Re Hamad
[2010] VSC 585
•14 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
No. SCR 2010 178
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by KAZEM HAMAD |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2010 | |
DATE OF RULING: | 14 December 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 585 | |
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CRIMINAL LAW – Bail – “Show cause” situation – Cause not shown – Unacceptable risks of re-offending and interfering with witnesses – Bail refused
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Dunn QC | Melasecca Kelly & Zayler |
| For the Crown | Ms F Holmes | Solicitor for Public Prosecutions |
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HER HONOUR:
On 15 September 2010, the applicant was arrested and charged with a total of four offences, namely: kidnapping; false imprisonment; intentionally causing injury and recklessly causing injury. The offences are alleged to have been committed on 14 and 15 September 2010, while the applicant was on bail for other offences.
His current co-accused include:
(a) Ahmed Sabra; and
(b) Mohammed Kassab.
The applicant, Mr Sabra and Mr Kassab all applied for bail in the Magistrates’ Court. Mr Sabra and Mr Kassab were both granted bail.
On 16 November 2010, Magistrate Rozencwajg refused the applicant bail, for the following reasons:
(a) His Honour did not accept that the applicant’s role in the offending was minimal, as his counsel had argued;
(b) His Honour was not satisfied as to the proposed treatment plan for the applicant;
(c) There was nothing to indicate significant delay; and
(d) The applicant was an unacceptable risk of committing further offences whilst on bail.
By notice filed on 30 November 2010, the applicant applies for bail to this court. It is common ground that the applicant is in a “show cause” situation under s 4(4) of the Bail Act1977. That means that the court is required to refuse bail unless the applicant shows cause why his detention in custody is not justified. The court is also required to refuse bail if the Crown satisfies it that there is an unacceptable risk that if the applicant was released on bail he would, as the Crown suggests, commit further offences, interfere with witnesses or otherwise obstruct the course of justice, fail to answer bail or endanger the safety or welfare of members of the public. Here there is considerable overlap between the factors which are said to show cause and the issue of unacceptable risk, so it is not necessary for me to determine whether these involve a single question or a two step approach.[1]
[1]As to the competing arguments for which, see the discussion by Maxwell P in Re Asmar [2005] VSC 487 (who suggested a “one step” approach), and by Gillard J in DPP v Harika [2001] VSC 237 and Re Application for Bail by Peterson (2006) 163 A Crim R 122 (who suggested a “two-step” approach).
The applicant is aggrieved that his co-accused, Mr Sabra and Mr Kassab, have been granted bail, in circumstances where he says his involvement in the matter was significantly less than theirs. Delay is also relied upon in support of the application for bail. Friends of the applicant have offered him employment and accommodation, and a surety of $180,000. It is also argued that this is a “water-shed opportunity” in the applicant’s life, and that being granted bail would enable him to obtain intensive treatment to deal with his psychological, mental health and drug issues. Finally, it is argued that any relevant risks could be ameliorated by the imposition of strict bail conditions, including: daily reporting to police; a curfew from 7.00 pm to 7.00 am; living at a fixed address; attending drug and alcohol treatment and psychological counselling; and not contacting any witnesses or associating with any co-accused.
As far as parity between co-accused is concerned, the Crown points out that neither Mr Sabra nor Mr Kassab has any prior convictions, whereas the applicant has an extensive and serious criminal history (his LEAP criminal history record from January 2001 to July 2010 is 19 pages long). The Crown says that any possible delay is not inordinate, and the applicant’s involvement in the offences is far more serious than his lawyers suggest. The Crown submits that, based on the applicant’s past conduct, there are unacceptable risks of his re-offending, interfering with witnesses or otherwise obstructing the course of justice, endangering the safety and welfare of the public, and failing to answer bail, which cannot be adequately managed by the proposed bail conditions.
The case against the applicant
The following is a summary of the prosecution case against the applicant and his co-accused. It is said to be based primarily on witness statements from various witnesses, as well as telephone intercept records.
On 30 August 2010, Mr Sabra employed the alleged victim, Mohamad Rustum, at his Campbellfield factory. On his first day of employment, Mr Rustum borrowed $15,000 from Mr Sabra. On 1 September, Mr Sabra demanded that the money be repaid by the end of the day or the debt would escalate to $50,000; he later rang and threatened to blow Mr Rustum’s head off if he did not repay the money. Mr Rustum fled Victoria on 3 September and went to stay with a friend in Sydney.
On 4 September, there were a number of phone calls between the applicant and Mr Sabra, about trying to locate a person that Mr Sabra was looking for. There were various pieces of information in those calls which suggest that Mr Rustum was the person they were discussing. The applicant told Mr Sabra he had a solution for him.
On the evening of 13 September, the applicant called Mr Sabra. Mr Sabra informed the applicant that Mr Rustum was in Sydney, and he was going with Mohammed and his brother-in-law to pick him up. The applicant told Mr Sabra to call him if he needed anything.
Later that evening, at Mr Sabra’s request, the applicant made calls to several people in Sydney, trying to organise a car for a mate of his who was coming to Sydney. He later called somebody in Sydney about organising a vacant house in Sydney for one day.
Mr Sabra and Mr Kassab flew to Sydney that evening and hired a car. The applicant later rang Mr Sabra and told him to stay in touch.
In the early hours of Tuesday the 14th, Mr Rustum was being driven in a car with two friends. A car matching the description of the hire car flashed its lights at them and they pulled over. Mr Rustum got out and spoke to Mr Sabra and another man.
At about 1.48 am, the applicant called Mr Sabra. According to the police summary, the following exchange occurred between the applicant and Mr Sabra:
Hamad asks if he is sweet and whether he is on his way back. Sabra tells Hamad that he doesn’t want to come. Hamad asks Sabra if he is dumb. Sabra tells Hamad there are people there and they won’t let him go. Hamad tells Sabra to stay there and he will come to him in the morning. Hamad says if he has to come he won’t be talking, he will fuck their mothers.
A short time later, Mr Sabra put a knife to Mr Rustum’s throat and pushed him into the rear passenger seat of their vehicle. Mr Sabra then stabbed Mr Rustum in the leg with the knife, in the presence of Mr Kassab. Mr Sabra taped Mr Rustum’s wrists together and they drove towards Melbourne. On the drive back, Mr Rustum was further assaulted and threatened.
Around 6.27 am, Mr Sabra sent the applicant a message saying “Call me when you want to party.”
Around 10.05 am, Mr Sabra called the applicant and said he was about 2 ½ hours away. The applicant asked Mr Sabra “if he bought him.” When Mr Sabra told him he had, the applicant told him he was “a good boy.”
There were further phone calls that morning and early afternoon, in which Mr Sabra updated the applicant on his likely arrival time and whether they had somewhere to take “him”. Mr Sabra told the applicant that “the dog has hurt himself and will have to take him to the vet.” The applicant told Mr Sabra “not to take anything to the vet.”
Mr Kassab, Mr Sabra and Mr Rustum arrived at Mr Sabra’s Campbellfield factory between 12.30 and 1.00 pm. Mr Sabra rebound Mr Rustum’s hands and put him in the female toilet. Mr Rustum was then punched by Mr Sabra, the applicant and a man called Abdul Saraya. Mr Rustum agreed to repay the $15,000, but was told that the sum was now $50,000 plus $14,000 for the costs of finding him in Sydney. The applicant and Mr Sabra then went and visited Mr Rustum’s brother, Walid Rostom, to try to “work something out” about the money.
The applicant and Mr Sabra returned to the factory. Other males were present, one of whom was holding a gun. Another car arrived and Mr Rustum was put into that. Mr Kassab and the applicant drove off in one car and Mr Rustum and Mr Sabra were driven in a vehicle by someone believed to be Ziad Zreika. The cars drove to factory premises in Epping, to which the applicant had the keys. Mr Rustum was tied up with rope and tape by Mr Sabra, with some instructions being provided by the applicant. Mr Sabra told Mr Rustum they would be back on Saturday (ie 3 or 4 days’ time). After the others left the factory, Mr Rustum managed to escape.
Forensic testing showed, amongst other things, Mr Rustum’s blood in the female toilet at the Campbellfield factory, and the applicant’s fingerprints on the toilet door handle.
The applicant’s counsel sought to characterise the evidence against the applicant as establishing no more than a single, silent punch to the victim at the Campbellfield factory. He also pointed out that the victim himself has a criminal history and therefore may not be a reliable witness. But the prosecution case against the applicant rests on more than the evidence of Mr Rustum. In particular, the summaries of the various telephone intercepts suggest that the applicant had knowledge of, and provided assistance (if not also direction) in, the kidnapping and false imprisonment.
As is not uncommon on a bail application, the court does not have all the Crown evidence before it. Full transcripts of the telephone intercepts, and all DNA testing, have not been finalised. Only some of the Crown witness statements have been produced to the court. The court does not know what evidence may be called by the defence, or how the prosecution witnesses (particularly Mr Rustum) will perform under cross-examination. The magistrate who hears the committal hearing will be in a far better position to assess the nature and extent of the applicant’s involvement in the alleged offences. But, for the purposes of this bail application, I am not satisfied that the case against the applicant is a weak one, or that his involvement is necessarily as limited as his counsel submits.
Timing considerations
Counsel for the applicant submitted that delay was one of the reasons in favour of granting the applicant bail. Certainly, as a matter of principle, delay may be very important in showing cause, whether on its own or in combination with other circumstances. Further, if the time between arrest and trial is likely to exceed any custodial sentence the applicant might receive if convicted, that would clearly be relevant to any bail decision.
The committal mention is currently listed for 28 January 2011. The brief of evidence has not yet been served on the accused, due to the number of foreign language transcripts that need to be finalised and included. The informant is also awaiting the results of all DNA testing.
It seems to be common ground that the committal hearing itself may take a couple of days and is likely to occur in the first half of 2011. The timing of the committal may also be affected by the charging of a number of further co-accused.
There was no evidence, and no submissions were made, as to when any trial might proceed (presumably in the County Court), in the event that the applicant and any of the co-accused were to be committed for trial. In those circumstances, it would be premature at this stage to find that there is likely to be any inordinate delay in bringing this matter on for trial.
Counsel for the applicant primarily focussed on delay in the context of the applicant’s offending, and the possible sentences he might receive for these and other pending charges. Counsel submitted that the applicant had not engaged in “major criminal activity” for which he would receive “major sentences” or sentences “for years and years”.
Of course, what length of sentence he might receive depends on what view is taken as to his role in the current offending. Were the applicant’s only involvement a single punch to the victim, then I agree that any sentence of imprisonment may not exceed the time between now and the trial (whenever that may be). On the other hand, if the evidence that he was knowingly involved in assisting (and possibly also planning and/or directing) the kidnapping and wrongful imprisonment is accepted, he might expect a substantial term of imprisonment (particularly given his very extensive prior convictions).
The magistrate who hears the committal will be in a better position to consider any likely delay until trial, as well as assessing possible sentences (depending on what the evidence at committal shows as to the nature and extent of the applicant’s involvement in the alleged offences). But, for the purposes of this bail application, I am not satisfied that any delay until trial is likely to be inordinate, or that the case against the applicant is such that there is a real prospect that the time he might spend in custody awaiting trial might exceed any sentence that may be imposed on him.
Personal circumstances
The applicant was born in Basra, Iraq, on 26 March 1984 and is 26 years old.
There is no dispute that the applicant had a turbulent and traumatic early history. He and his family were Shia Muslims and experienced significant trauma during and after the first Gulf War. Being part of a persecuted minority, they lived in very hard and stressful circumstances. According to the psychological report prepared by Patrick Newton, forensic and clinical psychologist, as a child during the war the applicant saw dead and mutilated bodies. While being initially traumatised by these experiences, according to Mr Newton, it seems that he became increasingly inured to violence and conflict as a result of these childhood experiences.
The family fled Iraq shortly after the war, subsequently living in refugee camps in Syria, Jordan and Lebanon. The applicant’s family came to Australia as refugees in 1998, when the applicant was 14.
The applicant’s education has been severely disrupted. He attended primary school in Iraq, but this was disrupted both by the outbreak of war and the applicant’s own behaviour, which was described by Mr Newton as being consistent with attention deficit/hyperactivity disorder (“ADHD”). His history is also suggestive of conduct disorder. As a refugee living in refugee camps, he and his family had difficulty accessing educational opportunities. After the family migrated to Australia, the applicant briefly attended parts of Years 9 and 10, before leaving school. He has completed no further education or vocational training since leaving school.
The applicant has a lengthy history of drug usage. During his adolescence, he began abusing drugs and associating with other drug users. The applicant has abused methamphetamine (“ice”), cannabis, benzodiazepines and other prescription medication. As a result of his drug use, the applicant became estranged from his family; he eventually began living on the streets as a homeless person, while still a teenager.
The first of his many court appearances was in 2001, when he was 17. For the first few years of his offending, he managed to stay out of custody. It was a condition of many of his early sentences that he undergo assessment and treatment for alcohol and drug addiction, and psychological or psychiatric assessment and treatment, but that does not seem to have occurred (for reasons which were not explained to the court).
In August 2003, the applicant was remanded in custody for about two weeks, in connection with various offences with which he had been charged. During this period, he also received a number of suspended sentences of imprisonment, some of which he breached.
The applicant’s family returned to Iraq in 2005, when he was 21.
In August 2005, he was remanded in custody in relation to numerous offences, and he remained there serving various sentences until he was paroled in September 2008.
After he was released from custody in September 2008, the applicant appears to have entered a relatively stable period in his life, in that he was placed in a housing commission flat, and had a job and a girlfriend. He seems to have stayed out of trouble until the beginning of 2010.
After his brother’s death, around April 2009, in Iraq, the applicant appears to have resumed contact with his family. In July 2009, they returned to Australia on a three-month visa, during which they apparently re-connected with the applicant.
The applicant’s counsel submitted that it was the death of the applicant’s brother in early 2009, coupled with the departure of his family after their three-month visit, that led to the applicant resuming drugs in October 2009 and re-offending in 2010.
By late 2009, after his family had returned to Iraq, his general practitioner’s notes show that the applicant was presenting as anxious, depressed and paranoid, although they do not record any reason for such presentation.
Mr Newton reports that the applicant experienced drug-induced paranoia and psychosis during 2009, which was precipitated by his use of methamphetamine. The applicant was also experiencing chronic emotional instability and periodic bouts of dissociation. Coupled with these drug-induced symptoms, the applicant also reportedly experienced grief following the death of his brother.
The applicant saw a psychiatrist, Dr Raid Al Humrany, in May 2010. He diagnosed the applicant as possibly suffering from ADHD, antisocial behaviour and personality problems, with an adjustment disorder with secondary anxiety. He prescribed anti-psychotics, antidepressants and tranquilisers. Dr Al Humrany also reported that the applicant had denied abusing alcohol or drugs since being released from prison in 2008. However, such denial is in stark contrast to Mr Newton’s assessment of drug-induced paranoia and psychosis in 2009 (and to his own counsel’s submission that he started using drugs again by October 2009, after his family went back to Iraq).
Mr Newton reports that the applicant’s drug addiction is sufficiently severe to warrant the diagnosis of severe and chronic “Poly-Substance Dependence, With Psychological Dependence.” He described the applicant’s drug use as compulsive and stated that it dominated almost every aspect of the applicant’s life. The applicant himself acknowledged that he felt “powerless to control his drug use”. Mr Newton said the applicant told him that the main times when he had been abstinent was during his periods of imprisonment. Mr Newton describes the applicant’s insight into his drug addiction as being “at an unsophisticated level” and “untested”.
Mr Newton’s assessment of the applicant was that his anxiety levels were within the normal range, and he was not displaying any signs of clinical depression. There was no indication that the applicant was suffering from any active psychosis, thought disorder or similar difficulties. The applicant’s reality testing was unimpaired, and his capacity for making moral judgments was normal. His intelligence was estimated by Mr Newton to fall in the low end of the average range.
Mr Newton also reports that the applicant has substantial anger management issues. Although the applicant himself denies that he has any anger management issues, Mr Newton has a number of concerns. He describes the applicant as somebody who tends to be impulsive, is unlikely to retreat if faced with conflict, and tends to respond to confrontation in ways that escalate rather than defuse the situation. He describes the applicant as “an unsophisticated and concrete individual” with “only a tenuous grasp of his emotional world.” Mr Newton reports that while this is likely to be the result of entrenched trauma, “it nevertheless contributes additional difficulties to his ability to exercise appropriate behavioural control in situations of conflict.”
The applicant has also been assessed by Joseph Lamberti, who is the director of Lamberti Associates Drug Rehabilitation Consultancy. Mr Lamberti conducted an in-custody assessment of the applicant on 27 September 2010, in which a history of his drug abuse was taken, and different treatment options were discussed.
Mr Lamberti outlined a proposed treatment regime, which he has discussed with the applicant and later with Mr Newton. If the applicant was released on bail, the regime would commence with urine screens three times a week, and regular sessions with Mr Lamberti or his nominee for counselling, assessment, education and relapse prevention. A determination of whether the applicant would need residential treatment, or whether he could be maintained as an outpatient, would then occur. This whole assessment process would necessarily take some time.
Mr Lamberti would be prepared to undertake to the court to report to the informant if there was either a non-attendance by the applicant, or a positive drug test.
In the applicant’s case, Mr Lamberti opined that “total habilitation”, rather than rehabilitation, was what was needed. Due to the fact that he had not been properly parented, socialised or educated, Mr Lamberti stated that the applicant needed a comprehensive program that included psychiatric treatment, psychological counselling and education.
Mr Lamberti’s evidence was necessarily limited, in that it was only based on one preliminary assessment he had made of the applicant, in a custodial environment in which he is free from drugs. However, he noted during cross-examination that it was necessary to formulate the proper treatment plan over time, with the applicant adjusting to a more “normalised” situation.
In Mr Newton’s opinion, the applicant requires drug education and counselling, and would also benefit from anger-management training. Mr Newton particularly noted that any drug education and counselling could not be non-directive or self-initiated, and as such he endorsed the treatment regime proposed by Mr Lamberti. However, Mr Newton stated that objective monitoring and supervision of the applicant was needed to confirm that he was abstaining from using drugs.
I do not doubt that access to education, counselling and treatment for the applicant’s severe drug addiction and anger-management issues would be desirable, and could more readily be provided outside of custody than inside. Unfortunately, the same may be said of many accused persons held in custody. But I note that the applicant has been given numerous opportunities to address these issues by previous courts, who have, no doubt, taken into account his terrible childhood history and his addiction and psychological problems in imposing earlier sentences. There is nothing in the material before me which persuades me that the applicant is genuinely motivated to address these difficult problems, which appear to have been a contributing factor to so much of his prior offending.
I will consider these issues further when considering questions of risk.
Employment and other support
If bail were to be granted, a friend of the applicant, Nasser El Houli, has offered accommodation at his home at 18 Surrey Street, Hadfield. Nasser El Houli is also prepared to provide surety by way of equity in his property in the sum of $180,000. Contrary to what is asserted in the affidavit of the applicant’s solicitor, Mr El Houli is not the uncle of or, indeed, any relation to the applicant; however, he has known him for 8 years and has some awareness of his criminal history.
The Crown has some concerns about the appropriateness of the applicant living with Nasser El-Houli, in part because Mr El Houli has 5 criminal convictions for dishonesty-related offences, imposed between July 1995 and November 2007. But his history is not such that I would regard him as an unsuitable person to provide a home or surety, were it otherwise appropriate to grant bail.
Merry-Wayan El Houli, who owns the business of Speedway Auto Sales, has said that he will give the applicant a job as a hotline operator, 5 days per week, if released on bail. Merry-Wayan El Houli has also known the applicant for about 8 years.
Risk of re-offending
I am satisfied that there is a significant risk that the applicant will re-offend, if he is granted bail.
The applicant has a lengthy criminal history dating back to January 2001. Although a number of his offences may indeed be characterised as minor or “street offences” (as his counsel sought to label them), as his lengthy criminal records show, many of his crimes can hardly be characterised thus.
The applicant has been convicted numerous times for more serious and/or violent crimes including: robbery; armed robbery; burglary; intentionally causing injury; unlawful assault; assault with a weapon; recklessly causing injury; carrying a controlled weapon; possessing a variety of drugs; failing to comply with community based orders, good behaviour bonds, suspended sentences and bail.
I also note that at the time when the current offences were allegedly committed, the applicant was already on bail in relation to two separate matters.
Although attending counselling and treatment would no doubt be desirable in terms of the applicant’s future, I am not persuaded that the proposed treatment plan (which is at a very rudimentary stage) and other conditions of bail would be sufficient to make acceptable the risk of the applicant re-offending. Given the nature and extent of the applicant’s criminal history, and his serious problems of drug usage and anger management, any such re-offending may also involve an unacceptable risk of endangering the safety and welfare of members of the public.
Risk of interference with witnesses
The Crown is concerned that the applicant will attempt to interfere with prosecution witnesses, particularly the alleged victim, Mr Rustum. The informant could neither confirm nor deny whether Mr Rustum is in protective custody. However, the Crown is concerned that the applicant will attempt to interfere indirectly with Mr Rustum, through bringing pressure to bear on other members of his family.
In so far as there is evidence of actual attempts to interfere with Mr Rustum’s family, the conduct seems to be attributable to persons other than the applicant (including the father of Mr Sabra, and the brother of Mr Kassab, both of whom have allegedly made inappropriate approaches to the victim’s brother, Walid Rostom, who is not prepared to provide any statement to police).
There is no evidence that the applicant has interfered, or attempted to interfere, with Mr Rustum or members of his family thus far. That said, the applicant has been in custody since the alleged offences, so has had limited opportunity to interfere with the victim or his family.
However, the Crown alleges that, in the past, the applicant has interfered with victims or witnesses in other cases in which he was a person of interest, causing them to subsequently file statements of no complaint. The Crown is concerned that such conduct will occur in this case if the applicant is released.
The informant says that on 17 January 2010, a man by the name of Mohamed Abdul-Fattah reported to police that he had been kidnapped and assaulted by the applicant and Mr Sabra over a demand to pay them $100,000. The alleged victim later made a statement of no complaint.
On 28 April 2010, a man by the name of Dabbah Barakat was found beaten and unconscious at his place of employment. Witnesses saw the applicant (who was known to them) enter and leave the premises around the relevant time. The alleged victim was frightened to report the matter to police, apparently because he feared an escalation of violence. The applicant was interviewed in relation to this matter, but the alleged victim ultimately made a statement of no complaint.
Finally, on 22 July 2010, the applicant is alleged to have intentionally caused serious injury, and made threats to cause serious injury, to Sammy Nasser. The alleged victim reported that after an assault took place, the applicant called him and threatened to shoot him if he reported the matter to police. The victim’s brother allegedly also received threats via phone and text message from the applicant.
The Crown cited these as examples of cases where there was reason to believe that the applicant had interfered with witnesses. In response, counsel for the applicant pointed out that his client had not been charged with perverting the course of justice in relation to any of these three incidents. But just because the applicant has not been charged with a criminal offence in relation to these alleged incidents, that does not mean that there is not cause for the court to be concerned about possible interference with witnesses. And even accepting that some of the witnesses may not have spoken good English in their discussions with police, the nature and number of such incidents, combined with the applicant’s violent criminal history and anger management issues, cause concern in terms of possible risk of interference with witnesses.
I am not persuaded that the imposition of a nightly curfew (or any of the other proposed bail conditions) would be sufficient to manage this risk. Such a curfew would not prevent the applicant from personally approaching witnesses on weekends, on his way to or from work, or indeed during working hours (in so far as he is allowed to leave the premises on lunch breaks or at other times). Nor would it prevent him from using his home phone to interfere with witnesses, or directing others to do so.
Conclusions
The applicant is in quite a different position to Mr Sabra and Mr Kassab, by reason of the nature and number of his prior convictions. I am also not persuaded that his role in the alleged offences was as limited as his counsel sought to suggest, or that any likely delay in this case is sufficient (either on its own, or in combination with other factors) to show cause. Further, I am satisfied that there are serious risks of the applicant re-offending if granted bail, particularly by re-offending in a violent way that will potentially endanger the safety or welfare of members of the public. There is also a risk of his interfering, directly or indirectly, with witnesses, particularly with the family of Mr Rustum. I am not persuaded that the proposed bail conditions are sufficient to make those risks acceptable.
For these reasons, I am not persuaded that the applicant’s detention in custody is not justified. Accordingly, I will refuse his application for bail.
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