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Supreme Court 3 March 2020

R v Ayoub

[2020] NSWSC 154

HomicidePublic order & justice offences
CRIME BAIL VARIATION APPLICATION VARIATIONS NOT OPPOSED, AND GRANTED APPLICATION REFUSED

Citation: R v Ayoub [2020] NSWSC 154
Court: Supreme Court of New South Wales
Date: 3 March 2020
Judge(s): Davies J

Background

The applicant faced serious charges arising from the 2017 shooting murder of a man at his home in Glenfield. The applicant was not alleged to be the shooter but was charged with being an accessory after the fact to murder, doing acts to pervert the course of justice, and giving false evidence to the NSW Crime Commission, among other offences.

The applicant had been on bail since August 2019, subject to stringent conditions including twice-daily reporting to police, a curfew, GPS electronic monitoring provided by a third-party contractor, and substantial property security totalling more than $2.1 million backed by multiple sureties. A prior variation in February 2020 had allowed him to leave the premises during the day for lawful employment.

When the initial six-month electronic monitoring contract expired on 26 February 2020, the applicant applied to Davies J for three variations to his bail conditions: reduced reporting frequency, a change in the name of his employer, and the removal of the electronic monitoring requirement entirely on grounds of financial hardship.

  • Whether the applicant's reporting obligation should be reduced from twice to once daily.
  • Whether the bail condition should be varied to reflect a change in the applicant's employer's name.
  • Whether the electronic monitoring condition should be dispensed with on the basis that the applicant and his family could not afford the ongoing cost.

Decision

Davies J granted the first two variations without difficulty. The Crown did not oppose reducing reporting to once daily or updating the employer name, and the court made orders accordingly. The surety consents required for the employer name change were obtained and provided.

The application to remove electronic monitoring was the central contested issue. The applicant's case rested on financial hardship, supported by an affidavit from his mother and, after the court found that affidavit insufficiently detailed, oral evidence and bank statements produced in an afternoon hearing. The mother's evidence disclosed that the household income was largely Centrelink payments, that she had funded the first six-month monitoring period from savings, and that further funds could only be obtained by borrowing from relatives.

Davies J accepted that there was genuine financial difficulty but did not accept that the evidence established an inability to meet the cost of a further monitoring period. The court noted that significant sums had passed through the family's bank accounts in the form of loans from the applicant's sister, and concluded the family had access to financial resources beyond what their Centrelink income alone suggested. The applicant had also originally offered to wear electronic monitoring as a condition of obtaining bail, which the court weighed against the application to remove it.

The court then considered an alternative: rather than dispensing with monitoring altogether, it could release a portion of the security deposit held from the applicant's mother and use those funds to pay for a further monitoring period. The applicant's argument that this was not a practical solution, because the full deposit was needed to maintain bail security, was rejected. With the consent of the sureties, $15,000 was released from the mother's deposit, leaving $5,000 in place as ongoing security, and the monitoring condition was maintained.

Orders Made

  • Reporting condition varied to once daily at Bankstown Police Station between 4:00 pm and 8:00 pm, seven days a week.
  • The surety security agreement held by Sahar Ayoub reduced to $5,000 in respect of each of the two relevant charge numbers (replacing the prior $20,000 condition), with $15,000 released to fund continued electronic monitoring.
  • Employment condition varied to permit absence from the Condell Park residence between 6:00 am and 8:00 pm for lawful employment with QACO Pty Ltd.
  • All other bail conditions, including electronic monitoring, remained in place.

Key Takeaways

  • A bare assertion of financial hardship, without sufficiently detailed evidence of the applicant's actual financial position, will not satisfy the court on a bail variation application to remove an electronic monitoring condition.
  • Where a bail applicant originally offered to submit to electronic monitoring as a condition of obtaining bail, that concession carries weight when the court later assesses an application to remove that condition.
  • The Supreme Court was prepared to consider a creative alternative to outright removal of monitoring: releasing part of a surety's security deposit to fund the ongoing cost, thereby preserving both the monitoring regime and a reduced level of financial security.
  • Evidence of funds flowing through bank accounts can inform the court's assessment of financial capacity, even where an applicant's regular income appears modest.
  • Surety consent is required before the court will alter conditions relating to security deposits, and the court adjourned to obtain those consents before making orders on the security variation.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 16B

Cases: None cited in the judgment.