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Court of Criminal Appeal 28 August 2017

R v Ftelianos

[2017] NSWCCA 211

Firearms & weaponsPublic order & justice offences
BAIL CROWN APPLICATION FOR DETENTION WHETHER CAUSE SHOWN WHETHER UNACCEPTABLE RISKS CROWN APPLICATION GRANTED

Citation: [2017] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 28 August 2017
Judges: Hoeben CJ at CL, Davies J, Bellew J

Background

The respondent was charged with firing a firearm with reckless disregard for the safety of any person, contrary to s 93GA of the Crimes Act 1900 (NSW). The charge arose from a 2014 incident in Kingsgrove in which a man standing through the sunroof of a moving vehicle fired two shots at a takeaway shop on a busy road while pedestrians, motorists, and nearby workers were present. Two rifles were later recovered from the burned-out vehicle.

The respondent was released on bail on 15 August 2017. One week later, the Crown applied under s 50 of the Bail Act 2013 (NSW) for the respondent's detention, arguing that bail should not have been granted and that continued release posed unacceptable risks.

The Court of Criminal Appeal heard the application on 28 August 2017 and granted it at the conclusion of the hearing, with reasons to follow.

  • Whether the respondent had shown cause why his detention was not justified under the Bail Act 2013 (the "show cause" requirement)
  • Whether there was an unacceptable risk of further violent offending that could not be adequately addressed by bail conditions
  • Whether there was an unacceptable risk of witness interference that could not be adequately addressed by bail conditions
  • How to weigh the strength of the Crown case, given that it rested substantially on the evidence of two witnesses whose reliability was contested

Decision

The Court found that the show cause requirement had not been overcome. The Crown case depended on the evidence of two witnesses, and the respondent's counsel acknowledged that if those witnesses were believed, conviction and a lengthy custodial sentence were inevitable. Although questions about the witnesses' reliability and the delay in charging the respondent were noted, the Court declined to characterise the Crown case as weak. The reliability issues would attract a warning at trial, but that was a matter for the trial court to resolve.

Even if the show cause threshold had been met, the Court identified two unacceptable risks. First, the respondent's criminal history disclosed a clear risk of further violent offending. The Court noted that he was currently undertaking rehabilitation courses in custody addressing drug use and violence, which itself indicated these remained live concerns.

Second, there was a material risk of witness interference. The Crown case rested almost entirely on the evidence of the two contested witnesses, and the respondent's history of violent offending meant that risk could not be adequately managed by imposing bail conditions. Counsel for the respondent conceded the risk existed.

The Court was not satisfied that any combination of conditions could address either risk sufficiently, and accordingly granted the Crown's application for detention.

Orders Made

  • The Crown's application under s 50 of the Bail Act 2013 (NSW) for the respondent's detention was granted.

Key Takeaways

  • Refusing continued bail, the Court of Criminal Appeal confirmed that the "show cause" requirement under the Bail Act 2013 is not overcome merely because questions exist about witness reliability, where those witnesses' evidence, if accepted, would inevitably lead to conviction.
  • A history of violent offending is a weighty factor in assessing the risk of future violent conduct and witness interference, particularly where rehabilitation remains an ongoing process at the time of the bail application.
  • Where the Crown case rests almost entirely on the testimony of a small number of witnesses, the risk of interference with those witnesses carries particular weight in a bail detention analysis.
  • Delays in charging an accused attributable to the time taken to obtain witness statements may be a relevant consideration, but the Court here found it deserved little weight on the facts.
  • Under s 50 of the Bail Act 2013, the Crown may apply for a defendant's detention even after bail has already been granted, and the Court may order detention where show cause has not been established or unacceptable risks cannot be addressed by conditions.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), including s 50
- Crimes Act 1900 (NSW), s 93GA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
- Moukhallaletti v Director of Public Prosecutions (NSW) [2013] NSWCCA 314