R v Unasa

[2017] NSWDC 291

District Court

New South Wales

Medium Neutral Citation:	R v Unasa [2017] NSWDC 291
Hearing dates:	9 May 2017
Date of orders:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The release application is declined
Catchwords:	BAIL – RELEASE APPLICATION – SHOW CAUSE OFFENCE – whether cause shown by one or multiple factors – whether cause shown by lengthy delay – whether Crown case weakened by absence of a witness – cause shown UNACCEPTABLE RISK – whether unacceptable risk of interfering with witnesses or evidence – whether unacceptable risk of failing to appear at proceedings
Legislation Cited:	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 Cited:	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
Category:	Procedural and other rulings
Parties:	Mr Muaimalae Unasa (Accused) Regina (Crown)
Representation:	Counsel: Ms T Evers (Accused) Mr K Gilson (Crown)   Solicitors: Katsoolis & Co (Accused) Solicitor for the Director of Public Prosecutions (Crown)
File Number(s):	2015/114884

Judgment

1. The accused, Mr Muaimalae Unasa, has been committed to stand trial in respect of four offences, being:-

1. On 17 March 2015, at Mount Druitt in the State of New South Wales, did cause grievous bodily harm to Ofa Latu with intent to murder the said Ofa Latu, contrary to s 27 of the Crimes Act 1900 (NSW);

2. On 17 March 2015, at Mount Druitt in the State of New South Wales, did shoot at Ofa Latu with intent to murder the said Ofa Latu, contrary to s 29 of the Crimes Act 1900 (NSW);

3. On 17 March 2015, at Mount Druitt in the State of New South Wales, did cause grievous bodily harm to Ofa Latu, with intent to cause grievous bodily harm to the said Ofa Latu, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW); and

4. On 17 March 2015, at Mount Druitt in the State of New South Wales, did possess a pistol, namely, one silver handgun, not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW).

2. The second and third counts on the indictment are charged in the alternative to count 1.

3. On 3 May 2017, the accused made an application for the grant of bail. Ms Evers of counsel appeared on behalf of the accused and acknowledged that each of the charges on the indictment were show cause offences, requiring the accused to show cause as to why his detention was not justified. [1]

   1. Bail Act 2013 (NSW) s 16A(1)

CROWN CASE

4. According to the Crown case statement, in February and March 2015, Odilon Unidad, Rowena Lontoc and their three children (aged 7, 8 and 14 years old) resided at an address in George Street, Mount Druitt. The residence is an apartment on the second level of a two storey building with a staircase leading from the ground level to the balcony where the front door of the premises is located.

5. The Crown alleges that on numerous occasions in the weeks preceding 17 March 2015, Mr Latu visited Mr Unidad at the address in Mount Druitt and requested that Mr Unidad sell drugs for him. On 17 March 2015 at about 6:00 pm, Mr Latu again attended Mr Unidad’s residence and asked him whether he had any drugs. Mr Unidad said that he did not and Mr Latu left after a short period.

6. At about 8:30 pm, Mr Latu returned to the residence. Mr Unidad, Ms Lontoc, their children, and Ms Lontoc’s brother, Mr Fernando Comerciante, and his friend, Mr Reynaldo Mariano, were present. Mr Unidad spoke to Mr Latu in the lounge room. Ms Lontoc was with the children. After about ten minutes, Mr Unidad asked Ms Lontoc to send a text to “Chopper”, because Mr Latu was annoying him. The accused is known as “Chopper”.

7. Ms Lontoc sent an SMS message from her phone to the accused’s phone requesting that he attend the residence because Mr Latu was there. The accused’s girlfriend, Ms Shykera Rio-Singh, by text, replied that the accused was asleep and said that she would pass the message on to him. At 8:32 pm, the accused replied to Ms Lontoc by SMS: “is he still dere” and then at 9:30 pm, the accused replied that he was: “5 min away.”

8. The Crown alleges that the accused walked through the front door into the apartment at George Street, past Ms Lontoc, Mr Comerciante and Mr Mariano. He was carrying a small bag over his shoulder, said to contain a pistol. Mr Comerciante and Mr Mariano are asserted to know the accused and recognised him.

9. Mr Latu was sitting on the lounge. The accused allegedly said to him:

“Why are you doing this to the people here? Why are you robbing them, why don’t you just rob me, I’m here why don’t you rob me now?”

10. While he said this, Ms Lontoc and Mr Unidad walked through the lounge room into the bedroom and locked the door. They are said to have avoided looking at the accused and Mr Latu. Nevertheless the accused is seen to enter through their doorway and argue with Mr Latu seconds before a sound is heard. It is alleged that Mr Latu leant forward and commenced to stand from the lounge. The accused is then alleged to have fired a pistol at Mr Latu, shooting him in the left side of his neck. The accused then said:-

“Now get up and get out of here and don’t come back to this place.”

It is further alleged that the accused picked up the casing of the fired round and left the premises. Three neighbours hear a gunshot like sound about the time the incident is alleged to have occurred.

11. Mr Latu walked to his vehicle, parked in George Street outside the premises where the apartment was located. At Mr Latu’s request, Ms Lontoc drove to Mr Latu’s brother’s house at Colyton and collected Mr Latu’s brother and then drove to Mount Druitt Hospital.

12. Mr Latu suffered a punctured lung and had his spleen removed. A 0.32 calibre projectile was located in his stomach and was surgically removed.

13. Mr Mariano subsequently identified the accused in a photographic identification procedure.

14. The Crown alleges that the accused did not have any authority to possess a pistol.

15. According to a statement prepared by Detective Senior Constable Glenn Sparham, the accused is known to Mr Latu and was identified by him as possessing a pistol and shooting him. Mr Latu supplied a statement to police but the Crown has conceded that Mr Latu is now not cooperative, and the prosecution will need to seek to rely on s 65(2) of the Evidence Act 1995 (NSW) for the purposes of tendering his statement, and potentially seek leave under s 38(1) of the same Act to cross-examine.

16. Four other witnesses, who are known to the accused, identify him as being at the flat at the time of the shooting.

17. One of the witnesses describes the accused running into the premises, while pulling a handgun from a black long strap handled bag, seconds before he entered the front door. The accused was later located with a similar bag to that which he is alleged to have pulled the pistol from.

18. Mr Latu’s attendance at Mount Druitt Hospital involved him telling medical staff that he had been shot and his attendance is captured on CCTV. There is forensic evidence that indicates blood splatter on the lounge in the position where the witnesses describe Mr Latu sitting before he was shot. Forensic evidence also locates the blood of Mr Latu in the vehicle identified as the one that drove him to Mount Druitt Hospital.

19. I have been informed that witnesses have also identified the phone number that they have for the accused that is registered to the accused’s girlfriend, Ms Rio-Singh. Phone positioning data indicates that the phone belonging to the accused moved from a location near his home address, towards George Street, Mount Druitt at the time the offence is alleged to have occurred, and then immediately away afterwards. Phone records also indicate that the phone number used by the accused was changed two days after the shooting. This is alleged to have been done at the request of the accused and completed by Ms Rio-Singh.

20. Witnesses have stated that they have previously spoken to the accused about the trouble they were having with Mr Latu regarding drugs and intimidation. The phone records indicate that messages were being shared between the residents of the premises on George Street, Mount Druitt and the accused, just prior to the shooting. Those phone records appear to confirm the request for the accused to come over and his reply, that he was 5 minutes away. The timing of the texts and the movements are said to be consistent with the mobile phone positioning data.

21. In the early morning on the day after the shooting, the phone registered and used by Ms Rio-Singh sent a NSW Police media release about the shooting to the phone used by the accused. Ms Rio-Singh sent a message the day after the shooting to the accused stating that she was worried that the accused would get arrested or “worse.”

22. A search warrant at the accused’s home address located multiple phones. At least one of these phones was linked to the phone numbers said to have been used by the accused at the time of the offence. Ms Rio-Singh denies that the accused had access to the phones at the time.

23. The accused was located and arrested in Queensland. On 22 June 2015, Ms Rio-Singh was also arrested and charged for allegedly concealing the shooting. She is alleged to have given numerous inconsistent responses and was unable to account for the phone messages.

24. According to an affidavit filed by Ms Simone Jones, solicitor for the Director of Public Prosecutions, the issue in dispute was who was initially in possession of the firearm and how exactly Mr Latu came to be shot. However, Ms Jones states that there is evidence in the Crown case suggesting that both the accused and Mr Latu were engaged in drug dealing in the Mount Druitt area and possibly in competition with each other. She states that it is common ground that Mr Latu was in the habit of compelling an occupant of the flat, Mr Unidad, to deal drugs and generally standing over him. Text messages were sent from a phone registered to Ms Lontoc, to the accused telling him that “Ofa” was in the flat, and asking the accused to come over. The accused is said to have responded positively via text message and there is a strong body of eyewitness testimony suggesting that the accused did arrive at the flat and enter just before the shooting. Ms Jones states that what is most in dispute is what occurred inside the lounge room between Mr Latu and the accused.

25. The complainant, Mr Latu, is the only witness to the actual shooting. The other occupants of the flat do not purport to have seen what happened. It is acknowledged that Mr Latu’s credit will be in dispute and it is likely that evidence will be adduced, not only of Mr Latu’s drug dealing habits, but also that he had previously robbed Mr Unidad and that he regularly carried weapons of various descriptions.

26. According to paragraph [6] of Ms Jones’ affidavit, Mr Marinano participated in an interview and provided statements dated 24 March 2015. The affidavit records at Exhibit A, Tab 8:-

[7] Mr Mariano’s only involvement on the day was visiting his friends, Mr Unidad and Ms Lontoc at their home. Mr Mariano is the only witness apart from Mr Latu, who purports to have seen the accused in possession of a firearm at the relevant time (asserting that he saw the accused holding the handle of a handgun that was shiny which was inside a small shoulder bag as the accused came up the steps before entering the flat in paragraph 14 of Mr Mariano’s statement dated 24 March 2015). It is acknowledged Mr Mariano did not make mention of this fact in his earlier statement (he asserts that he was afraid of the repercussions for himself and his family if he told the truth). Mr Mariano’s credit is likely to be an issue in the trial. Without his supporting testimony on the issue of the accused’s possession of the firearm just before entering the lounge room, the Crown case is entirely dependent on the complainant Mr Latu whose credit will be in issue (this is of course, assuming that the accused denies possession of the firearm in the first place – at this stage the Crown is unaware of the accused’s case).

27. According to Ms Jones, Department of Immigration and Border Protection records revealed that the witness flew to the Philippines on 25 March 2017. Information from Detective Senior Constable Sparham is that INTERPOL have a current address and telephone number for the witness in the Philippines but have yet to make contact with him and according to relatives, he intends to return to Sydney in August this year.

28. Ms Jones concedes that as police did not manage to serve Mr Mariano with a subpoena and there has been no communication with him by any prosecuting authority, she was not in a position to assert whether or not he was still intending to cooperate with the Office of the Director of Public Prosecutions as a Crown witness. The Crown acknowledges that given the likely attack on the credibility of the complainant, Mr Mariano’s corroborative evidence is vital to the Crown case.

Has the accused shown cause?

29. In Director of Public Prosecutions (NSW) v Tikomaimaleya, the Court of Appeal stated:-

[25] It is important, however, that the two tests not be conflated. Determination of the unacceptable risk test is not determinative of the show cause test. The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment. [2]

2. [2015] NSWCA 83 at [25] (Beazley P, R A Hulme and Adamson JJ)

30. It was acknowledged that the show cause requirement can be met by relying on one or a series of circumstances. [3] Ms Evers submitted that the length of time the accused has been custody and the vulnerability of the Crown case, combine to establish cause.

    3. R v S [2016] NSWCCA 189 at [63] (Macfarlan JA, Hall and Bellew JJ)

31. The Crown submitted that the accused has not shown cause as to why his detention was not justified because:

1. he has been charged with serious offences;

2. he has a history of non-compliance with bail acknowledgement and conditions; and

3. although there has been delay, it has not been unexplained, preventable or excessive.

32. The accused was charged on 17 April 2015. He was sentenced in relation outstanding offences at the time to imprisonment from 17 April 2015 to 17 June 2015. He had been in custody since that time awaiting a period totalling 1 year and 11 months. By the time of the relisted trial on 20 November 2017 is to commence, the total time spent on remand will be 2 years and four months and five days if bail remains refused.

33. The chronology of the proceedings in Court is outlined in a schedule contained in Exhibit A, Tab 6. In essence, no application for bail has been previously proceeded with since the matter was first mentioned at Waverly Local Court on 28 April 2015. During the period in the Local Court, there have been applications, both by the Crown and the Defence, and on some occasions jointly, for adjournments. The matter was the subject of a mention in the Sydney West Trial Courts on 7 July 2016 and a joint application was made for an adjournment to 4 August 2016, on which occasion, the accused would have been arraigned. On 4 August 2016, the matter was listed for trial on 1 May 2017 at the Sydney West Trial Courts with an estimate of three weeks. On 20 April 2017 her Honour Judge Payne, was advised of a potential application to vacate the trial due to an inability to locate a witness. On 26 April 2017, the Crown informed her Honour that the missing witness had been located overseas and it was hoped that the trial would proceed. The trial date on that occasion was confirmed for 1 May 2017.

34. On 3 May 2017, an application was made by the Crown for the trial to be vacated.

35. I respectfully agree with the comments of McCallum J in R v Farrell [4] where her Honour stated:-

[24] Returning to the show cause test then, I think the critical consideration is the vacation of the trial date. In R v Cain (No 1) [2001] NSWSC 116, Sperling J said “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, absent exceptional circumstances, not consistent with modern concepts of civil rights”.

[25] I respectfully agree. The Court must be astute to ensure that those concepts are not eroded by progressive numbness to delay or its normalisation due to the jading impact of straining against the stretched resources of the criminal justice system. In the context of this case the delay is lengthy however the responsibility cannot be sheeted to any one party.

4. [2016] NSWSC 1278 at [24] – [25] (McCallum J)

36. In the context of this case, the delay is lengthy however the responsibility cannot be sheeted to any one party

37. In regard to the strength of the Crown case, I adopt what was said In JM v R, [5] in that case Garling J stated:-

[42] … when a court is called upon to assess the strength of the Crown case for the purpose of a bail application, it can only do so to a very limited extent. That is because the Court is not generally provided with the full brief of evidence, often it is not yet available; the Court does not hear prosecution witnesses orally and is not in any position to make an assessment of the credibility of a witness except by a comparison of the content of the written statement with other facts and material made available. The assessment of the strength of the Crown case is also made at a particular point in time, usually quite distant from the final hearing, by which time the material available to a prosecution may be very different. Witnesses whose statements are taken by police do not always give evidence at a trial; if they do, they do not always give evidence which accords with their statements; a different picture may emerge during cross-examination; a jury, or the presiding judge or magistrate, may take an adverse view of the demeanour or credibility of a witness for reasons which do not appear in the words of a written statement. A court making a bail decision needs to be, and ordinarily is, conscious of these matters, which are necessarily unknown when assessing the strength of the Crown case.

[43] … the fact of the arrest and charging of an individual with an offence is not the equivalent of a determination of guilt, and the fact that the person remains in custody pending trial is the occasion for the consideration of, and if appropriate, the exercise of, the discretion granted to a court under the Act, rather than a reason of itself to detain a person in custody pending trial.

Those principles were endorsed in R v Xie [6] by Fullerton J.

5. [2015] NSWSC 978 at [42 ] – [43] (Garling J)

6. [2015] NSWSC 1833 at [43] (Fullerton J)

38. In the context of this case, the Crown concedes that their case is vulnerable. Much depends on Mr Mariano’s level of cooperation and there are issues as to his credibility. Overall, I accept the Crown’s concession is accurate however the vulnerability arises from the somewhat unique nature of the circumstances.

39. The trial is now listed to commence on 20 November 2017 and at this stage, it can be anticipated that contact will be made with the witness involved. Nevertheless in my view, the combination of the vulnerability of the Crown case and the length of time the accused has been and will remain in custody satisfies me that cause has been shown.

Is the accused an unacceptable risk?

40. The Crown has next identified the accused as an unacceptable risk, and cites the bail concern that he will fail to appear at the proceedings for the offences for which he has been charged as well as the concern that he will interfere with witnesses or evidence.

Bail Act 2013 (NSW) s 18(1)(a) – accused’s personal background including criminal history

41. In considering the matters set out in s 18(1) of the Bail Act 2013 (NSW), I bear in mind that the accused has a lengthy criminal history.

Bail Act 2013 (NSW) s 18(1)(b) – nature and seriousness of the offence

42. The second and third counts on the indictment are charged in the alternative to count 1. Counts 1, 2 and 3 carry a maximum penalty of 25 years imprisonment, whilst the last count 4 carries a maximum penalty of 14 years imprisonment.

43. The offences for which he has been charged are clearly serious and involve circumstances of alleged drug dealing. The strength of the prosecution case is, as I have previously described, vulnerable.

Bail Act 2013 (NSW) s 18(1)(d) – accused’s history of violence

44. The accused’s criminal history does not include any prior history of violence

Bail Act 2013 (NSW) s 18(1)(f) – accused’s history of compliance or non-compliance

45. The accused’s antecedents demonstrate failure to appear in accordance with bail undertaking in respect of which he was sentenced on 12 April 2006, issuing of warrants on 4 April 2006, and 16 January 2014, a breach of a Court imposed bonds. At the time of his arrest in 2015, he was also the subject of two warrants which were issued on 16 January 2014 and 11 December 2014.

Bail Act 2013 (NSW) s 18(1)(g) – accused’s criminal association

46. The accused does have criminal associations. According to Detective Senior Constable Sparham, associates of the accused in Queensland have been arrested for drug supply and firearms offences – highlighting the ability of the accused’s contacts to assist him with further criminal behaviour and to hide interstate. In particular, an associate by the name of Mr Geoff Talavave, with whom the accused lived with in Queensland, has been charged with numerous drug trafficking and weapons (pistol) possession offences. These offences include the time frame that the accused was residing with him. I have also been informed that fourteen other offenders have been conjointly charged for drug supply offences in Queensland, and all are on bail.

Bail Act 2013 (NSW) s 18(1)(i) – likelihood of a custodial sentence

47. It is inevitable that if the accused is convicted that a custodial sentence of significant length will be imposed.

Bail Act 2013 (NSW) ss 18(1)(l) and (m) – need for accused to be free to prepare for appearance in court, and to be free for any other lawful reason

48. No details have been submitted to the Court as to any difficulties that the accused has in preparing for his trial, in obtaining legal advice, or the need for him to be free for any other lawful reason.

Bail Act 2013 (NSW) s 18(1)(o) – views of the victim

49. I bear in mind that the accused personally knows the victim, who is currently in custody, and all the other primary witnesses. According to Detective Senior Constable Sparham’s account, if the accused is released, there is a high likelihood that witnesses will not attend Court. I have earlier referred to the unwillingness of the victim to cooperate and the matters concerning Mr Mariano. Parliament in enacting the Bail Act 2013 (NSW) specifically acknowledged the integrity of the justice system as a matter it had regard to in the Preamble.

Bail Act 2013 (NSW) ss 18(1)(p) and 20A – bail conditions that could reasonably be imposed

50. In the accused’s case, Ms Annamaria Unasa has given evidence. Her account is that were bail to be granted, it was proposed that the accused would live with her and her parents at [address redacted]. She has indicated that she is prepared to provide her property as security and has provided an estimate from “Professionals – Outer Western Sydney” of its value, being between $500,000 to $550,000 and an indebtedness in relation to the property, of $203,631.53. She has indicated that the accused would comply with any bail conditions in relation to curfew bearing in mind the respect the accused has for their parents who reside with her.

51. The Crown contends that as the property is the subject of a mortgage, then it could not be provided as security unless the mortgagee agrees, and that the only “security” that can be provided, would be way of an agreement by Ms Unasa to forfeit an agreed sum of money. Ms Unasa was not aware of the accused’s previous failures to appear, nor the fact that he had a previous conviction for drug supply. So far as the accused’s parents are concerned, I note that they no longer work, are elderly and both parents are committed members of the Congregational Christian Church of Samoa. Mr Afia Unasa is a Deacon at the Congregational Christian Church.

52. I also note advise from Police as to the accused having access to some $300,000 of his own from a compensation settlement but no proposal has been provided to advance this sum or any part of it as security.

53. Taking into account any conditions of bail, I am required to determine if there are reasonable grounds to believe that the condition(s) is/are likely to be complied with by the accused. [7] On balance I have formed the view that the seriousness of the charges, the likelihood of a significant penalty should he be found guilty of the charges, the concern for witnesses and the accused’s previous non-compliance with orders is such that the bail concerns of the accused failing to appear and the interference with witnesses or evidence, cannot be overcome. Whilst I accept the strength of the case is vulnerable, the accused’s release has to potential to enlarge that vulnerability. In these circumstances, I am satisfied that the accused remains an unacceptable risk and for these reasons, bail is refused.

    7. Bail Act 2013 (NSW) s 20A(2)(f)

ORDERS

54. The release application is declined.

Endnotes

Decision last updated: 01 November 2018