Zahed v Director of Public Prosecutions

1. [1]

   THE COURT: On 17 November 2023, Tarek Zahed applied for his release to bail with respect to charges of murder contrary to s 18 of the Crimes Act 1900 (NSW) (the Crimes Act) and specially aggravated kidnapping contrary to s 86(3) of the Crimes Act pursuant to the provisions of the Bail Act 2013 (NSW) (the Bail Act). The charges arise from events which allegedly occurred on 10 and 11 December 2014.

2. [2]

   On the day of the hearing, the Court dismissed Mr Zahed’s application. What follows are our reasons for refusing Mr Zahed’s application.

Background

1. [3]

   This was the sixth release application made by Mr Zahed referable to the instant charges. He was refused bail in the Local Court on 14 September 2022 and 22 December 2022. On 10 February 2023, Wilson J refused bail in the Supreme Court: Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 (the first SC application). This Court then refused the applicant bail on 19 April 2023: Zahed v R [2023] NSWCCA 86 (the CCA bail decision). On 10 July 2023, the applicant was refused bail by Button J: Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 807 (the second SC application). The present application was filed on 16 October 2023.

2. [4]

   Mr Zahed’s trial is listed to commence in less than three months on 5 February 2024. He has been in custody since his arrest on 29 August 2022. In May 2022 the applicant was the victim of a shooting, during which he suffered very significant injuries including the loss of an eye.

The Commissioner’s Notice of Motion

1. [5]

   The Commissioner of the NSW Police Force sought suppression orders with respect to information identifying or tending to identify the deceased’s wife and two Crown witnesses, Male A and Male B. A pseudonym order was also sought with respect to the deceased’s wife. The application was not opposed. On the evidence that the Commissioner of Police relied on in support of the application, we were satisfied that it was necessary to make the orders sought under the Court Suppression and Non-publication Orders Act 2010 (NSW) to prevent prejudice to the proper administration of justice (s 8(1)(a)). We were also satisfied that it was otherwise necessary in the public interest for the orders to be made and that the public interest significantly outweighed the public interest in open justice (s 8(1)(e)). Further, we were satisfied that the orders should be in place for the period nominated by the Commissioner of Police and should apply throughout the country. Accordingly, we made the suppression and pseudonym orders prior to the hearing of the release application. Those orders appear at the end of this judgment.

2. [6]

   By reason of the suppression and pseudonym orders, and the sensitivity of the matter generally, as the proceedings were heard in open court the parties framed their submissions about the events the subject of the charges and the persons allegedly involved at a general level. We have adopted the same approach in these reasons.

Evidence

1. [7]

   The following exhibits were tendered on the application:

   1. (1)

      Exhibit A, which comprised the applicant’s bundle of material. It contained 32 annexures consisting of proposed bail conditions, several recent affidavits, written submissions with respect to the instant application, the applicant’s and the Crown’s submissions before Button J, police investigation notes, affidavits of the Officer-in-Charge, medical records pertaining to the applicant and two documents recently disclosed to the applicant concerning Male A and Male B; and

   2. (2)

      Exhibit B, which comprised the Crown’s bundle of material. It contained the Crown Case Statement (updated at November 2023), written submissions with respect to the instant application, statements of witnesses, police notebook entries, the applicant’s criminal history and a statement from the Officer-in-Charge dated 20 October 2022 annexing a photo of the applicant in the company of others in Victoria which was posted to Instagram on 22 August 2022.

Facts of the alleged offences

1. [8]

   The facts of the alleged offending have been canvassed in previous judgments and may be summarised very briefly. The Crown Case Statement tendered as a part of exhibit B discloses that it is alleged that on 10 December 2014, the applicant and his co-accused detained and violently assaulted the deceased at a property in suburban Sydney. It is alleged that the applicant shot the deceased in the right leg at close range. The deceased died as a result of the gunshot wound before reaching hospital. It is alleged that the applicant and the co-accused were acting in a joint criminal enterprise.

Statutory framework for making this release application

1. [9]

   An accused person may make a release application pursuant to s 49 of the Bail Act, and the bail authority hearing an application after a bail decision has already been made may make, affirm or vary the previous bail decision. Section 49 of the Bail Act provides:

2. [10]

   The power of this Court to hear a bail application is provided for at s 67(1)(e) of the Bail Act:

3. [11]

   The application before this Court is a fresh application, and was heard de novo: see s 75 of the Bail Act.

4. [12]

   Section 31 of the Bail Act provides:

5. [13]

   Section 33 provides that any matter to be decided by the Court is to be decided on the balance of probabilities.

Threshold issue: s 74 of the Bail Act

1. [14]

   Given the background of previous applications for bail by Mr Zahed for the same charges, the Court must refuse to hear a further application unless there are grounds for a further release application. Sections 74(1) and (3) of the Bail Act relevantly provide:

2. [15]

   Mr Ayache, who appeared for the applicant, submitted that the applicant had been served with pertinent material since the time of his last release application (and indeed since the second SC application). Part of this new material was a heavily redacted letter tendered as a part of exhibit A.

3. [16]

   In oral submissions, Mr Scully SC, who appeared on behalf of the Crown, conceded that there were grounds for a further release application satisfying section 74(3) of the Bail Act.

Show cause

1. [17]

   Section 16A of the Bail Act provides:

2. [18]

   Beech-Jones CJ at CL (as his Honour then was) recently summarised the relevant principles of assessing a bail application and the relationship between the show cause and unacceptable risk tests in D108 v R [2023] NSWCCA 28 at [28]:

3. [19]

   It was conceded by the applicant that the offences for which he is charged enliven the show cause requirement. The onus is on an applicant to persuade the Court that his detention is not justified.

4. [20]

   The applicant previously made out the show cause requirement in the CCA bail application and the second SC application before Button J. In the second SC application, the Crown conceded that cause was shown because of a combination of factors including the applicant’s health needs, which arose following the shooting that caused him to lose an eye. In oral submissions in this court, Mr Scully conceded that the applicant had shown cause why his detention was not justified.

Unacceptable risk

1. [21]

   We observe that the fact that the applicant has shown cause why his detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk: s 19(3) of the Bail Act.

2. [22]

   Section 19(1) provides that a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns, that there is an unacceptable risk.

3. [23]

   Section 17 of the Bail Act provides:

4. [24]

   Section 19 of the Bail Act provides:

5. [25]

   The Crown opposed bail and identified the following bail concerns pursuant to s 17(2) of the Bail Act:

   1. (1)

      failure to appear at any proceedings for the offence (s 17(2)(a));

   2. (2)

      commit a serious offence (s 17(2)(b)); and

   3. (3)

      interfere with witnesses or evidence (s 17(2)(d)).

6. [26]

   In our view, the Crown properly identified the bail concerns in this matter. We observe that the provisions of the Bail Act casts an onus on the party who is opposed to the grant of bail: see R v Lago [2014] NSWSC 660 per Hamill J at [6].

7. [27]

   Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) sets out a mandatory and exhaustive list of the factors to be considered in assessing bail concerns identified pursuant to s 17 of the Bail Act: see Raad v R [2015] NSWSC 532. Section 18(1) provides:

Crown’s submissions

1. [28]

   The Crown relied upon its submissions in the second SC application as to unacceptable risk. It submitted generally that:

   1. (1)

      the applicant is charged, inter alia, with the most serious offence in the criminal legislation, and there is a viable Crown case (relevant to s 17(2)(a));

   2. (2)

      the applicant’s criminal history includes offences of violence and breaches of court orders (relevant to s 17(2)(b));

   3. (3)

      the applicant was subject to a Serious Crime Prevention Order (SCPO) imposed in the Supreme Court by N Adams J (Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606), the spirit of which he flouted by associating with someone in Victoria with whom he was prohibited from associating in New South Wales (relevant to s 17(2)(b));

   4. (4)

      the applicant maintains the support of a network of notorious criminal associates and family who can access funds which would provide him with the means to live overseas (relevant to s 17(2)(a)); and

   5. (5)

      the applicant knows the identity of the person who is the author of an unsigned statement implicating him in the offending and there is a risk that he might interfere with that witness (relevant to s 17(2)(d)).

2. [29]

   The Crown made three additional submissions on this application. First, Mr Scully submitted that the Court should not accept the applicant’s wife, Rayan Rima, as a credible witness in circumstances where this Court has previously not accepted that she is a credible witness: see Zahed v Director of Public Prosecutions (NSW) [2020] NSWCCA 6 at [29]. This was a reference to an affidavit of Ms Rima of 11 October 2023 and her evidence to the effect that the applicant’s use of a private charter flight in 2022 was not an unusual occurrence.

3. [30]

   Second, as to the risk of failing to appear, the Crown submitted that the evidence tendered on behalf of the applicant did not militate against a finding that he has a demonstrated capacity to fund and organise an evasion of justice. Rather, he submitted that the fact that the applicant had the means to fly by private charter flight demonstrated a material risk that he has the financial capacity to flee, and that his proposal for a large surety does not, in the Crown’s submission, offset the real risk of a failure to appear.

4. [31]

   Third, with respect to the risks of further serious offending or interfering with witnesses, the Crown submitted that the applicant did not engage with evidence of his contravening the spirit of the SCPO orders, and that he had not demonstrated (by his bail proposal) any safeguards against the risk of interfering with witnesses. The Crown pointed to the fact that the applicant knows the identity of an essential prosecution witness, and that he was convicted in 2021 for intending to pervert the course of justice.

5. [32]

   Mr Scully submitted that there were no conditions which could mitigate the identified unacceptable risks.

Applicant’s submissions

1. [33]

   Mr Ayache submitted that whilst the SCPO was made after a finding that the applicant was involved in serious crime related activity, his health and physical capacity is now significantly different than at the time of the making of the SCPO as a result of the shooting which occurred last year. He observed that the applicant has not been charged with or convicted of any serious criminal offence since the SCPO was imposed on 8 December 2021.

2. [34]

   Mr Ayache conceded that Mr Zahed associated with a person in Victoria with whom the SCPO prevented him from associating in NSW, and that this was contrary to the spirit of the SCPO.

3. [35]

   As to the risk of flight, Mr Ayache submitted that the applicant is an Australian citizen and holds only an Australian passport, which he proposed to surrender if released on bail. It was submitted that the applicant has strong community ties in Australia, no ties to any other country, and that his immediate family, including his children, mother and wife are Australian citizens. Mr Ayache also submitted that the proposed surety of $1,800,000 was significant, and would ensure the applicant’s future court attendance.

4. [36]

   As to the risk of interference with witnesses, Mr Ayache submitted that it was presumed that one of the key witnesses resided in NSW. Given that the bail proposal intended for Mr Zahed to reside in Victoria, that risk was mitigated. He further submitted that the evidence of that witness is exculpatory, and so there was no incentive to interfere with that witness. Mr Ayache submitted that the evidence of the other key witness was neither credible nor trustworthy, so that the risk of interference with that person was very low.

5. [37]

   Mr Ayache relied upon the strength of the Crown case (which he submitted was doomed to fail), and the applicant’s need to be at liberty to attend to his complex medical needs. He also relied on the practical difficulties that the applicant is confronting in preparing for trial whilst in custody.

Consideration

1. [38]

   We turn to the considerations under s 18(1) of the Bail Act, to the extent that they are relevant to the offender, in our assessment of the identified bail concerns.

2. [39]

   On the evidence before us, whilst the applicant has ties to his family present in Australia, he has a significant criminal history including drug, firearms and violence offending. He has a long association with an outlaw motorcycle gang (OMCG), in which he is a high ranking member. Credible information suggests that he has access to significant funds likely the fruit of criminal activity. We observe that the applicant has also been convicted of a proceeds of crime offence for which he served a custodial sentence.

3. [40]

   The applicant has been charged, inter alia, with murder which is the most serious crime on the criminal calendar.

4. [41]

   The Crown assessed its case as viable. On the evidence before us, that description is apt. In our view, it is not doomed to fail.

5. [42]

   The applicant has a history of violence as demonstrated by his convictions for contravene apprehended violence order, and wound person with intent to cause grievous bodily harm.

6. [43]

   The applicant has several breach of bail notations on his criminal record, with at least four noted in the years 2019 to 2020. He did not comply with the spirit of the SCPO made in December 2021. We observe that at the time of the alleged offending, the applicant was on parole.

7. [44]

   Credible information establishes that the applicant is the sergeant at arms of an OMCG.

8. [45]

   The applicant has been in custody since 29 August 2022. His trial is to commence in less than three months on 5 February 2024.

9. [46]

   In our view, there is no doubt that a lengthy custodial sentence will be imposed if the applicant is convicted.

10. [47]

    The applicant has a special vulnerability — his health following the 2022 shooting. Whilst he may receive more attentive medical care in the community, the evidence discloses that he is receiving continuous and appropriate medical attention whilst in custody.

11. [48]

    A submission was made that the applicant would be in a better position to prepare his case if he was out of custody and resident in Victoria (as proposed in the bail application), including because there is a large volume of material; some of that material is sensitive and he cannot have physical access to it in custody; the applicant has limited vision in his remaining eye which affects his ability to read and thus increases his need for assistance from his legal representatives; and his trial counsel resides in Victoria. The Crown submitted that in so far as sensitive material was concerned, that material was not voluminous, although Mr Scully accepted it would be in the order of several hundred pages at least. There was no evidence that the applicant could not avail himself of AVL facilities to prepare his case for trial.

12. [49]

    There is no need for the applicant to be free for any other lawful reason.

13. [50]

    The bail proposal would have the applicant reside in Victoria, reporting to a police station in suburban Melbourne daily. It contains several enforcement conditions which would rely on Victorian police ensuring the applicant’s compliance with those conditions. No evidence was led as to the viability of such a proposal. Indeed Mr Scully submitted that the proposal would rely upon the goodwill of Victorian police, as it was impractical for the NSW police to monitor the applicant in another jurisdiction. Such a proposal would be attendant with unacceptable risk. In our view, there were no bail conditions that could reasonably be imposed to address the bail concerns identified by the Crown.

Conclusion and orders

1. [51]

   Taking all matters into account, accepting that no grant of bail is risk free and that the applicant has the continuing benefit of the presumption of innocence (see the Preamble to the Bail Act), we were satisfied, on the basis of our assessment of the identified bail concerns, that there was an unacceptable risk that the applicant, if released from custody, would fail to appear at the proceedings for the offence, and/or commit a serious offence and/or interfere with witnesses and evidence.

2. [52]

   We therefore dismissed the application and refused bail.

3. [53]

   Accordingly, on 17 November 2023 the Court made the following orders:

   1. (1)

      Bail is refused.

   2. (2)

      Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) and upon grounds set out at s 8(1)(a) and (e) of the Act, the Court orders that the following information/material (including information contained within any version of the Crown Case Statement served in these proceedings) be suppressed from disclosure beyond these proceedings:

   3. (3)

      Pursuant to ss 10 and 11 of the Act, Order 2 is to apply throughout the Commonwealth of Australia for 60 years, or:

   4. (4)

      The person known as the deceased’s wife be referred to as “Female A” during these proceedings, or any other pseudonym as ordered by the Court at the request of the parties.