Supreme Court New South Wales Medium Neutral Citation: R v RS [2011] NSWSC 103 Hearing dates: 23/2/2011; 24/2/2011; 25/2/2011 Decision date: 28 February 2011 Jurisdiction: Common Law Before: BUDDIN J Decision: The application for the review of the respondent's bail is refused Catchwords: BAIL - Crown application for review - conspiracy to import commercial quantity and supply large commercial quantity of pseudoephedrine - presumption against bail - assessment of strength of Crown case - probability that respondent will attend court - factors relating to the protection and welfare of the community - inordinate delay in bringing proceedings to finality - respondent's conduct whilst at liberty on bail pending review Legislation Cited: Bail Act 1978 Cases Cited: DPP v Basic [2008] NSWCA 361 Category: Principal judgment Parties: Regina (Applicant) RS (Respondent) Representation: Counsel: G Bellew SC/P McGuire (Applicant) G Turnbull SC/A Djemal (Respondent) Solicitors: Solicitor for Commonwealth Director of Public Prosecutions (Applicant) Martin Green (Respondent) File Number(s): 2008/250866 JUDGMENT 1This is an application brought by the Director of Public Prosecutions (Cth) (the applicant) pursuant to Part 6 of the Bail Act 1978 for a review of a bail determination made by Magistrate Pierce in the Local Court on 24 December 2010. His Honour granted bail to the respondent upon the following conditions: i To be of good behaviour; ii To report to the officer in charge at Manly Police Station daily between 8.00 am and 8.00 pm; iii To reside at [a specified address] and to be present within those premises between 8.30 pm and 6.00 am and to present himself to any police officer who calls to check his presence; iv Not to associate with or in any way attempt to communicate with nor engage in any communication initiated by others and his co-accused or Crown witnesses or any Crown witnesses in [specified proceedings]; v Not to go within one kilometre of any point of overseas departure and not to leave Australia; vi Not to apply for any new passport or travel documents during the currency of the bail; and vii That four acceptable persons enter into an agreement or agreements, and deposit security, to forfeit the amount of $1 million in total if the accused fails to comply with the bail undertaking. 2On 13 January 2011 Magistrate Huber varied conditions (ii) and (iii) so that the respondent is now required to report to Dee Why police station and to reside at a specified address in Warriewood. 3The respondent is charged with the following offences: (i) Conspiracy to import a border controlled precursor, namely a commercial quantity of pseudoephedrine between about 01/12/2005 and 25/09/2008. (ii) Conspiracy to supply not less than the large commercial quantity of a prohibited drug namely pseudoephedrine between about 01/12/2005 and 25/09/2008. (iii) Possess ammunition without holding a licence/permit/authority on 25 September 2008. 4The maximum penalty for the first offence is imprisonment for 25 years and/or 5,000 penalty units, for the second offence it is imprisonment for life and/or 5,000 penalty units and for the third offence, it is 50 penalty units. 5Committal proceedings against the respondent, and a co-accused, Adam Watt, commenced in April 2010 before Magistrate Pierce. After a week of hearing the matter was adjourned until July 2010 at which time the matter continued for a further 4 days. The matter was then adjourned until December 2010 for 3 further days. As befits the leisurely fashion in which the matter has unfolded, the proceedings have now been adjourned until 4 July this year for what is anticipated to be the final 4 days of the committal hearing. I was not provided with any explanation as to why it was not possible to secure earlier hearing dates. 6The respondent was arrested and charged with these offences on 25 September 2008. Bail was refused in the Local Court on 10 November 2008 but was granted by Grove J on 23 January 2009. However the Court of Appeal was requested by the applicant to review that decision and on 6 February 2009 bail was revoked. On 17 December 2009 Hoeben J refused a further application by the respondent for bail. The respondent thereafter remained in custody until, as I have said, he was granted bail in the Local Court on 24 December 2010. For completeness it may be observed that Magistrate Pierce refused the respondent bail on 11 August 2010. 7Section 8A of the Bail Act applies to the first two offences with which the respondent is charged. The principles which are to be applied in respect of that provision are well-settled. Indeed the Court of Appeal reviewed a number of the authorities when it revoked bail. I have had regard to those authorities in considering the present application. 8Section 48(3) of the Act provides that the present application shall proceed by way of rehearing with the consequence that evidence or information in addition to what was before the Local Court may be received and considered by the court. Indeed a number of fresh affidavits were relied upon in the respondent's case. 9It is common ground that an assessment of the strength of the Crown case remains a critical factor in the determination of this application. The essence of the Crown case was described in the following terms by Hoeben J: [It] alleges that the [respondent] was a principal in a conspiracy to import 210 kg of ephedrine into Australia. Although the importation did not ultimately take place, the nature of the substance and the intended quantity to be imported can be established from evidence gleaned from telephone intercepts and other means. In that regard, there seems to be strong evidence of a participation of one Adam Watt in the conspiracies regarding the 210 kg importation. The Australian conspirators were allegedly dealing with a Dutch syndicate. The contact point for the Australian end of the conspiracy was referred to by the Dutch as "Jerry". The Dutch syndicate was allegedly involved in the sale of drugs, which they sourced from the Congo. One shipment not destined for Australia was seized in Belgium where it was analysed and found to contain 300 kg of ephedrine. Aside from the 300 kg which was seized, the Dutch were expecting a further 210 kg from the Congo, which the Crown alleged was also ephedrine and was intended to be provided to the Australian conspirators. The shipment did not arrive as it was seized by Congolese authorities who corruptly sought a payment of money before it would be released. The Crown alleges that the overwhelming inference to be drawn from the available evidence is that the substance destined for "Jerry" was the same as that which was seized and analysed in Belgium. It seems to be accepted that the person Adam Watt is the person referred to as "Jerry" in the various conversations. It is apparent that Watt did not act alone. The Crown alleges that the other person was the [respondent]. 10The Crown case in respect of the respondent's participation in the conspiracy depends upon the drawing of inferences. Without intending to deal with the issue in a comprehensive fashion, as I understand the situation, the following matters assume particular significance: (a) the respondent's close association with Adam Watt; (b) the reference, by members of the Dutch syndicate, in the context of discussing Watt, to a person called "Ray" (which is the name by which the respondent is commonly known); (c) the fact that the respondent was observed meeting, albeit briefly, with members of the Dutch syndicate in Paris in October 2006; (d) the fact that the respondent met with Watt on 21 March 2007, at which meeting it was to be inferred given other evidence, that the respondent discussed with Watt the contents of a facsimile, which in turn contained details about arrangements concerning the importation; (e) the fact that for a period of time when Watt was overseas, the mobile phone which he was in the habit of using to communicate with a member of the syndicate continued to be used, and that it was to be inferred from all the circumstances that it was the respondent who was using it. 11Grove J expressed the view that he would not categorise the Crown case as very strong. By the time the Court of Appeal came to consider the matter the Crown had supplemented the material which it intended to present in its case. As a result, McClellan CJ at CL, with whom James J agreed, said that he considered the Crown case to be "strong". Hoeben J came to a similar view. More importantly, Magistrate Pierce, who has had the advantage of hearing the evidence as it has unfolded in the committal proceedings, when granting bail variously described it as being "strong" and "as not a completely overwhelming case but it is a pretty strong case". He had earlier described the case as "strong" when refusing bail on 11 August 2010. Moreover, counsel appearing for the respondent at the committal hearing conceded that it was a strong case. Counsel for the respective parties in this court sensibly acknowledged, given his Honour's advantage of having heard the evidence over an extended period of time, that it was appropriate to proceed upon the basis of his Honour's assessment of the strength of the Crown case. 12The respondent, who is aged 46, is presently residing with his wife and two young children in Sydney. Indeed, he was living with them prior to his arrest. He holds dual Australian and Croatian citizenship. He also holds both Australian and Croatian passports. The evidence shows that he has had access in the past to a substantial amount of funds although nothing was advanced to indicate that there was any legitimate activity that may have been responsible for generating those funds. The respondent also had, prior to his arrest, an extensive range of business and personal contacts in Malta, the United Arab Emirates, China and The Netherlands as well as in his native Croatia although there was no evidence to suggest that any of the businesses had proved to be successful. 13There is also material before the court to indicate that, prior to his arrest, the respondent had led a lavish lifestyle which included expenditure of money on, inter alia, expensive restaurants and frequent international travel. A summary of his travel movements reveals that he undertook no fewer than 15 overseas trips between January 2006 and the date of his arrest. On one occasion he was out of Australia for 120 days. Notwithstanding that lifestyle, the evidence, both in the form of intercepted phone conversations and the respondent's business records, reveal that a lending company with which he was associated was running at a very substantial loss. Clearly the respondent has a real incentive, given the likely penalty to which he will be exposed if convicted, to flee the jurisdiction. Moreover, the material that has been placed before the court suggests that he has the capacity to do so, were he so minded. 14Nevertheless, the respondent clearly has substantial family and community ties. His wife swore an affidavit in which she outlined the benefits which have flowed to her and her family as a consequence of the respondent having been granted bail. As I indicated earlier substantial surety in the sum of $1 million has been lodged to secure his attendance. The four sureties, being the respondent's parents and another couple who are family friends, have attended the hearing. The applicant, whilst recognising that the respondent has strong community ties, points out that that is a common feature of cases such as the present. Also to be weighed in the respondent's favour on this question of the probability of his attending at court, is the fact that he does not have a history of failing to appear in court. 15There is also evidence before the court that the respondent has been offered employment. His "scope of work" is described in a document, which is entitled Independent Contractor Agreement, as being "to introduce overseas mining activities" to the company which is employing him. The applicant raised various questions about that offer of employment. Counsel for the respondent sought and obtained an adjournment in order to obtain material which might address the matters which had been raised. The company which is employing the respondent has done so in the belief that he "has very good contacts in the mining and resources area". The representative of the company told the respondent's solicitor that "before his arrest he was working on an oil deal ... he has already been able to present us with a deal out of Chile - an iron ore mine - in the very short time he has been working for us." I should add that I was informed that his employer is well aware of the restrictions which are placed upon the respondent's capacity to travel by reason of his bail conditions. It is said that the respondent can communicate with his overseas contacts by using the telephone, the email system, the internet and Skype. The applicant submitted that little weight should be attributed to this matter although it was specifically conceded that it could not be suggested that the offer of employment was not bona fide. 16I am of the view that this is an issue which should take its place, alongside other features of the case, in support of the proposition that the respondent has ties to the community and that he has been using his time since his release on bail in a productive fashion. In so concluding, I have had regard to the material which was adduced on behalf of the applicant, and to which I referred earlier, that prior to his arrest the respondent had had an extensive range of business interests in various countries. 17One feature of the case upon which the applicant placed very considerable emphasis is the question of the protection and welfare of the community. Investigating police have listened to tens of thousands of intercepted phone calls in which the respondent participated from about June 2006 until his arrest in September 2008. The transcript of some 12 SMS messages and 20 phone calls were introduced into evidence. (It may be observed that the respondent was not party to all of the calls. Those calls, to which he was not a party, involved discussions between his friends concerning his conduct at a particular venue at which he apparently behaved in a violent fashion). The phone calls themselves were played to the court. Threats, both direct and indirect, feature prominently in those calls. There are references, for example, to threats made by the respondent to "bash", "shoot", "kill" and "break [the] legs" of various persons to whom he was speaking. Moreover, a number of calls suggested more than a hint of menace in the respondent's manner as he sought to recover debts that were allegedly owed to him and others. Suffice it to say that the overwhelming inference to be drawn from all the material that is in evidence is that the respondent has a history of engaging in threatening and violent behaviour towards other members of the public. The material also suggests that, prior to his incarceration, the respondent was in the habit of spending much of his time collecting debts or endeavouring to do so. I also note that at the time of his arrest, 247 rounds of .22 ammunition were located at his residence, although no weapons themselves were located In those circumstances, and in light of other material such as police intelligence reports, police entertain concerns that the respondent may attempt to interfere with Crown witnesses if he remains at large. Although I was provided with no further details, it was suggested that at least one lay witness has expressed concern for his safety because of fears which that person entertains about the respondent. 18The applicant reiterated that the respondent had a propensity for resorting to threats of violence when his self-interest was at stake. That self-interest would never be more apparent, so it was submitted, than when he was facing very serious criminal charges. The respondent's propensity for violence has been a matter of comment by various of the courts which have considered the question of bail. I have paid particular regard to what was said upon that subject by members of the Court of Appeal. Moreover, when refusing bail on 11 August 2010 Magistrate Pierce described the respondent as being "an extremely violent man" such that there was a "real risk that such of the civilian witnesses as do exist and who are not overseas would be at risk with [the respondent"]. 19On behalf of the respondent, the transcripts of evidence given on 11 August 2010 by two of the persons who apparently owed money to him were tendered. One of those persons denied that he had been threatened, although he did concede that the respondent had been angry with him. The other witness was a solicitor who accepted that a reading of the transcripts that affected him would indicate that they were of a threatening nature. He suggested however that the fact that the respondent was raised in Southern Europe may explain his conduct. Nonetheless, the effect of his evidence appeared to be that he personally was untroubled by what had been said. Three apparently upstanding members of the community, who are friends of the respondent, have also sworn affidavits on his behalf in these proceedings. The main thrust of their evidence was to indicate that they had never witnessed any violent conduct on the respondent's part. By the same token it was not suggested that they had had the opportunity, which was afforded to the court, of listening to the phone calls to which I referred earlier. 20Counsel for the respondent also relied upon the undoubted fact that he does not have a record for offences of violence. Although he has a criminal record, it consists in the main of traffic offences although he was fined $1000 in the Local Court in 2004 for damaging property. The respondent was also convicted in the District Court, for an offence committed in 1994, of aiding and abetting the manufacture of a prohibited drug (namely ecstasy) in respect of which he as placed on a bond and fined $3000. More importantly, counsel stressed that there was no evidence that any of the witnesses in these proceedings had been threatened in any fashion whatsoever. 21I referred earlier to the fact that the committal hearing is not due to be completed until July of this year. The matter is clearly of some complexity as is often the situation with cases in which there are allegations of large scale international drug trafficking. Overseas witnesses are often required, as in this case, to give evidence. Moreover, there is usually a large amount of evidence of intercepted phone calls. The difficulties of assembling a brief of evidence and then presenting it within what may be regarded as acceptable time limits should not be underestimated. Accordingly, some leeway in that regard may be extended to prosecution authorities. That said, the Crown does not suggest that any of the delay that has been occasioned is attributable to the respondent. In my view it is not necessary to scrutinise the reasons why there has been a delay of the kind which has been encountered in the present case. Nor am I in a position to comment on the listing arrangements of the Local Court. What I am bound to consider however are the consequences which flow from the present state of affairs. The best estimates of counsel, as matters presently stand, is that the respondent is unlikely to obtain a trial until, at the earliest, the first part of 2012. It is anticipated that the trial itself will occupy about 6 weeks of court time. Even upon those estimates, the period of time which will have elapsed between 25 September 2008 (the date of his arrest) and the likely completion date of any trial will be more than 3 1/2 years. That is by any yardstick, an inordinate amount of time for a person, who is presumed to be innocent, to remain in custody before the proceedings against them are resolved. At some stage it has to be recognised that the delay in bringing proceedings to finality will mean that the decision to refuse bail will result in what will amount to a de facto form of "preventative detention". 22The considerations to which I have just referred, were obviously at the forefront of Magistrate Pierce's mind. It would seem that they also featured prominently in changing his Honour's mind about the respondent's entitlement to bail. His Honour said "since we were last considering bail... the committal has gone over to July. By the time July rolls around, it will be getting on for three years, about two years and ten months since this gentleman has been in custody... I know there is a danger to others to some degree but it is quite impossible in my view that our system can allow someone to just languish in gaol for years." 23The respondent, as I have said, was granted bail on 24 December 2010. He was released that evening and has accordingly been at large in the community for 2 months. There is no suggestion that he has not complied with the conditions of his bail including the requirement that he observe what is, in effect, a curfew. There was one recent occasion on which he failed to report to police but no issue is raised in respect of that matter. I was informed that the Director of Public Prosecutions made the decision to review Magistrate Pierce's decision on 7 January 2011. However, the review application was not signed until 8 February because, so I was informed, the Director was on annual leave during that period. The matter was, as I have said, before the Local Court on 13 January when the respondent made an application to vary the conditions of his bail. I was informed that that application was not opposed. Nor was the grant of bail itself opposed. Although the Local Court was not so informed, the respondent's solicitor was, however, told on that day of the decision to review bail. It is not easy to reconcile the fact that about 6 to 7 weeks elapsed between the respondent's release from custody and the date that the review document was signed, with the concerns that the applicant has expressed in this court about how the respondent may conduct himself whilst on bail. One would normally expect the prosecution authorities to have moved with much greater dispatch in seeking to review the decision to grant bail to the respondent than has been displayed in the present case. 24In any event, the respondent was clearly on notice from 13 January of the applicant's intentions. Accordingly, it is a factor of some significance, that the respondent has for a number of weeks nonetheless continued to meet his obligations in relation to bail, including of course the requirement to attend this court to meet the present application. That state of affairs is relied upon by the respondent as providing the strongest indication that he will attend court in the future and that he will also continue to observe the conditions that attach to the present grant of bail. 25My attention was drawn to the decision of the Court of Appeal in DPP v Basic [2008] NSWCA 361 in which the Court refused a Crown application to review a decision by Grove J to grant bail. In that case the delay between arrest and the likely date for finalising the proceedings was estimated to be in the order of 2 1/2 years. Although the case turned on its own facts, it is to be observed that the primary judge apparently regarded the delay as "an exceptional circumstance" within the meaning of s 9D of the Bail Act. 26Ordinarily, in a case such as the present to which s 8A of the Bail Act is applicable, and where the Crown case is strong, bail would be refused. That is particularly so given some of the other features of the case, to which I have referred, including those which relate to the protection and welfare of the community. Clearly those factors loom large when the present application for review is being evaluated. Nevertheless, the case in my view does fall into the "exceptional" category of case primarily because of the inordinate period of time which the respondent already has spent, and would still be required to spend, in custody awaiting the finalisation of the proceedings against him were bail to be refused. Moreover, I accept as a powerful consideration the fact that he has demonstrated, whilst he has been on bail, that he is capable of observing the conditions of his bail. To those considerations may be added the factor that he has attended court in respect of these proceedings when he was on notice that his bail may be revoked, a matter about which he has already first hand experience. It is that combination of factors which persuade me that this case is truly "exceptional". Clearly the situation is very different from the state of affairs that existed when the Court of Appeal was considering the matter. At that stage McClellan CJ at CL observed that "I am not persuaded that there has been an unacceptable delay. If these circumstances change a further application for bail can be made." That, as I have said, is where matters stood in February 2009. Circumstances clearly have however changed. In my view, the application for review of the respondent's bail should be refused. However, there are a number of additional conditions which should be imposed as part of the overall bail regime which may also go some way in allaying the concerns which I earlier expressed in respect of the respondent. Order 271 The application for review of the respondent's bail is refused. 2 Bail is to continue upon the following conditions: (a) To appear at the Central Local Court on 4 July 2011; (b) To be of good behaviour; (c) To report to the officer in charge at Dee Why Police Station daily between 8.00am and 8.00pm; (d) To reside at [as provided to the Court], and to be present within those premises between 8.30pm and 6.00am and to present himself to any police officer who calls to check his presence; (e) Not to associate with or in any way attempt to communicate with, directly or indirectly (except through his legal representatives), nor engage in any communication initiated by others with his co-accused or Crown witnesses or any Crown witnesses in the matter of [as provided to the court]; (f) Not to go within one kilometre of any point of overseas departure and not to leave Australia; (g) Not to apply for any new passport or travel documents during the currency of the bail; and (h) To remain within the area outlined in blue on the map marked Annexure A attached to these bail conditions; (i) Not to use any mobile telephone other than the mobile telephone number [as provided to the Court]; (j) Not to use any landline telephone other than the landline telephone number [as provided to the Court] connected at the address [as provided to the Court]; (k) Not to use any internet connection other than the internet connection [service provider and account details as provided to the Court] connected at the address [as provided to the Court]; (l) To submit to electronic monitoring to be undertaken by Abakus ElmoTech Pty Limited, such monitoring device to be fitted by the authorised representative of Abakus ElmoTech Pty Limited by no later than 4 pm on Friday 4 March 2011; (m) Abakus ElmoTech Pty Limited is to notify the Australian Federal Police on any mobile telephone number or email address nominated by the Australian Federal Police of any breaches of bail conditions (d), (f) and (h); (n) The respondent is to pay the costs of Abakus ElmoTech Pty Limited; (o) It is noted that four acceptable persons have entered into an agreement or agreements, and deposited security, to forfeit the amount of $1 million in total if the Respondent fails to comply with the bail undertaking; DETAILS OF ACCEPTABLE PERSONS: $1,000,000 NAME TYPE AMOUNT KS Surety $350,000 LS Surety $350,000 SM Surety $150,000 AM Surety $150,000 (p) Bail is to be automatically revoked in the event of any breach of any one of these conditions and the respondent may thereupon be arrested by any police officer. ********** Amendments 03 September 2018 - publication restriction removed - judgment published 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: 03 September 2018