R v Najem - [2015] NSWSC 2108

Supreme Court

New South Wales

Medium Neutral Citation: R v Najem [2015] NSWSC 2108
Hearing dates: 18 February 2015
Decision date: 18 February 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
Bail refused

Catchwords: CRIMINAL LAW – bail application – Bail Act 2013 (NSW)
Legislation Cited: Bail Act 2013 (NSW)
Category: Procedural and other rulings
Parties: Regina (Crown)
Michael Najem (Applicant)
File Number(s): 2015/00029730
Publication restriction: None

EX TEMPORE Judgment

Michael Najem makes application for bail in relation to an offence of driving whilst suspended, a number of offences of break enter and steal, and a goods in custody offence. Those matters are due to be mentioned before the Sutherland Local Court on 3 March 2015.
At the time of the alleged commission of those break and enter offences, and indeed the driving offence, the applicant was subject to conditional bail. He had been admitted to bail in relation to an offence of contravening an apprehended domestic violence order, and it appears that he was also subject to bail in relation to two counts of possessing a prohibited drug and one count of dealing with property the proceeds of crime. Those latter matters have now been dealt with by the imposition of s 9 bonds for a period of 18 months but at the time of the alleged commission of these matters they were outstanding and there was a grant of bail. It appears that there were at least two separate orders for bail that governed the applicant’s conduct, together with conditional liberty pursuant to sentence orders.
On 12 September 2014 the applicant was convicted of an offence of contravening an apprehended domestic violence order, indeed two counts of that, and he was placed on s 9 bonds with respect to each for a period of 18 months. So there are, thus, two bonds and two sets of bail which applied as at the date of these alleged offences. This gives rise to the application of the show cause provisions under the Bail Act 2013 (NSW) and obliges the applicant to show cause why his detention is not justified.
The applicant raises in support of that contention that the Crown case is not a strong case. It appears to rest, at least in part, upon the discovery of some items in a car associated with the applicant, certainly a car that he should not have been driving given the current suspension.
The applicant asserts, through his lawyer, that the things found in his possession by the police had been in his possession prior to the commission of the alleged offences. That information, he says, is within the knowledge of police and that he had been stopped prior to these matters and the property in his vehicle noted by police officers. Additionally, he says that some of the property was physically marked with the initials of his son and he is in a position to prove his ownership of the items that the police have seized.
Those competing versions of events…

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 Najem

Details

AGLC: R v Najem [2015] NSWSC 2108
Case: [2015] NSWSC 2108
Decision Date: 18 February 2015

CaseChat Overview and Summary

In the case of R v Najem, the defendant, Najem, applied for bail under the Bail Act 2013 (NSW) while awaiting trial on serious criminal charges. The matter was heard by the Supreme Court of New South Wales, where the presiding judge was tasked with determining whether the criteria for bail set out in the Act were satisfied. The prosecution opposed the bail application, arguing that Najem posed a significant risk to the community if released.

The primary legal issue before the court was whether the criteria for bail outlined in section 21A of the Bail Act were met. This involved assessing the seriousness of the offence, the risk of reoffending, and the impact of any bail conditions on the safety of the community. The court also had to consider the interests of justice, including the rights of victims and the need for the defendant to attend court for their trial. The arguments centred on whether the potential harm to the community and the risk of Najem failing to appear in court outweighed the presumption in favour of bail.

The court considered the gravity of the charges against Najem, which included allegations of violent conduct and serious breaches of the law. It examined the evidence presented by both parties, including witness statements, character references, and the circumstances of the alleged offences. The judge concluded that the serious nature of the charges and the risk of reoffending were significant factors against granting bail. Additionally, the court noted that any bail conditions imposed would not sufficiently mitigate the risk posed by Najem to the community. Consequently, the application for bail was refused, and Najem remained in custody pending his trial.

Orders