R v Salim

[2023] NSWSC 1288

Supreme Court

New South Wales

Medium Neutral Citation:	R v Salim [2023] NSWSC 1288
Hearing dates:	19 October 2023
Decision date:	19 October 2023
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Application for bail variation refused
Legislation Cited:	Crimes Act 1900 (NSW)
Category:	Principal judgment
Parties:	Marwan Salim Asmar (Applicant) Rex (Respondent)
Representation:	Solicitors: Dib & Associates Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2023/00308461
Publication restriction:	Nil

EX TEMPORE JUDGMENT

1. HER HONOUR: Marwan Salim makes application for a variation of bail which was originally granted to him in this Court by his Honour Rothman J on 28 June 2023. The bail that was granted on that day by his Honour has been varied, to some extent, since then. The conditions which currently apply are before the Court as part of the material exhibit 1. They include reporting conditions, a surrender of passport, to remain away from any point of departure from the Commonwealth, non-contact type conditions and non-approach conditions. There is a residential condition, a type of home detention condition, although it is one which allows significant departure from the home at any particular hour desired. There are some drug and alcohol abstention and enforcement type conditions, and a surety is involved. The reduction that is sought is with respect to the reporting, the terms of the home detention condition, and such as to permit interstate travel.

2. The Crown opposes the variations which are sought and submits to the Court that the bail conditions which currently pertain to this matter are the minimum required to mitigate the risks identified. They were the conditions the Court is told, which were originally proposed by the applicant and which were endorsed by this Court in its determination as the conditions required to mitigate risk.

3. The applicant relies upon his compliance with bail to date, the potential for some delay in the committal proceedings, and, therefore, the delay in securing a trial date and the resolution of this matter before the District Court, and, further, his business commitments which require rather more liberty than the present conditions of bail permit him.

4. The Court has been provided with some information as to the nature of his businesses. He has a number of companies registered to him. He is engaged in regular business activity, and the Court is told that he requires to travel interstate for the purposes of his business.

5. He has expressed concern about the delay in the matter. When the bail variation application was filed, the brief of evidence had not at that stage been fully served. The Court is advised that it has now been served and the matter will proceed to charge certification on 29 November. That gives a clear timetable for the resolution of the committal proceedings and, absent anything unusual, it should be that these matters are with the District Court in the early part of next year.

6. Sydney District Court has relatively early trial dates available. Whilst there will clearly be some delay in finalisation of a matter such as this, where a trial date will be required, the delay as far as the Court can see is not out of the ordinary. Indeed, it seems to be fairly much within standard timeframes.

7. The question is whether, as against the offences charged against the applicant, which I note are serious, the reduced conditions are adequate. There are a number of charges of sexual violence against this applicant. He has three counts in contravention of section 61I of the Crimes Act of sexual assault and one count in contravention of section 61J of aggravated sexual assault. Upon arrest the applicant resisted, and fought and struggled against the police officers, and he has further charges with respect to that.

8. The complainant's allegations highlight what is alleged to have been aggressive and violent conduct by the applicant in the context of sexual assault allegations. The fact that the applicant was aggressive and violent to the police officers tends to support, to some extent, what the complainant alleges about the applicant's demeanour.

9. I must say, having read all this material, and not sharing the view of Rothman J that women sometimes withdraw complaints of this nature, I think the applicant is rather fortunate to have bail in the first place. If the conditions were watered down it seems to me that the prospect of, particularly, the commission of further serious offences looms large and, given that the applicant has interstate business connections, to give him the capacity to leave the jurisdiction is, in my opinion, to invite the prospect of flight out of the jurisdiction.

10. The risks here of the commission of further serious offences is relatively high. The risk of flight, particularly having regard to the sort of penalty that will be imposed were the applicant to be convicted, certainly of the more serious matters, the sexual assaults, raises the risk of flight as does the apparent access to means of travel.

11. The applicant, it seems to me, is not greatly impaired in conducting his business since he can leave home in the company of his brother, or solicitor, or his personal assistant, and there is no restriction on him leaving his premises at any time to go about his employment or other business if he is in the company with one of those persons. It seems to me that that is an absolute minimum when one considers the nature of the allegations against this applicant of very serious offending and when one has regard to his criminal history, which is not helpful to him.

12. He has been offending since he was a child. He has had entries against him since 2008. In that time, he has been in breach of bail before courts. He has been involved in conduct which involves a disregard of the authorities such as assaulting and resisting police. He has breached court orders by driving whilst disqualified. He has drug offending which does not seem to have been addressed over the years. He has offending which records him as being in possession of weapons, which is a matter of considerable concern. He has convictions for serious violence such as robbery in company and reckless inflicting grievous bodily harm. He has a breach of an apprehended domestic violence order which does not speak highly of his capacity to obey court orders, and nothing in the criminal history gives the Court great comfort that any reduction in conditions would adequately secure the community, protect the complainant, and ensure the applicant attends Court as required.

13. In short, I am not satisfied that the risks I have identified could be adequately addressed if the bail were varied as sought and the variations are refused.

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Decision last updated: 30 October 2023