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Court of Criminal Appeal 19 March 2018

R v Gountounas

[2018] NSWCCA 40

Drugs
BAIL DETENTION APPLICATION

Citation: R v Gountounas [2018] NSWCCA 40
Court: Court of Criminal Appeal
Date: 19 March 2018
Judge(s): Simpson JA; Fullerton J; McCallum J

Background

The respondent was arrested in November 2017 and charged with two counts of conspiracy to import commercial quantities of border-controlled drugs: 101 kilograms of methamphetamine from Mexico and 500 kilograms of cocaine from Colombia. Both charges are punishable by life imprisonment and attract the "show cause" provisions under the Bail Act 2013 (NSW), meaning the accused bears the burden of demonstrating why continued detention is not justified.

After the Local Court refused a release application, the respondent obtained conditional bail from Hamill J in the Supreme Court in February 2018. Conditions included residence in South Australia with a curfew, daily reporting to Adelaide police, a $50,000 deposit, an agreement to forfeit a further $100,000, and a $1,000,000 surety backed by acceptable security from family members. That surety condition remained unsatisfied at the time of the hearing before the Court of Criminal Appeal due to valuation difficulties with a property in Coober Pedy.

The Crown brought a detention application under section 50 of the Bail Act 2013 (NSW), which the Court of Criminal Appeal heard afresh (de novo), meaning it was not an appeal from Hamill J's decision but an independent determination on the evidence before it, supplemented by additional material.

  • Whether the respondent had discharged the "show cause" obligation under section 16A of the Bail Act 2013 (NSW), requiring him to demonstrate why continued detention is not justified.
  • Whether, even if show cause was satisfied, there remained an unacceptable risk of flight, future offending, or danger to the community under section 19(3) of the Bail Act.
  • Whether the bail conditions proposed, including a $1,500,000 surety from family members, were sufficient to address any identified bail risks.

Decision

The Court of Criminal Appeal, by majority (Simpson JA and Fullerton J, with McCallum J dissenting on the ultimate outcome), revoked the bail granted by Hamill J. Fullerton J delivered the principal reasons, with Simpson JA and McCallum J each adding separate observations.

Fullerton J found that the Crown case was of very considerable strength, supported by electronically recorded meetings, intercepted communications, and evidence suggesting prior drug importation activity. The respondent appeared to have access to financial resources sufficient to finance large-scale drug operations. These factors pointed to a serious and real risk of flight, particularly given the near-certainty of a lengthy custodial sentence upon conviction.

Simpson JA agreed with the revocation, though she accorded greater weight than Fullerton J to two factors the respondent raised: the likelihood of significant pre-trial delay, and the hardship of being held in a New South Wales facility while his family, including a young child, remained in South Australia. Even giving those factors significant weight, Simpson JA concluded they were insufficient to overcome the flight risk. The security offered could not constitute a genuine deterrent given the magnitude of the charges and the likely sentence.

McCallum J dissented. Her Honour accepted that show cause had been satisfied and concluded that the tailored conditions imposed by Hamill J, taking into account the value and variety of the security offered and the respondent's family connections, were adequate to address the identified risks. McCallum J would have refused the detention application.

Orders Made

  • The bail granted on 1 February 2018 by Hamill J was revoked.

Key Takeaways

  • A detention application under section 50 of the Bail Act 2013 (NSW) is heard de novo by the Court of Criminal Appeal: it is not an appeal or review of the original bail decision, and the court assesses the evidence independently.
  • Under the show cause provisions in section 16A, the accused bears the burden of demonstrating why continued detention is not justified; satisfying that threshold is a separate question from whether an unacceptable risk exists under section 19(3).
  • The strength of a Crown case for a serious offence does not, of itself, justify pre-trial detention, but it is directly relevant to the risk of flight: a high probability of conviction for an offence attracting inevitable imprisonment increases the incentive to abscond.
  • Large surety offers attract a degree of judicial scepticism in serious drug cases; the Court of Criminal Appeal (majority) found that even $1,500,000 in security could not constitute a real disincentive to flight where conviction would lead to a lengthy term of imprisonment.
  • Pre-trial delay and geographic separation from family were acknowledged as legitimate factors in the show cause analysis, though on the facts they were insufficient to overcome the flight risk presented by the strength of the case and the respondent's apparent financial resources.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 8, 16A, 16B, 19(3), 50
- Criminal Code Act 1995 (Cth), ss 307.1(1), 11.5(1)
- Criminal Procedure Act 1986 (NSW), s 91

Cases:
- A1 v R; A2 v R [2016] NSWSC 1288
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- R v Cain (No 1) [2001] NSWSC 116
- R v Farrell [2016] NSWSC 1278