R v Jomaa [2011] NSWSC 342

Supreme Court New South Wales

Medium Neutral Citation: R v Jomaa [2011] NSWSC 342 Hearing dates: 17 March 2011 & 21 April 2011 Decision date: 06 May 2011 Jurisdiction: Common Law Before: Davies J Decision: Bail refused Catchwords: CRIMINAL LAW - bail - attempt to possess a commercial quantity of cocaine - onus on the Applicant to show bail should not be refused - assessment of strength of Crown case - probability that Respondent will attend Court - whether onus discharged. Legislation Cited: Bail Act 1978 Criminal Code 1995 (Cth) Cases Cited: Commonwealth Director of Public Prosecutions v Germakian (2006) 166 A Crim R 201 R v RS [2011] NSWSC 103 R v Cain (No. 1) (2001) 121 A Crim R 365 R v Iskandar (2001) 120 A Crim R 302 R v Kissner (Unreported - Hunt CJ at CL - 17 January 1992) R v Masters (1992) 26 NSWLR 450 R v Medich [2010] NSWSC Category: Principal judgment Parties: Mohamad Jomaa (Applicant) Crown (Respondent) Representation: Counsel: B Walker SC & Mr S Hanley SC (Applicant) T McDonald SC (Respondent) Solicitors: VA Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2010/315937

Judgment 1The Applicant Mohamad Jomaa was arrested and charged on 22 September 2010 pursuant to s 307.5(1) Criminal Code 1995 (Cth) that he did attempt to possess a commercial quantity of a border controlled drug (32.45 kilograms of cocaine) that was unlawfully imported into Australia. The maximum penalty for this offence is imprisonment for life and/or 7500 penalty units. 2Four other persons including one Brian Anthony Blackman were charged on the same day with similar offences as part of the same Australian Federal Police operation. 3The Applicant has been in custody since the date of his arrest. He now makes application for bail. 4Section 307.5 Criminal Code is an offence listed in s 8A Bail Act 1978. Section 8A(2) provides: A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the authorised officer or court that bail should not be refused. 5A number of decisions have discussed the effect of the presumption against bail to be found in s 8A and corresponding sections 8B, 8C and 8D. In R v Masters (1992) 26 NSWLR 450 at 473 the Court of Appeal said: The presumption against bail expressed in that section imposes a difficult task upon the person so charged to persuade the court why bail should not be refused. That presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail. That is the effect of a series of decisions by single judges of the Supreme Court, most recently collected and discussed in R v Kissner (Hunt CJ at CL, 17 January 1992, unreported). 6In R v Kissner (Unreported - Hunt CJ at CL - 17 January 1992) Hunt CJ at CL said this: The strength of the Crown case has become the prime consideration where s8A applies: see for example: Regina v Michael Youssef Toubya (15 November 1990); Regina v Garry Roy Morton (15 May 1990); Regina v Antonio Franco (23 July 1991); Regina v David Clyde Brown (25 July 1991), all unreported. Common to all bail applications are the circumstances that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, and usually with severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence and to support his family. Also common to most bail applications by persons charged with the offences to which s8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; an application would otherwise be unlikely to be considered in relation to such serious matter. The Legislature has, notwithstanding all those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s8A has erected. As Badgery-Parker J said: if the Crown case is a strong one, the applications for bail in which they will be sufficient to do so must necessarily be somewhat special, and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one. On the other hand, if the Crown case is not a strong one, the circumstances to which I have referred in the last paragraph will ordinarily be given greater weight, and the task of the applicant (although still a substantial one) will be correspondingly less difficult. 7However, although the strength of the Crown case is the prime consideration it is not the exclusive consideration: R v Iskandar (2001) 120 A Crim R 302 at 305 [14]. One further relevant consideration is the time that the person might spend in custody before a trial date if bail were not granted: and R v Cain (No. 1) (2001) 121 A Crim R 365 at 367 [9]. 8In Commonwealth Director of Public Prosecutions v Germakian (2006) 166 A Crim R 201 Tobias JA with whom Ipp JA agreed endorsed the principles in the cases to which I have referred and went on to say: [18] I pause here to observe two matters. The first is that in a case to which s8A applies, such as the present, the s32 considerations to which I have referred do not have the force that they otherwise would have in cases to which s8A would be inapplicable. As was [sic] Hunt CJ at CL observed in Kissner , by enacting s8A with respect to an offence such as the present, the legislature intended the court to place less weight upon the circumstances which are common to all applicants for bail and more weight upon the strength of the Crown case against the applicant in the particular case under consideration. [19] Accordingly, given the heavy burden that rests upon an applicant to satisfy the court that bail should be granted in a case to which s8A applies, and that the application must be " somewhat special " if the Crown case in support of the charge is strong, the mere fact that a consideration of the relevant s32 considerations would ordinarily support the grant of bail is not of itself sufficient to displace the presumption against bail in relation to offences to which s8A applies. [20] The second observation I would make is that, on one view of it, Hall J in [37] of his judgment, when observing that there was no evidence which established a particular capacity of the respondent to abscond or the existence of overseas contacts or substantial financial resources to enable or encourage him to do so, would seem, at least prima facie, to have reversed the burden of proof. With respect, I would have thought that to displace the presumption imposed by s8A, the onus did not lie upon the Crown to provide evidence which established a particular capacity by the respondent to abscond or that he had received any financial benefits from the alleged offence, or that he had overseas contacts or other financial resources: rather, the onus lay with the respondent to positively establish that he had no such capacity and/or that he had no link or association with the persons who supplied the drugs that he allegedly imported. ... 9In the same case Basten JA suggested that it was necessary for the Applicant to demonstrate circumstances which are exceptional, special or even unusual to overcome the presumption - at [54].