Citation: Mariam v Director of Public Prosecutions (NSW) [2015] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 11 August 2015
Judge(s): Macfarlan JA; R A Hulme J; Garling J
Background
The applicant sought release on bail pending a District Court trial listed for September 2015. He faced two charges: unlawful possession of a loaded .45 calibre semi-automatic pistol found in a ceiling cavity at a Parramatta unit he occupied, and perverting the course of justice by allegedly arranging for another man to sign a false statutory declaration claiming ownership of that firearm.
The alleged perversion of justice involved the applicant, while in custody, offering a fellow prisoner $35,000 and a motor vehicle to falsely claim the gun was his. Police corroborated aspects of the account, including locating a Toyota Camry at the witness's family home, registered to a company of which the applicant was a director. The applicant denied knowledge of the pistol and the alleged arrangement.
The applicant had a history of prior criminal matters, parole non-compliance, and a bail grant that had already been revoked by way of a successful Crown detention application in May 2015. The present application was his renewed bid for release under strict conditions, including home detention and substantial sureties.
Legal Issues
- Whether releasing the applicant on bail posed an "unacceptable risk" under s 17 of the Bail Act 2013 (NSW) of:
- interfering with witnesses or evidence
- committing a further serious offence
- failing to appear at trial
- Whether proposed strict bail conditions were sufficient to reduce any such risks to an acceptable level
- Whether the "show cause" threshold under s 16A applied (conceded by common ground that it did not)
Decision
R A Hulme J (with whom Macfarlan JA and Garling J agreed) assessed the bail concerns under s 18(1) of the Bail Act 2013, noting that the court was confined to the matters listed in that provision, consistent with the Court of Appeal's approach in DPP (NSW) v Tikomaimaleya.
On the strength of the prosecution case, his Honour found the firearms charge had a viable evidentiary foundation. The DNA matching the applicant was found on the pistol, and no supporting evidence for the alternative explanations advanced by the defence had been put forward. The perverting the course of justice charge depended substantially on the credibility of the witness (referred to as MK), but was supported by corroborating evidence such as the motor vehicle link to the applicant's company.
Regarding witness interference, his Honour noted that MK had recently been released from prison and that police held fears for his and his family's safety. The defence argued that any interference would be futile given provisions of the Evidence Act 1995 (NSW) that allow prior statements to be admitted, but his Honour rejected this reasoning. There was no evidence the applicant was aware of or understood those provisions, and the conduct alleged in the perverting charge itself demonstrated a willingness to take significant steps to avoid criminal sanction.
Weighing the proposed strict conditions, including home detention and substantial financial sureties, against the totality of the relevant factors, his Honour concluded that two concerns reached the threshold of "unacceptable risk": the risk of interference with MK, and the risk of further serious offending. A lesser concern about failing to appear also existed. Bail was refused.
Orders Made
- Bail application refused.
Key Takeaways
- Refusing bail, the Court of Criminal Appeal confirmed that the assessment of unacceptable risk under the Bail Act 2013 is confined to the matters listed in s 18(1), applying the approach set out in DPP (NSW) v Tikomaimaleya.
- Even strict proposed conditions, including home detention and significant financial sureties, may be insufficient to reduce bail concerns to an acceptable level where the alleged offending itself demonstrates a preparedness to actively subvert the justice process.
- The argument that witness interference would be "futile" because prior statements could be admitted under ss 38, 65 and 165 of the Evidence Act 1995 was rejected where there was no evidence the applicant knew of or understood those provisions.
- An applicant's history of non-compliance with parole, prior offending while on bail, and criminal history involving violence are all relevant considerations under s 18(1) in assessing unacceptable risk.
- Under the Bail Act 2013, a finding of unacceptable risk on even one of the listed criteria is sufficient to justify refusal of bail; here, the court was satisfied on two.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 17, 18
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Firearms Act 1996 (NSW), s 7(1) (possession of prohibited firearm without authorisation)
- Evidence Act 1995 (NSW), ss 38, 65, 165
Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- R v Moustafa Mariam [2012] NSWSC 1496