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Supreme Court 6 May 2011

R v Jomaa

[2011] NSWSC 342

Drugs
CRIMINAL LAW BAIL ASSESSMENT OF STRENGTH OF CROWN CASE WHETHER ONUS DISCHARGED.

Citation: R v Jomaa [2011] NSWSC 342
Court: Supreme Court of New South Wales
Date: 6 May 2011
Judge: Davies J

Background

The applicant was arrested in September 2010 and charged under s 307.5(1) of the Criminal Code 1995 (Cth) with attempting to possess a commercial quantity of a border-controlled drug, specifically 32.45 kilograms of cocaine unlawfully imported into Australia. The offence carries a maximum penalty of life imprisonment and/or 7,500 penalty units. Four co-accused, including one Brian Blackman, were charged with similar offences arising from the same Australian Federal Police operation.

The applicant had remained in custody since his arrest and applied to the Supreme Court for bail. In support of the application, he proposed electronic monitoring via a tracking bracelet, strict reporting conditions, and security of approximately $2.4 million drawn from family-owned real estate.

  • Whether the applicant discharged the reverse onus under s 8A of the Bail Act 1978 (NSW), which requires an accused charged with certain serious drug offences to satisfy the court that bail should not be refused
  • The strength of the Crown case and its weight in the bail assessment
  • Whether the proposed security of approximately $2.4 million was adequate to deter flight, given the estimated street value of the cocaine and the applicant's connections to Lebanon
  • Whether the applicant's family ties, travel history, and association with co-accused gave rise to a real risk he would fail to appear

Decision

Davies J confirmed that s 307.5(1) of the Criminal Code is listed in s 8A of the Bail Act 1978, which creates a presumption against bail and places the onus squarely on the applicant to satisfy the court that bail should not be refused. The court reviewed established authority, including R v Masters and R v Kissner, which collectively establish that the strength of the Crown case is the prime consideration under s 8A, though not the only one.

The court assessed the Crown case as reasonably strong. Evidence included intercepted telephone calls, surveillance, and electronic material recovered from the applicant's devices. While some evidential questions remained (including issues around voice identification and the scope of the operation), the overall case was not characterised as weak.

On the flight risk question, the court found significant reasons to doubt that the applicant would attend court. The applicant had continuing family connections in Lebanon, had travelled to that country multiple times in the preceding years, had a brother with links to the co-accused Blackman, and faced a maximum penalty of life imprisonment. The court was not satisfied that proposed security of $2.4 million served as a sufficient deterrent in circumstances where the street value of the cocaine was estimated at between $22 million and $25 million.

The court distinguished cases where bail had been granted, including R v Medich, noting that in that matter the Crown case had not been found to be strong and the accused had voluntarily attended for arrest. The applicant's circumstances here were materially different, and the proposed bail conditions did not overcome the statutory presumption against bail.

Orders Made

  • Bail refused.

Key Takeaways

  • Under s 8A of the Bail Act 1978 (NSW), the onus rests on an applicant charged with specified serious drug offences to demonstrate that bail should not be refused, a burden described in the authorities as heavy and difficult to discharge.
  • The strength of the Crown case is the primary consideration in s 8A applications, with the authorities establishing that where that case is strong, the application must be "somewhat special" in order to succeed.
  • Refusing bail, the Supreme Court found that the availability of electronic monitoring and family security totalling approximately $2.4 million was insufficient where the alleged drugs had an estimated street value of $22 to $25 million and a real flight risk existed.
  • Family ties to an overseas country, a history of international travel, a close familial connection to a co-accused, and the prospect of a life sentence are all factors that can weigh heavily against an applicant's ability to establish an acceptable probability of court attendance.
  • Proposed bail conditions, however elaborate, do not automatically displace the s 8A presumption; the court conducts a holistic assessment and the legislative intent that persons charged with serious drug offences ordinarily be refused bail remains central.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), particularly ss 8A and 32
- Criminal Code 1995 (Cth), s 307.5(1)

Cases:
- R v Masters (1992) 26 NSWLR 450
- R v Kissner (Unreported, Hunt CJ at CL, 17 January 1992)
- Commonwealth Director of Public Prosecutions v Germakian (2006) 166 A Crim R 201
- R v Iskandar (2001) 120 A Crim R 302
- R v Cain (No. 1) (2001) 121 A Crim R 365
- R v Medich [2010] NSWSC
- R v RS [2011] NSWSC 103