R v Toksoz [2015] NSWSC 1234

Supreme Court New South Wales

Medium Neutral Citation: R v Toksoz [2015] NSWSC 1234 Hearing dates: 23 July 2015 & 3 August 2015 Date of orders: 23 July 2015 Decision date: 23 July 2015 Jurisdiction: Common Law Before: Hamill J Decision: Bail granted Catchwords: CRIMINAL LAW – BAIL – show cause requirement – weaknesses in prosecution case – length of likely remand – large security available – bail concerns mitigated – no unacceptable risks – conditional bail granted CRIMINAL LAW – BAIL – dispute over whether person an "acceptable person" – factors to be considered Legislation Cited: Bail Act 2013 (NSW) Bail Amendment Act 2014 (NSW) Bail Act 1978 (NSW) Cases Cited: R v Cain (2001) 121 A Crim R 365 R v Young (2006) NSWSC 1499 Category: Principal judgment Parties: Ahmet Toksoz (Applicant) Regina (Respondent Crown) Representation: Solicitors: Bannisters Lawyers - Applicant Solicitor for Public Prosecutions –Respondent Crown File Number(s): 2015/131627 Publication restriction: Nil

ex tempore Judgment (release application) 1. Ahmet Toksoz makes an application under the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). It is a release application and he seeks to be released on conditional bail. 2. The application arises in circumstances where he is charged with a number of extremely serious offences and in particular offences of shooting with intent to murder (two counts), taking part in the supply of MDMA and another less serious but associated offence of failing to disclose the identity of the driver. 3. Because of the serious nature of the offences and in particular the involvement of a firearm in those offences ss 16A and 16B of the Bail Act casts upon the applicant a heavy burden, that burden is to show cause why his detention is not justified. 4. Ms Bannister who appears on his behalf on the application puts forward a combination of circumstances which she says satisfy the show cause requirement. 5. In summary form, and adopting her nomenclature, she relies on, first, the delay in providing the brief. In that regard I note that a document has been tendered which shows that a large amount of the material expected to be served as part of the prosecution brief is yet to be served and at the moment it is unclear when it is to be served. That is in circumstances where the applicant has been in custody since 19 December 2014. 6. Secondly, Ms Bannister relies on the consequent delay in bringing the matter to trial. Those two things are obviously related and until one knows when the prosecution brief will be served and whether there is going to be a committal hearing, and based on some of the things I will speak about when I speak about the strength of the prosecution case a committal proceeding seems, as far as one can predict the future, a possibility if not a likelihood. There is unlikely to be a trial date before 2016 and probably later in that year. 7. The third thing Ms Bannister relies upon concerns the strength of the Crown case. She argues that it is a weak case. She places before me the interview conducted with one of the victims of the shooting offence, Mr Timothy Venesjarvi, along with a walk-through interview with that witness. 8. The Crown case is essentially that the applicant, along with a co-offender called Goktas, set up a "drug rip-off" whereby they would go with a view to conducting a drug transaction and then, by using a gun which was ultimately produced by Goktas, would steal the drugs. 9. The case is one of common purpose because all of the evidence points towards the fact it was Mr Goktas who produced the weapon. That does not of itself make it a weak case. The applicant's presence there is unlikely to be, contrary to Ms Bannister's submission, purely coincidental. 10. However, Mr Venesjarvi provide certain information which on its face suggests that, far from being part of a common purpose, the applicant was unaware that a gun was to be produced and when it was may have been trying to "stop the other guy". Mr Venesjarvi said in the recorded interview on 12 December 2014: "Q493 O.K. And you said, urn, when, when you grabbed the firearm, tell me about, um, what the other male was doing at that time?A I don't know. He somehow had his hand on the gun too. I don't know if he was trying to stop the other, the other guy or not. It all happened within about six seconds. Q 500 So I don't know, it was more towards his mate next to me, ----- Yeah. So I don't know if his mate maybe thought he was going to get shot Q 501 Yeah. -----by mistake, but either way — 502 But did the, did the mate, the other guy, urn, did he, um, try to, um - - A No. He didn't touch me or anything in the car Q 504 Yeah. A He just had his, there were three hands. Q 505 But when the three hands were on that firearm, what were you feeling? A It was trying to be turned on me. I don't know if it was by the other guy who had his, the guy who actually was holding it, or if it was the other guy with him. Q506 Mmmm A I don't know if he was trying to stop him." 1. The man referred to as the "the other male", the "mate" and the "other guy" is the applicant. Mr Venesjarvi made a similar observation in the walk-through interview on 18 March 2015: V2. As soon as I twisted [the gun] away the guy with the beard was positioned next to him. V.1 O.K. V.2 And he also grabbed his hand onto the gun. V.1 O.K. So at the time the gun was facing back out this way, was it? V.2 Yeah, yeah. I'm not sure if he thought maybe the gun was going to be shooting at him but either way he jumped in and grabbed the gun too. 1. In this extract, "V2" is the witness while the "guy with the beard" is the applicant. 2. Based on that limited material that I have been taken to, I would assess the prosecution case against the applicant to have some real difficulties. It could not be said to be a strong one. 3. On the other hand, I do accept the submission made by Ms Mascia (for the prosecution) that there are inferences to be drawn by his presence there and the circumstances in which he came to be there arising from the statement of a Kelsey Coakes who apparently set up the meeting which led to the production of the gun and the attempted drug rip-off. 4. The fourth matter relied upon by Ms Bannister is the personal hardship that the applicant is suffering which is, she puts it, beyond that which would ordinarily be endured by a person on remand. The reason for this is that since he has been in custody one of his brothers passed away and the applicant was denied the ability to attend the funeral by those who make such decisions. 5. The other evidence before me, which includes an affidavit of his mother and an affidavit of another brother, provides cogent evidence that this is an extremely close family and I accept that the inability of the applicant to attend the funeral created exceptional hardship. As his mother put it: "Being in custody has been extremely difficult for him. His brother, Tolga Toksoz, 21, with whom he was very close, passed away this year, while he was in custody. He was denied access to attend the funeral. He was extremely upset about Tolga's death and naturally remains so. He is upset not only at his passing, but also at not being able to grieve when family (this continues to today). He feels upset on a continuing basis that he did not have closure in seeing his brother before his burial and saying good bye. Ahmed is religious. In our religion it is important to farewell the spirit. Also, in our religion, the body is wrapped in cotton cloth and buried in the soil. It is only the immediate male relatives who are allowed to carry the body and bury a deceased family member. The applicant feels he failed in his duty to carry his brother's body. He has recounted to me many sad dreams where he has been unable to say good bye to his brother, and had other dreams of burying him. He tell me he prays daily for his brother. I know his anguish would exist even if he were on bail now but it is has been and continues to be worsened by his incarnation for the reasons above and his failure to do his duty at the burial. I know he will carry that with him for the rest of his life. His unhappiness is compounded by his continued separation from us as we are all still grieving for Tolga." 1. The applicant also relies upon the availability of substantial surety to ensure his compliance or attendance on bail. That includes a secured amount of $200,000 from his brother which I take it will be based on his interest in real estate and $5000 from his mother. 2. It is well-established that a combination of circumstances might in particular cases satisfy the show cause requirement. In this regard some of the older law which applied under the Bail Act 1978 (NSW) has some application. In particular, Johnson J in the case of R v Young (2006) NSWSC 1499 found exceptional circumstances justifying the grant of bail in a murder case based around the coincidence of a number of features of the case, such features may be subjective to the particular applicant, thereupon the nature of the offence or otherwise suggests the person is one who will answer bail. 3. Another part of the older law which has certain resonance in this case are the comments of Sperling J in the case of R v Cain (2001) 121 A Crim R 365 to the effect that the prospect that a private citizen, who has not been convicted of any offence, might be imprisoned for as long as two years pending trial is not consistent with modern concepts of civil rights. 4. I am satisfied that the combination of factors to which Ms Bannister has referred satisfies the show cause requirement in ss 16A and 16B. 5. The next question concerns the assessment of bail concerns. Because of the very nature of these offences bail concerns arise. They include the risk that the applicant will not appear, they include the risk of the commission of a serious offence, they include the risk of danger to the victim or other members of the community. That simply arises by virtue of the allegations themselves. 6. The Crown also puts to me that there is a risk of interference with witnesses or evidence. I do not presently see that that is a genuine bail concern given the material before me but the other bail concerns most assuredly do arise. 7. The question then is, by reference to the factors in s 18 of the Bail Act, whether or not those bail concerns are ameliorated to the degree that they do not rise to the level of being unacceptable risks. If they do rise to that level s 19 is in mandatory terms and requires bail to be refused. 8. However, I have referred in dealing with the show cause question and treating the question separately and not conflating them, in accordance with the authority in the Court of Appeal, I have referred to those matters and those matters are also relevant to the s 18 considerations. 9. I do not propose to address those individual factors seriatim, although I do note that I have taken into account the very serious nature of the allegations made as well as the likelihood of a gaol sentence being imposed if a conviction follows. 10. I have also taken into account what is compelling evidence of the accused's community ties and family ties and the real problems that emerge in relation to the proof of these allegations arising from the material in the recorded interviews with Mr Venesjarvi. 11. One of the most compelling features from my point of view is the length of time that the accused is likely to spend in custody enjoying as it were the presumption of innocence. 12. For all of those reasons, and I should indicate I have considered all of the matters in s 18 are relevant, I propose to grant conditional bail. 13. Bail is granted on the following conditions. 1. To be of good behaviour 2. To report to The Hills Local Area Command daily between the hours of 9am and 5pm. 3. To live at [REDACTED]. 4. To appear at Burwood Local Court on 12 August 2015 and on such date thereafter as required. 5. Not to drink alcohol or enter any premises in which alcohol is sold. 6. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor). 7. Not to associate or communicate by any means (except through his lawyer) with Hasan Goktas. 8. The applicant is not to be absent from the address at which he is required to live between the hours of 8pm and 7am except in the case of a medical emergency. 9. Not to have any contact in any way (except through a legal representative) with [REDACTED] or any person notified to be a crown witness including [REDACTED]. 10. Not to apply for any new passport or travel document. 11. Not to go within 500m of any point of departure from the Commonwealth of Australia. 12. One acceptable person(s) is to deposit acceptable security as security for the payment of $200,000 which he/she agrees to forfeit if the applicant fails to appear before court in accordance with the bail acknowledgment. 13. To present himself at the front door 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.