R v Ebrahimi - [2015] NSWSC 335

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ebrahimi [2015] NSWSC 335
Hearing dates: 26 March 2015
Date of orders: 26 March 2015
Decision date: 26 March 2015
Jurisdiction: Common Law
Before: Beech-Jones J.
Decision:
Bail refused

Catchwords: BAIL – show cause offence, whether detention is justified – alleged importation of precursors – serious offence – assessment of strength of Crown case – false identification found on accused – strong subjective case for bail – proposal for electronic monitoring – health condition of applicant – separation from children – bail concerns – unacceptable risk of absconding – detention not shown to be unjustified – bail refused.
Legislation Cited: - Bail Act 2013, s 16, s 16A, s 17, s18 and s 19
- Criminal Code 1995, s 307(11)
- Customs Act 1901 (Cth), s 233BBA(4)
- Drugs Misuse and Trafficking Act 1985, s 25(2)
Cases Cited: - Asmar v the Crown [2005] VSC 487
- Director of Public Prosecutions v Harika [2001] VSC 237
- M v R [2015] NSWSC 138
- Woods v Director of Public Prosecutions [2014] VSC 1
Category: Principal judgment
Parties: Crown (Prosecution)
Ebrahimi (Respondent)
Representation:
Counsel:
A.T. Bellanto QC (Applicant)
D. Staehli SC (Respondent)
Solicitors:
Director of Public Prosecutions (Applicant)
Gergis Solicitors (Respondent)

File Number(s): 14/321285
Publication restriction: Nil

ex tempore Judgment

The applicant for bail faces six charges, all of which are said to arise out of two alleged importations of pseudoephedrine and another precursor that occurred between 2012 and 2013. I will explain the alleged facts concerning those charges in more detail shortly.
One of those charges is an offence under s 25(2) of the Drugs Misuse and Trafficking Act 1985, namely, supply a prohibited drug. In this case it carries a maximum penalty of life imprisonment. Otherwise, in respect of the first alleged importation he faces a charge under s 307(11) of the Criminal Code 1995 (“the Code”) which carries a maximum penalty of imprisonment of 25 years and 5,000 penalty units; an alternative count of an attempt to import a commercial quantity of a precursor under s 307(11) which carries the same maximum penalty and a further alternative count being an offence under s 11.5 of the Criminal Code in respect of a contravention of s 233BAA(4) of the Customs Act 1901 (Cth). It has a maximum penalty of five years and a fine of $10,000. In respect of the second alleged importation, the applicant faces a charge under s 307(11) of importing a commercial quantity of a border controlled precursor and another alternative count of attempting to import a commercial quantity of a border controlled precursor.
The applicant was arrested on 8 August 2013. He has remained in custody since that time.

Show Cause of Offences and Bail Concerns

The making of bail decisions is governed by Pt 3 of the Bail Act 2013 (the “Act”). Section 17 of the Act requires the Court to assess any “bail concerns” which are a concern that an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ebrahimi

Details

AGLC: R v Ebrahimi [2015] NSWSC 335
Case: [2015] NSWSC 335
Decision Date: 26 March 2015

CaseChat Overview and Summary

In the matter of R v Ebrahimi, the respondent was detained on charges related to the alleged importation of precursor chemicals for illicit drug manufacture. The dispute centred on the respondent's application for bail, which the prosecution opposed on grounds that included the alleged offence's seriousness and the risk of absconding. The matter was heard in the Federal Circuit Court of Australia.

The legal issues before the court involved assessing whether the respondent's detention was justified, considering the strength of the prosecution's case, the respondent's proposals for bail conditions, and the impact of his detention on his health and family. Specifically, the court needed to determine if the evidence presented by the prosecution was sufficient to warrant continued detention and whether the respondent's proposed bail conditions, including electronic monitoring, adequately addressed the risk of absconding and the risk to the community.

The court held that while the prosecution had presented a strong case, the respondent had demonstrated a significant subjective case for bail. The respondent had proposed stringent bail conditions, including electronic monitoring, which the court considered could adequately address the risk of absconding and ensure community safety. However, the court also noted the risk of absconding was not insubstantial given the seriousness of the alleged offence and the respondent's previous history of providing false identification. Additionally, the court weighed the impact of detention on the respondent's health and his separation from his children. Ultimately, the court found that the risk of absconding was an unacceptable risk, and detention was justified. The application for bail was therefore refused.

The court ordered that the respondent remain in custody pending the outcome of the trial.

Orders