Gjonaj v The Queen - [2017] NTSC 7

Gjonaj v The Queen [2017] NTSC 7
PARTIES:GJONAJ, Gjergj

v
THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21613773
DELIVERED:  31 JANUARY 2017
JUDGMENT OF:  KELLY J
REPRESENTATION:
Counsel:
Applicant:J Adams
Respondent:  M Nathan SC with L Hopkinson
Solicitors:
Applicant:Maleys
Respondent:  Director of Public Prosecutions
Judgment category classification:   C
Judgment ID Number:  KEL1702
Number of pages:  36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gjonaj v The Queen [2017] NTSC 7
No. 21613773
BETWEEN:

GJERGJ GJONAJ

Applicant

AND:

THE QUEEN

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 31 January 2017)

The applicant is charged with one count of taking part in the supply of a commercial quantity (19,719.34 grams) of cannabis plant material. The trial in this matter is listed for five days beginning on 6 February 2017. A voir dire to determine whether evidence of a prior conviction should be admitted as co-incidence evidence is listed for 2 February 2017.
Both the trial and the voir dire are listed to be heard before me.
The applicant asks that I decline to act as the trial judge in this matter or take any further part in the proceedings on the ground of apprehended bias.
The application is founded on remarks I made in pre-trial appearances which are said to show favour towards the prosecution.
The first of these was a bail review on 8 April 2016. (It is common ground that under s 7A of the Bail Act 1982 (NT) (“the Act”) bail was not to be granted unless the applicant satisfied the court that bail should be granted.) The first complaint concerns remarks I am said to have made about “a series of fake photographic IDs that were found in the possession of the accused” and which were said to be “held by Corrections in his property”. The applicant complains that, on my own initiative, I informed the Crown prosecutor that these photographic ID’s could be seized by police, and that a short time later I assisted the Crown prosecutor by suggesting that the applicant had “access to the means of making them”. The applicant submitted that Crown had not said this but then adopted my suggestion. The applicant contends that these actions suggest that I have a favourable predisposition to the prosecution.
The applicant’s characterisation of that discussion is inaccurate. I set out the transcript of what occurred in full.
MR NATHAN:   Thank you, your Honour. Your Honour, another piece of information that I’ll – this document that I’ll seek to hand to the court and seek to tender on the review, a series of fake photographic IDs that were found in possession of the accused.
HER HONOUR:   Alright, so photographs of false photographic IDs will be exhibit P1.
EXHIBIT P1   Photographic IDs.
MR NATHAN:   Your Honour will see that they are in at least two names, well, three in fact, from a variety of jurisdictions, including an operator’s license from the State of Michigan in the United States. You see that Victor is his first name, but certainly, your Honour, what is of concern are the driver’s license in false names. The – I have spoken to police, who assure me that the quality of those licenses are of a high quality.
HER HONOUR:   Right.
MR NATHAN:   Essentially, your Honour, this is not a matter of Photoshop, but I guess the situation, what we have here is a person who very clearly is involved at some level in a commercial operation, interstate commercial operation, bringing a large quantity - - -
HER HONOUR:   A reasonably large scale one.
MR NATHAN:   Yes, your Honour. Your Honour no doubt will know in terms of the value of close to 20 kilos of cannabis in the Northern Territory, where $4000 a pound is quite common to sell it in bulk and unfortunately, it seems that the demand has pushed prices up into the communities between $150 to $200 a gram. So what we’re looking at is between $160,000 worth of produce into the millions.
Your Honour, the accused was found in sole possession of them in a vehicle that is registered to his brother, as I understand the information to be provided by police. The case, in the Crown’s submission, is a strong one. They were packed into suitcases which were placed into the – or found in the car. There was an overwhelming smell of cannabis when police officers approached and opened the vehicle.
HER HONOUR:   It doesn’t sound like a very sophisticated thing to do though.
MR NATHAN:   It may not be sophisticated, your Honour, but as I understand it, it may have been more sheer luck or unfortunate luck for the accused and good luck for the police that it was just a random stopping of vehicles and testing.
I have asked whether there are any other tipoffs or information that have been received and I’ve been told that it was not and so it was in a circumstance where you run the risk of shipping large quantities of cannabis up the Stuart Highway in the hope that it’s not the particular day that police are running a road stop.
So in those circumstances, it may not be – it may not be sophisticated but it is successful, your Honour and your Honour will know from your own experience with this court, significant, vast quantities of cannabis are brought up really every month.
HER HONOUR:   And making enormous amounts of money.
MR NATHAN:   And absolutely, your Honour, selling it for more in the Northern Territory than you receive anywhere else in Australia. And it’s in those circumstances where you talk about the level of commerciality that we’re dealing with here and what will be significant term of imprisonment, in the Crown’s submission, if he were to be found guilty.
You then start looking at well, that provides a significant motivation for someone to not face their responsibilities in turning up to court, knowing that a long stretch in custody is in front of them.
You then look at the strength of the Crown case. That there is, in the Crown’s submission, a very strong Crown case in this - - -
HER HONOUR:   He was caught red-handed with - - -
MR NATHAN:   He was caught red-handed with cannabis that smelt and it would be highly unlikely for someone with his history to be unaware of – and the chances in terms of coincidence evidence of this man having little or no knowledge of the level of cannabis being placed in the back of his vehicle. Further, someone placing it into his vehicle unknowingly and taken a risk of $160,000 worth upwards to millions of dollars-worth of profit without his knowledge, all just really stretches the plausibility to breaking point.
So the Crown says that it is a very strong Crown case and in circumstances where he will receive a significant term of imprisonment. We all know about the devastating impacts that it has in the Northern Territory, particularly indigenous communities and the need for general deterrence, personal deterrence.
You then turn to a person who has access and indeed is in possession of false IDs and IDs of a high quality which a surrendering of a - - -
HER HONOUR:   Well, he’s not in possession of them anymore, he is …
MR NATHAN:   Sorry, your Honour?
HER HONOUR:   I take it he’s not in possession of them anymore, but you say that he - - -
MR NATHAN:   Well, your Honour, it’s surprisingly – surprisingly, information I have by police is that they’re currently held by Corrections in his property, but for whatever – I had a bit of a disagreement with the police officer I spoke to this morning. I should note that I’ve only become aware of the application quite late this morning, but certainly my discussions with the police officer, he felt that there was no way in which – he was unaware of the power with which he could take these identities or false identities.
HER HONOUR:   And you've now informed him that he can.
MR NATHAN:   He can. But at this stage, your Honour, if he were to be released immediately, depending on the speed of this particular officer, there may very well be the chance that it gets handed back to him. But the concern is not so much the fact that there may not – may no longer be in his possession, it is the fact that he has access to – I’m not – I certainly don’t want to - - -
HER HONOUR:   Access to the means of making them.
MR NATHAN:   … making them. Your Honour, I wouldn’t know where to start. So I’m just saying, in terms of someone who has a clear connection with a commercial organisation that 1) can provide 20 kilos of cannabis in one supply or one transport and whether or not they are of – from himself or from the organisation to which he works, that is a grave concern, in the Crown’s submission.
And so surrendering a passport really has little impact ultimately, in the Crown’s submission, where perhaps one could be made or at least the basis for another passport to be constructed. Well, there’s pretty sufficient ID in the photocopy of the matters you see before you.
So whilst a significant surety and maybe surrendering of a passport ordinarily would allay fears that this court would have, in the current circumstances, your Honour, the Crown’s submission is that that is not sufficient.
I do not accept that a fair minded observer would have construed this discussion as one in which I was favouring the Crown or putting forward arguments or ideas which had not been thought of by the prosecutor and were subsequently adopted by him – a suggestion which is somewhat insulting to the learned prosecutor. The thrust of the Crown’s submission was that a significant surety and surrender of the applicant’s passport would not be sufficient to allay concerns that the applicant was a flight risk in the circumstances of this case where (in the Crown’s submission):
(a)there was a very strong Crown case;
(b)the applicant had a clear connection with a commercial organisation that could supply cannabis worth between $160,000 and over $1 million;
(c)he faced a substantial prison term if convicted; and
(d)he had access to high quality fake IDs which could enable him to obtain a substitute passport.
None of those contentions originated with me, despite what appears from the transcript to be a (no doubt annoying) tendency on my part to interject and complete counsel’s sentences. There followed this exchange with counsel for the applicant.
MR TIPPETT:   Yes, thank you, your Honour, I have, your Honour. It’s conceded that on the face of it, the Crown case is a strong one but, of course, that’s not the only consideration that your Honour has to take into account. In relation to – and I’ll go to the other considerations in a moment. In relation to the false identification documents, I haven’t seen them, of course.
HER HONOUR:   Have you seen the photocopies?
MR TIPPETT:   Yes, I’ve seen this, I’ve seen that. My point in relation to those is none of this was used in this particular exercise at all. He used his own driver’s license and so on with police on this occasion.
HER HONOUR:   I don’t think that’s the concern expressed by Mr Nathan.
MR TIPPETT:   Well, it’s - - -
HER HONOUR:   It might help him disappear.
MR TIPPETT: Well, that’s a speculation, your Honour, but we have available two properties to put up as surety, unencumbered properties, a passport to hand in and cash that we can put up. The purpose being, of course, under the Act, to ensure that my client attends his trial and we’re in a position to - - -
HER HONOUR:   Do you have details of the properties, Mr Tippett?
MR TIPPETT:   Yes, we do.
HER HONOUR:   Alright.
MR TIPPETT:   I’ve got details of all the properties and certificates of title.
HER HONOUR:   And they belong to?
MR TIPPETT:   And they belong to the – they’re unencumbered and they belong to Mr Gjonaj and his wife, Adina(?), who is present in court behind me, the lady in black just to my right. His father, Zeff(?) Gjonaj is present also and one of the properties that is unencumbered is his property and we would – so we’d be putting to the court two unencumbered properties.
HER HONOUR:   Yes, but that might mean nothing if the person – if the people involved have 12 properties.
MR TIPPETT:   If the people involved, sorry?
HER HONOUR:   Have 12 properties, for example. The whole idea of putting up security is to put everything you have, because that then is a very strong incentive to turn up.
MR TIPPETT:   Yes and indeed - - -
HER HONOUR:   A millionaire can put up two properties. A poor person might only have to put up - and recently, it was family members putting up $500, which would have had the same deterrent effect, if you like, against the person absconding. So it would need more than just the value of the properties etcetera, etcetera, but some – and I’m not saying that I’m minded to grant bail, but what I would need for the purposes of considering whether or not a person is likely to answer his bail is more than that. It is information about the extent of the assets.
Now, how you do that, I don’t know, presumably bank statements, property searches, that sort of thing to show that what is being offered is everything.
MR TIPPETT:   Yes, well, I’m instructed that that’s the case, but - - -
HER HONOUR:   Yes, but we do – you would need to put evidence up.
MR TIPPETT:   Yes. Well, I can do that, your Honour, I believe.
HER HONOUR:   It would commonly be tax returns, bank statements, property searches from various jurisdictions to show there aren’t any other properties registered in the name of either the father or Mr Gjonaj.
MR TIPPETT:   Well, your Honour, in those circumstances, it’s my view, conveyed to Mr Maley, that really we’re not in a positon to press this application to the extent that your Honour would require and we are – my instructions are that these properties are the only properties and that they would be – and but I need to get further instructions regarding value and so on.
I think perhaps if we put it off for two weeks.
HER HONOUR:   I’m not saying, Mr Tippett that that would necessarily suffice, because there are - - -
MR TIPPETT:   No, no, yes, I - - -
HER HONOUR:   But that’s the sort of evidence that you would need.
MR TIPPETT:   Yes, I understand, I understand, your Honour, would come in, but people have come up, of course and provided us with this documentation today. Now, obviously Mr Gjonaj is concerned to have his – to get bail if that is available, but clearly, from what your Honour says, no assertions by me from the Bar table is going to cut today without the additional documentation you seek.
HER HONOUR:   Well, it will have to be verified by affidavit and not by a solicitor, unless, of course, it’s something within the knowledge of the solicitor, as in, ‘I have performed property searches in these jurisdictions and this is what I…,’ you know. But, ‘I am instructed that,’ in an affidavit doesn’t cut it either.
MR TIPPETT:   Yes, I understand, your Honour. There are certain – there’s a certain length to which you can go, I mean without becoming embroiled in a horrendous process of chasing things down.
HER HONOUR:   It’s a matter for you, Mr Tippett.
MR TIPPETT:   Well, I understand, your Honour, indeed I understand that and that’s why I’m adopting a position now, because it’s pointless me saying anything further in – with your Honour having the view that your Honour has and so we’ll attend to it and seek to persuade your Honour on the basis of additional information.
HER HONOUR:   How long do you need?
MR TIPPETT:   We’re asking for two weeks, 26 April (?).
The matter was adjourned to 20 April 2016. On that date counsel for the applicant advised that he had “the vast majority of the material” and “was waiting on some bank statements”. He asked for, and was given, time on the following day to resume the hearing of the bail review.
On 21 April the following occurred:
MR NATHAN SC:   Thank you, your Honour, Nathan continuing for the Crown.
HER HONOUR:   Yes, thank you, Mr Nathan.
MR TIPPETT QC:   I appear for Mr Gjonaj, your Honour.
HER HONOUR:   Yes, thank you, Mr Tippett. I’ve read the affidavit, Mr McMaster’s affidavit with all of these annexures. I’m not sure that you have appreciated the purpose of the entire exercise. Are these people offering mortgages over their houses in support of – as guarantors for the bail?
MR TIPPETT:   Yes.
HER HONOUR:   Well, all I’ve got is a list of properties and what appears to be valuation – as in are these unimproved values?
MR TIPPETT:   There are two properties that are – that have no encumbrances.
HER HONOUR:   Well, you’d better take me through it, Mr Tippett. Which properties have no encumbrances and what are their – these look like unimproved values from the Valuer General’s office.
MR TIPPETT:   They’re the values that you get through the – they’re not actual values as in - - -
HER HONOUR:   No. What use is that to me?
MR TIPPETT:   Well, it’s what the Valuer General has put on the property as - - -
HER HONOUR:   I know, but if you want to figure out – what I would need to know, Mr Tippett and this is assuming that we get to this stage, in order to fix a realistic bail that would have a genuine incentive or provide Mr Gjonaj with a genuine incentive to turn up in answer to his bail, I would be fixing it - I would be requiring guarantees and I would be fixing bail at the value of the equity that the people have in those properties.
Now, there’s no way that I can ascertain, from this information, the value of that equity. And you can look exasperated if you like, Mr Tippett, but that was the purpose of the exercise last time - - -
MR TIPPETT:   We can’t be – the property – your Honour, the properties are unencumbered.
HER HONOUR:   Well, then you need a valuation of them. The Valuer General’s value is the unimproved capital value of the land for rating purposes. It bears no relationship whatsoever to the actual market value of the property.
MR TIPPETT:    That’s true, your Honour, but we haven’t been in a position in the time to go out and - - -
HER HONOUR:   It’s a matter for you.
MR TIPPETT:   I understand, your Honour, but we are in a position to offer unencumbered properties, two properties that are unencumbered.
HER HONOUR:   Worth?
MR TIPPETT:   Well, as the - - -
HER HONOUR:   How am I to fix bail?
MR TIPPETT:   Well, on the basis that those properties would be surrendered if he didn’t appear.
HER HONOUR:   But once – well, are you saying that I fix bail at an unknown and un-nominated sum?
MR TIPPETT:   No, you’d fix bail at the Valuer General’s rate at least. But the – and that the properties would be forfeited if he failed to appear.
HER HONOUR:   But that’s not the way it works. The way it works is that you fix a sum for bail and it wouldn’t be just those two properties. If I were to consider bail at all, I would want all of the properties mortgaged, every single asset that the family owns, because that’s the only way that I would be satisfied that Mr Gjonaj would have a genuine incentive to turn up.
And that would mean getting information about the equity that each of the owners has in the house and that would require information from the banks and I would require a second – first mortgage over the properties that are unencumbered, second mortgages over the other properties and then there would be arrangements in place to the satisfaction of the Sheriff, after the Sheriff had taken legal advice from the legal division of the Solicitor for the Northern Territory to ensure that those properties – the equity in those properties could not be further eroded by further borrowings and that there was a priority agreement in place with the first mortgagees.
It’s a commercial transaction. It’s a way of ensuring that the full value of this family’s assets is being put on the line to ensure that this man turns up to answer his bail. And even then, I would be listening to submissions from the Crown as to whether that was sufficient.
But I don’t have anywhere near sufficient information to be able to know even what figure to fix for bail on the basis of this affidavit material.
MR TIPPETT:   On the last occasion we were before, your Honour, we were – we discussed placing material before you as to the ownership of properties.
HER HONOUR:   Well, no, what I intended and perhaps I didn’t express myself clearly, Mr Tippett - - -
MR TIPPETT:   No, you didn’t your Honour.
HER HONOUR:   No, well, for that, I apologise. But the fact is the purpose of all that information, that information has no purpose unless it’s for the purpose of securing – of obtaining guarantees for the man’s bail and securing those guarantees in a meaningful fashion by providing mortgages over the properties.
Is that – I mean have I expressed myself more clearly this morning?
MR TIPPETT:   Yes, you have, your Honour. Well, your Honour, we have done what we thought we were required to do, at least as far as the properties were concerned to show your Honour that the properties are unencumbered and I don’t see why, your Honour, the certificates of title can’t be – that the court simply can place a caveat over the properties on the basis that the interest, the court’s interest is in the amount of bail fixed.
So if the court was to fix an amount of bail, say $500,000, the Sheriff, in the light of that, could caveat both properties and no dealings could take place on those properties without the court then being notified.
HER HONOUR:   Yes, I understand what you’re saying in relation to that, Mr Tippett, but that has one major defect and that is that it doesn’t stop further borrowings against the properties.
MR TIPPETT:   Well, it – well, your Honour - - -
HER HONOUR:   You see, if you’ve got a Commonwealth Bank mortgage, for example, over your property and the - - -
MR TIPPETT:   Yes, I understand, I understand the process.
HER HONOUR:   Then the – any caveat that you lodge will not prevent the Commonwealth Bank from exercising its rights as mortgagee, therefore the Commonwealth Bank would have no disincentive whatsoever to allow further borrowings on the security of that mortgage. It doesn’t actually give effective protection.
MR TIPPETT:   Well - - -
HER HONOUR:   Whereas a second registered mortgage with a priority agreement – with the consent of the first mortgagee and a priority agreement fixing the priority of the first mortgagee does.
MR TIPPETT:   Well, your Honour, in relation to the unencumbered properties, which there are three properties, one is the parent’s property, which has a mortgage. In relation to the unencumbered properties, that can be done in a sense that a deed can be entered into in relation to that.
HER HONOUR:   Yes. Mr Tippett, I wouldn’t accept that.
MR TIPPETT:   Alright.
HER HONOUR:   To me, it – I would require the entire assets of the family to be given up as security for whatever bail was fixed. Bail would be fixed at the value of those assets and I would require security to the satisfaction of the Sheriff, who would be receiving advice from the commercial division of the Solicitor for the Northern Territory. And that would be the advice of that commercial division.
MR TIPPETT:   Very well, your Honour. In light of that, assuming those conditions can be met, namely, that there is a – we can produce a valuation of each property and we can – and in light of that valuation, bail can be fixed. That is a sum.
HER HONOUR:   Remember that we’re talking about in relation to the encumbered properties, the value of the equity in those properties - - -
MR TIPPETT:   Yes.
HER HONOUR:   - - - which would require information from the bank in relation to the amount of debt outstanding.
MR TIPPETT:   Yes and assuming that process can be put in place, the question, your Honour, is this – and I’m not asking you for an opinion, but if we’re in a position to do that, the question then becomes one of would that be satisfactory to the court.
HER HONOUR:   Well, I don’t know, I’d have to hear from Mr Nathan, because the other major issue that was raised by Mr Nathan is the knowledge that there are half a dozen false identifies. Now - - -
MR TIPPETT:   None of those were used, as I understand it, in this incident.
HER HONOUR:   Yes, I know but that’s not the point, is it? The point is that it does show that Mr Gjonaj has access to facilities for acquiring or manufacturing high quality false identities, which could facilitate his disappearance.
MR TIPPETT:   Well, your Honour, in relation to that, my response is that the property going up, assuming we can meet those requirements, really meets that argument in a sense that on the assumption that they were high-quality identifications.
HER HONOUR:   Well, that’s what I’ve been informed.
MR TIPPETT:   Then the real issue is one of whether Mr Gjonaj would appear in answer to any bail that was allowed.
HER HONOUR:   That’s right and that’s the purpose of providing him with the maximum incentive, namely, putting up all of his family’s assets. I should hear from Mr Nathan what he says in relation to assuming that condition of putting up the entire family’s assets as security for his bail were met, whether there would be further objection from the Crown and if so, what?
MR TIPPETT:   Yes, I’d appreciate that, your Honour. Because really what I want to do is obviously satisfy this. It’ll take – the problem is, as you know, it will take time and it won’t be an easy matter. It’ll take a couple of weeks, but the point is that if that’s - - -
HER HONOUR:   Those things actually can be done quite quickly, but assuming that it takes a couple of weeks - - -
MR TIPPETT:   Well, but assume – but the point I think your Honour makes and I – is this: if we isolate it down to that - - -
HER HONOUR:   Yes, you’re prepared to do the work, but if not - - -
MR TIPPETT:   Then we’ll – then we can do the work and get on with it and we can be satisfied at least for the most part, depending on the nature of the documentation that comes through that your Honour may be disposed at least to - - -
HER HONOUR:   Alright.
Why don’t I hear from Mr Nathan in relation to that so that we can get down to - see if that is the only remaining issue.
MR NATHAN:   Thank you, your Honour.
HER HONOUR:   Mr Nathan?
MR NATHAN:   Your Honour, whilst there’s a limited uncertainty as to the value, I mean if we are talking about looking at the unimproved, but obviously on top of that, you’re going to have, hopefully you would think, a significant – significantly greater value for each property.
HER HONOUR:   Yes.
MR NATHAN:   Your Honour, I’m not trying to make submissions again, the point, I suppose, is that we do, in the Crown’s submission, have a strong case in which a person is going to serve time and some significant period of time in actual custody if he were to be convicted, the – in the possession of false identities which in and of themselves would be sufficient to create a false passport.
So that’s a concern or the starting point that the Crown has. Having – against that, if we do have a – and I'm saying a substantial portion, if not an entirety of these significant assets that belongs to one family, it would take someone very cold to place their family in that circumstance. And so yes, it would be a significant matter that the Crown would concede go towards assuring his reappearance.
HIS (sic) HONOUR:   Alright, thank you for that.
Well, given that indication, Mr Tippett, if, if and I’m saying if - - -
MR TIPPETT:   I understand what your Honour’s saying.
HER HONOUR:   - - - you can satisfy me of the value of those assets - - -
MR TIPPETT:   Yes.
HER HONOUR:   - - - and you have instructions from the family that they’re prepared to provide a guarantee for the bail that will be at least the value of those assets and secure that guarantee by mortgages over those assets, then my – the indication is that I would grant bail on those conditions.
MR TIPPETT:   I’m grateful for that, your Honour. We’ll attend to that. I appreciate it. I wasn’t – and I do apologise, I wasn’t aware of that – the need for that additional step at this stage, but now that it’s clear, we will attend to it.
HER HONOUR:   Alright.
MR TIPPETT:   Appreciate it.
HER HONOUR:   Well, do you want me to adjourn this to a particular time or just make a fresh application?
MR TIPPETT:   Your Honour, perhaps – your Honour, why do we – at this stage, perhaps, I’m just thinking on my feet, instead of making – adjourning to a particular date when we’ve got a little bit of quandary as how long it’s going to take, obviously we want to do it as quickly as possible, but can we just simply leave it with us to make a fresh application, perhaps notify both Mr Nathan and your associate and arrange for the matter to be brought on?
HER HONOUR:   That’s – well, you won’t have to file additional application, just – I mean we don’t like doing this but it’s sort of like adjourning it sine die.
MR TIPPETT:   That’s – yes, I appreciate that.
HER HONOUR:   And then just let my – obviously Mr Nathan and my associate know when it’s a convenient time to bring it back on.
MR TIPPETT:   Good, I’m grateful, your Honour.
MR NATHAN:   Thank you, your Honour.
HER HONOUR:   Alright, thank you both.

I have set out the transcript of that hearing in full because for the purposes of this application the applicant has a number of complaints about what occurred, but to summarise:
(a)Counsel for the applicant apparently had not understood that the purpose of providing affidavit evidence about the extent of the family’s assets (including their equity in property offered as security for the bail undertaking) was to enable the Court to determine an amount at which to fix bail which would provide an effective incentive to the applicant to answer his bail.
(b)The purpose of requiring the information to be provided and security to be given was to remove the major objection to bail being granted – namely that given the strong Crown case, the prospect of a lengthy prison sentence if the applicant were to be convicted, and his apparent access to the means to acquire a false passport, the applicant posed an unacceptable flight risk. (That is to say, it was for the benefit of the applicant, not the prosecution.)
(c)Had the information been provided, that obstacle would have been removed. The Crown effectively conceded that provision of such security by family members would alleviate the concerns that the applicant may not answer his bail, and I indicated that should the necessary information be provided, I intended to grant bail to the applicant (despite the Crown’s continuing formal objection) and to fix bail at an amount equivalent to the extent of the net family assets.
(d)Counsel for the applicant indicated that the required information would be forthcoming.
The bail application was adjourned (effectively sine die) and was never brought back on by the applicant.
The applicant makes a number of complaints about what occurred during the bail review. First it is submitted that on 8 April 2016 there was no suggestion that the applicant and his family had any other properties, and that I did not make any such inquiries.
That is not correct. The whole point of adjourning the bail application – which was communicated to counsel for the applicant - was to enable the applicant to provide further information about the family’s assets for the reasons I expressed at the time and have set out above.
In written submissions, counsel for the applicant submitted that the only other reference to the wealth of the applicant at that stage (ie on 8 April 2016) was a comment by me that drug dealers were “… making enormous amounts of money”.
I agree that if I had referred to the applicant as “a drug dealer” and said that, as such, he was making an enormous amount of money, that may well be a ground upon which I should recuse myself. However, I did not. The relevant extract from the transcript is set out above and it can be seen that the remark does not refer to the applicant at all. It refers in general to people bringing cannabis into the Territory, something that, by his plea, the applicant denies that he did. In the course of testing the prosecutor’s objection to bail in which the prosecutor was emphasising the large scale commercial nature of the operation of bringing about 20 kg of cannabis into the Territory, I remarked that the way it was said to have been done did not seem to be very sophisticated. The prosecutor responded that unsophisticated or not such operations were often successful and I said, “… and making enormous amounts of money.” The remark did not concern the applicant and had nothing to do with fixing bail.
The applicant takes exception to my comment that, “the whole idea of putting up surety is to put everything you have, because that then is a very strong incentive to turn up.” The applicant contends that although sureties are required to provide an “incentive to turn up”, it is not the general practice of the courts to enquire as to the assets of any surety – far less for the courts to adopt the concept that the “whole idea of putting up surety is to put everything you have.” In written submissions the applicant conceded that in an appropriate case the lodging of a person’s entire assets may be necessary, but in this case the Crown prosecutor had not asked for that; rather I was the one who “summarily decided that this was ‘the whole idea’ and that it was necessary in this case”.
I agree that the remark objected to was badly phrased in that it sounded as though it was intended to be a general proposition. Of course it is not. Every bail application stands on its own merits. Sometimes a surety will not be necessary; sometimes a modest cash deposit will suffice. What I intended to convey (and said elsewhere in the transcript) was that in this case I had determined that bail should only be granted on condition that it be
fixed at a sum equal to the whole of the family’s assets. [1] I do not agree that the badly phrased remark would cause a fair minded observer to apprehend that I might favour the prosecution or might not bring an open and unbiased mind to judging any issues that might arise between the prosecution and the defence in the course of the trial or the voir dire.[2]
It is also true that the prosecutor had not asked for security to be given over the whole of the family’s assets. The prosecutor was objecting to bail being granted at all. The major basis of that objection was that the applicant was a flight risk for the reasons set out in [7] above. As I have explained, my purpose in seeking information about the extent of the family’s assets was to determine an amount and conditions of bail that would substantially eliminate that flight risk so that the applicant, who for good reason would not otherwise be granted bail (and had been refused bail in the Local Court), could be granted bail.
As to it not being the general practice of the courts to enquire into the assets of a surety, as a matter of logic, if the court determines that a surety is required, then it will often be important to know about the surety’s means when determining at what amount bail should be set. There is no point in fixing bail at an amount which the accused and the surety cannot afford – especially if there is to be a cash deposit or security over real property. On the other hand, to fix bail at an amount which the accused and the surety would find trivial to forfeit would provide small incentive for the accused to answer his bail.
In his written submissions, counsel for the applicant further complained:
Her Honour did not accept the Valuer General’s values of certain properties – insisting on market values. The properties were offered unencumbered. This proposition is in contra diction (sic) to Her Honour’s earlier comment to “put up everything you have” because whatever the valuation method Her Honour had frequently said that it was the entirety of the assets that she was concerned with – not their valuation. Up to this point Her Honour had not required that the applicant must reach a certain monetary amount in order to achieve bail. It is submitted that this shifting of the requirements for bail is indicative of a deep suspicion of the applicant that was not based upon the facts before Her Honour and which demonstrates the relevant apprehension or suspicion of bias.
This submission reflects a failure to understand the reason for requesting information about the value of the properties and the equity that the proposed guarantors had in such of those properties as were encumbered. As I attempted to explain on the hearing of the bail review (possibly inadequately although it seems clear to me from the transcripts), information about those values was necessary in order to fix the amount of the bail which would be forfeited if the applicant did not appear and which was to be guaranteed by the sureties. (As I explained, I intended to fix bail at an amount equal to substantially the whole of the sureties’ assets.) That requirement did not change. At no stage did I say or imply that bail would not be granted unless the applicant reached “a certain monetary amount”. No absolute monetary amount is necessary for obvious reasons. If a person who is close to an accused is prepared to provide a guarantee for the accused’s bail undertaking in an amount that will cause the surety substantial financial pain if the accused does not answer his bail, then this has two consequences.
(a)It demonstrates in a practical way that someone who knows the accused well (husband/wife/parent) has sufficient confidence in the accused answering his bail that that person is willing to risk all/a substantial portion of his or her assets on the faith that he will do so. (That itself is some evidence on which the court can act that the person is likely to answer his bail.)
(b)If the surety is a person who is close to the accused, it gives the accused a very powerful incentive to answer his bail to ensure that the potentially painful consequence does not eventuate.
It follows that if the person guaranteeing the bail undertaking has very little, bail will be set at a small amount. If the person guaranteeing the bail undertaking is wealthy, bail will be set at a higher amount in order to achieve these desired consequences.
The applicant also complains that the list of requirements concerning first and second mortgages and the taking of advice by the Sherriff from the Solicitor for the Northern Territory were unduly onerous and demonstrated an apprehension of bias against the applicant. I simply refer to the guide on the court web site “Real Property as Security for Bail” which sets out the information generally required and procedures to be followed where real property is given as security for a bail undertaking.
Further, although counsel for the applicant initially requested two weeks to obtain the requisite information, and then when it was not forthcoming on the adjourned date estimated that it would take another two weeks to gather, that information can in fact be provided quite quickly – as I told counsel at the time. The necessary searches can be done online without delay and bank statements etc can be similarly obtained. By way of illustration, I recently heard a bail review in which an accused normally resident interstate appeared to pose a flight risk taking into account those maters set out in s 24 of the Act. I indicated that bail might be considered on similar terms to those indicated in this case. Counsel asked for an adjournment for 24 hours; the relevant information regarding the family’s assets (including searches and bank statements) was provided by the applicant’s solicitor the next day in affidavits sworn by family members; and bail was granted on that day fixed at an amount roughly equal to the sum total of those assets to be secured by a mortgage over the family home.
The other ground for asserting that I should disqualify myself concerns discussions between the bar and bench on 19 August 2016 about a voir dire to be held concerning the admissibility of evidence of a prior conviction by the accused.
The Crown case against the applicant is that he was transporting about 19 kg of cannabis into the Territory from South Australia in packages hidden in his suitcase in a vehicle he was driving. The Crown intends to call evidence that the accused’s fingerprint(s) were found on one of the packages.
The matter was set down for a voir dire on 19 August 2016. The issue to be determined on the voir dire was whether the Crown could adduce evidence of a prior conviction for possession of six cannabis plants in South Australia in 2006. (The plants were grown indoors in the applicant’s house using hydroponic equipment. One of the facts alleged in that case was that the applicant’s fingerprint/s had been found on part of the hydroponic equipment.)
At the start of the proceeding on 19 August I was informed by counsel that the applicant was “contesting the conviction”. Counsel for the applicant advised that the applicant was the owner of the relevant premises, and there were six cannabis plants allegedly found in a hydroponic set up on the premises. However, the applicant said that he knew nothing about the plants and that he was overseas at the time a search warrant was executed at his house and the plants seized. The applicant’s instructions to his counsel were that his lawyer in South Australia had entered a guilty plea in his absence and without his instructions.
The applicant complains that the following remark I made on 19 August 2016 indicates that I favoured the prosecution:
HER HONOUR: This is just an instinctive reaction, but if your client is caught in a situation twice where he is prima facie found in possession of cannabis with his fingerprints on connected items and both times claims to be unaware of it and nothing to do with him, doesn’t that make the coincidence even more striking even if he hadn’t been convicted?
In written submissions the applicant said:
Her Honour’s logic assumes the correctness of these allegations. There is no factual basis upon which this assumption can be made. If the allegations are incorrect no coincidence can have occurred. Here Her Honour was speaking of a coincidence notice and its admissibility. Subject to the special rules concerning bail applications, it is one of the primary functions of this Honourable Court to ensure that judicial action is only taken on proven facts – not allegations.
I have reviewed the transcript of that mention. The point of the discussion was to explore whether it was really necessary to adjourn the voir dire to enable investigations to be made as to the circumstances in which the conviction was entered. This was of importance as adjourning the voir dire necessitated vacating the trial dates which had been set down in September 2016. The remark complained of occurred in the context of a discussion of what would follow as a matter of logic if the 2006 conviction were to be set aside, including the following exchange:
COUNSEL:    Your Honour, the trouble is, with these instinctive reactions, if one may be so bold, and the Crown I’m sure shares your Honour’s instincts - sometimes they’re wrong – it’s expected.
HER HONOUR:   Well, that’s right ... but it might be actually a jury question. Let me just think about that for a moment. I just want to – I’ll find out from counsel in a minute where you want to go with this, and what you want to happen this morning. But I’m just thinking it through now. What if – you know, you establish Mr Gjonaj was away, and that his lawyer pleaded guilty on his behalf. So there’s no conviction - properly - conviction that the jury could take into account. But then the Crown said:
Well, what we want to establish is this: that in both 2006 – or whatever it is – and in 2016, Mr Gjonaj has found himself in a situation where either - first in his house and then in his car, there are reasonably substantial amounts of cannabis, which he claims to have no knowledge of, and must’ve been – I presume – you know, put there by somebody else.
Would they be entitled – setting aside the difficulties in the present matter about the dissimilarities between the two matters – wouldn’t they be in just as good a position establishing those facts, as they are on a conviction?
MR ADAMS:   No, your Honour. I say no, because the earlier matter – unless it’s established he did know, the fact that - - -
HER HONOUR:   No, no. The key similarity is that in both cases, he claims not to have known.
MR ADAMS:   Yes. Well, unless it’s established he did know in the first matter, he didn’t know. So how can it be - - -
HER HONOUR:   No, no. This is the circumstantial evidence, you see.
MR ADAMS:   I understand, your Honour. What your Honour’s saying is that the same excuse is used twice.
HER HONOUR:   Yes.
MR ADAMS:   But the first excuse - - -
HER HONOUR:   Sorry, not just the same excuse is used twice, the same circumstances.
MR ADAMS:   Okay.
HER HONOUR:   In his property, substantial amounts of cannabis, that he apparently says he knows nothing about.
MR ADAMS:   But the problem of that logic - - -
HER HONOUR:   And they’ve got his fingerprints on them.
MR ADAMS:   The problem with that logic is that it rests on the assumption that in the first case, he did know about it.
HER HONOUR:   No it’s not.
MR ADAMS:   It does. With respect, it must. If he did know anything about it – he didn’t know anything about 16 prior matters (??) [I believe this should read “6 prior plants”], your Honour.
HER HONOUR:   No, no - - -
MR ADAMS:   And the Crown can’t say - - -
HER HONOUR:   I understand that, Mr Adams. But in this particular case, in this particular instance, it rests upon the assumption that he did know about that, and did know about this. Sorry, it’s not an assumption. It will be an inference to be drawn from those primary facts – in other words, the primary facts are: his property; substantial amounts of cannabis on there; his fingerprints associated with them; and his claim not to know anything about it both times might lead to an inference that in each time he did know something about it, and he uses that excuse.
MR ADAMS:   But with your Honour’s respect - - -
HER HONOUR:   I know.
MR ADAMS:   It’s (inaudible) consistent with - - -
HER HONOUR:   As a juror, it’s sounding good.
MR ADAMS:   Pardon?
HER HONOUR:   As a juror, it’s sounding good.
MR ADAMS:   Well, your Honour, on a prior occasion, all those circumstances – unless they’re proven to be criminally - guilt, it can’t be used. Because the excuse, as your Honour puts it, is perfectly logically correct if indeed he didn’t know.
HER HONOUR:   Correct. You see, the other thing that occurs to me, Mr Adams, is that if you establish all of these matters, then one of your bases of objecting to having this matter led in evidence falls away, namely that it’s evidence of a prior conviction.
MR ADAMS:   Well, that’s true.
The Crown prosecutor confirmed that the Crown would be relying on reasoning of the kind I had described.
I do not accept that a fair minded observer might see my exploration of that reasoning with counsel for the applicant as favouring the prosecutor or pre-judging anything. In determining whether to admit co-incidence evidence the court must determine whether the evidence (if accepted) can rationally affect the probability of a fact in issue.[3] Later in the same hearing I initiated a discussion with the prosecutor regarding what I perceived to be a weakness in the Crown’s case for the admission of the co-incidence evidence – also for the purpose of determining whether it was really necessary to adjourn the voir dire and, consequently, the trial.
HER HONOUR:   What should we do this morning? That [ie adjourning the voir dire and vacating the trial dates] won’t be necessary if you weren’t going to get this evidence in in any event.
MR NATHAN:   Potentially that’s true.
HER HONOUR:   Do you want to do this? I’m just trying to think it through, just to – as the most efficient way of the use of everybody’s court time, but more particularly both counsels’ time, if this isn’t going to be an issue. Would it be profitable to have the voir dire now – the argument now – based on those either/or propositions? In other words - - -
MR NATHAN:   On principle.
HER HONOUR:   - - - on principle. There may be a different – it’ll have to be two almost hypothetical arguments: the hypothetical argument, if the facts are as Mr Adams has been instructed – and the hypothetical argument as if it were a conviction. But that shouldn’t be too difficult, should it?
MR NATHAN:   Your Honour, my learned friend’s reluctance – it is a reluctance shared by the Crown.
HER HONOUR:   Alright.
MR NATHAN:   When – we’re asking your Honour to make a ruling upon a factual scenario, and there is some uncertainty as to firstly the actual facts that were put before the court, even on a conviction. And then the evidence – and I use that term loosely because we have no idea on what potentially the police officers may say - - -
HER HONOUR:   Yes.
MR NATHAN:   - - - I think that what we’re doing is really undermining the – perhaps legitimacy of any decision that your Honour makes.
HER HONOUR:   Yes, certainly. No, it was only a suggestion, put out there to perhaps save time. Because if the answer went one way, the whole - - -
MR NATHAN:   Certainly.
HER HONOUR:   - - - exercise becomes academic.
MR NATHAN:   Absolutely.   I - - -
HER HONOUR:   Because there are difficulties with the case - - -
MR NATHAN:   There are.
HER HONOUR:   - - - aren’t there? The time differential - - -
MR NATHAN:   Yes.
HER HONOUR:   And the fact that, well – six plants – I’m not really an expert in this sort of thing, but you wouldn’t really get a whole lot of cannabis off six plants, would you?

The test for apprehended bias is whether a fair-minded lay observer might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case.[4]
I understand that one of the issues to be determined on the voir dire set down for hearing on 2 February 2017 is whether the Crown will be permitted to adduce as coincidence evidence, evidence of the 2006 conviction or, if the conviction is set aside, the allegations and subsequent history of the 2006 proceeding. I do not accept that exploring the logic of what would follow from the prior conviction being set aside with counsel for the applicant would suggest to a fair minded observer that I favoured the prosecution, any more than my exploring the potential weakness in the Crown case for admission of the coincidence evidence with the prosecutor (by reason of the long-time interval between the two events and the different nature of the two alleged offences) would suggest to such an observer that I favoured the applicant. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Johnson v Johnson: [5]
“If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. [citations omitted]
The applicant also complains that on a pre-trial mention of the matter on 29 July 2016 I said: “So this may well resolve into a plea at some point depending on the expert evidence obtained by Mr Adams.” The applicant contends that this is an indication of a prejudgment of the likely outcome of the case. Again, that contention takes what was said out of context. What occurred was that counsel for the applicant indicated that a subpoena had been served on police (and the prosecutor was co-operating with the defence) to obtain the necessary documents to enable the applicant to obtain an expert report in relation to an alleged fingerprint of the applicant which was said by the Crown to have been found on one of the packages of cannabis found in the vehicle being driven by the applicant. Then the following exchange occurred.
MR ADAMS:   … the preliminary issue is whether we get them [ie the documents and the report] in time whether the trial can go ahead. I fully expect we can.
HER HONOUR:   Yes.
MR ADAMS:   So it’s not a problem yet, your Honour. At best, it’s an experts contest.
HER HONOUR:   Yes.
MR ADAMS:   Otherwise I don’t think there’s any difficulty. It’s a straightforward matter.
MR NATHAN:   Your Honour, there’s just one – I’ll raise with my learned friend and at this stage, I had some time ago requested material from South Australia in relation to some prior convictions for production of cannabis. And so the Crown has some interest in his connection to – or his convictions for producing cannabis and the likelihood that the Crown would seek to use that evidence as coincidence evidence.
HER HONOUR:   Yes, alright.
MR NATHAN:   Where, obviously the number one issue in the trial would be knowledge.
HER HONOUR:   Yes.
MR NATHAN:   And the Crown will obviously seek to allege well what are the chances that this person has 20 kilos of cannabis in his car of which he’s the only driver with a fingerprint and he has priors for cannabis production in South Australia.
HER HONOUR:   So this may well resolve into a plea at some point depending on the expert evidence obtained by Mr Adams?
MR ADAMS:   It may, your Honour. But on my instructions at this stage are to see what the evidence is.
HER HONOUR:   Yes, of course. So you anticipate serving a coincidence evidence notice. What sort of timeframe are we looking at so we can keep it on track?
This exchange occurred at a pre-trial mention in which the prospect of the matter resolving before trial was a major question for discussion for case management purposes. I do not agree that a fair minded observer would construe my remark, in that context, as an indication that I favoured the prosecution, that I had “prejudged the outcome of the case” or, more to the point, that I might not bring an impartial and unprejudiced mind to the resolution of any of the questions which I might be called upon to determine in the course of the trial or the voir dire. (It is, of course, the jury who will be called upon to determine whether the applicant is guilty or not guilty of the charge on the indictment.)
Nor do I think that the combined effect of the remarks complained of would be apt to have this effect.
I decline to recuse myself.

[1] In fact, I did, in effect say this. I said: “… in order to fix a realistic bail that would have a genuine incentive or provide Mr Gjonaj with a genuine incentive to turn up in answer to his bail, I would be fixing it - I would be requiring guarantees and I would be fixing bail at the value of the equity that the people have in those properties.”

I also said: “If I were to consider bail at all, I would want all of the properties mortgaged, every single asset that the family owns, because that’s the only way that I would be satisfied that Mr Gjonaj would have a genuine incentive to turn up.”

[2] See cases cited in footnote 4 below.

[3] IMM v The Queen (2016) 330 ALR 382 at 390 [38]-[40]; (per French CJ, Kiefel, Bell and Keane JJ

[4] Johnson v Johnson (2000) 201 CLR 488 at 492; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; R v Watson; ex parteArmstrong (1976) 136 CLR 248 at 258-263

[5] (2000) 201 CLR 488 at 493 [12]-[13]