R v BNS

[2016] NSWSC 350

Supreme Court

New South Wales

Medium Neutral Citation:	R v BNS [2016] NSWSC 350
Hearing dates:	24 March 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Before:	Garling J
Decision:	Application dismissed
Catchwords:	BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application in circumstances where there is a change in the identity of the surety and the sum offered BAIL – charge of supplying a commercial quantity of a prohibited drug – Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) – show cause offence – whether there is an unacceptable risk of non-appearance
Legislation Cited:	Bail Act 2013 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	JM v R [2015] NSWSC 978
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	BNS (Applicant) The Crown
Representation:	Counsel: B Walmsley QC (Applicant) R Buttini (Crown)   Solicitors: Longton Legal (Applicant) NSW DPP (Crown)
File Number(s):	2015/319439
Publication restriction:	Order that the names of the applicant, his mother, his fiancé, and witnesses to the events, and any material tending to identify them, be suppressed until the conclusion of the trial of the applicant, or further order of the Court, whichever occurs first.

Judgment

1. On 14 May 2015, the applicant (to whom I will refer as “BNS”) was arrested and charged with two offences, namely:

1. an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“DMT Act”), namely that on 14 May 2015 at Kensington he supplied 2 kilograms of methylamphetamine, a prohibited drug, in an amount which was not less than the large commercial quantity applicable to that drug; and

2. an offence contrary to s 93T(1) of the Crimes Act 1900, namely that at Kensington on 14 May 2015 he participated in a criminal group and contributed to criminal activity.

2. The maximum penalty for the offence with which BNS is charged under the DMT Act is life imprisonment. A standard non-parole period of 15 years imprisonment is applicable. The maximum penalty for the offence against the Crimes Act is 10 years imprisonment.

3. At the time BNS was charged, bail was refused. He has, accordingly, been in custody since 14 May 2015.

4. A number of other individuals were also charged on that day with similar offences. Bail was refused for each of them at that time.

5. BNS has previously applied to this Court for bail. On 1 October 2015, Fagan J heard the applicant’s bail application and refused bail.

6. On 23 October 2015, about 3 weeks after bail was refused by this Court, the applicant filed a further release application. After a Notice of Readiness to Proceed was filed on 10 March 2016, the Court fixed the second bail application for hearing on 24 March 2016.

7. At the conclusion of that hearing, judgment was reserved.

Non-Publication Order

8. It will be necessary in this judgment to consider the nature and strength of the Crown case against the applicant. That is to be done by reference to the contents of statements provided by the Crown. Some of that material may not ultimately be admitted into evidence at the applicant’s trial.

9. In order to prevent prejudice to the proper administration of justice, and in order to ensure a fair trial of the applicant, the Court must make a suppression order pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). In so doing, I take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. However, in an interlocutory application such as this one, it is also important to take steps to ensure that a fair trial will take place.

10. Accordingly, the Court has ordered that the names of the applicant, his mother, his fiancé, and witnesses to the relevant events, and any material tending to identify them, be suppressed until the conclusion of the applicant’s trial. Such order is made until the conclusion of the trial of the applicant, or further order of the Court, whichever occurs first.

Court Proceedings

11. The complete Crown brief has been served. The proceedings were last before the Local Court on 24 March 2016. This was, coincidentally, the same date that the second bail application was fixed for hearing. The Crown was ready to proceed in the Local Court on 24 March 2016 to obtain a committal hearing date.

12. The proceedings have been adjourned to 19 May 2016. This period is intended to allow the parties to have discussions with a view to determining the most efficient way of proceeding and identifying the real issues in the proceedings.

13. The applicant anticipates, and the Crown accepts, that a likely trial date for a 2 to 3 month trial in the District Court will be between October 2016 and February 2017.

Previous Bail Application

14. On 1 October 2015, BNS made a release application. It was heard by Fagan J who, in a judgment delivered that day, dismissed the application. His Honour was not satisfied that BNS had shown cause why his detention was not justified, as required by s 16A of the Bail Act 2013 (“Bail Act”).

15. The requirement for BNS to show cause why his detention was not justified arose because the offence with which he was charged, namely that of supplying a prohibited drug in a quantity greater than or equal to a commercial quantity of that drug, contrary to s 25(2) of the DMT Act, is defined as a “show cause offence” by s 16B(1)(f) of the Bail Act.

Applicable Legislation

16. As BNS has made a previous release application which has been dismissed, s 74 of the Bail Act applies to the determination of the present application. It provides:

“74 Multiple release or detention applications to same court not permitted

(1)    A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.

(2)    ...

(3)    For the purposes of this section, the grounds for a further release application are:

(a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) circumstances relevant to the grant of bail have changed since the previous application was made, or

(d) the person is a child and the previous application was made on a first appearance for the offence.

(4)    ...”

17. As I have earlier indicated, one of the offences with which BNS is charged is a “show cause offence”. Section 16A of the Bail Act provides:

“16A Accused person to show cause for certain serious offences

(1)    A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

(2)    If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test-all offences).

(3)    This section does not apply if the accused person was under the age of 18 years at the time of the offence.”

18. If both of these provisions are satisfied, and the Court proceeds to determine the release application, then the Court must make an assessment of the bail concerns which are set out in s 17(2) of the Bail Act as follows:

“17 Assessment of bail concerns

(1) …

(2)   For the purposes of this Act, a ‘bail concern’ is a concern that an accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.”

19. In making that assessment, the Court is obliged by the legislation to consider only those matters set out in s 18(1) of the Bail Act. They are:

“18 Matters to be considered as part of assessment

(1)   A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division:

(a) the accused person’s background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether the accused person has a history of violence,

(e) whether the accused person has previously committed a serious offence while on bail,

(f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

(2) … “

20. If the Court is satisfied, on the basis of its assessment of bail concerns, that there is an unacceptable risk, then it must refuse bail: s 19(1) Bail Act.

21. In coming to this conclusion, the fact that a person has shown cause why their detention is not justified must be disregarded by the Court because s 19(3) of the Bail Act provides that such a conclusion is irrelevant to the consideration of whether or not there is an unacceptable risk.

The Crown Case

22. In 2014 police attached to the State Crime Command Organised Crime Unit commenced an investigation into a 30 year old individual, LW, and his involvement in the supply of prohibited drugs and money laundering offences. In the course of that investigation, on 14 May 2015, police conducted physical and electronic surveillance of a series of events that occurred at the Moore Park Supa Centre carpark. In addition to observations being made, and electronic surveillance being carried out, a series of photographs were taken of what was occurring.

23. At about 1 pm on 14 May 2015, LW drove his motor vehicle into the carpark. There were 5 individuals present in various vehicles. Each of these individuals, including BNS, came from an Asian background.

24. In the course of this activity, BNS was seen complying with directions given by one of the group of Asian men present to carry a brown bag to a vehicle and enter the rear passenger seat of that vehicle. Whilst he was seated in that vehicle, another person approached the vehicle and handed a second brown bag to BNS through the passenger door. That person then walked away from the vehicle.

25. Whilst seated in the rear seat of the car, BNS was observed handing the two brown bags to the person seated in the driver’s seat. Two people then left the car, at which point police intervened. Everybody involved in the transaction was stopped and arrested by police officers.

26. Approximately 1 kilogram of methylamphetamine was located in each brown bag. In another grey bag located at the scene, police officers found five Blackberry devices.

27. On the day of his arrest, BNS participated in an electronically recorded interview with investigating police. He told police that he was paid several hundred dollars to undertake the task he performed on that day and that he had only been asked to participate the day before. He said it felt odd that the person who gave him the bag did not carry it for himself. He told police that, whilst he did not know what was inside the bag, he guessed it was “… some bad thing”. Later in the interview he told police that he guessed that there might be drugs inside the bag, although he did not know.

28. The Crown submits that, although this Court is not engaged in the trial of the charges, on the material placed before it there is a very strong Crown case which is likely to result in a conviction of the applicant on both offences. Counsel for the applicant submits that the prosecution case is not a compellingly strong one.

29. It is necessary that I form a view about the strength of the Crown Case. I do so based on the materials presently before the Court. I accept that the materials led in evidence at the trial may be different and that others may form a different view of the events at the time of the trial.

30. In my view, the Crown case is very strong. The applicant accepts that he was paid to participate in the events which occurred on 14 May 2015. It is clear, both from his admissions and the surveillance evidence, that together with others he was involved in two separate transactions occurring at about the same time, each involving about 1 kilogram of methylamphetamine.

31. Whilst the Crown does not have any evidence that the applicant knew that the drug was methylamphetamine, there is no reason to think that the ordinary use of inferential reasoning would not assist the Crown case in that respect.

Personal Circumstances of the Applicant

32. The applicant was born in 1994 and is 21 years old. He came to Australia in 2013 for the purpose of engaging in full-time study. In September 2014 he incorporated a company, TYI, of which he was the sole shareholder and director. The company was apparently engaged in the field of information technology, but the Court has been told little, if anything, about this company.

33. The applicant is a Chinese national. He is not an Australian citizen. He owns no property in Australia. He has no family members living in Australia; they all live in China.

34. At the time of the offences, the applicant was in a relationship with IW. That relationship commenced in December 2014. IW is a Chinese citizen who is a permanent resident in Australia. She has family living in Sydney.

35. The applicant’s mother, HMZ, resides in Gansu in China. She operates two businesses in China. The first supplies rice, flour and oil to wholesalers and retailers, and the second is a supermarket.

36. On 21 March 2016, HMZ swore an affidavit in which she said that she had borrowed funds from a Rural Credit Union in China totalling $1.4M. She had borrowed those funds on the security of her two businesses. She indicated that she was willing to provide a surety of $1M as a condition of a grant of bail.

37. The loan documents annexed to HMZ’s affidavit, after translation, support her assertion that she has borrowed the moneys which she describes. I note, however, that the purpose of the loan is described by the Rural Credit Union as “cash flow for the supermarket operation”.

38. As well, the Court was provided with an affidavit by IW, who described BNS as her fiancé. She says that she commenced a relationship with the applicant in December 2014, and they became engaged in January 2015. She says that they were planning on getting married not long after the events of May 2015. She lives in rented accommodation and is presently studying at university. She informs the Court that the applicant can live with her at her present address.

Grounds for a further Bail Application

39. On the issue of whether there were grounds under s 74 of the Bail Act for hearing a further release application, senior counsel for the applicant submitted that the fact that the applicant’s mother was willing to provide a surety of $1M as a condition of a grant of bail, compared to IW’s offer to provide a surety of $50,000 on the previous application, constituted “material information relevant to the grant of bail … that was not presented to the Court in the previous application”.

40. In addition, senior counsel for the applicant said that, in effect, the submissions which he was making were more thorough and covered a greater range of relevant matters:

“…[The] matters I seek to bring to your Honour’s attention are … more numerous … and the final concluding remarks I would say more persuasive of the circumstance that both the show cause requirements of the Act and the assessment which inevitably leads to a consideration of risk and whether it is acceptable, has altered and significantly and persuasively.”

41. It seems that senior counsel relied upon this submission in support of the proposition that s 74 was satisfied.

42. In my view, the making of submissions by a legal representative which are different in quality or quantity from those made in an earlier application by another legal representative, does not fall within the terms of s 74. Submissions are not information, nor do they constitute a change of circumstances relevant to the grant of bail.

43. The purpose of s 74 of the Bail Act is not to give an applicant the right to a second hearing of a bail application simply because a lawyer thinks that they might put a better or more persuasive argument to the Court than that put on an earlier occasion. On the contrary, s 74 addresses the issue by first requiring a court to refuse to hear a further release application unless particular grounds are established. Relevantly, in this case, those grounds are that material information is available which was not presented earlier, or that circumstances relevant to the grant of bail have changed.

44. I reject the applicant’s submission that submissions of senior counsel, which may be considered by the author to be more persuasive, are a reason to permit a second bail application.

45. The change in the identity of a surety and a change in the amount offered by the surety are not always to be regarded as a change of circumstances relevant to the grant of bail, nor are they necessarily always to be regarded as material information relevant to the grant of bail. It is always a question of fact and degree. A court needs to assess, in the context of the seriousness of the charge and all of the other circumstances relevant to a bail application, whether a change in the identity of a surety and the sum being offered are “material”.

46. In this case, I am satisfied that it is, and the Court accordingly is able to consider this further bail application.

Show Cause

47. As I have earlier explained, one of the offences with which BNS is charged is a show cause offence. It is necessary for BNS to show cause as to why his detention is not justified.

48. In JM v R [2015] NSWSC 978, I discussed the principles to be applied in the hearing and determination of a bail application generally, and where a show cause requirement exists. I will not repeat what I wrote about those principles, but will apply them in the consideration of this matter.

49. A relevant, although not necessarily determinative, consideration in a bail application for a show cause offence is the strength of the Crown case.

50. As discussed above, I am satisfied that the Crown has a very strong case. I note that I am not determining the guilt of the applicant. That is a matter which will be determined at trial. I am making an assessment on the basis of the limited material before me.

51. The applicant will be in custody for about 18 months by the time his trial commences. This is an unduly long period, and a relevant consideration to be weighed together with other matters in determining whether the applicant’s detention is not justified.

47. Another relevant consideration is whether or not there are any unacceptable risks. One of the bail concerns which the Crown advances, which it submits constitutes an unacceptable risk, is the risk of non-appearance. In support of that submission the Crown points to the fact that:

1. the applicant is a citizen of a foreign country who came to Australia on a student visa which has since been revoked;

2. the applicant has no familial or community ties to Australia except for his relationship with IW, which is not a lengthy one;

3. the applicant’s known ties include at least one, if not more, of the individuals involved in the principal offence with which he is charged;

4. the Crown case against the applicant is strong; and

5. the applicant is likely to face a lengthy period of imprisonment if convicted.

53. The applicant submits that the risk of his non-appearance is not unacceptable, pointing to the fact that:

1. he is in a relationship with IW;

2. he is able to live with IW whilst on bail;

3. his mother has agreed to provide a significant sum of money as surety; and

4. he has no criminal history in Australia or in China.

54. He also points to the fact that, according to his police interview, he did not know all of the individuals who were arrested with him, but rather was brought into the events of the day of his arrest by one individual the evening before in circumstances where what was to happen and who was involved were largely, if not entirely, unexplained to him.

Discernment

55. The question of whether the applicant will appear at his trial involves the Court making an assessment of his likely future conduct. It can only do so on the basis of the material which is presently before it.

56. The legislation places on BNS the onus of persuading the Court that his detention is not justified. In the particular circumstances here, BNS must persuade the Court that the risk of his non-appearance is not unacceptable.

57. I am wholly unpersuaded that the risk of the applicant’s non-appearance is not unacceptable. I am persuaded to the contrary, namely, that it is an unacceptable risk. The applicant is a young man with no ties, beyond his relationship with IW, of any real substance to Australia. He faces a substantial term of imprisonment for an offence the maximum term for which is life imprisonment.

58. The applicant has a powerful motivation to avoid any term of imprisonment, let alone a lengthy one.

59. I accept that the sum offered by the applicant’s mother is a substantial one. However, there is no information or material before the Court on this application that the applicant has any sense of obligation to his mother with respect to that money. Whether that sum of money represents a significant part of the assets of the applicant’s mother, and family, is unknown to the Court. I infer that the businesses of the applicant’s mother are substantial because the applicant’s mother has raised this significant sum on the security of those businesses. It is not clear that any other asset of the applicant’s mother or her family are at risk if the loan is not repaid.

60. Whilst on its face the sum appears to be a substantial one, it is not possible to assess with any confidence the relative impact of the loss of that sum to the applicant, his mother or her family, in the event that he does not appear.

61. Shortly put, the proposed conditions do nothing to diminish in any substantial way the unacceptable risk that this applicant may not appear when his matter is called for trial.`

62. It is necessary also to keep in mind that the applicant will be in custody for a lengthy period of time, which is a relevant factor in considering whether he has shown cause. Giving full weight to this factor does not persuade me that the applicant’s detention is not justified.

63. There being an unacceptable risk of non-appearance, I am unpersuaded that the applicant has shown cause why his detention is not justified.

64. The application is dismissed.

**********

Decision last updated: 01 April 2016