R v Najem

Citation: R v Najem [2015] NSWSC 2108
Court: Supreme Court of New South Wales
Date: 18 February 2015
Judge(s): Wilson J

Background

The applicant sought bail in the Supreme Court in relation to charges of driving whilst suspended, multiple counts of break, enter and steal, and possession of goods in custody. The matters were listed for mention in the Sutherland Local Court on 3 March 2015.

At the time the alleged offences were committed, the applicant was subject to at least two separate bail orders and two section 9 bonds (bonds without conviction, requiring good behaviour for 18 months) arising from earlier drug and domestic violence-related matters. This combination of conditional liberty triggered the "show cause" provisions of the Bail Act 2013 (NSW), which required the applicant to demonstrate why his continued detention was not justified.

The applicant also raised a significant medical issue: he had sustained serious spinal and arm injuries in a motor vehicle accident and alleged he had received no pain relief or appropriate bedding since being taken into custody on 12 January 2015.

Legal Issues

• Whether the applicant had discharged the "show cause" burden under the Bail Act 2013 (NSW), given he was on multiple bail orders and bonds at the time of the alleged offences
• Whether the risks associated with releasing the applicant on bail were unacceptable, or could be adequately mitigated by bail conditions

Decision

Wilson J found that the applicant had discharged the show cause burden, principally on the strength of his medical situation. The court accepted that, if the allegations about the denial of medical care were accurate, holding the applicant in circumstances where he was being denied appropriate treatment for serious injuries was capable of justifying why his detention was not warranted. The strength of the Crown case was also uncertain on the available material, as competing accounts about the seized property could not be resolved at this stage.

However, discharging the show cause burden is only the first step. The court then turned to whether the risks of releasing the applicant were unacceptable, or could be sufficiently addressed by conditions. On this question, the applicant's criminal history was significant: it dated back to 1999 and included convictions for contravening apprehended domestic violence orders, demonstrating what the court characterised as a pattern of disregard for court orders.

The proposed bail residence was the same address where the applicant had been living at the time of the alleged offences, which the court found did little to reduce the risk of further offending. No surety was available, and while reporting conditions could provide some supervision, the court concluded they were insufficient given the overall circumstances.

Weighing the applicant's interest in liberty (particularly to access medical treatment) and the likely delay before final disposition against the risk of further offending, Wilson J was not persuaded that available bail conditions could adequately mitigate the risks. Bail was refused.

Orders Made

• Bail refused.
• The Registrar directed to provide a copy of the remarks to the superintendent of the facility where the applicant was held and to the Director of Justice Health, noting the applicant's complaints about the absence of medical treatment and requesting that he be immediately assessed by a doctor and given appropriate treatment and pain relief.

Key Takeaways

• Under the Bail Act 2013 (NSW), an applicant subject to multiple bail orders and good behaviour bonds at the time of alleged offending must satisfy a "show cause" threshold before the court considers whether bail risks are unacceptable.
• Credible allegations of denial of medical treatment in custody can be sufficient to discharge the show cause burden, even where those allegations cannot be independently verified by the court at the bail hearing stage.
• Discharging the show cause burden does not automatically result in bail being granted. A separate and distinct assessment of whether risks of further offending or non-compliance are unacceptable, and whether conditions can adequately address them, must follow.
• A history of contravening apprehended domestic violence orders was treated as evidence of a pattern of disregarding court orders, weighing significantly against the grant of bail.
• Where the court cannot grant bail but has concerns about the welfare of a person in custody, it has the capacity to refer those concerns directly to correctional and health authorities, as Wilson J did here by directing the Registrar to notify facility management and Justice Health.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW), s 9 (bonds referred to in the judgment)

Cases cited: None cited in the judgment.