New South Wales Supreme Court CITATION : R v Ibrahim [2009] NSWSC 1181 HEARING DATE(S) : 22 October 2009, 23 October 2009, 27 October 2009, 30 October 2009 JUDGMENT DATE : 3 November 2009 JUDGMENT OF : Johnson J at 1 DECISION : Conditional bail granted. CATCHWORDS : CRIMINAL LAW - bail - conspiracy to murder - significant medical treatment requirements of applicant - Crown not oppose bail - stringent bail conditions proposed - bail granted LEGISLATION CITED : Bail Act 1978 CATEGORY : Principal judgment PARTIES : Fadi Ibrahim (Applicant) Regina (Respondent) FILE NUMBER(S) : SC 2009/213165 SOLICITORS : Mr B Galloway - Galloways Solicitors & Attorneys (Applicant) Ms N Paul - Director of Public Prosecutions (NSW) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 3 November 2009 2009/213165 R v Fadi Ibrahim JUDGMENT (Application for Bail) Video Link from Long Bay Hospital 1 JOHNSON J: This is an application for bail by Fadi Ibrahim, who is to appear at Central Local Court on 26 November 2009 with respect to a charge of conspiracy to murder. 2 As s.9 Bail Act 1978 does not apply to a charge of conspiracy to murder, there is no presumption in favour of bail: s.9(1)(c). In addition, there is no presumption in favour of bail as the Applicant is charged with an indictable offence and has previously been convicted of an indictable offence: s.9B(3) Bail Act 1978. Accordingly, there is no presumption for or against the grant of bail in this case. 3 The hearing of this application extended over parts of several hearing days - 22, 23, 27 and 30 October 2009. Oral and documentary evidence was adduced, with particular reference to the Applicant's state of health and the medical treatment which had been provided to him in custody, and which would be available in the event that he remained in custody. The 5 June 2009 Attack 4 The Applicant is 35 years old. On the evening of 5 June 2009, the Applicant was attacked outside his home at Castle Cove and suffered five gunshot wounds, two to the right chest, two to the right arm and one to the right shoulder. He was conveyed to the Royal North Shore Hospital where he received emergency treatment. The medical evidence before the Court indicates that the Applicant received life-threatening injuries requiring surgical intervention. 5 The Applicant remained in hospital until 29 June 2009. During that period, he underwent a total gastrectomy (removal of his whole stomach) and a partial esophagectomy (removal of part of the oesophagus), repair and patching of the right axillary artery and open reduction and internal fixation of the right clavicle. The Alleged Offence 6 The charge against the Applicant alleges a conspiracy between the Applicant, his younger brother Michael Ibrahim, Rodney Atkinson, Amerigo Gerace and Jim Said Habkouk to murder John Macris. The prosecution alleges that the motive for this conspiracy was mainly in retaliation for the attempted murder of the Applicant on 5 June 2009. 7 The case against the Applicant is dependent upon telephone intercept material, and inferences which the Crown submits can be drawn from visits by alleged co-conspirators to Michael Ibrahim at Broken Hill Gaol, and telephone contact between the alleged co-conspirators thereafter. 8 I note that John Macris has not been charged with any offence relating to the attempted murder of the Applicant on 5 June 2009. 9 The Crown alleges that Mr Atkinson visited Michael Ibrahim at Broken Hill Gaol on 5 July 2009 and that the origin of the plan to murder Mr Macris arose at this time. It is alleged that a mobile telephone has been smuggled illegally to Michael Ibrahim inside Broken Hill Gaol. 10 The Crown alleges that between 10 July 2009 and 24 September 2009, a number of intercepted calls indicated that Michael Ibrahim was attempting to ascertain an address for Mr Macris, and other information, from a number of different people. 11 On 29 August 2009, the Applicant, Mr Gerace and a number of other persons are said to have travelled to Broken Hill Gaol and visited Michael Ibrahim. 12 The prosecution relies upon two telephone conversations between Michael Ibrahim and the Applicant on 9 and 10 September 2009. In neither conversation does the Applicant say words which refer to Mr Macris. The prosecution will contend that inferences can be drawn adverse to the Applicant, but this process will depend upon the totality of the evidence and what can be inferred from it. The prosecution contends that the Applicant arranged for a photograph of Mr Macris to be provided to Mr Atkinson. 13 Other telephone calls were intercepted on the evening of 10 September 2009, including a call where it is alleged that Mr Atkinson was contacted by Mr Habkouk using the same mobile telephone used previously by the Applicant and that, during this call, Mr Habkouk arranged to meet with Mr Atkinson. 14 The Crown alleges that further calls were intercepted between 11 and 23 September 2009. On 23 September 2009, an intercept call identified that a pistol was being delivered to Mr Atkinson that night. 15 On 24 September 2009, a search warrant was executed on Mr Atkinson's home. Police located a .22 Ruger semi-automatic pistol fitted with a suppressor and silencer hidden inside a kitchen cupboard, and a box of ammunition and a holster for the firearm were located on the floor of a bedroom. Located above a cupboard in the kitchen was a black bag containing two photographs of Mr Macris, an address for Mr Macris, two car registration numbers and a loaded .45 calibre semi-automatic pistol, together with a NSW Police identification badge and warrant card. The address that was supplied for Mr Macris was that of a nearby neighbour and not the actual residence of Mr Macris. 16 It is the prosecution case that the conversations between the accused persons demonstrate that a conspiracy existed to murder Mr Macris from 5 July 2009, and that this was only terminated by the intervention of police. It is said that police were forced to act on the information that was available on 24 September 2009, when it became apparent that Mr Atkinson had obtained a firearm and that a wrong address for Mr Macris had been supplied. 17 The items located inside Mr Atkinson's premises have been subjected to ballistic and fingerprint testing. Detective Sergeant Abdy of the Middle Eastern Organised Crime Squad gave evidence that the photographs were found to carry the fingerprints of Mr Atkinson and other persons yet to be identified, but that the Applicant's fingerprints were not found on the photographs. The Applicant's Health 18 The Applicant was arrested on 24 September 2009 and has been in custody since then. A range of information was provided at that time to custodial authorities concerning the Applicant's state of health, his medication and diet and treatment requirements arising from the significant injuries which he sustained on 5 June 2009. 19 The present application came before this Court on 22 October 2009. A substantial volume of medical evidence was tendered on the application. This included a report dated 19 October 2009 of Dr Steven Leibman, surgeon, who performed emergency surgery on the Applicant at the Royal North Shore Hospital, a report dated 15 October 2009 from Dr Rodney Lane, vascular surgeon, who treated the Applicant in hospital, a report dated 18 October 2009 from Dr Richard Lawson, surgeon, who examined the Applicant in his capacity as a brachial plexus and peripheral nerve surgeon and a report from Dr Ashraf Aboud, the Applicant's general practitioner. 20 These reports concerned the surgical and other medical intervention required whilst the Applicant was an inpatient, and the range of treatments provided to and proposed for the Applicant in the community. These included the use of strong analgesics for continuing pain, a special diet required as a result of the effective removal of the Applicant's stomach, physiotherapy and psychiatric and psychological review for anxiety and possible post-traumatic stress disorder. 21 The Applicant had been transferred from the MRRC, Silverwater to the Goulburn Correctional Centre on 12 October 2009. The evidence then available (on 22 October 2009) indicated that limited action had been taken by Justice Health to assess and treat the Applicant's medical conditions whilst in custody. A real question also arose, on the evidence, as to whether necessary medical and associated treatment could be provided whilst the Applicant was housed at Goulburn Correctional Centre. 22 To allow the Court to have a proper and complete understanding of steps which had been taken by Justice Health concerning the Applicant, orders were made which saw the production of documents on 23 October 2009 and the attendance on that day of Dr Stephen Hampton, the Acting Clinical Director for Primary and Women's Health with Justice Health. The Court is grateful for the assistance provided by Dr Hampton in attending to give evidence on 23 and 30 October 2009, and in undertaking a range of tasks between those two dates concerning the Applicant. 23 It is not necessary to recite in detail in this judgment the steps taken by Justice Health concerning the Applicant between 24 September and 23 October 2009. I note that, on 24 October 2009, the Applicant was transferred from Goulburn to the MRRC. On 27 October 2009, Dr Hampton spoke to the Applicant at the MRRC and developed a plan for his care and treatment should he remain in custody. 24 The Applicant was transferred to Long Bay Hospital on 28 October 2009 and has remained there since. It is apparent, from the evidence, that Long Bay Hospital is the only satisfactory location where the Applicant could be housed in custody, given his current treatment needs and those which can be reasonably anticipated for the foreseeable future. 25 In a report dated 28 October 2009, Dr Hampton addressed a number of issues including the Applicant's diet, need for physiotherapy, follow-up specialist appointments, pain management and psychiatric assistance. 26 The involvement of Dr Hampton has assisted the Court in forming a realistic view of the ability of the Applicant's medical issues being managed properly in custody. Although concerns arise from the state of affairs which presented as at 22 October 2009, I am satisfied that an adequate, but not ideal, regime could be put in place to accommodate the Applicant in custody, at least whilst he was housed at Long Bay Hospital. However, any treatment organised by Justice Health outside the prison system could only be provided through the public health system, with the associated inevitable delays which would result in that respect. If the Applicant was at liberty on bail, however, he would be able to undertake medical treatment as a private patient. Apparently, this is not possible for persons in custody. 27 There is no doubt that the medical needs of the Applicant would place considerable demands upon the resources of Justice Health should he remain in custody. Treatment and assessment would be required both inside and outside the prison. There would be ongoing special dietary needs, and the necessity for physiotherapy, as well as ongoing pain management issues. There has been debate during the hearing concerning the identity of appropriate analgesics for use by the Applicant, and the potential difficulties arising from use of methadone, as opposed to other strong medication prescribed for him before he entered custody. I note that the use of methadone was foreshadowed for the Applicant in custody, but that this has not eventuated pending determination of the present application. Submissions of the Parties 28 Mr Galloway, for the Applicant, submitted that conditional bail ought be granted upon stringent conditions, which would ensure attendance of the Applicant at Court and protect the community, whilst at the same time ensuring that the interests of the Applicant in obtaining appropriate medical assistance could be met in the community. 29 Mr Galloway submitted that the case against the Applicant was a weak one, being essentially a circumstantial case, involving inferences which the prosecution said could be drawn from telephone conversations. He emphasised the limited number of telephone conversations involving the Applicant as a participant. 30 In addition, Mr Galloway pointed to the significant delay which would arise given the length of time required by the prosecution to prepare its brief. He submitted that it was not likely that committal proceedings would take place until 2010, with any trial unlikely to take place until late 2010 at best. 31 In closing submissions on 30 October 2009 (T101-105), the Crown did not oppose the grant of bail to the Applicant. The Crown accepted that the Applicant's medical condition constituted an unusual circumstance which assisted him on the application. 32 With respect to the strength of the prosecution case, although it was disputed that this was a weak Crown case, the Crown acknowledged that, on the available evidence, the role of the Applicant was more limited than the alleged co-offenders. 33 The Crown did not submit that the Applicant would not appear at Court if granted bail, and did not submit that there was a risk of further offences which ought lead to the Applicant being refused bail. 34 The Court was informed that it was the Crown's considered position, at the end of the hearing, that bail was not opposed and that it was appropriate for bail to be granted in this case upon the stringent conditions proposed as part of the application. 35 Accordingly, at the end of the hearing, both the Applicant and the Crown submitted that it was appropriate to grant the Applicant conditional bail in the terms proposed by the Applicant. I have regard to the fact that it is the Crown's considered submission, at the end of the hearing which spread over several days between 22 and 30 October 2009, that bail ought be granted to the Applicant. This is not a case where the Crown has rushed to form a view with respect to bail, so that the Crown submission ought be approached in a qualified way. 36 Bail applications in this Court proceed upon the basis of the Court receiving summary material from the Crown concerning the nature and strength of the prosecution case, the risk of commission of further offences if bail is granted and the risk of flight. It is the police and the Crown who have a detailed understanding of the available evidence which serves to inform the Crown position with respect to bail. Where the Crown has reached a considered view that it is appropriate that bail ought be granted, this Court should be loathe to reach a different view. Factors Under s.32 Bail Act 1978 37 I should record a number of specific matters under s.32 Bail Act 1978 which bear upon the application. 38 With respect to the probability of the Applicant appearing in Court in answer to the charge, the evidence reveals that the Applicant has significant community ties. He has a prior criminal history, but there is no record of failing to appear. The material indicates a failure to report on one occasion in September 2004, with the Applicant said to have reported the next day and with no subsequent action being taken against him. The Crown did not dispute this account. 39 The charge against the Applicant is a serious one. I do not accept that it can be properly characterised as a weak Crown case, although it is apparent that the prosecution case will depend upon a series of inferences being drawn to implicate the Applicant. If convicted, a substantial custodial sentence would be likely, given the maximum penalty of imprisonment for 25 years and a standard non-parole period of seven years. 40 The range of factors bearing upon the probability of the Applicant appearing in Court, for the purpose of s.32(1)(a) of the Act, have led the Crown to form the view that bail should not be opposed. I see no reason to reject the Crown's approach on this aspect. 41 The medical needs of the Applicant bear heavily upon his interests to be considered for the purpose of s.32(1)(b) of the Act. Both the Applicant and the Crown pointed to the period the Applicant would be obliged to spend in custody, and the conditions under which he would be held in custody, with the potential for adverse health outcomes for him (s.32(1)(b)(i)). Reliance was placed by the Applicant upon the need to be free to prepare for his appearance in Court at future proceedings: s.32(1)(b)(ii). These features operate in favour of the Applicant. 42 With respect to the protection and welfare of the community (s.32(1)(c)), I have already referred to the submissions of the Applicant and the Crown concerning the risk of further offences if the Applicant was released on bail. The Crown does not contend that this is an impediment to the grant of bail. 43 There is no presumption for or against the grant of bail. In the circumstances of the case, the Crown has acknowledged that it is appropriate to grant bail, having regard to the accumulation of circumstances, including the Applicant's significant medical requirements and the stringent conditions proposed for bail. Having regard to the totality of the evidence and the Crown concession, I propose to grant the Applicant conditional bail. Proposed Bail Conditions 44 The bail conditions proposed for the Applicant are indeed stringent. They include: (a) a daily reporting condition; (b) a residential condition; (c) a curfew condition; (d) the requirement that an acceptable person provides security in the sum of $1 million, to be forfeited in the event that the Applicant fails to comply with his bail undertaking; (e) the requirement that the Applicant surrender his passport and not attend or enter points of international or interstate departure; (f) a condition that the Applicant not approach or contact any Crown witness, including John Macris, except in specified conditions; (g) the requirement that the Applicant not contact or associate with any alleged co-offender. 45 It will be a matter for the authorised Justice, before whom the bail undertaking is entered, to determine whether the proposed acceptable person is appropriate, and whether the form of security which is offered is appropriate and acceptable to the Court. 46 I propose to vary the wording of some of the proposed conditions so as to give them greater clarity. Orders 47 Bail is granted to the Applicant subject to the following conditions: (a) That the Applicant enters into an agreement to observe the following requirements as to his conduct whilst at liberty on bail: (i) He is to appear at Central Local Court on 26 November 2009 and at such time and place thereafter as required. (ii) He is to reside at 3 Neerim Road, Castle Cove in the State of New South Wales. (iii) He is to report to the officer-in-charge of the Police Station at Chatswood daily between the hours of 8.00 am and 8.00 pm. (iv) One acceptable person is to enter into an agreement, with security, to forfeit the sum of $1 million if the Applicant fails to comply with his bail undertaking. It will be a matter for the authorised person under the Bail Act 1978 to determine the suitability of the proposed acceptable person, and the nature and form of security which is offered in accordance with this condition. (v) He is to surrender his passport to the authorised person who admits him to bail, and is to give an undertaking in writing that he will not apply for a new passport or any form of travel documents, throughout his entire bail period. (vi) He is not to go within 500 metres of any airport or recognised point of overseas departure. (vii) He is not to go within 500 metres of any airport or recognised point of interstate departure. (viii) He is not to contact, directly or indirectly, or otherwise associate with his alleged co-offenders, Michael Ibrahim, Rodney Atkinson, Amerigo Gerace or Jim Said Habkouk. (ix) He is not to contact, directly or indirectly, or approach or cause any third party to approach the alleged victim, John Macris, or any other witnesses which the Crown proposes to call, save through his legal representatives, and only after written notice has been given to the solicitor with carriage of the matter at the Director of Public Prosecutions. (x) He is to be subject to a curfew and is not to be absent from the premises at 3 Neerim Avenue, Castle Cove between the hours of 8.30 pm and 6.00 am each day, and is to present himself at the front door of the premises in the event of a police curfew check. (xi) He is to be of good behaviour in all respects throughout the period of his liberty on bail. (b) Bail is to be automatically revoked in the event of any breach of any one of these conditions, and the Applicant may thereupon be arrested by any police officer. (c) Bail may be entered into before any person authorised under the Bail Act 1978. ********** 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. 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