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Court of Criminal Appeal 13 December 2013

R v Litvin

[2013] NSWCCA 319

DrugsPublic order & justice offences
BAIL BAIL REVIEW BAIL VARIED BY SUPREME COURT LIMITATIONS OF LEGAL AID GRANT CONDITION NOT RESTORED

Citation: R v Litvin [2013] NSWCCA 319
Court: Court of Criminal Appeal, NSW
Date: 13 December 2013
Judges: Bathurst CJ, Hoeben CJ at CL, R A Hulme J

Background

The respondent was charged with three serious offences: conspiring to traffic a commercial quantity of cocaine, conspiring to import cocaine, and conspiring to deal with proceeds of crime exceeding $1 million. He had been in custody since his arrest in November 2010, before being granted bail on strict conditions by the Supreme Court in September 2011, with exceptional circumstances established primarily on the basis of anticipated lengthy delay before finalisation of proceedings.

One of those strict bail conditions prohibited the respondent from contacting his co-accused, David Nakash. That condition was later varied in December 2012 to permit contact, but only under the supervision of a legal representative for one or both accused. In October 2013, Barr AJ in the Supreme Court went further and removed the supervision requirement entirely, over Crown opposition.

The Crown then brought this application to the Court of Criminal Appeal, seeking to restore the lawyer-supervision condition for any contact between the respondent and his co-accused.

  • Whether the Supreme Court's decision to remove the lawyer-supervision condition on co-accused contact should be reviewed and the condition restored.
  • How to balance the Crown's concern about potential collusion against the respondent's right to a reasonable opportunity to prepare his defence.
  • Whether the practical and financial obstacles to lawyer-supervised contact (including Legal Aid funding limitations) were relevant to the appropriate bail condition.

Decision

The court, through R A Hulme J (with Bathurst CJ and Hoeben CJ at CL agreeing), identified the central tension as one between two legitimate but competing interests. The Crown argued that unsupervised contact between the respondent and his co-accused created a real risk that they would fabricate a consistent innocent explanation for the alleged coded language used in intercepted telephone conversations. The respondent countered that the volume and complexity of the prosecution material made unsupervised conferral with his co-accused practically necessary for adequate defence preparation.

The court acknowledged the substantial practical difficulties with the supervision condition as it previously stood. The respondent held a Legal Aid grant, and extending that grant to cover lawyer-supervised meetings with a co-accused faced real financial and administrative obstacles. Legal Aid funding is not unlimited, and the court recognised this as a genuine constraint rather than a mere inconvenience.

Hulme J concluded that the balance fell against restoring the condition. Reimposing it would arguably impede the respondent's ability to prepare his defence against serious criminal charges. Importantly, the court noted that the Crown retains a remedy at trial: if evidence of collusion emerges, trial counsel may address it in submissions and the presiding judge may give appropriate directions to the jury.

Orders Made

• The application for a review of the decision of Barr AJ on 24 October 2013 is refused.

Key Takeaways

  • The Court of Criminal Appeal refused the Crown's application to restore a bail condition requiring lawyer supervision of contact between the respondent and his co-accused, upholding Barr AJ's decision to remove that requirement.
  • Where a bail condition would arguably impede an accused's preparation of a defence to serious charges, that impediment is a significant factor weighing against imposition of the condition.
  • Practical limitations on Legal Aid funding are a legitimate consideration when assessing whether a supervision-based bail condition is workable in practice.
  • The risk of collusion between co-accused does not automatically justify restrictive bail conditions where the Crown retains the ability to address any actual collusion through submissions and judicial direction at trial.
  • Under the Bail Act 1978 (NSW), the court conducted a review of a bail variation decision, reflecting the structured process by which bail conditions may be challenged by either party.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), s 45(1)(b)

Cases cited:
No cases were cited in the judgment.