A1 v R; A2 v R

[2016] NSWSC 1288

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	A1 v R; A2 v R [2016] NSWSC 1288
Hearing dates:	18 August 2016
Date of orders:	13 September 2016
Decision date:	13 September 2016
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Application by A1 dismissed. Application by A2 dismissed.
Catchwords:	BAIL – where first applicant charged with murder and second applicant charged with being an accessory after the fact to murder – show cause offences – Bail Act 2013, s 16B – whether applicants have shown cause why their detention is not justified
Legislation Cited:	Bail Act 2013 Court Suppression and Non-Publication Orders Act 2010 Crimes Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Chau v DPP (1995) 37 NSWLR 639 Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 Clumpoint v DPP [2005] QCA 43 DPP (Cth) v Germakian [2006] NSWCA 275 DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 JM v R [2015] NSWSC 978 M v R [2015] NSWSC 138
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	A1 (Applicant) A2 (Applicant) The Crown (Respondent)
Representation:	Counsel: A1 (Self Represented) A2 (Self Represented) D Robinson (Crown)   Solicitors: Director of Public Prosecutions
File Number(s):	2016/83132 (A1)2016/129842 (A2)
Publication restriction:	The Court orders that the names of the applicants, the deceased and various witnesses likely to give evidence at the trial, and the events the subject of the applications, and any material tending to identify the individuals, be suppressed. Such order is made until the conclusion of the trial of the applicants or further order of the Court, whichever occurs first.

Judgment

1. This judgment deals with two bail applications, one brought by A1 and the other by A2. Both applicants are charged with offences arising out of the death of an individual in 2011.

2. The applications were heard together. Many of the submissions were similar, and the Crown case against each is similar. In those circumstances, it is convenient to deliver a single judgment dealing with both applications.

Non-Publication Order

3. In order to deal appropriately in this judgment with the applicants’ submissions, it will be necessary to consider a number of different aspects of the Crown case. As is inevitable on a bail application, the material to be considered may or may not be admitted into evidence at the trial of the applicants.

4. In order to prevent prejudice to the proper administration of justice, and in order to ensure a fair trial of both of the applicants, it is necessary for the Court to make a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010.

5. I acknowledge that a primary objective of the administration of justice is to safeguard the public interest in open justice: Court Suppression and Non‑Publication Orders Act, s 6. However, it is always necessary to prevent injustice occurring in the circumstances of particular cases. In interlocutory applications such as these, it is important for the Court to do what it can to ensure that a fair trial will take place.

6. Accordingly, the Court has ordered that the names of the applicants, the deceased and the various witnesses likely to give evidence at the trial, and any other material tending to identify these individuals, be suppressed. Such order is made until the conclusion of the trial of the applicants or further order of the Court, whichever first occurs.

A1

7. A1 was arrested on 3 October 2013 and charged with the murder of ZZ. That charge relates to events which allegedly occurred on 11 August 2011 in Sydney. Bail was refused at the time of A1’s arrest, and he has been in custody ever since.

8. Prior to A1’s arrest, he was on bail with respect to three other groups of charges. The first set of charges involved supplying a prohibited drug and possessing a prohibited weapon; the second set involved three counts of intimidating a police officer; and the third set involved offences relating to A1’s declining to give evidence or, alternatively, giving false evidence to the NSW Crime Commission. Although bail was granted in respect of some of these charges, bail has been refused since A1’s arrest on the murder charge.

9. Recent proceedings in the Local Court have resulted, or will result, in the withdrawal by police of the second set of charges of intimidating a police officer. Those charges are no longer relevant for consideration in this judgment, with respect to bail.

10. A1 is presently almost 42 years old.

11. As murder is an offence which falls within the provisions of s 16B(1)(a) of the Bail Act 2013, A1 needs to show cause why his detention is not justified.

12. A1 has no previous convictions for any criminal offences prior to the charges to which I have made reference being brought against him.

A2

13. A2 has been jointly indicted with A1 on a charge that between 10 August 2011 and 14 August 2011 in Sydney, he received, harboured, maintained and assisted A1 in the knowledge that A1 had committed murder. This is an offence against s 349(1) of the Crimes Act 1900.

14. A2 is presently 39 years old and will shortly turn 40. He was arrested on 3 October 2013, the same day as A1, and was charged with murder. The charge which he presently faces, and upon which he has been indicted, namely being an accessory after the fact to murder, was identified by the committing Magistrate in April 2016.

15. A2 has also been charged with two counts of intimidating a police officer. Those charges are to be withdrawn by the police.

16. He has a past criminal history involving an offence in 2008 for which he was fined $300, offences in 2011 concerning the possession of a prohibited plant and the supply of cannabis which were dealt with by a s 9 bond, and a driving offence in 2012. I do not consider these offences to be of any relevance to the Court’s consideration of this application.

17. A2 accepts that, like A1, he too is obliged by the provisions of the Bail Act to show cause as to why his detention is not justified.

Criminal Proceedings Chronology

18. Each of the applicants was arrested on 3 October 2013. They were charged on that day and have been in custody ever since. The murder of ZZ is alleged to have occurred on 11 August 2011, that is, over two years prior to their arrest.

19. The Crown relies on certain events before and after the alleged murder to establish its case. A period of about 3 months is encompassed by these events.

20. Telephone intercepts were undertaken from September 2011 onwards. In addition, pursuant to lawfully obtained warrants, listening devices captured various conversations between A1 and A2 from November 2011 onwards.

21. It took approximately 2 years from the applicants’ arrest on 3 October 2013 for a complete prosecution brief to be served on each of the applicants. It seems that during this period, there were regular mentions of the matter before the Local Court, perhaps as many as 20. Other than a statement in the Crown submissions that the brief is “very large”, comprising about 17,000 pages and including substantial electronic material, no evidence is provided to this Court to explain the very lengthy time it took the prosecution to complete its brief and provide it to the applicants. In its submissions to this Court on these applications, the Crown accepts that the period involved between arrest and service of the Crown brief “… was unreasonably lengthy”.

22. The matter was mentioned in the Local Court after the service of the brief on 11 September 2015. Unsurprisingly, since the brief occupied 40 volumes, it had not been completely read by the applicants’ representatives. The brief is now said by A1 to comprise at least 50 volumes.

23. The applicants were granted permission to cross-examine some of the Crown witnesses in the committal proceedings in the Local Court, which took place between 11 April 2016 and 14 April 2016. On 15 April 2016, the presiding Magistrate delivered his decision. He committed A1 to the Supreme Court to stand trial on the charge of murder, but declined to commit A2 to stand trial on that charge. Instead, he committed A2 to stand trial on the charge of being an accessory after the fact to murder. Both applicants, and a third co-accused, were arraigned in this Court on 6 May 2016. At that time, a trial date was fixed for 20 February 2017. On the applicants’ application, that trial date has been vacated, and a new trial date in May 2017 has been allocated. The trial is presently estimated to take approximately 4 months.

24. By the time the trial commences, each applicant will have been in custody for just over 3½ years.

Bail Act 2013

25. This application for bail seeks a “bail decision” under s 8 of the Bail Act, namely a grant of bail with the imposition of specified conditions for both applicants. Such decisions are to be made in accordance with Part 3 of the Bail Act.

26. Section 16A of the Bail Act applies because the serious offences with which the applicants are charged, namely murder and accessory after the fact to murder, are offences that are each punishable by imprisonment for life: s 16B(1)(a) of the Bail Act.

27. Section 16A of the Bail Act imposes a show cause requirement, such that this Court must refuse to grant bail unless the applicants show cause why their detention is not justified. If the applicants do show cause, then this Court must proceed to assess the bail concerns raised by the Crown and make an evaluative assessment of whether those concerns give rise to an “unacceptable risk”: ss 17-19 of the Bail Act.

28. The assessment of unacceptable risk is to be conducted in accordance with ss 17 and 18 of the Bail Act. There are four bail concerns identified in s 17:

“17   Assessment of bail concerns

(1)   A bail authority must, before making a bail decision, assess any bail concerns.

(2)   For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will:

(a)  fail to appear at any proceedings for the offence, or

(b)  commit a serious offence, or

(c)  endanger the safety of victims, individuals or the community, or

(d)  interfere with witnesses or evidence.”

29. In undertaking the unacceptable risk assessment, the Court may consider only those matters identified in s 18:

“18 Matters to be considered as part of assessment

(1)   A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division:

(a) the accused person’s background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether the accused person has a history of violence,

(e) whether the accused person has previously committed a serious offence while on bail,

(f) whether the accused person has a history of compliance or non‑compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

(2)   The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered:

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,

(b) the likely effect of the offence on any victim and on the community generally,

(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.”

30. Section 19 of the Bail Act provides that this Court must refuse bail if it is satisfied, on the basis of the unacceptable risk assessment, that there is an unacceptable risk. An unacceptable risk is defined as follows:

“19 Refusal of bail—unacceptable risk

(1)   …

(2)   For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.”

31. If, on the other hand, there are no unacceptable risks, then the Court must grant bail (whether with or without the imposition of bail conditions): s 20 of the Bail Act.

32. In determining whether or not to grant bail, the Court is not bound by the principles or rules of law regarding the admission of evidence, but can take into account any evidence or information which it considers credible or trustworthy in the circumstances: s 31 of the Bail Act.

33. When this Court decides any matter in exercising its function in relation to bail, that matter is to be decided on the balance of probabilities: s 32 of the Bail Act.

The Appropriate Process

34. It is convenient first to identify the appropriate process for the determination of a bail application in respect of a show cause offence. I have previously identified this process and the principles of general application in JM v R [2015] NSWSC 978. What follows replicates what I there wrote.

35. The terms of the legislation make it clear that a bail application for a show cause offence (namely an offence to which s 16B of the Act applies) is to be determined in two steps. The two steps are not to be conflated. The first step is that an applicant needs to show cause why their detention is not justified (“the show cause test”). If the applicant succeeds in so doing, then the second step requires the court to assess the bail concerns raised by the Crown and determine whether there is an unacceptable risk (“the unacceptable risk test”): DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20], [25].

36. Although a two-step decision-making process is required, similar matters may be relevant to both steps. In many cases, matters that are relevant to the unacceptable risk test will also be relevant to the show cause test: Tikomaimaleya at [24]; M v R [2015] NSWSC 138.

37. However, not everything that is relevant to the show cause test is relevant to the unacceptable risk test. Section 18 of the Bail Act requires that, in considering the unacceptable risk test, a court is only to consider the matters listed in that section. A court cannot consider anything else. In particular, a court is not entitled to take into account the fact that the applicant has shown cause why their detention is not justified: s 19(3) of the Bail Act. However, the Bail Act does not prohibit the court from considering, at the stage of applying the show cause test, that there are no bail concerns, or that the risks if bail is granted are not unacceptable.

38. As the terms of the Bail Act make clear, the question of whether a person has shown cause, and whether one or more risks are unacceptable, is evaluative in nature, requiring an identification of all factors relevant to the particular application, an assessment of the weight and significance to be attached to each of those factors, and then an evaluation of whether cause has been shown, or whether the risk or risks are acceptable or unacceptable.

39. Both tests also involve, although to a lesser degree for the show cause test, an exercise in predicting human behaviour, to which no certainty can ever be attached. Reasonable minds may well differ on whether bail ought to be granted in a particular case. There is no avenue of appeal provided for by legislation, although a detention application or a bail application may be made to the Court of Criminal Appeal after a bail decision has been made by the Supreme Court. Such an application is to be dealt with as a fresh application: s 75 of the Bail Act.

Principles of General Application

40. In considering a bail application, some fundamental common law principles need to be kept in mind. Again, what appears below was previously set out in JM v R. It warrants repeating.

41. First, the Preamble to the Bail Act states that the Parliament, in enacting the Act, has had regard to the common law presumption of innocence and the general right to be at liberty. A court needs to keep these principles in mind when considering a bail application, because they have not been excluded by the Act. On the contrary, they inform the Act.

42. Secondly, it is an essential and important principle that an accused who is presumed to be innocent is not to be punished before a conviction: Clumpoint v DPP [2005] QCA 43 at [47]. Put differently, bail is not denied to a person as a punishment: Chau v DPP (1995) 37 NSWLR 639 at 655 per Kirby P; Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at pp 27-28.

43. The approach of correctional authorities to a person remanded in custody awaiting trial because bail has been refused is different from their approach to a sentenced prisoner. Rehabilitation programs are not ordinarily available to remand prisoners. Custodial classifications are different. Usually, persons on remand are held in maximum security facilities regardless of the offences with which they are charged or their likely classification after conviction.

44. In light of this second essential principle, the usual custodial arrangements, and in the absence of any provision in the Bail Act, no bail decision can properly be regarded as, and certainly could not properly be perceived as, intruding upon the sentencing discretion of a court. Nothing in the Bail Act warrants a court refusing bail because of a concern that a decision to grant bail may later fetter the decision of a sentencing court.

45. Thirdly, it is a matter of general application that the wording of the show cause test makes it clear that there is an onus, on the balance of probabilities, falling upon an applicant to persuade the Court that their detention is not justified. In discharging that onus, the applicant is not required to show special or exceptional circumstances. Section 22(2) of the Bail Act makes it plain that the show cause test is separate and distinct from the demonstration of special or exceptional circumstances. An applicant does not need to show special or exceptional circumstances to show cause why their detention is not justified.

46. Similarly, the inclusion of a requirement to show cause does not bespeak a legislative intention that bail will not ordinarily or normally be granted where a show cause requirement exists. After all, the terms of the legislation do not permit a grant of bail unless cause can be shown, and equally the legislation does not restrict the matters which can be considered when a court determines the show cause test.

40. To be sure, authorities of long-standing in this Court dealing with previous (and now repealed or superseded) versions of the Bail Act, have required the Court when considering whether bail ought to be granted when there is a presumption against bail, to concentrate its attention on the strength of the Crown case and give little, if any, weight to factors which are ordinarily relevant to bail applications where no presumption exists: see: DPP (Cth) v Germakian [2006] NSWCA 275 at [9]-[11].

41. However, the introduction of the two-step process in the present Bail Act, the legislative acknowledgement that the show cause test does not require special or exceptional circumstances to be shown, except in a limited range of cases identified in s 22 of the Bail Act, and the clear acceptance by the Court of Appeal in Tikomaimaleya at [24] that factors relevant to the unacceptable risk test (which are common to all bail applications) may also be relevant to the show cause test, indicate in combination that these authorities are distinguishable from the approach which is now to be taken. The end result is that, even where a show cause requirement exists, an assessment that the Crown case is strong may be, but is not necessarily, determinative of whether continued detention is justified.

42. Fourthly, when a court is called upon to assess the strength of the Crown case for the purpose of a bail application, it can only do so to a very limited extent. That is because the Court is not generally provided with the full brief of evidence (often it is not yet available) and the Court does not generally hear prosecution witnesses orally, which precludes an assessment of the credibility of a witness save by comparing the contents of a witness’ written statements with other available material. The assessment of the strength of the Crown case is also made at a time quite distant from the final hearing, by which time the material available to the prosecution may be very different. In particular, witnesses whose statements are taken by police do not always give evidence at a trial; the evidence given by witnesses at trial may not accord with their statements; a different picture may emerge during cross‑examination; and a jury, or the presiding Judge or Magistrate, may take an adverse view of the demeanour or credibility of a witness for reasons not apparent from the words of a written statement. A court making a bail decision needs to be, and ordinarily is, conscious of these matters, which are necessarily unknown when assessing the strength of the Crown case.

43. Fifthly, the fact of the arrest and charging of an individual with an offence is not equivalent to a determination of guilt, and the fact that the person remains in custody pending trial is the occasion for the consideration of, and if appropriate, the exercise of, the discretion granted to a court under the Bail Act, rather than a reason of itself to detain a person in custody pending trial.

Unacceptable Risk Test

51. The unacceptable risk test refers to the existence of one or more bail concerns, namely, failure to appear at any future proceedings, committing a serious offence, endangering the safety of victims, individuals or the community, and interfering with witnesses or evidence: s 17 of the Bail Act.

52. In relation to the bail concern about the commission of a serious offence, the phrase “serious offence” is not defined in the Bail Act. Subject only to the provisions of s 18(2) of the Act, any offence can constitute a serious offence. It is a matter for the court hearing the bail application to determine whether an offence is serious for the purposes of a bail concern.

53. As earlier noted, s 18 limits the matters to be taken into account in assessing bail concerns under the Bail Act. Each of the matters is given equal priority. No one matter assumes dominant significance. It is important to note that in s 18(1)(i), the Court is entitled to have regard to the likelihood of a custodial sentence being imposed if an accused person is convicted of the offence. However, that factor is only to be taken into account in considering the existence of a bail concern, being one of the four matters to which reference has been made above in [28]. Unsurprisingly, an applicant facing a lengthy jail sentence may be, depending on their personal circumstances, at greater risk of failing to appear at future proceedings.

54. As well, it is important to note that s 18(1)(p) of the Bail Act enjoins a court to take into account bail conditions that could reasonably be imposed to address any bail concerns before assessing whether the bail concerns present an unacceptable risk.

55. Section 18 does not permit a court to have regard to the views of investigating police, or any other police officer, about whether bail should or should not be granted. The only views to which a court may have regard are those of a victim or the family member of a victim, and then only to a limited extent: s 18(1)(o) of the Bail Act. A police officer may, and commonly will, put material or relevant facts relating to the matters required by s 18 of the Bail Act before the Court. But this is, or should be, limited to nothing more than a factual account. Statements of police opinion or views as to the appropriateness of a grant or refusal of bail fall outside the terms of s 18 and are thus unable to be considered.

56. This is not to say that submissions by a representative of the prosecution, who may be a police officer, cannot be made to, or received by, the Court. Such submissions are not the expression of the personal opinion or views of the prosecutor. They are intended to assist the Court in the determination of an application.

Crown Case

57. The Crown case against A1 is that he murdered ZZ on the afternoon of 11 August 2011. The case against A2 is that he assisted A1 in this criminal enterprise, after ZZ had been murdered, knowing that A1 had murdered him.

58. The assistance which the Crown says that A2 provided to A1 consisted of being available to assist A1 at the time of the killing, sending SMS communications on the afternoon of 11 August 2011, using ZZ’s phone in an attempt to deflect suspicion from A1, and assisting A1 to dispose of the body of ZZ sometime in the early hours of the morning of 12 August 2011. The Crown case also alleges that A2 assisted A1 to clean the vehicle which had been used to transport the body of ZZ, thereby removing potential evidence from the vehicle.

59. It is necessary to say a little about the detail of the Crown case. In May 2011, about 2 months before ZZ was murdered, A1’s twin brother committed suicide in his mother’s house by hanging himself. He had a history of mental illness.

60. Prior to his death, A1’s twin brother had been involved in a financial dispute with his former partner, QQ. Solicitors had been engaged and steps had been taken to assert ownership, or an interest, in real property.

61. Following the death of A1’s twin brother, there was a property dispute between QQ and A1 and his family which became emotional and quite bitter. QQ asserted she was entitled to remain and live in a particular property in which she had formerly lived with A1’s twin brother. A1 and his family claimed that they were fully entitled to that property. The circumstances surrounding the funeral of A1’s twin brother were also in dispute.

62. The deceased ZZ knew all the parties involved in these disputes and, on the Crown case, became an unofficial mediator, attempting to assist the parties to resolve their dispute. ZZ’s interaction with A1 and his family became the source of strong personal feelings between A1 and QQ. ZZ provided information to police in connection with a complaint made by QQ about the conduct of A1. This contributed to raised tensions between A1 and ZZ.

63. On the Crown case, A1 threatened ZZ. The Crown case is, although this is not clearly explained, that A1 came to the view that his twin brother had been murdered by ZZ at the instigation of his former partner, QQ.

64. The Crown relies upon a diary entry, amongst other things, written by A1 including the following:

“The act was pre-planned by [ZZ], as [ZZ] lived a double life. He was a serial killer, sadistic in character profile. A weak predator that enjoyed the opportunity to watch creatures suffer for his sexual satisfaction.”

65. It is the Crown case that A2 was a close friend of A1, and came to share A1’s view that his twin brother had been murdered by ZZ.

66. Against this background, the Crown case of the murder is a circumstantial one. Shortly after lunch, the victim, ZZ, walked from his home to a house a short distance away which was owned by A1. He took his mobile phone and some tools, but left his wallet, house and car keys at home. His truck was unlocked. When the victim, ZZ, arrived at the house, A1 was present with another co‑accused. Together, the victim, A1 and his co-accused left that premises and travelled to another home owned by A1’s family. It was only a few minutes away. The Crown case is that A1’s van containing him, his co‑accused and the victim arrived at the second property at about 1.50pm. A very loud argument was heard by a neighbour between two men who were speaking a foreign language. A1 and the victim were natives of that foreign country and both spoke that language. The co-accused did not.

67. At about 3.07pm, A1’s blue van was captured on CCTV footage leaving the property at which the argument occurred. It returned a short time later.

68. Between 3.57pm and 5.26pm, five SMS messages were sent from the victim’s mobile phone. They were purported to have been sent by him, but it is the Crown case that, by that stage, the victim was dead and the messages were sent either by A1 or A2.

69. On the evening of 11 August 2011, the blue van belonging to A1 and a white van belonging to A2 were captured on CCTV footage passing through the M5 tollgates at Holsworthy headed west. Those two vehicles driven by A1 and A2 arrived at the home of A2’s grandmother in the Campbelltown area. The vehicles and their drivers remained there until at least 1am, when A2’s grandmother retired to bed. At or about that time, both men left her premises.

70. The next time the vehicles were observed was when they were travelling in an easterly direction, in convoy, at 4.46am at the M5 tollgates at Holsworthy.

71. It is the Crown case that between 1am and 4.46am, A1 and A2 disposed of the body of the victim, ZZ.

72. On 13 August 2011, A1, whilst driving his blue van, was stopped by police. There was the smell of bleach in the back of the van which the Crown contends, arose because attempts had been made to clean the back of the van.

73. It is the Crown case that A2 has attempted to create a false alibi for the night of the disposal of the victim’s body.

74. After these events, and some others that are associated with it, the police investigation has largely taken the form of conversations between A1 and A2 and various other people. These conversations were lawfully recorded either by telephone intercept, or else by listening device.

75. It is unnecessary to set out in detail the contents of these recorded conversations. However, the Crown contends that the conversations provide evidence of A2’s attempts to have his grandmother provide police with a false story about the night that A1 and he visited her. The Crown also contends that a conversation between A1 and A2 referred to the day that the victim was killed and referred to circumstances surrounding the disposal of the victim’s body. Another conversation, the Crown contends, constitutes a direct admission by A1 of his murdering the victim, ZZ.

76. Of particular importance is the fact that a diary belonging to A1 was seized from his blue van. A portion of that diary reads:

“… wrap in black cotton sheet and tie with black ribbon (shoelace) tight and through in the river (Georges River).” [sic]

77. The Crown’s case is that this entry was written by A1. That is supported by expert handwriting analysis. As well, that account is supported by the fact that in A1’s van at the time the diary was located, a single shoe was found with the shoelace removed.

78. The Crown’s case is that ZZ has been murdered. All of the ordinary circumstances surrounding ZZ’s activities of daily living, such as use of credit cards, mobile telephone, bank accounts, immigration records, contact with family, absence of any medical treatment being sought and the like, all point comprehensively to the death of the victim.

79. In those circumstances, the Crown case is that the only reasonable hypothesis to be gleaned from all of the facts and circumstances is that the victim was killed by A1, and that A2 assisted in the disposal of the body and other post-crime activities.

80. The Crown case on the offences of intimidate police consist entirely of a recording from a listening device. That device recorded that on 25 November 2011, A2 threatened to physically harm, and ultimately kill, the officer in charge of the investigation into A1 and A2 with respect to the death of the victim, ZZ. On 30 July 2012, a lawfully installed listening device recorded A1 saying to A2 that he needed the officer in charge to be destroyed. There are numerous recorded conversations relating to “getting” or “dealing with” the officer in charge of the murder investigation.

81. Although the charges of intimidation have been, or are to be withdrawn, this material would nevertheless be likely to be admissible in, and relied upon as part of, the Crown case on the principal offences. It could be used to demonstrate a consciousness of guilt on the part of both the applicants.

82. If all of these facts are established, and the jury concludes that the voices on the intercepts are those of the applicants, A1 and A2, then the Crown’s case can only be regarded as a strong one.

83. However, the applicants attack the strength of the Crown case and submit that, contrary to the view advanced by the police, the case is not at all strong.

84. The applicants mount the following criticisms of the Crown case, and submit that the Court should find that it is a weak one.

85. The applicants attacked the Crown brief on the basis that, except for a small number of statements, the vast bulk of the statements, totalling in excess of 300, were generated well after the events detailed in those statements, do not refer to or relate to any contemporaneous notebook entries and, accordingly, being non-contemporaneous, cannot be regarded as reasonably reliable or likely to be accurate. The applicants submit that the nature of the Crown brief provides no direct evidence that any murder has in fact occurred, that it is wholly circumstantial and that the police have concocted or fabricated some evidence.

86. The applicants rely upon statements which they submit were made by the committing Magistrate at the time of committal with respect to the strength of the prosecution case.

87. It is important to record what the committing Magistrate said at that time. On 15 April 2016, the committing Magistrate said:

“The evidence against A2 and A1 is circumstantial. Other than the recorded conversations, perhaps notes and videos, in my view it cannot be described as a strong case. There are weaknesses. There is a tenuous link. Based on those decisions, I am satisfied that the evidence is capable of satisfying a jury properly instructed, beyond reasonable doubt, that [A1] has committed an offence, and the offence … is that between 2pm on 11 August 2011 and 4am on 12 August 2011, at [a suburb of Sydney] that [A1] did murder [ZZ].”

88. The committing Magistrate then went on to indicate that he was not prepared to commit A2 on a charge of murder, but rather that the appropriate charge was accessory after the fact to murder He formed the same conclusion with respect to a properly instructed jury with respect to this charge as he did with respect to A1’s murder charge.

89. The Magistrate, having taken the relevant statutory steps, then said this:

“Section 64 is where the – rely on the same material, plus any other material that may or may not have been provided by the defendants, but I have to be satisfied that a reasonable prospect, that a reasonable jury, properly instructed, would convict an accused person of an indictable offence. In that regard I am so satisfied. Both matters will be committed for trial to the Supreme Court …”

90. The applicants also submitted that the Court should conclude that the various police officers associated with the investigation have fabricated evidence, and given evidence which is not reliable. The applicants submitted that the Crown will not be able to show, relevantly in respect of the recordings of listening devices and telephone intercepts, that the material they wish to present in Court is in fact the product of the original conversations obtained by either of these methods.

91. A2 submitted that there was considerable doubt about the authenticity of recordings obtained from listening devices and intercepted telephone calls. A2 submitted:

“The applicant has always maintained that there are problems with the authenticity of these recordings. The fact that charges were not laid in relation to these recordings until years after the alleged events speaks volumes, and goes towards the inference that the charges for the Intimidation were laid for a collateral purpose and not as a result in a genuine concern for the safety of an officer at the time when they say these recordings occurred.” [sic]

92. The applicants pointed generally to the conduct of the police with respect to the entirety of the investigation. For example, the applicants submitted that the Court should find that the police have obstructed their attempts to uncover, through the use of subpoenas, documents and materials relevant to the defence. They submitted that the officers had engaged in illegal conduct, such as deliberately breaching standard operating procedures, obtaining warrants by dishonestly omitting relevant material from the information provided to the authorised justice, failing to video record the searches by police officers of relevant premises, and failing to return documents and data seized in June 2013 contrary to s 217 of the Law Enforcement (Powers and Responsibilities) Act 2002.

93. A2 made this submission with respect to Detective McGee, the officer in charge of the investigation:

“Sgt McGee has used known lies from police and civilian witnesses to further her case and career at the expense of the public purse. In this she has committed many crimes as well as facilitated crimes committed by other people on her behalf. This aspect of her character is shared by the secondary officer in charge, Detective Sam Brennan.”

94. In the course of the hearing of the bail application, the applicants each cross‑examined Detective McGee, the officer in charge of the investigation.

95. The contents of the cross-examination did nothing to assist an assessment of the strength of the Crown case. The questions as formulated and put mounted a general challenge to the integrity of the investigation of each of the applicants. There was nothing in the answers that were given, nor in the demeanour of the witness, which has caused me to change the assessment of the Crown case to which I have referred earlier. An example will suffice. A1, in his cross-examination of Sergeant McGee, established a discrepancy between statements of various police officers with respect to a DVD containing the product of a listening device which lawfully recorded conversations in which A1 was involved. It is readily apparent that there is inconsistency between the statements as to whether there was one or three discs containing the relevant recording.

96. However, this challenge did not address itself to a more fundamental question, namely whether the recording contained the voices that the police contended for and whether it contained the contents asserted by the police. There was no challenge to these central facts. There is no reason, from this cross-examination, to doubt the integrity of the recordings.

94. As well, each applicant tendered significant written material which each of them contended demonstrated that the Crown case lacked strength, was tenuous and was mounted by police in circumstances which caused significant doubt about its strength.

95. An example of A1’s submissions will suffice. In writing, he put the following proposition:

“49.   Although it is not the court’s task to litigate the pending trial at this time, it is important to highlight the following factors which, individually and collectively, mitigate in favour of a conclusion that the case is a weak circumstantial case: (1) a Strictly Circumstantial Case that has no direct evidence; (2) a brief that is non-contemporaneous in nature; (3) deliberate intention by NSW Police not to disclose fundamental documents; (4) deliberate intention by NSW Police attached to Strike Force Flaggy to issue charges for improper purposes; (5) the illegal conduct by officers attached to Strike Force Flaggy; (6) deliberate intention by NSW Police attached to Strike Force Flaggy to issue offences for improper purposes.” [sic]

99. At another part of the written submissions, the following appears:

“It is being submitted that the prosecution case is a weak circumstantial case, that it was compiled by officers who cannot be trusted (lack credence). The investigation is plagued with deliberate breaches in standard operating procedures and conduct that can only be inferred as corrupt.

The Crown is attempting to prove a murder: (i) without a body; (ii) no direct evidence that a crime was committed; (iii) obtain a conviction by pure inference; (iv) reliant on a brief that was described at committal being tenuous; supported by the fact that the brief is non-contemporaneous in nature; (v) a prosecution that was classified at committal as not being a strong circumstantial case, and this was a classification arrived at by a magistrate who intentionally obstructed the accused of his prima facie right to disclosure of subpoenaed documents and only granted the accused one day to prepare submissions for his committal.” [sic]

100. There is simply nothing in the applicant’s criticisms of the Crown case, including the cross-examination of Detective McGee, which would counter the proposition that the Crown’s case is properly regarded, at this stage, as being a strong one.

Discernment

101. The period in which the applicants have each been in custody since arrest and before their trial commences is a very long one. It is much longer than is typically seen in cases of this kind awaiting trial. The delay between the applicants’ arrest and the service of the Crown brief is unexplained, and is unacceptable. Since that time the Court processes have unfolded with due speed having regard to the issues which were, and are, raised, and the volume of the material.

102. The undesirability of any individual being in custody for this length of time is a matter which is to be weighed in considering the question of whether either of the applicants has shown cause why their detention is not justified.

103. One matter which is also of considerable weight in the consideration of whether cause has been shown is the strength of the Crown case. For the reasons which I have described, I regard the Crown case, at this stage, as being a strong one. If accepted, the Crown case demonstrates that the deceased was killed in a planned and deliberate manner and that his body was taken away and buried in circumstances where it has not been recovered. There is persuasive material that the death was a violent one, and carried out essentially for motives associated with the personal position and feelings of A1. This is a strong case of a violent crime.

104. In considering whether an applicant has shown cause, it is relevant to take into account the matters set forth in ss 17 and 18 of the Bail Act. Of particular concern in this application is the risk that either or both of the applicants would interfere with witnesses if released on bail. There is no doubt, and the applicant A1 accepts, that his relationship with a principal witness QQ is a fraught one. He has engaged in litigation attempting to prove that the witness is a fraudster. In the course of that litigation A1 has verbally, although not physically, threatened the witness. The witness has expressed fears to police for her safety in light of those threats.

105. There is no condition which a Court can impose in these particular circumstances which would satisfy me that the particular witness QQ could be protected.

106. I am prepared to assume in favour of each applicant that, except for this matter, they would be able to address any bail concerns by conditions such that the bail concerns would not remain as unacceptable risks. There is some doubt about this, but it is easier to proceed on the basis that they would be able to satisfy the Court of these matters.

107. In summary, the applicants have been in custody for an unduly lengthy period of time, but the Crown case is a strong one, the alleged crime was a planned and violent one, and there is a risk to the safety of at least one central witness if either applicant is released. In the weighing up of these matters, in my view, I should give the strength of the Crown case the greatest emphasis. It prevails over the other matters.

108. In those circumstances, I am unpersuaded by either applicant that they have shown cause as to why their detention is not justified.

109. It follows, by application of the legislation, that the applications must be dismissed.

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Amendments

28 May 2018 - 28/5/2018 Publication restriction removed – judgment published

Decision last updated: 28 May 2018