R v Ojeh

[2017] NSWSC 552

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ojeh [2017] NSWSC 552
Hearing dates:	9 February, 7 April, 5 May 2017
Date of orders:	08 May 2017
Decision date:	08 May 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Bail granted subject to conditions
Catchwords:	BAIL – show cause – whether unacceptable risks – bail granted - conditions imposed
Legislation Cited:	Bail Act 2013 Criminal Code (Cth)
Category:	Principal judgment
Parties:	Tochukwu Richard Ojeh (Applicant) Crown (Respondent)
Representation:	Counsel: D Palmer (Applicant)   Solicitors: Greg Murphy Legal (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2017/8657
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Tochukwu Richard Ojeh applies for bail. He was arrested on 30 November 2016 and has remained in custody bail refused since then. He is charged with three offences as follows:

1. Import a marketable quantity of a border controlled drug, namely cocaine contrary to s 307.2(1) of the Criminal Code (Cth). This offence carries a maximum penalty of 25 years imprisonment.

2. Aid/abet/counsel/procure the attempted possession of a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine contrary to s 307.5(1) and s 11.1 and s 11.2 of the Criminal Code. This offence carries a maximum penalty of life imprisonment.

3. Aid/abet/counsel/procure the attempted possession of a marketable quantity of an unlawfully imported border controlled drug, namely cocaine, contrary to s 307.6(1) and s 11.1 and s 11.2 of the Criminal Code. This offence carries a maximum penalty of 25 years imprisonment.

2. Mr Ojeh is charged with an offence falling within s 16B of the Bail Act 2013 and is required to show cause why his continued detention is not justified.

Background

3. Mr Ojeh was born in Nigeria in November 1983. He came to Australia in September 2014. He is married to an Australian citizen who lives in Port Macquarie. Ms Ojeh works as a Unit Leader at Kempsey Community Corrections, a division of the Department of Justice.

4. The Crown alleges that Mr Ojeh was involved in or concerned with arranging for the consignment of several parcels from overseas to various addresses in Sydney. These parcels were intercepted by the Australian Federal Police and found to contain drugs secreted within their other contents. AFP officers later posed in the course of a series of controlled operations as delivery drivers or couriers with companies retained by the consignors for the delivery of the parcels to addresses in Parramatta and Granville. The deliveries were, with one exception, unsuccessful as no-one was present at the addresses to sign for the parcels. The Crown alleges that in due course telephone inquiries were made of the courier companies about the fate of the parcels by Mr Ojeh. In one case the delivery of a parcel was made to a person who lived next door to Mr Ojeh. This person ultimately indicated that she had been asked by Mr Ojeh to take delivery of it. These events occurred in November 2015.

5. Thereafter the AFP lawfully intercepted a number of phones. At least one, and possibly two, of these phones was owned by Mr Ojeh. Some of the recorded conversations are in English. However, by far the greatest majority of these conversations is in the Nigerian Igbo dialect. The Crown contends that Mr Ojeh is a participant in most of these conversations and that they inculpate him in the commission of the charged offences. These contentions are based upon inference as there appear to be no specific conversations that directly or explicitly deal with the importation of the drugs concerned. There will be an issue at trial concerning the voice identification of the person speaking in these intercepted conversations who the police allege is Mr Ojeh.

6. The Crown case also utilises a series of retained text messages retrieved from various phones. It is alleged that these messages were sent by Mr Ojeh and that they support the Crown case. That allegation has not been significantly particularised in the material before me.

7. The Crown alleges that Mr Ojeh has attempted to distance himself from the central events by utilising third parties to take or accept delivery of the illicit parcels. That includes delivery to addresses with which he has no direct connection.

8. A significant part of the Crown case also relates to what the Crown asserts is an attempt by Mr Ojeh to instruct a third person to destroy a laptop computer. That person has given a statement to the police. The computer was not destroyed but retrieved by the Crown and apparently analysed. It is sufficient for present purposes to observe that the Crown alleges that the computer contained at least the following material:

1. A resume in the name of Mr Ojeh.

2. A webpage showing the tracking history of some of the consignments.

3. A webpage history showing search engine results for “which courier service has” one of the consignments.

9. Mr Ojeh was interviewed by the police. The Crown contends that he has admitted that he spoke to the witness concerning the laptop and that he had given it to her. In the course of the same interview Mr Ojeh denied that he had used the computer to track any parcels, that he sent text messages to Nigeria or that he was involved in any drug activities in Australia. He also denied that he asked any third person to sign for or accept parcels on his behalf.

“Show cause”

10. Mr Ojeh submitted that he had demonstrated that his continued detention was not justified. He relied upon the following matters.

11. First, he has been in custody now for slightly over five months. The complete brief has not yet been served. No date has yet been set for a committal hearing. The prospect of a hearing in the District Court this year is non-existent. The likelihood is that the charges will not proceed to trial before a jury until sometime towards the middle of 2018. A trial commencing on or about 1 June 2018 would mean that Mr Ojeh will have been in custody for 18 months without resolution of the proceedings.

12. Secondly, the case is attended by difficulties not normally or ordinarily associated with such proceedings. Mr Ojeh has limited English. A translator and an interpreter in his particular dialect will be required to assist his legal team in the analysis of the intercepted telephone material. It is apparently substantial. There is an issue about voice identification in any event. It will not be possible for Mr Ojeh’s legal representatives to come to terms with the material upon which the Crown relies if they are restricted to taking instructions within a gaol and without proper or adequate electronic equipment, including audio facilities for playing and playing back conversations in a foreign language in which Mr Ojeh is said to be a participant.

13. Thirdly, Mr Ojeh’s wife is anticipating reconstructive surgery to her feet. The operations have to be performed separately. She will be significantly disabled following each operation and in need of attendant care for daily and personal needs. She has no person capable of providing the assistance that Mr Ojeh can provide. Her 12 year old daughter attends school and is not strong enough to assist her. Ms Ojeh’s adult son is strong enough to do so but for reasons of modesty is not suitable to do so.

14. Fourthly, the anticipated legal costs for the defence of the charges will be considerable. Mr Ojeh contends that he ought to be free to work in order to defray these costs if at all possible. His wife’s inability to work at her usual occupation during her surgery and medical recovery will exacerbate that problem.

15. Finally, Mr Ojeh submits that the Crown case is wholly circumstantial and is additionally not strong. As already indicated, phone use and ownership, as well as voice identification, translation and interpretation, in the sense of determining what various conversations not apparently directed to drug importations might mean in fact, all loom large as contested factors in the trial. Mr Ojeh has made no admissions. He has not been recorded in phone conversations prior to his arrest that refer to the alleged illegal activities or the circumstances that give rise to the charges.

16. To the extent that there is any permissible or relevant overlap between the factors referred to in s 18 of the Bail Act and the show cause requirement, Mr Ojeh emphasises that he has no criminal record in Australia or abroad, has no history of violence, has no known criminal associations and has close ties with the community.

17. In my opinion Mr Ojeh has shown cause why his continued detention is not justified. I base my conclusion upon the combination of the nature and strength of the Crown case, the length of time that Mr Ojeh is likely to remain in custody until his trial if bail is refused and the very significantly connected consideration of the difficulty he will encounter in the preparation of his defence if he is not at liberty in the community to do so. The period of 18 months before a trial is not particularly long and is regrettably not exceptional or unusual. However, whereas an inmate on remand might quite easily (relatively speaking) confer with his or her solicitor or barrister by phone from gaol from time to time, that prospect is in practical terms entirely foreclosed in circumstances where Mr Ojeh speaks little English, his lawyers speak no Igbo, and, as far as I am aware, the arrangement of a conference call between them and a suitable interpreter, assuming one can be readily located, is impractical if not probably close to impossible. The collocation of those factors alone seems to me to lead to the result that unlike most other remand prisoners, Mr Ojeh will be significantly disadvantaged in the preparation of his case if bail were not granted. That disadvantage would in my opinion amount to an unjust interference with his right to be represented adequately at a trial for what are conceded to be very serious offences.

Bail concerns

18. The Crown identifies three bail concerns. Mr Ojeh is said to be at risk of failing to appear, of committing a serious offence and of interfering with evidence or witnesses.

19. Apart from the current allegations against him, there is no evidence to support the contention that Mr Ojeh is likely to commit any offences at all. He has no criminal record as I have already noted. The Crown’s concern is based entirely upon the yet to be established assumption that Mr Ojeh has committed the offences with which he has been charged.

20. Similarly, there is no evidence or other reliable material to support the suggestion that Mr Ojeh is likely to do anything to imperil the prosecution of the case against him, by the interference with any witnesses or by the compromise or degradation of any evidence. Indeed, as far as I can determine, the case he faces is based upon electronic and documentary evidence that is not liable to the risk of interference. The prospect that Mr Ojeh would attempt by telephone or similar means to contact a prospective witness is in my view entirely remote having regard to the risk to his liberty, if granted, that such conduct would pose. I reiterate that Mr Ojeh has no history of violence or intimidating behaviour.

21. Mr Ojeh remains a Nigerian national. His passport has been confiscated. My attention has not been drawn to any basis for the Crown’s concern that he might, or more particularly could, arrange for his passage to Africa without his passport or that he has the wit or wherewithal to obtain another one. Moreover, the bail conditions proposed on his behalf, with which the Crown has been provided, would considerably constrain his departure from Port Macquarie, let alone Australia.

Decision

22. In my opinion, none of the bail concerns identified by the Crown pose or amount to an unacceptable risk that Mr Ojeh will fail to appear, commit a serious offence or interfere with witnesses or evidence. Notwithstanding my opinion that there are no unacceptable risks, I propose to grant bail to Mr Ojeh subject to conditions. Those conditions are as follows:

1. He is to be of good behaviour.

2. He is to reside at 16 The Summit Road, Port Macquarie.

3. He is to report to Port Macquarie police station daily between the hours of 8am and 8pm.

4. He is not to possess or use more than one mobile telephone and is to provide the officer in charge of the investigation with the number of any such phone within 24 hours of his release on bail.

5. He is not to be absent from the address at which he is required to reside between the hours of 10pm and 6am.

6. He is not to apply for the issue of any other passport or travel documents.

7. He is not to go within 1 km of any point of international departure.

8. He is not to leave the State of New South Wales.

9. He is to attend court on all relevant dates as required.

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Decision last updated: 08 May 2017