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Supreme Court 9 February 2022

Director of Public Prosecutions (Cth) v Habkouk

[2022] NSWSC 98

Drugs
CRIMINAL LAW RELEASE APPLICATION SHOW CAUSE OBLIGATION CAUSE SHOWN HEROIN VERY LARGE IMPORTATION

Citation: Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98
Court: Supreme Court of New South Wales
Date: 9 February 2022
Judge: Dhanji J

Background

The applicant, a 29-year-old man, had been in custody since 3 September 2021 following his arrest on a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely heroin. The quantity alleged was approximately 175 kilograms, representing around half of a total importation of 347.9 kilograms concealed within industrial mixing machines. That quantity was many times in excess of the commercial quantity threshold of 1.5 kilograms, and the offence carries a maximum penalty of life imprisonment.

The Crown alleged that the applicant attended a storage unit where one of the mixing machines had been delivered, performed counter-surveillance checks, and then cut open the machine expecting to find the heroin. Authorities had previously discovered and removed the heroin before allowing the shipment to proceed. The applicant's brother was alleged to be at the centre of the importation arrangements.

The applicant applied for release on bail under section 49 of the Bail Act 2013 (NSW). The prosecution opposed release.

  • Whether the applicant could show cause why his continued detention was not justified, as required under section 16A of the Bail Act 2013 (NSW)
  • Whether, if cause were shown, the applicant posed an unacceptable risk of failing to appear, committing further offences, or endangering the community
  • Whether a legal argument about the impossibility of the attempt charge had sufficient merit to affect the assessment of the Crown case
  • Whether appropriate bail conditions could address any unacceptable risks identified

Decision

Dhanji J found that the applicant had shown cause why his detention was not justified, having regard to the overall factual matrix rather than the strength of the Crown case alone. The court acknowledged that the show cause test is an evaluative exercise in which factors such as delay in proceedings, the applicant's personal circumstances, and the availability of stringent conditions are relevant alongside the seriousness of the charge.

On the strength of the Crown case, his Honour assessed the factual evidence as extremely strong: the inference that the applicant had cut open the machine expecting to find heroin was, in the court's view, compelling. However, the applicant's legal team flagged a novel argument concerning whether an attempt charge could be sustained in circumstances where the drug had been removed before the defendant acted. The court treated this argument as arguable but assessed its prospects of success as not high, declining to make any definitive ruling on the point given the interlocutory context.

Turning to unacceptable risk, the court identified concerns about flight risk given the severity of the potential sentence and the fact that the applicant's brother, a co-accused, had absconded. The court also noted the seriousness of the alleged offending as relevant to the risk of the applicant endangering the community. However, the court was satisfied that a combination of stringent conditions, including a $1 million surety, 24-hour electronic monitoring, a curfew, passport surrender, and restrictions on communication and association, was sufficient to reduce those risks to an acceptable level.

Bail was accordingly granted subject to a comprehensive set of conditions.

Orders Made

  • The applicant to reside at a specified address and not leave except for specified reasons, including medical appointments, legal conferences, and court attendances
  • A strict curfew to apply
  • The applicant not to associate or communicate (other than through his lawyer) with co-accused Guy Habkouk, Moutaze Baroudi, Ronel Prasad, Benhem Yekta, or any prosecution witness
  • Passport to be surrendered to the Australian Federal Police before release
  • No application for any new passport or travel document
  • Not to go within 500 metres of any international departure point
  • Use of only one mobile telephone, with details (number, IMEI, and password) to be provided to the officer in charge within 24 hours of release; the applicant to consent to police checking the content of and communications on that phone
  • No use of any encrypted communication
  • One or more acceptable persons to provide security of $1 million against the applicant's failure to appear
  • One or more acceptable persons to provide an acknowledgment of acquaintance and assessment of the applicant as likely to comply
  • The applicant to present at the front door of his residence at the direction of a police officer to confirm curfew compliance
  • A 24-hour electronic monitoring device (provided by Attenti Australia Pty Limited) to be fitted before release and maintained thereafter

Key Takeaways

  • The show cause test under section 16A of the Bail Act 2013 (NSW) is an evaluative exercise drawing on the full factual matrix; a strong Crown case does not automatically preclude an applicant from showing cause.
  • Where delay in proceedings is a relevant factor, the court will assess whether that delay is genuine and material; here, the court was not persuaded that the anticipated legal argument would cause significant additional delay beyond the ordinary course of proceedings.
  • A novel legal argument about whether an attempt charge is sustainable when the target substance has been removed prior to the accused's conduct may be arguable, but the Supreme Court indicated, in this interlocutory context, that its prospects appeared limited given the existing case law on impossible attempts.
  • Refusing to accept that flight risk or community safety concerns were insurmountable, the court held that a combination of electronic monitoring, a substantial surety, communication restrictions, and movement controls can collectively reduce bail risks to an acceptable level even in serious drug importation matters.
  • Under the Bail Act 2013 (NSW), the presumption of innocence and the right to liberty remain fundamental principles, reflected in the Act's preamble, and are relevant considerations even where the show cause threshold applies.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 49

Cases
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
- Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 32
- M v R [2015] NSWSC 138