Supreme Court New South Wales Medium Neutral Citation: R v Elzamtar [2017] NSWSC 275 Hearing dates: 16 March 2017 Date of orders: 21 March 2017 Decision date: 21 March 2017 Jurisdiction: Common Law Before: Harrison J Decision: Conditional bail granted Catchwords: BAIL – show cause – whether unacceptable risks – conditions imposed Legislation Cited: Bail Act 2013 Firearms Act 1996 Category: Principal judgment Parties: Bilal Elzamtar (Applicant) Crown (Respondent) Representation: Counsel: A Chhabra (Applicant) Solicitors: Hanna Legal (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2017/46873 Publication restriction: Nil Judgment 1. HIS HONOUR: Bilal Elzamtar applies for bail. He has been in custody bail refused since the date of his arrest on 14 November 2016. He was charged on that day with a series of offences including contravening an apprehended domestic violence order, stalking and intimidating, two counts of possessing a prohibited weapon and of doing so contrary to a prohibition order. I am informed that these matters are next listed before the Burwood Local Court on 29 March 2017. 2. Mr Elzamtar is charged with a "show cause" offence because he is charged with a serious indictable offence that was allegedly committed while he was on parole. Mr Elzamtar is in fact currently serving the balance of his parole until 26 January 2019 on charges of robbery whilst armed with a dangerous weapon, possessing an unauthorised firearm, possessing ammunition without a permit and concealing a serious indictable offence. He was originally sentenced on these matters to imprisonment for 6 years from 26 January 2013 with a non-parole period of 3 years. His parole was revoked by reason of his most recent arrest. In these circumstances, by reason of the operation of s 16A(1) of the Bail Act 2013, Mr Elzamtar is required to show cause why his continued incarceration is not justified. 3. The Crown opposes bail. It contends that it has bail concerns that correspond to all of the matters listed in s 17(2) of the Act. Background facts 1. Mr Elzamtar was previously married to Lina Kurdi. They have one son. The marriage broke down, following his release from prison, in about the middle of 2016. Following an incident over the telephone between Mr Elzamtar and Ms Kurdi's mother and brother, the police applied for an apprehended violence order in her favour. Orders in the usual form were made final on 19 November 2016, enforceable for twelve months. 2. On the evening of Sunday 13 November 2016 Mr Elzamtar was recorded making threats in apparent breach of the apprehended violence order. Mr Elzamtar is recorded as saying the following things: "Don't lay a finger on my son. Fuck you, your whole fucking family, you fucking dog, I will stomp on your fucking head in front of your mum, your brother, your whole fucking family, you fucking little dog, is that understood, if you got a fucking problem you come and see me right now you little faggot, is that understood or not, tell me right now. Is it understood or not. Is it understood or not you fucking little dog I want an answer now, I want an answer right now." 1. As this conduct was allegedly in breach of the terms of the order, Mr Elzamtar was arrested the following day. 2. Somewhat earlier, on 30 September 2016, police conducted a search of Mr Elzamtar's residence under s 74A of the Firearms Act 1996 pursuant to a then enforceable Firearms Prohibition Order and Weapons Prohibition Order. A black coloured flick knife was located in the lounge room inside the second drawer of a filing cabinet. Mr Elzamtar denied any knowledge of the knife and said he had never seen it before. 3. On 14 November 2016 police conducted another similar search of Mr Elzamtar's residence. Police located a black coloured body armour vest hanging inside a wardrobe next to clothing said to be of a modern male style, similar to that found upon a search of Mr Elzamtar's room. It was not, however, found in his room. Mr Elzamtar's sister told police that their parents were currently overseas and that it was only she and Mr Elzamtar and her young child who were in occupation. She said she had no knowledge of the body armour. Consideration 1. In support of his attempt to show cause, Mr Elzamtar proffered four factors that he contended operated to do so: 1. Delay. 2. Unlikelihood of imprisonment for the ADVO breaches. 3. Strength of the Crown case on the weapons charges. 4. Favourable s 18 factors as well as the availability of suitable bail conditions. 1. Mr Elzamtar submitted that he could not expect a committal to take place before August or September this year. In all likelihood a trial date thereafter would not be allocated until at least March or April 2018. If bail were not granted, Mr Elzamtar would in those circumstances have been in custody on remand for something in the order of 18 months. He contended that this would be unacceptable. 2. With respect to the domestic violence offence, Mr Elzamtar contended that it was not an example of a serious breach. It did not occur face to face. It did not involve actual violence, even if it did involve the threat of violence. It was at the lower end of seriousness for offences of its type. There was in the circumstances an available argument that a non-custodial sentence for that offence was likely, or that it was at least a reasonably available alternative to imprisonment. 3. The strength of the weapons charges was said to be weak. First, Mr Elzamtar's brother gave an interview to the police in which he admitted that the knife and the body armour vest were his. The knife did not contain any traces of Mr Elzamtar's DNA. The DNA samples taken from the body armour were said to be inconclusive. Mr Elzamtar denied that either item was his. 4. Mr Elzamtar's brother is Ahmad Elzamtar. He was in fact interviewed by police at Bankstown Police Station on 15 November 2016. He maintained that the clothing in the wardrobe where the body armour was located was all his. He said the knife was given to him as a present by a friend he refused to name. He had assumed that his parents had confiscated it. He described the knife as "blackish" and "you press it and it opens." It had a silver single edged blade. He went on to say, "And the vest is mine. I'll leave it at that." He said he had been threatened and he kept it for his protection. The size of the vest matched the size of clothes that he wore. 5. After speaking to his lawyer, Ahmed Elzamtar was reinterviewed by the police. He sought in some respects to resile from the admissions that he had earlier given with respect to the knife and the body armour by suggesting that he may have been adversely under the influence of drugs when he previously spoke to the police. The interviews were approximately three hours apart. 6. Mr Elzamtar contended that he had a particular need to be at liberty in the community. Apparently his son has been reporting inappropriate conduct towards him from an adult with whom he is in regular conduct. Mr Elzamtar wishes to be available to assist and support his son at this time. Consideration – show cause 1. In my opinion the Crown case on the prohibited weapons charges could be described as weak. The items in question were discovered in a house occupied by several people. They were not located in a part of that house that was solely used or occupied by Mr Elzamtar. There is no DNA evidence to link Mr Elzamtar to either item. There is no other evidence to support the contention that the items belonged to Mr Elzamtar or were in his possession. The case is entirely circumstantial and an alternative hypothesis consistent with Mr Elzamtar's innocence exists in the form of his brother's admission of ownership. Whatever may be said about Ahmed Elzamtar's interviews with the police, the material before me does not demonstrate or suggest that it is clearly false or inherently improbable. Mr Elzamtar has made no admissions of possession or ownership. I have not been shown any material in the form of intercepted telephone calls or listening device material that supports a different conclusion. The relevant weapons prohibition order legislation explicitly deems any weapons or firearms found in a residence where the subject resides to be in the possession of the person concerned unless there is proof to the contrary. Ahmed Elzamtar's admissions, if accepted by a tribunal of fact, would qualify as such proof. There is in all of the circumstances a prospect that the charges will not survive a committal hearing. 2. The apprehended violence offences are in the low range of seriousness. They do not involve the use of actual violence. The threats were conveyed in the course of a telephone conversation. They appear to be related to the disharmony created by the breakdown of a relationship in the context of disputes concerning a child of the marriage. The victims of the telephone assault were the mother and brother of Ms Kurdi, not Ms Kurdi herself. There is a significant prospect that a non-custodial sentencing option would be available upon conviction for these offences. 3. There is the prospect of delay in the order of 18 months before a trial date could be allocated. That delay is not unfortunately extraordinary or unusual. However, in combination with the weakness of the Crown case on the weapons charges and the real prospect of a non-custodial sentence on the apprehended domestic violence charges, I am satisfied that Mr Elzamtar's continued incarceration on remand is not justified. Bail concerns 1. The Crown maintains that it has in this case all of the bail concerns described in s 17(2) of the Bail Act. Risk of non-appearance 1. The Crown referred in this context to Mr Elzamtar's background, including his criminal history, circumstances and community ties and to his history of violence. I have been unable to relate these matters to a concern that Mr Elzamtar might not appear when required. It has not been suggested that Mr Elzamtar has a history of regularly or consistently failing to appear or of leaving the jurisdiction to avoid apprehension in breach of some condition to that effect. 2. The Crown also points to the nature and seriousness of the offences and the strength of the prosecution case. I have already expressed my understanding of the latter. I have also indicated that, in the particular circumstances of this case, it is unlikely that Mr Elzamtar would spend a long time, and on one view any time, in custody if convicted of the apprehended violence offence. The weapons offences are on their face serious offences, but when one examines the particular facts, a different view is obviously available. The case has to be compared with the range of offences of this type, including possession of firearms, other explosive devices and the like to which specific reference need not be made. 3. I do not consider that Mr Elzamtar presents an unacceptable risk of failing to appear. Risk of commission of a serious offence 1. It is trite to observe that no grant of bail is risk free. Mr Elzamtar has committed serious offences in the past. He was at large on parole at the time of his arrest. He was not, however, arrested for allegedly committing an offence of the order of those for which he was imprisoned in 2013. Indeed, properly understood, the weapons offences were passive in the sense that they depend upon proof of possession. There is no suggestion, as I understand the charges, of actual use of the knife or the body armour. 2. There is a risk that Mr Elzamtar could commit a further serious offence. I am not satisfied that the risk is unacceptable. I am equally satisfied that whatever risk exists can be adequately mitigated by the imposition of appropriate bail conditions. Risk of danger to victims etc and risk of interference with witnesses 1. I accept that there is a risk that Mr Elzamtar may be tempted to contact people who are the beneficiaries of protection afforded by the current apprehended violence order. I am not satisfied that the risk is unacceptable. It is clear that Mr Elzamtar would understand that any grant of bail would be demonstrably and immediately imperilled if he were to contact the protected persons in any way at all. In that sense the safety of the victims in this case is a self-fulfilling condition in the hands of Mr Elzamtar. That seems to me to support the contention that the risk is not unacceptable and can in any event be mitigated further by appropriate conditions. Bail 1. In my opinion bail should be granted upon the following conditions: 1. Mr Elzamtar is to be of good behaviour. 2. He is to reside with Ammoun Elzamtar at xxx. 3. He is to report to the officer in charge of Bass Hill Police Station twice daily, once between 8am and 12 noon and again between 4pm and 8pm. 4. He is not to be absent from xxx between the hours of 9pm and 6am and is to present himself to the front door of the house if reasonably required during that time by police to do so. 5. He is not to apply for any passport or travel document. 6. He is not to approach within 500 metres of any point of international departure. 7. He is to comply with any current apprehended domestic violence order. 8. He is to comply with the Firearms Prohibition Order. 9. He is to use only one mobile phone, the number of which is to be provided to the officer in charge within 48 hours of his release. ********** 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 March 2017