Citation: R v Lever, Peter Benjamin [2008] NSWDC 228
Court: District Court of New South Wales
Date: 3 September 2008
Judge(s): Nicholson SC DCJ
Background
The accused faced three charges of fraud: falsely impersonating his father to transfer a certificate of title, and two counts of dishonestly obtaining loans using that title as security. The alleged offending involved more than $680,000. The accused had been on bail since his arrest in March 2007, a period of approximately seventeen months at the time of this application, and had no recorded breaches of his bail conditions.
A trial was set for 24 November 2008. The accused applied to have his bail varied to permit him to leave the jurisdiction temporarily, travelling to Thailand to personally oversee the delivery of palletted medical supplies to the Mae Tao Clinic, a facility providing free healthcare to refugees and migrant workers near the Thai-Burmese border.
An earlier application for the same purpose had been refused in December 2007. The renewed application came before the District Court across four hearing dates in July, August, and September 2008.
Legal Issues
- Whether bail conditions should be varied to allow the accused to temporarily leave the jurisdiction for a humanitarian purpose, specifically transporting medical supplies to a clinic in Thailand
- How the court should balance the accused's right to liberty for any lawful purpose (under s 32 of the Bail Act 1978) against the primary purpose of bail, which is to ensure the accused appears at court
- What weight to give to competing evidence about the level of civil disruption and security risk in Thailand at the time of the proposed travel
Decision
The court accepted that the accused's plan to deliver the medical supplies was bona fide and well organised. Arrangements had been made for shipping, a customs agent, a hire truck, and travel bookings, and the supplies themselves, while not lifesaving medicines, would be of genuine benefit to the clinic. The accused's record of compliance with bail was also acknowledged.
However, the court's concern turned on the security situation in Thailand. The Australian Department of Foreign Affairs and Trade had issued travel advice warning of a high threat of terrorist attack and recommending a high degree of caution. Critically, the province of Chiang Rai, the area through which the accused would need to travel to reach the clinic, was at the time subject to a state of emergency. Bangkok's airports were also experiencing disruption, with the situation described as unpredictable.
The defence tendered evidence from a person connected to the Thai tourist industry who offered a more optimistic assessment of conditions. The court acknowledged a possible unintended bias in that evidence and, in any event, concluded that it would still have preferred the government agency's assessment. The purpose of DFAT travel advice, the court noted, is precisely to provide reliable guidance to those who must make decisions based on it, including courts.
Applying ss 7 and 32 of the Bail Act 1978, the court observed that where tension arises between an accused's liberty to pursue lawful purposes and the requirement to ensure court attendance, the Bail Act resolves that tension in favour of attendance. The unpredictable conditions in Thailand, including the state of emergency and transport disruptions, created an unacceptable risk that the accused would not be able to return to the jurisdiction in time for his trial.
Orders Made
- Application to vary bail refused
- Bail continued on its existing terms
- Judgment to be made available as soon as practicable to allow the accused to seek further review if desired
Key Takeaways
- Under the Bail Act 1978 (NSW), where a tension exists between an accused's right to liberty for a lawful purpose (s 32) and the court's obligation to ensure the accused's attendance at trial, the Act requires priority to be given to securing attendance at court.
- Refusing the application, the District Court found that even a well-organised, bona fide humanitarian purpose does not override bail's primary function where genuine uncertainty exists about the accused's ability to return in time.
- DFAT travel advisories carry significant weight in bail variation applications involving proposed overseas travel; the court treated such advice as more reliable than evidence from a person with a commercial interest in the tourism industry.
- A strong compliance record and community ties, while relevant, were not determinative where conditions in the destination country created material uncertainty about the accused's return.
- The court noted that bail does permit the exercise of liberty, but that liberty remains subject to the overriding requirement that an accused person appear when required, and more conservative choices are warranted to protect that requirement.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), ss 7 and 32
Cases cited: None cited in the judgment.