R v Ftelianos

1. [1]

   THE COURT: On 15 August 2017 George Ftelianos (“the respondent”) was released on bail, subject to a number of conditions. On 22 august 2017, the NSW Director of Public Prosecutions (“the Crown”) made an application pursuant to s. 50 of the Bail Act 2013 (NSW) (“the Act”) for the respondent’s detention.

2. [2]

   The Court heard the Crown’s application on 28 August 2017. At the conclusion of that hearing, the Court ordered that the application be granted, and indicated that its reasons would be published in due course. Those reasons now follow.

THE CROWN CASE AGAINST THE RESPONDENT

1. [3]

   The respondent has been charged with an offence of firing a firearm with reckless disregard for the safety of any person contrary to s. 93GA of the Crimes Act 1900 (NSW). The material tendered by the Crown on the present application included a case statement which is in the following terms:

2. [4]

   The material tendered by the Crown also included a copy of the respondent’s criminal history. In 2008, the respondent was fined and placed on a bond pursuant to s. 9 of the Crimes Sentencing Procedure Act 1999 (NSW) for a period of 3 years in respect of a charge of assault occasioning actual bodily harm. More recently, on 29 January 2015, the applicant was sentenced to a non-parole period of 2 years and 8 months imprisonment in respect of a charge of recklessly inflicting grievous bodily harm. He is currently serving that sentence.

THE RESPONDENT’S CASE

1. [5]

   Tendered in the respondent’s case were the following documents:

2. [6]

   The affidavit of Ms Perera established that the proceedings against the respondent remain before the Local Court. An application has been made pursuant to s. 91 of the Criminal Procedure Act 1986 (NSW) for an order that witnesses attend for cross-examination at a committal hearing. That application is to be heard on 22 September. In the event that it is granted, the proceedings will obviously be further adjourned.

3. [7]

   The letter from Ms El Falak establishes that she is presently engaged to the respondent, having been in a relationship with him since approximately April 2013. She confirmed that if released, the respondent is able to reside with her and her family. The letter from Mr Hancock confirms that in the event that the respondent is released he will have casual employment available to him through Mr Hancock’s labour hire company.

THE PRESENT APPLICATION

1. [8]

   The application before this Court is to be determined afresh and is not an appeal from, or a review of, the decision of the primary judge: See DPP v Hourigan [2017] NSWCCA 170 at [8].

2. [9]

   It was common ground between the parties that the provisions of s. 16A of the Act applied to the present application. Accordingly this Court must refuse bail unless the respondent shows cause why his or her detention is not justified. The principles surrounding that requirement were set out in Moukhallaletti v The Director of Public Prosecutions (NSW) [2013] NSWCCA 314 at [50] and following, and in Hourigan at [9].

SUBMISSIONS OF THE CROWN

1. [10]

   In support of the submission that cause had not been shown, the Crown relied upon:

2. [11]

   The Crown further submitted that even if cause was shown, there were unacceptable risks that the respondent would:

3. [12]

   In respect of the unacceptable risks in (ii), (iii) and (iv) above, the Crown relied upon the respondent’s criminal record and, in particular, the circumstances surrounding the offending for which he was sentenced in 2015.

SUBMISSIONS OF THE RESPONDENT

1. [13]

   In support of the submission that cause had been shown, counsel for the respondent relied upon:

2. [14]

   Both orally and in writing, counsel for the respondent submitted that it was clear that the Crown case against the respondent was entirely dependent upon the account provided by the witnesses Isabella Williams and Katia Williams. It was submitted that an analysis of their respective statements, and the circumstances in which those statements were made, revealed a number of important considerations.

3. [15]

   It was submitted, in particular, that when speaking with police in the immediate aftermath of the incident giving rise to the charge against the respondent, neither witness made any allegation against the respondent (or indeed any co-accused), and that it was not until some months later that they each gave an account to police which purported to link the respondent to what had occurred. Counsel also placed particular significance on the fact that it had emerged in 2016 that the allegation made by each witness against the respondent may have been motivated by a desire, on the part of each of them, to remain at liberty following their admitted involvement in other offending. Counsel further submitted that the statements of the two witnesses, even though they recorded admissions allegedly made by the respondent, did so in inherently vague and imprecise terms which necessarily affected the weight which might be given to that evidence. He also highlighted what he submitted were fundamental inconsistencies in their respective accounts. It was submitted that in all of these circumstances, the accounts given by the witnesses were inherently unreliable and that, if the matter went to trial, the evidence would inevitably attract a warning pursuant to s. 165 of the Evidence Act 1995 (NSW).

4. [16]

   Counsel for the respondent further submitted that, quite apart from the issues arising from the statements of those two witnesses:

5. [17]

   Counsel for the respondent also relied on the fact that there had been a significant delay between the time at which the offence occurred, and the time at which the respondent was charged. Whilst counsel acknowledged that, generally speaking, delay in matters of this nature centres upon the time following arrest as opposed to the time preceding it, he submitted that the delay in the present case was nevertheless significant because (inter alia) it had the potential to frustrate the applicant’s release on parole.

6. [18]

   On the assumption that the Court was persuaded that cause had been shown, counsel’s submissions then turned to the assessment of various bail concerns. In doing so, counsel acknowledged that the respondent’s demonstrated history of violence was a relevant factor, and “unquestionably” gave rise to a risk. However, he submitted that such history was a relatively short one, and that this was not a case where the respondent had been incarcerated on multiple occasions, only to continue to offend.

7. [19]

   In dealing with each of the relevant factors prescribed in s. 18 of the Act, counsel’s ultimate submission was that any bail concern(s) could be appropriately addressed by the imposition of one or more conditions.

CONSIDERATION

1. [20]

   The show cause requirement set out in s. 16A of the Act does not impose an onus upon the respondent to demonstrate special or exceptional circumstances. What it requires is that the respondent point to factors that, either alone or in combination, support a conclusion that his continued detention is not justified: Hourigan at [22].

2. [21]

   The submissions of both parties in respect of this issue focussed upon the strength of the Crown case. Clearly, the Crown case against the respondent is based largely, if not solely, on the evidence of the two witnesses to whom we have referred. As the submissions of counsel for the respondent made clear, there will necessarily be a number of issues arising as to the reliability of that evidence. It seems clear that should the matter proceed to trial, the evidence will attract a warning as to its potential unreliability.

3. [22]

   At the same time, it is not the role of this Court to predict, much less definitively determine, how the various issues arising from the evidence of those witnesses will be resolved. It would be impossible for the Court to do so. However the inescapable fact, which counsel for the respondent acknowledged, is that if the evidence of the two witnesses in question is accepted, the respondent will inevitably be convicted, and a lengthy custodial sentence imposed. In the circumstances, and notwithstanding the issues to which the Court’s attention was directed, we are not prepared to accept the proposition that the Crown case is a weak one.

4. [23]

   We also accept that the evidence establishes that there was a delay in charging the respondent over his alleged involvement in the incident which appears to have been attributable to the time taken to obtain various statements from the two witnesses in question. Whilst that is a relevant factor, we do not consider that it is one deserving of any significant weight.

5. [24]

   In all of these circumstances we are not satisfied that the show cause requirement is not overcome. Further, even if we had reached a contrary view, it remains the case that there are two significant risks which, in our view, could not be appropriately addressed by the imposition of any condition(s).

6. [25]

   Firstly, there is, in light of the applicant’s criminal history, a clear risk of further violent offending. The Court was informed in the course of oral submissions that the applicant is currently undertaking courses in custody addressed to rehabilitation from drug use and violence. The fact that he is undertaking those courses at the present time reflects the fact that these remain ongoing issues.

7. [26]

   Secondly, and again bearing in mind the respondent’s history of violent offending, there is necessarily a risk (which counsel for the respondent acknowledged) of interference with witnesses. This is particularly so in circumstances where the evidence of the two witnesses to whom we have made referred effectively constitutes the entirety of the Crown case against the respondent. We are unable to conclude, in light of the respondent’s criminal history, that such a risk can be properly addressed by the imposition of any condition(s).

8. [27]

   It was for these reasons that the Court granted the Crown’s application.