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Rakielbakhour v DPP

Rakielbakhour v DPP

Case [2020] NSWSC 323 31 March 2020

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rakielbakhour v DPP [2020] NSWSC 323
Hearing dates: 30 March 2020
Date of orders: 30 March 2020
Decision date: 31 March 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
Conditional bail granted.

Catchwords: CRIMINAL LAW – bail – COVID-19 – novel coronavirus – pandemic – relevance to bail application – likely delays in summary hearing – conditions of incarceration – suspension of personal visits – access to lawyers – emergency legislation arising from medical emergency – need for accused to be free for lawful purposes – vulnerability of prisons and inmates – exponential increase in recorded cases – self isolation and house arrest – virtual courts
Legislation Cited: Bail Act 2013 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Legislation Amendment (Emergency Measures) Act 2020 (NSW)
Cases Cited: Brown v The Queen [2020] VSCA 60
Re Broes [2020] VSC 128
Re Tong [2020] VSC 141
Sazimanoska v The Queen [2020] VSCA 66
Category: Principal judgment
Parties: Abdul Rakielbakhour (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
J Gahbrial (Applicant)
A Poulos, Solicitor Advocate (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/00075768
Publication restriction: Nil

Judgment

Yesterday (Monday, 30 March 2020) Abdul Rakielbakhou (“the applicant”) made a release application under the Bail Act 2013 (NSW). At the conclusion of the evidence and submissions I made orders allowing the application and granting bail subject to a number of conditions. Due to the busyness of the list, and the significant body of evidence adduced in this case on a novel, current and important issue, I indicated that I would provide reasons for that decision within 24-48 hours. These are those reasons.
The applicant is charged with two serious domestic violence offences that arose out of a single incident. The offences were allegedly committed against the applicant’s wife and in the sanctity of her home on 26 February 2020. On the prosecution case, the incident was an ugly one and resulted in the victim suffering facial injuries. The applicant is charged with one count of common assault and one count of assault occasioning actual bodily harm. The facts sheet prepared by investigating police indicates that a neighbour or neighbours heard the applicant’s wife crying for help and saying that she was being bashed. Police were called to the scene and are expected to give evidence that they also heard her in distress. They noticed a number of injuries to her face. One of the injuries was still bleeding at the time the police attended.
That fact sheet alleges:

“The accused punched the victim repeatedly to the face and body, before tackling her to the ground and continuing to punch her. The accused took hold of a hair dryer and hit the victim with the hair dryer to her face and head. The accused’s assault on the victim inflicted physical injuries to her causing significant bruising and swelling around both of her eyes, a 2-3 cm laceration…

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 Rakielbakhour v DPP

Details

AGLC: Rakielbakhour v DPP [2020] NSWSC 323
Case: [2020] NSWSC 323
Decision Date: 31 March 2020

CaseChat Overview and Summary

Rakielbakhour, the appellant, sought bail from the District Court of New South Wales in the midst of the COVID-19 pandemic. The Director of Public Prosecutions, respondent, opposed the bail application. The primary issue before the court was whether the pandemic conditions justified altering the usual criteria for granting bail, specifically considering the potential delays in the hearing of the case due to the pandemic, the conditions of incarceration, and the need for the accused to be free for lawful purposes.

The court recognised that the pandemic presented a unique situation that required flexibility in the application of bail laws. It considered the exponential increase in recorded cases and the government's imposition of emergency legislation to manage the crisis. The court acknowledged the vulnerability of prisons and inmates to the virus, as well as the potential for significant delays in court proceedings due to the pandemic. It also noted the need for the accused to be free for lawful purposes, which could include self-isolation or house arrest as an alternative to incarceration. The court ultimately decided that the pandemic circumstances warranted a departure from the usual approach to bail applications, taking into account the potential risks to the accused and the broader community.

The court granted bail to the appellant, subject to conditions that reflected the ongoing pandemic, including restrictions on personal visits and the use of virtual courts. The court emphasised that the decision was specific to the circumstances of this case and did not set a precedent for future cases. The decision highlighted the need for the courts to adapt to the changing circumstances brought about by the pandemic, while still ensuring that justice is served and the rights of the accused are protected.

Orders