R v Litvin

[2013] NSWCCA 319

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Litvin [2013] NSWCCA 319
Hearing dates:	13 December 2013
Decision date:	13 December 2013
Before:	Bathurst CJ at [1] Hoeben CJ at CL at [2] R A Hulme J at [3]
Decision:	Application refused
Catchwords:	BAIL - bail review - accused charged with conspiring to traffic a large commercial quantity of cocaine - accused subject to strict bail conditions - bail varied by Supreme Court - Crown case that intercepted telephone conversations used coded language - Crown seek restoration of bail condition that accused and co-accused not confer without supervision by lawyer to reduce risk of collusion - limitations of Legal Aid grant - concerns about impeding preparation of defence - concerns about collusion can be addressed at trial - condition not restored
Legislation Cited:	Bail Act 1978 (NSW)
Category:	Principal judgment
Parties:	Commonwealth Director of Public Prosecutions (Applicant) Joseph Litvin (Respondent)
Representation:	Counsel: Mr C O'Donnell (Crown) Mr G Goold (Respondent) Solicitors: Commonwealth Director of Public Prosecutions Gregory J Goold Solicitors
File Number(s):	2013/338198
Decision under appeal	Jurisdiction: 9111 Date of Decision: 2013-10-24 00:00:00 Before: Barr AJ File Number(s): 2013/338198

Judgment

1. BATHURST CJ: I agree.

1. HOEBEN CJ at CL: I agree.

1. R A HULME J: This is an application under s 45(1)(b) of the Bail Act 1978 (NSW) for a review of a decision in relation to bail made by Barr AJ on 24 October 2013.

1. The respondent is charged with three offences: conspiring to traffic in a commercial quantity of cocaine; conspiring to import cocaine; and conspiring to deal with money in excess of $1 million that was the proceeds of crime.

1. The respondent was arrested on 23 November 2010 and refused bail. On 1 September 2011, bail was granted in the Supreme Court by Hidden J on strict conditions. Although exceptional circumstances were required to be established on that application, his Honour was satisfied that they were, primarily on the basis of the anticipated lengthy delay before the proceedings would be finalised.

1. One of the conditions of the bail granted by Hidden J was that the respondent was not to approach, contact or attempt to contract, directly or indirectly, a number of people including his co-accused, David Nakash.

1. The applicant's trial in District Court has been listed to commence on 14 May 2014. It is anticipated that the trial will be lengthy; something in the order of five months.

1. The prosecution case includes the product of electronic surveillance, namely a large number of intercepted and recorded telephone conversations.

1. During the course of committal proceedings in the Local Court the respondent's bail was varied in some respects. In December 2012, the condition relating to contact with the co-accused Nakash was varied so as to permit such contact but only under the supervision of his or Mr Nakash's legal representatives.

1. On 24 October 2013, the respondent applied to the Supreme Court to further vary the bail so as to remove the requirement for supervision of any contact with Mr Nakash. That application was granted by Barr AJ over opposition by the Crown. It is in that respect that the Crown has brought the present application to this Court.

1. It is the prosecution contention that in the intercepted telephone conversations upon which it will rely at trial, the respondent and the co-accused used code to disguise the true meaning of their conversations. Speaking broadly, the prosecution contends that where the respondent and the co-accused purport to be talking about legitimate commercial trading activities they are in fact discussing matters in furtherance of the conspiracies alleged.

1. The Crown is concerned that if the respondent and his co-accused are permitted to have unsupervised contact they will collude so as to fabricate a consistent and innocent explanation for the alleged coded terminology used in these conversations.

1. The submission for the respondent in this court is encapsulated in the following from written submissions:

The sheer volume of material relied upon by the Crown in these proceedings and the complexity of the trading arrangements involving the accused and known others requires the opportunity for the respondent and the co-accused to go through the material relied upon by the Crown and prepare a defence based upon the proper construction so far as the accused are concerned.

1. The problem with the terms of the condition that Barr AJ agreed to delete was that there were substantial practical difficulties in facilitating lawyer-supervised contact between the respondent and his co-accused. The respondent has a grant of Legal Aid and there are obstacles in having Legal Aid funding extended to the supervision of the respondent and his co-accused. It is well recognised that Legal Aid funding is not limitless.

1. The respondent's submissions acknowledge the Crown's concern about the prospect of collusion but observe that:

[T]his is matter that the Crown can raise in its submissions in any trial where there is evidence that the respondent and the co-accused have so colluded to achieve a particular result in any evidence led. This is a matter for comment and submission by trial counsel for the [Crown] and administration by the presiding trial judge.

Determination

1. The competing considerations are these. On the one hand, the Crown is concerned about collusion by the respondent and his co-accused to fabricate false evidence. On the other hand, the respondent is hampered in the preparation of his defence against serious criminal charges if he is not given a reasonable opportunity to confer with his co-accused. The cost and other practical difficulties are considerable.

1. In my view the balance falls in favour of not reimposing the condition deleted by Barr AJ. Reimposing that condition would arguably impede the preparation of the respondent's defence. The prosecution has a remedy available to it if there is any genuine cause for concern that there has been the collusion which the Crown presently fears.

1. For these reasons the application for a review of the decision of Barr AJ on 24 October 2013 should be refused.

**********

Decision last updated: 18 October 2016