Director of Public Prosecutions (NSW) v Zaiter

[2016] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
Hearing dates:	26 October 2016
Date of orders:	26 October 2016
Decision date:	02 November 2016
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Wilson J at [57]
Decision:	1. Detention application granted. 2. Bail is refused.
Catchwords:	CRIMINAL LAW – bail – detention application – knowingly take part in supply of large commercial quantity of cocaine – knowingly deal with proceeds of crime – show cause offences – where offences are very serious and one carries a maximum penalty of life imprisonment – where Crown contends all four bail concerns apply – viable circumstantial Crown case – concerning but unremarkable prospective delay before trial – criminal history including cocaine supply – respondent has not shown cause – even if cause had been shown there are unacceptable risks of failing to appear and of committing further serious offences despite very onerous proposed bail conditions – detention application granted and bail refused – judgments of single Supreme Court judges in bail matters are relevant to their own factual matrix but rarely of any precedential value
Legislation Cited:	Bail Act 2013 (NSW) ss 16A, 16B, 17, 18, 19, 31
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Fleming v White; Gamble v Hiles [1981] 2 NSWLR 719 R v Kugor [2015] NSWCCA 14 R v XY [2013] NSWCCA 121; 84 NSWLR 363
Category:	Principal judgment
Parties:	Regina Joseph Zaiter
Representation:	Counsel: Mr E Balodis (Crown) Mr S Russell (Respondent)   Solicitors: Solicitor for Public Prosecutions Longton Legal
File Number(s):	2016/238390

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J.

2. R A HULME J: Joseph Zaiter was granted bail in the Supreme Court on 13 October 2016. On 19 October 2016 the Crown filed a detention application in this Court.

3. At the conclusion of the hearing of the application on 26 October 2016 the Court granted the application and refused bail. The following are my reasons for joining in the making of those orders.

4. The respondent is charged with a number of offences of supplying cocaine and knowingly dealing with the proceeds of crime.

Alleged offences between 2 May and 16 October 2015 at Sydney

5. The respondent is charged with knowingly taking part in the supply of a large commercial quantity of cocaine and knowingly dealing with the proceeds of crime between 2 May and 16 October 2015. The broad allegation is that in that period of time the respondent was involved in the supply of just over 2.6 kg of a prohibited drug and dealt with some $142,000 in cash which is alleged to have been the proceeds of drug supply activity.

6. The police investigation involved the installation of audio and video surveillance devices in various hire cars that the respondent is alleged to have used within this period. According to the police statement of facts, on about 20 occasions within this period the respondent was seen to be involved in handling quantities of cocaine and sums of money which he concealed beneath the centre console of the vehicle. For example, on some occasions he was seen to retrieve a quantity of what was alleged to have been cocaine and leave the vehicle and then to return to the vehicle empty handed. On various occasions he was seen to produce bundles of money from his pants and store it underneath the centre console.

7. On most of these occasions it is the police contention that the respondent supplied the cocaine to an unknown person. However, on one occasion he engaged in sexual activity with a woman in his car and then provided her with a small quantity of cocaine (0.25 grams). She subsequently made a statement to police confirming the supply to her of the cocaine. On another occasion he threw two bags of cocaine out of the car which police recovered and confirmed that it was in fact 0.26 grams of cocaine.

8. The most significant supply is said to have occurred on 5 July 2015 where the respondent is alleged to have taken from the car quantities that are asserted to be half a kilogram and one kilogram of cocaine and leave and then return empty handed.

9. In a conversation with an unknown male on 27 May 2015, which the police assert was in relation to the large scale supply of cocaine and the profits that were being made by the respondent, he was recorded as having said, "I sell it for one eighty … I'm still making thirty grand on occas". ("Occas" is apparently common drug terminology for ounces.)

10. The police facts assert that there are other recordings (that are not particularised in the statement of facts) that show the involvement of the respondent in the large scale supply of cocaine and knowingly dealing with the proceeds of crime.

11. The submissions by counsel for the respondent pointed out that the prosecution case was heavily dependent upon electronic surveillance evidence. There was speculation by police as to the substance being cocaine and as to quantities. It was submitted that the substance “was not cocaine but something else, perhaps powdered steroids”. As to the sums of money seen in the recordings, it was contended that the police had provided mere estimates of the amounts.

12. The submissions did not suggest any innocent or alternative explanation for the respondent using various hire cars and being seen to be in possession of significant sums of money, including the police assertions that on 20 May 2015 he handed an unknown male three large bundles totalling about $50,000 in fifty dollar notes and that on 16 October 2015 he removed about $25,000 from his pants.

13. At the hearing of the application on 26 October 2016 the Crown played to the Court an excerpt of the surveillance device recording of the incident on 5 July 2015 referred to above. In my perception, it bears out the assertion in the police facts that the respondent retrieved plastic-wrapped white rectangular thin block-like objects that had the appearance of compressed powder from underneath the centre console of the car and put them into a bag. He was careful to avoid his fingerprints being left on the objects by holding them within a cloth-type object in his hands.

Offence on 30 September 2015 at Wiley Park

14. A specific offence separately charged but within the period covered by the above charges concerned an incident on 30 September 2015 when the respondent and Steven Sevastopoulos drove to a location in Wiley Park. An unknown male handed a bag to the respondent who was sitting on the passenger side of the car. The respondent and Sevastopoulos then concealed that bag underneath the centre console. Their car was later stopped on the M5 and searched by police.

15. Prior to the police searching, the surveillance devices recorded the pair discussing what is described as a “cover story” for money concealed within the car. For example, the respondent is alleged to have said “if they do find the money … right … I’ll say it’s a friend of mine. I took [the hire car] up to my friend yesterday”. Sevastopoulos said, “what are we going to do … are we going to get pinched for this?” and the respondent replied, “I don’t know. There are two of us, so they can’t prove whose it is. It’s Eddie’s money anyway.” Police recovered a bag which contained $99,050. Both the respondent and Sevastopoulos denied knowledge of it. The police also seized an encrypted Blackberry phone, a Nokia mobile phone, and a TAB receipt for $7000. The respondent and Sevastopoulos were both released without charge pending further investigation.

16. Counsel for the respondent asserted in written submissions that his instructions were that this money was “lent to the applicant by a person named Eddie who specifically did not want the applicant to disclose the source of the monies. I am instructed that person is a well-known gambler who has received considerable recent media attention and scrutiny.”

Offences on 19 January 2016 at Manly

17. At about 3pm on 19 January 2016, Sevastopoulos was seen to go to a café in North Sydney where he met with Kale Dempsey, who is described as being an associate of the respondent and Sevastopoulos. Dempsey provided a pink Telstra bag to Sevastopoulos who then drove to the respondent’s home in Manly. He entered the respondent’s home carrying an object which could not be identified by surveilling police. The police facts assert that the respondent was home but that is, apparently, disputed. Sevastopoulos left about an hour later carrying a brown bag. He caught a taxi but was pulled over at Mosman. The bag was searched and found to contain the pink Telstra bag in which there was 488 grams of cocaine in a “Foodsaver" vacuum sealed bag. He was also in possession of an encrypted Blackberry phone.

18. Police then executed a search warrant at the respondent’s home. The police facts assert that the respondent “was still at home”. They found 19.55 grams of cocaine in two bags behind a picture frame. They found a further 2.44 grams of cocaine in four bags hidden under a kitchen drawer. They also found a Sunbeam Foodsaver vacuum heat sealing machine in a cupboard above the refrigerator. A subsequent examination identified this machine as having been used to seal the 488 grams of cocaine that were found in Sevastopoulos’ possession at Mosman. The expertise of the police officer who carried out this examination is an issue.

19. Police also found a set of electronic scales, 18 vials of steroids, and another encrypted Blackberry phone. Analysis at the Forensic and Analytical Science Service revealed DNA consistent with being the respondent’s on the packaging of cocaine found within his premises, on the electronic scales and on the “Sunbeam Foodsaver” machine.

20. In written submissions, counsel for the respondent contended that the evidence suggested that the 488g of cocaine was supplied by Dempsey to Sevastopoulos and that the visit by the latter to the respondent's home could have been for any number of reasons, including the supply of the small quantities of cocaine later found there. This is obviously at odds with the assertion that the respondent was not home when Sevastopoulos attended.

21. It was submitted that there was no DNA evidence linking the respondent to any of the packaging of the drug. DNA consistent with being that of Sevastopoulos was in fact found on the Telstra bag but none at all was detected on the Foodsaver vacuum sealed bag. It was also pointed out on the respondent’s behalf that there were no large sums of money found at the respondent's home.

22. Evidence tendered in the respondent’s case included that his solicitor had been told that Sevastopoulos intended to rely upon a Carey defence (he was "simply returning the drugs to their rightful owner"). Thus, it was submitted, given he was arrested when travelling away from Manly, the respondent could not have been the owner. Section 31 of the Bail Act 2013 (NSW) provides that the rules of evidence do not apply but the evidence as to Sevastopoulos’ intentions as to his plea and his defence is not at all soundly based.

23. It was also contended that the steroids found at the respondent's home come in a powder form to which liquid is added for injection. Accordingly, the substance apparently seen in the respondent's possession on the various occasions between 20 May and 16 October 2015 could also have been steroids.

Proceeds of crime charges relating to accommodation expenses

24. According to the police facts, the Australian Taxation Office has indicated that the respondent had not declared any legitimate income or filed income tax returns in at least the last five years. The police contend that his only income appears to be from drug supply and proceeds of crime.

25. The applicant is charged with knowingly dealing with the proceeds of crime between 19 April 2011 and 21 March 2013 at Sydney in that he paid $1150 per week rent on what is described as a “luxury apartment” at Manly; the total cost being $116,042.85.

26. A further charge similarly arises in respect of rent the applicant paid on another “luxury apartment” in Manly between 29 November 2013 and 26 February 2015 whereby he paid at total sum of $69,928.55.

27. Finally there is a further proceeds of crime offence alleged in respect of the rent of just under $7,000 per month paid by the respondent for the premises at which he was living at the time of his arrest going back to 6 February 2015 (approximately $77,000).

28. It was indicated that the respondent intends to establish that all money suspected of being the proceeds of crime will be shown to be sourced from legitimate gambling activity. It is unnecessary to go into the scant detail; it suffices to say that the evidence presented to the Court in this application was far from persuasive as to the credibility of this claim.

Seriousness of the charges

29. The majority of the offences charged against the respondent are of considerable seriousness. The most serious is the charge of knowingly taking part in the supply of a large commercial quantity of cocaine between May and October 2015 for which the prescribed maximum penalty is imprisonment for life. There is also the charge of supplying a commercial quantity of cocaine being the 488 grams of cocaine found on 19 January 2016 whereby the maximum prescribed penalty is imprisonment for 20 years. Significant standard non-parole periods are prescribed in respect of both of those offences.

Citation of judgments of the Supreme Court

30. I pause to observe that in this case, and as seems to often occur, the parties have cited judgments of single judges of the Supreme Court presiding in the Common Law Division Bails List. It is important to recognise that such judgments do not often lay down anything of precedential value for “bail authorities” (as defined in the Bail Act).

31. Many such judgments are delivered ex tempore. Some judges are more inclined as a matter of individual practice to publish judgments on the Caselaw website whereas others are not. Bail decisions involve a discretionary evaluative judgment on a variety of factors about which, and within limits, reasonable minds may differ. It does not follow that simply because a judgment is published it is more authoritative than others that are not.

32. What I am saying should not be taken as any criticism of judges who do publish their judgments in the public domain. But it must be recognised that most of these judgments are very specifically directed to the facts and circumstances of the case at hand. It is useful for “bail authorities” to have examples of how particular factual circumstances have been considered by Supreme Court judges. But every bail application presents its own unique factual matrix.

33. It should be kept very firmly in mind that the doctrine of precedent is concerned with decisions on points of law: see, for example, Fleming v White; Gamble v Hiles [1981] 2 NSWLR 719 at 725-6 (Street CJ); and R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [30] (Basten JA). A decision by a single judge of the Supreme Court regarding, for example, delay as a decisive factor in determining whether cause has been shown under s 16A of the Bail Act is no more than the view taken by that particular judge in the circumstances of the particular case at hand.

The need to show cause

34. Sections 16A and 16B(1)(a) and (f) of the Bail Act have the effect that the respondent is required to show cause why his detention is not justified.

35. If cause is shown, there is a need for the Court to assess any bail concerns: s 17. On that assessment, if it is determined that there are any unacceptable risks, bail must be refused: s 19. In making this assessment it is necessary to have regard to the various matters in s 18. Generally as to the approach to be taken, see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [14]-[26].

The respondent’s personal circumstances

36. The respondent was born in 1975 and so he is now aged 41. He has a wife and two young children who have experienced a number of difficulties as a result of the respondent being taken into custody. In a letter placed before the Court, Ms Zaiter described the respondent as "a very hands-on father". One of the children is particularly suffering as a consequence of her father's absence and both are clearly distressed about it. Ms Zaiter herself is stressed and anxious. The respondent relied upon the hardship being experienced by his family as relevant to the grant of bail.

37. The respondent has a criminal history that includes three matters of armed robbery and one of possessing a prohibited weapon dealt with at the Parramatta District Court on 4 April 1996 whereby he was imprisoned for 3 years 6 months with a non-parole period of 1 year 6 month.

38. In January 2001 he was dealt with in the Local Court for a charge of possessing an unauthorised firearm whereby he received a two year good behaviour bond as well as a $2000 fine.

39. On 3 July 2008 in the Sydney District Court the respondent was sentenced for a charge of supplying a prohibited drug to imprisonment for 2 years 6 months with a non-parole period of 1 year 3 months with effect from 3 July 2008. The facts of that offence were tendered before this Court and indicate that on 24 February 2005 the respondent and a co-offender were involved in the purchase of a bag of 249 grams of cocaine for $40,000 in a controlled undercover police operation. It is of some note that Mr Sevastopoulos acted as a broker between a police agent and the respondent and his co-offender.

40. The respondent referred to the last matter to point out that he had been on conditional bail for three years prior to being sentenced and there was no suggestion of any breach.

Delay

41. The Crown accepts that the jurisdiction of this court involves a de novo determination of the application: R v Kugor [2015] NSWCCA 14. Nevertheless it contended that it was an error by the primary judge to find that cause had been shown because of the anticipated delay until the respondent’s trial might be held. That was, it appears, the sole basis upon which his Honour found that cause was shown. The Crown contended that this is a relevant factor but not determinative by itself.

42. Counsel for the respondent accepted the evidence placed before the Court by the Crown which was to the effect a trial would likely be listed in the District Court sometime after June 2017. However, he contended that there was no certainty as to this. If, for example, committal to the District Court for trial was not imminent as the Crown expects, or if there was severance of any of the various charges, it could be that the matter would not be finalised until 2018. He submitted that such a delay was a substantial factor supporting his submission that bail should be allowed.

43. There seems a reasonable prospect of a trial occurring in the third, or at worst fourth, quarter of 2017. Quite obviously that is a significant time since the respondent was refused bail on his arrest in January 2016. The delay until now has largely been a product of the time taken for the prosecution to compile and serve its brief of evidence but it has apparently been contributed to by the respondent changing his legal representation. There has otherwise been nothing that could be regarded as preventable or the fault of the prosecution. The prospective delay between committal and trial is unremarkable with the current heavy caseload pending in the District Court.

44. The delay in this matter is concerning and is an important factor in the ultimate determination.

Strength of the prosecution case

45. The Crown submitted that it has a strong case whereas the respondent contended otherwise. A major issue raised in submissions was the ability of the prosecution to establish in relation to the large commercial quantity offence that the substance the respondent was seen handling in the surveillance device recordings was in fact cocaine. On the limited materials available to this Court I would not regard the prosecution's circumstantial case as weak; it appears to be quite viable. The prospect of the Crown being successful in relying upon the respondent's previous cocaine supply offence as either tendency or coincidence evidence is impossible to assess at this point and I have not taken it into account.

45. There was also a significant dispute about the strength of the case concerning the commercial quantity charge arising from the events of 19 January 2016. I would regard this case as stronger. In the absence of any credible alternative explanation for the attendance by Sevastopoulos at the respondent's home immediately after having received a substantial quantity of cocaine from an associate of the respondent and then leaving with the drug packaged in a way consistent with equipment on hand at the respondent's home, I would not regard this case as a weak one either.

46. The proceeds of crime charges are significant as well. The alternative explanations sought to be advanced for the respondent's possession and expenditure of substantial sums of money when he had no regular legitimate income appear to be quite dubious.

Bail concerns

48. The Crown contended that all four of the bail concerns listed in s 17(2) of the Bail Act applied: that the applicant would fail to appear; that he would commit a serious offence; that he would endanger the safety of victims, individuals or the community; and that he would interfere with witnesses or evidence.

49. The Crown pointed to the respondent’s criminal history and referred to the fact that a significant period of fulltime custody would ensue inevitably if the respondent was convicted. In this regard the Crown particularly noted the maximum penalty of imprisonment for life applying to the large commercial quantity supply charge. This, it was contended, provided a very substantial incentive for the respondent to fail to appear in court.

Proposed bail conditions

50. The respondent submitted that the conditions of bail he proposes, coupled with the other relevant matters, both established why his detention was not justified and allayed any of the bail concerns raised by the Crown. The conditions include a curfew, frequent reporting to police, and the lodgement of security by two acceptable persons in the total sum of $1,450,000.

51. These are no doubt very onerous conditions and the lodgement of such a substantial surety is significant in the context of the Crown's concern about the prospect of the respondent failing to appear at his trial.

Determination

52. The Crown did not specifically address each of the bail concerns it raised. In my view the most pertinent for consideration in this case is the risk of the respondent not attending court when required due to the gravity of the charges and the likely outcome if convicted. There is also some force in the suggestion that the applicant presents a risk of further serious offending and that would obviously be a concern about further drug supply offences given the persistent nature of what is alleged in the present charges and the history of the respondent having a prior conviction for a relatively serious example of such an offence.

53. If the current allegations are to be accepted, it would seem that service of a previous term of imprisonment has not deterred him. Equally, having had the $99,050 seized by police in September 2015, the respondent allegedly continued about his drug supply activity similarly undeterred.

54. A further matter of concern is the respondent's apparent access to large sums of money in the context of him not being in any apparent employment and not having filed a tax return for five or more years.

55. If it became necessary to decide I would be of the view that, notwithstanding the very strict conditions of bail proposed, there are unacceptable risks of the respondent not appearing in court as required and of committing a further serious offence. But it does not get to that because I am of the view that the respondent has not put forward enough to show cause why, in the face of these very serious charges with a seemingly viable case against him, his continued detention is not justified.

Conclusion

56. For the foregoing reasons I joined in the making of the following orders at the conclusion of the hearing:

1.   Detention application granted.

2.   Bail is refused.

57. WILSON J: I agree with R A Hulme J.

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Decision last updated: 03 November 2016