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Court of Criminal Appeal 18 May 2015

Hamze v R

[2015] NSWCCA 104

Assault & violenceTheft & property
BAIL RELEASE APPLICATION SHOW CAUSE OFFENCE S 16B BAIL ACT 2013 WHERE APPLICANT HAS CRIMINAL RECORD STRENGTH OF THE PROSECUTION CASE

Citation: Hamze v R [2015] NSWCCA 104
Court: Court of Criminal Appeal, NSW
Date: 18 May 2015
Judges: Bathurst CJ; Simpson J; R A Hulme J

Background

The applicant sought a bail release application before the Court of Criminal Appeal under s 49 of the Bail Act 2013 (NSW), following an earlier refusal by Button J in February 2015. He faced trial in the District Court at Parramatta, listed to commence on 19 October 2015, on four serious charges: causing grievous bodily harm with intent, specially aggravated kidnapping, stealing a motor vehicle, and intentionally destroying a motor vehicle by fire while in company.

The prosecution's case centred on events from 25 July 2013, when the applicant was alleged to have participated in a violent confrontation with the victim, who was lured to a meeting, assaulted and shot in the thigh, bundled into his own car, and later dropped at a hospital. The victim's car was subsequently set alight. The Crown's evidence included telephone intercepts, mobile phone cell tower data, CCTV footage, and the victim's early statement to police naming the applicant.

The applicant had been in custody since his arrest on 2 January 2014. His brother had pleaded guilty and was awaiting sentence; a co-accused charged later was listed for a paper committal and potentially to be tried jointly with the applicant.

  • Whether the applicant could show cause, on the balance of probabilities, why his continued detention was not justified under s 16A of the Bail Act 2013 (NSW), given that the charges were "show cause" offences
  • Whether the show cause requirement and the unacceptable risk assessment under s 19 are distinct steps in the bail analysis
  • What weight should be given to the applicant's time already spent in custody, the anticipated delay until trial, the strength of the Crown case, and his history of failing to appear and offending while on bail

Decision

The Court confirmed, following Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83, that the show cause requirement and the unacceptable risk assessment are distinct considerations. The show cause threshold required the applicant to demonstrate on the balance of probabilities that his detention was not justified, having regard to all credible and trustworthy evidence, and not merely the factors listed in s 18 for the unacceptable risk assessment.

The Court acknowledged the applicant's submission that the Crown case was not particularly strong, but characterised it as nonetheless viable. It also recognised genuine concern about the length of time the applicant had already spent in custody, noting a further six months or so remained before his trial would likely conclude.

Against those factors, the Court weighed the extreme seriousness of the alleged offences, the significant custodial sentence that would likely follow conviction, and the resulting inherent risk that the applicant might seek to avoid consequences. Of particular weight was the applicant's poor history of compliance with bail: four convictions for failing to appear, offending while on bail, and a record of non-compliance with bail conditions including residency requirements and program participation. The Court found it difficult to give any weight to the unsubstantiated bar table assertion that past non-compliance was attributable to drug addiction now addressed.

In all the circumstances, the applicant failed to show cause on the balance of probabilities why his detention was not justified, and the application was refused.

Orders Made

  • Bail release application refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the show cause requirement under s 16A of the Bail Act 2013 and the unacceptable risk assessment under s 19 are two distinct steps, consistent with DPP (NSW) v Tikomaimaleya [2015] NSWCA 83. Failure at the show cause stage ends the inquiry.
  • Under the show cause test, the bail authority must consider all credible and trustworthy evidence, not only the factors exhaustively listed in s 18 for the unacceptable risk assessment.
  • Time already spent in custody is relevant to a show cause application, but so too is the remaining period until trial. Here, approximately six months remained before the trial was expected to conclude, and that factor did not outweigh the gravity of the charges.
  • A history of failing to appear in court, offending while on bail, and non-compliance with bail conditions carried significant weight against the applicant. Bare assertions from the bar table about changed circumstances received little weight without supporting evidence.
  • Refusing bail, the Court found that the seriousness of the alleged offences and the prospect of a substantial custodial sentence, combined with the applicant's compliance history, meant sufficient cause had not been demonstrated why continued detention was not justified.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 18, 19, 32, 49, 67
- Crimes Act 1900 (NSW), ss 33(1)(b), 86(3), 154F, 195(1A), Part 3

Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83