R v Jomaa
[2011] NSWSC 342
•06 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v Jomaa [2011] NSWSC 342 Hearing dates: 17 March 2011 & 21 April 2011 Decision date: 06 May 2011 Jurisdiction: Common Law Before: Davies J Decision: Bail refused
Catchwords: CRIMINAL LAW - bail - attempt to possess a commercial quantity of cocaine - onus on the Applicant to show bail should not be refused - assessment of strength of Crown case - probability that Respondent will attend Court - whether onus discharged. Legislation Cited: Bail Act 1978
Criminal Code 1995 (Cth)Cases Cited: Commonwealth Director of Public Prosecutions v Germakian (2006) 166 A Crim R 201
R v RS [2011] NSWSC 103
R v Cain (No. 1) (2001) 121 A Crim R 365
R v Iskandar (2001) 120 A Crim R 302
R v Kissner (Unreported - Hunt CJ at CL - 17 January 1992)
R v Masters (1992) 26 NSWLR 450
R v Medich [2010] NSWSCCategory: Principal judgment Parties: Mohamad Jomaa (Applicant)
Crown (Respondent)Representation: Counsel:
B Walker SC & Mr S Hanley SC (Applicant)
T McDonald SC (Respondent)
Solicitors:
VA Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2010/315937
Judgment
The Applicant Mohamad Jomaa was arrested and charged on 22 September 2010 pursuant to s 307.5(1) Criminal Code 1995 (Cth) that he did attempt to possess a commercial quantity of a border controlled drug (32.45 kilograms of cocaine) that was unlawfully imported into Australia. The maximum penalty for this offence is imprisonment for life and/or 7500 penalty units.
Four other persons including one Brian Anthony Blackman were charged on the same day with similar offences as part of the same Australian Federal Police operation.
The Applicant has been in custody since the date of his arrest. He now makes application for bail.
Section 307.5 Criminal Code is an offence listed in s 8A Bail Act 1978. Section 8A(2) provides:
A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the authorised officer or court that bail should not be refused.
A number of decisions have discussed the effect of the presumption against bail to be found in s 8A and corresponding sections 8B, 8C and 8D. In R v Masters (1992) 26 NSWLR 450 at 473 the Court of Appeal said:
The presumption against bail expressed in that section imposes a difficult task upon the person so charged to persuade the court why bail should not be refused. That presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail. That is the effect of a series of decisions by single judges of the Supreme Court, most recently collected and discussed in R v Kissner (Hunt CJ at CL, 17 January 1992, unreported).
In R v Kissner (Unreported - Hunt CJ at CL - 17 January 1992) Hunt CJ at CL said this:
The strength of the Crown case has become the prime consideration where s8A applies: see for example: Regina v Michael Youssef Toubya (15 November 1990); Regina v Garry Roy Morton (15 May 1990); Regina v Antonio Franco (23 July 1991); Regina v David Clyde Brown (25 July 1991), all unreported. Common to all bail applications are the circumstances that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, and usually with severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence and to support his family. Also common to most bail applications by persons charged with the offences to which s8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; an application would otherwise be unlikely to be considered in relation to such serious matter. The Legislature has, notwithstanding all those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s8A has erected. As Badgery-Parker J said: if the Crown case is a strong one, the applications for bail in which they will be sufficient to do so must necessarily be somewhat special, and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one. On the other hand, if the Crown case is not a strong one, the circumstances to which I have referred in the last paragraph will ordinarily be given greater weight, and the task of the applicant (although still a substantial one) will be correspondingly less difficult.
However, although the strength of the Crown case is the prime consideration it is not the exclusive consideration: R v Iskandar (2001) 120 A Crim R 302 at 305 [14]. One further relevant consideration is the time that the person might spend in custody before a trial date if bail were not granted: and R v Cain (No. 1) (2001) 121 A Crim R 365 at 367 [9].
In Commonwealth Director of Public Prosecutions v Germakian (2006) 166 A Crim R 201 Tobias JA with whom Ipp JA agreed endorsed the principles in the cases to which I have referred and went on to say:
[18] I pause here to observe two matters. The first is that in a case to which s8A applies, such as the present, the s32 considerations to which I have referred do not have the force that they otherwise would have in cases to which s8A would be inapplicable. As was [sic] Hunt CJ at CL observed in Kissner , by enacting s8A with respect to an offence such as the present, the legislature intended the court to place less weight upon the circumstances which are common to all applicants for bail and more weight upon the strength of the Crown case against the applicant in the particular case under consideration.
[19] Accordingly, given the heavy burden that rests upon an applicant to satisfy the court that bail should be granted in a case to which s8A applies, and that the application must be " somewhat special " if the Crown case in support of the charge is strong, the mere fact that a consideration of the relevant s32 considerations would ordinarily support the grant of bail is not of itself sufficient to displace the presumption against bail in relation to offences to which s8A applies.
[20] The second observation I would make is that, on one view of it, Hall J in [37] of his judgment, when observing that there was no evidence which established a particular capacity of the respondent to abscond or the existence of overseas contacts or substantial financial resources to enable or encourage him to do so, would seem, at least prima facie, to have reversed the burden of proof. With respect, I would have thought that to displace the presumption imposed by s8A, the onus did not lie upon the Crown to provide evidence which established a particular capacity by the respondent to abscond or that he had received any financial benefits from the alleged offence, or that he had overseas contacts or other financial resources: rather, the onus lay with the respondent to positively establish that he had no such capacity and/or that he had no link or association with the persons who supplied the drugs that he allegedly imported. ...
In the same case Basten JA suggested that it was necessary for the Applicant to demonstrate circumstances which are exceptional, special or even unusual to overcome the presumption - at [54].
The Applicant's proposal
What is proposed in the present case is (1) that the Applicant agree to have a tracking device installed on his person, (2) there be strict reporting conditions, and (3) security said to be worth approximately $2.4 million is to be made available from members of the Applicant's family.
In relation to the first matter the Applicant read an affidavit of Paul Keen, a Director of Abakus ElmoTech Pty Limited, a company which supplies personal monitoring/tracking systems. The fitting of such a bracelet to the Applicant would mean that his whereabouts could be monitored, provided he was still wearing the equipment, and the monitor of the service would be alerted if the Applicant moved beyond what are called monitor inclusion areas. The affidavit pointed out that in other cases where such devices had been employed the court had nominated a responsible Police officer to receive in real time violation reports automatically from the system by way of SMS or email.
The cost of the service is $18,000 plus GST per annum but the Applicant has agreed to bear that cost himself.
In relation to the provision of security his parents Abbas and Lamia Jomaa offer 2 properties owned by them at 25 Cook St, Turrella and 207 Wollongong Road, Arncliffe. A valuation has been provided by Mr and Mrs Jomaa for each of the properties showing that at 24 November 2010 the property at 25 Cook St, Turrella was worth $900,000 and the property at 207 Wollongong Road, Arncliffe was worth $1 million.
Although the title searches show a mortgage to the National Australia Bank there is evidence that the loan from that Bank has been paid out by a company called Jomaa Company Pty Ltd said to be owned by a brother of the Applicant, Koder Jomaa but also, apparently, the trustee of the Jomaa Family Trust. The titles also show a caveat in favour of that company and attached to a copy of the mortgage to that company is what amounts to an Epitome showing a borrowing of $1,512,910.65 for a one year period at a lower interest rate of 10% per annum. The proposal put is that Jomaa Company Pty Ltd will lift its caveat to give priority to the charge in favour of the State. There is an earlier caveat on each property about which there was no evidence.
There is also an offer by Fatima and Rafic Saab (Fatima is the older sister of the Applicant) to offer the property owned jointly by them at 4 Knoll Avenue, Turrella. They say that the property is worth about $800,000 and has a mortgage of $275,000 to the ANZ Bank. No approach has been made to the ANZ Bank to see if it will consent to the further encumbering of the property.
Objection was taken by the Crown to the Saabs being able to place a value of about $800,000 on the property when they were not qualified to do so. Mr Saab said he had been told the value by a named estate agent a week or two before he gave evidence. I have no doubt that his evidence in that regard was truthful. I permitted the evidence to be given in the circumstances of a bail application after I had heard a description of the property. The figure did not strike me as unlikely.
Facts
On 17 September 2010 Australian Customs and Border Protection Service had detected in an unopened shipping container on a ship berthed at Port Botany a sports bag concealed within the container. The container was unloaded and opened. Inside were 2 blue Adidas branded sports bags containing 49 individually wrapped blocks. Those blocks contained a compressed white powder which was ultimately found to be cocaine. The gross weight of the cocaine was 48.22 kilograms.
The cocaine was removed and an inert substance substituted. The sports bags were then returned to the container. This was thereafter placed under physical and electronic surveillance by the AFP and Customs.
On 22 September 2010 at about 1:00am the sports bags were removed from the container which had been moved to the Macarthur Intermodal Shipping Terminal at Stonny Batter Road, Minto. The vehicle used in the removal of those bags (a white Holden utility) was then driven to Prendergast Avenue, Minto and parked outside 12 Bigge Way, Minto. That address is where one of the other co-accused, Bronwyn Reely resides.
At various times on 19 September and 22 September there were phone calls between the co-accused Blackman and the Applicant.
On 22 September 2010 the Applicant and Blackman were seen to alight from a grey Holden Calais vehicle outside 12 Bigge Way and approach the Holden utility which had transported the sports bags from the shipping terminal. The Applicant was seen to remove one of the sports bags containing the cocaine substitute. Subsequent fingerprint analysis identified the Applicant's left palm print on the passenger side of that vehicle.
The Applicant then placed the sports bag into the boot of the Holden Calais. Subsequently Blackman removed the second sports bag from the Holden utility and handed it to the Applicant who placed it also in the boot of the Holden Calais.
That vehicle then drove away from the premises. A short time later intercepts revealed the sound of one of the sports bags being moved and a zipper being activated on the bag. Minutes later Blackman said: "Fucking yes, that's (indecipherable) it".
About 2 minutes later intercepts revealed the sound of a zipper being activated on one of the bags followed by the Applicant saying:
Oh fuck, there's a tape recorder down here. There's a fucking tape recorder. Nah, nah, stop it."
This was followed by laughter, indicating to the police that this was a joke by the Applicant.
The vehicle was driven from Minto to Riverwood and, when at the intersection of Hannans Road and Bonds Road, Riverwood, it was stopped by the AFP who then arrested the Applicant, Blackman and another co-accused, Christodoulou , who was driving and whose vehicle it was.
The Applicant
The Applicant is a Lebanese born Australian citizen aged 34 years. He is married and works in the family business known as Sydney Freezers at 120 Turrella Street, Turrella. This business sells frozen foods to other wholesalers and businesses.
There are no children from his marriage but he has a child from a previous relationship. There is a considerable dispute about how close he is to that daughter and how frequently he sees her. His wife said it was once or twice a month. One of the police officers monitoring the Applicant said there were about 3 - 4 occasions from May 2009 to September 2010 when he saw the child.
The Applicant is one of six children of his parents who immigrated to Australia from Lebanon in 1976. His parents are currently in Lebanon where they have been for a number of years. One of the Applicant's brothers gave evidence that they were now too old to travel. The Applicant's brother Koder has lived in Lebanon since at least August 2010.
The Applicant has no prior criminal convictions.
Strength of the Crown case
As this is a bail application the assessment of the strength of the Crown case must be made on the basis of the material, largely contained in the documents tendered by the Crown, without there being any ability to test witnesses or the evidence. Nevertheless, the evidence, prima facie, discloses a reasonably strong Crown case against the Applicant. The following matters indicate this:
(a) The sports bags hidden in the container contained a large quantity of cocaine.
(b) In the early hours of the morning following the removal of the container to the shipping terminal the sports bags were removed from the container and driven to Reely's residence at 12 Bigge Way, Minto.
(c) In the afternoon of that day Blackman and the Applicant were observed to arrive outside the residence. The Applicant was observed to lift up the tarpaulin of the Holden utility and remove one of the sports bags. His palm print is on the Holden utility. He was observed to place that sports bag into the boot of the vehicle in which he had arrived. Blackman was observed to retrieve the second sports bag from the Holden utility and hand it to the Applicant who thereupon placed it in the vehicle in which they had arrived.
(d) The listening devices recorded the conversations which I have set out in paras [23] and [24] above. The conversations taken together are capable of it being inferred that Blackman and the Applicant knew what they expected to find in the bags and that because it was illegal someone might have been recording their conversations in relation to it.
(e) The bags were still in the Holden Calais at the time it was stopped by the AFP and the Applicant and others were arrested.
One matter that may be of some significance in undermining the Crown case is the absence of any DNA from the Applicant from any exhibits or crime scene sites. On the information that I have it is difficult how significant that matter is but it must be set against the matters that I have referred to above which appear clearly to place the Applicant at the relevant locations and in the presence of the sports bags.
Although the Applicant has no other convictions, he was not a stranger to involvement or intended involvement with drugs. Lawfully recorded intercepts disclose conversations between the Applicant and Blackman on 24 June 2009 when the Applicant was a patient at Prince of Wales Hospital. These conversations suggest that the Applicant and Blackman were discussing the importation into Australia of the drug Speed. Those conversations show also that the Applicant's brother Koder was known to Blackman and that Blackman had been in contact with Koder. The conversation included the Applicant asking Blackman how much he would get from the proposed importation. It is accepted that no charges were laid in relation to that matter.
In my opinion, the Crown case is a reasonably strong one against the Applicant.
Other considerations
Although, as I have noted, the strength of the Crown case is the prime consideration, it is also necessary to have regard to the matters in s 32 of the Act. Because I have found that the Crown case is a reasonably strong one I consider that the Applicant has a heavier onus than would otherwise be the case in relation to relevant s 32 considerations.
(a) Delay
The Applicant points to the fact that the committal hearing is set down for 10, 11 and 12 October 2011. Because, it is submitted, it is likely the Magistrate will reserve his or her decision, it is unlikely that the matter will proceed to trial before June 2012. Since the Applicant has been in custody since September 2010 he would, by that stage, have spent some 21 months in custody awaiting trial.
Since reserving my decision in the matter I received correspondence from the Commonwealth DPP (copied to the Solicitor for the Applicant) setting out the results of enquiries made of the Downing Centre District Court Criminal Listing Directorate. The information is that if the Applicant was committed for trial in mid-October 2011 it would be likely that a date would be given for a 4 week trial in the District Court in February 2012.
Evidence from the solicitor with the carriage of the prosecution at the Commonwealth DPP shows that there has been substantial compliance by the DPP in serving the brief and other statements. The Applicant makes no complaint on this application about any delay on the part of the DPP.
In all of these circumstances, and even if the trial did not take place until June 2012, I do not consider that there is any matter arising out of a factor of delay that would entitle the Applicant to special consideration in this regard. It seems to me also to be a matter of some significance that the Applicant first applied for bail in this Court on 14 October 2010. When the matter came before Harrison J on 25 November 2010 it was adjourned to 16 December (no reasons for that appear on the file) and when the matter came before Fullerton J on 16 December 2010 the bail application was withdrawn. The present bail application was filed on 1 February 2011. No explanation was provided for why the earlier bail application was adjourned and then withdrawn.
One of the cases put forward by the Applicant to justify bail on condition of electronic monitoring was R v RS [2011] NSWSC 103. A reading of that judgment discloses that the case was held by Buddin J to fall into an exceptional category because of what he described as the inordinate period of time which the respondent already had spent and would be required to spend in custody awaiting the finalisation of the proceedings against him if bail were to be refused. Buddin J said that it was likely he would have spent 3 years in custody before trial - see at [21] and [26]. In my opinion, there is no relevant comparison to the situation in the present case.
(b) Protection of witnesses
The Crown points to the fact that there is an Apprehended Violence Order in existence against the Applicant from his former partner. The Crown also points to what is contained in the COPS report provided to me where there are various expressions of opinion by those making entries in the COPS report suggesting that the Applicant is to be treated with caution, that he may be aggressive and abusive and that he may be in possession of one or more firearms.
Whilst in no sense minimising the seriousness of domestic violence, there is no evidence in the present case of the basis upon which the Applicant's ex-partner obtained the AVO. Nor is it, in itself, any indication that the Applicant is or might be a violent person generally. Further, the information in the COPS material is piecemeal and contains conclusions about this matter without satisfactory supporting material.
Nothing in the material that I have suggests that there is a risk to witnesses if the Applicant were released to bail.
(c) Flight risk
The Applicant is prepared to surrender his passport which is an Australian passport. During the hearing of the application I asked if the Applicant had or was entitled to a Lebanese passport since he was born there. I was informed that he does not have a Lebanese passport. There was a dispute, however, about whether he was entitled to one. In my opinion, where the onus is on the Applicant to show that bail should not be refused, it was incumbent upon the Applicant to prove that he was not entitled to any passport other than his Australian passport.
There is no doubt that the Applicant has strong family connections in Lebanon. His parents now live there and, it would seem from the evidence of his brother Abbas, that they do not intend to return to Australia because they are too old to travel. In addition, the Applicant's brother Koder has lived in Lebanon since August 2010 and before that had spent considerable time there. The Applicant clearly has a close relationship with Koder which can be judged not only from Koder's offer to postpose priority for the $1.5 million he lent to his parents on the proposed security properties, but also by the telephone calls passing between the Applicant and Koder, particularly on the morning of the day the sports bags were picked up by the Applicant and, perhaps, more significantly, by the call the Applicant made to Koder within minutes of having collected the bag. I note again that there also seems to be some association between Koder and Blackman, and Blackman spoke of Koder to the Applicant whilst discussing the plan to import Speed.
In addition, I place some, but not great, weight on what appears in the COPS report concerning the transfer by the Applicant of s ome $350,000 in cash overseas in February 2008 or thereabouts. I note also that the Applicant's wife was charged with illegally taking 15,000 from Australia although she was subsequently acquitted. I think that this is a matter of minimal significance f or the purposes of this bail application.
Despite the evidence of the Applicant's wife about the way the Applicant feels about Lebanon, I do not think it could be said that he has no interest in travelling to Lebanon particularly because his parents reside there and are elderly, and because of the presence of his brother Koder there. Those close family connections must be seen in the light of the fact that the maximum penalty for this offence is life imprisonment and if convicted the Applicant will inevitably spend a lengthy period of time in gaol, likely to be in excess of 10 years. There is an incentive to flee to a place he knows where close family members reside although I accept that that would mean being separated from his daughter.
Two other matters cause me some concern in relation to this issue. The first concerns the Applicant's undoubted close association with Blackman. The evidence discloses that Blackman was at relevant times a member of the Lone Wolf Motorcycle Club. In turn, he is an associate within that Club and by telephone records of Erkan Keskin who has been charged and is awaiting trial on offences of producing false travel documents. Secondly, one of the Applicant's brothers, Ali Jomaa, was convicted in 2004 of being in possession of and using false instruments including a false driver's licence. I have concerns by reason of the Applicant's association with those persons that he thereby may have access to false identification and travel documents which would enable him to leave Australia much more easily than a person without such contacts.
No doubt because of these factors the Applicant proposes that he should be electronically monitored whilst on bail. My attention has been drawn to 2 recent cases where electronic monitoring has been imposed as a bail condition. I have made reference already to R v RS but there is another factor not mentioned in that case to which I will refer in a moment. The other case was R v Medich [2010] NSWSC 1488.
Some evidence was given by Officer Gavyn Tomkinson from the AFP about enquiries that he had made of Paul Keen, the Director of Abakus ElmoTech and with the police officer who was dealing with the monitoring of Mr Medich. His evidence was challenged by Mr Walker SC who appeared for the Applicant as lacking any precision in terms of times and distances. There was some force in the challenge made to this evidence.
Nevertheless, the evidence disclosed that the electronic monitoring system works by having three zones. There is the permitted zone in which the person monitored is entitled to be. There are then exclusion zones where the person is not permitted to be, and around the exclusion zones there are warning zones which, if the person enters them, results in a message or signal being sent to the monitor that the person monitored is approaching the exclusion zone.
What was not made clear on any of the evidence was how small the permitted zone was able to be for the operation of the equipment. That issue was of considerable significance because the Applicant's home address at xxxxxx Brighton-Le-Sands is within a relatively short distance of the international airport (perhaps a few kilometres) and is in close proximity to Botany Bay. In addition, the usual workplace of the Applicant in Arncliffe is also within a short distance of the airport.
What was asserted, although in somewhat unsatisfactory terms, by Officer Tompkinson was that the vicinity of the airport and Botany Bay was so close that the exclusion and warning zones around those places would be tripped frequently by the mere fact that the Applicant was at home or at work or travelling between the two.
Officer Tomkinson also drew attention to what he had been told in relation to the monitoring of Mr Medich that there were constant false alarms and human error where the person monitored had omitted to wear both parts of the monitoring device.
The evidence was left in a very unsatisfactory state and I do not have any clear information about whether it would be feasible to establish permitted zones in areas as close to the airport (in particular) as the Applicant lives and works without there being frequent false alarms. Again, bearing in mind that the onus is on the Applicant to show that bail should not be refused, I do not consider that the Applicant has discharged his onus of showing that electronic monitoring would be a secure and feasible system to release him to bail. The evidence about the monitoring was, in the first instance, led by the Applicant, but with no consideration of the specific matters that were quite legitimately raised by the Crown through Officer Tomkinson. Even if I had not found that the Crown case was a reasonably strong one I would not have considered that the onus of proof had been satisfied by the Applicant in this regard.
In R v RS there was not only the exceptional circumstance of the 3 year delay in the matter coming to trial but also, at the time Buddin J considered the application, the person charged had been at large in the community for 2 months and had observed his bail conditions. He was required to live on the Northern Peninsula and to report to Dee Why Police Station. That is a considerable distance from any point of international departure so that the issue raised by the width of the zones in the present case had no application there. His observance of bail conditions for the 2 months was considered important by Buddin J.
In relation to Medich it was not shown that he had any family other than in Sydney. Although he had business reasons for travelling overseas he had voluntarily attended at his solicitor's office for the purpose of being arrested. It is apparent from the judgment that he was released to bail on various conditions including electronic monitoring because Price J found that the Crown case was not a strong one - see at [52].
The other principal matter put forward by the Applicant is the provision of the various properties as security for his attendance at Court. Although the Crown points to the fact that Jomaa Company Pty Ltd still has a caveat on the property the evidence tends to suggest that that caveat will be lifted and the priority of the mortgage will be postponed to the Crown's interest in those 2 properties.
I cannot at the moment be satisfied that the 3 rd property at 4 Knoll Avenue, Turrella will be available because no consent has yet been obtained from the First Mortgagee. However, I accept the submission on behalf of the Applicant that it can be made a condition of bail that the properties be offered as security to a certain sum so that if that does not occur the Applicant will not be released to bail.
I am not satisfied in the face of a reasonably strong Crown case, and in circumstances where the street value of the cocaine involved is estimated to be between $22-$25 million that the provision of security to the extent of $2.4 million (assuming that is its value) is adequate to serve as a sufficient deterrent to the Applicant absconding.
Conclusion
In the face of a reasonably strong case the Applicant had a heavy onus to show that the s 32 matters meant that bail should not be refused. The most significant of those was the consideration in s 32(1)(a). In my opinion even if there had not been a reasonably strong case the evidence was such that I would have little confidence that the Applicant would appear in court to answer the offence charged when regard is had to the maximum penalty for the offence, the Applicant's continuing family links in Lebanon, and the association of him and his brother Koder with the co-accused Blackman. When the strength of the Crown case is considered the Applicant fails to satisfy me that bail should not be refused.
For these reasons, bail is refused.
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Decision last updated: 09 May 2011
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