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District Court 8 July 2021

R v Mohamed HUSSIEN

[2021] NSWDC 313

Firearms & weapons

Citation: R v Mohamed Hussien [2021] NSWDC 313
Court: District Court of New South Wales
Date: 8 July 2021
Judge: Montgomery DCJ

Background

The accused faced six serious charges arising from an incident on 9 May 2020 at Richmond, NSW. The charges included discharging a Taurus PT1911 pistol with intent to cause grievous bodily harm, recklessly discharging a firearm at a dwelling house, possession of an unlicensed prohibited pistol, and possession of a prohibited firearm and ammunition magazine in contravention of a firearms prohibition order then in force.

The accused had been in custody or subject to strict bail conditions since 9 July 2020. A trial was listed to commence on 7 June 2021, but the Crown applied to vacate it on 3 June 2021, with a solicitor's affidavit revealing that multiple items of evidence remained unserved or unprepared. As of the bail hearing on 8 July 2021, at least three of those outstanding items had still not been completed, and trial was adjourned to 20 September 2021.

The accused applied for bail, with counsel submitting that the Crown's delay and the resulting period of pre-trial custody weighed in favour of release.

  • Whether the accused could show cause, on the balance of probabilities, why his continued detention was not justified under s 16A(1) of the Bail Act 2013 (NSW)
  • How to weigh the Crown's substantial delay in preparing for trial against the seriousness of the offences and the risk of danger to the community
  • Whether prior non-compliance with bail conditions was a relevant factor against the grant of bail

Decision

The parties did not dispute that the offences fell within the "show cause" category under the Bail Act 2013 (NSW). This means the onus rested on the accused to demonstrate, on the balance of probabilities, that continued detention was not justified. Montgomery DCJ found the accused had not discharged that burden.

His Honour accepted that the Crown's preparation had been seriously deficient and characterised this as an "affront" to the values of the justice system. He acknowledged that the accused had been incarcerated or on highly restrictive bail for approximately one year. However, weighing the hardship of continued remand against the likely sentence upon conviction for these types of offences, the court concluded the disproportion was not sufficient to make continued detention unjustified, particularly with trial only around ten weeks away.

The Crown case, while lacking direct evidence placing the accused at the scene, was assessed as strong on the available material. Key evidence included the accused's thumbprint on an ammunition magazine found in an apartment that telephone records, CCTV footage, and surveillance indicated was the accused's residence or regularly occupied place. The nature of the alleged offences also raised a substantial concern about danger to the community.

Significantly, the accused had breached the stringent bail conditions previously set by Campbell J. Those conditions required him to reside at the Connect Global rehabilitation facility and to attend the nearest police station upon discharge. He was terminated from Connect Global in February 2021 for inappropriate behaviour and positive drug testing, failed to surrender to police on leaving, and was subsequently charged with driving offences including driving whilst disqualified and possession of a prohibited drug. That history weighed materially against the application.

Orders Made

  • The application for bail was refused.
  • The prosecution was directed to notify the accused by letter no later than 20 July 2021 of the state of its readiness for trial, including a description of the complete Crown brief and when it would be served.
  • A transcript of the judgment was directed to be taken out and placed with the papers.
  • Callover was confirmed before Judge Hanley SC on 13 August 2021.

Key Takeaways

  • Refusing bail, the District Court held that delay caused by the Crown, while capable of being a relevant consideration, did not by itself justify release where the offences were serious, the Crown case was assessed as strong, and the trial was only approximately ten weeks away.
  • Under s 16A(1) of the Bail Act 2013 (NSW), the burden rests on the accused to show cause why detention is not justified, on the balance of probabilities, for offences within the show cause category.
  • Prior non-compliance with bail conditions, including breaching residency requirements at a rehabilitation facility, failing to surrender to police, and committing further offences while on bail, were treated as significant factors weighing against release.
  • A strong circumstantial case, including forensic and surveillance evidence linking the accused to a weapon, can bear on the show cause analysis even where no direct evidence places the accused at the scene.
  • The court directed the Crown to provide a formal update on trial readiness, signalling that persistent prosecutorial delays carry procedural consequences and that the accused's proposed bail conditions remained on record for any future application.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 16A
- Crimes Act 1900 (NSW), ss 33A(1)(a), 93GA(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Firearms Act 1996 (NSW), ss 7(1), 74(1), 74(2)
- Criminal Procedure Act 1986 (NSW)

Cases: No cases were cited in the judgment.