Supreme Court New South Wales Medium Neutral Citation: Raad v R [2015] NSWSC 532 Hearing dates: 12 February 2015 Date of orders: 12 February 2015 Decision date: 12 February 2015 Jurisdiction: Common Law Before: McCallum J Decision: Release application is refused Catchwords: BAIL – release application – show cause requirement Legislation Cited: Bail Act 2013 (NSW) – ss 16A, 17(2)(d), 18, 18(1)(h), Firearms Act 1996 – s 71 Category: Principal judgment Parties: Omar Raad (Applicant) Regina (Respondent) Representation: Counsel: D Robinson (Crown) D Drewett (Applicant) Solicitors: Leigh Johnson Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2014/218372 judgment 1. HER HONOUR: Before the Court is a release application by Mr Omar Raad. Mr Raad stands charged with a series of offences all arising effectively out of the same incident or series of incidents. The date on which it is alleged the offences were committed is 26 April 2014 and the applicant has been in custody since his arrest on that date. 2. One of the offences with which Mr Raad is charged is the offence of possessing an unauthorised prohibited firearm contrary to s 71 of the Firearms Act 1996. Consequently the application carries a show cause requirement under the recently amended provisions of the Bail Act 2013, since that is a serious indictable offence under the Firearms Act involving the use of a firearm. 3. Briefly the allegations arise out of what appears to have been a measure of developing conflict between the applicant, who used to run a market stall at Ettalong Beach markets, and the Altavilla family, who are the owners of those markets. 4. It is alleged that in that context the applicant confronted the alleged victim, Mr Matthew Altavilla, and at some point in his alleged threats to that man produced a knife similar to a fishing or camping knife. I was informed on the present application that no such weapon has ever been found. 5. According to the police statement of facts during that confrontation the step-daughter of the applicant, then described as 16-year old daughter 'B', intervened to try to take the knife from the applicant. The statement of facts asserts that the applicant then threw the knife towards the victim, missing him by a metre. 6. It is further alleged that there was a later confrontation when the applicant's 10-year old son approached his mother, the partner of the applicant, and said "Mum, mum, come quick. Dad's had a fight". It is alleged that at that point the applicant made a statement suggesting an intention to confront the alleged victim again, saying to his partner, Ms Williams, "Come on, get in the car. I'm gonna kill the bastard". It is alleged that an independent witness at that point, a Mr de Souza asked, "Who is that, Hass?" The name "Hass" being a nickname for the applicant. It is alleged that the applicant replied "Matthew. I'm gonna kill him. I've got a gun". According to the police case the applicant then produced a white plastic bag containing a sawn-off shotgun with a single barrel. 7. The applicant was later found by police in possession of that firearm together with cartridges which I am told are appropriately used in that firearm. 8. When interviewed by police he stated that he had had a verbal altercation with the victim after which he had walked away and driven off. He denied later having driven past the victim's residence and he denied possessing or producing a firearm. He told police the firearm must have been planted in his car by the victim. 9. The possession of that firearm is the most serious offence with which he is charged and, as already noted, is the offence which gives rise to the show cause requirement. 10. As already noted, the provisions in producing the show cause requirement are relatively new and it remains to be explored precisely how the task that caught those requirements interacts with the second task which is mandatory in any bail application of assessing any bail concerns. 11. The effect of the Act is that if cause is shown the Court must proceed to consider whether there are any unacceptable risks. However, the fact that an applicant has shown cause is not relevant to the determination whether or not there is an unacceptable risk. 12. The requirement to show cause is at large and appears plainly enough to impose some kind of onus on an applicant. Section 16A states that a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. No criteria are specified in the Act for making that determination. 13. Conversely, the unacceptable risk test, which is mandatory in any bail application, is highly prescriptive. Section 18 sets out a list which is both mandatory and exhaustive of the factors to be considered by the bail authority in assessing bail concerns under the relevant provision of the Act. Some of the factors listed in s 18 are logically relevant to the task of determining whether an applicant has shown that his or her detention is not justified. 14. An obvious example is the factor of delay, which is cited in s 18(1)(h) "the length of time the accused person is likely to spend in custody if bail is refused". 15. Conversely, however, as already noted, the Act makes plain that satisfaction of the show cause requirement does not inform the risk assessment test and accordingly it is clear that there were intended to be two discrete tasks. As a matter of practice the Court will often consider the two issues together after hearing all of the evidence and all of the submissions directed to both tasks. 16. It is important, however, for the Court to keep in mind that whereas the applicant evidently bears some kind of onus on the show cause test, in my view, it is equally clear that the risk assessment test ought to be treated as one to be considered based on matters brought forward by the Crown. Whether it is accurate to describe that as an onus is not necessary for me to determine or explore. But the important consideration is not to import the task or burden of persuasion under s 18 into the show cause part of the test. In any event, as I have already indicated, as a matter of practice the Court will often consider all of the matters in the mix together and reach a conclusion articulated at the same time. 17. In the present case the principal matter relied upon by the applicant to show cause why his detention is not justified relates to statements made by a number of witnesses or potential witnesses in the case since the applicant was arrested and remanded in custody. Foremost among those is 'B', the step-daughter of the applicant, to whom I have already referred. 'B' has provided a typed statement, exhibit A, in which in broad summary she asserts that the independent witness Mr de Souza told her by telephone that the father of the victim had told the victim to lie and say that the applicant had a gun. As already noted, the possession of the prohibited firearm is by far the most serious offence before the Court and that is a critical issue to the question of bail. 18. In that statement 'B' further states that about a week later she went to the independent witness's shop and confronted him with the allegation that he had told her and her mother that the victim's father made the independent witness lie in his statement. According to 'B' the independent witness Mr de Souza confirmed that he had lied but said he would not recant as he was scared to tell the truth since the matter had gone so far. 19. Presumably that was a reference at least to the fact that the applicant had by then been in custody for almost three months and charged with very serious matters. 20. Without descending into further detail of the other material before the Court, in short it demonstrates a stark conflict between on the one hand the Crown case that the applicant was in possession of the prohibited firearm and admitted that fact to Mr de Souza and on the other hand a series of statements directed to establishing that Mr de Souza lied about that fact. 21. As noted by the Crown, the proposition put forward in that respect to sustain the establishment of the show cause requirement is that there is a reasonable possibility that no fewer than four people entered into a criminal conspiracy to plant the firearm on the applicant. They are the victim, Matthew de Souza, his father Gerry Altavilla, 'B' and the applicant's partner, Kylie Williams. 22. The Crown submitted that the timing of the provision of the statements relied upon to sustain the issue is both curious and telling. In each case a statement by 'B' was handed to a prosecutor in Court on a day on which a bail application was to be heard. The Crown also noted correctly that there are inconsistencies between various accounts given by the different witnesses involved in this development, if I can describe it in those terms. 23. Finally, the Crown relied on the fact that a former friend of 'B''s, Bianca, has provided a statement to police, Exhibit 2, in which she states among other things that 'B' told her that the family was trying to think of stories to get the applicant out of gaol and that one of the stories they were making up was that, "Matty" evidently a reference to the alleged victim "had planted it in the car". 24. The evidence, if accepted, plainly would reveal that the applicant has been wrongly accused. In my view, taking a proper approach to the amendments to the Bail Act, that is probably to be regarded as a matter demonstrating that the applicant has shown cause why his detention is not justified. In reaching that conclusion I do not mean to say that I accept the evidence but only that on my construction of the Act it poses a relatively low bar for an applicant and, as I have already explained, does not impose on him an onus in his own show cause application of effectively taking the task of persuading the Court that there is no unacceptable risk within the meaning of s 18. 25. In reaching that conclusion, however, I have expressly not had regard to the risk factors and it is necessary then to turn to that discrete task. 26. As acknowledged frankly by Mr Drewett, counsel for the applicant, the matter raised for the purpose of showing cause is to a degree a double edged sword, at once pointing to a prospect of a much weaker case than might appear on the strength of the material initially available to police but at the same time also a plain prospect of a number of the matters identified in the Act as bail concerns. Particularly s 17(2)(d) of the Act identifies interference with witnesses or evidence as a bail concern which the Court must assess. 27. The police response to the new statements is, to put the matter bluntly, one of scepticism. The officer-in-charge of the investigation has put before the Court on the present application a letter in which he states that police believe the accused has applied pressure through his de facto partner Kylie Williams to make 'B' supply a false statement and that police are considering whether to lay charges in relation to the statement. 28. The letter also states that police have information that the applicant may have access to another firearm that is possibly in the possession of Ms Williams. The letter states that police would be extremely concerned for the welfare of several witnesses if the accused were granted bail. 29. The Crown has identified, as in my view it is required to do, the matters he submits are unacceptable risks in the present case. The first is the risk of non-appearance. That is based primarily on the applicant's background including his criminal history, the nature and seriousness of the offence and what the Crown contends is the strength of the prosecution case together with the likelihood of a custodial sentence being imposed if the applicant is convicted. 30. Having considered those matters, on balance I do not think the risk of non-appearance is an unacceptable risk. I accept that the applicant has some history of noncompliance with bail conditions and that he might be strongly motivated not to appear having regard to the seriousness of the firearms case. Conversely, however, he appears to have strong ties with the community, in particular his partner Ms Williams and his four children and, if that were the only risk identified, I think it is one which could adequately be met by conditions. 31. The real difficulty is the remaining risks identified by the Crown of commission of a serious offence, danger to the victim, individual or the community and most pertinently in this case the risk of interference with witnesses or evidence. It is convenient to consider those matters together. 32. The material brought forward on the applicant's behalf potentially shows a weakness in the Crown case but it also demonstrates two things which in my view are properly of concern to police. The first is it appears to reveal an ongoing feud between the alleged victim and the applicant and most pertinently it appears to reveal a risk of potential interference with witnesses. 33. I am referring not only to the statement of 'B' in that context but the fact that the material reveals both 'B' and Ms Williams have, according to their statements, approached Mr de Souza and confronted him as to his version of events in the context of the apparent feud between the two families. That is properly, in my view, a matter of concern in the terms identified by the arresting officer. 34. The real difficulty with that material is that 'B' is the step-daughter of the applicant and one of the five children of Ms Williams. If released on bail the applicant would reside in the household in which 'B' resides. In my view that is a matter which poses a risk that cannot appropriately be met by any conditions and it is an unacceptable risk. Separately, I note that the delay between the period of the applicant's arrest and today is extremely concerning. The matter is still in the Magistrates Court. It may be that more information will become available if and when the matter is committed to the District Court as to a likely trial date. That is a circumstance which may in due course warrant a further application under s 74 but, for the time being, having reached the conclusion that there is an unacceptable risk, it follows that bail must be refused. ********** Amendments 08 May 2015 - duplication on coversheet removed 12 June 2015 - removed surname of 'B' from paragraph 17 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: 12 June 2015