R v Hamze

Judgment

1. [1]

   PRICE J: On 15 April 2013 the Director of Public Prosecutions commenced proceedings seeking a review of a decision of Beech-Jones J on 11 April 2013 granting the respondent conditional bail. The bail granted by his Honour was as follows: "a. To be of good behaviour b. Reside at 2 Dawn Avenue Chester Hill c. That he observe a curfew from 8pm - 6am at his residential address d. To report daily to Bankstown Police e. Within 7 days of his release from custody to notify the OIC of the numbers of all mobile telephone numbers used by him. In the event he commences to use a new mobile phone he is to notify the OIC within 3 working days of the new mobile number f. to comply with all reasonable directions of the Probation and Parole Service in so far as they are supervising him pursuant to existing bonds under s 9 of the Crimes (Sentencing Procedure) Act. g. Not to approach within 2km of any point of international departure h. To surrender his passport i. Two or more acceptable persons are to enter into an agreement, with security, to forfeit the sum of $150,000 if the Applicant fails to comply with his bail undertaking."

2. [2]

   The Crown asks that the respondent's bail be revoked.

3. [3]

   Section 45(1)(b) of the Bail Act 1978 (NSW) empowers this court to review the bail decision. The review is a hearing de novo.

4. [4]

   The respondent is charged with two counts of shooting with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW). An offence contrary to s 29 is punishable by imprisonment for 25 years.

5. [5]

   There is no presumption in favour or against the grant of bail as the offences fall within s 9(1)(b) Bail Act. Furthermore, at the time the offences are alleged to have been committed, the respondent was on bail. He had been granted bail on 14 August 2012 for an appeal to the District Court in respect of offences of drive manner dangerous, damage property and two counts of common assault. He was also subject to a good behaviour bond for 2 years for an offence of drive manner dangerous and s 9B(1) Bail Act applies. Another reason that the presumption in favour of bail does not apply is that the respondent is charged with indictable offences: s 9B(3) Bail Act. The respondent's criminal history includes convictions for maliciously inflicting grievous bodily harm, possession of a prohibited weapon, and possession of unauthorised firearm. The Crown case

6. [6]

   The respondent is alleged to have shot at Hakan Goktas and his 15 year-old son Hasan Goktas, wounding Hasan Goktas, when they attended the respondent's family home on 28 August 2012. With no disrespect to the victims of the shooting, I will refer to them as Hakan and Hasan.

7. [7]

   At the time of the shootings there was a history of animosity between the two families. Hasan had recently been released from juvenile detention following the stabbing of Ibrahim Hamze (the brother of the respondent) at school in February 2011.

8. [8]

   On 28 August 2012 Hasan was violently assaulted by a group of males at Auburn Police Station. CCTV footage subsequently obtained by the police showed the attackers leaving the scene in a vehicle registered to the respondent.

9. [9]

   When he arrived home Hasan discussed the incident with his father Hakan. They travelled together to 162 Auburn Road, armed with baseball bats, in order to confront the men they believed to have been involved in the assault and those believed to be responsible for orchestrating it.

10. [10]

    Outside 162 Auburn Road were a large group of males. Hakan and Hasan got out of their car and approached the group. Hakan yelled out to the men "who jumped my son?" The Crown alleges that the respondent emerged holding a black semi-automatic pistol which he pointed towards Hakan, aiming at his head and upper chest. The respondent pulled the trigger, however the firearm did not discharge. He cleared a round of ammunition and fired again at Hakan. The second shot missed Hakan, who ducked down as this round passed before returning to the driver's seat.

11. [11]

    The respondent then ran towards Hasan, who was standing near the front of the car. He was calling out "shoot him, kill him". Hasan ran back towards the car, however he stumbled falling against the rear bumper of the car. The Crown alleges that the respondent then shot him once in the abdomen as he lay there.

12. [12]

    Hasan managed to get to his feet and enter the car. It is alleged that, as Hakan drove away, the respondent shot at the car through the rear window, which was shattered. A projectile was later recovered from the rear middle headrest. They travelled on to Auburn Hospital where Hasan remained until 6 September 2012.

13. [13]

    A crime scene examination on 28 August 2012 at 162 Auburn Street revealed a fired cartridge and an unfired cartridge of the same make (.45 calibre, with the stamp 'Federal'). Another projectile was located in the premises opposite 162 Auburn Street. This projectile had penetrated the upper window, consistent with the path taken by the first round fired at Hakan.

14. [14]

    The principal consideration of the respondent's trial will undoubtedly be the identification of the person who shot at Hakan and Hasan. As this is a bail application, an assessment of the strength of the Crown case on this issue is limited to the material before the Court which reveals that on 29 August 2012, Hakan sent police a statement that he had made to his lawyer. In it he claimed to have gone looking for his son whom he believed had left to confront the males who attacked him at the train station. He drove to the area where the men were meant to congregate (a park along Auburn Road). When he arrived he saw his son crouched on the footpath, in pain stating "my stomach my stomach". No one was around. As he drove off with his son toward the hospital, the rear window of his car shattered. He did not see who shot his son or the rear window of the car.

15. [15]

    Police installed a listening device in Hakan's car. A conversation was recorded between Hakan and Hasan on 6 September 2012, when Hakan collected Hasan following his discharge from hospital. The two discussed the shooting, and tried to piece together what had occurred. It was clear from the conversation that both were in attendance when the shooting took place. Both identified a person called "Bill" as the shooter.

16. [16]

    On 11 October 2012 Hasan made a statement to police wherein he recounted the events of the day of the shooting. In respect of the person that shot him and shot at his father he called him "the guy". He also did not disclose that their destination was the Hamze residence. The statement was not signed at the time.

17. [17]

    On 16 October 2012 Hasan provided a further statement to police in which he identified his voice and his father's on the recorded conversation of 6 September 2012. He stated that he did not tell any lies when he had this conversation. He also signed the statement dated 11 October 2012.

18. [18]

    On 13 December 2012 Hasan took part in an interview at the Crime Commission, during which he identified the respondent as the person who was holding the gun and fired it at his father. In respect of the person who shot him, he stated that he didn't see the person when he was shot. He did however see the respondent point a gun at him and say "shoot him". He did not see anyone else with a gun.

19. [19]

    Hakan took part in an interview at the Crime Commission on the same day. He conceded that he travelled to confront those he thought responsible for the assault on his son, armed with a baseball bat and that Hasan was with him in the car. He also agreed that he was travelling to the respondent's place because that was where he expected to find the people. He described shots being fired and his son being hit at the residence.

20. [20]

    Although initially reluctant to name the shooter, towards the end of the interview the following exchange took place: "Q: Hasan's sort of indicated that he ran around the back of the car and then he got shot and he jumped in the car and you drove off. You're saying, "where's Hasan? Where's Bill? I'm gonna cop a bullet." It's pretty obvious to me that you knew that Bill Hamze was the one running around with the gun. ... Q: Isn't that true? A: I say that. ... Q: And it was right? You said it, and it was right? A: I said that. ... Q: ...You said it and it was right? A: Yeah. And it was right, yeah." (Crime Commission T 13/12/2013 p 46) Assessment of the Crown case

21. [21]

    The Crown's principal contention in this bail review is that the primary judge's assessment that "the Crown case identifying the [respondent] as the shooter appears to be relatively weak" was incorrect (BD 2). The Crown accepts that his Honour did not have before him Hasan and Hakan's interviews with the Crime Commission.

22. [22]

    I pause to make this observation. It behoves the Office of the Director of Public Prosecutions that if bail is to be opposed, that all relevant material is before the primary judge at the time of the hearing of the bail application in the Supreme Court.

23. [23]

    The respondent contends that, notwithstanding the material before this Court, from which it may be concluded that the respondent was the shooter, the primary judge's characterization as to the strength of the Crown case remains appropriate. The respondent points to the victims' animosity towards the respondent, their belief that the conversation on 6 September 2012 was being recorded, which the respondent argues raises the real possibility of an agreement to falsely implicate the respondent and the failure by the police to obtain statements from twenty to thirty persons whom Hasan claims were present at the shooting.

24. [24]

    Although the animosity that existed between the two families might provide Hakan and Hasan with a reason to falsely identify the respondent as the shooter, it provides the respondent with a motive to shoot at the two victims. The vehicle that is seen in the CCTV footage leaving the scene when Hasan was violently assaulted was registered to the respondent. Each of the victims had the opportunity to identify the shooter. I do not agree that the Crown's case on identification is weak, but I am unable to conclude that the Crown case is strong.

25. [25]

    The inconsistencies in the statements of Hasan and Hakan, the reticence that they have displayed to identify the respondent and their motive to lie about him will provide fertile ground for cross-examination during the trial. The strength of the Crown case is not assisted by the inability of the police to take statements from other potential witnesses. The interests of the respondent

26. [26]

    Section 32(1)(b) Bail Act provides that in making a determination as to a grant of bail, the court is to have regard to the interests of the person, having regard only to: "(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and (ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and (iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii)..."

27. [27]

    The primary judge took into account as this Court does, the period of time that the respondent may be obliged to spend in custody if bail is refused. It is unlikely that, if he is committed for trial, his trial would be heard before March 2014. The likely period of pre-trial incarceration must be balanced with all of the other matters in s 32 that require attention. Probability of Appearance

28. [28]

    The Crown submits that the offences are extremely serious and the potential penalties upon conviction provide a substantial incentive for the respondent not to answer his bail.

29. [29]

    Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the person will appear having regard, relevantly, only to: "(i) the person's background and community ties, as indicated...by the history and details of the person's residence, employment and family situations and the person's prior criminal record..., and ... (iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and ... (iv) any specific evidence indicating whether or not it is probable that the person will appear in court."

30. [30]

    The primary judge was aware that the respondent, if convicted was likely to receive "a very substantial custodial sentence" which raised a concern about the likelihood of his attendance, but his Honour considered that the requirement for substantial security in the bail to be imposed, would alleviate such a concern (BD 3).

31. [31]

    The respondent does not have a record of non-attendance at court. He has substantial community ties. A significant amount has been provided to secure his bail. The material before this court does not establish that the respondent is unlikely to appear. Protection of the community

32. [32]

    The Crown submitted that the respondent's prior criminal history includes in addition to those offences that have been mentioned, convictions for possession of prohibited weapon, possession of an unauthorised firearm and possession of ammunition. The Crown contended that on its case the respondent not only shot at two people with intent to kill them but he did so in circumstances where members of the public were put at grave risk. This was said to be amply demonstrated by the fact that one of the bullets that had been fired went through the window of the house across the road. The Crown mentioned the concern of the police for the safety of the victims who are the primary source of the evidence against the respondent and contended that the risk to their safety must be seen as grave.

33. [33]

    I take into account in considering this bail application: - The protection of Hakan and Hasan: s 32(1)(b1)(i). - The protection and welfare of the community, having regard to: (a) the seriousness of the crime of shooting with intent to murder: s 32(1)(c)(i); (b) the likelihood of the respondent interfering with Crown witnesses: s 32(c)(iii); (c) whether or not it is likely that the respondent will commit any serious offence whilst on bail: s 32(c)(iv).

34. [34]

    It is of concern that at the time the offences are alleged to have been committed that the respondent was on bail and subject to a good behaviour bond. He was subject to conditional liberty which is a factor which militates against the grant of bail. His unattractive criminal history which includes offences of violence and possession of unauthorised firearms does not assist him. On the other hand, there is no evidence that suggests that the respondent has attempted to threaten or to interfere in any way with Hakan and Hasan.

35. [35]

    I do not consider with the bail conditions set by the primary judge and with additional conditions that it is likely the respondent will commit a serious offence whilst on bail or interfere with Crown witnesses. Decision

36. [36]

    In all the circumstances, I am of the view that the respondent's bail should be continued with additional conditions. Orders

37. [37]

    I propose the following orders: 1. The bail granted by Beech-Jones J on 11 April 2013 is to continue with the following additional conditions; a. He is not to approach or to contact or to attempt to contact or communicate with in any way whatsoever Hakan Goktas and Hasan Gotkas, or members of their family. b. He is not to use any landline telephone number, other than a telephone number notified to the officer-in-charge, within 7 days of today. c. Bail is to be automatically revoked in the event of any breach of any one of the conditions of bail and the respondent may thereupon be arrested by any police officer.

38. [38]

    DAVIES J: I agree with Price J.

39. [39]

    BARR AJ: I agree with Price J.

40. [40]

    PRICE J: The orders of the Court are that the respondent's bail is to be continued with the added conditions that I have enunciated.