Citation: Bazouni v Director of Public Prosecutions (NSW) [2024] NSWSC 1431
Court: Supreme Court of New South Wales
Date: 7 November 2024
Judge: Hamill J
Background
The applicant faced a serious charge of breaking and entering a dwelling and inflicting grievous bodily harm. The alleged offence involved entering a Pyrmont apartment by ruse, directing the occupant's wife and child to leave, and then inflicting a severe assault on the occupant, who sustained a traumatic brain injury and was left bound for approximately five hours. The prosecution case was described as reasonably strong, supported by CCTV footage and the applicant's own admission of presence at the scene.
This was the applicant's second bail application before the Supreme Court. His first application was refused by Rigg J on 13 August 2024. Rigg J had proceeded on the understanding that the applicant's serious medical conditions would be adequately managed by Justice Health during his remand.
Legal Issues
- Whether changed circumstances or new material existed sufficient to justify entertaining a second bail application under s 74 of the Bail Act 2013 (NSW)
- Whether the unacceptable risk threshold under s 18 of the Bail Act 2013 (NSW) was met, having regard to the seriousness of the charge, risks of non-attendance, community safety, and witness interference
- Whether proposed bail conditions, including home detention enforced by electronic monitoring, could adequately mitigate those risks
Decision
The DPP conceded, properly according to Hamill J, that new material had been presented and that circumstances relevant to bail had changed since the first application. The critical change was that the assumption underlying Rigg J's refusal, namely that Justice Health would adequately treat the applicant's serious medical conditions, had not been borne out. Evidence from the applicant's wife and a Services and Programs Officer at the gaol documented repeated failures to provide basic medical care, including adequate management of a colostomy bag, treatment of a weeping wound, and continuity of medication following transfers.
Hamill J accepted that the risks identified at the first hearing remained real. The gravity of the charge pointed to a risk of non-attendance given the prospect of a lengthy custodial sentence. The nature of the offence and parts of the applicant's criminal history raised community safety concerns. There was also some, though less compelling, basis to infer a risk of witness interference. The victim's opposition to bail and concerns for personal safety were acknowledged and given significant weight.
Despite those risks, Hamill J was satisfied they could be reduced to an acceptable level by a stringent set of conditions. The inadequacy of medical care in custody, combined with a likely extended remand period running well into 2025 or 2026, weighed heavily as a factor under s 18 of the Bail Act. Home detention enforced by electronic monitoring, a substantial $400,000 security deposit, geographical restrictions, no-contact orders, passport surrender, and alcohol and drug abstention conditions collectively addressed the identified risks.
Orders Made
Conditional bail was granted on the following key conditions:
- Good behaviour and court attendance at Downing Centre Local Court on 12 December 2024 and as directed
- Home detention at a specified address, enforced by electronic monitoring installed by Allied Australia at the applicant's cost, to be fitted prior to release
- Curfew: the applicant not to leave the residence without written approval from the Officer in Charge at Merrylands Police Station, except for medical or legal appointments
- No contact with the complainant, named co-accused and associates, or any prosecution witness (other than serving police officers), by any means or through third parties
- Geographic restriction: not to enter the suburb of Pyrmont; not to approach within 500 metres of any international departure point
- Passport surrender to Merrylands Police within 24 hours of release (pre-release condition); not to apply for a replacement
- Security: one acceptable person to deposit $400,000 (pre-release condition)
- Alcohol abstention: not to drink alcohol or enter licensed premises, other than a licensed restaurant
- Drug abstention: not to use illegal or unprescribed drugs
- Device access: to provide any internet-capable device and its password to the nominated detective on demand
- Compliance checks: to present at the front door of the residence and submit to non-invasive testing at a police officer's direction to confirm compliance with conditions
Key Takeaways
- Under s 74 of the Bail Act 2013 (NSW), a second bail application can proceed where there is material new information or a demonstrable change in circumstances relevant to bail. Here, the DPP conceded both elements were established.
- A prior bail refusal founded on an assumption that proved incorrect, specifically that adequate medical care would be provided in custody, can itself constitute a changed circumstance justifying a second application.
- Documented failure by Justice Health to deliver promised medical care during remand was treated as a weighty factor in the s 18 unacceptable risk assessment, not merely a humanitarian consideration.
- The Supreme Court found that even serious risks arising from a grave charge can be reduced to an acceptable level by sufficiently stringent conditions, including home detention backed by electronic monitoring, substantial security, and comprehensive no-contact and geographic restrictions.
- Victim opposition to bail, while given significant weight, did not of itself determine the outcome. Hamill J balanced the victim's legitimate safety concerns against the broader risk assessment and the applicant's deteriorating medical situation.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 18 (unacceptable risk assessment), 74 (requirements for second and subsequent bail applications)
Cases:
- The judgment of Rigg J (first bail application, 13 August 2024, unreported) was incorporated by reference but not separately cited with a formal citation.
- No other cases were cited in the judgment.