Re Oksuz
[2017] VSC 588
•28 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0194
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by INAN OKSUZ |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25–26 September 2017 |
DATE OF JUDGMENT: | 28 September 2017 |
CASE MAY BE CITED AS: | Re Oksuz |
MEDIUM NEUTRAL CITATION: | [2017] VSC 588 |
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CRIMINAL LAW – Bail – Threat to kill, threat to commit sexual offence, using controlled weapon without lawful excuse, recklessly cause injury, intentionally cause injury, common law assault, false imprisonment – Show cause situation – Whether unacceptable risk – Unacceptable risk – Cause not shown – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Tovey | Grigor Lawyers |
HIS HONOUR:
The applicant is currently facing charges of making a threat to kill, threatening to commit a sexual offence, using a controlled weapon without lawful excuse, recklessly causing injury, intentionally causing injury, common law assault and false imprisonment. The charges all arise out of events alleged to have occurred in the early hours of Sunday 11 June 2017.
The applicant was arrested on, and has been in custody since, 11 June 2017. On 1 September 2017, the applicant filed an application for bail in this Court. The applicant has previously been refused bail in respect of the present charges, in the Magistrates’ Court, on 14 June 2017.
Having been charged with an indictable offence, involving the use of an offensive weapon, the applicant accepts that, by reason of the operation of s 4(4)(c) of the Bail Act 1977 (‘the Act’), he is in a ‘show cause situation’. That is, in this case, the Court must refuse bail unless the applicant ‘shows cause why his detention in custody is not justified’.
The alleged offending
The alleged offending involves one complainant. At the time of the alleged offending, the complainant had been in an intimate relationship with the applicant for approximately 17 months. Both parties maintained separate addresses. The complainant has two daughters, aged 15 and 21, from a previous relationship.
In summary, the Crown case is as follows. On 11 June 2017, the applicant and the complainant returned to the applicant’s home after having had dinner in a restaurant. There had been an ongoing verbal argument during dinner. On returning to the applicant’s home, the argument continued.
The argument became violent. It is alleged that the applicant struck the complainant multiple times to the head and face. The applicant used both his palm and clenched fist to continually hit the complainant to the head and face. The applicant also put his hands around the complainant’s neck and squeezed. The complainant describes finding it harder to breath, and not being able to take a breath.
At one point, the applicant pushed the complainant into a wall, causing the plaster wall to break and the complainant to land on the floor. At another point, after saying ‘I’m going to get a knife and kill you’, the applicant went to the kitchen and armed himself with a kitchen knife. The complainant closed the bedroom door and put her weight against the door. The applicant returned and pushed the door open. The Crown case is that the applicant held the knife to the complainant’s stomach. In her statement, the complainant describes the applicant winding his hand back before ‘bringing the knife back to [her] body’. The complainant lost control of her bladder. The applicant then put the knife down and said he was going to call the complainant’s daughters to come over to his house and that he would rape them.
During the course of the alleged offending, the complainant attempted to leave the applicant’s residence, but the front door was locked. The Crown case is that the applicant let the complainant outside where the pair continued to argue. The applicant then grabbed the complainant and dragged her back inside. They went back to the bedroom. The complainant told the applicant that she wanted to go home, but the applicant would not let her leave.
Subsequently, the applicant fell asleep. The complainant left the bedroom. The complainant waited several hours and then called a taxi. The taxi arrived. The complainant went to the door but it was locked. After being asked where the keys were, the applicant got out of bed and let the complainant out of the premises.
The taxi driver drove the complainant to the Broadmeadows police station. The complainant was observed to have severe bruising and swelling to her face, a swollen nose, blood shot and bruised eyes, grazes above her eyebrows and bruising to both her hands. The complainant also complained of back pain. An ambulance was called and the complainant was taken to the Northern Hospital with a broken nose and for further assessment. The complainant was admitted to hospital and remained there for three days.
The applicant was subsequently arrested and interviewed. The applicant denied, and continues to deny all of the charges. While denying all allegations of assault, the applicant said that he may have accidentally elbowed the complainant in the mouth when he was trying to get away from her. In his interview, the applicant said that he would never assault a woman and that if he had wanted to hit her then she would have been a lot worse.
The applicant’s background
The applicant is 45 years of age. He has no prior criminal history in the state of Victoria. He does, however, have interstate convictions from two court appearances in 2007 and 2008 involving two counts of common assault, three counts of ‘knowingly contravene prohibition/restriction in order’[1] and one count of ‘contravene prohibition/restriction in order (domestic)’.
[1]See s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Following the alleged offending, intervention orders were taken out against the applicant, naming the complainant and her daughters as the affected family members.
The applicant’s contentions
In an affidavit sworn by the applicant’s solicitor in support of a grant of bail, the applicant’s solicitor submitted that the following matters are established by the evidence, and show cause why the applicant should be granted bail:
(a) the applicant’s limited prior criminal history;
(b) the applicant has not previously been subject to an intervention order;
(c) the applicant has never previously breached bail;
(d) the trial is likely to be in late 2018 or early 2019, meaning that the delay between the applicant’s arrest and the likely commencement of a trial could result in the applicant (if not granted bail) spending more than 500 days in custody;
(e) the weakness of the Crown case — it being asserted that ‘at this stage there appears to be little evidence to corroborate the complainant’s account’;
(f) the applicant is amenable to strict reporting conditions;
(g) the applicant has significant ties to the jurisdiction;
(h) any suggested risk of flight is countered by the availability of a substantial surety and the surrendering of the applicant’s passport;
(i) the applicant is amenable to bail conditions requiring him not to contact directly or indirectly, any witnesses in the case;
(j) the intervention orders currently in place ‘alleviate the concern that the applicant may interfere with witnesses’;
(k) by virtue of the support available to the applicant, the risk of reoffending is reduced to a level where it is not unacceptable;
(l) the applicant does not have any prior convictions for breaching bail or intervention orders;
(m)the applicant has stable accommodation available to him upon release; and
(n) the applicant has immediate employment available to him upon release.
It may immediately be observed in respect of matters (h) and (l) above, that no surety (substantial or otherwise) was ultimately proffered by the applicant, and that the applicant has the prior convictions referred to above for beaching apprehended violence orders in NSW.
On the hearing of the bail application, counsel for the applicant observed that the applicant is a 44 year old[2] who has not previously been in custody, where he has now spent over three months. It was contended that this time in custody has been ‘a most salutary experience for a man of his age and limited prior history’.
[2]He is in fact 45 years old, having been born on 28 August 1972.
The applicant’s counsel submitted that there were 10 factors which, in combination, ‘demonstrate[d] cause in the current circumstances’ why the applicant’s continued detention in custody was not justified. Those factors were as follows:
1.Intervention order: the applicant has consented to the intervention orders without admissions. His consent to the intervention orders underlines his position of not being desirous of any further contact with the complainant in any fashion. The orders also provide strong motivation for the applicant to comply with bail conditions.
2.First time in custody: the applicant has now been in custody for more than three months. This has had a salutary impact on him. As a result of being in custody, the applicant lost his job and his private rental accommodation.
3.Lack of significant prior history: the applicant does not have a significant prior criminal history, indeed he has no prior history in Victoria. Apart from ‘never previously having received more than a fine, the applicant does not have a serious history of violence’. The New South Wales matters that appear to relate to breaching court orders are more than 10 years ago and were ‘sufficiently low level to attract a bond and a fine, and are therefore of limited weight in this application’.
4.No negative bail history: the lack of a negative bail history augurs well for any assessment of the applicant’s prospective compliance on any grant of bail in the present matter.
5.No attempts to contact or interfere with witnesses: while it is alleged that the applicant is an unacceptable risk of contacting the complainant or interfering with witnesses, it is highly relevant that no approaches of any kind (direct or indirect) are alleged since the applicant’s arrest. Moreover, it is of note that the applicant and the complainant lived apart and ‘shared no children or other entanglements such as property that might otherwise require the need for any contact between the pair’. Further, given that the brief of evidence is now complete and has been served, it is difficult to see what the applicant would stand to gain by approaching the complainant in any way.
6.Delay: while it is conceded that the delay in this case is not inordinate, if bail is not granted, the applicant is likely to be in custody for 18 months before the matter is dealt with. This, it is submitted, might end up being a significant portion (if not more) than any applicable non-parole period (should the applicant be convicted).
7.Employment: the applicant has employment available to him from Mr Nadir Coskun (who gave evidence on the bail hearing). Employment provides important stability for the applicant and increases his motivation to comply with bail conditions.
8.Stable environment: the applicant will have a place to live. This will put the applicant in a good position to use his time on bail productively and lawfully.
9.Real issues to be tried: while the applicant does not submit that the prosecution case should be regarded as weak, he equally does not concede the case to be strong. In essence, the case will be oath against oath. There are real issues to be tried in the case. The applicant accepts that the complainant’s version of events is partly corroborated by her presentation to police and doctors, but observes there are no independent witnesses to the events inside the home of the applicant.
10.Conditions make risk acceptable: the imposition of strict bail conditions can bring any risk in this matter within an acceptable level.
The respondent’s contentions
The respondent opposes bail, submitting that the applicant has not shown cause why his detention in custody is not justified. Moreover, the respondent contends that the applicant, if released on bail, would be an unacceptable risk of committing an offence while on bail, endangering the safety or welfare of members of the public, and interfering with witnesses or otherwise obstructing the course of justice.[3]
[3]See s 4(2)(d) of the Act.
So far as the issue of unacceptable risk is concerned, the focus of the respondent’s submissions was on the risk of the applicant committing further offences against the complainant. The respondent contended that the applicant is an unacceptable risk so far as the complainant is concerned ‘due to the excessive force used in the assault’. The respondent submitted that the risk is ‘heightened’ due to the applicant arming himself with a knife and threatening the complainant.
The evidence of Mr Coskun
Before turning to the analysis of this application, it is necessary to say something about the evidence of Mr Coskun. While the applicant ultimately relied upon 10 factors which were said (in combination) to show cause, earlier in the hearing of the application the applicant’s counsel identified 11 factors. The eleventh factor was the provision of a surety by Mr Coskun. On the first day of the bail application, it was foreshadowed that Mr Coskun would be called to give evidence about his willingness to provide a surety, employment for the applicant and accommodation.
On the second day of the bail application, Mr Coskun was called to give evidence. Mr Coksun gave evidence that he is self-employed. He described his occupation as ‘construction, bricklaying’. He gave evidence that he had enough work to be able to employ the applicant to assist him. He said he would employ the applicant 5 days a week at a rate of $200 per day.
Mr Coksun was not a particularly impressive witness. In evidence-in-chief, he was shown a letter signed by him in which he said that he had known the applicant for about eight years. He gave evidence that the contents of the letter were ‘true and correct’. Later, however, in answer to another question in evidence-in-chief, he said that he had only known the applicant for three years.
Mr Coskun’s letter also stated that, once released from custody, the applicant would be living in Mr Coskun’s rental home in Jacana ‘by himself’. On further questioning, however, it appeared that Mr Coskun’s rental property is currently occupied by another person who is paying $300 per week. Mr Coskun subsequently gave conflicting answers as to whether the person currently living in his rental property lives there pursuant to a lease. Initially he said there was a lease. Later in his evidence, he said that there was ‘no contract’.
In giving his evidence, Mr Coskun appeared to be more like an advocate for the applicant rather than someone who was concerned to give evidence as fully and frankly as possible. While Mr Coskun’s demeanour as a witness is not a matter capable itself of being relevant to the determination of the present application, to the extent that it was submitted that the support, supervision, or involvement of Mr Coskun might give the Court some comfort or assurance that the applicant might thereby be more likely to comply with bail conditions, that submission was robbed of some its force by the lack of any obviously impressive attributes in Mr Coskun, as displayed by his answers and demeanour in the witness box.
During the course of his evidence, Mr Coskun gave evidence that he initially agreed to provide a surety for the applicant. He said, however, that after talking to his wife, he was no longer able to provide a surety as his wife told him that if he provided a surety then their marriage would be over. Mr Coskun gave evidence that he still trusted the applicant and thought that the applicant would comply with bail conditions. The only reason he was not able to provide a surety was because his wife would not let him.
During the course of his cross-examination of Mr Coskun, counsel for the respondent asked a number of questions about the size of Jacana (the suburb in which Mr Coskun’s rental property is situated). It turned out that the purpose of this cross-examination was to establish that Mr Coskun’s rental property was inappropriately near to where the complainant is currently residing. After the cross-examination concluded, I asked what the purpose of cross-examination about the size of Jacana was. In response, I was told that, according to the informant, the complainant lived only three blocks from the address proposed for the applicant. On being advised of this fact, counsel for the applicant sought leave to file further material, subsequent to the conclusion of the hearing, with respect to a proposed address for the applicant. Leave was granted, and the applicant filed further material providing details of accommodation that a Mr Kenan Aydin was prepared to provide for the applicant.
In response to the material filed by the applicant in relation to the prospect of the applicant living with Mr Aydin, the respondent filed a response that set out details of Mr Aydin’s prior convictions. Mr Aydin’s prior convictions arise out of three court appearances and involve breaching an intervention order (five counts), criminal damage (two counts), recklessly causing injury (two counts), unlawful assault, failing to comply with a community based order and failing to answer bail (three counts). Unsurprisingly, the respondent submitted that Mr Aydin’s premises were not appropriate premises to which the applicant might be bailed.
Analysis
Section 4(4)(c) of the Act requires this Court to refuse bail unless the applicant ‘shows cause why his detention in custody is not justified’. Section 4(2)(d) of the Act requires the Court to refuse bail if the respondent establishes that there is an unacceptable risk that the applicant, if released on bail, would commit an offence while on bail, endanger the safety or welfare of the complainant, or interfere with witnesses (in this case, the complainant). As will become apparent from these reasons, the question of whether the exercise is a one-step process or a two-step process does not need to be resolved in order to determine the present application.[4]
[4]See Robinson v The Queen (2015) 47 VR 226, 234–239 [25]–[47] (‘Robinson’).
In my view, there is an unacceptable risk that, if the applicant is released on bail, he would commit an offence against the complainant while on bail, endanger the safety or welfare of the complainant, or interfere with the complainant (the principal witness against him). While in an appropriate case, strict conditions might ameliorate the risk that a particular applicant might pose, in the circumstances of the present case, the conditions proffered by the applicant, or otherwise available to this Court, are not sufficient to reduce the risks to which I have referred to an acceptable level.
I accept that the convictions in New South Wales for assault and breaches of court orders do not appear to have involved offending as serious as is sometimes seen. The relevance of those offences, however, is that they appear to show an accused with some sort of anger management problem, and an accused who does not appear to take court orders or conditions as seriously as one might expect or hope in circumstances where he has previously been before a court, or at all.
During the hearing of the application, the applicant’s counsel specifically eschewed a submission that the case against his client was weak. A cursory perusal of the photographs taken of the complainant following the alleged offending no doubt explains this course. Those photographs give substance to the complainant’s allegations, and to the respondent’s opposition to bail on the basis that the applicant is an unacceptable risk so far as the complainant is concerned due to the excessive force used by the applicant against the complainant.
The position might be different, if the applicant had been able to find an appropriate and responsible person to provide a surety. The lack of supervision of the applicant, who it is proposed will live on his own or with a person about whom little is known (‘the Coksun proposal’), does not go very far to ameliorate the risk the applicant poses to the complainant.[5] Having regard to Mr Aydin’s prior convictions, the problem is even greater if one contemplated the offer of accommodation made by him (‘the Aydin proposal’). The submission that accommodation options involving either the Coskun proposal or the Aydin proposal somehow provide some suitably stable environment for the applicant cannot be accepted.
[5]Cf the very different facts and circumstances in Re Easson [2017] VSC 565 (‘Easson’).
An appropriate and responsible person (who does not have relevantly concerning prior convictions) acting as a surety in respect of the applicant might give the Court some comfort or assurance that the applicant would comply with bail conditions. In this regard, what was said by Gillard J in Mokbel v Director of Public Prosecutions[6] is apposite.[7] Moreover, as was correctly submitted by counsel for the applicant (when a surety was proffered as one of the 11 factors that showed cause why bail should be granted), a surety is ‘a further motivator for compliance [with bail conditions] on behalf of the applicant’.
[6](2006) 14 VR 405 (‘Mokbel’).
[7]Ibid 412–413 [35], [38].
Counsel for the applicant accepted that the delay in the present case is not inordinate. He maintained, however, the submission that if bail is not granted then there is a chance that the applicant would serve a substantial part of his sentence (and perhaps more than the length of any non-parole period that might be fixed) on remand. Of course, any delay is unsatisfactory. Every effort needs to be made to ensure that the prosecution of the applicant’s present charges proceeds in a timely fashion. That said, the Crown case is not a weak one. If the applicant is convicted following a trial (and without the benefits normally associated with a plea of guilty), one might very well expect a custodial sentence and non-parole period in excess of the time it is currently anticipated the applicant will spend on remand if bail is not granted.
I have concluded that the applicant’s history and the circumstances of the present alleged offending make the applicant an unacceptable risk so far as the complainant is concerned. It may be that upon the provision of stricter bail conditions than those that can presently be made,[8] the risk could be sufficiently ameliorated. At present, it is the lack of an appropriate surety, offered by an appropriately responsible person, and the lack of appropriate support and supervision regimes or structures, that make the applicant an unacceptable risk. To use the words of Gillard J in Mokbel,[9] there is no-one to be ‘the eyes and ears’ of the Court ensuring that the applicant complies with bail conditions and reporting to the informant any breaches or episodes of non-compliance.[10]
[8]Cf Easson [2017] VSC 565 [17].
[9]Mokbel (2006) 14 VR 405, 413 [38].
[10]Cf Easson [2017] VSC 565 [10(d)].
There being an unacceptable risk that, if released on bail, the applicant would commit an offence against the complainant or endanger her safety or welfare or interfere with her, bail must be refused. It follows from this conclusion and all the circumstances to which I have referred, that the applicant has not shown cause why his continued detention in custody is not justified. I do not pause here to consider whether, if I had concluded that the respondent had not established unacceptable risk, the applicant would have, in all the circumstances, shown cause. That may be a matter for another judicial officer at another time in the event that there is a relevant change of circumstances or change in the relevant evidentiary matrix concerning the applicant’s circumstances.
Conclusion
The application for bail will be refused.
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