In R v Mohamed Hussien [2021], Mr Strik acted for the applicant/accused Hussien in a bail application in the District Court of NSW. The hearing occurred on 8 July 2021 and a decision was delivered on the same day.
Background:
Hussein made a bail application. There were numerous allegations against him:
- Intimidation of a person with intent to cause that person fear and physical/mental harm,
- Discharging a pistol with intent to cause grievous bodily harm,
- Discharging a pistol with reckless disregard for the safety of another person,
- Possession of a pistol without licence in contravention of a firearms prohibition order then in force, and
- Possession of a pistol magazine in contravention of a firearms prohibition order then in force.
All these alleged offences were serious and in the ‘show cause’ category, meaning that the accused has the burden of proof on the balance of probabilities to show cause that his detention is not justified.
Legal Reasoning:
Applicant’s Argument
Hussein argued that the delay, the hardship and loss of liberty whilst in remand should be relevant considerations in determining his bail. He noted that the trial had been delayed whilst the accused had been incarcerated since 9 July 2020, except for a period of confining bail. This means he had been incarcerated for one year and would be incarcerated for ten more weeks until his trial.
A letter from Hussein’s mother also stated that if he was granted bail, he could reside with her and her residence and be under her care until the hearing.
Adverse Factors
His Honour stated that whilst the above factors were indeed relevant, they did not disproportionately outweigh the nature of the offences.
He referred to the strength of the prosecution’s evidence, including Hussein’s thumbprint on an ammunition magazine for a weapon. Additionally, the serious nature of the alleged offences raised a risk of Hussein’s danger to the community, which was amplified by his previous non-compliance with bail conditions in the past.
He also considered the relatively short (ten-week) duration until trial.
Orders:
Montgomery DCJ refused Hussein’s bail application. He also required prosecution to inform the accused of the prosecution’s readiness for trial, including a description of the whole Crown Brief, within a prescribed time period.
Significance:
Montgomery DCJ referred to the “lacklustre” way that the prosecution carried out their case as “sad” and contrary to broader societal values and purposes of criminal law legislation.
Though this was not determinative in the present case due to the strength of the considerations against Hussein, it demonstrates a serious judicial concern with the systemic administration of criminal justice.
Anthony Strik accepts briefs in bail applications and District Court appeals. If you require experienced legal representation in this area of law or the Federal Circuit and Family Court of Australia, please contact his chambers.