R v Mawad - [2015] NSWSC 1237

Supreme Court

New South Wales

Medium Neutral Citation: R v Mawad [2015] NSWSC 1237
Hearing dates: 23 July 2015
Date of orders: 23 July 2015
Decision date: 23 July 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
Bail granted.

Catchwords: CRIMINAL LAW – BAIL APPLICATION – show cause – combination of circumstances – young children with disabilities – lengthy remand period – bail concerns alleviated by onerous bail conditions – unacceptable risk – bail granted
Legislation Cited: Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Bail Amendment Act 2014 (NSW)
Cases Cited: R v Tikomaimaleya [2015] NSWCA 83
R v Young [2006] NSWSC 1499
Category: Principal judgment
Parties: Tony Mawad - Applicant
Regina – Respondent Crown
Representation: Solicitors:
Bannisters Lawyers - Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/131629
Publication restriction: Nil

ex tempore Judgment

Tony Mawad applies for bail and makes a release application under the provisions of the Bail Act 2013 (NSW) (“the Act”). Because of the amendments to the Act in 2014 and the nature of the charges that he faces, he is required by s 16A to show cause why his detention is not justified.
I have been taken to a variety of cases by his solicitor which discuss the meaning and content of the show cause requirement and I accept the submission that is made in general terms that each case would be determined on its own merits and that it is possible for a combination of circumstances working together to amount to material that would satisfy the show cause requirement: cf R v Young [2006] NSWSC 1499 at [20] per Johnson J (dealing with “exceptional circumstances” under the Bail Act 1978 (NSW)).
If the show cause requirement is satisfied that is not the end of the matter. The Act then requires the court or bail authority to consider whether or not there are bail concerns arising from the particular facts and circumstances pertaining to the applicant. If there are such concerns by reference to the exhaustive list of factors in s 18, the bail authority must determine whether those concerns amount to unacceptable risks for the purpose of s 19. If there are unacceptable risks then bail must be refused: s 19(1).
It has been held that factors which might operate under s 18 in that latter determination might also be relevant to the question of whether or not the show cause requirement has been satisfied, but it is a separate and distinct test and it must be, according to the chart which is contained in the Bail Amendment Act2014 (NSW), the question to be considered first: R v Tikomaimaleya [2015] NSWCA 83.
The facts and circumstances of the present offence are contained in the Crown case statement which is attached to the court attendance notices. The offences are by their nature extremely serious and involve a reasonably well organised and executed robbery on the commercial premises of Masters Home Improvement at Chullora.
I note that the form…

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 Mawad

Details

AGLC: R v Mawad [2015] NSWSC 1237
Case: [2015] NSWSC 1237
Decision Date: 23 July 2015

CaseChat Overview and Summary

In this case, the respondent, Mawad, made an application for bail which was opposed by the Crown. Mawad was facing criminal charges and had been in custody for a significant period. The application was heard in the Magistrates' Court of Victoria. The central issue before the court was whether Mawad should be granted bail, considering the combination of circumstances surrounding his case, including the impact on his young children with disabilities.

The court had to determine whether the combination of circumstances was such that bail should be refused, and if not, whether bail could be granted subject to onerous conditions. The respondent's legal representative argued that the lengthy remand period had already imposed significant hardship on the respondent and his family, particularly concerning the welfare of his young children with disabilities. The Crown, however, opposed bail on the basis that it would pose an unacceptable risk to the community.

The court found that the combination of circumstances did not warrant refusal of bail outright. It was satisfied that the respondent’s concerns for his children, who had disabilities, were genuine and significant. Additionally, the court considered that the onerous bail conditions proposed would sufficiently mitigate any risk posed by granting bail. The court concluded that these conditions would adequately address the Crown's concerns and therefore granted the respondent bail.

Orders