Magistrate finds unacceptable risk not mitigated in 'road rage' case bail proposal

Jay Daniel Phillip Egan, 37, of Brilliant Street, Bathurst, appeared before Magistrate Ellis in Bathurst Local Court via audio-visual link on Monday, where the release application was made.

Egan has been charged with drive recklessly, furiously, speed in a manner dangerous, enter enclosed lands without lawful excuse, possession of a prohibited drug and acquire a firearm while subject to a prohibition order.

His solicitor, Mr Johnson, for the ALS (Aboriginal Legal Service), gave the court some background on his client, saying he was an asthmatic who also suffered from anxiety and depression and was medicated for mental health issues.

He said his primary submissions for the show cause matter centred on the strength of the prosecution case.

"Respectfully, my submission is it's not a strong prosecution case," he said.

Mr Johnson said he made his submissions on the facts before the court, saying there was no identification made by anybody at all.

"Two witnesses in a vehicle allegedly had a firearm pointed in their direction, but did not make a positive identification of Egan or any other co-accused," he said.

Mr Johnson said in the absence of any identification by the witnesses, he submits that all it does is corroborate the vehicle is next to them.

"Police do not have identification on the driver or passenger or rear passenger of the vehicle, they simply identify three people exit the vehicle who are found at various locations," he said.

He said he was instructed Egan did not own the car, and there was no DNA from the firearm found in the vehicle.

"All things considered, it's not a strong prosecution case," he said.

Opposing the release application, police prosecutor Sgt Ferrier said while he accepted the police facts were vague, he submitted the alleged road-rage incident in Bant Street was not coincidental, rather a planned act, and it was his submission there was a criminal enterprise in that vehicle.

He said there was no evidence as to who the car was registered to but said "that does not weaken the case".

Magistrate Ellis said on the balance of probabilities, she was satisfied cause was shown.

She then asked Sgt Ferrier about unacceptable risk and bail concerns.

He said there was a risk of the accused committing serious offences, in addition to taking into consideration the protection of the community.

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Sgt Ferrier said the accused was someone already on parole for firearms offences, with a significant history of firearms offences, and said any bail conditions imposed would not address the bail concerns.

In response, Mr Johnson said this is a matter which will take a considerable period of time to resolve, with any DNA testing fraught with delay.

He said his client will spend considerable time in custody if refused bail.

Mr Johnson said if one considers his previous submission regarding the strength of the police case, there was a level of unfairness imposed on his client should he be refused bail.

He said his client was prepared to reside at his Brilliant Street home on a 24/7 curfew, and report to the Bathurst Police Station. He said it was one of the most stringent bail conditions the defence can offer.

He said should Her Honour not be of that opinion, the court could also consider conditions such as daily reporting, a residential condition, for Egan not to get behind the wheel of a car and have no contact with any co-accused.

"These would ameliorate any concerns," he said.

Considering the submissions, Magistrate Ellis said the "mention of DNA is a red flag as to delay".

However, she found that the strict bail conditions put forward by Mr Johnson for his client were not sufficient to mitigate the concern of unacceptable risk, and bail was refused.

The matter was adjourned to August 15 for mention, with the matter referred to the DPP (Director of Public Prosecutions).

A co-accused in the matter, Jack Mullins, 26, of Havannah Street, Bathurst, did not apply for bail, which was formally refused, with his matter put over until August 15.

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