Citation: Zahed v Director of Public Prosecutions (NSW) [2020] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 10 February 2020
Judges: Gleeson JA; R A Hulme J; Button J
Background
The applicant sought a bail release order from the Court of Criminal Appeal following an earlier refusal. He faced six charges involving dealing with the proceeds of crime (totalling over one million dollars), as well as dishonesty offences relating to false declarations of financial circumstances made to government agencies. The prosecution case included allegations that very large sums had been channelled through bank accounts held in the names of the applicant's young children.
The applicant carried a significant criminal history, including a sentence of eight years imprisonment (with a five-year non-parole period) for discharging a firearm with intent to cause grievous bodily harm. Parole for that sentence did not expire until October 2017, meaning the applicant was on parole when several of the alleged offences occurred, and on bail for other matters when other alleged offending took place.
The Court heard the application on 29 November 2019 and announced its refusal at the conclusion of the hearing. These reasons were subsequently published. The decision was rendered substantially academic by intervening events: on 18 December 2019, some charges were withdrawn, fresh charges were substituted, and a magistrate granted bail in the Local Court.
Legal Issues
- Whether the applicant had shown cause why his detention was not justified under the "show cause" requirement in ss 16A and 16B(1)(h) of the Bail Act 2013 (NSW), which is triggered where alleged offending occurs while on parole or on bail
- Whether, assuming cause was shown, any bail concerns arose that would constitute unacceptable risks under s 19 of the Bail Act, specifically risks of failing to appear, committing a serious offence, or interfering with witnesses
- Whether acknowledged weaknesses in the prosecution's case on the more serious proceeds of crime charges (under s 193B(3) of the Crimes Act 1900) were sufficient to satisfy the show cause threshold
Decision
It was common ground that the applicant faced the "show cause" threshold under ss 16A and 16B(1)(h) of the Bail Act, because several of the alleged offences occurred while he was on parole and others while on bail. The applicant argued cause was shown by the weakness of the prosecution case on the most serious charges and the prospect that he would not receive a full-time custodial sentence on the lesser charges.
The Court accepted that the prosecution faced a real legal difficulty with the s 193B(3) charges. Under authority including Chen v Director of Public Prosecutions (Cth), those charges require the prosecution to identify and prove the class of indictable offence from which the alleged proceeds were derived. The Crown acknowledged this weakened those charges. However, the Court found that viable charges remained, including statutory alternatives under s 193C with lower maximum penalties, and that a full-time custodial sentence on conviction remained a realistic prospect extending beyond the remand period.
The Court was also unpersuaded by the applicant's proposed bail conditions. The two most significant witnesses put forward in support of those conditions were found to have substantial credibility problems. There was no challenge to the Crown's assertion that the applicant had associations with persons who could assist him in leaving the country, and those associations were also potentially relevant to his access to the large, largely unexplained sums at the heart of the charges.
Taking all matters together, including the applicant's history of non-compliance with bail conditions, parole obligations, and court attendance requirements, the Court was not satisfied that cause had been shown why detention was not justified. The application was refused.
Orders Made
- The bail release application was refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that where alleged offending occurred while the applicant was on parole or on bail, the "show cause" threshold under ss 16A and 16B(1)(h) of the Bail Act 2013 must be satisfied before any assessment of bail concerns is undertaken.
- Acknowledged weaknesses in the prosecution case on the most serious charges did not, of themselves, satisfy the show cause requirement where other viable charges remained and a full-time custodial sentence on conviction was still a realistic outcome.
- Under s 193B(3) of the Crimes Act 1900, prosecuting proceeds of crime offences requires identification and proof beyond reasonable doubt of the class of indictable offence from which the property was derived, consistent with Chen v Director of Public Prosecutions (Cth) (2011) 83 NSWLR 224.
- Credibility findings about supporting witnesses directly undermined the applicant's proposed bail conditions, illustrating that the overall strength and reliability of the bail evidence is material to the show cause analysis.
- An extensive history of non-compliance with bail, parole, and court attendance obligations weighed against the applicant independently of the merits of the underlying charges.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B(1)(h)(i), 16B(1)(h)(ii), 17, 19
- Crimes Act 1900 (NSW), ss 192G(b), 193B(3), 193C(2)
- Criminal Code (Cth)
Cases:
- Chen v Director of Public Prosecutions (Cth) (2011) 83 NSWLR 224; [2011] NSWCCA 205
- Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; (2012) 227 A Crim R 287
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Lin v R [2015] NSWCCA 204; (2015) 253 A Crim R 1
- R v Ansari; R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204
- R v McKellar (No 3) [2014] NSWSC 106