Toksoz [2015] NSWSC 1234

• Applicant awaiting trial for serious offences – show cause circumstances include death of brother while applicant on remand and refusal of authorities to permit attendance at funeral: at [15]

[16] The other evidence before me, which includes an affidavit of his mother and an affidavit of another brother, provides cogent evidence that this is an extremely close family and I accept that the inability of the applicant to attend the funeral created exceptional hardship. As his mother put it:

“Being in custody has been extremely difficult for him. His brother, Tolga Toksoz, 21, with whom he was very close, passed away this year, while he was in custody. He was denied access to attend the funeral. He was extremely upset about Tolga’s death and naturally remains so. He is upset not only at his passing, but also at not being able to grieve when family (this continues to today). He feels upset on a continuing basis that he did not have closure in seeing his brother before his burial and saying good bye. Ahmed is religious. In our religion it is important to farewell the spirit. Also, in our religion, the body is wrapped in cotton cloth and buried in the soil. It is only the immediate male relatives who are allowed to carry the body and bury a deceased family member. The applicant feels he failed in his duty to carry his brother’s body. He has recounted to me many sad dreams where he has been unable to say good bye to his brother, and had other dreams of burying him. He tell me he prays daily for his brother. I know his anguish would exist even if he were on bail now but it is has been and continues to be worsened by his incarnation for the reasons above and his failure to do his duty at the burial. I know he will carry that with him for the rest of his life. His unhappiness is compounded by his continued separation from us as we are all still grieving for Tolga.”

• Combination of delay, weak Crown case and exceptional personal hardship satisfies show cause requirements under ss 16A and 16B Bail Act – bail granted