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Supreme Court 30 August 2018

R v Ian David Lazar

[2018] NSWSC 1333

Fraud & dishonestyTheft & propertyPublic order & justice offences
BAIL FRAUD COMMERCIAL FINANCIAL DEALINGS WHETHER CONDITIONS ONEROUS

Citation: R v Ian David Lazar [2018] NSWSC 1333
Court: Supreme Court of New South Wales
Date: 30 August 2018
Judge(s): Lonergan J

Background

The accused faced multiple serious charges spanning fraud, dishonest dealings, money laundering, theft, and an attempt to pervert the course of justice. The charges involved allegations of complex commercial and financial misconduct, including conduct relating to a deceased elderly property owner, a financing arrangement with a couple, and a motor vehicle transferred through a series of transactions. A separate allegation concerned the accused's involvement in plans to interfere with a police officer.

The accused had been on bail since January 2015, with conditions progressively refined following breach allegations and successive court proceedings. A bail breach was established in June 2016 after police discovered the accused conducting financial dealings under a pseudonym. Following subsequent applications, the bail conditions relating to commercial financial dealings (the "CFD conditions") had been revised most recently by Judge Hunt in the District Court in May 2018.

The accused applied to the Supreme Court seeking removal or significant modification of the CFD conditions. With contested hearings not scheduled until between May and October 2019, the conditions would remain operative for at least a further 14 months.

  • Whether the CFD conditions should be removed altogether on the basis that they were not reasonably necessary to address identified bail concerns
  • Whether, if not removed, the CFD conditions should be modified to reduce the administrative burden they imposed
  • Whether an additional "non-disclosure" condition could be imposed on third parties under the Bail Act 2013 (NSW)

Decision

Lonergan J assessed the bail concerns under section 17 of the Bail Act 2013 (NSW), concluding that the accused continued to present a real risk of committing a serious offence if released without restriction. That risk was directly connected to the accused's conduct of commercial and financial dealings, given the nature of the charges.

Under section 20A, bail conditions may only be imposed where the court is satisfied they are reasonably necessary, relevant, proportionate, and not more onerous than required. Her Honour accepted that the CFD conditions were arguably onerous, but found they were no more onerous than necessary to address the identified bail concern. The conditions were found to be relevant, reasonable, and proportionate to the offences for which bail had been granted.

The accused's argument that weaknesses in the Crown cases undermined the necessity for the conditions was not accepted. Lonergan J characterised the charges as complex rather than fatally flawed, and declined to treat partial failures at committal as casting sufficient doubt on the remaining charges to justify removing the conditions.

On the proposed non-disclosure condition directed at third parties, Her Honour doubted the Bail Act provided any power to impose conditions on persons other than the accused, and declined the application in any event for want of supporting evidence.

Orders Made

  • The application for variation of bail conditions was dismissed.

Key Takeaways

  • A bail authority must be satisfied that any condition imposed is reasonably necessary, relevant, proportionate, and not more onerous than required to address an identified bail concern, as required by section 20A of the Bail Act 2013 (NSW).
  • In dismissing the variation application, the Supreme Court confirmed that conditions which are burdensome to the accused may nonetheless be lawfully maintained where the burden does not exceed what is necessary to address the identified risk.
  • The risk that an accused will commit further serious offences remains a live bail concern even where some related charges have failed at committal or been withdrawn; such failures do not automatically undermine the basis for existing conditions.
  • Unsubstantiated assertions of financial hardship, without supporting evidence, were insufficient to establish that the CFD conditions were unworkable or unduly onerous.
  • The Bail Act 2013 (NSW) does not appear to extend to the imposition of conditions upon persons other than the accused, with Lonergan J expressing doubt that any such power exists.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 20A
- Crimes Act 1900 (NSW), ss 126, 178A, 178BA, 192E, 192G, 193B, 319

Cases:
No cases were cited in the judgment.