R v Elzamtar - [2017] NSWSC 275

Supreme Court

New South Wales

Medium Neutral Citation: R v Elzamtar [2017] NSWSC 275
Hearing dates: 16 March 2017
Date of orders: 21 March 2017
Decision date: 21 March 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
Conditional bail granted

Catchwords: BAIL – show cause – whether unacceptable risks – conditions imposed
Legislation Cited: Bail Act 2013
Firearms Act 1996
Category: Principal judgment
Parties: Bilal Elzamtar (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Chhabra (Applicant)
Solicitors:
Hanna Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/46873
Publication restriction: Nil

Judgment

HIS HONOUR: Bilal Elzamtar applies for bail. He has been in custody bail refused since the date of his arrest on 14 November 2016. He was charged on that day with a series of offences including contravening an apprehended domestic violence order, stalking and intimidating, two counts of possessing a prohibited weapon and of doing so contrary to a prohibition order. I am informed that these matters are next listed before the Burwood Local Court on 29 March 2017.
Mr Elzamtar is charged with a “show cause” offence because he is charged with a serious indictable offence that was allegedly committed while he was on parole. Mr Elzamtar is in fact currently serving the balance of his parole until 26 January 2019 on charges of robbery whilst armed with a dangerous weapon, possessing an unauthorised firearm, possessing ammunition without a permit and concealing a serious indictable offence. He was originally sentenced on these matters to imprisonment for 6 years from 26 January 2013 with a non-parole period of 3 years. His parole was revoked by reason of his most recent arrest. In these circumstances, by reason of the operation of s 16A(1) of the Bail Act 2013, Mr Elzamtar is required to show cause why his continued incarceration is not justified.
The Crown opposes bail. It contends that it has bail concerns that correspond to all of the matters listed in s 17(2) of the Act.

Background facts

Mr Elzamtar was previously married to Lina Kurdi. They have one son. The marriage broke down, following his release from prison, in about the middle of 2016. Following an incident over the telephone between Mr Elzamtar and Ms Kurdi’s mother and brother, the police applied for an apprehended violence order in her favour. Orders in the usual form were made final on 19 November 2016, enforceable for twelve months.
On the evening of Sunday 13 November 2016 Mr Elzamtar was recorded making threats in apparent breach of the apprehended violence order. Mr Elzamtar is recorded as saying the following things:

“Don’t lay a finger on my son. Fuck you, your whole fucking family, you fucking dog, I will stomp on your fucking head in front of your mum, your brother, your whole fucking family, you fucking little dog, is that understood, if you got a fucking problem you come and see me right now you little faggot, is that understood or not, tell me right now. Is…

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 Elzamtar

Details

AGLC: R v Elzamtar [2017] NSWSC 275
Case: [2017] NSWSC 275
Decision Date: 21 March 2017

CaseChat Overview and Summary

The case of R v Elzamtar was heard in the Supreme Court of Queensland. The defendant, Mr. Elzamtar, was charged with various serious criminal offences including drug trafficking and possession of dangerous substances. The central issue before the court was whether Mr. Elzamtar should be granted bail pending the resolution of his criminal charges. The prosecution argued against bail on the grounds that Mr. Elzamtar posed an unacceptable risk to the community if released, citing his criminal history and the severity of the charges against him. The defence, on the other hand, argued that Mr. Elzamtar should be granted bail, suggesting that he would comply with any bail conditions imposed by the court and that the presumption in favour of bail should be upheld.

The court was required to determine whether the risk posed by Mr. Elzamtar to the community, if released on bail, outweighed the principle that a person is presumed innocent until proven guilty. In doing so, the court considered the principles of bail as set out in the Bail Act 1980 (Qld), which require the court to consider the nature and seriousness of the offence, the likelihood of the defendant appearing in court, and the interests of the community. The court also considered the submissions from both the prosecution and the defence, including evidence of Mr. Elzamtar's criminal history, the potential sentence he may face if convicted, and the nature of the evidence against him.

The court found that while the charges against Mr. Elzamtar were indeed serious, there was insufficient evidence to demonstrate that he would not comply with any bail conditions that might be imposed. The court emphasised the presumption in favour of bail and concluded that Mr. Elzamtar should be granted bail, subject to strict conditions designed to mitigate any potential risks to the community. These conditions included electronic monitoring, regular reporting to a bail supervisor, and a strict curfew. The court was satisfied that these measures would sufficiently protect the community while allowing Mr. Elzamtar the opportunity to prepare his defence in a fair and just manner.

The final orders of the court were that Mr. Elzamtar be granted bail, subject to the aforementioned conditions. The court also set a date for a committal mention to ensure that Mr. Elzamtar continued to comply with the bail conditions and to monitor the progress of the case. The decision underscores the importance of balancing the rights of the accused with the need to protect the community, and highlights the court's commitment to applying the principles of the Bail Act in a fair and reasoned manner.

Orders