A Supreme Court judge has been critical of prosecutors when granting conditional bail to a man left languishing in prison awaiting trial for serious crimes – for more than two years – in circumstances where he has been “denied access to his brief of evidence”.
Brisbane Supreme Court Justice Paul Freeburn last week granted Saleh Atasoy bail while awaiting trial for three separate groups of serious offences – including an alleged home invasion that involved violence while armed, kidnapping, grievous bodily harm, torture and robbery.
Atasoy, who mounted a failed bail application before Justice Peter Davis on 2 April 2020, mounted a fresh application for Supreme Court bail, revealing he had not yet had access to the prosecution brief of evidence and a real likelihood of “no trial on the horizon”.
On 13 December 2021, Atasoy filed his second application for bail in which he also sites other hardships, including being held in remand at Lotus Glen Correctional Centre near Mareeba in North Queensland, while his wife and three children reside in Brisbane.
Justice Freeburn, in a written decision published on Tuesday, said Atasoy contended there were several material changes in the circumstances since his failed bail bid before Justice Davis 2¼ years ago.
“The first material change comprises the delays. The delays are significant,” Justice Freeburn said.
“Already Mr Atasoy has been in custody since 17 February 2020. That is a period of 880 days, or two years and five months. The majority of that period is declarable as time spent in pre-trial custody.
“(Another) is that, despite the lengthy delays, Mr Atasoy still does not have access to his full brief of evidence.”
Justice Freeburn said it was conceded by the Office of the Director of Public Prosecutions (DPP) there were “notorious” difficulties associated with preparation of a defence case for a person held in custody.
“As a general statement that may be accepted,” he said.
“The DPP says … there have been administrative and procedural issues with (Atasoy) being given access to his voluminous material.
“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.”
While conceding there was “little doubt” the charges Atasoy was facing are serious in nature, Justice Freeman said he was prepared to grant bail with strict conditions.
Those conditions include Atasoy providing a $60,000 surety, reside at a specific address, obey a curfew between 5pm and 5am, report to police three days a week, have limited access to mobile phone use and wear an electronic monitoring device.
“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,” Justice Freeburn said.
“The risk of re-offending is lessened by the fact that Mr Atasoy has spent 2¼ years in custody.
“For three reasons, that custody has been arduous and may be regarded as harsher than usual punishment.”
Those reasons include the impacts of the COVID-19 pandemic, such as being unable to see his family, and being required to endure special confinement during lockdown periods.
“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,” Justice Freeburn said.
“Mr Atasoy has established that his detention in custody is not justified.”
Read the decision.