Pak v The Queen
[2009] VSC 458
•10 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2008
IN THE MATTER of the Bail Act1977 (Vic)
and
IN THE MATTER of an Application for Bail by MAKSUT PAK
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 & 10 September 2009 | |
DATE OF RULING: | 10 September 2009 | |
CASE MAY BE CITED AS: | Pak v R | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 458 | |
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CRIMINAL LAW – Application for bail – Conspiracy to traffic a commercial quantity of ecstasy (MDMA) – further application – right to bail – lengthy delay – unacceptable risk – to be balanced by delay – bail granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. Dann | C. Marshall & Associates |
| For the Respondent | Ms S. Stalianou | Office of Public Prosecutions |
HIS HONOUR:
Muksat Pak first made application for bail before me on 25 March 2009. That followed an unsuccessful application he had made to Harper J on 27 November 2008. Without deciding the question of exceptional circumstances, on that occasion his Honour refused bail because the applicant was an unacceptable risk.
At the hearing on 25 March, I was prepared to find the existence of exceptional circumstances and the matter was actually conceded by the Crown. But I also concluded that the applicant was an unacceptable risk of committing further offences whilst on bail.
By application dated 25 August 2009, the applicant makes further application for bail. The application is supported by an affidavit of his solicitor, Cameron Marshall, sworn on 25 August 2009. The application is opposed by the Crown. An affidavit by Mr Rooney submits further material to me and refers to material provided on an earlier occasion.
It is a condition precedent to this application that new facts and circumstances be shown. The matter was not argued before me and I did not raise it. When I refused bail on 18 May 2009, it was anticipated that telephone intercept material would be served by about 15 June 2009, and that is, within four weeks. It is asserted that it was not served until 10 July 2009.
A committal mention listed for 25 June had been adjourned until 29 July 2009 and on 29 July the committal was adjourned from 15 September 2009 until 14 December 2009.
It is asserted that the committal was adjourned for two reasons, firstly because Ms Miriam Mustafa, the co-accused, has not yet been dealt with, and secondly, because of the late service of the telephone intercept material. It is by no means clear to me that the service of the material on 10 July ought, of itself, to have caused an adjournment of the committal. The resolution of the position of the co-accused is however, quite another matter.
I find, in all the circumstances, that the adjournment, taken together with the failure of the position of the co-accused to be determined, constitutes new facts and circumstances sufficient to enliven this application.
The applicant is on bail for some serious drug charges relating to trafficking amphetamine and his involvement with two drug laboratories. The applicant was found in one of them, and it was being operated in a house occupied by his then partner and his two children. He has presently been charged with four counts of trafficking and one count of conspiracy to traffic a commercial quantity of ecstasy.
The four other charges alleged appear to relate to relatively small quantities over a reasonably subscribed period of time and would come within the jurisdiction of the Magistrates' Court. One would assume that those matters would have been dealt with between 31 July, when the applicant went into custody, and now.
The nub of the matter is really the count of conspiracy to traffic a commercial quantity of ecstasy (MDMA).
Although the allegation of further offending puts the applicant in a show cause situation, the alleged conspiracy to traffic a commercial quantity of ecstasy put him in an exceptional circumstances situation that was separately resolved. The alleged conspiracy is in short compass. It is alleged that the applicant made an arrangement with Ms Mustafa to purchase 2,000 ecstasy tablets from a person who, for want of a better description, might be called "the fat lady".
The telephone intercept material contained the following exchange which is said to have taken place between the applicant and Miriam Mustafa. The call was recorded at 2.59.40 on the afternoon of 19 July 2008, begun at a point a short time into the call. The applicant said, "All right, Lan." Mustafa replied, "M'mm." There was something inaudible said by the applicant. "Know what (inaudible) going to do?" Reply: "What?" The applicant: "I'm going to see - I'm going to see you later. We can talk when we catch - when we catch up. "I want from the - from" (Ms Mustafa) "I - I want two - two, er, I want 2,000." Reply: "Darling, we can talk when we catch up." Mustafa: "All right." Pak "All right." "All right, all right. Bye." "All right." The call continues but the matters there adverted to are irrelevant.
There is a further call that seems reasonably related to the first call, made at 20.18.04 on the evening of 19 July 2008. The applicant, a short distance into the call said, "She didn't come, the low life." Reply: "Yeah." "And, ah, after waiting and waiting and waiting and waiting in the end nothing fucking happened. Nothing." "Now, how come you didn't let me know, Max?" The applicant: "What do you mean? How come I didn't let you know?" Mustafa: "That - that he didn't get 'em." "I told you in any case if I did 'em you would have known." "Yeah, but you said that you were at her house waiting for her." They are the relevant parts of that call. Many of the relevant portions of those intercepts are in the Turkish language.
It seems to me, relying upon those calls alone, it would be very difficult, if not almost impossible, to procure a conviction against the applicant on the count of conspiracy to traffic. As to the nature of what needs to be proved in relation to the charge of conspiracy to traffic see R v Mokbel & Moran.[1]
[1](1999) 2 VR 87.
That is not however, the end of the matter. The co-accused, Miriam Mustafa, has made a statement to the police, such statement being made on 3 April 2009. The relevant portion of that statement reads:
After Max left my house I had a phone conversation with him where I said I wanted 2,000. I was referring to him getting me 2,000 ecstasy pills. Max knew what I was talking about, and that's why he was at the lady's house. I didn't hear from Max for a little while so I called him later in the day to see if he got the pills and he told me she wasn't there. I never got the pills from Max. I don't think I even caught up with him that night. The deal never went ahead.
Although it was urged on me by counsel for the applicant that the combination of the calls and that statement would not be sufficient, it seems to me plainly a matter for a jury to decide, whether taken in its totality that material could reasonably constitute the crime of conspiracy to traffic. There are two further matters, however, that need to be adverted to in relation to that question. The first is, that the principal offender in relation to the conspiracy is plainly Miriam Mustafa, and the second is that the crime, if it be a completed conspiracy, never got beyond that point and no actual transaction took place.
I am satisfied that no proper committal proceeding can be conducted involving the applicant until such time as Ms Mustafa would be available to give evidence. It does not mean that in the meantime, the other matters with which the applicant has been charged, separate from these charges, cannot proceed and be resolved. Those charges, of themselves - and this is simply a remark from me - seem to have taken a very long time to be progressed through the criminal justice system.
The position in relation to the co-accused Ms Mustafa is as follows. She has a committal proceeding listed for 12 November 2009. There is some expectation that the matters involving her will be resolved. One possible resolution might involve a finding or concession by the Crown that this offence did not involve the necessary commercial quantity. It is by no means clear to me, if that point is not resolved in favour of Ms Mustafa, that she would be prepared to plead to conspiracy to traffic a commercial quantity. That is because it is plain that not only would the agreement need to be proved, but the intention of the parties to traffic in what they knew or believed or were reckless to being a commercial quantity must also be established. It seems to me that it would have to be an agreement to traffic, which would have to be not less than 500 g of a mixed quantity of substance containing MDMA.
So even if an expert did resolve or was prepared to give evidence that ‘2000’ in the ordinary parlance of the way such expressions are used, would ordinarily weigh more than 500 g, it by no means resolves the matter.
The difficulty I then have with that is, if on 12 November 2009, the position of Ms Mustaffa is that she is going to trial, I would be prepared to conclude that her trial would almost certainly not take place until well into 2010. What this means in relation to the applicant is, that it cannot be said with any certainty what date any committal involving him would take place.
Under those circumstances, in terms of carrying out the balancing exercise that I am obliged to carry out[2], I do not alter my previous conclusion that the applicant is a risk of re-offending. His recent history demonstrates that. But having been involved in the incident for which he was earlier arrested, he continued to be involved in these matters in 2008. Putting aside for a moment the conspiracy to traffic a commercial quantity, the evidence in relation to the other trafficking matters appears strong but does not involve large quantities of drugs.
[2]See Hildebrandt v DPP [2006] VSC 198, Commonwealth Director of Public Prosecutions v Pasquale Barbaro A-G (Vic)[2009] VSCA 26 and Re Dickson [2008] VSC 516.
As I already said, in completing the balancing exercise that I am obliged to complete, although I regard the applicant as being a risk of re-offending while on bail, I do not think it is reasonable to balance that risk against his continued detention in custody for what must be an indefinite period of time in relation to these charges. I should again note that he was granted bail in relation to the other charges, which on their surface might in fact be more serious than these, and that bail continues.
Ultimately, I have come to the conclusion that the balancing exercise requires that the applicant be admitted to bail. I will, however, impose stringent conditions.
He will be admitted to bail on his own undertaking and one surety in the sum of $10,000, conditioned on his appearance before the Melbourne Magistrates Court on 14 December 2009, on these conditions:
(1) That you reside at the address stated in the Affidavit in Support of your application.
(2) That you report twice daily to the officer in charge of the Craigieburn Police Station or his or her nominee.
(3) That you not contact directly or indirectly any witness for the prosecution except the informant or his or her nominee.
(4) That you not contact directly or indirectly the co-accused, Miriam Mustafa.
(5) That you must not leave the State of Victoria without the written consent of the informant or his or her nominee.
(6) That you surrender any passport which is in your possession and which may come into your possession and not to apply for any other passport or any other travel document.
(7) Finally, that you not attend any point of international departure during the period of bail.
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