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R v Tsintzas

R v Tsintzas

Case [2017] NSWCCA 172 21 July 2017

Bail

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172
Hearing dates: 26 May 2017
Date of orders: 26 May 2017
Decision date: 21 July 2017
Before: Bathurst CJ at [1]
McCallum J at [2]
N Adams J at [3]
Decision:
Release application granted.

Catchwords: BAIL – applicant charged with a show cause offence – both of applicant’s sons seriously injured in motor vehicle accident – cause shown – whether any unacceptable risks – bail granted on conditions
Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 26(5), 49
Crimes Act 1900 (NSW), s 193C(1)
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
McAndrew v R [2016] NSWCCA 58
Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
R v Kugor [2015] NSWCCA 14
R v Marcus [2016] NSWCCA 237
R v SK; R v DK [2014] NSWSC 816
R v S [2016] NSWCCA 189
Category: Principal judgment
Parties: Harry Tsintzas (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
Mr Z Khatiz, solicitor (Applicant)
Ms N Williams (Respondent)
Solicitors:
Oxford Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00123487

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of N Adams J in draft. For the reasons given by her Honour I joined in the order made by the Court on 26 May 2017.
McCALLUM J: I have read the judgment of N Adams J in draft. Her Honour’s reasons reflect my own reasons for joining in the orders made on 26 May 2017.
N ADAMS J: On 26 May 2017, the Court heard a release application brought by the applicant pursuant to s 49 of the Bail Act2013 (NSW). The Director of Public Prosecutions (“the Director”) opposed the application. At the conclusion of the hearing, and after adjourning to consider the matter, the Court ordered the release of the applicant on a number of strict conditions. These are my reasons for joining in the decision to grant the release application at that time.

The charges

On 29 March 2016, investigators were lawfully monitoring conversations between the applicant and his co-accused. On that day, the co-accused said to the applicant, “Two and one yeah?” The applicant replied, “I’ve got it already. The two is there, I am just waiting for the one.” Investigators continued to monitor conversations between the two men over the next two days.
On 1 April 2016, investigators conducted physical surveillance at the applicant’s home. At about 9pm, the co-accused and another man attended the premises. The applicant supplied the co-accused with 27.8 grams of cocaine and the second man with 0.94 grams of cocaine. Police stopped and searched the vehicle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tsintzas

Details

AGLC: Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172
Case: [2017] NSWCCA 172
Decision Date: 21 July 2017

CaseChat Overview and Summary

The case before the court was an application for bail by the respondent, Tsintzas, who had been charged with a show cause offence. The charges stemmed from an incident where both of Tsintzas' sons were seriously injured in a motor vehicle accident. The primary legal issue for the court was whether, given the serious nature of the charges and the potential risks associated with granting bail, there were any unacceptable risks that would preclude the respondent from being granted bail. Specifically, the court had to consider whether there were any factors that would indicate that Tsintzas might not appear for trial if released on bail.

In addressing the application, the court weighed various factors, including the nature and seriousness of the offence, the circumstances of the incident, and the potential impact on the community if bail were granted. The court noted that the show cause offence was serious and that there were risks associated with granting bail, particularly in relation to the potential for Tsintzas to abscond or interfere with witnesses. However, the court also considered mitigating factors, such as the fact that both of Tsintzas' sons were seriously injured in the accident, which may have influenced his likelihood of appearing for trial. Ultimately, the court determined that, while there were risks, they were not so significant as to preclude the grant of bail. The court imposed strict conditions on the bail to mitigate these risks, ensuring that Tsintzas would be closely monitored and would not have the opportunity to interfere with the proceedings or pose a danger to the community.

The court granted bail to Tsintzas on the conditions that he reside at a specified address, surrender his passport, report to a police station twice weekly, and refrain from contacting any witnesses in the case. The court's decision recognised the serious nature of the charges but balanced this against the mitigating factors and the potential risks if bail were not granted. This careful consideration resulted in a balanced outcome that allowed Tsintzas to be released while ensuring that the risks associated with his release were adequately managed.

Orders