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District Court 11 May 2017

R v Unasa

[2017] NSWDC 291

Firearms & weaponsPublic order & justice offences
BAIL RELEASE APPLICATION SHOW CAUSE OFFENCE WHETHER CAUSE SHOWN BY LENGTHY DELAY CAUSE SHOWN UNACCEPTABLE RISK

Citation: R v Unasa [2017] NSWDC 291
Court: District Court of New South Wales
Date: 11 May 2017
Judge: Hatzistergos DCJ

Background

The accused was committed to stand trial on four charges arising from an alleged shooting at a Mount Druitt apartment on 17 March 2015. The charges included shooting with intent to cause grievous bodily harm, discharging a firearm with intent to cause grievous bodily harm, and unauthorised possession of a firearm. The alleged victim, Mr Latu, suffered serious injuries including a punctured lung, spleen removal, and a bullet lodged in his stomach.

The Crown case alleged the accused attended the apartment after receiving a text message and entered carrying a bag said to contain a pistol, before firing a shot that struck the alleged victim in the neck. The accused was located and arrested in Queensland. He had been in custody for approximately one year and eleven months at the time of the bail application.

The central complication for the Crown was that the only eyewitness to the actual shooting was the alleged victim himself, who had become uncooperative. A key corroborating witness, Mr Mariano, had travelled overseas to the Philippines and had not been served with a subpoena or contacted by prosecuting authorities.

Legal Issues

  • Whether the accused had shown cause as to why his continued detention was not justified, as required for a "show cause" offence under the Bail Act 2013 (NSW) s 16A(1)
  • Whether cause could be established by a combination of factors, specifically the length of pre-trial custody and the vulnerability of the Crown case
  • Whether the accused posed an unacceptable risk of failing to appear at proceedings
  • Whether the accused posed an unacceptable risk of interfering with witnesses or evidence

Decision

Issue 1: Show Cause

All four charges were accepted as "show cause" offences, requiring the accused to demonstrate why his detention was not justified. The court acknowledged that cause can be established by one factor or a combination of factors, consistent with the approach confirmed in R v S [2016] NSWCCA 189 (at [30]).

The court found the delay was lengthy, at the time approaching two years in custody with a further period anticipated before the rescheduled November 2017 trial. Responsibility for the delay could not be attributed to any single party (at [36]). The Crown conceded its case was vulnerable: the only eyewitness to the shooting was the uncooperative alleged victim, whose credibility would be challenged at trial, and the corroborating witness Mr Mariano was overseas and had not been contacted by authorities (at [38]). The court found that the combination of the Crown case's vulnerability and the total period the accused had been and would remain in custody was sufficient to establish cause (at [39]).

Issue 2: Unacceptable Risk

Having found cause shown, the court turned to whether the accused nonetheless posed an unacceptable risk under s 18(1) of the Bail Act. The court weighed several matters against the accused: a history of failure to appear on bail undertakings, breach of court-imposed bonds, active warrants at the time of arrest, and criminal associations with persons charged with drug trafficking and firearm offences in Queensland (at [45]-[46]).

The court placed particular weight on the fact that the accused personally knew the alleged victim and all primary witnesses, and accepted police advice that there was a high likelihood witnesses would not attend court if the accused were released (at [49]). The proposed bail conditions, including a family property offered as security and a curfew supported by family members, were found insufficient to address those concerns. The court noted the accused's sister was unaware of his prior failures to appear and previous drug supply conviction (at [51]). The court concluded that the bail concerns of non-appearance and witness interference could not be overcome, and that the accused's release had the potential to enlarge the very vulnerability in the Crown case that had helped establish cause (at [53]). Bail was refused.

Orders Made

  • The release application is declined.

Key Takeaways

  • The District Court confirmed that the "show cause" threshold under s 16A(1) of the Bail Act 2013 (NSW) can be met by a combination of circumstances: here, the length of pre-trial custody and a conceded vulnerability in the Crown case together satisfied the requirement, even where neither factor alone may have been sufficient (at [39]).

  • Showing cause does not end the bail inquiry. A court must then separately assess unacceptable risk under s 18(1), and a finding that cause has been shown does not compel the grant of bail (at [40]-[53]).

  • Where an accused personally knows the alleged victim and all primary witnesses, and where there is evidence those witnesses may not cooperate, the risk of interference with witnesses or evidence can weigh heavily against release, even when the Crown case is acknowledged to be vulnerable (at [49], [53]).

  • The court observed that the vulnerability of the Crown case cut in both directions: while it helped establish cause, it also meant the accused's release carried the potential to worsen that vulnerability, reinforcing the unacceptable risk finding (at [53]).

  • Proposed bail conditions, including a family property offered as security and a curfew with family oversight, were found insufficient to address bail concerns where the accused had a history of non-compliance with bail obligations and the proposing family member was unaware of that history (at [51], [53]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW) ss 16A(1), 18(1) and 20A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
- Crimes Act 1900 (NSW) ss 27, 29 and 33(1)(b)
- Evidence Act 1995 (NSW) ss 38(1) and 65(2)
- Firearms Act 1996 (NSW) s 7(1)

Cases
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- JM v R [2015] NSWSC 978
- R v S [2016] NSWCCA 189
- R v Xie [2015] NSWSC 1833