Chami v The King

[2025] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chami v R [2025] NSWCCA 91

Hearing dates:

6 June 2025

Decision date:

18 June 2025

Before:

Mitchelmore JA;
Ierace J;
Coleman J

Decision:

Application for bail refused.

Catchwords:

CRIME — Bail — Release application — Where two previous bail applications have been refused — Shooting with intent to murder and discharging a firearm with intent to cause grievous bodily harm as the alternative charge — Show cause provisions — Whether the applicant has shown cause why his detention is not justified — Youth, first time in custody, 15 months on remand, no record of prior convictions and delay — Where co-accused was granted bail — Dispute as to whether the Crown case has inherent fatal weaknesses — Whether proposed conditions of bail mitigate bail concerns to an acceptable level

Legislation Cited:

Bail Act 2013 (NSW), ss 16A, 16B(1)(d)(i), 17(2), 17(2)(a), 17(2)(c), 17(2)(d), 18(1)

Crimes Act 1900 (NSW), ss 29, 33A(1)(a)

Evidence Act 1995 (NSW), s 38

Cases Cited:

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83

Lee v The King [2024] NSWCCA 202

Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314

R v Touma [2025] NSWSC 14

Category:

Principal judgment

Parties:

Usman Chami (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Avenell SC (Applicant)
K Jeffreys (Respondent)

Solicitors:
Crimcorp Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2025/00161440

JUDGMENT

1. THE COURT: The applicant, Usman Chami, and a co-accused, Noah Touma, are charged with a count of shooting with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW) and, in the alternative, discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act. Each count has a maximum penalty of 25 years imprisonment. Both counts have standard non-parole periods: 10 years for the first count and 9 years for the alternative count. The trial of the applicant and his co-accused is set down to commence on 2 March 2026.

2. The Crown case is that the applicant and Mr Touma participated in a joint criminal enterprise to murder Suman Mokhtarian, at about 7.47pm on 20 February 2024, by shooting him at close range outside a gym that he owned and operated on Wentworth Avenue, Wentworthville (the gym). The applicant’s role was to assist in the preparation and act as a spotter at the time of the shooting.

3. The count of shooting with intent is a “show cause” offence, pursuant to s 16B(1)(d)(i) of the Bail Act 2013 (NSW), which obliges the Court to refuse bail unless the applicant shows cause why his or her detention is not justified: s 16A of the Bail Act. If cause is shown, the Court proceeds to determine if it has any bail concerns, as defined in s 17(2) of the Bail Act, having regard to the matters identified in s 18 that are relevant to the application.

4. The applicant has been on remand since his arrest on 7 March 2024; that is, for a period of about 15 months. If he remains on remand, by the time of his trial, he will have been in detention for about two years. He applied for bail before N Adams J on 16 August 2024, at which time it was anticipated that the trial would be in late 2025 or early 2026, and before Sweeney J on 4 April 2025, by which time the trial date had been set. On both occasions, the applicant failed to show cause.

5. The applicant’s proposed conditions of bail and submissions in support are essentially the same as they were before Sweeney J. He submits that cause is shown by “the limitations of the prosecution case” and that the proposed conditions of bail mitigate any risk arising from bail concerns that the Court may have.

6. The applicant was aged 19 at the time of his arrest and is presently aged 20. He has no prior convictions. At the time of the shooting, he was a student at the University of Western Sydney and residing with his father and extended family at an address in Greenacre (the Greenacre address), although he would also occasionally stay with his maternal grandparents in an apartment complex at Roselands (the Roselands address). At the time of his arrest, he was residing at the Roselands address. If granted bail, he proposes to resume residing there, with his maternal grandparents and an uncle. His grandfather offers to deposit the sum of $5,000 as surety.

7. The Crown opposes the application, submitting that the prosecution case is sufficiently strong to negate a finding that cause is shown and that in any event, the Court would have bail concerns that are not sufficiently mitigated by the proposed bail conditions.

8. The cornerstone of the applicant’s submission that cause is shown is that the Crown case as to the joint criminal enterprise has inherent fatal weaknesses. As noted in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [19] (DPP v Mawad), bail applications are not suitable forums to conduct mini trials, although an assessment of the strength of the Crown case is an important aspect of assessing prospective risk. In this case, it is also central to a determination of whether the applicant’s continued detention for an anticipated total period of two years is justifiable, in spite of his youth and no prior criminal record, which warrants an examination of the Crown material in some detail.

The Crown Case Statement and related material

9. The Crown Case Statement (the CCS) was tendered by both parties. The Crown also tendered excerpts of certain phone records (the phone records) and, effectively, an additional CCS that included aerial views of the tower locations in relation to places of interest (the additional CCS). Regrettably, there was no accompanying explanation as to how, if at all or to what extent, those images and records supported the Crown case theory. The applicant also tendered some witness statements that have been disclosed by the Crown to the defence.

10. The Crown case against both accused is circumstantial in nature. It does not include evidence of a motive for the alleged offence. The case against the applicant, based on the CCS and witness statements, is to the following effect (all dates are in 2024 unless otherwise stated).

11. Mr Touma, who was aged 20 at the time of the shooting, and the applicant were close friends. It is not suggested that either accused knew, or knew of, Mr Mokhtarian, until the applicant joined the gym and participated in classes led by Mr Mokhtarian. Mr Mokhtarian said that first contact was about a fortnight before the shooting and the gym manager, Mr Almousawi, said it was five or six nights before.

The shooting

12. The gym was next door to Wentworthville Police Station and directly opposite the entrance to Wentworthville railway station. On the day of the shooting, the applicant arrived at the gym at about 5.30pm in a Holden Captiva SUV that belonged to his grandfather (the Captiva) which he parked west of the gym, in the vicinity of the intersection of Wentworth Avenue and Hill Street. He participated in two consecutive one-hour classes that were led by Mr Mokhtarian. At about 7.41pm, the applicant walked away from the gym, saying goodbye to Mr Mokhtarian who was standing outside talking to some other men, including Mr Almousawi. The applicant walked in an easterly direction along Wentworth Avenue towards a mini mart to buy a drink. At about 7.44pm, he walked back past the group towards Hill Street.

13. At about 7.44pm, the person who discharged the firearm (the shooter) rode past the gym on a white scooter in a westerly direction, wearing a high visibility jacket, a full-face helmet and gloves and with a pack of the type used for the delivery of meals. The shooter parked and at 7.47pm, walked towards the gym. The shooter arrived at the group and removed a pistol from the front waistband of his pants, raised it to chest level and pointed it at Mr Mokhtarian. The shooter fired one shot at close range, which did not hit anyone. The pistol malfunctioned (a stoppage), ejecting a live .45 round. Mr Mokhtarian shouted, “run!”, and ran inside the gym. The other men ran in various directions. The shooter followed Mr Mokhtarian into the gym and fired a further three shots in his direction, as he ran towards the back door. Two of those shots impacted the brick side wall of the gym and one shot impacted a boxing bag. All four shots were fired within 8 seconds. No one was hit. The shooter ran outside, back to the scooter and rode off along Wentworth Avenue in a westerly direction.

14. At the time of the shooting, there were approximately 30 people inside the gym, including children, and commuters were alighting from a train at the railway station. Two adults were waiting for a bus directly outside the train station and opposite the gym.

15. One of the men who had been speaking to Mr Mokhtarian, Armin Sepher, ran in a westerly direction along Wentworth Avenue when the shooter took out his gun and took cover under the Captiva. When he emerged after the shooting, he saw the applicant in the driver’s seat. The applicant asked him what had happened. Mr Sepher told him to call an ambulance. Phone records for the applicant’s mobile confirm a call to the ambulance service at 7.48pm. A few minutes later, the applicant returned to the gym and asked others, including Mr Mokhtarian, what had happened.

16. Police in the police station next door heard the shooting and attended immediately. Police officers spoke to those present, including the applicant, who gave his details and, according to a police notebook account, the following information:

“- walked out of gym to get bottle

- saw Uber driver possibly Uber with high vis jacket, blue pants, highlight orange helmet

- heard gun shots

- saw POI running towards Hill St

- got onto scooter and drove towards Hill St”

17. The applicant left the location at about 8.45pm.

18. The shooter discarded the scooter in a nearby street, set fire to it with an accelerant and sped off in a car that was parked nearby (the Mazda 3). The Mazda 3 was driven to Carysfield Avenue, where it stayed until 12.35am on 23 February. On that date, it was driven to Lansvale, in convoy with a Toyota Camry, where it was set alight. The Mazda 3 had cloned registration plates and the VIN plate had been removed from the engine bay, but police were able to identify it from a partially identifiable VIN in a door jamb, as having been stolen in November 2023. The Camry was traced to a sale on 27 January to persons using a stolen identity for the purchaser.

19. The applicant continued to attend the gym until about 28 February. On 2 March, he messaged Mr Almousawi, saying: “sorry I haven’t come in for the last 3 days. I’ve been really sick”.

Events leading up to the shooting

The scooter

20. The VIN plate on the scooter was legible. Until 13 February, it was owned by a vehicle rental company. It was advertised for sale for $2,000 on Facebook by Aadhil Sulaiman. Photographs accompanying the sale notice showed it to be entirely black. Mr Suaiman was contacted by a Facebook profile under the name of “John Reyes” and an inspection was arranged. Further to that contact, on 13 February, two men arrived at Mr Sulaiman’s premises in Auburn at about 9pm. It is alleged that they were Mr Touma and the applicant.

21. The CCS refers to the following to establish that the purchaser was Mr Touma. CCTV captured Mr Touma leaving his residence, getting into a car and departing at 8.27pm. The driving time to Mr Sulaiman’s address was about half an hour. The purchaser told Mr Sulaiman that his driver’s licence was suspended and therefore he wanted to purchase the scooter in the name of his cleaning business. Mr Touma was a disqualified driver at the time and the business name and address of the scooter purchaser corresponds with a business owned by Mr Touma. Mr Sulaiman took a photograph of his licence (the image is included in the CCS), which corresponds with Mr Touma’s licence. The purchaser signed the sale contract and said he would pick up the scooter the following day.

22. The CCS asserts that the other male was the applicant, based partly on the following. The CCS asserts that Mr Touma is seen on CCTV to get into a black Holden Commodore at 8.27pm and get out of a vehicle of the same description when he arrives home that night. A black Holden Commodore was registered to the accused’s mother. We note that the CCTV has not been disclosed to the defence or tendered on this application by the Crown. It is not possible to discern the type of vehicle or its registration from the still images in the CCS concerning that pick-up and drop-off.

23. Mr Sulaiman described the car in which the two men arrived as a green/black Holden Commodore. Mr Sulaiman gave a description of the two men, which the Crown submits is consistent with the appearances of Mr Touma and the applicant. During their discussions, Mr Sulaiman observed the other man to exit the driver’s seat of the Commodore and hand him $2,000 in cash for the scooter. Mr Sulaiman recognised this man from Oztag. He told Mr Sulaiman that he went to Al-Noori High School in Greenacre. The applicant had attended that school.

24. The following evening (14 February) at 10.08pm, Mr Sulaiman received a text message to the effect that the scooter would be picked up the following day, which occurred.

The statement of Mr Karare

25. A friend of Mr Touma, Mohammed Karare, who was aged 20 at the time of the shooting, made an induced statement to police on 15 March. He stated that he had known Mr Touma for “a couple of years” and the applicant for several years, and he had “started to hang out together for the last few months” with the applicant. Mr Karare said that Mr Touma did not have a licence, so he used to drive him around. On 14 February, Mr Touma asked him to pick something up. The following day (15 February) Mr Karare hired a van and he and Mr Touma drove to Mr Sulaiman’s address, picked up a scooter and placed it in Mr Karare’s garage. Mr Touma told Mr Karare that “someone is going to come past tomorrow to work on the bike”.

26. The next day (16 February) at about 1pm, CCTV captured Mr Touma leaving his residence and getting into a black Commodore. Its registration and appearance were visible in the daylight and corresponded with the Commodore that was registered in the name of the applicant’s mother. At 1.47pm, the same car was captured by CCTV entering Bunnings Warehouse at Greenacre (Bunnings Greenacre), where at 1.54pm, the applicant was captured by CCTV. He purchased three cans of white spray paint. As he drove away, a person could be seen in the front passenger seat.

27. Mr Karare stated that that afternoon, the applicant and another male, who he had not met before, came to his house and said that they would work on the scooter. They left later that afternoon, at which time Mr Karare saw that the scooter had been repainted and was now white. Mr Touma arrived later that day or the next, saw the scooter and said, “Yeah, all good”.

28. Mr Karare said that on the evening of 19 February, Mr Touma asked him to drop the scooter off the following afternoon “so someone can pick it up”. Mr Touma said the location was a car park at “the Crest”, which is a sporting complex, specifying a carpark on Carysfield Road, ^[1] Bass Hill.

    1. The CCS refers variously to “Carysfield Road” and “Carysfield Avenue” in Bass Hill. It is presumed that the latter is an error, and that the intended location is Carysfield Road, Bass Hill.

29. The following day (20 February) at 11.39am, Mr Touma was captured on CCTV being picked up outside his residence in a blue Holden Captiva. It is asserted in the CCS that the driver was the applicant. At 6pm, Mr Karare used a hired white van to drop off the scooter in the car park. He then drove home and found Mr Touma was there. He was wearing a T-shirt, shorts, socks and shoes. He asked Mr Karare to “drop me off around the corner and wait for me, I’ll be back in about an hour or so”. Mr Touma said he would travel in the back of the van. Mr Karare drove to Bass Hill and parked in Thornton Avenue. CCTV captured a white van parking in Thornton Avenue at 7.14pm, at a location which, according to the CCS, is about 100m from the Carysfield Road carpark via a bush reserve known as the Crest Reserve.

30. When Mr Karare arrived, he heard the sliding door of the back of the van open. He did not see Mr Touma get out or what he was wearing at that time. Mr Karare watched videos while he waited. According to the CCS, a figure wearing yellow clothing is seen to exit the white van and walk through bushes. Glimpses of yellow and red/orange can be seen. At 7.23pm, a person on a scooter wearing a high visibility yellow jacket and a red/orange helmet is captured on CCTV riding on Carysfield Road. The CCS states: “CCTV footage obtained from various locations depicts the scooter as it travels from Bass Hill to Wentworthville”.

31. About an hour later, at 8.21pm, CCTV footage captured a figure approaching the white van, which then drove away. According to the CCS, following the shooting, Mr Touma drove the Mazda 3 to Carysfield Road, left it there and walked to the van where Mr Karare was waiting. Mr Karare said that at about 8.30pm, Mr Touma arrived back at the van. He heard him get in the back but did not see him. When Mr Karare arrived home and Mr Touma got out of the back of the van, he was wearing the same clothing as when he got in earlier that evening at Mr Karare’s residence.

32. Mr Karare told police that he and Mr Touma were at his residence for about an hour and then they went to a café near Bankstown. The applicant arrived at the café later that night. According to the CCS:

“91.   … They all laughed and played cards, before going home.

…

94.   A couple of days later, Karare met up with some friends and [the applicant] was present. During the conversation, [the applicant] told Karare that there had been a shooting at the … gym. He said, ‘There was a shooting at my gym’. Karare replied, ‘What the fuck, that’s crazy, what happened?’.

95.   [The applicant] said, ‘I was inside washing my hands and I heard one bang, then nothing, then after 30 or 40 seconds, I heard another 3 or 4 bangs’. That was the only time [the applicant] and Karare spoke about the shooting.

96.   Although [the applicant] was present on the night of the shooting, he did not tell Karare about the incident when they met up immediately after the shooting on 20 February 2024. The account provided by [the applicant] (of being inside the gym washing his hands when the first shot was fired) is also inconsistent with the CCTV footage, witness statements and the account he provided police on the night of the shooting.”

The applicant’s arrest

33. The CCS refers to a conversation between police and the applicant when he was arrested on 7 March:

“[The applicant] told police that he had recently started attending (the gym) and that he is close friends with Noah Touma. When police mentioned the purchase of the white spray paint cans from Bunnings, [the applicant] denied any knowledge of the purchase of the paint cans, or the purchase of the scooter.”

Mr Karare’s second statement

34. Mr Karare made a second statement, dated 3 July, in which he alleged that his first statement was made under duress; police told him if he did not agree to make an induced statement he would be charged as the “shooter” and face “a sentence of 25 years to life in prison”. He alleged he was warned that although he had a right to obtain legal advice, if he did so, “this option will not be available”. Further, that if he did obtain legal advice, it should be from “someone outside the area”. With that in mind, he contacted Legal Aid in Orange. Ultimately, he decided his “only way out” was to make the induced statement. He concluded:

“Because of the above situation that lead me to the police station, not being able to receive legal advice and the anxiety and stress I was feeling, I do not know whether the information provided in my induced statement was accurate, or correct.”

Credibility issues concerning Mr Karare

35. The Crown tendered a Court Attendance Notice (CAN) and police facts sheet concerning a charge against Mr Karare of concealing a serious indictable offence, which was alleged to have been committed on 23 December 2024, when he failed to comply with a form of demand to nominate the driver and/or passengers of his mother’s car, a Toyota Corolla (the Corolla), on 6 April 2024. The applicant tendered Mr Karare’s criminal record and associated Computer Operated Policing System (COPS) entries, concerning the same charge.

36. The police facts allege that on 6 April 2024, the Corolla was captured on CCTV being driven by an unknown person with two unknown passengers. The occupants were captured doing acts that were consistent with them being part of a conspiracy to murder a known person. The police facts allege that, based on covertly recorded conversations in which Mr Karare was a participant, on 6 April 2024, Mr Karare was either the driver or had loaned the vehicle to another party while it was under his care and was aware of the purpose of the police inquiries. Accordingly, it was alleged that by not complying with the form of demand, Mr Karare knowingly concealed the serious indictable offence of a conspiracy to murder.

37. The applicant submitted that, based on this material, it appeared that within two months of the attempted murder of Mr Mokhtarian, Mr Karare had been caught up in another murder conspiracy, which was an extraordinary coincidence that cast doubt on his credibility. The Crown noted that the letter of demand incident post-dated the murder but accepted that it was a matter open for cross-examination by the defence.

The phone records

38. The phone records are of the mobile phones of the applicant, Mr Touma and Mr Karare, and a mobile phone described as a burner phone.

The burner phone

39. The burner phone was not recovered. The additional CCS alleges that cell tower records indicate it was first used in the early hours of 12 February. Around 12.52am and 12.53am, it connected to a cell tower close to Mr Touma’s residence, and about 23 minutes later, for about 32 minutes, to a cell tower near the Roselands address. The burner phone last connected to a cell tower on 20 February, when between 7.34pm and 9.43pm, it was connecting with a cell tower near the gym.

40. While it is not possible to comprehensively assess the utility of the phone records, by way of summary, it is noted that often the burner phone material does not correspond with the whereabouts of the applicant or Mr Touma as stated in the CCS. As well, a connection with a tower close to the Roselands address is not necessarily inconsistent with it being in Mr Touma’s possession at that time; he may have been there with the applicant or visiting his grandparents, who resided in the same apartment block. That said, there are some aspects of that material that are consistent with the applicant’s alleged locations. For example, the additional CCS alleges that the burner phone connected with the tower near the gym on 12 February between 6.10pm and 7.53pm, on 13 February between 4.59pm and 6.56pm, on 14 February between 5.50pm and 8.04pm, and on 15 February between 5.44pm and 6.59pm, as well as on 20 February.

41. The phone records are inconsistent with the burner phone being in the applicant’s possession on the evening of 20 February. The Crown case is that the applicant arrived at the gym at 5.30pm and was there attending classes until about 7.30pm, finally leaving the area at about 8.45pm. Between 5.44pm and 6.20pm, the burner phone connected to a tower “in close proximity” to Mr Karare’s residence, and at 6.47pm, to a tower “in close proximity” to the Crest Reserve and then to a tower near the gym at 7.31pm, which we note is consistent with it being with Mr Touma, according to Mr Karare’s account of where Mr Touma was for some of those times.

42. On the evening of 13 February, when Mr Sulaiman met with the two males who purchased the scooter at his address in Auburn at around 9pm, the burner phone connected to a cell tower near that address between 8.34pm and 8.58pm.

43. The text message that Mr Sulaiman received on 14 February at 10.08pm (see [25] above) was sent from the burner phone. As noted, on that evening between 5.50pm and 8.04pm, it connected to a tower near the gym. Between 8.41pm and 8.45pm, it connected to a tower “in close proximity” to the Roselands address. Between 10.07pm and 10.09pm, it connected to a tower around 410 Chapel Road Bankstown and then between 10.26pm and 11.07pm, it connected again to the same cell tower near the Roselands address.

44. On 16 February, on which date at 1.47pm the applicant and another male were captured on CCTV at Bunnings Greenacre (see [26] above), the burner phone connected at 1.49pm with a mobile tower that was at the same location.

45. As to the events earlier on 20 February, the burner phone connected to a tower “in close proximity” to Mr Touma’s residence at 11.28am (CCTV captures a Captiva picking up Mr Touma at 11.39am: see [29] above).

The applicant’s mobile phone

46. In a similar fashion, the additional CCS has aerial images of towers to which the applicant’s mobile phone connected on particular dates and times in relation to places of interest. It connected to the tower “in close proximity” to the gym on 9 February at 6.03pm and on the same evenings that the burner phone connected with that tower; that is, on 12, 13, 14, 15 and 20 February. The applicant’s mobile phone also connected with that tower on the late afternoon and early evening of 19 February.

47. The excerpted phone records of the applicant’s mobile indicate that on 20 February at 7.04pm, his mother’s phone initiated a call to his phone that lasted 32 seconds, and at 7.39pm, he initiated a call to his mother that lasted one second. The applicant’s phone contacted emergency services at 7.48pm. There are what appear to be data entries at 7.45pm which have not been interpreted by the Crown or defence, and therefore we disregard them.

The submissions of the applicant

48. As noted, the applicant submitted that cause is shown by a combination of factors, including the applicant’s youth, his absence of any prior offending, the prospect of two years on remand and the stringency of the proposed bail condition of, effectively, house arrest. The principal factor that was relied upon to show cause was what the applicant submitted to be the weakness of the prosecution case.

49. The applicant submitted that an integral part of the Crown case as to the joint criminal enterprise was that Mr Touma was the shooter, and a relevant consideration on this application is that a judge of the Court entertained concerns as to the strength of the Crown case against Mr Touma.

50. The applicant further submitted that this Court would come to a similar view of the strength of the prosecution case against the applicant, particularly in view of Mr Karare’s retraction of his first statement and his subsequent charge, and the inconsistencies between the location of the cell towers that the burner phone connected to and where the applicant was at those times.

The judgment of Harrison CJ at CL

51. Mr Touma was granted conditional bail on 6 February 2025 by Harrison CJ at CL: R v Touma [2025] NSWSC 14. A bail condition was that he reside at a drug and alcohol rehabilitation facility. Mr Touma had previously been refused bail in an application heard by Dhanji J, in which the proposal to reside in a rehabilitation facility was not before the Court.

52. Harrison CJ at CL found that cause was shown by a combination of factors, being the applicant’s first time in custody and youth, delay before trial and a weak prosecution case. As to the latter factor, the applicant referred, amongst other matters, to the absence of evidence of motive and submitted that it was a reasonable possibility that Mr Chami purchased the scooter and it was Mr Chami who repainted it. The applicant pointed to the absence of phone records or forensic evidence placing him at the scene of the shooting, and the unlikelihood that the shooter would use a scooter that they owned.

53. His Honour concluded that cause was shown, stating:

“13   I have considered these, and other, matters upon which Mr Touma relies. I am not prepared to conclude that the Crown case is strong. The jury will in due course be asked to conclude that Mr Touma committed a very serious crime using a vehicle registered in his own name. The Crown will also ask the jury to conclude that he did this in the absence of any evidence to explain why he might have done so. There is no evidence linking Mr Touma with the victim or with the gym from which he appears to have emerged. The Crown contends that the absence of phone data placing Mr Touma at the scene of the crime can be explained by him having chosen not to carry his phone in order to avoid detection in this way. That amount of forethought and planning has to be contrasted with the fact that Mr Touma is alleged to have ridden his own motor scooter to commit the crime.

14   Whatever suspicions may attend these events, it would in my view be difficult for a properly instructed jury to be satisfied beyond reasonable doubt that the person firing the shots on this day was Mr Touma.

15   I am satisfied that Mr Touma has shown cause in the sense required. He is in custody for the first time and faces the prospect of considerable further time on remand before his trial. His available residential rehabilitation opportunity happens to coincide with the likely period that remains before that occurs. On one view, full-time attendance at a rehabilitation facility would suffice on its own to establish the show cause requirement. I consider that the exploitation of that opportunity, especially at his age before drug dependence has become entrenched and resistant to change, is an important and ultimately decisive factor informing the present inquiry.” (emphasis in original)

The submissions of the Crown

54. The Crown submitted that cause is not shown; the Crown case is quite strong, any delay is not unduly so and that if the applicant was convicted, the penalty would inevitably involve a sentence of imprisonment significantly longer than the total likely period on remand.

55. As to unacceptable risk, the Crown submitted that the Court would have bail concerns pursuant to ss 17(2)(a), (c) and (d); namely, that if released to bail, he would fail to appear, and/or endanger the safety of victims, individuals or the community, and/or interfere with witnesses or evidence.

56. In support of that submission, the Crown pointed to the following features of the alleged offending pursuant to s 18(1) of the Act. As to the seriousness of the alleged offending, it was a planned and targeted attack that posed an “exceptional” risk to the public. To the extent that the circumstances of the offence bespeak the involvement of organised crime, there is a risk to the community and to witnesses if the applicant is released. The firearm used in the shooting remains at large. The applicant has not submitted that he has any particular vulnerability or need to be on bail to prepare his case.

Consideration

The show cause test

57. In Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, Button J (Gleeson JA and Rothman J agreeing), observed how the test of showing cause is to be approached:

“50   I consider that the following basic principles apply to a determination of whether an applicant has shown cause that his or her detention is unjustified.

51   First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

52 Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.

53   Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].

54   Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

55 Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.

56   Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.”

58. This Court has reiterated that approach in Lee v The King [2024] NSWCCA 202 at [13]. The strength of the prosecution case is not determinative of whether cause is shown: see for example DPP v Mawad in which cause was shown (although bail was refused because of an unacceptable risk) in spite of a strong prosecution case.

59. It is trite to observe that the nature of circumstantial evidence is that strands of evidence which are inconsequential in themselves may, in combination, give rise to an irresistible inference of guilt. In our view, the following features of the evidence, when considered together, elevate the Crown case beyond a series of coincidences to a conclusion that the Crown case against the applicant, that he was part of a joint criminal enterprise to murder Mr Mokhtarian, is reasonably strong.

60. There is credible evidence that the applicant and Mr Touma, who were friends, together purchased the scooter that was used in the shooting a week later; that the applicant purchased and spray-painted the scooter to a different colour with another male; and that the applicant attended the gym and made contact with Mr Mokhtarian for the first time on the evening of 9 February, which was 11 days before the shooting. There is a strong association from time to time during the lead-up period between the applicant and the burner phone, which was used to confirm by a text the pick-up date of the scooter that Mr Touma and the applicant had purchased; it connected to the tower at Bunnings Greenacre while the applicant was there, purchasing the spray paint; and, leaving aside 20 February, on four of the other six evenings that the applicant’s personal mobile connected with a tower near the gym, so did the burner phone. One could add Mr Karare’s evidence that in the hours after the shooting, neither the applicant nor Mr Touma mentioned it, and the evidence that on his arrest the applicant denied any knowledge of the purchase of the scooter or the spray paint.

61. It is likely that if Mr Karare gives evidence that differs from the content of his statement made on 15 March, the Crown will seek leave pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine him on those differences. It will be a matter for the jury to assess his credibility in light of the fact that the first statement was induced, any reluctance on his part to answer questions in chief and any subsequent criminal activity by him.

62. In our view, the absence of evidence of motive should be assessed in the context of the entirety of the CCS. The use of the Mazda 3 that had been stolen four months before and had cloned registration plates, and the Camry that was purchased with stolen identity papers, as well as the firearm being “a Glock-style pistol” (as described by Mr Almousawi), are sometimes indicia of the involvement of criminal organisations, so that the absence of evidence of motive is not necessarily a factor that detracts from the strength of the prosecution case.

63. Accordingly, we conclude that the prosecution case is reasonably strong. As noted, that finding is not necessarily determinative of the issue of whether cause has been shown. The applicant’s youth, the fact that he does not have a criminal record and that he has been on remand for 15 months with the prospect of a further 9 months in detention, are factors that weigh in support of his detention not being justified.

64. Matters relevant to the unacceptable risk test may also be relevant to whether cause is shown (Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24]). The Court would have bail concerns pursuant to ss 17(2)(a), (c) and (d) of the Bail Act. The proposal for bail is that the applicant reside at the Roselands address subject to home detention, report to police daily, that he not contact prosecution witnesses and that his grandfather deposit surety in the sum of $5,000.

65. The situation with Mr Karare who is a (now reluctant) key Crown witness and who, on Mr Karare’s account, was “hanging out” with the applicant in the months leading up to the offence, leaving aside his allegation of police coercion, is suggestive of a degree of vulnerability of Mr Karare, if there was to be an attempt to influence him.

66. Taking those risks into account, the Court is not satisfied that the proposed conditions mitigate them to an acceptable level, so they do not assist the applicant on showing cause. Accordingly, the application for bail is refused.

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Endnote