R v Jomaa - [2011] NSWSC 342

Supreme Court

New South Wales

Medium Neutral Citation: R v Jomaa [2011] NSWSC 342
Hearing dates: 17 March 2011 & 21 April 2011
Decision date: 06 May 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
Bail refused

Catchwords: CRIMINAL LAW - bail - attempt to possess a commercial quantity of cocaine - onus on the Applicant to show bail should not be refused - assessment of strength of Crown case - probability that Respondent will attend Court - whether onus discharged.
Legislation Cited: Bail Act 1978
Criminal Code 1995 (Cth)
Cases Cited: Commonwealth Director of Public Prosecutions v Germakian (2006) 166 A Crim R 201
R v RS [2011] NSWSC 103
R v Cain (No. 1) (2001) 121 A Crim R 365
R v Iskandar (2001) 120 A Crim R 302
R v Kissner (Unreported - Hunt CJ at CL - 17 January 1992)
R v Masters (1992) 26 NSWLR 450
R v Medich [2010] NSWSC
Category: Principal judgment
Parties: Mohamad Jomaa (Applicant)
Crown (Respondent)
Representation: Counsel:
B Walker SC & Mr S Hanley SC (Applicant)
T McDonald SC (Respondent)
Solicitors:
VA Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2010/315937

Judgment

The Applicant Mohamad Jomaa was arrested and charged on 22 September 2010 pursuant to s 307.5(1) Criminal Code 1995 (Cth) that he did attempt to possess a commercial quantity of a border controlled drug (32.45 kilograms of cocaine) that was unlawfully imported into Australia. The maximum penalty for this offence is imprisonment for life and/or 7500 penalty units.

Four other persons including one Brian Anthony Blackman were charged on the same day with similar offences as part of the same Australian Federal Police operation.

The Applicant has been in custody since the date of his arrest. He now makes application for bail.

Section 307.5 Criminal Code is an offence listed in s 8A Bail Act 1978. Section 8A(2) provides:

A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the authorised officer or court that bail should not be refused.

A number of decisions have discussed the effect of the presumption against bail to be found in s 8A and corresponding sections 8B, 8C and 8D. In R v Masters (1992) 26 NSWLR 450 at 473 the Court of Appeal said:

The presumption against bail expressed in that section imposes a difficult task upon the person so charged to persuade the court why bail should not be refused. That presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail. That is the effect of a series of decisions by single judges of the Supreme Court, most recently collected and discussed in R v Kissner (Hunt CJ at CL, 17 January 1992, unreported).

In R v Kissner (Unreported - Hunt CJ at CL - 17 January 1992) Hunt CJ at CL said this:

The strength of the Crown case…

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 Jomaa

Details

AGLC: R v Jomaa [2011] NSWSC 342
Case: [2011] NSWSC 342
Decision Date: 06 May 2011

CaseChat Overview and Summary

The case of R v Jomaa involved the Respondent, Jomaa, who was facing charges related to an attempt to possess a commercial quantity of cocaine. The dispute centred on whether Jomaa should be granted bail or remain in custody pending the resolution of his criminal charges. The matter was heard in a higher court in Australia.

The primary legal issue the court had to address was whether the onus of proving that bail should not be refused had been discharged by the Respondent. This involved assessing the strength of the Crown's case against Jomaa, as well as evaluating the likelihood that he would attend court if released on bail. The court had to determine if Jomaa had adequately demonstrated that the Crown's case was weak or if the probability of him attending court was sufficiently high to warrant bail.

The court found that Jomaa had not discharged the onus of showing that bail should not be refused. The strength of the Crown's case was significant, given the nature and quantity of the alleged drug offence. Furthermore, the court was not convinced that the probability of Jomaa attending court if released on bail was sufficiently high. Consequently, the court concluded that it was not in the interests of justice to grant bail. The court's reasoning was based on a careful consideration of the evidence presented and the potential risks associated with releasing Jomaa on bail.

The final orders of the court were that Jomaa remain in custody until the conclusion of his criminal proceedings. This decision was made in light of the serious nature of the charges and the court's assessment of the relevant factors, including the onus of proof and the likelihood of Jomaa attending court.

Orders