R v Ian David Lazar [2018] NSWSC 1333

Supreme Court New South Wales

Medium Neutral Citation: R v Ian David Lazar [2018] NSWSC 1333 Hearing dates: 8 August 2018 Date of orders: 15 August 2018 Decision date: 30 August 2018 Jurisdiction: Common Law Before: Lonergan J Decision: The application for variation is dismissed Catchwords: BAIL – application for variation of bail conditions – fraud – Commercial Financial Dealings – whether conditions onerous Legislation Cited: Bail Act 2013 (NSW) ss 17, 20A Crimes Act 1900 (NSW) ss 126, 178A, 178BA, 192E, 192G, 193B, 319 Category: Principal judgment Parties: Regina (Crown) Ian David Lazar (Applicant) Representation: Counsel: P Strickland SC (Applicant)

Solicitors: B Ko (Crown) P Musgrave (Applicant) File Number(s): 2018/171912 Publication restriction: Nil

Judgment

Background 1. The applicant seeks variation of bail conditions associated with commercial, financial transactions or dealings which I will refer to in this judgment as the "CFD" conditions. Primarily the applicant seeks removal altogether of the CFD conditions and secondarily, that they be modified to reduce the workload associated with the conditions in their current form. 2. The charges to which these conditions relate comprise a charge of obtain a property at Numbuca Heads dishonestly in contravention of s 178BA of the Crimes Act between July and December 2003, an associated charge of knowingly deal with the proceeds of crime between 27 October 2005 and 8 February 2011 in contravention of s 193B(2) of the Crimes Act and a further associated charge that the applicant, in contravention of s 178A of the Crimes Act, received a valuable security, namely the Certificate of Title of the relevant property ("the Hewitt matters"). The police facts indicate a complex and sophisticated series of "transactions" which underpin this charge and involve a now deceased elderly owner of the property. 3. There are also charges in relation to Mr and Mrs Croker pursuant to s 192E(1)(b) of the Crimes Act that between 1 February 2010 and 1 July 2011, the applicant did by deception, dishonestly cause financial disadvantage to Mr and Mrs Croker, that between 1 June and 30 June 2010, he stole cattle, the property of Jeff Soleay in breach of s 126 of the Crimes Act and that he made a dishonest statement regarding a promise to pay for something pursuant to s 192G(a) of the Crimes Act ("the Croker charges"). The police facts outline a complex financing arrangement with which the applicant was involved. 4. There is a charge of stealing a Lexus motor vehicle, the property of Kevin Jacobsen Pty Ltd ("the Jacobsen matter"). The Crown facts sets out a case that the applicant claims to have a dealer's licence and would make further repayments and then sell the car for the owners, with Toyota finance to be paid out, with profits to the owners. The vehicle was instead transferred to others in a complex series of transactions. 5. There is also a charge of attempt to pervert the cause of justice in breach of s 319 of the Crimes Act between August and September 2012, which is of broader relevance on the question of bail concerns. The police facts outline that the applicant had a role in plans to bash or interfere with a police officer. 6. The Crown tendered the facts sheets dealing with the charges, as well as a copy of the indictments and/or CANs and some material that provided, by way of background, the history of the charges and the various bail conditions that have been imposed from time to time since the accused was first granted bail in January 2015 by then Magistrate Buscombe. 7. I was informed by senior counsel for the applicant that the charges are the subject of contested hearings, including contested pre-trial issues to be argued in February 2019 with allocated hearing dates between May and October 2019. This means that between now and the ultimate disposal of the matters, a period of something in excess of 14 months will ensue to which the current bail conditions will apply. 8. It is necessary to set out some of the background which has informed and led to the current form of bail conditions. 9. The current CFD conditions in issue were re-fashioned after proceedings in May 2018 in the District Court for alleged breach of bail. The breach of bail allegation failed, however the existing CFD conditions were modified by Judge Hunt based on what appears to have been fairly extensive argument as to the merits of and problems with the then current CFD condition(s). 10. Some other charges involving other individuals did not pass committal phase. One (relevantly) involved an allegation of causing financial disadvantage to a Mr Dib, a similar charge in relation to a Mr James, and a charge relating to a Ms Barbaro regarding a motor vehicle. Senior counsel for the applicant made the submission that I should entertain doubt that the CFD conditions are reasonably necessary, particularly given the way many other charges brought have failed to pass committal or have been withdrawn. 11. Initially the applicant was prohibited from conducting any commercial financial dealings but in February 2015 the CFD condition was varied to read "not to engage in financial transactions except in his own name or those on a list served personally on the OIC". 12. A case was made for breach of bail in early 2016 when material came to the attention of the police that the applicant was conducting financial dealings using a pseudonym in breach of his bail conditions. 13. In June 2016 there was a breach of bail finding by Magistrate Forbes and the applicant was incarcerated. 14. In August 2016 the applicant remained bail refused despite a release application made to Magistrate Farnan who committed him for trial on a number of the charges, including fraud and stealing. 15. In October 2016 Supreme Court bail was granted by Harrison J with various conditions attached which were associated with a diagnosed current psychiatric illness which apparently required residence at a mood disorders clinic on the North Shore. One of the conditions required that the applicant approach the Supreme Court for any variation of bail conditions. 16. On 7 December 2016 a bail variation application was heard by Bellew J. The applicant was released on conditions that included a refined CFD condition as follows: "He is not to engage in any commercial financial dealings whatsoever, except those commercial financial dealings which are disclosed to, and approved by, the officer in charge of the investigation, noting that such approval is not to be unreasonably withheld". 1. On 1 July 2017 an application was made to the Sydney District Court to vary bail conditions to delete the CFD condition. Judge Blackmore refused the application. 2. On 4 May 2018 a CAN was filed for breach of bail and this was heard on its merits in a contested hearing before Judge Hunt. Judge Hunt concluded that the breach was not established. There was also a failed argument mounted again by the applicant to delete the CFD condition altogether. However Hunt J found special circumstances were such as to allow amendment to the CFD condition, as it became evident during debate that there was some uncertainty around the then current version. 3. The wording of the current CFD condition (determined by Hunt J) was as follows: "8A. The accused is not to engage, directly or indirectly, in any commercial financial dealings except those which are disclosed to an approved by the OIC, noting that such approval is not to be unreasonably withheld. 8B. When complying with his disclosure to the OIC as per condition 8A, the accused is required to provide the following information to the OIC: a. The full name and ABN/CAN of any company/business involved in the commercial financial dealing; b. The name of any third parties including but not limited to borrowers or funders or consultants involved in the commercial financial dealing; c. The full name of all individuals involved in the commercial financial dealing; d. The identity of any company or organisation the accused is acting on behalf of, and identify his role within this company or organisation; e. Any further information reasonably required by the OIC to approve the financial commercial dealing. 8C. The accused is only to use on email address, currently ian.lazar@icloud.com when conducting commercial financial dealings. Any changed email address is to be provided to the OIC prior to the address being used for conducting commercial financial dealings. 8D. The accused is only to operate under his name, Ian Lazar, when conducting or engaging in commercial financial transactions." 1. The applicant seeks deletion of 8A and 8B or extensive modification to the parameters of 8A and 8B.