Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Al Saleh v Director of Public Prosecutions [2019] NSWCCA 31 Hearing dates: 8 February 2019 Date of orders: 22 February 2019 Decision date: 22 February 2019 Before: Basten JA; Button J; Lonergan J Decision: Release application refused. Catchwords: CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – bail refused, then granted by Local Court – detention order made by Supreme Court – further application to Court of Criminal Appeal – power of Supreme Court to hear subsequent release application CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – whether change of circumstances – prosecution witness contradicts earlier statement at committal hearing – whether strength of prosecution case affected – unforeseen delay before trial – unforeseen collapse of family business whilst applicant in custody Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 19, 66, 67, 74 Cases Cited: Trinh v R [2016] NSWCCA 110 Category: Principal judgment Parties: Hussein Al Saleh (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel: Mr G Brady SC (Applicant) Mr P Leask (Respondent) Solicitors: One Group Legal Pty Ltd (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2018/270011 Judgment 1. THE COURT: On 28 February 2018 the applicant, Hussein Al Saleh, was arrested and charged with five offences arising out of a shooting which occurred on 31 January 2018. Mr Al Saleh applied in the Local Court to be released under the Bail Act 2013 (NSW). On 21 June 2018, he was granted conditional bail. The prosecutor then made a detention order application in the Common Law Division, which was granted by Fullerton J on 6 July 2018. On Friday, 8 February 2019 a release application made by the applicant was listed before this Court for hearing. 2. The papers provided to this Court did not contain the release application. However, the Court was provided with correspondence between the Registrar and solicitors for the applicant, which caused the Court to make further inquiries as to the listing arrangements. Those inquiries revealed that the release application had originally been filed in the Common Law Division on 13 August 2018. After a series of exchanges between the Registrar and the solicitors for the applicant, a fresh application was filed on 6 November 2018 in this Court. Thus, a period of some six months elapsed between the date of the original release application and the hearing. On the face of it, that is a matter of concern. 3. That concern is mitigated by two circumstances. The first is that the fact of the detention order made by Fullerton J in the Common Law Division on 6 July 2018 led the applicant to believe that, to succeed on his release application, he would need to demonstrate a material change of circumstances, which he sought to do. However, as the matter was presented before this Court, his case in that regard was significantly improved as a result of very recent developments in the course of the committal proceedings, now part heard in the Local Court. There was no suggestion that steps had been taken to seek an earlier hearing date. 4. The second matter arises from the extraordinary level of uncertainty as to the operation of the Bail Act in the present circumstances. It is desirable that the confusion be explained and, to the extent possible, resolved, although arguably that will require statutory amendment. 5. An issue of jurisdiction was raised in an email from the Registrar to the parties on 5 November 2018 stated: "• Given a bail decision has already been made by the Supreme Court, it appears to me that the Supreme Court has no jurisdiction under s 66 of the Bail Act to hear another application, albeit the first decision was pursuant to a detention application and this is a release application. • It would seem to me that s 67 more readily applies. In which case, the applicant would need to lodge a fresh application in the Court of Criminal Appeal and [have] the matter listed before that Court for hearing." 1. The applicant's solicitor, Mr Chahine, replied promptly but merely noted that the application "is made due to a change in circumstances." As this was unresponsive to the issues raised in his earlier email, the Registrar replied to Mr Chahine asking him to address the issue of jurisdiction and undertaking to list the matter for callover three days later, on 8 November, if a fresh application were filed on November 5. Mr Chahine responded promptly stating: "The application is made under s 74. It is not an appeal of the decision made by her Honour. The application does not need to be listed before her Honour. It is a fresh application due to a change in circumstances." 1. The Registrar was not persuaded that that the reference to s 74 was correct and reiterated his view that the application should have been filed (pursuant to s 67) in the Court of Criminal Appeal. A solicitor in the office of the Director of Public Prosecutions took the same view. 2. It is necessary to refer to the legislation. Section 74 of the Bail Act provides 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. (2) A court that grants or dispenses with bail for an offence, or that affirms a decision to grant or dispense with bail for an offence, after hearing a detention application is to refuse to hear another detention application made by the prosecution for the same offence, unless there are grounds for a further detention application. (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. (4) For the purposes of this section, the grounds for a further detention application are: (a) 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 (b) circumstances relevant to the grant of bail have changed since the previous application was made. (5) In this section, court does not include an authorised justice. 1. The Registrar's primary position was correct in part. Section 74 does not, in its terms, confer any power on a court to hear a release application; rather, it imposes conditions upon the hearing of a further release application. It is possible that such a provision could, by implication, confer a power, whilst conditioning the exercise of the power; however, the structure of the Bail Act makes that reading unlikely. Consistently with the Registrar's approach, s 74 is restricted to two circumstances, namely a conditional prohibition on hearing (a) a further release application, after the court has refused bail or affirmed a decision to refuse bail "after hearing a release application", and (b) a further detention application, where the court has granted bail or affirmed a decision to grant bail "after hearing a detention application". The section says nothing about constraints on the court hearing a release application after it has granted a detention application. Why the same conditions should not apply to a release application following a successful detention application is by no means obvious; nevertheless, s 74 does not in terms address that situation. 2. On the assumption that s 74 is not a conferral of power to hear any bail application, whether a release application or a detention application, one must look elsewhere for the relevant power. With respect to the Supreme Court, the specific power is contained in s 66 which reads as follows: 66 Powers specific to Supreme Court (1) The Supreme Court may hear a release application for an offence if bail for the offence has been refused by another court, an authorised justice or a police officer. (2) The Supreme Court may hear a detention application or variation application for an offence if a bail decision has been made by the District Court, the Local Court, an authorised justice or a police officer. 1. The operation of this provision is obscure in a critical respect. Read literally s 66(1) is engaged in the present case. The applicant was arrested on 28 February 2018; he made a bail application in the Local Court on 15 May 2018, which was refused. Accordingly the condition that "bail for the offence has been refused by another court …" was satisfied. On the other hand, the present release application was not made by way of a response to the refusal of bail by the Local Court, but to the detention order made by Fullerton J on 6 July 2018. If the condition in s 66 looks to the cause of the current status of the applicant, s 66 does not confer power on the Supreme Court to hear a release application if bail has been refused by the Supreme Court. 2. Whilst the latter reading is more attractive than the former (strictly literal) reading, it runs into the difficulty that it would deny power to the Supreme Court to hear a second release application, if on the last occasion bail was refused by that Court and not another court. In that circumstance, being the very circumstance to which s 74(1) is directed (so far as it deals with the Supreme Court), s 74(1) would not be engaged. The alternative reading, namely that, so long as bail has been sought unsuccessfully in another court, the Supreme Court has power to consider a release application, should be adopted. However, that approach also gives rise to an anomaly, in that the present release application, if heard in the Supreme Court, would not be subject to the conditions imposed by s 74. 3. Whilst the Registrar was undoubtedly attempting to expedite the hearing of the release application in the Court with jurisdiction, it would have been better to allow the application to be listed before the Supreme Court. The difficult questions of jurisdiction would then fall to be determined by a judge of the Court. 4. It is not now necessary to pursue the question of jurisdiction further because it is without doubt that this Court has power under s 67(1)(e) to hear and determine any bail application where a bail decision has been made by the Supreme Court. Accordingly the matter, being before the Court will be determined by the Court. Nevertheless, it would be unfortunate if all such applications, requiring a fresh hearing, were to be diverted to this Court, despite the wishes of the applicant that the matter be resolved in the Common Law Division. The primary function of the Court of Criminal Appeal is to deal with criminal appeals and, where necessary, ancillary issues which arise with respect to the exercise of that appellate jurisdiction. That function is not engaged where the only precondition to the filing of a release application in this Court is that a bail decision has been made by the Land and Environment Court or the Supreme Court. If frequently invoked, this Court's expeditious despatch of its appellate jurisdiction is likely to be adversely affected. Legal principles 1. The charges against the applicant are (a) shoot with intent to murder, (b) discharge firearm with intent to cause grievous bodily harm, (c) fire firearm in a manner likely to injure, (d) unauthorised use of pistol and (e) possess ammunition. The offences were "show cause offences" under s 16B(1)(d) of the Bail Act. Accordingly, the Court is required to refuse bail unless the applicant shows cause why his detention is not justified: s 16A(1). That requirement is a precondition to the exercise of the discretion to release. Although the considerations relevant to the show cause requirement (s 16A) will overlap with those relevant to refusing bail if the court is satisfied that there is an unacceptable risk that the person will, if released from custody, fail to appear, commit a serious offence, endanger the safety of victims or interfere with witnesses (s 19), the placing of the onus on the applicant to show cause requires that the two separate exercises be addressed separately. 2. In the present case, the applicant accepted that the Court would not reach a different decision from the detention decision of Fullerton J unless he could demonstrate some change in circumstances. Fullerton J made a detention order after concluding that she was not satisfied that the applicant had shown cause why his detention was not justified. 3. Written submissions filed by the applicant focused on the proposition that, on the evidence before her, Fullerton J had underestimated (a) the length of time that the applicant would be in custody awaiting trial, (b) the detriment to the family business caused by his absence and (c) the effect on his wife's health. At the hearing of the application, counsel emphasised a further change, (d) that, following evidence given by a key prosecution witness at the committal proceedings in early February, there was now a good prospect of acquittal at the trial. Factual background 1. The circumstances of the offending can be stated briefly; there is no doubt that the offences occurred. Rather, the issue in any trial will be whether the person who fired the shots which gave rise to the charges was indeed the applicant. 2. The offences occurred outside the Meriton Serviced Apartments Hotel in Jackson Drive, Mascot. The incident was preceded, however, by an attempted meeting between business competitors in Bardwell Park. 3. The proposed meeting was between representatives of two businesses to discuss an allegation by one, RL Civil Works Pty Ltd ("Civil"), that the other, Citywide Asphalt Pty Ltd ("Citywide"), had undercut it in a tender for a commercial contract. Citywide was owned by the applicant's wife and, as later events demonstrated, the applicant controlled the business. A Mr Ali Ali was a principal of Civil. The meeting was planned to take place on the afternoon of 31 January 2018 in a cul-de-sac in Bardwell Valley. 4. At about 4.30pm there were six men involved with Civil present, in two vehicles, including Mr Ali Ali. As they were waiting, a white Ford Ranger utility bearing the logo of Citywide drove into the cul-de-sac. No meeting took place; almost as soon as the Ford utility had driven into the cul-de-sac, the driver turned in order to leave. Mr Ali Ali approached the driver's side of the vehicle. According to a statement given to police on 14 March, he saw two men in the vehicle; the one in the front passenger seat, was a man with whom he was familiar, Ibrahim Chehab. He also stated that as he expected to meet the applicant, as the principal of Citywide, he had viewed his photo on Facebook because he had not met him before. In his police statement, Mr Ali Ali identified the driver of the Ford utility as the applicant. 5. As the Ford utility left the cul-de-sac, it was followed by a white Mazda 3 containing three persons involved with Civil. The Ford utility entered Jackson Drive, Mascot (also a cul-de-sac) and then turned to leave, at which stage it passed the Mazda 3. CCTV footage of the event shows the driver of the Ford utility with his right arm extended through the driver's window holding a dark coloured semi-automatic pistol. Five shots were fired at the Mazda 3, one of which penetrated the front bonnet and the radiator hose and another the side door panel. The driver of the Mazda 3 was able to give a general description of the driver of the Ford. 6. Fullerton J described the area in which the shooting took place in the following terms: "Jackson Drive is a highly built-up busy commercial and retail street within a short distance of Sydney Kingsford Smith Airport. At the time of the shooting there were numerous pedestrians and other road users in the immediate vicinity, including the residents of the Meriton Apartments. The Crown has available to it CCTV footage from the Meriton Apartments which shows a woman with a small child cowering behind a garden bed as the shots were fired." 1. Apart from the two bullets which penetrated the Mazda 3, a police investigation of the incident located five spent cartridges at the scene of the shooting. 2. The prosecution case was based upon a number of circumstances. First, Citywide was a business registered in the name of the applicant's wife but of which, it may be inferred, he was the principal. Secondly, the offence was committed by a person driving a vehicle bearing the Citywide logo and owned by the company. Thirdly, in a statement to police, Mr Ali Ali provided a positive identification of the applicant as the driver of the Citywide vehicle in Bardwell Valley. Fourthly, the circumstances of the chase rendered it, at the least, highly improbable that the person driving the Ford utility in Bardwell Valley was not the person driving the Ford utility in Jackson Drive, Mascot. Fifthly, there was no doubt that it was the driver of the Ford utility who fired the shots. Sixthly, the description given by the driver of the Mazda 3 of the driver of the Ford utility at Mascot was said to be consistent with the appearance of the applicant. 3. In addition to these evidential elements, the prosecution proposed to rely on other evidence, including a number of telephone intercepts of conversations involving the applicant. Some of these provided strong inferences that the applicant was involved in the events on 31 January 2018 and, less clearly, that he was the driver of the vehicle. Significantly for present purposes, Fullerton J referred to an intercepted conversation of 15 February, which was described in the following terms: "It is a conversation between the [applicant] and another person where an available and indeed compelling interpretation of what is being said is that on the payment of money, the dispute will either not escalate or it will de-escalate and that there will be no acts of retribution directed to the [applicant] (as the shooter) if payment is made. The [applicant] in effect agrees that moneys will be paid, although it will take him some time to collect the money. It is that behaviour, in my view, fairly interpreted as related to the shooting and an admission by the [applicant] that he was implicated in it, that underpins the concern of [the prosecutor] that internecine violence is both being perpetrated and settled anarchically, putting the public at risk and that cause has not been shown for that reason, there being a real and continuing concern that the behaviour will continue unchecked if the [applicant] is at his liberty. The threat to the public and the public order generally is obvious." 1. The conversation has a potential significance beyond that described above, to which it will be necessary to return. 2. Fullerton J concluded that there was "a strong Crown case" which would inevitably lead, if accepted, to a substantial period of imprisonment. Also relevantly for present purposes, Fullerton J noted that, (a) absent continuing bail, the applicant would likely spend at least 12 months in detention pending trial, (b) that factor would impact adversely on his wife and three young children, but (c), accepting that the wife also played a significant role in the operation of the asphalting company, while the delay was likely to impose greater burdens upon her, there was nothing in the evidence to suggest that the business could not continue to operate profitably in the absence of the applicant. 3. The applicant's case in this Court relied upon submissions that, in making the detention order, Fullerton J had (a) overestimated the strength of the prosecution case; (b) underestimated the likely period of delay before the matter went to trial and (c) underestimated the adverse impact on the family business. Of these, the first matter (relating to the strength of the prosecution case) was arguably the most significant. 4. The identification of the applicant by Mr Ali Ali was undoubtedly an important element in the prosecution case. Mr Ali Ali was examined in the course of committal proceedings in the Local Court on 5 and 6 February 2019. He reneged in part on his statement to the police. He said he had made a fresh statement to his solicitor, on 16 August 2018, in which he denied being able to identify either of the persons seated in the Ford utility at Bardwell Valley. He adhered to the latter statement at the committal hearing. The primary evidence of his evidence before this Court was an incomplete note taken by the applicant's solicitor at the committal hearing. 5. The solicitor's note recorded that Mr Ali Ali gave evidence that he had arranged the meeting through Mr Chehab, who was known to his acquaintances as "Gibbs". He organised the meeting because he believed that the applicant had undercut him (Ali) by about $140,000 on a job. He agreed that he had been online to check what the applicant looked like on Facebook. In other respects, he denied the accuracy of the statement he had made to the police. 6. Whilst the conflicting evidence of Mr Ali Ali will no doubt be presented to a jury, it is not easy to assess the effect of the changed evidence on the prosecution case. It would be open to the jury to infer that the statement to police signed by Mr Ali Ali on 14 March 2018 was truthful and that he had changed his evidence, possibly because steps had been taken along the lines identified in the intercepted telephone conversation on 15 February 2018 set out above. Whilst it is true that this material was not before Fullerton J (the second statement of Mr Ali Ali only being signed some six weeks after the detention order was made) the prosecution case remains strong. 7. Although by no means conclusive, the telephone intercepts give significant weight to the prosecution case, which was not diminished by Mr Ali Ali's evidence at the committal hearing. 8. The second matter concerns delay. Whilst Fullerton J was advised that the trial was likely to occupy a minimum of six weeks, and was unlikely to be convened before April/May 2019, that estimation was clearly optimistic. The committal hearing did not commence until early February 2019, and has now been adjourned part heard to 22 March 2019. Assuming that the applicant is committed for trial, it is unlikely that the trial (estimated to take two months) will be heard before 2020. 9. In Trinh v R [1] the Court was required to consider the likelihood that a trial would not be completed until some 18 months to two years after the bail application was determined. [2] As the Court noted, it has been recognised repeatedly that a deprivation of liberty for a lengthy period pending trial is a matter of grave concern and of considerable significance in determining a bail application. [3] It is, however, a factor favouring release, which must be weighed against other relevant bail concerns. While there was some evidence before the Court as to the chronology of the proceedings, there was no submission that the proceedings have been delayed by unreasonable conduct on the part of the prosecution. The lapse of time until a likely hearing date is not determinative in the present matter. 10. The third factor relied upon was the change in expectations as to the continued operation of the applicant's family business. An affidavit of the applicant's wife sworn in December 2018 described in graphic terms the difficulties she was having in running the business and demonstrated that the business was in financial difficulties. So much may be accepted. It may also be accepted that this particular turn of events was not foreseen in July 2018, although the applicant's wife had sworn an affidavit in May that she was managing the business affairs "with great difficulty", and would not be able to continue to do so given the expected birth of a third child in June and the lack of available assistance. 11. The hardship faced by the families of offenders subject to imprisonment is commonplace and often severe. However, such hardship is a serious concern when visited upon the families of persons on remand. It is a significant factor to be taken into account. 12. Whilst not uncommon, the likely period pending trial and the hardship to the applicant's family are significant considerations weighing in favour of the show cause application. Nevertheless, the seriousness of the offending, with its potential to have caused serious injury or even fatalities, combined with a reasonably strong prosecution case that the applicant was the offender, militate against a finding that continued detention has been shown to be not justified. 13. Weighing these factors, the release application is refused. ********** Endnotes 1. [2016] NSWCCA 110. 2. Trinh at [79]. 3. Trinh at [84]. 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: 28 September 2020