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Supreme Court 26 March 2015

R v Ebrahimi

[2015] NSWSC 335

Drugs
BAIL ALLEGED IMPORTATION OF PRECURSORS SERIOUS OFFENCE ASSESSMENT OF STRENGTH OF CROWN CASE FALSE IDENTIFICATION FOUND ON ACCUSED STRONG SUBJECTIVE CASE FOR BAIL

Citation: R v Ebrahimi [2015] NSWSC 335
Court: Supreme Court of New South Wales
Date: 26 March 2015
Judge(s): Beech-Jones J

Background

The applicant sought bail while facing six charges arising from two alleged importations of pseudoephedrine and another precursor into Australia between 2012 and 2013. The Crown alleged he played a significant role in smuggling approximately 102 kilograms of pseudoephedrine in the first importation, using corrupt workers at a Sydney brokerage firm to extract prohibited substances from shipping containers before Customs inspection. A second alleged importation involved a container intercepted by police, which was found to contain 19.25 kilograms of phenylpropanolamine.

The applicant had been in continuous custody since his arrest on 8 August 2013. One charge, supply of a large commercial quantity of a prohibited drug carrying a maximum penalty of life imprisonment, constituted a "show cause" offence under the Bail Act 2013. The committal hearing had been delayed to June 2015 and trial was estimated for mid-2016.

Legal Issues

  • Whether the applicant could show cause why his detention was not justified under section 16A of the Bail Act 2013, given the show cause nature of one of the charges
  • Whether the appropriate analytical framework was a one-stage or two-stage inquiry under Division 1A and Division 2 of Part 3 of the Act
  • Whether there was an unacceptable risk of any of the bail concerns in section 17(2) materialising, including the risk of failure to appear, commission of a further serious offence, danger to the safety of the informant, and interference with evidence

Decision

Issue 1: The show cause framework and the correct analytical approach

Beech-Jones J adopted the one-stage approach articulated by McCallum J in M v R [2015] NSWSC 138, under which the show cause inquiry under section 16A and the unacceptable risk assessment under section 19 are treated as a single, integrated exercise (at [7]-[8]). His Honour noted that the structure of Division 1A, particularly the flow chart in section 16 and the terms of section 16A(2), appeared to contemplate a two-stage approach, and that equivalent Victorian provisions had generated similar uncertainty in that jurisdiction (at [8]-[9]). The court held that the outcome would be the same under either approach (at [11]).

Issue 2: Strength of the Crown case

The Crown case depended significantly, but not exclusively, on the evidence of an informant known as "the source," who had been arrested and then cooperated with police (at [17]-[23]). Senior counsel for the applicant argued the source was an unreliable, self-interested witness whose evidence should be treated as relatively weak. The Crown countered that other surveillance material was capable of corroborating the source's account. The court was not satisfied the Crown case was weak, but could not reach a positive state of satisfaction that it was strong (at [23]).

Issue 3: Factors favouring bail

The applicant presented substantial personal circumstances in support of release. His wife and a family friend each offered surety exceeding $600,000 (at [28]). His two young children, including one experiencing documented separation anxiety, had strong claims on his presence (at [27]). A psychiatrist diagnosed the applicant with depression and probable brain injury following two assaults in custody, and the court accepted he would receive better medical treatment outside custody (at [35]-[36]). The applicant also proposed a privately funded electronic monitoring arrangement, using a GPS ankle or wrist device (at [31]-[32]). The court found this proposal mitigated but did not eliminate the risk of absconding, given the device could be removed and any response by police would necessarily be delayed (at [34]).

Issue 4: Unacceptable risk of failure to appear

Despite the strong subjective case for bail, the court was ultimately satisfied that there was an unacceptable risk the applicant would fail to appear. The charges were extremely serious, with one carrying a maximum of life imprisonment and a likely lengthy custodial sentence if convicted (at [40], [44]). Critically, the Crown material indicated the applicant had overseas contacts, access to substantial funds, and, most significantly, access to the machinery needed to generate false identification, demonstrated by the two fake Tasmanian driver's licences bearing his photograph that were seized at his arrest (at [25], [49]). The court held that the applicant had not shown cause why his detention was not justified, and bail was refused (at [50]-[51]).

Orders Made

  • Bail refused

Key Takeaways

  • Beech-Jones J applied the one-stage approach to show cause bail applications from M v R [2015] NSWSC 138, treating the section 16A show cause inquiry and the unacceptable risk assessment under section 19 as a unified exercise, while acknowledging the structure of the Bail Act 2013 arguably supports a two-stage reading (at [7]-[11]).

  • Refusing bail, the Supreme Court gave determinative weight to the applicant's apparent access to false identification documents, overseas contacts, and access to funds, finding these circumstances created an unacceptable risk of flight despite impressive sureties, electronic monitoring proposals, and compelling family circumstances (at [49]-[50]).

  • A privately funded electronic monitoring proposal can be considered in assessing bail concerns, but the court is not precluded from concluding that such a system mitigates rather than eliminates flight risk, particularly where the device can be removed and police response time may allow a determined applicant to leave the jurisdiction (at [33]-[34]).

  • Prolonged pre-trial custody, health conditions, difficulty in preparing for a complex trial from prison, and the hardship suffered by dependent children are all recognised factors under section 18(1) of the Bail Act 2013 that favour bail, but they do not automatically displace a finding of unacceptable risk on other grounds (at [36]-[38], [45]-[46]).

  • Where a Crown case depends heavily on a cooperative informant with significant criminal history, the court will not characterise it as weak on a bail application if there is other material, including direct police surveillance and recorded conversations, capable of supporting the informant's anticipated evidence (at [22]-[23]).

Legislation and Cases Referenced

Legislation
- - Bail Act 2013, s 16, s 16A, s 17, s18 and s 19
- - Criminal Code 1995, s 307(11)
- - Customs Act 1901 (Cth), s 233BBA(4)
- - Drugs Misuse and Trafficking Act 1985, s 25(2)

Cases
- - Asmar v the Crown [2005] VSC 487
- - Director of Public Prosecutions v Harika [2001] VSC 237
- - M v R [2015] NSWSC 138
- - Woods v Director of Public Prosecutions [2014] VSC 1