Anwar v Director of Public Prosecutions (NSW)

[2022] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Anwar v Director of Public Prosecutions (NSW) [2022] NSWCCA 226

Hearing dates:

18 October 2022

Date of orders:

18 October 2022

Decision date:

21 October 2022

Before:

Davies J at [1];
Hamill J at [2];
McNaughton J at [27]

Decision:

(1) Release application granted

(2) Conditional bail granted

Catchwords:

CRIMINAL LAW – release application – sophisticated fraud and money laundering offences – extensive criminal network – applicant’s role limited – modest community ties – consideration of bail concerns – whether unacceptable risk – length of remand – onerous conditions capable of mitigating risk – conditional bail granted – no question of principle

Legislation Cited:

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 65-81

Local Court Practice Note Comm 2 (14 March 2018), cll 8.1, 9.2

Category:

Principal judgment

Parties:

Muhammad Adeel Anwar (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
G James KC and S Orman-Hales (Applicant)
E Nicholson (Respondent)

Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/260135

Publication restriction:

Redactions made to anonymise unique personal identifiers

 Decision under review 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Date of Decision:

23 August 2022

Before:

Chen J

File Number(s):

2022/212304

Judgment

1. DAVIES J: The reasons of Hamill J are also my reasons for having joined in the orders of the Court.

2. HAMILL J: On 18 October 2022 the Court heard a release application by Muhammad Adeel Anwar pursuant to s 49 of the Bail Act 2013 (NSW). A decision refusing bail was made by a single judge of the Supreme Court on 23 August 2022, grounding this Court’s jurisdiction under s 67(1)(e) of the Bail Act. The application was neither a review of, nor an appeal from, the decision of the primary Judge. While the transcript of the bail hearing and the ex tempore reasons were before the Court, no submissions were directed to those reasons. The Director of Public Prosecutions (the Director) opposed the release application. At the conclusion of the hearing, the Court made orders allowing the release application and granting bail on strict and onerous conditions. These are my reasons for joining in those orders.

3. Mr Anwar was arrested on 21 June 2022 and charged with three offences:

1. Dealing with property suspected of being the proceeds of crime in an amount less than $100,000: Crimes Act 1900 (NSW), s 193C(2).

2. Knowingly dealing with the proceeds of crime with intent to conceal that it is proceeds of crime (money laundering): Crimes Act, s 193B(1).

3. Participating in a criminal group: Crimes Act, s 93T(1).

4. The offences carry maximum penalties of 3 years’, 20 years’ and 5 years’ imprisonment respectively. The money laundering offence is a strictly indictable offence and is subject to the procedures prescribed by the so-called “early appropriate guilty plea” scheme under Ch 3 Pt 2 of the Criminal Procedure Act 1986 (NSW). The case is still in the “[d]isclosure of evidence” stage which is governed by Div 3 of Pt 2.

5. Mr Anwar made a release application on 19 July 2022 at the Burwood Local Court and a further application in the Supreme Court bails list on 23 August 2022. Bail was refused on each occasion. The basis of the Director’s opposition to the grant of bail is based on the submission that there are two “unacceptable risks” under s 19 of the Bail Act. The first is the “bail concern” that Mr Anwar will fail to appear at court and the second is that he will commit a serious offence if released on bail.

6. Mr Anwar read affidavits sworn by Muhammad Iqbal and Ahsan Maqsood and relied on proposed conditions filed on the application made to the primary Judge. The Director tendered a facts sheet prepared by the investigating police and a letter from the officer in charge of the investigation, along with a bail report (criminal history) and custodial history. Counsel for the respondent filed helpful written submissions. The applicant reproduced his solicitor’s written submissions made on the Supreme Court bail application. King’s Counsel appeared at the hearing with Ms Orman-Hales.

7. The evidence adduced by the Director suggested that Mr Anwar was part of a sophisticated criminal network which was involved in a number of fraud offences, the proceeds of which were sent overseas by means of Western Union international money transfers transacted at various Australia Post outlets using false identity documents. There were several offenders involved in the scam and money laundering operation, at least 10 of whom have been charged with a variety of criminal offences. In total, investigators say that almost $2.5 million dollars was illegally obtained or dealt with in the course of 451 transactions. However, Mr Anwar is not alleged to have been complicit in the antecedent fraud offences and his involvement in the proceeds offences, as alleged in the charges currently preferred against him, related to sums of $23,467.60 (sequence 1) and $14,981.84 (sequence 2).

8. Mr Anwar’s alleged criminal conduct occurred over a period of about four days. Counsel for the Director provided a useful summary in her written submissions (citations omitted):

“22. Sequence 1 relates to five individual transactions via Western Union money transfer, totalling $23,467.60. The transactions occurred on two separate days (14 December 2021 and 17 December 2021) at three different Australia Post outlets (Canley Vale, Pendle Hill and Northmead). The accused used three different bank cards, a different bank card at each Australia Post outlet. The funds transferred are suspected to be proceeds of a fraud scam.

23. Sequence 2 relates to two individual transactions that occurred at Toongabbie East Australia Post outlet on 17 December 2021. The applicant remitted a total of $14,981.84 to a destination in Pakistan via Western Union money transfer. The funds transferred came from an AMP Bank Limited account in the name of Tshering Phuntsho fraudulently established with false details. The funds transferred from that account were the proceeds of crime. Ms Veronica Minogue (57 years old) had deposited $28,000 into that account on the same day (17 December 2021) as a result of a ‘remote access scam’. The funds remitted offshore were the proceeds of the criminal offence committed against Ms Minogue.”

9. In spite of the short period of time covered by the charges, Mr Anwar’s connection to those at or towards the apex of the organisation, and his association with premises from which they operated, may suggest a more intimate involvement. The investigators asserted that he may face additional charges as the evidence is analysed more closely, but at this stage it would be unfair, and legally wrong, to proceed on that assumption. False identification documents were found at premises with which he was associated, although again no charges have been laid in respect of those items. Even so, counsel for the respondent was correct in her submission that those considerations, while not the subject of specific charges, are relevant to an evaluation of risk for the purpose of ss 17-19 of the Bail Act.

10. The Director also relied on Mr Anwar’s lack of ties to the community. He is a Pakistani citizen, who was in Australia on a student visa. It seems he is now subject to a bridging visa. He does not have family in Australia and his ties to the community are limited. I accepted the Director’s submission that his access to false identity documents and lack of community ties, along with his current legal problems and their possible consequences, support the suggestion that he may be a flight risk. I was satisfied there is a “bail concern” that he will fail to appear pursuant to s 17(2)(a).

11. The evidence of Mr Anwar’s connection to relevant premises, his access to false documents, his conduct alleged in the facts sheet and associations with the alleged co-offenders, as well as the scale and sophistication of the overall criminal enterprise, give rise to a bail concern pursuant to s 17(2)(b), namely that he will commit serious offences if released on bail.

12. On the material before the Court, the case against Mr Anwar in relation to sequences 1 and 3 appeared to be very strong. The case in support of the most serious charge, the money laundering offence in sequence 2, did not seem nearly as strong. It will require the tribunal of fact to draw an inference (to the exclusion of all other reasonable inferences) concerning his knowledge and intention. However, because of the timing of events relied on by the Director, I was unable to accept the applicant’s submission that seemed to suggest or imply that sequence 3, as framed, would necessarily fail. It was submitted by Mr James KC that “the most that could possibly be established taking the [Prosecution] case at its highest was that he was reckless as to whether the moneys concerned were the proceeds of crime or not” (Tcpt 18 October 2022, p 5(9-11)).

13. The foregoing assessments of the strength of the prosecution case are necessarily imperfect and somewhat intuitive, made as they are at such a distance from the trial and based on an acceptance of the summary of evidence provided in the facts sheet and letter from the officer in charge of the investigation. However, the evaluation is necessary in view of the requirement of s 18(1)(c) of the Bail Act.

14. A significant factor is the length of time Mr Anwar is likely to remain in custody pending the finalisation of the proceedings. Again, there is a degree of supposition in this. A bail court cannot know whether the applicant might offer a plea of guilty or whether the prosecution will accept a plea to a lesser charge. Those decisions can mean that an indictable offence is able to be dealt with summarily. For the purpose of this exercise, which is required by s 18(1)(h), it is appropriate to consider the situation as it stands; that is, I proceeded on the basis that count 2 is strictly indictable and that the case will eventually run to trial in the District Court.

15. By the time the matter is next before the Local Court (that is, 26 October for “further brief service mention”), Mr Anwar will have been in custody for four months. As I understand the process prior to committal under the current system, and assuming the brief has been served by 26 October (which is a large assumption on the information available), there will be an adjournment for the process of charge certification (see Criminal Procedure Act, ss 65-68). This adjournment is likely to be in the order of six weeks: Local Court Practice Note Comm 2 (14 March 2018), cl 8.1. There will then be a further eight-week adjournment for one or more mandatory case conferences (see Criminal Procedure Act, ss 69-81): Local Court Practice Note Comm 2, cl 9.2.

16. Realistically, if the prosecution certifies the money laundering charge and Mr Anwar maintains his not guilty plea, the matter will not be committed for trial to the District Court before the end of this year. By the time the District Court comes to fix a trial date, Mr Anwar will have been in custody for around eight months. Given the potential complexity of a multi-accused trial, the trial date is likely to be towards the end of next year. The parties seemed to agree that the criminal proceedings will not be finalised for a period of around 18 months from the date Mr Anwar was taken into custody.

17. This delay is a weighty consideration in circumstances where Mr Anwar has no criminal history in this country and has not been incarcerated before.

18. The issue of delay also gives rise to the possibility that Mr Anwar will have served all, or a substantial part of, any non-parole period that might be imposed if he ultimately stands to be sentenced and the sentencing Court determines that “no penalty other than imprisonment is appropriate”: Crimes (Sentencing Procedure) Act 1999 (NSW), s 5. That is particularly so if the Director were to accept a plea of guilty to a less serious charge or does not proceed with the money laundering allegation.

19. While Mr Anwar has no family in Australia, he does have some community ties and support. The affidavits of Mr Maqsood and Mr Iqbal establish this.

20. Mr Maqsood is a man without a criminal history who studies civil construction design at the Sydney Business and Development Institute. He has offered Mr Anwar accommodation at a nominated address at Mt Druitt (the details of which should not be published). I was satisfied that it was an appropriate place for Mr Anwar to live during the period of remand.

21. Mr Iqbal immigrated to Australia in 2012, has no criminal record and lives with his wife and three young children in Bligh Park. He owns a cleaning business and has employed Mr Anwar in the past. He considers Mr Anwar to be a friend and offered to deposit $20,000 by way of security should the applicant fail to appear in accordance with any bail undertaking into which he enters. He has offered Mr Anwar a job should he be released. Police raised concerns about Mr Iqbal’s address because it was said to “feature prominently during the investigation”. Police also raised concerns about Mr Iqbal’s relationships with some of the co-accused and brought to the Court’s attention the fact that he has also offered employment to one of the alleged co-offenders. While those are legitimate concerns, I was satisfied that appropriate conditions (including non-association conditions) would mitigate the risks associated with these connections.

22. I can see no benefit in enumerating in the form of some sort of check list the exhaustive list of matters contained in s 18 of the Bail Act. These are the matters the Court is required to consider in assessing any bail concern identified in s 17. However, I considered those matters where relevant and have dealt with the most significant of them in the preceding paragraphs. I would add that Mr Anwar appears to have some criminal associations, but he has no known history of violence: s 18(1)(d) and (g).

23. Another significant matter concerned the conditions that might be imposed on the grant of bail calculated to mitigate the risks identified by the prosecution: s 18(1)(p). Having heard the submissions of the parties, the Court retired and formulated the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant is to appear at the Local Court at Burwood on 26 October 2022 and at such courts and at such times thereafter as required.

3. The applicant is to live at XXXXX XX, Mount Druitt.

4. The applicant is to report to the Officer in Charge of the Mount Druitt police station each day between the hours of 8am and 6pm.

No contact and association conditions

5. The applicant is not to approach or communicate with, or attempt to make contact with, any other person they know to be a prosecution witness by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.

6. The applicant is not to associate with, or communicate in any way, any co-accused including Manav NAGPAL (born XXXXX 2000), lmtisal HUSSAIN (born XXXXX 1999), Daayin AWAIS (born XXXXX 1999), Hamza QAISER (born XXXXX 1999), Umair MALIK (born XXXXX 2000), Anas ALI (born XXXXX 1997), Usama Bin TARIQ (born XXXXX 2000), Muhammad Noor MOHAYYUDIN (born XXXXX 1997), Muhammad Aafaq MATLOOB (born XXXXX 1998), Talha Mumtaz MEER (born XXXXX 1997) and Waleed ALTAF by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.

Pre-release condition

7. The applicant is to travel from the correctional centre from which they are released on bail in the company of Ahsan Maqsood or Muhammad Iqbal one or both of whom must be in attendance at that centre before release occurs.

Travel and passport conditions

8. The applicant is to surrender any passport or travel document in his possession, or held on his behalf, to the Officer in Charge of the police investigation within 24 hours of his release.

9. The applicant is not to apply for any new passport or other travel document.

10. The applicant is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

Conditions restricting access to technology

11. The applicant is to not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the Officer in Charge of the police investigation within 12 hours of taking or resuming possession of any such service.

12. The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, or Telegram.

13. The applicant is to provide access to any internet capable device in the applicant’s possession or to which he has access to the Officer in Charge of the police investigation, or their delegate, on demand and facilitate access to its content by providing the password or PIN code for the device or by co-operating with access via fingerprint or face identification.

Security requirement

14. One acceptable person is to enter into an agreement under which that person agrees to deposit the sum of $20,000.00 to ensure the applicant’s appearance before court in accordance with his bail undertaking.

Home detention condition

15. The applicant is not to leave the premises at which he is required to live except in the following circumstances:

1. If he is in the company of Ahsan Maqsood or Muhammad Iqbal.

2. To attend his place of employment, provided a weekly schedule of the time and location of his shifts is provided to the Officer in Charge of police at Mount Druitt one week in advance of those shifts.

3. To attend pre-arranged conferences with his lawyers, provided 48 hours’ notice of the same is provided to the Officer in Charge of police at Mount Druitt.

4. To report to police in accordance with his bail undertaking.

5. To attend Court in accordance with his bail undertaking.

6. In the case of a medical emergency.

Enforcement condition

16. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.

24. These are very onerous conditions of bail but the sophistication of the criminal enterprise and Mr Anwar’s relatively slight ties to the community satisfied me they were necessary and appropriate. To adopt the terms of s 20A(2) of the Bail Act, I was satisfied that:

1. the bail conditions were reasonably necessary to address the bail concerns,

2. the bail conditions were reasonable and proportionate to the offences for which bail was sought,

3. the bail conditions were appropriate to the bail concerns in relation to which they were directed,

4. each bail condition is no more onerous than necessary,

5. it was reasonably practicable for Mr Anwar to comply with the bail conditions, and

6. there were reasonable grounds to believe that Mr Anwar was likely to comply with each of the conditions.

25. Having considered the matter, and the conditions formulated, I was satisfied that there were no unacceptable risks of the kinds identified in s 19 of the Bail Act.

26. Accordingly, I joined in the orders granting conditional bail.

27. MCNAUGHTON J: The reasons of Hamill J are also my reasons for having joined in the orders of the Court.

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Amendments

21 October 2022 - Paragraph [6] - "Oman-Hales" amended to "Orman-Hales".

Decision last updated: 21 October 2022