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Supreme Court 28 February 2011

R v RS

[2011] NSWSC 103

Drugs
BAIL CROWN APPLICATION FOR REVIEW PRESUMPTION AGAINST BAIL ASSESSMENT OF STRENGTH OF CROWN CASE

Citation: R v RS [2011] NSWSC 103
Court: Supreme Court of NSW
Date: 28 February 2011
Judge(s): Buddin J

Background

The respondent faced two serious Commonwealth drug charges: conspiracy to import a commercial quantity of pseudoephedrine, and conspiracy to supply not less than a large commercial quantity of pseudoephedrine. Both conspiracies were alleged to have operated between December 2005 and September 2008, when the respondent was arrested. A third, minor charge of possessing ammunition without a licence was also on foot.

The respondent had a lengthy bail history. Bail was initially refused, granted by a Supreme Court judge in January 2009, then revoked by the Court of Appeal in February 2009 on the Director's application, and refused again in December 2009. A Local Court magistrate again refused bail in August 2010, but then granted it in December 2010 with a substantial $1 million surety arrangement and detailed conditions. The respondent had been in custody for most of the period since his arrest.

The Director of Public Prosecutions (Cth) applied to the Supreme Court for a review of that December 2010 bail grant, arguing that bail should be revoked. The matter proceeded as a full rehearing, with additional affidavit evidence filed on the respondent's behalf.

Legal Issues

  • Whether the respondent had shown cause why his continued detention was not justified, given the presumption against bail under section 8A of the Bail Act 1978 (which applies to the first two charges)
  • The strength of the Crown case against the respondent
  • The probability that the respondent would appear at court if released on bail, having regard to his dual citizenship, international connections, and access to funds
  • The risk posed to the protection and welfare of the community if bail were continued
  • The weight to be given to the inordinate delay in bringing the committal proceedings to finality
  • The respondent's conduct while at liberty on bail during the review period

Decision

Strength of the Crown case: Buddin J accepted that the Crown case was properly characterised as strong, consistent with the assessments of the Court of Appeal, Hoeben J, and importantly the magistrate who had presided over the committal hearing. The Crown case rested on inference, including the respondent's close association with a co-accused known as "Jerry" in communications with a Dutch drug syndicate, the respondent being referred to by his common name in those communications, his observed meeting with syndicate members in Paris in 2006, and circumstantial evidence linking him to the use of the co-accused's mobile phone while the co-accused was overseas.

Flight risk and international connections: The court found the respondent presented a meaningful flight risk. He held dual Australian and Croatian citizenship and both passports, had extensive overseas business and personal contacts across Malta, the UAE, China, the Netherlands and Croatia, and had previously had access to substantial funds with no apparent legitimate source. These factors weighed against bail, though the court acknowledged the $1 million surety and the existing travel restrictions as relevant countervailing matters.

Delay: The committal proceedings had moved exceptionally slowly. Commenced in April 2010, the hearing had accumulated only around 11 days of evidence across multiple tranches, with the final four days not listed until July 2011. The court noted this delay, with some evident disapproval, as a significant factor in the respondent's favour under the Bail Act's welfare considerations.

Conduct on bail and electronic monitoring: The respondent had complied with bail conditions during the review period and proposed to submit to electronic monitoring as an additional condition. The court accepted these matters were relevant and, ultimately, determined they were sufficient, when weighed together with the delay and other personal circumstances, to justify continuing bail. The review application was accordingly refused, but the existing bail conditions were substantially augmented, including the addition of geographic restrictions, electronic monitoring, and limitations on telephone and internet use.

Orders Made

  • The application for review of the respondent's bail is refused
  • Bail continued subject to substantially augmented conditions, including:
  • Daily reporting to police
  • Residential curfew (8:30pm to 6:00am)
  • Geographic restriction to an area specified in an annexed map
  • Electronic monitoring fitted by Abakus ElmoTech Pty Limited by 4 March 2011, with breach notifications to the Australian Federal Police
  • Restrictions limiting use to a single nominated mobile phone, single nominated landline, and single nominated internet connection
  • No contact with co-accused or Crown witnesses
  • No travel within one kilometre of any point of overseas departure and no departure from Australia
  • No application for new passports or travel documents
  • Retention of the $1 million surety from four acceptable persons
  • Automatic revocation of bail on any breach of conditions

Key Takeaways

  • Refusing the Crown's review application, the Supreme Court confirmed that even a strong Crown case does not automatically warrant revocation of bail where other factors, including significant delay in proceedings and demonstrated compliance with bail conditions, weigh in favour of the accused.
  • Under section 8A of the Bail Act 1978, the presumption against bail for serious drug importation offences requires an accused to show cause why continued detention is not justified, but that assessment involves weighing multiple factors including the welfare of the accused and the conduct of proceedings.
  • A magistrate who has presided over extended committal proceedings carries particular weight in assessing the strength of the Crown case, and reviewing courts may appropriately defer to that assessment.
  • Dual citizenship, overseas connections, and access to unexplained funds remain significant indicators of flight risk in bail determinations, even where substantial sureties and travel restrictions are already in place.
  • Inordinate and unexplained delay in bringing criminal proceedings to finality is a legitimate consideration favouring bail, even for offences carrying a maximum penalty of life imprisonment.

Legislation and Cases Referenced

Legislation
- Bail Act 1978

Cases
- DPP v Basic [2008] NSWCA 361