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Supreme Court 5 April 2018

R v Hing

[2018] NSWSC 408

DrugsFraud & dishonestyPublic order & justice offences
CRIME BAIL RELEASE APPLICATION BAIL ACT 2013 S 74 REQUIREMENT ALLEGED CHANGE OF CIRCUMSTANCES INCREASED SURETY

Citation: [2018] NSWSC 408
Court: Supreme Court of NSW
Date: 5 April 2018
Judge(s): Garling J

Background

The applicant was arrested on 20 September 2017 and charged with 11 offences, including knowingly taking part in the supply of cocaine in a large commercial quantity (not less than 1 kg), six counts of dealing with the proceeds of crime totalling over $2 million, directing the activities of a criminal group, and several offences relating to resisting arrest. A separate set of driving offences, for which he had already been sentenced, also formed part of the release application.

Fagan J initially granted bail in November 2017 on detailed conditions. The Crown successfully applied to the Court of Criminal Appeal, which granted a detention order on 28 November 2017 and found the applicant was required to show cause why his detention was not justified, given the drug supply charge carried a maximum of life imprisonment.

The applicant then filed a further release application in the Supreme Court in January 2018. Because bail had previously been refused, section 74 of the Bail Act 2013 required him to establish that circumstances had changed or that new material was available before the court could even hear the substantive application.

Legal Issues

  • Whether the applicant met the threshold in section 74 of the Bail Act 2013 to bring a further release application after bail had previously been refused by both the Supreme Court and the Court of Criminal Appeal
  • Whether an increased surety offer amounted to a relevant change in circumstances
  • Whether additional delay in proceedings constituted a relevant change in circumstances
  • Whether expert reports on chemical analysis of cocaine constituted new material not previously before the court
  • Whether newly obtained CCTV footage and police investigation material weakened the Crown case so as to constitute new material

Decision

The section 74 threshold: Because bail had previously been refused, the applicant accepted that section 74 of the Bail Act applied. That provision requires an applicant to demonstrate a change in circumstances or new material before a further release application can be heard. The court found the applicant failed to satisfy this threshold on any of the grounds advanced, and was therefore obliged by the legislation to refuse to hear the application (at [16], [47]-[48]).

Increased surety: The applicant's father offered to increase the proposed surety from $1.2 million to $1.5 million, secured against two unencumbered Sydney apartments. Garling J held this increase was not a relevant change in circumstances. Given the very large sums involved in the alleged offences and the scale of the alleged drug supply, the additional $300,000 was not material to any assessment of the risk of the applicant failing to appear (at [20]-[22]).

Additional delay: The applicant pointed to outstanding brief material, including expert reports on Bitcoin and inquiries with the FBI regarding two potential witnesses, suggesting the trial might be delayed further than the 18 months to two years the Court of Criminal Appeal had already anticipated. Garling J rejected this. The Crown had already been ordered to serve its brief by February 2018, and proceedings were on track consistent with the earlier estimate. No basis existed to conclude the outstanding material would hold up the Local Court proceedings (at [28]-[30]).

Expert chemical analysis reports: The applicant relied on two reports from Professor David Hibbert, an Emeritus Professor of Analytical Chemistry, which addressed the quantity of cocaine that could be inferred from chemical traces found in the unit. Garling J accepted the opinions for the purposes of the application but found they did not affect the strength of the Crown case. The drug supply charge was based on a multi-factorial case, drawing inferences from packaging, the scale and nature of the operation, and the proceeds of crime, not from chemical analysis of trace quantities. The reports did not constitute relevant new material (at [34]-[36]).

CCTV footage and new investigation material: CCTV footage showed the applicant arriving at the unit with other unknown persons, which the applicant argued demonstrated he did not have exclusive access. Garling J rejected this, finding the footage instead showed the applicant controlled who entered the unit (at [37]-[38]). Separately, the Officer in Charge's letter revealed that the applicant's DNA was the major contributor found on one of 22 UPS consignment boxes, and CCTV footage showed the applicant handling one of those boxes. Far from weakening the Crown case, Garling J found this material positively strengthened it (at [43]-[44]). The applicant's submission that comprehensive surveillance material contained no direct evidence of involvement in cocaine supply was a factor that had always existed and was already before both Fagan J and the Court of Criminal Appeal (at [45]-[46]).

Orders Made

  • Application dismissed

Key Takeaways

  • Under section 74 of the Bail Act 2013, where bail has previously been refused, an applicant must demonstrate a relevant change in circumstances or new material information before a further release application can be heard at all. Failure to meet this threshold obliges the court to refuse to hear the application (at [16], [47]-[48]).
  • An increase in the surety amount does not automatically constitute a relevant change in circumstances. Where the alleged offences involve very large sums of money and significant drug quantities, a moderate increase in an already substantial surety offer may not be material to the assessment of flight risk (at [20]-[21]).
  • Expert evidence that addresses only one aspect of a multi-factorial Crown case does not constitute new material for section 74 purposes if the Crown case as a whole does not depend on that aspect (at [34]-[36]).
  • New evidentiary material that arguably weakens one element of the Crown case will not satisfy the section 74 threshold if, taken as a whole, it in fact strengthens rather than undermines the prosecution's position (at [43]-[44]).
  • Anticipated trial delay, already factored into a previous bail determination, does not become a relevant change in circumstances merely because later information suggests the brief preparation may take longer, particularly where court proceedings remain on track within the previously anticipated timeframe (at [28]-[30]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Drug Misuse and Trafficking Act 1985

Cases
- Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325