Zahed v Director of Public Prosecutions (NSW)

[2023] NSWSC 75

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

2 February 2023

Decision date:

10 February 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Bail is refused

Catchwords:

CRIME – BAIL – application for release order – charges of murder and specially aggravated kidnapping – application of s 16A Bail Act – burden on applicant to show cause – reliance placed upon a combination of features – question of the viability of the Crown case – delay – applicant’s health – capacity of Justice Health to provide adequate medical care

Legislation Cited:

Bail Act 2013 (NSW)

Courts Non-Publication and Suppression Act 2010 (NSW)

Crime Commission Act 2012 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Commissioner of Police (NSW) v Zahed [2021] NSWSC 1606

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

Director of Public Prosecutions (NSW) vTikomaimaleya [2015] NSWCA 83

Gould v R (Cth) [2021] NSWCCA 27

McAndrew v R [2016] NSWCCA 58

Moukhallaletti v Director of Public Prosecutions(NSW) [2016] NSWCCA 314

R vAchurch [2011] NSWCCA 186; (2011) 216 A Crim R 152

R v Marcus [2016] NSWCCA 237

Zahed v Director of Public Prosecutions (NSW) [2020] NSWCCA 6

Category:

Principal judgment

Parties:

Tarek Zahed (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Johnston SC (Applicant)
D Scully (Respondent)

Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/00353309

Publication restriction:

In unredacted form, restricted to the parties, including the Commissioner of Police, until further order.

JUDGMENT

1. HER HONOUR: On 29 August 2022 Tarek Zahed, the applicant, was charged with the murder of Yousef Assoum, together with an associated charge relating to the alleged kidnapping of Mr Assoum. The charges are brought pursuant to s 18(1)(a) and s 86(3) of the Crimes Act 1900 (NSW) respectively. The applicant has been remanded in custody for these charges since his arrest on 29 August 2022. He now makes application for his release on bail.

2. The application was heard on 2 February 2023, with judgment reserved until today.

The Law

3. The application is made under the Bail Act 2013 (NSW) (“the Act”). Section 66 of the Act gives this Court jurisdiction to hear the application. Part 3 governs the “making of bail decisions”.

4. Division 1A of Part 3 deals with applications to which the “show cause” provision applies. Notably, s 16A of the Act applies in relation to both charges brought against the applicant. The allegation of murder is referred to in s 16B(1)(a), and s 16B(1)(h)(ii) applies to both charges, as the applicant was at conditional liberty subject to parole at the time of the alleged commission of the offences. The effect of the operation of these provisions is to impose a burden upon the applicant to show cause as to why his detention is not justified before the Court could determine his release application.

5. There is a great deal of authority concerning the operation of s 16A of the Act, ^[1] and how the “show cause” burden is to be considered and might be met. The law is well settled and there was no dispute in this matter as to its operation or application. It is not in those circumstances necessary to expound further upon the law here, and it is not intended to do so.

The Material Before the Court

1. See for example, Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83; Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314; Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227; McAndrew v R [2016] NSWCCA 58; R v Marcus [2016] NSWCCA 237.

A Preliminary Note

6. Before hearing the release application, the Court heard and determined a Notice of Motion filed by the Commissioner of Police (NSW) seeking orders for the hearing of the Motion and the release application in a closed court, and for the suppression of some of the information the Court was asked to consider. Those orders were granted without opposition from the applicant or the Crown.

7. The orders were, in part, necessary because of the nature of some of the information upon which the Crown sought to rely in opposing the release application. The Crown’s case against the applicant rests, to a significant extent, upon evidence [REDACTED].

8. There are restrictions on the wider publication or disclosure of that information, requiring both an order for a closed court for the hearing of the application, and non-publication and suppression orders, the latter pursuant to the Courts Non-Publication and Suppression Act 2010 (NSW).

9. [REDACTED].

10. [REDACTED].

The Information Before the Court

11. The Crown tendered, collectively as Ex A, the following material:

1. Charge sheets and a statement of facts (“SOF”) prepared by police;

2. The applicant’s criminal history, by way of a bail report;

3. The applicant’s custodial history;

4. Correspondence from Detective Senior Constable Fitzgerald of 20 October 2022, including a photograph of four men;

5. Charge documents and SOF relating to outstanding charges of breaching supervision orders;

6. Charge documents and SOF relating to the applicant’s prior convictions;

7. Zahed v Director of Public Prosecutions (NSW) [2020] NSWCCA 6;

8. Commissioner of Police (NSW) v Zahed [2021] NSWSC 1606;

9. An unsigned statement of a known person;

10. Statement of Rosalind Brown of 7 August 2015;

11. Statement of Matthew Bolton of 7 August 2015;

12. Post-mortem report from Dr Jennifer Pokorny of 21 January 2015;

13. Statement of Renuka Nair of 12 May 2015;

14. Statement of Kerri Lazaro of 12 December 2014;

15. CCTV review from premises on Rookwood Road Yagoona;

16. Correspondence from City Attorneys of 13 January 2015 annexing a statement of Abdul Zahed of 12 January 2015;

17. Overview of services from Justice Health NSW;

18. Medical Notes for the applicant from Justice Health NSW; and

19. Summary of Ex A 18.

12. Further, a statement from Detective Sergeant Michael Bosworth of 2 February 2023 was tendered and marked Ex B.

13. The applicant tendered (or read where relevant) documents that became, collectively, Ex 1, as follows:

1. The initiating application to the Court;

2. A list of proposed bail conditions;

3. Affidavit of Idrees Kheyali affirmed 28 August 2022;

4. Affidavit of Rayan Rima sworn 7 October 2022;

5. Affidavit of Ramia Chebbo sworn 23 October 2022;

6. Affidavit of Mohammed Chahine sworn 12 September 2022 (as amended);

7. Affidavit of Mohammed Chahine sworn 6 October 2022;

8. Affidavit of Mohammed Chahine sworn 20 October 2022;

9. A copy of a photograph of the applicant from 29 August 2022;

10. Discharge summary from Westmead Hospital;

11. Correspondence from Dr Peter Lewis of 30 August 2022;

12. Correspondence from Dr John Marx dated 30 August 2022;

13. GP Management Plan dated 25 June 2022;

14. Justice Health NSW records; and

15. Correspondence from Dr Peter Lewis of 14 November 2022.

14. The material before the Court is voluminous, and it is not intended to summarise or refer to all of it. Other than the following summary of the factual allegations drawn from Ex A, it is intended to refer to only that information which is of direct and immediate relevance to the determination of the release application. The Court has, however, read and had regard to all evidence and information before it.

An Overview of the Factual Allegation

15. There is no dispute that Yousef Assoum died on or about 11 December 2014. It is probable that he died at Yagoona or Bankstown in this State.

16. It is alleged against the applicant [REDACTED].

17. At 10:59pm call charge records show that a 17 second telephone call was placed from Mr Assoum’s telephone to Abdul Zahed. Very soon after a vehicle of the same make and model as the Volkswagen Touareg driven ordinarily by Mr Assoum drove towards Brunker Road Yagoona. The vehicle was caught on a CCTV system operated by a service station in Rookwood Road Yagoona at 11.23pm as it drove northwards along Rookwood Road, with its left blinker light indicating an intention to turn into Brunker Road.

18. The applicant, Abdul Zahed and Mr Assoum met in Brunker Road at Yagoona shortly afterwards. It is alleged that Mr Assoum was seriously assaulted by the applicant and Abdul Zahed, and restrained by the use of cable ties around his wrists and ankles. Mr Assoum was forced back inside the Volkswagen Touareg, with the other two men also entering the vehicle. It was inside the car that Mr Assoum is said to have received fatal stab wounds to the head and body and a gunshot injury from a .45 calibre hand gun to his right thigh. The gunshot injury was received at relatively close range, of about one metre, and the wound tracked from right to left and slightly front to back in a downwards trajectory.

19. Mr Assoum was driven to Claribel Street Bankstown, near to Bankstown Hospital, in the Volkswagen Touareg. Witnesses described seeing a car of that make and model, bearing the registration of the vehicle belonging to Mr Assoum, stop in the road. The seriously injured, or perhaps dead, Mr Assoum was dumped from the car. Abdul Zahed got out of the car and remained with Mr Assoum. The applicant drove off at speed.

20. His departure was observed by witnesses, one of whom described the driver as a male of Middle Eastern appearance, who was in his mid to late twenties, about 5’9” in height, with dark evenly cut hair which was neither short nor long.

21. A number of witnesses called the emergency operator and an ambulance was dispatched to collect Mr Assoum. Despite the efforts of paramedics and of medical and nursing staff who had rushed from nearby Bankstown Hospital to assist Mr Assoum, he was pronounced dead on arrival at Liverpool Hospital. He had sustained a gunshot wound to his right thigh that had perforated an artery, complex blunt force trauma to the head, lacerations to the scalp with underlying skull fractures, and bruising consistent with the application of restraints to his wrists and ankles.

22. [REDACTED]. ^{[2] [3] [4]}

    2. [REDACTED].

    3. [REDACTED].

    4. [REDACTED].

23. [REDACTED].

24. On 12 December 2014, a set of registration plates, BX93FF, were stolen from another car, a Ford Falcon. The following day, 13 December 2014, the stolen plates were placed on the Volkswagen Touareg, with its original plates, CSS15U, removed. [REDACTED].

25. Very early on the morning of 20 December 2014 Mr Vlangos drove the Volkswagen Touareg to Flinders Slopes in Georges Hall where he set it alight, using an accelerant. The fire was seen by police officers at about 3.13am and the Fire Service attended and extinguished it. The remains of the car, identified as the deceased’s Volkswagen Touareg, were recovered, and examined.

26. An apparent bullet hole in a speaker on the door near the front passenger seat, which bore traces of copper and lead consistent with the discharge of a firearm, was noted. An impact damaged copper jacketed bullet was found under the lining of the front passenger door; the bullet was stained with blood that was matched by DNA analysis to the deceased. Fingerprints were developed in the car which have been identified as those of the applicant.

27. [REDACTED].

28. [REDACTED].

29. In January 2015 the applicant was recorded speaking by telephone with Abdul Zahed, referring to a “statement of facts”. ^[5] Abdul Zahed said he would willingly “do twenty years” if the applicant was happy. The applicant responded that he was happy. In a conversation a few days later the applicant was recorded telling Abdul:

“[…] If you remember that they came to the house, how can you not fucking remember where you went with the bloke. You remember him coming. You should remember nothing; you don’t remember nothing brother. Don’t you understand. […] That’s all I am saying, you don’t remember nothing brother. All you remember is waking up next to him. That’s all you fuckin’ know brother.”

5. Following his discovery with the injured or dead Mr Assoum, Abdul Zahed was arrested and charged with concealing a serious offence.

30. The offences charged against the applicant are alleged to have been committed in the context of organised criminal and gang related activity, with the applicant holding a senior position in the Comancheros Outlaw Motorcycle Criminal Gang (“OMCG”).

The Present State of the Prosecution (“the substantive proceedings”)

31. The applicant was charged following arrest on 29 August 2022, and he subsequently appeared before the Local Court. The substantive proceedings remain in the Local Court, proceeding as a committal for trial in accordance with Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW). By reference to the date of charge, the last date upon which the Crown can, without an extension of time, certify the charges before the Local Court is 28 February 2023. ^[6] The matter is next listed before the Local Court for that purpose on that date.

    6. Criminal Procedure Act 1986 (NSW) s 67(2)(b).

32. [REDACTED]. ^[7]

    7. [REDACTED].

33. [REDACTED].

34. [REDACTED].

35. [REDACTED].

36. [REDACTED].

How is the Information in the Crown Case to be approached?

37. In determining the applicant’s release application, the Court is to take into account any evidence or information which it considers credible or trustworthy in the circumstances: s 31 of the Act. Typically, information in the Crown case on any bail application is received in the form of a statement of alleged facts in which an investigating police officer summarises the information known to him or her. On occasion a sworn statement from a witness is received, but sworn evidence is neither usual nor necessary under the Act.

38. The SOF in this matter, Ex A.1, is a summary of information known to the police officer who prepared it, ^{[8] [9]} [REDACTED].

    8. [REDACTED].

    9. [REDACTED].

39. [REDACTED].

40. For those reasons, the Court proceeds on the basis that the information contained within the SOF is, in the relevant circumstances, trustworthy.

41. [REDACTED].

42. On that analyses the SOF [REDACTED] material to the determination of the application before the Court, together with the other information in Ex A.

The Show Cause Hurdle

43. The first step in determining the application for bail is that established by s 16A of the Act which provides that bail must be refused unless cause is shown as to why the applicant’s detention is not justified.

44. The applicant relies upon a combination of features to show cause.

45. [REDACTED], it is submitted that the Crown case must be regarded as, at least potentially, incapable of proof. The Crown will not, on 28 February 2023, be in a position to certify to the Local Court, as it must, that the “evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings”. ^[10] One possible consequence of the failure to file a charge certificate within the time proscribed is the discharge of the applicant,^[11] and the failure of the Crown case against him.

    10. Criminal Procedure Act 1986 (NSW) s 66(2)(a).

    11. Criminal Procedure Act 1986 (NSW) s 68(2)(a).

46. If an extension of time is granted to the Crown to file the certificate, there is a procedural detriment to the applicant in that the proceedings against him will be delayed. Any delay at committal stage will inevitably lead to delay in bringing the matter on for trial, thus extending the period that the applicant may spend in custody awaiting the disposition of the allegations against him to a period beyond that which might be ordinarily expected.

47. Finally, the applicant relies upon his health which, he argues, is prejudiced and will deteriorate in a custodial setting because of the inability or failure of Justice Health NSW to provide adequate and appropriate medical treat to him.

48. With respect to the latter aspect of his case the applicant has provided a quantity of medical and other material to support his contention that he requires medical treatment that has not been and will not be provided to him in custody.

49. There is no dispute that the applicant was the subject of a shooting attack on 10 May 2022 that left him severely injured and took the life of his brother. The applicant sustained multiple gunshot injuries including numerous wounds to the small bowel, a ruptured right eye (which had to be surgically removed), fractures to facial bones, fractures to his left leg, and fractures to his right arm, the latter requiring the surgical insertion of a rod and carpal plate, both of which will require later removal. The applicant was treated for his injuries at Westmead Hospital and discharged on 20 June 2022.

50. He declined to speak to police officers who were investigating the shooting.

51. On discharge, the applicant was taken to Mascot Airport where a private plane was waiting for him. He boarded the plane and flew to Victoria. Subsequent medical treatment was received from doctors and other specialists in Victoria, that being the state in which the applicant now resides when at liberty.

52. As at 30 August 2022 Dr Peter Lewis, evidently a general practitioner (“GP”), noted that the applicant required surgical removal of the hardware inserted into his right arm and hand, fitting of a prosthetic eye and treatment of an infection to the area, and orthopaedic review of his leg with the possible requirement for a tibial nail to be surgically replaced.

53. On the same date Dr John Marx, also seemingly a GP, outlined the “multiple caregiver” management plan devised for the applicant on review in Victoria, which included ongoing oversight by a GP, treatment of the applicant’s arm, hand and leg by orthopaedic specialists, exercise physiology, ophthalmological review and likely prosthetic fitting, and referral to a psychiatrist for assessment.

54. Dr Lewis observed in further correspondence of 14 November 2022 that, in accordance with the care plan implemented in Victoria the applicant had, prior to his arrest on 29 August 2022, gone to the Recreation Medical Centre for between 1 and 3 hours of treatment daily, including daily dressing changes, antibiotic therapies, hormonal treatment, removal of bullet fragments, and debridement in the leg. Additionally, referrals had been made to surgeons for the removal of the rod and plate from the applicant’s right hand and arm, review of his left leg, fitting of a prosthetic eye, and potential skin grafts. Dr Lewis stated that, without these interventions, the applicant’s “physical function and health could deteriorate”.

55. Justice Health NSW records relating to the applicant since his entry into custody following arrest (Ex 1.14) are relied upon to demonstrate that the applicant has not received the treatment and procedures that his GPs had formerly provided, and recommended. The applicant has frequently complained to his solicitor that he has repeatedly asked to see a doctor and a psychologist in custody but has had limited or no access to relevant medical practitioners. He told his solicitor that on some occasions when he complained of pain Justice Health nurses did not even provide basic pain relief such as paracetamol. The applicant has not been seen by an orthopaedic surgeon, or an ophthalmologist, or an exercise physiologist. Neither has a psychologist assessed him.

56. It is submitted for the applicant that, in combination, these three features – the uncertainty of the Crown case, delay, and the applicant’s health - are sufficient to show cause as to why his detention is not justified.

57. The Crown argues that these features, when viewed in the context of the nature of the allegation and the evidence relating to the applicant’s role in organised crime, cannot show cause as to why the applicant should not be further detained.

58. The Crown submits that, whilst its case at this stage could not be regarded as a strong one [REDACTED], it cannot be considered weak, and should be assessed as a viable circumstantial case. [REDACTED]. Any delay beyond the ordinary will amount to some weeks only and will not be extensive. The Crown relies upon Exs A.17 – A.19 to argue that Justice Heath can and will provide appropriate medical treatment to the applicant in custody, consistent with its statutory obligations and statement of Services.

Is Cause Shown?

59. The question at this stage is whether the factors relied upon by the applicant, in combination, support a conclusion that his detention is not justified.

60. I have already referred to the way in which the Court has determined that the information derived from [REDACTED].

61. Ordinarily bail applications proceed on the basis that the Crown case is taken at its highest, since it is neither possible nor appropriate for a court hearing a bail application to make pronouncements upon the admissibility, or reliability, of evidence to be called. Those judgments are entirely in the province, respectively, of the tribunals of law and fact which will determine the substantive case.

62. On that basis and noting the terms of s 31 of the Act, the Court is of the view that the Crown case, although one which is not without difficulties, even significant difficulties, must be taken to be capable of establishing the elements of the offences. Should the underlying premise of that conclusion be displaced [REDACTED], it is relevant to note that it is at least likely, if not highly likely that, subject to any appellate rights that may be exercised, the Director of Public Prosecutions will review the question of further proceedings against the applicant and, should there be insufficient evidence to allow for a reasonable prospect of a conviction or convictions being secured, terminate the prosecution. The applicant would, in those circumstances, be entitled to immediate discharge from custody, probably in the short term.

63. The additional procedural layer involved [REDACTED] will lead to delay. However, I am not persuaded that the delay is of any real significance since it is unlikely to extend beyond a matter of weeks. I appreciate that, to an individual held on remand, even a short delay must seem unjust and unacceptable. In the context of a complicated multiple accused prosecution for murder and specially aggravated kidnapping however, a delay of some weeks is not sufficient of itself or with other features to show cause.

64. It is commonplace if regrettable for there to be short delays at every stage of the progress of a prosecution for a serious indictable offence through the criminal justice system. A committal may be greatly delayed whilst an application pursuant to s 82 of the Criminal Procedure Act is heard and determined and, if granted, the matter listed for examination of required witnesses. Delay can be occasioned by the illness or other unavailability of witnesses or counsel; by the issue of subpoena where the legitimacy of a subpoena is disputed; and even by applications to the Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) challenging interlocutory rulings.

65. Whilst extensive delay, and particularly delay that can be attributed to the fault of the police or prosecuting authority, may readily amount to a basis upon which cause can be shown, a slight delay [REDACTED] does not, in the circumstances of this matter, have that effect.

66. The final consideration, that of the applicant’s health and need for medical treatment is more compelling, although the evidence as to precisely what treatment the applicant requires and when such treatment is needed is less than clear.

67. The accounts of what is required to treat the applicant’s ongoing disabilities upon which the applicant relies date from August and November 2022. In August 2022, only a few short months after the applicant was shot, the medical treatment required was plainly more acute than could be the case presently. Dr Lewis referred, for example, to the need for daily dressing changes in his letter of 30 August 2022; there is no evidence to suggest daily treatment of that nature is still required, and there no suggestion that it is.

68. Both Dr Marx and Dr Lewis observed that the applicant had been referred to specialist medical practitioners, but it appears that the applicant was not seen by an orthopaedic or plastic surgeon, an ophthalmologist, or exercise physiologist prior to his arrest on 29 August 2022. It may be that he was not able to see a specialist between returning to Victoria on 20 June 2022 and his arrest on 29 August 2022, simply because of the delay that typically attaches to securing an appointment to see a medical specialist.

69. Clearly, even without having seen any specialist, the applicant was well enough by or before 29 August 2022 to travel to New South Wales. When travelling out of Victoria, the applicant would not have been able to see his treating doctors daily, something he must have accepted when taking the decision to come to New South Wales.

70. Since entering the custody of Corrective Services NSW, Justice Health records (for the period 30 August 2022 to 29 January 2023) show that the applicant has been seen on an almost daily basis by nursing staff, and on request by a GP. It appears that he may also been reviewed by an Ophthalmology Registrar, with a referral made to the Eye Clinic at the Prince of Wales Hospital. ^[12] Notes record the attendance upon him on a number of occasions of a GP and the apparent conduct of x-rays, the results of which were discussed with the applicant by a doctor on 25 October 2022. A medical referral has been made to an orthopaedic specialist for review. There are regular references in the records to medications as charted being given to the applicant.

    12. Ex A 19, pp 264-265.

71. Whilst the applicant frequently complained to nursing and medical staff of pain and to his solicitor of the negligence of the care provided to him, there is no objective evidence to establish that the treatment provided to him is sub-standard.

72. Until 29 January 2023, ^[13] the applicant has been seen almost daily by a Clinical Nurse Specialist, or a Registered or Enrolled Nurse, who has administered charted medication and, frequently, provided ibuprofen and Panadol when the applicant complained of pain. A not atypical nursing note is that entered on 8 September 2022, which records:

“Seen patient for SMU welfare check. Requested Panadol and ibuprofen, NIM [nursing initiated medication] given for the day. Requesting GP review for pain review due to old gunshot wound and nerve damage. Already on GP waiting list for review. Nil other issues from patient. Feels ok as per patient. Alert and awake. Mobile independently. Breathing normally. No thoughts of self harm or no suicidal thoughts as per patient.” ^[14]

13. The evidence covering the period from 29 August 2022 to 29 January 2023.

14. Ex A 19, p 309.

73. Another not atypical nursing note is to the effect:

“Welfare check attended nil issues reported by patient” ^[15]

15. Entry for 19 September 2022. See also entries in very similar terms for 30 August 2022; 6,13-15, 17, 20, 22, 24-26 and 29-30 September 2022; 1-2, 6-7, 8-13, 17, 18, 20-31 October 2022; 1, 3-5, 8-11, 13-14, 16-18, 24-25 and 28 November 2022; 1-5, 11, 13-14, 16-17, 22-31 December 2022; 1-7, 11, 14-21, 23, 25 and 28-29 January 2023.

74. The applicant made a further request on 12 September 2022 to see a GP, it being recorded that he was already on the “semi-urgent waiting list”. A note on 16 September 2022 recorded that an appointment had been made for the applicant to see a GP on 20 September 2022, although the consultation did not occur until 27 September 2022.

75. When he was seen on 27 September 2022 by a Specialist Medical Officer (“SMO”) the medical notes record, in part:

“Right forearm has plat[e] and skin graft in good condition

[…]

Needs follow up on eye and right arm”. ^[16]

16. Ex A 19, pp 328-329.

76. When the applicant, in a state of some agitation the following day, asked nursing staff when he would see the doctor again, he was reassured that requests for information had been sent to his treating hospitals and responses that would allow a treatment plan to be made were awaited.

77. The applicant was seen by a SMO on 4 October 2022. By 11 October 2022, when the SMO again saw the applicant, the information sought from other treatment providers had apparently been received, as the doctor was able to record a summary of the injuries the applicant received in May 2022 and the treatment provided to him at Westmead. The entry for that date notes that follow up was required with respect to the applicant’s eye, right arm, and left leg. Perhaps explaining the occasional refusal or inability of nursing staff to provide ibuprofen on demand, such as occurred on 8 January 2023, the doctor specifically noted:

“No need for extra analgesics”. ^[17]

17. Ex A 19, p 349.

78. There is a nursing note that the applicant was due to see a doctor on 14 October 2022, although no medical note for that day is with the material.

79. On 20 October 2022 a Clinical Nurse Specialist with the Justice Health Mental Health Network assessed the applicant, concluding that he would benefit from a “psychology review”. The “psychology team” was notified that same day.

80. As noted at [70] on 25 October 2022 the applicant was seen by the SMO. By that date it appears that the applicant had had x-rays taken, as the doctor noted that the x-ray reports were “enclosed” and explained to the applicant. The doctor advised the applicant that orthopaedic and ophthalmological reviews were planned, and the likely timeframes for them to be conducted were discussed. No note of the time frames is with the material before the Court.

81. A review was conducted by the SMO on 8 November 2022 and “poly tears” and paracetamol were approved for the applicant. He was told that a CT scan was not indicated. The note records “seen by Op. Reg awaiting clinic”, which appears to be a reference to an Ophthalmology Registrar.

82. In summary, the applicant is seen regularly by nursing staff, and by a doctor with reasonable frequency. Referrals necessary for him to see specialist doctors have been made, and the applicant will be reviewed by relevant specialists, in particular an orthopaedic surgeon and an ophthalmologist, in due course.

83. Whilst I do not doubt that the applicant would prefer to see doctors of his choice and to do so quickly, there is no reason to conclude that the care provided to the applicant by Justice Health has been or will be inadequate or negligent. As would be the case for most people in the community, the applicant has been assessed by a GP and referred to specialists for further assessment and treatment. Except in the case of emergencies, such consultations generally involve some level of delay because of the demand for specialist medical review and treatment. The applicant will be seen by appropriate professionals when an appointment is available to him. The position he is in is no different to that of persons in the community.

84. According to Ex A.18 Justice Health is part of NSW Health and provides “multidisciplinary health services” to persons in custody through either health staff employed by the agency or, where necessary, through public hospitals. It operates by reference to “principles of equivalence to community standards”. ^[18]

    18. Ex A18, p 195.

85. The evidence adduced by the applicant demonstrates that when in Victoria he had the advantage of daily GP consultations. His access to a GP in custody is less frequent. The comments of the CCA in Gould v R (Cth) [2021] NSWCCA 27 at [41] – [43] are apposite:

“Whilst it may be accepted that there could be a distinction to be drawn between the best health care that significant financial resources can secure, and that available to the average individual in the community or in custody, that does not mean that the medical treatment available to persons in custody is inadequate. In the absence of clear evidence of it, we do not conclude that Justice Health is unable to or will not discharge its statutory functions to administer appropriate medical and dental treatment to the applicant […].”

86. As Johnson J observed in R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152, at [125] – [126]:

“Justice Health is a statutory health corporation, with functions including the provision of health services to offenders and persons in custody: s.236A Crimes (Administration of Sentences) Act 1999 (NSW). The Chief Executive Officer of Justice Health has a statutory right to have free and unfettered access at all times to correctional centres, medical records and offenders to ensure that statutory provisions relating to Justice Health are being complied with: s.236B Crimes (Administration of Sentences) Act 1999 (NSW).

Accordingly, the Court should approach an appeal such as this upon the basis that the contemporary statutory regime entrusts and empowers Justice Health to take all necessary steps to provide health services to an inmate such as the Respondent whilst in custody.”

87. Should it be determined on specialist review that the applicant requires surgical or other expert intervention, he in common with all persons in custody is entitled to in-patient and out-patient services in NSW public hospitals without charge. ^[19]

    19. Ex A.18, p 212.

88. Whilst the applicant’s health is clearly an issue of concern, at this stage there is no good reason to conclude that the treatment he has received and will receive is of a lesser standard than that available to the general public in the community. Such treatment may not be delivered on demand, or with the speed available to patients who – like the applicant – have substantial financial resources, but it is nevertheless adequate.

Conclusion

89. Individually, none of the three features relied upon to show cause are capable of doing so. Taking them together, the Court is not persuaded that, in the context of an allegation of kidnapping and murder committed against a background of significant gang violence, cause has been shown. That being the Court’s conclusion, s 16A(1) of the Act requires that bail is refused, and that is the order the Court intends to make.

90. For completion, however, the Court notes the following. Even if that conclusion is wrong, or had it been concluded that cause had been shown by the applicant, and attention had then been given to the assessment of risk provided for by Division 2 of Part 3 of the Act, I would have concluded that the applicant poses an unacceptable risk of failing to appear, committing a serious offence, and interfering with witnesses or evidence.

91. That the applicant is someone who has previously flouted court orders is clear on all the evidence.

92. His criminal history contains entries evidencing breaches of court orders, including breaching periodic detention and contravening an apprehended domestic violence order. He has also failed to attend court when required to do so, with a warrant pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) issuing on one occasion. More recently, in 2019 and 2020, there are three entries against the applicant for breaching bail. He has adverse findings or convictions for offences of violence, including the crime for which he was subject to parole in December 2014, an offence of discharging a firearm with intent to cause grievous bodily harm. He also has serious drug offending in his history. The applicant has recent convictions, from 21 January 2021 (with an appeal against sentence heard on 19 April 2021) for doing an act with the intention of perverting the course of justice,^[20] a crime which of its very nature demonstrates the applicant’s disregard for the authority of the courts.

    20. With two other related public justice offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

93. Further, the applicant is a person who is presently subject to, and has allegedly breached, a Serious Crime Prevention Order (“SCPO”). On 8 December 2021 this Court imposed a SCPO upon the applicant: Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606. In so doing the court accepted evidence that the applicant is the National Sergeant at Arms of the Comancheros OMCG, a gang which “engages in the supply and distribution of prohibited drugs and the possession and use of firearms and other weapons”. ^[21] In concluding that a SCPO should be made against the applicant, N Adams J found that there was a real and significant risk that the applicant will be involved in serious crime related activities. She said, at [34] – [35]:

“I am satisfied that the defendant's position of seniority is such that the nature of the criminal conduct he could sanction might include serious offences of violence on behalf of the [Comancheros] OMCG. I also note Detective Groenewegen’s evidence that, by reason of his association with the OMCG, he could have knowledge of illegal conduct and be in a position to conceal such conduct from the authorities, including the destruction of evidence or influencing of witnesses.

The Commissioner also relied on the defendant's lengthy history of criminal offending, including violent offending, in addition to his involvement with the Comancheros. The defendant’s long-standing association with and involvement in the Comanchero OMCG, his seniority within the group and his lengthy history of violent offending leads me to conclude that he is likely to continue to be involved in serious criminal activity.”

21. Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606 at [10].

94. The serious criminal activity committed by the applicant that the SCPO was intended to disrupt included drug trafficking and homicide (at [43]).

95. One of the conditions of the order imposed upon the applicant was to require him to notify the Commissioner of Police in writing of “the precise single address where he will be staying when he visits” New South Wales, at least 24 hours prior to his visit. It is alleged that the applicant breached that condition on two separate occasions in April 2022. Whilst there is evidence in Ex A.5 that a notification was made that the applicant would be or was staying at a named hotel, the Crown alleges that he did not notify the Commissioner of Police of the hotel room – “the precise address” - in which he was accommodated within the timeframes allowed, and thereafter changed hotel rooms within the nominated hotel, and notified the Commissioner of Police of the change well after it had been affected and, in the case of another room change, failed to provide the notification at all.

96. The applicant has entered pleas of not guilty to the charges and the matter will be heard in the Local Court next month.

97. Another of the conditions imposed upon the applicant by the SCPO is a prohibition on any contact between him and particular individuals, or persons known or believed by him to be members or associates of the Comancheros OMCG, in this State. There is evidence that the applicant continues to associate with gang members and their circle, at least in Victoria.

98. The applicant’s criminal history, the conclusions of this Court in 2021 that he is a person who is likely to continue to commit serious crime, and his ongoing participation with an OMCG leads inevitably to the conclusion that, if at liberty on bail, the applicant would continue in similar activities, with a significant risk that he would commit, directly or through others, serious criminal offences. If the applicant did commit the acts he is alleged to have committed in 2014, [REDACTED].

99. Neither a substantial surety nor commercially provided electronic monitoring could have any real capacity to ameliorate those risks.

100. The other risk which the Court would have regarded as an unacceptable risk is that of failing to appear. The applicant faces two extremely serious charges which, at this stage, must be viewed as capable of proof. If he is convicted, the penalty imposed upon him will be a custodial term, and almost certainly one of considerable length. That of itself gives rise to a risk of flight.

101. That the applicant has the resources to flee the jurisdiction, notwithstanding any surety or other proposed bail condition, is clear from the evidence of his links to organised crime, and his lifestyle.

94. In Commissioner of Police, NSW Police Force v Zahed N Adams J set out, at [22], the circumstances of an offence of dealing with property suspected of being the proceeds of crime, of which the applicant was convicted on 25 September 2020. She noted that, at a time when the applicant was moving funds in the hundreds of thousands of dollars about in bank accounts in the name of his young children, his declared taxable income was just over one thousand dollars.

95. On 22 June 2022 after the applicant was discharged from Westmead Hospital, he travelled to Mascot and boarded a private plane which flew to Essendon in Victoria. Departure from the jurisdiction would be readily possible for an individual with the financial resources to secure the services of a private plane and pilot, and the criminal connections to find a pilot willing to assist him. The applicant has both.

96. Taking into account all of the evidence and information before the Court the only conclusion that could have been reached, had the Court turned to assess the existence of bail concerns and unacceptable risk, is that no conditions of bail that the Court could impose would be sufficient to prevent him from the commission of serious crime, or from leaving the jurisdiction.

97. Bail would have been refused on that basis.

orders

106. The Court makes the following order:

1. Bail is refused.

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Endnotes

Amendments

20 February 2024 - Publication restriction lifted.

Decision last updated: 20 February 2024