Citation: Anwar v Director of Public Prosecutions (NSW) [2022] NSWCCA 226
Court: Court of Criminal Appeal
Date: 21 October 2022
Judge(s): Davies J, Hamill J (primary reasons), McNaughton J
Background
The applicant, a Pakistani national residing in Australia on a student (subsequently bridging) visa, was arrested in June 2022 and charged with three offences: dealing with property suspected of being proceeds of crime, money laundering with intent to conceal, and participating in a criminal group. The charges arose from his alleged involvement in a sophisticated fraud and money laundering network in which at least ten individuals were charged, and approximately $2.5 million was allegedly obtained or dealt with across 451 transactions.
The applicant's own alleged role was confined to a period of roughly four days in December 2021, involving two sequences of Western Union money transfers totalling approximately $38,000. He was not alleged to have been involved in the underlying fraud offences that generated the proceeds. Bail had been refused on two prior occasions: at Burwood Local Court in July 2022, and in the Supreme Court bail list in August 2022.
The Director of Public Prosecutions opposed the release application before the Court of Criminal Appeal, relying on police facts sheets, correspondence from the investigating officer, and a bail and custodial history report.
Legal Issues
- Whether there were "unacceptable risks" within the meaning of section 19 of the Bail Act 2013 (NSW), specifically: (1) that the applicant would fail to appear, and (2) that he would commit a serious offence if released on bail
- Whether the identified bail concerns could be adequately mitigated by the imposition of strict conditions, such that no unacceptable risk remained
- How to weigh the likely length of pre-trial custody under section 18(1)(h) of the Bail Act, given the matter's early procedural stage and the strictly indictable nature of the most serious charge
Decision
The Court accepted that two bail concerns existed under section 17 of the Bail Act. The applicant's lack of community ties in Australia, his access to false identity documents found at associated premises, and the potential consequences of conviction all supported a concern that he would fail to appear. His connection to the criminal network's principals, associations with co-accused, and the scale of the overall enterprise supported a concern that he would commit further serious offences if released.
Hamill J assessed the strength of the prosecution case as required by section 18(1)(c). The case on the first sequence (dealing with suspected proceeds) appeared strong. The money laundering charge in the second sequence, which required the tribunal of fact to draw an inference about the applicant's knowledge and intention to the exclusion of all other reasonable inferences, appeared considerably weaker. The Court declined to accept the submission that the prosecution case on that charge would necessarily fail, given the timing of events relied upon by the Director.
A significant consideration under section 18(1)(h) was the length of time the applicant was likely to remain in remand. The money laundering offence is strictly indictable and subject to the Early Appropriate Guilty Plea scheme, meaning the matter was unlikely to reach trial in the District Court for a substantial period. Hamill J found it appropriate to proceed on the assumption that the case would run to trial rather than speculating about the prospect of a guilty plea or a summary disposal.
Having formulated strict and onerous conditions, the Court was satisfied that those conditions satisfied all of the requirements under section 20A(2) of the Bail Act: the conditions were reasonably necessary, proportionate, appropriate to the concerns identified, no more onerous than necessary, and practically capable of compliance. On that basis, the Court was satisfied that no unacceptable risks of the kinds identified in section 19 remained, and conditional bail was granted.
Orders Made
- The release application was allowed
- Bail was granted on strict and onerous conditions, including:
- Residence at a specified address
- Reporting to police three times per week
- Surrender of all passports and travel documents, with a prohibition on applying for new ones
- Home detention, with permitted absences only when accompanied by a named surety, or for employment (with advance notice to police), legal conferences (with 48 hours' notice), court attendance, reporting, or medical emergency
- A compliance and enforcement condition permitting police to attend the residence to confirm compliance, subject to reasonable grounds and regard for other occupants' rights to peace and privacy
Key Takeaways
- Bail concerns under section 17 of the Bail Act 2013 and an "unacceptable risk" under section 19 are distinct concepts: the existence of a bail concern does not automatically mean that risk is unacceptable where conditions can sufficiently mitigate it.
- Under section 18(1)(c), courts must assess the strength of the prosecution case even at an early procedural stage, acknowledging that such assessments are necessarily imperfect and somewhat intuitive when based on facts sheets rather than tested evidence.
- The Court of Criminal Appeal confirmed that uncharged conduct and uncharged items (such as false identification documents found at associated premises) remain relevant considerations in evaluating bail risk under sections 17 to 19, even where no specific charges have been laid.
- Anticipated length of pre-trial custody under section 18(1)(h) can weigh in favour of bail, particularly where a strictly indictable offence must navigate the Early Appropriate Guilty Plea process before reaching a District Court trial.
- A release application to the Court of Criminal Appeal under section 67(1)(e) of the Bail Act operates as an original application, not as an appeal or review of the primary judge's decision, meaning the earlier reasons do not bind or formally constrain the Court's assessment.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 20A(2), 49, 67(1)(e)
- Crimes Act 1900 (NSW), ss 93T(1), 193B(1), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), Ch 3 Pt 2, ss 65 to 81
- Local Court Practice Note Comm 2 (14 March 2018), cll 8.1, 9.2
Cases cited: No cases were cited in the judgment.