R v Ayoub

The applicant is charged with a number of offences arising out of the killing of Brayden Dillon who was shot and killed at his residence in Glenfield while he slept in his bed on 14 April 2017. A single male offender forced entry to the residence by kicking in the front door and a number of internal doors. The killing is alleged to be in retribution for the murder of Adam Abu-Mahmoud. Police ultimately arrested Conrad Craig and charged him with the murder of Brayden Dillon. It was alleged that Craig received payment from other persons for carrying out the murder.

The applicant is alleged to have been involved in the preparation of a false affidavit by Craig which absolved a number of persons from involvement in the murder. The applicant was also required to appear before the New South Wales Crime Commission to answer questions about the matter. A number of the charges brought against him allege false evidence being given to the Crime Commission and a refusal to answer questions at the Crime Commission. He is also charged with being an accessory after the fact to murder, knowingly participating in a criminal group, and doing an act with intent to pervert the course of justice.

On 7 August 2019 the applicant was granted bail by Wright J on a number of conditions including the following:

The electronic monitoring was put in place for a six month period at a cost of $13,750. The monitoring contract expired on 26 February 2020.

The applicant made a variation application to Johnson J on 10 February 2020. On that day the following order was made by Johnson J:

On 26 February 2020 the applicant appeared before me seeking three variations of his bail conditions. The first variation was to reduce his reporting obligations to once per day. The second variation was to change the name of his proposed employer to QACO Pty Ltd. The third variation was to dispense with the requirement for him to be electronically monitored. Letters of consent from the sureties were provided with respect to the first and third variation but not the second.

The Crown did not oppose the first two variations. In relation to the application to dispense with electronic monitoring, the Crown opposed the application.

I indicated that I was prepared to grant the application in respect of those variations. However, variation of the name of the employer would require the consent of the sureties.

The application was put on the basis that the applicant and his family could not afford to pay the ongoing costs of the electronic monitoring. The applicant relied on an affidavit sworn by his mother which said the following:

There was no evidence of the cost of the further six-month period of monitoring, but the parties were prepared to assume that the cost was the same as for the first six month period, namely, $13,750.

I indicated that the generality of the evidence was inadequate to justify a variation to the monitoring condition. Counsel for the applicant then asked for a short adjournment so that he could call oral evidence from the applicant’s mother in relation to her financial position. I was informed that the reason that had to be done immediately was because the monitoring contract expired on 26 February 2020.

When the matter resumed later in the day, the applicant’s mother gave evidence and produced copies of bank statements from three bank accounts that she operated. She identified particular entries of large amounts that went into and out of those accounts. Most of those amounts concerned loans that she had obtained from her sister and repayments of those amounts.

She gave evidence that she received approximately $1,500 a fortnight from Centrelink, and her husband, who was also unemployed, received a little over $900 a fortnight from Centrelink. Two children in addition to the applicant lived at home with her. She and her husband paid rent of $700 per week for their property. Although their 21 year old daughter lived at home and received social security benefits from Centrelink, she only paid board to them occasionally.

The evidence discloses that the applicant’s mother, at least, does not have the wherewithal from her own funds to pay for further monitoring. There was no evidence in relation to the father’s financial position apart from his receipt of Centrelink benefits.

However, the fact that the applicant’s mother demonstrates a financial position where she is unable to pay for further monitoring is not determinant of the issue.

The offence of being an accessory after the fact to murder is a show cause offence under s 16B of the Bail Act 2013 (NSW). Quite apart from that offence, the other offences with which the applicant is charged are very serious offences all of which are related to the murder of Mr Dillon.

In circumstances where the applicant had been refused bail by N Adams J on 22 November 2018, it is significant that in his judgment of 1 August 2019, Wright J said this:

His Honour then found that the bail conditions put forward by the applicant and the officer-in-charge would sufficiently mitigate the risk of non-appearance and risk of interference with witnesses or evidence.

It does not seem to me that anything has changed in that regard except for the fact that the applicant has now had a further offer of employment. It is appropriate in those circumstances to modify his reporting requirements. Since Johnson J was prepared to modify his house arrest condition to enable him to attend employment with a business who then intended him to employ him, being CivilWorx, it is appropriate that that condition be modified now that he intends to work for QACO Pty Ltd.

However, as noted by Wright J it was the applicant who proposed the electronic monitoring, no doubt to assist in persuading his Honour that bail concerns could be mitigated by that condition as well as others. There is nothing in the judgment of Adams J to suggest that electronic monitoring was offered or considered. Further, Adams J noted that the applicant was alleged to have said to the police that, had he not had to surrender his passport in relation to an earlier bail matter “he would have already been gone”.

There could have been no doubt at the time of the bail application to Wright J that the applicant’s trial would not come on for hearing within the first six months of the electronic monitoring. It was almost inevitable that a further six months, and maybe more, would need to be paid for.

In my opinion, considering the seriousness of the charges, the obvious concerns that the applicant will fail to appear, (concerns that both Adams J and Wright J referred to), and the fact that electronic monitoring was offered by the applicant to overcome those concerns, the submission, that the Court should dispense with electronic monitoring because the applicant and his family find themselves on the day of the expiry of the electronic monitoring contract unable to pay for further monitoring, should be rejected.

The applicant’s counsel submitted that if an order was not made dispensing with the electronic monitoring on 26 February the applicant would be in breach of his bail conditions from the end of that day. I regard that as an attempt to place undue pressure on the Court, especially when no explanation was forthcoming for why an earlier application was not made so that the matter could be properly dealt with before the expiration of the electronic monitoring contract. In particular, there was no explanation for why the application was not made to Johnson J when the house arrest condition was varied to permit the applicant to attend employment.

To try to resolve the applicant’s difficulty, I proposed to counsel for the applicant that, subject to hearing from the Crown, I would consider releasing the deposit of $20,000 made by Sahar Ayoub to enable payment to be made for a further six months of monitoring. The Crown subsequently submitted that the whole of that amount should not be released, but rather that the sum of $15,000 be released so that Sahar Ayoub would remain a surety, given that she has responsibility for him pursuant to the house arrest condition. I accept the submission of the Crown in that regard.

Although counsel for the applicant eventually accepted that proposal, he submitted that the same problem would arise at the end of the second six-month period. That seemed to be a submission that the only solution was to dispense with the monitoring altogether. For reasons already given, I reject that submission.

I indicated that the written consent of the sureties would be necessary to the release of $15,000 from the deposit made by Sahar Ayoub. The matter was adjourned for the obtaining of those consents, and for provision on behalf of the applicant of the precise wording of the bail conditions to be imposed.

The consents of the sureties were provided by emails from each of them identifying the revised bail conditions. The precise wording of those conditions was also provided.

In those circumstances, I make the following orders: