R v HD

[2017] NSWSC 1756

Supreme Court

New South Wales

Medium Neutral Citation:	R v HD [2017] NSWSC 1756
Hearing dates:	7 December 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Application refused
Catchwords:	BAIL – charge of discharging a firearm with intention to cause grievous bodily harm – charge of knowingly participating in a criminal group – charge of shooting at a person with intent to commit murder – show cause requirement – assessment of strength of Crown case – where undesirable length in custody awaiting trial – bail refused
Legislation Cited:	Bail Act 2013 Crimes Act 1900
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	HD (Applicant) The Crown (Respondent)
Representation:	Counsel: G Turnbull SC (Applicant) D Curran (Crown)   Solicitors: Zahr Partners (Applicant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2017/269938

Judgment

1. On 11 May 2016, the applicant, to whom the designation HD has been given, was arrested and charged with committing three offences on 16 March 2016, namely:

1. an offence contrary to s 33A(1)(a) of the Crimes Act 1900 of discharging a firearm with intention to cause grievous bodily harm;

2. an offence contrary to s 93T(1A) of the Crimes Act, of knowingly participating in a criminal group; and

3. an offence contrary to s 29 of the Crimes Act of shooting at a person with intent to commit murder.

2. Bail was refused upon his arrest, and the applicant has been in custody since then.

3. A trial has been fixed to commence on 22 October 2018, in the District Court at Sydney.

Previous Application for Bail

4. On 6 October 2016, the applicant made an application for bail to this Court. When dealt with on that day, it was refused. In her judgment, N Adams J concluded that:

1. the Crown case was a reasonably strong one, and that it could not be described as a weak case;

2. a trial would occur in mid-2017; and

3. cause had not been shown in accordance with the Bail Act 2013.

5. The consequence of this failed previous bail application is that the provisions of s 74 of the Bail Act have application to the present release application.

6. Relevantly, s 74 provides that a court which has refused bail for an offence is to refuse to hear another release application unless “… there are grounds for a further release application”.

7. Section 74(3) provides, inter alia, that there would be grounds for a further release application if:

1. material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application; or

2. circumstances relevant to the grant of bail have changed since the previous application was made.

Show Cause Offences

8. Two of the three offences with which the applicant is charged, namely those involving the use of a firearm contrary to ss 29 and 33A(1)(a) of the Crimes Act fall within Part 3 of the Crimes Act.

9. These are show cause offences pursuant to s 16B(1)(d)(i) of the Bail Act.

10. Pursuant to s 16A(1) of the Bail Act, an applicant for bail with respect to these offences must show cause why his detention is not justified. If he does not do so, then the Court must refuse bail.

11. If an applicant does show cause why his detention is not justified, then the Court is obliged to deal with the balance of the application by reference to the unacceptable risk test set out in Div 2 of Part 3 of the Bail Act.

Crown Case

12. The Crown case is that in the early hours of the morning of 16 March 2016, the victim was at home with some friends. At around 2am, he received a warning from one of his friends that he was about to be shot. Another friend warned him that there were men across the street with their identities concealed by hoods. The victim and one of his friends entered a Toyota Hilux utility (“the Hilux”) and attempted to escape from his house and to confront the intended aggressors. The Hilux was being driven by the victim’s friend. The friend drove it into a park on the opposite side of the road to the victim’s house, where they saw a man hiding in the bushes.

13. As their car approached, that man got up and ran through the park towards a white sedan which was parked on a nearby road. The victim identified the white sedan as a white Toyota Camry (“the Camry”) and made a note of its registration number.

14. The victim asked the friend to return to his home. However, shortly afterwards the Hilux and the Camry came to be driving towards each other from opposite directions. As that occurred, the victim observed a man hanging out of the passenger side of the Camry. That man was observed to be holding something in his hand. The victim heard a voice scream out, followed by two or three shots being fired from a firearm. He and his friend commenced to escape by driving their Hilux away quickly. It seemed to have a flat tire. A car chase ensued.

15. In an attempt to escape, the Hilux rounded a corner but control was lost and it was unable to continue driving. It ended up facing a park. The victim’s friend jumped out of the driver’s seat and ran away, attempting to hide in nearby bushes. The victim observed the Camry to have stopped about a metre or so in front of him. He saw the applicant get out of the car from the rear driver’s side door. A co‑accused, M, got out of the front passenger’s side door of the Camry. The victim observed both men walking towards him. The applicant was holding a gun with both hands. The applicant threatened the victim by pointing the gun at him and pulled the trigger. The victim heard the metallic clicking sound of a trigger being pulled and moved his body in an attempt to avoid being shot. Apparently the gun misfired, no bullet was discharged and in the immediate aftermath, the victim escaped from the motor vehicle and attempted to run away. He was able to move to a nearby road, flag down a car and seek assistance. He met up with his friend and they returned to the victim’s house. There the victim telephoned 000 to report the incident. He gave the operator a short description of what had happened and provided the number plate of the Camry involved.

16. The victim and his friend then walked to the nearest police station and spoke to the police about what had happened.

17. Police observed that the Hilux had a number of small holes in the back tray and a deflated rear passenger side tyre, which had been caused by bullets striking the tyre.

18. In due course, the victim identified the applicant to police, informing them that he recognised both the applicant and his co-accused, M, on the basis that he had previous dealings with them.

19. Forensic examinations of the Camry, when it was later recovered, demonstrated that there was gunshot residue on the vehicle’s exterior and interior rear near side.

20. After the applicant was arrested, he was transported in a van with his two co‑accused, M and G. In that van, the conversations between the three accused were recorded by an authorised surveillance device. The recorded discussions made it plain that the applicant, with his fellow co-accused, had been in a motor vehicle previously, the contents of which had been emptied out. One of the other co‑accused was recorded telling the applicant that he had “chucked it away”. Although the applicant questioned as to what had been “chucked” in the particular context, I would understand the reference to be to the gun used in the incident for which they had been arrested. The conversation went on to include a discussion between the applicant and the co-accused about what would happen “the next time we shoot”. There was also a discussion about whether the victim had cameras at his house and if so, what those cameras would show.

21. The conversation included some reference to how it was that the three accused had been identified as being involved in the events with which they were charged. They also discussed what any videos obtained by the police might show with respect to the car in which they were travelling.

22. In the applicant’s presence, the following was said by his co-accused about available CCTV footage:

“G:   Doesn’t matter. Doesn’t show who was I with.

M:   Doesn’t matter?

G:   You’ll just see a car like that driving, that’s all you’ll see.

M:   You’re the smartest.

G:   A car following another car, that’s what it will show.

M:   Alright but not everything?

G:   Nah. Not like that. It will just show just this car and then he’ll go following around like this then they’re gunna see a car following like this car and there’s no light in it and they’ll say why were you following him, you know what I mean? If you see you him shooting at him. In the video it shows you and his car then youse must have been doing the shooting at him. With this car. With this car. You know what I mean?”

23. The applicant submitted the Court would not accept that the Crown case was a strong one for three reasons.

24. First, in April 2017, which was after the first bail application, the victim had been asked to participate in a process of identification by the investigating police. That process involved the selection from a series of photographs of the person who he identified as being the individual who shot at him whilst he was seated in the stationary Hilux. It is accepted that the victim did not identify the applicant, and identified another person. As well, the applicant pointed to the absence of any independently obtained forensic material to indicate that he was ever in the identified motor vehicle.

25. Secondly, the applicant submitted that the victim, whose identification of the applicant is essential to the Crown case, is not a person of good character, and therefore someone whose evidence was unlikely to be accepted by a jury.

26. The applicant relied upon the fact the victim has pleaded guilty to a number of offences involving firearms, drugs and violence. He is apparently to be sentenced for some of those offences in March 2018, and is likely to receive a custodial sentence, which would be in effect at the time of the applicant’s trial in October 2018.

27. Finally, with respect to the Crown case, the applicant drew attention to the fact that the complainant did not provide the applicant’s name to police during the 000 phone call, nor during his initial visit to the police on the morning of the incident. The victim did not make a formal statement until over a month after the alleged offence, when he was visited by police whilst he was in custody, his bail having been refused in relation to drug related matters. It was during that statement, taken about a month or so after the incident, in which the victim first identified the applicant as the “shooter”. Apparently, the victim was released on bail three months later.

28. In contrast to the victim’s character, the applicant submitted that he is a person of limited criminal history, having only one offence of violence said to have occurred in August 2008 and two minor drug offences.

29. The applicant does not accept that he is a member of any criminal gang and in particular the gang known as “DLASTHR”. He does not accept that there is any evidence that the events were related in any way to “DLASTHR”.

Assessment of Strength of Crown Case

30. There is little doubt on the material before this Court that an incident to the effect of that which is described above, and which is relied upon by the Crown, took place. A number of independent witnesses heard various parts of that crime. The Hilux was discovered to have bullet holes in it, and the Camry was, when examined, found to have gunshot residue on it in locations consistent with the events described. CCTV footage also corroborates the events.

31. The principal issue relied upon to show that the Crown’s case is weak is whether the applicant was the “shooter”, and in the car on the evening in question.

32. The victim identified the applicant, he says, on the night in question as the “shooter”. That evidence is contained in a statement provided by him to the police a month or so after the event. It is an unequivocal identification which is based upon personal knowledge which the victim accumulated over many years.

33. The Crown case of the applicant’s involvement is, to some extent, corroborated by the recorded conversations between the applicant and his co‑accused, G and M. That material provides significant support for the Crown case, that all three were in the motor vehicle during the events in question, and that steps had been taken to dispose of the weapon which had been used.

34. It can be accepted that the victim is not a person of good character. However, having regard to the nature of the offences concerned, that is unsurprising. It is a factor which a jury will need to weigh when assessing the credibility of the victim’s evidence which implicates the applicant. It is a relevant matter for this Court to take into account, but of itself and without more, is not decisive. It does not necessarily mean that the victim ought be disbelieved.

35. Similarly, whilst the failure of the victim to identify the applicant in the photo identification process will be an important issue for a jury to take into account in considering the value of the victim’s evidence as to the applicant’s identity, it is not decisive. Photographs are not always a true indicator of the features which are relied upon to recognise or identify an individual person. There is no suggestion that the victim, was in any doubt about the identification of the applicant in his police statement.

36. I am not satisfied that the delay in naming the applicant is of any real significance. The circumstances in which the applicant was first named, came about whilst the victim was in custody. He may well have felt that, had he named the applicant prior to that time, he would have been at real risk from further attacks by way of reprisal.

37. The investigating police have placed before the Court, the fact that five days after the victim’s statement was served on the applicant and his co‑offenders, the victim’s home address was the subject of a drive-by shooting. The prosecution submits that these two events are linked.

38. Senior counsel for the applicant somewhat faint-heartedly submitted from the Bar table that the applicant had an alibi at the time of the offence. He said that this was related to data obtained from mobile telephone call towers. He agreed that notice had not been given of that alibi defence in accordance with the requisite procedures. He did not provide to the Court any material which would enable an assessment of the strength of such an alibi.

39. I am satisfied that I can put no weight at all upon this submission from senior counsel for the applicant. Moreover, it is in conflict with the admissions contained in the surveillance device material.

40. The Court does not determine the guilt or innocence of the applicant in assessing the strength of the Crown case. Rather, it must assess this strength on the material before the Court.

41. I find myself entirely in agreement with N Adams J that the Crown case could not be described as “weak”. Instead, I agree with her Honour’s assessment that it is reasonably strong.

Length of Detention in Custody

42. As indicated earlier, the applicant entered custody on 11 May 2016 and, unless bail is granted, will remain in custody until 22 October 2018, at the earliest, which is the date for the commencement of his trial. The trial is estimated to last about four weeks. Unless the applicant is granted bail by the Trial Judge, the applicant’s time in custody will continue for approximately a month after the trial commences.

43. That means that before any verdict is returned by a jury, the applicant will have been in custody for about 2 years and 5 months.

44. This is a very long time. The applicant, at present, has the presumption of innocence operating in his favour. He has not been convicted of this crime, and pre‑trial custody is not to be equated with serving a sentence of imprisonment upon conviction.

45. A lengthy delay between arrest and trial is a weighty matter to be considered in light of all other factors on this application. The Crown offered no particular explanation for the lengthy delay.

Gang Membership

46. In the material put before the Court by the investigating police, it is said that the applicant has been identified as a member or associate of the crime gang “DLASTHR”. This is a notorious, violent Assyrian crime gang. The police suggest that the applicant has been identified, by reason of his gang membership, as a suspect in a number of shooting and fire‑bombing offences committed by the gang prior to his arrest. The police since January 2016, have identified a number of drive-by shootings, fire‑bombings and attempted murders in the Western Sydney area that members of DLASTHR engaged in by targeting another rival gang over drug territory. The applicant has not been charged with respect to any of these incidents.

47. Senior counsel for the applicant relied in response to this material, on a conversation which he said occurred between the solicitor for the applicant and a solicitor at the Office of the DPP. Senior counsel submitted that such a conversation indicated that there would be no evidence led at trial which was capable of demonstrating that the applicant was a member of any criminal group and not the gang called DLASTHR. He submitted that there was no evidence in the brief delivered to the applicant to substantiate any gang membership.

48. In response, the DPP’s lawyer on the bail application submitted that the fact that at trial such an allegation may not be supported by evidence, did not mean that the material placed before the Court on this application ought be entirely disregarded.

49. The other factor is that on the material available to the Court concerning the particular criminal events in question, I would conclude that those events are consistent with episodes commonly seen as part of gang rivalry, and interaction, in the context of disputes over territory. The initial attack, although thwarted, was apparently planned. It was to take place at the victim’s home, perhaps as he left his home and entered a motor vehicle. Thereafter the features of the attack on the victim involved both recklessness with respect to the way in which the vehicle was being driven on the roadway, and clear intention to murder the victim. This is demonstrated by the gun being pointed directly at him.

50. These features support the connection of which the police attest. I am not prepared to disregard that material because there is no substantive material served as part of the brief, or because of a submission from the Bar table that the applicant is not a member of a gang.

Co-Accused

51. One of the two co-accused is in custody, having had bail refused by the Court of Criminal Appeal. The other co‑accused is on bail, he has not yet been committed for trial.

Proposed Conditions

52. The applicant proposed that if granted bail, he would live with his parents at their home, report to the police station twice daily and be subject to a curfew condition between 10pm and 5am whilst at his parents’ home. In addition to the usual non-association and travel restrictions, the applicant proffered security by way of an agreement to forfeit an amount of $1.8M from his father and his sister. His proposed sureties gave oral evidence in Court to this effect, which I accept.

Discernment

53. The first question is whether the applicant has demonstrated that he has established grounds for a further application. In my view, he has. The fact that his trial date is now fixed to take place on 22 October 2018, which is considerably later than the date anticipated at the time of his first bail application, is a change in circumstances. Contrary to what N Adams J was told in October 2016, the complete and served prosecution brief indicates that there is no material indicating a connection between the gun used in the event in question and the applicant.

53. In combination, I am satisfied that these matters represent grounds for a further release application, and that there is no bar to considering the applicant’s current release application.

54. It is appropriate that the Court next consider whether the applicant has shown cause why his detention is not justified.

55. In respect of this, the applicant’s submission can been concisely stated. First, the applicant submitted that his detention prior to trial will be a very lengthy period which of itself, and without more, would warrant a conclusion that his detention was not justified. Secondly, and cumulatively, the applicant submitted that for the reasons which I have already discussed, the prosecution case is a weak one. Thirdly, the applicant submitted that the Court would have no reason, subject to the imposition of appropriate conditions, to think that there were any remaining bail concerns.

56. It is unarguable that the delay to trial is a lengthy one. A period of nearly 2½ years prior to a trial is a matter of significant concern.

57. Whilst I have concluded that the Crown case cannot be described as a weak one, and that on the contrary it is a reasonably strong one, I am however persuaded that in the particular circumstances of this case, that subject to showing that there are no unacceptable risks, the applicant has shown cause why his detention is not justified. Simply put, the period of delay is excessive.

58. The Crown submitted that having regard to the circumstances of the events, and in particular the violent and public nature of them, in which members of the public were at risk of being shot and injured, the Court would be concerned with the risk that further serious crimes would be committed if the applicant was released on bail.

59. As well, in light of the attack being planned to commence at the victim’s premises, the Crown submitted that there is a risk to the victim’s life and that of his friend who witnessed most, but not all, of the evening’s events. The Crown further submitted that, having regard to the seriousness of the offences, there is a real risk that the applicant may not attend his trial.

60. In my assessment, for the following reasons, those concerns are justified and cannot be ameliorated adequately by the conditions which are sought to be imposed, such that the risks accompanying those bail concerns remain unacceptable risks.

61. I accept that the applicant has ties to the community. His parents and family are in the community. I also accept that the applicant has a limited past record. However, the offences on his record are of a serious nature, namely being armed with intent to commit a serious indictable offence and of assault occasioning actual bodily harm. In committing these crimes, the applicant was armed with a baseball bat when he entered the premises and assaulted the victims who were on those premises. Such was the seriousness of that offence that even though the applicant had no prior criminal convictions of relevance, he was sentenced to a 2 year term of imprisonment in the District Court.

62. Again, I accept that this conduct was some years ago, but there is material before me which indicates that the applicant has continued to engage in criminal conduct since then, although he has not been charged or convicted of any further criminal offence. Any ongoing criminal conduct of a violent kind is a matter of real concern for the safety of the community.

63. The offences with which the applicant is charged are very serious. One is an offence of attempted murder. The circumstances are that it was a planned crime and but for the failure of the weapon to operate correctly, the victim would likely be dead. As well, the haphazard firing at a moving vehicle from another moving vehicle posed a serious risk to public safety.

64. I have formed the view that the Crown’s case is strong and that if the applicant is convicted, it is inevitable that he will face a significant and lengthy custodial sentence for the attempted murder offence (at least).

65. Whilst the proffered monetary security may temper the risk of the applicant not appearing in Court when obliged to do so, I am simply unpersuaded that the other risks could be conditioned in such a way that it would be acceptable to the safety of the community to release the applicant on bail.

66. As well, as the victim is the person upon whose evidence the Crown’s case for identification of the applicant depends, he remains at risk if the applicant is released on bail, until the victim is sentenced in March 2018 (or later).

67. Taking all of these matters into account, I am unpersuaded that the applicant’s release on bail can be made subject to conditions which mean that risks associated with his release are not unacceptable. The applicant has not demonstrated that his detention is not justified. It follows that this application must be dismissed.

68. The application is dismissed.

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Decision last updated: 15 December 2017