R v AC (No 2)
[2016] NSWSC 208
•03 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v AC (No 2) [2016] NSWSC 208 Hearing dates: 3 March 2016 Date of orders: 03 March 2016 Decision date: 03 March 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Bail to continue.
Condition 10 varied.Catchwords: CRIMINAL LAW – detention application after guilty plea – reasonable notice – application adjourned Category: Procedural and other rulings Parties: Regina (Applicant)
Witness M (Respondent)Representation: Counsel:
Solicitors:
K McKay & P Hogan (Crown)
Z Khatiz (Solicitor) (Witness M)
Solicitor for the NSW DPP(Crown)
Oxford Lawyers (Witness M)
File Number(s): 2014/90422; 2014/315510 Publication restriction: No publication until the conclusion of both trials of R v Qaumi & Ors.
EX TEMPORE JUDGMENT
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The accused, now offender, Witness M, this morning entered pleas of guilty to two offences, being offences of being an accessory before the fact to the murder of Mahmoud Hamzy and accessory before the fact to an offence of discharging a firearm with intent to cause grievous bodily harm to Abdul Abu-Mahmoud. She also admitted her guilt in relation to her participation in a criminal group.
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I have been provided with an agreed statement of facts which sets out her alleged role as what might generally be described as a facilitator and worse in relation to what were two extremely serious offences of gangland violence arising from a dispute between two groups that the Crown alleges were criminal gangs.
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Having accepted that plea in full discharge of all of the offences that Witness M was previously charged with, which included a number of other serious offences relating to other shootings arising out of the same gangland turf war, the Crown then filed in court a detention application.
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It is the case that Witness M has been on bail since she was charged with
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An offence arising out of the same facts as the second count to which she has currently pleaded guilty. She remained on bail, I am told from the Bar table, for seven months before she was charged with an offence of murder arising out of the facts relating to the first count on the current indictment. She remained on bail. I am told that Campbell J in the Supreme Court granted her bail. I can't at the moment work out whether that was on a detention application by the Crown or on an application for bail by her, but in any event I accept from Mr Khatiz that that is what happened.
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The bail conditions that she has been on are stringent and she has, it seems, complied with them entirely.
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From time to time since the trial proceedings have been before me in November, she has sought and been granted by consent various variations to the bail conditions. Most recently a condition that had previously essentially been a condition requiring her to remain in her residential premises, except for certain necessary appointments of a legal and medical nature, and to report to the police, which she does daily, was relaxed from what was essentially a house arrest condition to what became a curfew condition.
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The Bail Act 2013 (NSW) requires that if a detention application is to be made, the accused should be given reasonable notice of the application.
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I have an affidavit before me from Ms Moran and I accept from its contents that the prosecutor has acted with extreme alacrity in bringing the application and I also accept the contention that is made on behalf of the prosecutor, at least implicitly, that really until such time as Witness M took the decision to enter the plea of guilty, its position on bail did not reach the position where it opposed it and sought for her to be detained.
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On the other hand, Mr Khatiz, who appears for Witness M, is not in a position today to call evidence of the kind that may persuade me ultimately to continue her bail until the outcome of the sentencing hearing. Nor, at this stage, am I aware of how long it will take before the sentencing proceeding occurs. Those matters will both be relevant to a determination.
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I accept the Crown submission that in the light of the charges in relation to which she has entered pleas of guilty and the facts of those charges, which disclose criminality of an extreme nature, there is something approaching an inevitably of a custodial sentence. On the other hand, it is equally clear that Witness M is going to provide evidence for the prosecution which will result in a significant reduction in any sentence that is imposed. It is also the case that she has complied fastidiously with the bail conditions for a period of 22 months and that her mother at this stage has put up her house valued at $1.4 million to secure Witness M's attendance.
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I am of the view that Mr Khatiz, representing Witness M, is entitled to at least some time to prepare himself for the detention application and I am also satisfied that a very short adjournment is appropriate to enable that to happen. I do accept the risks involved that Mr Crown has pointed to but those matters can be more fully fleshed out when the matter comes back.
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The first day that the Court can realistically hear this application is Tuesday 8 March 2016 because there are other applications likely to be heard on the 7th and I do not want, if I can avoid it, Witness M attending on days where the trial proper is to proceed. I propose to adjourn the detention application until Tuesday 8 March 2016 at 10am and to continue the bail which she is currently on but to reinstate the house arrest condition so that what is, I think, condition 10 will be now varied back to what it was before, which is this:
Not to leave residential premises for any reason except to report to the police station in accordance with condition 2 and to attend Court and to do so by the most direct route;
To attend legal appointments as arranged by Mr Khatiz, details of which are to be provided to Detective Inspector Browne or his delegate;
To attend hospital in the case of an emergency or doctor's surgery, evidence to be provided to Detective Inspector Browne or his delegate;
To possess one mobile telephone, the telephone number of which is to be provided to Detective Inspector Browne or his delegate within 24 hours of purchase, any breach to result in automatic revocation.
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Decision last updated: 13 December 2016
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