R v Hamisi [2018] NSWSC 1409

Supreme Court New South Wales

Medium Neutral Citation: R v Hamisi [2018] NSWSC 1409 Hearing dates: 12 September 2018 Date of orders: 14 September 2018 Decision date: 14 September 2018 Jurisdiction: Common Law Before: Harrison J Decision: Application refused Catchwords: BAIL – release application – show cause offence – where previous application refused by the Court – where all relevant material presented in the first application – where no change in circumstances Legislation Cited: Bail Act 2013 (NSW), s 74 Category: Principal judgment Parties: Ali Hamisi (Applicant) Crown (Respondent) Representation: Solicitors: Director of Public Prosecutions (Respondent) File Number(s): 2018/80264 Publication restriction: Nil

Judgment 1. HIS HONOUR: Ali Hamisi applies for bail. He is not legally represented. He was arrested on 3 May 2017 and charged with a series of offences, including one count of supplying a commercial quantity of cocaine and four counts of supplying an indictable quantity of the same drug. Mr Hamisi has been in custody bail refused since the date of his arrest. His trial is scheduled to commence in the District Court on 19 November 2018 with an estimate of between 7 and 10 days. 2. Mr Hamisi's application is confronted with two legal hurdles. The first arises by reason of the terms of s 74(1) of the Bail Act 2013. That provision is as follows: "74 Multiple release or detention applications to same court not permitted. (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application." 1. Section 74(3) of the Act defines grounds for a further release application in the following terms: "(3) For the purposes of this section, the grounds for a further release application are: (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence." 1. Mr Hamisi made a bail application on 20 December 2017 that was refused by Campbell J. By reason of the offences with which Mr Hamisi is charged, he was then required to show cause why his continued detention was not justified. His Honour was not satisfied that Mr Hamisi had shown cause as required and he refused the application. 2. Even though Mr Hamisi was not legally represented at that time, he is still without legal representation. Section 74(3)(a) of the Act does not therefore apply. 3. The only conceivable bases upon which Mr Hamisi could enliven the jurisdiction to hear and determine a further application to this Court are to be found in either or both of s 74(3)(b) and (c) of the Act. In this respect, I invited Mr Hamisi to indicate if there was now some material information that was not presented to Campbell J in the previous application or to explain how the circumstances relevant to a grant of bail may have changed since then. Unfortunately, despite several attempts to respond to my questions inviting some consideration of these matters, Mr Hamisi was unable to do so. 4. Mr Hamisi has provided me with a detailed handwritten letter (Exhibit A) referring to several matters concerning his background, his Rastafarian faith and his position in the community. I have had close regard to that letter. However, I am still unable to identify any matters that are capable of satisfying either s 74(3)(b) or s 74(3)(c). 5. The second hurdle confronting Mr Hamisi is the requirement, dealt with by Campbell J, that he show cause why his continued detention is not justified. Having regard to my conclusions with respect to s 74(1) of the Act, it is unnecessary to consider that aspect further. 6. It follows that Mr Hamisi's application for bail must be refused. 7. Although it is in these circumstances unnecessary to do so, I note that Mr Hamisi is alleged to have been involved as part of a syndicate importing drugs from East Africa. He was arrested following a controlled operation in the course of which it is alleged he supplied drugs to an undercover police officer. The Crown case is also said to be assisted by electronic surveillance and DNA evidence in the case of at least one of the counts. It cannot in these circumstances be said that the Crown case is weak. 8. In these circumstances, Mr Hamisi's application is refused.