Mariam v Director of Public Prosecutions (NSW)

[2015] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mariam v Director of Public Prosecutions (NSW) [2015] NSWCCA 216
Hearing dates:	11 August 2015
Decision date:	11 August 2015
Before:	Macfarlan JA at [1]; R A Hulme J at [2]; Garling J at [44]
Decision:	Bail refused
Catchwords:	BAIL – release application – possession of a prohibited weapon without authorisation – perverting the course of justice – unacceptable risk test – unacceptable risk of interference with prosecution witness – unacceptable risk of potential serious offending – release application refused
Legislation Cited:	Bail Act 2013 (NSW) ss 16A, 17, 18 Crimes Act 1900 (NSW) s 319 Evidence Act 1995 (NSW) ss 38, 65, 165 Firearms Act 1996 (NSW) s 7(1)
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 R v Moustafa Mariam [2012] NSWSC 1496
Category:	Principal judgment
Parties:	Moustafa Mariam Director of Public Prosecutions (NSW)
Representation:	Counsel: Mr M Ramage QC (Applicant) Ms M Cinque (Crown)   Solicitors: Birchgrove Legal Solicitor for Public Prosecutions
File Number(s):	2015/96791

Judgment

1. MACFARLAN JA: I agree with R A Hulme J.

2. R A HULME J: Moustafa Mariam ("the applicant") has made an application that he be released on bail pending his trial which is listed in the District Court at Parramatta on 28 September 2015. The Crown alleges that he committed the following offences:

1 At Parramatta on 22 January 2014: Possession of a prohibited pistol, namely a .45 calibre Lammar brand pistol with loaded 10 round magazine, without being authorised to do so by a licence or permit: s 7(1) Firearms Act 1996 (NSW)

2 At Sydney between 6 March and 16 April 2014: Did an act, namely facilitated the production of a false statutory declaration, intending to pervert the course of justice: s 319 Crimes Act 1900 (NSW)

Factual basis of the alleged offences

Possession of a prohibited weapon without authority

3. The Crown case is that the applicant was the sole occupant of a second-floor home unit in Parramatta on 22 January 2014. Police called out to him to come out. They then heard within the premises loud banging and the sound of objects being moved. The applicant was arrested a short time later as he left. The unit was searched and police found signs of an apparent attempt to conceal drug dealing activity. There were signs of various surfaces having been cleaned but residue was found on presumptive testing to be positive for cocaine. There was a large quantity of broken and smashed mobile phones and electronic scales. Water damaged ledgers were strewn throughout the unit. In excess of $3000 was found, some on the applicant's person. Significantly, police found a loaded .45 semi-automatic pistol concealed within the ceiling cavity which was subsequently found to bear DNA material consistent with being the applicant's.

4. The applicant told police that he was only staying at the unit that day and had no knowledge of the various items found. He said the unit was occupied by a friend; but he could not recall the friend's name.

5. The Crown relies upon a number of items of evidence which have the potential to establish a greater association by the applicant with the home unit than he was prepared to admit.

6. The applicant was charged with possession of the pistol. Warrants for a previous failure to appear in court and for revocation of parole were executed and he was entered into custody.

Perverting the course of justice

7. On 8 April 2014, police received by email from the applicant's solicitor a statutory declaration made by MK. They spoke with MK at Goulburn Correctional Centre the following day. They also attended his family home and found a black Toyota Camry parked at the front.

8. On 15 April 2014, under an inducement, MK participated in a recorded interview in which he said that whilst he and the applicant had been in gaol together, the applicant had offered him $35,000 and a Toyota Camry if he agreed to sign a statutory declaration claiming that the firearm found in the Parramatta unit on 22 January 2014 was his. MK told police that he was in financial difficulty and so he agreed. The applicant gave him $5000 and the Camry was given to his family. The Camry was registered to a car rental company of which the applicant is a director.

9. On 16 April 2014, the applicant was charged with the offence of perverting the course of justice.

Custodial history in respect of these charges

10. The applicant remained in custody serving the balance of his parole for an earlier matter (as to which see below) until 21 March 2014. He was released on strict conditional bail, over the prosecution's objection, in respect of the present matters on 3 June 2014. A prosecution detention application to the Supreme Court was refused on 31 July 2014.

11. On 22 December 2014 the applicant was charged with an offence of affray and was remanded in custody. On 12 February 2015 he made a release application in the Supreme Court which was refused.

12. Bail was refused in respect of the present matter on 18 February 2015 following the applicant being committed for trial.

13. On 26 March 2015 the applicant was found not guilty of the affray charge. A fortnight later, on 8 April 2015, he was again granted bail by the District Court in respect of the current matter.

14. The Crown filed a detention application on 13 April 2015. After being adjourned once, at the request of the applicant, it was heard and granted by R S Hulme AJ on 14 May 2015. The applicant was returned to custody.

15. A release application was filed by the applicant on 1 June 2015. The applicant seeks bail with very strict conditions of the same type as were imposed in the bail granted in the District Court on 8 April 2015. Resolution of the application was delayed until today by an adjournment which was sought by the applicant and granted on 3 July 2015.

Relevant issues under s 18 of the Bail Act

16. It is common ground that the "show cause" requirement in s 16A of the Bail Act 2013 (NSW) does not apply. Apparently the Crown contended in the hearing before R S Hulme AJ that it did apply because the applicant was on parole at the time of the alleged commission of at least the firearm offence. However, his parole had earlier been revoked and there was an outstanding warrant for his arrest. Accordingly, the question for determination is whether there is an "unacceptable risk" that if released from custody the applicant will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

17. In making a bail decision, it is necessary for the Court to assess any "bail concerns": s 17(1). That term is a reference to the same matters listed in s 19(2) which are repeated in s 17(2). In making this assessment the Court is confined to a consideration of the matters listed in s 18(1): Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20].

18. The applicant is married with three children and his parents and four brothers all live in the Sydney region.

19. He has a criminal history which includes two offences of robbery in company as well as offences of assault with intent to rob and affray.

20. The applicant concedes that the offences presently alleged are serious (s 18(1)(b)) and that a sentence of imprisonment is likely if he is convicted (s 18(1)(i)).

21. There is an issue about the strength of the prosecution case (s 18(1)(c)). In relation to the firearm offence, counsel for the applicant submitted that there would be difficulties in proving the element of possession, either sole or joint. It was said that the DNA may be explicable for other reasons such as transference or contact with the item at some early stage.

22. There seems to me to be a viable case suggesting that the applicant was associated with the premises in which the pistol was found including that he was responsible for the attempt to conceal the drug supply activity that was being carried on there. Significantly, at this point there is no evidence to support any of the suggested alternative explanations for the DNA on the pistol.

23. There were competing arguments about the strength of the case concerning the pervert the course of justice offence. I accept that it will depend upon the credibility of the witness MK but there is supporting evidence such as that relating to the particular motor vehicle seen by police at his home which was found to be registered to a company of which the applicant was a director.

24. The applicant conceded that he had a history of violence (s 18(1)(d)). The two robbery offences occurred when he was a juvenile. The affray was dealt with by Latham J in 2012. Reference was made to her Honour's sentencing judgment in which she had accepted that the applicant did not play a major part in the infliction of the violence in relation to that incident but I note that her Honour said that the applicant "must have known that there was a significant risk of a violent confrontation, yet he chose to involve both himself and his younger brother": R v Moustafa Mariam [2012] NSWSC 1496 at [22].

25. It was put in written submissions that the applicant had not previously committed a "serious offence" while on bail (s 18(1)(e)), but I note from his record and it was conceded today that he was charged with the offences of Assault with intent to rob and Assault on 13 July 2009 during the currency of proceedings following an arrest on 6 April 2009 when charged with drug offences which were not finalised until 9 November 2009. Accordingly, he committed the first mentioned offences while on bail for the drug matters.

26. The applicant has a history of non-compliance with a parole order (s 18(1)(f)). He was found to be in breach of parole on 7 June 2013 in respect of his 2012 sentence for affray. The breaches included failing to obey all reasonable directions and failing to report as directed. Police attended the applicant's home on 28 June 2013 to execute the parole revocation warrant and a note was left. A lawyer contacted police advising that the applicant would present himself to a police station the following day. He did not attend. He also failed to appear in court on 22 July 2013 in respect of a serious driving offence and remained at large until he was arrested at Parramatta on 22 January 2014. It may be inferred that he likely knew that his parole had been revoked.

27. In a footnote in the applicant's written submissions there is a claim that the failure to appear in court on 22 July 2013 was attributable to a diary error by his solicitor who had entered the matter for 22 August, not 22 July. That, however, does not explain why nothing was done when the mistake was realised, which it must have been by at least 22 August.

28. There is an issue about whether the applicant has any criminal associations (s 18(1)(g)). Counsel for the applicant contends that there is no evidence of this but the Crown points to evidence of two men being present in the public gallery during the applicant's committal hearing on 27 January 2015; one being said to be a member of the Brothers for Life criminal gang and the other being described as "a significant figure in organised crime groups in Arncliffe and Western Sydney”. The former has been a frequent visitor to the applicant whilst he has been in gaol.

29. The length of time the applicant is likely to spend in custody if bail is refused amounts to about 7 weeks until his trial is scheduled to commence (s 18(1)(h)).

30. The applicant has the same interest in being free in order to prepare for his appearance at trial as any accused person (s 18(1)(l)). No greater need has been shown. There does not appear to be any unusual complexity about the evidence or issues in the proceedings.

31. The applicant claims that he also has a need to be released in order to obtain "prompt medical attention" (s 18(1)(m)). There is material suggesting a need for him to undergo a colonoscopy or some similar procedure but nothing has been placed before the Court to indicate a need for urgency.

Bail concerns

Failure to appear

32. The applicant relied upon his compliance with bail in the past, including his appearance at court on two occasions this year when a detention application by the Crown has been listed. The Crown relied upon the failure to appear on 22 July 2013 and the circumstances of the applicant being at large whilst warrants for his arrest in respect of the failure to appear and for the revocation of parole were in existence. The Crown also pointed to the fact that on 20 October 2014 the applicant sought (but was refused) a variation of bail so as to permit his travel to Lebanon.

33. I am satisfied that there is a risk that the applicant will not appear in court for his trial.

Commit a serious offence

34. Counsel for the applicant submitted that his offending in recent years has been minimal and there is no appreciable risk of him committing an offence, let alone a serious offence. The Crown contended that the applicant's preparedness to have a loaded pistol in his possession in the light of his history of involvement in matters of violence supports a submission that there is an unacceptable risk of him committing a serious offence.

35. In my view, that is a real concern but so also are the circumstances in which the applicant is alleged to have possessed the pistol. The various items found by police indicate that the unit was a haven for drug dealing activity of sufficient gravity that urgent attempts were made by the applicant, the only known occupant, to destroy the evidence before an imminent raid by the police.

36. The apparent association by the applicant with persons considered by police to be involved in organised criminal activity enhances this particular concern.

Endanger the safety of victims, individuals or the community

37. There is nothing in relation to this bail concern beyond what has been said in relation to the previous bail concern.

Interfere with witnesses or evidence

38. Counsel for the applicant submitted that there has been no suggestion of him contacting or interfering with the witness MK whilst he has been on bail. I note, however, that contact with MK has been made difficult by the fact that MK has been in prison up until recently. Police are said to hold fears for his safety and for the safety of his family.

39. To counter this, the submissions for the applicant include that any attempt to dissuade MK from giving evidence would be futile given the provisions of the Evidence Act 1995 (NSW) such as s 38 and s 65. There is no evidence that the applicant is aware of these provisions, let alone understands their effect.

40. The case against the applicant on the pervert the course of justice charge indicates, if accepted, a preparedness to take significant measures to avoid criminal sanction.

Conclusion

41. I have had regard to the very strict conditions of bail that are proposed, particularly the provision that the applicant be confined to his home so as to severely restrict his activities and movements and that his parents deposit significant sums of money to provide a disincentive for him to fail to appear in court.

42. This is to be weighed with all of the other considerations that I have discussed. In the end, I am particularly concerned about the risk of interference with MK, the risk of potential serious offending and, to a lesser extent, the risk of failing to appear in court. I am satisfied that the first two of those matters amount to unacceptable risks.

43. I propose that the application for bail be refused.

44. GARLING J: In order to grant bail to the applicant, a court needs to be satisfied that there are no unacceptable risks as that term is used in the Bail Act 2013. I have myself undertaken the evaluative exercise required to be satisfied that there are no unacceptable risks. I agree with R A Hulme J for the reasons which he has expressed, that there is an unacceptable risk of interference with a witness, an unacceptable risk of further serious offending and a risk of failing to appear in Court. I agree with the orders of R A Hulme J that bail be refused.

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Decision last updated: 11 February 2016