Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Ghama [2018] NSWSC 1427 Hearing dates: 16 April 2018 Date of orders: 18 April 2018 Decision date: 18 April 2018 Jurisdiction: Common Law Before: Hamill J Decision: (1) Revoke the bail granted by the Magistrate. (2) Bail is granted on conditions. Catchwords: BAIL – detention application – where respondent required to show cause why his continued detention is not justified Legislation Cited: Bail Act 2013 (NSW) ss 16A, 16B, 17, 18, 19 and 50 Crimes Act 1914 (Cth) s 20(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 Cases Cited: Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 Texts Cited: National Domestic and Family Violence Bench Book Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Applicant) Ahmad Ghama (Respondent) Representation: Counsel: V Chan (Applicant) E Bushby (Respondent) Solicitors: Director of Public Prosecutions (NSW) (Applicant) Legal Aid Commission of NSW (Respondent) File Number(s): 2018/00104149 Publication restriction: Nil Judgment 1. This detention application was heard on Monday and adjourned until today (Wednesday) for decision. Because of the number of matters in the list today I have to be relatively brief in providing my reasons. 2. On 11 February 2018, a Magistrate sitting at the Parramatta Local Court granted Mr Ghama bail on conditions. Almost two months later, on 3 April 2018, the Director of Public Prosecutions made a detention application pursuant to s 50 of the Bail Act 2013 (NSW). 3. There is no explanation for that delay, which is in any event largely irrelevant. 4. The detention application is to be considered afresh. It is not a review in any sense of the decision made or the approach taken by the Magistrate. It is not a matter of looking for error in the Magistrate's decision. The ordinary principles and statutory considerations arising under the Bail Act apply. However, one relevant consideration is that the respondent has been on bail and at liberty since 11 February 2018 until 18 April 2018, which is to say today, and that investigating police have confirmed that there have been no breaches of the conditions imposed by the magistrate. He has also twice appeared in the Supreme Court knowing on each day, that is Monday and today, that his liberty may be taken away. 5. The respondent is caught by the provisions of s 16A and 16B of the Bail Act. Bail must be refused unless he shows cause why his detention is not justified. The circumstance in which he is caught by those provisions is somewhat unusual and perhaps represents an anomaly in the legislation. Certainly in the respondent's case, the provision has the potential to operate harshly. 6. The circumstances in which he is caught by s 16B are as follows. The respondent is charged in relation to two sets of offences. The first set allegedly occurred on 27 August 2017. Court Attendance Notices were issued but the police were unable to serve those notices. Police suspect that the respondent was avoiding service. However, one way or another, he was not served and the police applied for and were granted warrants authorising them to arrest the respondent. The warrant was issued on 25 September 2017. There was no evidence that the respondent was aware of this, until he was arrested. While the warrant was in existence, the respondent is alleged to have committed a second series of offences on 10 February 2018. 7. Section 16B(1)(l) provides that the show cause requirement in s 16A applies to: a serious indictable offence that is committed by an accused person while the person is the subject of a warrant authorising the arrest of the person issued under...(relevantly, the Criminal Procedure Act 1986.) 1. In the recent Court of Appeal decision in Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 McCallum J (dissenting in the outcome) explained at [97] the various kinds of circumstances and offences for which the show cause provisions are attracted. One of those was where the offence was committed while on bail, parole or other conditional liberty. Unsurprisingly, the kind of situation that exists in the respondent's case was not part of her Honour's analysis. As a general proposition, the kinds of matters where alleged breaches of conditional liberty attract the "show cause" provisions are those where the applicant is aware of the nature of the conditional liberty (be it bail or parole) to which they are subject. The other circumstance is where a warrant has been issued because the alleged offender is a fugitive in the sense that they deliberately absconded or failed to appear off bail and the Court issues a warrant for their arrest. 2. Even though the police have expressed a suspicion that the respondent was avoiding service of the Court Attendance Notices, there is no evidence that the respondent was required to attend court and no evidence that he knew that a warrant was in existence or likely to have been issued. Even so, Ms Bushby (who appears for the respondent) conceded (properly and correctly) that her client must show cause why his detention is not justified. 3. Ms Bushby relied on a combination of circumstances to satisfy the show cause requirement but the first of those was the unusual circumstance in which the respondent is caught by s 16A and 16B. Insofar as the question of show cause is completely independent of the risk assessment otherwise required under the Bail Act (and I here refer to the observations of the Court of Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 and Barr as to that matter) I would have taken the view that this circumstance alone is sufficient to satisfy the show cause requirement and I would move to consider the question of whether the respondent represents an unacceptable risk, which in the particular circumstances of this case is a matter of far greater concern. 4. However, while the two issues must not be conflated, they are not completely independent of one another as the judgments of the Court of Appeal in Barr demonstrate (see for example Leeming JA at [86] and McCallum J generally). 5. Before leaving the show cause issue and considering the question of risk, I note that the respondent also relied on: 1. The fact that he has been at liberty for two months without breaching his conditional bail; 2. There is likely to be an extensive delay before his case is finally resolved; and 3. What are said to be weaknesses in the prosecution case. 1. It is unnecessary to consider further the show cause requirement. I am satisfied that the respondent has shown cause subject to a consideration of the unacceptable risk test in ss 17, 18 and 19 of the Bail Act. I have not conflated the two tests and have approached the application on the basis of what was said on this issue in the Court of Appeal in Tikomaimaleya and Barr. There have been cases where the Court of Criminal Appeal has found that a respondent to a detention application had shown cause but bail was nevertheless refused because the accused represented an unacceptable risk (see for example Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227). 2. In this case there are large issues to be considered in determining whether the respondent represents an unacceptable risk of the kinds identified in ss 17 and 19 of the Bail Act. The prosecutor identified all four of the bail concerns referred to in s 17 and submitted that each represented an unacceptable risk for the purpose of s 19. Those concerns or risks are: 1. That the respondent will fail to appear at court; 2. That he will commit a serious offence; 3. That he will endanger the safety of the victim or other individuals and the community generally; and 4. That he will interfere with witnesses or evidence. 1. While the seriousness of the offences and the possibility or likelihood of a gaol sentence gives rise to some concern that the respondent will fail to appear, I am satisfied that the relatively modest $1000 cash deposit provided by the respondent's family, and other conduct requirements, are sufficient to mitigate that particular risk. There is nothing particular in his record that suggests he is a flight risk, although he has shown a certain disregard for court orders over time and I have also taken into account the fact that warrants have been issued in the past, presumably because he failed to appear. This happened most recently in 2017 when a charge relevant or similar to those underlying the present application appears to have been dealt with in his absence. I have also considered the police suspicions that he actively avoided service of the Court Attendance Notice. 2. The other three bail concerns raised by the prosecutor are of far greater concern and they are closely related to each other. The concern is that, in the light of the history of domestic violence and conduct in the nature of harassment and stalking that has taken place over around five years: the respondent may commit a serious offence against the alleged victim; may represent a danger to her or to her mother; and, may in that regard or by other means, interfere with her or her mother as a witness. 3. In determining whether these are "unacceptable risks" for the purpose of s 19 it is necessary to consider the exhaustive list of factors considered in s 18. I have done so, although I will mention only the most salient considerations on both sides of the debate. 4. It is necessary now to refer briefly to the facts alleged by the prosecution in respect of the two sets of offences. 5. On 27 August 2017, there was in existence an enforceable apprehended violence order (AVO) directed towards the respondent. The AVO restricted his conduct towards [REDACTED]. It is alleged that on that date the respondent breached the order, stalked or intimidated her, and assaulted her. According to the police facts sheet, the alleged victim and the respondent became involved in an argument during which the respondent is alleged to have pushed [REDACTED] and yelled words to the effect of "I'm going to fucking kill you". It is alleged that he had a knife in his hand. 6. The facts sheet asserts that a neighbour chased the respondent away while the alleged victim and her mother ran inside the house. Police attended the scene but both the alleged victim and her mother refused to supply a statement. The facts sheet asserts that "police were shown a photo allegedly depicting the victim and the accused in front of the house. An object can be seen in the victim's right hand in the photo." It is difficult to know what is to be made of the assertion concerning this photograph; perhaps it is an error and the facts sheet should have said that the object was in the respondent's hand. 7. One way or another, in the absence of any evidence from the alleged victim, her mother or the neighbours, it is difficult to see how the prosecution will be in a position to establish this case to the criminal standard. However, if established, in the light of his record to which I will shortly turn, these are serious offences. 8. The second series of offences are even more serious and involve the aggravated breaking and entering of [REDACTED]'s home with intent to commit a serious offence, namely stalking or intimidating her. There are associated charges of breaching the aforementioned apprehended violence order. 9. It is alleged by the prosecution that on 10 February 2018, the respondent drove to [REDACTED]'s residence and approached the house demanding to know "who's here and what you're doing". He was allegedly carrying a black metal object. He forcibly removed the fly screen from the living room window and caused damage to the frame in the process. He then slid open the window, which was otherwise completely closed, but not locked, and then entered the home through the window. Once inside the house he made threats such as "I'll fucking kill you" and "fuck you I will be back with the boys." It is not clear to me who "the boys" are but presumably this was a threat to return in the company of other violent men. 10. According to the facts sheet, [REDACTED] followed the respondent from the premises and accused him of upsetting the kids. Police attended and the alleged victim's mother, that is [REDACTED], expressed her concern to the police. She allegedly said "he's going to kill her". [REDACTED] showed police the damage to the premises where the respondent had entered. The police then spoke to [REDACTED] who said "you're never going to find him, he will kill me before you find him". 11. It is not clear whether either [REDACTED] or her mother have made, or will make, statements to the police. It is not clear whether they will give evidence. There is some evidence before me of ongoing contact between [REDACTED] and the respondent. 12. Later that day the police were able to locate the respondent and they arrested him. He admitted going to the premises and arming himself with the air pump but denied entering through the window and denied making any threats. The respondent appeared at the Parramatta Local Court the following day and was granted bail on the following conditions: 1. Strictly comply with current apprehended violence order; 2. Report on bail once daily at Merrylands police station between the hours of 8 am and 8 pm; 3. To reside at [REDACTED]; and 4. One acceptable person deposit the sum of $1000 in cash with an agreement to forfeit that amount. 1. Since that time police report that the respondent has not breached those conditions or the terms of the apprehended violence order. However, as I have said, there has been some contact between the respondent and the alleged victim and this includes more than one occasion when they have been seen to be arguing with one another. However, it is not suggested that these arguments, or this contact, gave rise to any breach of the bail conditions or AVO. 2. The prosecutor relied on the history of domestic violence between the parties to submit that there were unacceptable risks of the kind identified in the Bail Act. The respondent's criminal history was tendered along with a number of the earlier court attendance notices and facts sheets relating to those offences. These were detailed in the helpful written submissions of Ms Chan, who appears on behalf of the Director. There have been at least four previous incidents of offences involving some form of domestic violence or abuse or harassment perpetrated by the respondent toward [REDACTED] and/or [REDACTED]. Those occurred in 2012, 2014, 2015 and 2017. 3. In 2012, the respondent was placed on s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) bonds for common assault and for stalking the complainant. 4. The allegations in the facts sheet are very serious but, according to Ms Bushby, many of these are denied and do not seem to be consistent with the disposition of the case by a bond. In any event, the respondent appeared to have complied with the bond (or bonds) as there are no matters recorded on his record between 9 February 2012 and June 2014. 5. In 2014, however, the respondent was fined for damaging the property of the complainant's mother. This was in the context of the complainant asking him to remove his property from their house. The offence has the flavour of a domestic violence type incident. 6. In 2016, the respondent contravened an AVO and was sentenced to two months imprisonment. The allegations were, initially, very serious and more serious charges were originally laid. The Director's written submissions in this Court levelled those same serious allegations against the respondent. However, the facts sheet that was actually before the Local Court, and ultimately before me on the detention application (thanks to the diligence of Ms Chan) showed that the most serious of the allegations were not pressed and, I am told by Ms Bushby, were denied. Even so, the 2016 offences resulted in a gaol sentence and formed part of a pattern of domestic violence that gives rise to significant concern. 7. Finally, the offender was charged with harassing [REDACTED] by making hundreds of unwanted phone calls to her over a short period of time in 2017. I gather this case was dealt with in his absence and a warrant was issued for his arrest. Ultimately, he was placed on an eight month bond under s 20(1)(a) Crimes Act 1914 (Cth). 8. That history is obviously extremely troubling and raises serious bail concerns. Of particular concern is the fact that neither the current AVO nor the current bail conditions forbids the respondent from being in contact with [REDACTED]. Neither lawyer appearing before me was able to indicate what [REDACTED]'s wishes and attitudes are in this regard. I was told there is to be a variation of the AVO and that this will prohibit contact between the respondent and the complainant but, again, the parties were unable to say whether this was at [REDACTED] request or otherwise. 9. In this regard, I note that s 18(1)(o) allows the alleged victim's views to be taken into account. I do not know what those views are. 10. The prosecutor made a number of powerful submissions by reference to certain parts of the National Domestic and Family Violence Bench Book but acknowledged that these were necessarily of a general nature and it emerged that many of the features relied upon were, at least according to Ms Bushby, denied and have not been proved. 11. As I have indicated, I have taken into account the criteria in s 18 and note the seriousness of the allegations, the likelihood of a gaol sentence and the respondent's history of offences, including non-compliance with court orders, offences of violence and offences of domestic violence and stalking against [REDACTED] herself. 12. On the other hand, in the absence of evidence from [REDACTED] and [REDACTED], I assess the prosecution case as having serious deficiencies and the delay before the trial is likely to be reasonably lengthy. It is also the case that the respondent has excellent community support and there have been no breaches in the two months since the Magistrate allowed his release on conditional bail. He has lawful reasons to be at liberty, both to prepare for the proceedings and also to continue with his employment. 13. I am satisfied that conditions far more stringent than those imposed by the Magistrate are required. In particular, in the absence of a clear indication from [REDACTED] and [REDACTED] that they want contact with the respondent, I think that any contact is fraught with risk. The parties have already been observed arguing in public since the respondent was admitted to bail. The risk of escalation, given the history, is real. However, I am satisfied that if more stringent conditions are imposed the risks identified by the Director can be ameliorated. 14. Taking all of those things into account, I am not satisfied that there are unacceptable risks of the kind contended for. Accordingly, pursuant to s 50(4)(b), I propose to vary the bail decision made by the Magistrate by making the following orders: 1. Revoke the bail granted by the Magistrate. 2. Bail is granted on the following conditions: 1. To be of good behaviour. 2. To live at [REDACTED] with his parents. 3. To report to Merrylands police station between the hours of 8am and 8pm. 4. To appear at Burwood Local Court on 23 May 2018 and on such dates and at such courts thereafter as required. 5. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor). 6. To comply strictly with the conditions of any apprehended violence order in force from time to time during the period of remand. 7. Not to have any contact by any means whatsoever with [REDACTED] except: 1. through a lawyer or 2. for the purpose of arranging access to the children [REDACTED] and then only through a third party such as his parents or other relatives. 1. Not to go within 1 km of the suburb of Riverwood for any purpose. 2. Not to go within 10 km of the suburb of Riverwood except for the purpose of attending his workplace at [REDACTED] and in travelling to and from those premises. 3. Not to have any contact by any means, other than through his legal representative with [REDACTED] or any person who knows is or may be a prosecution witness. 4. Not to apply for any new passport or travel document. 5. Not to go within 500 metres of any point of departure from the Commonwealth of Australia. 6. That one acceptable person deposit the sum of $1,000 in cash and enter into an agreement to forfeit that sum if the respondent fails to comply with his bail agreement. I note that $1,000 has already been deposited in accordance with the bail in the Local Court at Parramatta. ********** 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: 10 June 2021