New South Wales District Court CITATION: R v Lever, Peter Benjamin [2008] NSWDC 228 HEARING DATE(S): 30/07/2008, 29/08/08, 02/09/2008 and 03/09/2008 JUDGMENT DATE: 3 September 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Application to vary bail refused. CATCHWORDS: Criminal Law - Bail Application - vary bail to permit accused to leave jurisdiction for humanitarian purposes - deliver medical supplies to remote region in Thailand - civil disruption in Thailand - areas effected - accused's rights once bail granted - general liberty subject to prescribed bail conditions - primary purpose of bail - guarantee accused's attendanceat court - tensions resolved in accordance with primary purpose. LEGISLATION CITED: s.7 and 32 Bail Act 1978 PARTIES: Regina Peter Benjamin Lever FILE NUMBER(S): 2007/16156 SOLICITORS: CROWN: Mr Walkowiak DEFENCE: Mr Miller JUDGMENT Application to vary bail conditions. HIS HONOUR: 1. Peter Lever has been charged with falsely and deceitfully impersonating his father and thereby transferring the father's interest in a certificate of title to himself. He is also charged with two counts of dishonestly obtaining loans from the NAB, as I understand it, by using the certificate of title as security. On the Crown case, Mr Lever fraudulently obtained in excess of $680,000. 2. The initial two offences are said to have occurred in about May 2003. The third is said to have occurred some fifteen months later. 3. The first court attendance notice appears to have been received at Waverley Court on 26 August 2006. Other charges appear to have been filed on 30 March 2007. 4. On 19 July 2007, the applicant made application to waive his right to a committal hearing in respect of the three charges he was then facing. He was committed for trial on the present charges on 27 July 2007. 5. The matter was first listed in this court on 10 August 2007. To that point, the applicant had been on bail. His bail conditions included reporting to police. The reporting conditions were deleted on 10 August 2007. 6. The matter was before the court a fortnight later, on 24 August, then on 14 September, then on 28 September 2007. On this date it was set down for trial on 7 April 2008. 7. An indictment was filed on or about 2 October 2007, however, there is no record of the applicant being arraigned on that indictment. 8. On 3 April 2008 a fresh indictment was filed. There, again, is no record of the applicant being arraigned on that indictment. 9. On 7 April 2008 the Crown sought to have the trial dates vacated. The Crown was not ready to proceed. Indeed, it was decidedly unready to proceed. The Chief Judge granted the Crown's application to vacate on an undertaking the Crown pay two day's legal costs at Legal Aid rates. A new trial date of 21 July 2008 was set. The trial was estimated to take ten days. 10. On 21 July the matter was stood over for two days to 23 July. On that date a fresh trial date of 24 November 2008 was set. The file note of 23 July reads: "Vacate T.D. 23/7/08. Def appln caused by Crown. Trial date fixed to 24/11/08." 11. The defence concern was late service of a further ten statements from witnesses or a number of new witnesses and updated statements, compiling ten, (it is difficult for me to tell from the material before me). That service started six days before the trial was listed to commence and continued after the trial date had been reached and passed. 12. At the present time it is intended that the trial proceed on 24 November 2008. 13. A significant feature of this case is that the applicant has been bailed since his arrest on 28 March 2007, a period of seventeen months. Application to vary bail. 14. On 5 December 2007 an application to vary bail was refused. That application would, if I understand the situation correctly, have seen the applicant permitted to travel to Thailand to deliver medical supplies. The medical supplies were destined to be delivered to the Mae Tao Clinic. The Mae Tao Clinic is a clinic providing free healthcare for refugees, migrant workers and others who cross the border from Burma to Thailand. This application was refused. In essence, it has been renewed before me. 15. The application commenced before me on 30 July 2008. It was put over to a date to be fixed because, although the application was partly advanced, there was evidence lacking specificity. Rather than giving a ruling then, adverse to the applicant, it was put over to allow more clear-cut arrangements to be made. 16. It resumed before me on 29 August 2008. With the other business of the court, it was not commenced until after 4pm on that date and, consequently, had to be adjourned, near 5 o'clock, to 2 September. On 2 September it was adjourned, at the request of the defence, until this afternoon. The nature of the application. 17. The items the applicant seeks to export to Thailand and, indeed, to the Mae Tao Clinic there, constitute supplementary medical supplies. There can be little doubt their receipt in Thailand would be warmly welcomed and of significant utilitarian value. But they could not be described as lifesaving medicines or of essential importance. 18. The applicant has a long-established interest in Thailand. Indeed, it was while he was in Thailand in August 2006 that he became aware, through his then wife, that he was to be charged with fraud. He returned to Australia in the same month. 19. The applicant's case is that he voluntarily contacted police and made appointments to talk to them. He has appeared in court several times and, in particular, on the two dates arranged for trial. 20. On 30 July this bail application was launched. It seeks the return of his passport and, in effect, the sanction of the court to his leaving the jurisdiction. 21. The community ties that the appellant has can conveniently be started with his income stream; that comes from a New Start allowance. His accommodation, although described as an apartment, is not secured by him by means of a lease. In fact, he has been given access to it rent free. 22. His girlfriend of two years is a Thai national who says she is willing to surrender her passport whilst he is away. She is in the process of applying for permanent residence. Currently, she is on a bridging visa that I have assumed does not permit re-entry. She works at Tropicana, a position that she has held for two years. 23. The offences charged involve circumstances that see him estranged from his family of birth. So far as I can discern from the evidence, he has no financial assets either here or in Thailand. His fares to Thailand, and return, are covered by frequent flyer points. His incidental expenses are covered by a benefactor who has supplied a reference in his favour to the court. 24. Documents tendered on the second hearing establish arrangements have been made to shift the goods palletted, four of them, to Bangkok on 5 September or within a day or two of those dates. No shipping fee is to be charged. Consequently, there is uncertainty about the date of their shipping but I accept the evidence provided, that if they were not shipped on 5th their shipment to Thailand would be within forty-eight hours of that date. 25. His itinerary indicates a booking, in exchange for the frequent flyer points, has been made for his arrival in Bangkok on 8 September. There is proof of a two-passenger truck being retained for hire to transport the items from Bangkok to the Mae Tao Clinic. 26. It is considered necessary to chaperone the goods, lest they be stolen or pilfered en route through Thailand. A customs agent has been retained to secure the goods in Thailand, upon arrival. Export entry advice has been filed with Australian Customs. While there are still some final details to be attended to, I am satisfied that the delivery of these medical supplies by the applicant is a bona fide attempt by him to oversee the arrivals of the goods at Mae Tao Clinic. 27. During the applicant's time on bail there has been no report of any breach, including in respect of the reporting conditions earlier imposed. 28. The Crown's concern initially centred upon the likelihood of the applicant's return from a foreign jurisdiction; the possibility of flight to Burma from Thailand; the availability of an extradition treaty to ensure the return of the applicant to the jurisdiction and the necessity of delivering the goods or, alternatively, the availability of others to accompany this cargo. 29. On the resumed hearing on 2 September the court raised its concern, given the current situation in Thailand. As a consequence, the parties were given an opportunity to obtain further evidence. 30. On behalf of the Crown, Exhibit 15 was tendered, a travel advice for Thailand prepared by the Australian Department of Foreign Affairs and Trade. Of concern to me were a number of items in the summary, in these terms: "We advise you to exercise a high degree of caution because of the high threat of terrorist attack. We continue to receive reports that terrorists may be planning attacks against a range of targets, including tourist areas and other places frequented by foreigners. * pay close attention to your personal security at all times... * travellers should exercise a high degree of vigilance at this time because of large, ongoing, political demonstrations which are taking place in Bangkok and other parts of Thailand. The demonstrations have been disruptive and have blocked access to key buildings and roads. There have been some isolated instances of violence and further violence cannot be ruled out. The demonstrations have disrupted some rail and air services. At present all airports are operating normally after some were closed by demonstrators between 29 and 31 August." There was advice in respect of not travelling south but I need not worry about that in light of the terms of this application. 31. Under a heading on page 3 of Exhibit 15, "Civil Unrest/Political Tension", is a subheading "Border Regions": "There is ongoing fighting and banditry along some sections of the Burma/Thai border. This includes fighting between the military and armed opposition groups, as well as clashes between Thai security forces and armed criminal groups, such as drug traffickers. Bandits may target foreign travellers travelling through national parks or border regions." 32. Of course, to those involved in this hearing, it would be recognised that the Mae Tao Clinic is very close to the Thai/Burma border. 33. Exhibit 16 is a map of Thailand which has marked on it, with an "X", the area that the applicant seeks to travel. As I look at the Thai map, Bangkok actually is a convenient halfway point between the southern regions, where much of the trouble in the south appears to have occurred, and the northern point where the accused is seeking to travel. 34. Today, Lachlan Burnet was called. He is a sales executive with Wendy Woo Tours. He conceded, at the outset, that he was acquainted with the accused for a period of some two years. His value to the applicant's case was that he had been in Thailand for some seven years, five of them as a tour guide and two as a human resources manager for the Intrepid Travel tour group that he was with, based in Bangkok. 35. He gave evidence of extensive travel throughout Thailand, including the area where the accused wants to go. He was upbeat about the prospects of the applicant being able to deliver the drugs and return to Bangkok without incident. Some of that upbeatness can be explained from his past experience, including a previous coup a couple of years ago and the level of disruption to the community that he observed. Frankly, he said that it was non-existent. Part of his upbeatness was on the accessibility of appropriate highways of appropriate quality to reach the destination and back within the given time. He was adamant that the new Bangkok airport had not been closed during any of the unrest of the last week or so. 36. The unrest, he says, from his knowledge of sitting and reading of reports, is confined to the western side of the city where the Prime Minister's residence is, rather than the eastern side. Mr Burnet felt there was little need for anyone destined, as was the applicant, to travel to the western side. He did concede, however, that while he did not anticipate any impediments to the accused's travel, he could not, with certainty, predict future events in time. 37. He had made available to the court an update about the situation in Thailand on Tuesday 2 September at 2pm. He noted that 2pm Thai time was 5pm our time yesterday. 38. Of significance here is that during the weekend there were demonstrations in other parts of the country and it seems that is itemised as marching to the airports in Phuket, Krabi and Hat Yai and occupying them. The three airports had to close and were all re-opened by Sunday afternoon. 39. He speaks of the pro and anti government protestors clashing at Government House on 1 September. The notice acknowledges the emergency decree being issued, placing the Thai army chief in charge, and applies for Bangkok only. There was interference with domestic train services that was caused by unions asking staff to take sick leave for the purpose of joining the protests; whether pro or against the government is unclear from this. 40. At least so far as Asian Trails, the tourist company that was his contact in Thailand were concerned, they were able to transport their clients overland by bus. The report concludes: "Only clients who have booked train services are affected by the political tensions. Life in other parts of Bangkok and Thailand, except around Government House area, is normal." His evidence was that Wendy Woo's were continuing to conduct tours to Thailand. 41. Before dealing with the Crown's concerns, it is important to evaluate them against the prism of an accused's rights once bail has been granted. 42. Subject to other provisions of the Bail Act , for example, s 32 concerns, the broad concept of granting bail is to ensure that an accused person appears before the court in accordance with his bail undertaking. Once satisfied of that proposition, an accused is entitled to remain at liberty (s 7 of the Bail Act ), subject to any conditions that appear on his bail undertaking. 43. The concept of liberty is a freedom to move about the community and make life choices as any other citizen can. The difficulty in this case is balancing the tension between liberty and ensuring the accused's attendance at court by relieving him of one of the conditions of his bail, at least temporarily, which is the surrender of his passport. Thus, that others could do tasks the accused sets out to do is a matter I would normally give great weight to. True, his not doing them would keep the accused within the jurisdiction but it would not resolve the real issue the Crown must deal with, that is the likelihood of his failing to appear. That the goods are non-essential, likewise, faces the same problem; that was the Crown's second point. 44. It makes delay of their delivery easier to contemplate but it does not deal with the real issue. His liberty entitles him to make choices such as delivering goods to Thailand, subject to the availability of his passport. Why should he be denied the choice, in circumstances where a court has no reason to find in the evidence that he would not appear in answer to the bail? 45. The Crown is concerned with the possibility of flight across the Thai/Burma border. The only evidence in support of that proposition is one of geographical proximity, that is, of opportunity. There is no evidence the accused's passport contains a visa or entry permit into Burma; indeed, my understanding of his evidence is that it does not. There is no evidence of any past association with Burma or with Burmese contacts. There is nothing in the evidence which suggests any links with or interests in Burma. The applicant disavows any intent to flee to Burma or any capacity to do so. 46. The parties agree now that an extradition treaty exists between Thailand and Australia. The position is not likely to be the same in respect of Burma. While I cannot speculate, I certainly start from the position that there is no existing extradition treaty between Australia and Burma. 47. The accused's background is one of growing up in New South Wales. His father is deceased; his mother and siblings, as best I can glean, still reside here. He has two boys from his marriage. He has a number of friends and associates in this country, several of whom have written in support of him. I regard his relationship with his present partner as a valid link to Sydney. I regard his accommodation arrangements as temporary and fluid and, thus, not in his favour on the application. 48. His criminal antecedents see him before the Children's Court in 1980; the Local Court in 1985; 1987 on two occasions and then in 1995. He was sentenced to imprisonment in 1987 for twelve months with a four month non-parole period. 49. It would appear from his antecedents that he had a serious drug addiction problem for at least the mid-80s. On each occasion he was required to be at court, his record suggests he attended. 50. There has been no suggestion in the hearing before me that he presently has issues with drugs. 51. I regard the prospects of conviction as well on the cards. In the event of a conviction a period in custody is likely. Given the sum involved and its impact upon others, the period is likely to be substantial, measured in years rather than in months. On the other hand, the penalty is unlikely to be one that could be described as crushing. The Crown has not sought to rely upon any specific evidence evincing an intention or likelihood that the applicant would not attend court. 52. I am satisfied the applicant does intend to return to Australia for the purposes of answering the charges. The real issue in this case is whether I can be equally confident circumstances will permit him to do so. Bangkok, the first city he is destined for in Thailand and the last he is required to depart from, is currently under a state of emergency. 53. I have read the Department of Foreign Affairs observations, as given in yesterday's hearing. Today they reiterate much of what was said earlier but with this additional comment. "While most airports are now operating normally, the situation remains unpredictable and further disruptions to transport services and infrastructure could occur at any time. Increased security measures at airports could also cause delays." 54. As I remarked during the submissions yesterday, I am conscious s 32 of the Bail Act requires the court to take into consideration the interests of an applicant to be free for any lawful purpose. Sometimes, giving effect to that requirement, may cause tension with the equally prominent requirement that the court gives consideration to the probability of whether or not the applicant will appear. 55. Where a tension exists between the exercise of liberty and attendance at court, the balance required by the Bail Act is to give priority to attendance at court. While the full exercise of liberty may require the courts, on occasions, to recognise and, if necessary, give enforcement to life choices that involve risk taking, the requirements of the Bail Act requires the Court to make more conservative choices to ensure that persons attend courts. 56. It is clear that I have had some difficulty coming to a decision in this matter but, in the end, I must determine it relying, primarily, upon the information advised by the government department rather than the information provided by the tour employee. 57. I have recognised that there may be an unintended bias by one involved in the tourist industry in Thailand but, even if I put that bias to one side and accepted his evidence, it still seems to me that I would have come down on the side of the government agency's assessment. The whole purpose of the government agency's assessment is to give reliable advice not just to tourists but those of us in other positions who rely upon it. 58. The order of the court is that the application is refused. 59. I will have this judgment published as quickly as I can, in the event that you want to take it further. I have set out the whole reasoning process so if it needs to be challenged, it can be challenged. I order that the judgment, bearing in mind the time constraints, be made available as soon as possible. 60. I suppose I should formally order that the bail continue on its present terms. 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.