District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Shah [2017] NSWDC 292 Hearing dates: 21 September 2017 Date of orders: 26 September 2017 Decision date: 26 September 2017 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: The application for release is refused
Catchwords: BAIL – SHOW CAUSE OFFENCE – whether cause has been demonstrated – delay until further trial – cause not shown by accused – UNACCEPTABLE RISK –criminal antecedents – history of violence – nature and seriousness of the charges –history of compliance – likelihood of custodial sentence – need to be at liberty to prepare for trial or any other lawful reason – views of the victim – conditions that could reasonably be imposed
Legislation Cited: Crimes Act 1900 (NSW) s 86(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9 and 12
Bail Act 2013 (NSW) ss 16A, 16B, 17, 18, 19, 20A, 25, 26, 31 and 32Cases Cited: A1 v R; A2 v R [2016] NSWSC 1288
Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Homsi v R; Karamalakis v R [2011] NSWCCA
Jeffries v R [2008] NSWCCA 144
JM v R [2015] NSWSC 978
R v Farrell [2016] NSWSC 1278
R v Newell [2004] NSWCCA 183
R v Xie [2015] NSWSC 1833Category: Procedural and other rulings Parties: Mohd Mahzrin Nadzri Shah (accused)
Regina (Crown)Representation: Mr W Brewer (accused)
Ms B O’Reilly (Crown)
File Number(s): 2016/132129 Publication restriction: Decision restricted pending the trial of the accused
Judgment
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The accused, Mr Mohd Mahzrin Nadzri Shah has been committed to stand trial in this court in respect of the offence that he did on 29 April 2016, at Smithfield in the State of New South Wales, detain Lisa Whittaker without her consent and with the intent to obtain an advantage, namely, a psychological advantage contrary to s 86(1)(b) of the Crimes Act 1900 (NSW).
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The matter first came on for trial on 22 May 2017 however, it was formally marked not reached on 23 May 2017. Thereafter the matter came on for trial on 4 September 2017. On 11 September 2017, the jury was discharged. The matter has now been listed for further trial on 5 March 2018 with a seven day estimate.
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The accused has been in custody since 29 April 2016, bail refused. On 21 September 2017, I heard a release application made on his behalf. Ms O’Reilly of counsel appeared on behalf of the Crown and Mr Brewer of counsel appeared on behalf of the accused. It was acknowledged both parties that the charge on the indictment was a show cause offence as it was a serious indictable offence and it was alleged to have been committed at a time when the accused was on parole,[1] requiring the accused to show cause as to why his detention was not justified. [2]
1. s 16B(1)(h)(ii) of the Bail Act 2013 (NSW). Hereinafter referred to as the “2013 Act”
2. s 16A(1)…
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- AGLC
- R v Shah [2017] NSWDC 292
- Case
- [2017] NSWDC 292
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and submissions presented by both parties. It found that Shah had not demonstrated sufficient cause for bail. The court highlighted Shah's criminal antecedents and history of violence, which raised concerns about his potential to reoffend if released. Additionally, the nature and seriousness of the charges against him, combined with the likelihood of a custodial sentence, indicated that it was necessary to keep him in custody. The court also considered the views of the victim, who expressed concerns for their safety if Shah were to be released. The court concluded that it could not impose conditions that would reasonably ensure Shah's compliance with bail terms, given the circumstances.
Given the considerations above, the court determined that there was an unacceptable risk that Shah would reoffend if released on bail. The court found that Shah had not shown acceptable cause for his release, and therefore, the application for bail was refused. The court acknowledged the need for Shah to be at liberty to prepare for his trial; however, it found that this need did not outweigh the risk of reoffending and the potential impact on the victim. The court's decision was based on the evidence presented and the legal principles governing bail applications.
Orders
Orders of the court
The application for release is refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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