R v Jabal

[2019] ACTSC 158

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Jabal

Citation:

[2019] ACTSC 158

Hearing Date:

14 June 2019

Decision Date:

14 June 2019

Reasons Date:

17 June 2019

Before:

McWilliam AsJ

Decision:

Application dismissed.

Catchwords:

Criminal law – Bail – Application to vary bail conditions – Where the accused was charged of serious drug trafficking offences – Where the accused intends to visit Lebanon to care for a family member – Where there is no extradition treaty between Lebanon and Australia – Where the Australian Taxation Office has raised substantial taxation debt against the accused – Whether surety offered by the accused mitigates flight risk – Application refused

Legislation Cited:

Bail Act1992 (ACT) s 19

Criminal Code (Cth) ss 11.2A, 307.2

Parties:

The Queen (Crown)

Youssef Jabal (Accused)

Representation:

Counsel

M Keks (Crown)

S Whybrow (Accused)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Accused)

File Numbers:

SCC 122 of 2018; SCC 130 of 2018; SCC 82 of 2019

McWilliam AsJ

1.        On 14 June 2019, I heard an application for a variation to bail conditions as duty judge. At the time I indicated that the application was refused but due to the lateness of the day, reasons for the decision would be provided at a later date. These are my reasons.

2.        The accused is charged with a number of offences, some of which have been transferred from the Magistrates Court. The two which are most serious and on which the application before the Court focused are:

(a) Importing a marketable quantity of a border controlled drug (MDMA) by joint commission between approximately 28 August 2017 and 6 December 2017, contrary to s 307.2 of the Criminal Code (Cth) (Criminal Code) by virtue of s 11.2A of the Criminal Code (CC18/13830); and

(b) Importing a commercial quantity of a border controlled drug (MDMA) by joint commission between approximately 13 November 2017 and 30 November 2017, again contrary to ss 11.2A and 307.2 of the Criminal Code (CC18/13829).

3. Each charge carries a maximum penalty of 25 years’ imprisonment. The accused is alleged to have played the role of financier in importing 2.2kg of the said drug. The accused has previously been granted bail. By the present application under s 19(1)(b) of the Bail Act1992 (ACT), the accused seeks to vary conditions of the grant of bail to enable him to travel to Lebanon for a period of two weeks to visit and assist his sister, who has recently undergone surgery in relation to appendicitis.

4. The Court, in determining whether to vary the conditions of a bail order, has a wide power to ‘have regard to any information it considers relevant and reliable’: s 19(2). The accused relied on the affidavit of his solicitor, an affidavit affirmed by his mother indicating that she would be willing to provide the equity in her home as surety, and a medical certificate prepared by a Dr Maarouf Hoteit in Lebanon.

5.        The Crown tendered a bundle of documents, including among other things the transcripts of a previous application to vary bail conditions made in July 2018 and of the committal proceedings in the Magistrates Court in April 2019, the criminal history of the accused and various bank records. The Crown further relied on correspondence from the Australian Taxation Office to the effect that it has raised a taxation debt against the accused personally in the sum of more than $2.5 million. This debt is apparently in the process of being disputed by the accused. The Crown also tendered confirmation from the Commonwealth Attorney-General’s Department that there is no extradition treaty with Lebanon.

6.        Counsel for the accused argued that the presumption of innocence applies and that the conditions of bail should be the least restrictive conditions to ensure he attends for trial. Counsel for the accused argued that the case against the accused is weak, that the accused has strong family ties to the Territory, he has a history of complying with his bail conditions, there is a genuine need to travel to Lebanon due to his sister’s illness and his mother has volunteered to provide security which has a value of $500,000 (on her estimate). In those circumstances any risk of the accused failing to return to Australia could be ameliorated.

7.        The accused relied on other submissions about a co-accused being permitted to visit Lebanon and returning to Australia but I did not consider the fact that someone else had behaved in a certain manner to be relevant to the circumstances and risk of the accused.

8.        The Crown opposed the application, arguing that the accused was a clear flight risk and that no surety or other conditions would be able to mitigate the risk of the accused failing to return to Australia after visiting his sister. Considerable time was spent adducing evidence as to the nature of the case and the allegation that the accused was suspected to be a high-ranking member of a criminal syndicate. The Crown disputed the accused’s view of the case. It pointed to the fact that the committal was opposed and the magistrate who committed the accused was satisfied the evidence was capable of establishing the case against the accused, although it was accepted that the threshold on committal was a low one.

9.        The Crown drew attention to the fact that a similar application had been made before Elkaim J in July 2018 and had been refused, at a time when the charges in relation to drug importation were yet to be laid. Now that the indictment had been presented and the matter is expected to be heard in November 2019, the risk of the accused failing to return is heightened.

10.      The Crown alleged that the accused has ties to Lebanon, both familial and financial, and that these matters combined with the seriousness of the charges alone are sufficient for the Court to refuse to vary the accused’s bail conditions.

11.      Moreover, the Crown has no way of monitoring the accused should he leave the country, and Lebanon has no extradition treaty with Australia. The Crown relied on the significant taxation debt as being one more reason to leave the jurisdiction, and although it was presently being contested, the outstanding charges and the dealings with the ATO are very significant incentives for the accused not to return to Australia.

12.      The Crown submitted there really is no compelling reason for the accused to travel to Lebanon. Accepting the contents of the medical certificate, the fact that the accused’s sister had need of assistance did not establish that the accused is the only person who can provide such assistance.

13.      The Crown raised a further argument about the strength of connection between the accused and his sister based on the fact that he had not electronically transferred money to her. I rejected that submission as being entirely without logic and irrelevant to the issue before the Court.

14.      I otherwise accepted the submissions of the Crown as set out above. In my view the risk was just too great to permit a variation of bail conditions that would allow the accused to leave the country with no supervision and no means of forcing his return. Serious charges have been brought and I do not accept that the case is weak having read the case statement against the accused. The nature of the charges are such that there is a real incentive for the accused to remain in Lebanon, notwithstanding that he does have strong family ties in Canberra. The amount offered as surety does not mitigate that risk.

15.      I have had regard to the reason for travel as part of assessing the accused’s interests, but the nature of the sister’s illness is one that is temporary and I was not satisfied that those personal circumstances outweighed the risk. However, this is not to suggest that if the sister’s condition changed in future, my present view would bind any future consideration of a similar application.

16.      For these reasons, I determined to refuse the application and the order is as follows:

The application filed 11 June 2019 is dismissed.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: