R v Vaziri - [2016] NSWSC 1283

Supreme Court

New South Wales

Medium Neutral Citation: R v Vaziri [2016] NSWSC 1283
Hearing dates: 8 September 2016
Date of orders: 13 September 2016
Decision date: 13 September 2016
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Bail is granted on the following conditions:
(1)   The applicant is to be of good behaviour.
(2)   He is to reside at 63 Hampstead Road, Auburn NSW 2144 and nowhere else.
(3)   He is to present himself at the front door of that residence at the direction of any police officer to confirm compliance with the residential condition. Such a direction may only be given by a police officer who believes on reasonable grounds that it is necessary so to do, having regard to the rights of the applicant and the other occupants of the premises to quiet enjoyment of the premises and to their privacy.
(4)   The applicant is to remain at that address at all times except for the following:
(a)   to comply with his condition of reporting to police, in which case the applicant is to proceed directly from his residence to the police station, and after reporting, is to return directly to his residence;
(b)   to attend any scheduled medical appointment in which event he is to remain in the company of his son, Taher Vaziri. He is to proceed directly to, and return directly from, any such appointment;
(c)   to attend the Mosque for Friday prayer and prayer upon any specific days of religious observance in which event he is to remain in the company of his son, Taher Vaziri. He is to proceed directly to, and return directly from, the Mosque.
(5)   The applicant is to report to the Auburn Police Station daily between the hours of 8am and 8pm.
(6)   The applicant is to appear before the Court of Criminal Appeal as required.
(7)   He is not to associate or communicate by any means (except through his lawyer) with his co-offenders, Kubra Magennis and A2.
(8)   He is not to make or attempt to make contact in any way, either directly or indirectly through a third party, and whether in person, or by telephone or other electronic means including social media with the child victims of the offences, being those children known as C1 and C2.
(9)   He is to surrender his Indian passport and is not to apply for any new Indian or Australia passport or for any overseas travel documents.
(10)   He is not to go within 300 metres of any point of overseas departure.
(11)   One acceptable person is to deposit $30,000 and agree to forfeit that amount in the event that the applicant fails to appear before the Court in accordance with his bail conditions.
(12) Pursuant to s 26(4)(a) of the Bail Act 2013, Abbas Hussein is an acceptable person for the purpose of the above condition.
(13) Condition (11) above with respect to the deposit of a cash security is specified as a pre-release requirement for the purposes…

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 Vaziri

Details

AGLC: R v Vaziri [2016] NSWSC 1283
Case: [2016] NSWSC 1283
Decision Date: 13 September 2016

CaseChat Overview and Summary

In the case of R v Vaziri, the applicant, Vaziri, sought bail pending the determination of an appeal against his conviction and sentence. Vaziri had been found guilty of being an accessory after the fact to female genital mutilation and was sentenced to a term of imprisonment. The legal issues before the court were whether the proposed ground of appeal was arguable and had reasonable prospects of success, and if special or exceptional circumstances existed to justify the grant of bail. The applicant had lodged a Notice of Intention to Appeal against his conviction to the Court of Criminal Appeal, with a proposed ground of appeal that raised a question of statutory interpretation.

The court examined the proposed ground of appeal and found it to be arguable. The court also considered whether there were special or exceptional circumstances justifying the grant of bail. In making this assessment, the court took into account the severity of the offence, the likelihood of the applicant absconding or interfering with the due administration of justice, and the interests of the community. The court ultimately found that while the proposed ground of appeal was arguable, the special or exceptional circumstances did not exist to warrant the grant of bail.

Accordingly, the court dismissed the application for bail. The court held that the applicant had not demonstrated that the proposed ground of appeal had reasonable prospects of success, and that there were no special or exceptional circumstances to justify the grant of bail. The applicant was therefore required to continue to serve his sentence of imprisonment.

Orders