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Supreme Court 26 October 2012

R v Barbaro

[2012] NSWSC 1310

DrugsPublic order & justice offences
CRIMINAL LAW BAIL WHETHER BAIL SHOULD NOT BE REFUSED

Citation: R v Barbaro [2012] NSWSC 1310
Court: Supreme Court of New South Wales
Date: 26 October 2012
Judge(s): Price J

Background

The applicant faced two charges: manufacturing not less than the commercial quantity of a prohibited drug (amphetamine-type substances, including methylamphetamine) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and participation in a criminal group under the Crimes Act 1900 (NSW). The Crown alleged he was one of the principal financiers and organisers of a syndicate that manufactured drugs at a racehorse training facility at Cobbitty and a property at Parkesbourne between October 2010 and November 2011.

The applicant applied for bail. The Crown opposed the application. If bail were granted, two sureties were prepared to offer approximately $1,000,000 in security, including a Canberra property valued at $870,000.

  • Whether the applicant had discharged the heavy statutory burden under s 8A(2) of the Bail Act 1978 (NSW) of satisfying the court that bail should not be refused
  • The strength of the Crown case, including the reliability of the principal witness whose evidence was said to be the foundation of the prosecution
  • Whether there was an unacceptable risk that the applicant would fail to appear, commit further offences, or interfere with witnesses
  • The relevance of the applicant's prior criminal history and his status on parole at the time of the alleged offences

Decision

Because the charge under s 24(2) of the Drug Misuse and Trafficking Act is a "show cause" offence under s 8A of the Bail Act, the applicant bore the burden of satisfying the court that bail should not be refused. Price J confirmed, following Commonwealth Director of Public Prosecutions v Germakian, that this places a heavy burden on an applicant. Under this framework, the strength of the Crown case is the prime consideration, with the usual s 32 factors given comparatively less weight.

The defence argued that the Crown's case rested almost entirely on the evidence of one witness, Paul Papavasiliou, and that his account was unreliable and uncorroborated. Price J acknowledged this submission but found the Crown case to be strong. The evidence attributed to the applicant included detailed conversations about manufacturing processes, the supply of cutting agents and precursor chemicals, and directions given to other participants. That evidence was supported by physical items seized during a search warrant, laboratory equipment found at both properties, and documents relating to chemical precursors found at the applicant's unit.

A significant obstacle to bail was the applicant's criminal history and his circumstances at the time of the alleged offences. He had prior convictions for supply of prohibited drugs, armed robbery, and other offences in both New South Wales and the Australian Capital Territory. Critically, the alleged offences were committed while he was on parole for drug supply offences and also subject to a good behaviour bond. Price J was not persuaded that it was unlikely the applicant would commit further serious drug offences if released, finding there was a real prospect he would do so.

Taking all required considerations into account, Price J was not satisfied the applicant had discharged the onus under s 8A(2), and bail was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Under s 8A(2) of the Bail Act 1978 (NSW), an applicant charged with manufacturing not less than the commercial quantity of a prohibited drug bears the burden of satisfying the court that bail should not be refused, a heavy onus confirmed by the NSW Court of Appeal in Germakian.
  • Where s 8A applies, the strength of the Crown case is the prime consideration, and the general s 32 factors carry comparatively less weight.
  • Alleged commission of serious offences while on parole for earlier drug supply offences represented a major impediment to bail, particularly when combined with an extensive prior criminal history.
  • The availability of substantial financial sureties, including approximately $1,000,000 in security, did not by itself discharge the statutory burden under s 8A where the court was not satisfied that the risk of further offending was adequately addressed.
  • Refusing bail, the Supreme Court found the applicant had not discharged the statutory onus despite submissions that the Crown case depended heavily on a single witness.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 8A, 8A(2), 32, 32(1)(b), 32(c)(iii), 32(c)(iv), 32(c)(v)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes Act 1900 (NSW), s 93T(1)
- Evidence Act 1995 (NSW), s 165(1)(d)

Cases:
- Commonwealth Director of Public Prosecutions v Germakian [2006] NSWCA 275; (2006) 166 A Crim R 201
- R v Kissner (Supreme Court of New South Wales, Hunt CJ at CL, 17 January 1992, unreported)