Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elomar, Ibrahim v Director of Public Prosecutions (Cth); Elomar, Mamdouh v Director of Public Prosecutions (Cth) [2015] NSWCCA 214 Hearing dates: 11 August 2015 Decision date: 11 August 2015 Before: Macfarlan JA at [1]; R A Hulme J at [2]; Garling J at [9] Decision: Bail variation granted Catchwords: BAIL – variation application – offences of conspiracy to cause a benefit to be paid to a foreign public official – variation sought to permit applicants to travel to certain countries - where applicants have legitimate and established business interests overseas - Crown concession that relaxation of overseas travel restriction is appropriate – variation application granted Legislation Cited: Criminal Code 1995 (Cth) Category: Principal judgment Parties: Ibrahim Elomar Mamdouh Elomar Director of Public Prosecutions (Cth) Representation: Counsel: Solicitors: Lawyers Corp Pty Limited Commonwealth Director of Public Prosecutions File Number(s): 2015/111437; 2015/111446 Judgment 1. MACFARLAN JA: I agree with R A Hulme J. 2. R A HULME J: Ibrahim Elomar and Mamdouh Elomar ("the applicants") have been charged with an offence contrary to ss 70.2 and 11.5(1) of the Criminal Code 1995 (Cth) of conspiracy to cause a benefit to be paid to a foreign public official. In short, it is alleged that they, and others, conspired to cause a substantial bribe to be paid to an unknown third party with the intention of influencing a public official (or public officials) in Iraq in order to secure construction contracts. 3. They were served with court attendance notices on 19 February 2015 and first appeared before the Downing Centre Local Court on 25 March 2015. Bail was granted by the Local Court on certain conditions, including that they surrender their passports and any other travel documents and not apply for any new passport or travel document. Another condition requires the provision of security in the sum of $10,000. 4. The applicants seek a variation of their bail conditions so as to permit them to travel overseas to certain nominated countries. 5. The Commonwealth Director of Public Prosecutions ("the DPP") concedes that the applicants have established and legitimate business interests in Australia and overseas. Ibrahim Elomar does not have any criminal history. Mamdouh Elomar has a criminal history but it is not of a nature that militates against him being on bail. 6. The DPP concedes that a relaxation of the restriction of overseas travel is appropriate in all the circumstances, bearing in mind the other conditions of bail, including an agreed variation of the security requirement to increase the sum in the case of each of the applicants to $2 million. 7. Having reviewed all of the material that has been placed before the Court I am of the view that the Crown's concession is reasonable and should be accepted. 8. There is some discrepancy between what the parties understand about some of the existing bail conditions and what is reflected in the computerised records of the Court (JusticeLink). For abundant caution, I propose that the bail be varied by deleting all present conditions and replacing them with the following: Ibrahim Elomar 1. To be of good behaviour. 2. To reside at [a specified address] except when overseas. 3. Not to associate or communicate by any means (except through his lawyer) with John Jousif, Wael Abdulameer Al Zubaidi, Giselle Abraham or any prosecution witness. 4. Not to travel overseas except to the following countries: Papua New Guinea; Indonesia; Singapore; Malaysia; Greece; China; Saudi Arabia or United Arab Emirates for the purposes of undertaking legitimate business activities and to such other countries as the Commonwealth Director of Public Prosecutions may approve from time to time. 5. To provide Federal Agent Martin Fryer with a copy of a travel itinerary including residential addresses overseas at least 14 days prior to any travel overseas. 6. The applicant is to deposit acceptable security as security for the payment of $2,000,000 which he agrees to forfeit if he fails to appear at court in accordance with his bail acknowledgements. Mamdouh Elomar 1. To be of good behaviour. 2. To reside at [a specified address] except when overseas. 3. Not to associate or communicate by any means (except through his lawyer) with John Jousif, Wael Abdulameer Al Zubaidi, Giselle Abraham or any prosecution witness. 4. Not to travel overseas except to the following countries: Papua New Guinea; Indonesia; Singapore; Lebanon; Malaysia; Greece; China; Saudi Arabia or United Arab Emirates for the purposes of undertaking legitimate business activities and to such other countries as the Commonwealth Director of Public Prosecutions may approve from time to time. 5. To provide Federal Agent Martin Fryer with a copy of a travel itinerary including residential addresses overseas at least 14 days prior to any travel overseas. 6. The applicant is to deposit acceptable security as security for the payment of $2,000,000 which he agrees to forfeit if he fails to appear at court in accordance with his bail acknowledgements. 1. GARLING J: I agree with R A Hulme J. 2. THE COURT: Subsequent to the making of the above orders it became apparent that each of the applicants were not in a position to comply with the requirement in Condition 6. A written request for an amendment of that condition was received together with a letter from the Commonwealth Director of Public Prosecutions indicating his consent. 3. The Court is of the view that the requested amendment should be made. Accordingly, on 21 August 2015 the members of the Court made an order that Condition 6 in the case of each of the applicants be varied so that it is in the following terms: "6. The applicant and/or an acceptable person is to deposit acceptable security for the payment of $2,000,000 which it is agreed be forfeited if the applicant fails to appear at court in accordance with his bail acknowledgements." ********** Amendments 21 August 2015 - Orders subsequently varied by consent 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: 21 August 2015