Re Younan[2022] QSC 206

SUPREME COURT OF QUEENSLAND

1. [1]
   HER HONOUR:   On Friday, I found that the second bail application was permissible because material facts have arisen or been discovered which may entitle the applicant to an order in his favour.  These are my brief reasons for that decision.  The applicant relied upon nine matters said to justify satisfaction of the relevant test as set out in paragraph 21 of his submissions.  The Crown reworked those matters into eight matters at paragraphs 12 to 42 of the Crown’s submissions.  For ease, I will use the Crown’s numbering.
2. [2]
   I do not accept that reasons 5 and/or 6 are material changes of circumstances.  Those issues existed at the date of the first application, and the time that has elapsed since the first application is not sufficient to materially change those circumstances.  I do not accept that 7 is a material change of circumstance except to consider whether it may lead in this second application to some very marginally relevant evidence that there is no allegation that the co-accused have not complied with their conditions of bail, including in respect of contact with prohibited persons.  That is, in my view, of very marginal relevance to my considerations of risks associated with this particular applicant.  Of itself, I would not have been prepared to conclude this rises to the level of a material change in circumstances.
3. [3]
   I consider there is otherwise merit in the applicant’s submission that the balance of the factors at least in combination are sufficient to constitute a material change of circumstances.  There are two matters that warrant specific comments and findings.  The first is the availability of increased surety.  The quantum of the surety offered has increased from 4.5 to 5.5 million, an increase of $900,000.  As I indicated in discussions during submissions, I am not so interested in the quantum of the security despite it having been described variously as huge and unprecedented.
4. [4]
   I am instead particularly concerned with whether the change in relative terms is more than trivial or insubstantial and whether the change may affect the risk analysis to be performed in respect of flight.  That is, might the increased surety achieve its objectives to disincentivise the applicant from absconding from the jurisdiction.  The increase in surety is 20 per cent.  That is not trivial or insubstantial, and I do consider that the increased amount may be sufficient to affect the risk analysis to be performed.  I would conclude that the increase in surety of itself in the particular circumstances of this case is sufficient to constitute a material change in circumstances.
5. [5]
   The second concerns the strength of the Crown’s case.  The first application before Justice Cooper proceeded on the basis, amongst other matters, that a witness statement of Witness A, who is described by the Crown as a critical witness, both existed and contained certain matters identifying the applicant as the shooter in the killing.  Public interest immunity was claimed in respect of the statement at both applications.  But correspondence that has followed from the first bail application casts doubt on whether the statement, in fact exists, at least in a written form.  And if a statement is not available in a written form, given the time that has elapsed since the killing, that casts serious doubt on whether Witness A is a cooperative witness and is likely to give evidence in accordance with what police have said is the evidence that Witness A can give.
6. [6]
   Counsel for the Crown properly and candidly conceded to the Court that without the evidence of Witness A, the Crown case against the applicant on the murder charge is unlikely to be able to proceed at least on the state of the currently available evidence.  The Crown was invited at the hearing of the second bail application to produce Witness A’s statement to me on a confidential basis without the applicant or his legal representatives being able to view same and without waiving public interest immunity in the document.  It did not do so.
7. [7]
   I indicated to the Crown that absent the statement being produced in that way, I would infer it did not exist in a written form.  No statement from Witness A was produced.  I draw nothing from the fact that the applicant is yet to formally challenge the claim for public interest immunity made in respect of any Witness A’s statement, as it is entitled to do so.  That does not seem to me to be relevant.  The point on this application is not whether the statement is properly protected by public interest immunity.  The issue is whether the Crown can or will produce the statement to allow a more fulsome assessment of the strength of the Crown’s case to be carried out based on the evidence it contends supports is case.  It has not.
8. [8]
   I consider, then, that in the circumstances where the first application proceeded on the basis of a mutual assumption that the Crown had a formal statement from Witness A – and I infer based on the evidence before me that there is no such formal statement, and I have indicated what I have said can be drawn from that – there has been a material change in circumstances relevant to the assessment of the strength of the Crown’s case, which is, in turn, relevant to the risk of flight.  I would conclude that that matter of itself is sufficient to constitute a material change in circumstances.
9. [9]
   Turning then to the second part of the application, it is then necessary for me to consider afresh the applicant’s application for bail.  The applicant is in a show cause situation.  The only issue for detailed consideration is the risk of flight.  There is no allegation by the Crown that the applicant is a risk of interfering with witnesses or committing further offences.  It is unnecessary for me to set out all the detail of the alleged offending or the arguments about flight risk.  They are set out in the decision in respect of the first bail application.  What I propose to detail is why I reach a contrary conclusion to Justice Cooper and will today grant bail to the applicant.
10. [10]
    First, for the reasons set out in respect of the material change of circumstances, the assessment of the Crown’s case at the present time on the murder charge based on the evidence that the Crown has furnished to me on this application must be described as weak.  The incentive for the applicant to abscond in light of that position must be low.  Even if the perjury charges have good prospects of success, and they may well do, certainly, the evidence in respect of some of the perjury charges appears to me to be strong.  I am informed by the Crown that the head sentence for that offending would be in the order of some 18 months to two years with a third required to be served.
11. [11]
    The applicant has already served some six months.  I’m not certain if that time would be declared in respect of perjury charges, but, regardless, in my view, even strong charges brought against the applicant for perjury do not result in an unacceptable flight risk.  My assessment of the strength of the Crown case on the murder charge as low is a very significant factor in my decision on bail.  Should in the future the evidence of the Crown become such as to change that assessment, then that could well be grounds for the revocation or variation of the bail that I propose to grant today.
12. [12]
    Second, in respect of surety, the surety offered does support the grant of bail.  The amounts offered are significant, although there is no suggestion that forfeiture of the surety amounts would be ruinous to any of the persons offering surety.  If not for my assessment of the strength of the Crown’s case as low, I would not have been satisfied with any surety offered by the applicant’s wife that, if forfeited, would see the applicant and his wife still retaining an expensive, unencumbered home.  That is, I would have required surety to have been at such a level that if the applicant absconded, his absconding would put that family home at risk.  In that way, I would have had more confidence that the type and level of surety offered strongly performed its objective to disincentivise the applicant from absconding.  But based on my assessment of the strength of the Crown case, together with the other factors I mention supporting the grant of bail, I am satisfied that the surety offered is appropriate at the present time. 
13. [13]
    Third, I consider the applicant is strongly connected to Australia.  His parents, siblings, one remaining grandparent, wife and four children aged one to eight years all live in Sydney.  He has an apparently successful business that requires his presence to run.  He financially supports his family.  He has travelled overseas many times since the killing, on each occasion returning back to Australia.  There have been no prior breaches of bail, although I should note that the applicant’s very limited criminal history means there is only very limited instances of the applicant having previously been subject to bail.  Whilst there is evidence of an international plane ticket being purchased for the applicant shortly after the killing and the applicant applying for a passport, both of which are of some concern, he did not, in fact, leave the country at that time, which does lessen the weight to be given to that evidence.
14. [14]
    Fourth, insofar as police in opposing bail have sworn to various and often generalised matters based on hearsay from anonymous sources, including undisclosed intelligent reports, and have given evidence in the nature of opinion evidence, whilst that evidence may well be admissible in this type of application, it would not be appropriate to accord it much weight.  That is particularly so where this is the second bail application, and the Crown has now had a second opportunity to place some more weighty evidence going to such matters if they propose such matters be acted on by me to any significant extent.
15. [15]
    Fifth, in respect of the proposed bail conditions that have been provided by the applicant, I consider that those bail conditions are appropriate.  Reporting once a day is appropriate.  I will not require a monitoring device to be worn. 
16. [16]
    The risks associated with the applicant’s release on bail can be ameliorated to an acceptable level by the imposition of the above bail conditions.  The applicant has demonstrated that his continued detention is not justified.  I make an order in terms of the draft initialled by me and placed with the papers.
17. [17]
    Adjourn the Court till 10 o’clock.