R v Sarkhel ROKHZAYI [2014] NSWSC 958

Supreme Court New South Wales

Medium Neutral Citation: R v Sarkhel ROKHZAYI [2014] NSWSC 958 Hearing dates: 11 July 2014 Decision date: 11 July 2014 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: Bail refused. Catchwords: Bail - detention application - Bail Act 2013 (NSW) s 50(1) - revocation of bail - whether bail refusal under Bail Act 1978 constitutes a bail decision under Bail Act 2013 - relevance of Crown case and nature of offences to risk assessment - alleged involvement in organised criminal activity - bail refused. Legislation Cited: - Bail Act 1978 (NSW), s 8B - Bail Act 2013 (NSW), Sch 3, s 17, s 20, s 50, s 69, s 74, s 75 - Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 Cases Cited: - R v Sarkhel Rokhzayi (Supreme Court (NSW), Fullerton J, 19 December 2013, unrep) Category: Principal judgment Parties: Crown (Applicant) Sarkel Rokhzayi (Respondent) Representation: Counsel: W.P. Brewer (Applicant) S. Herbert (Respondent) Solicitors: Director of Public Prosecutions (Applicant) File Number(s): 2014/148577 Publication restriction: Nil, but note that this decision will be removed from Caselaw well prior to any trial of the respondent.

ex tempore Judgment

Application for revocation of bail 1This is an application by the Director of Public Prosecutions pursuant to s 50(1) of the Bail Act 2013 (NSW) (the "Act") for the revocation of the respondent's bail.

History and nature of the application 2On 7 November 2013 the respondent, Sarkhel Rokhzayi, was charged with seventeen offences, the details of which I will shortly outline. He was initially refused bail. However, on 11 December 2013 he was granted conditional bail by the Local Court. The Director applied to this Court to review that decision. On 19 December 2013 Fullerton J heard that application and ordered that bail be refused (R v Sarkel Rokhzayi (Supreme Court (NSW), Fullerton J, 19 December 2013, unrep)). In doing so, her Honour held that the respondent had not rebutted the presumption against bail that was found in the former s 8B of the Bail Act 1978 (NSW). 3With effect from 21 May 2014, the Act came into force. On 25 June 2014 the Local Court heard and allowed a "release application" made on behalf of the respondent under the Act. 4On 27 June 2014 the Director gave notice of his intention to apply for a detention application. The matter was listed before me on Tuesday, 8 July 2014. On that day the solicitor for the respondent applied for an adjournment, as counsel who had been retained in the matter for some time was not available. I indicated that the Court would list the matter the next day, on 9 July 2014, but I was advised that counsel was engaged at the critical point of a jury trial. Instead, to accommodate both the respondent's counsel and the understandable desire of the Director that the matter be dealt with expeditiously, the matter was fixed before me this afternoon. 5Section 69 of the Act imposes restrictions on, inter alia, the Local Court when hearing a bail application in circumstances where a "bail decision" had previously been made by the Supreme Court. One such restriction is the requirement for the Local Court to be "satisfied that special facts and special circumstances justify the hearing of a bail application" (s 69(1)(c)). It is unclear whether the Local Court regarded itself as constrained by that provision. I doubt that it was. 6The transitional provisions in schedule 3 of the Act do not appear to have the effect of deeming a decision made by this Court to revoke or refuse bail under the Bail Act 1978 to be a "bail decision" within the meaning of s 8 of the Act. 7Of course, in many cases s 74 of the Act may preclude the re-agitation of bail decisions made under the Bail Act 1978 (see cl 9 of schedule 3 of the Act). However, s 74(1) had no application to the Local Court in this case because that court was not hearing a release application in circumstances where that same court had previously refused bail for the offences in question. 8It is unnecessary to consider this further because, in hearing this application, s 75 of the Act stipulates that it is to be by way of a "new hearing". Further, subsection 74(1) has no application to this matter because this Court is not hearing a "release application". Subsection 74(2) has no application because this Court has not previously granted or dispensed with bail, or affirmed any decision to this effect. 9The end result is that this Court must consider the respondent's bail status afresh.