Bazouni v Director of Public Prosecutions (NSW)

[2024] NSWSC 1431

Supreme Court

New South Wales

Medium Neutral Citation:	Bazouni v Director of Public Prosecutions (NSW) [2024] NSWSC 1431
Hearing dates:	7 November 2024
Date of orders:	7 November 2024
Decision date:	07 November 2024
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Bail granted
Catchwords:	CRIMINAL LAW – release application – second application – requirement to establish charge of circumstances – where Judge who refused bail acted on information that applicant’s medical condition would receive treatment – where medical care inadequate – assessment of risk – stringent bail conditions – home detention enforced by electronic monitoring – victim’s legitimate concerns considered – bail granted
Legislation Cited:	Bail Act 2013 (NSW), ss 18, 74
Category:	Principal judgment
Parties:	John Bazouni Director of Public Prosecutions
Representation:	Counsel: E Ozen SC (Bazouni) Solicitors: Criminal Law Group (Bazouni) Office of the Director of Public Prosecutions
File Number(s):	2024/00352947

EX TEMPORE JUDGMENT (REVISED)

1. John Bazouni makes a release application pursuant to the provisions of the Bail Act 2013 (NSW) in circumstances where he is charged with a very grave offence, possibly approaching the most serious offence imaginable under the relevant offence provision, of breaking and entering a dwelling and inflicting grievous bodily harm.

2. I will return to that and to the facts, but before I do that I should indicate that this is Mr Bazouni’s second application for bail heard by this Court. The first application was heard by her Honour Rigg J on 13 August 2024 and if I can respectfully do so I would incorporate her Honour’s reasons for refusing bail on that occasion into these reasons rather than repeating them.

3. However, of significance because it’s a second bail application, is that her Honour operated on an assumption that a number of medical conditions, some of which were very serious, would be adequately treated by Justice Health while Mr Bazouni was in custody. That is the information with which her Honour was provided, no doubt in good faith by the prosecuting authority, I am not doubting that at all, and perhaps also in good faith by those who provided the Prosecutor with that information.

4. However, the material presented today demonstrates that that has not been the case. Mr Bazouni’s wife, [redacted], has provided a compelling affidavit in which she has annexed a letter from a Services and Programs Officer employed at the gaol, [redacted], in which [redacted] expresses her concerns about the difficulties that have confronted the applicant as a result of the failures of Justice Health to provide the sort of medical care that he requires.

5. I am not going to embarrass Mr Bazouni today by talking about it, but I will say he requires a colostomy bag (as described in [redacted] email) and has had ongoing difficulties having that treated and arranging for medical intervention outside of the Justice Health system, even when that was arranged by his wife. [Redacted] describes the “humiliation and embarrassment” that this has caused.

6. If that wasn’t enough, [his wife] has over time compiled detailed typed notes, the source of which is the applicant. The detail is so great that it is impossible to resist the conclusion that it provides an accurate description of the lack of care with which he has been provided.

7. I won’t go through it, again not wanting to embarrass him, but it’s Annexure B to the affidavit and it shows occasions when the applicant was not provided with care, was not provided with replacement colostomy bags, where nurses told him “Justice Health is shit”, where he was transferred and his medication and other medical needs were taken from him, and this has occurred between August of this year and as recently as 31 October. He has had a weeping or bleeding wound during that time, has been offered a Band-Aid for that, at times he has been offered a Panadol, at times it seems he has been punished for seeking medical attention, and he has been isolated as a result of having to go to hospital on consecutive days.

8. All of this has occurred in the face of a decision of a judge of this Court in which it was assumed that proper care would be given and where, during the hearing of that application, a vast array of medical documentation establishing the medical issues was tendered.

9. Mr Singh, who appears on behalf of the Director of Public Prosecutions, very properly concedes, for the purpose of s 74 of the Bail Act, that material relevant to the grant of bail is presented now that wasn’t presented then and, perhaps more accurately or pertinently, that circumstances relevant to a grant of bail have changed.

10. I am satisfied of those things and have accordingly entertained the second release application.

11. That brings me to the substance of it. As I said, Rigg J gave compelling reasons for the refusal of bail but, in retrospect, did so under a misapprehension that the applicant would receive proper healthcare in custody.

12. As I said at the outset, the case involves an extremely serious allegation of break and enter. The facts are set out both in her Honour’s judgment but also in a fact sheet ending in H106 wherein the applicant and two other men by a ruse entered the apartment dwelling of someone who was in a unit in Pyrmont.

13. It is alleged that the applicant told the complainant’s wife and child to leave, whereafter a very severe assault was inflicted on the occupant. He ended up with a serious traumatic brain injury, was unconscious for a lengthy period of time and was taken to hospital where he received treatment. It would seem, based on the facts and the time that the wife left and returned, that he was left in that state, bound for a period of something like five hours, all of that to steal from him so it would seem.

14. The facts as they are outlined show a well planned and executed offence, the consequences of which were dire. The prosecution case, which has now filled out a little more than it was before Rigg J based on a letter provided by Detective Senior Constable Beezem, would appear to be a reasonably strong one.

15. There are photographs of the victim in situ which are disturbing to say the least, and there is CCTV footage which seems to establish to a state of certainty the applicant’s presence – and as Rigg J said at the last bail hearing, he admits he was present – but also his involvement.

16. Clearly, if he is convicted of the offence he will serve a lengthy gaol sentence, probably far longer than the period of remand, but the period of remand itself will be lengthy. It is not a “show cause” offence but, as Rigg J said, the assessment of risk in the case is troubling.

17. The applicant, who is supported by his family in court, presents or offers a very stringent set of conditions. I have considered those closely, particularly given that Ms Beezem has spoken to the victim and unsurprisingly, whilst he has now been discharged from hospital, the victim is opposed to any grant of bail and has expressed concerns for his safety.

18. I am clearly aware of that and take it into account and give it great weight, but against that the thought that a man with these medical problems would remain in custody for what would be an extended remand period, probably well into next year if not 2026 given where the case is at the moment, is an extremely significant factor under s 18 of the Bail Act.

19. It is also of some comfort that whilst Mr Bazouni does have a criminal history, it is not the worst record that one sees. There are some offences of violence on it but not many, and I think it is put in the Prosecutor’s well-balanced submissions that it is a little bit incomprehensible as to how Mr Bazouni would have been involved in this given his background and family connections. [1] Nevertheless, the evidence at this stage would suggest he was and that is a matter of grave concern.

    1. See the bail judgment of Rigg J (13/8/24) at pp 3-4.

20. The likelihood of a long gaol sentence gives rise to a risk of non-attendance. The very nature of this offence and parts of his criminal record give rise to concerns about the safety of the community because of the risk or concern that he would commit serious offences. I am also prepared to draw the inference there may be a risk of interference with the witnesses, albeit the evidence of that is less compelling.

21. It was initially suggested that the applicant would undertake a period of drug rehabilitation in a facility where he would be full-time. Some objections have been taken to that based on the particular facility involved, but I need not trouble myself with that because now it is proposed that he go home with his wife and to be in a form of home detention. His compliance with that home detention condition will be enforced by electronic monitoring, which I have evidence of in the form of an affidavit of Ms Windsor.

22. I am satisfied in all of the circumstances that the real concerns raised by the prosecution and the police officer can be mitigated by stringent bail conditions such that they do not rise to the level of unacceptable risk.

23. If it is not obvious by now, I am particularly concerned that this applicant receives proper medical attention, and there is nothing to suggest he will get that unless he is out. It is clear he has doctors outside - appointments with those doctors have been made in the past. I haven’t mentioned it, but he also has got some pretty serious dental problems which will also need to be dealt with outside of a custodial setting, albeit I am sure Justice Health would tell me it could organise that as well.

24. For all of those reasons, somewhat incoherently put together on the spot, I am satisfied that bail should be granted, and I propose to grant conditional bail on the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant is to appear at the Downing Centre Local Court on 12 December 2024, and thereafter as directed.

3. The applicant is to live at [redacted].

4. The applicant is to report to the Officer in Charge at Merrylands Police Station daily between the hours of 8am and 6pm.

5. The applicant is to comply with a home detention condition: not to leave the premises at which the applicant is required to live except

1. In the company of [his wife]; AND

2. For the purposes of reporting to the police; OR

3. To attend pre-arranged conferences with their legal representatives. 48 hours’ notice is to be provided to the Officer in Charge of the investigation; OR

4. To attend court; OR

5. To obtain emergency medical treatment; OR

6. To attend pre-arranged medical appointments. 48 hours’ notice is to be provided to the Officer in Charge of the investigation.

6. The applicant is to travel from the Correctional Centre from which the applicant is to be released on bail in the company of [his wife], who must be in attendance at that Correctional Centre before release occurs. This is a pre-release condition.

7. The applicant is to undertake electronic monitoring by Allied Universal Electronic Monitor Pty Ltd ("Allied") by way of an electronic ankle monitor and will comply with all directions of Allied Australia in relation to the installation and maintenance of the device. The cost of electronic monitoring is to be borne by the applicant. The device is to be installed immediately upon the applicant's release from custody and prior to him leaving the facility.

8. The applicant is not to drink alcohol or enter any premises in which alcohol is sold, other than a licensed restaurant.

9. The applicant is not to take any illegal or prescription drugs other than a drug prescribed to the applicant by a doctor.

10. The applicant is not to approach or communicate with, or attempt to make contact with, [redacted], Karl Vernon, Troy Xerri, Marcus Gilligan, or any prosecution witness other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

11. The applicant is not to enter the suburb of Pyrmont for any reason whatsoever.

12. The applicant is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

13. The applicant is to surrender any passport to the Officer in Charge at Merrylands Police with 24 hours of his release, and is not to apply for a new passport or other travel document. This is a pre-release condition.

14. The applicant is to provide access to any internet capable device in the applicant's possession to Detective Brooke Beezem on demand and provide any password or PIN code for the device to that person to facilitate access to it.

15. One acceptable person is to deposit security in the sum of $400,000.00 and agree to forfeit that sum if the applicant fails to appear before court in accordance with the bail acknowledgment. This is a pre-release condition.

16. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the home detention condition, the alcohol abstention condition and the drug abstention condition.

17. The applicant is to undertake any non-invasive testing required of the applicant at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the alcohol abstention condition and the drug abstention condition.

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Endnote

Decision last updated: 12 November 2024