Supreme Court New South Wales Medium Neutral Citation: R v Ebrahimi [2015] NSWSC 335 Hearing dates: 26 March 2015 Date of orders: 26 March 2015 Decision date: 26 March 2015 Jurisdiction: Common Law Before: Beech-Jones J. Decision: Bail refused Catchwords: BAIL – show cause offence, whether detention is justified – alleged importation of precursors – serious offence – assessment of strength of Crown case – false identification found on accused – strong subjective case for bail – proposal for electronic monitoring – health condition of applicant – separation from children – bail concerns – unacceptable risk of absconding – detention not shown to be unjustified – bail refused. Legislation Cited: - Bail Act 2013, s 16, s 16A, s 17, s18 and s 19 - Criminal Code 1995, s 307(11) - Customs Act 1901 (Cth), s 233BBA(4) - Drugs Misuse and Trafficking Act 1985, s 25(2) Cases Cited: - Asmar v the Crown [2005] VSC 487 - Director of Public Prosecutions v Harika [2001] VSC 237 - M v R [2015] NSWSC 138 - Woods v Director of Public Prosecutions [2014] VSC 1 Category: Principal judgment Parties: Crown (Prosecution) Ebrahimi (Respondent) Representation: Counsel: A.T. Bellanto QC (Applicant) D. Staehli SC (Respondent) Solicitors: Director of Public Prosecutions (Applicant) Gergis Solicitors (Respondent) File Number(s): 14/321285 Publication restriction: Nil ex tempore Judgment 1. The applicant for bail faces six charges, all of which are said to arise out of two alleged importations of pseudoephedrine and another precursor that occurred between 2012 and 2013. I will explain the alleged facts concerning those charges in more detail shortly. 2. One of those charges is an offence under s 25(2) of the Drugs Misuse and Trafficking Act 1985, namely, supply a prohibited drug. In this case it carries a maximum penalty of life imprisonment. Otherwise, in respect of the first alleged importation he faces a charge under s 307(11) of the Criminal Code 1995 ("the Code") which carries a maximum penalty of imprisonment of 25 years and 5,000 penalty units; an alternative count of an attempt to import a commercial quantity of a precursor under s 307(11) which carries the same maximum penalty and a further alternative count being an offence under s 11.5 of the Criminal Code in respect of a contravention of s 233BAA(4) of the Customs Act 1901 (Cth). It has a maximum penalty of five years and a fine of $10,000. In respect of the second alleged importation, the applicant faces a charge under s 307(11) of importing a commercial quantity of a border controlled precursor and another alternative count of attempting to import a commercial quantity of a border controlled precursor. 3. The applicant was arrested on 8 August 2013. He has remained in custody since that time. Show Cause of Offences and Bail Concerns 1. The making of bail decisions is governed by Pt 3 of the Bail Act 2013 (the "Act"). Section 17 of the Act requires the Court to assess any "bail concerns" which are a concern that an accused person, if released from custody, will fail to appear at any proceedings, commit a serious crime, endanger the safety of victims, or interfere with witnesses or evidence (s 17(2)(a)-(d)). 2. Sub-section 18(1) specifies the matters this Court is to consider in undertaking an assessment of bail concerns. Sub-section 19(1) provides that a Court must refuse bail if it is satisfied on the basis of an assessment of bail concerns that there is "an unacceptable risk". Sub-section 19(2) confirms that the form of unacceptable risk referred to is an unacceptable risk of one of the four bail concerns materialising. 3. Division 1A of Pt 3 deals with show cause offences. In this case the charge of supply a large commercial quantity of a prohibited drug, constitutes a show cause offence (see s 16B(1)(f)). The consequence is that under s 16A the Court must refuse bail "unless the accused person shows cause why his or her detention is not justified" (s 16A(1)). Section 16A(2) provides that, if the accused person shows cause why his or her detention is not justified, then the bail authority must make a bail decision in accordance with Div 2 of Pt 3, being the provisions of ss17 to 19 and following that I have just described. 4. In M v R [2015] NSWSC 138 at [8]ff McCallum J addressed the inter-relationship between s 16A and Div 2 Pt 3 of the Act. Her Honour considered that the requirement to show cause in s 16A was an inquiry that necessarily addressed the bail concerns in s 17 having regard to the factors listed is s 18(1) (M v R at [8]). Further, her Honour construed s 16A(1) as imposing upon an applicant an onus of persuasion that any bail concerns arising in a particular case did not give rise of an unacceptable risk of a kind referred to in s 17 (M v R at [15]). Her Honour distinguished that form of onus from an onus of proof (M v R at [15]). 5. It seems that, on the approach stated by McCallum J in M v R, the combined effect of s 16A and s 19 is that in cases where the applicant for bail faces a show cause offence, then that applicant must demonstrate that there is not an unacceptable risk (see M v R at [16]). As her Honour realised in M v R at [7], this approach appears to reflect a one stage approach rather than a two stage approach. The adoption of a one stage approach appears to sit uneasily with the structure of Division 3, in particular the flow chart referred to in s 16 and the terms of s 16A(2). They appear to contemplate a two stage approach. 6. The equivalent provisions in Victoria appear to have given rise to a disagreement about whether there is a one stage or two stage test (see Director of Public Prosecutions v Harika [2001] VSC 237, Asmar v the Crown [2005] VSC 487 and Woods v Director of Public Prosecutions [2014] VSC 1 at [49]ff). 7. These difficulties all appear to follow from the failure of the legislation to explain what "justified" means in s 16A(1). In particular, the legislation does not specify whether that it is a reference to detention not being justified by reference to the bail concerns identified in s 17(2) or by reference to something else. 8. For the purpose of this application I will adopt the approach of McCallum J in M v R. However, I note that, even if I was to adopt a two stage approach, it would not affect the outcome of the application. Crown Material 1. The Crown tendered material which included a statement of what it contends are the facts surrounding the offences as well as some supporting material. In relation to the first importation, in broad terms, the Crown alleges that between February and July 2012 the applicant played a significant role in the alleged importation into Australia of 102 kilograms or thereabouts of pseudoephedrine. On the Crown case the applicant was said to have contacts with allegedly corrupt workers at a brokerage firm in Sydney who were able to extract quantities of prohibited drugs from shipping containers prior to their examination and clearance by Customs officials. The Crown alleges that, together with a number of his co-accused as well as an informant who acquired the title "the source", the applicant pursued various overseas contacts which ultimately led to a large quantity of pseudoephedrine being exported from India to Australia while secreted in some furniture. 2. The second importation is alleged to have been arranged between September 2012 and March 2013 with the actual movement of goods said to have occurred around November to December 2012. The Crown facts reveal that there was some fluidity in the amount of product and the type of product that was intended to be imported. According to the Crown, it was originally intended to be 1.2 tonnes of pseudoephedrine, but that was later revised to 460 kilograms of pseudoephedrine. 3. After the source came forward in March 2013, the shipping container, which was alleged to be used as part of this importation, was secretly intercepted. It was found to contain 19.25 kilograms of another prohibited precursor, namely, phenylpropanolamine. The Crown alleges that, prior to the police inspection, much of the prohibited import was removed, although the Crown disclaims the suggestion that it is necessary for it to prove that to establish the offence. 4. Further, in August 2013 the Crown alleges that the applicant provided the source with 10 kilograms of that precursor, that is the phenylpropanolamine. The Crown contends that can be traced to the second importation, making a total identified amount of precursor of 29 kilograms. 5. The alleged conduct of the accused in providing 10 kilograms of phenylpropanolamine in August 2013 to the source is also the subject of the supply prohibited drug count which, as I have stated, is a show cause offence. 6. There was considerable debate before me about what assessment could be made as to the relevant strengths and weaknesses of the Crown case. It seems that the first indication that the investigating police received of the importations was in March 2013 when the source was arrested for supplying prohibited drugs to a third person. In response to his predicament it appears the source then offered to provide police with information and assistance in obtaining evidence concerning the two importations. From that time police monitored a number of discussions between the source and the applicant as well as the other co-accused and also monitored their electronic communications on "Blackberries". 7. On this application material was also tendered concerning proceedings in 2006 in which the source was also the informant. It appears that some time in 2004 the source approached the New South Wales Crime Commission and identified himself as a major drug dealer. Thereafter, he assisted the Crime Commission in pursuit of various individuals who the Crime Commission suspected were involved in drug importation and drug dealing. 8. Senior Counsel for the applicant, Mr Bellanto QC, took me to some transcript of the cross-examination of the source in the 2006 committal hearing of those proceedings. The cross-examination revealed the source freely conceding that he was a significant drug dealer with access to large amounts of cash. He also conceded that he had approached the Crime Commission and was giving evidence against the people involved in those matters to obtain some personal advantage for himself. 9. It was submitted by Mr Bellanto QC that the Crown case depended very significantly on the source's evidence. He submitted that it could only be considered relatively weak given that it is likely that directions will be made concerning the source under s 165 of the Evidence Act, and the concessions the source would have to make as to his serious criminal activity. In short, it was submitted that the source is an unrepentant drug dealer who deals himself out of trouble by providing the authorities with evidence and information which on the applicant's case could only be unreliable. 10. In response, Mr Staehli SC for the Crown submits that, while it is inevitable there would be adverse comment concerning the source's credibility at trial, overall it would be assessed in the light of how he presents in giving evidence, and how the narrative that he provides accords with the other material obtained by the Crown, including the surveillance material. He submitted that assessment is one that cannot be properly undertaken in a bail application. Even so, to the extent that there is material available, Mr Staehli SC submitted that there is a real likelihood that his evidence will be accepted. 11. A bail application is not a forum to conduct a mini trial of these issues. To the extent that I can ascertain there is material which appears to be capable of supporting at least some parts of what is anticipated the source will say that incriminates the applicant. Thus, in relation to the supply charge that I referred to earlier, the Crown facts indicate that that supply occurred while the applicant and the source were under surveillance by police officers. In particular it seems that police officers witnessed the applicant open the rear of the source's vehicle and place a red suitcase in the back of the vehicle which was later seized and found to contain a total of 10 kilograms of phenylpropanolamine. In addition, extracts of some recorded conversations were provided to the Court which, on their face, appear to involve the applicant discussing the means of packaging and secreting drugs for transport to Australia. 12. In the end result, the position as best as I can ascertain is that the Crown case depends to a significant degree but not exclusively on the source's evidence, and that his evidence will be heavily scrutinised in a context where there is at least some material capable of supporting that evidence, including to the extent it points to the applicant's involvement. The end result is that I am certainly not satisfied that the Crown case is weak, although I cannot reach a positive state of satisfaction that it is strong either. 13. I should note two further points in relation to the Crown case. First, the Crown submits that, if established, its case not only points to the applicant having a significant and extensive involvement in the importation of prohibited precursors into this country, it also suggests he has overseas contacts and the means of accessing significant funds if necessary. 14. Second, at the time he was arrested the applicant was in a car driven by someone else. The police seized two fake Tasmanian driver's licences from the vehicle which had pictures of the applicant with the names of two other persons. The driver of the vehicle in which he was arrested was in fact one of the names but, as I said, the licence had the applicant's picture. The police also found a birth certificate for that other person. The Crown submits this material indicates that the applicant has the means of accessing whatever machinery is available to generate false identification. 15. The Crown also tendered a copy of the applicant's criminal antecedents. The antecedents reveal the applicant has a lamentable driving history, however that can be put aside given the nature of the charges the subject of this application. The antecedents also show two failures to appear, one in 1998 and one in 2000. The applicant is now 34 years of age. In 1998 he was 19. In 2001 he was 21. The Crown fairly conceded those matters are of no great moment to the application. Applicant's Material 1. An impressive body of material was provided in support of the applicant's case for bail. The applicant's wife swore an affidavit and gave oral evidence. She is originally from Denmark and came to Australia in 2000. She married the applicant on 22 September 2006. She and the applicant have two young children, one born in 2011 and the other born in 2013. She has a number of tertiary qualifications and is employed in a senior position. She explained, and I accept, that her husband is very close to her children. She said that her children are only able to see their father at the gaol on weekends. At the moment, she is working full time while both her children are in care. A letter was supplied indicating that the older of the two children is experiencing significant separation anxiety from her father. The applicant's wife confirmed that in her oral evidence. I accept that evidence. I accept that the separation of the applicant from his children and his family is a matter of significant hardship to him. More importantly, it is a matter of particular hardship to them. It is a factor in favour of bail. 2. The evidence also demonstrates that substantial sureties are available. The applicant's wife purchased a property in 2009 for a relatively modest sum. Due to the movement of the property market that property is now worth a substantial amount. She is able to provide a surety in excess of $600,000. Similarly, a family friend of the applicant is also able to offer surety over their house of an amount in excess of $600,000. Thus, the total combined amount which is able to be provided by way of surety exceeds $1.2 million. I accept that, if the applicant were not to appear in answer to his bail undertakings, each of the persons providing the surety would suffer significant financial hardship. 3. The applicant tendered material from a firm of architects indicating employment was available to the applicant as a draftsperson should he be released. The applicant has experience in the construction industry. 4. Each of the applicant's wife, his sister, and a testimonial witness spoke of him in positive terms. They expressed their firm belief that the applicant would, if released, comply with any bail undertakings including the requirement to attend Court when required. They also expressed firm and strong beliefs that he would not do anything to jeopardise the position of his sureties or the position of his family. I accept the genuineness of those views. 5. An unusual aspect of this application is that the applicant puts forward, as a possible bail condition, his preparedness to not only comply with a system of electronic monitoring but to supply that system and meet its cost. Evidence was received from Mr Paul Keen. Mr Keen is a director of a company that is the distributor for an electronic monitoring and tracking system which is specifically designed for the criminal justice system. He explained in some detail the use of the systems in jurisdictions outside of New South Wales. He stated that, if bail was granted and the system was implemented, it would involve one of the representatives of his company attending at the gaol from which the applicant would be released and placing on his ankle or wrist a watch-like device. Under this system the applicant would also be required to carry a device that was effectively a modified mobile phone. 6. Mr Keen explained that the monitoring system can be calibrated so as to set off an alarm if the applicant either moved outside a specified inclusion zone or moved into a specified exclusion zone. Mr Keen explained that, if a so-called violation event occurred, then an electronic message would be automatically generated and sent to an officer of his company as well as any police officer who was listed with this company as responsible for the supervision of the applicant's bail. It was apparent from Mr Keen's evidence that a person who has a monitoring device can easily remove it. However, any attempt to do so or to tamper with the device generates a message of the kind that I just referred to. One potential technical limitation of the device is that the system of monitoring is dependent upon the adequacy of the local mobile phone coverage and GPS satellite system. 7. The Crown tendered a letter from an Assistant Commissioner of Police. The Assistant Commissioner expressed some concerns about the use of untested monitoring devices in bail applications. One matter noted was the lack of any legislative scheme to enable this to occur. The legal context in which this is being considered is, as I have stated, the Bail Act. The Bail Act does not authorise the Court to impose obligations on third parties. However, it is not unknown in bail applications that the Court will make its own assessment as to the willingness and capacity of some third parties to provide supervision of persons on bail. The most obvious example of this is residential rehabilitation services. Otherwise there is nothing in the Bail Act that precludes the Court from concluding, in a particular case, that persons providing electronic monitoring systems are both honest and have the capacity to provide some degree of comfort as to the whereabouts of an applicant for bail and their compliance with bail conditions. 8. In this case, the approach I take is that the electronic monitoring proposal put forward by the applicant mitigates the risk of him absconding. However, it certainly does not eliminate it. If a person on bail was determined to abscond and had the means to arrange it, then the delay between the notification of any violation event as referred to by Mr Keen and action being taken by the relevant members of the police force to apprehend them is such that they might be able to leave the jurisdiction. 9. Also provided in support of the bail application was some material indicating various medical conditions affecting the applicant in custody. A psychiatrist, Dr Olav Nielssen, diagnosed the applicant with depression. He also provided a diagnosis of probable brain injury on the basis of a documented history of two blows to the head that the applicant had received while in custody. The applicant claims that during his time in custody he has been assaulted twice. Certainly at some point he received blows to the head. The Crown has tendered some material which is capable of suggesting that one of those events was staged. For my own part, I do not attribute very much weight to that material given the seriousness of that allegation. Instead, I approach the matter on the basis that he was assaulted. 10. One limiting aspect of Dr Nielssen's assessment is the short time he had to consult with the applicant, which as I understand, was one hour via audio visual link. That said, he did have access to the applicant's Justice Health records. The material from Justice Health cuts both ways. On the one hand it indicates that there has been a reasonably diligent level of attention given by Justice Health to the applicant. On the other, unless one forms the view the applicant is a malingerer, which I do not accept, the material reveals he has some ongoing health issues. I will act on the basis that I accept Dr Neilssen's diagnosis. That said, as Mr Staehli submitted, the relevant assessment is one that considers the position of the type of treatment the applicant will receive outside of custody compared to the treatment he will receive in custody. I have no doubt that he will receive a better level of treatment outside, but he is receiving an adequate level of the treatment while in custody. Overall this is a factor in favour of the grant of bail. 11. A further matter in favour of the grant of bail concerns the period of time he has been and is likely to remain in custody if bail is refused and the difficulty in preparing for trial while in custody. As I have said, the applicant was arrested on 8 August 2013. After various interlocutory applications, a committal hearing was listed for September 2014. However, it was adjourned after the Crown made an application which would permit it to disclose material concerning the source. As a consequence of that disclosure an adjournment application was made on behalf of the applicant. A new committal date has now been set for June 2015. The end result is that it appears that a period of almost two years will transpire before he obtains a committal hearing. The Court is not a position to attribute fault to either party for that delay, although it is a matter of considerable concern. 12. The estimates of the length of a trial varied but it appears to be something around two months. Mr Bellanto QC's submission was that a trial was likely to occur some time in mid-2016. I accept that as a reasonable estimate of the trial date. The end result is that the applicant faces a likely period of three years prior to coming to trial, and a likely period of a further 15 months in custody from this day to his trial if bail is refused. Without attributing fault to any party, that is an unfortunate circumstance and a matter that points in favour of the grant of bail. Added to this is the difficulty for a person who is in custody of preparing for trial. This is especially so in cases of this kind which will be complex and where the Crown brief is inevitably large. Gaols are particularly unsuitable places to take instructions on such cases. Bail concerns 1. As I said earlier, s 18(1) lists various matters that inform a Court's assessment of the bail concerns. I will address the concerns that are relevant. The first is the applicant's background, criminal history, circumstances and community ties (s 18(1)(a)). I have already discussed those matters in considerable detail. His criminal history is not of any particular moment to this application. He has strong community ties. 2. The second and third considerations are the nature and seriousness of the offence(s) and the strength of the prosecution case (s 18(1)(b), s 18(1)(c)). As stated, the offences of which the applicant is accused are very serious. One of them has a maximum penalty of life imprisonment. I have already outlined the relative strengths and weaknesses of the prosecution case. 3. The significance of these factors to bail concerns is that they provide a significant incentive to the applicant to fail to appear in proceedings for the offence and also an incentive to interfere with witnesses or with evidence. The other circumstances surrounding the offences to which I have referred, namely, the accused's apparent overseas ties, his access to funds and his access to the means of generating false identification, are significant factors concerning those bail concerns. 4. The next potentially relevant factor is whether the applicant has any criminal associations (s 18(1)(g)). The Crown facts refer to certain matters which it contends points to a connection between the applicant and the "Hell's Angels Motorcycle Gang". In particular, there are, according to the Crown, various encrypted Blackberry messages which indicate that the applicant was aware that the authorities were looking for members of that gang and was concerned he might be one of the persons being sought. 5. Assertions of criminal associations of this kind often generate much heat in these applications, but little light. To truly assist in assessing bail concerns the Court needs to know much more about the nature of the association, the nature of the alleged criminality that the alleged criminal associations have engaged in in the past and the material that provides a basis of believing the applicant has contacts with persons who could provide him some assistance if he wished to abscond. Beyond stating that, I cannot take this matter any further. It does not play any significant part in my overall decision. 6. The next relevant factor is the length of time that the applicant is likely to spend in custody if bail is refused (s 18(1)(h)). I have already addressed that. The relevant period is approximately 15 months. The next factor is the likelihood of a custodial sentence being imposed if the accused is convicted of the offence (s 18(1)(i)). It is not disputed that, if the applicant is convicted, he faces a very lengthy custodial sentence. 7. Subsection 18(1)(k) requires that consideration be given to any special vulnerability or needs the accused person has and s 18(1)(m) requires that consideration be given to the need for the accused person to be free for "any other lawful reason". These factors are sufficient to embrace the desirability of the applicant obtaining a level of medical treatment outside the prison system that he would not obtain within it. It also embraces the important consideration of the applicant's children and their justified desire to be with their father. 8. Subsection 18(1)(l) refers to the need for the accused person to be free to prepare for his or her appearance in Court or to obtain legal advice. I have addressed this matter. I accept that the applicant's preparation for his legal defence would be assisted if he was to be released on strict bail conditions. Subsection 18(1)(p) specifies the Court must have regard to the bail conditions that could be reasonably imposed to address any bail concerns in accordance with s 20A. The relevant conditions which could be imposed are those which provide a surety, curfews, reporting and electronic monitoring. I have undertaken my assessment on that basis. 9. I return then to the bail concerns referred to in s 17(2). Based on the various matters that I have referred to, the relevant bail concerns are a concern that the applicant will fail to appear at any proceedings, and a danger to the safety of individuals, and that he may interfere with witnesses or evidence, namely the source. There is also a concern that he may commit a serious offence. 10. In relation to the concern that he may commit a serious offence I am persuaded that that risk is not an unacceptable risk. I consider that the combination of various conditions which would otherwise be imposed would be such that there would be a very low potential for the applicant to engage in the type of drug dealing that he is accused of. Similarly, to the extent there is a bail concern that he might endanger the safety of the source or interfere with the source, I consider the combination of the conditions the Court would otherwise be minded to impose would be such to render that risk not unacceptable. 11. However, the remaining bail concern presents a much more difficult hurdle for the applicant, namely, that he might fail to appear in any proceedings of the offence. The criminality alleged against him is severe. He faces a prospect of a lengthy gaol sentence if he is convicted. The alleged circumstances of the offence and the material provided by the Crown provide a basis for a concern that he has contacts overseas, that he has access to substantial cash and, most significantly, access to the machinery necessary to generate false identification papers. 12. The powerful case put on behalf of the applicant mitigates the risk of flight but it certainly does not remove it. Regardless of where one places the onus of satisfaction in cases such as this, in the end I am satisfied that there is an unacceptable risk that the applicant will fail to appear. He has not shown cause why his detention is not justified. 13. In those circumstances bail is refused. ********** Amendments 07 April 2015 - Publication date corrected. 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: 07 April 2015