Citation: Bertucci v Director of Public Prosecutions (Commonwealth) [2021] NSWSC 240
Court: Supreme Court of New South Wales
Date: 17 March 2021
Judge(s): Hamill J
Background
The applicant faced a single charge of importing a commercial quantity of a border-controlled drug, namely approximately 175 kilograms of methamphetamine, contrary to section 307.1(1) of the Criminal Code (Cth). The offence carries a maximum penalty of life imprisonment. The prosecution alleged the applicant used a false identity, conducted four "dry run" importations through a purported whitegoods company, and then orchestrated a "live run" shipment from Canada in early April 2019.
The applicant was arrested on 25 November 2020 following a search warrant executed at his home, and remained in custody from that date. A prior bail application in the Local Court was refused in January 2021. The applicant brought this release application before the Supreme Court in March 2021.
The Commonwealth Director of Public Prosecutions (CDPP) opposed bail, relying primarily on the seriousness of the offence, the quantity of drugs involved, and the strength of its case. The applicant, through senior counsel, argued that a combination of circumstances collectively discharged his burden of showing cause.
Legal Issues
- Whether the applicant could show cause why his detention was not justified, as required by the "show cause" provisions in section 16B(1)(g) of the Bail Act 2013 (NSW) for this category of offence
- How to assess the strength of a largely circumstantial prosecution case at the bail stage
- Whether the anticipated delay between arrest and trial was a significant factor in the show cause analysis
- Whether the applicant's family circumstances, including the possible neurological condition of his young son, carried sufficient weight
- Whether the availability of a large surety and proposed electronic monitoring conditions could adequately mitigate any identified risks
Decision
Hamill J confirmed that the show cause requirement under section 16B is a distinct threshold question that must be addressed separately from the unacceptable risk analysis under sections 17 to 19 of the Bail Act, though many of the relevant considerations overlap. The onus rested on the applicant to show cause on the balance of probabilities.
On the strength of the prosecution case, the court declined to characterise it as either "overwhelming" (as the CDPP submitted) or merely "moderate" (as the applicant submitted). While the evidence from electronic devices seized at the applicant's home was significant, the court acknowledged the case was circumstantial. The court also noted that a piecemeal attack on individual pieces of circumstantial evidence does not reflect how a jury will ultimately assess the whole.
The court accepted that likely delay between arrest and trial, and the applicant's family circumstances including the possible neurological condition of his young son, were genuine considerations. However, taken individually and in combination, these matters did not rise to the level needed to show cause given the seriousness and sophistication of the alleged offending and the quantity of drugs involved.
The proposed bail conditions, including electronic monitoring and a large surety, were considered but found to carry limited weight in the show cause analysis. Although those conditions could mitigate some risks, they did not eliminate them, and the court concluded the applicant had not discharged the burden of showing why his detention was not justified.
Orders Made
- The release application was dismissed.
- Bail was refused.
Key Takeaways
- Refusing bail in a show cause case, Hamill J confirmed that the show cause threshold under section 16B of the Bail Act must be considered as a separate and preliminary question, distinct from the unacceptable risk assessment under sections 17 to 19, even where the relevant facts overlap.
- Even in the most serious drug importation cases, bail is not automatically foreclosed. The court noted its own prior decision in Mohr v R, where bail was granted to an applicant alleged to have imported approximately half a tonne of cocaine, demonstrating that a compelling combination of circumstances can, in principle, satisfy the show cause requirement regardless of offence gravity.
- Assessing the strength of a circumstantial prosecution case at the bail stage is inherently difficult. The court observed that a statement of facts making assertions framed as established findings may not accurately reflect the inferential nature of the evidence, but equally that a piecemeal challenge to individual strands does not capture how a tribunal of fact approaches circumstantial evidence as a whole.
- A proposed bail condition of electronic monitoring is not categorically unavailable for offences prosecuted under Commonwealth law. The court declined to treat a Local Court decision to the contrary as binding authority on that point.
- The applicant's offer to submit to stringent conditions, including electronic monitoring and a large surety, was relevant to the show cause issue but could not be given decisive weight. Such conditions are assessed as part of the overall combination of circumstances rather than as a standalone reason to grant release.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16B, 17, 19
- Criminal Code (Cth), s 307.1(1)
Cases:
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
- Boatswain v R [2019] NSWCCA 238
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v Tikomailmaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- Director of Public Prosecutions v Hourigan [2017] NSWCCA 170
- JM v R [2015] NSWSC 978
- Mohr v R (Supreme Court of NSW, Hamill J, 22 December 2017, unreported)
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- R v Bail Applicant M [2020] NSWSC 1685
- R v Gountounas [2018] NSWCCA 40
- R v Marcus [2016] NSWCCA 237
- R v Mawad [2015] NSWSC 1237
- R v Xi [2015] NSWSC 1575