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Supreme Court 31 March 2020

Rakielbakhour v DPP

[2020] NSWSC 323

Assault & violenceDomestic & family violence
CRIMINAL LAW BAIL COVID NOVEL CORONAVIRUS PANDEMIC RELEVANCE TO BAIL APPLICATION

Citation: Rakielbakhour v DPP [2020] NSWSC 323
Court: Supreme Court of New South Wales
Date: 31 March 2020
Judge(s): Hamill J

Background

The applicant was charged with two domestic violence offences arising from a single incident on 26 February 2020: common assault and assault occasioning actual bodily harm against his wife. The prosecution case alleged a sustained physical assault causing significant facial injuries, supported by neighbour accounts and police observations at the scene. The applicant pleaded not guilty and denied the offences, offering what the court described as an unlikely alternative explanation.

A significant evidentiary complication arose because the alleged victim indicated she did not wish to give evidence and had provided a positive exculpatory account, including a statement that she had fallen in the shower. The prosecution acknowledged this created real difficulties of proof, though it maintained a case to answer remained open.

The applicant applied for bail on 30 March 2020. In addition to personal circumstances, health conditions, and family support, he tendered a substantial body of evidence concerning the COVID-19 pandemic and its particular impact on the NSW prison and court systems. Hamill J granted bail at the conclusion of the hearing and delivered these written reasons within 24 hours.

  • Whether the existence and conditions of the COVID-19 pandemic constituted relevant considerations in a bail application under the Bail Act 2013 (NSW)
  • Whether the increased risks and burdens of incarceration during the pandemic (including suspension of personal visits, extended cell lockdowns, and heightened health vulnerability) affected the balance of factors under the Bail Act
  • Whether anticipated delays in court proceedings arising from the pandemic were relevant to the detention of an accused on remand
  • Whether the strength of the prosecution case and the alleged victim's exculpatory stance bore on the bail determination

Decision

Hamill J granted bail, providing detailed reasons on both the conventional bail factors and the novel COVID-19 considerations. On the strength of the prosecution case, the court accepted that a case to answer existed but found its strength was genuinely questionable given the alleged victim's exculpatory statement and her unwillingness to give evidence. The applicant's relatively minor criminal history and strong community and family support were also taken into account.

The court treated the COVID-19 pandemic as a material factor in the bail assessment. The evidence established that prisons are particularly susceptible to rapid viral transmission, that personal visits had been suspended, and that inmates were experiencing extended lockdowns. NSW Health had specifically identified people in detention facilities as being at heightened risk of serious infection. The applicant's own health conditions added further weight to this consideration.

The court also noted that the pandemic was causing significant adjournments of criminal proceedings, meaning the applicant would likely face a prolonged period on remand before any summary hearing. This delay, combined with the altered and more burdensome conditions of incarceration during the pandemic, increased the significance of continued detention in the overall bail calculus.

Hamill J imposed a comprehensive set of conditions designed to address the serious nature of the domestic violence allegations, including a curfew, no-contact conditions, restrictions on communications, a $10,000 surety, and requirements around accompaniment upon release.

Orders Made

  • Bail granted subject to the following conditions:
  • Curfew (hours not specified in the provided text)
  • Residence at a specified address
  • No contact with the alleged victim except through lawyers, and contact permitted only in relation to children of the marriage
  • No contact in any form with any person known to be a prosecution witness (except through lawyers)
  • Possession of one mobile telephone only, with the telephone number and IMEI to be provided to the Officer in Charge within 24 hours of release
  • No use of encrypted communications or encrypted applications
  • Travel from the correctional centre only in the company of specified approved persons, one of whom must attend the centre before release
  • Not to apply for any new passport or travel document
  • Not to go within 1 km of any international point of departure
  • One acceptable person to deposit $10,000 in cash, forfeitable upon failure to appear
  • Obligation to present at front door upon direction of a police officer reasonably satisfied compliance verification is necessary, with due regard to the rights of other occupants

Key Takeaways

  • The Supreme Court confirmed that the COVID-19 pandemic is a relevant and legitimate consideration in bail applications under the Bail Act 2013 (NSW), capable of affecting the weight given to continued incarceration.

  • Prison populations were recognised as being at heightened risk of serious COVID-19 infection, based on NSW Health guidance, and the suspension of personal visits and extended lockdowns were treated as factors increasing the burden of remand beyond its ordinary consequences.

  • Anticipated delays to summary hearings caused by pandemic-related court adjournments were found relevant to the assessment of how long an accused might remain on remand, and therefore to the overall bail determination.

  • Where an alleged victim of domestic violence provides a positive exculpatory account, rather than merely declining to participate, this can materially affect the assessed strength of the prosecution case and, in turn, the bail calculus, even where a case to answer technically remains.

  • Bail was not granted without significant conditions: the court imposed a detailed regime of restrictions addressing flight risk, witness interference, and communication, reflecting the serious nature of the underlying domestic violence charges.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Legislation Amendment (Emergency Measures) Act 2020 (NSW)

Cases:
- Brown v The Queen [2020] VSCA 60
- Re Broes [2020] VSC 128
- Re Tong [2020] VSC 141
- Sazimanoska v The Queen [2020] VSCA 66