Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zahed v R [2023] NSWCCA 86 Hearing dates: 20 March 2023 Date of orders: 20 March 2023 Decision date: 19 April 2023 Before: Price J, N Adams J, Yehia J Decision: Application for bail refused Catchwords: CRIMINAL LAW – bail – appeal bail – release application – where charges not yet certified and charge certificate not yet filed – show cause offences – strength of prosecution case – requirement for medical treatment – cause shown – unacceptable risk – strong connections with organised crime – unacceptable risk of committing a serious offence –unacceptable risk of failing to appear – unacceptable risk of interfering with witnesses – bail refused Legislation Cited: Bail Act 2013 (NSW), ss 16A, 19, 31, 32, 67 [REDACTED] Crimes Act 1900 (NSW), ss 18, 86 Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 55, 62, 66, 68 Cases Cited: Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606 D108 v R [2023] NSWCCA 28 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152 Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 Category: Principal judgment Parties: Tarek Zahed (Applicant) Rex (Respondent) Representation: Counsel: Mr P Lange (Applicant) Mr D Scully (Respondent) Solicitors: One Group Legal (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2023/53400 Publication restriction: In unredacted form, restricted to the parties and the NSW Crime Commission, until further order. The redacted version is published below. Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 Date of Decision: 10 February 2023 Before: Wilson J File Number(s): 2022/353309 JUDGMENT 1. THE COURT: On 20 March 2023, this Court heard and refused a release application made by Tarek Zahed ('the applicant'). The applicant is charged with the murder of Yousef Assoum on 10 December 2014, contrary to s 18 of the Crimes Act 1900 (NSW) and with Mr Assoum's kidnapping (specially aggravated) on the same day contrary to s 86(3) of the Crimes Act. 2. The applicant has been refused bail since his arrest on 29 August 2022. Following two unsuccessful applications for bail in the Local Court, a release application was heard by Wilson J on 2 February 2023, with judgment reserved. Her Honour refused bail on 10 February 2023 (see Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 ('Zahed')). This Court's jurisdiction to hear the release application is founded on s 67(1)(e) of the Bail Act 2013 (NSW), as a bail decision has been made by the Supreme Court. 3. There are two co-accused, namely Abdul Zahed (the applicant's brother, charged with murder and specially aggravated kidnapping) and Triantafolis Vlangos (charged with accessory after the fact to murder). 4. These are our reasons for refusing bail: Legal principle 1. The relevant legal principles were recently summarised in D108 v R [2023] NSWCCA 28 by Beech-Jones CJ at CL at [28]: "The interrelationship between the necessity to show cause and the demonstration of the existence of unacceptable risk of a bail concern materialising was outlined in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 ("Tikomaimaleya"). It suffices to state that, where the show cause test applies, the Court must apply a two-stage test. The first is to determine whether or not the accused person has shown cause "why his or her detention is not justified" (s 16A(1)). The second stage arises if cause is shown, as the court must then assess whether or not the person's release raises any bail concerns (s 17(1); s 16A(2)) and, if so, determine whether there is an unacceptable risk of those concerns materialising (s 19). A bail concern is a concern that the person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence (s17(2) and s19(2)). In relation to the first stage, the justification or otherwise for a person's detention is to be determined by consideration of all the circumstances whereas the unacceptable risk test requires that consideration only be given to the factors in s 18 (Tikomaimaleya at [24]‑[26]), although it "may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test" (Tikomaimaleya at [24])." 1. In the present application, s 16A of the Bail Act applies to both charges. Murder, which is an offence punishable by imprisonment for life, is referred to in s 16B(1)(a), and s 16B(1)(h)(ii) applies to each charge as the applicant was on parole at the time of the alleged offending. The applicant must show cause why his detention is not justified before the unacceptable risk test is considered. Background 1. The proceedings against the applicant are presently in the Local Court as committal proceedings under Chapter 3 of the Criminal Procedure Act 1986 (NSW) ('the CPA'). A fundamental requirement of committal proceedings is the filing of a charge certificate setting out the offences that are to be proceeded with and the service of the charge certificate by the prosecutor on the accused person. [1] 2. Division 4 of Chapter 3 of the CPA makes provision for charge certificates. Of particular relevance to the applicant is s 66(2)(a), which imposes an obligation on the prosecutor to certify in the certificate that: "[T]he evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person." 1. The failure of the prosecutor to file and serve a charge certificate may result in the discharge of the accused person. Section 68 of the CPA is as follows: 68 Failure to file charge certificate (1) This section applies if the prosecutor fails to file and serve, or cause to be served, a charge certificate before— (a) the day that is 6 months after the first return date for a court attendance notice in the committal proceedings, or (b) any later day set by the Magistrate for doing those things. (2) The Magistrate must— (a) discharge the accused person as to any offence the subject of the committal proceedings, or (b) if the Magistrate thinks it appropriate in the circumstances of the case, adjourn the committal proceedings to a specified time and place. (3) In determining what action to take, the Magistrate is to consider the interests of justice. … 1. In the proceedings against the applicant, the Crown prosecutor has been unable to certify either of the charges and a charge certificate has not been filed. The Crown prosecutor's inability to certify the charge certificate arises from [REDACTED]. 2. [REDACTED]. 3. The Crown's position is that [REDACTED], the charge certificate cannot be certified. 4. Following an application by the Crown, the Local Court made orders pursuant to s 45(4) of the CC Act that [REDACTED]. The Magistrate's task is then to determine, after examining the evidence, whether "the interests of justice so require" that the evidence be made available to the applicant's lawyers and the Crown. 5. This Court was informed by the Crown that it is expected that the Magistrate will deliver a ruling in the first week of April 2023. 6. On 28 February 2023, Swain LCM extended the time for the charge certificate to be certified, filed, and served to 26 April 2023 pursuant to s 68(2)(b) of the CPA. 7. In the release application before Wilson J, the Crown emphasised the importance [REDACTED]: "[S]o far as we can tell, [REDACTED], as I frankly accepted in the submissions, we have no case." [2] Material tendered on behalf of the applicant 1. The applicant's tender bundle of 87 pages included proposed bail conditions, various affidavits, and medical material. Four affidavits were sworn by Mohammad Chahine, the applicant's solicitor. In an affidavit sworn on 12 September 2022, Mr Chahine refers to the applicant's multiple requests to see a doctor, for medical treatment and pain relief, which he states have been unanswered. 2. The bail conditions that were proposed included a surety of $800,000, electronic monitoring, residence at a specified address in Victoria, house arrest conditions, daily reporting, non-contact with witnesses, and non-association with "any known OMCG member or any OCN member". The statement of police facts 1. The statement of police facts ('SOF') served on the applicant is annexure 'B' to the affidavit of Alexandra Katherine Pearson, a solicitor employed in the Office of the Director of Public Prosecutions, which was read in the release application. Overview of the Crown case 1. The Crown, in written submissions in this Court, helpfully provided an overview of its circumstantial case. The overview refers to particular paragraphs of the SOF. The following is extracted from the Crown's written submissions: [REDACTED] The police brief 1. Ms Pearson's affidavit annexed material from the police brief of evidence. [REDACTED]. 2. [REDACTED]. Further material 1. Ms Pearson's affidavit included the applicant's criminal history (annexure 'F') and a letter from the officer in charge of the investigation, Detective Senior Constable Matthew Fitzgerald (annexure 'K'). 2. The applicant's prior criminal history as an adult includes a conviction in 2001 for the offence of maliciously causing a dog to inflict actual bodily harm, for which he was sentenced to 8 months' periodic detention. In 2001, he was also convicted and fined $400 for contravening an apprehended violence order. In 2004, he was sentenced to 5 years' imprisonment with a non-parole period of 3 years for maliciously inflicted grievous bodily harm. He was also sentenced to 2 years' imprisonment for the ongoing supply of prohibited drugs, with an offence of supply prohibited drug (indictable quantity and not cannabis) taken into account on a Form 1. 3. In 2011, the applicant was sentenced to 8 years' imprisonment with a non-parole period of 5 years for discharging a firearm with intent to cause grievous bodily harm. He was on parole for this offence at the time of the alleged murder. 4. In 2020, the applicant was sentenced to imprisonment for 20 months and 12 days with a non-parole period of 15 months and 9 days for dealing with property with a value of $100,000 suspected of being the proceeds of crime. He was sentenced concurrently to 16 months' imprisonment with a non-parole period of 12 months for wilfully making a false declaration. 5. In 2021, the applicant was sentenced to an 18 month community corrections order ('CCO') for doing an act intending to pervert the course of justice, which was varied on appeal to a 9 month CCO. 6. DSC Fitzgerald's letter records the strong opposition by police to the applicant's release application. He notes that the applicant has a lengthy criminal history and states that, at the time of the murder, the applicant was on parole. He further states: "[The applicant] has a long and ongoing involvement with the organised criminal group the Comancheros. [The applicant] is a high-ranking member of the Comancheros Organised Crime Motorcycle club and is well connected in this criminal network. [The applicant] is the National Sgt at Arms. [The applicant] is supported by criminal associates and family with access to funds which would allow [the applicant] to live abroad. This backing of financial support, coupled with the likelihood of an extended custodial sentence if convicted would make [the applicant] an extreme flight risk." [3] 1. Annexure 'L' to Ms Pearson's affidavit is a further statement from DSC Fitzgerald. He states that following the applicant's discharge from hospital on 20 June 2022, the applicant was driven to Mascot Airport where he was assisted onto a private plane and flown to Essendon Airport in Victoria. Relevant photographs were annexed to the statement. Serious Crime Prevention Orders 1. On 8 December 2021, N Adams J made a serious crime prevention order within the meaning of s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ('the CSCPO Act') in respect of the applicant. The Commissioner of Police had sought the orders which were initially opposed by the applicant but were resolved by way of consent orders. Her Honour, however, was independently satisfied of the matters in s 5(1) and made the orders sought. Her Honour referred at [10] to the evidence of the Comanchero OMCG and their members engaging "in the supply and distribution of prohibited drugs and the possession and use of firearms and other weapons", and to "an extensive documentary history of violence including shootings in public places". Her Honour's reasons for making the orders included the following 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 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." [4] The applicant's submissions 1. The central point of the applicant's argument was the lack of strength in the Crown case. In written submissions, the applicant submitted that the Crown case was "doomed to fail" and referred to the Crown's concession before Wilson J which has been quoted at [16] above. 2. The applicant submitted that significant portions of the SOF were mere conjecture for which there was no objective evidence [REDACTED]. 3. In oral submissions in this Court, Mr Lange, the applicant's counsel, contended that the Crown's overview of its case, with the possible exception of paragraph 'm', did not demonstrate that the applicant had a case to answer on the charges of murder and specially aggravated kidnapping. Mr Lange submitted that the Crown's case against the applicant was confined to an offence of being an accessory after the fact. 4. Whilst Mr Lange accepted that the SOF [REDACTED], he argued that there was neither evidence that was admissible, nor might become admissible against the applicant. He submitted that even if the material was [REDACTED]. 5. Mr Lange contended that [REDACTED] should not be taken into account as the [REDACTED] and, [REDACTED], the Crown had been unable to certify the charges. 6. Mr Lange emphasised that the common law does not sanction preventative detention. He submitted that the Court would not conclude that a person's detention is justified in circumstances where the prosecution concedes that there is no viable case but hopes that there may be at some future time. 7. The applicant also pointed to his medical condition and the nature of his custody as matters demonstrating that he had shown cause why his detention was not justified. The applicant submitted that his need for specialist medical attention because of the injuries he suffered as a victim of a shooting attack could not be met in custody. 8. The applicant further referred to his classification as an "Extreme High Risk" inmate, which he contended effectively meant that he was subject to solitary confinement with limited outside contact. 9. Another argument was that the applicant had complied with orders made under the CSCPO Act and these stringent conditions could be supplemented by the imposition of strict bail conditions. 10. The applicant submitted that, if cause had been shown, he did not pose an unacceptable risk. The availability of stringent bail conditions, supplementing orders under the CSCPO Act, as well as the applicant's need for medical treatment and his community ties, meant that he was unlikely to abscond. Finally, given the age of the offence and the absence of any eyewitness evidence of the assault of the deceased, it was submitted that there was very limited, if any, opportunity for the applicant to interfere with witnesses or evidence. The applicant also referred to the lack of a viable prosecution case of being of particular importance. 11. Mr Lange informed the Court that if the applicant was granted bail, he would be bailed to an address in New South Wales rather than the address in Victoria. The Crown's submissions 1. In written submissions, the Crown contended the applicant's argument that [REDACTED], the prosecution was "doomed to fail" proceeded upon the erroneous basis that for the matter to be certified and successfully prosecuted, it was necessary for the prosecution to obtain [REDACTED], referring to s 62(2) of the CPA. The Crown pointed out that the [REDACTED]. 2. The Crown submitted that its case was neither limited to the material summarised in the SOF, nor to the applicant's post-offence conduct. The Crown case was a circumstantial case of events prior to and after the shooting. Even after leaving aside entirely [REDACTED], the Crown argued that the Crown case was a viable circumstantial case for murder. 3. The Crown made concessions as [REDACTED]. In particular, the Crown accepted that the number plate of the vehicle could not be made out and there were no witnesses who identified the deceased's Volkswagen by registration number. 4. In oral submissions in this Court, Mr Scully, who appeared for the Crown, said that the charge certificate would not be certified on [REDACTED] alone. He submitted that if [REDACTED], there was a viable Crown case for murder. 5. Mr Scully referred to the Justice Health records and selected pages from the Justice Health and Forensic Mental Health Overview of Services. He submitted that the applicant had been seen regularly by doctors and nurses under the framework of Justice Health and there was no reason to conclude that his treatment was inadequate. 6. In relation to the nature of the applicant's custody, Mr Scully submitted that the applicant's custodial conditions reflected his classification as a high-risk inmate. It was further submitted that the orders made under the CSCPO Act did nothing to assist the applicant in showing cause. 7. The Crown submitted that if cause was shown, the applicant posed an unacceptable risk. Particular reference was made to the charge of murder, the applicant's extensive criminal history, his longstanding association and position of importance in the Comanchero OMCG, his continuing association with criminal associates, and access to funds which would allow him to live abroad. The Crown contended that in all the circumstances, bail conditions, no matter how stringent, could not address the risk the applicant poses if released. Consideration 1. The applicant relied upon the combination of the lack of strength of the prosecution case, his medical condition, the nature of his custody, and the orders made pursuant to the CSCPO Act to show cause why his detention was not justified. The primary focus of the applicant's argument was on the Crown case that was said to be "doomed to fail", as well as his medical condition. 2. Much of the applicant's submissions concerned the inadmissibility of evidence from witnesses upon whom the Crown would rely to establish the Crown case. This argument was misconceived. Section 31(1) of the Bail Act is as follows: 31 Rules of evidence do not apply (1) A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence. … 1. As s 31(1) makes clear, the admissibility of the evidence or information upon which the Crown relies is not the test in bail applications. The bail authority may take into account "any evidence or information that the bail authority considers credible or trustworthy in the circumstances". Any matter is to be decided on the balance of probabilities: s 32(1) of the Bail Act. The applicant bears the onus of proof. 2. As is often the case in bail applications, the SOF is a summary of information known to the police who prepared it. Mr Lange accepts that the [REDACTED]. 3. There is also evidence before this Court of the applicant's strong connections with an organised criminal group and his prior criminal history of violent offending. 4. All of these matters lead us to conclude on the balance of probabilities that the information in the SOF is both credible and trustworthy in the circumstances known to the Court. 5. There is nothing to suggest that annexure 'J' in the [REDACTED]. 6. Although we would reject the applicant's contention that the Crown case is "doomed to fail", we are unable to assess the Crown case as being strong. [REDACTED]. The concessions made by Mr Sully point to difficulties in the Crown's circumstantial case. Neither the number plate of the vehicle in the CCTV footage of similar appearance to the deceased's Volkswagen Touareg can be made out, nor are there witnesses who identify the deceased's vehicle by registration number. 7. Mr Scully submitted that there was a "viable" case for murder with which we would agree, but our assessment of the strength of the Crown case is no higher than that, particularly when the Crown prosecutor has been unable to certify the charge certificate. We do not know what the outcome will be of the Crown's application for access [REDACTED]. It appears that if the Crown's application is unsuccessful, the charge certificate will not be certified and a Magistrate will discharge the applicant as to the charge of murder. In these circumstances, we consider that cause has been shown. The applicant's medical history 1. There was a quantity of material relating to the applicant's medical condition provided by the applicant and the Crown. On 10 May 2022, the applicant was shot multiple times. He sustained small bowel wound injuries, a ruptured right eye, facial bone fractures, fractures to the left leg, and fractures to his right forearm. His operative treatment included the surgical removal of his right eye and the insertion of a rod and carpal plate in his right arm and hand. 2. In a report dated 14 November 2022, Dr Peter Lewis reported that the applicant's ongoing medical procedures included the removal of the metal rod, follow up of infection of right eye socket, fitting of right prosthesis, orthopaedic review of poor healing of left tibia, and ongoing physical rehabilitation of both legs and arms. 3. Dr Lewis opined that "[w]ithout these treatments, [the applicant's] physical function and health could deteriorate. More specifically, his right eye which has been infected will need prompt attention. Eye infections can lead to more severe disease, such as infectious encephalitis and meningitis, due to venous drainage behind the eye socket, into the cavernous sinus in the brain. Furthermore, delay in the fitting of the right eye prosthesis could lead to further scarring of the eye socket, which can subsequently cause more damage to the right eye." 4. It was the applicant's contention that whilst he has been in custody, he has not been seen by relevant specialists. He was arrested on 29 August 2022. The Crown's submission was that the applicant has been regularly seen by doctors and nurses under the framework of Justice Health and there was no reason to conclude that his treatment was inadequate. 5. Annexure 'N' to Ms Pearson's affidavit is a summary of the applicant's Justice Health Records from 29 August 2022 to 29 January 2023. It appears from these records that the applicant has been seen almost daily by either a clinical nurse specialist, a registered nurse, or enrolled nurse for "welfare checks". He has often been provided with medication for pain relief. He has also been seen by a specialist medical officer and an ophthalmology registrar. 6. The summary of the applicant's consultation with Dr Hampton, a specialist medical officer, on 11 October 2022 includes an assessment that the applicant's "enucleated eye needs follow-up" as did his "right arm and left leg", and a plan for a an "orthopaedic review left tibia and right wrist" and for "ophthalmology which will need oculoplastics". 7. Whilst he has been further seen by Dr Hampton and Dr Holmes, the ophthalmology registrar, it appears from the summary that the applicant continues to complain of pain in the right wrist and arm, and of problems with his eye socket. The summary of the applicant's consultation with Dr Holmes includes the applicant being referred to the "Eye Clinic at the Prince of Wales Hospital". It is unclear from the Justice Health records whether the applicant has been seen at the Eye Clinic. 8. A summary of a welfare check on 14 December 2022 includes "complains of the same pain… R) wrist/arm where there is a metal rod in arm… apparently supposed to be removed? Nerve pain?" Another summary on 20 January 2023 notes that "Chlorsig" was given. Mr Lange pointed out that Chlorsig was an antibiotic designed to counter eye infections which was a concern expressed by Dr Lewis. 9. It is normally the case, as Johnson J observed in R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152 at [126] that: "…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." 1. However, this is an exceptional case. The applicant entered into custody with serious continuing disabilities from his gunshot wounds. 2. We are satisfied that all of the applicant's health needs have not as yet been met by Justice Health and there remains the need for further specialist treatment, including the removal of the metal rod and the fitting of the right eye prosthesis. We are satisfied that the applicant's health needs are another reason for cause being shown. Unacceptable risk 1. We are satisfied that there is an unacceptable risk that if the applicant is released from custody, he will commit a serious offence. The combination of the applicant's prior history of serious offences, including violent offending and his seniority in the Comanchero OMCG, which has an extensive history of violent offending, creates a very real risk of the commission of serious offences: s 19(2)(b) Bail Act. 2. There is an unacceptable risk that the applicant will fail to appear at future proceedings. The prospect of a conviction of murder and of the imposition of a lengthy term of imprisonment provide an incentive to flee. The use of a private plane to fly the applicant to Victoria in June 2022 demonstrates that he has the connections and resources to enable him to leave Australia and live overseas: s 19(2)(a) Bail Act. 3. Furthermore, there is an unacceptable risk that the applicant might interfere with witnesses, even though the offence of murder is alleged to have been committed in 2014. [REDACTED]. We reach this conclusion by not only having regard to the applicant's prior criminal history of violent offending and longstanding association with the Comancheros OMCG, but also his conviction in 2021 for an offence of intending to pervert the course of justice: s 19(2)(d) Bail Act. 4. We do not consider that these unacceptable risks can be ameliorated by stringent bail conditions. 5. Accordingly, bail was refused. ********** Endnotes 1. Criminal Procedure Act, s 55(c). 2. Tcpt 2 February 2023, p 21(4). 3. Annexure 'K' at p 2. 4. Commissioner of Police, NSW Police Force v Zahed [2021] NSWSC 1606 at [34]-[35] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2024