Citation: R v Toksoz [2015] NSWSC 1234
Court: Supreme Court of New South Wales
Date: 23 July 2015
Judge(s): Hamill J
Background
The applicant was charged with two counts of shooting with intent to murder, taking part in the supply of MDMA, and failing to disclose the identity of a driver. He had been in custody since 19 December 2014 and brought a release application seeking conditional bail under the Bail Act 2013 (NSW), as amended by the Bail Amendment Act 2014 (NSW).
The Crown's case was built on a "drug rip-off" scenario, alleging the applicant and a co-offender attended a drug transaction intending to steal the drugs using a firearm produced by the co-offender. The applicant's case was put on the basis of common purpose rather than direct participation in the shooting.
A secondary issue arose concerning whether a proposed surety, the applicant's brother Mehmet Toksoz, qualified as an "acceptable person" under the Act, given aspects of his own criminal and charge history.
Legal Issues
- Whether the applicant satisfied the "show cause" requirement under ss 16A and 16B of the Bail Act 2013 (NSW), which applies because the offences involved a firearm
- Whether, once show cause was established, the identified bail concerns could be adequately mitigated by conditions
- Whether the proposed surety, Mehmet Toksoz, was an "acceptable person" within the meaning of the Act, having regard to his criminal history and outstanding charges
Decision
Hamill J held that the applicant had satisfied the show cause requirement through a combination of factors considered together. These were: the prosecution's failure to serve a significant portion of the brief despite the applicant having been in custody for over seven months; the consequent prospect of a lengthy further remand extending well into 2016 or beyond; real weaknesses in the Crown case; exceptional personal hardship arising from the death of his brother and his inability to attend the funeral; and the availability of substantial security totalling $205,000. His Honour drew on the principle stated in R v Cain that the prospect of a private citizen being imprisoned for up to two years awaiting trial, without conviction, sits uneasily with modern civil rights concepts.
On the prosecution's alleged weaknesses, the court placed weight on interview material in which the shooting victim himself expressed uncertainty about whether the applicant had been trying to stop the co-offender from using the gun, rather than participating in a common criminal purpose. Hamill J found the Crown case had "some real difficulties" and could not be characterised as strong, though he accepted the prosecution's submission that inferences could still be drawn from the applicant's presence and the circumstances of his involvement.
Having found the show cause requirement met, the court turned to bail concerns, including risks of non-appearance, reoffending, and danger to the victim or community. Hamill J was satisfied that conditions, particularly the substantial security, addressed those concerns to a level that left no unacceptable risk, and conditional bail was granted.
On the surety question, the court undertook a fact-specific assessment of Mehmet Toksoz's history, which included a charge for stating a false name, a resisting police matter dealt with by a short bond without conviction, a dismissed Children's Court matter, and two outstanding charges of common assault and affray. Hamill J treated the dismissed charge as irrelevant, the outstanding assault and affray charges as carrying limited weight given they were recent and unresolved, and the remaining matters as not involving great significance. Weighing all circumstances, including the size of the security being offered, the court was firmly persuaded that Mehmet Toksoz was an acceptable person under s 26(4)(a) of the Act.
Orders Made
• Mr Mehmet Toksoz is declared to be an acceptable person pursuant to s 26(4)(a) of the Bail Act
• Condition (12) imposing a security requirement of $200,000 is varied accordingly
Key Takeaways
- Under ss 16A and 16B of the Bail Act 2013 (NSW), an applicant charged with a firearm offence bears the burden of showing cause why detention is not justified; the Supreme Court confirmed that a combination of factors, assessed together, can satisfy that burden even where no single factor would suffice alone.
- Weaknesses in the prosecution case, including statements by the victim that cast doubt on the applicant's participation in a common purpose, formed a significant part of the show cause analysis.
- The prospect of a lengthy remand pending trial is a relevant consideration, consistent with the principle in R v Cain that extended pre-trial detention of an unconvicted person raises civil rights concerns.
- Exceptional personal hardship beyond ordinary remand conditions, such as the denial of access to a sibling's funeral with accompanying religious and cultural significance, can contribute to satisfying the show cause threshold.
- Determining whether a proposed surety is an "acceptable person" is a value judgment on all circumstances; the court confirmed that dismissed charges carry no weight, that minor matters dealt with without conviction carry limited weight, and that the size of the security being offered is a highly relevant factor.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Bail Amendment Act 2014 (NSW)
- Bail Act 1978 (NSW)
Cases
- R v Cain (2001) 121 A Crim R 365
- R v Young [2006] NSWSC 1499