Barbaro v Director of Public Prosecutions
[2010] VSC 632
•6 December 2010
| IN THE SUPREME COURT OF VICTORIA | NOT RESTRICTED | |
AT MELBOURNE
CRIMINAL DIVISION
No. 164 of 2010
| PASQUALE BARBARO | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA | First Respondent |
| -and- | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA | Second Respondent |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2010 | |
DATE OF JUDGMENT: | 6 December 2010 | |
CASE MAY BE CITED AS: | Barbaro v DPP & Anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 632 | |
CRIMINAL LAW – Application for Bail – Bail refused – Unacceptable risk of flight – Unacceptable risk of re-offending on bail - International organised crime syndicate - subsections 11.5(1), 302.2(1), 307.1(1), 307.11(1) 400.3(1) and 400.9(1) of the Criminal Code (Cth) 1995 – Conspiracy to Murder – Subsection 321 Crimes Act 1958 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C. Heliotis QC with Mr C. Boyce | Acquaro & Co |
| For the First Defendant | Ms W. Abrahams QC with Mr B. Young | Director of Public Prosecutions (Cth) |
| For the Second Defendant | Ms D. Piekusis | Director of Public Prosecutions (State) |
HIS HONOUR:
By application filed 11 October 2010, Pasquale Barbaro (“the Applicant”) makes application for bail.
The Applicant is charged with six offences contrary to the Criminal Code 1995 (Cth) (“the Commonwealth offences”) and two charges of conspiracy to murder (“the State offences”). Five of the Commonwealth offences and the State offences alleged carry a maximum penalty ranging between 25 years’ imprisonment and life imprisonment.
This is the is the Applicant’s fourth application for bail in respect of five of the Commonwealth offences and his second in respect of the State offences.
The first application in respect of five Commonwealth offences was refused on 19 September 2008 in the Magistrates’ Court. The second application was granted on 19 December 2008 in the Magistrates’ Court. The first respondent then appealed the decision of the Magistrate to the Supreme Court pursuant to s 18A Bail Act 1977 and bail was refused by Justice J. Forrest.[1] The Applicant then appealed the decision to the Court of Appeal, who too refused bail.[2] On 8 – 9 July and 2 August 2010 bail was applied for in the Magistrates’ Court in respect of both the five Commonwealth offences and State offences. Bail was again refused.
[1]See DPP (Cth) v Pasquale Barbaro [2009] VSC 27R.
[2]See DPP (Cth) v Pasquale Barbaro & A-G (Vic) (2009) 20 VR 717.
The Applicant is in the position where he must show exceptional circumstances in respect of the Commonwealth offences[3] and has an entitlement to bail in respect of the State offences.
[3]As pointed out in both decisions of J. Forrest J and Court of Appeal, only one of the Commonwealth offences, specifically the charge for the importation of cocaine, requires the applicant to establish exceptional circumstances within s 4(2)(iii) Bail Act 1977. The conspiracy and trafficking offences do not attract the same test.
The first respondent opposes bail on the grounds that the Applicant is an unacceptable risk of flight; an unacceptable risk of obstructing the course of justice; and an unacceptable risk of committing further offences whilst on bail. It is conceded by the first respondent that the delay before trial of the Commonwealth offences of itself amounts to exceptional circumstances. The primary issue to be resolved by this Court is whether the first and second respondents can establish that the Applicant is an unacceptable risk in accordance with ss 4(2)(d)(i) and (iii) of the Bail Act 1977, and whether the delay involved means that this application falls within the exception recognised by the Court of Appeal in DPP (Cth) v Pasquale Barbaro & A-G(Vic) namely that:
…there will be circumstances where the actual or anticipated delay is of such magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable. As Kellam J said, the community will not tolerate the indefinite detention of persons awaiting trial. Whether, and when, the delays in a particular case can be so characterised will depend on the circumstances…[4]
[4]DPP (Cth) v Pasquale Barbaro & A-G (Vic) (2009) 20 VR 717, 728.
Then, the Court of Appeal held that the delay did not equate to such a case. Now, this Court is asked to consider whether, in light of all the matters before the Court of Appeal then, combined with the delay that in itself amounts to exceptional circumstances together with the further delays that have occurred, the delay is of such a magnitude that any unacceptable risk is ameliorated. Whether delays can come within the exception is largely a factual consideration. This requires consideration of the seriousness of the offending alleged, the Applicant’s personal circumstances and the events attributable to the delays that have occurred since the Applicant was first charged.
Charge history
It is significant that since the decisions of J. Forrest J[5] and the Court of Appeal[6] were made, the Applicant has been charged with a further three offences.
[5]See DPP v Pasquale Barbaro [2009] VSC 27.
[6]DPP (Cth) v Pasquale Barbaro & A-G (Vic) (2009) 20 VR 717.
On 8 August 2008 the Applicant was arrested by members of the Australian Federal Police (“AFP”) and charged with five Commonwealth offences:
(a) That between 16 May 2007 and 3 October 2007 at Melbourne in the State of Victoria, he conspired with Saverio Zirilli and others to import a border controlled drug, namely a commercial quantity of MDMA, contrary to sub-ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth) (“charge one”).
(b) That between 24 January 2008 and 7 August 2008 at Melbourne in the State of Victoria, he trafficked in a controlled drug, namely a commercial quantity of MDMA, contrary to sub-s 302.2(1) of the Criminal Code 1995 (Cth) (“charge two”).
(c) That between 6 July 2008 and 7 August 2008 at Melbourne in the State of Victoria, he imported a border controlled drug, namely a commercial quantity of cocaine, contrary to sub-s 307.1(1) of the Criminal Code 1995 (Cth) (“charge three”).
(d) That between 14 May 2008 and 7 August 2008 at Melbourne in the State of Victoria, he conspired with Anil Suri and others to import a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a commercial quantity of a border controlled precursor, contrary to sub-ss 11.5(1) and 307.11(1) of the Criminal Code 1995 (Cth) (“charge four”).
(e) That between 22 February 2008 and 7 August 2008 at Melbourne in the State of Victoria, he and Sharon Ropa did deal with money which is the proceeds of crime, being cash in excess of $7,440,000 and at the time of the dealing the value of money is $1,000,000 or more, contrary to sub-s 400.3(1) of the Criminal Code 1995 (Cth) (“charge five”).
The nature and seriousness of the five Commonwealth offences that the Applicant is alleged to have committed is considerable. In summary charge one is alleged to involve the importation of over 4,000 kilograms of ecstasy tablets with an estimated street value of $450 million. Charge two is alleged to involve the trafficking of at least 720,000 ecstasy pills. Charge three is alleged to involve the importation of 150 kilograms of cocaine. Charge four is alleged to involve the importation of 100 kilograms of the precursor chemical MSG. Finally, charge five is alleged to involve the transfer of approximately $7 million dollars of proceeds of drug sales overseas.
Almost 7 months later, on 16 April 2009, the Applicant was charged with the State offences, specifically two charges of conspiracy to murder. It is alleged that the intended victim of one of the charges is the person the Applicant believed was responsible for the loss of the drugs the subject of charge one.
On 21 September 2010, the Applicant was charged with a further Commonwealth offence where it is alleged that between 22 July 2008 and 8 August 2008, he did receive, possess and dispose of money, it being reasonable to suspect that such money was the proceeds of crime in relation to a State or Commonwealth indictable offence contrary to sub-s 400.9(1) of Criminal Code 1995 (Cth) (“the sixth charge”).
It follows that the Applicant is charged with a constellation of very serious offences, particularly relating to quantities of illicit substances, rarely if ever seen in Australia.
Chronology of events
It will be seen that much of the argument put by Counsel for the Applicant necessarily revolved round the first respondent’s contribution to the delays in the provision of material to the Applicant’s solicitors. The affidavit sworn by Joseph Acquaro, the Applicant’s solicitor, on 11 October 2010 and filed in support of this application for bail recounts a chronology of the difficulties the Applicant’s solicitors have had in obtaining material from the first respondent.
In February 2009, a hand-up brief was provided to practitioners, this included a GEMS Version 1 hard-drive. This hard drive was unable to be properly accessed and on 25 March 2009 a mention was held in the Magistrates’ Court to address the issues regarding the hand-up brief. Orders were made by the Magistrate requiring the filing and service of particular documents, including a brief in a format specific to each defendant and their respective charges rather than a generic brief for all defendants. The Applicant also elected to receive the Paper Hand-Up Brief (“the PHUB”). A committal was listed for 10 February 2010 with a committal mention listed for 12 November 2009.
In June 2009, part of the PHUB was served on the Applicant’s solicitors. This is said to have consisted of 240 volumes of lever arch folders which represents the data on the GEMS hard drive. A new GEMS 2 hard drive was also provided, but this too was said to be inaccessible.
On 23 July 2009, a special mention was sought at the request of the first respondent to enable them to seek an extension of time for the service of particulars as ordered by the Magistrate on 25 March 2009. The date for service of those particulars was extended to 13 August 2009.
In the period between 14 August 2009 and 30 September 2009, the first respondent served upon the Applicant’s solicitors the particulars in respect of each of the five charges the Applicant was facing at that time[7]. The Applicant’s solicitor submits that each of these particulars did not comply with the Magistrates’ Court orders made 25 March 2009.
[7]The conspiracy to import ecstasy charge; the trafficking of ecstasy charge; the importation of cocaine charge; the importation of precursor chemical charge; and the money laundering charge.
In October 2009, the first respondent served upon the Applicant’s solicitors the remainder of the PHUB. This material, largely consisting of blank yellow paper, was said to be missing from the original PHUB served in June 2009.
On 12 November 2009, the committal mention was held. The Magistrate held that there had been non compliance by the first respondent with orders made on 25 March 2009.[8] As a consequence, the Magistrate vacated the committal hearing date, re-scheduling it for 31 August 2010 with a committal mention date on 9 February 2010. The Magistrate made further orders including that the first respondent provide all documents relating to applications for warrants obtained in respect to telephone intercepts in respect to individual defendants where requested and for the first respondent to provide an electronic copy and paper copy of all audio telephone intercept recordings, CD recordings and video surveillance materials relevant to each defendant. Both these orders were later revoked at a special mention held on 11 December 2009 at the first respondent’s request.[9] His Honour accepted the submissions of the first respondent that the proper method for gaining access to the material supporting the granting of the warrants for the telephone intercepts, is to issue subpoenas. His Honour also indicated that, when making the order for the provision of both the electronic and paper copies of the audio telephone intercept recordings, CD recordings and video surveillance materials for each defendant, he was unaware that each defendant had an electronic hand-up brief already containing the relevant material. The first respondent also offered the Applicant an appropriate desktop computer containing the electronic hand up brief and training on how to use the GEM program from an independent IT specialist. Offers of training in the use of the electronic hand up brief were also made to all defendants and their legal practitioners. On this basis, his Honour further ordered the first respondent to provide training on the use of the electronic hand up brief to all defendants.
[8]CDPP v P. Barbaro & Ors (Criminal) [2009] VMC 26 (12 November 2009).
[9]CDPP v P. Barbaro & Others No. 2 (Criminal) [2009] VMC 27 (11 December 2009).
On 19 January 2010, the AFP attended the Metropolitan Remand Centre with a computer and requested to see the Applicant. No notice was given to the Applicant’s solicitors. The Applicant refused to see them. That same day the Applicant’s solicitors sent a letter to the first respondent requesting that the AFP/first respondent desist from engaging in similar conduct and that any future communication in respect of the computer training is to be conducted through the applicant’s lawyers.[10] The first respondent stated they were unaware of the arrangements made to attend the Applicant at the MRC and had since spoken to the informant to ensure that any future arrangements are not made until the first respondent’s office has been advised and communications had been made with the Applicant’s solicitors.[11]
[10]Letter from Acquaro & Co to CDPP dated 19 January 2010 at exhibit “JA-8” of affidavit sworn by Joseph Acquaro on 11 October 2010.
[11]Letter from CDPP to Acquaro & Co dated 4 February 2010 at exhibit “JA-8” of affidavit sworn by Joseph Acquaro on 11 October 2010.
On 19 March 2010, a special mention was held at the request of one of the Applicant’s co-accused. The committal was re-listed for October 2010, with a committal mention on 18 June 2010.
On 16 April 2010, the first respondent wrote to the Applicant’s solicitors advising that the Applicant had been provided with a computer with 24 hour access and seeking a training date that would be suitable to the Applicant.[12]
[12]Letter from CDPP to Acquaro & Co dated 16 April 2010 at exhibit “JA-8” of affidavit sworn by Joseph Acquaro on 11 October 2010.
Throughout May – June 2010, the first respondent continued to serve various material on the Applicant’s solicitor. On 10 June 2010, the first respondent served a laptop computer for each of the accused Acquaro lawyers acts for, with Version 2.2. of the GEMS program.
On 11 June 2010, an application for bail commenced in the Magistrates’ Court. The first respondent contended the Magistrate had no jurisdiction to hear the application. The Magistrate determined he did.[13] The application was adjourned part-heard to enable the first respondent to appeal the jurisdictional issue to the Supreme Court. This application was dismissed by Justice Pagone on 22 June 2010.[14]
[13]CDPP v P. Barbaro & Others (11 June 2010) at exhibit “JA-5” of affidavit sworn by Joseph Acquaro on 11 October 2010.
[14]DPP (Cth) v The Magistrates’ Court of Victoria and Pasquale Barbaro [2010] VSC 297.
On 18 June 2010, the parties consented to Applicant’s committal hearing for the Commonwealth offences listed for October 2010 to be vacated and re-scheduled for 1 March 2011. The committal proceedings for the other co-accused were scheduled for 25 October 2010 and 1 December 2010.
On 8 July 2010, the bail application for both the Commonwealth and State offences resumed in the Magistrates’ Court. On 2 August 2010, Magistrate Garnett refused bail, considering the two charges of conspiracy to murder as a significant factor, but attributing much of the delay to the non-compliance of the first respondent to the orders made by the Magistrates Court.[15]
[15]Written reasons were given by the Magistrate: In the matter of an application for bail by Pasquale Barbaro (2 August 2010) [10], [27], [31].
On 21 September 2010, the Applicant was charged with the sixth charge.[16]
[16]That between 22 July 2008 and 8 August 2008, the applicant did receive, possess and dispose of money, it being reasonable to suspect that such money was the proceeds of crime in relation to a State or Commonwealth indictable offence contrary to subsection 400.9(1) of Criminal Code 1995 (Cth.).
On 29 September 2010, a special mention was held at the request of the first respondent, where the first respondent expressed concern that the Applicant had not yet received training in the use of the electronic hand up brief from the independent IT specialist. Concern was expressed by the Magistrate that the training had not yet occurred and he stated that “whilst there are onuses on both parties here, the onus, in my view, has shifted somewhat and how it is on Acquaro & Co and Mr Barbaro to make themselves available for this training to occur.”[17] The Applicant gave his consent to the training on 19 November 2010 and that training was held on 23 November 2010.[18]
[17]Page 15 of transcript of proceedings before Magistrate Garnett on 29 September 2010.
[18]See supplementary affidavit sworn by Joseph Acquaro on 24 November 2010.
This brief chronology serves to emphasis the difficulties of prosecuting and defending cases where there are multiple co-accused for charges of the kind the Applicant currently faces. No-one would dispute this. Whilst technology is forever changing, the hard work required when either defending or prosecuting such cases has not. Prosecutors and defence lawyers have a difficult job. It is a job that needs to be undertaken with thoroughness and care, but always with the respective goal of getting the case to trial at the earliest convenient date for all concerned.
The Applicant’s personal circumstances
The Applicant is now aged 49. He is married with four children aged 15 years to 25 years old. The Applicant together with his own family, his parents and his brother’s family operate a number of farms in Griffith, which constitute all of or form part of the family business, F. Barbaro & Co Pty. Ltd. Confiscation proceedings brought by the first respondent in the County Court have restrained the Applicant’s interest in the assets.
The Applicant continues to suffer from a form of depressive mood which his antidepressant medication assists.[19] The Applicant was assessed by Dr Lester Walton on four separate occasions, with resulting reports dated 14 April 2010, 13 May 2010, 5 July 2010 and 25 November 2010. The most recent reports of 5 July and 25 November 2010 also describe an overall improved situation compared to his earlier assessments, with the Applicant being in:
“a less distressed frame of mind than at the time of [Dr Walton’s] penultimate assessment. Whilst his pattern of sleep remains erratic, it has improved. He describes anxiety of panic proportions having subsided to some extent…”[20]
[19]Psychiatric report of Dr Lester Walton dated 25 November 2010.
[20]Psychiatric report of Dr Lester Walton dated 5 July 2010.
Although the Applicant:
“describes a mounting sense of anxiety as his proposed date for committal proceedings approaches and he remains in a situation where he believes he cannot adequately prepare, and which ultimately may compromise a fair trial.”[21] Furthermore the applicant “remains very concerned about the accumulating delay.”[22]
[21]Psychiatric report of Dr Lester Walton dated 25 November 2010.
[22]Ibid.
The Applicant has available three sureties totalling $3.45 million. They are:
· Ms Maria Barbaro, the Applicant’s younger sister from Griffith, NSW, who is prepared to offer $450,000.00 against her unencumbered property.
· Mr Bruno Mancini, who is prepared to offer $1 million against his new family home in Griffith, NSW.
· Mr Don Sergi and his brother Mr Sam Sergi, who are prepared to offer $2 million against their farm property in Griffith, NSW.
Submissions made in support of the application for bail
Mr C. Heliotis QC, who appeared with Mr C. Boyce of counsel, submitted that the Applicant falls within the exception referred to in the decision of the Court of Appeal emphasising the following matters:
· The delay between the Applicant’s arrest on 8 August 2010 and a likely trial date is now much greater than first assumed. At the time of both the Applicant’s bail applications before the Supreme Court, it was thought the likely trial date would be the second half of 2010. It is now apparent that the committal for the Commonwealth matters will not be heard prior to March 2011. The committal for the State offences is listed to commence after the conclusion of the committal for the Commonwealth offences, namely, in June 2011. The Applicant would be in custody for 3½ years prior to trial. This length of time in custody on remand is unacceptable.
· The principal reason for the delay is attributable to the first respondent’s failure to comply with the orders of the Magistrates’ Court made in relation to the form and content of the hand-up brief. This has resulted in cost orders against the first respondent.
· The failure to comply with the orders of the Magistrates’ Court has placed the Applicant’s solicitors in “an intolerable position of difficulty”. This, in combination with the vast prosecution brief, together with the confines of custody, including the restrictive environment of the Exford Unit, have all contributed to the difficulties involved in preparing such a complex case.
· There is still some uncertainty with the commencement of the Applicant’s committal hearing or even how it will commence. One of the major committals for the Applicant’s co-accused has been stopped, and if that committal does not re-start then the Applicant’s committal hearing date may be pushed out. In addition, as the Applicant is charged with offences arising from a number of police investigations, it may be that the committal will not continue in respect of all the charges, it may be piecemeal.
· Although the Applicant was charged with the State offences after the hearing in the Court of Appeal, the material on which the first respondent rely had been in the hands of the Commonwealth investigators at some time prior to 8 August 2008. The evidence relied upon being largely it not entirely telephone intercept material obtained not later than the 7 August 2008. In that sense it should not be looked at as offending separate from the earlier offence.
· The availability of sureties totalling $3.45 million dollars are unprecedented.
· The Applicant’s history of keeping bail is quite remarkable, he having been remanded on bail for 10 years in New South Wales[23] and appearing for the hearing before J. Forrest J where his bail was revoked.
[23]DPP (Cth) v Pasquale Barbaro [2009] VSC 27 [71].
· A residential address in Victoria for the Applicant was proffered by way oral submissions. An address in Melbourne near to the Applicant’s solicitors would enable detailed preparation and the committal would be ready to proceed in March 2011 but otherwise it was problematical.
· Electronic surveillance would mean that it would be extremely difficult to abscond.
· Any absconding by him would have a disastrous effect on his extended family.
Submissions made in opposition to the application for bail
Ms Abraham QC, who appeared with Mr B. Young of counsel for the first respondent, submitted:
· In all the circumstances of this case the Applicant remains an unacceptable risk and the delay does not alleviate the risk at all.
· Two matters contribute to the issue of delay. First, the sheer volume of material arises because of the number and seriousness of the offending committed in a manner to avoid detection. Second, much of the submissions made indicate the Applicant’s solicitors are overstretched. The Applicant’s solicitors act for 6 accused, and it was apparent from early on that the size of this brief would be considerable.
· Furthermore, 3 ½ years would be an extraordinarily long time if dealing with one offence where there is a discrete body of material in proof of the offence. However here, the offending covers 15 months of criminal activity.
· In contra dictation to the case of R v Mokbel,[24] here there are dates for the committal hearings, namely 1 March 2011 for the Commonwealth offences and 6 June 2011 for the State offences.
[24](2001) 133 A Crim R 141.
· Although the first respondent has been held responsible for delay many attempts have been made to provide material; a form of the written brief was supplied in June 2009; and particulars were provided in August 2009.
· The Applicant and his solicitors have been slow to take up offers of computer training. The offer first – even though somewhat inappropriately - made in January 2010 was not taken up until November 2010.
· The authorities have made more appropriate arrangements for the detention of the Applicant.
· The offending here is much more severe than the alleged offending in R v Mokbel[25] and is possibly the most serious of its kind ever in Australia.
[25]Ibid.
· The offences the Applicant is charged with have significant penalties, including life imprisonment. If these offences are proved the Applicant is a candidate for life imprisonment.
· The Applicant’s solicitors act for 6 accused, including the Applicant.[26] Difficulties with time management are not a relevant consideration to the application. The preparation of the case cannot be taken to depend upon the Applicant (or any other accused) reading the brief.
[26]Page 38 of transcript.
· Since the Court of Appeal refused bail in March 2009, events have occurred which heighten the Applicant’s risk. The applicant has now been charged with two charges of conspiracy to murder with maximum penalties of life imprisonment. The alleged target of whom one of those charges relates is considered to be responsible for the loss of the importation of the drugs the subject of charge one, the conspiracy to import ecstasy. This indicates the lengths which the Applicant is prepared to resort to when his drug enterprises are interfered with.
· Reliance was placed on recorded conversations where the Applicant was actively and successfully involved in assisting Mr Visser, a bail fugitive and escapee charged with serious narcotic offences, to flee overseas using a fraudulently procured passport. Reliance was also placed on comments made by the Applicant about the arrest of Mr Mokbel, which demonstrate a disposition to take flight. Both conversations have been referred to in the two previous applications heard in the Supreme Court.[27]
· The Applicant has “virtually unlimited resources and overseas contacts”[28] and in all the circumstances of this case there remains an unacceptable risk of flight.
· The Applicant’s possession of firearms and money at the time of his arrest were also relied upon.
[27]See DPP (Cth) v Pasquale Barbaro [2009] VSC 27 [62], [63] and DPP (Cth) v Pasquale Barbaro & A-G (Vic) (2009) 20 VR 717, 720 -721.
[28]DPP (Cth) v Pasquale Barbaro & A-G (Vic) (2009) 20 VR 717, 721.
The second respondent adopted the submissions of the first respondent with respect to unacceptable risk. The issue of delay is not applicable to the State offences; the brief has been served and the State had been ready to proceed with the committal for the State offences this year.
Conclusions
I have come to the conclusion that, notwithstanding the anticipated delay to trial, the Applicant remains an unacceptable risk of failing to answer bail (‘absconding’) if bail is granted.
It is accepted that the allegations against the Applicant are extremely serious. In relation to the two most serious offences, they involve the importation of 4.4 tonnes of MDMA (ecstasy) and 150 kilograms of cocaine into Australia. Both of the transactions that took place are said to involve the Applicant.
In addition, the Applicant faces charges of trafficking 720,000 ecstasy tablets, conspiring to import 100 kilograms of precursor chemicals, two charges of conspiracy to murder, and money laundering involving more than $7 million dollars.
The offending alleged is said to have been committed over the period 16 May 2007 to 7 August 2008. Given the nature of the charges and the length of time over which the offending occurred, it is not surprising that the amount of the evidence is very large. That is a matter which effects both the Applicant and the respondents.
I made it clear during the hearing that I have fixed the trial to commence on the first sitting day in 2012. It is important to say that this gives both parties 14 months to get this trial ready. It means completing a committal. I am satisfied that such a date is realistic.
I accept that the detention of an Applicant for 3½ years for trial appears to be unreasonably long but that delay has to be viewed in the context of the case. The preparation of the brief and the obligation for full disclosure will necessarily require extensive work. It is seems to me that although the first respondent has not met the time limits set by the Magistrate and has been ordered to pay costs, the first respondent has made an effort to make material available to the Applicant and his co-accused. A large body of material was provided as early as June 2009.
It does not seem to me that as much has been done by the Applicant and his legal advisors to take the matter forward. Insistence upon an ideal brief in an ideal form although desirable cannot be treated as fixing the point in time at which preparation may usefully begin. I accept that there are difficulties for the Applicant in custody but the reason why it took 11 months for the Applicant to avail himself of the computer training offered by the first respondent does not satisfactorily appear on the material.
I am satisfied that a large amount of the delay in the case arises from the failure or inability of the first respondent to produce a brief in the form ordered by the presiding Magistrate. I am also satisfied the Applicant and his legal advisors were in a position to commence some preparation of the case. I accept that some preparation has been attempted, but only a limited amount.
On the hearing of the application, it was suggested for the first time that the Applicant would reside in Melbourne. That would increase the access which the Applicant would have both to the brief and to his legal advisors. It does have the difficulty of physically separating the proposed sureties from him. The task of a surety is to ensure that a person in the position of the Applicant answers his bail. If the Applicant does not attend, then the financial penalties are triggered. When it was intended that the Applicant reside in Griffith where each of the sureties reside, the task to be undertaken by the sureties was more clear cut. If the Applicant did abscond, the first question to be asked of the sureties is, what did you do to ensure the appearance of the Applicant. Sureties need to be in a position to do so. In any event, I do not regard the mere provision of large sureties as guaranteeing the appearance of the Applicant, particularly when regard is had to the potentially large amount of money generated by the alleged activities and the large amount of money involved in the alleged money laundering.
I am also satisfied that the use of electronic surveillance, even with strict reporting conditions, would not guarantee the Applicant’s appearance. If the Applicant made any escape from the authorities, there would be a real risk that he could not be apprehended.
I am also satisfied that, when regard is had to affidavits of Brendan Money, Assistant Commissioner of Corrections, satisfactory arrangements are in place or capable of being put in place to enable the Applicant and his legal advisors to prepare the case.
I return to the most stark feature of this case. The alleged offending in relation to the drug charges is at a level not previously encountered. The ecstasy in charge one did arrive via Italy. The cocaine did arrive from Columbia. The precursor chemicals were imported from India. The alleged money laundering was international, involving the laundering of money in Australia from Europe via Singapore. The alleged offending is linked to at least three continents other than Australia.
It is reasonable to conclude that the Applicant has very significant overseas connections and as the Court of Appeal observed he had access to “virtually unlimited resources and overseas contacts”.[29]
[29]See DPP (Cth) v Pasquale Barbaro & A-G (Vic) (2009) 20 VR 717, 721.
It was submitted by the first respondent that if convicted the Applicant is facing a very long sentence. When the alleged offending is viewed in its totality a head sentence of life imprisonment is not out of the question. That submission is powerful. The temptation to take flight is a very serious one.
The Applicant has previously been involved in assisting another man to take flight and he has expressed to others that he well understands how to abscond and stay of the way of authorities.[30]
[30]See paragraph [35] above.
It is in that context that I am satisfied that the Applicant is a unacceptable risk, even though the delay to trial would be substantial.
Although not separately argued before me, the second respondent’s affidavit in reply relied upon the Applicant being an unacceptable risk of committing further offences whilst on bail.
An analysis of the alleged course of all the offending is such that I am also satisfied that there is an unacceptable risk of the Applicant offending whilst on bail. I would have regarded that risk as being unacceptable if it had to be considered separately from the question of delay, but it is not possible to do so. If delay was such as to make the risk of absconding not “unacceptable”, it would also almost always operate with respect to this risk as well. Having found the delay not to be unacceptable, this risk does not fall to be considered in its own right.
The alleged offending needs to be seen in this order:
1. Failed importation of ecstasy.
2. Trafficking ecstasy.
3. Failed importation of cocaine.
4. Importation of precursor chemicals.
5. The money laundering charge.
To some degree, the dates of charges two and three are partly coextensive. The importation of precursor chemicals alleged in charge four are similarly coextensive with charges two and three. Although charge four is for the purpose of supporting manufacturing of relevant substances in Victoria, such conduct may or may not be linked to the conduct alleged in charge two. Manufacturing is yet another aspect of a wide criminal enterprise. The charge of money laundering itself involved $7.4 million dollars.
The breadth of the alleged criminal enterprise to which the Applicant was committed was, I have already observed, very widespread.
It should also be noted that the Applicant and his alleged co-conspirators were not discouraged by the failure of the importation of the subject of charge one. It should be noted that his possession of a loaded firearm, ammunition and $181,000 cash go both to the risk of absconding and risk of re-offending.
Both respondents also opposed bail on the basis that the Applicant was an unacceptable risk of obstructing the course of justice. That submission was really put on the basis of interfering with witnesses. No detailed submissions were made by the first respondent on this issue.
A direct allegation was made by Detective Senior Sergeant Kelly, who said:
“Intelligence held by Victoria Police indicates that Barbaro on the 2nd and 3rd of February 2010 while remanded in custody … made threats to a prosecution witness in relation to another matter who was also in custody”.[31]
[31]Exhibit “CC-1” of affidavit sworn by Chantal Camilleri on 20 October 2010.
The submission was not developed in argument before me by the second respondent.
I am not satisfied on the material before me that the Applicant is an unacceptable risk of obstructing the course of justice by interfering with witnesses. It may be that such an argument might be further developed on any future application.
For the reasons set out, the application for bail dated 11 October 2010 is refused in relation to both the Commonwealth and State charges.
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