Re Atasoy

Case [2022] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:

Re Atasoy [2022] QSC 148

PARTIES:

IN THE MATTER OF AN APPLICATION FOR BAIL BY SALEH ATASOY
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
(Respondent)

FILE NO/S:

14793 of 2021

DIVISION:

Trial Division - Applications

DELIVERED ON:

13 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2022

JUDGE:

Freeburn J

ORDER:

An order for bail will be made on conditions provided by means of a draft order.

CATCHWORDS:

APPLICATION FOR BAIL – CHANGES IN THE CHARGES – ACCESS TO BRIEF OF EVIDENCE – NATURE AND SERIOUSNESS OF THE OFFENCES – STRENGTH OF THE EVIDENCE – where the applicant’s first application for bail was refused – where the applicant is alleged to have committed offences related to drugs and weapons – where the applicant filled a second application – where the second application for bail was adjourned on three occasions – whether the applicant should be granted bail.

COUNSEL/LEGAL REPRESENTATIVE:

MJ Henry (applicant)

RH Godfrey (respondent)

SOLICITORS:

SANS Law (applicant)

Office of the Director of Public Prosecutions (respondent)

REASONS

  1. This is Mr Atasoy’s second application for bail. The application was made in the applications list on 4 July 2022. The decision was reserved until today to enable a proper examination of the voluminous material and a proper consideration of some of the difficult issues raised by the application. Ordinarily, applications for bail are decided swiftly.

    The Recent History

  2. On 2 April 2020, Davis J refused Mr Atasoy’s first application for bail. Davis J noted that on 3 December 2019 Mr Atasoy was arrested and the offences alleged against him on that occasion included possession of a number of firearms, ammunition and drugs. And then, whilst he was on bail for that first group of offences, Mr Atasoy was arrested again on 13 January 2020. The search this time located a number of handguns, a semi-automatic rifle and two stolen vehicles. On 11 February 2020, Mr Atasoy was arrested again. The allegation here is that he was involved with others in connection with another person’s possession of 8.33 kilograms of methylamphetamine. Again, weapons were found.

  3. Reading the sentencing remarks, there is little doubt that the toxic mix of drugs and weapons was central to His Honour’s decision to refuse bail.

  4. On 12 August 2021, Mr Atasoy was sentenced by Williams J. At the outset of the sentencing hearing a 17-count indictment was replaced by a new 10-count indictment. The result was that Mr Atasoy pleaded guilty to two counts of unlawful possession of a motor vehicle, two counts of possession of a category D weapon, four counts of possession of a category H weapon, one count of possessing a dangerous drug and one count of possessing a dangerous drug in excess of 50 grams. Her Honour imposed a head sentence of three years and, on the basis that he had served 205 days in presentence custody with some hardship, which equated to roughly one-third, he was given immediate parole. However, Mr Atasoy remained in custody because…

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Re Atasoy [2022] QSC 148
Case
[2022] QSC 148
Decision Date

CaseChat Overview and Summary

In the case of Re Atasoy, the applicant was seeking bail in relation to charges related to drugs and weapons. The case was heard in the Supreme Court of New South Wales. The applicant had already made one bail application which was refused. A second application was subsequently made but was adjourned on three occasions. The primary issue for the court was whether the applicant should be granted bail. In making its decision, the court considered the nature and seriousness of the offences, the strength of the evidence against the applicant, and the applicant's access to his brief of evidence. The court also considered the applicant's offer of bail conditions which included a surety, residential conditions, curfew, reporting conditions, no contact conditions with victims and witnesses, no interstate or international travel, limits to mobile phone use, and electronic monitoring.

The court found that the applicant had not been given proper access to his brief of evidence, whether in paper or electronic form. The court noted that the Director of Public Prosecutions had not addressed the accuracy of the applicant's allegations and had not sought an adjournment to investigate the concerns. The court also found that the applicant had spent 2 ¼ years in custody which had been arduous and may be regarded as harsher than usual punishment. The court was satisfied that the proposed bail conditions could adequately address the risks identified by the Crown and reduce those risks to an acceptable level.

The court concluded that the applicant had established that his detention in custody was not justified. The court made an order for bail on conditions provided by means of a draft order. The applicant offered to accept bail conditions which included a surety of $60,000, requirement to be at court appearances, residential condition, curfew, reporting condition, no contact conditions with victims and witnesses and also co-offenders, no interstate or international travel, limits to mobile phone use, and electronic monitoring.

Orders

Orders of the court

An order for bail will be made on conditions provided by means of a draft order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no dispute that significant aspects of the brief are in an electronic format and include CCTV footage and the like. The only sensible way to give Mr Atasoy access to his brief is to give him access to a computer. It also appears to be accepted that Mr Atasoy has not been given proper access to his brief – whether the paper form or the electronic form. It is necessary to try to untangle the events which have led to the present situation.The Battle for Access to the Brief of Evidence The DPP acknowledges that it is notorious that there are difficulties associated with preparation of a case from custody. As a general statement that may be accepted. Then the DPP acknowledge that: “The matter of concern is that the applicant has sworn to the brief of evidence for his charges being removed from his cell.” That is a concern. But it is a concern that the Director of Public Prosecutions do not address. They do not contest the accuracy of the allegation. They did not seek an adjournment so that the concerns can be investigated. There is no substantive answer to the applicant’s allegations. In paragraph 4.3 of the DPP’s addendum submissions, the DPP say this:“There have been administrative and procedural issues with the applicant being given access to his voluminous material, that appears to require a laptop to access in its entirety, and that it is now available, including completing a legal laptop access session on 18 May 2021.”[9][9]During argument it was clarified that the date in paragraph 4.3 was correctly stated as 18 May 2021 even though an initial reading, and the context of the submission, suggests what was intended was 18 May 2022. The phrase that there have been “administrative and procedural issues” with access is so vague as to be meaningless. In fact, to put it into plain English, Mr Atasoy has been denied access to his brief of evidence. The suggestion that Mr Atasoy was actually provided with access at a session on 18 May 2021 is a little bizarre. In a context where Mr Atasoy and his lawyers have been making serious complaints about Mr Atasoy not having proper access to the brief of evidence, the DPP say, in effect, ‘well you had a session involving access to a laptop back in May 2021’.[10][10]This topic is addressed below. Then, in paragraph 4.4 of the same submissions, the DPP say this:“As noted in Sica v Director of Public Prosecutions (Qld), the difficulty of instructions being given whilst on remand may be cured or overcome through the arrangement of communication and conference facilities.” That is true. It can hardly be difficult for a corrections facility to provide a prisoner with access to a computer. That access may need to be supervised. However, as that submission acknowledges, arrangements for access to a computer can be made. No particular complexities are said to attach to putting a prisoner in a room with a computer. The computer need not even be attached to the internet for Mr Atasoy to access the brief of evidence including video footage via, for example, a USB. The problem is that here there is no evidence that any such arrangement is available to Mr Atasoy.

Decision

Reasons for decision

Mr Atasoy offers to accept these bail conditions (in summary):(a)A surety of $60,000;(b)Requirement to be at court appearances;(c)Residential condition;(d)Curfew (from 5pm to 5am, but with an exception for the purposes of his business);(e)Reporting condition (Monday, Wednesday and Friday);(f)No contact conditions with victims and witnesses and also co-offenders;(g)No interstate or international travel;(h)Limits to mobile phone use;(i)Electronic monitoring.Conclusions In my opinion there is insufficient evidence to enable the court to conclude that there is a real risk of Mr Atasoy failing to surrender or interfering with witnesses. The risk of re-offending is lessened by the fact that Mr Atasoy has spent 2 ¼ years in custody. For three reasons, that custody has been arduous[16] and may be regarded as harsher than usual punishment. That custody must have had a deterrent effect. The conditions proposed and the need for Mr Atasoy to revive his business and thereby provide for his family are likely to dissuade any offending.[16]The three reasons are the pandemic, the fact that he has been unable to see his family, and the special confinement. The charges are contested. The need for Mr Atasoy to properly prepare his defence, which appears to have been denied to him whilst in custody, and the continuing delays in the Crown’s prosecution of its case, are further reasons for a grant of bail. On balance, I am satisfied that the conditions proposed can adequately address the three risks identified by the Crown and can reduce those risks to an acceptable level. Mr Atasoy has established that his detention in custody is not justified.

Ratio Decidendi

Legal Principle Established

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