R v Ftelianos [2017] NSWCCA 211 | Case summary

Court of Criminal Appeal (NSW)|2017-08-28|Before: Hoeben CJ, Davies J, Bellew J

Solicitors: Director of Public Prosecutions (NSW) - Applicant O'Brien Solicitors - Respondent File Number(s): 2017/179282

Judgment

THE COURT: On 15 August 2017 George Ftelianos ("the respondent") was released on bail, subject to a number of conditions. On 22 august 2017, the NSW Director of Public Prosecutions ("the Crown") made an application pursuant to s. 50 of the Bail Act 2013 (NSW) ("the Act") for the respondent's detention.
The Court heard the Crown's application on 28 August 2017. At the conclusion of that hearing, the Court ordered that the application be granted, and indicated that its reasons would be published in due course. Those reasons now follow.

THE RESPONDENT'S CASE

Tendered in the respondent's case were the following documents: 1. an affidavit of Shalini Perera affirmed on 25 August 2017; 2. an affidavit of Olivia Tolley, solicitor, affirmed on 25 August 2017 annexing letters of support from Sally El Falak and Stephen Hancock; 3. statements by the Crown witnesses Isabella Williams and Katia Williams.
The affidavit of Ms Perera established that the proceedings against the respondent remain before the Local Court. An application has been made pursuant to s. 91 of the Criminal Procedure Act 1986 (NSW) for an order that witnesses attend for cross-examination at a committal hearing. That application is to be heard on 22 September. In the event that it is granted, the proceedings will obviously be further adjourned.
The letter from Ms El Falak establishes that she is presently engaged to the respondent, having been in a relationship with him since approximately April 2013. She confirmed that if released, the respondent is able to reside with her and her family. The letter from Mr Hancock confirms that in the event that the respondent is released he will have casual employment available to him through Mr Hancock's labour hire company.

THE PRESENT APPLICATION

The application before this Court is to be determined afresh and is not an appeal from, or a review of, the decision of the primary judge: See DPP v Hourigan [2017] NSWCCA 170 at [8].
It was common ground between the parties that the provisions of s. 16A of the Act applied to the present application. Accordingly this Court must refuse bail unless the respondent shows cause why his or her detention is not justified. The principles surrounding that requirement were set out in Moukhallaletti v The Director of Public Prosecutions (NSW) [2013] NSWCCA 314 at [50] and following, and in Hourigan at [9].

SUBMISSIONS OF THE CROWN

In support of the submission that cause had not been shown, the Crown relied upon: 1. the respondent's alleged association with an outlaw motorcycle gang; 2. the fact that the respondent is alleged to have been in the back seat of the vehicle at the time of the offending, and is further alleged to have attempted to fire a firearm himself; 3. the admissions said to have been made by the respondent regarding his involvement in the shooting; 4. the fact that the shooting took place on a busy street and amounted to the commission of an extremely serious offence which will necessarily result in the imposition of a significant custodial sentence in the event that the respondent is found guilty; and 5. the absence of any reliance by the respondent upon "special hardship", such that the need to obtain urgent medical treatment which is not available to him in custody.
The Crown further submitted that even if cause was shown, there were unacceptable risks that the respondent would: 1. fail to appear; 2. commit a further serious offence; 3. endanger the safety of victims, individuals or the community; and 4. interfere with witnesses or evidence.
In respect of the unacceptable risks in (ii), (iii) and (iv) above, the Crown relied upon the respondent's criminal record and, in particular, the circumstances surrounding the offending for which he was sentenced in 2015.

SUBMISSIONS OF THE RESPONDENT

In support of the submission that cause had been shown, counsel for the respondent relied upon: 1. what were said to be "significant weaknesses" in the Crown case; 2. the unexplained delay in charging the respondent; and 3. the fact that the respondent's parole status placed him a "unique position", and had the effect of reducing any risk.
Both orally and in writing, counsel for the respondent submitted that it was clear that the Crown case against the respondent was entirely dependent upon the account provided by the witnesses Isabella Williams and Katia Williams. It was submitted that an analysis of their respective statements, and the circumstances in which those statements were made, revealed a number of important considerations.
It was submitted, in particular, that when speaking with police in the immediate aftermath of the incident giving rise to the charge against the respondent, neither witness made any allegation against the respondent (or indeed any co-accused), and that it was not until some months later that they each gave an account to police which purported to link the respondent to what had occurred. Counsel also placed particular significance on the fact that it had emerged in 2016 that the allegation made by each witness against the respondent may have been motivated by a desire, on the part of each of them, to remain at liberty following their admitted involvement in other offending. Counsel further submitted that the statements of the two witnesses, even though they recorded admissions allegedly made by the respondent, did so in inherently vague and imprecise terms which necessarily affected the weight which might be given to that evidence. He also highlighted what he submitted were fundamental inconsistencies in their respective accounts. It was submitted that in all of these circumstances, the accounts given by the witnesses were inherently unreliable and that, if the matter went to trial, the evidence would inevitably attract a warning pursuant to s. 165 of the Evidence Act 1995 (NSW).
Counsel for the respondent further submitted that, quite apart from the issues arising from the statements of those two witnesses: 1. there was no positive identification of the person responsible for firing the shots, or of the passengers, by any civilian witness at the scene; 2. there was a complete absence of any forensic evidence linking the respondent to the commission of the offence; and 3. those persons who did observe events around the time of the shooting had given little more than generic descriptions of those involved, and had not provided a description of any participant which was consistent with involvement by the respondent.
Counsel for the respondent also relied on the fact that there had been a significant delay between the time at which the offence occurred, and the time at which the respondent was charged. Whilst counsel acknowledged that, generally speaking, delay in matters of this nature centres upon the time following arrest as opposed to the time preceding it, he submitted that the delay in the present case was nevertheless significant because (inter alia) it had the potential to frustrate the applicant's release on parole.
On the assumption that the Court was persuaded that cause had been shown, counsel's submissions then turned to the assessment of various bail concerns. In doing so, counsel acknowledged that the respondent's demonstrated history of violence was a relevant factor, and "unquestionably" gave rise to a risk. However, he submitted that such history was a relatively short one, and that this was not a case where the respondent had been incarcerated on multiple occasions, only to continue to offend.
In dealing with each of the relevant factors prescribed in s. 18 of the Act, counsel's ultimate submission was that any bail concern(s) could be appropriately addressed by the imposition of one or more conditions.

CONSIDERATION

The show cause requirement set out in s. 16A of the Act does not impose an onus upon the respondent to demonstrate special or exceptional circumstances. What it requires is that the respondent point to factors that, either alone or in combination, support a conclusion that his continued detention is not justified: Hourigan at [22].
The submissions of both parties in respect of this issue focussed upon the strength of the Crown case. Clearly, the Crown case against the respondent is based largely, if not solely, on the evidence of the two witnesses to whom we have referred. As the submissions of counsel for the respondent made clear, there will necessarily be a number of issues arising as to the reliability of that evidence. It seems clear that should the matter proceed to trial, the evidence will attract a warning as to its potential unreliability.
At the same time, it is not the role of this Court to predict, much less definitively determine, how the various issues arising from the evidence of those witnesses will be resolved. It would be impossible for the Court to do so. However the inescapable fact, which counsel for the respondent acknowledged, is that if the evidence of the two witnesses in question is accepted, the respondent will inevitably be convicted, and a lengthy custodial sentence imposed. In the circumstances, and notwithstanding the issues to which the Court's attention was directed, we are not prepared to accept the proposition that the Crown case is a weak one.
We also accept that the evidence establishes that there was a delay in charging the respondent over his alleged involvement in the incident which appears to have been attributable to the time taken to obtain various statements from the two witnesses in question. Whilst that is a relevant factor, we do not consider that it is one deserving of any significant weight.
In all of these circumstances we are not satisfied that the show cause requirement is not overcome. Further, even if we had reached a contrary view, it remains the case that there are two significant risks which, in our view, could not be appropriately addressed by the imposition of any condition(s).
Firstly, there is, in light of the applicant's criminal history, a clear risk of further violent offending. The Court was informed in the course of oral submissions that the applicant is currently undertaking courses in custody addressed to rehabilitation from drug use and violence. The fact that he is undertaking those courses at the present time reflects the fact that these remain ongoing issues.
Secondly, and again bearing in mind the respondent's history of violent offending, there is necessarily a risk (which counsel for the respondent acknowledged) of interference with witnesses. This is particularly so in circumstances where the evidence of the two witnesses to whom we have made referred effectively constitutes the entirety of the Crown case against the respondent. We are unable to conclude, in light of the respondent's criminal history, that such a risk can be properly addressed by the imposition of any condition(s).
It was for these reasons that the Court granted the Crown's application.

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: 11 December 2017

Crimes Sentencing Procedure Act 1999(NSW)

R v Ftelianos

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