Dow v The Queen

[2006] WASC 286

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DOW -v- THE QUEEN [2006] WASC 286

CORAM:   BLAXELL J

HEARD:   8 DECEMBER 2006

DELIVERED          :   15 DECEMBER 2006

FILE NO/S:   INS 176 of 2006

BETWEEN:   ANTHONY WILLIAM DOW

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Bail pending trial - Charge of commercial trafficking of methylamphetamine - Whether exceptional circumstances need to be shown - Whether a flight risk - Whether applicant needs to be held in custody for his own protection - Turns on own facts

Legislation:

Bail Act 1982 (WA), Sch 1 Pt C, cl 1 and cl 3
Commonwealth Criminal Code, s 10.2

Result:

Bail refused

Category:    B

Representation:

Counsel:

Applicant:     Mr T F Percy QC & Mr J A Davies

Respondent:     Mr G J Allen

Solicitors:

Applicant:     D G Price & Co

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Jemielita v The Queen (1994) 12 WAR 362

Mercanti v The State of Western Australia [2005] WASCA 254

Rauch v The State of Western Australia [2005] WASC 241

Ribot‑Cabrera & Ors v The Queen [2004] WASCA 101

The State of Western Australia v Sturgeon [2005] WASC 256

WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

Beljajev (1998) 101 A Crim R 362

Clarke (2001) 118 A Crim R 585

Lazaro v The Queen, unreported; SCt of WA; Library No 930595; 3 November 1993

Outman v The Queen [2001] WASC 162

Saka v The Queen [2001] WASC 92

Salisbury (1994) 76 A Crim R 565

1. BLAXELL J:  The applicant ("Mr Dow") applies for bail pending his trial in the Supreme Court on a charge of trafficking in a commercial quantity (approximately 2 kilograms) of a controlled drug, namely methylamphetamine, contrary to s 302.2(1) of the Criminal Code (Clth).  He has pleaded not guilty, and the trial has been listed for a period of three weeks commencing on 10 April 2007.

2. It is proposed that Mr Dow be released to bail on stringent conditions designed to counter any flight risk, and that there be a very substantial surety.  The Crown opposes the application on the grounds that Mr Dow has failed to show any exceptional circumstances justifying the grant of bail, that he represents a substantial flight risk, and that he should remain in custody for his own protection.

The circumstances of the alleged offence

1. In December 2005 the Australian Crime Commission commenced an investigation into alleged illegal activities of one Alexander Robert Castagna in Sydney New South Wales.  Castagna was monitored by physical and technical surveillance including telephone intercepts, and he was seen and heard to have intermittent contact with Mr Dow.  During that time Mr Dow was living in an apartment at Bondi Junction, and working as a Qantas flight steward on domestic flights.

2. On 7 April 2006, Castagna, while accompanied by an associate (Lee Pereira), was seen to enter Mr Dow's apartment carrying a hand‑sized item.  Castagna was later seen to leave the apartment and retrieve a blue duffle bag from his car before re‑entering the premises once again.

3. Surveillance officers monitored Mr Dow over the following few days and it became apparent that he was ill with tonsillitis and in need of medical treatment.  On Saturday 8 April Mr Dow was admitted to hospital and remained there until being discharged during the afternoon of Sunday 9 April 2006.

4. On the evening of Monday 10 April 2006 Castagna and Pereira were seen to enter Mr Dow's apartment and to stay there for approximately nine minutes.  Surveillance officers did not observe any items being taken into or out of the premises during this visit.

5. On 11 April 2006 Castagna and Mr Dow both flew to Perth on Qantas flight QF 575.  Mr Dow was not working as a flight steward during this flight.  Castagna and Mr Dow were kept under constant surveillance and did not appear to have any contact with each other before, during, or after the flight.

6. Upon arriving at Perth Airport, Mr Dow travelled by taxi direct to a residence in Yokine where he was observed to leave a blue duffle bag in the unlocked garage of the premises.  Mr Dow then returned directly to Perth Airport where he was arrested.

7. A search warrant was executed at the Yokine address as a result of which the blue duffle bag was opened and found to contain approximately 2 kilograms of crystalline methylamphetamine (commonly known as "ice") packed in a vacuum sealed clear plastic bag.  The powder weighed 1979.70 grams and when analysed was found to be methylamphetamine of approximately 75.64 per cent purity.

8. Mr Dow voluntarily participated in a video record of interview after his arrest.  He initially claimed that he had visited the Yokine property to meet a girl who turned out not to be at home.  However, when confronted with the fact of the surveillance, he admitted to have knowingly transported the methylamphetamine from Sydney.  He stated that the methylamphetamines had been taped to his body when he passed through Sydney airport security, but were then transferred into the blue duffle bag while he was in the toilets before boarding the plane.  Mr Dow also volunteered that some two or three months previously he had made a similar delivery from Sydney to Yokine of a "sample" bag of methylamphetamine.

9. Later in the day (on 11 April 2006) Mr Dow requested a second interview with the arresting officers.  He then volunteered that since early 2005, and while working as a Qantas flight steward, he had made a total of five or six deliveries of methylamphetamines from Sydney to Perth.  Mr Dow had made these deliveries on the instructions of Castagna or his friend "Lee", and depending upon the quantity of the drugs on each occasion had been paid amounts of between "2 or 5 grand" or "7, 8 grand".  The total payments received by Mr Dow from Castagna or Lee amounted to some $60,000 or $70,000.

10. It is relevant to note that during the course of the first interview Mr Dow indicated that the people who had instructed him to deliver the methylamphetamines had "some sort of hold" on him.  When asked to elaborate he stated:

    "MR DOW:  The only thing I can elaborate for you is that I feel scared if I wasn't going to do it.  Yeah.  Did I think I had a choice?  Okay.  Everyone probably has a choice.  I at first probably had a choice.  Then I could sort of say I didn't.  I felt scared, I - you know?"

11. It is also relevant to note that after signing a written statement on 12 April 2006, Mr Dow expressed concern for his personal safety as a result of providing evidence against Castagna.  He was concerned that if he was placed in the general prison population while in custody, Western Australian associates of Castagna would have easy access to and would harm him.  For this reason, the investigating officers made arrangements for Mr Dow to be placed in protective custody.

The likely issues at trial

1. In the course of the present application Mr Dow has indicated that the defence to the charge is that he acted under duress.  The circumstances said to support that defence are set out in the following passages of an affidavit from his solicitor in support of the application:

   "37.On the evening of 10 April 2006 Alex Castagna ('Castagna') and a man he knew only as 'Lee' attended the Applicant's home.  The Applicant had met Castagna and Lee casually on previous occasions at a restaurant where Marcela and Castagna worked.

   38.The Applicant came to believe, based on reputation and also on events described to him by Castagna and Lee, that Castagna, Lee and their associates were involved in violent and criminal activities throughout New South Wales.

   39.He was further made aware that Castagna and Lee had links to notorious criminal figures in Sydney, including Tom Domican and Mikal Hurley.

   40.Castagna and Lee threatened to seriously harm the Applicant and his family if he did not agree to travel to Perth the following morning and take with him a package.  He took the threats seriously.

   41.Castagna said that he would be on the same flight as the Applicant to ensure his compliance, that his home would be watched and that he better not 'fuck up'.

   42.Castagna and Lee physically threatened the Applicant and stood over him whilst he booked a flight on the internet from his home computer.

   43.The Applicant genuinely believed that he or his wife and daughter would be harmed or killed if he did not do as instructed.  Knowing and believing what he did of Castagna and Lee's background and associates, he was convinced and believed that they had the capacity and inclination to carry out their threats.

   44.He did not consider it possible for him to alert the police or any other authority without alerting Castagna, Lee or their associates as he was told that the house would be watched."

2. Obviously, the jury at the trial will only be in a position to consider the defence of duress if Mr Dow gives evidence as to these alleged circumstances.  In this regard, s 10.2 of the Commonwealth Criminal Code provides that:

   "10.2     Duress

   (1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

   (2)A person carries out conduct under duress if and only if he or she reasonably believes that:

   (a)a threat has been made that will be carried out unless an offence is committed; and

   (b)there is no reasonable way that the threat can be rendered ineffective; and

   (c)the conduct is a reasonable response to the threat.

   (3)This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."

Other relevant matters

1. Mr Dow has no previous convictions, he is 35 years of age, and at the time of his arrest had lived in Sydney for the whole of his life.  He was educated at Christian Brothers College, and at the end of year 10 completed a four year apprenticeship as a pastry chef before resuming years 11 and 12.

2. After finally leaving school Mr Dow worked in a variety of occupations for approximately 10 years before gaining his employment as a Qantas air steward in 2001.  In that position he has worked almost entirely on domestic flights, but occasionally on international "short‑hop" flights.

3. Mr Dow has strong family connections with each of his parents (who separated and divorced when he was 11 years old), his two sisters, and his mother's present husband.  Since 2001 he has been married to Marcela Fuentes and is also step‑father to her 15 year old daughter from a previous relationship.

4. Although Mr Dow's parents‑in‑law emigrated to Australia from Chile, his wife was born in Australia.  Mrs Dow has made a number of trips to Chile as a child but was last there when 14 years old.  Mr Dow has never been to Chile.

5. If released to bail Mr Dow proposes to live in Sydney with his parents‑in‑law, his wife, and step‑daughter.  He would report daily to a nearby police station, and (subject to the requirement to return to Perth for trial) would not approach within one kilometre of an international point of departure or interstate airport.  It is also proposed that Mr Dow's mother (who has unencumbered interests in three residential properties) would enter into an undertaking as surety for a sum of not less than $200,000.

6. Mr Dow has an offer of employment if released to bail.  The position would be as full‑time operational manager with a cleaning business conducted by a long‑term friend whom he has known since childhood.

7. Following Mr Dow's arrest, Messrs Castagna and Pereira were also arrested and charged with related offences.  Castagna faces one count of trafficking in a commercial quantity of controlled drugs as well as two counts of supplying commercial quantities of prohibited drugs.  Pereira has been charged with one count of supplying a commercial quantity of prohibited drugs.  Castagna and Pereira were in custody until 28 November 2006 but were then granted bail.

8. Mr Dow is a potential Crown witness in the New South Wales prosecution against Castagna and Pereira, and on 27 October 2006 provided an induced statement to the Australian Crime Commission.  It is anticipated that Mr Dow will give evidence at a forthcoming committal hearing against Castagna and Pereira and that this evidence will be given via audio visual link.  However, before this can occur, the Director of Public Prosecutions in New South Wales will need to approve that Dow be called as a prison informer, and various undertakings will need to be sought from the Attorney General of New South Wales and the Commonwealth Director of Public Prosecutions.

Whether exceptional circumstances must be shown

1. In WCVB v The Queen (1989) 1 WAR 279 Ipp J held that the Bail Act 1989 did not alter the previous common law requirement that an applicant for bail in an "extremely serious" case must show that there are exceptional circumstances justifying such grant of bail.  There have been numerous instances since then when that decision was followed, and in Jemielita v The Queen (1994) 12 WAR 362, Pidgeon J (with whom the other members of the Full Court agreed) held (at 367 ‑ 368) that:

   "In the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown.  The principles which have been evolved when considering these factors under the earlier statutes are based on logic, experience and common sense and ... are principles the community would expect in cases of this nature.  I do not consider that there has been an intention in the Bail Act to exclude them.  On the contrary, I consider that the omission of a reference to a right to have bail granted and the emphasis on the discretion to grant it with power to consider all relevant questions and matters results in the requirement that the discretion be exercised in accordance with the established principles.  ...  I consider therefore that Ipp J was correct in WCVB v The Queen in saying that the Bail Act has not altered these earlier principles ... "

2. In Ribot‑Cabrera & Ors v The Queen [2004] WASCA 101 EM Heenan J (with whom on this point, the other members of the Full Court agreed) held at [50] that the recognition that exceptional circumstances must be shown in a special category of cases is an illustration of:

   " ... the wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial."

3. In Rauch v The State of Western Australia [2005] WASC 241, McKechnie J nevertheless "doubted" the correctness of WCVB v The Queen; and in The State of Western Australia v Sturgeon [2005] WASC 256 at [41], EM Heenan J attempted to reconcile that view with the previous authorities.

4. In Mercanti v The State of Western Australia [2005] WASCA 254 the Court of Appeal (at [42]) has referred to Rauch and Sturgeon and indicated that the decision in Jemielita (supra) may need to be revisited.  For my part, and for the purposes of a case of the type involved in the present application, I am content to apply the broader principle referred to in Ribot‑Cabrera (as set out above).  Obviously, and as a matter of "logic, experience and common sense" a charge of trafficking in a large quantity of illicit drugs carries with it an inherent incentive for the defendant to abscond.  The larger the quantity, the greater is the need for the applicant seeking bail to demonstrate that he will appear at trial.

Whether there should be a grant of bail

1. Irrespective of the principle referred to in Ribot‑Cabrera, I am in any event required to have regard to the particular questions posed in cl 1 of Pt C of the First Schedule to the Bail Act 1982 (WA). Relevant to the matters put in issue by the respondent in the present case, those questions are:

   -Whether if Mr Dow is not kept in custody he may fail to appear in court?

   -Whether Mr Dow needs to be held in custody for his own protection?

   -Whether any condition of bail could reasonably be imposed to overcome either of the above concerns?

   -Whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate?

2. In dealing with these questions I am required to consider all of the relevant factors as a whole.  No particular factor should rigidly be given more importance than another, and the particular circumstances of each case will determine the weight to be attributed to each factor (WCVB v The Queen (supra) at 283).

3. Nevertheless, in respect of the first question (as to whether there will be a failure to appear), I am required to have particular regard to the matters set out in cl 3 of Pt C of the First Schedule to the Bail Act, as well as to any other factors that I consider to be relevant.  These matters include the nature and seriousness of the alleged offence and the probable outcome if there is a conviction; factors personal to Mr Dow such as his character, previous convictions, associations and home environment; and the strength of the evidence against him.

4. Although all of these factors and matters must be taken into account, I consider that in the particular circumstances of the present case the focal question is that posed by cl 1(a)(i), namely whether there is a risk of flight. As to this, Mr Dow's antecedents and strong family support, when looked at on their own, tend to favour a grant of bail. However, the charge against him is a very serious one carrying a maximum penalty of life imprisonment, and if he is convicted he will inevitably be sentenced to a very lengthy custodial term. It is in this context, that I must examine the strength of the evidence against him.

5. Based upon the materials before me, the real issue at trial will be whether or not Mr Dow transported the 2 kilograms of methylamphetamines from Sydney to Perth while under duress.  Accordingly, I need to consider the strength of the prosecution case that Mr Dow was not acting under duress (on the assumption that he will be giving evidence in accordance with his solicitor's affidavit).

6. The first observation to be made is that the solicitor's affidavit deals with the events on 10 and 11 April 2006 in isolation and does not in any way address Mr Dow's conduct over the preceding year or so when (on his own admission) he made five or six deliveries of methylamphetamines to Perth and received payments totalling at least $60,000 in return.

7. If Mr Dow is contending that he made those previous deliveries while under similar duress, then it would be reasonable to expect that assertion to appear in the materials before me.  As that assertion is not made, I assume that the duress is said to have occurred only in respect of the last delivery the subject of the present charge.

8. This being so, the undisputed facts strongly suggest that any threat by Castagna or "Lee" was made by a person with whom Mr Dow was "voluntarily associating for the purpose of carrying out conduct of the kind actually carried out" (as per subs 10.2(3)).  Accordingly, and even if the Crown cannot prove that Mr Dow was not acting under duress, it has a very strong case that in the particular circumstances alleged, the defence of duress does not apply.

9. Alternatively, if Mr Dow was to contend that he made all of the deliveries of methylamphetamines while under duress, then this would be inconsistent with his admission that "at first (he) probably had a choice".  In this respect, it seems to me that Mr Dow's defence sits uncomfortably within a cleft stick.

1. In my opinion, when one considers the very serious nature of the alleged offence, the probable outcome if convicted, and the strength of the prosecution case, there is a very significant risk that Mr Dow will fail to appear at his trial if he is not kept in custody.  This is so notwithstanding Mr Dow's favourable antecedents and family connections.

2. I consider that this risk is magnified by Mr Dow's concerns for his personal safety and the alleged criminal background and connections of Castagna and Pereira.  While in prison Mr Dow has been placed in protective custody at his own request.  His solicitor's affidavit does not address the question of how he proposes to achieve the same level of protection while living in Sydney during a period leading up to the requirement for him to testify against his alleged co‑offenders.  In my view, this indicates that there would be an even greater incentive for him to take flight.

3. Given the significant incentives for Mr Dow to take flight in order to avoid punishment and to achieve personal safety I do not consider that the proposed conditions of bail would be sufficient to ensure his appearance at trial.  He has failed to demonstrate in accordance with the principle in Ribot‑Cabrera (supra) that a grant of bail would be appropriate.  It follows that the application must be refused.