R v AC (No 3) (Detention application)

Last Wednesday, that is 3 March 2016, Witness M, to whom I will refer to as the respondent, pleaded guilty to two extremely serious offences and asked that a third be taken into account in sentencing her. At that point, she had been on bail since 26 March 2014 with the exception of a period of around one month from 27 October 2014 until 27 November 2014. Once her plea was entered, the learned Crown Prosecutor made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). That application was adjourned until today to allow her to gather the evidence that she needed to resist the detention application. In adjourning the matter, I noted the provision in s 50(5) which is a requirement for reasonable notice.

The evidence on the bail application consisted of the material tendered by the prosecutor on sentence (exhibits AC-1 to AC-6), the prosecution’s tender bundle (ex AC-7) and the respondent's tender bundle (ex AC-A). Both the Crown Prosecutor and Mr Khatiz, who appears for the respondent, provided helpful written and oral submissions.

The offences to which the respondent pleaded guilty last week were (1) being an accessory before the fact to murder and (2) being an accessory before the fact to the serious indictable offence of discharging a firearm with intent to cause grievous bodily harm. Those offences carry maximum penalties of life imprisonment and 25 years respectively. The offence to be taken into account is an offence of participating in a criminal group, namely the Brothers for Life at Blacktown.

The facts and Witness M’s role place the offences at the upper echelon of objective seriousness contemplated by the entirety of the criminal law. Because the first charge carries a maximum penalty of life imprisonment, s 16B(1)(a) provides that it is a "show cause offence" under the Bail Act. This means, by reference to s 16A, that bail must be refused "unless the accused person shows cause why her continueddetention is not justified".

In DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 the Court of Appeal said, at [26], that a guilty verdict:

The same consideration applies where an offender enters a plea of guilty: see for example R v Farrell [2015] NSWSC 1082 (McCallum J). As a number of cases decided in the Court of Criminal Appeal demonstrate, the show cause requirement constitutes a considerable hurdle for an applicant who seeks bail: see for example, DPP v Boatswain [2015] NSWCCA 85 and DPP v Brooks [2015] NSWCCA 190. In each of those cases, compelling personal cases existed - for example Mr Boatswain was dying of cancer - and yet the Court (in each case constituted by the Chief Judge at Common Law, Johnson and RA Hulme JJ) were not persuaded that the offender had shown cause.

On the other hand, as Garling J said in JM v R [2015] NSWSC 978 at [39] to [40]:

Further, as Johnson J stressed in a case under the Bail Act 1978 (NSW), where an applicant charged with murder was required to establish exceptional circumstances justifying the grant of bail, it is open to an offender to establish such circumstances (or, under the present regime, to show cause) by relying on a combination of circumstances: see R v Young [2006] NSWSC 1499 and my adoption of that process of reasoning in R v Boyd [2015] NSWSC 1065 at [18] to [19].

In addition to the show cause test, the Bail Act also requires the Court to consider whether there are bail concerns (see s 17) and whether those concerns amount to unacceptable risks (see s 19). If there are unacceptable risks, bail must be refused. In determining the question under s 19, the Court is to have regard to the list of matters referred to in s 18 of the Bail Act. The concerns and risks as identified in s 17 and 19 of the Act are that the person may (a) fail to appear at any proceedings for the offence or (b) commit a serious offence or (c), endanger the safety of victims, individuals or the community or (d) interfere with witnesses or evidence.

The Crown's primary position is that the respondent has not shown cause pursuant to s 16A but further submits that the first three of those concerns or risks that I have just identified exist in the present case. It is accepted by the Crown that there is no unacceptable risk of the respondent interfering with witnesses.

An important matter of law to be borne in mind is that the show cause requirement must not be conflated with the unacceptable risk test. It is a two-stage process involving different tests. This was made clear in the leading judgment on the provision which was a decision by the Court of Appeal in Tikomaimaleya at [20], [24]-[25]:

In those passages, one of the things that the Court said was that if the show cause requirement is resolved in favour of the accused person, that will “necessarily resolve the unacceptable risk test in his or her favour as well”. It seems that this comment is not universally true, as is shown by the decision in R v Mawad [2015] NSWCCA 227. In that case, a majority (Gleeson JA and Beech-Jones JJ; Adams J dissenting) overturned my decision to grant conditional bail and found that the applicant had shown cause why their detention was not justified but then found that he posed an unacceptable risk of committing serious offences. Both of those cases demonstrate the importance of not conflating the show cause requirement with the unacceptable risk test, although, as was stressed in the earlier case, the factors relevant to the latter may be important in resolving the former.

In delivering this judgment ex tempore, I indicated that I would incorporate parts of the agreed facts that have been tendered on sentence. To obtain a broader overview of the facts of the case and the evidence I have received in the course of a lengthy pre-trial hearing, see R v Qaumi and Ors (AVL) [2015] NSWSC 1711 and R v Qaumi and Ors (No 3) (Severance and separate trial) [2016] NSWSC 16. The following are some snippets from the agreed statement of facts (Ex AC-3) upon which the respondent is to be sentenced:

The matter to be taken into account (participating in a criminal group) encompasses the respondent’s involvement in yet another shooting incident, at Greenacre on 29 November 2013.

These facts demonstrate that the respondent was a central and critical player in both the planning and execution of two brutal and terrible crimes. Her involvement was pivotal to each and she may well be seen as the instigator of a period of unlawfulness and violence which lasted for at least a number of weeks, if not months. Had she not been passing information from one side of the so called “turf war” to the other, the events may not have escalated as they did. According to the fact sheet, the respondent says that she participated because of fear for her own safety. However that issue may be resolved, the facts as agreed mean that a substantial custodial sentence will be the inevitable outcome of the sentencing hearing. Just by way of example, I sentenced a co-offender to a sentence of four years and ten months in respect of the events giving rise to count 1 against the respondent. The co-offender was charged with a less serious offence (shoot with intent to inflict grievous bodily harm) and received a 60 per cent discount for his plea of guilty and assistance. While different factors arise in each case, there is little doubt that a long gaol sentence will be imposed. However, as McCallum J pointed out in the case of Farrell at [16]:

Similar considerations apply here.

I have remarked when sitting in the Bail Court that the precise content of the show cause requirement will vary depending on the seriousness of the offence and the basis upon which an offender or accused is caught by the provisions of ss 16A and 16B. For example, cases can arise under s 16B(1)(h) where an offender is charged with a "serious indictable offence" while on bail for a quite minor offence. In such as case, the show cause requirement might more readily be overcome. However, the present case is at the other end of the spectrum. The seriousness of the present offence, the plea of guilty and the inevitability of a lengthy gaol sentence mean that the show cause requirement in the present case represents an extremely high hurdle, irrespective of any views that I may hold as to the respondent's likelihood of appearing, the likelihood that she will commit further offences or whether she constitutes a risk to the community.

The respondent has a criminal history which is before me in exhibit AC-4. That criminal history consists of a number of entries going back to the Children's Court in the year 2000. She was dealt with without conviction for possessing a prohibited weapon as an adult in 2001. She was fined for assaulting a police officer in 2004. She was given an 18 month supervised bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for assault occasioning actual bodily harm in 2008 and fined for the possession of a prohibited drug and fined in 2007.

That criminal history is not a substantial one but the lack of a substantial criminal history is of less significance in the present case in view of the respondent's involvement with a group of people who, on the Crown case, were operating at the highest level of violence and lawlessness. In doing so, she breached the trust reposed in her by the solicitor who employed her and also betrayed the trust of the Department of Corrective Services. For some time she was entering the prison to meet a notorious criminal (Bassam Hamzy) and running errands for him outside of the gaol. All of that while purporting to be acting as a paralegal engaged by an apparently reputable firm of solicitors.

As I have said, the respondent has been on bail for many, many months. She was initially charged with an offence arising out of what has become count 2 on the present indictment on 26 March 2014 and bail was refused. Around a week later, on 2 April 2014, a Magistrate at Parramatta granted her bail on various, quite stringent conditions and she remained on that bail until 27 October 2014. On that date, she was charged with the murder of Mr Hamzy, who is the victim nominated in the first count on the current indictment. That murder charge has now become, at least in form if not content, a charge of accessory before the fact to murder. I have no doubt the reason for that, and the relevant distinction, will become clear to me in the course of the sentencing hearing.

In any event, bail was refused on 27 October 2014 and again on 10 November 2014 by a Magistrate at the Burwood Local Court. However, on 27 November 2014, bail was granted by Campbell J on the following conditions:

These conditions have been varied from time to time but they have remained substantially the same since 27 November 2014. For a brief period during the pre-trial hearing (9 February 2016 – 3 March 2016), the condition amounting to house arrest was softened to be more in the nature of a curfew. On the plea of guilty being entered, the house arrest condition was reinstated.

It is significant to note that the show cause requirement was not yet in force at the time of Campbell J's decision. Accordingly, his Honour did not address that question. However, a perusal of his Honour's thoughtful judgment shows that the findings that motivated his Honour to grant bail, in spite of unacceptable risks as his Honour found them to be, have been proven to be correct and well-founded.

In spite of the length of the adjournment, there have been no incidents at all in which the respondent has breached bail. She has completely complied with the bail conditions for a total period (that is including the period after her initial arrest) approaching two years, noting that she was in custody for one month of that period.

The respondent relies on a combination of circumstances in her attempt to establish that she has shown cause why her detention is not justified. The strict compliance with the onerous bail conditions is one of the critical factors upon which she relies.

In the present case, in addition to entering a plea of guilty, the respondent has offered to give evidence against her co-accused. A confidential exhibit, exhibit AC-6, shows that the assistance that she will provide is extensive and may assist the Crown in establishing the guilt of the five accused who remain on trial in relation to a number of very serious charges.

The Crown accepts that this is a relevant matter in considering the combination of circumstances that might satisfy the show cause requirement. However, the Crown also submits that it is insufficient to discharge the heavy onus that arises in this case.

In my opinion, her offer of assistance is relevant in a number of ways. First, it demonstrates that she has extracted herself completely and at some personal risk from the particular criminal group with whom she committed the offences. While the evidence suggests that she has had contacts with other criminals in the past, including the aforementioned Mr Hamzy held in Supermax at Goulburn, there is nothing to suggest that she has maintained those contacts since she was granted bail in April of 2014. Indeed, one of the conditions has been not to contact any inmate in a New South Wales correctional centre and one would have thought that a breach of that condition, if it existed, would have been known. Second, it means that she may be in physical danger or at risk while on remand. The violent capacity of the group against whom she is to give evidence is well-documented. There is evidence before me on the pre-trial hearing of some members of the group planning to kill other members of the group, including this respondent, if they became informants or, as it is put, rolled over.

The stringent bail conditions that have been in place to this point, including what was for a very lengthy period of time house arrest, then briefly a curfew, and the lack of any breach throughout that time, is, as I have said, one of the primary bases upon which it is submitted that cause has been shown. One of those conditions has been emphasised in particular by Mr Khatiz and that is the fact that the respondent's mother has entered into an agreement with surety to forfeit the sum of $1.4 million if the accused fails to comply with her bail undertaking. As I understand it, that surety is secured by a charge of some kind over the respondent's mother's house. That is a significant motivator for the respondent to continue to comply with her bail and to attend at court for sentence.

Another matter relied upon by the respondent are the steps that she and her solicitor have taken since the plea of guilty was entered. In particular, in less than a week, steps have been taken to ensure that the sentencing proceedings occur quickly and without unnecessary delay. So it is that a psychiatrist, Dr Furst, has been engaged and is available, at least while the respondent is at liberty, to consult with her on 14 March 2016 and to provide a report by 24 March 2016. Similarly, a forensic psychologist, a Mr Borenstein, has agreed to accept a brief and has arranged to meet her in order to provide a report within the next two or three weeks. Finally, in spite of the fact that her original choice of Queen's Counsel is not available, she has engaged alternative Senior Counsel, Mr Dhanji SC, who is available to appear at the sentence hearing in around three weeks from today.

Both the experts and Senior Counsel are available on 29 March 2016 and the matter will be ready to proceed on that date. Mr Khatiz says, or implies (and based on my own experience I accept), that this is unlikely to be the case if bail is refused. For example, Mr Khatiz tells me - and again I accept it from him - that Dr Furst's usual delay in arranging appointments is something like eight or nine weeks. The prospect that Senior Counsel and both experts will be able to attend on the respondent while she is in custody within that short time frame seems to me, based on my experience in the criminal law, to be most unlikely. That is a matter of some significance to the Court because it means that the trial of the co-offenders, which was scheduled to commence next Monday, will only be delayed by a period of around two to three weeks. Until she is sentenced, the respondent cannot give evidence either in the trial proper or on what I consider to be the almost inevitable, if tightly constrained, Basha inquiry that will be no doubt applied for by each of the accused: see R v Qaumi & Ors (No 2) (Basha Inquiry) [2015] NSWSC 1715.

The learned Crown Prosecutor argues that this is a matter that ought not to inform the decision as to whether the respondent satisfies the show cause test. He submits that s 16A is restricted to matters personal to the offender. While I accept that this is certainly not a determinative matter in respect of this application or even bordering on the most important matter under consideration - let alone determinative of the resolution of the whether the show cause test is satisfied - I am not able to accept that the broad terms of s 16A are so constrained.

It is certainly true that the circumstance is a most unusual one and neither counsel, nor I, nor my staff have found a case in which such a factor has played a part in a Court's consideration of an application where s 16A is engaged. Nevertheless, I am of the view that it is a factor that can play some part in a determination of whether the respondent has "shown cause why her detention is not justified". A further delay in the joint trial affects not only the accused but the many victims and witnesses who have an interest in seeing justice being done expeditiously. As I have said, this is not a determinative factor but it is one of the many factors that lead me to conclude that the combination of circumstances here arising are so unusual that in spite of the inevitability of a long gaol sentence, the respondent should remain on bail for the three weeks in advance of the sentencing proceedings.

The matter is also relevant, as Mr Khatiz submits, because the very short period between now and sentence reduces the risks that the Crown identifies for the purpose of s 19.

Bearing in mind the requirement that the two tests not be conflated, I should state that I do not accept that the respondent is a flight risk or at risk of committing further serious offences or of interfering with witnesses. I do not believe that continuing her bail on onerous conditions endangers the victims, individuals or the community. That is not a conclusion under s 19 but, rather, my finding of fact relevant to the show cause requirement. This finding is based on the respondent's conduct while on bail from 2 April 2014 until 27 October 2014 and from 27 November 2014 until today. She will never have a greater incentive to behave herself than she has between now and the sentencing date, which will be 29 March 2016.

For all of those reasons and taking those matters in combination, I am satisfied on balance that the respondent has shown cause why her detention is not justified.

It is necessary to address, albeit briefly, the bail concerns and unacceptable risks that arise under s 17 and s 19 of the Act. As I have said, the learned Crown Prosecutor identified first as a bail concern and then as an unacceptable risk the possibility or fact that she may fail to appear on her sentencing hearing (see s 19(2)(a)); secondly, that she may commit a serious offence (see s 19(2)(b)); and thirdly, that she may endanger the safety of victims, individuals or the community (see s 19(2)(c)). As I have said, the Crown did not submit that she was likely to interfere with witnesses or evidence. In view of her extracting herself from the criminal group with which she was previously involved, that last concession is one that I readily accept.

The structure of the Act is that the first thing that a Court does is to identify bail concerns. I accept the Crown's submission that there are bail concerns of the kind that I have just identified. However, the Act goes on in s 19 to require a consideration of whether those concerns are "unacceptable risks". If they are unacceptable risks, s 19 provides that the Court must refuse bail. In coming to that determination, the Act requires, by s 18, a certain number of identified factors to be taken into account. They are in s 18 and it is an exhaustive list. I will not articulate one by one the matters in that section, but I indicate that I have considered and taken into account those matters where relevant.

I think that the reasons that I have given for finding that she has shown cause disclose the reasons that I have come to the conclusion that the kinds of conditions that are currently in place, and indicating that if the Crown makes an application I would be inclined to add an enforcement condition under s 30 of the Bail Act, to mitigate the bail concerns such that they do not rise to the level of being unacceptable risks. For those reasons, I will dismiss the detention application brought by the Crown. I will continue the bail as it presently is.

[Following my announcing that decision, the learned Crown Prosectuor submitted that an enforcement condition relating to the curfew or house arrest condition was now appropriate. Mr Khatiz did not submit to the contrary and I agreed that such a condition was appropriate.]

Accordingly, I make the following orders: