R v El Ali [2013] NSWSC 1210

Supreme Court New South Wales

Medium Neutral Citation: R v El Ali [2013] NSWSC 1210 Hearing dates: 22 August 2013 Decision date: 29 August 2013 Jurisdiction: Common Law Before: Price J Decision: Bail Refused Catchwords: CRIMINAL LAW - bail - firearms offences - whether bail should not be refused Legislation Cited: Crimes Act 1900 s 93T, Criminal Code Act 1995 (Cth) s 11.5(1) Customs Act 1901 (Cth) s 233 BAB(5) Bail Act 1978 s 8B, s 32(1)(a), s 32(1)(b) Firearms Act 1996 (NSW) s 51B(1), s 51D(2), s 51D(2), s 51B(1), s 70 Cases Cited: Commonwealth Director of Public Prosecutions v Germakian [2006] NSWCA 275; (2006) 166 A Crim R 201 R v Kissner (Supreme Court of New South Wales, Hunt J CJ at CL, 17 January 1992, unreported) Category: Principal judgment Parties: Regina Khodor El Ali Representation: Counsel: Ms K Marinos Mr P Lange

Solicitors: File Number(s): 2012/81506

Judgment 1His Honour: Khodor El Ali ("the applicant") applies for bail. The Crown opposes the application. The applicant is charged with the following offences: (a) conspiracy to import, without permission, prohibited Tier 2 goods, namely firearm parts and firearm magazines, between 27 July 2011 and about 13 March 2012 contrary to s 11.5(1) Criminal Code Act 1995 (Cth) and s 233 BAB(5) Customs Act 1901 (Cth). This offence carries with it a maximum penalty of 10 years imprisonment and or AU $275,000 fine; (b) conspiracy to possess more than three unregistered firearms, at least one of which was a prohibited pistol, between 10 November 2011 and 13 March 2012 contrary to s 51D(2) Firearms Act 1996 (NSW); (c) knowingly take part in the unlawful sale of more than three firearms in a consecutive 12 month period, between 10 November 2011 and 9 November 2012 contrary to s 51B(1) Firearms Act. The maximum penalty for an offence contrary to ss 51D(2) and 51B(1) is 20 years imprisonment; (d) knowingly take part in activity of a criminal group, between 23 August 2011 and 13 March 2012 contrary to s 93T Crimes Act 1900. This offence carries with it a maximum penalty of 5 years imprisonment. 2For these offences, the applicant is jointly charged with Ahmed Karnib and Andrew Botros. 3The applicant is also charged with 15 counts of providing false/misleading information in connection with an application under the Firearms Act contrary to s 70 Firearms Act. Such an offence carries with it a maximum penalty of 5 years imprisonment. 4The Crown opposes the application for bail. 5Affidavits sworn by Shaaban Elali, the applicant's father (ex 1) and Nedaa Hawli, the applicant's wife (ex 2) were tendered from which it appears that the applicant's parents, his grandmother, his sister, his wife and the applicant himself are prepared to provide security for the applicant's bail in an amount of $1,080,000. 6Mr Lange, the applicant's counsel, submitted that the presumption against bail does not apply for the charge against s 51D(2) Firearms Act as the applicant was charged with conspiracy to commit this offence. It is unnecessary to decide this issue as it is common ground that the presumption against bail applies in respect of the charge contrary to s 51B(1) Firearms Act. Relevant principle 7Offences contrary to s 51B(1) and s 51D(2) Firearms Act fall within s 8B Bail Act 1978. Section 8B(2) provides: 8B Presumption against bail for serious firearms and weapons offences ... (2) 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. 8It is well established that s 8B places a heavy burden upon an applicant to satisfy the court that bail should be granted: Commonwealth Director of Public Prosecutions v Germakian [2006] NSWCA 275; (2006) 166 A Crim R 201. Considerations under s 32 Bail Act are generally given less weight and more weight is placed upon the strength of the Crown case, which is the prime consideration: R v Kissner (Supreme Court of New South Wales, Hunt J CJ at CL, 17 January 1992, unreported). 9Mr Lange accepted for the purposes of the application that the material before the court disclosed a significant Crown case against the applicant. He submitted that the substantial security offered considered in combination with the applicant's community ties and the "vast delay" in the proceedings constituted exceptional circumstances so as to overcome the presumption against bail. The Crown case 10The Crown alleges that the applicant, Karnib and Botros conspired in the importation and possession of substantial quantities of firearms and firearm parts, principally from Germany (but with some additional firearm parts also imported from the USA) and that they knowingly took part in the subsequent unlawful sale of the imported firearms for profit. 11Although only 1 of 21 successfully imported packages was intercepted by Australian authorities and found to contain 140 firearm magazines, the conspirators are alleged to have successfully imported constituent parts for approximately 150 Glock compact semi-automatic pistols, with the importation of further substantial quantities of similar firearms being planned. 12The Crown contends that the applicant's role was that of a principal, being implicated in ordering the firearms, utilizing false identities and fake documents, purchasing the firearms, directing the importation of firearm parts in separate packages, subsequently constructing firearms from the successfully imported parts and actually selling or, by his conduct, otherwise knowingly taking part in the sale of the imported firearms. 13Given Mr Lange's concession as to the strength of the Crown case, it is unnecessary to refer in detail to the Statement of Facts other than to state that a strong case against the applicant is disclosed in that material. The interests of the applicant 14Section 32(1)(b) Bail Act provides that in making a determination as to a grant of bail, the court is to have regard to the interests of the person, having regard, relevantly, only to: "(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and (ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and (iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii)..." 15The applicant has been in custody since his arrest on 13 March 2012. He is not known by the Commonwealth Director of Public Prosecutions ('CDPP') to have proceeded with any prior bail application and has been formally refused bail since his arrest. A five day committal hearing for the jointly charged offences is fixed to commence on 9 December 2013. According to the Crown, the applicant has previously foreshadowed an intention to waive his right to a committal. Mr Lange told me it was unlikely that there would be a trial until the middle of next year. 16Mr Lange drew the court's attention to the chronology of the proceedings at page seven of the Crown material and referred to the extensions granted to the Crown for the service of its brief. He pointed out that the Crown brief had not been served until 6 March 2013 and reminded the court of the Local Court Practice Note that provides for committal proceedings to be ordinarily concluded within 12 months. He submitted that it was intolerable for the applicant to have been in custody for 21 months before his committal. 17Ms Marinos who appeared for the Crown stated that the Crown brief is over 40 volumes. Ms Marinos said that it was a large and complicated investigation, requiring inter alia evidence from Germany. She submitted that this is not a straight forward brief that could comply with the Local Court's timetable for ordinary cases. 18It is not unusual in complex cases that involve allegations of international criminal activity that the Local Court's time standards are not met. I am not persuaded that there has been undue delay by the Crown in preparing and serving its brief. I do take into account the time that the applicant will have been in custody before the commencement of his trial in combination with my assessment of the strength of the Crown case and the other matters under s 32 Bail Act that are relevant to the present application. Flight risk 19Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the person will appear having regard, relevantly, only to: "(i) the person's background and community ties, as indicated...by the history and details of the person's residence, employment and family situations and the person's prior criminal record..., and ... (iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and ... (iv) any specific evidence indicating whether or not it is probable that the person will appear in court..." 20The Crown referred to the concerns of police that the applicant will not appear if granted bail. Detective Sergeant Furia in a letter to the court stated that there was evidence to suggest that the applicant has ties in Lebanon. Reference was made to the applicant making contact with a phone number in Lebanon. Detective Sergeant Furia stated "[t]here is uncertainty of the [applicant] holding dual citizenship and may have a Lebanese passport" (ex A TB F p 1). 21Mr Lange argued that the only available link to Lebanon was a solitary phone call of three minutes duration. He submitted that the court would accept Nedaa Hawli's evidence that the applicant does not have a connection with Lebanon. 22In her affidavit, Ms Hawli deposes that she and the applicant have been married since 2005. They have two children aged 3 years and 2 years. Ms Hawli states that the applicant was born in Sydney and has lived in Sydney all his life. He has an Australian passport and does not have foreign citizenship or a foreign passport. She expresses the belief that he does not have any close family members, friends or associates who reside in Lebanon. 23The material before me does not establish that the applicant has significant ties to Lebanon. There is no evidence that he holds a foreign passport or dual citizenship. The applicant does not have any previous failures to appear. A matter of concern, however, is the applicant's use of fictitious names including 'Tony Ibbotson' and 'Tim Gordon' and the fraudulent creation of documents to enable the firearms to pass through customs without detection. Mr Lange argued that apart from one false driver's licence, other identification documents in fictitious names were not located by the police. 24It seems that Mr Lange was referring to the use by the applicant of a counterfeit NSW driver's licence depicting his image but falsely identifying him as being 'Tim Gordan' to transfer AU$16,154 to the bank account of 'The Duke' who was Patrick Feige, the supplier of the majority of the imported firearms. The facts further reveal that Feige received false import permits and orders for Glock compact semi-automatic pistols from false identities used by the applicant. For instance, the Crown alleges that on 25 August 2011, the applicant sent a false Australian Department of Defence import permit to Feige for Feige to supply to German authorities in connection with obtaining permission to export firearms. 25The applicant's ability to acquire and to use false documents suggests that he may be able to obtain false travel and identity documents. Whilst he has strong family ties in Sydney, he now is charged with serious offences and upon conviction is likely to be sentenced to lengthy terms of imprisonment. The maximum penalty for the offences contrary to ss 51D(2) and 51B(1) is 20 years imprisonment. 26Despite the family ties and the security offered, I am not satisfied on the balance of probabilities that the applicant is not a flight risk. The protection of the community 27In considering this bail application, the court is obliged to take into account the protection and welfare of the community having regard relevantly, only to: (a) the likelihood of the applicant interfering with evidence, witnesses or jurors: s 32(c)(iii); (b) whether or not it is likely that the applicant will commit any serious offence whilst on bail: s 32(c)(iv)... 28The Crown submitted there is some concern that the safety of local Crown witnesses might be jeopardised if the applicant is released on bail, but conceded there is no specific evidence that supports the submission. I am not persuaded there is a likelihood that the applicant will interfere with witnesses. 29The principal concern expressed by the Crown is that if the applicant is granted bail, he might obtain access to and distribute further dangerous weapons in the community. Detective Sergeant Furia states (ex A TB F p 3): "...Police estimate that there [are] at least 114 Glock Pistols and parts unaccounted for which have either been sold to the criminal milieu or are...hidden". 30As there are at least 114 Glock pistols and parts unaccounted for that were imported by the conspirators, I conclude that there is a strong likelihood that the applicant knows of their whereabouts and there is a real risk that he will disseminate more Glock pistols into the community if released on bail. There is an obligation to protect the community from gun crime. Police have established that some of the imported Glock pistols have been used in public place shootings, the robbery of an Armaguard vehicle and the shooting of a woman in the legs at the door of her home at Auburn. 31In my view, the protection and the welfare of the community outweighs the applicant's need to be at liberty. 32The applicant has not satisfied the court that bail should not be refused. Bail is refused.