Citation: R v Salim [2023] NSWSC 1288
Court: Supreme Court of New South Wales
Date: 19 October 2023
Judge(s): Wilson J
Background
The accused faced serious charges including three counts of sexual assault under section 61I of the Crimes Act 1900 (NSW) and one count of aggravated sexual assault under section 61J. He had been granted bail by Rothman J on 28 June 2023, subject to a substantial set of conditions including reporting requirements, home detention with limited exceptions, surrender of passport, non-contact and non-approach conditions, and a surety.
The accused applied to have several of those conditions relaxed. Specifically, he sought reduced reporting obligations, a loosening of the home detention condition, and permission to travel interstate for business purposes. The Crown opposed all proposed variations.
Legal Issues
- Whether the risks of flight and further serious offending could be adequately mitigated if the bail conditions were varied as sought
- Whether the accused's business commitments and delays in the committal proceedings provided sufficient grounds to ease bail conditions
- Whether the existing conditions were the minimum necessary given the nature of the charges and the accused's criminal history
Decision
Issue 1: Risk of further serious offending
Wilson J found the risk of further serious offending to be relatively high (at [10]). The charges themselves were serious, and the complainant's allegations described aggressive and violent conduct. The accused's resistance against police upon arrest was noted as tending to support the complainant's account of his behaviour (at [8]). The accused also had a significant criminal history, including convictions for robbery in company, reckless infliction of grievous bodily harm, and possession of weapons (at [12]).
Issue 2: Risk of flight
The Court identified a meaningful risk of flight, particularly given the severity of the potential penalties if the accused were convicted of the sexual assault charges (at [10]). His interstate business connections and access to means of travel heightened rather than diminished that concern. Granting permission for interstate travel was described as inviting the prospect of flight from the jurisdiction (at [9]).
Issue 3: Business commitments and delay in proceedings
The Court acknowledged the accused's business interests and the delays in the committal process, but did not accept these as reasons to ease conditions. The existing bail terms already permitted the accused to leave home at any time in the company of his brother, solicitor, or personal assistant, which the Court regarded as sufficient for him to conduct his business (at [11]). As for delay, charge certification was imminent and a District Court trial date was likely early in the following year, placing the timeline within ordinary parameters (at [5]-[6]).
Issue 4: Overall assessment
Wilson J was not satisfied that the proposed variations would adequately address the identified risks. The Court observed that the existing conditions had originally been proposed by the accused himself and endorsed as the minimum necessary to mitigate risk. Given the nature of the charges, the accused's criminal history including prior bail breaches and breach of an apprehended domestic violence order, and the risks identified, the application was refused (at [12]-[13]).
Orders Made
- Application for bail variation refused
Key Takeaways
- Compliance with bail conditions to date does not, on its own, justify a reduction in those conditions where the underlying risks remain high (at [3], [13]).
- Where existing bail conditions already permit movement outside the home under supervision, a court may find that business obligations do not warrant further relaxation (at [11]).
- A criminal history involving prior bail breaches, violence, weapon possession, and breach of court orders weighs heavily against any easing of bail conditions, even in the context of an application for variation rather than an initial bail determination (at [12]).
- Interstate business connections and access to means of travel can elevate rather than neutralise the assessed risk of flight, particularly where the charges carry serious sentencing consequences upon conviction (at [10]).
- Refusing bail variation, the Court noted that delay in proceedings tracking within standard District Court timeframes was not a compelling reason to ease conditions (at [5]-[6]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
Cases
- Not stated