Zahed v Director of Public Prosecutions (NSW)

[2023] NSWSC 807

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 807

Hearing dates:

10 July 2023

Decision date:

10 July 2023

Jurisdiction:

Common Law

Before:

Button J

Decision:

Bail is refused

Catchwords:

CRIME – bail – release application – alleged murder and kidnapping – where applicant has had multiple release applications refused – two detailed judgments already published – appropriateness of conciseness – s 74 Bail Act 2013 engaged – test for revisitation assumed to have been established for the sake of substantive determination – conceded by Crown that cause shown based on medical conditions – resources to escape justice – significant ties to criminal organisation – troubling criminal record – unacceptable risk that applicant will commit a serious offence of violence, fail to appear, and endanger the safety of a witness – bail refused

Legislation Cited:

Bail Act 2013 (NSW)

Cases Cited:

Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75

Zahed v R [2023] NSWCCA 86

Category:

Principal judgment

Parties:

Tarek Zahed (Applicant)
DPP (NSW) (Respondent)

Representation:

Counsel:
G Brady SC (Applicant)
D Scully (Respondent)
R Lee (Interveners)

Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (Crown)
Crown Solicitor’s Office (Interveners)

File Number(s):

2023/201561

revised ex tempore JUDGMENT

Introduction

1. I commence my judgment by saying that I will speak elliptically, and for that reason things may not be as detailed as they would be otherwise. Bearing in mind the sensitivity of this matter, and the fact that the court is open, every member of the Bar table remains at liberty to interrupt me as needs be.

2. Another reason why I will be concise, again with the agreement of the parties, is that this is the fifth bail application made by the applicant in less than a year. It has been the subject of detailed consideration in two judgments, one of a Judge of this Court: see Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75, and one of the Court of Criminal Appeal: see Zahed v R [2023] NSWCCA 86.

3. Those judgments are publicly available in written, albeit redacted, form. I think that the interests of justice do not merely suggest that I should avoid fruitless repetition, they more or less require it.

Section 74?

4. Because of those previous refusals and in particular the refusal of bail by Wilson J, it is a matter of s 74 of the Bail Act 2013 (NSW) being engaged. Yet again with the agreement of the parties, I will not tarry over that, except to the extent as needs be. And for the sake of argument, I am prepared to proceed on the provisional assumption that s 74 has been established, in light of the further illumination of the Crown case that has taken place.

Crown Case

5. In a nutshell, Mr Zahed is accused of murder and kidnapping by way of acts of profound violence alleged to have arisen from a very significant debt. It is impossible in a bail application to come to a really considered view about the strength or weakness of any Crown case. Even so, I think on the one hand it can be said that the Crown case has a number of sources; on the other hand, all of those are able to be impugned. And as the Crown prosecutor accepted, many of them will have logistical difficulties, in terms of having those sources of evidence come up to proof.

6. In terms of the recent development, I think that the clarification that has occurred may have been in the nature of a crossed-wire or an ambiguity in how things were expressed in documents in the past. I think that this clarification that has occurred is able to be assessed as reasonably significant. Having said that, in the scheme of things I do regard it as a detail.

Showing Cause

7. In terms of showing cause, that is conceded by the Crown. That is a concession I accept. The applicant reasonably recently was repeatedly shot. He was almost killed. He suffered very significant injuries. Obviously, the sequelae of those are ongoing, and include losing an eye.

8. It is clear on the evidence that he suffers from a serious health condition as a result of all that, and it has multiple manifestations. But I do not think it is any criticism of the Department of Corrective Services to say that, self-evidently, medical care in custody, whether that be for physical or mental ailments, cannot be as good as it can be in the community, especially with regard to well-resourced patients: (a) because of resource constraints and (b) because of a lack of flexibility in provision of care.

Risks?

9. So that, having accepted that cause has been shown, and having assumed for the sake of argument that s 74 has been overcame, I think it appropriate that I move immediately to the question of assessment of risk.

10. It is the case I think that the applicant is a person of some resources, and it is not to be denied that he is a man of some means. A private jet was used at one stage. That was not something owned, it was merely rented, and rented for a short distance. But even so, that is the kind of step that very few members of Australian society are in a position to take.

11. In light of the applicant’s record (which I will analyse in a little detail in a moment), it is inevitable that if he is convicted of murder he will be facing a very lengthy sentence indeed. I think that goes to the question of the possibility of the applicant having the desire or at least temptation, and the means, to escape justice, even despite the significant community ties to which senior counsel has pointed on his behalf.

12. His criminal record, as senior counsel has also submitted, has shown a measure of quietening recently. But speaking overall, I respectfully think it is a very troubling one, and the applicant has been convicted of extremely grave, organised violence in the past. It has been analysed in more detail in two previous written judgments and I will not go into it deeply now.

13. But suffice to say certainly some of the extracts from listening devices and telephone intercepts as to things that the applicant has said in the past about violence are troubling indeed.

14. As well as that, it is not denied that he retains a very high ranking position in a well-known outlaw motorcycle gang, which has played its role in Australian society over many years. I believe I am entitled to take judicial notice of its pervasive reach in our society. And it was conceded that his particular role is one that at least features a degree of enforcement; he is not, for example, a mere notetaker at meetings.

15. As for the texts that are placed before me as a most recent development, as senior counsel and I agreed, really material like that “cuts both ways”, even assuming that its provenance is the asserted provenance. And I think really, prevarications in the scheme of things - and in particular in certain kinds of bail applications - in the sense of detracting from the Crown case, are very often of minimal probative value. Indeed, I think they can heighten concerns about risk, rather than reduce them.

16. I must say that my own reading of the most recent material is that whoever it was who sent those texts appears to have been in mortal terror. To express that in plain English, by that I mean: fear of death. The same may be said of Exhibit 2, albeit less specifically.

Conclusion

17. To repeat my structural approach: for the sake of argument and in order to permit the matter to be dealt with substantively, I proceed on the basis that the test in s 74 of the Bail Act has been established.

18. I accept the concession of the Crown that cause has been shown.

19. But on all the material placed before me, I am amply satisfied that there is an unacceptable risk of the applicant absconding if granted even very strict bail; similarly, of interfering with a witness; and, relatedly, of committing a serious offence of violence.

20. On those three separate bases, bail is refused.

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Amendments

14 February 2024 - Publication restriction lifted

14 February 2024 - Publication restriction lifted

Decision last updated: 14 February 2024