SHALALA v R [2012] NSWSC 351

Supreme Court New South Wales

Medium Neutral Citation: SHALALA v R [2012] NSWSC 351 Hearing dates: 22 March 2012; 13 April 2012 Decision date: 13 April 2012 Jurisdiction: Common Law - Criminal Before: RS Hulme J Decision: Bail granted Catchwords: Bail - facilities in prison to prepare appeal unavailable or denied Legislation Cited: Bail Act 1978 Crimes Act 1900 Drugs (Misuse and Trafficking) Act 1985 Law Enforcement (Controlled Operations) Act 1997 Category: Principal judgment Parties: ALEC SHALALA v REGINA Representation: C: R Stainer A: In person C: Director of Public Prosecutions A: In person File Number(s): 2010/408362

Judgment 1RS HULME J: Alec Shalala was arrested on 8 December 2010 on charges of supplying, on a number of occasions between 12 November and 6 December 2010, amphetamines. On two occasions, the amounts said to have been supplied were approximately 450 g. He has also been charged under s 25A of the Drugs (Misuse and Trafficking) Act 1985 with ongoing supply. The individual amounts supplied have been aggregated and the subject of a further charge of supplying a large commercial quantity of amphetamines. The maximum penalty prescribed for that offence is life imprisonment. 2The evidence against him was obtained in large part by video and audio surveillance in the course of a controlled operation involving a police undercover operative and another person who was assisting police at the time. 3The evidence against Mr Shalala, at least as presented to me during this application - and it includes extracts from the transcripts of statements by Mr Shalala apparently recorded on listening devices - is, if not compelling, at least very strong. Further evidence of his guilt is afforded by a statement he made and which is recorded on the transcript when this matter first came before me on 22 March last. That statement was as follows:- If I may say one more thing. The thing is, the person that supplied the drugs himself has been on bail from two weeks after his arrest and my co-accused has been on bail now for three months and I'm the only one left in here and I had the smallest part involved in this whole thing. 4Mr Shalala has an extensive criminal record which commenced in 1970 when he was but 17 and includes offences of robbery (for the first of which he was sentenced to 9 years penal servitude), the supply of a prohibited drug (for which he was sentenced to 5 years imprisonment) and a further offence of supply a prohibited drug (for which, in 1998, he was sentenced to 7 years imprisonment). 5Despite the strength of the Crown case, Mr Shalala desires to defend the charges against him. It seems clear that, at least in large part, he wishes to do so on the basis that the conduct of the police was improper and not authorised by or pursuant to the Law Enforcement (Controlled Operations) Act 1997. Nevertheless, he wishes also to review the content of the recordings upon which the Crown relies. Those recordings consist of, according to the representative of the Crown in these proceedings, something of the order of 10 DVDs or the like. Mr Shalala also desires to conduct his defence himself in consequence of dissatisfaction with a legal aid lawyer who appeared for him for a time. 6Appearing for himself is a right Mr Shalala has. However, to effectively exercise that right he has to have opportunity to present his case and opportunity and facilities with which to listen or view the content of the DVDs and which would seem to form a very large part, and perhaps the strongest part, of the evidence against him. He also wishes access to a legal library and clearly any defence based on impropriety of the police or actions which were in law unauthorised would need some access to such a library. 7On the evidence before me, Mr Shalala has made numerous requests of gaol authorities for access to computers and a library. He has also complained to two magistrates about being denied such access and it appears at least one of these has publicly endorsed Mr Shalala's request. Nevertheless, according to Mr Shalala, computers have been made available to him for only a very limited time and on at least one occasion, the format of the DVDs was inaccessible to the computer provided and another had no working audio. 8When Mr Shalala's application first came before me on 22 March last and it became apparent what his primary complaint was, I adjourned the proceedings inviting Mr Shalala to provide some specificity to the Crown as to his complaints in order that the Crown might obtain a response from Corrective Services. Mr Shalala provided specificity in a letter of 26 March 2012 which was forwarded on to Corrective Services. He specified that he had made four applications at the MRRC, three at Nowra, five at Parklea and two at Long Bay. 9Mr Stainer, appearing for the Crown on this application, provided a copy of that letter to Corrective Services, pursued the obtaining of a response and was assured on 4 and 11 April 2012 that one would be forthcoming. Ultimately, after four further calls to the Commissioner's office yesterday, a response was received in the following terms:- Unfortunately, Corrective Services NSW is unable to provide an official response to your letter in regards to inmate Shalala. At this point in time, I have been informally advised that there was no indication that the inmate had been denied computer access at any of the centres. 10In an earlier letter which Mr Shalala provided on 22 March 2012 during the hearing before me, he had made somewhat similar but more limited complaints. His complaints were endorsed by Corrective Services officers on that letter. 11Since Mr Shalala's arrest, he has been moved some nine times from one gaol to another. He has had court appearances either in person or via video link on 14 occasions prior to his bail application coming before me on 22 March. His committal proceedings are a long way from being finished. Certainly, one must accept that that latter situation is probably in part due to Mr Shalala's desire to challenge the controlled operation and to obtain from the police or other authorities documents which may provide a basis for this. 12Nevertheless, the result is entirely unsatisfactory. 13A charge of the supply of a large commercial quantity of drugs falls within s 8A of the Crimes Act 1900 and sub-section (2) of that section provides that a person so accused is not to be granted bail unless the person satisfies the Court that bail should not be refused. Authorities indicate that that imposes a high threshold. 14Otherwise, the matters to which I may have regard are stated exhaustively in s 32 of that Act and, so far as is presently relevant, may be summarised as follows:- (a) the probability of whether or not the person will appear in court; (b) the interests of the person; and (c) the protection and welfare of the community. 15The section requires that in making a judgment in relation to those topics, regard may be had to only specified matters, but I do not see it as necessary to detail those here. 16I am informed that a warrant for Mr Shalala's arrest has been issued in Western Australia. In an extract from one of the intercepted telephone conversations, Mr Shalala is recorded as admitting to a serious offence in Queensland many years ago, that he was there given bail, took off and never went back. The sentence he is likely to receive if convicted of the more serious of the charges against him is such as to provide an incentive to not appear if admitted to bail and, when one has regard to the totality of the permissible matters in that connection, one is forced to the conclusion that there is certainly an appreciable risk that Mr Shalala will seek to disappear. 17On the other hand, he makes the point that, despite numerous charges in New South Wales, some obviously rendering him liable to substantial penalties, he has not failed to appear in New South Wales. 18The seriousness of the offences charged, one of the matters which I am entitled to take into account in making a judgment as to the protection and welfare of the community, clearly argues against bail being granted. One is tempted to say that the applicant's record adds weight to that argument but the illogical restrictions contained in s 32(1)(c) and s 32(2) mean that I cannot take his record into account in this connection. I am not prepared to find, despite Mr Shalala's record, that in the limited time for which any bail will operate he is during that period "likely to commit" other offences. 19I turn to Mr Shalala's interests. On the evidence before me, it is impossible to avoid the conclusion that Mr Shalala is unable to prepare his case while incarcerated and this because the Corrective Services authorities have not provided him with a computer or other equipment on which to see or listen to the recorded evidence and there is nothing to suggest that their stance will change. 20On the evidence before me, it seems also that there has been scant provision of any significant library facilities to Mr Shalala. 21The evidence indicates, although there is a library at the MRRC where Mr Shalala is currently incarcerated, because of cut backs to prison staff, that library is practically inaccessible unless a Corrective Services officer can be spared at any particular time to supervise Mr Shalala. 22The terms of s 8A of the Bail Act 1978 and the significance of the matters referred to in paragraphs (a) and (c) of s 32(1) of that Act 1978 are such that in the normal course I would unhesitatingly have refused Mr Shalala's application for bail. However, he is entitled to prepare his case. Given that he is effectively being prevented from doing so whilst in custody by the attitude of the Corrective Services, I feel constrained to give him bail. 23There is one further matter to which I should refer. The Crown fairly advised me of the fact or at leas possibility that, if admitted to bail, Mr Shalala will be re-arrested pursuant to a warrant from Western Australia. Should that occur, Mr Shalala will presumably need to make another bail application. Given the history of the matter, he should feel free to request that it be referred to me to be dealt with as a matter of urgency.