R v Toksoz

[2015] NSWSC 1234

Supreme Court

New South Wales

Medium Neutral Citation:	R v Toksoz [2015] NSWSC 1234
Hearing dates:	23 July 2015 & 3 August 2015
Date of orders:	23 July 2015
Decision date:	23 July 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Bail granted
Catchwords:	CRIMINAL LAW – BAIL – show cause requirement – weaknesses in prosecution case – length of likely remand – large security available – bail concerns mitigated – no unacceptable risks – conditional bail granted CRIMINAL LAW – BAIL – dispute over whether person an “acceptable person” – factors to be considered
Legislation Cited:	Bail Act 2013 (NSW) Bail Amendment Act 2014 (NSW) Bail Act 1978 (NSW)
Cases Cited:	R v Cain (2001) 121 A Crim R 365 R v Young (2006) NSWSC 1499
Category:	Principal judgment
Parties:	Ahmet Toksoz (Applicant) Regina (Respondent Crown)
Representation:	Solicitors: Bannisters Lawyers - Applicant Solicitor for Public Prosecutions –Respondent Crown
File Number(s):	2015/131627
Publication restriction:	Nil

ex tempore Judgment (release application)

1. Ahmet Toksoz makes an application under the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). It is a release application and he seeks to be released on conditional bail.

2. The application arises in circumstances where he is charged with a number of extremely serious offences and in particular offences of shooting with intent to murder (two counts), taking part in the supply of MDMA and another less serious but associated offence of failing to disclose the identity of the driver.

3. Because of the serious nature of the offences and in particular the involvement of a firearm in those offences ss 16A and 16B of the Bail Act casts upon the applicant a heavy burden, that burden is to show cause why his detention is not justified.

4. Ms Bannister who appears on his behalf on the application puts forward a combination of circumstances which she says satisfy the show cause requirement.

5. In summary form, and adopting her nomenclature, she relies on, first, the delay in providing the brief. In that regard I note that a document has been tendered which shows that a large amount of the material expected to be served as part of the prosecution brief is yet to be served and at the moment it is unclear when it is to be served. That is in circumstances where the applicant has been in custody since 19 December 2014.

6. Secondly, Ms Bannister relies on the consequent delay in bringing the matter to trial. Those two things are obviously related and until one knows when the prosecution brief will be served and whether there is going to be a committal hearing, and based on some of the things I will speak about when I speak about the strength of the prosecution case a committal proceeding seems, as far as one can predict the future, a possibility if not a likelihood. There is unlikely to be a trial date before 2016 and probably later in that year.

7. The third thing Ms Bannister relies upon concerns the strength of the Crown case. She argues that it is a weak case. She places before me the interview conducted with one of the victims of the shooting offence, Mr Timothy Venesjarvi, along with a walk-through interview with that witness.

8. The Crown case is essentially that the applicant, along with a co-offender called Goktas, set up a “drug rip-off” whereby they would go with a view to conducting a drug transaction and then, by using a gun which was ultimately produced by Goktas, would steal the drugs.

9. The case is one of common purpose because all of the evidence points towards the fact it was Mr Goktas who produced the weapon. That does not of itself make it a weak case. The applicant’s presence there is unlikely to be, contrary to Ms Bannister’s submission, purely coincidental.

10. However, Mr Venesjarvi provide certain information which on its face suggests that, far from being part of a common purpose, the applicant was unaware that a gun was to be produced and when it was may have been trying to “stop the other guy”. Mr Venesjarvi said in the recorded interview on 12 December 2014:

“Q493   O.K. And you said, urn, when, when you grabbed the firearm, tell me

about, um, what the other male was doing at that time?A   I don’t know. He somehow had his hand on the gun too. I don't know

if he was trying to stop the other, the other guy or not. It all happened

within about six seconds.

Q 500   So I don’t know, it was more towards his mate next to me, -----

Yeah.

So I don't know if his mate maybe thought he was going to get shot

Q 501 Yeah.

-----by mistake, but either way —

502   But did the, did the mate, the other guy, urn, did he, um, try to, um - -

A    No. He didn't touch me or anything in the car

Q 504   Yeah.

A   He just had his, there were three hands.

Q 505   But when the three hands were on that firearm, what were you feeling?

A   It was trying to be turned on me. I don’t know if it was by the other guy who had his, the guy who actually was holding it, or if it was the other guy with him.

Q506    Mmmm

A   I don’t know if he was trying to stop him.”

11. The man referred to as the “the other male”, the “mate” and the “other guy” is the applicant. Mr Venesjarvi made a similar observation in the walk-through interview on 18 March 2015:

V2.   As soon as I twisted [the gun] away the guy with the beard was positioned

next to him.

V.1   O.K.

V.2   And he also grabbed his hand onto the gun.

V.1   O.K. So at the time the gun was facing back out this way, was it?

V.2   Yeah, yeah. I'm not sure if he thought maybe the gun was going to

be shooting at him but either way he jumped in and grabbed the

gun too.

12. In this extract, “V2” is the witness while the “guy with the beard” is the applicant.

13. Based on that limited material that I have been taken to, I would assess the prosecution case against the applicant to have some real difficulties. It could not be said to be a strong one.

14. On the other hand, I do accept the submission made by Ms Mascia (for the prosecution) that there are inferences to be drawn by his presence there and the circumstances in which he came to be there arising from the statement of a Kelsey Coakes who apparently set up the meeting which led to the production of the gun and the attempted drug rip-off.

15. The fourth matter relied upon by Ms Bannister is the personal hardship that the applicant is suffering which is, she puts it, beyond that which would ordinarily be endured by a person on remand. The reason for this is that since he has been in custody one of his brothers passed away and the applicant was denied the ability to attend the funeral by those who make such decisions.

16. The other evidence before me, which includes an affidavit of his mother and an affidavit of another brother, provides cogent evidence that this is an extremely close family and I accept that the inability of the applicant to attend the funeral created exceptional hardship. As his mother put it:

“Being in custody has been extremely difficult for him. His brother, Tolga Toksoz, 21, with whom he was very close, passed away this year, while he was in custody. He was denied access to attend the funeral. He was extremely upset about Tolga's death and naturally remains so. He is upset not only at his passing, but also at not being able to grieve when family (this continues to today). He feels upset on a continuing basis that he did not have closure in seeing his brother before his burial and saying good bye. Ahmed is religious. In our religion it is important to farewell the spirit. Also, in our religion, the body is wrapped in cotton cloth and buried in the soil. It is only the immediate male relatives who are allowed to carry the body and bury a deceased family member. The applicant feels he failed in his duty to carry his brother's body. He has recounted to me many sad dreams where he has been unable to say good bye to his brother, and had other dreams of burying him. He tell me he prays daily for his brother. I know his anguish would exist even if he were on bail now but it is has been and continues to be worsened by his incarnation for the reasons above and his failure to do his duty at the burial. I know he will carry that with him for the rest of his life. His unhappiness is compounded by his continued separation from us as we are all still grieving for Tolga.”

17. The applicant also relies upon the availability of substantial surety to ensure his compliance or attendance on bail. That includes a secured amount of $200,000 from his brother which I take it will be based on his interest in real estate and $5000 from his mother.

18. It is well-established that a combination of circumstances might in particular cases satisfy the show cause requirement. In this regard some of the older law which applied under the Bail Act1978 (NSW) has some application. In particular, Johnson J in the case of R v Young (2006) NSWSC 1499 found exceptional circumstances justifying the grant of bail in a murder case based around the coincidence of a number of features of the case, such features may be subjective to the particular applicant, thereupon the nature of the offence or otherwise suggests the person is one who will answer bail.

19. Another part of the older law which has certain resonance in this case are the comments of Sperling J in the case of R v Cain (2001) 121 A Crim R 365 to the effect that the prospect that a private citizen, who has not been convicted of any offence, might be imprisoned for as long as two years pending trial is not consistent with modern concepts of civil rights.

20. I am satisfied that the combination of factors to which Ms Bannister has referred satisfies the show cause requirement in ss 16A and 16B.

21. The next question concerns the assessment of bail concerns. Because of the very nature of these offences bail concerns arise. They include the risk that the applicant will not appear, they include the risk of the commission of a serious offence, they include the risk of danger to the victim or other members of the community. That simply arises by virtue of the allegations themselves.

22. The Crown also puts to me that there is a risk of interference with witnesses or evidence. I do not presently see that that is a genuine bail concern given the material before me but the other bail concerns most assuredly do arise.

23. The question then is, by reference to the factors in s 18 of the Bail Act, whether or not those bail concerns are ameliorated to the degree that they do not rise to the level of being unacceptable risks. If they do rise to that level s 19 is in mandatory terms and requires bail to be refused.

24. However, I have referred in dealing with the show cause question and treating the question separately and not conflating them, in accordance with the authority in the Court of Appeal, I have referred to those matters and those matters are also relevant to the s 18 considerations.

25. I do not propose to address those individual factors seriatim, although I do note that I have taken into account the very serious nature of the allegations made as well as the likelihood of a gaol sentence being imposed if a conviction follows.

26. I have also taken into account what is compelling evidence of the accused’s community ties and family ties and the real problems that emerge in relation to the proof of these allegations arising from the material in the recorded interviews with Mr Venesjarvi.

27. One of the most compelling features from my point of view is the length of time that the accused is likely to spend in custody enjoying as it were the presumption of innocence.

28. For all of those reasons, and I should indicate I have considered all of the matters in s 18 are relevant, I propose to grant conditional bail.

29. Bail is granted on the following conditions.

1. To be of good behaviour

2. To report to The Hills Local Area Command daily between the hours of 9am and 5pm.

3. To live at [REDACTED].

4. To appear at Burwood Local Court on 12 August 2015 and on such date thereafter as required.

5. Not to drink alcohol or enter any premises in which alcohol is sold.

6. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor).

7. Not to associate or communicate by any means (except through his lawyer) with Hasan Goktas.

8. The applicant is not to be absent from the address at which he is required to live between the hours of 8pm and 7am except in the case of a medical emergency.

9. Not to have any contact in any way (except through a legal representative) with [REDACTED] or any person notified to be a crown witness including [REDACTED].

10. Not to apply for any new passport or travel document.

11. Not to go within 500m of any point of departure from the Commonwealth of Australia.

12. One acceptable person(s) is to deposit acceptable security as security for the payment of $200,000 which he/she agrees to forfeit if the applicant fails to appear before court in accordance with the bail acknowledgment.

13. To present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.

EX TEPORE JUDGMENT (BAIL VARIATION)

ACCEPTABLE PERSON

30. On Thursday 23 July 2015 I made orders granting a release application under the Bail Act 2013. In doing so I imposed a number of bail conditions. Relevantly, pursuant to s 26(2) I made it a condition that one acceptable person enter into an agreement and deposit an acceptable security to forfeit the sum of $200,000 if the accused fails to comply with the bail acknowledgement.

31. I did not specify that any particular person was an acceptable person and was not asked to do so. Although s 26(4) allows the bail authority, in this case the Supreme Court, to decide which person or persons is an acceptable person, my general approach is not to do so. The reason is that the prosecutor is usually not in a position to test any assertion as to a proposed acceptable person’s character or security. Further, for the bail list to function, a prosecutor does not generally require such witnesses for cross-examination and does not have immediate access to criminal histories or other police holdings relevant to the question.

32. At the time of making the order granting the release application, I had before me a body of evidence concerning the accused’s personal and family circumstances, as well as evidence that persuaded me that there were some potentially significant weaknesses in the prosecution case.

33. Relevant to the security requirement, exhibit 2 was the affidavit of Mehmet Toksoz, the applicant’s brother, who I will refer to as Mehmet. The affidavit said, amongst other things, “I have no criminal convictions.” The affidavit also set out Mehmet’s capacity to offer security. He owns a piece of real estate in Kellyville that is now estimated to be worth $750,000 and Mehmet has equity in the approximate sum of $200,000 in that property.

34. The matter came before me again on Friday 31 July 2015 in the duty list. A problem had arisen when Mehmet had attempted to enter the security condition at the Burwood Local Court Registry. It seems that the registrar was not prepared to accept Mehmet Toksoz as an acceptable person. When the matter came before me the accused was represented by a legal clerk, who was granted leave to appear. Mehmet was present, along with other members of the accused’s family.

35. I was provided with correspondence between the accused’s solicitor and the DPP in which the DPP indicated its view that Mehmet was not an acceptable person. I also was provided with a copy of Mehmet’s “Criminal history - bail report.” However, the DPP was not represented and I indicated that I would not deal with the matter in the absence of prosecution representation. I adjourned the case until 9.30 this morning.

36. I advised Mr Moussa, who appeared then for the accused, of three matters I wanted to have addressed this morning. One was whether the clerk at Burwood had made a decision pursuant to the power under s 26(4)(b) of the Bail Act and if so, what power I had to review that decision; two, whether what was really being sought was a variation of the original bail decision, and three, the precise meaning of the entries on the criminal history and status of the various matters there referred to.

37. Section 26(4) of the Bail Act provides:

(4) A decision as to which person or persons, or class or description of persons, is an acceptable person and what security is acceptable security for the purposes of a security requirement is to be made by:

(a) the bail authority imposing the bail condition, or

(b) the officer or court to whom the bail acknowledgment is given (if no decision has been made under paragraph (a))

38. Regulation 23 provides:

23 Verification that proposed bail guarantor is acceptable person

A bail authority must not enter into a bail security agreement with a person unless the bail authority is satisfied:

(a) that a decision has been made as to which person, or class or description of persons, is an acceptable person to enter into the bail security agreement, and

(b) that the person:

(i) is an acceptable person referred to in that decision, or

(ii) belongs to a class or description of acceptable persons referred to in that decision.

39. Nothing in the Bail Act or the regulations provides any guidance as to what constitutes an acceptable person for the purposes of s 26 of the Act. The term “acceptable person” is also used in s 27, which concerns character acknowledgements. It provides:

“27 Bail conditions can require character acknowledgments

(1) Bail conditions can require one or more character acknowledgments to be provided.

(2) A

"character acknowledgment" is an acknowledgment, given by an acceptable person, other than the accused person, to the effect that he or she is acquainted with the accused person and that he or she regards the accused person as a responsible person who is likely to comply with his or her bail acknowledgment.

(3) A decision as to which person or persons, or class or description of persons, is an acceptable person for a character acknowledgment is to be made by:

(a) the bail authority imposing the bail condition, or

(b) the officer or court to whom the bail acknowledgment is given (if no decision has been made under paragraph (a)).

(4) A bail authority is not to require a character acknowledgment unless of the opinion that the purpose for which the acknowledgment is required is not likely to be achieved by imposing one or more conduct requirements.

(5) The regulations may make further provision for character acknowledgments and requirements to provide character acknowledgments.”

40. There is a form commonly used by clerks and registrars in court registries which includes a questionnaire for people who are applying to be considered to be acceptable persons. That form includes two relevant questions which, if asked at the Burwood Court, may have caused the Registrar or clerk to have some misgivings about whether or not Mehmet was an acceptable person. The first is, “Have you been charged or convicted of any criminal offence?” and the second is, “Do you have any criminal charges, including court attendance notices, outstanding?” There is a requirement that the person provide details.

41. What was not known at the time of the original bail application was that there are a number of offences that have been alleged against Mehmet Toksoz over a period from 2011 until now. In the “criminal history - bail report” that is now before me, it shows that he was given a caution in the Children’s Court for an offence of stalking in 2011. It also shows that he was dealt with in the Fairfield Local Court for offences of driving whilst his licence was suspended, possessing a driver’s licence without authority and, perhaps most significantly, stating a false name when apprehended by police. In respect of each of those offences he was fined. In respect of the stating false name offence, he was fined $300.

40. The record goes on and there are a number of other offences referred to, but all but one of those have been withdrawn and the only matter that would, in general and common parlance, be considered to be a criminal matter was an offence of resisting police, for which he was placed on a bond under s 10 of the Crimes (Sentencing Procedure) Act for six months.

41. The Bail Act (s 4) defines “conviction” to include a finding of guilt so, as a matter of technicality, the statement in Mehmet’s affidavit that he has no criminal convictions was erroneous. However, I think most people and indeed I suspect some, if not many, criminal lawyers would have thought, even looking at this record, that that statement was true.

42. I certainly do not find that Mehmet deliberately misled his solicitor or the C ourt in asserting that he had no criminal convictions. He may have believed, and I will give him the benefit of the doubt, that the matters dealt with in Fairfield in 2013 were driving offences rather than criminal offences and that he would have been told, I am sure, when he was given the s 10 bond that he was not convicted, so it was an easy mistake to make and, I accept, a mistake that he did in fact make.

43. However, the question of whether the affidavit contains deliberately false statements is not now the relevant one. The relevant question is whether or not he is an acceptable person. Going back to the three questions that I raised on Friday, Ms Bannister, who appears today, puts to me that questions of “finality” do not arise and that (1) what happened at Burwood was not a final decision or subject to any review by me and (2) I am not functus officio in terms of the original bail decision.

44. Ms Mascia, who appears for the Crown, contends that one way or another the matter should be dealt with as a matter of substance rather than form. While some, I suppose, interesting questions might arise as to jurisdiction, I have little doubt that I have, at the very least, jurisdiction to consider an application to vary the bail in order to exercise the power that unquestionably resides in the bail authority granting bail to make a determination as to which person or class of persons is an acceptable person under the Act: see ss 26, 51 and 55 Bail Act.

45. What I propose to do in terms of the formalities of jurisdiction is to treat the application as a variation application and to consider the questions of substance that arise. Both parties have attempted, without success, to find some guidance or authority on what an acceptable person is.

46. As I said in argument, when the question arises under s 27 it is in the context of an acceptable person giving an opinion or vouching for the accused person’s character. In those circumstances it may be extremely relevant to determine the character of the proposed acceptable person and matters such as stating a false name in connection with a driving offence may be determinative.

47. Similarly, if the condition proposed is one whereby a person simply promises - without security - to forfeit a sum of money if the accused does not comply with bail conditions, again, the extent of a person’s criminal history may be a very relevant factor. It is, of course, also a relevant factor when considering whether a person is an acceptable person when, as here, they are proposing to sign over by way of mortgage or caveat the title to their home.

48. However, what constitutes an acceptable person in one instance might be very different to what constitutes an acceptable person in another. It is also then going to be a question of degree and a proper assessment of the person’s criminal history.

49. I do not consider that a dismissal of the charge in the Children’s Court has any bearing at all on what I have to decide. I accept Ms Mascia’s submission that the driving offence of stating a false name is something that should be taken into account in considering whether Mehmet is an acceptable person. I suspect that the seriousness of the resisting police offence is reflected by the fact that the Burwood Local Court did not record a conviction and imposed a very short bond.

50. I have not mentioned it yet but there also two outstanding charges of common assault and affray. Those two offences, it is accepted, arose out of an incident that took place on 17 September 2014. It was subject to a court attendance notice generated on 20 July 2015, but the matter was not brought to the attention of Mehmet Toksoz until the incident with the bail arose last Friday, which is to say 31 July 2015. That may be a reflection of the seriousness of the allegation. In any event, he denies it and is presumed to be innocent. Whilst it has some bearing on an assessment of whether he is an acceptable person for the purposes of the Bail Act, I do not take it into account as being a matter of any great moment.

51. In the end, it becomes a value judgment based on all of the circumstances.

52. A relevant circumstance is the basis upon which I came to the conclusion that bail should be granted. That was on a consideration of the strength of the prosecution case and difficulties that may arise as a result of certain things that had been said by the victim as to the role that Mr Toksoz played.

53. I think it is also highly relevant that the acceptable person has to put up security in the sum of $200,000. I think it is also relevant that even though there is a criminal history it does not, in my assessment, include any matters of great significance. Even the false name matter was dealt with by way of a small fine of $300.

54. Whilst I do have some concerns, I am ultimately firmly persuaded that Mr Mehmet Toksoz is an acceptable person and, pursuant to s 26(4)(a) decide that he is so. The condition of bail imposing a security requirement, which is condition (12) as I have recounted them in paragraph [29] above will be varied accordingly.

**********

Decision last updated: 27 August 2015