Towers v Director of Public Prosecutions (NSW) [2023] NSWSC 1181

Supreme Court New South Wales

Medium Neutral Citation: Towers v Director of Public Prosecutions (NSW) [2023] NSWSC 1181 Hearing dates: 29 September 2023 Date of orders: 29 September 2023 Decision date: 29 September 2023 Jurisdiction: Common Law Before: R A Hulme AJ Decision: Bail refused Catchwords: BAIL – undesirability of applications for release on bail to Supreme Court with no prior application in another court – liberty sought only to enable medico-legal examination for personal injuries claim in unrelated civil matter – novelty of an application for release with a condition to surrender in three months' time and apply for the bail to be revoked – question of power to grant bail on such terms – bail refused Legislation Cited: Bail Act 2013 (NSW) Category: Principal judgment Parties: Jonathon Towers (Applicant) Office of Director of Public Prosecutions (NSW) (Crown) Representation: Counsel: M Kiriakos (Applicant) K Gourlie, Solicitor (Crown)

Solicitors: Carmody Lawyers (Applicant) Office of Director of Public Prosecutions (NSW) (Crown) File Number(s): 260534/2023 Publication restriction: Nil

JUDGMENT 1. This is an unusual bail release application for two reasons. The first reason is it is the first application that has been made by the applicant to any court for bail. Section 66 of the Bail Act 2013 (NSW) empowers this Court to hear a bail application provided that bail has been refused by another Court, an authorised justice or a police officer. It has been, in my experience, the usual practice that an application is not brought to this Court until an application has been made unsuccessfully to either the Children's Court, the Local Court or the District Court. 2. The Crown said it seems to be an increasing practice that bail applications are being first brought to this Court after there has been merely a refusal of the bail upon arrest by a police officer. A partial explanation for it occurring in this case has been provided. Generally, it is a most unsatisfactory state of affairs that an applicant would make their first application for release on bail in this Court. The Bails List already provides a heavy burden on the work of the Common Law Division, particularly with the necessity for applications to be heard and determined expeditiously. 3. I shall come to the second reason this application is unusual shortly. 4. The applicant must show cause why his detention is not justified. That is both because he is charged with offences alleging the supply of a commercial quantity of drugs and because he is charged with offences that carry a maximum penalty of imprisonment for life: Bail Act, ss 16A and 16B. 5. He relies upon four matters to show cause why his detention is not justified. In the order in which they are addressed in the written submissions, they are the following. 6. Firstly, delay. The applicant was arrested in November 2022. The matter is still pending in the Local Court. It is next listed on 2 November 2023 for a case conference certificate to be filed. It is the expectation on that day the applicant will be committed to the District Court, either for sentence or for trial depending upon the outcome of the case conferencing process. 7. For a matter such as this, with complexity in the evidence and multiple accused who have been charged, a delay of about 12 months between arrest and committal is not unusual. It is unsatisfactory but it is, unfortunately, not unusual. If the matter proceeds to trial, on the information available to the Court I expect a trial would take place somewhere in the order of mid-2024 or, perhaps a little later. 8. The second matter relied upon is the need for the applicant to have his liberty. That is for a medical assessment to be conducted in relation to a claim that he wishes to pursue in respect of injuries sustained in a motorcycle accident in November 2020. There is a lot of material before the Court relating to this. It is contended on behalf of the applicant that a medico-legal examination is almost impossible to conduct in the circumstances where the applicant is in custody. Range of movement is a significant issue to be assessed and that is a matter requiring a face-to-face examination and is not something that can be done thoroughly by way of assessment by AVL. 9. There are said to be difficulties in arranging an in-person assessment because the applicant is being held at the Mid North Coast Correctional Centre at Kempsey. It was contended that there is a dearth of medical experts who might be available to attend upon the applicant at that venue. 10. The prosecution has made enquiries in relation to this and have suggested that there are remedies available but whether they are practical is argued by the applicant to be extremely doubtful. If the medico-legal examination cannot be conducted because the applicant is in custody, that will impede the matter progressing to the Personal Injuries Commission (PIC), and potentially being pursued in the District Court if that is perceived to be necessary. 11. There are, apparently, arrangements that can be made for matters out of time to proceed in either of those forums, but they turn on a matter of discretion as to whether a matter might be placed in what is called the "stood over" list in the PIC or whether leave might be granted in the District Court. If the matter is held up because the applicant has been imprisoned and has not been able to do things necessary for the pursuit of his claim, I am sure that would be a significant matter put forward in favour of discretion being exercised favourably towards him. I can only assume that the discretion will be exercised reasonably. 12. The third matter advanced is the role of the applicant. The applicant is alleged to have participated in a syndicate involved in the organised supply of drugs, evidenced by a number of sales of cocaine and MDMA to an undercover officer over a period of months in 2022. There is some inaccuracy in the Crown Case Statement about the description of the applicant's role and it appears he has been misidentified as the user of certain encrypted telephone messaging apps. The position is, however, that if he is not the person described in the Crown Case Statement as the author of certain encrypted messages, the Crown would contend that he is in fact a person at a more senior level in the hierarchy of this drug supply syndicate. That does not help the applicant. However, he contends that the correct position is entirely unclear. How it may all turn out remains to be determined but aside from his role, what is more incriminating for the applicant than the encrypted messaging is the physical surveillance that is said to show that the drugs supplied to the undercover officer were obtained from the applicant, and the money paid by the undercover officer was returned to the applicant. It seems to be alleged that he remained largely aloof from the physical acts involved in the transactions with the undercover officer. In that way it may be that he was at a more senior level and was more culpable than the others who were carrying out the more direct physical activities. 13. In any event, whatever the correct description of his role might be, none of this dispute about roles serves to exculpate him in relation to the alleged offences. 14. A fourth matter relied upon to show cause is that stringent conditions are proposed. They include that he live at a certain address; he is to report daily to police; he is to comply with a curfew; there would be restrictions on who he associates with as well as in relation to travel and access to technology and mobile phones; there would be an acceptable person, in the guise of his father lodging security in the sum of $925,000; and there will be an enforcement condition of the curfew and perhaps also in relation to a drug abstention condition, although I am not clear about the need for that. 15. There has been added a condition that he comply with electronic monitoring and that he apply to the court in three months' time for the revocation of his bail. This brings me to the second unusual feature of the application. Bail is only sought for a limited period of time. At the outset of the hearing today I queried the power of the court to grant bail but only for a set period of time, with a condition requiring the applicant to return to court asking that his bail be revoked so he could be returned to custody. This Court must grant bail if satisfied there is no unacceptable risk and must refuse bail if there is an unacceptable risk: Bail Act, ss 19 and 20. How can there be an unacceptable risk in three months' time if there is not one today? 16. Ms Kiriakos, counsel for the applicant, skilfully responded that the means by which this might occur would be that bail might be granted today on the basis that the proposed conditions of bail ameliorate the bail concerns sufficiently to amount to there being no unacceptable risks, but in about three months' time the applicant would be indicating to the court that he is no longer able to or prepared to comply with electronic monitoring. Withdrawal of his compliance with such a condition would then give rise to an unacceptable risk which would empower the court to refuse bail. 17. I say no more about that, apart from observing it is an unusual feature of the application that I have not encountered before. I am not saying it is an inappropriate way to approach bail; it is just unusual and I have not formed a concluded view about it. I will proceed to deal with the matter on its merits. 18. There are other matters put in support of the application. I will summarise them, perhaps not exhaustively. The applicant has a criminal history but no significant history of not appearing in court; it is emphasised that liberty is only sought for a limited period and for a limited purpose; there is, as I have indicated, the stringent conditions proposed that would mitigate all of the bail concerns; there is no relevant history of non-compliance with bail; the applicant is said to have strong ties in the community; it is acknowledged that the case is strong, but there is a question about role; and it is contended the applicant has no criminal associates beyond the alleged co-offenders in the matter. 19. An issue has been raised in the material and the submissions about whether the applicant was living beyond his means. He was surviving, seemingly, on insurance payments being made to him on a regular basis for loss of income since his motorcycle accident in 2020, but the Crown Case Statement refers to his possession of various cars, homes and other things of value. There is, however, a dispute about this which I do not consider I am able to resolve on the limited material before me. 20. In summary, these are serious matters, including multiple charges of offences with a maximum penalty of life imprisonment and others with a maximum penalty of imprisonment for 20 years. Both categories of offences also have standard non-parole periods of significant length, 15 years in the case of the former and 10 years in the case of the latter. The case against the applicant, based upon the physical surveillance, the evidence of the undercover officer, forensic evidence (for example, fingerprints on a bag containing drugs) and to some extent the context of encrypted communications that surrounds all of the alleged drug supply activity, provide the prosecution with a powerful case. The amount of drugs involved is substantial. The applicant is said to be the source of the drugs and the recipient of the proceeds. In the light of that, it is perhaps unsurprising that no application for bail has been made at any time in the Local Court prior to the specific, unique need that is now said to justify a limited grant of bail. 21. I acknowledge the favourable matters put generally in support of the application, but all of those matters are overwhelmed by the sheer seriousness of the offences alleged and the compelling case potentially incriminating the applicant. Upon conviction a substantial sentence is likely. 22. The bail concerns identified by the Crown are a concern about failing to appear in court, committing a serious offence and representing a danger to the community. I am satisfied that the first two matters are very real concerns, and if I needed to progress to the unacceptable risk test, I would find that they are unacceptable despite the conditions of bail proposed. However, because of the sheer seriousness of the matter and the powerful case against the applicant I am not satisfied that cause has been shown and the application for release on bail, even if only temporarily, is refused.