R v Alahmad

[2019] NSWSC 412

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Alahmad [2019] NSWSC 412
Hearing dates:	8 April 2019
Date of orders:	12 April 2019
Decision date:	12 April 2019
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application for bail variation is refused.
Catchwords:	BAIL – release application – variation – removal of condition of house arrest – bail concerns and risks which applicant poses – significant custodial sentence to be imposed if convicted – strength of Crown case – weight to be given to letter written to Court – where applicant refuses to give evidence or be cross-examined – letter given no weight – application for variation refused
Legislation Cited:	Bail Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Imbornone v R [2017] NSWCCA 144 R v Alahmad (Supreme Court (NSW), Fullerton J, 17 July 2018, unrep) R v Alahmad (Supreme Court (NSW), Hidden AJ, 8 October 2018, unrep) R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
Category:	Principal judgment
Parties:	Regina (Crown) Asaad Alahmad (Applicant)
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Oxford Lawyers (Applicant)
File Number(s):	201937580
Publication restriction:	Nil

Judgment

1. Mr Alahmad made an application under the Bail Act2013 (NSW) for variation of the stringent conditions of bail imposed upon him by Hidden AJ on 8 October 2018, when he was granted bail for serious firearm and affray offences which the Crown alleges he committed in June 2018. He was that day arrested and charged with those offences, after he was taken to Auburn hospital suffering life threatening injuries caused by gun shots.

2. The application was opposed by the Crown in circumstances where it is common ground that Mr Alahmad has complied with his conditions of bail and he is next due to appear before the Parramatta District Court on 18 April 2019 for arraignment. Both charges are defended, despite what appears to be a very strong Crown case on the affray charge. It is now anticipated that the charges will go to trial in early 2020.

3. Mr Alahmad’s application seeks to remove the conditions which have put him under effective house arrest, so that he can take up an offer of employment which he has received and can also attend normal activities including attendance at Mosque, particularly during the coming month of Ramadan.

4. In the alternative Mr Alahmad sought that those conditions be relaxed, so that he could leave his home only to work, or in the company of his mother or his sureties, his brother or sister.

Should Mr Alahmad’s conditions of bail be varied?

5. In resolving what is in issue between the parties it must be borne in mind that the application has to be decided on the balance of probabilities: s 32. What must be taken into account is evidence or information considered to be credible or trustworthy in the circumstances the Court not being bound to the principles or rules of law governing the admission of evidence: s 31.

How Mr Alahmad came to be granted bail

6. In order to resolve what is in issue, it is necessary to begin with how Mr Alahmad came to be granted bail for the serious offences with which he has been charged.

7. Mr Alahmad was initially refused bail by Fullerton J in July 2018, when her Honour found that he had shown cause why his detention was not justified, because of the less than optimum treatment which was able to be provided to him in custody, for the serious injuries he had sustained in the shooting: R v Alahmad (Supreme Court (NSW), Fullerton J, 17 July 2018, unrep).

8. But Fullerton J was not satisfied that the unacceptable risks which she found that Mr Alahmad then posed could be adequately addressed even by the stringent conditions of bail then proposed. They were risks of interference with witnesses, both identified and unidentified and of the commission of further serious offending involving violence, or the threat of it, given his implication in an ongoing dispute of considerable dimension with criminal adversaries. Her Honour also concluded that the safety of the community and that integrity of the ongoing police investigation would be at risk, if he was released on bail.

9. The conditions then proposed included effective house arrest with his family; reporting conditions; non-association; and place restrictions.

10. It was in October 2018 that Mr Alahmad was granted bail by Hidden AJ, having successfully contended that his circumstances had relevantly changed. His Honour then took the view that Mr Alahmad had to overcome only two “hurdles”, the first, that he had to show cause why his detention was not justified and the second, that his circumstances had changed: R v Alahmad (Supreme Court (NSW), Hidden AJ, 8 October 2018, unrep). His Honour concluded that Mr Alahmad had overcome both those hurdles, but made no reference to the bails concerns and risks which Mr Alahmad posed, in arriving at the conditions of bail which were imposed.

On this application the bail concerns and risks which Mr Alahmad poses must nevertheless be considered

11. In Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 it was explained that determination of a bail application such as that which Mr Alahmad made before both Fullerton and Hidden JJ, involves a two-step process. Thus even if matters relevant to the s 16A show cause test relied on by the applicant are also relevant to the question of bail concerns which the applicant poses and the s 19 unacceptable risk test, the two statutory tests may not be conflated: at [25].

12. On this application, while the show cause test does not again arise for consideration, the bail concerns and risks which Mr Alahmad poses do, s 20A of the Bail Act, on which Mr Alahmad relied to advance his variation application, providing as it does:

“20A    Imposition of bail conditions

(1)    Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns.

(2)    A bail authority may impose a bail condition only if the bail authority is satisfied that:

(a)    the bail condition is reasonably necessary to address a bail concern, and

(b)    the bail condition is reasonable and proportionate to the offence for which bail is granted, and

(c)    the bail condition is appropriate to the bail concern in relation to which it is imposed, and

(d)    the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and

(e)    it is reasonably practicable for the accused person to comply with the bail condition, and

(f)    there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

(3)    This section does not limit a power of a court to impose enforcement conditions.

13. The bails concerns and risks which the Crown identified Mr Alahmad as now posing were the risks of non-appearance; of commission of a serious offence; of danger to the victim; and of interference with witnesses or evidence.

14. Despite the case advanced for Mr Alahmad, on the materials, I am satisfied that he poses all of those bail concerns and risks, for reasons which follow.

Mr Alahmad’s case

15. Mr Alahmad’s case was advanced on the basis of two letters. One which he had written to the Court on 4 April and the other an undated letter written to the Court by a qualified electrician who was the manager of a company which works all over Sydney, at fixed job sites and maintenance/service call-outs. He has offered Mr Alahmad, who seemingly has no relevant qualifications, employment performing “light duties, assisting me with electrical works”.

16. Initially Mr Alahmad’s letter was received on the basis that there was no objection from the Crown, who sought to cross-examine him on what he had written. Mr Alahmad then declined to give evidence. The Crown indicated that what it sought to cross-examine him about concerned matters dealt with in the affidavit sworn by his mother, which he had relied on for his second bail application before Hidden AJ, as well as on the contents of the letters he relied on upon this application. Still, as was his right, Mr Alahmad refused to give evidence.

17. Mr Alahmad’s letter was then objected to, but the objection was withdrawn, the parties accepting that like when an offender does not give evidence on sentence, so that he or she can be cross-examined about accounts given to others who have prepared reports in evidence, such as medical experts, it will be a matter for the Court to determine what weight, if any, can be given to those untested accounts: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58] – [59]

18. The case finally advanced for Mr Alahmad was that despite his refusal to be cross-examined, the Court would put weight on the letters, as well as on the fact that since being granted bail, he had complied with all of the stringent conditions Hidden AJ had imposed upon him.

19. Having been released on bail for some 6 months without further offending and having complied with all conditions of his bail was argued to be a significant factor, which could be taken into account, in determining whether he posed the bail concerns identified by the Crown.

20. It was also submitted that when Hidden AJ granted Mr Alahmad bail, it was unknown whether he would appear before the Court and so the risks which he then posed were argued to be higher than was the case now. That was because he had complied with his bail conditions and had appeared when required. It was also submitted that “if he had any intention of committing offences, he would have and with respect to interfering with any witnesses, again he would have during the last 6 months”. His compliance was also submitted to evidence his continued intention to comply with his bail conditions.

21. In the result, if the condition of house arrest was removed, the combination of the remaining conditions of bail were submitted to sufficiently and adequately address the bail concerns which Mr Alahmad still poses, s 18(1)(f) of the Bail Act requiring when assessing his bail concerns, that his history of compliance with the conditions Hidden AJ imposed, be considered.

22. That compliance was also submitted to provide an indication of what Mr Alahmad would do in future, so that it would be accepted that his house arrest was no longer necessary.

23. I am satisfied that these submissions may not be accepted.

The matters relevant to the assessment of the bail concerns which Mr Alahmad poses

24. In assessing the bail concerns which Mr Alahmad poses, the matters in s 18(1) which must be taken into account. As well as compliance with his current conditions of bail, they include, relevantly:

(a)    the accused person’s background, including criminal history, circumstances and community ties,

(b)    the nature and seriousness of the offence,

(c)    the strength of the prosecution case,

(d)    whether the accused person has a history of violence,

(g)    whether the accused person has any criminal associations,

(h)    the length of time the accused person is likely to spend in custody if bail is refused,

(i)    the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(i1)    if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.”

The seriousness of the alleged offences, the strength of the prosecution case and the likely sentence on conviction

25. There can be no question as to the extreme seriousness of Mr Alahmad’s alleged offending, involving as it did an armed, prearranged confrontation between two groups of men, two of whom were seriously injured by the gunfire exchanged in a public street. There is no issue that if convicted after trial, he will receive a considerable term of imprisonment, given the maximum penalties and that he will not be entitled to any utilitarian discount on sentence.

26. Both Fullerton J and Hidden AJ viewed the CCTV footage on which the Crown case in large part depends. While on this application the CCTV footage and a still taken from it were again tendered, neither party suggested that it was necessary that I view the footage, it not being in issue that what Fullerton J and Hidden AJ described in their judgments, accurately reflected the evidence.

27. Fullerton J gave a detailed description of what can be seen in the footage, which is only of a few minutes duration. Namely, that it captures the confrontation between the applicant and his cousin on the one hand and the other person who was shot, Zac Daher, his brother and another person, on the other. Fullerton J accepted that the precise configuration of the men was obscured by pixilation and that at critical points, they moved out of camera range.

28. Her Honour also had before her 87 still images and described in detail what there can be seen, which included all those involved in the affray and Mr Alahmad arriving; the discussions which involved an exchange primarily between Mr Alahmad and Mr Daher and his brother, which became heated; and the physical antagonism which resulted.

29. Her Honour also noted that the Crown case on the footage was that:

• it was Mr Alahmad who presented a silver gun which he directed at Mr Daher and discharged at his thigh;

• Mr Daher then managed to disarm Mr Alahmad, who ran with Mr Daher chasing him;

• Mr Daher then discharged the gun at Mr Alahmad;

• another gun was also discharged at Mr Alahmad;

• who fired the bullet which struck Mr Alahmad is not clear, but a witness nearby heard four gunshots fired in a very short period of time; and

• both Mr Alahmad and Mr Daher were later treated in hospital for their gunshot wounds.

30. Hidden AJ did not give a similar description of the evidence or the Crown case, but concluded that the case depending as it did on the CCTV footage, the affray charge might be able to be established against Mr Alahmad, but that the case on the firearm offences was very weak.

31. Like Fullerton J, I consider that on the evidence Mr Alahmad is at significant risk of conviction of affray, which attracts a maximum penalty of 10 years and that he is also at risk of conviction of the firearm charges, which attract maximum penalties of 25 and 10years, even though the evidence of that offending is much weaker: s 33A(1)(a), 93C(1) and 93G(1)(c) Crimes Act1900 (NSW).

Mr Alahmad’s record

32. Hidden AJ considered Mr Alahmad’s record to be of no significance to the application. His record goes back to 2011 and includes convictions for a custody of knife offence; driving and police pursuit offences; as well as drug offences.

Mr Alahmad’s background and criminal associations

33. In her judgment, Fullerton J explained that Mr Alahmad, Mr Daher and the other men present when he was shot have all exercised the right not to give any account to police and have also not co-operated in the police investigation. That remains the position even now.

34. In refusing bail Fullerton J took into account the evidence of telephone records which she accepted provided a foundation for the inferences that:

• the meeting had been pre-arranged;

• one or more of those who attended were armed with a firearm;

• the confrontation concerned a dispute over the supply of prohibited drugs in the Granville area, in which Mr Alahmad was heavily involved; and

• that he had an alliance with a well-known criminal family known as the Alameddines, who are notoriously known for involvement in a variety of criminal activities, including drug and firearm related offences.

35. Hidden AJ took into account the evidence that Mr Alahmad has family support and standing in the community; he suffered serious injury and was not receiving in custody the follow up treatment which he required; that the residence available to him, was well away from the area where the incidents had occurred and where those involved were likely to congregate; that strict curfew conditions amounting to house arrest were to be imposed; and that significant security was to be provided.

36. In the result his Honour accepted that fears of Mr Alahmad absconding; associating with other persons involved, and committing further offences would be allayed by the conditions which he imposed.

Mr Alahmad does pose the identified bail concerns and risks

37. When all of this is considered, given the seriousness of Mr Alahmad’s alleged offending and the consequences which he faces, if convicted, I am well satisfied that he continues to pose the bail concerns and risks which the Crown identified.

38. The remaining question is whether the varied conditions of bail which Mr Alahmad seeks, would leave open the conclusion that the risks which he poses are not unacceptable ones.

The proposed variation to the bail conditions would not permit the conclusion that the risks which Mr Alahmad poses, are not unacceptable ones

39. Mr Alahmad’s compliance with the stringent conditions of bail which Hidden AJ imposed upon him, it may be accepted, is to his credit and will be relevant on sentence, if he is convicted of the charges which he defends. Were it otherwise, his bail would have been revoked and he would have been returned to custody.

40. It does not follow, however, that his compliance with those stringent conditions, that the risks which he still so clearly poses, have been reduced. Rather, his compliance reflects that those stringent conditions, which took effect when he was released from custody, have kept him removed from situations in which he might otherwise be tempted to breach the first and obviously most important of the bail conditions imposed upon him, namely, that he be of good behaviour.

41. On all that I have discussed, I am satisfied that there is simply no basis upon which it could be concluded that the removal of the house arrest condition, would permit the conclusion that Mr Alahmad did not pose unacceptable risks of non- appearance; of committing further serious offences; of posing danger to the victim; or of interference with witnesses or evidence.

42. In coming to this conclusion I bore in mind that the onus of establishing that he poses no unacceptable risk fell on Mr Alahmad. His refusal to be cross-examined on his letter, or the matters to which his mother deposed in the affidavit which she swore and he relied on before Hidden AJ, was thus relevant. That refusal, I am satisfied, meant that no weight could be given to what he advanced in the letter which he wrote to the Court.

43. Relevant to this conclusion was that in her affidavit Mr Alahmad’s mother had deposed that it was only with his assistance that she was able to make mortgage repayments on the family home; that if released on bail, he could continue to operate his business, performing the work she described; and that it was necessary for him to contribute to the mortgage repayments, failing which the family home would be lost.

44. In his letter Mr Alahmad said that despite his release he had not been able to work, even though his medical condition had improved. He also said that his business had gone downhill while he was in custody and after his release, he had lost it completely, his company having been closed. He thus wanted to take up the work he had been offered, to contribute to the community and in order to be able to do normal day-to-day things outside his home. He did not, however, suggest that this had resulted in any difficulty in mortgage repayments being made, or that there was any risk of loss of the family home.

45. These were matters about which the Crown sought to cross examine him.

46. Similarly to what has been repeatedly discussed in the context of evidence of remorse on sentence, where an offender fails to give evidence which can be tested, while Mr Alahmad’s letter was received in evidence, the result of his refusal to be cross examined, was that it could not be given any weight in resolving what lay in issue over his application: see the discussion in Imbornone v R [2017] NSWCCA 144 at [57].

39. In a similar way, an applicant for bail should be prepared to be subjected to cross-examination, if weight is to be given to what he or she seeks to advance to the Court in support of an application, in respect of bail. Where self-interested assertions are advanced by an untested letter, which are otherwise impossible for the Crown to verify or test and which in this case also appear to depart from what the applicant has advanced on earlier applications, if the applicant is not prepared to give evidence and be tested, no weight can be placed upon what has been written out of Court.

40. In the result I am satisfied that the house arrest condition imposed by Hidden AJ continues to be reasonably necessary to address the bail concerns which Mr Alahmad poses, they being reasonable and proportionate to the offences for which he was granted bail. They are is also appropriate to those bail concerns, being no more onerous than necessary to address those concerns; and also practicable for him to continue complying with. There are also reasonable grounds to believe that he is likely to continue complying with that condition: s 20A.

Orders

49. For these reasons the application for variation of Mr Alahmad’s bail conditions is refused.

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Amendments

18 April 2019 - Published

Decision last updated: 18 April 2019