Citation: Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325
Court: Court of Criminal Appeal
Date: 28 November 2017
Judge(s): Simpson JA, R A Hulme and Wilson JJ
Background
The respondent was arrested on 20 September 2017 and charged with a substantial array of offences, including knowingly taking part in the supply of cocaine in not less than a large commercial quantity, multiple counts of knowingly dealing with proceeds of crime totalling over $2 million, participation in criminal group activities, and offences arising from a violent altercation with police at the time of arrest. He had previously been refused bail until a successful release application before Fagan J on 16 November 2017.
The Director of Public Prosecutions applied to the Court of Criminal Appeal under s 50 of the Bail Act 2013 (NSW) for a detention order. The application was heard on 28 November 2017, the same day the Court made its orders. The Court reserved its reasons, which were subsequently published.
The prosecution case rested substantially on months of electronic and physical surveillance, intercepted telecommunications, evidence from a ledger found at a co-conspirator's home, and observations of large cash transfers. A co-accused, a Canadian national who had arrived in Australia on a temporary visa, was alleged to have assisted the respondent in a number of the transactions.
Legal Issues
- Whether the cocaine supply charge triggered the "show cause" requirement under s 16A(1) of the Bail Act 2013 (NSW).
- Whether the respondent had shown cause why his detention was not justified.
- The weight to be given to the apparent strength of the prosecution case, the seriousness of the charges, the likely sentence if convicted, and the risk of flight.
- Whether the bail conditions proposed by the respondent were adequate to address the prosecution's concerns.
Decision
The cocaine supply charge carries a maximum penalty of life imprisonment and falls within both s 16B(1)(f) and s 16(1)(a) of the Bail Act, making it a "show cause" offence under s 16A(1). That provision required the respondent to affirmatively demonstrate why his continued detention was not justified. The Court found he had not done so.
The Court assessed the prosecution case as reasonably strong. The surveillance evidence and cash seizures pointed to sophisticated and organised conduct over an extended period, involving multiple associates whose identities and whereabouts remained unknown. The Court noted that over $1.1 million in alleged proceeds of crime had not been recovered, and the overall manner of the alleged offending reflected a degree of resourcefulness that heightened flight risk concerns.
The respondent's arguments in mitigation included voluntary attendance at a police station in connection with earlier traffic offences, attendance at the bail hearing knowing he might be remanded, family and community ties, and the practical difficulties of preparing a defence in custody given the volume of electronically recorded material in the brief. The Court acknowledged these matters but found they were insufficient to discharge the show cause burden. The description of the respondent's ties as "exceptional" was characterised as an overstatement.
Proposed strict bail conditions were considered but ultimately rejected. The Court accepted that the conditions were designed to address the flight risk concern, but concluded that the combination of factors, including the serious charges, the apparent strength of the case, the likelihood of a substantial custodial sentence, the sophisticated nature of the alleged offending, and the unaccounted-for funds, meant that no conditions could adequately address compliance concerns.
Orders Made
- The detention application was granted.
- Bail was refused.
- The respondent was returned to custody.
Key Takeaways
- Under s 16A(1) of the Bail Act 2013 (NSW), a charge carrying a maximum of life imprisonment (including supply of a large commercial quantity of a prohibited drug) triggers a show cause requirement, placing the burden on the accused to justify why detention is not justified.
- Refusing bail, the Court of Criminal Appeal gave significant weight to the combination of: a reasonably strong prosecution case, the gravity and multiplicity of charges, the likelihood of a lengthy custodial sentence on conviction, and the sophisticated nature of the alleged offending network.
- A flight risk assessment is not confined to the existence of proposed bail conditions. The Court found that even strict conditions could not adequately address concerns where the alleged offending demonstrated resourcefulness and where substantial unaccounted-for funds remained at large.
- Voluntary co-operation with police on a separate matter, attendance at court knowing a remand was likely, and family ties are relevant considerations, but the Court found they did not, individually or cumulatively, discharge the show cause burden on the facts here.
- In assessing show cause, the Court applied an approach consistent with earlier decisions including DPP (NSW) v Boatswain, DPP (NSW) v Campbell, and Moukhallaletti v DPP (NSW), confirming that the threshold requires more than a general appeal to mitigating personal circumstances.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16, 16A, 16B, 50
- Crimes Act 1900 (NSW), ss 33, 58, 60, 93T, 193B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Surveillance Devices Act 2007 (NSW)
Cases:
- Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- Director of Public Prosecutions (NSW) v Hourigan [2017] NSWCCA 170
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- R v Kugor [2015] NSWCCA 14
- R v McCormack [2015] NSWCCA 221
- Trinh v R [2016] NSWCCA 110