).

The Crown Case

11. The Crown case that Mr Elshaimy was one party to the JCE I have mentioned is a circumstantial one. I had the benefit of detailed written and oral submissions setting out the strengths (from the Crown perspective) and weaknesses (from Mr Elshaimy’s perspective) of the Crown case. Evidence was called from the officer in charge, Detective Sergeant Darren Simpson.

12. Much of the evidence with respect to the Crown case went to the movements of Mr Elshaimy and two other co-accused, Ammar Chahal and Anthony Pele immediately prior to and soon after the killing. I was played nine clips from CCTV cameras in the surrounding roads and vicinity of the shooting and around a nearby café. The Crown relied upon these clips as part of its case that Mr Elshaimy was party to the JCE to shoot and kill persons who were believed to be intending to take retribution against Chahal. The Crown alleges that there was a coordination of the movements of vehicles, one of which was said to be driven by Mr Elshaimy, indicating agreement and planning of the execution of the shooting.

13. The draft Crown Case Statement set out in some detail the alleged movements of the accused and two of the other parties to the JCE relied upon by the Crown in its circumstantial case. For reasons which will become apparent, I do not think it is necessary to go into too much detail about that Crown case or all the submissions I received from the Crown and counsel for Mr Elshaimy at the hearing.

Show cause

14. Each of the murder and shoot with intent offences are “show cause offences” under s 16B of the Act. That is because murder carries with it a maximum penalty of life imprisonment (see s 16B(1)(a)) and the other offences involve the use of a firearm in the commission of a serious indictable offence (see s 16B(1)(d)(i)). Mr Elshaimy is therefore required to show cause, on the balance of probabilities, why his detention is not justified.

15. If I am satisfied that cause has been shown, then I must assess any bail concerns and then whether Mr Elshaimy poses an unacceptable risk.

16. Cause can be shown by a powerful factor or a combination of powerful factors: Moukhallaletti v Director of Public Prosecution**s (NSW) [2016] NSWCCA 314 at [54]; R v S [2016] NSWCCA 189 at [63]. In this case Mr Elshaimy relies on a combination of factors to show cause. Those factors are:

(a) the strength (weakness) of the Crown case; (b) delay; (c) the need to be at lawful liberty; and (d) the stringency of the proposed bail conditions.

Strength of Crown case

17. The strength of the Crown case was an issue considered and determined by Wright J when he was assessing whether or not Mr Elshaimy had shown cause on 8 October 2024. His Honour said this:

As to the weaknesses of the Crown case, it does appear to me that there are significant issues with the Crown case, especially in relation to whether the applicant was a participant in any joint criminal enterprise of the nature as opposed to a different potential joint criminal enterprise that may have involved Mr Chalal, if there had been an attempt to kidnap him from his home. In addition the material relied upon by the Crown to establish what are called coordinated movements does appear on the material that I have seen to be verging on the speculative. It may be that there is other evidence and the evidence viewed as a whole paints a different picture but on the limited material that has been made available to me it does appear that there are very significant weaknesses in the Crown case.

18. In R v Mehajer [2018] NSWSC 1687 at [10], Davies J said the following with respect to a further release application following one which had been refused:

Although there is no requirement under s 74 for the applicant to demonstrate that circumstances have changed since the previous application was made or that material information relevant to the grant of bail on the present application was not presented to R A Hulme J, it is relevant to consider the matters raised by the applicant before R A Hulme J and the determination made by his Honour in his judgment. If the applicant presented the same material and made the same submissions that were made to R A Hulme J, as a matter of comity, I would need to have some good reason for departing from the determination made by his Honour even though this is a fresh application. One strong reason for that would be to avoid inconsistent judgments which would tend to erode public confidence in the integrity of the administration of justice: Lowe v The Queen (1984) 154 CLR 606 at 610-611 (per Mason J); and Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per (French CJ, Crennan and Kiefel JJ).

19. As I’ve mentioned, Detective Sergeant Simpson gave evidence and, through him, nine CCTV clips were played demonstrating the asserted coordination of movements between Mr Elshaimy and the others said to be party to the JCE. I was informed that only some of those clips were played to Wright J when the release application was before him. I was also told, however, that what was depicted in the balance of the clips was described in detail in the fact sheet before his Honour. That fact sheet was also before me as Exhibit 4.

20. As I have also mentioned, the facts before me were set out in the draft Crown Case Statement. Mr Strickland SC for Mr Elshaimy took me through that document, the Crown submissions and the facts in Exhibit 4. He submitted, and I accept, that there was no material difference between the facts put before Wright J and those put before me with respect to the strength of the Crown case. In particular, there was no material difference between the facts by which the Crown asserted an inference could be drawn that there was a coordination of the movements of Mr Elshaimy and others prior to the shooting which indicated there was agreement and planning to carry that shooting out.

21. Whilst I did not have before me the transcript of the hearing before Wright J, nor a copy of the Crown submissions made on that occasion, it was not submitted to me that there was any material difference in the way in which the strength of the Crown case was advanced by the Crown before Wright J to the way it was advanced to me. In these circumstances I indicated to the Crown that, absent any additional material that was not before Wright J, there would have to be a good reason why I would as a matter of comity reach a different conclusion to his Honour as to the strength of the Crown case; R v Mehajer at [10].

22. The only new or additional material pointed to by the Crown were extracts of calls from a Cellebrite download of Mr Elshaimy’s phone [REDACTED]. That material appears at [REDACTED] of the draft Crown Case Statement. It is alleged that Mr Elshaimy used the handle “Papers”.

23. The Crown submits that this evidence reveals that Mr Elshaimy agreed to a request by Chahal to help [REDACTED]. It is asserted by the Crown that these records show that Mr Elshaimy discussed with Chahal and Pele (the alleged shooter) a plan to remain safe by keeping quiet. It appears the Crown would wish to use these extracts against Mr Elshamy as consciousness of guilt.

24. I do not accept the Crown submission that these records materially increase the strength of the Crown case. Whilst an inference of the type suggested by the Crown may be open, there are many other equally available and rational inferences that can be drawn from those records. I consider that it is questionable at best that they could be used as evidence of consciousness of guilt of the charges against Mr Elshaimy.

25. I consider that the Crown’s evidence and submissions as to the strength of the Crown case is materially the same as it was before Wright J. Accordingly, there is no reason why I would depart or differ from the conclusion of Wright J as to the weakness of the Crown case. I would add that from my own review of the materials before me I agree with his Honour’s conclusion that there are significant weaknesses in that case. I agree with his Honour’s categorisation that the inferences sought to be drawn by the Crown as to the asserted coordinated movements of Mr Elshaimy and Chahal and Pele are verging on the speculative.

26. In reaching this conclusion I have considered the matters relating to the strength of the Crown Case set out in [7] of the Crown written submissions and the relevant parts of the draft Crown Case Statement. I also keep in mind that to prove that Mr Elshaimy was part of a JCE to commit the alleged offences, the Crown must prove beyond reasonable doubt that Mr Elshaimy was party to the relevant agreement and that he participated in the execution of that agreement. I have had regard to the extract from the decision of the High Court Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] setting out the definitions of a JCE and an extended JCE. Although this will ultimately be a question for a jury, I formed the view that the CCTV footage shown to me and as explained in the Crown Case Statement was unconvincing in demonstrating that Mr Elshaimy entered into and participated in the JCE alleged.

Delay

27. The next matter relied on to show cause is delay. There had been some delay in having the charges certified. I am told that certification has now taken place, and the matter is next before the Burwood Local Court on 10 September 2025 for case conference. The matter is therefore still at the early stages of the EAGP process.

28. I accept the submissions from Mr Strickland SC that it is likely the matter will not be listed for trial until sometime in late 2026 at the earliest. That is because of the likely length of any trial involving several co-accused and the delays in having matters determined in the District Court by reason of the recent disruptions caused by flooding.

29. A delay of this type is a significant factor in considering whether cause has been shown that Mr Elshaimy’s detention is not justified.

Right to be at lawful liberty

30. There were no new or different submissions put forward by the Crown with respect to Mr Elshaimy’s right to be at lawful liberty to those advanced to Wright J. Although there have been DV charges brought against Mr Elshaimy involving his ex-wife, the material before me still indicates he supports his children by that ex-wife, together with supporting his partner and her children and his parents. I accept these matters support Mr Elshaimy showing cause.

Stringent bail conditions

31. The bail conditions currently existing and the variation proposed, even with the deletion of the electronic monitoring conditions, are stringent. They include a curfew, a surety of $2.2 million secured over two properties, twice daily reporting and other strict conditions.

32. Mr Elshaimy has complied with all conditions since bail was granted to him in October 2024.

Section 18 matters

33. A consideration of the criteria that must be taken into consideration under s 18 of the Act can also be relevant to whether cause has been shown*:* Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24].

34. The material before me indicates:

(a) Mr Elshaimy has strong ties to the community in the form of his relationship and caring responsibilities for his children and the children of his current wife. He also provides assistance for his parents; (b) the offences with which Mr Elshaimy is charged are very serious; (c) I consider there to be significant weaknesses in the prosecution case as described above; (d) Mr Elshaimy has one serious criminal matter on his record being aggravated break and enter and commit serious indictable offence in company. He received a prison sentence of 5 years and 6 months with a non-parole period of 3 years and 9 months. He was released from custody on 7 December 2019; (e) Mr Elshaimy has not committed any serious offences whilst on bail. He was on bail for 2 ½ years for the break and enter offence and there was no breach of bail. There is no suggestion he breached parole for that offence; (f) Mr Elshaimy has been on bail for these matters since October 2024. He has complied with all bail conditions; (g) the police allege that Mr Elshaimy does have a criminal associations; (h) if the detention application is acceded to, it is likely Mr Elshaimy will be in custody at least until the end of 2026 prior to the matter reaching trial; (i) if Mr Elshaimy is convicted of the current charges, a lengthy custodial sentence is inevitable; (j) I accept there is some need for Mr Elshaimy to be free to prepare for his case having regard to what will be a complex and lengthy trial involving a large brief; (k) Mr Elshaimy has a lawful need to be free for the reasons I have described above; and (l) there are stringent bail conditions discussed above which can reasonably be imposed to address bail concerns.

Cause has been shown

35. The combination of factors relied upon by Mr Elshaimy has discharged his obligation to show cause that his detention is not justified. In particular, I have had regard to the weakness in the Crown case, the lawful reasons for him to be free, the stringency of the bail conditions proposed and to which he has been subject and not breached.

36. I must now consider and assess the bail concerns in s 17 of the Act and whether Mr Elshaimy poses an unacceptable risk within the meaning of s 19 of the Act.

Bail concerns

37. The most significant bail concern addressed was the risk of Mr Elshaimy failing to appear. The Crown submits that whilst there are stringent bail conditions proposed, there is still a risk Mr Elshaimy will abscond. They submit the risk is greater now than when matter was last before this Court because the charges have been certified. Further, it was submitted that there is a real incentive, given the nature of the charges, for Mr Elshaimy to take flight.

38. The Crown submits that Mr Elshaimy has an association with Pele, who is still overseas, which magnifies this risk. The Crown also submits that the absence of electronic monitoring further increases this risk. The Crown submits the risk is unacceptable.

39. I accept this bail concern exists. However, I consider that the stringent bail conditions proposed, even absent electronic monitoring, mitigate this risk such that it is not unacceptable. There are several factors that ameliorate the risk of flight. I have referred to Mr Elshaimy’s ties to the community. There is a significant surety in place, secured over two properties. He must not approach a point of international departure and has surrendered his passport. There is twice daily reporting and a curfew with enforcement conditions. Perhaps most significantly, Mr Elshaimy has complied with all bail conditions to date.

40. Whilst Mr Elshaimy has been charged with the DV offences referred to, I accept the submission of Mr Strickland SC that it is significant that Mr Elshaimy self-reported to the police station with his solicitor, which resulted in his being charged and remanded for those matters.

41. I do not consider there is any new material or submissions which indicate that any other bail concerns that may arise, for example the risk of commission of further offences, are such that they cannot be mitigated by the proposed bail conditions.

42. I do not consider that Mr Elshaimy poses an unacceptable risk.

43. It was for these reasons that I considered that the Crown detention application should be refused.

Bail variation

44. The Crown conceded that if its detention application was refused, the variation sought by Mr Elshaimy should be made. I agree.

45. Accordingly, the bail conditions will be varied to delete the electronic monitoring requirements. All other bail conditions will remain the same.

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