R v Elshaimy - [2025] NSWSC 895

Supreme Court

New South Wales

Medium Neutral Citation: R v Elshaimy [2025] NSWSC 895
Hearing dates: 5 August 2025
Date of orders: 5 August 2025
Decision date: 08 August 2025
Jurisdiction: Common Law
Before: Coleman J
Decision:
Proceedings 2025/272979
1. Crown detention application refused.
Proceedings 2025/285185
1. Bail variation granted.

Catchwords:
CRIME – bail – show cause – detention application and variation application heard together – murder – joint criminal enterprise – where private electronic monitoring condition has to be removed due to Bail Act amendment – where applicant was charged with domestic violence offences while on Supreme Court bail - where applicant has not breached bail – large surety – cause shown – detention application refused – variation granted

Legislation Cited:
Bail Act 2013 (NSW)
Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW)

Cases Cited:
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380
Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
R v Kaddour [2025] NSWSC 872
R v Mehajer [2018] NSWSC 1687
R v S [2016] NSWCCA 189

Category: Principal judgment
Parties:
Proceedings 2025/272979
Crown (Applicant)
Adam El Shaimy (Respondent)
Proceedings 2025/285185
Adam El Shaimy (Applicant)
Crown (Respondent)
Representation:
Counsel:

Proceedings 2025/272979
D Hannan (Applicant)
P Strickland SC (Respondent)

Proceedings 2025/285185
P Strickland SC (Applicant)
D Hannan (Respondent)

Solicitors:

Proceedings 2025/272979
Director of Public Prosecutions (Applicant)
Karnib Saddik Law Firm (Respondent)
Proceedings 2025/285185
Karnib Saddik Law Firm (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2025/272979
2025/285185
Publication restriction: Published as redacted to excise any matters the subject of a statutory protection pursuant to the Crime Commission Act 2012 (NSW).

JUDGMENT

Background

In the early hours of 23 July 2023, a shooting occurred in Mayvic Street, Greenacre. As a result, one person was killed, and two others were seriously injured.
Adam Elshaimy stands charged with one count of murder, two counts of shoot at person with intent to murder and one count of participating in a criminal group. The charges arise from the events surrounding and involving the shooting just referred to.
It is the Crown case that Mr Elshaimy was part of a joint criminal enterprise (“JCE”) with two others to shoot and kill persons who were suspected (wrongly) of seeking retribution against one of them (Chahal) for an earlier alleged drug theft (or drug “rip”). As it turns out, the person murdered, and those injured, were innocent people with no known connections to drugs or those people said to be part of the alleged JCE.
On 8 October 2024, Wright J granted Mr Elshaimy bail on strict conditions. Those conditions included that he wear a privately provided, funded and monitored electronic monitoring device. On 11 June 2025, the Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW) came into force. The effect of this act is that no person on bail can have an electronic monitor that is privately operated. There is a transition period in which…

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 Elshaimy

Details

AGLC: R v Elshaimy [2025] NSWSC 895
Case: [2025] NSWSC 895
Decision Date: 08 August 2025

CaseChat Overview and Summary

The case of R v Elshaimy involved the applicant, who was on bail for a charge of murder, appearing before the court for a show cause hearing regarding their detention and a variation of bail conditions. The matter was heard in the Supreme Court of a state in Australia. The applicant had been charged with murder as part of a joint criminal enterprise and was subject to bail conditions, including private electronic monitoring. However, due to recent amendments to the Bail Act, the electronic monitoring condition had to be removed. Additionally, the applicant had been charged with domestic violence offences while on bail from the Supreme Court, though no breach of bail conditions had occurred.

The court was required to determine whether the applicant should be detained and if the bail conditions should be varied. The primary legal issues included the necessity for detention under the circumstances and the appropriateness of varying the bail conditions in light of the applicant's new charges and the mandatory removal of electronic monitoring. The court had to consider the seriousness of the original charge, the nature of the new charges, the likelihood of the applicant appearing in court if bail was varied, and the risk the applicant posed to the community.

In reaching its decision, the court examined the gravity of the charges against the applicant and noted that they had not breached their bail conditions. The court acknowledged the mandatory removal of electronic monitoring due to the Bail Act amendment but considered the overall risk to the community and the likelihood of the applicant appearing in court if bail was varied. The court determined that, despite the new domestic violence charges, the applicant had shown cause and that a large surety would adequately ensure their attendance. Consequently, the court refused the application for detention and granted the application for variation of bail conditions, imposing a higher surety.

Orders