Zahed v Director of Public Prosecutions (NSW)

[2020] NSWCCA 6

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Zahed v Director of Public Prosecutions (NSW) [2020] NSWCCA 6
Hearing dates:	29 November 2019
Date of orders:	29 November 2019
Decision date:	10 February 2020
Before:	Gleeson JA; R A Hulme J; Button J
Decision:	Bail release application refused
Catchwords:	CRIME – bail – release application – show cause requirement s 16B(1)(h) Bail Act 2013 (NSW) –proceeds of crime and dishonesty offences – extensive criminal history – non-compliance with bail and parole obligations – witnesses not credible – connections and resources to assist leaving the country – cause not shown and application refused – charges subsequently reformulated and bail granted in court below
Legislation Cited:	Bail Act 2013 (NSW), ss 16A, 16B(1)(h)(i), 16B(1)(h)(ii), 17, 19 Crimes Act 1900 (NSW), ss 192G(b), 193B(3), 193C(2) Criminal Code (Cth)
Cases Cited:	Chen v Director of Public Prosecutions (Cth) (2011) 83 NSWLR 224; [2011] NSWCCA 205 Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; (2012) 227 A Crim R 287 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Lin v R [2015] NSWCCA 204; (2015) 253 A Crim R 1 R v Ansari; R v Ansari [2007] 70 NSWLR 89; [2007] NSWCCA 204 R v McKellar (No 3) [2014] NSWSC 106
Category:	Principal judgment
Parties:	Tarek Zahed (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: Mr P Lange (Applicant) Ms M Millward (Crown)   Solicitors: Karnib Saddik Law Firm Solicitor for Public Prosecutions
File Number(s):	2019/347520

Judgment

1. THE COURT: This Court heard a bail release application by Tarek Zahed (the applicant) on 29 November 2019. At the conclusion of the hearing, the Court announced that the application was refused and indicated that reasons would be provided later.

2. The need to provide reasons in detail has been overtaken by subsequent events. According to JusticeLink, when the applicant appeared in the Burwood Local Court on 18 December 2019, certain of the charges the applicant faced were withdrawn and some fresh charges were laid. The applicant was then granted bail by a magistrate.

3. It is, however, necessary to provide an outline of the charges and the evidence before summarising the Court's reasons for its ruling.

Charges the applicant faced at the time of the hearing in this Court

4. The charges the applicant faced at the time of the hearing in this Court were the following:

Sequence 1: Deal with the proceeds of crime, namely $59,450, being reckless as to whether it was the proceeds of crime: s 193B(3) of the Crimes Act 1900 (NSW). (Maximum penalty of imprisonment for 10 years.)

Sequences 2 to 4: Publish etc false or misleading statement with intention of obtaining a financial advantage: s 192G(b) of the Act. (Maximum penalty 5 years.)

Sequence 2: falsely claiming in an affidavit of financial circumstances to Victims Services NSW that he was unable to pay $50,000 owed as part of a restitution order.

Sequence 3: falsely claiming in a statement of financial circumstances to the Office of State Revenue NSW that he was unable to pay debts owed and only able pay $150 per fortnight.

Sequence 4: falsely claiming in a statement of financial circumstances to the Office of State Revenue NSW that he was unable to pay debts owed and only able to pay $100 per week.

Sequence 5: Deal with property, namely $13,185 in cash, that there are reasonable grounds to suspect is the proceeds of crime: s 193C(2) of the Act. (Maximum penalty 3 years.)

Sequence 6: Deal with $963,950.36 in cash, being reckless as to whether it was the proceeds of crime: s 193B(3) of the Act. (Maximum penalty 10 years.)

Prosecution facts

5. The charge in Sequence 1 concerned an allegation that the applicant and an unknown male attended the Three Swallows Hotel at Bankstown on 17 February 2016 and deposited $59,450 in poker machines in a short period. Tickets issued from the machines resulted in the hotel providing two cheques to the total value of $54,708.95. Various circumstances were said to support the suspicion that this was an exercise in “laundering" money thought to be the proceeds of crime.

6. The charges in Sequences 2 to 4 concerned allegations that the applicant provided false information as to his financial circumstances to two government authorities in support of claims that he was unable to pay sums that were due to them.

7. The charge in Sequence 5 concerned police finding $13,185 in cash in the applicant's possession on 29 November 2018. Conflicting accounts were provided as to the provenance of the cash and police claim to have good reason to suspect that it was the proceeds of crime.

8. The charge in Sequence 6 concerned the total amount flowing into and out of savings accounts the applicant held in the names of his children (born in 2008 and 2016) in the period 28 January 2016 and 31 December 2018. An account in the name of his daughter had incomings of $726,922.87 and outgoings of $853,950.36 in that period. The outgoings included seven cash withdrawals totalling $617,530. An account in the name of his newborn son had incomings of $287,504.71 and outgoings of $273,218.40. Three transfers from the son's account totalling $110,000 were made to the applicant's account, followed immediately by cash withdrawals from the applicant's account at various branches across the Sydney metropolitan area.

9. The sums of money involved in the Sequence 6 charge were grossly out of proportion to the applicant's income declared to the Australian Taxation Office and to his stated financial circumstances in declarations made to the government authorities referred to in the Sequences 2 to 4 charges.

The Crown's position in relation to bail

10. The Crown referred to the applicant's criminal history. It includes a sentence of imprisonment for 8 years, with a non-parole period of 5 years, imposed on 18 February 2011 for an offence of discharging a firearm with intent to cause grievous bodily harm. An offence of reckless wounding was taken into account. The parole period expired on 18 October 2017. Accordingly, the applicant was on parole at the time of the alleged commission of the offences in Sequences 1 to 3 and 6.

11. It was common ground that this circumstance, pursuant to ss 16A and 16B(1)(h)(ii) of the Bail Act 2013 (NSW), meant that the applicant was required to show cause why his detention was not justified, failing which the Court was required to refuse bail. (The submissions for the applicant also conceded that some of the offending alleged in relation to Sequence 6 occurred while he was on bail: s 16B(1)(h)(i) of the Bail Act.) If cause was shown, it remained necessary for the Court to assess any bail concerns: s 17. See Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.

12. The applicant contended that cause was shown because of (a) the lack of strength of the prosecution case in respect of Sequences 1 and 6; and (b) the prospect that the applicant would not receive a full-time custodial sentence in respect of the Sequences 2 and 3.

13. The Crown acknowledged that in respect of Sequences 1 and 6 (the charges under s 193B(3) of the Act) it is necessary to identify (and prove beyond reasonable doubt) the class of indictable offence from which the money or property is alleged to have been derived or realised: Chen v Director of Public Prosecutions (Cth) (2011) 83 NSWLR 224; [2011] NSWCCA 205; R v McKellar (No 3) [2014] NSWSC 106 at [14]-[16]. (The submissions for the applicant also referred to R v Ansari; R v Ansari [2007] 70 NSWLR 89; [2007] NSWCCA 204 and Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; (2012) 227 A Crim R 287.)

14. The Crown acknowledged in its written submissions that this presented a difficulty that affected the strength of the prosecution case. However, by reference to Lin v R [2015] NSWCCA 204; (2015) 253 A Crim R 1 which concerned relevantly identical offences under the Criminal Code (Cth), it submitted that the same issue did not arise in respect of charges pursuant to ss 193C(1) and (2) which are statutory alternatives to the s 193B charges: s 193E(2)(a) of the Act. Those statutory alternatives have maximum penalties of 5 years and 3 years respectively (as opposed to 10 years under s 193B).

15. The Crown submitted that despite the lesser maximum penalties applicable to offences against ss 193C(1) and (2), the present offences were serious examples of their type and would likely result in the imposition of full-time imprisonment exceeding the period in which the applicant had been held on remand (5 months at the time of the hearing). That remains the case in the light of a late submission made by counsel for the applicant that proceedings for s 193C offences prior to amendments that took effect on 8 September 2016 were purely summary and are now statute-barred.

16. The applicant is not a person who is likely to receive any favourable consideration on sentence based on his antecedents. He has an extensive criminal history commencing when he was very young. Of particular note, he breached an order requiring him to serve a term of imprisonment by periodic detention in 2001 and he failed to appear in court when required at around the same time. In addition to the serious offence for which he was on parole, he also received terms of imprisonment for maliciously inflicting grievous bodily harm in 2004 (5 years); drug supply offences in 2004 (2 years) (parole for which was revoked in 2008) and possession of steroids (9 months) in 2006. Also relevant to the question of bail generally is that the applicant was found to be in breach on 20-21 March 2019 and 20 April 2019 of the conditions of bail that had been granted for unrelated offences.

17. Despite its concession as to Sequences 1 and 6, the Crown maintained the submission that the applicant had not shown cause why his detention was not justified. It also submitted that the Court would, in any event, refuse bail on the basis of three bail concerns that amounted to unacceptable risks pursuant to s 19 of the Bail Act. Those concerns were that the applicant would fail to appear, that he would commit a serious offence, and/or that he would interfere with witnesses.

18. The concern about failing to appear was submitted to arise because of the prospect of a significant full-time custodial sentence being imposed. It was accepted that the risk might be mitigated "somewhat" by the conditions of bail proposed, including a deposit of funds and the use of GPS monitoring. There was said to be a question about the credibility of the proposed surety, Mr Jamal Salameh. It was submitted that he was not an acceptable person because he was implicated in a breach of bail by the applicant in relation to other charges on 20-21 March 2019. The applicant was said to have been found in possession of mobile phones, including an encrypted device contrary to conditions of bail, but Mr Salameh asserted (falsely the Crown submitted) that he was the owner of the phones.

19. The concern about interference with witnesses was said by the Crown to arise in relation to his partner, Ms Rayan Rima and her connection to the applicant's financial dealings. She was said to have been a joint signatory to the bank account of their newborn son and was involved in making transfers totalling $35,323.20 to an account in her own name. The Crown submitted that for this reason, and also for reasons set out in a police report, she was not a person who could be relied upon to ensure the applicant's compliance with bail conditions.

20. The Crown relied upon information provided in a letter and attachments by Plain Clothes Senior Constable Ryan Hitchen of Strike Force Raptor in relation to various aspects of the bail application. They included that the applicant was the Sergeant-at-Arms of the Sydney chapter of the Comanchero OMCG and had a close association with Mr Mark Buddle, said to be a senior member of that gang but who had been living offshore for a number of years. This was said to give rise to concern that the applicant had criminal connections and financial resources that would assist him to leave the country.

21. Text messages exchanged between the applicant and his partner, Ms Rima, were suggestive of her being the victim of domestic violence at his hands, although she insisted to the officer that there had only been the one instance of this. Ms Rima had refused to co-operate by making a statement and indicated a loyalty to the applicant that raised questions about her preparedness to disclose any failure by him to comply with bail conditions. The Crown also tendered police records ("COPS" entries) in relation to the officer's interactions with Ms Rima on this issue (Exhibit 2).

22. The breach of bail by the applicant in relation to unrelated charges in March 2019 concerned his possession of three mobile phones, one being an encrypted Blackberry device. The proposed surety, Jamal Salameh, had attended the scene after the applicant had nominated him as the owner of the phones (the applicant was driving Mr Salameh's Mercedes E63 motor car at the time). Mr Salameh supported the claim of ownership but he was unable to describe the phones and was unable to unlock the Blackberry device.

The applicant's case for bail

23. The written submissions for the applicant were largely concerned with the viability of the charges in Sequences 1 and 6; but so much was conceded by the Crown. A further point was raised without notice in oral submissions about the 8 September 2016 amendments concerning s 193C offences referred to earlier. It was also submitted that the Court would be satisfied that the bail concerns identified by the Crown could be sufficiently mitigated by the conditions of bail that were proposed.

24. An affidavit by the applicant's solicitor, Mr Abdul Saddik (29 October 2019), annexed material selected from the police brief of evidence that were said to support the applicant's explanation that he obtained funds as a result of his involvement in motor vehicle acquisitions and sales. That material supported the proposition that the applicant had an interest in discussing such matters but it provided meagre support for his actual involvement.

25. An affidavit by Ms Rima (1 July 2019), the applicant's partner, was generally supportive of the application, including that she would be agreeable to him living with her and their children. In a further affidavit (19 November 2019) she provided evidence that the applicant's debt in relation to overdue fines to Revenue NSW had been paid.

26. Mr Jamal Salameh described himself in his affidavit (26 August 2019) as a friend of the applicant. He was prepared to deposit cash security of $200,000. There was, however, no information as to where this money would come from.

27. An affidavit by Ms Laura Windsor of Attenti Australia Pty Ltd (29 November 2019 but unsworn because of illness) became Exhibit A. Ms Windsor described a regime of GPS monitoring that could be implemented as a condition of bail.

28. In reply to material relied upon by the Crown in relation to the asserted domestic violence issue with Ms Rima, the applicant read a further affidavit by her (25 September 2019) in which she denied that he was ever violent to her. She said that she was not fearful of him at all. There was also a further affidavit by Mr Salameh (23 September 2019) to which was annexed an earlier affidavit (21 March 2019) in which he gave an account of one of the mobile phones found with the applicant the previous night in apparent breach of bail conditions. Mr Salameh denied having lied to the police by asserting that "one that looks like a Samsung" was his. It was only later that he realised that he had only left one phone in the car, "my Blackberry brand mobile phone".

29. Ms Rima was cross-examined by the Crown Prosecutor. She maintained that she had not been subjected to violence by the applicant, despite what is indicated in her text message communications with him and the conversation she had with police in July 2019. She maintained that the messages concerned violence for which another person was responsible, although no other person was referred to in the messages. Throughout her evidence she was emotional; prone to avoiding direct answers to questions; and specifically declined to nominate the person she claimed had been violent towards her, even in questioning from the bench. In short, she did not present as a credible witness.

30. Mr Salameh was also cross-examined. His evidence was even less credible. He claimed to be the owner of four mobile phones because he needed separate phones for his various businesses. He gave a rather convoluted account of having all four phones in his car that night but retrieving only three of them before he lent his car to the applicant at the end of a business dinner. Three of his four phones were iPhones and the fourth one, which he inadvertently left in the car, was a Samsung. He appeared reluctant to refer to the fourth phone as a Blackberry. He could not recall being asked by police and being unable to unlock the Blackberry but he said that, "I wouldn't need to do it even if I could do it or couldn't do it, it's – this is privacy reasons I believe". He did not claim to own any of the other phones the police found in the car.

Reasons for ruling that bail should be refused

31. As indicated earlier, the charges upon which the prosecution will proceed have been partly reformulated and the applicant has been granted bail. In light of this, it will suffice to summarise the Court's reasons for having refused the release application.

32. While there appeared to be problems for the prosecution in relation to some of the charges, it remained the case that there were viable charges that may go forward. In relation to the facts concerning Sequences 1, 5 and 6, it is evident that the applicant was dealing with substantial sums of money that, for the most part, lacked credible explanation as to its source. There was also a lack of credible explanation why such substantial funds were being channelled into and out of bank accounts opened in the names of the applicant's children. Counsel for the applicant was pressed about this and confirmed that he was unable to provide any answer.

33. Assuming some charges would not proceed but would be replaced by less serious charges, it remained the case that there was a very real prospect of the applicant being required to serve a term of imprisonment if convicted; a term that could well extend beyond the period of remand.

34. The applicant has a significant criminal history. It includes quite serious offences for which he has served terms of imprisonment. There have been a number of occasions when he has not been compliant with his obligations in relation to bail conditions, parole, and the need to attend court when required.

35. The proposition that there be stringent conditions of bail was marred by the substantial credibility issues attaching to the evidence of the applicant’s two most significant witnesses. Further, there was no challenge to the proposition that the applicant has associations with persons who might afford him assistance in avoiding his obligation to appear in court as required. There was also the possibility that such associations have relevance to the applicant's access to large sums of money.

Conclusion

36. The foregoing reasons were the bases upon which the Court was not satisfied that the applicant had shown cause why his detention was not justified. Accordingly, the Court refused the applicant's bail release application.

**********

Amendments

14 February 2024 - Publication restriction lifted

14 February 2024 - Catchwords restored.

Decision last updated: 14 February 2024