Afshar v Director of Public Prosecutions (NSW)

[2016] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Afshar v Director of Public Prosecutions (NSW) [2016] NSWCCA 199
Hearing dates:	9 August 2016
Date of orders:	09 August 2016
Decision date:	05 September 2016
Before:	Ward JA; Price J; Fagan J
Decision:	Release application dismissed
Catchwords:	CRIMINAL LAW – procedure – bail – applicant charged with robbery in company while armed with a dangerous weapon – applicant charged with aggravated robbery causing grievous bodily harm – applicant charged with dishonestly obtaining a financial advantage – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – assessment of bail concerns – failure to appear – commit further serious offences – endanger the safety of victims, individuals or the community – no prior criminal record – strong family ties to community – youth – delay before trial – identification of applicant – strength of Crown case – whether bail conditions met bail concerns – unacceptable risks – application dismissed.
Legislation Cited:	Bail Act 2013 (NSW), ss 17, 18, 49 Crimes Act 1900 (NSW), ss 96, 97, 192E Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 Criminal Procedure Act 1986 (NSW), s 91 Evidence Act 1995 (NSW), ss 97, 98
Cases Cited:	JM v R [2015] NSWSC 978
Category:	Principal judgment
Parties:	Ahmed Afshar (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: N Williams (Respondent)   Solicitors: Oxford Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2016/140151
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Date of Decision: 05 July 2016 Before: Hall J File Number(s): 2016/140151

Judgment

1. THE COURT: Ahmad Afshar (“the applicant”) made a release application pursuant to s49 Bail Act 2013 (NSW) (“Bail Act”). The release application was heard by the Court of Criminal Appeal on 9 August 2016 and was dismissed. The Court advised that it would hand down reasons at a later date. These are the reasons.

2. On 9 November 2015, the applicant was charged with the following offences:

1. Robbery in company while armed with a dangerous weapon at Lidcombe on 15 September 2015 contrary to s97(2) Crimes Act 1900 (NSW) (“Crimes Act”): Maximum penalty – 25 years imprisonment.

2. Dishonestly obtain financial advantage by deception at Granville on 16 September 2015 contrary to s192E(1)(b) Crimes Act: Maximum penalty – 10 years imprisonment.

3. Aggravated robbery causing grievous bodily harm at Lidcombe on 23 September 2015 contrary to s96 Crimes Act: Maximum penalty – 25 years imprisonment.

4. Seven counts of dishonestly obtaining a financial advantage on 23 September 2015 contrary to s192E(1)(b) Crimes Act.

3. The applicant has been in custody since the date that he was charged. He made a release application which was heard by Hall J in the Supreme Court on 5 July 2016 and was unsuccessful. The application before this Court was a hearing de novo and not a review of Hall J’s decision.

4. In written submissions, the applicant asked that he be granted bail on the following conditions:

“Residence Condition: The Applicant will reside with his mother at [mother’s place of residence].

House Arrest condition: The Applicant will not leave his place of residence at all except in the direct company of his mother, Mrs Torpakai Afshar.

Reporting Condition: The Applicant will report at Merrylands Police Station daily between the hours of 8am and 8pm.

Enforcement Condition: The Applicant is to present himself at the front door of the premises at [mother’s place of residence] to confirm compliance with the bail conditions.

Not to possess a Passport and not apply for any Travel Documents: The Applicant will surrender his passport and sign an undertaking not to apply for a passport or any other travel documents.

Place Restriction: The Applicant will not enter the suburb of Lidcombe (suburb where the alleged offence occurred).

Place Restriction: The Applicant will not go within 1km of any points of international departure.

Place Restriction: The Applicant will not leave the state of New South Wales.

Non-association Condition: The Applicant will not contact or communicate by any means the alleged victims or any civilian prosecution witnesses.

Surety Condition: One acceptable person, being the Applicant’s mother, Mrs Torpakai Afshar, will enter into an agreement and deposit the sum of Eight Thousand Dollars ($8000).”

5. In oral argument, Mr Khatiz, the applicant’s solicitor, proposed a further condition (Tcpt, p 17(33-36)):

“… that [the applicant be] confined to his house with his mother. So whenever he’s there at home his mother will be there supervising him; when he leaves the house his mother will be leaving with him, so he has a supervisor in the community at all times.”

6. The Crown opposed bail and submitted that no bail conditions could adequately address the bail concerns of failure to appear (s17(2)(a) Bail Act), commission of a further serious offence (s17(2)(b) Bail Act), and the danger to the victims, individuals or the community (s17(2)(c) Bail Act).

7. The applicant accepted that there were bail concerns, but those bail concerns could be sufficiently mitigated by the imposition of strict bail conditions. The applicant argued that there were no unacceptable risks. Accordingly, the decision for this Court was whether the applicant was an unacceptable risk in terms of failure to appear at court, the commission of further serious offences and a danger to the community.

Factual background

8. The following is a general overview of the Crown case.

Robbery in company while armed with a dangerous weapon – 15 September 2015

9. The Crown alleges that the applicant, in company with an unidentified male (“male 1”) and a young person (“SM”), robbed the victim at approximately 11:18pm on 15 September 2015 when the victim was walking home from Lidcombe train station. As the victim approached Church and Swete Streets, Lidcombe, he felt a hand grab his right shoulder and pull, forcing him to turn around. The victim saw male 1 and the victim said, “What’s up?”, to which male 1 replied, “Come over here for a sec.” The victim pushed male 1’s hand off his shoulder and ran away. Male 1 ran after the victim and yelled out, “Grab him.” The victim saw the applicant in front of him. He described the applicant as in his late teens to early 20s, about 175cm tall, bearded, wearing a white hoodie, black pants and black cap. The victim was ankle-tapped by the applicant, tripped and landed on his stomach on the road.

10. As the victim began to get up, he heard a male behind him and a “sparking, crackling” sound. He then felt an object touch his back on the lower right side. The victim felt intense pain which caused his body to convulse a few times. The pain lasted about two seconds before the object was removed from his back.

11. The applicant grabbed the victim with both hands and pulled him to his feet so that he was standing next to male 1 and the applicant. The victim started to scream for help. Both males told him to “shut up”. The applicant moved towards the victim who saw an object in the applicant’s hand which he described as a taser, black in colour, about 5cm long and a rectangle shape. The victim heard the sparking and crackling sound again and saw the object in the applicant’s hand start to spark. The applicant pushed the object into the right side of the victim’s stomach causing intense pain and his body to lock up.

12. SM then approached the group. He was described as Middle Eastern, late teens to early 20s, 175cm tall, skinny build with a skinny face, no facial hair, wearing a black jumper and black pants. Male 1 dragged the victim to the gutter and the victim told the applicant that he would give them “everything.” The applicant told the victim to “shut up” because he was speaking too loud. SM struck the victim in the back of the head causing him pain. The applicant threatened to taser the victim again if he did not “shut up.”

13. The victim gave the applicant everything he had including his wallet, iPhone and backpack. His wallet contained personal items such as bank cards, identification cards and personal photos. His backpack contained a MacBook Air, planner and Kindle. The victim asked if he could keep his textbooks; however, the applicant replied, “You ain’t getting anything from here”, and threw the papers in the backpack at the victim.

14. Male 1 said, “Give me your password or I will kill you”, and the victim unlocked his iPhone and gave it back to them. Male 1 and the applicant then walked away and yelled, “If you follow us, we will kill you.”

15. The victim later contacted his bank and cancelled his cards. He was informed that two transactions were made at 11:51pm at the Caltex service station in Granville totalling $100.

16. An identification parade was subsequently held but the victim did not identify the applicant.

17. Police attended the Caltex service station and reviewed the CCTV footage from the time of 11:51pm. The footage shows SM and an unidentified male using the victim’s card to make two purchases. SM was seen to lean against the counter with his hand on the glass. Fingerprints found on the glass matched SM.

18. At 12:44am, the applicant and SM attended the 7/11 on Parramatta Road, Granville. They tried to use the victim’s card to make a purchase however the transaction was declined as the victim had cancelled his cards.

19. The applicant’s phone records show that between 10:13pm and 11:25pm his mobile phone was bouncing off a cell tower in Lidcombe. The phone bounced off the Auburn tower at 12:14am, the Clyde South tower at 12:20am and the Dundas tower at 1:34am. The Crown alleges that these phone records are consistent with the applicant moving from the site of the Lidcombe robbery to the Caltex service station in Auburn and to the 7/11 near Clyde.

20. The Crown obtained CCTV footage from various locations in Lidcombe.

1. Footage from Dooleys Catholic Club Lidcombe shows three males walking together along Church Street and turning in to John Street. The applicant is seen to be wearing a white t-shirt with an adidas logo, a “Locote” brand baseball cap and long dark coloured pants. He is in company with SM who wore a Gucci brand baseball cap, black jumper and light brown pants.

2. Footage from Lidcombe train station shows the victim leaving the station and walking to the intersection of Church and John Streets.

3. Footage from Auburn Council shows the same three males including SM and the applicant walking from John Street to Church Street.

4. Footage from 47 Church Street shows the victim walking along Church Street, followed by the same three persons observed in the Dooleys Catholic Club and Auburn Council footage.

5. Footage from 81 Church Street shows the victim walking along Church Street towards Swete Street. The same three persons continue to follow the victim. The Crown alleges that these persons were SM in the company of an unidentified male with the applicant walking behind them.

21. On 11 September 2015, Constables Rollo and Mereles were patrolling Northumberland Road, Auburn, and its surrounds. Constable Rollo noticed two Middle Eastern males walking along Northumberland Road and turning left onto Hall Street. He and Constable Mereles stopped the police vehicle alongside the two males and had a conversation with them. Constable Rollo identified these males as the applicant and SM, who was described as wearing a “gold/brown “Gucci” branded baseball style cap.” Constable Rollo had a conversation with the applicant and SM which lasted approximately 10 minutes.

22. On 16 September 2015, Constable Rollo responded to an email from Senior Constable Napier asking for assistance in identifying persons who were wanted for questioning in relation to an armed robbery. He viewed the image attached to the email and identified the applicant and SM.

23. On 9 November 2015, police executed a search warrant at SM’s home and located a Gucci brand baseball cap consistent with the cap seen in the CCTV footage.

Aggravated robbery causing grievous bodily harm – 23 September 2015

24. At approximately 10:00pm on 23 September 2015, the victim was walking through Phillips Park, Lidcombe, when he heard someone running up behind him. He was tackled to the ground and, before he could stand up, punched in the back of the head. He was then surrounded by at least four males, and was punched and kicked numerous times to the head and body. The males said, “I’ll shoot you”, “I’ll stab you” and “Give me all your money.” The victim was punched in the head again and the other males joined in with demands for money. The victim said that he didn’t have any money. He was punched and kicked again, his backpack fell off and he fell to the ground. He felt one of the males reaching into his pockets and take his wallet and he felt his pants rip. Eventually the assault ended and the offenders ran off.

25. The victim’s stolen property included a backpack containing documents, a wallet, keys and a number of personal cards such as bank cards and a driver’s licence.

26. The victim sustained a fractured nose, fractured tooth, bruising and lacerations to the mouth, a small piece of flesh was “ripped” from his finger, and soft tissue damage to his head, face and body.

27. The victim described the offenders as follows:

“Male 1 – medium build, probably aged in his teens, light brown/olive complexion, Middle Eastern or Mediterranean background, slightly shorter than me and about 160-170cm tall. He had a full face, not a slim one. He was wearing a dark-coloured long-sleeved top.

Male 2 – slim build, aged in his teens, dark brown complexion, probably African background and taller than the other males at about 170cm tall. He was relatively clean shaved. He was wearing a white coloured jumper and I think he had a hood.

Male 3 – medium to fat build, aged in his teens or early 20s, similar complexion and background to male 1. He was short, about 160cm tall. He was wearing a light coloured, possibly grey jumper, which had two white laces that dangled from the front of the jumper. I think this male had a beard, which was a short [sic], with dark coloured hair.

Male 4 – medium build, Middle Eastern or Mediterranean background, slightly shorter than 170cm tall.”

28. The victim’s bank cards were used seven times over the hour following the alleged assault. The first transaction was at 10:18pm at a petrol station in Auburn. The Crown alleges that the petrol station’s CCTV footage makes it clear that the first transaction was made by the applicant. According to the Crown, the applicant can be described as a Middle Eastern male with a beard, wearing black tracksuit pants, a navy blue hoodie with the Ford logo on the front, and a black cap with a white emblem.

29. On 23 September 2015, Constables Burns and Pereira were conducting patrols of Telopea in plain clothes and driving an unmarked police sedan. At 11:55pm, Constable Burns observed a vehicle travelling east along Eyles Street, Telopea. He activated all lights and warning devices and pulled the vehicle over for a random breath test. Constable Burns approached the driver door of the vehicle and observed the applicant. He requested the applicant produce his driver licence. The applicant stated that he did not have his licence on him and it was in his unit. Constable Burns observed three other males in the vehicle.

30. Constable Burns asked the applicant to exit the vehicle and accompany him to the police vehicle. He described the applicant as wearing dark coloured tracksuit pants and a dark navy hooded jumper with a blue oval Ford logo on the front. He had a black beard and black hair that was shaved on the side of his head and longer on the top.

31. The applicant provided his name, date of birth and place of residence to Constable Burns. Checks on these details revealed that the applicant did not hold a current driver licence and was convicted on 30 October 2013 of ‘Unlicensed driver/rider – never held a licence – 1st offence.’ Constable Burns took the applicant’s fingerprints and issued him with a Field Court Attendance Notice to appear at Parramatta Local Court on 21 October 2015 for the offence of ‘Never licensed person drive vehicle on road – prior offence.’

32. Constable Pereira described the applicant as having tanned/olive skin, black hair that was shaved along the sides and a medium length at the top, with an unshaven beard at medium length and a single mole around the centre of his forehead. The applicant was about 175cm tall, of medium build and wearing a dark navy coloured hooded jumper with a blue ‘Ford’ oval logo at the centre of the chest and wearing dark coloured tracksuit pants.

33. On 5 November 2015, the applicant was arrested. A search warrant executed at his home found nothing relevant to either alleged offence.

34. On 9 November 2015, the applicant participated in an ERISP. He said that on the night of the 23 September 2015, he was so high on marijuana that he could barely keep his eyes open. He went to a service station with his mates to buy munchies and smokes. He was sitting in the back of the car and one of the boys in the car told him to get smokes. He went into the service station and one of his mates gave him his credit card. He can’t remember who gave him the card and he didn’t read the name on the card. His mate told him to use PayPass so he didn’t need the PIN.

35. On 11 March 2016, the victim participated in an identification procedure and was unable to identify the applicant.

Submissions

Applicant’s submissions

36. The applicant submitted that there were no unacceptable risks and the bail concerns could be sufficiently mitigated by the imposition of strict bail conditions.

37. The applicant contended that the Court could be satisfied that if bail were granted, the applicant would attend court and comply with his bail conditions (s17(2)(a) Bail Act) when taking into account the following:

1. The applicant is an Australian citizen with strong ties to the community.

2. He does not have a prior criminal record.

3. The applicant did not avoid police at any stage.

4. If granted bail, he would reside with his mother at her residential address.

5. The applicant has been in a relationship for 3 years and has a 17 month old boy.

38. In relation to ss17(2)(b), (c) and (d) Bail Act, the applicant submitted that he had a limited criminal history consisting of driving matters and no history of violence.

39. The applicant outlined the matters to be considered as part of the assessment under s18 Bail Act.

1. The applicant’s background, including criminal history, circumstances and community ties: s18(1)(a) Bail Act. The applicant is an Australian citizen and he has strong family ties to the community. This is his first time in custody and he is in a 3 year relationship. He is also the father of a 17 month old boy. The applicant attended school up until Year 12; he completed his HSC at TAFE and a Business Diploma at the Australian Business Academy College. He had been employed since the age of 16 years.

2. The nature and seriousness of the offence: s18(1)(b) Bail Act. The applicant conceded that the allegations were serious but would be defended.

3. The strength of the prosecution case: s 18(1)(c) Bail Act. The applicant submitted that the Crown case is not overwhelming and is circumstantial, suffering from significant deficiencies with respect to identification, namely:

1. There was no photo board or line-up identification parade evidence from the victim or any witnesses. In fact, neither victim identified the applicant despite participating in identification procedures.

2. The CCTV footage is unreliable and inconclusive in relation to the alleged offender’s identities. The applicant did not accept that he was one of the persons in the CCTV footage.

3. There are no items, clothing, DNA or fingerprint evidence linking the applicant to the offence.

1. The applicant participated in an ERISP and did not make any admissions.

2. The alleged items stolen were not located on the applicant.

3. No victim or witness positively identifies the applicant.

4. The applicant’s criminal history: s18(1)(d), (e), (f) and (g) Bail Act. The applicant has no previous criminal convictions.

5. The length of time the applicant is likely to spend in custody if bail is refused: s18(1)(h) Bail Act. The applicant submitted that he may be in custody for a period of 18 months to 2 years before reaching the District Court for trial. The applicant proposed to make a s91 application under the Criminal Procedure Act 1986 (NSW) which, it was said, would not be determined for about 10 weeks and after committal to the District Court, the earliest trial date would be about nine months after arraignment. It was submitted that a young man being placed in custody for such a long period of time, for the first time in his life, could amount to showing cause as to why his detention was unjustified and JM v R [2015] NSWSC 978 (“JM”) was cited.

6. The applicant conceded that, if convicted, he would serve a custodial sentence: s18(1)(i) Bail Act.

7. Any special vulnerability or needs the applicant has, including youth: s18(1)(k) Bail Act. The applicant was 19 years old at the time of the alleged offences and is now 20 years old. He submitted that a prolonged period in custody awaiting trial may have adverse effects on his psychological condition, citing Garling J at [119] in JM.

8. The applicant contended that the brief contains CCTV footage and that he needs to be on bail in order to properly prepare for his matter: s18(1)(l) Bail Act.

9. The need for the applicant to be free for any other lawful reason: s18(1)(m) Bail Act. He sought bail as he is defending the charges.

10. The applicant submitted that the imposition of the proposed bail conditions would mitigate any risk to the victim or the victim’s family members: s18(1)(n) Bail Act. It was not alleged that he knew the address of the victims nor any threat or interference had been made towards the victims or any witnesses after the alleged offence.

40. The applicant contended that his mother would be able to control him should he be granted bail. The period of time that he had been in custody was said to be a deterrent to failing to comply with any bail conditions and the commission of further offences.

Crown’s submissions

41. It was the Crown’s submission that the Court should refuse to grant the release application because the Court would be satisfied that the release of the applicant raised bail concerns and that there was an unacceptable risk of those concerns materialising in the event of the applicant being released.

42. The Crown submitted that there were three bail concerns applicable to the present application under s17(2) Bail Act, if the applicant was released from custody.

43. First, that the applicant would fail to appear at any proceedings for the offences: s17(2)(a) Bail Act. The applicant is facing two serious charges committed on different occasions, each carrying a maximum penalty of 25 years imprisonment. If convicted of either charge, he would inevitably be sentenced to a significant full-time custodial sentence. In the face of this, the Crown submitted that there was a real risk of flight. The strength of the Crown case was a factor to be considered when assessing the applicant’s risk of failing to appear and the Crown accepted that the issue at trial was identification. However, the Crown argued that as to the robbery on 15 September 2015, the CCTV footage provided compelling evidence that the applicant participated in that robbery. As to the second robbery, the Crown acknowledged that the identification evidence was not as strong, but pointed to the CCTV footage of the transaction at 10:18pm at the Auburn service station, the clothes that the applicant was wearing and the evidence of Constables Burns and Pereira. The Crown submitted that tendency and coincidence notices could be served that would support the second count of robbery. The Crown case was said to be strong in respect of both robberies.

44. Second, that the applicant would commit a serious offence: s17(2)(b) Bail Act. The Crown expressed concerns that the applicant would reoffend despite not having offended in this way before. He committed two serious robbery offences within 10 days of each other and in company. The Crown said that the applicant had not only produced a taser or stun gun but had used it twice on the victim of the first robbery. There were also the threats to kill. This was a gravely serious offence committed randomly on a member of the public. The second robbery was committed on a member of the public relatively late at night in a secluded spot and was accompanied by acts of violence.

45. The Crown raised the applicant’s custodial history. He has committed two custodial infringements whilst in custody on remand. On 19 February 2016, the applicant was punished for the offence of “fight or other physical combat” with 14 days off buy-ups and on 18 April 2016, he was penalised for the offence of “intimidation” with 14 days off buy-ups, contact visits and phone calls. The Crown submitted that these infringements demonstrated a continued propensity for violence.

46. Third, that the applicant will endanger the safety of victims, individuals or the community: s17(2)(c) Bail Act. The offences were extremely serious robbery offences committed randomly upon members of the public. It is the Crown case that the applicant wielded the ‘taser’ in the offence of 15 September 2015, and in the offence of 23 September 2015, the applicant inflicted serious injuries upon the victim.

47. On the question of delay, the Crown said that the committal proceedings could take place at Burwood Local Court on 10 August 2016 but the applicant had made lengthy submissions in pursuit of s91 and 93 applications which were beyond the Crown’s control. One of the factors, the Crown said, which had led to delay was that the applicant had engaged new solicitors.

48. The Crown contended that the proposed bail conditions set the bar too high for the applicant’s mother who would become the applicant’s keeper. The Crown referred to Mrs Afshar’s need to make job applications, her inability to control her son and the presence of the applicant’s brother in the house who had prior criminal convictions.

Mrs Afshar’s evidence

49. During the hearing in this Court, the applicant’s mother gave evidence that she would be prepared to deposit $8,000 as security for the applicant’s bail. She was a recipient of Centrelink benefits and had difficulty saving that amount of money. She understood that the conditions of bail that had been proposed amounted to a “house arrest” condition. She was willing to supervise her son and inform police of any breaches of bail.

50. In cross-examination, Mrs Afshar accepted that as she was on a Newstart allowance she would be looking for work but said that she did not want to work if the applicant was released as she only wanted to look after him. Her son Feisal was living at home, which was a two bedroom apartment. Mrs Afshar said that the applicant and his brother would share a room together. She agreed that Feisal, who was the older brother of the applicant, had been charged and convicted of some offences. She said that she was not aware that the applicant had been smoking marijuana around September 2015. She was asked by the Crown (Tcpt, p 39(34-40)):

“Q. …I suggest, Ms Feisal [sic], that with the best will in the world you could not keep an adequate control on Ahmad so that you know where he is at all time [sic], isn’t that the case?

A. No, that’s not correct because he has actually, you know, regretted what he has done and he has got a very big remorse for his actions and he tells me that if he comes and lives we [sic] me he would stay with me and he wouldn’t go anywhere.”

51. The Crown tendered Ahmad Feisal Afshar’s prior criminal history which disclosed, inter alia, that a sentence of imprisonment of 2 years was imposed at Parramatta District Court on 17 December 2015 for an offence of robbery in company but was wholly suspended under s12 Crimes (Sentencing Procedure) Act 1999 (NSW) upon his entering into a 2 year good behaviour bond. The good behaviour bond does not conclude until 16 December 2017.

52. Having seen Mrs Afshar and listened to her evidence, the Court concluded that, in all the circumstances, there was no reasonable possibility she could ensure that her son complied with the proposed bail conditions.

Consideration

53. As this is a release application, the Court’s assessment of the strength or otherwise of the Crown case was limited to an examination of the material before the Court. Having regard to the early stage of the proceedings, it is inappropriate to provide a detailed analysis of the evidence.

54. Notwithstanding the serious nature of the offences with which the applicant has been charged and the lengthy custodial sentences that may be imposed upon conviction, the Court was satisfied that the applicant was not a flight risk. His strong community ties and the loss of the entirety of his mother’s savings if he did not attend court, persuaded the Court that the bail concern of failing to appear could be adequately met with appropriately stringent bail conditions.

55. The matters of concern are those referred to in ss17(2)(b) and (c) Bail Act.

56. The issue of identification will undoubtedly be the focal point of the applicant’s trial. The clarity of the CCTV footage relied upon by the Crown was significantly enhanced by the tender of photographs (Ex 1).

57. The victim of the first robbery described the male who used the taser or stun gun upon him as wearing a white hoodie and did not identify the applicant at an identification parade. However, the CCTV footage of the three males following the victim from Church Street towards Swete Street, the CCTV footage at the Caltex service station and at the 7/11 on Parramatta Road, the applicant’s phone records disclosing his mobile phone “bouncing off” cell towers in Lidcombe, Auburn, Clyde South and Dundas, the Gucci brand baseball cap located in SM’s house, and the identification of the applicant by the police officers, when viewed in combination amounts to a strong Crown case that it was the applicant, SM and an unidentified male who committed the assault. The applicant’s role included using a taser or stun gun on the victim.

58. The victim of the second robbery did not identify the applicant during an identification procedure. There is, however, a strong Crown case that it was the applicant who made the transaction at 10:18pm at the Auburn petrol station based on the CCTV footage, the clothes the applicant was wearing, the evidence of Constables Burns and Pereira and the applicant’s admissions. The transaction took place approximately 18 minutes after the robbery. The applicant’s recent possession of the stolen bank cards and their use amount to a fairly strong case that the applicant participated in the robbery. The Crown foreshadowed the service of tendency and coincidence notices pursuant to ss97 and 98 Evidence Act 1995 (NSW) after the appellant’s committal for trial. Tendency and coincidence evidence has the potential to strengthen the Crown case in relation to this offence.

59. Both offences, which were committed within eight days of each other, involved considerable violence. The taser or stun gun was twice applied to the victim of the first robbery causing convulsions and intense pain. He was struck in the back of the head and otherwise assaulted. Threats were made to kill him. The victim of the second robbery was savagely set upon by four males who punched and kicked him. As a result, he suffered serious injuries. His attackers threatened him with extreme violence.

60. Given the violent nature of the offences with which the applicant has been charged, the random selection of victims and the close proximity of the offences, the Court was satisfied that the bail concerns of commission of further serious offences and the danger to the community could not be adequately met by bail conditions and that there was an unacceptable risk.

61. In reaching this conclusion, the Court was mindful that the applicant, who is 20 years old, had been in custody for about 9 months and that his trial is unlikely to come on for hearing until the middle of 2017 at the earliest. The Court was also mindful of the applicant’s relative youth, his lack of previous criminal convictions, his first time in custody, the possible adverse effects of a lengthy time in custody and his need to be on bail to prepare for trial.

62. In carrying out the balancing exercise required in a release application, the Court was not satisfied that those considerations outweighed the protection of the public.

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Amendments

23 April 2025 - Publication restriction uplifted

Decision last updated: 23 April 2025