Saka v The Queen [2001] WASC 92

Supreme Court of WA|2001-04-06|Before: Scott J, Kechnie J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SAKA -v- THE QUEEN [2001] WASC 92

Bail - Offence of extortion - Significant time in custody before trial - Risk to administration of justice if bail granted - Balance of factors

Roffey v The Queen, unreported; CCA SCt of WA; Library No 940601; 2 November 1994

1 In common with many applications for bail, this application raises acutely the tension between the presumption of innocence of an accused person in respect of the charge which has been brought, and the need to ensure the integrity of the trial process.

2 The balancing of these competing, and sometimes irreconcilable, considerations is never easy.

3 On 3 August 2000 the applicant was charged with the crime of extortion.

4 The principal Crown witness is one John Yilmaz Cetinkaya.

5 It is not necessary to say more about the charge except that it relates to conversations allegedly made between the applicant and one other person on the one hand, and Cetinkya on the other, at Cetinkaya's business premises. The only prosecution witness to the alleged extortion demand is Cetinkaya, although there is material in the prosecution brief capable of confirming to some degree, Cetinkaya's testimony.

6 The applicant applied for bail in the Court of Petty Sessions but was refused.

7 Subsequently, the applicant applied for bail before Scott J. The application was heard on 20 November 2000.

"It seems to me that it is in the interest of all parties that the applicant remain in custody at least until after the committal proceedings are over. At that stage I would be prepared to revisit a bail application, once those papers can be placed before me and then I can test in proper form the strength or otherwise of the prosecution's brief, but at the moment I am not satisfied that this is an appropriate case for bail.

I do not think it matters where the applicant proposes to live, nor do I think it matters the size of the bail that is fixed or the number and nature of the sureties proposed. It is simply a matter of insuring (sic) the integrity of the system of justice and to my mind that is what is at stake in this bail application."

9 The foreshadowed preliminary hearing was held on 29 January 2001. The principal prosecution witness Mr Cetinkaya gave evidence and was extensively cross-examined. A number of other witnesses also gave evidence.

10 At the conclusion, both the applicant and the other person were committed for trial to appear in the District Court on 4 April 2001.

11 The applicant has renewed the application for bail.

12 The jurisdiction of the court may not be further invoked by the defendant unless he satisfies a Judge that new facts have been discovered, new circumstances have arisen, or the circumstances have changed since the occasion when the jurisdiction was invoked.

13 I determine that the applicant may invoke the jurisdiction of this Court to make a further application for bail. It is implicit in the reasons of Scott J that he would have regarded the completion of the preliminary hearing as a new circumstance, and I am of the same mind.

14 The Bail Act Part C(1) sets out some of the principles to be taken into account in the exercise of discretion to grant or refuse bail.

15 Relevant to this case, some of those questions are:

"(a) ... if the defendant is not kept in custody, he may:

(i) fail to appear in court in accordance with his bail undertaking;

...

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person."

16 The general approach is conveniently set out in K.M. v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988. Although Nicholson J was dealing with applications for bail under the Criminal Code s 573, I consider the following passage to be applicable to applications under the Bail Act, except insofar as the Bail Act expressly modifies the position.

"It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. This position is well established; R v Fraser (1892) 13 LR (NSW) 150; R v Lythgoe (1950) QSR 5; R v Watson (1947) 24 WN (NSW) 100; R v Light [1954] VicLawRp 25; [1954] VLR 152; R v Fisher [1964] Tas SR NC 7; R v Appleby 83 WN (PT1) (NSW) 300; Reg v Wakefield (supra) and Burton v R (1974) 3 ACTR 77. Those decisions discuss factors which are relevant to the exercise of the Court's discretion, attention to which is directed in the sub-headings which follow in these reasons."

18 In the present case there are a number of factors to be taken into account:

19 The applicant is aged 34. He is a self-employed plastering contractor. He has been married for 10 years. He has three children aged 8, 6 and 2 who resided at the family premises at Unit 1/10 Dilwynia Place, Meadow Heights, Victoria.

20 The older children attend primary school in Victoria.

21 He deposes that his wife is having difficulty coping as she is used to the applicant providing financial assistance and support. I was told by counsel that the applicant's family has had to move in with his parents.

22 It is obvious that continued detention will have an adverse effect on the applicant and his family, particularly bearing in mind the young age of the children.

23 The applicant has a significant record for violence and traffic offences. Apart from one matter, the applicant's record would not of itself militate against the grant of bail.

24 The one matter which is placed in the balance is the applicant's disturbing record of failing to appear to answer bail. Whether this has occurred on four occasions, as asserted by counsel for the applicant, or six occasions as asserted by counsel for the Crown, is immaterial because taking the lower number, it nevertheless indicates a disregard for the processes of the court. The applicant has no ties to Western Australia other than the pending proceedings.

25 The possibility of the applicant failing to appear can to a considerable extent, be overcome if the applicant's undertaking to appear is buttressed by an approved surety in a substantial sum.

26 A tariff for the crime of extortion has not developed in Western Australia, probably because the circumstances in which the offence may be committed cover a considerable range.

27 It is likely that, if convicted, the applicant would face a substantial term of imprisonment which would not have been completely served by the time of trial. The question of parole would be an issue.

28 The fact that the time spent in custody may be taken into account in an ultimate sentence carries little weight. The danger is an unexpressed assumption of conviction. If the applicant is in due course acquitted, then he will have spent a lengthy period in custody without any redress.

29 The principal Crown witness has now given evidence and been cross-examined. In general the witness maintained the account of events which he had given in a statement to police. In the vernacular of trial lawyers, he has largely come up to proof. Counsel for the applicant has quite correctly pointed to several matters within his testimony which might be regarded as inconsistencies, the most material of which is the alleged position of the knife which was presented to the witness and whether it was presented to his throat or his side.

30 My reading of the transcript does disclose a certain ambiguity which may or may not be explained by language difficulties. Nevertheless, the point made by counsel is well made.

31 In the end, it seems common ground that the Crown case is neither overwhelmingly strong, nor so weak that a conviction is fairly unlikely.

32 To the limited extent that it is necessary for me to form an opinion as to the strength of the Crown case, it has reasonable prospects of success.

33 None of the matters so far discussed would, singly or in combination, cause me to exercise my discretion against the grant of bail. The next two matters are decisive.

34 I was advised from the bar table, and accept, that if the applicant is remanded in custody the earliest time for a trial is likely to be September or October 2001. I note that there is a co-accused, so the listing of the matter may be, to that extent, complicated. There are also proceedings in Victoria against the applicant's brother and uncle which may have a bearing on the date for a trial. Should the applicant be remanded in custody, I regard September as the earliest date upon which the applicant might be brought to trial. I acknowledge the reasonable possibility that there may be a further delay of some months.

35 Counsel at present estimate the length of trial as between 8 to 10 days.

36 If the applicant is released to bail, then it is unlikely he will obtain trial before 2002 and perhaps as late as June.

37 In short, on the most optimistic view, the applicant is liable to be in custody for a period of over a year before he can be brought to trial.

38 The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.

39 A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.

40 The State, using this term in its widest sense, brings the charge against an accused person and the State, in consequence, bears the burden of providing sufficient resources to enable the trial of a person to take place with reasonable expedition. Where, as here, the State objects to the release of an applicant on bail on the ground that the administration of justice may thereby be imperilled, it is incumbent on the State to provide the resources necessary to minimise the consequent injustice of a continued detention of a person who is at law presumed innocent of the charge. Consequently, where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention.

41 The Crown put before Scott J material which it said indicated that if the applicant was not kept in custody he may endanger the safety of other people, or interfere with witnesses, or otherwise obstruct the course of justice.

42 That same material is before me. There has been no material filed in response.

43 There was before Scott J, an affidavit of Jason Phillip Woods.

44 Although pursuant to the Bail Act s 22, I am able to receive such evidence, and I have disregarded the affidavit of Woods. In my view it provides too speculative a base to be relied on.

45 The material on which the Crown relies is contained in annexures to the affidavit of the investigating officer, Stephen John Post.

"4. I have been informed by Detective Senior Constable James Ronke of the Victorian Police Service and verily believe that whilst in custody at C.W. Campbell Remand Centre at Canning Vale in the State of Western Australia, the Applicant has made several telephone calls to persons in Melbourne, demanding that those persons apply pressure and make threats to the complainant, Yilmaz Cetinkaya, and family members of the complainant, with a view to having the complainant withdraw the complaint of extortion. These telephone conversations were spoken in Turkish and they were recorded. I am presently in the process of having those telephone conversations translated and transcribed."

47 Significantly, there is material indicating that the applicant's brother has allegedly assaulted the complainant's brother, threatening to kill him and producing a pistol in order to bring pressure upon the complainant to withdraw the charge. The complainant's uncle has allegedly also made threats to the complainant's family in Melbourne with a view to put pressure on the complainant to withdraw his charge on the basis that the uncle himself was at risk. Fevzi Cetinkaya, the person allegedly assaulted by the applicant's brother, has given a statement that around the time of the alleged extortion he was threatened by the applicant in a telephone conversation. He was threatened by the applicant's brother on several occasions prior to the alleged assault, the threats directly relating to bringing pressure to bear on the complainant to withdraw the charges.

48 The complainant's uncle, Recep Cetinkaya, who has been charged with perverting the course of justice, has given a statement under caution to police. His statement asserts that he was telephoned by the applicant, the applicant then being in prison, to get the uncle to place pressure on the family of the complainant. In the course of each telephone conversation it was asserted that the applicant would say that if the problem was not resolved: "... the first person I'll deal with is you." He made threats of violence against the members of the Cetinkaya family, but the uncle was first in line.

49 Making due allowance for the fact that Recep Cetinkaya was then under caution facing a possible charge of perverting the course of justice and would thus have a motive to minimise his own involvement and maximise the applicant, nevertheless the material carries considerable weight. The telephone calls emanating from prison were recorded. I have not been provided with a translation but the applicant has not sought to dispute the evidence that such calls were made. For the purposes of this application I accept the evidence of Mr Post in the passage of his affidavit set out above.

50 The applicant has a past history of violence. There is credible evidence he has made threats with a view to having the charges withdrawn. There is credible evidence that his brother has assaulted members of the complainant's family with the same aim. I note that his brother has been charged and those charges have not been resolved.

51 I am very concerned about the potential for injustice in the length of time the applicant will remain in custody before trial. Nevertheless, the Crown has discharged the heavy burden to which I have earlier referred and persuaded me that in the circumstances of this case, the overall interests of justice are best served by the continued detention of the applicant.

52 I consider the risk to the integrity of the trial process such that no bail terms and conditions could overcome a real possibility of interference to witnesses and the risk of safety to the complainant and his family.

53 In consequence this application for bail is refused.

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