Cogno v The Queen - [2020] SASC 207

Supreme Court of South Australia
(Criminal: Application)
COGNO v THE QUEEN
[2020] SASC 207
Ruling of The Honourable Justice Livesey (ex tempore)
15 October 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with 49 counts of dishonestly obtaining a financial advantage, namely a tax refund from the Commonwealth, as well as drug trafficking offences and being directly or indirectly engaged in a transaction involving tainted property. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.
Held, allowing the application; bail is granted.
Bail Act 1985 (SA) s 14; Controlled Substances Act 1984 (SA) s 32; Criminal Code 1995 (Cth) s 134.2; Criminal Law Consolidation Act 1935 (SA) s 138, referred to.

COGNO v THE QUEEN
[2020] SASC 207
Criminal: Application
LIVESEY J:
Introduction

This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a refusal to grant bail on 10 September 2020.
The applicant contends that he is a proper candidate for bail on strict home detention conditions notwithstanding the seriousness of the allegations against him.
The subject alleged offending
The applicant is charged with offences contrary to Commonwealth and State laws.
So far as Commonwealth offending is concerned, the applicant has been charged on Information and Summons dated 9 December 2019 with 49 counts of dishonestly obtaining a financial advantage, namely a tax refund from the Commonwealth, contrary to s 134.2(1) of the Criminal Code 1995 (Cth). In very broad terms the charges concern business activity statements (BAS) lodged with the Australian Taxation Office between 2010 and 2013 which report false sales and purchase summaries. The case against the applicant is that there was, as a result, an underpayment of taxation which, though not yet properly quantified, lies in the range $1 million to $2 million.
The Crown case is that these BAS statements were lodged in connection with a wine making business subject to a wine equalisation tax for which, in certain circumstances, a wine equalisation tax rebate can be claimed. As well, an entity can claim wine tax credits including a producer rebate in certain circumstances. The false BAS statements are said to have been lodged in connection with mis‑statements associated with these types of entitlements.
So far as the State offences are concerned, and in connection with which the applicant was arrested on 28 July 2020, the applicant has been charged on Information dated 29 July 2020 with the following offences:
1On 28 July 2020 trafficked a large commercial quantity of cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
2On 28 July 2020 trafficked a commercial quantity of cocaine, contrary to s 32(2) of the Controlled Substances Act 1984 (SA).
3On 28 July 2020 directly or indirectly engaged in a transaction involving tainted property, being cash with a value of $20,000, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case is that the applicant was subject to ongoing surveillance by the Australian Federal Police at a time when there was an active warrant issued in respect of the Commonwealth offending and the applicant was liable to arrest.
During the late morning on 28 July 2020 State and Australian Federal Police attended an address and observed a truck parked outside a premises adjacent the open sliding door of a shed. The driver’s side “curtain” of the truck was open. The appellant is said to have been standing at the side of the truck on the roadway and, immediately behind the truck was a forklift with its engine running.
A co‑accused was inside the shed standing near two open wooden crates.
When the applicant was arrested he was asked about ownership of the shed. Though the applicant told police that it was not his shed, he identified the vehicles as his. A search revealed that there were two wooden crates in the truck containing four steel boxes with “cryo”‑packed cannabis. At least one of the wooden crates in the shed had a steel box in it which also contained cannabis packed in “cryo”‑sealed bags. Police claim that they interrupted the applicant and his co‑accused loading cannabis into the crates and, thereafter, onto the truck.
In one of the other vehicles police found cocaine and cash in an amount of just under $20,000 which was also “cryo” sealed. Also located in a bag in the vehicle was more cash, totalling $32,000.
I was told that the co‑accused was in possession of the keys to the truck. The evidence about that is indistinct. The prosecution case is that the co‑accused did produce a number of keys to police but it may be that these keys included keys to only a third vehicle, not the truck. There is no suggestion that drugs or suspect cash was found in the third vehicle.
Circumstances of the offender
The applicant is 52 years of age and was declared bankrupt on 12 July 2010. Eventually, his business failed last year. Following the failure of his wine making business, the applicant has been involved in truck driving.
It is agreed that his criminal antecedents are very limited. The most serious offences date back six or seven years and relate to tax matters. There is no suggestion that the applicant had ever breached the terms of a bail agreement.
For the applicant it is emphasised that he has lived in South Australia for 25 years and that his three grown children also live in South Australia. His parents live in New South Wales.
Whilst some concern was expressed about the fact that the applicant has previously enjoyed a travel exemption which permits him to travel interstate during the COVID‑19 pandemic, as might be expected, this exemption was revoked following his arrest.
It may be that the applicant has been leading a somewhat itinerant life following the collapse of his business. He may have been living inside his truck. At all events, there is now a home detention report dated 13 October 2020 which records that the proposed residence in a cabin at a caravan park in Milang is suitable. As to this, counsel for the State and Commonwealth Crown has emphasised that Milang is some distance from the nearest police station.
Nonetheless, the applicant emphasises that he has the support of a guarantor who resides in Echunga and has employment at Mount Barker. There is an offer to lodge a cash surety in the amount of $10,000.
Disposition of the application
The applicant enjoys a presumption in favour of bail pursuant to s 10 of the Act, together with a presumption of innocence.
Whilst it is emphasised that the co‑accused in connection with the drug offending was released on simple bail, despite what the applicant claims is ostensibly “greater involvement” and a “more extensive criminal history”, there is no suggestion that the co‑accused has before him anything like the serious Commonwealth offences which confront the applicant.
The applicant emphasises that a trial of these matters is likely to be at least 18 months away.
I confess to having been in some doubt about whether bail is appropriate in a case where Commonwealth and State charges as serious as these are in contemplation. In the end, I am satisfied that bail is appropriate in circumstances where the applicant has not previously breached the terms of any bail agreement and there are likely to be considerable delays before these various matters are finalised.
Accordingly, and not without some hesitation, I am prepared to grant bail on strict home detention conditions. These conditions will also require support from the guarantor as well as the lodgement of a $10,000 cash surety.
Accordingly, the order of the Court is that the application is allowed and bail is granted.