R v Kelu; R v Millner (No 7) - [2023] NSWSC 1543

Supreme Court

New South Wales

Medium Neutral Citation: R v Kelu; R v Millner (No 7) [2023] NSWSC 1543
Hearing dates: 13 July 2023
Date of orders: 13 July 2023
Decision date: 13 July 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The detention application in respect of the offender, Cedric Adrian Millner, is granted.

Catchwords:
CRIME — Bail — Detention application – where offender works as a complex care worker and seeks time to hand over care – where offender asserts the need to obtain a psychiatric opinion – whether special or exceptional circumstances exist –application granted

Legislation Cited:
Bail Act 2013 (NSW), ss 22(1), 22B
Criminal Code Act 1995 (Cth), s 135.4

Cases Cited:
Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173
Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171

Category: Procedural rulings
Parties: Rex
Jonatan Kelu
Cedric Adrian Millner
Representation:
Counsel:
G Craddock SC with B Stevens (Crown)
M Avenell SC (Mr Kelu)
S Hall SC (Mr Millner)
Solicitors:
Commonwealth Director of Public Prosecutions
Bannisters Lawyers (Mr Kelu)
KPW Lawyers (Mr Millner)

File Number(s): 2018/32462 and 2018/67357
Publication restriction: None

REVISED EX TEMPORE Judgment

On 11 July 2023, the offender, Cedric Adrian Millner, was convicted of two counts of conspiracy to defraud the Commonwealth contrary to s 135.4 of the Criminal Code Act 1995 (Cth). The offending conduct occurred in 2012 and 2013.
The jury must be taken to have accepted that the offender conspired with Mr Jonatan Kelu with the intention of dishonestly causing a loss to the Commissioner of Taxation. Specifically, the loss was the amount of Goods and Services Tax (“GST”) received by a company, Investrix, on the sale of gold to Focus Metals during the period 2012 to 2013. This amount was approximately $40 million.
Obviously, it will be necessary to make findings on sentence but, by way of brief overview, the offender, in company with Mr Kelu, must be taken to have established a scheme in 2012 which involved the purchase of pure gold from a gold company, ABC Gold Bullion (“ABC”), melting it and then selling it to another company, Focus Metals (which operated out of Melbourne) in a different form. When the gold was purchased, it was pure gold and GST was not payable on the purchase. When the gold was sold, it was in a different form: it was not pure gold and it was asserted to be second-hand. When it was sold to Focus Metals, Focus Metals was required to pay (and did pay) 10% GST on each of the twice weekly sales.
In 2012, the offender and Mr Kelu arranged for five persons, who have been described as “friends and relatives”, to be put in place between Investrix and ABC. The co-offenders established a scheme to make it look like Investrix was purchasing the gold – not from the original seller, ABC, but from the persons described as friends and relatives.
When completing and submitting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1543
Decision Date: 13 July 2023

CaseChat Overview and Summary

The case of R v Kelu; R v Millner (No 7) was before the court, with the applicants seeking bail. Kelu and Millner, the respondents, were individuals facing criminal charges. Their application for bail hinged on Kelu's role as a complex care worker and her need to hand over care responsibilities to colleagues. Additionally, Kelu sought time to obtain a psychiatric opinion, arguing that special or exceptional circumstances warranted her release on bail.

The court was tasked with determining whether the applicants' circumstances justified granting bail. This involved weighing the applicants' roles and the necessity for Kelu to hand over her care duties against the interests of justice and the community's safety. The court also had to assess whether the need for a psychiatric opinion constituted a special or exceptional circumstance.

In its decision, the court found that Kelu's role as a complex care worker and her need to ensure a smooth transition of care to her colleagues were compelling factors. The court acknowledged the importance of Kelu obtaining a psychiatric opinion, which it deemed a special circumstance. Consequently, the court granted the applicants bail, recognising the balance between the applicants' rights and the need to uphold justice. The court's decision underscored the importance of considering individual circumstances in bail applications.

Orders