R v Touma

[2025] NSWSC 14

Supreme Court

New South Wales

Medium Neutral Citation:

R v Touma [2025] NSWSC 14

Hearing dates:

04 February 2025

Date of orders:

06 February 2025

Decision date:

06 February 2025

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

Grant bail subject to conditions

Catchwords:

CRIME – bail – second release application – rehabilitation centre – s 74 Bail Act 2013 satisfied

CRIME – bail – show cause – violent offences – firearm offences – cause shown – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where conditions can adequately ameliorate concern of committing a serious offence whilst on bail – bail to residential rehabilitation centre

Legislation Cited:

Bail Act 2013 (NSW), ss 16B(1)(d)(i), 17(2), 74(3)

Crimes Act 1900 (NSW), ss 29, 33A(1)(a), 93G(1)(b), 114(1)(c), 154A(1)(b)

Firearms Act 1996 (NSW), s 7(1)

Road Transport Act 2013 (NSW), s 54(1)(a)

Category:

Principal judgment

Parties:

Noah Mohamed Touma (Applicant)
Crown (Respondent)

Representation:

Counsel:
E Ozen SC (Applicant)

Solicitors:
Krayem & Co Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2024/459374

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: Noah Mohamed Touma applies for a grant of conditional bail. He was arrested on 8 May 2024 and has been in custody since then. He is charged with a series of offences alleged to have been committed on 20 February 2024. Those offences are as follows:

1. Shoot at person with intent to murder, s 29 Crimes Act 1900.

2. Discharge firearm with intent to cause grievous bodily harm, s 33A(1)(a) Crimes Act.

3. Fire firearm in or near public place, s 93G(1)(b) Crimes Act.

4. Possess unauthorised pistol, s 7(1) Firearms Act 1996.

5. Face blackened/disguised with intent to commit indictable offence, s 114(1)(c) Crimes Act.

6. Knowingly drive stolen conveyance, s154A(1)(b) Crimes Act.

7. Drive whilst disqualified (prior offence), s 54(1)(a) Road Transport Act2013.

8. Drive whilst disqualified (prior offence), s 54(1)(a) Road Transport Act.

Section 74

2. This is Mr Touma’s second release application to this Court. His previous application was heard by Dhanji J on 22 July 2024. That application was refused. Mr Touma must therefore demonstrate that there are grounds for a further release application which enliven s 74(3) of the Bail Act 2013. Mr Touma has submitted that s 74(3)(b) and (c) of that Act are satisfied because he now seeks, unlike his first application, to reside permanently in a rehabilitation facility and has been offered accommodation at [REDACTED] with a bed available for him from 31 January 2025 until 25 February 2026. The Crown has conceded that these circumstances satisfy the requirements of s 74(3)(b) and (c). I am otherwise satisfied that they do.

Show cause

3. Mr Touma is required to show cause why his continued detention is not justified, pursuant to s 16B(1)(d)(i) of the Bail Act. That is because he is charged with a serious indictable offence under Part 3 of the Crimes Act, involving the use of a firearm.

4. Mr Touma relies upon the following factors in support of his contention that he can show cause why his continued detention is not justified.

5. First, Mr Touma is currently on remand and incarcerated for the first time. He is still relatively young and is currently 21 years of age.

6. Secondly, Mr Touma has already spent 274 days on remand. Although estimates are subject to unknown factors, there is a possibility that Mr Touma will not be allocated a trial date before 2026. He contends that, standing alone or particularly in combination with what he asserts is a weak Crown case, there is a strong basis upon which to assert that his continued detention is not justified.

7. Thirdly, the strength of the Crown case. The Crown case relies substantially upon Mr Touma’s purchase of a motor scooter that was used in the commission of the shooting in the sense that it was his driver licence that was provided for that purpose. Moreover, Mr Touma’s phone records reveal that he was in the vicinity of the Auburn address where the purchase of the motor scooter took place. Mr Touma submits that there is no evidence to suggest, and that the Crown cannot establish, that he had, or was aware of, any sinister plans associated with the purchase. Mr Touma raises the rhetorical concern that the Crown could not negate the circumstantial possibility that he purchased the scooter on behalf of Mr Chami who was present with him at the time. There is also evidence to suggest that the actual negotiations for the purchase of the scooter were not conducted by Mr Touma.

8. The motor scooter was black in colour when it was purchased. The facts indicate that after the purchase, the scooter was spray-painted white and that the paint used to carry out this alteration was purchased by Mr Chami.

9. Mr Touma also emphasises that there is no evidence in the Crown case to identify or suggest the existence of any motive that Mr Touma may have had for the shooting. His phone records do not place him in the vicinity of the shooting when it occurred. The shooter’s clothing was never located at Mr Touma’s residence. There is no forensic evidence such as fingerprints or DNA linking Mr Touma to the offending.

10. Some further matters relating to the strength of the Crown case require consideration. The Crown case asserts that Mr Touma rode the motor scooter he had only recently purchased to a location effectively opposite the Wentworthville railway station. CCTV footage was tendered on this application, and will be before the jury in due course, which clearly depicts a male in high visibility garb wearing a full-face helmet riding to and then parking the motor scooter about 50 metres from a UFC gym opposite the station. After a short time, the rider walks from the position where he parked the scooter, before commencing to run, in the direction of the gym. This person can be seen to take a pistol from his pants when he then commences to fire at the victim of the offence. He then apparently entered the gym, fired three shots, and ran back along the footpath to the scooter, before riding off.

11. The rider cannot be identified from the CCTV footage. In due course, police located the motor scooter in a burnt out state. It is readily identified from the VIN plate attached to the chassis. There is some present doubt about whether the number plates remained in place.

12. It is no part of the Crown case that Mr Touma knew or had any kind of relationship with the victim of the shooting. The Crown case proceeds upon the basis that Mr Touma attempted to shoot a perfect stranger for no reason that can be discerned. Moreover, the Crown case is that Mr Touma did so using his own recently purchased motor scooter which was not altered or defaced in a way to disguise the identity of its owner.

13. I have considered these, and other, matters upon which Mr Touma relies. I am not prepared to conclude that the Crown case is strong. The jury will in due course be asked to conclude that Mr Touma committed a very serious crime using a vehicle registered in his own name. The Crown will also ask the jury to conclude that he did this in the absence of any evidence to explain why he might have done so. There is no evidence linking Mr Touma with the victim or with the gym from which he appears to have emerged. The Crown contends that the absence of phone data placing Mr Touma at the scene of the crime can be explained by him having chosen not to carry his phone in order to avoid detection in this way. That amount of forethought and planning has to be contrasted with the fact that Mr Touma is alleged to have ridden his own motor scooter to commit the crime.

14. Whatever suspicions may attend these events, it would in my view be difficult for a properly instructed jury to be satisfied beyond reasonable doubt that the person firing the shots on this day was Mr Touma.

15. I am satisfied that Mr Touma has shown cause in the sense required. He is in custody for the first time and faces the prospect of considerable further time on remand before his trial. His available residential rehabilitation opportunity happens to coincide with the likely period that remains before that occurs. On one view, full-time attendance at a rehabilitation facility would suffice on its own to establish the show cause requirement. I consider that the exploitation of that opportunity, especially at his age before drug dependence has become entrenched and resistant to change, is an important and ultimately decisive factor informing the present inquiry.

“Unacceptable risk”

16. The Crown contends that the release of Mr Touma on bail will create a series of unacceptable risks that are incapable of being ameliorated by the imposition of suitable conditions. The Crown says that all of the bail concerns enumerated in s 17(2) of the Bail Act are relevant here. I shall deal with each of these in turn.

17. The Crown maintains that Mr Touma presents a risk of failing to appear. In almost all cases, of which the present case is an example, such a concern is based upon no more than the prospect that an accused person awaiting trial on a serious offence, with the high chance of a lengthy custodial sentence if convicted, will have an irresistible incentive to flee, rather than remain amenable to the jurisdiction and face trial. As superficially attractive as that analysis may appear to be, it does not, at least in my limited experience, withstand scrutiny in almost any case in which it is raised and, relevantly for present purposes, does not do so in this case.

18. Mr Touma has strong community ties. He is young and has no sophisticated background of criminal connections capable of arranging for his departure for overseas. The prospect that he could arrange to leave Australia without a passport, or that he has access to anyone who could arrange one for him, is close to fanciful, especially in the total absence of evidence to support it. In so saying, I do not intend pejoratively to characterise the Crown’s submissions to the contrary. My concern is only to approach the alleged risk with a large degree of common sense and some respectable evidentiary basis and not to convert the theoretical existence of the asserted risk into something that it is not. The position would be otherwise if the Crown were able to point to some concrete, subjective matters touching Mr Touma that gave credence to the Crown’s concern that went beyond the theoretical risk calculus based solely on the prospect of a lengthy sentence. For example, a close connection to a foreign jurisdiction with evidence of some means of getting there might elevate an alleged risk of non-appearance above the purely hypothetical.

19. There is always the possibility that an applicant seeking bail when charged with a serious and violent offence may commit a serious offence, whether or not it is similar to the one he or she faces. In the present case, Mr Touma does not have a criminal history of like offences or of offences of violence. His criminal history is almost exclusively limited to motor vehicle or minor drug related offences. There is no suggestion that he is involved in organised criminal activity to which he might be tempted or inveigled to return. Once again, in the instant case, there are no particular matters to which the Crown can point that raise the risk above the level of a possibility. However, accepting that the risk of Mr Touma committing a serious offence if released from custody may be present, I am satisfied that it is such that the acceptability of that risk can be managed by the imposition of suitable conditions.

20. The prospect that Mr Touma might endanger the safety of victims or individuals or the community does not appear to me to be a risk at all. It is unnecessary to elaborate upon that conclusion. The unproven charge of attempted murder cannot in my view justly support any such inference in a case where the Crown case is not strong.

21. Finally, the prospect that Mr Touma, or indeed any applicant for bail, might interfere with a witness runs headlong into the reasonable certainty that bail, having been granted, would be instantly revoked if such conduct were to occur. This is not a case, examples of which are in a different category, where an applicant for bail has been recorded or detected attempting to intimidate or influence witnesses, or where he can be shown to have organised others to do so on his behalf. The subject risk finds its way into the list of s 17 bail concerns as a serious matter to be considered. It is not, however, something which is to be accorded importance or relevance for that reason alone and in the absence of some specific identified reason to do so. There is no reason to do so here.

Conditions

22. Mr Touma has proposed a series of bail conditions. They include the provision of a surety and the requirement for electronic monitoring. The first of those conditions cannot be imposed in the light of my conclusion that Mr Touma does not present a risk of failing to appear. The second of those conditions is unnecessary for the same reason.

23. In my opinion, the risk that Mr Touma might commit a serious offence whilst on bail can be adequately ameliorated by the imposition of the following conditions upon him:

1. He is to be of good behaviour.

2. He is to appear at Parramatta Local Court on 27 February 2025, and thereafter as directed unless otherwise excused.

3. He is to live at [REDACTED].

4. He may only travel away from the correctional centre from which he is to be released on bail when in the company of Nermin Touma or Zachariya Touma. This is a pre-release condition.

5. He is not to take any illegal or prescription drugs other than a drug prescribed for him by a medical practitioner.

6. He is not to approach or communicate with, or attempt to make contact with any nominated prosecution witness or co-accused by any means other than through a legal representative.

7. He is to undertake a course of rehabilitation at [REDACTED] and must comply in all respects with all reasonable directions given by or on behalf of the person in charge of the facility from time to time and is not to leave that institution until the rehabilitation programme is completed or otherwise for pre-arranged conferences with lawyers or for the purpose of attending court.

8. If he is refused admission or leaves or is expelled from the rehabilitation centre at which he is to reside, he must travel directly to the nearest police station and surrender himself as being unable to comply with bail.

9. He is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

10. He is to surrender any passport to the registry of the Court or the officer in charge prior to his release and is not to apply for a new passport or travel document.

11. He is not to use or possess more than one mobile phone and SIM card and must within 48 hours of his release, give complete access to police, including the password and PIN code.

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Decision last updated: 06 February 2025