Nature of application
A Release Application was heard in the Supreme Court on 2 February 2015 in relation to the respondent. Davies J granted conditional bail on that occasion.
The bail conditions imposed were:
1. That the accused enter into an agreement to observe the following specified requirements as to conduct while at liberty on bail:
1. To be of good behaviour.
2. To report to the Blacktown Police Station once daily between 8am and 6pm on Monday, Wednesday and Saturday.
3. Not to apply for any new passport or travel document.
4. To live at xxxxx with Aboulgasim Yagoub.
5. Not to associate or communicate by any means with the victim of the offences charged.
6. Not to travel to Liverpool, except for the purpose of attending court or seeing his lawyers.
7. Not to have any contact in any way (including via a third party) with his brother, Hussein Kugor, TE and FA.
8. To appear at Campbelltown Local Court on 11 February 2015 and thereafter as required.
9. To comply with a curfew: The applicant is not to be absent from the address at which he is required to live between the hours of 8pm and 6am.
10. That one acceptable person deposit the sum of $5,000 in total in cash and enter into a bail security agreement or agreements to forfeit the amount if that person fails to comply with the bail acknowledgment. An acceptable person is the applicant's father, Abdel Rahman Kurtikaila.
The Crown brought a Detention Application (the application) pursuant to s50 of the Bail Act 2013 (the Act). That application was opposed by the respondent and was heard by the Court on 18 February 2015. The Court refused the Detention Application and advised that it would provide reasons in due course. These are the reasons.
It was common ground that the application before the Court was to be heard de novo.
The Crown case
The Crown case as presented on this application was as follows. While there are some aspects which could be regarded as beyond argument, it will be appreciated that there are others which are liable to be contentious.
R v Kugor [2015] NSWCCA 14 | Case summary | Zoe
On 21 June 2014 the complainant, who was then aged 16, was sitting outside the Liverpool Library when approached by four men of African appearance. This was confirmed by CCTV film. The respondent and his identical twin brother sought to persuade the complainant to go with them to a nearby car-park but she initially refused. After some further conversation, it was established that the complainant and the young men had a mutual friend called Jason and the complainant agreed to accompany the four men to the car-park from where they would drive to visit Jason.
The respondent and his brother walked with the complainant to the car-park while the other two men went away. The CCTV film showed that these other two men continued to wait in the vicinity outside the stairwell where the complainant said the offences took place. These two men were juveniles.
When the complainant entered the stairwell to the car-park, the respondent grabbed her and forced her to engage in fellatio. This lasted about 10 minutes. The respondent then pushed the complainant to the floor of the stairwell and engaged in vaginal intercourse which she described as "aggressive and forceful". The complainant did not scream because she was afraid. The respondent held her by the front of the neck as he had intercourse with her. He did not use a condom and the complainant did not believe that he had ejaculated.
The respondent's brother then approached the complainant and forcefully lifted her from the ground by taking her wrist. He walked her out of the stairwell to the ground level of the car-park where he pushed her to the ground and forced her to engage in fellatio for about 15 minutes. The complainant said that he was "extremely forceful" and was holding her head throughout. The respondent's brother then pushed her to the ground, pulled her skirt up and engaged in vaginal intercourse. The complainant did not believe that he had ejaculated. He did not use a condom. She did not see the respondent while this was happening.
The respondent and his brother then left. When the complainant went to her handbag, she noticed that her mobile phone had been taken.
A witness "A" had observed the four young men accompany the complainant into the car-park. Sometime later, he saw three of the young men running with their heads down. A short time after that, he saw the complainant walking towards him. She was shaking and said "They took my purse and my phone. I want my phone back. I got raped."
The witness called triple 0 and the complainant spoke to the operator. She said:
"Some guys tried to rape me … well … but one of them did it with me."
The operator asked if she was "raped by one of them" and she said "Not really, well it was but it wasn't". When asked how many males there were she said "Six but only two of them did it". The complainant told the operator that they were African. The operator asked whether they had sexually assaulted her and she said "Well they kind of …".
The police interviewed the respondent on 22 July 2014. He agreed to the following matters:
1. On the evening of 21 June 2014 he had been with two friends and his identical twin brother.
2. He had spoken to the complainant that night.
3. He and his brother had gone to the stairwell with the complainant but they had come out of the stairwell together.
4. The complainant's phone was taken from her handbag but he did not know who took it.
5. He and his companions had run away because they had just stolen a phone.
6. He identified his companions from the CCTV film.
7. He denied that anything of a sexual nature had occurred. He could not explain how there would be a male DNA profile inside the complainant.
The respondent's identical twin brother refused to participate in an interview with the police.
The complainant identified all four accused young men from photos which she was shown.
DNA evidence was obtained. The effect of the DNA evidence was that it matched the DNA of both the respondent and his identical twin brother. This DNA profile was taken from locations on the complainant, including her vagina and mouth. Semen was detected in some of those locations.
Because the respondent and his brother were identical twins, the DNA evidence was consistent with:
1. DNA originating from the respondent only.
2. DNA originating from his twin brother only.
3. DNA originating from both the respondent and his brother.
The chance of the DNA coming from someone else was one in one hundred million.
The respondent was in custody from 22 July 2014 until his release to bail on 3 February 2015, i.e., approximately six and a half months. While in custody, the respondent was attacked by a group of prisoners causing him to be admitted to St Vincents Hospital. He was transferred to another prison. While in custody he was "in protection" which meant that he was locked in his cell from 3pm to 7am daily. Since his release, he has been able to obtain employment and is currently working as a labourer. He has no drug or alcohol problems.
The respondent is aged 20. He came to Australia in 2004 with his parents, two sisters and twin brother. He has another brother, who was born in Australia, who is 8 years old. The respondent was born in the Sudan but is now an Australian citizen. The respondent's mother lives in Townsville with his younger brother and two sisters. His father was living with them but came to Sydney for his bail application and intends to remain in Sydney until the legal proceedings involving the respondent and his brother are finalised.
The respondent has a partner and an eight month old daughter. They do not reside with him but he sees his daughter three - four times per week.
The complainant was a stranger and he had had no contact with her before 21 June 2014 and has had no contact since. He says that he has no knowledge of where she lives and has no reason to attend the Liverpool area. He currently has no passport.
The respondent has a minor criminal record. He was convicted of an offence of common assault, which occurred at 11pm on 23 February 2014. The background to that offence was an altercation which arose between the respondent's brother, another friend and the victim at Fairfield railway station. This led to an attack by the respondent's brother and the friend on the victim in which the respondent joined. The respondent does not appear to have played any part in the events leading up to the physical assault. He was convicted at Fairfield Local Court on 31 March 2014 and received a bond under s10 Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for 2 years.
Arising out of the events of 21 June 2014 the respondent has been charged with the following offences. Two counts of aggravated sexual assault in company; one count of robbery in company; two further counts of aggravated sexual assault in company. Those latter two offences are based on the Crown's contention that he was engaged in a joint criminal enterprise with his brother to enable his brother to commit the two sexual assaults attributed to him.
The Court was advised by the Crown that the prosecution brief had been provided to the respondent's legal advisors. No response had been received. No committal proceedings have yet taken place. It was common ground that the earliest date on which the matter could proceed to trial would be October 2015 and that the trial date might well be later.
The Detention Application
It was common ground that the offences with which the respondent has been charged do not come under s16B of the Act which means that the respondent does not have to show cause why his detention is not justified. Accordingly, the question of whether or not the respondent should be detained in custody depends upon whether the Court is satisfied that the respondent constitutes an unacceptable risk.
The relevant sections of the Act provide:
"17(1) A bail authority must, before making a bail decision, assess any bail concerns.
(2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will:
(a) fail to appear at any proceedings for the offence, or
(b) commit a serious offence, or
(c) endanger the safety of victims, individuals or the community, or
(d) interfere with witnesses or evidence.
(3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.
…
19(1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.
(2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will:
(a) fail to appear at any proceedings for the offence, or
(b) commit a serious offence, or
(c) endanger the safety of victims, individuals or the community, or
(d) interfere with witnesses or evidence.
…"
The bail concerns to be considered as part of the assessment are set out in s18 of the Act. It was agreed between the parties that the following paragraphs of s18(1) were relevant to this application:
"18(1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division:
(a) the accused person's background, including criminal history,
circumstances and community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
…
(f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
(g) whether the accused person has any criminal associations,
(h) the length of time the accused person is likely to spend in custody if bail is refused,
(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
…
(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
…
(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.
…"
The Crown has not established that the respondent will fail to appear at any proceedings for the offence. He is living with his father and a family friend. He has strong family ties to Australia in that all of his family reside here and he is an Australian citizen. He does not have a passport and has undertaken not to apply for one while these proceedings are pending. He has a partner and an eight month old child. Most importantly, his father has made a deposit of $5000 which will be forfeited if he fails to attend any proceedings for the offences with which he has been charged. Nothing was put to the contrary except that the offences are serious and provide an incentive for leaving the jurisdiction.
I accept that the offences are serious. It is also clear that if the respondent is found guilty of any of the offences, he will certainly receive a custodial sentence.
I have concluded that the prosecution case is reasonably strong. It does, however, have its difficulties. The robbery offence cannot be made out on the facts alleged. At most, the facts support an offence of "stealing from a person", although it is not clear what part if any the respondent played in the taking of the phone.
What the complainant said in her triple 0 phone call does create some difficulties for the Crown. This is particularly so when an identical twin is involved and the DNA evidence is not able to distinguish between the respondent and his identical twin brother. These difficulties are not insurmountable for the Crown but they do exist. A difficulty for the respondent is the fact that he told the police no sexual activity took place, which is clearly contradicted by the DNA results. Taking all those matters into account, I have concluded that the Crown case is reasonably strong.
The respondent has a relatively minor criminal record, with only one serious matter on it, being the "common assault" which occurred in February 2014. While the facts relating to that offence show others initiated the altercation, the respondent did participate in it for which he received a 2 year good behaviour bond. These offences, if proved, occurred within 3 months of the good behaviour bond being imposed. This gave rise to a concern as to whether the Court could be satisfied that the respondent would observe his bail conditions and not engage in further offending.
There is a possibility that he will commit further offences and the evidence that he committed the subject offences while on conditional liberty argues against him. However, those concerns can be adequately met by the imposition of strict bail conditions.
My reasons for reaching that conclusion are these: His criminal record to date is relatively minor. He has now spent over 6 months in custody during the course of which he was bashed by other inmates. The respondent would now be well aware that any breach of bail conditions, and most particularly any offending at all, will result in him returning to custody until these offences have been finalised. He is subject to a curfew condition which will be further strengthened by an enforcement condition which will enable the police to check whether the curfew is being complied with. It is well recognised that offending during daylight hours (particularly offending of a sexual kind) is much less prevalent than at night.
A matter of concern to the Court is the delay likely to be experienced by the respondent before these matters are finalised in court. He has already spent 6½ months in custody and if the Crown's application were granted, on the most optimistic estimate he would spend a further 9 months in custody before this matter could come to trial in the Campbelltown District Court. As was fairly conceded by the Crown, the time in pre-trial custody might well be longer. It is a very serious matter to deprive a citizen of liberty for such a long period of time when he has not been convicted of any offence. This is particularly so when such custody will be served under conditions of "protection" which are more onerous than those experienced by the normal prison population.
When all those bail concerns are taken into consideration, the only real concern is whether the respondent is likely to commit further offences while on bail. For the reasons indicated, that possibility derives some but only limited support from his criminal history. To the extent that it remains a continuing concern, it can be met by the curfew and enforcement conditions which have been imposed. On the other hand, there are a number of compelling reasons why the detention application should be refused. These include the likelihood of lengthy pre-trial custody and the absence of any previous serious criminal offences.
It follows that I am not satisfied that the granting of bail to the respondent will create an unacceptable risk.
Conclusion and orders
The Crown's application for a Detention Order is refused. The respondent's bail should be continued under the conditions imposed by Davies J on 2 February 2015. At the request of the Crown, the Court has imposed the following additional Enforcement of Curfew condition to the bail conditions already imposed:
"Enforcement of Curfew Condition:
The Respondent is to present himself at the front door of his residential address at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so having regard to the rights of other occupants of the premises to peace and privacy."
R A HULME J: I agree with Hoeben CJ at CL.
R S HULME AJ: I agree with Hoeben CJ at CL.
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Amendments
25 February 2015 - Omission of Judges' names on cover sheet.
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Decision last updated: 25 February 2015