The accused, Mr Mohd Mahzrin Nadzri Shah has been committed to stand trial in this court in respect of the offence that he did on 29 April 2016, at Smithfield in the State of New South Wales, detain Lisa Whittaker without her consent and with the intent to obtain an advantage, namely, a psychological advantage contrary to s 86(1)(b) of the Crimes Act 1900 (NSW).
The matter first came on for trial on 22 May 2017 however, it was formally marked not reached on 23 May 2017. Thereafter the matter came on for trial on 4 September 2017. On 11 September 2017, the jury was discharged. The matter has now been listed for further trial on 5 March 2018 with a seven day estimate.
The accused has been in custody since 29 April 2016, bail refused. On 21 September 2017, I heard a release application made on his behalf. Ms O'Reilly of counsel appeared on behalf of the Crown and Mr Brewer of counsel appeared on behalf of the accused. It was acknowledged both parties that the charge on the indictment was a show cause offence as it was a serious indictable offence and it was alleged to have been committed at a time when the accused was on parole, [1] requiring the accused to show cause as to why his detention was not justified. [2]
[2]
Crown case
According to the Crown case statement, the accused and the complainant, Ms Lisa Whittaker have been in a relationship for approximately 12 years and have two daughters. During the relationship, they separated on a number of occasions. On 2 June 2015, an apprehended domestic violence order was granted at the Liverpool Local Court for two years and identified the complainant as the protected person. The accused was required to comply with the following conditions:
[He] must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship;
[He] must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship; and
[He] must not stalk the protected person(s) or a person with whom the protected [sic]
[5] [He] must not approach or contact the protected person(s) by any means whatsoever except through [his] legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 as to counselling, conciliation or mediation.
On 16 June 2015, the accused was charged with the offences of "enter with intent", "common assault" and two charges of "contravene AVO." He was convicted at Campbelltown Local Court and was released to parole on 15 December 2015. He was to remain on parole until 15 July 2016. It is asserted that between his release and until Easter (25 - 28 March 2016), the accused and the complainant cohabited, and thereafter, the complainant lived in her parents' house in Picton.
The complainant works for "Tecside" which is located at 149 Woodpark Road, Smithfield. On 29 April 2016, the accused is alleged to have driven to a nearby location, parked his vehicle and then walked to a neighbouring business to where the complainant worked. At 2:45 pm, during a break for the complainant, the accused approached her and asked her to talk. However, he was told to leave and he did so. The complainant then went back to her workplace, however the accused sought to contact her on her mobile phone several times without success.
At 5:15 pm, as the complainant was leaving for home, she went to her vehicle and checked her boot to find the accused in it. Thereafter a 10 minute conversation ensued, during part of which the two parties are alleged to have been alone. At one point, the complainant is said to have gone to the driver's door and said to the accused: "You need to go, I need to pick up the kids." The accused then made his way towards the complainant and said to her: "No you're not going to pick up the kids, if you don't come back, I will kill you, then myself." The accused is then said to have reached into his back pocket and pulled out a twenty centimetre knife with a blue handle, a serrated edge and a rusty blade. He is said to have held it around 5 cm from the complainant's stomach. The accused is then alleged to have screamed: "Is this what you want? I'll make it a double homicide. I'll kill you and myself." The accused is said to have made a stabbing motion, backwards and forwards. The complainant became terrified and fell backwards onto the driver's seat and the accused is alleged to have stood over and pressed the tip of the knife to her collarbone and stated numerous times: "I'll do it. I don't care."
Thereafter the complainant rushed to the passenger side of the car and the accused followed her and is alleged to have continued to threaten her and chase her, and at one point, they both fell to the ground and in that process, the accused dropped the knife. The accused then went to the driver's side of the vehicle, switched it on with a spare key, and rolled the vehicle to locate the knife at the bottom of the driveway. The accused saw that the complainant had departed, he chased her, and picked up the knife from the driveway. The complainant stopped and the accused is alleged to have again pointed the knife at her, and to have stated: "Where are you going?" He is then alleged to have forced the complainant to drive to pick up their children and instructed the complainant to call her mother and to tell her that they were going out to dinner with the children.
The accused is said to have pointed the knife at the complainant's face with an outstretched arm. During the drive, the accused is said to have stated: "I promise it's going to work this time, are you going to give it another try?" The complainant said: "Yes". The accused responded: "I love you, I will never let you go. I promise there won't be any more fighting … [and] Promise me that you are not going to call the police." The accused is said to have made the complainant "swear" that she would "give it another try" to which he is said to have responded: "See it wasn't that hard, I didn't have to do this. You should have given me another chance." At that point, the accused is said to have pointed the knife at the complainant again and said: "We're going to make this work. Don't make a scene when the girls come."
Subsequently the complainant and the accused arrived at the childcare centre. At the centre, the accused placed the knife in a compartment under the passenger seat of the car, and fixed the tail light which he had earlier dislodged whilst in the boot. He then instructed the complainant to drive them to Liverpool Catholic Club. The accused is said to have told the children that he and the complainant were going to get back together.
At the Liverpool Catholic Club, the children went to a dedicated play area, and the accused and the complainant sat at a table. Whilst the accused was helping the children change out of their school uniforms, the complainant is alleged to have sent text messages; one to her mother stating that they were having dinner with the girls, and the second, a series of messages to her new partner stating: "Kidnapped", "Call cops", "Ask mum where" and "Ask mum where." These messages were sent within one minute.
It was then asserted that the police arrived five minutes later and placed the accused under arrest. At the time, the accused said to the complainant: "You called them didn't you?"
In the record of interview conducted with the police, the accused is said to have stated:-
He met the complainant at work for lunch;
He did not have a knife although the knife in the car would have his DNA or fingerprints on it because it came from his toolbox;
The complainant has a history of self-harm and the knife was likely hers;
He was in the boot for a minute;
His DNA would be on the steering wheel because he reversed the car;
He and the complainant were talking outside of her work and having a cigarette; and
The complainant's version was not true and he denied threatening her.
During a search of the complainant's vehicle, the police located the following:
A set of keys on a "Jag" key ring and one remote;
A rope tied into a noose;
2 bottles of water (one in the boot);
A white t-shirt with a black motif (in the boot); [and]
A serrated knife with a blue handle (in the passenger seat tray).
CCTV footage obtained from a smash repair business across the road from the complainant's workplace showed that the accused first appeared at 11:27 am walking back and forth. At first, he was wearing a jumper and carrying a backpack, however at 2:39 pm he was wearing a white t-shirt with a black motif and the backpack was no longer visible. At 2:59 pm, the accused is said to be seen walking toward the victim's workplace and does not reappear in the footage.
A search was later carried out on the accused's home. It revealed a noose hanging from the ceiling through a manhole in the roof of the hall. They also found a note written by the accused to the victim. An analysis undertaken is said to reveal the accused's DNA on the water bottle from the boot of the vehicle, a tape lift from the boot of the vehicle and on the knife located in the passenger seat tray.
[3]
Defence case
In support of the release application, counsel for the accused submitted that cause had been demonstrated as to why the detention was not justified, based on the following:
The fact that the trial was now listed to commence on 5 March 2018, meant that the accused would remain in custody for a period since 29 April 2016 - the period in custody thus far is 17 months which is at the midpoint of offences of this kind, according to statistical compilation of sentences for offences which is 18 months;
The accused needs to be at liberty to prepare for his defence;
The accused has not been able to see his children whilst in custody;
The accused does have an offer of full time employment as an office clerk for Oz Care Services Pty Ltd, being a business operated by his sister - Ms Suriawati Nadzri Shah, a registered nurse with no criminal history. Ms Shah has provided an affidavit dated 21 September 2017, found in Exhibit 1, in which she indicates that she is willing to offer the accused a full time position working between 8 am to 6 pm and she is willing to supervise the accused to ensure that he abides by all and every bail condition that the Court may impose on him should he be released to bail. A cash surety of $10,000 has been offered. Ms Shah further stated that if the accused breached or intended to breach any condition, she would have no hesitation in reporting it to the police.
Next, the accused's mother, Ms Norasiah Yaali, registered nurse with no criminal history, stated that she was willing to have her son, the accused, reside at her residence at Carramar, should he be released to bail. She is further prepared to offer a $100,000 security on a property at Liverpool, which is mortgaged. She further stated that she was willing to supervise the accused to ensure that he abides by all and every bail condition, and should the accused breach or intended to breach any condition, she would also have no hesitation in reporting it to the police.
Through his counsel, the Court was informed that the accused was now aware that the complainant has another partner, and was accepting of this and is not interested in resuming any relationship with her.
The Crown for its part maintains that its case is strong and points to concerns about the accused committing a serious offence whilst on bail [3] and endangering the safety of victims, individuals or the community. [4] The Crown's submissions is that the accused has not shown cause as to why his detention was not justified bearing in mind these factors. It did not specifically address the question of the length of time for the finalisation of the proceedings.
In having regard to whether an offence is serious or the seriousness of the offence regard is to be had to the matters in s 18(2) of the 2013 Act.
[4]
Legal principles
The Court of Criminal Appeal in Director of Public Prosecutions v Hourigan [5] reiterated he basic principles that apply to a determination of whether an applicant has shown cause that his or her detention is not justified.
It is acknowledged that the show cause requirement can be met relying on one powerful or a powerful combination of factors. [6] The Court is entitled in this regard to look at all information and evidence it considers credible and trustworthy. The rules of evidence do not apply, however in exercising any function the matter is to be decided on the balance of probabilities. [7]
In demonstrating whether the accused has shown cause the Court is entitled (but not confined) to look at the factors in ss 17 and 18 of the 2013 Act. However whilst there may be an overlap in the matters considered, the ultimate determination of cause being shown is not relevant to whether the accused is an unacceptable risk. [8]
[5]
Time
In this case, the accused has been in custody for approximately 17 months and will remain in custody for a further period of just short of 6 months should bail be refused.
Whilst in custody however he was sentenced to four weeks imprisonment for the offence of possessing a mobile phone/SIM card in custody. This period was served between 20 February 2017 and 19 March 2017.
The time already spent in custody is not a matter which could be considered under the provisions of s 18(1)(h) of the 2013 Act, which only refers to the likely prospective period of imprisonment, as opposed to past custody, but nevertheless, it is a matter which can be considered under s 16A(1) of the 2013 Act, as a part of the accused showing cause.
I acknowledge that the delay in this case is significant. There is nothing before me to sheet the responsibility to the accused. Nevertheless whilst giving full force to what was said by McCallum J in R v Farrell [9] having regard to Hourigan [10] significant delay in not of itself sufficient to show cause.
[6]
Offence
In considering the nature and seriousness of the offence, I note that the facts alleged as earlier outlined, and that the offence in question also carries a maximum penalty of 14 years' imprisonment. Further, the offence is alleged to have involve threats and the use of a weapon.
It is inevitable that if the accused is convicted of the offence, a custodial sentence will be imposed. [11]
Whilst it has been submitted on his behalf that the median term for offences of this kind is only 18 months, it has been recognised that for offences of this nature are not sufficiently homogenous so as to make reference to statistics of much assistance. In this case, it is relevant that a weapon is alleged to have been used, accompanied by threats to the complainant's physical safety. [12]
I have noted the competing arguments as to the strength of the Crown's case. [13] I adopt however of what was said in JM v R [14] by Garling J, the principles of which were endorsed by Fullerton J in R v Xie. [15]
Whilst it is true that much of the dispute as to the events in question rest on the accounts of the accused and the complainant there is evidence outside of that including the text messages, forensic evidence, CCTV and various items found in the boot of the complainant's car which lend support to the Crown case. Overall I would regard the prosecution case on the information provided as being one of reasonable strength.
Such an assessment may be but is not necessarily determinative of whether continued detention is justified. [16]
[7]
Need to be at liberty
Whilst I accept that any accused person would benefit from being free to prepare for Court appearances, no details have been submitted as to any particular difficulties that the accused has in the circumstances of this trial. The trial has been estimated to be a short one of up to seven days. It had been listed for on two other occasions and it would be presumed that preparation would be at a reasonably advanced stage by now.
I note that the accused has had a relationship with the complainant of some duration and two children with her, and has familial support through his mother and his sister. [17]
Whilst his counsel has conveyed that he is accepting of the separation between himself and the complainant, it is conceded that no family law proceedings have been instituted. Part of the reason for his seeking release is to have access to his children. There is no material before me of any action taken in custody to seek visitation by his children and it is unknown how this would be pursed were he to be released.
[8]
Previous history
The accused entered a s 12 bond [18] in 2001. This was not complied with resulting in its revocation in 2003. He ultimately came to serve the twelve month period with a three month non parole period.by way of home detention.
The accused in 2002 has been subject of a community service order which it appears was complied with.
The accused in 2003 was subject of s 9 bond [19] for two years which it appears was complied with.
Overall I would regard these earlier circumstances to be of limited weight.
Nevertheless the accused has a history of previous offending, including having served time in custody for offences involving assault, assault occasioning actual bodily harm and breaches of apprehended domestic violence orders (earlier referred to).
The accused's more recent antecedents also demonstrate a history of non-compliance with orders [20] , including that the fact that he was on parole at the time that these offences were alleged to have occurred, resulting in a revocation of his parole, breaches of apprehended domestic violence orders, involving the same Complainant.
The Crown has pointed to a statement from the complainant dated 22 May 2017 that whilst the accused was in custody, she received a phone call from the accused's brother in law, encouraging her to change her earlier statements in a number of respects. She did so in circumstances outlined in her said statement. She stated that what she had earlier said about the holding of the knife by the accused was not true, and that she was terrified of him and that she was willing to lie in order to avoid going to court as she was extremely scared of the whole situation and what would happen to her afterwards. She stated that she made the earlier statement because she was thinking about how bad the accused would be if she was held responsible for him being in custody and what he would do afterwards.
In this case, I do not take into account, the actions of the accused's brother in law. It has not been suggested that this is conduct of the accused. [21] However, I do note the continued concern of the complainant for her safety, a concern which appears to be based on a history of her relationship with the accused. [22]
[9]
Conditions
The conditions that have been proposed [23] are that the accused reside with his mother at her residence in Carramar, he report to police daily, he be subject to a curfew and that he is to attend employment with his sister at Oz Care Services Pty Ltd.
Although offers have been made of surety by both Ms Suriawati Shah and Ms Norasiah Yaali, the Court is unable to accept these as a condition in circumstances where no concern as to a risk of flight has been advanced. [24]
More broadly it is not open to the Court to impose any conduct condition except on the accused. [25] However in imposing any condition on the accused, the Court has to be satisfied pursuant to s 20A(2)(f) of the 2013 Act, that there are reasonable grounds to believe that the accused person is likely to comply with the conditions
In this case, the accused's history of compliance with Court orders does not assist him. The fact that violations have occurred in circumstances where his return to custody would likely follow indicates that he did not regard this as a deterrent.
In the circumstances I am not satisfied that the accused is likely to comply with the conditions that may lawfully be imposed so as to address the risk of the commission of serious offences and the risk to the complainant [26] if he were to be released from custody.
[10]
Conclusion
When considering the seriousness of the charge, the strength of the Crown case, the likelihood of a significant term of imprisonment should the accused be found guilty, the concerns of the alleged victim, the accused's history of non-compliance with orders and the inability to be satisfied as to compliance with conditions that may lawfully be imposed, I am left to the view such that the concerns raised by the Crown are not satisfactorily addressed.
Whilst the length of time the accused remains in custody is significant it cannot be determinative. I am not satisfied that the accused has shown cause as to why his detention is not justified.
[11]
ORDERS
For these reasons, the application for release is refused.
[12]
Endnotes
s 16B(1)(h)(ii) of the Bail Act 2013 (NSW). Hereinafter referred to as the "2013 Act"
s 16A(1) of the 2013 Act
s 17(2)(b) of the 2013 Act
s 17(2)(c) of the 2013 Act
[2017] NSWCCA 170 at [9] - [11] (Gleeson JA, Harrison and Fullerton JJ) ("Hourigan")
R v S [2016] NSWCCA 189 at [63] (Macfarlan JA, Hall and Bellew JJ)
s 32 of the 2013 Act
s 19(3) of the 2013 Act
[2016] NSWSC 1278 at [24] - [25] (McCallum J)
[2017] NSWCCA 170 at [11] (Gleeson JA, Harrison and Fullerton JJ)
s 18(1)(i) of the 2013 Act
s 18(1)(b) of the 2013 Act; see: R v Newell [2004] NSWCCA 183 at [43] (Howie J with whom Bell and Hislop JJ agreed); Jeffries v R [2008] NSWCCA 144 at [82] - [85] (Johnson J with whom Beazley JA and McCallum J agreed); Homsi v R; Karamalakis v R [2011] NSWCCA 164 at [116] (Hodgson JA with whom Hoeben J and Grove AJ agreed)
s 18(1)(c) of the 2013 Act
[2015] NSWSC 978 at [42] - [43] (Garling J)
[2015] NSWSC 1833 at [43] (Fullerton J)
A1 v R, A2 v R [2016] NSWSC 1288 at [46] - [48] (Garling J)
s 18(1)(a) of the 2013 Act
Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
s 18(1)(f) of the 2013 Act
s 18(1)(n) of the 2013 Act
s 18(1)(o) of the 2013 Act
s 20A(1) of the 2013 Act
s 26(5) of the 2013 Act
ss 25(1) and (2) of the 2013 Act
ss 17(2)(b) and (c) of the 2013 Act
[13]
Amendments
29 October 2020 - Typographical error amended
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Decision last updated: 29 October 2020