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Court of Criminal Appeal 2 November 2016

Director of Public Prosecutions (NSW) v Zaiter

[2016] NSWCCA 247

DrugsFraud & dishonesty
CRIMINAL LAW BAIL DETENTION APPLICATION KNOWINGLY DEAL WITH PROCEEDS OF CRIME SHOW CAUSE OFFENCES VIABLE CIRCUMSTANTIAL CROWN CASE

Citation: Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
Court: Court of Criminal Appeal
Date: 2 November 2016
Judge(s): Hoeben CJ at CL, R A Hulme J, Wilson J

Background

The respondent had been granted bail in the Supreme Court on 13 October 2016. The Crown filed a detention application in the Court of Criminal Appeal six days later, seeking to have that grant of bail revoked.

The respondent faced multiple charges arising from three distinct periods of alleged criminal activity in 2015 and 2016. The charges included knowingly taking part in the supply of a large commercial quantity of cocaine and knowingly dealing with the proceeds of crime. The alleged conduct involved approximately 2.6 kilograms of cocaine and approximately $142,000 in cash.

The Crown's case relied substantially on audio and video surveillance recordings from hire cars used by the respondent, DNA evidence linking him to drug packaging and equipment, and the recovery of significant quantities of cocaine and cash. The respondent proposed very onerous bail conditions, including a curfew, frequent police reporting, and surety of $1,450,000 lodged by two acceptable persons.

  • Whether the respondent's offences were "show cause" offences under the Bail Act 2013 (NSW), requiring him to demonstrate why his continued detention was not justified
  • Whether the respondent had discharged the show cause obligation under s 16A of the Bail Act 2013
  • Whether, even if cause had been shown, the proposed bail conditions adequately addressed the identified bail concerns, particularly the risks of the respondent failing to appear and committing further serious offences

Decision

The Court of Criminal Appeal held that the charges fell within the show cause provisions of the Bail Act 2013. The offences were characterised as very serious: the charge of knowingly taking part in the supply of a large commercial quantity of cocaine carries a maximum penalty of life imprisonment.

On the question of whether cause had been shown, R A Hulme J (with whom Hoeben CJ at CL and Wilson J agreed) found that the respondent had not put forward sufficient material to demonstrate why his continued detention was not justified. The Crown had a seemingly viable circumstantial case, the charges were grave, and anticipated delay before trial, while concerning, was described as unremarkable. The respondent also carried a criminal history that included a prior conviction for cocaine supply, and it appeared that neither imprisonment nor the earlier police seizure of nearly $100,000 in cash had deterred his alleged ongoing drug activity.

Even if cause had been shown, the Court found it would have concluded that unacceptable risks remained. The two most significant bail concerns were the risk of failing to appear at trial, given the gravity of the charges and the likely outcome of conviction, and the risk of committing further serious offences. The Court noted the respondent's apparent access to large sums of money despite no discernible employment and an absence of tax returns for five or more years.

The Court also made an observation of general application: judgments of single Supreme Court judges in bail matters are relevant to their own particular factual matrix but rarely carry any precedential value.

Orders Made

  • Detention application granted
  • Bail refused

Key Takeaways

  • Refusing bail under the show cause framework, the Court confirmed that a respondent charged with supplying a large commercial quantity of cocaine must affirmatively demonstrate why continued detention is not justified, and that a strong Crown case combined with a prior drug supply conviction will weigh heavily against satisfying that obligation.
  • Even very onerous proposed bail conditions, including a substantial surety of $1,450,000 and strict reporting requirements, will not necessarily overcome unacceptable risks of failing to appear or committing further serious offences where the charges are sufficiently grave.
  • A prior term of imprisonment that has not deterred alleged ongoing offending is a relevant factor weighing against bail under the Bail Act 2013.
  • The Court of Criminal Appeal confirmed that decisions of single Supreme Court judges on bail applications are confined to their own factual matrix and are rarely of precedential value.
  • Under s 16A of the Bail Act 2013, where an accused has not discharged the show cause obligation, the court does not need to proceed to assess whether the bail concerns are addressable by conditions; however, the Court indicated it would have found unacceptable risks on the evidence even had cause been shown.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 31

Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Fleming v White; Gamble v Hiles [1981] 2 NSWLR 719
- R v Kugor [2015] NSWCCA 14
- R v XY [2013] NSWCCA 121; 84 NSWLR 363