District Court New South Wales Medium Neutral Citation: R v Saenz de Heredia [2017] NSWDC 293 Hearing dates: 8 August 2017 Date of orders: 09 August 2017 Decision date: 09 August 2017 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: The accused is an unacceptable risk of failing to appear at any proceedings Catchwords: BAIL – RELEASE APPLICATION – show cause offence – use of explosive device – cause shown by combination of factors – whether accused is an unacceptable risk – whether immigration detention can be imposed as a condition of bail – accused remains unacceptable risk – release application declined Legislation Cited: Bail Act 1978 (NSW) Bail Act 2013 (NSW) ss 7, 16A(1), 16B(1)(e)(i), 18(1), 19, 20A, 25(1), 28 and 29(1) Evidence Act 1995 (NSW) ss 128 and 165 Migration Act 1958 (Cth) Cases Cited: Director of Public Prosecutions v Hourigan [2017] NSWCCA 170 Islam v R [2014] ACTCA 2 Minister for Immigration and Multicultural Affairs v Dhingra [2000] FCA 406 Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 Parhizkar v R (2014) 245 A Crim R 515; [2014] NSWCCA 240 R v Farrell [2016] NSWSC 1278 R v Xie [2015] NSWSC 1833 R v Dadash [2012] NSWSC 1511 Category: Procedural and other rulings Parties: Regina (Crown) Mr Roberto Saenz de Heredia (Accused) Representation: Counsel: Ms V Lydiard (Crown) Ms G Lewar (Accused) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Alexander Maroulis Lawyers (Accused) File Number(s): 2016/147902 Publication restriction: Decision restricted pending the trial of the accused. Judgment 1. The accused, Roberto Saenz De Heredia, applies for release to bail having been indicted to stand trial in relation to an offence that on 15 June 1998, at Belrose in the State of New South Wales, he did cause grievous bodily harm to Brett John Boyd with intent to murder the said Brett John Boyd. The accused is currently awaiting a second trial listed to commence on 14 May 2018, an estimate of four weeks. BACKGROUND 1. The background to the matter is as follows: Brett Boyd, a friend and former colleague of the accused, picked up a package left in the garage of his house in Belrose. That package was an explosive device designed to look like a parcel. It exploded in his hands with the consequence that he sustained serious injures including the loss of an eye and a thumb. 2. It appears that following this event an extensive police investigation was conducted. On 14 September 1998, the victim, Mr Boyd, brought Mr Stolzenhein to the police station. Police interviewed him. Mr Stolzenhein implicated the accused and denied any involvement in the crime. He stated that the accused spoke to him a couple of times about killing the victim by planting a bomb because he was owed some money. 3. The night after the bombing he stated the accused called him to ask him to call the victim to find where he was. The informant is said to have called the victim, spoken with him and called the accused back and told him what the victim had said, that is, that he was on his way home. The informant said that the same evening the accused visited his home in Carlingford. The accused is said to have told Stolzenhein that he had done a "terrible thing" and planted a bomb, and decided that he should not have done it, and subsequently asked the informant to call the victim and ask where he was (see: Exhibit 1, Crown Case Statement at [31]). There were also later conversations in which it is alleged that the accused disclosed other facts relevant to what he did. The accused was subsequently arrested but released without charge. 4. On 15 September 1998, the accused is said to have taken an overdose in an attempt to commit suicide. On 20 September 1998, the accused was arrested at Sydney Airport leaving on a pre-arranged holiday. He was bail refused. A search was conducted at his home and a number of items were seized. 5. On 22 February 1998, committal proceedings commenced in the Local Court and on 15 April 1999, the accused was committed to stand trial. Following the conclusion of the committal proceedings the accused was granted bail and released on 16 April 1999. 6. On 16 April 1999, the victim, Mr Boyd, and an associate were arrested in a car outside a police station where the accused was expected to report. According to the facts they were found with a number of prohibited weapons including bullet proof vests, a machine gun and a pistol. 7. On 23 April 1999, the accused was arraigned at the Sydney District Court. He pleaded not guilty. The matter was fixed for trial to commence on 23 August 1999. 8. On 8 July 1999, the accused was shot and injured in an event which consequently required him to be hospitalised. The statement which has been provided to this Court as part of the Crown bundle (Exhibit 1) by Detective Chief Inspector Craig Wonders stated that only one shot was fired. The defence chronology suggests multiple shots. Leaving that difference to one side, the evidence is that the person or persons responsible were not identified. The victim, Mr Boyd, was out of the country according to investigations and according to Detective Wonders. The accused never provided police with a statement to assist in the investigations concerning that aspect of the matter. 9. On 12 July 1999, bail was varied to enable reporting by telephone. On 27 July 1999, the accused fled the country to Bali, Indonesia using another person's passport. According to the police facts, he commenced making these arrangements on 24 July 1999. On 30 July 1999, the accused's former wife reported the accused as missing, and on 6 August 1999, the Court was advised that the accused had disappeared and police had located his car with blood in it. 10. On 9 August 1999, Mr Andrew Tansley spoke to Detective Argent at Kings Cross police station. He advised that he had checked and found his passport missing and identified the accused from a photo. Mr Tansley stated to police that the accused was at his place for a dinner party the weekend before the Sydney Boat Show. On 13 August 1999, bail was revoked and a warrant was issued. 11. On 27 April 2016, the accused was arrested in the United Kingdom. On 5 May 2016, the accused consented to extradition and on that same day, he was escorted back to Sydney. 12. The matter proceeded to trial on 29 May 2017, and on 30 June 2017 the jury was discharged as the trial judge was satisfied that a verdict could not be reached. LEGAL PRINCIPLES 1. This is a matter where both parties acknowledge that the accused is required to show cause as to why his detention is not justified as the offence is a show cause offence pursuant to the provisions of s 16B(1)(e)(i) of the Bail Act 2013 (NSW). [1] 2. If the Court is satisfied that cause has been shown, the Court needs to further consider whether there is an unacceptable risk within the terms of s 19 of the 2013 Act. The relevant principles which apply to a show cause requirement are set out in the decision of Moukhallaletti v Director of Public Prosecutions [2] and were restated recently in Director of Public Prosecutions v Hourigan. [3] HAS THE ACCUSED SHOWN CAUSE? 1. In this case the accused relies on a combination of five matters: 1. First, the fact that the accused has already been to trial, where the Crown's case arguably failed, and that there is now a delay as to the retrial; 2. The consequent characterisation of the Crown case; 3. The accused has no prior or subsequent convictions; 4. The accused is a model prisoner with no misconduct charges; and 5. The unusual nature of the application which, if it were to be granted, would result in the accused moving to immigration detention as he is on a criminal justice visa and not a resident. 1. In this case the accused has been in custody for approximately 16 months to date, in addition to the period between 20 September 1998 and 15 April 1999 when he was bail refused prior to his escape overseas. The time already spent in custody is not a matter which is to be considered under the provisions of s 18(1)(h) of the 2013 Act which talks about the likely prospective period of custody as opposed to past custody. Nevertheless, it is a matter that can be considered under s 16A(1) of the 2013 Act as part of an accused showing cause. 2. Combined with the time before the accused was brought to re-trial, the total length of time that the accused would be incarcerated if bail were refused would exceed two years even leaving aside the period prior to his extradition. This is a factor which McCallum J referred in R v Farrell [4] which requires consideration, that is, that the likely period of overall incarceration that the accused would need to endure would be a lengthy period over two years. 3. Much of the argument before me was as to the strength of the Crown case. This is a matter which the accused's counsel acknowledges is relevant to a consideration of cause. At [33] of the accused's submissions, Ms Lewer, counsel for the accused, states: "At first blush, the Crown case appears to be very strong. As well as the alleged admissions to Stolzenhein, there is DNA evidence, fingerprint evidence and handwriting evidence that are said to implicate the accused. There is also an alleged confessional note said to have been written by the accused. Other inculpatory evidence was allegedly found during a search of his house. The Crown also relied on flight as consciousness of guilt." 1. Neither party specifically raised the fact that by reason of the accused's flight, delay has been such which has led to a position that two witnesses, Boyd and Stolzenhein, have now passed away and are not available to give evidence. This matter, therefore, which assumes no significance in my consideration. The Crown maintains that the case remains a strong one. In its case, it refers to material which was before the trial, and in particular to the competing positions of the parties which was advanced in closing addresses to the jury as recorded at T 663 to 711 of the transcript of 27 June 2017. 2. It seems to be that in this case when assessing the strength of the Crown case regard has to be had to the fact that the matter has already been to trial and the jury has been unable to determine the guilt of the accused. In R v Xie, Fullerton J stated: "[41] … What cannot be ignored is that the jury did not regard the Crown case as of such overwhelming strength as to attract unanimous or majority verdicts of guilty, a result which must diminish the probative force of the Crown case despite the Crown's submissions to the contrary." [5] 1. Whilst the accused has raised other factors in seeking to advance its case on cause being the absence of misconduct, the absence of any prior criminal history or subsequent offences and the circumstances in which the accused would be detained in immigration detention were he to be released on bail, I am satisfied that the combination of factors that I have referred to, in particular, the length of time that the accused would remain in custody were bail to be refused and the outcome of the trial which he has already participated in are such that results in cause being demonstrated as to why his detention is not justified. In that regard I take account of the fact as I am entitled to, of a situation that would arise in the event that bail were granted, being that he would be taken into immigration detention as he is a prohibited non-citizen currently on a criminal justice visa. IS THE ACCUSED AN UNACCEPTABLE RISK? 1. I am now required to determine whether the accused is an unacceptable risk. The three bail concerns which are identified are: 1. The risk of flight; 2. The concern as to interference with the witnesses or evidence and 3. Endangering the safety of victims and individuals in the community. 1. The Crown argues that any proposed downgrading of the custodial arrangements to immigration detention would not address the concerns, particularly, as it could lead to a situation of the accused contacting witnesses. The persons that have been identified in regards to this submission are, first, Mr Andrew Tansley, second, Ms Roslyn Switzer-Hewson and thirdly, a concern arising in relation to a witness who is now deceased, Lee Stolzenhein. 2. As to Mr Tansley, his passport was, on the evidence before me, used by the accused to leave Australia. He provided statements to police on 9 and 13 August 1999 to Detective Argent at Kings Cross Police Station where he stated that the accused was at a dinner party the weekend before the Sydney Boat Show. According to the police facts, he stated that he had checked where his passport was and could not find it and identified the accused from a photo. In a witness statement, which was Exhibit 2, given subsequent to the earlier two statements of 9 and 13 August 1999 and dated 23 May 2017, Mr Tansley stated that parts of his earlier statement were untrue and he gave the passport to the accused after being threatened (at [5] – [9]). 3. He stated that he had a fear of the accused and thought that if he kept quiet he would never have to worry as he, that is the accused, was not in his circle of friends (at [17]). 4. Mr Tansley did not give evidence at the trial as I am informed there was some agreement as to facts between the accused and the Crown which did not necessitate him giving evidence. The Crown contends as part of its submissions that it cannot be assumed that Mr Tansley will not be required to give evidence at the retrial. 5. The second person is Ms Roslyn Switzer-Hewson. She provided a statement dated 21 March 2017 which is referred to at [103] of the police facts (contained in Exhibit 1). As to the whereabouts of the accused and statements on the night of the bombing the subject of the proceedings, she states that she had given an earlier statement to police on 23 September 1998 where she stated she had no recollection either way of the accused being at her house on the night of the bombing. In her subsequent statement of 21 March 2017, she stated that the earlier statement was untrue and at the time of the making of the statement to police, she was fearful of the accused and what he might do if she told the truth. Detective Wonders in his evidence before me conceded that the witness, Ms Switzer-Hewson, made objections under s 128 of the Evidence Act 1995 (NSW) [6] and that there was no evidence of the accused threatening Ms Switzer-Hewson or that the accused told her what to say. 6. The third person, Lee Stolzenhein was a witness who was an informant and as I have already stated has since passed away. He has stated that he had a fear of the accused. Detective Wonders nevertheless conceded that he did not recall any evidence that the accused contacted him or threatened him. The fact that Mr Stolzenhein was offered witness protection and his evidence which was tendered was the subject of a warning under s 165 of the 1995 Act was not a matter in contest between the parties. Mr Stolzenhein will clearly not be giving evidence and it cannot be said that the accused can interfere with his evidence or endanger his safety, nor is there any evidence of the accused possessing any threat to persons outside of this case. In particular, as submitted by counsel for the accused, he has no misconduct charges in custody, and no other offences on his record. 7. Mr Tansley and Ms Switzer-Hewson have expressed fears but there is no evidence of the accused having approached them or threatened them. He had no need to clearly as the facts demonstrated he activated a plan to leave the jurisdiction on the occasion that I have earlier referred to. 8. I am not satisfied that the concerns as to the accused potentially interfering with witnesses or interfering with individuals in the community is one that cannot be properly addressed by imposition of appropriate conditions. In saying that, I do acknowledge the statement referred to in Detective Wonders report (on police views on bail – Exhibit 1) that the family of Mr Boyd remain devastated by the attack and have been unable to "put closure to [the] tragedy". 9. So far as the concern as to flight is concerned, it is proposed and submitted that both as to demonstrating cause but also that the accused is not an unacceptable risk and that the accused can be released to bail subject to a condition, the terms of which are specified in [54] of the submissions prepared by Ms Lewer, counsel for the accused, as follows:- "[54] The proposed bail conditions are: A. The accused reside at Villawood Detention Centre or any other immigration detention centre as determined by the Department of Border Security. B. If there is to be any change to the location or conditions of the accused's detention, he must notify the officer-in-charge within 24 hours. C. That the accused not apply for any passport. D. That the accused not contact any person named on the Crown witness list." 1. I have already referred to the fact that at the time of the accused's departure from Australia whilst he was on bail, he having made some arrangements to do so between 24 July 1999 and 27 July 1999. I will leave to one side whether the accused's staged a suicide attempt, a matter of contest in the trial. At the time of the accused's bail, he was on a surety to forfeit the sum of $100,000 and he remained at large for 19 years before being apprehended. 2. The submission on behalf of the accused concedes that he represents a bail concern as to flight. However, it asserts that this can be addressed by way of a condition which can be taken into account for the purposes of assessing whether he remains an unacceptable risk by reference to s 18(1)(p) of the 2013 Act. 3. The accused concedes as I have stated that he is an unlawful non‑citizen under the Migration Act 1958 (Cth) and has no right to be in Australia. He concedes that if the proceedings were discontinued or he was to be acquitted, he will be deported and if he was released to bail while the proceedings are pending, he would be placed in immigration detention. 4. It is in those circumstances that the bail condition of the kind specified at [54](a) of the accused's submissions which I have earlier referred to arise. It is argued that given that the release application involved the accused being moved from one place of detention to another and notwithstanding the seriousness of the charged offences and the accused's history of flight, the risks can be adequately ameliorated by a strict condition of bail. 5. In this respect it is also submitted that were that to occur then the accused recognises that any time spent in immigration detention would not be a subject of any credit in the event that he was ultimately to be found guilty of the offence for which he stands charged. That is a matter which for the purposes of this application assumes no relevance although I do note decisions to a contrary effect in Parhizkar v R, [7] the R v Dadash [8] [9] [10] and Islam v R. [11] 6. Part of the submission which is made is an assumption that the condition which has been proposed, particularly the condition requiring the accused to remain in immigration detention, is a condition that is available. 7. Prior to the matter coming on for hearing today, I arranged for my associate to contact both the Crown and the accused's counsel for the purposes of advancing any argument as to jurisdiction of the Court to impose a condition of that kind. 8. Although argument has been advanced, no authority has been cited which, in reference to this legislation, indicates a previous incident where a condition of the kind proposed has been imposed. 9. It is important to recognise that the accused's own submission characterises a proposal of the kind as a change in the accused's detention arrangements from one of custodial detention to one of immigration detention. 10. s 7(1) of the 2013 Act defines bail as "authority to be at liberty for an offence". The power to impose conditions is predicated on the basis of a person otherwise being at liberty. There is however, it seems to me, a more fundamental issue – the nature of the proposed conditions to be imposed as prescribed by s 20A of the 2013 Act. 11. The proposed condition as it has been drafted seeks to impose requirement that the accused reside at immigration detention, that is in fact not a conduct condition that can be imposed under s 25(1) of the 2013 Act as it is not a requirement that the accused "do, or refrain from doing, anything". 12. Whether or not he resides at Villawood Detention Centre or any other centre is not a subject of his wishes but that of the relevant Immigration authorities. It seems to me therefore the proposed condition which the accused advances cannot be made. 13. I considered whether it is open to the Court to impose a pre-release requirement that the accused not be released except into the custody of the Department of Immigration and Border Protection. Such a requirement appears to have been the subject of a decision referred to in the case of Minister for Immigration and Multicultural Affairs v Dhingra. [12] 14. The order that was made by the Supreme Court of NSW and the subject of the Full Court of the Federal Court's consideration in Dhingra required that the applicant not be released except into the custody of an officer of the Department of Immigration. The case itself, being an appeal in relation to a proposed deportation action, does not disclose the legal basis upon which the judgment in first instance made such an order, which in any event would have been made under the previous Act – the Bail Act 1978 (NSW). 15. It is relevant however that in s 29(1) of the 2013 Act, the only pre‑release requirement that the Court can make so far as conduct is concerned, is a conduct requirement that requires the accused person to surrender his or her passport. There is no conduct requirement that the Court can make requiring a person as a condition of their release to bail to submit to Immigration custody, nor is it available as a pre-release accommodation requirement under s 28(1) of the 2013 Act as it is not a circumstance which is covered by s 28(3)(b) of that Act there being no relevant prescribed regulations. 16. It follows that in the consideration of whether the accused represents an unacceptable risk the Court is not able to impose any condition of the kind which has been proposed at [54](a) of the counsel for the accused's submissions. 17. I therefore proceed to consider this question in terms of the other proposals that the accused has advanced. In this case it is acknowledged that the accused has limited ties to the Australian community, a matter referred to in s 18(1)(a) of the 2013 Act. The offence is acknowledged as a serious one involving significant violence. [13] 18. Further, there is no evidence the accused having a history of violence. There is no evidence of the accused committing an offence on bail. The accused does have a significant circumstance of non-compliance on bail. There is no evidence of any criminal associations. If bail is refused he will remain in custody for at least nine months ahead of his trial. If convicted it is inevitable that a lengthy period of imprisonment will follow. 19. The accused submits that by being at liberty he has a greater capacity to prepare his trial. So much can be acknowledged, although he has prepared for one trial already. The accused is a prohibited non-citizen and in this respect he has no need to be at liberty for lawful reason, a matter referred to in s 18(1)(m) of the 2013 Act. 20. There is concern expressed by the victim's family as documented in Detective Wonder's report of 8 August 2017 (Exhibit 1) as not being able to put the tragedy behind them. This does not constitute a relevant factor under s 18(1)(n) of the 2013 Act as there is no evidence of conduct by the accused towards the family of the victim after the offence. 21. As I have stated, the bail condition requiring him to reside at Villawood Detention Centre is not one which in my view the Court can impose. The conditions that the Court can impose are that he notify them of any change of location, that he not apply for a passport and that he not contact any person in the Crown list. I bear in mind the strength of the Crown case, a matter which I have earlier discussed in these reasons. 22. In assessing all those matters it seems to me that in light of the limited conditions that have been put forward and the conditions I am able to impose, the accused must remain an unacceptable risk under s 19(1) of the 2013 Act. This is so as s 18 of that Act is an exclusive list and it does not allow me to take into account the circumstances of detention in immigration except as indicated, nor can I impose any condition to this end. 23. I have considered whether these matters can be taken into account as matters of the accused's background, however no submission to this end was made and what was advanced on behalf of the accused was the prospective condition to address the bail concerns. ORDERS 1. In these circumstances, I am satisfied that he remains an unacceptable risk and for those reasons bail must be refused. Endnotes 1. Hereinafter referred to as "the 2013 Act" 2. [2016] NSWCCA 314 at [51] – [56] (Button J with whom Gleeson JA and Rothman J agreed) 3. [2017] NSWCCA 170 at [9] – [11] 4. [2016] NSWSC 1278 at [25] (McCallum J) 5. [2015] NSWSC 1833 at [41] (Fullerton J) 6. Hereinafter referred to as the "1995 Act" 7. (2014) 245 A Crim R 515; [2014] NSWCCA 240 at [69] (Basten JA with whom Price and McCallum J agreed on the issue of sentence) 8. [2012] NSWSC 1511 9. [2012] NSWSC 1511 10. [2012] NSWSC 1511 11. [2014] ACTCA 2 12. [2000] FCA 406 ("Dhingra") 13. s 18(1)(b) of the 2013 Act. Amendments 29 October 2020 - Typographical error amended 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: 29 October 2020