Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98 Hearing dates: 9 February 2022 Date of orders: 9 February 2022 Decision date: 09 February 2022 Jurisdiction: Common Law Before: Dhanji J Decision: Bail granted with conditions. Catchwords: CRIMINAL LAW – release application – show cause obligation – cause shown – charge of attempting to possess a commercial quantity drug – heroin – very large importation – bail concerns and unacceptable risks – surety – electronic monitoring – bail granted with strict conditions Legislation Cited: Bail Act (2013) (NSW) Cases Cited: Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 32 M v R [2015] NSWSC 138 Category: Principal judgment Parties: Wade Habkouk (Applicant) Commonwealth Director of Public Prosecutions (Respondent) Representation: Counsel: G James AM QC (Applicant) N Evans (Respondent) Solicitors: John B. Hajje & Associates (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2021/334599 Publication restriction: Nil ex tempore Judgment 1. HIS HONOUR: Wade Habkouk, to whom I shall refer as the applicant, has made an application for his release pursuant to s 49 of the Bail Act 2013 (NSW). 2. The applicant is currently 29 years of age, having been born on X XXXX 1992. He has been in custody since 3 September 2021, as a result of his arrest in relation to a charge of attempting to possess a commercial quantity of an unlawfully imported border control drug, the particular drug being heroin. 3. The Court Attendance Notice provided with the Crown materials does not specify a quantity, although the cover sheet of the material sets out the charge particularising the amount of the drug as 347.9 kilograms. I have been advised that that amount refers to the entirety of an importation. 4. I have further been informed that it is not alleged that the applicant was responsible for the importation, but rather, the Crown case is that he attempted to obtain possession of some portion of it, approximately one half. The result of that is that the amount of heroin involved is in the order of 175 kilograms. 5. Be that as it may, it is fair to say that that is, even at approximately half the amount initially indicated, a very large quantity of a border controlled drug. It is clearly many times in excess of the commercial quantity of that particular drug, the commercial quantity being an amount of 1.5 kilograms. 6. The maximum penalty for the offence is imprisonment for life. It is clearly when one has regard simply to the charge and the quantity an extremely serious offence. 7. In terms of this application, and related to the seriousness of the charge, is the fact that it is a matter to which the show cause requirement in s 16A of the Bail Act applies. The result of that requirement is that the applicant must show cause as to why his detention is not justified. In the event that he is able to show cause, he must still satisfy the unacceptable risk test in the Bail Act before he can be released to bail. 8. The Act does not, at least in express terms, provide the content of the show cause test. Various propositions emerge from the cases. The presumption of innocence and the right to be at liberty remain fundamental common law principles. That can be seen in the preamble to the Bail Act: see also M v R [2015] NSWSC 138. 9. Matters relevant to the unacceptable risk test remain relevant to the show cause test, but are not, in the case of the show cause test, the exclusive considerations: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 32 at [20]. 10. In determining the content of the show cause test, it has been observed that the word "justified" is conspicuously open textured: see Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 at [85] per Leeming JA. His Honour noted that some content is given to the expression by considering how the legislature anticipated that the test would be applied, that is, by persons, and ultimately if bail is initially refused, by courts, familiar with the basic principles of the Australian legal system. That is, save for a very limited time, and after the refusal of bail by a police officer, the determination will be that of a court. 11. In considering this matter, a number of particular factors are relied upon in relation to the show cause test. Whilst attention is necessarily given to particular matters relied upon, it is ultimately an evaluative exercise, and those particular submissions are to be viewed in the context of the overall factual matrix, both with respect to the Crown case and the various subjective matters relevant to the determination of bail. 12. In that context, it is convenient to say something at the outset as to the strength of the Crown case. It is submitted on behalf of the applicant that the case is a weak one. In terms of the factual circumstances, there appears to be relatively little room for contest about the factual matrix underpinning the Crown case. 13. In that regard, it seems reasonably plain that there was a very large importation of heroin into Australia concealed within two machines described as vertical mixers. On the Crown case, at the centre of arrangements with respect to that importation, was the applicant's brother, Mr Guy Habkouk. 14. The shipment was inspected by authorities. Heroin was discovered and removed. The authorities then stepped back, allowing the importation of the mixing machines to take its course. 15. Arrangements were made for the machines to be delivered to various storage locations. At one point, the shipment was split as between the two mixers, each of which had initially contained approximately half of the heroin. One of the mixers was delivered to a location in Hornsby. That occurred on 10 February 2021. 16. On that day, the applicant is alleged to have attended the unit to which the item had been delivered. It is further alleged that he was in possession of a hard case which the Crown alleges contained counter surveillance devices, it being the Crown case that he was attempting to determine whether there was police interest in the consignment. 17. The surveillance continued, and ultimately there appears to have been two periods of time when the applicant was observed by surveilling police to have been alone in the unit, during which time sounds of metal being cut were heard. On the Crown case, the applicant cut open the mixing machine expecting to find the heroin which had previously been concealed. 18. It is the Crown contention that the only reasonable inference available, in circumstances where the evidence, it says, would prove the applicant cut open a valuable piece of machinery, is that he was expecting to find what had originally been contained, that is, the heroin. 19. In my view, the inference that the applicant had gone to the premises, cut open the item expecting to find what had originally been secreted there, is extremely strong. That would, subject to one matter which I will come to, suggest a very strong case. 20. That one matter is a submission made on the applicant's behalf by Mr James QC. His submission, as I understand it, is that the substance having been removed, the applicant cannot, in law, be guilty of attempting to possess a border controlled drug. 21. I am told that this issue has not previously been determined. That is somewhat surprising, given the very large number of cases involving quantity of prohibited drugs, where the drug is replaced with an inert substance, and an offence of attempt is charged. Certainly, there are many authorities dealing with the area of impossible attempts. As I understand the authorities, the applicant cannot succeed simply on the basis that what he attempted to do was impossible. 22. In those circumstances, I gather Mr James' argument is more nuanced, and includes a difficulty of proof of the mental element, that is, as I understand it, it is contended that the applicant could not have intended or have been reckless with respect to the identity of the substance because there was no substance at all. 23. As I have indicated, the argument that is anticipated will be brought on behalf of the applicant has a degree of novelty. It is difficult to make a thorough assessment of its prospects in the context of an application such as this, and indeed, it is probably inappropriate that I do so. 24. That said, I must make some assessment of my view of the strength of the Crown case. Ultimately, I am of the view that, whilst the point may be arguable, my initial impression, and it is no more than that, is that the prospects of success of that argument are not high. 25. If that argument is rejected, as I have already indicated, the factual substratum of the case is such that I would regard the Crown case as, subject to this legal argument, extremely strong. 26. One thing the authorities do make clear, however, is that the determination of the show cause test is not based simply on the strength of the Crown case, and that an applicant for bail may show cause despite the strength of the Crown case. 27. There are other factors at play in relation to this case. There is, firstly, the issue of delay. The applicant submitted that, given the nature of the point to be raised, it was anticipated that there would be an argument at the committal stage, and that this would inevitably delay committal proceedings with a consequent delay in any trial date being obtained, in the event that the argument at committal was unsuccessful. 28. Despite that submission, it does not appear to me that there is any capacity to ventilate this argument before a magistrate under the current committal regime; nor, given the nature of the argument and the evidence in the Crown case, does it appear likely that there would be utility in any application or order made in relation to the calling of witnesses at committal for cross-examination. 29. In making that comment, I should add that I have not heard any such application, and not heard any submissions in support of it. Certainly, that comment should not be relied upon before any magistrate, before whom any such application is made. It is simply an observation on the material currently available to me and on the arguments currently put before me. 30. The point for the purposes of this decision is that it would appear to me to be unlikely that the committal proceedings will be delayed beyond their ordinary course. 31. That is not to say that the overall delay is not substantial, or likely to be so. The reality is that, even without applications at the committal stage, the matter is not going to be back before the Local Court until 6 April 2022. If the matter were to be committed on that date, it would be before the District Court with a mention date in May of this year. 32. In those circumstances, and having regard to the information obtained by the applicant's solicitor, it does appear, and indeed was realistically accepted by the Crown to be the case, that the earliest date that could be hoped for with respect for a trial would be in early 2023. 33. If things progressed as anticipated, that would be a period of approximately 18 months in custody, from the time of the applicant's arrest in September of last year. That is a substantial period for a person to be in custody awaiting trial. 34. The present pandemic also has a significant role to play in assessing the significance of that delay. The Crown very responsibly obtained and put before the Court material in relation to the impact of the pandemic on the Department of Corrective Services. 35. In the material provided to the Court, in a letter sent via email from Rani Young, Acting Director of Corrections Strategy and Executive Services for the Department of Corrective Services, Ms Young said, and I quote: "As at 31 January 2022, the Metropolitan Reception and Remand Centre (MRRC) remains significantly impacted due to the number of staff isolating inn(sic) relation to COVID-19. While this has slightly improved, it is likely that the number of positive inmate cases will continue to increase until a peak is reached, and the number of staff isolating may be affected by the resumption of the school term and the steady prevalence of the virus in the community, with 13,026 locally acquired cases reported on 31 January 2022." 1. The letter goes on to say: "The Omicron variant continues to have a significant impact on CSNSW's operations. Currently, there are hundreds of CSNSW staff who cannot attend the workplace due to COVID related issues. These staff absences impact directly on CSNSW's ability to implement expected correctional centre services and routines including transporting inmates for court appearances. Staffing at our main reception centres MRRC and Silverwater Women's Correctional Centre (SWCC) have been significantly impacted. The MRRC and SWCC are the central hubs for managing COVID positive inmates, placing additional pressures on these centres and staffing rosters." 1. I pause to note that the applicant is currently at the MRRC. 2. Those frank observations are reflected in the material provided on behalf of the applicant by the applicant's solicitor, who attests to difficulties reported by the applicant, in terms of him remaining confined to his cell for periods beyond the isolation period that was required, and additionally, difficulties in obtaining access to the applicant for the purposes of obtaining instructions. 3. It is obviously hoped that such conditions will not endure for any significant time into the future. It is certainly hoped that they will not endure for the entirety of time on which the applicant was likely to be on remand if refused bail. That said, it is difficult to predict just how long those conditions will continue. 4. The circumstances of the applicant's imprisonment to date and likely imprisonment at least into the immediate future are significant factors to be taken into account in determining whether the applicant has shown cause. 5. A further factor relied upon by the applicant is the fact that the conduct relied upon by the Crown occurred between 10 and 11 February. The applicant was not arrested until 3 September of last year, that is, there was a period of almost seven months during which the applicant remained in the community. 6. The applicant submitted that on the Crown case, he remained in the community knowing that the shipment must have been detected. It is not all together clear that he must have been aware of this fact. 7. Clearly, on the Crown case, he was aware that there was no heroin as had been intended in the shipment. Possible explanations for that absence could be law enforcement detection or alternatively that the importers of the substance had been, to use the colloquial expression, "ripped off". 8. It was, however, also the case that a search warrant was executed on the truck used to dispose of the mixing machine which had been cut open. It is not apparent from the facts as to whether the execution of that warrant on 16 February became known to the applicant. In the event that it did, it would certainly have indicated to him that the authorities were aware of what had been attempted. Either way, the involvement of the authorities must have been at least one explanation for the absence of the substance, and arguably the most likely. 9. The applicant therefore submits that his conduct, both in remaining in the community, and in continuing with his every day life, is significant. Also significant, it was submitted, is the fact that over that period, that is, from February through to September, no further evidence came to light against the applicant. 10. I accept the first aspect of the submissions. That is, the fact that he continued on in the community, despite an awareness of at least the significant possibility of detection by the authorities, is significant. 11. I also accept that too much weight should not be put on this factor given that, even if he believed the authorities had become aware of the enterprise, he was unlikely to be aware of the strength the case against him at that stage. Nonetheless, it does give weight to what has been said about the strength of his ties to the community. 12. In relation to the second part, that is, the absence of any further evidence being obtained, its significance is limited to this: it perhaps reflects a relatively limited involvement by the applicant in the enterprise, in the event that the Crown case is proved. That does not, to my mind, weaken the Crown case. It does, however, have some significance in terms of concerns with respect to the protection of the community. In other words, had the evidence suggested that the applicant was more significantly involved, or operating at a higher level, it would raise greater concerns with him committing further offences. 13. The matters that can be considered in the show cause test are not limited to the above. I also have regard to various other matters relied upon on the application, including in particular the applicant's ties to the community, the surety available, and the availability of electronic monitoring. 14. Those matters, of course, will have significance to the unacceptable risk test, but they do additionally play a part, in my view, as to whether the applicant has shown cause. Ultimately, having regard to all of those factors, I am of the view that the applicant has shown cause as to why his detention is not justified. 15. I move now to the unacceptable risk test. That requires me to assess the bail concerns in s 17, namely, the risk that the applicant will fail to appear, the risk of the commission of further offences, or the endangerment of victims, individuals or the community, or that the applicant will interfere with witnesses or evidence. 16. In relation to the last consideration, the statement of facts tendered on the application indicates, in the final paragraph, that the AFP investigation into the activities of Guy Habkouk remains ongoing, and there was significant risk to the investigation, including the loss, destruction or concealment of evidence in relation to the broader investigation, should the applicant be granted bail. 17. That is an indication of an opinion and the opinion of an officer who is, I accept, well placed to make the assessment. However, there is nothing stated as to the basis upon which it is alleged that this applicant, if released to bail, could pose such a risk, particularly if conditions are in place restricting him, including restriction on the use of telephone equipment. 18. But perhaps more significantly, that opinion has to be seen in the context of the fact that this importation occurred in February. It is now a full year later. There would need to be something substantially more concrete put forward to satisfy me that, in those circumstances, there was a risk of interference with witnesses or evidence. And indeed, no submissions were made specifically directed to that consideration. I do not regard any risk of such interference as being an unacceptable one. 19. In relation to the risk of non-appearance, that must clearly be a concern. As I have indicated, it is a strong case. If convicted, the applicant would inevitably face a lengthy term in custody. 20. Against that, he has, as I have indicated, strong community ties. He would, if granted bail, go back to the construction business for which he is responsible and which has been suffering in his absence. He is married and has a young child who I calculate to be approximately 18 months old. 21. He would be living with his wife and his parents-in-law. The equity in the home in which he will live is offered as security. As a result, his in-laws would be putting forward a million dollars secured against that property. The consequence of the applicant fleeing, it can be presumed, would be disastrous for his family. 22. Additionally, he is willing to succumb to conditions that would require him to be effectively under house arrest, only leaving in the company of his wife. He has arranged and will submit to electronic monitoring in order to enforce that condition and prevent his flight. 23. On that issue, the Crown put forward material from the AFP, New South Wales Police, and Corrective Services partly directed towards the potential ineffectiveness of such equipment, but substantially directed towards the difficulties for the authorities in monitoring such equipment, having regard to the resources involved. 24. That material has been put before the court in a form that is commonly seen in other applications where an applicant puts forward electronic monitoring as a proposed condition. That is despite what has been said by Beech-Jones CJ at CL in the Court of Criminal Appeal in the Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 at [8] and [9]. There his Honour said: "8. Fifth, some of the material relied on by the Crown before Hamill J and tendered on this application concerned the supposed inadequacy of electronic monitoring and the resourcing problem it represents for the Australian Federal Police ("AFP"). In that regard I repeat what I stated in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [26] to [44]. In particular, both the principles of equal justice and s 68 of the Judiciary Act 1903 (Cth) contemplate that, absent specific legislative provision to the contrary, if a person charged with a State offence can be released on bail and subject to electronic monitoring then so should a person charged with a comparable Federal offence (at [40]). Further the costs incurred by the AFP in monitoring a person on bail is simply part of the obligations that an investigative body assumes when it causes charges to be laid in this State (at [41]). 9. Otherwise, it can be accepted that electronic monitoring is not foolproof and is unlikely to be of much assistance in preventing some types of spontaneous nihilistic terrorist attacks (AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042). However, if electronic monitoring is of no assistance in monitoring terrorism suspects, then it is difficult to reconcile with the Criminal Code. One of the conditions that can be imposed on a person the subject of a control order under Division 104 of the Criminal Code is the "requirement that the person wear a tracking device" (s 104.5(3)(d)). Control orders are supervised by the AFP. The same requirements can be imposed under the Terrorism (High Risk Offenders) Act 2017 (NSW) (s 29(1)(h)) and frequently are. They are commonly imposed under the Crimes (High Risk Offenders) Act 2006 (NSW) (s 11(1)(e)). At some point, the courts are entitled to receive some consistency in the approach taken by the various agencies to electronic monitoring as it applies to pre and post-conviction supervision." 1. I accept, as his Honour, Beech-Jones CJ at CL did, that such monitoring is not foolproof. Nonetheless it is, in a case such as this, in my view likely to be an effective deterrent to any attempt to flee the jurisdiction. Ultimately, while no risk can be eliminated, I am of the view that the risk of non-appearance is not unacceptable. 2. In relation to the commission of further offences and the danger to the community more generally that is again necessarily a concern having regard to the very serious offence allegedly committed and the obvious dangers to the community if the applicant was to engage in such conduct - potentially leading to significant quantities of drugs being made available to the community. However, I am also of the view that whilst it is a serious allegation and clearly even involvement over a period of two days will, if proved, result in a significant custodial sentence, it is nonetheless the case that the applicant's role in the enterprise was a limited one. 3. Further, the applicant's position will be significantly different to that which pertained at the time this offence is alleged to have been committed. That is, he will be on bail and under very strict conditions. Again, whilst the risk cannot be eliminated, I am not of the view that there is an unacceptable risk that knowing that he is on bail, knowing that he is the subject of scrutiny, the applicant would be so bold as to attempt to engage in anything like the conduct involved here. 4. In making that assessment I also have regard to his criminal history. Whilst that history does show an earlier offence in relation to robbery, that is of some age. There is nothing else on the record that would give rise to particular concerns in this case. 5. That being the case I am of the view that there are not any unacceptable risks when regard is had to the various conditions that are available. I am therefore required by s 20(1) of the Bail Act to grant bail. I do so on the following conditions. 1. To be of good behaviour. 2. To live at XX XXXXXXX XXXXXX, Hornsby NSW 2077 and nowhere else. 3. To report to XXXXXXX Police Station daily between the hours of 8 am and 8 pm. 4. To appear at Central Local Court on 6 April 2022 and thereafter as required. 5. The applicant is not to be absent from the address at which he is required to live except if he is in the company of Mrs Rebecca Habkouk or to attend court or for the purposes of a prearranged conference with his legal representative at Suite XXX, XXX-XXX XXXXXXXXXX Street, Sydney NSW 2000. In the event that he is to attend for such a conference he is to travel directly to that location and return directly to the premises at which he is required to reside. 6. Not to associate or communicate by any means (except through his/her lawyer) with [co-accused/witnesses] Guy Habkouk or Moutaze Baroudi, Ronel Prasad, Benhem Yekta or any prosecution witness. 7. To surrender his passport to an officer to the Australian Federal Police before he is released from custody. 8. Not to apply for any new passport or travel document. 9. Not to go within 500 metres of any point of departure from the Commonwealth of Australia. 10. The applicant is to have use of only one mobile telephone and to provide the OIC with the number of that phone, its IMEI number and any user password for it within 24 hours of acquiring it or resuming possession of it following release. The applicant consents and permits Police to check the content of and communications made on that telephone. 11. One (or more) acceptable person(s) is to deposit acceptable security as security for the payment of $1 million which he/she agrees to forfeit if the applicant fails to appear before court in accordance with the bail acknowledgment. 12. One (or more) acceptable person(s) is to provide an acknowledgment that he/she is acquainted with the applicant and that he/she regards the applicant as a responsible person who is likely to comply with the bail acknowledgment. 13. To present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy. 14. The applicant is not to use any encrypted form of communication. 15. That prior to his release the applicant is to have fitted and is to maintain in place thereafter a 24-hour electronic monitoring device provided by Attenti Australia Pty Limited. The applicant is to comply with all requirements such as to ensure that the device continues to operate properly as a tracking device with Attenti Australia Pty Limited. ********** Amendments 11 February 2022 - [65] - typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2022