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Supreme Court 11 December 2013

R v Osuamadi

[2013] NSWSC 1831

Drugs
CRIMINAL LAW APPLICATION FOR BAIL S 22A (1A)(C) BAIL ACT S 22A THRESHOLD SATISFIED BAIL REFUSED

Citation: R v Osuamadi [2013] NSWSC 1831
Court: Supreme Court of New South Wales
Date: 11 December 2013
Judge(s): Harrison J

Background

The accused was arrested in April 2012 and charged with supplying a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He had been held on remand, bail refused, since his arrest. By the time his next trial was scheduled (September 2014), he would have spent more than two years and five months in custody awaiting a concluded trial.

A prior bail application had been refused by Campbell J in July 2012. The accused's trial had been listed and then vacated on multiple occasions, including a jury being discharged in November 2013, resulting in the matter being relisted to September 2014.

The accused's proposed defence was that he had participated in the drug supply as an informal operative assisting an undercover police informant known as "Ozone," and was therefore not criminally culpable. The Crown disputed this account entirely, maintaining that the accused was the target, not an assistant, of the controlled operation.

  • Whether the repeated bail application met the threshold under s 22A of the Bail Act 1978, specifically whether "circumstances relevant to the grant of bail have changed since the previous application was made"
  • Whether, once that threshold was satisfied, the accused had discharged the onus under s 8A(2) of the Bail Act to show that bail should not be refused
  • How the strength of the Crown case, flight risk, and other factors bore on the bail assessment

Decision

Harrison J accepted that the threshold under s 22A(1A)(c) was satisfied. The prolonged period of incarceration without a concluded trial constituted a change in circumstances relevant to bail, permitting the further application to be entertained.

However, the question then shifted to whether the accused had met the onus imposed by s 8A(2) of the Bail Act. Because the charge involved a commercial drug quantity, a statutory presumption against bail applied. The accused was required to satisfy the court that bail should not be refused, rather than the Crown being required to justify its opposition.

Harrison J assessed the Crown case as very strong. Surveillance material, intercepted communications, and expected evidence from the informant "Ozone" placed the accused directly in the supply of methylamphetamine with a purity of 75.5 percent. The accused's own prior evidence before Campbell J had admitted his physical involvement in the events, with his defence resting entirely on the jury accepting his account of acting as an informal police operative. His Honour described that account as "inherently improbable if not completely incredible," while stressing this was not a final determination.

The court also weighed a number of other considerations in opposition to bail: the accused's possession of a Nigerian passport, the Crown's concern that he had access to counterfeit passports and had used multiple aliases, a limited history of violence, the potential to approach witnesses improperly, and what the court described as an unusually strong incentive to flee the jurisdiction. Harrison J was not satisfied that the accused had established sufficient reasons why bail should not be refused, and the application was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • A prolonged period of pre-trial custody without a concluded trial can constitute a change in circumstances sufficient to satisfy the s 22A(1A)(c) threshold under the Bail Act 1978, permitting a further bail application to proceed.
  • Where a charge attracts the statutory presumption against bail under s 8A(2) of the Bail Act, the onus rests on the accused to satisfy the court that bail should not be refused, reversing the ordinary burden.
  • Refusing bail, Harrison J emphasised that an assessment of the Crown case's strength is a relevant and significant factor, even where the court cannot be satisfied to the criminal standard of the matters the Crown relies upon.
  • A proposed defence that relies entirely on a jury accepting the accused's improbable account does not, of itself, diminish the apparent strength of the prosecution case for bail purposes.
  • Flight risk factors, including access to counterfeit travel documents, use of aliases, and strong incentives to leave the jurisdiction, weighed heavily against the grant of bail alongside the strength of the Crown case.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 8A, 22A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
No cases were cited in the judgment beyond the reference to the earlier application before Campbell J (unreported, 12 July 2012).