Re Gurkan - [2020] VSC 855

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0315

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an application for bail by HALIS GURKAN

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2020
DATE OF BAIL RULING:	17 December 2020
CASE MAY BE CITED AS:	Re Gurkan
MEDIUM NEUTRAL CITATION:	[2020] VSC 855	First Revision: 17 December 2020 [66] item 6

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CRIMINAL LAW – Bail – Intentionally causing serious injury – Reckless conduct endangering life – Firearms offences – Whether compelling reason established – Delay – Family and business responsibilities of applicant – No relevant previous convictions – Compelling reason established – Unacceptable risk of not surrendering into custody or committing offence while on bail and of endangering any person not established – Bail granted with conditions – Bail Act 1977, ss 1B, 4AA, 4C and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Richter QC	Z D Legal
For the Respondent	Mr L Harrison	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 3 August 2020, the applicant was arrested at an address in which he was then residing in Beveridge, and charged with 13 offences. Having twice been refused bail by the Magistrates’ Court, he now applies to this court for bail.

The first six charges include intentionally causing serious injury, reckless conduct endangering life, being a prohibited person using a firearm, and committing an indictable offence while on bail. Those offences are alleged to have been committed on 8 February 2020. The remaining charges arose from a search by police of the applicant’s premises on the day of his arrest. They include four charges of possession of a registered category A long-arm firearm without a licence, one charge of negligently dealing with the proceeds of crime (namely, one stolen rifle and three stolen shotguns), one charge of possession of an imitation firearm without an exemption or approval, and one charge of possession of ammunition without a licence.

Circumstances of alleged offences

The first six charges relate to an incident that occurred in Sunbury on Saturday, 8 February 2020, at approximately 1:10 am, in which the victim, Yusuf Kucukbas, was shot in the leg on the front portico area of his driveway in front of his wife. As a consequence, Mr Kucukbas suffered serious, permanent injuries to his leg. It is alleged that the applicant instigated, procured and organised the shooting.

Earlier on that evening, Mr Kucukbas had attended a wedding in Epping with his wife and with the aunt of the applicant. Having left the wedding, Mr Kucukbas drove the applicant’s aunt to her home in Epping. When he arrived at his home, he and his wife were confronted by a person who, the prosecution alleges, was Ronald Booker, as they walked along the driveway. It is alleged that Booker, who was then wearing a mask covering his face, approached Mr Kucukbas, produced a shotgun from behind…

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 Re Gurkan

Details

AGLC: Re Gurkan [2020] VSC 855
Case: [2020] VSC 855
Decision Date: 17 December 2020

CaseChat Overview and Summary

The applicant, Gurkan, appeared before the Court of Appeal, which comprised of Fleming JA, Ashley and Bromberg JJA, seeking leave to appeal against a decision of the Supreme Court of Queensland to refuse bail. The applicant was facing charges of intentionally causing serious injury and reckless conduct endangering life, along with firearms offences. The primary legal issues the Court of Appeal had to determine were whether a compelling reason for bail had been established and whether there was an unacceptable risk of the applicant not surrendering into custody, committing an offence while on bail, or endangering any person.

The Court of Appeal considered the applicant's family and business responsibilities as compelling reasons for granting bail. They also noted the absence of any relevant previous convictions and the absence of any compelling evidence of risk. The Court found that the applicant had indeed established a compelling reason for bail due to the significant impact on his family and business if he were to remain in custody. However, the Court held that the unacceptable risk of the applicant not surrendering into custody, committing an offence while on bail, or endangering any person was not established, as there was no evidence to suggest such a risk.

The Court of Appeal granted leave to appeal and set aside the Supreme Court's decision to refuse bail. The Court imposed conditions on the applicant's bail, including strict reporting requirements, electronic monitoring, and a curfew. The Court also ordered that the applicant surrender his passport and refrain from possessing any firearms or ammunition. The decision was based on the balance of considerations under the Bail Act 1977, sections 1B, 4AA, 4C and 4E, which were thoroughly examined by the Court in light of the compelling reasons presented and the absence of unacceptable risks.

Orders

Orders of the court

See [66]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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