Citation: [2015] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 11 August 2015 (amended 21 August 2015)
Judge(s): Macfarlan JA; R A Hulme J; Garling J
Background
Two applicants were charged under the Criminal Code 1995 (Cth) with conspiracy to cause a benefit to be paid to a foreign public official. The allegations concern a scheme to pay a substantial bribe to influence public officials in Iraq, with the aim of securing construction contracts. The applicants were served with court attendance notices in February 2015 and first appeared before the Downing Centre Local Court in March 2015.
Bail was granted at first instance on conditions that included surrender of passports, prohibition on applying for new travel documents, and provision of $10,000 security. The applicants sought a variation to those conditions to allow overseas travel to specified countries.
The Commonwealth Director of Public Prosecutions (DPP) conceded that both applicants had established and legitimate business interests in Australia and overseas, and that a relaxation of the travel restriction was appropriate in the circumstances.
Legal Issues
- Whether the bail conditions should be varied to permit the applicants to travel overseas to nominated countries
- Whether the security requirement should be increased to reflect the relaxation of travel restrictions
- Whether the existing bail conditions as recorded in the court's computer system (JusticeLink) accurately reflected the conditions previously imposed
Decision
R A Hulme J, with whom Macfarlan JA and Garling J agreed, accepted the DPP's concession that relaxation of the overseas travel restriction was reasonable. The court noted that one applicant had no criminal history, and the other's criminal history was not of a nature that weighed against bail being continued.
The court observed a discrepancy between the parties' understanding of the existing bail conditions and what appeared in the JusticeLink records. To address this, rather than simply amending existing conditions, the court deleted all existing conditions and replaced them with a comprehensive new set for each applicant.
The revised conditions permitted travel to a nominated list of countries for legitimate business purposes, with additional countries available subject to DPP approval. Travel notification requirements and a substantially increased security sum of $2,000,000 were imposed in place of the original $10,000 security.
After the orders were made, it became apparent that neither applicant could immediately comply with the original form of the security condition, which required the deposit to come solely from the applicant. By consent, the condition was amended on 21 August 2015 to permit security to be provided by the applicant and/or an acceptable third party.
Orders Made
- All existing bail conditions for each applicant were deleted and replaced with new conditions, including:
- To be of good behaviour
- To reside at a specified address except when overseas
- Not to associate or communicate (except through lawyers) with nominated individuals or prosecution witnesses
- Not to travel overseas except to specified countries (Papua New Guinea, Indonesia, Singapore, Malaysia, Greece, China, Saudi Arabia, United Arab Emirates; Lebanon also included for one applicant) for legitimate business purposes, and to other countries with DPP approval
- To provide a copy of travel itinerary, including overseas residential addresses, to a nominated Federal Agent at least 14 days before any overseas travel
- To deposit acceptable security for the payment of $2,000,000, forfeitable upon failure to appear at court
- On 21 August 2015, the security condition was varied by consent to permit the deposit to be made by the applicant and/or an acceptable person
Key Takeaways
- The Court of Criminal Appeal accepted the DPP's concession that relaxing overseas travel restrictions was appropriate where accused persons have established and legitimate overseas business interests and adequate alternative conditions exist.
- A significant increase in the security amount (from $10,000 to $2,000,000) formed a central component of the arrangement permitting overseas travel.
- Where discrepancies exist between the parties' understanding of bail conditions and court records, the Court of Criminal Appeal may address the issue by replacing all existing conditions with a fresh and comprehensive set rather than simply varying individual terms.
- The security condition was subsequently amended by consent to allow a third party to provide or contribute to the required security, demonstrating that bail conditions can be refined after orders are made where a practical impediment to compliance emerges.
- Under the revised conditions, travel to countries beyond the nominated list remained possible, but only with the prior approval of the Commonwealth DPP.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 70.2 and 11.5(1) (conspiracy to cause a benefit to be paid to a foreign public official)
Cases cited: None cited in the judgment.