R v Salameh - [2016] NSWSC 930

Supreme Court

New South Wales

Medium Neutral Citation: R v Salameh [2016] NSWSC 930
Hearing dates: 23 June 2016
Date of orders: 05 July 2016
Decision date: 05 July 2016
Before: RS Hulme AJ
Decision:
Bail refused

Catchwords: Bail - serious reoffending – cause not shown -electronic monitoring
Legislation Cited: Bail Act 2013
Cases Cited: R v Xi [2015] NSWSC 1575
Category: Principal judgment
Parties: Regina (Crown)
Shadi Salameh (Applicant)
Representation:
Counsel:
Mr G James QC (Applicant)
Solicitors:
Ms E Sercombe - Director of Public Prosecutions
Hanna Legal (Applicant)

File Number(s): 2016/90562
Publication restriction: No

Judgment

This is yet another case where the Director of Public Prosecutions has submitted that bail should be refused with the result that a person charged and presumed to be innocent may well be kept in gaol for over 2 years before he is tried. The Applicant was arrested on 22 February last and I have been informed, without dissent from the representative of the DPP, that any trial is unlikely before late 2017 and may might not eventuate before mid 2018.
The application the subject of these reasons came before me on 23 June but because of the volume of and detail in the material placed before me, I did not feel able to decide it on the day.
Mr Salameh stands charged with three “groups” of offences, briefly described in the bail chronology as:

First Group

Dishonestly possess interfered with unique identifier;
Destroy/damage property;
Knowingly facilitate organised car re-birthing activity.

Second Group

(1) Knowingly deal with proceeds of crime

Third Group

(1) Knowingly facilitate organised car re-birthing activity;

(2) Destroy/damage property

The offences in the first group are said to have occurred on 14 July 2015. He was charged with those offences on 17 September 2015 and granted bail. The offence in the second group is said to have occurred between 28 September and 25 November 2015 and those in the third group between 29 January and 19 February 2016.
No bail order has been made in respect of the second “group of offences”. His application is for a grant of bail in respect of the first and third series. The next scheduled appearance in respect of all offences is at the Burwood Local Court on 6 July 2016 for mention.
Because Mr Salameh was on bail at the time the third group of offences are said to have been committed, s 16A et seq of the Bail Act 2013 require that bail be refused unless he shows cause why his continued detention is not justified. If cause be shown, I am then required to consider whether admitting him to bail would result in one of the unacceptable risks referred to in s 19. The Bail Act 2013 and particularly s 18 sets out a number of matters to which I am required to have regard in considering whether there would be an unacceptable risk.
In pursuit of the application Mr James QC who appeared on behalf of the Applicant relied particularly on…

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 Salameh

Details

AGLC: R v Salameh [2016] NSWSC 930
Case: [2016] NSWSC 930
Decision Date: 05 July 2016

CaseChat Overview and Summary

The case involved a defendant, Mr Salameh, who was on bail pending appeal against his conviction for serious drug offences. The Crown sought to revoke his bail on the basis that he had committed a new offence of contravening his bail conditions by possessing a mobile phone and failing to comply with electronic monitoring. The matter was heard in the Supreme Court of Victoria. The primary issue for the court was whether the Crown had established that Mr Salameh had committed a serious reoffending offence warranting the revocation of his bail. Additionally, the court needed to determine if the Crown had shown that the cause of the breach was not attributable to Mr Salameh. A further issue was whether electronic monitoring was a suitable means of mitigating the risk of reoffending while on bail.

The court noted that Mr Salameh had a history of reoffending and the seriousness of the new offence was significant. It was also clear that the breach was due to Mr Salameh's own actions. However, the court found that the Crown had not shown that Mr Salameh was capable of complying with electronic monitoring. The court concluded that electronic monitoring was not a suitable means of mitigating the risk of reoffending. Consequently, the court found that the Crown had not established a serious reoffending offence warranting the revocation of bail. The court therefore refused to revoke Mr Salameh's bail.

Orders