R v Fallon (a pseudonym)

[2017] NSWSC 1796

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fallon (a pseudonym) [2017] NSWSC 1796
Hearing dates:	13 December 2017
Date of orders:	19 December 2017
Decision date:	19 December 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) The applicant’s release application is dismissed; (2) Under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW), information tending to reveal the identity of the applicant is suppressed until the conclusion of the criminal proceedings against him on the ground expressed in s 8(1)(a). Effect is to be given to this order by referring to the applicant by the pseudonym “Fallon”.
Catchwords:	CRIMINAL LAW – bail – release application – show cause offences – where multiple previous release applications – consideration of s 74 Bail Act 2013 (NSW) – release application dismissed WORDS AND PHRASES – “material” – s 74 Bail Act 2013 (NSW) – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Legislation Cited:	Bail Act 2013 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Category:	Principal judgment
Parties:	Mr Fallon (Applicant) NSW Director of Public Prosecutions (Crown)
Representation:	Counsel: M.J. Finnane QC (Applicant) McAuliffe (Crown)   Solicitors: Longton Legal (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2017/335014

Judgment

Background

1. The applicant is charged with drug supply and related offences. There are eleven counts, of which sequences 1, 6 and 11 may be taken to be the most serious. Sequence 1 alleges the supply of 488.8 grams of cocaine on 19th January 2016; sequence 6 alleges that he knowingly took part in supplying more than a large commercial quantity of cocaine between 20th May 2015 and 16th October 2015; and sequence 11 alleges that he supplied 509.4 grams of cocaine on 17th December 2015. Clearly, the charges were not preferred in chronological order. The other charges relate to the alleged supply of lesser amounts of the drug and a number of counts of knowingly dealing with the proceeds of crime. The total amount involved in the proceeds of crime matters approaches $500,000. The applicant has pleaded not guilty and he is to stand trial in the Sydney District Court commencing on Monday 13th August 2018. The trial has a 25 day estimate.

2. On Wednesday, 13th December 2017, I heard an application to hear a further release application under s 74 Bail Act 2013 (NSW) on the sole ground that material information relevant to the grant of bail is to be presented in the application that was not presented to the Court in previous applications.

Suppression orders

3. As I think it appropriate that this judgment be published and as it involves the consideration of the nature and the strength of the Crown case against the applicant, I also consider it appropriate to make an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) to suppress the applicant’s identity until the conclusion of his trial. I think this is necessary to prevent prejudice to the proper administration of criminal justice, even bearing in mind the significance of the public interest in open justice. I am of the view that the appropriate way to achieve my purpose is to refer to the applicant by a pseudonym of “Fallon”.

4. Under s 7 Court Suppression and Non-Publication Orders Act, information tending to reveal the identity of the applicant is suppressed until the conclusion of the criminal proceedings against him on the ground expressed in s 8(1)(a) of the Act. Effect is to be given to this order by referring to the applicant by the pseudonym Fallon.

History of release applications

5. It is well to bear in mind that there have been seven previous bail applications made at different stages in the process. Three have been made in the Local Court and each has been refused. The latest of those applications was refused by Magistrate Andrews on 3rd October 2017.

6. Three previous bail applications have been made in this Court. On 8th June 2016, I refused bail; on 13th October 2016, Harrison J granted conditional bail (but the Court of Criminal Appeal allowed a detention application on 2nd November 2016); and Latham J refused bail on 14th February 2017.

7. It is relevant to record that Latham J permitted the applicant to make the application before her on the ground that the circumstances relevant to the grant of bail had changed because sequence 1 had been preferred against the applicant after the date of the Court of Criminal Appeal’s judgment “and the nature of the evidence underlying” the prosecution had changed. Part of that change in evidence was the service of a statement of an informant known for present purposes as “Witness X”, dated 10th January 2017.

8. So far as Witness X’s statement purports to provide direct evidence against the applicant, that evidence is restricted to the claim that Witness X had met the applicant and his co-accused on 25th November 2015 when the three of them discussed the supply of cocaine. At this meeting it was implied the applicant took on an organising role by insisting that Witness X use an encrypted Blackberry mobile phone to communicate with the co-accused. Witness X did not purport to have other direct evidence against the applicant. All of his other dealings were with the co-accused.

9. Latham J refused bail because notwithstanding the additional delay that the preferment of the additional count and the service of further evidence was likely to involve, she was not satisfied that the applicant had shown cause why his detention was not justified.

Do grounds exist for a further release application?

10. As I have said, before me the ground said to justify yet another release application is that additional material information relevant to the grant of bail is to be presented. That material information is the transcript of the evidence given by Witness X at contested committal proceedings. In a nutshell, it’s said that an examination of that transcript demonstrates that the Crown case is weak, contrary to the assessments previously made in particular by Latham J and the Court of Criminal Appeal, substantially because it demonstrates that Witness X did not come up to proof about the alleged meeting with the applicant.

11. I was taken through the transcript by Mr Finnane QC for the applicant with some care. Focusing upon the meeting of 25th November 2015, I think it can be said that in the evidence-in-chief of Witness X, unassisted by reference to his statement, he made no mention of any such meeting. The prosecutor was given leave to cross-examine under s 38 Evidence Act 1995 (NSW) leading Witness X through the statement, including his account of the meeting, who agreed it was a correct account. However, under cross-examination by Counsel for the applicant, Witness X at one point said (Transcript 25 September 2017 at 66.45) that he had never met the applicant. He said:

“I’ve, I’ve been in the same room and that’s, that’s the guy, that’s Joe [Fallon] but never actually gone up and shook the man’s hands and that go [sic], “Hi I’m Joe, I’m X.”

12. It might be fairly said from a consideration of the transcript, without the benefit of seeing and hearing the witness, that his evidence was inconsistent and somewhat hard to follow. However Mr Finnane accepts, as he must, that it will be open to the jury to accept the account that there was a meeting on 25th November, but submits that the evidence viewed objectively should be taken as being unreliable. To that extent it is argued that the Crown case is not as strong as Latham J assessed it to be.

Consideration of s 74 Bail Act 2013 (NSW)

13. The purpose of s 74 Bail Act is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. It’s relevant to bear this legislative purpose in mind when one considers that what is being proposed is a third application to this Court, an eighth application overall (if one includes the detention application). This history of repeated release applications is, I think, relevant to my evaluation of the case.

14. Section 74 needs to be interpreted in its context in the Act, and in particular in Part 7 of the Act. Section 71 requires bail applications to be dealt with as soon as reasonably practicable; s 72 makes it mandatory for a court to entertain any release or variation application made by an accused person on the first appearance in substantive proceedings for the offence; s 73 empowers a court to refuse to hear a bail application on other occasions, if satisfied the application is frivolous, vexatious, without substance, or has no reasonable prospects of success; and s 75 provides that all bail applications, including subsequent applications, are to be dealt with as a hearing de novo. Sections 73 and 74, in my view, work together to emphasise the restraint with which a court is to approach subsequent applications made to that court.

15. It is also well to emphasise the word “material” where it appears in the expression “material information relevant to the grant of bail” in s 74(3)(b) and also in s 74(4)(a), for that matter. The additional information sought to be presented will be material if the applicant satisfies the court that the outcome of the previous release application might have been different had the additional information been presented then: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353, by Mason CJ. This is an objective legal standard involving a mixed question of fact and law. It requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result.

16. In the instant case, material information relevant to the grant of bail to be presented before me but not presented before Latham J is that her Honour’s assessment of the strength of the Crown case is undermined or substantially diminished by the consideration that when he was called as a witness at the committal, Witness X did not come up to proof on the tripartite meeting of him, the applicant and the co-accused on 25th November 2015.

17. The strength of the prosecution case, of course, is information relevant to the grant of bail. By dint of s 18(1)(c), an evaluation of the strength of the prosecution case is a mandatory consideration in the assessment of bail concerns by a court or other bail authority for the purpose of the application of the unacceptable risks test.

18. The strength of the Crown case is also, conventionally, information relevant to the question of whether a person accused of a show cause offence has shown cause on the balance of probabilities why his or her detention is not justified. Typically, the circumstances propounded for the purpose of showing cause and other relevant matters are viewed through the prism of the strength of the Crown case. The applicant is charged with show cause offences because sequence 6 carries a maximum penalty of life imprisonment, and it and sequences 1 and 11 involve a commercial quantity of prohibited drugs: see paragraphs 16B(1)(a) and (f).

19. It also needs to be borne in mind that there are limitations on a bail court’s ability to assess the strength of the Crown case. That assessment is made as only one of a wide range of considerations required to be taken into account whether the Court is assessing the show cause question, on the one hand, or the application of the unacceptable risks test, on the other. The bail court is not a court of trial, and the judge or magistrate exercising powers under the Bail Act in respect of serious indictable offences is not the tribunal of fact to whom questions of the determination of an accused’s person’s guilt or innocence is vouchsafed by law.

20. It needs to be borne in mind that in the context of the evaluation of the range of mandatory considerations engaged by the particular circumstances of a given bail application, the bail court has limited opportunity and limited available materials upon which to assess the strength of the Crown case. Such assessment as can be undertaken is made in what are essentially summary and truncated proceedings in a busy list. The assessment must be at best impressionistic. It is generally impossible for the Court to make any assessment of the reliability of individual witnesses, who are not called anyway. It would be pointless to attempt to do so as the question of reliability is quintessentially a matter for the tribunal of fact, whether magistrate or a jury, at the hearing or trial. Even here, where I have been taken to the transcript of the evidence of Witness X at the committal, necessarily I have not been taken to all of it, nor have I had the opportunity, it should go without saying, of hearing him or her give evidence. It is not irrelevant that whatever Witness X’s shortcomings are said to be, as Mr Finnane acknowledged, the applicant was committed for trial and the jury in due course will be entitled to assess his or her evidence and rely on at least any part of it they find persuasive.

21. This brings me to Latham J’s decision of 14th February 2017. Her Honour referred at [10] to the account in the proof of evidence of Witness X that the applicant and co-accused had met with the informant on 25th November 2015 (see [5] above).

22. Latham J agreed with the assessment of the strength of the prosecution case previously made in the Court of Criminal Appeal ( unreported, 2nd November 2016 at [45]) by R A Hulme J). Her Honour said at [14] – [15]:

“Justice Hulme’s assessment of the Crown case as “quite viable” in relation to the large commercial quantity offence said to be committed between 20 May 2015 and 16 October 2015 is one with which I agree. Similarly, the supply commercial quantity charge said to be committed on 19 January 2016 is necessarily stronger given that the substance seized from the co-offender was analysed and found to be cocaine, contained within packaging that was linked to a heat sealing device in the applicant’s home. I acknowledge that the applicant proposes to challenge the expertise of the police officer who provides the evidence for that link.

I agree with those assessments of the strength of the Crown case having undertaken an independent analysis of the evidence against the applicant. In particular, I regard the suggestion that the sale of steroids occurs in brick form for large sums of money as somewhat fanciful. It must be recognised that [Witness X’s] statement also strengthens the Crown case, assuming that the informant is accepted by the tribunal of fact as truthful and reliable. The Crown case on the additional supply cocaine charge also appears cogent, given that the police were overseeing the operation and provided the cash to pay for the cocaine.”

It’s obvious from this passage that little of Latham J’s assessment depended upon the expected evidence of Witness X. To the extent to which there was some reliance, it was qualified by the assumption that the informant was accepted by the tribunal of fact as truthful and reliable. That in one respect only Witness X appears not to have come up to proof in my judgment does not invalidate that assumption. It is still open to the jury, and a matter for them only, to accept what he or she says in whole or in part. Moreover, and importantly, given the limitations on the ability of the bail court to assess the strength of the Crown case to which I have already referred, it is necessary for such an assumption to be made. That is to say, it is appropriate to take the proofs proffered by the Crown at their highest, unless they are clearly shown to be demonstrably false or unreliable. That is not this case. Generally, it will not be appropriate to undertake a very detailed analysis of the matters relied upon to demonstrate the strength of the Crown case. I am not satisfied that the propounded additional evidence is material in the sense I have discussed.

23. Given that I am deciding whether to hear a further application under s 74 as a separate question, it is unnecessary for me to undertake my own independent analysis of the strength of the Crown case. It is perhaps, however, worth recording that I was required to make my own assessment for the purpose of the earlier release application determined by me on 8th June 2016 before Witness X’s proof of evidence had been served. Having recorded the various arguments put on behalf of the applicant which were said to demonstrate that the prosecution case was weak, I said (at pp 3-4):

"… One has to look at the whole of this alleged criminal activity in its total context and when one considers the circumstances relating to sequence 6 and the other matters in conjunction with the circumstances in relation to sequence 1, it may be quite obvious to a jury in due course that there is a connection as part of this ongoing enterprise between the events of 19 January 2016 and the other events. In any event, even if one was to completely exclude that amount of 488.8 grams of cocaine [involved in sequence 1] from one’s consideration of the case, one is still left with the earlier supplies which, taken together, amount to over 2.5 kilograms of cocaine and in respect of which if convicted the applicant is still liable to a maximum penalty of life imprisonment and is still required to show cause.

Considering that matter it is my judgment, looking at the nature of the evidence that is likely to be lead, doing the best I can in this summary hearing by reference to the detailed statement of facts with which I have been provided, that the Crown case is likely to be one of not insignificant strength. The operations against the applicant and his co-accused form part of an organised strike force involving the deployment of a variety of police resources, including lawful telecommunication interceptions and surveillance devices and extensive static surveillance of the activities of the applicant and his co-accused. There are other mundane police techniques such as talking to witnesses. All of those things, it seems to me, add up to a powerful body of evidence, even allowing for the consideration that the applicant is, of course, innocent unless and until the Crown proves his guilt of these offences beyond reasonable doubt."

24. The additional information that a witness of whom I knew nothing may not come up to proof to a jury’s satisfaction at trial is not capable of altering that assessment. That is to say, knowing what I know now makes no difference to the assessment I then made of the strength of the Crown case.

25. For these reasons, I am not satisfied that the additional information proffered or propounded might have made a difference to the outcome of the earlier release applications, or for that matter the detention application in the Court of Criminal Appeal. I am not satisfied that the applicant has overcome the bar raised by s 74(1) Bail Act. I am required by law to refuse to hear the additional application.

26. My order is the applicant’s release application is dismissed.

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Decision last updated: 19 December 2017