R v Quaid - [2009] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- QUAID [2009] WASC 202

CORAM: LE MIERE J

HEARD: 13 JULY 2009

DELIVERED : 22 JULY 2009

FILE NO/S: INS 20 of 2009

MATTER :Section 14 of the Bail Act 1982

BETWEEN: THE QUEEN
Prosecution
AND
FABIAN QUAID
Accused

Catchwords:

Criminal law and procedure - Bail - Application for bail pending trial - Serious offence - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 14, sch 1
Criminal Code (Cth), s 11.5(1), s 302.2(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Prosecution : Mr D W L Renton
Accused: Mr L M Levy SC

Solicitors:

Prosecution : Director of Public Prosecutions (Cth)
Accused: Alana Padmanabham

Case(s) referred to in judgment(s):

Jemielita v The Queen (1994) 12 WAR 362
Mercanti v The State of Western Australia [2005] WASCA 254
Rauch v The State of Western Australia [2005] WASC 241
Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401
The State of Western Australia v Sturgeon [2005] WASC 256, (2005)158 A Crim R 34
WCVB v The Queen (1989) 1 WAR 279

LE MIERE J:

Introduction

The applicant applies under s 14 of the Bail Act 1982 (WA) (the Act) for release on bail pending trial in this court on an indictment by which the Commonwealth Director of Public Prosecutions informs the court that between 1 July 2007 and 19 May 2008 at Perth and elsewhere in Australia, Rade Ljuboja, Dejan Medan, Dimitrios Papadimitriou and the applicant conspired together with Vaso Ulic and others to traffic in a commercial quantity of a controlled drug, MDMA, contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth).
The applicant was arrested in Sydney on 21 May 2008. He was extradited to Perth and has been continuously in custody since then. On 18 May 2008, three days before his arrest in Sydney, the applicant was involved in a traffic crash on Stirling Highway, Mosman Park, Western Australia. On or about 23 October 2008 he was charged with two separate offences of dangerous driving occasioning bodily harm under s 59A(a)(b) of the Road Traffic Act 1974 (WA). On 20 February 2009 the applicant pleaded guilty to both charges and was sentenced to 9 months' imprisonment on each count. Both sentences were ordered to be served concurrently. The applicant became eligible for administrative parole on or about 6 July 2009. The trial of the applicant and his co‑accused is expected to commence in November 2009.

Applicant's antecedents

The applicant is 32 years old. He is of Persian descent and was born in India. His birth name was Irani. His father adopted the name Quaid to avoid association with Iran. The family moved to Australia in 1983 and eventually settled in Perth. The applicant completed his high school education in Perth. He is an Australian citizen and holds an Australian passport in the name of Quaid. The applicant worked in the security industry and then pursued a career in tae kwan do. He represented Australia in tae kwan do at the Sydney Olympics in 2000. Thereafter he remained in Sydney and ran a personal training business. He resided in Sydney until being extradited to Perth.
The applicant has a brother, Marc, who lives in Perth with his two young children. The applicant has a number of other relatives including his grandmother and his uncle, Shapur Pollard, who live in Leeming, Western Australia who the applicant has nominated as a potential surety. The applicant says that if he were granted bail he would live with his uncle. Mr Pollard is 54 years old. He has lived at the same address for the last 17 years. In his affidavit sworn 23 May 2009 the applicant swears that Mr Pollard is the owner of an engineering company and security window company in Perth. At the hearing of this application there was also evidence that Mr Pollard operates a travel agency. The respondent alleges that in the past he has facilitated travel for organised crime figures.
In his affidavit the applicant says that although he has a criminal record, apart from his recent incarceration for the serious driving charges arising on 18 May 2008, he has nothing on his record of note since 2003.
The respondent says that the applicant has little or no legitimate income but has the ability to access large amounts of cash quickly.

The offences charged

The prosecution has served on the applicant a document that states the overt acts that the respondent will rely upon at the applicant's trial. Three overt acts are stated in relation to the applicant:
1.On 19 July 2007 Ljuboja met with [the applicant] at Subiaco where they agreed to import MDMA, manufacture and distribute ecstasy.
2.On 22 April 2008 [the applicant] organised his brother, Marc Quaid, to meet with Ljuboja to assist in setting up a safe house in Perth and any other needs Ljuboja had to produce ecstasy.
3.On or about 18 May 2008 [the applicant] provides $20,000 to Ljuboja to assist with setting up and renovating the safe house at 299 Morley Drive, Lockridge.
In relation to the first alleged overt act the applicant says that there is no evidence that Ljuboja and the applicant agreed to import MDMA, manufacture and distribute ecstasy. Senior counsel says there was no listening device where they met and no recording of the conversation.
In relation to the second alleged overt act the applicant says that the brief discloses evidence that the applicant met with his brother on 22 April 2008 but there is no evidence that the applicant arranged for his brother to assist in setting up a safe house or other needs Ljuboja had to produce ecstasy.
In relation to the third alleged overt act the applicant says that there is evidence from which it might be inferred that on or about 18 May 2008 the applicant met with Ljuboja and provided money to Ljuboja but the evidence does not prove that he did so to assist with setting up and renovating the safe house.
The respondent has delivered a prosecution brief to the applicant. The prosecution brief discloses a lot of evidence obtained from surveillance of the applicant and his co‑accused and intercepted telephone calls and other legally intercepted information concerning the applicant.
The respondent prepared a statement of material facts for the bail hearing. The statement of material facts commences:
1.In 2007 the Australian Federal Police, Australian Crime Commission, Western Australian Police and the Australian Customs Service began a joint investigation into an international organised crime syndicate involved in importing border controlled drugs into Australia.
2.Between May and July 2007 investigations established Rade Ljuboja ('Ljuboja') was planning an importation of drugs (MDMA powder) into Australia with Vaso Ulic ('Ulic'), the syndicate principal who resides in Montenegro.
3.Once the MDMA powder was imported to Australia it was to be produced into ecstasy tablets and distributed. In July 2007, to facilitate the production and distribution of the ecstasy tablets, Ulic sought the assistance of [the applicant] and Dimitrios Papadimitriou ('Papadimitriou').
4.On 19 July 2007 Ljuboja met with [the applicant] at Subiaco where they agreed, once the MDMA powder had been imported, they would produce ecstasy tablets and distribute it throughout Australia. Ljuboja was to oversee the importation of the MDMA and arrange the manufacturing and production aspect of the arrangement (along with Dejan Medan ('Medan') and [the applicant] was to distribute the ecstasy tablets. Medan's role in the syndicate was to facilitate all that was necessary to produce and manufacture the pure/raw MDMA into ecstasy tablets; Medan was the 'cook'.
Senior counsel for the applicant submitted that most of the facts in relation to the applicant alleged in the statement of material facts are speculation unsupported by evidence. Counsel developed this argument by reference to a number of paragraphs in the statement of material facts.
In relation to [4] of the statement, which I have set out above, senior counsel submits that the brief discloses evidence that on 19 July 2007 Ljuboja met with the applicant at Subiaco but that there is no evidence of what the meeting was about.
In [8] of the statement of material facts it is alleged:
On 15 January 2008 Ljuboja and [the applicant] met to discuss money at the 4 Olives Deli, Darley Road, Manly. [The applicant] was observed leaving with a piece of paper.
Senior counsel for the applicant submits that the prosecution brief discloses evidence that on 15 January 2008 the applicant met with Ljuboja and that the applicant was observed leaving with a piece of paper but there is no evidence of what the meeting was about.
In [12] of the statement of material facts it is alleged:
On 5 February 2008 Ljuboja returned to Australia; flying into Sydney. Shortly after his return Ulic instructed Ljuboja to meet with [the applicant]. During that conversation Ulic also advised Ljuboja he had not received enough money from Ljuboja. Ljuboja informed Ulic he had provided €152,500 euros. Ulic indicated that the money was €10,000 euros short.
Senior counsel submits that there is evidence of conversations between Ulic and Ljuboja on 7 February 2008 but there is nothing to demonstrate that any conversations between Ulic and the applicant were in relation to the importation of MDMA.
In [18] of the statement of material facts it is alleged:
On 22 March 2008 Ulic informed Ljuboja the vessel carrying the MDMA would arrive in Sydney first and Ljuboja would be able to meet with the crewman in Sydney or Melbourne but that the importation should come off in Perth. On 23 March 2008 Ljuboja called Medan and passed on the information.
Senior counsel for the applicant submits that the facts alleged in [18] are said to be established by an intercepted telephone conversation between Ljuboja and Ulic on 22 March 2008. Senior counsel says that in the telephone conversation Ulic and Ljuboja say nothing about a vessel or MDMA importation. The respondent says that in the conversation Ljuboja and Ulic spoke in code but that when it is read in the context of numerous other conversations between them and in the context of what actually happened before and after the conversation it is apparent that Ljuboja and Ulic were referring to the arrival of the vessel carrying the MDMA and its unloading in Perth. The evidence is that the vessel docked first in Sydney, then departed for Melbourne and then for Perth. The drugs were unloaded in Perth.
Paragraph 26 of the statement of material facts alleges:
On 17 April 2008 Ulic called [the applicant] and informed him that the importation had succeeded. Ulic indicated that Ljuboja would bring some drug samples to [the applicant] in three or four days' time. [The applicant] was later provided with samples of the MDMA (ecstasy capsules) for testing.
Senior counsel for the applicant submits that there is no evidence of those alleged facts other than an intercepted telephone conversation between Ulic and the applicant on 17 April 2008. Counsel for the applicant says that the subject matter of the telephone conversation is the wedding of Ulic's son and menus and restaurants which relate to the 4 Olives Deli restaurant that the applicant was negotiating to buy. Counsel for the respondent says that in the conversation Ulic and the applicant spoke in code and when the conversation is considered in the context of numerous other conversations and what happened before and after the conversation it is apparent that the subject matter of the conversation is the matters alleged in [26] of the statement of material facts. The vessel docked in Perth on 16 April 2008.
Counsel for the applicant submits that the prosecution case against the applicant is weak.
The prosecution case against the applicant is a circumstantial case. Counsel for the respondent says that when a particular telephone conversation or meeting is looked at in isolation it might not prove anything but when considered in the context of numerous other conversations and meetings and in the context of events preceding and succeeding the conversations and meetings, such as the movements and docking of the vessel carrying MDMA powder, the only reasonable inferences are those alleged by the prosecution in its statement of material facts. The respondent submits that the prosecution case against the applicant is a strong circumstantial case.
At the hearing of this application evidence was given by two officers of the Australian Federal Police. Each of those federal agents gave evidence relating to the prosecution case against the applicant. The evidence of the federal agents summarises the evidence in relation to the applicant and his co‑accused. Some of their evidence relates to matters concerning the flight risk if the applicant is granted bail and to matters not involving the applicant. I made an order that there be no report of the evidence, or a summary of the evidence, given by the federal agents. I have had regard to their evidence but in these reasons I will not set out that evidence or a summary of it.
The prosecution case against the applicant depends on circumstantial evidence. The prosecution brief in relation to the applicant consists principally of observations of the applicant whilst under surveillance and recordings or transcripts of intercepted telephone conversations. From those facts the prosecution will ask the jury to draw the inference that the applicant conspired with Ulic, Ljuboja, and others to traffic in a commercial quantity of MDMA. It will be for the jury to decide whether they are satisfied beyond reasonable doubt that there was a conspiracy and that the applicant was a party to the conspiracy charged by the prosecution. A consideration of the strength of the prosecution case requires a consideration of the whole of the circumstantial evidence. I am not in a position to do that beyond making an assessment based upon the evidence of the federal agents and the submissions of counsel for the applicant and the respondent in relation to the alleged overt acts, the statement of material facts and the transcripts of the telephone conversations put into evidence. On the whole of the material before me I am satisfied that there is a serious and substantial case against the applicant but beyond that I have not formed any opinion as to the relative strength of the prosecution case.

Legal principles

The jurisdiction to grant bail is to be exercised in accordance with pt C of sch 1 to the Act. The discretion to grant or refuse bail is to be exercised having regard to the matters listed in cl 1 of pt C as well as any other matters which the court considers relevant. In this case the principal matters to be considered are:
1.Whether, if the applicant is not kept in custody, he may fail to appear in court;
2.Whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that he may fail to appear in court;
3.Whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
In considering whether the applicant, if not kept in custody, may fail to appear in court the court must have regard to the following matters, as well as to any other matters which the court considers relevant:
(a)the nature and seriousness of the offence and the probable method of dealing with the applicant for it, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
None of the matters mentioned in pt C is given primacy, all those matters are to be taken into account: WCVB v The Queen (1989) 1 WAR 279, Ipp J at 283.
The respondent submits that in the case of offences that fall into the category of 'extremely serious', the applicant must show exceptional circumstances to justify bail because the gravity of the crime is thought to increase the risk of a failure to appear. The applicant submits that it is not necessary for the applicant to show exceptional circumstances to justify bail.
Senior counsel for the applicant submits that there is a tension in the authorities dealing with the grant of bail in relation to cases that involve serious offences. On the one hand, there is the recent authority of Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401 to the effect that an applicant charged with a very serious offence is required to demonstrate exceptional reasons to justify a grant of bail. On the other hand, senior counsel submitted, there are cases such as Rauch v The State of Western Australia [2005] WASC 241 and The State of Western Australia v Sturgeon [2005] WASC 256, (2005)158 A Crim R 34 in which it is suggested that the Act should not be taken to embody the traditional common law approach.
The issue was considered by Johnson J in Sabau. Her Honour reviewed the decisions of the Full Court in WCVB v The Queen and Jemielita v The Queen (1994) 12 WAR 362 as well as Rauch v The State of Western Australia and The State of Western Australia v Sturgeon. Her Honour concluded:
The conclusion that I have drawn is that Jemielita v The Queen is binding authority for the proposition that certain common law principles still apply to a determination of whether to grant bail, notwithstanding the passing of the Bail Act 1982. Further, I consider that one of the common law principles which apply is that, in very serious cases or extremely serious cases, including murder and wilful murder, the applicant is required to establish exceptional circumstances before bail can be granted. That proposition was endorsed by the Full Court in Jemielita v The Queen and applied to the facts of that case which involved a charge of murder. In my respectful opinion, the law as it currently stands is that exceptional circumstances are required if the court considers that the offence with which the applicant is charged is a very serious offence [71].
I agree with the conclusion of Johnson J.
In Mercanti v The State of Western Australia [2005] WASCA 254 McLure JA (with whom Pullin JA and Murray AJA agreed) referred to the statement of Pidgeon J (with whom Owen and White JJ agreed), in Jemielita that:
… in the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown [16].
Her Honour said at [17] that there is no relevant distinction between 'special or unusual circumstances' and 'exceptional circumstances'. At [41] her Honour said that she saw no error in the primary judge's reasons or conclusion that the charge of unlawful wounding in the alleged circumstances was extremely serious for the purposes of the common law principle.
I find that the offence of conspiring to traffic in commercial quantities of controlled drugs in the alleged circumstances is a very serious offence for the purposes of the 'exceptional circumstances' principle. The offence carries a penalty of imprisonment for life. The facts alleged in the prosecution's statement of material facts demonstrate a very sophisticated and serious criminal enterprise engaged in by the applicant and the other alleged co‑offenders. The offence covers both international and significant domestic criminality across three states involving many individuals and a significant quantity of illegal drugs. The alleged material facts disclose a large commercial enterprise. The statement of material facts allege that the applicant was in direct communication with the principal organiser of the enterprise, Ulic. The prosecution case is that the applicant's role in the enterprise was primarily to arrange for the purchase and distribution of the ecstasy tablets which would be produced by others from the imported MDMA powder collected by Ljuboja. In addition, the prosecution alleges that the applicant provided financial assistance to both Ljuboja and Ulic during the course of the enterprise including providing $20,000 to Ljuboja when he required cash to finalise the fit out of the clandestine laboratory.

Exceptional circumstances

I find that the applicant must show that there are exceptional circumstances before bail can be granted. Senior counsel for the applicant submits that the exceptional circumstances are that the applicant is being held in the Special Handling Unit at Casuarina Prison, where he has been held since March 2009.
Counsel for the applicant referred to deficiencies in various areas of prisoner treatment and service provision including inadequate access to exercise and recreational facilities.
Senior counsel for the applicant submitted that the regime within the Special Handling Unit makes it very difficult for his legal representatives to prepare for a trial. That is because interviews between the applicant and his legal representatives are limited by the times that the legal representatives are allowed to visit. They are limited to three days a week between specific times. Senior counsel submitted that the difficulty that confronts the applicant is that the defence has a mountain of materials and the only way to get through it is for a legal representative to sit with the applicant and for him to explain what the conversations mean. Senior counsel submitted that if the applicant was at liberty it would be far easier to do that because it would be done at the convenience of the applicant and his legal representatives rather than being allocated certain times during the week in which they have got to get through the material.
Counsel submitted that the applicant is confined to his cell each day from 6 pm to 7.30 am the following day. Senior counsel submitted that there is no proper recreation available to the applicant. There is an enclosure over the roof of what is called the exercise yard. The exercise yard is no more than 20 m x 20 m. There is no special equipment within the exercise yard. There are no recreational facilities. There is no gymnasium. There is no employment. The applicant does not have access to a library or to education. He has no contact with other mainstream prisoners and the visits to the Special Handling Unit are limited in time (ts 45).
In his affidavit the applicant swears that he has not been told why he has been placed in the Special Handling Unit other than a vague assertion that an external intelligence agency believes he is an escape risk. The respondent submits that the decision to detain the applicant is that of the prison authority not the respondent. There was some hearsay evidence about the likely reasons why the applicant is being held in the Special Handling Unit. The respondent says that the decision is based on an assessment by the Prison Intelligence Unit based upon reports from various sources. That evidence is not sufficient to establish the reasons why the applicant is being held in the Special Handling Unit. However, the evidence does not establish that the applicant's detention in the Special Handling Unit is unreasonable in the sense that there are no proper or adequate grounds for it.
The evidence before me does not satisfy me that the applicant's continued detention in the Special Handling Unit at Casuarina Prison will unduly hinder the preparation of his defence so as to have any effect on the fairness of his trial. The evidence does not satisfy me that the conditions of the applicant's detention are so harsh or unreasonable so as to constitute exceptional circumstances justifying bail. The applicant has been in custody since his arrest on 21 May 2008. He was transferred to the Special Handling Unit at Casuarina in March 2009. At that time he was a convicted prisoner serving his sentence for the offences of dangerous driving occasioning bodily harm. He became eligible for administrative parole on or about 6 July 2009. There is not an inordinate delay in the commencement of his trial. His trial is expected to commence within four months.
The applicant has failed to establish that there are special or exceptional circumstances justifying bail. For that reason, the application for bail must be refused.

Other considerations

Notwithstanding that conclusion I will briefly state my findings and conclusion in relation to the other matters relevant to the grant of bail.
In considering whether the applicant, if not kept in custody, will fail to appear in court the court must have regard to the matters I have earlier referred to. The first matter is the nature and seriousness of the offence and the probable method of dealing with the applicant for it if he is convicted. The offence charged is a very serious offence. The penalty for the offence is life imprisonment. The applicant's counsel accepts that if he is convicted the applicant would receive a significant term of imprisonment.
The next matter to be considered is the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant. I have already referred to some of these matters. On balance they are neutral factors in considering the flight risk.
The third matter to be considered is the history of any previous grants of bail to the applicant. There is no evidence of any previous grants of bail and hence I treat that as a neutral factor.
The fourth factor is the strength of the evidence against the applicant. I have earlier said that I am unable to assess the relative strength of the case against the applicant except that it is a serious and substantial case. In my view, the evidence is likely to give rise to a real concern on the part of the applicant that he might be convicted.
Having regard to the seriousness of the offence, the likely sentence if the applicant is convicted, the strength of the evidence against him and the other factors I have referred to there is a real risk that the applicant may fail to appear in court if he is not kept in custody.
Clause 1 of pt C of sch 1 to the Act requires the court to consider, amongst other things, whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear in court. Senior counsel for the applicant submitted that any concerns the court may have of flight risk could be alleviated by the imposition of conditions including, if necessary, home detention. Despite the submissions of counsel I am not satisfied that there is any condition which could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear in court. The evidence presented by the respondent leads me to the conclusion that if he chose to flee, the applicant has the means and associations to do so. To a large extent, the effect of conditions, even home detention, is to provide early notice that the applicant has fled or is fleeing but they do not sufficiently remove the possibility that the applicant may fail to appear in court. That conclusion is supported by the evidence of the federal agents called by the respondent.
The factors that favour the applicant's release on bail are not sufficient to outweigh the risk that the applicant may fail to appear in court if he is not kept in custody.

Conclusion

The applicant's application for bail should be dismissed.