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Supreme Court 12 April 2019

R v Alahmad

[2019] NSWSC 412

Assault & violenceFirearms & weaponsPublic order & justice offences
BAIL RELEASE APPLICATION VARIATION REMOVAL OF CONDITION OF HOUSE ARREST STRENGTH OF CROWN CASE EXAMINED

Citation: R v Alahmad [2019] NSWSC 412
Court: Supreme Court of New South Wales
Date: 12 April 2019
Judge: Schmidt J

Background

The accused was charged with serious firearm and affray offences allegedly committed in June 2018. He had been taken to Auburn Hospital with life-threatening gunshot wounds before being arrested and charged on the same day. The charges were defended and a trial was anticipated in early 2020.

The accused had initially been refused bail by Fullerton J in July 2018, who found unacceptable risks of witness interference, further serious offending, and danger to community safety. He was subsequently granted bail by Hidden AJ in October 2018, subject to stringent conditions including effective house arrest, reporting obligations, non-association conditions, and place restrictions.

Having complied with those conditions for approximately six months, the accused applied under the Bail Act 2013 (NSW) to have the house arrest condition removed or relaxed. He sought to take up an offer of employment and to attend ordinary activities, including Mosque during Ramadan. The Crown opposed the application.

  • Whether the bail concerns and risks identified by Fullerton J remained relevant on a variation application under s 20A of the Bail Act 2013, even though the show cause test under s 16A did not arise again.
  • Whether the house arrest conditions remained reasonably necessary, reasonable and proportionate, and no more onerous than necessary to address the identified bail concerns under s 20A.
  • What weight, if any, could be given to a letter written by the accused in support of the application, where the accused declined to give evidence and submit to cross-examination.

Decision

Schmidt J held that even though the show cause test did not arise again on a variation application, the bail concerns and risks the accused posed remained squarely relevant under s 20A. Her Honour found the accused continued to pose all four bail concerns identified by the Crown: risk of non-appearance, risk of committing a serious offence, danger to the victim, and risk of interference with witnesses or evidence.

On the question of the letters tendered in support of the application, the Crown had initially accepted the accused's letter into evidence but sought to cross-examine him on its contents. The accused declined to give evidence, as was his right. The Crown then objected to the letter, but later withdrew that objection, with the parties accepting that the court retained a discretion as to the weight, if any, to be given to untested material.

Schmidt J drew an analogy with the sentencing context established in R v Qutami and Imbornone v R, where an offender who declines to be cross-examined on accounts given to others cannot expect those accounts to carry weight. Her Honour held that where self-interested, untested assertions are advanced by letter and appear to depart from what the applicant had said on earlier applications, no weight can be placed on such material where the applicant refuses to give evidence.

Notwithstanding the accused's six months of compliance with bail conditions, Schmidt J was satisfied that the house arrest condition remained reasonably necessary to address the identified bail concerns, and that it continued to satisfy each of the requirements in s 20A. The application was refused.

Orders Made

  • The application for variation of the accused's bail conditions was refused.

Key Takeaways

  • Bail concerns and risks under s 20A of the Bail Act 2013 must be assessed on a variation application even where the show cause test under s 16A does not arise again. The two statutory tests are distinct and cannot be conflated, as confirmed in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.
  • A bail applicant who tenders a self-serving letter in support of a variation application but then refuses to give evidence and be cross-examined on its contents risks having that letter accorded no weight. The principle mirrors the approach in the sentencing context established in R v Qutami and Imbornone v R.
  • Compliance with bail conditions over a period of months is a relevant consideration under s 18(1)(f) of the Bail Act 2013, but it is not determinative and may be insufficient on its own to discharge the unacceptable risk assessment where other serious bail concerns persist.
  • Under s 20A, a bail condition is justified only where it is reasonably necessary, proportionate, appropriate to the specific concern, and no more onerous than necessary. In this case, the seriousness of the charges and the ongoing risks the accused posed meant those requirements continued to be met by the house arrest condition.
  • Refusing to engage in cross-examination on untested assertions does not, of itself, prevent a court from receiving a letter into evidence, but the evidentiary weight of such material will ordinarily be nil.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 18, 19, 20A, 31, 32
- Crimes Act 1900 (NSW)

Cases
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Imbornone v R [2017] NSWCCA 144
- R v Alahmad (Supreme Court (NSW), Fullerton J, 17 July 2018, unreported)
- R v Alahmad (Supreme Court (NSW), Hidden AJ, 8 October 2018, unreported)
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369