Re Gurkan
[2020] VSC 855
•17 December 2020
| 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 his back, and discharged the firearm into Kucukbas’s right leg from a distance of approximately one metre. Booker then dropped the firearm and ran back to his vehicle. Mr Kucukbas’s son, who was alerted to the incident, chased Booker and tackled him. In the ensuing struggle, Booker’s mask came off. Ultimately, Booker managed to extricate himself from the ensuing struggle, and he escaped from the scene in a vehicle driven by an accomplice, Lee Haitsma.
Both Booker and Haitsma have been forensically linked to the offence. DNA testing has linked Booker to the mask, to the shotgun, and to a blood swab taken from the roadway. Haitsma was positively identified from a DNA profile located on three separate parts of the shotgun. In a record of interview conducted with her, she admitted to being present at the time of the offence. In a statement that she subsequently provided to the police on 3 October 2020, Haitsma admitted driving Booker to the scene of the shooting.
The applicant has been linked to the events primarily through his use of two mobile telephone numbers, one of which ended with the numerals 121, and the other with the numerals 774, and by the evidence of Haitsma.
When the applicant was arrested on 3 August 2020, he was found in possession of an Apple iPhone, which contained the sim card for the service 774. That telephone number was registered in the name of the applicant’s then girlfriend, Crystal Ditonto. During the period between 18 June 2020 and the arrest of the applicant on 3 August 2020, that telephone number was subject to a lawful telephone intercept monitored by Victoria Police. During that period, it was used exclusively by the applicant.
The telephone number ending with the numerals 121 had been registered in the name of another person. That person in fact had not registered the telephone number. In the period leading up to the shooting, the 121 number was primarily used to contact Haitsma. The prosecution has linked the number with the applicant in a number of different ways. First, during the relevant period, the telephone number was regularly in the same geographical area as the telephone number of 774. Secondly, an analysis of call charge records for the services ending 121 and 774 between 29 January and 13 February 2020 revealed 18 contacts of the applicant were called by both telephone numbers, including the applicant’s stepmother, his partner, and Haitsma. In addition, police have obtained a number of statements from persons who were contacted by the 121 service around the time of the offence. All of those persons have stated that they had a pre-existing relationship with the applicant and they each had reason to contact him during that period. In particular, his ex-partner stated that she was in contact with the applicant on the 121 service in the two days preceding the offence.
Thirdly, during May 2020, and again in July 2020, the mobile service ending 774 was used in the same handset service (with the unique IMEI number ending 8334) that was used by the number ending 121. On execution of the search warrant at the applicant’s residence on 3 August 2020, the handset that was used in the lead-up to the shooting using the number 121, was located concealed in a printer in the applicant’s residence.
In the period of two days preceding the offending, Haitsma was in regular contact with the telephone service ending 121, in particular, during the hours leading up to and immediately preceding the shooting. It is not necessary, for the purposes of this application, to summarise those contacts in detail. On 6 February at 11:00 am, the applicant informed Haitsma that he was coming up to Echuca and they discussed whether he could bring ‘tomatoes’, which, police allege, is code for a drug of dependence. The applicant’s mobile service ending 774 travelled to Echuca at the same time as the service ending 121. It remained there for at least five hours. On the following day (7 February), at approximately 12:30 pm, both mobile services, ending 774 and 121, were mapping off the same tower in Broadmeadows East. At 2:05 pm, Haitsma contacted the 121 service via an SMS and said, ‘I spoke to the first guy I introduced you to and he is keen as to do.’ A discussion then followed as to the terms of the deal, and in the ensuing exchange of text messages, the applicant informed Haitsma that she and the other person would be paid $5,000 each and a ‘box of tomatoes’. It is alleged that at that point Booker was recruited to undertake the shooting.
During the period from 6:20 pm on 7 February, there were regular contacts between Haitsma and the 121 service, in which they reported to each other as to their movements. In particular, there was a series of telephone contacts between the 121 service and Haitsma between approximately 11:45 pm and 11:52 pm when both telephones were in the Sunbury area. It is alleged that at that time, the applicant met with Haitsma and Booker and provided them with a shotgun and instructions to carry out the shooting.
At 12:45 am, Booker and Haitsma were identified on CCTV footage at the intersection of Station Street and Evans Street, Sunbury in a silver Mitsubishi Outlander vehicle that had been lent to Haitsma by a witness, Michael Connelly. The vehicle was then captured on CCTV footage entering Belleview Drive, where it drove to the address of the victim and waited. While they were waiting there, Haitsma sent text messages to the 121 service seeking to ascertain the whereabouts of the victim. At 1:09 am, the applicant contacted his stepmother who was at the same wedding as the victim. After a 50 second telephone conversation with her, he then sent a text to Haitsma on the 121 service, which in stated that the victim must have stopped somewhere and was not home yet. One minute later, the victim arrived at the home address, and the shooting then took place.
On the following day, 9 February, at 2:13 am, Haitsma sent a text message to the service 774 stating, ‘U need to sort us out hun ny [sic] m8 is becoming impatient.’ Later on the same day, at 3:50 pm, Haitsma sent a text message to Booker’s service stating, ‘We have been paid hun come and see me.’
As mentioned, on 3 October 2020, Haitsma provided a signed statement to the police and gave an undertaking to give evidence on behalf of the prosecution. In that statement, she said that the applicant had approached her in January 2020 and asked her whether she knew anyone who could help her with some jobs. Subsequently, Haitsma introduced the applicant to Booker. A few days later, the applicant contacted Haitsma and told her that he needed a job to be done, for which she and Booker would be paid $5,000 in cash and an ounce of methylamphetamine. On the same day, at 11.00 pm, she and Booker drove to Sunbury where they met the applicant near a park. He handed them a gym bag which contained a shotgun, and instructed Booker to shoot the victim in the leg. Haitsma stated that in the days following the shooting, Booker began pressing Haitsma to be paid. Accordingly, she met with the applicant, and he paid her $5,000. The applicant told Haitsma that he had wanted the victim to be shot, as the victim was soon going to leave the country with money which the applicant had needed. The applicant wanted the victim to be injured so that he could not travel on an aircraft.
The applicant’s arrest
As mentioned, the applicant was arrested at premises in which he was then residing in Beveridge on 3 August 2020. A search warrant was executed at that residence. As a result, a number of items were located, including a stolen bolt-action .22 rifle, a stolen double-barrel 4.10 over/under shotgun, two stolen double-barrel 12 gauge over/under sawn-off shotguns, an imitation handgun, five spent rounds of cartridge ammunition, live ammunition for a handgun which has not been located, and a box of assorted live ammunition. The double-barrel 4.10 shotgun was loaded. It was located in the lounge room in a television cabinet that was easily accessible to any person in the house.
On the date of his arrest, the applicant was refused bail at a filing hearing in the Melbourne Magistrates’ Court and he was remanded in custody. A further application for bail was refused on 14 September 2020. At a Committal Mention hearing on 26 October, the committal hearing of the charges against the applicant, and his two co-accused, was listed for 3 and 4 March 2021.
Previous convictions
The applicant has previous convictions which primarily relate to driving and road traffic offences.
On 2 July 2014, the applicant was convicted by the Melbourne Magistrates’ Court on offences that included using a prohibited weapon without exemption or approval, and failing to answer bail.
At the time of the offending, he was on bail, and was due to appear next at Broadmeadows Magistrates’ Court on 4 September 2020, on charges that related to exceeding the prescribed concentration of alcohol, and breach of an interlock condition.
Applicant’s background
The applicant is 32 years of age. His mother abandoned him shortly after his birth, leaving him in the care of his father. His father re-partnered, and the applicant has three half-brothers and one half-sister. Another half-sister is deceased.
The applicant was raised in Melbourne. After leaving school, he worked with his father in the fruit-picking industry. In 2000, his father established his own business which hired labour to the fruit-picking, pruning and packing industry. In 2009, a half-sister of the applicant died as a result of a fatal motor vehicle accident. That tragedy took a significant emotional toll on the applicant’s family and on himself. His father suffered a breakdown, and as a result, the applicant took over the business. In more recent years, the applicant’s father has returned to Turkey to live. During the last year, the business suffered financially as a result of border closures due to the COVID-19 pandemic. As a result, the applicant took on temporary work with his cousin as a bricklayer.
The applicant has one son who is now aged 12 years, from a previous relationship, and a stepson, by his present partner, Crystal Ditonto, who is 10 years of age. The applicant’s sister, Hafize Bilgen, gave evidence concerning the role that the applicant plays in his family. Her evidence, which I accept, is that the applicant provides important financial support to his father who is in Turkey, to his stepmother, and to some step-siblings. Since the applicant’s arrest, Ms Bilgen, together with Ms Ditonto, have attempted to continue to conduct the family business. However, they have had significant difficulty doing so, because of the effect of the current pandemic, and because the applicant has played a critical role in it. Ms Bilgen also explained that before the applicant’s arrest, Ms Ditonto and the applicant had been participating in the IVF program with a view to having a child of their own. However, since his arrest, Ms Ditonto has been unable to continue to attend to the program, it would seem because she does not have herself the financial resources to do so.
After the death of his sister, the applicant resorted to the excessive consumption of alcohol in order to cope with the emotional stress that he suffered. In 2019, he commenced psychological treatment with Ms Michelle Scibberas, a psychologist. He underwent three sessions of treatment directed to managing his feelings of stress, anxiety and anger, and to his abuse of alcohol. Ms Scibberas has provided a report that the applicant has demonstrated a sound capacity for insight and reflection into his conduct. She is of the view that if he is remanded for an extended period of time, it might have a significant impact on his psychological and emotional wellbeing.
The applicant has also relied on two reports from Mr Mathew Staios, a clinical neuropsychologist. Mr Staios first examined him on 24 August last. He expressed the opinion that an extended term of incarceration might lead to a decline in the applicant’s mental state. However, at the time of that examination, the applicant was not then experiencing any symptoms of poor adjustment or psychiatric symptomology. Mr Staios again examined the applicant on 3 December. In his second report, he stated that since the previous assessment, the applicant had experienced a decline in his mental state, and he met the criteria for an adjustment disorder (with mixed depressive and anxious symptoms). Mr Staios considered that the applicant’s condition is likely to further deteriorate if he were to remain in custody, because of his concern for his business, and his incapacity to support his family, while he remains in custody.
The bail provisions
Section 1B of the Bail Act 1977 (the ‘Act’) sets out the guiding principles of the legislation, which include maximising community safety, and taking into account the presumption of innocence and the right to liberty. Section 4 of the Act provides that a person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the decision-maker is required to refuse bail by the Act.
It is common ground that, as the applicant is charged with a schedule 2 offence, namely committing an indictable offence (intentionally causing serious injury) in which a weapon has been used, pursuant to s 4AA(3), the Court must refuse bail unless it is satisfied that a ‘compelling reason’ exists that justifies the grant of bail. The applicant bears the burden of satisfying the Court as to the existence of such a compelling reason.
Pursuant to s 4C(3), in considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’ as specified in s 3AAA of the Act.
The existence of a compelling reason may be established by a combination of a number of circumstances.[1] The content of the phrase ‘compelling reason’ was discussed by the Court of Appeal in the recent decision in Rodgers v The Queen[2] in the following terms:
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’. [3]
[1]Re Ceylan [2018] VSC 361, [46] (Beach JA); Re Alsulayhim [2018] VSC 570, [29] (Beach JA).
[2][2019] VSCA 214 (‘Rodgers’).
[3]Ibid [43] (Beach, Kaye and Ashley JJA) (citations omitted). See also Re Ceylan [2018] VSC 361, [46]–[47] (Beach JA).
Sections 4D and 4E provide that if the Court is satisfied of the existence of a compelling reason, the prosecutor bears the burden of establishing the existence of an unacceptable risk as defined in s 4E(1) of the Act.
Section 4E(3) requires that the Court take into account the ‘surrounding circumstances’ in considering whether there is an unacceptable risk. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
In the present case, the prosecutor contends that the applicant’s circumstances do not provide a compelling reason that justifies the grant of bail. Further, it is submitted that the applicant is an unacceptable risk in four respects, namely:
·endangering the safety and welfare of the public;
·endangering the safety and welfare of the victim;
·committing an offence while on bail; and
·failing to surrender into custody.
Submissions
Mr R Richter QC, who appeared for the applicant, relied on a number of circumstances which, he submitted, in combination, constitute a compelling reason for the grant of bail.
First, Mr Richter addressed the issue of the nature and strength of the prosecution case. He did not submit that the case against his client was weak. Rather, he submitted that while, on the evidence so far available, the charges against his client are triable, nevertheless, they are defensible. In support of that submission, he relied on a number of points which emerged from his cross-examination of the informant, Detective Senior Constable Jason Thompson. In particular, there is no evidence of any motive that the applicant might have to have directed or organised the shooting of Mr Kucukbas. The account given by Haitsma in her statement is inconsistent with a number of matters that she said in her record of interview. Haitsma’s account is also inconsistent with the account given by Booker. Mr Richter also submitted that there are some difficulties that confront the prosecution case which is based on the applicant’s alleged involvement in the shooting pursuant to s 323 of the Crimes Act 1958. In respect of charges 7 to 13, Mr Richter noted that there is no DNA or other forensic evidence connecting the applicant with possession or use of the weapons and ammunition that were located at his premises. At the time of his arrest, he had only been living there for a short time. Other persons were living in, or had access to, the premises. Based on those matters, Mr Richter submitted that the charges against his client are defensible.
Mr Richter then outlined a number of circumstances, which, he submitted, collectively constitute a compelling reason for the release of the applicant on bail. In summary, they were as follows:
(1)The applicant has only limited previous convictions. They are principally for road traffic offences. Detective Senior Constable Thompson confirmed that the conviction, in July 2014, for using a prohibited weapon, was based on the finding by the police of a taser in the applicant’s vehicle. There was no evidence that he had used it.
(2)The applicant has a good history of complying with bail conditions imposed on him. His conviction for failing to answer bail, in July 2014, occurred because at the relevant time he was in Turkey, visiting his father, and he had overlooked that he was required to attend court. When contacted by Victoria Police, the applicant immediately returned to Victoria, and he was released on police bail.
(3)The applicant has a strong history of working in gainful employment. He has borne significant responsibility in continuing the business which his father established. At its peak, the business has engaged between 150 and 400 subcontractors on a hiring basis.
(4)The applicant’s business and family are dependent on him. If the applicant were to remain in custody, it would be very difficult to re-establish the business successfully, which is important in view of the present relaxation of restrictions that have been imposed in response to the COVID-19 pandemic. The applicant is deeply conscious that both his business and his family have struggled in the absence of his support.
(5)It is anticipated that, at the earliest, the trial of the charges against the applicant will not proceed before August 2022, and it is quite possible that they may not be held until the latter part of 2023. Mr Richter conceded that, if the applicant were convicted, the sentence imposed on him would exceed that constituted by such a remand period. Nevertheless, the delay of the trial, while the applicant is held in custody, is, he submitted, a significant factor supporting the establishment of a compelling reason.
(6)Mr Richter pointed out that the two co-accused were arrested in February 2020, six months before the applicant was arrested. During that time the applicant did not flee the jurisdiction, he did not seek to make any contact with the co-accused, and he did not seek to contact or intimidate Mr Kucukbas. In those circumstances, it was submitted that if the applicant were granted bail, there would not be an unacceptable risk that he would fail to answer his bail, interfere with witnesses, or endanger public safety. Mr Richter further noted that, in the course of giving evidence, Ms Bilgen gave an undertaking that if the applicant were released on bail on conditions, she would immediately report to police if he were to breach any of the applicable conditions imposed on the applicant.
(7)Based on the reports of Mr Staios, Mr Richter noted that the continued incarceration of the applicant was causing him to suffer from significant anxiety issues. Medical records by the Tristar Medical Group Eaglehawk, that were exhibited in the application, reveal that in 2014 the applicant had experienced a degree of cardiac damage. It was submitted that the ongoing incarceration of the applicant and his increasing anxiety, might exacerbate his health issues.
Mr Richter relied, essentially, on the same matters in support of his submission that the respondent had not established the existence of an unacceptable risk that the applicant, if released on bail, would fail to surrender into custody, commit an offence while on bail, or endanger the safety and welfare of the victim and the public. In particular, Mr Richter relied on the circumstance that the applicant, with one minor exception, had previously complied with all bail conditions imposed on him. He had strong family ties in Victoria. If the applicant had been minded to flee the jurisdiction, interfere with witnesses, or endanger the victim, he would have had sufficient opportunity to do so between the date of the arrest of the co-accused in February 2020 and his own arrest six months later.
In response, Mr L Harrison, who appeared on behalf of the respondent, commenced by submitting that the prosecution case, on each of the charges, is strong. In respect of the first six charges, he submitted that there is cogent evidence which connects the applicant as the user of the 121 telephone service in the period leading to, and at the time of, the offence. Mr Harrison noted that in the period of three hours leading to the offences, the applicant made telephone calls to his stepmother which were followed, in sequence, with contacts by him with Haitsma. Further, the location and movements of the 121 telephone service were consistent with, and supported, the account given by Haitsma in the statement that she made to police.
Mr Harrison noted that DNA testing has not been completed in respect of the items that are the subject of charges 7 to 13. However, each of those items, except for the loaded shotgun (which was found in the lounge room) were located in the study, in which the applicant kept documents and other personal possessions.
Mr Harrison accepted that the trial of the proceeding will, at the earliest, not be heard until August 2022, if not later. He submitted that, in those circumstances, the likely period of remand will not exceed the length of any sentence which would be imposed on the applicant if he was convicted.
In submitting that the applicant had failed to establish a compelling reason for the grant of bail, Mr Harrison relied principally on the nature and circumstances of the subject of the charges against the applicant. He submitted that the offending, the subject of the first six charges, was of a particularly serious nature. The prosecution will contend that the applicant instigated, organised and planned the offending, and, in doing so, he took care to ensure that he would not be connected with it. In those circumstances, it was submitted that the charges against the applicant concerned a particularly serious instance of the offences that are charged.
In support of the submission that, if the applicant were released on bail, he would constitute an unacceptable risk, Mr Harrison relied substantially on the same factors. He again emphasised the seriousness of the charges against the applicant. He noted that the applicant has family ties in Turkey, and that he has travelled to and from that country in recent years. In addition, his labour hire business has a number of contacts interstate, so that, if the applicant were minded to flee, he could find refuge in accommodation at distant localities such as farms. In respect of the risk of the applicant offending, Mr Harrison noted that, at the time of his arrest, the applicant had access to firearms. Mr Harrison further submitted that the fact that the applicant had not left the jurisdiction, or sought to intimidate the victim or his co-accused, between February and August 2020, does not demonstrate that he would not be minded to do so should he be released on bail. When the co-accused were arrested, the applicant had cause to consider that, if he desisted from any further contact with them, and remained in the jurisdiction, it would be unlikely that he would be implicated in the offending, since he had taken steps to ensure that he had remained at arm’s length from it. Finally, Mr Harrison referred to evidence given by Detective Senior Constable Thompson that if the applicant were released on bail, the victim, and his family, would be particularly apprehensive about their own safety.
Analysis and conclusion
As mentioned, s 4C(3) of the Act provides that, in considering whether a compelling reason exists for the grant of bail, the Court must take into account the ‘surrounding circumstances’ that are specified in s 3AAA of the Act. It is convenient to analyse the competing submissions, as to whether a compelling reason has been made out, by reference to the matters listed in that provision.
The starting point is that the offending that is alleged, particularly in charges 1 to 6, was by its nature serious. The maximum sentence for the offence alleged in charge 1 (intentionally causing serious injury) is 20 years’ imprisonment. On the prosecution case, it involved the pre-planned, deliberate shooting of the victim, Mr Kucukbas, in the leg with a shotgun. Mr Kucukbas was then near the front doorstep of his own home and he was defenceless. He was shot in front of his wife. The alleged intention of the applicant was to maim Mr Kucukbas by inflicting particularly serious injury on him. On the prosecution case, the applicant played a major role in the offending. He instigated, planned and organised the offending, and procured the co-offenders to commit it. The prosecution alleges that it was the applicant who supplied the weapon with which the offending was perpetrated. In those circumstances, those offences, and particularly the offence alleged in charge 1, are a serious example of the offence.
Any assessment of the strength, or otherwise, of the prosecution case at this point must be somewhat superficial. Such an assessment would necessarily be based on ‘the papers’, and would be made without the benefit of cross-examination of witnesses which may be undertaken at the forthcoming committal hearing. As I have noted, it was, in a sense, common ground in the course of submissions that the prosecution case is, at least, triable, but that at the same time it is not overwhelmingly strong. As Mr Richter submitted, the charges are ‘defensible’.
The prosecution case, in respect of the first six charges, would be based substantially on evidence connecting the applicant with the telephone service 121, and on the evidence of the co-offender, Haitsma. I would expect that if the jury were satisfied that the applicant was the person who used the 121 service, the evidence of the movements of that telephone number, and its contacts with Haitsma, might be a sufficient basis upon which to convict the applicant of the charges relating to the incident that occurred on 8 February. Further, that evidence would corroborate and support the testimony of Haitsma. On the other hand, in the absence of the telephone evidence, the evidence of Haitsma, standing alone, would not be a firm foundation for the prosecution case. Her evidence would be subject to a direction by the judge, as ‘unreliable evidence’, pursuant to s 32 of the Jury Directions Act 2015. In addition, I apprehend that it might be susceptible to attack in cross-examination on a number of bases.
I have already summarised the nature of the evidence on which the prosecution relies to identify the applicant as the person who used the telephone service 121 in the period leading up to, and immediately preceding, the incident in which Mr Kucukbas was shot in the leg on 8 February outside his home. On the face of it, that evidence is quite strong. The applicant denies that he was the person who used that service. In support of his defence, he relies on a statutory declaration which he made on 13 December 2019 in which he stated that since February 2019 he had had no control over his telephone. He said that he had been to Telstra in Melbourne City Bourke Street, and the technician advised him that he had been targeted by someone who had taken control of his phone. He concluded the statutory declaration by stating:
Pleased be advise [sic] that both my iphones on 0416506774 number I am not accountable for any criminal acts or against anyone.
On its face, that statutory declaration does not provide significant support to the applicant’s case. In his report, the informant Detective Senior Constable Thompson, recorded that he had spoken to the manager of the Telstra office in Bourke Street, Melbourne who had informed him that if the applicant had attended the store, he would not have been given the advice described in the statutory declaration. Further, as noted, the evidence reveals that in the period in question, the applicant used the telephone service 774, as well as the telephone service ending 121, to contact family and acquaintances, including his stepmother and his partner.
In defence of charges 7 to 13, the applicant’s solicitor has deposed that the applicant and two of his cousins commenced to occupy the property at Beveridge on 25 July 2020, some nine days before his arrest. According to the affidavit, exclusive possession was not provided to the applicant during the course of the lease, as the lessor wished to continue to use the property for his hobbies and for it to be ‘accessed 24/7’. In response, Mr Harrison noted that each of the firearms, with the exception of the loaded shotgun, were situated in the study of the premises, which is next to the applicant’s bedroom. The bedrooms of the other two occupants were at the other end of the house. The study contained a number of items which belonged to the applicant, including personal documents, letters, business documents, and a West Ivanhoe Junior Football Club bag. There is evidence that connects the applicant with that football club. The bag contained .410 calibre ammunition which was suitable for the shotgun that was located in the lounge room. The telephone with the IEMI number ending 8334, that was linked to the 121 number, was also located in the study concealed in a printer.
As I have noted, at this stage, any assessment of the strength or otherwise of the prosecution case is essentially preliminary, and based on the documentation that has so far been provided. Bearing that caveat in mind, nevertheless, it may be fairly concluded that the prosecution case, against the applicant, in respect of each of the charges, appears to be quite strong.
Each of the factors that I have so far discussed — the seriousness of the offending and the strength of the prosecution case — weigh against a conclusion that a compelling reason for the grant of bail has been established. On the other hand, there are a number of the other relevant factors that, in combination, militate in favour of such a conclusion.
The applicant does not have a relevant criminal history. Based on the evidence of Detective Senior Constable Thompson, the applicant’s previous conviction for using a prohibited weapon is of little moment. The applicant did breach one previous grant of bail, but his non-compliance was due to an oversight rather than deliberate evasion of his obligations. At the time of the offending, he was on bail, but in relation to a charge of exceeding the prescribed blood alcohol limit.
The applicant’s personal circumstances are of significant weight. Before his arrest, the applicant had been responsible for providing important financial assistance and support to other members of his family, including to his stepmother, sister and father. I note, from the financial statements of the applicant’s business, that were produced in evidence, that although that business had sustained a net loss for the financial year ending 30 June 2019, it did make a substantial gross profit. Since leaving school, the applicant has been engaged in the business, and more recently as a bricklayer, on a regular basis.
It would seem, from the evidence of Ms Bilgen, that the viability of the business is very much dependent on the personal involvement in it by the applicant. The business, which hires labour to the farming sector, has been adversely affected by the restrictions that were imposed on businesses during the recent pandemic. At the present time, with the easing of those restrictions, the business could revive and return to profit, if the applicant were available to conduct it. In those circumstances, I accept that the continued incarceration of the applicant, on remand, would adversely affect the future viability of the business, and as such would jeopardise the capability of the applicant to provide financial support to members of his family.
The applicant has some vulnerability in terms of his physical and psychological health. The evidence records of his general practitioner dated March 2014 note that he had sustained some cardiac damage. In his most recent report, Mr Staios stated that the applicant has suffered a degree of psychological distress, both as a result of his incarceration, and because of his anxiety concerning the issues that confront his family over which he has no control while he is in custody. Mr Staios considers that his psychological state is likely to deteriorate if he remains in custody.
The probable delay until the trial of the charges is a matter of substantial weight. It would seem that the earliest date, on which the trial might be held, is in the latter part of 2022, and it is possible that the trial might not proceed until the latter part of 2023. As Mr Richter correctly accepted, if the applicant were convicted, the likely sentence that would be imposed on him would be substantially longer than that period of delay. On the other hand, if the applicant were acquitted, he would, by then, have spent up to almost three years on remand awaiting trial.
Section 3AAA(j) provides that one of the circumstances, to be taken into account, is the known or likely view of the alleged victim of the offending concerning the grant of bail. Detective Senior Constable Thompson gave evidence that, since the applicant’s arrest, Mr Kucukbas and his family have been particularly fearful for their safety if the applicant were to be granted bail. Their concern, in that respect, is understandable, given the frightening circumstances in which Mr Kucukbas was shot.
As the foregoing analysis of the relevant circumstances reveals, the determination of the question, whether the applicant has established a ‘compelling reason’, is not straightforward.
On the one hand, the offending alleged against the applicant was particularly serious, and the prosecution case against the applicant, on both sets of charges, is quite strong. They are each considerations of some moment.
On the other hand, there are a number of factors, which, in combination, weigh in favour of the grant of bail. The principal factor is the issue of delay to which I have just referred. In addition, the applicant has no relevant previous offences, nor (with one minor blemish) does he have an adverse history in relation to adhering to bail conditions. He has a history of regular employment, a strong family relationship, and a home that is available to him. His family, and his business, are dependent on him. His ongoing detention in jail is likely to exacerbate his underlying anxiety and adversely affect his mental health. While the incidence of the coronavirus pandemic in the community has subsided, nevertheless, the steps that have been taken by the authorities to protect prisoners from it, and to prevent an outbreak of the virus in our prison system, have involved and will, I expect, continue to involve, regimes which are quite harsh for those in custody.
Taking into account the combination of those factors, and notwithstanding the seriousness of the alleged offending and the strength of the prosecution case, on balance, I am persuaded that the applicant has established a compelling reason for his release on bail, in the sense that that reason is one which is ‘forceful and therefore convincing’ as discussed in Rodgers.
The question, then, is whether the respondent has established the existence of an unacceptable risk as defined in s 4E(1) of the Act.
The applicant has family in Turkey, and he has travelled there in recent years. In addition, as Mr Harrison pointed out, through his business, the applicant has a number of contacts in remote areas of Australia which could potentially constitute a refuge for him if he were to flee the jurisdiction. On the other hand, the applicant does have strong connections in Victoria, including his family and his business. I would expect that the imposition of conditions, including daily reporting, a curfew, and a requirement that the applicant, during curfew hours, attend at the front door of the premises at which he is residing upon demand by police, would be sufficient to alleviate that risk, so as not to constitute an unacceptable risk.
The other principal risk is that of endangering the safety and welfare of the victim, and thus of committing a further offence while on bail. It is unlikely that Mr Kucukbas will provide any relevant evidence implicating the applicant in the offences. The motive, for the applicant to be involved in the offending, is not clear. While Haitsma has stated that the applicant wished to have Mr Kucukbas wounded so that he could not leave the jurisdiction before he repaid a debt to the applicant, there is no evidence as to the existence of the debt, or of any demand by the applicant for repayment of the debt. The version given by Booker to the police, of the suggested motive, is quite different to, and inconsistent with, that given by Haitsma.
Each of those matters are relevant to an assessment of the risk to the victim should the applicant be released on bail. However, the applicant has no significant previous criminal history. The imposition of bail conditions, imposing a curfew, precluding the applicant from entering the locality in which the victim resides, and prohibiting the applicant from possessing or having access to firearms, while of themselves not a guarantee against that risk, would weigh against a conclusion that that risk is unacceptable.
The applicant’s cousin, Sevil Celik, is prepared to provide a surety in the amount of $100,000 and an undertaking pursuant to s 5 of the Act. I also note that the applicant’s sister, Hafize Bilgen, has already provided an undertaking to the Court that if the applicant were released on bail, and if she became aware that he had breached any of the conditions of his bail, she would immediately report the breach to the informant. Those two undertakings do provide a further measure of assurance in respect of the risks which I have discussed
On balance, taking those matters into account, I am not persuaded that, if the applicant were released on bail subject to the conditions that I shall specify, he would constitute an unacceptable risk of offending, of failing to surrender into custody, or of endangering the safety of the victim or other members of the community.
Conclusion
For the foregoing reasons, I propose to grant bail to the applicant on his own undertaking, and subject to an undertaking being provided by the surety Sevil Celik in the sum of $100,000, and based on the undertaking given in the course of her evidence by Ms Hafize Bilgen. The grant of bail will be subject to the following special conditions:
1.The applicant must appear at the Melbourne Magistrates’ Court on 3 March 2021 at a time to be advised and must not depart without the leave of the court.
2.The applicant must reside at [redacted].
3.The applicant must not change his residential address without first obtaining leave of a court.
4.The applicant must not leave his residence between the hours of 8:00 pm and 7:00 am (‘curfew hours’).
5.The applicant must present himself at the front door of the residence at any time during curfew hours if and when called to do so by a member of Victoria Police.
6.The applicant must report to Craigieburn police station each day between the hours of 7:00 am and 8:00 pm.
7.The applicant must not contact or approach any witnesses for the prosecution except for the informant.
8.The applicant must not contact or approach the co-accused Ronald Booker and Lee Haitsma.
9.The applicant must remain outside a radius of 10 kilometres from the address of Yusuf Kucukbas at [redacted].
10.The applicant must surrender any valid passport in his possession to the informant within 24 hours of release and not apply for any other passport.
11.The applicant must not attend any points of international departure from Australia.
12.The applicant must not leave the state of Victoria without first obtaining leave of a court.
13.The applicant must only use one mobile telephone number, and the details of such telephone number must be advised in writing to the informant.
14.The applicant must not own or possess any firearm or ammunition.
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