R v Ian David Lazar

[2018] NSWSC 1333

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ian David Lazar [2018] NSWSC 1333
Hearing dates:	8 August 2018
Date of orders:	15 August 2018
Decision date:	30 August 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The application for variation is dismissed
Catchwords:	BAIL – application for variation of bail conditions – fraud – Commercial Financial Dealings – whether conditions onerous
Legislation Cited:	Bail Act 2013 (NSW) ss 17, 20A Crimes Act 1900 (NSW) ss 126, 178A, 178BA, 192E, 192G, 193B, 319
Category:	Principal judgment
Parties:	Regina (Crown) Ian David Lazar (Applicant)
Representation:	Counsel: P Strickland SC (Applicant)   Solicitors: B Ko (Crown) P Musgrave (Applicant)
File Number(s):	2018/171912
Publication restriction:	Nil

Judgment

Background

1. The applicant seeks variation of bail conditions associated with commercial, financial transactions or dealings which I will refer to in this judgment as the “CFD” conditions. Primarily the applicant seeks removal altogether of the CFD conditions and secondarily, that they be modified to reduce the workload associated with the conditions in their current form.

2. The charges to which these conditions relate comprise a charge of obtain a property at Numbuca Heads dishonestly in contravention of s 178BA of the Crimes Act between July and December 2003, an associated charge of knowingly deal with the proceeds of crime between 27 October 2005 and 8 February 2011 in contravention of s 193B(2) of the Crimes Act and a further associated charge that the applicant, in contravention of s 178A of the Crimes Act, received a valuable security, namely the Certificate of Title of the relevant property (“the Hewitt matters”). The police facts indicate a complex and sophisticated series of “transactions” which underpin this charge and involve a now deceased elderly owner of the property.

3. There are also charges in relation to Mr and Mrs Croker pursuant to s 192E(1)(b) of the Crimes Act that between 1 February 2010 and 1 July 2011, the applicant did by deception, dishonestly cause financial disadvantage to Mr and Mrs Croker, that between 1 June and 30 June 2010, he stole cattle, the property of Jeff Soleay in breach of s 126 of the Crimes Act and that he made a dishonest statement regarding a promise to pay for something pursuant to s 192G(a) of the Crimes Act (“the Croker charges”). The police facts outline a complex financing arrangement with which the applicant was involved.

4. There is a charge of stealing a Lexus motor vehicle, the property of Kevin Jacobsen Pty Ltd (“the Jacobsen matter”). The Crown facts sets out a case that the applicant claims to have a dealer’s licence and would make further repayments and then sell the car for the owners, with Toyota finance to be paid out, with profits to the owners. The vehicle was instead transferred to others in a complex series of transactions.

5. There is also a charge of attempt to pervert the cause of justice in breach of s 319 of the Crimes Act between August and September 2012, which is of broader relevance on the question of bail concerns. The police facts outline that the applicant had a role in plans to bash or interfere with a police officer.

6. The Crown tendered the facts sheets dealing with the charges, as well as a copy of the indictments and/or CANs and some material that provided, by way of background, the history of the charges and the various bail conditions that have been imposed from time to time since the accused was first granted bail in January 2015 by then Magistrate Buscombe.

7. I was informed by senior counsel for the applicant that the charges are the subject of contested hearings, including contested pre-trial issues to be argued in February 2019 with allocated hearing dates between May and October 2019. This means that between now and the ultimate disposal of the matters, a period of something in excess of 14 months will ensue to which the current bail conditions will apply.

8. It is necessary to set out some of the background which has informed and led to the current form of bail conditions.

9. The current CFD conditions in issue were re-fashioned after proceedings in May 2018 in the District Court for alleged breach of bail. The breach of bail allegation failed, however the existing CFD conditions were modified by Judge Hunt based on what appears to have been fairly extensive argument as to the merits of and problems with the then current CFD condition(s).

10. Some other charges involving other individuals did not pass committal phase. One (relevantly) involved an allegation of causing financial disadvantage to a Mr Dib, a similar charge in relation to a Mr James, and a charge relating to a Ms Barbaro regarding a motor vehicle. Senior counsel for the applicant made the submission that I should entertain doubt that the CFD conditions are reasonably necessary, particularly given the way many other charges brought have failed to pass committal or have been withdrawn.

11. Initially the applicant was prohibited from conducting any commercial financial dealings but in February 2015 the CFD condition was varied to read “not to engage in financial transactions except in his own name or those on a list served personally on the OIC”.

12. A case was made for breach of bail in early 2016 when material came to the attention of the police that the applicant was conducting financial dealings using a pseudonym in breach of his bail conditions.

13. In June 2016 there was a breach of bail finding by Magistrate Forbes and the applicant was incarcerated.

14. In August 2016 the applicant remained bail refused despite a release application made to Magistrate Farnan who committed him for trial on a number of the charges, including fraud and stealing.

15. In October 2016 Supreme Court bail was granted by Harrison J with various conditions attached which were associated with a diagnosed current psychiatric illness which apparently required residence at a mood disorders clinic on the North Shore. One of the conditions required that the applicant approach the Supreme Court for any variation of bail conditions.

16. On 7 December 2016 a bail variation application was heard by Bellew J. The applicant was released on conditions that included a refined CFD condition as follows:

“He is not to engage in any commercial financial dealings whatsoever, except those commercial financial dealings which are disclosed to, and approved by, the officer in charge of the investigation, noting that such approval is not to be unreasonably withheld”.

17. On 1 July 2017 an application was made to the Sydney District Court to vary bail conditions to delete the CFD condition. Judge Blackmore refused the application.

18. On 4 May 2018 a CAN was filed for breach of bail and this was heard on its merits in a contested hearing before Judge Hunt. Judge Hunt concluded that the breach was not established. There was also a failed argument mounted again by the applicant to delete the CFD condition altogether. However Hunt J found special circumstances were such as to allow amendment to the CFD condition, as it became evident during debate that there was some uncertainty around the then current version.

19. The wording of the current CFD condition (determined by Hunt J) was as follows:

“8A.   The accused is not to engage, directly or indirectly, in any commercial financial dealings except those which are disclosed to an approved by the OIC, noting that such approval is not to be unreasonably withheld.

8B.   When complying with his disclosure to the OIC as per condition 8A, the accused is required to provide the following information to the OIC:

a.   The full name and ABN/CAN of any company/business involved in the commercial financial dealing;

b.   The name of any third parties including but not limited to borrowers or funders or consultants involved in the commercial financial dealing;

c.   The full name of all individuals involved in the commercial financial dealing;

d.   The identity of any company or organisation the accused is acting on behalf of, and identify his role within this company or organisation;

e.   Any further information reasonably required by the OIC to approve the financial commercial dealing.

8C.   The accused is only to use on email address, currently [email protected] when conducting commercial financial dealings. Any changed email address is to be provided to the OIC prior to the address being used for conducting commercial financial dealings.

8D.   The accused is only to operate under his name, Ian Lazar, when conducting or engaging in commercial financial transactions.”

20. The applicant seeks deletion of 8A and 8B or extensive modification to the parameters of 8A and 8B.

Relevant provisions of the Bail Act

21. Section 17 provides that a bail authority must always assess bail concerns:

17 Assessment of bail concerns

(1) A bail authority must, before making a bail decision, assess any bail concerns.

(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.

22. This applicant relevantly presents a risk that he would, if released, commit a serious offence. In my view that risk continues to be present.

23. Section 20A sets parameters for imposition of bail conditions:

20A Imposition of bail conditions

(1) Bail conditions are to be imposed only if the bail authority is satisfied, after assessing bail concerns under this Division, that there are identified bail concerns.

(2) A bail authority may impose a bail condition only if the bail authority is satisfied that:

(a) the bail condition is reasonably necessary to address a bail concern, and

(b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and

(c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and

(d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and

(e) it is reasonably practicable for the accused person to comply with the bail condition, and

(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

(3) This section does not limit a power of a court to impose enforcement conditions.

The application

24. Senior counsel for the applicant has argued that the conditions should be deleted altogether and that sufficient conditions to meet bail risks are contained in the current 8C and 8D. Some negotiation regarding the proposed re-wording of conditions 8A and 8B has been pursued but agreement was unable to be reached.

25. The version of 8A and 8B proposed by the applicant would effectively delete the requirement that the accused provide CFD information to the OIC in relation to any CFDs involving the applicant as principal, or through any entity.

26. The applicant has also requested an additional condition be imposed that:

“The disclosed information must not be published or disclosed other than to the ODPP or the police in the proper execution of their duty which does not include disclosing the disclosed information to the media.”

Evidence relied upon by the applicant

27. The applicant tendered an affidavit of Penelope Musgrave dated 18 July 2018, a certificate of motor vehicle registration relevant to the Jacobsen matter, the criminal record of a Mr Helal Safi who has some relationship to the Jacobsen matter and a medical report from Stephen J Woods evidencing that the applicant suffers from bipolar disorder which is aggravated by “sustained exposure to major ongoing stressors”, most particularly, “the perceived fear and/or threat of being returned to custody if he is in breach of his bail”.

28. Ms Musgrave’s affidavit provides some background information and deals with the demands of compliance with the CFD conditions that have been in place since Judge Hunt’s orders in May 2018.

29. Paragraph 31 of the affidavit deposes to the applicant’s job description as follows:

“a. Accesses and introduces loans that are not regulated by the National Consumer Credit Protection Act 2009;

b.   Assists and acts for lenders in a loan asset management role, including loan recovery and debt negotiation;

c.   Introduces potential business/commercial opportunities to third parties, and;

d.   Acts for lenders and other commercial entities in a general advisory capacity. “

30. He is also a licensed gem trader and buys and sells watches.

31. Ms Musgrave says that each application for approval of proposed CFD involves multiple emails between herself and the applicant, verifying parties and timeframes. She estimates that the work involved costs her client around $2,000 a week as she has been retained to assist the applicant with bail compliance. It is estimated she spends about an hour a day on bail compliance. There is a concern that the costs will continue until determination of the matters in October 2019. She estimates the overall cost to her client will end up around $150,000.

32. There is also concern that a request by the OIC to allow for a 72 hour turn around for approval creates difficulties because a number of the applications need to be dealt with in a quicker turnaround time given the dynamic nature of the work the applicant wishes to continue to pursue.

33. Whilst a complaint was made in the written submissions that there had been an incident of “disclosure of confidential information on blogs and to the media”, no evidence was provided to support that assertion in Ms Musgrave’s affidavit or anywhere else. This assertion underpins the non-disclosure condition sought by the applicant.

34. Some correspondence appended to the affidavit set out attempts at negotiation regarding the CFD conditions. In a letter dated 6 July 2018 there is an assertion that the applicant “has and continues to sustain financial losses because of the imposed CFD restrictions” however there is no evidence regarding this allegation and its basis other than a mention of a refusal by the OIC to approve some transactions involving a Michael O’Sullivan who was a person identified in the letter as having been the subject of a ban on provision of financial services at a time or times relevant to the CFD condition.

Submissions of the applicant

35. Oral submissions made on behalf of the applicant emphasised what was said to be the onerous and unreasonable nature of the CFD conditions. It was argued that there were weaknesses in the Crown case in respect of each of the charges. The long time period for which the condition would remain in place was also emphasised, as well as the potential vagaries in the CFD conditions causing stress to the applicant.

Crown submissions

36. The Crown opposed the amendments, arguing that the arrangement has worked to date, other than the issue that arose in May 2018, and the condition in the form currently set by Hunt DCJ has removed the uncertainty that arose.

37. The CFD orders are appropriately protective of the bail concerns, namely the risk that the applicant will engage in other serious offending in the way he conducts his commercial financial dealings.

38. There was no evidence before the court that the conditions were unworkable or unduly onerous.

39. The additional proposed condition was inappropriate as there is no power in the Bail Act to impose conditions on persons other than the applicant.

40. The Crown disputed that its case(s) against the applicant were “weak”, although conceded they were complex.

Decision

41. I accept the Crown submission that the cases are complex. I do not accept that they are doomed to fail or have insurmountable hurdles to success.

42. In my view the CFD conditions are reasonably necessary to address the bail concern and are relevant, reasonable and proportionate to the series of offences for which bail is granted. Whilst arguably onerous, it is no more onerous than necessary to address the bail concern in relation to which it is imposed.

43. There is no evidence before me to justify the additional condition sought by the applicant regarding “non-disclosure” even if I had power under the Bail Act to do so, which I doubt.

44. The application for variation is dismissed.

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Decision last updated: 02 July 2019