Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zahed v Director of Public Prosecutions [2023] NSWCCA 310 Hearing dates: 17 November 2023 Date of orders: 17 November 2023 Decision date: 08 December 2023 Before: Mitchelmore JA, Cavanagh and Weinstein JJ Decision: (1) Bail is refused. (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: (a) Any information that identifies or tends to identify the deceased's wife as referred to in the Crown Case Statement, including the contents of any paragraph that relates to the deceased's wife within the Crown Case Statement; (b) Any information that identifies or tends to identify "Male A" referred to in the Crown Case Statement, including the contents of any paragraph that relates to Male A within the Crown Case Statement; and (c) Any information that identifies or tends to identify "Male B" referred to in the Crown Case Statement, including the contents of any paragraph that relates to Male B within the Crown Case Statement. (3) Pursuant to ss 10 and 11 of the Act, Order 2 is to apply throughout the Commonwealth of Australia for 60 years, or: (a) In respect of Order 2(a), the lifetime of the deceased's wife, whichever date is the latter, (b) In respect of Order 2(b), the lifetime of Male A, whichever date is the latter; and (c) In respect of Order 2(c), the lifetime of Male B, whichever date is the latter. (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. Catchwords: CRIMINAL LAW – bail – release application – whether the identified unacceptable risks can be mitigated – not satisfied that any conditions can reasonably be imposed to mitigate the unacceptable risks – bail refused Legislation Cited: Bail Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Cases Cited: Commissioner of Police, NSW Police Force v Zahed [2021] NSWC 1606 D108 v R [2023] NSWCCA 28 R v Lago [2014] NSWSC 660 Raad v R [2015] NSWSC 532 Zahed v Director of Public Prosecutions (NSW) [2020] NSWCCA 6 Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 75 Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 807 Zahed v R [2023] NSWCCA 86 Category: Principal judgment Parties: Tarek Zahed (Applicant) Rex (Crown) Representation: Counsel: D Scully SC (Crown) Solicitors: M Ayache (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2023/327716 Publication restriction: See Orders 2-4 HEADNOTE [This headnote is not to be read as part of the judgment] On 29 August 2022, Tarek Zahed was arrested and charged with kidnapping and murder. He has been in custody ever since and his trial is listed to commence on 5 February 2024. On 17 November 2023, he applied for release to bail. This was his sixth application for bail, and he had been bail refused on five occasions. The Crown conceded that there were grounds for a further release application satisfying s 74(3) of the Bail Act 2013 (NSW) (Bail Act) because pertinent new material had been tendered since the time of his last release application. The Crown also conceded that cause had been shown pursuant to s 16A of the Bail Act due to a combination of factors, including Mr Zahed's health needs. Thus, the only issue that was before the Court was whether or not any unacceptable risks could be mitigated by the bail proposal: see s 19(3) of the Bail Act. The Court (Mitchelmore JA, Cavanagh and Weinstein JJ) held, refusing bail: As to unacceptable risks: 1. The Crown properly identified the bail concerns in this matter, being the failure to appear at any proceedings; the commission of a serious offence; and the interference with a witness or evidence: [25]-[26] per the Court. 2. There is an unacceptable risk that the applicant, if released from custody, would fail to appear at the proceedings for the offence, commit a serious offence and interfere with witnesses and evidence: [52] per the Court. JUDGMENT 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. 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. 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. 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. 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. 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. The following exhibits were tendered on the application: 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. 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. 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. 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: 49 Accused person may make release application (1) A person accused of an offence may apply to a court or authorised justice for bail for the offence to be granted or dispensed with. (2) An application under this section is a release application. (3) A court or authorised justice may, after hearing the release application— (a) dispense with bail, or (b) grant bail (with or without the imposition of bail conditions), or (c) refuse bail. (4) If a bail decision has already been made, a court or authorised justice may, after hearing the release application— (a) affirm the bail decision, or (b) vary the bail decision. 1. The power of this Court to hear a bail application is provided for at s 67(1)(e) of the Bail Act: 67 Powers specific to Court of Criminal Appeal (1) The Court of Criminal Appeal may hear a bail application for an offence if— … (e) a bail decision has been made by the Land and Environment Court or the Supreme Court. 1. The application before this Court is a fresh application, and was heard de novo: see s 75 of the Bail Act. 2. Section 31 of the Bail Act provides: 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. (2) This section does not apply— (a) to proceedings for an offence in relation to bail, or (b) to proceedings under Schedule 2 (Forfeiture of security). 1. 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. 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: (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. … (3) For the purposes of this section, the grounds for a further release application are— (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence. 1. 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. 2. 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. Section 16A of the Bail Act provides: 16A Accused person to show cause for certain serious offences (1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. (2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test—all offences). (3) This section does not apply if the accused person was under the age of 18 years at the time of the offence. 1. 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]: "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. 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. 2. 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. 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. 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. Section 17 of the Bail Act provides: 17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will— (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. (3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision. (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement). 1. Section 19 of the Bail Act provides: 19 Refusal of bail—unacceptable risk (1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk. (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will— (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. (3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk. (4) Bail cannot be refused for an offence for which there is a right to release under Division 2A. 1. The Crown opposed bail and identified the following bail concerns pursuant to s 17(2) of the Bail Act: 1. failure to appear at any proceedings for the offence (s 17(2)(a)); 2. commit a serious offence (s 17(2)(b)); and 3. interfere with witnesses or evidence (s 17(2)(d)). 1. 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]. 2. 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: 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division— (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction), (f) whether the accused person has a history of compliance or non-compliance with any of the following— (i) bail acknowledgments, (ii) bail conditions, (iii) apprehended violence orders, (iv) parole orders, (v) home detention orders, good behaviour bonds or community service orders, (vi) intensive correction orders, (vii) community correction orders, (viii) conditional release orders, (ix) non-association and place restriction orders, (x) supervision orders, (f1) if the bail authority is making the assessment of bail concerns because the accused person has failed or was about to fail to comply with a bail acknowledgment or a bail condition, any warnings issued to the accused person by police officers or bail authorities regarding non-compliance with bail acknowledgments or bail conditions, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (i1) if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed, (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A, (q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code), (r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism, (s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism. Crown's submissions 1. The Crown relied upon its submissions in the second SC application as to unacceptable risk. It submitted generally that: 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. the applicant's criminal history includes offences of violence and breaches of court orders (relevant to s 17(2)(b)); 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. 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. 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)). 1. 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. 2. 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. 3. 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. 4. Mr Scully submitted that there were no conditions which could mitigate the identified unacceptable risks. Applicant's submissions 1. 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. 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. 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. 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. 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. 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. (a) the accused person's background, including criminal history, circumstances and community ties 1. 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. (b) the nature and seriousness of the offence 1. The applicant has been charged, inter alia, with murder which is the most serious crime on the criminal calendar. (c) the strength of the prosecution case 1. 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. (d) whether the accused person has a history of violence 1. 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. (f) whether the accused person has a history of compliance or non-compliance with any of the following— (i) bail acknowledgments, (ii) bail conditions, (iii) apprehended violence orders, (iv) parole orders, (v) home detention orders, good behaviour bonds or community service orders, (vi) intensive correction orders, (vii) community correction orders, (viii) conditional release orders, (ix) non-association and place restriction orders, (x) supervision orders 1. 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. (g) whether the accused person has any criminal associations 1. Credible information establishes that the applicant is the sergeant at arms of an OMCG. (h) the length of time the accused person is likely to spend in custody if bail is refused 1. The applicant has been in custody since 29 August 2022. His trial is to commence in less than three months on 5 February 2024. (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence 1. In our view, there is no doubt that a lengthy custodial sentence will be imposed if the applicant is convicted. (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment 1. 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. (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice 1. 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. (m) the need for the accused person to be free for any other lawful reason 1. There is no need for the applicant to be free for any other lawful reason. (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A 1. 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. 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. We therefore dismissed the application and refused bail. 3. Accordingly, on 17 November 2023 the Court made the following orders: 1. Bail is refused. 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: 1. Any information that identifies or tends to identify the deceased's wife as referred to in the Crown Case Statement, including the contents of any paragraph that relates to the deceased's wife within the Crown Case Statement; 2. Any information that identifies or tends to identify "Male A" referred to in the Crown Case Statement, including the contents of any paragraph that relates to Male A within the Crown Case Statement; and 3. Any information that identifies or tends to identify "Male B" referred to in the Crown Case Statement, including the contents of any paragraph that relates to Male B within the Crown Case Statement. 1. Pursuant to ss 10 and 11 of the Act, Order 2 is to apply throughout the Commonwealth of Australia for 60 years, or: 1. In respect of Order 2(a), the lifetime of the deceased's wife, whichever date is the latter, 2. In respect of Order 2(b), the lifetime of Male A, whichever date is the latter; and 3. In respect of Order 2(c), the lifetime of Male B, whichever date is the latter. 1. 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. ********** 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