Flower v The Queen

[2020] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Flower v R [2020] NSWCCA 64

Hearing dates:

18 March 2020

Decision date:

08 April 2020

Before:

Bathurst CJ at [1];
Johnson J at [2];
Ierace J at [3]

Decision:

The application for bail is refused.

Catchwords:

CRIME – bail – release application – show cause offence – import commercial quantity of a border controlled drug offences – proceeds of crime offences – application for bail refused

Legislation Cited:

Bail Act 2013 (NSW)

Criminal Code (Cth)

Cases Cited:

Barr v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47

Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83

Flower v Director of Public Prosecutions (Cth) [2019] NSWSC 1788

Obeid v R (No 2) [2016] NSWCCA 321

Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172

Viavattene v R [2018] NSWCCA 197

Category:

Principal judgment

Parties:

Damion William Flower (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Stratton SC; J Trevallion (Applicant)
L A Fernandez (Respondent)

Solicitors:
Benjamin Archbold (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2019/395394

Publication restriction:

Parts of judgment redacted pursuant to non-publication orders made on 26 April 2021

Judgment

1. BATHURST CJ: I agree with the orders proposed by Ierace J and with his Honour’s reasons.

2. JOHNSON J: I agree with Ierace J.

3. IERACE J: The applicant, Damion Flower, and a co-accused, John Mafiti, were arrested on 22 May 2019 and charged with serious Commonwealth indictable offences concerning the importation of commercial quantities of a border-controlled drug, namely cocaine. He was refused bail at Central Local Court on 30 May 2019.

4. A release application was heard in the Supreme Court by R A Hulme J, and refused on 13 December 2019: Flower v Director of Public Prosecutions (Cth) [2019] NSWSC 1788. The same day, the applicant filed the present release application before this Court.

5. At the time of the hearing of this application, the applicant was awaiting arraignment in the District Court of New South Wales, having been committed for trial on five counts, listed in the table below:

Count	Offence	Date of offence
1	Engaging in a business to import a commercial quantity of a border controlled drug (cocaine) s 307.1(1) with s 311.4, Criminal Code (Cth) (Maximum penalty: life imprisonment)	Between 1 June 2016 and 22 May 2019
2	Import commercial quantity of border controlled drug (cocaine) s 307.1(1), Criminal Code (Cth) (Maximum penalty: life imprisonment)	15 April 2019
3	Import commercial quantity of border controlled drug (cocaine) s 307.1(1), Criminal Code (Cth) (Maximum penalty: life imprisonment)	22 May 2019
4	Dealing with proceeds of crime > $100,000 s 400.4(1), Criminal Code (Cth) (Maximum penalty: 20 years imprisonment)	Between 1 June 2016 and 22 May 2019
5	Dealing with proceeds of crime > $10,000 s 400.6(1), Criminal Code (Cth) (Maximum penalty: 10 years imprisonment)	Between 1 June 2016 and 22 May 2019

6. This application is brought pursuant to ss 49 and 67(1)(e) of the Bail Act 2013 (NSW) (“the Act”). The application is to be heard de novo, although the judgment of R A Hulme J as the primary judge may be considered for its persuasive effect: see Obeid v R (No 2) [2016] NSWCCA 321 at [6].

7. Counts 1, 2 and 3 are “show cause” offences, because they have maximum penalties of imprisonment for life (s 16B(1)(a) of the Act) and they are offences under Pt 9.1 of the Criminal Code (Cth) that involve the importation of a commercial quantity of a serious drug within the meaning of that Code (s 16B(1)(g) of the Act). Consequently, the court must refuse the application unless the applicant shows cause why his detention is not justified (s 16A(1)). That onus is to be discharged on the balance of probabilities (s 32).

8. If the applicant does show cause, the court must then assess whether the person’s release would prompt any of the four bail concerns set out at s 17(2) of the Act, which are: that the applicant would fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. The court assesses whether it has a bail concern by having regard to an exhaustive list of matters set out at s 18 of the Act.

9. If the court determines there is a bail concern, then it must determine whether there is an unacceptable risk of those concerns materialising (s 19). In making that determination, the court takes into account conditions of bail that it may impose to address a bail concern, so as to ameliorate the level of risk to an acceptable level (s 20A). If the court concludes that there remains an unacceptable risk of a bail concern eventuating, bail must be refused (ss 19(1) and (2)).

10. The determination of whether the applicant has shown cause is made by a consideration of all the evidence or information that the court considers credible or trustworthy in the circumstances, whereas the unacceptable risk test requires that consideration be given only to the factors exclusively set out in s 18, although it “may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test”: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24]-[25]; Viavattene v R [2018] NSWCCA 197 at [24]. However, the two tests must not be conflated, and determination of the unacceptable risk test is not determinative of the show cause test: see Tikomaimaleya at [25].

The prosecution case

11. The prosecution case for the purposes of this application was initially summarised in an Australian Federal Police (“AFP”) statement of facts dated 14 February 2020, which essentially reproduced an earlier version that was tendered in the hearing before R A Hulme J. As it appears in that document, the prosecution case is circumstantial in nature. It was supplemented by subsequently-acquired material outlining direct evidence in relation to count 1 which was served upon the applicant on 4 March 2020, and which had not been tendered before R A Hulme J.

12. The statement of facts alleges that the applicant, now aged 47, and Mafiti, aged 51, conducted an ongoing cocaine importation business over a three-year period utilising commercial flights on a particular route arriving at Sydney International Airport (“the airport”). The applicant is described as the “overseer and organiser” of the importations. In 2000, both men were employed by Qantas as baggage handlers at the airport. Whereas Mafiti continued in that position until his arrest, the applicant left that employment in 2004 and went on to develop a business in the horse racing industry.

13. The alleged modus operandi was that cocaine would arrive at the airport in quantities of around 20–25kg, aboard a Qantas flight from Johannesburg, South Africa (being flight QF64). It would be packed inside a duffle or sports-type bag which had been placed in one of the baggage containers in the cargo hold. The applicant would advise Mafiti, on at least some occasions in a mobile phone text message (“text”), of the identification number of the relevant baggage container in coded form. Mafiti would then remove the bag from that container and carry it off the airport premises, avoiding customs scrutiny by virtue of his employment, and pass the bag on to others, sometimes being the applicant and in one instance being a co-accused, Ashoor Youkhana.

14. In all, it is alleged that between 1 June 2016 and 22 May 2019 (“the charge period”), the applicant engaged in 43 actual or attempted importations of cocaine (“importations”), which is the basis of the first count. Three importations were intercepted (“the intercepted importations”), including the last two, which were in 2019, being the subject of counts 2 and 3 (“the 2019 intercepted importations”).

15. The prosecution case, as it was at the time of the drafting of the statement of facts, depended primarily upon the interplay between five factors: the intercepted importations, a pattern of text messaging between mobile phones said to have been used by the applicant and Mafiti, the arrival dates and times of flight QF64, the times that Mafiti swiped out from work, and CCTV images of Mafiti at and leaving his work place at the time of the six importations that occurred in 2019.

16. Counts 4 and 5, which are the proceeds of crime charges, relate to sums of Australian currency that were seized from the applicant’s residence and vehicle following his arrest.

The basis of the application

17. The application seeks to show cause on the basis of a combination of factors, being: the applicant’s limited prior criminal record, his community and family ties, family hardship, the damage being occasioned to his family business by his incarceration, and the delay before his trial commences. By way of assurance that he would attend court if granted bail, the applicant proposes to privately pay for electronic monitoring of his movements and relies upon offers of substantial sureties.

18. The applicant submits that this Court would not entertain any of the bail concerns set out at s 17(2) of the Act, which would be of significance in the determination of show cause, consistent with an observation of Leeming JA in Barr v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 at [86] (N Adams J agreeing at [135]):

“Courts may be expected to give great weight to the absence of any bail concerns in determining whether an accused person discharges the onus of showing that his or her detention is not justified. It may well be that very little would be required in such a case to conclude that the accused person’s detention is not justified. But even so the legislation leaves it to the wide discretion of the court to make that assessment.”

19. The principal focus of the applicant’s submissions in support of the release application is a challenge to the strength of the prosecution case.

The applicant’s challenge to the strength of the prosecution case

20. The applicant is alleged to have used three phones in succession over the charge period to communicate with Mafiti’s phone about the importations. They were falsely subscribed, that is, subscribed in the names of persons other than the applicant (“the covert phones”). Over the charge period, with the exception of some connections between 26 and 29 April 2019, they were used only to communicate with Mafiti’s phones. Mafiti used his regular phone (that is, a phone correctly registered in his own name) for communications with the applicant concerning the importations until the day before the last importation, when he switched to a covert phone that, it is alleged, had been given to him by the applicant. The use of the three covert phones by the applicant in the manner alleged, in combination with the arrival dates and times of flight QF64, the pattern of Mafiti’s work movements and the intercepted importations as outlined in the Crown material, is powerful evidence in support of the prosecution case as to the applicant’s involvement, and key role, in the enterprise.

21. The applicant submits that the prosecution case falls short of linking the covert phones to him, correctly submitting that there is no direct evidence that he owned or used those phones and that they were not recovered, and that the circumstantial evidence of his use of the covert phones is “not conclusive”. This submission necessitates an understanding of the relevant aspects of the prosecution case.

22. On 29 June 2016, Australian Border Force officers searched an unclaimed sports bag that had arrived on flight QF64 that day. It was found to contain 24 blocks of cocaine, each weighing 1kg. It is the earliest reference to awareness by the authorities of any of the alleged importations. It transpired that on 26 and 28 June 2016, Mafiti’s phone had received 12 texts from the first of the covert phones alleged to have been used by the applicant (“covert phone 1”). At 10:10am on 30 June 2016, Mafiti used his security pass to enter the airport by swiping in. He did not swipe out, being the only occasion in the charge period that he did not. Covert phone 1 contacted Mafiti’s phone at 11:51am and 11:52am that day. Neither 29 nor 30 June 2016 were work days for Mafiti.

23. According to a schedule which is part of the Crown material (“the schedule”), covert phone 1 was not used again until 19 December 2016. Between 19 and 21 December 2016, 80 texts were sent from covert phone 1 to Mafiti’s phone. On 23 December 2016, which was the date of the next alleged importation, it was used to send 99 texts to Mafiti’s phone.

24. Covert phone 1 was not used again until two days before the date of the next alleged importation, which was on 31 January 2017. Twenty-four texts were sent to Mafiti’s phone over the two days prior to that date and 30 texts on the day itself. The next alleged importation was on 3 February. There were 8 texts sent the day before, and 5 texts on the day.

25. This pattern of sending texts utilising covert phone 1 to Mafiti’s phone on the date of the alleged importations, and often on the days shortly before and afterwards, continued until 29 June 2018, by which time it had allegedly been used to facilitate approximately 21 importations. Thereafter, the applicant is alleged to have switched to a second covert phone (“covert phone 2”). This phone was used to send texts in relation to approximately 21 importations from then, up to and including an alleged importation on 15 April 2019. The number for that phone was entered into Mafiti’s regular phone under the contact name “DA1MO”. Youkhana was arrested on that date, shortly after receiving a bag containing 24 x 1kg blocks of cocaine from Mafiti.

26. A week later, a third covert phone (“covert phone 3”) was activated for the first time. It was used to send texts to a covert phone used by Mafiti on the date of the last importation, which was 22 May 2019, and the day before that importation. Covert phone 3 and Mafiti’s covert phone were purchased together from the same outlet on 9 December 2018, and both were falsely subscribed to the same person, who advised police that the phones had not been purchased or subscribed by her. They were both activated for the first time at 7:07am on 23 April 2019, at which time they were connected to the same phone tower.

27. The prosecution case is that the applicant handed Mafiti his covert phone on 14 May 2019, a week before the last importation. They were under AFP surveillance on that day and it is alleged that police saw the applicant hand Mafiti a mobile phone in a shopping centre carpark. Mafiti’s covert and regular phones were recovered at the time of his arrest.

Evidence of coded texts matched to importations

28. The prosecution case is that texts with coded messages that were downloaded from Mafiti’s two phones following his arrest had informed him, in relation to the 2019 intercepted importations, of the cargo container in which the bag was placed and the ticketing on the bag. Both times, the texts incorporated three numbers that coincided with the last three numbers of the relevant baggage container, from which Mafiti was observed to retrieve a bag, later found to contain 1kg blocks of cocaine. The texts also incorporated a reference to a city in New Zealand, which would appear on a label on the bag as the city to which the bag was to be forwarded. On 15 April 2019, a forwarding label that Mafiti was seen to remove from the bag had on it the city referred to in the text sent concerning that importation.

29. A third coded text was recovered by the AFP from Mafiti’s seized regular phone following his arrest, that had been received on 29 June 2018 at 8:52am from covert phone 1, referring to an upcoming game in which the sender would back the “auckland blues” to win by 37 to 9. Mafiti acknowledged receipt of the text. Another text, received 40 minutes later, clarified that they were playing in Wellington. The prosecution case is that this was a coded text indicating the last three digits of the baggage container on the QF64 flight that day, and that the bag would be ticketed through to Wellington. Records indicate that flight QF64 arrived that afternoon, 32 minutes before Mafiti left the airport, and that one of its baggage containers was numbered AKE QF93379.

30. In relation to this incident, the applicant submits that “[i]t was not asserted by the Crown that Mafiti picked up a bag containing cocaine”, referring to R A Hulme J’s judgment at [13], in which his Honour stated: “There is no assertion by the Crown that Mafiti retrieved a bag containing cocaine on this occasion”. However, whatever the position was in the application before R A Hulme J, having regard to the statement of facts tendered on this application, the schedule and another document in the Crown material that sets out the circumstantial evidence that is relied upon in relation to each of the alleged importations (“the importations summary”), that incident is asserted now by the Crown as one of the importations on which the first count is based.

Evidence of flight QF64 arrival times and Mafiti’s work times

31. The schedule sets out certain items of information for each day of the charge period, including the following:

• The dates and arrival times of flight QF64 at the airport;

• The times that Mafiti swiped in and out of the airport;

• Mafiti’s rostered days and times of work;

• Mafiti’s approved overtime; and

• The number of texts sent from each of the three covert phones to Mafiti’s phones.

32. Over the charge period, flight QF64 usually arrived at the airport each day except Thursdays, around mid-afternoon. On the days that Mafiti worked, he would do an eight-hour rostered shift that would finish early to mid-afternoon, depending on his starting time. He would usually swipe out before or within a few minutes of the end of his rostered shift. He occasionally worked overtime, either before or after his rostered shift. On the alleged importation dates, he would swipe out around 15 to 30 minutes after the arrival of QF64, which on all but about eight of the importation dates was around an hour or longer after his shift, including any overtime, had finished. An extreme example is 25 October 2017. His shift finished at 3:30pm. Flight QF64 arrived late, at 8:57pm, and he swiped out at 9:16pm.

The 2019 importations

33. In 2019, there were six alleged importations. The prosecution case includes CCTV images of Mafiti entering and exiting the airport on the date of each alleged importation. He is seen not to be carrying a bag when entering the airport, and exiting the airport with a large black bag over a shoulder.

34. The first date in 2019 was 22 January. Mafiti’s approved overtime expired at 3:00pm. According to the schedule, flight QF64 arrived at 3:34pm and Mafiti exited the airport at 3:56pm. There were 7 texts that day from covert phone 2 to Mafiti’s regular phone. Between 3:19pm and 4:19pm, the applicant’s regular phone and covert phone 2 were both connected to mobile phone towers in Arncliffe, a suburb that is near the airport.

35. The second date was 29 January 2019. Mafiti’s approved overtime expired at 3:00pm. According to the schedule, flight QF64 arrived at 3:40pm, and Mafiti exited the airport at 3:59pm and went to a staff carpark area. Between 4:37pm and 4:49pm, Mafiti’s phone and the applicant’s regular phone were both connected to the same mobile phone towers at Moorebank and Chipping Norton. The applicant resided at Moorebank. Mafiti resided at Oran Park, which is not in the area of Moorebank and Chipping Norton.

36. The third date was 12 February 2019. Mafiti’s shift finished at 2:00pm. Flight QF64 arrived at 3:28pm, and Mafiti exited the airport at 3:43pm and went to a staff carpark area. He texted a message to covert phone 2 at 3:50pm and there was a response at 3:52pm, as he drove out of the carpark. Between 4:32pm and 4:37pm, Mafiti’s phone connected to the phone towers at Moorebank and Chipping Norton, as did the applicant’s regular phone.

33. The fourth date was 15 March 2019. That morning, texts were exchanged between Mafiti and the applicant, utilising the applicant’s regular phone and covert phone 2. Mafiti’s shift finished at 1:30pm. Flight QF64 arrived at 3:52pm.

34. At 3:35pm, local government CCTV captured images of the applicant as the driver and sole occupant of his vehicle, parked at Wolli Creek, which is a suburb alongside the airport. The applicant is seen to walk into Cahill Park. At 4:06pm, he is seen to return to his vehicle with an unknown male and drive off, with the unknown male as a passenger.

35. At 4:08pm, Mafiti sent a text to covert phone 2. Although he was not under surveillance, his movements immediately thereafter were captured by CCTV from the airport. He exited the airport at 4:10pm and walked to the rear of the Rydges Sydney Airport Hotel (“the Rydges Hotel”), which was nearby, carrying the large black bag over a shoulder. Between 4:10pm and 4:15pm, he could be observed at that location on CCTV, intermittently pacing. At 4:13pm, his phone received a text from covert phone 2. At 4:15pm, CCTV captured images of the applicant’s vehicle stopping at the rear of the Rydges Hotel, within 5–10m of Mafiti. The statement of facts allege that the attached CCTV images show Mafiti walking to the passenger side of the vehicle, although I am unable to discern that detail.

36. At 4:16pm, the applicant’s vehicle is seen to leave the area, with the applicant as the driver and sole occupant. At 4:17pm, Mafiti is seen to jog to the staff carpark without the large black bag, carrying his mobile phone. At 4:19pm, he sent a text to the applicant’s regular phone, with emojis, stating: “Check weight for jockey my brother … felt heavier”. The applicant responded at 4:28pm: “I’ll look on Racing NSW myself”. The prosecution case is that this was coded advice to the applicant to check the weight of the bag. The applicant’s vehicle was surveilled by AFP officers from King Georges Road at Beverly Hills and continued to Riverwood, where the applicant parked and entered a club. Police looked into the vehicle and saw that the bag was not there. The Crown case is that the applicant must have transferred the bag before police surveillance commenced at Beverly Hills.

37. The applicant submits that it cannot be concluded, on the basis of the CCTV images, that Mafiti placed the bag in the applicant’s vehicle. It is submitted that it is not clear from the images that Mafiti was carrying anything as he entered the immediate area of the Rydges Hotel, and therefore it is not apparent when it was that he ceased to have possession of the bag.

38. That submission should be considered in the context of the evidence as to the CCTV images of both men immediately prior and subsequent to Mafiti’s alleged delivery of the bag to the applicant. The statement of facts includes still CCTV images of Mafiti carrying the bag by its strap over his left shoulder, exiting the airport at 4:10pm. Images of him approaching the Rydges Hotel are blurred, but consistent with him still having the bag over his left shoulder. The statement of facts also includes images of the applicant said to be driving from Cahill Park in his vehicle at 4:06pm, and the vehicle stopping in the rear area of the Rydges Hotel at 4:15pm, 5–10m from Mafiti who, according to the narrative, is seen to move towards it. The vehicle exited the rear of the Rydges Hotel at 4:16pm, its number plate visible and legible as it leaves. Mafiti is seen one minute later, moving away from the area, no longer carrying the bag. None of those factual allegations are challenged by the applicant. In my opinion, in those circumstances, there is a sufficient circumstantial evidentiary base for the proposition that the applicant’s vehicle left the area with the bag.

39. In relation to this incident, R A Hulme J observed that the Crown theory that the applicant must have transferred the bag before his vehicle was sighted in Beverly Hills to be “difficult to understand”. His Honour stated:

“It cannot have been by chance that the AFP surveillance did not sight him from the time he left the rear of Rydges Sydney Airport Hotel until there. It would be extraordinary if the applicant was detected in King Georges Road by sheer chance. Based upon the summary in the [statement of facts], this is rather mysterious on the Crown case. On the applicant's case, it is said to be indicative of the applicant not having received any bag from Mafiti.”

44. The material tendered by the Crown on this application does have an explanation of sorts. In a statement dated 26 February 2020, the officer in charge of the investigation, Detective Senior Constable Pocock, stated that there was no police surveillance that afternoon of Mafiti or the events at the Rydges Hotel. The applicant’s vehicle was being surveilled by the AFP that day, but surveillance was lost, according to the statement of facts, at 3:11pm, when the applicant was in Moorebank. Detective Pocock stated that surveillance was lost earlier, at 2:52pm, but re-established at 5:00pm at King Georges Road, Beverly Hills.

45. I do not regard the absence of the bag from the applicant’s vehicle by the time it arrived at Riverwood to detract from the weight of circumstantial evidence that the bag carried by Mafiti was placed in the applicant’s vehicle at the rear of the Rydges Hotel.

46. The applicant has advanced an explanation for the applicant and Mafiti meeting briefly on that date, and for the text from Mafiti about weight. Other texts that day from the applicant’s regular phone to Mafiti suggest an innocent racing context. The applicant sent Mafiti a text at 10:35am, stating: “Got that form to sign today so remind me brother. I keep forgetting. Yes races tomorrow Rosehill. Are you coming or waiting for the big race”. Following the text exchange about weight three minutes after the alleged transfer of the bag at the Rydges Hotel, at 4:37pm the applicant sent Mafiti a more detailed text, concerning handicap weights in “group races”, including the Golden Slipper.

47. These texts do not detract from the evidence as to the transfer of the bag to the applicant’s vehicle at the Rydges Hotel, and the applicant’s text response at 4:37pm does not provide an innocent understanding of Mafiti’s reference to something that “felt” heavier.

Count 2

48. The fifth date was 15 April 2019, which was the occasion that Youkhana was arrested. Between 11 April and 14 April, the applicant’s regular phone and Youkhana’s phone connected frequently, with text messages and attempted calls. At 9:03am on 14 April, the applicant sent a text to Youkhana arranging to meet at 10:30am. At 3:00pm that same day, the applicant flew to Coolangatta, Queensland. That same afternoon, Youkhana took a screenshot on his mobile phone of an area of Wolli Creek that included Cahill Park. At 5:59pm, the applicant’s regular phone connected to a mobile phone tower at Broadbeach Waters, Queensland. At 6:52pm, covert phone 2 also connected to a mobile phone tower at Broadbeach Waters, Queensland.

49. On the morning of 15 April 2019 at 8:46am, both phones of the applicant were still connected to mobile phone towers in the same location. At 8:59am, a coded text was sent from covert phone 2 to Mafiti, referring to the “christchurch crusaders” beating another team 66 to 7. According to the schedule, flight QF64 arrived at 3:08pm that day. At 3:27pm, Mafiti called the applicant’s regular phone. Mafiti exited the airport at 3:30pm and carried the bag to the rear of the Rydges Hotel. Youkhana arrived in a vehicle by himself and stopped in the same position that the applicant had stopped at on 15 March. Mafiti went to the passenger side of the vehicle, then walked away without the bag, and left the airport a short time later. At 3:36pm, Youkhana was stopped by police. The bag was located on the rear left passenger seat and was later found to contain 24 x 1kg blocks of cocaine. He was charged with possessing a commercial quantity of a border controlled drug. At 3:36pm, Mafiti sent a text to the applicant’s regular phone, stating: “Done … on my way home brother”.

50. The following morning, being 16 April 2019, at 7:57am, the applicant arrived at Sydney Domestic Airport from Coolangatta. He boarded a flight returning to Coolangatta around midday. That afternoon, there was an exchange of texts between the applicant and Mafiti’s regular phones that are alleged to be in code and to the effect that the applicant was calling off further importations for a while.

51. On the morning of 7 May 2019, a man visited Youkhana in the Metropolitan Reception and Remand Centre at Silverwater and about an hour later, the man had a phone conversation with the applicant. It was arranged over the phone that the applicant would visit the man at his home, and the visit occurred that afternoon.

52. The applicant submitted that his return to Sydney on 16 April 2019 was in order to pick up registration papers for a vehicle he was using as a “trade-in” for another car he wished to purchase in Queensland. On the release application, he tendered transcripts of phone calls and texts made or received by his regular phone, between 14 and 18 April 2019 that were extracted from the Crown brief. The Court was taken to a transcript of a phone call at 8:12am on 16 April in which the applicant said that his wife had forgotten to bring some documents “for the car, like you need regos and shit”. Another call took place at 9:49am on the same day, by which time he would have been back in Sydney. The call was apparently with one of his daughters, and it included him explaining: “I had to come home and get these fricken papers for this fricken car … they want originals”.

53. Accepting for the purposes of the application the proposition that the applicant returned to Sydney for a purpose unrelated to the alleged importation, it does not detract from the evidence that otherwise circumstantially links him to it.

Count 3

54. The last importation was on 22 May 2019. Mafiti exited the airport at 3:33pm and was arrested as he walked towards the staff carpark. The bag he was carrying was found to contain cocaine, although there is no reference in the Crown material to the quantity, other than to the gross weight of the bag being 28kg. At 4:01pm, the applicant rang Mafiti’s regular phone using his regular phone. He left a voice message. The applicant was arrested that afternoon.

55. Police seized three phones from the applicant’s vehicle: his regular phone, a fourth covert phone (“covert phone 4”) and an encrypted phone. Covert phone 4 had one saved contact. A check of the call charge records (“CCR”) for the mobile number belonging to the saved contact indicated that it was primarily used for communications with covert phone 4. That phone’s IMEI number was connected to a South African “Vodacom Vibe” mobile phone handset. The applicant has not provided the password for the encrypted phone. Police also seized multiple mobile phones and SIM cards from the applicant’s residence.

56. A search of Mafiti’s vehicle yielded documentation concerning a Kennard’s self-storage unit, from which police seized six bags of Australian currency, the total amount being $4,485,900. From Mafiti’s residence, police seized a suitcase containing $1,730,750 and approximately $10,000 in foreign currency. A search of his partner’s premises yielded a further $243,400.

Counts 4 and 5

57. These counts refer to Australian currency seized from the applicant’s residence and vehicle following his arrest, being, from his residence, a bag containing $119,800 and from his vehicle, the sum of $11,000. The applicant submits that these amounts of cash are not unusual for a person “who had a flourishing business and in particular whose interests and occupation involved horse racing and gambling”.

Count 1

58. The Crown submissions and material have conflicting references to the number of the importations relied upon for this count, referring to either 43 or 45 importations. It may be that the differing number arises from a degree of uncertainty as to the evidence supporting the two alleged importations that precede the intercepted importation of 29 June 2016, which are the only two that are not associated with texts between the applicant and Mafiti. In the statement of facts, count 1 is described as an allegation that the applicant “participated approximately 43 times in the business of importing commercial quantities of … cocaine”. Accordingly, for the purposes of this application, I will assume that count 1 is based on 43 importations.

59. The applicant notes that R A Hulme J referred to the Crown allegation that there were 45 importations and observed that the statement of facts tendered before his Honour “does not describe anywhere near that many” importations, only describing the intercepted importation of 29 June 2016 and the six importations of 2019. The statement of facts tendered on this application is supplemented by the schedule and importations summary, which were not tendered before R A Hulme J.

The applicant’s challenge to the evidence that he used the covert phones

60. The applicant notes that there were occasions when the locations of the covert phones and the applicant’s regular phone did not coincide, and submits that it follows that the Crown cannot exclude a reasonable possibility that the covert phones were either used by someone else exclusively, or used jointly with the applicant, in which case there was a reasonable possibility that he did not send the coded messages.

61. An example of this was evidence to the effect that the applicant was in a different location to that of covert phone 3 at the time it was first activated on 23 April 2019. When covert phone 3 and Mafiti’s covert phone were both activated for the first time at 7:07am, they connected to the same mobile phone tower, which was at Manly North. At around that time, the applicant’s regular phone was connected to a tower at Moorebank. At 12:55pm, both covert phone 3 and Mafiti’s covert phone connected to a mobile phone tower at Moorebank North, at which time the applicant’s regular phone was connected to a mobile phone tower at Moorebank.

62. The applicant tendered two maps which, according to a cover sheet, showed on one map the location of the mobile towers to which covert phone 3 connected between 7:07am and 12:55pm and on the other, the locations of the applicant’s vehicle between 8:07am and 8:12pm, as fixed by a tracking device that was attached to the applicant’s vehicle. However, the Crown does not submit that the applicant possessed either covert phone before 12:55pm that day. Accordingly, it is irrelevant that the applicant was not present when the phones were activated that morning. The evidence is consistent with the proposition that a person other than the applicant purchased and activated the two covert phones, being covert phone 3 and Mafiti’s covert phone, and delivered them to the applicant at his residence in Moorebank at around 1:55pm, for his possession and use thereafter.

63. The applicant’s submissions referred to four other instances in the Crown material of one or other of the three covert phones connecting to a mobile tower in a different area to that of the applicant’s regular phone. One of those four instances, in my opinion, was not inconsistent with the possibility that the applicant could have possessed both phones at the same time, in view of the times of the connections and the locations of the mobile towers. The other three clearly were not amenable to such an explanation.

64. The documentation in the Crown material concerning phone connections refers to mobile phones “pinging” with a mobile tower. It was accepted at the hearing of the application that “pinging” indicated that a phone is turned on and has connected to a mobile tower, and does not necessarily involve a communication with another device. Accordingly, a covert phone “pinging” at a different location to the applicant’s regular phone, assuming the applicant was at the location of his regular phone, did not necessarily mean that someone other than the applicant was utilising the covert phone to communicate with another device.

65. The prosecution case was that the applicant’s regular phone and whatever covert phone was being used at the time, when both were turned on, “predominantly” connected to the same mobile towers.

66. In relation to covert phone 1, an example is a one-day trip by the applicant on 25 October 2017. The applicant flew from Sydney to Melbourne in the morning, travelled to Geelong and returned to Sydney that afternoon. Covert phone 1 and the applicant’s regular phone had matching connections over the duration of the trip. In relation to covert phone 2, that phone and the applicant’s regular phone connected to a mobile tower at Broadbeach Waters, Queensland, while the applicant was in the Coolangatta area on 14 and 15 April 2019. In relation to covert phone 3, on 22 May 2019, between 8:05am and 4:15pm, that phone connected with phone towers at eight locations that coincided with the locations and times of the applicant’s vehicle.

The prosecution case: additional material

67. On 4 March 2020, the Crown served additional material on the applicant in the form of a witness statement from an unidentified witness [redacted]. The identification of the witness is subject to an order made by this Court pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the publication of information that tends to reveal that person’s identity or the evidence given by that person until the finalisation of the proceedings against the applicant or until further order of a judge of the common law division of this Court.

68. [Redacted]

69. [Redacted]

70. [Redacted]

71. [Redacted]

72. [Redacted]

73. [Redacted]

74. [Redacted]

75. [Redacted]

76. [Redacted]

77. I also note that among the phones seized from the applicant’s property following his arrest were a Blackberry phone, and an encrypted phone to which the applicant has not provided the password.

Conclusion as to the strength of the prosecution case

78. The central tenet of the Crown’s opposition to the application is the strength of the prosecution case. In view of the inevitable penalty of a significant period of imprisonment if the applicant is convicted of the importation counts, a concern arises that the applicant would fail to appear in court, if granted bail.

79. The applicant submits that the case is so flawed that a conviction is far from certain, noting the reservations of R A Hulme J about aspects of the prosecution case. Even so, his Honour was not persuaded that cause was shown. The Crown has attempted to address those reservations by the provision of an amended statement of facts, the schedule and importations summary, as well as a statement by the AFP officer in charge of the investigation, explaining that there was an absence of surveillance on 15 March 2019.

80. For the reasons explained in the course of my consideration of the Crown material and the criticisms of it, I consider the strength of the Crown case in relation to counts 1, 2 and 3, as it stood until 4 March 2020, although circumstantial in nature, to be strong. The CCTV images of Mafiti removing a bag later found to be containing over 20kg of cocaine from the flight QF64 baggage container and carrying it off the airport premises in two of the 2019 intercepted importations, together with the cash found at his residence and in the Kennards self-storage unit, is strong evidence of his knowing participation.

81. The coded messages that Mafiti received beforehand from covert phones 2 and 3 in relation to those two importations, indicating the container number, is compelling evidence that whoever sent those messages was also centrally involved. The pattern of the applicant’s regular phone and the three covert phones connecting to mobile phone towers in the same area at the same time, and covert phone 3 being in the same locations as his vehicle as it moved around Sydney, is cogent evidence that he possessed and used those phones at the relevant times.

78. [Redacted]

79. I would not describe the two “proceeds of crime” counts, particularly count 5, in the same terms as to the strength of the prosecution case, having regard to the nature of the applicant’s occupation.

The additional bases of showing cause

84. A strong prosecution case, even to the point of a plea being negotiated, is not determinative of an application for bail or for showing cause: see, for example, Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172. The applicant relies on the further following factors, in combination.

The applicant’s prior criminal record

85. The applicant does not have a criminal record in New South Wales. In 2004, he was fined in the Melbourne Magistrates Court for recklessly causing injury, without the recording of a conviction. In 2009, he was convicted of two offences in the Southport Magistrates Court in Queensland, being a serious assault of a police officer or a person acting in aid of a police officer, and committing a public nuisance. For the first offence, he received a prison sentence of 3 months, suspended for 18 months, and an order for compensation in the sum of $1,000. For the second matter, no punishment was imposed other than the recording of the conviction.

Community ties

86. The applicant is an Australian citizen. He and his wife were married in 2001. They divorced in 2009 but “re-engaged” 12 months later, and have stayed together. They have two teenage children. The applicant is the principal in a business as a bloodstock agent and is the sole director, secretary and shareholder of two companies, Jadeskye Enterprises Pty Ltd (“Jadeskye”) and Platinum Park Pty Ltd (“Platinum Park”). In an affidavit sworn by the applicant’s solicitor, Jadeskye is described as:

“… a company that trades in horse bloodstock by buying and selling racehorses, syndicating and managing racehorses, stabling and training racehorses, racing and breeding racehorses, as well as gambling on racehorses. It also purchases commercial and residential property.”

87. Platinum Park is described as:

“… a company that operates a commercial equine stable/training complex and residential property that has a fifty-three horse capacity.”

88. At the time of his arrest, the applicant had 17 full-time employees through Platinum Park and owned or managed approximately 53 horses through Jadeskye. His wife is employed outside those businesses.

Family hardship: health issues

89. Both of the applicant’s children are receiving medical treatment for health issues. One has inflammatory bowel disease and eczema, and the other has an autoimmune condition known as Hashimoto’s disease involving an underactive thyroid, and is presently being assessed for inflammatory bowel disease. The applicant’s wife has been diagnosed with “an adjustment disorder with mixed anxiety and depressed mood” since the applicant’s arrest and has been prescribed medication. The applicant’s mother suffers from anxiety and since the applicant’s arrest has suffered stress-related breathlessness and chest pains.

90. An affidavit sworn by the applicant’s wife was read, in which she explained her financial struggles and competing time demands with her children, her employment and her attempts to keep the applicant’s business afloat.

Family hardship: the business

91. The applicant’s skill in conducting sight checks on horses prior to acquisition is central to his business, and his inability to continue to do so while on remand has adversely impacted on it. He has lost clients and has been unable to generate new clients. He has had to sell 23 of his horses. The applicant submits that his business is likely to fail if he remains bail refused.

92. The Crown has tendered a letter dated 5 March 2020 from the General Counsel of Racing NSW, Pete Sweney. The effect of the letter is that, if the applicant is granted bail, his return to the racing industry is not assured. Racing NSW has issued a “show cause” notice on the applicant, in respect of “his on-going participation in the thoroughbred racing industry pending the determination of charges against him”. The hearing can be conducted via video-link or teleconference, but as of the date of the letter, the applicant has not applied for such a hearing. He is subject to interim orders that operate if he is granted bail, which would prevent him from having any participation in thoroughbred racing.

Electronic monitoring

93. The applicant has offered to privately pay for the fitting of an electronically-monitored “tracker” to his body by Attenti Australia Pty Ltd (“Attenti”) to ensure that he complies with any bail conditions that restrict his movements, for example, an obligation to keep a certain distance from airports or comply with a curfew. The system utilises a GPS monitoring system and a roaming SIM card that connect to various telecommunications networks in order to monitor the subject’s position. If there is a territorial violation or a tracker is unresponsive, a notice of the “violation” is sent to the designated recipient, who is a particular nominated police officer.

94. The shortcomings of Attenti’s tracker-monitoring of bailed persons are well-known. A tracker is capable of being removed, albeit with difficulty, and the notification system, at least in the past, has been imperfect. An affidavit sworn by AFP Acting Commander Brett James was read, which related experiences by the AFP with the Attenti tracker system in two cases. In March 2017, a person (“Lin”) was granted bail by the Supreme Court in respect of charges of attempting to possess and import a commercial quantity of a border controlled drug, conditional on wearing a tracker operated by 3M Electronic Monitoring Pty Ltd: Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312. In October 2017, Attenti acquired that company and on 18 April 2018, took over responsibility of all facets of the management of Lin’s tracker. On 6 May 2018, Lin reported to police pursuant to a bail condition and was not seen thereafter. Attenti sent emails to addresses for the wrong AFP officers on 9 and 11 May 2018 instead of the email address nominated in the bail conditions, advising that it had lost contact with Lin’s tracker. The AFP was unaware of the emails until 14 May. On 15 May 2018, police attended Lin’s bail addresses and learned that he had not been present for at least two weeks.

95. The other case, which also involved a grant of bail by the Supreme Court in respect of an applicant facing drug importation charges, involved Attenti sending multiple alerts to the designated police officer on almost a daily basis, to a point that the officer’s duties were significantly interrupted. It transpired that the alerts were false alarms.

Substantial sureties

96. The applicant’s case includes offers of substantial sureties by his wife, mother and brother-in-law, in the equities of properties owned by each of them, in the total sum of up to $1,728,000.

Delay

97. The applicant and his two co-accused were awaiting arraignment in the District Court at Sydney at the time of the hearing of this application. The estimate of the length of the trial is three months. The applicant was arraigned on 20 March 2020, and a trial date was fixed for 15 February 2021, by which time the applicant will have been on remand for 21 months.

Consideration

98. The prosecution case, encapsulating the evidence outlined in the statement of facts, the schedule, the importations summary and [redacted], constitutes a strong case that the applicant was a principal in a cocaine importation business that spanned three years and involved 43 importations, with each importation being 20–25kg. The proceeds that he would have accrued over that period of time, if in due course the charges are proved, are unaccounted for, although there is some suggestion in the Crown material that part of the proceeds may have been used to bolster his legitimate businesses.

99. The features relied upon to show cause other than the strength of the prosecution case, in particular the situation of his family and business and delay, are more compelling. There is a risk, if not likelihood, that the applicant will lose his business if he remains bail refused, although the part of the business that involves the racing industry may be lost in any event, subject to a hearing with Racing NSW which, thus far, he has not sought. His children have significant health issues and his family is struggling with the stresses of carrying on as best they can with their schooling, employment and health issues while doing what they can to keep the applicant’s business afloat.

100. Regrettably, I am not persuaded that those circumstances, as genuinely concerning as the Crown accepts them to be, have satisfied the onus to show cause. While the applicant’s release on bail would assist his wife in caring for their children, it appears that the family so far is not without material resources in dealing with those challenges. Perhaps the most significant benefit from the applicant being granted bail would be to the survival prospects of that part of his business that is not affected by the interim orders of Racing NSW and the alleviation of the stress that his loved ones are presently enduring. The factor of delay is concerning, particularly with the loss of an earlier trial date occasioned by necessary changes to the District Court’s operation in order to limit the spread of the COVID-19 virus through the community.

101. In any event, if cause had been shown, so that I would have moved to the second stage of considering the application, I would have had concerns pursuant to ss 17(2)(a) and (d) of the Act that if granted bail, the applicant would fail to appear or may attempt to interfere with witnesses. If the applicant is returned to the community, then in view of the strength of the prosecution case, the scale of the alleged importation business and the relatively small quantities of cash seized from his constructive possession, he may have recourse to significant undisclosed assets and criminal contacts within and outside Australia.

102. Those concerns would constitute risks that could not be mitigated to an acceptable level by the proposed conditions of bail, including the use of a tracker, so that, pursuant to s 19(1) of the Act, I would have declined the application in any event.

103. For these reasons, I propose that the Court refuse the applicant’s bail release application.

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Amendments

01 April 2021 - Restriction lifted.

26 April 2021 - Parts of judgment redacted pursuant to non-publication orders made on 26 April 2021