Citation: Mohr v Director of Public Prosecutions (Cth) [2017] NSWSC 1858
Court: Supreme Court of New South Wales
Date: 22 December 2017
Judge(s): Hamill J
Background
The accused faced a charge of conspiracy to import a commercial quantity of a border-controlled drug, namely cocaine, in an amount approaching half a tonne. The offence carries a maximum penalty of life imprisonment, placing it squarely within the "show cause" provisions of the Bail Act 2013 (NSW). The accused had been in custody since his arrest on 27 December 2016 and had made two previous unsuccessful bail applications.
In June 2017, the accused developed a significant pre-existing medical condition while in prison. Attempts to obtain adequate treatment were protracted, and an October 2017 bail application was withdrawn after prison authorities gave undertakings to arrange treatment by the surgeon who had performed his earlier operation.
In early December 2017, a Magistrate at committal proceedings found insufficient evidence of the accused's participation in the conspiracy, specifically an absence of adequate evidence of "preconcert" (the prior agreement needed to make co-conspirators' acts and words admissible against him), and ordered his discharge. The Commonwealth Director of Public Prosecutions responded immediately by filing an ex officio indictment and bringing a detention application under s 50 of the Bail Act.
Legal Issues
- Whether the accused had shown cause why his detention was not justified under ss 16A and 16B of the Bail Act, given the extreme seriousness of the charge
- What weight, if any, should be given to the Magistrate's decision to discharge the accused at committal when assessing the strength of the prosecution case
- Whether an unacceptable risk of flight existed, and whether proposed bail conditions, including a substantial financial security, could adequately mitigate that risk
- Whether the accused's medical condition and the circumstances surrounding his voluntary attendance at court were relevant to the show cause inquiry
Decision
Hamill J noted that the Magistrate's discharge decision appeared "surprising" on the available material, and conducted an independent assessment of the prosecution case. His Honour concluded the prosecution case remained strong, notwithstanding the committal outcome. The committal discharge therefore did not substantially undermine the evidentiary basis for the charge.
On the show cause question, His Honour found that a combination of circumstances, taken together, satisfied the threshold. These included the accused's deteriorating medical condition and difficulties accessing appropriate treatment in custody, the Magistrate's discharge (even if surprising), the accused's voluntary attendance before the Supreme Court on 14 December 2017 when no order could compel his presence, his surrender of his passport, and the undertakings he had given to the court at that earlier appearance.
On flight risk, the prosecution pointed to evidence of apparently unexplained wealth and frequent overseas travel, together with the prospect of a very lengthy sentence if convicted. His Honour accepted these factors raised a genuine concern about the risk of non-appearance. However, the proposed bail conditions, in particular an $800,000 security to be provided by the accused's parents and potentially further security over two partly encumbered Sydney properties, were sufficient to reduce that risk to an acceptable level.
A practical complication arose at the last moment: the accused's father's title deeds could not immediately be released because of a very small outstanding bank debt of less than $20. His Honour expressed some bewilderment that this had not been resolved before the hearing, but was satisfied that appropriate conditions could be fashioned under ss 26 and 29 of the Bail Act to address the issue.
Orders Made
• Bail granted on conditions [CONDITIONS REDACTED]
Key Takeaways
- A committal discharge, even one the Supreme Court viewed as surprising, is a relevant consideration in a bail show cause analysis, though it does not automatically displace an independent judicial assessment of prosecution strength.
- Under ss 16A and 16B of the Bail Act 2013 (NSW), the show cause threshold does not require any single decisive factor; a combination of circumstances, each contributing weight, can together satisfy the requirement.
- Voluntary attendance at court in circumstances where no compulsory power existed, surrender of a passport, and undertakings given to a judge are capable of carrying real weight in the show cause and unacceptable risk assessments.
- Significant financial security, here up to $800,000 backed by real property, can reduce an otherwise genuine flight risk to an acceptable level even where the accused has unexplained wealth and a history of frequent international travel.
- An ongoing medical condition and difficulties accessing adequate treatment in custody are among the circumstances a court may weigh in a show cause application, consistent with the open-ended nature of the show cause inquiry identified in cases such as Moukhallaletti v DPP (NSW) [2016] NSWCCA 314.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 26, 29, 50
Cases
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions v Tony Mawad [2015] NSWCCA 227
- DPP v Zaiter [2016] NSWCCA 247
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
- JM v R [2015] NSWSC 978
- R v Xi [2015] NSWSC 1575
- Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312