R v Osuamadi

[2013] NSWSC 1831

Supreme Court

New South Wales

Medium Neutral Citation:	R v Osuamadi [2013] NSWSC 1831
Hearing dates:	5 December 2013
Decision date:	11 December 2013
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Bail refused
Catchwords:	CRIMINAL LAW – application for bail – where applicant in custody on remand bail refused – s 22A (1A)(c) Bail Act – whether “circumstances relevant to the grant of bail have changed since the previous application was made” – where applicant incarcerated for prolonged period without concluded trial – s 22A threshold satisfied – where onus on applicant to show bail should not be refused – bail refused
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Category:	Principal judgment
Parties:	Maximus Onu Osuamadi (Applicant) Crown (Respondent)
Representation:	Counsel: A Lucas (Applicant) A Metcalf (Crown)   Solicitors: Mark Rumore (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2012/106551

Judgment

1. HIS HONOUR: Mr Osuamadi applies for bail. He was arrested on 4 April 2012 and charged with supplying a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence is alleged to have been committed on 19 January 2012. Mr Osuamadi has been in custody on remand bail refused since the date of his arrest. His next trial is scheduled to commence at the Parramatta District Court on 1 September 2014. He will by then have been in custody awaiting trial for two years and five months.

2. On 12 July 2012 Mr Osuamadi applied for bail. His application was heard and refused by Campbell J. In those circumstances this application attracts the operation of s 22A of the Bail Act 1978, which is relevantly in these terms:

"22A Power to refuse to hear bail application

(1) A court is to refuse to entertain an application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by the court, unless there are grounds for a further application for bail.

(1A) For the purposes of this section, the grounds for a further application for bail are:

(a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b) information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) circumstances relevant to the grant of bail have changed since the previous application was made.

(2)…"

Background

3. Mr Osuamadi and his co-accused Chidi Amagwula were originally scheduled to be tried on 18 March 2013. The matter was not reached and was listed to recommence on 10 October 2013. That trial commenced but was then vacated on 14 October 2013. It was relisted to commence on 18 November 2013. The trial commenced on that day and proceeded for some time before Craigie DCJ and a jury until his Honour once again discharged the jury and vacated the hearing. It was shortly thereafter that the new date in September next year was allocated.

4. Mr Osuamadi had in the meantime lodged a further application for bail in this Court sometime during 2013. It came before the Court but was adjourned to a later date on each of 6 June 2013, 22 August 2013 and 23 September 2013. It finally came before me on 5 December 2013. I reserved my decision.

5. It emerged during the course of the application before me that Mr Osuamadi gave evidence when the matter first came before Campbell J on 12 July 2012. His current solicitor, Mr Rumore, then represented him. It is an accepted and uncontroversial fact that Mr Osuamadi gave evidence before his Honour in which he admitted his physical involvement in the events that found the Crown case against him. The criminality of that involvement is, however, denied upon the basis that Mr Osuamadi was performing his role for and on behalf of the police either as an under cover operative or as an assistant to such a person. Mr Osuamadi's admission of involvement would appear to have been made in the face of what on one view is an otherwise overwhelming case against him. It is unnecessary for present purposes to descend into the detail of that assertion. It is sufficient to observe that evidence has been, or is anticipated will be, given by what I am led to understand is an informant or undercover operative from the local Nigerian community identified only by the pseudonym "Ozone" that places Mr Osuamadi directly in the mix of events that include the supply of the drugs concerned. Other surveillance and intercepted conversations are apparently to a like effect.

6. Mr Rumore explained to Campbell J on 12 July 2012 what Mr Osuamadi's defence would be. He explained it as follows:

"It will be a defence that he was working in conjunction with the undercover operative as his engaged further operative and, perhaps, without the official sanction of the police. It is an extraordinary case and, as I said, the only person I can get the evidence from is him."

7. That is precisely what Mr Rumore proceeded to do. Mr Osuamadi gave this evidence:

"Q. Can you briefly tell us how the organisation of the control operation that Ozone was involved in with the police came to involve you?

A. Ozone told me that the police would want him and me to work together undercover on some crimes about drugs in our community. He said to me that he would let the police know that I am helping him undercover. I said to him: You know what that means, I am tiled man, I am chief, I don't want to involve myself with this sort of thing. He said: You will be protected. I asked him and he said: I will contact the police. He said: You can do it. On the police, I requested when we go for the operation. So I said to him that…

Q. Just stopping you there, did you understand that you would be meeting with the police on the day of the controlled operation?

A. That is correct, I requested that.

Q. Who nominated the venue for the exchange of the prohibited drug for the cash sum of $110,000, who negotiated or suggested that place as a venue?

A. I suggested it. I said that I want a place that is in the broad daylight and I want it to be a normal place, so I need to see the police with camera and videos as evidence.

Q. Stopping there, did you stipulate that you wanted to see the police and you wanted to be convinced that what was happening was being recorded?

A. I did. He assured me that when I come the police have guaranteed him that I will see people with camera taking photo and video.

…

Q. What, if anything, were you promised or offered to participate in this way to introduce as a tribal chief somebody from your Nigerian community to the undercover operative Ozone, what were you offered?

A. Ozone told me that the police would pay me and him $50,000 so my share was $25,000 and he would have $25,000 as well. I said to him: It is not about the money, it is about exposing the evils in the community. I said: I have children and these drugs will end up in the hands of people. My conscience would not let me not to expose people who deal in drugs. So my own part in return, my reward, he said that they will pay me $25,000 and him $25,000.

Q. As to your belief in the authenticity of what you were being told by Ozone, you knew he had been convicted and sentenced to a lengthy period of imprisonment for drug dealing, is that correct?

A. That is correct.

Q. And you knew, did you, that his sentence was substantially curtailed or shortened and he was released from prison early because of what he told you was his then association with the police?

A. That is correct. He told me exactly that, if he is to undercover, if I am to help him undercover this, that the police would come and he could spend time with his wife and son.

…

Q. Did you raise with the police in the course of the electronically recorded interview or any statement to the police following upon your arrest what your role was, as you understood it to be from your discussions with Ozone in the controlled police operation, did you tell them about that?

A. No, because I was not given the opportunity. The police said they would kill me unless I returned the whole money. So I was scared for my life. So when he said that I was very very scared and then I just could not hold it any longer and I said to him: Is it a fact now that you mislead me. I work for you and the police and they are saying that unless I return the whole amount of money they won't give me the amount of reward they promised me, so I was scared for my life."

8. I consider that Mr Rumore's description of the matter as "an extraordinary case" does no disservice to the truth. If anything, Mr Rumore could be accused of understating the curious and intriguing nature of the circumstances from which it is hoped Mr Osuamadi's successful defence of the case against him will ultimately emerge. I hasten to add that Mr Osuamadi did not give evidence before me, and I am wholly without any observational or first hand material that would permit me to arrive at an informed view of the truth of the evidence that he gave before Campbell J.

9. The Crown disputes this version of events in its entirety. In particular, the Crown disputes that Mr Osuamadi was recruited officially or in any other way to assist in the operation, and insists on the contrary that he was its target.

10. I raise these matters in the context of an assessment of the strength of the Crown case. In essence Mr Osuamadi concedes that, but for this defence, the success of which relies upon the prospect that the jury will necessarily accept his version of events, he faces the highly likely prospect of a finding of guilt and a conviction for the offence as charged. That is a significant and important matter to be considered by me in the event that I were otherwise satisfied that Mr Osuamadi had established that the "circumstances relevant to the grant of bail have changed since the previous application was made." It is to that question that I now turn.

11. Counsel for Mr Osuamadi put the case on two general bases. First, that the procedural history of the criminal proceedings since at least the decision by Campbell J to refuse bail is such that this further application for bail is both warranted and permissible. The time elapsed since then has been almost 17 months and still there has been no final disposition of the proceedings. There remain another 11 months before the trial will start again. That will by then have become the fourth scheduled date for the commencement of the trial. Those are said to constitute a sufficient change in circumstances for the purposes of s 22A of the Act.

12. Secondly, by reason of circumstances that attended the decision by Craigie DCJ to discharge the jury in the trial as recently as 3 December 2013, there has arisen a prospect that Mr Osuamadi will not, or may not, be able to obtain a fair trial. That submission arises in the following circumstances.

13. Mr Osuamadi was transported each day during his trial from Parklea Correctional Centre to the Parramatta District Court in the morning and returned each afternoon. It was his habit to take with him notes and legal papers relevant to his trial. These were sometimes the product of his own efforts in court and at other times in his cell where he recorded events and formulated his thoughts and instructions in writing for the benefit of both himself and his legal team. He also carried other legal material, including the transcripts of the trial and such things as transcripts of intercepted telephone conversations and (I assume) copies of documents forming at least part of the served brief of evidence in his trial.

14. It emerged on 29 November 2013 that Mr Osuamadi had somehow been denied access to much of this material. The circumstances in which that occurred are by no means clear. On the one hand Mr Osuamadi alleges that he was deprived of his legal papers by the unauthorised acts of the corrections officers who took papers from him on his way to court. Even though some of this material has been recovered, Mr Osuamadi contends that it has not all been recovered and that he is therefore severely disadvantaged. On the other hand the Crown concedes that Mr Osuamadi was in fact deprived of this material but that it has now all been returned to him. The Crown faintly suggests that Mr Osuamadi is the author of the so called problem and that he secreted the material somewhere in his cell so as to provide a foundation for what turned out to be a successful application to abort his trial. The correctness of that assertion does not in my view relevantly inform the present inquiry.

15. It is not possible in a satisfactory or principled way to determine where the truth lies between these competing versions of what occurred. It is an issue that generated significant concern and evidentiary attention in the application before me. That attention was, however, in my opinion wholly disproportionate to its significance in the question of whether or not Mr Osuamadi has satisfied s 22A of the Act. That is for at least two reasons. First, the issue of delay seems to me to be far more significant and alone sufficient to amount to changed circumstances permitting the bringing of this application. Secondly, there does not appear to be any suggestion that the still missing papers have now all been lost irretrievably so that a fair trial at any time in the future cannot ever be achieved. If that were the contention it would be relevant to an application of a different kind, and not to a further application seeking bail. In expressing that view I should not wish to be taken to be downplaying or discounting the seriousness of the allegations that Mr Osuamadi has made, whatever the truth concerning them might in due course turn out to be. Whether the disadvantages that Mr Osuamadi asserts he has suffered ultimately provoke an application with respect to the further conduct of the proceedings remains to be seen.

16. As I have indicated, the more significant issues for my purposes are the delay that has so far seen Mr Osuamadi incarcerated for a considerable period without a concluded trial, and the delays that he still faces. These past and prospective delays are in my view sufficient to warrant the bringing of this application. They are changed circumstances since Campbell J refused bail in July last year.

Disposition

17. In my opinion the Crown case is very strong. The facts establishing Mr Osuamadi's criminal involvement are undisputed apart from the defence that he has foreshadowed. The physical and technical surveillance material suggests Mr Osuamadi's direct involvement in the supply of a commercial quantity of methylamphetamine with a purity of 75.5 percent. The Crown case is said to be based upon investigations of West African Organised Crime syndicates in this country over some time. Mr Osuamadi has allegedly been identified as a prominent member of such a criminal organisation. It goes without saying that I cannot be satisfied to the criminal standard of the matters upon which the Crown relies in opposing this application. That is an unfortunate and regrettable frailty attending almost every decision to grant or to refuse bail.

18. Based purely upon my current limited understanding of Mr Osuamadi's proposed defence, I consider that it seems inherently improbable for a number of possibly obvious reasons. It is unnecessary for present purposes to elaborate on all of those. However, it must inevitably be the case that Mr Osuamadi will have to give evidence in or to the same effect as that which he gave before Campbell J. From the admittedly unsatisfactory distance that I have viewed that evidence, it seems to me to be inherently improbable if not completely incredible. Without making any final or binding determination of that issue, it is sufficient for me to note that it would not displace my opinion, already expressed, about the strength of the Crown case.

19. There is a statutory presumption against bail in the present case. Section 8A of the Act applies. Section 8A(2) provides that "[A] person accused of an offence to which this section applies is not to be granted bail unless the person satisfies the court that bail should not be refused."

20. The Crown contends that the circumstances in which Mr Osuamadi was detected have created the potential for him improperly to approach witnesses. He has a limited history of violence. He is separated from his wife although he still sees his children regularly. He has a Nigerian passport. The Crown is fearful from material in their possession that he also has access to counterfeit passports that could facilitate his undetected departure from Australia under an assumed name. He has used several aliases in the past. There is an unusually strong incentive for someone in Mr Osuamadi's position to leave the jurisdiction and he has both the connections here and elsewhere to facilitate it. I am significantly influenced by my anticipation that a guilty verdict is highly likely.

21. Having regard to the offence charged, the apparent strength of the Crown case, and other (as yet untested) factors adverted to by Detective Ferfiris in his letter dated 29 November 2013 setting out his reasons for opposing bail, I am not satisfied that Mr Osuamadi has established sufficient reasons why bail should not be refused.

**********

Decision last updated: 08 February 2016