Citation: Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 807
Court: Supreme Court of New South Wales
Date: 10 July 2023
Judge(s): Button J
Background
The applicant faced charges of murder and kidnapping arising from alleged acts of serious violence connected to a significant debt. This was his fifth bail application in under a year, with two prior detailed judgments already on the public record: one from a Supreme Court judge and one from the Court of Criminal Appeal.
The applicant had suffered severe injuries after being shot on multiple occasions, losing an eye and developing ongoing serious health conditions. His medical circumstances formed the basis of a concession by the Crown that he had "shown cause" why his continued detention was not justified, the threshold question under the Bail Act 2013 (NSW).
The proceeding was conducted with some deliberate concision. Button J noted that two prior published judgments had canvassed the background in detail, and that the interests of justice effectively required avoiding unnecessary repetition.
Legal Issues
- Whether the applicant satisfied the threshold requirement under s 74 of the Bail Act 2013 (NSW) to justify revisiting bail after a previous refusal by a Supreme Court judge
- Whether the applicant had "shown cause" why his continued detention was not justified
- Whether, cause having been shown, there was an unacceptable risk that the applicant would abscond, endanger a witness, or commit a serious offence of violence if released
Decision
On the s 74 threshold, Button J proceeded on the provisional assumption, accepted for the sake of argument and with the parties' agreement, that the test for revisiting bail had been established. The judge noted that the Crown case had been "further illuminated" since the last refusal, though he characterised this development as a detail rather than a fundamental shift.
On showing cause, the Crown conceded the point and Button J accepted the concession. The applicant's serious ongoing physical and mental health conditions, arising from the shooting, plainly met the threshold. The judge acknowledged that medical care in custody, particularly for well-resourced patients, cannot match care available in the community.
The analysis then turned squarely to risk. Button J identified three distinct unacceptable risks. First, the applicant had the means and, facing a potentially very lengthy sentence upon conviction for murder, the temptation to flee. The use of a private jet on a prior occasion was noted as illustrative of his financial resources. Second, the applicant held a senior enforcement-related role in a well-known outlaw motorcycle gang, an organisation whose pervasive reach the judge took judicial notice of. Third, recent material placed before the court suggested a witness was in what Button J described as "mortal terror," which he found heightened rather than diminished concerns about risk to witnesses.
The applicant's criminal record, though showing some recent quietening, was described as "very troubling," featuring convictions for serious organised violence and recorded statements about violence that Button J found concerning. On each of the three risk grounds independently, the court was satisfied that the risk of release was unacceptable.
Orders Made
- Bail refused.
Key Takeaways
- Refusing bail for the fifth time in under a year, the Supreme Court proceeded on the assumption that the s 74 Bail Act 2013 threshold had been met, without resolving the point definitively, in order to reach the substantive merits.
- A Crown concession that "cause" has been shown does not determine a bail application. The court then proceeds to assess whether unacceptable risks independently justify detention.
- Serious ongoing medical conditions arising from significant physical injury can satisfy the "show cause" requirement, on the basis that adequate care in the community is not matched by care available in custody.
- Unacceptable risk of absconding can be found even where an applicant has community ties, particularly where the applicant has demonstrated financial resources and faces a lengthy sentence upon conviction for a serious charge.
- Material that an applicant presents to undermine the Crown case may, in the court's assessment, serve to heighten rather than reduce risk concerns, particularly where it suggests a witness is operating under fear.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), including s 74 (requirement to show grounds for revisiting bail after prior refusal)
Cases
- Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 (prior Supreme Court bail refusal)
- Zahed v R [2023] NSWCCA 86 (Court of Criminal Appeal bail refusal)