Solicitors:
Solicitor for Public Prosecutions - Applicant Crown
Sayad & Co Legal - Respondent
File Number(s): 2016/178375
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Bails
Date of Decision: 13 October 2016
Before: Harrison J
File Number(s): 2016/178375
[2]
Judgment
HOEBEN CJ at CL:
Nature of proceedings
The respondent has been charged with the following offences:
Sequence 1 - Shoot at with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW), the maximum penalty for which is 25 years imprisonment, with a standard non-parole of 10 years.
Sequence 2 - Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act, the maximum penalty for which is 25 years imprisonment with a standard non-parole period of 9 years.
Sequence 3 - Knowingly direct activities of a criminal group contrary to s 93T(4A) of the Crimes Act, the maximum penalty for which is 14 years imprisonment.
A Release Application was heard in the Supreme Court on 13 October 2016 by Harrison J. His Honour granted conditional bail. This application is a Detention Application pursuant to s 50 of the Bail Act 2013 (the Act).
The Detention Application came before the Court for hearing on 21 October 2016. At the conclusion of submissions, the Court ordered that the grant of conditional bail on 13 October 2016 by Harrison J be revoked and that the detention order sought by the Crown should be made. Accordingly, the respondent is to remain in custody until further order of a court. The Court advised the parties that it would give reasons at a later date. This judgment sets out those reasons.
Factual background and Crown case
The Crown case is that the respondent and Danny Hanna are senior members of an Assyrian criminal group known as "DLASTHR" (pronounced "The Last Hour"). The criminal group is said to control certain drug territory within the Fairfield area and its surrounds. The criminal group has been involved in a number of violent conflicts in the past. These conflicts are said to have been with known rival criminal groups over drug supply. At trial the Crown proposes to adduce evidence of the existence of the criminal group and of an ongoing conflict between it and rival gangs.
It is the Crown case that the complainant in these offences is a member of a rival criminal group and that the motivation for the offending was this rivalry.
The Crown case is that early in the morning of 16 March 2016 the complainant became involved in a motor vehicle chase in the Edensor Park area. The respondent with Danny and George Hanna was in a white Toyota Camry motor vehicle. The complainant and an associate were in a white Toyota table-top utility. The Crown case is that as the white Camry was pursuing the table-top utility, one of its occupants leaned out on the rear passenger side pointing something and calling out "You dog" before firing up to three shots from a pistol. A tyre on the table-top utility blew out causing the vehicle to crash and stop.
The Crown case is that the respondent and Danny Hanna exited the white Camry and Hanna pointed a pistol at close range at the complainant's head and pulled the trigger. The pistol failed to fire. The respondent and Danny Hanna then attempted to stop the complainant from escaping but were unsuccessful. It is the Crown case that the respondent was part of a joint criminal enterprise intended to kill the complainant. The Crown relies on the fact that the respondent exited the vehicle with Danny Hanna and was present when he pulled the trigger of the pistol in what was clearly an attempt to kill the complainant.
The Crown relies upon the following matters to support its case.
1. Direct evidence (circumstantial and forensic) including electronic evidence which supported the allegations.
2. CCTV footage from various locations that supported and corroborated the evidence of a car chase and shooting.
3. Evidence of the complainant that he recognised the respondent whom he had known for many years.
4. The vehicle in which the respondent and his co-accused travelled on the night was registered in the name of one of their mothers.
5. The number of police emergency line "000" calls about the shooting at the time, including a call from the complainant.
6. The observation of tyre and other marks consistent with the complainant's allegations made by police who attended the scene.
7. The observation of bullet holes consistent with the complainant's allegations in the table top utility. Two holes were within the rear cabin area. It appeared that one projectile penetrated through the rear tray, front tray and into the cabin. The second projectile continued through the rear tray hitting the front tray/rear cabin area of the vehicle.
8. A number of electronically recorded conversations between the respondent and his co-accused which have yet to be fully transcribed and which are consistent with the complainant's allegations.
The respondent was born in 1975 and is now 41 years of age. He was arrested on 11 May 2016 and has been in custody since 19 May 2016. The matter is next before the Campbelltown Local Court on 26 October for mention. The Crown has made inquiries of the Campbelltown Local Court and has been advised that there is some likelihood that the matter will be ready for a committal decision before the end of 2016.
The officer in charge of the investigation advised the Crown that part of the Crown brief has already been served on the lawyers for the respondent and that further items from the brief were served on 20 October 2016. This material included further police statements, scene of crime officer statements and call charge records relating to the respondent and his co-accused. There is still outstanding brief material which includes transcripts of the listening device recordings. The audio of the listening device has already been served on the respondent. The further outstanding brief material includes statements and reports from telecommunication companies relating to the location of the respondent and co-accused persons based on cell tower positions.
Inquiries by the Crown of the Sydney District Court Registry have revealed that the earliest start date for a trial with an estimate of four weeks or more is 26 June 2017.
Show cause requirement
It was common ground that s 16A of the Act applies to the respondent because he has been charged with a serious indictable offence under Part 3 or 3A of the Crimes Act and the use of a firearm was involved (s 16B(1)(f)).
The respondent relied upon three matters to satisfy the show cause requirement. The first was what the respondent described as the "principle of restraint" which applied when the Court of Criminal Appeal was hearing a Detention Application after a Release Application had already been heard by a single judge of the Supreme Court. The Court was referred to various authorities which it was said supported the "principle of restraint" operating in such a way.
The second matter was the likelihood of a significant delay in the District Court in relation to trial listings. The effect of the submission was that inquiries revealed that a committal was unlikely to occur this year and that even if it did, there was a strong likelihood that the respondent would not come to trial until late 2017. The respondent submitted that this was an unreasonably long period for somebody, who had yet to be convicted of an offence, to spend in custody.
The third matter relied upon by the respondent was that the identification evidence was weak because it was clear from the complainant's statement that he did not know the name of the respondent. The respondent relied upon the bad character of the complainant and that when first spoken to by police and in his triple 000 call, he only identified Danny Hanna and made no mention of him.
The Court's attention was directed to the statement of DSC Guy, who first interviewed the complainant on the morning of the shooting. The respondent submitted that nowhere in that statement did the complainant make any mention of him. The respondent noted that the complainant did not mention him until 22 April 2016 when he made his police statement. In summary, the respondent submitted that the evidence of the complainant lacked credibility.
The respondent submitted that since the Crown case against him depended almost entirely upon the complainant's identification, which was problematic, it was in fact a weak Crown case and this impacted on the show cause requirement.
The Crown argued that the respondent's submission as to delay overstated its likely length. The Crown noted that most of the brief had been served and that there had been no unexplained, preventable or unusual delay. The Crown submitted that given the seriousness of the offending, the strength of the Crown case and the unacceptable risk factors if the respondent were at liberty, the delay before trial did not constitute an appropriate show cause consideration.
The Crown disputed the respondent's submission that the identification evidence was weak and therefore its case against the respondent was weak. In that regard, the Crown noted that there was evidence from the call charge records that at the time of the offending the respondent's brother was in Queensland and accordingly, there was no substance in the respondent's assertion that the complainant had identified the respondent's brother and not him.
Consideration
The complainant's failure to mention the respondent in his interview with DSC Guy is important but not decisive in assessing his credibility. There are a number of reasonable explanations for why he would not at that point in time have proffered an identification of the respondent. Since Danny Hanna was the person who had pointed a pistol at him and had tried to shoot him, he would have had that person at the forefront of his mind. Alternatively, the complainant was clearly not a person used to co-operating with the police and may well have had other reasons for not implicating the respondent at that time.
Similarly, while the complainant's bad character (he was a member of a rival criminal group) is important, it also is not decisive. Regrettably many shooting incidents which come before the courts involve one criminal group attacking another. That fact does not necessarily mean that the persons involved in the incident should not be believed. It is very much a matter for the jury.
The respondent's submission that it was appropriate for this Court to recognise the principle of restraint when dealing with the present application is misconceived.
In support of this submission, the respondent first made reference to Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 where observations were made by Beech-Jones J (Adams J agreeing; Gleeson JA declining to express a view) about the Bail Act making provision for de novo applications in respect of bail in this Court. The observations were directed to the Act itself and do not support the proposition that this Court should adopt a "principle of restraint".
The respondent next referred to a number of cases in the Court of Appeal, commencing with R v Roberts & Lardner (1997) 97 A Crim R 456 where Mason P said (at 459):
"The jurisdiction of the Court of Appeal to entertain this application is clear in the light of s 28 and the power of the single judge to refer a matter to this Court as has occurred. Indeed it is not disputed. Rowe's case and Brown's case make it plain that that jurisdiction is an original jurisdiction not dependent upon demonstrating error on the part of the trial judge. However, it is obviously a matter in which an appellate court should exercise restraint having regard to the fact that a trial judge will be in a much better position than the appellate court to weigh up the various factors supporting or negating an application for bail.
…
I reiterate that it is, however, important that an appellate court recognise the limitation under which it addresses applications such as this and the superior position and usually greater experience of trial judges who are dealing with matters of this nature."
The other cases referred to were R v Budiman (1997) 97 A Crim R 548; Director of Public Prosecutions (NSW) v Louizos [2008] NSWCA 220; Director of Public Prosecutions (NSW) v Louizos [2008] NSWCA 271; and DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51. They add nothing except to confirm acceptance of the restraint earlier referred to by Mason P.
Each of these five cases were concerned with bail having been granted or refused by a judge of the District Court. In R v Roberts & Lardner, it was during the course of trial, whereas in the others it was after a jury returned a verdict of guilty and before sentence or after sentence and, in effect, pending appeal.
These cases are of historical interest only. The practice of bail applications to the Supreme Court being removed into the Court of Appeal where the application arose from a matter pending in the District or Supreme Courts was firmly laid to rest in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. Moreover, the fact that this Court has jurisdiction by virtue of s 68 of the Bail Act and is required to determine applications on a de novo basis by reference to the relevant provisions of the Act, cannot be doubted. Nothing in the current Bail Act supports the proposition that any court or other bail authority must exercise a "principle of restraint".
Another matter which the respondent relied upon was expressed in written submissions as follows:
"It is submitted that given the 'double jeopardy' which an accused person faces in respect of a detention application - particularly in this Court - the restraint exercised should be similar to that adopted by the Courts in relation to Crown appeals against sentence."
That contention is also based upon an historical legal notion that no longer exists. The "double jeopardy" principle in this Court's determination of Crown appeals against sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) was abolished with the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) in 2009.
It follows that the respondent's submission that there is a "principle of restraint" and that it ought to be applied by this Court is wrong and must be rejected.
I have concluded that the show cause requirement has not been satisfied. Given the seriousness of the offending, the delay, even on a pessimistic estimate, is not excessive or unusual. The delay so far experienced has not been preventable or excessive and is reasonable in the circumstances.
I have also concluded that the identification evidence is strong. The hesitation on the part of the complainant was as to the first name of the respondent, not as to his participation in the offending. The complainant's failure to initially mention the respondent is readily explainable. There was no challenge to his capacity to identify the respondent as a person whom he had known for many years and who was with Danny Hanna whom he also knew well. As the Crown submitted, the complainant was not a person who was comfortable with co-operating with the police. Moreover, it is not unreasonable that his initial focus when talking to police was on the person who had tried to shoot him.
For the above reasons, the show cause requirement in relation to these offences has not been satisfied by the respondent.
Unacceptable risk
Even if the respondent were successful in meeting the "show cause" requirement, he has not satisfied the following bail concerns, i.e. that if released from custody he would not:
Commit a serious offence (s 17(2)(b));
Endanger the safety of complainants, individuals or the community (s 17(2)(c)); and/or
Interfere with witnesses or evidence (s 17(2)(d)).
I am, however, satisfied that if bail were granted, the respondent would appear at court as and when required. He does have significant ties to the community and a substantial amount by way of surety was put forward.
Apart from their seriousness, the offending and the motivation for the offending, provide the major reason why the release of the respondent from custody constitutes an unacceptable risk.
The respondent is a senior member of the DLASTHR Assyrian crime group. The group has been involved in the supply of prohibited drugs and violent offences, including shootings and murders. The group has been involved in violent territorial wars with rival criminal groups. This appears to have been the background to the alleged offending in this case.
The complainant is an essential witness in the Crown case. The withdrawal of his evidence for any reason would effectively bring the Crown case to an end. In that regard it should be noted that in the early hours of 10 July 2016 the complainant's home was shot at six times by unknown offenders. Should the respondent be released on bail, there is a real risk that the level of attacks on the complainant would increase. It is no answer to that risk to say that the respondent could not have had anything to do with the attack because he was in custody. His senior position in DLASTHR would enable him to "arrange" such things even while in custody or under "house arrest" at his home.
It follows that there is an unacceptable risk that if released from custody the respondent would be likely to interfere with witnesses or evidence. The nature of such interference is likely to involve a further attempt to kill or at least prevent the complainant from giving evidence.
Should there be a further attempt on the complainant's life, such as has already occurred, there is a likelihood that members of the public would be at risk given the indiscriminate nature of the shooting which has so far occurred, both when the offending took place and during the attack on the complainant's home in July.
These considerations significantly outweigh the need for the respondent to be at liberty to prepare his case and the possibility that his trial will not come on for hearing until the latter half of 2017. For these reasons, I am of the opinion that if the respondent were at liberty there would be an unacceptable risk of him committing a serious offence, of putting the community at risk and of interfering with the complainant. Given the nature of the alleged offending, I am not persuaded that bail conditions would appropriately ameliorate that risk. I have concluded that if released from custody the respondent would constitute an unacceptable risk to the community.
R A HULME J: I agree with Hoeben CJ at CL.
WILSON J: I agree with Hoeben CJ at CL.
[3]
Amendments
19 November 2019 - DPP have advised that the trial in the above matter has been completed - judgment no longer required to be restricted.
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Decision last updated: 19 November 2019