Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155 Hearing dates: 26 June 2017 Decision date: 28 June 2017 Before: Hoeben CJ at CL at [1]; R A Hulme J at [2]; Garling J at [49] Decision: Bail release application granted Catchwords: CRIMINAL LAW – bail release application – one charge of aggravated sexual assault and two charges of aggravated indecent assault – one show cause offence – delay a significant factor – a degree of uncertainty about the allegation giving rise to the show cause offence – cause shown – concern about interference with witnesses, but not unacceptable risk with regard to bail conditions – release application granted Legislation Cited: Bail Act 2013 (NSW) ss 49, 67 Crimes Act 1900 (NSW) ss 61J, 61M(1) Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 El-Hilli and Melville v R [2015] NSWCCA 146 Trinh v R [2016] NSWCCA 110 Category: Principal judgment Parties: Ahmed Ali (Applicant) Director of Public Prosecutions (NSW) Representation: Counsel: Ms C Davenport SC (Applicant) Mr S Hughes (Crown)

Solicitors: Hajjar Legal Solicitor for Public Prosecutions File Number(s): 2017/112479

Judgment 1. HOEBEN CJ at CL: I agree with R A Hulme J. 2. R A HULME J: Ahmed Ali ("the applicant") applies for bail pursuant to s 49 of the Bail Act 2013 (NSW). 3. The applicant has been refused bail by the police following his arrest on 10 April 2017, by the Local Court on 11 April 2017 (Truscott LCM) and by the Supreme Court on 26 April 2017 (Lonergan J). Nevertheless, the applicant is provided with a further opportunity to apply for bail in this Court by virtue of s 67 of the Bail Act. 4. Notwithstanding this Court's usual and traditional role as a court of error, in applications for bail it must proceed to determine the matter afresh: El-Hilli and Melville v R [2015] NSWCCA 146 at [14] (Hamill J, Simpson and Davies JJ agreeing). Disquiet has been expressed about the Bail Act providing for this: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [49] (Beech-Jones J; Adams J agreeing at [6]). 5. Although the Court is not reviewing, or hearing an appeal from, the decision of Lonergan J to refuse bail, it is entitled to approach the application with a degree of flexibility and may have regard to the reasons of the primary judge: Trinh v R [2016] NSWCCA 110 (Basten JA at [28], McCallum and Davies JJ agreeing at [40]; [44]). However, the materials before this Court are more extensive than that which were before her Honour so it is appropriate that it should approach the task afresh.