R v Mohamed Abdulkhalek [2018] NSWSC 1150

Supreme Court New South Wales

Medium Neutral Citation: R v Mohamed Abdulkhalek [2018] NSWSC 1150 Hearing dates: 19 July 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: Bail refused Catchwords: CRIMINAL LAW – bail – applicant charged with drug and firearms offences – police surveillance – police facts – police views – applicant observed driving vehicle displaying fake number plates – medical requirements of close relatives – strong prosecution case Legislation Cited: Bail Act 2013 (NSW) ss 16B, 17, 17 Crimes Act 1900 (NSW) s 93T Firearms Act 1996 (NSW) ss 7A, 36, 39 Cases Cited: Director of Public Prosecutions v Mawad [2015] NSWCCA 227 Category: Procedural and other rulings Parties: Regina (Crown) Mohamed Abdulkhalek (Applicant) Representation: T Lumsden (Crown) S Toomey (Applicant) File Number(s): 2018/154184

EX TEMPORE Judgment 1. HER HONOUR: This is an application for bail by a 39-year-old man who has been charged with a number of serious offences spanning February to March this year. The charges have their origin in the commencement of a police surveillance operation undertaken in order to investigate the supply of drugs from particular premises on Eldridge Road, Condell Park. 2. From "the police facts" headed "summary of background and offences"that has been tendered on the application, it appears that police engaged in both telephone intercept and physical surveillance of the applicant, amongst others, and during February 2018, on five separate occasions, intercepted telephone calls involving the applicant followed shortly after by observation of him supplying drugs in the amount referred to in the intercepted telephone conversation. 3. The police facts refer to two additional occasions in March 2018 where a similar supply of methamphetamine followed from a conversation recorded by telephone intercept, then supply observed by police. On 15 March 2018, the police facts refer to an amount of drug being provided in exchange for an electric saw, and on 20 March, another incident of drug supply, again being intercepted by telephone intercept followed by a physical supply. 4. I pause here to observe that some issue was taken by the legal representative for the applicant regarding the extent to which reliable material was before the Court, referring to certain aspects of the facts underpinning the charges made against the applicant. This particular submission related to a letter from an Officer Wani which was separately tendered on the application. 5. For clarity, I emphasise that the material I have just referred to is extracted from the police facts, not from the letter from Officer Wani. 6. I agree with the observations of Beech-Jones J in Director of Public Prosecutions v Mawad [2015] NSWCCA 227 at [39] that whilst objected to opinions of police officers regarding whether bail should be granted or not is an area for difference and debate, I am not bound by the rules of evidence but must be sceptical of conclusions unsupported by any factual detail. I agree with the conclusion of Beech-Jones J that "in circumstances where information is placed before the Court with no detail setting out the basis for what are otherwise potentially damaging assertions, this Court ought not attribute weight to those assertions". 7. By way of distinction to that circumstance, what I have relied upon in this judgment is the "Summary of Background and Offences" (police facts) prepared by police which does not include any opinion or statement as to what, in the view of police, this Court ought to do regarding this applicant's bail application. 8. I adopt the observations made by Beech-Jones J in [38] of Mawad to the following effect: "Bail authorities referred to in s 32 of the Bail Act include a police officer, an authorised justice and a court most, if not all, of whom deal with significant volume of bail applications in a limited timeframe. Thus the provision facilitates the orderly and expeditious disposition of bail applications by not requiring bail authorities to undertake a process of determining whether or not evidentiary material in whatever format should be admitted. Instead the bail authority can receive material it considers credible or trustworthy. Further, the bail authority can determine whether that relatively low threshold is met at the time the information is provided to it or at the time it determines the bail application. In effect s 31 enables a bail authority, including a court, if it so chooses, to avoid making rulings on whether or not material that has apparent relevance should be received. Instead the bail authority can receive the material and give it such weight as it considers appropriate in its deliberations." 1. The police facts I consider to be credible and trustworthy, and I base my assessment of this bail application upon that material. 2. Further charges were laid in respect of items found on execution of a search warrant at the address at which the applicant is said to have lived, namely 169 Eldridge Road, Condell Park. 3. Some confusion exists in the material before me because there is reference to items located at 167 Eldridge Road, Condell Park. The police facts refer to an execution of a search warrant simultaneously on premises at 167 and 169 Eldridge Road, Condell Park. The association of the applicant with 167 Eldridge Road was not made clear, although it is tolerably clear that the premises adjoin. 4. Found at 169 Eldridge Road, Condell Park was 32 grams of methamphetamine, an unsecured, unregistered, homemade double-barrelled pistol, 22 calibre bullets and firearm parts, and various other property, including a significant amount of valuable jewellery. I will return to the significance of the presence of jewellery when I deal with the submissions made on behalf of the applicant. There was also a large amount of valuables that can be described as luxury items such as designer clothing, iPhones, $250,000 worth of something called Passion Projects protein powder, a number of electronic tools, telescopes, Apple brand computers, televisions, wallets and designer bags. 5. At the premises 167 Eldridge Road, the police facts say a motorised tablet press was found, as well as a stolen Ducati motorbike. I put those items to one side for the purposes of determining this bail application because, as I said, the association with 167 Eldridge Road was not made clear to me. I note the address for the applicant on the CANs were all 169 Eldridge Road, Condell Park. 6. A further relevant offence which I am told in the police facts was observed by police officers was the applicant driving a vehicle which had attached to it fake number plates. The vehicle to which it was attached is registered to the applicant, I am told, and the number plates were actually related to a completely unrelated vehicle, and charges under the Road Transport Vehicle Registration Act were laid. 7. I raise these charges to highlight that the presence of fake number plates on the applicant's vehicle leads me to have some concerns that the applicant may well be engaging in that conduct to avoid his location and/or detection whilst driving that vehicle. 8. There was some debate at the commencement of the application regarding whether the show cause requirements of the Bail Act applied. The applicant had been charged with a number of offences under the Firearms Act; namely, s 7A(1), s 36(1) and s 39(1)(a) in respect of possessing an unauthorised, unregistered firearm that was not kept safely, as well as possess ammunition. The legal representative for the applicant argued, correctly in my view, that s 16B(1)(d) of the Bail Act did not apply to possession of this particular firearm, because it was not an offence that amounted to a serious indictable offence involving the use of a firearm, it was not a prohibited firearm in a public place, and it was not a serious indictable offence that involved the acquiring, supply, manufacturing or giving possession of a prohibited firearm or a firearm part. 9. In the circumstances, the bail application remained to be determined purely by consideration of s 17 of the Bail Act and an assessment of whether any bail concerns are posed by the applicant, by a careful analysis of the factors that I must take into account set out in s 18 of the Bail Act. 10. The legal representative for the applicant addressed at some length regarding the strength of the Crown case, which, of course, is a significant matter in the context of this application. There was some criticism made that there were various sweeping statements regarding some aspects of the Crown case, no hard evidence tendered regarding the certification of the drugs located, no clarity or specificity regarding the precise evidentiary basis for each of the assertions made in the police facts regarding the drug supply, complete lack of clarity as to the others in the alleged criminal group which had led to a charge under s 93T of the Crimes Act for participate in criminal group, and a tenuous connection by the applicant with the firearms which were said to have been found in a shed at the house next door. 11. In relation to this latter submission, this seems contrary to the police facts which state that the firearm was located at 169 Eldridge Road. The police facts went to the trouble of distinguishing between items found at 169 as opposed to 167 Eldridge Road. 12. The Crown submitted in response that it was a strong Crown case from a combination of telephone intercept, interception of telephone texts and phone calls, and surveillance. The Crown submitted that the applicant presented as a significant danger to the community both because of his engagement in drug supply on an ongoing basis and the presence at his premises of a homemade unauthorised weapon with no safety catch, that was located unsecured. The Crown submitted that any proposed conditions were insufficient to guard against bail concerns and risks associated with the applicant; and that there should be a concern by this Court that the applicant will, if released from custody, commit a serious offence or fail to appear. 13. Analysing the factors set out in the legislation in s 18, evidence was offered by the legal representative for the applicant in the form of an affidavit by his partner which sets out various matters of a subjective nature that inform both the applicant's community ties to his family and community, as well as the need for him to be free for another lawful reason. Those reasons centre around the applicant's son, who is 12 months old and was born with trisomy 21 and has some medical needs that require transport to appointments and assessments. There was evidence in that affidavit that the applicant's wife has a condition which affects the left side of her body and affects her fine motor skills and walking. There was also evidence that the applicant's mother is extremely ill with leukaemia and is in her last stages of life; and that the children of the applicant, who are, as I understand it, aged 16, 18 and 21, are in need of counselling and are very distressed about their father's incarceration. 14. Annexed to the affidavit was medical evidence confirming the condition of the applicant's 12-month-old. There was no evidence before me regarding the applicant's wife's physical condition. 15. There was a separate affidavit from Ahmed Abdulkhalek dated 17 July which also deposed to the applicant's young son's medical condition and, in particular, dealt with the applicant's mother's illness. The deponent also offered to provide surety in the value of $500,000 secured against his business address. 16. There was also an affidavit of the applicant dated 18 July which refers to his background in the jewellery industry and confirming that he set up a home studio that he had been working from since 2014. Exactly what comprised the home studio was not referred to in the affidavit, and whether it was separate from the residential premises, and whether it was the shed in which various items were found, but this potentially explains the presence of jewellery items. 17. I am of the view that the prosecution case cannot be described as weak. It seems to me to be a strong prosecution case in respect of at least some of the charges, namely the supply prohibited drug on an ongoing basis (methamphetamine) which can attract a maximum penalty of 20 years. I appreciate that there are some arguments to be raised regarding the possession of the unauthorised firearm and the ammunition, but there are multiple confirmed incidents of supply prohibited drug. There is also the 32 grams of methamphetamine found at the applicant's address. 18. Other matters to be taken into account are whether the applicant has a history of violence. There is no such history. However, there is a previous conviction in 2005 for supply prohibited drugs on an ongoing basis, together with goods in custody suspected of being stolen. The applicant was sentenced to 24 months imprisonment with a 12 month non-parole period. 19. A matter of concern is that the applicant is likely to spend quite a long time in custody, probably until mid-2019, before his charges proceed to hearing. It seems that there is a co-accused and this also may delay trial. However, if the applicant is convicted of the ongoing supply offences alone he is likely to have a significant custodial period imposed. 20. The subjective matters raised concerning his family circumstances are certainly sad and tragic ones. However, negative effect on family is often the consequence of a situation where a person is charged with offences and is taken into custody because of the seriousness of the matters that have been charged. 21. I add that I have a concern in the nature of an unacceptable risk that the applicant will fail to appear at any proceedings for the offence, partly because of the seriousness of the offending and the likelihood of a custodial sentence of some length if convicted, and secondarily, evidenced by the fake number plates utilised by the applicant, as observed by the police at the time of his arrest, showing a willingness to engage in misleading conduct to avoid detection. 22. In all the circumstances, I am of the view that there are unacceptable risks and bail concerns associated with this applicant that cannot be dealt with by the imposition of conditions. Accordingly, I refuse bail.