R v Abdul-Hamid

Citation: R v Abdul-Hamid [2025] NSWSC 1158
Court: Supreme Court of New South Wales
Date: 26 September 2025
Judge(s): Dhanji J

Background

A 19-year-old applicant facing five counts of aggravated sexual intercourse without consent applied for bail under s 49 of the Bail Act 2013 (NSW). The charges arose from a series of alleged sexual assaults on a single complainant across five separate incidents, involving the applicant and three alleged co-accused. The applicant had been in custody since 17 June 2025, a period exceeding three months at the time of the hearing.

The Crown case against the applicant was not that he personally performed the physical acts constituting the offences. Rather, the Crown alleged his liability through principles of complicity: either participation in a joint criminal enterprise, or intentional assistance and encouragement of the principal offenders while present at the scene.

The applicant's alleged involvement was confined to the second and third incidents. Even then, the Crown's case presented contestable elements, particularly in relation to the second incident.

Legal Issues

• Whether the applicant presented an unacceptable risk under s 19 of the Bail Act 2013 (NSW), assessed against the bail concerns set out in s 17
• Specifically, whether the applicant posed an unacceptable risk of committing a serious offence or endangering the safety of victims, individuals, or the community
• Whether the applicant posed an unacceptable risk of interfering with witnesses or evidence, having obtained the complainant's telephone number in the course of the relevant events
• Whether the applicant posed an unacceptable risk of failing to appear, in light of a previously expressed intention to relocate to Western Australia

Decision

Issue 1: Strength of the Crown case and the applicant's alleged role

Dhanji J found that the applicant was the least involved of the four alleged co-accused and was not alleged to have participated in the first, fourth, or fifth incidents at all (at [4]). Regarding the second incident, the court found difficulty drawing any inference beyond reasonable doubt that the applicant was criminally complicit in the acts performed by others (at [7]). As to the third incident, the complainant believed the applicant was recording events on his phone, and the applicant declined an invitation to participate in a sexual assault, saying "no, I'm all right" (at [9]-[10]). Dhanji J concluded there was a reasonably strong inference supporting Crown complicity arguments in relation to the third episode, based on pre-concert with a co-accused and the applicant's proximity to events, but held the Crown case could not be described as incontestable and that a real issue remained for the jury (at [12]-[14]).

Issue 2: Risk of reoffending or endangering the community

The court found that the applicant's lack of instigation and absence from the physical acts of the offending were significant factors in assessing risk (at [17]). His youth (19 years old) and lack of any prior criminal record further mitigated the risk (at [17]). With strict proposed bail conditions, including home detention, those risks were not unacceptable. The court also noted that if bail were refused, the applicant would remain in custody until at least 2027 without having been convicted, in circumstances where conviction was not inevitable (at [18]).

Issue 3: Risk of interference with witnesses or evidence

The court acknowledged that the applicant had obtained the complainant's telephone number in the course of the events alleged against him (at [20]). However, Dhanji J found no unacceptable risk of interference. The applicant had no prior record, any contact attempt would likely strengthen the Crown case against him, and the strict bail conditions and the applicant's understanding of the consequences made interference unlikely (at [19]-[20]).

Issue 4: Risk of failing to appear

The Crown raised evidence that the applicant had previously expressed an intention to move to Western Australia. Dhanji J found this risk was not unacceptable, noting that circumstances had materially changed since that intention was expressed, extradition from another Australian state would be straightforward, there was no suggestion of capacity to flee overseas, the applicant agreed to surrender his passport, and he had close family ties within the jurisdiction (at [21]).

Orders Made

• Application for bail granted with conditions.

Key Takeaways

• In applying the unacceptable risk test under ss 17 and 19 of the Bail Act 2013 (NSW), the Supreme Court assessed the applicant's individual alleged role within a joint criminal enterprise separately from the conduct of co-accused, rather than treating all accused as presenting equivalent risk (at [3], [16]-[17]).

• Where a Crown case is theoretically strong but not incontestable, and where the accused faces a substantial period of pre-trial custody before a 2027 trial date, those factors properly form part of the bail risk calculus (at [14], [18]).

• The absence of any allegation that an applicant instigated offending or participated in its physical acts is a relevant consideration in assessing the risk that the applicant would commit a serious offence or endanger community safety if granted bail (at [17]).

• A previously expressed intention to relocate interstate did not constitute an unacceptable flight risk where the applicant had since been arrested, faced strict bail conditions including passport surrender, and had meaningful family ties within the jurisdiction (at [21]).

• Strict bail conditions, including home detention, can operate to reduce identified risks to an acceptable level even in proceedings involving serious sexual offending, provided the individual circumstances of the applicant's alleged conduct and personal history support that conclusion (at [17], [22]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 19, 49
- Crimes Act 1900 (NSW), s 61J(1)

Cases
- Not stated