R v Habambo [2023] NSWDC 295

District Court New South Wales

Medium Neutral Citation: R v Habambo [2023] NSWDC 295 Hearing dates: 1 August 2023 Date of orders: 2 August 2023 Decision date: 02 August 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application for bail granted. For orders and bail conditions see [51]. Catchwords: CRIME – Release application – Ex-tempore judgment. Legislation Cited: Bail Act 2013 Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Domestic and Personal Violence) Act 2007 Cases Cited: El-Hili and Melville v R [2015] NSWCCA 146 R v Naizmand [2016] NSWSC 386 R v Smith [2023] NSWSC 36 Category: Principal judgment Parties: George Habambo (Applicant) Director of Public Prosecutions (Crown) Representation: Counsel: J Korn briefed by Korn Tlais Defence Lawyers (Applicant) S Gul (Crown) File Number(s): 2020/304824 Publication restriction: Nil.

JUDGMENT 1. This is my judgment in the matter of George Habambo and Office of The Director of Public Prosecutions. The applicant by Notice of Motion filed on 15 June 2023, seeks the following prayer for relief in; "Order 1. That the applicant George Habambo be admitted to bail on such conditions as are agreed between the parties and ratified by the Court or as the Court determines." There are other prayers for relief which I do not need to rehearse here. 1. The applicant relies on an affidavit of his solicitor Abdul Tlais, sworn on 26 July 2023. That affidavit sets out the following background, namely that following a jury trial in this Court, the applicant was found guilty of 28 charges against a single complainant, his now former wife. The matters for which he was found guilty include nine counts of common assault pursuant to s 61 of the Crimes Act 1900, 15 counts of intimidation pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, one count of assault occasioning actual bodily harm pursuant to s 56(1) of the Crimes Act, one count of damage property pursuant s 195(1A) of the Crimes Act, one count of choke and render incapable of resistance pursuant to s 371 of the Crimes Act and one count of suffocate without consent pursuant to s 37(1A) of the Act. 2. Following his conviction on 17 February 2023, the applicant was sentenced to an aggregate term of imprisonment with a head sentence of 10 years and a non-parole period of six years. That sentence was in relation to 10 of the 28 counts for which he was found guilty. His earliest eligibility for release on parole will be 3 October 2028. 3. On 20 February 2023 a Notice of Intention to Appeal against both his conviction and sentence was filed and served. The affidavit then sets out the history of difficulties obtaining the transcript of the trial which took place over six weeks and comprised some 1,600 pages and took approximately eight months to be finalised and provided to the applicant's legal representatives. 4. The deponent then sets out information relating to the applicant's financial position as provided to him by the applicant, relating both to his financial situation prior to separation from his former wife and incarceration, and secondly, his financial position post separation and incarceration. 5. Mr Tlais deposes that prior to his separation, the applicant's financial position was such that he could service his creditors and provide financial assistance to his family and subsequently, he has had a property settlement with his former wife and has a number of creditors including his previous lawyers. He has deposed that the applicant's monthly expenses and legal fees have been paid by his family and partner since his incarceration, without setting out in any detail, what those expenses are. 6. The deponent also sets out that the applicant has been in regular contact with his previous employer TQUM Design and Construct and that is confirmed by Exhibit B which are two letters from a Mr Taouk, dated 4 October 2022 and 30 July 2023, in which the author sets out that his position is available to him if released on appeal bail. 7. Finally the affidavit annexes an advice letter from Mr Holt KC who is instructed to appear at the conviction appeal, dated 24 July 2023. In that letter the learned Kings Counsel sets out that he had settled four grounds of appeal against conviction which fell into two categories. The first relates to a set of text messages between the complainant and the applicant's sister, which were adduced into evidence and which counsel contends were obviously inadmissible contrary to s 76 of the Evidence Act and highly prejudicial to the accused at trial. They were characterised as being "weaponised" by the Crown (including having the complainant read out the opinions) and one of the messages is extracted. In learned Kings Counsel's assessment, the admission of this material led to a miscarriage of justice to which the proviso would be inapplicable and he opined that the ground has strong prospects on appeal. 8. The second set of grounds concern the trial judge preventing defence counsel from cross-examining the complainant about a series of text messages that she had written. These text messages were said to be critical to the defence case because they showed that the complainant was concerned not about any violence or abuse, but that the applicant was not providing well enough for her financially. The Crown objections to the content of the text messages were repeatedly upheld and learned Kings Counsel, stated; "I can discern no basis in law for defence counsel to have been so prevented, indeed the rulings prevented defence counsel from complying with his obligations in relation to such matters under s 43 of the Evidence Act. While the text messages were eventually admitted (two weeks later) the damage had been done. Mr Habambo suffered a profound forensic disadvantage by not being able to challenge the complainant with the actual words that she used." 1. In his opinion, this caused a miscarriage of justice of a kind to which the proviso would not apply and again he considered this ground of appeal to have strong prospects of success. 2. Exhibit A on the application was the applicant's submissions on appeal which comprised 45 pages. Mr Holt's submissions set out in detail the first two grounds of appeal, as referred to above, together with the second category of grounds comprising grounds 3 and 4. I do not intend to summarise counsel's submissions any further as the letter dated 24 July 2023 sets out his opinions. 3. As I have set out above, Exhibit B comprised two letters from the applicant's former employer, Mr Taouk dated 4 October 2022 and 30 July 2023. The Crown also relied on a bundle of documents which became Exhibits 1.1 to 1.6. Exhibit 1.1 set out a chronology of the offender's bail which demonstrated that he was first charged on 24 October 2020 and was granted conditional bail on 25 October 2020 with stringent conditions, including residential conditions, not to contact any prosecution witness, not to drink alcohol or take drugs and a surety of $20,000. The conditions were varied as to residents and reporting on three occasions until he was ultimately refused bail following the jury verdicts on 6 October 2022. 4. Exhibit 1.2 is a document headed Outcome Table which set out the various counts on the Indictment for which he was convicted and the various custodial and non-custodial sentences in respect of each count. I note that there were in the table provided the indicative sentences in respect of the ten offences for which he was ultimately sentenced to an aggregate sentence of ten years' imprisonment with a non-parole period of six years' imprisonment. The 18 remaining sentences comprised community correction orders of three years each, which are being served concurrently. 5. Exhibit 1.3 was a copy of the Indictment on which he was tried and Exhibit 1.4 was a document headed Facts to be Found on Sentence, which detailed the numerous occasions of what I generically refer to as domestic violence and intimidation offences and the facts on which he was sentenced. 6. Exhibit 1.5 is referred to as a bail report, but it is in fact the New South Wales Police Force Criminal History Record which establishes that he had no prior criminal history and Exhibit 1.6 was the applicant's custodial history which I note records no infractions and notes that he has positive work reports.