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Re Atasoy[2022] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:

Re Atasoy [2022] QSC 148

PARTIES:

IN THE MATTER OF AN APPLICATION FOR BAIL BY SALEH ATASOY

(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

(Respondent)

FILE NO/S:

14793 of 2021

DIVISION:

Trial Division - Applications

DELIVERED ON:

13 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2022

JUDGE:

Freeburn J

ORDER:

An order for bail will be made on conditions provided by means of a draft order.

CATCHWORDS:

APPLICATION FOR BAIL – CHANGES IN THE CHARGES – ACCESS TO BRIEF OF EVIDENCE – NATURE AND SERIOUSNESS OF THE OFFENCES – STRENGTH OF THE EVIDENCE – where the applicant’s first application for bail was refused – where the applicant is alleged to have committed offences related to drugs and weapons – where the applicant filled a second application – where the second application for bail was adjourned on three occasions – whether the applicant should be granted bail.

COUNSEL/LEGAL REPRESENTATIVE:

MJ Henry (applicant)

RH Godfrey (respondent)

SOLICITORS:

SANS Law (applicant)

Office of the Director of Public Prosecutions (respondent)

REASONS

  1. [1]
    This is Mr Atasoy’s second application for bail. The application was made in the applications list on 4 July 2022. The decision was reserved until today to enable a proper examination of the voluminous material and a proper consideration of some of the difficult issues raised by the application. Ordinarily, applications for bail are decided swiftly.

The Recent History

  1. [2]
    On 2 April 2020, Davis J refused Mr Atasoy’s first application for bail. Davis J noted that on 3 December 2019 Mr Atasoy was arrested and the offences alleged against him on that occasion included possession of a number of firearms, ammunition and drugs. And then, whilst he was on bail for that first group of offences, Mr Atasoy was arrested again on 13 January 2020. The search this time located a number of handguns, a semi-automatic rifle and two stolen vehicles. On 11 February 2020, Mr Atasoy was arrested again. The allegation here is that he was involved with others in connection with another person’s possession of 8.33 kilograms of methylamphetamine. Again, weapons were found.
  2. [3]
    Reading the sentencing remarks, there is little doubt that the toxic mix of drugs and weapons was central to His Honour’s decision to refuse bail.
  3. [4]
    On 12 August 2021, Mr Atasoy was sentenced by Williams J. At the outset of the sentencing hearing a 17-count indictment was replaced by a new 10-count indictment. The result was that Mr Atasoy pleaded guilty to two counts of unlawful possession of a motor vehicle, two counts of possession of a category D weapon, four counts of possession of a category H weapon, one count of possessing a dangerous drug and one count of possessing a dangerous drug in excess of 50 grams. Her Honour imposed a head sentence of three years and, on the basis that he had served 205 days in presentence custody with some hardship, which equated to roughly one-third, he was given immediate parole. However, Mr Atasoy remained in custody because a number of offences remained outstanding.

The Outstanding Charges

  1. [5]
    What charges remain outstanding is not entirely clear from the submissions. However, there seems to be three groups of offences.
  2. [6]
    The first group of offences are drug offences, namely trafficking in methylamphetamine for roughly three months between 21 October 2019 and 18 January 2020 and possession of cocaine on 11 February 2020. These charges are the subject of an indictment brought in the Supreme Court.
  3. [7]
    There is undisputed evidence that, when the defence asked for particulars of the trafficking charge, the prosecution responded proposing that these charges be ‘resolved’ on the basis that the trafficking charge be discontinued and that Mr Atasoy plead guilty to two counts of supplying and one count of possession of a dangerous drug. 
  4. [8]
    The most serious of the alleged offences are those the subject of the second group of charges. They relate to what might be described as a ‘home invasion’. These charges were first brought in August 2020 and are the subject of an indictment presented in the Ipswich District Court on 7 June 2022. The charges comprise entering a dwelling with intent, use of violence whilst armed in company, kidnapping, grievous bodily harm, torture, and armed robbery. The charges have been brought against Mr Atasoy and four other men. The events are alleged to have occurred on 25 October 2019 at Raceview, near Ipswich. All four co-accused have been granted bail.
  5. [9]
    It is also necessary to note that Mr Atasoy’s counsel disputes that the Ipswich indictment was lawfully presented in June this year. The argument about that was not fully ventilated and so I do no more than note the dispute.
  6. [10]
    The third group of alleged offences are before the Southport Magistrates Court. They comprise a drug driving offence, a charge of possession of ammunition which seems to relate to charges in the Supreme Court that have not been proceeded with, and a set of 5 charges involving fraud and forgery which are related to the second group of offences.
  7. [11]
    The second group of charges were brought on 20 August 2020 – that is after the bail application before Davis J but before the sentence before Williams J. The sentencing before Williams J appears to have disposed of some of the charges that had been before Davis J when His Honour heard the first bail application, although it is difficult to be precise because this aspect was not the subject of submissions and, as explained, before Williams J some 17 charges were replaced by 10 charges.
  8. [12]
    In any event, it is clear that the charges now before the court are different to those that were before Davis J.
  9. [13]
    On 13 December 2021, Mr Atasoy filed his second application for bail. On 5 January 2022, that application was adjourned to a date to be fixed.
  10. [14]
    On 12 May 2022, the Crown filed a very lengthy affidavit enclosing some relevant documents, including details of Mr Atasoy’s criminal history, details of prior bail hearings, a prior sentence and details of remanded in custody offences.  On the following day, 13 May 2022, affidavits of Mr Atasoy’s wife and mother-in-law were filed supporting his application for bail. 
  11. [15]
    Those submissions note that Mr Atasoy had previously been refused bail but has been granted bail on other occasions.  The submissions note that by that time Mr Atasoy had spent some 820 days in custody and that there continue to be delays in disclosure of the brief of evidence and that some of the charges against Mr Atasoy have now been dropped.
  12. [16]
    The application was heard by Flanagan J on 13 May 2022.  His Honour adjourned the application to 20 May 2022 and made directions as to further material.
  13. [17]
    When the matter returned to court on 20 May 2022, Wilson J adjourned the hearing to 10 June 2022.  That was so that the Director of Public Prosecutions could determine whether they were to present an indictment in the District Court at Ipswich.  As I have mentioned, there is now a dispute as to whether the indictment presented to the District Court in Ipswich was presented within time and lawfully.

Material Change of Circumstances

  1. [18]
    The threshold issue is whether there has been a material change of circumstances since the first application was refused by Davis J on 2 April 2020 – roughly 2 ¼ years ago.  That is a lengthy period.  Mr Atasoy has been in custody in all of that period. He has been and still is in custody in Lotus Glen Correctional Centre (Lotus Glen), which is near Mareeba in North Queensland.[1] His wife and three children (aged 11, 9 and 3) reside in Brisbane.  There is no trial on the horizon.
  2. [19]
    There were conflicting submissions about when Mr Atasoy was transferred to Lotus Glen. The Crown said it was on 18 December 2021.[2] Mr Atasoy said he was transferred to Lotus Glen on 6 April 2020. There is an internal Lotus Glen document that supports Mr Atasoy’s evidence.[3] However, it seems that Mr Atasoy may have been at a Brisbane correctional facility, presumably for the purposes of court hearings, in August and November 2021.[4] It appears likely that the reference in the Crown submissions to 18 December 2021 must be intended to be a reference to the date when safety orders were removed and Mr Atasoy was returned to the general prison population.
  3. [20]
    In any event, what is required for a second or later application for bail, is that the applicant satisfy the Court that there are additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail.[5]

Delay

  1. [21]
    Mr Atasoy contends that there are several material changes in the circumstances.  The first material change comprises the delays. The delays are significant. Already Mr Atasoy has been in custody since 17 February 2020. That is a period of 880 days, or two years and 5 months. The majority of that period is declarable as time spent in pre-trial custody. Williams J declared only 205 days in handing down the sentence on 12 August 2021. That leaves about 675 days as ‘declarable’.
  2. [22]
    Mr Atasoy has been in custody throughout the period of the pandemic. Until December 2021, Mr Atasoy was consistently the subject of safety orders which meant that he was removed from the mainstream prison population and kept in separate confinement.[6] He was eventually removed from the strictures of that confinement. The reasons why he was housed that way are not clear.
  3. [23]
    Even without the added burden of separate confinement, the delays are significant. Delay is a regrettable fact of life in the court system, but that should not be allowed to mask the hardship and the potential injustice which it can and does cause.[7] The prospect of two years in pre-trial custody is, absent exceptional circumstance, not consistent with modern concepts of civil rights.[8] There is no arbitrary line described in years. But, as time marches on, courts may well be astute to avoid injustice. 
  4. [24]
    Here, there are likely to be even further delays. The brief of evidence is not complete. Particulars and documents are outstanding. As I have said, no trial is on the horizon. The likelihood is that the trial will not be held this year which will mean that, if bail is not granted, Mr Atasoy will remain in custody for three years before trial. 

Changes in the Charges  

  1. [25]
    The second alleged material change is recorded in paragraph 7 of Mr Atasoy’s supplementary outline as follows:

“Since the last application for bail by the Applicant the majority of the charges he was facing have been finalised or discontinued, including all of the charges that he was facing that are relevant to firearms.”

  1. [26]
    The Office of the Director of Public Prosecutions (DPP) does not directly respond to that alleged material change but it seems beyond argument that the collection of charges that were before Davis J some 2 ¼ years ago are very different to the remaining charges before the court and in respect of which Mr Atasoy now seeks bail. In a broad sense, it seems that Mr Atasoy pleaded guilty to the charges before Williams J and what remains are largely contested charges, including the second group of charges.

No Access to Brief of Evidence

  1. [27]
    The third is that, despite the lengthy delay, Mr Atasoy still does not have access to his full brief of evidence.  He says the brief material has been removed.  That brief material has been supplied in a piecemeal way and there remains a deficit in what Mr Atasoy has access to.
  2. [28]
    In his affidavit sworn on 29 June 2022, Mr Atasoy says this [at paragraphs 8 to 11]:

“8 I still do not have access to my brief of evidence, and I still have no access to a legal laptop.  The only brief items I possess are in a manilla folder containing 10 police statements.  As I understand from my legal representative, Ivan Sayad, there is approximately two (2) gigabytes worth of material in respect of my Ipswich charges alone.

9I have made a number of transfer requests to be relocated to a correctional centre located within the Brisbane metropolitan area, however I have not received a response to date.

10 I want to contest all of my charges I am facing, but I am in a difficult position where I no longer have access to my brief and the exculpatory materials that my lawyers have sought are continuing to be disclosed in small increments.

11 In lieu of the requested disclosure the Crown have now offered to withdraw the trafficking charge and for me to face two supply charges only.”

  1. [29]
    There is no dispute that the brief of evidence has dripped out in a piecemeal way and the brief of evidence remains incomplete. An email of 4 May 2022 discloses that some 21 or so categories of documents are yet to be supplied. Particulars of the charges were requested on 28 March 2022 but have not yet been supplied.
  2. [30]
    There is no dispute that significant aspects of the brief are in an electronic format and include CCTV footage and the like. The only sensible way to give Mr Atasoy access to his brief is to give him access to a computer. It also appears to be accepted that Mr Atasoy has not been given proper access to his brief – whether the paper form or the electronic form. It is necessary to try to untangle the events which have led to the present situation.

The Battle for Access to the Brief of Evidence

  1. [31]
    The DPP acknowledges that it is notorious that there are difficulties associated with preparation of a case from custody. As a general statement that may be accepted. Then the DPP acknowledge that: “The matter of concern is that the applicant has sworn to the brief of evidence for his charges being removed from his cell.”
  2. [32]
    That is a concern.  But it is a concern that the Director of Public Prosecutions do not address.  They do not contest the accuracy of the allegation.  They did not seek an adjournment so that the concerns can be investigated. There is no substantive answer to the applicant’s allegations.
  3. [33]
    In paragraph 4.3 of the DPP’s addendum submissions, the DPP say this:

“There have been administrative and procedural issues with the applicant being given access to his voluminous material, that appears to require a laptop to access in its entirety, and that it is now available, including completing a legal laptop access session on 18 May 2021.”[9]

  1. [34]
    The phrase that there have been “administrative and procedural issues” with access is so vague as to be meaningless.  In fact, to put it into plain English, Mr Atasoy has been denied access to his brief of evidence.
  2. [35]
    The suggestion that Mr Atasoy was actually provided with access at a session on 18 May 2021 is a little bizarre. In a context where Mr Atasoy and his lawyers have been making serious complaints about Mr Atasoy not having proper access to the brief of evidence, the DPP say, in effect, ‘well you had a session involving access to a laptop back in May 2021’.[10]
  3. [36]
    Then, in paragraph 4.4 of the same submissions, the DPP say this:

“As noted in Sica v Director of Public Prosecutions (Qld), the difficulty of instructions being given whilst on remand may be cured or overcome through the arrangement of communication and conference facilities.”

  1. [37]
    That is true.  It can hardly be difficult for a corrections facility to provide a prisoner with access to a computer.  That access may need to be supervised. However, as that submission acknowledges, arrangements for access to a computer can be made. No particular complexities are said to attach to putting a prisoner in a room with a computer. The computer need not even be attached to the internet for Mr Atasoy to access the brief of evidence including video footage via, for example, a USB. The problem is that here there is no evidence that any such arrangement is available to Mr Atasoy.
  2. [38]
    It is important to note that Mr Atasoy says that, when he first attended Lotus Glen in about April 2021, he completed a blue letter requesting access to his legal documents. There is some support for that because he exhibits a memorandum in response dated 18 May 2021 which records “your request for access to the legal library to assist you in your upcoming legal proceedings”. Presumably, the access was required so that he could use a computer (rather than conduct legal research). In any event, the response was non-committal: “I will forward a copy of this letter to the education officer, asking them to make contact with you within 10 business days from this letter.”
  3. [39]
    It is doubtful that the request was complied with in any substantive way. It is true that the DPP’s addendum submissions refer to “a legal laptop access session on 18 May 2021”. But that contrary to Mr Atasoy’s evidence and 18 May 2021 happens to be the same day that Lotus Glen were telling Mr Atasoy in writing that his request had been referred to the Lotus Glen education officer. In any event, no details of the legal laptop session are provided.

A Meeting on 13 May 2022

  1. [40]
    In fact, the evidence is that Mr Atasoy has been denied access to his brief and to a computer.  In an affidavit by Mr Hadzalic, Mr Atasoy’s previous solicitor, sworn on 17 May 2022 there is an account of an interaction between Mr Atasoy and officers at the Lotus Glen.  That affidavit deposes that on 13 May 2022, Mr Atasoy had a conversation with an officer who he describes as Mr Muller, the supervisor at Lotus Glen. Mr Muller said he had received a letter from the DPP which had passed on the allegation by Mr Atasoy’s lawyers that the Lotus Glen was not permitting him access to his brief of evidence.
  2. [41]
    Then Mr Atasoy was shown two relatively small folders.  On any view that cannot have been the complete brief. That seemed to be acknowledged at the time. The officer then asked Mr Atasoy a series of questions as to why he needed access to the documents in the two folders and what the relevance of the documents was as the documents related to matters in 2019 and 2020 (which, of course, is when the offences are alleged to have occurred).
  3. [42]
    Mr Atasoy asked to see the CDs.  He was asked why he needed those.  He was told he did not have access or permission to a legal laptop in this prison.
  4. [43]
    The DPP has not filed any answer to that affidavit. It seems likely that the thrust of what has been deposed to was accurate or substantially accurate. Certainly, in about May 2022, the DPP are likely to have raised with Lotus Glen the fact that Mr Atasoy’s lawyers were complaining that he did not have access to his brief. A curious feature is that the supervisor of Lotus Glen thought it appropriate to question Mr Atasoy about the documents in the brief of evidence.

The Form 51

  1. [44]
    Then, the evidence took another odd turn. Rather than directly responding to the allegations made in Mr Hadzalic’s affidavit, the DPP filed an affidavit of Russell Phillips, the Acting Accommodation Manager at Lotus Glen. Mr Phillips states that a prisoner must request access to legal resources through the counselling team or a unit manager using the Admin Form 51 – Legal Resources Centre Access Form in accordance with the Custodial Operations Practice Directives. The Form 51 then goes through an approval process.
  2. [45]
    Mr Phillips says that he has spoken to two other officers, and Administration Officer and an Education Officer and both told him that there was no Form 51 from Mr Atasoy attached to his file or presented to an Education Officer. He states that the Education Officer confirmed that there were no pending or approved Form 51s for Mr Atasoy. An Administration Officer has confirmed to him that there is no record of Mr Atasoy making a request for access to legal documents.
  3. [46]
    Mr Phillips then says that there is a record of Mr Atasoy making a verbal request for access to his legal resources in February 2022. Mr Phillips says that Mr Atasoy was then told by the (unidentified) processing Custodial Correctional Officer that the request was denied, and he must complete a Form 51 in order to gain access to his legal documents.
  4. [47]
    Then, it is said that there is “no documented evidence to indicate that Mr Atasoy made an application for an Admin Form 51 at Lotus Glen.” One curiosity is why Mr Phillips is stating what passed between another unidentified officer and Mr Atasoy. Another is why that officer would deny the request at the outset when the process called for a Form 51. And a third is why Mr Atasoy, having been told he needed to fill out a Form 51, would not do so.
  5. [48]
    Mr Phillips then says: “On 17 May 2022 I received advice that Mr Atasoy had been provided access to his legal documents via email on 13 May 2022.” He does not say who he received that advice from, or who provided the access via email, or how Mr Atasoy could possibly have accessed the email without a computer. Perhaps it is a coincidence, but 13 May 2022 is the same day that Mr Atasoy says that he met with the supervisor, Mr Muller, of Lotus Glen. Without a proper explanation, and some direct evidence, it is difficult to accept that in fact Mr Atasoy was provided with access to his documents on 13 May 2022.
  6. [49]
    On 17 May 2022, as a result of speaking with his barrister, he was directed to submit a Form 51. He submitted the form that day. He was not permitted to keep a copy of the Form 51.
  7. [50]
    Mr Atasoy says he has continued to make enquiries as to the progress of his Form 51. He made an enquiry of his unit officer on 24 June 2022. The officer said he would follow up the request.
  8. [51]
    Incidentally, the Form 51 procedure appears to have been implemented on 17 June 2021.[11] That post-dates Mr Atasoy’s initial request for access to his brief via a computer.
  9. [52]
    It is impossible to reconcile all of that. One reason is that each party’s evidence pass each other like ships in the night. In particular, the DPP has made no attempt to answer the allegations about Mr Atasoy having requested access to his legal documents in May 2021, or about what happened on 13 May 2022, or even about the claim that a Form 51 had been lodged on 17 May 2022. I make no criticism of the DPP about that. Plainly, it seems that the DPP have raised the complaints by Mr Atasoy’s lawyers with Lotus Glen. The inference is that Lotus Glen has been content to respond by saying that no Form 51 has been received or is in its system.
  10. [53]
    That is an unsatisfactory response. Even if the Form 51 had not been filled out, it is clear that Lotus Glen could have made arrangements sometime before today for communication or conference facilities so that Mr Atasoy could have access to a computer and, by that means, his brief of evidence, or at least so much of it has been produced by the DPP. The Form 51, of course, is a part of a procedure that the Lotus Glen created for themselves. There is no evidence that the procedure was a widely disseminated procedure. Even if it were, devotion to the Form 51 procedure can hardly be regarded as a good reason for depriving Mr Atasoy of his substantive right to properly defend himself.
  11. [54]
    As a matter of substance, Mr Atasoy has been denied access to his brief of evidence. Further, there appears to be no realistic prospect of those administrative arrangements being made in the near future.  Indeed, many of the issues related to access came to a head in May 2022. Two months later there is no suggestion that the Lotus Glen has found the Form 51 said to have been lodged on 17 May 2022, or that it has processed that form, or that the Lotus Glen has any interest in giving Mr Atasoy access to the brief of evidence. 
  12. [55]
    It is true that the care, control and management of Mr Atasoy whilst he is in prison is a matter for the executive. Similarly, the conduct of the prosecution case is a matter for the DPP. It is, however, relevant to the present application that Mr Atasoy’s continued imprisonment at Lotus Glen means that there is some prospect of prejudice to a fair trial.
  13. [56]
    Those three aspects – either separately or together – constitute a material change.[12]

Show Cause

  1. [57]
    Mr Atasoy is in a ‘show cause’ situation pursuant to section 16(3) of the Bail Act 1980 as he is charged with an offence whilst on bail for another offence.  The Court is obliged to refuse bail unless the applicant can show why his detention in custody is not justified. While the burden is reversed, the requirement to show cause is not equivalent to demonstrating exceptional or special circumstances. Mr Atasoy is required to show cause why his detention in custody is not justified. If he cannot do that then bail must be refused under section 16(3) of the Act.
  2. [58]
    The reversal of the burden does not alter the question to be asked and answered under the Bail Act 1980, namely whether there is an unacceptable risk that, if the applicant were released on bail, he would fail to appear, or he would commit an offence, or he would endanger a person’s safety or interfere with witnesses.[13]
  3. [59]
    Nor does the reversal of the onus alter the consideration that the grant of bail is an important process in civilised societies which reject any general right of the executive to imprison a citizen upon mere allegation or without a trial.[14]
  4. [60]
    Here, the Crown oppose bail on the basis that the applicant presents an unacceptable risk of committing further offences, failing to surrender and interfering with witnesses. The Crown contend that no conditions can ameliorate those risks.

Nature and Seriousness of the Offences

  1. [61]
    There is little doubt that the allegations are serious. 
  2. [62]
    As explained above, the first group of offences comprise trafficking in methylamphetamine for roughly three months between 21 October 2019 and 18 January 2020 and possession of cocaine on 11 February 2020.
  3. [63]
    The second group of charges relate to what might be described as a ‘home invasion’. These charges comprise entering a dwelling with intent, use of violence whilst armed in company, kidnapping, grievous bodily harm, torture, and armed robbery. It is alleged that these offences were committed as part of serious organised crime and pre-mediated as part of the operations of the Lone Wolves Outlaw Motorcycle Gang.
  4. [64]
    As explained above, the third group of offences are drug driving offence, a charge of possession of ammunition, which seems to relate to charges in the Supreme Court that have not been proceeded with, and a set of 5 charges involving fraud and forgery which are related to the second group of offences.

Strength of the Evidence

  1. [65]
    The Crown contend that their case on the first group of offences is strong, but the Crown case on the second group of offences is less so.
  2. [66]
    It is difficult to accept that the first group of drug offences can be regarded as a strong Crown case. The most serious of the charges is trafficking in dangerous drugs. The Crown, when pressed for particulars and disclosure more than two years after his arrest, responded by offering to replace the two charges for trafficking and possession with two counts of supply and one count of possession. The proposal is that Mr Atasoy be sentenced as a ‘middle-man’. In other words, the Crown may be prepared to abandon the trafficking charge.
  3. [67]
    There is another problem. These charges rely on the evidence of a witness who has given evidence against Mr Atasoy pursuant to section 13A of the Penalties and Sentences Act 1992 and is claimed to suffer mental health issues. By themselves those matters may not diminish the strength of the Crown case. However, it is difficult to see any corroboration. A related problem is that the three witness statements given by the section 13A witness do not appear to be powerful evidence against Mr Atasoy. At best the evidence seems to be that it was the witness who handed a backpack to Mr Atasoy who returned the same backpack to the witness a few hours later. Police later found the witness in possession of methylamphetamine.
  4. [68]
    Identification evidence is the problem with the second group of charges. These charges, which are based on circumstantial evidence, were the subject of an unsuccessful no-case submission. There is apparently a challenge to the indictment.
  5. [69]
    It is often problematic to try to assess the strength of the Crown case from a distance. Here, those problems are exacerbated by the incomplete brief and the apparent lack of preparation of the Crown case, in spite of its age. Overall, it is doubtful that the Crown case can be fairly described as strong. The furthest one can go is to say the charges are contested. 

Antecedents

  1. [70]
    Despite the Crown submission to the contrary, there seems to be no real risk that Mr Atasoy would fail to appear. He is 35 years of age and has a wife and three relatively young children. He owns a business and thus a strong connection to the community. He is anxious to return to the community and to revive his business so that he can provide for his family who are suffering financial hardship in his absence.
  2. [71]
    Mr Atasoy has no convictions for failing to appear. Admittedly, Mr Atasoy was on bail, for the charges that ultimately came before Williams J, when he is alleged to have committed the first group of offences. However, it is hard to justify a conclusion that Mr Atasoy now presents as an actual risk of flight given the strength of the evidence, and his 2 ¼ years in custody, and the prospect of reducing the risks by appropriate conditions.
  3. [72]
    It is true that Mr Atasoy has a poor criminal history. His Queensland criminal history runs to just over 2 pages but contains some serious offending. On 12 December 2014, Mr Atasoy was sentenced in this court to four counts of possession of dangerous drugs and was sentenced to a head sentence of 13 months imprisonment. His parole release date was the date of sentence. As mentioned above he was also sentenced to three years imprisonment by Williams J on 12 August 2021 for those offences. Taking into account 205 days in pre-trial custody, his parole release date was fixed as the date of sentence. On 11 May 2005, in NSW, Mr Atasoy was convicted of an aggregate of 4½ years for a variety of weapons offences.
  4. [73]
    Certainly, the offending is serious. As explained, the combination of allegations of drug and weapons offences[15] makes for a toxic mix. That said, the charges before the court are contested.
  5. [74]
    The Crown raises the potential for the witness to be harmed. However, there is no evidence of any threats. And, if the witness’ evidence is as vulnerable and innocuous as Mr Atasoy’s legal team suggests, there is little motivation to harm the witness.

The Conditions Offered

  1. [75]
    Mr Atasoy offers to accept these bail conditions (in summary):
    1. (a)
      A surety of $60,000;
    2. (b)
      Requirement to be at court appearances;
    3. (c)
      Residential condition;
    4. (d)
      Curfew (from 5pm to 5am, but with an exception for the purposes of his business);
    5. (e)
      Reporting condition (Monday, Wednesday and Friday);
    6. (f)
      No contact conditions with victims and witnesses and also co-offenders;
    7. (g)
      No interstate or international travel;
    8. (h)
      Limits to mobile phone use;
    9. (i)
      Electronic monitoring.

Conclusions 

  1. [76]
    In my opinion there is insufficient evidence to enable the court to conclude that there is a real risk of Mr Atasoy failing to surrender or interfering with witnesses.
  2. [77]
    The risk of re-offending is lessened by the fact that Mr Atasoy has spent 2 ¼ years in custody. For three reasons, that custody has been arduous[16] and may be regarded as harsher than usual punishment. That custody must have had a deterrent effect. The conditions proposed and the need for Mr Atasoy to revive his business and thereby provide for his family are likely to dissuade any offending.
  3. [78]
    The charges are contested. The need for Mr Atasoy to properly prepare his defence, which appears to have been denied to him whilst in custody, and the continuing delays in the Crown’s prosecution of its case, are further reasons for a grant of bail.
  4. [79]
    On balance, I am satisfied that the conditions proposed can adequately address the three risks identified by the Crown and can reduce those risks to an acceptable level. Mr Atasoy has established that his detention in custody is not justified.

Footnotes

[1]See the discussion below on the conflicting submissions about when Mr Atasoy was transferred to Lotus Glen.

[2]See paragraph [70] of the DPP’s most recent submissions.

[3]See Mr Atasoy’s affidavit of 29 June 2022 at paragraph [3].

[4]See Mr Atasoy’s affidavit of 29 June 2022 at paragraphs [14, [15].

[5]See Ex parte Edwards [1989] 1 Qd R 139 at 142 and 144 (McPherson J).

[6]The DPP seem to admit this. Their submissions say that: “At least since 18 December 2021, the applicant has not been on any safety order” and “At least since 18 December 2021, the applicant has not been in any detention unit”.

[7]Western Australia v Sturgeon (2005) 158 A Crim R 34 at [52] (Heenan J).

[8]R v Cain (No. 1) (2001) 121 A Crim R 365 at 367; DPP v Bakir [2006] QCA 562 at [5].

[9]During argument it was clarified that the date in paragraph 4.3 was correctly stated as 18 May 2021 even though an initial reading, and the context of the submission, suggests what was intended was 18 May 2022.

[10]This topic is addressed below.

[11]Mr Henry’s submissions refer to the publicly available DOC Practice Directive issued on 17 June 2021. The Crown submissions did not contest any of that. Surprisingly, Mr Phillips did not explain when the procedure commenced, or how the information about the procedure was disseminated, or what happened to those requests, like this one, that had already been made before the procedure was implemented.

[12]See R v Tesic [2015] QSC 205 at [38], where the Court referred to “the convergence of circumstances post-dating the original application for bail”.

[13]Williamson v DPP (Qld) [2001] 1 Qd R 99 at [12]. 

[14]Williamson v DPP (Qld) [2001] 1 Qd R 99 at [21]. 

[15]Williams J sentenced Mr Atasoy on 12 August 2021 for weapons and drug offences.

[16]The three reasons are the pandemic, the fact that he has been unable to see his family, and the special confinement.

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Editorial Notes

  • Published Case Name:

    Re Atasoy

  • Shortened Case Name:

    Re Atasoy

  • MNC:

    [2022] QSC 148

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    13 Jul 2022

  • White Star Case:

    Yes

Appeal Status

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