R v Ribbon
[2020] SADC 30
•17 March 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v RIBBON
[2020] SADC 30
Ruling of Her Honour Judge Deuter
17 March 2020
CRIMINAL LAW - PROCEDURE - BAIL - SECOND APPLICATION
Applicant charge with Importing a Commercial Quantity of Border controlled Precursor. Applicant found guilty at trial and sentenced to 17 years imprisonment with a Non-parole period of 12 years.
The Court of Criminal Appeal allowed an appeal against conviction, and a re-trial was ordered. The judgment of the Court of Criminal Appeal was that certain matters should not have gone to the jury, but that it was not established that the verdict was unreasonable. The Court of Criminal Appeal also determined an application for bail against the applicant, based on all the facts and circumstances understood by the Court having reviewed all the evidence at trial. The Court of Criminal Appeal found that the applicant was a serious flight risk.
The applicant brought a fresh application for bail based on affidavit evidence from several deponents.
Held: Application refused. The submissions made on the application were largely the same as those made to the Court of Criminal Appeal. There was no change of circumstances from the time of the bail hearing before the Court of Criminal Appeal.
Bail Act 1985 (SA) s 5, s 10, s10(b)(1), s 12(2), referred to.
Ribbon v The Queen [2019] SASCFC 130; Webster v State of South Australia (2003) 87 SASR 17, applied.
R v RIBBON
[2020] SADC 30
This is an application by Clinton George Ribbon for release on Home Detention bail made pursuant to Part Three of the Bail Act 1985 (SA) (‘the Bail Act’).
This matter has had a lengthy history.
Mr Ribbon is charged on Information laid by the Commonwealth Director of Public Prosecutions of the offence of Importing a Commercial Quantity of a Border Controlled Precursor, contrary to s 307.11 (1) of the Criminal Code 1995 (Cth).
The factual basis of Mr Ribbon’s offending is that it is alleged that between about the third day of October 2013 and about the 18th day of August 2014 at Walkley Heights or elsewhere, he imported a substance intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug. The imported substance was a border controlled precursor, namely pseudoephedrine. The amount imported was a commercial quantity, namely 13,445.4 g and it was imported in a shipping container from Thailand, arriving at Port Botany in New South Wales on or about the 18th August 2014.
History of proceedings
The matter was first listed for a 20-day trial commencing 6 March 2017. This trial was vacated due to evidentiary issues and re-listed to commence for twenty days commencing 26 February 2018. After commencement of the trial on 28 February 2018 the Judge declared a mistrial and discharged the jury on 21 March 2018, as a result of evidentiary issues that had been presented in detail to the jury and could later not be put before them.
Following the discharge of the jury there were several days of legal argument before the trial Judge regarding admission of various items of evidence. A new jury was empanelled on 26 March 2018 and a further trial was commenced. This concluded on 13 April 2018, and the jury returned a unanimous guilty verdict. Mr Ribbon’s bail was then revoked.
On 24 July 2018, the trial Judge sentenced Mr Ribbon in relation to the guilty verdict. He did so upon the basis that Mr Ribbon was fully involved in the importation of the large amount of pseudoephedrine. He noted that if sold on its own as pure pseudoephedrine the market rate would be between $25,000 and $105,000 per kilogram. If the pseudoephedrine was converted to methylamphetamine and sold on the street for $100 per 0.1g point deals it stood to generate over $15 million. Had the purity been diluted it could have been sold for as much as $60 million. The trial Judge indicated that the imported pseudoephedrine could have made between $1.5 million and $60 million depending on the form it was sold in. He found that this reflected a very large scale commercial enterprise, which had the potential to cause great harm within the Australian community.
The trial Judge indicated that in sentencing Mr Ribbon he did so on the basis that the Court found established beyond reasonable doubt that he was a principal organiser and facilitator of the importation. He noted that Mr Ribbon was a successful businessman, without a drug habit, who committed the offence with the anticipation of making a very large sum of money from the endeavour. The trial Judge concluded that Mr Ribbon committed the crime solely motivated by greed, and that he showed no remorse for his offending. Taking all matters into account the trial Judge sentenced Mr Ribbon to 17 years imprisonment with a non-parole period of 12 years. He refused to order that the sentence be served on home detention.
Mr Ribbon lodged an appeal which was heard by the Court of Criminal Appeal on 11 April 2019. Judgment of the Court of Criminal Appeal was handed down on 25 October 2019 with Justice Peek delivering the majority judgment allowing the appeal against conviction. A re-trial was ordered.
The Court of Criminal Appeal allowed the appeal upon the basis of several directions given by the trial Judge to the jury, and the admission before the jury of irrelevant evidence that was more prejudicial than probative. The Court noted that it did not find that the verdict of the jury was unreasonable, even if the irrelevant evidence had not been put before the jury. In fact, upon the appeal counsel for Mr Ribbon did not press the Court of Criminal Appeal to consider in detail if the verdict was unreasonable if other grounds of appeal were made out.
Justice Peek stated as follows:
As it happens, I have read and reviewed all of the evidence in the course of grappling with the other Grounds of Appeal. Without further summarising that evidence, and applying the precepts in M v The Queen and relevant subsequent decisions of the High Court, I find that even if substantial deletions of the evidence referred to in Ground 4 of the Appeal were made in accordance with the arguments of the appellant under that ground, it cannot be established that the verdict is unreasonable.[1]
[1] Ribbon v The Queen [2019] SASCFC 130 at [248].
A re-trial has been set for 17 August 2020.
Application for Bail – Court of Criminal Appeal
Following the handing down of the judgment on the appeal, counsel for Mr Ribbon asked the Court to entertain an application for bail. Peek J indicated that the Court had given some thought to such an application given that Mr Ribbon had been on bail prior to the guilty verdict. He continued as follows:
However, the setting aside of that verdict does not simply turn the clock back to that time in our view. The verdict has not been set aside on the ground that there is not sufficient evidence to support a guilty verdict, but rather because of legal errors and these can be avoided at a retrial.
The charge is a most serious one and the judge imposed a very substantial sentence of imprisonment. Whether exactly the same sentence would be imposed again if Mr Ribbon were to be again convicted after a retrial is impossible to say, but Mr Ribbon would be aware that it would be almost certain that a substantial sentence of imprisonment would again be imposed if he were to be convicted.
It is also important to bear in mind that the evidence at trial, together with the submissions made on behalf of Mr Ribbon on sentence, establish that Mr Ribbon has a very wide network of friends and acquaintances throughout many parts of the world and particularly in South-East Asia where he may retain substantial assets.
A combination of the above factors dictates that close attention would have to be given to the factors specified in s 10 of the Bail Act and, indeed, subject to submissions that are made, the question might well distil down to whether bail should be refused or only granted on the basis of home detention bail with electronic monitoring and perhaps other conditions.[2]
[2] Transcript of 25 October 2019 T2.34 – T3.23.
Further submissions were made before the Court of Criminal Appeal on 8 November 2018. Mr Ribbon sought a grant of Home Detention bail to his wife’s home at 1 Wood Street Norwood. It was put by Mr Ribbon’s counsel, that:
· Mr Ribbon, following the judgment on appeal, had the benefit of the presumption of innocence and the benefit of a presumption of bail., Mr Ribbon was now in the same position that he was in at the start of the trial;
· Mr Ribbon could provide two guarantees; one being a guarantee from his wife in the sum of $20,000, and the second from his cousin-in-law William Jones in the sum of $100,000 with $50,000 to be lodged in cash with the court;
· Mr Jones could offer Mr Ribbon employment with his company in an accounting/bookkeeping role;
· Mr Ribbon was not a flight risk despite having been found guilty by a jury. Strict home detention bail with the guarantees, should allay any concerns the Court had as to flight;
· Mr Ribbon was aware before trial that he would face a substantial term of imprisonment if convicted, yet attended court not only during the trial but also on all pre-trial occasions;
· Mr Ribbon had been arrested on 20 October 2014 and apart from a couple of weeks in custody had been on bail up to the finding of guilt at trial, a period of well over three years. This was a lengthy period of compliance with bail. This bail was only simple bail provided in the Magistrates Court with few conditions;
· during the period on bail Mr Ribbon was given permission to travel interstate on seven occasions from 18 January 2016. His bail was then varied on 2 March 2017 to allow him to travel interstate for the purpose of his work, upon him giving seven days’ notice to the police, and reporting to a local police station on his return to Adelaide;
· if Mr Ribbon had been a genuine flight risk he clearly had connections interstate which he could have used, but over three years he did not;
· there had been a very close analysis of all the evidence against Mr Ribbon before the trial and several arguments regarding admissibility of evidence. Mr Ribbon was well aware of the nature of the case against him and the risks that he may be found guilty;
· Mr Ribbon had significant ties to South Australia with his wife and two of his children and grandchildren living in the state. He also has a daughter in New South Wales. In the circumstances, it would be a very big decision to disappear overseas and leave his family. This is something he has not previously tried to do; and
· Mr Ribbon does not have drug problems or behavioural issues, nor any mental health issues. He has no prior convictions.
In summary, Mr Ribbon’s counsel submitted that to the extent that the risk of flight was increased following conviction, it did not displace the presumption in favour of bail for him. This was even more so with home detention bail with electronic monitoring, which would give the court a level of reassurance regarding the issue of flight.
Bail was opposed by the prosecution for two primary reasons, the first being the seriousness of the alleged offending, and the second being the heightened risk of Mr Ribbon absconding. The seriousness of the offending speaks for itself with the maximum penalty for the offence being twenty-five years imprisonment.
In relation to the risk of Mr Ribbon absconding counsel for the Commonwealth submitted that he now had the benefit of the judgment of the Court of Criminal Appeal and would be aware that the appeal was allowed on the basis of legal errors, that could be rectified at a second trial. The Court had dismissed the ground of appeal that the guilty verdict was unsafe and unsatisfactory. The Court had stated at paragraph 248 of their judgment that even if there were substantial deletions made to the evidence, the evidence was still sufficient to support a guilty verdict. Mr Ribbon was now aware that twelve jurors had unanimously rejected, beyond reasonable doubt, that the various telephone intercepts were somehow innocent.
Counsel also submitted that the evidence at trial showed that Mr Ribbon potentially had a fairly wide network of friends, acquaintances and associates in the South-East Asia area. He submitted that there was a risk of Mr Ribbon absconding even if on home detention and even with his passport surrendered. The provision of guarantees had to be weighed against the gravity of the alleged offending.
Having heard submissions from both counsel, and having regard to all of the facts and circumstances, the Court of Criminal Appeal refused bail. The Court indicated that they had considered the relevant matters under the Bail Act, the nature of the evidence to be led at retrial, and the basis upon which the appeal was allowed. Justice Peek in delivering the ruling of the Court, stated as follows:
The charge alleged against the applicant is particularly serious for a number of reasons and we refer only to the following. First, the degree of sophistication of the enterprise was high. Second, the amount of precursor involved was very large in the amount of methylamphetamine that could have been consequentially manufactured and distributed in Australia was very large and would have been worth a great deal of money, as referred to by Mr Stratton-Smith. Third, the seriousness of the penalty to be imposed for these types of offending are generally serious and the penalty that would apply to this particular case, having regard to all of the facts, would clearly be a very substantial penalty. Indeed, it is sure that a very substantial period of imprisonment would be imposed if the applicant were to be convicted again.
Having regard to all of the facts and circumstances and taking into account all that both counsel has said this morning, we consider that the applicant does pose a serious flight risk. We do not consider that the applicant is a suitable candidate for bail in all the circumstances. Accordingly, the application for bail is refused.[3]
[3] Transcript of 8 October 2019 T11.23 – T12.8.
Application for Bail – 3 March 2020
Mr Ribbon filed an application for bail in this court supported by an affidavit sworn by him on 28 February 2020, an affidavit sworn by his wife, Mrs Sugako Ribbon, on 28 February 2020, and an affidavit sworn by William Jones on 28 February 2020.
By their affidavits Mrs Ribbon and Mr Jones confirmed their offers of guarantee for bail put before the Supreme Court in the respective sums of $20,000 and $100,000. Mr Jones also confirmed that as the owner of the business ‘Allied Cleaning’, with a turnover of $600,000 per year, he was in a position to offer Mr Ribbon a job as an Office Administrator at a salary of $50,000 per annum.
Mrs Ribbon set out in her affidavit that she and her husband no longer own any assets overseas having sold their shares in the business ‘Complete Chemical Manufacturing’ before Mr Ribbon’s arrest. They had not received the purchase price for those shares, never owned any property overseas and only have a handful of acquaintances in South-East Asia. Although Mr Ribbon’s brother Wayne lives in Thailand, and his cousin Craig Harker also may live in Thailand.
Mrs Ribbon deposed to the fact that she and her husband now have no assets beyond a motor vehicle with a value of $5,000 and $11,861.53 in a bank account, as all monies and sale of assets have been used towards his criminal defence.
Mr Ribbon in his affidavit confirmed the information provided by his wife regarding the assets held by him, and that his brother lives in Thailand and cousin may live there as well. He also deposed to the fact that both his Australian and United Kingdom passports had been surrendered to authorities as had his Thai work Visa documentation. Mr Ribbon’s evidence by affidavit is that he does not know how to abscond from Australia without a passport nor how to live and work overseas without passport or visa. His evidence is that he has lived most of his life in Australia and all his family ties are in South Australia and New South Wales. Mr Ribbon also deposes to the fact that he had been advised by his solicitor and counsel, from the outset, that if he was found guilty of the charge against him he would face a substantial prison term. He was aware that if convicted he would face a prison sentence in excess of 10 years.
The other issue raised by Mr Ribbon was the difficulty he had preparing for his re-trial while a prisoner at Mobilong Prison due to the lack of available resources, particular computers. He deposed to the fact that there are many boxes of evidence that exist in relation to the matter and they are held within the prison but he does not have easy access to those documents. He deposed that he is prejudiced in the preparation of his defence given that he has instructed new solicitors and counsel to act on his behalf.
Submissions
Counsel for Mr Ribbon submitted that there was a presumption in favour of bail pursuant to s 10 of the Bail Act as he had not been convicted of an offence. He conceded that issues in relation to the gravity of the offending and the likelihood of the defendant absconding were matters to be considered in finding against the presumption.
However, counsel argued that in determining gravity of the offence the court should not only look at the maximum penalty for the offence, and noted in regard to Mr Ribbon’s offending it is not an offence involving violence or an offence where there is a primary victim requiring protection. In addition, Mr Ribbon had deposed to the fact that he was well aware of the prison sentence facing him if he was convicted of the offence with which he was charged.
In relation to the issue of Mr Ribbon absconding, his counsel submitted that s 10(b)(1) Bail Act required the court to find that there was a likelihood of flight, not just notional possibility, or theoretical risk. In relation to Mr Ribbon, he submitted that his history on simple Magistrates bail for over three years before trial, was not consistent with someone who was likely to abscond. He also relied upon the affidavit evidence of Mr Ribbon and his wife regarding the lack of assets, and his lack of contacts overseas who could assist him if he was to take flight. Counsel submitted, that when properly assessed there was simply no evidence whatsoever that could lead to a determination that there was any likelihood of absconding. Counsel also relied upon the substantial guarantees that had been put up to the Court and also indicated that the applicant’s son Mr Paul Ribbon was prepared to be a guarantor in the sum of $10,000 and Mr Robert Jones was prepared to be a guarantor in the sum of $5,000.
Finally, Mr Ribbon’s counsel submitted that his capacity to properly prepare the case for his next trial was severely restricted by his current circumstances at Mobilong Prison. He put to the Court that in prison Mr Ribbon simply cannot go through all of the email files required, or all of the boxes of documents to properly and fully instruct his new solicitors and counsel.
Counsel for the prosecution maintained their objection to bail being granted and pointed to the decision of the Court of Criminal Appeal of 8 November 2009 refusing bail in what he submitted, were similar circumstances to those now facing Mr Ribbon. He relied upon the same issues that were raised at the previous hearing regarding the gravity of the offending and the risk of Mr Ribbon absconding.
I was referred to the decision of the Full Court in Webster v State of South Australia,[4] a decision where a Judge of the Supreme Court had revoked bail previously granted in the Magistrates Court and the appellant appealed that decision to the Full Court. The appeal was refused as being incompetent upon the basis that the Bail Act is a code, and only two reviewing authorities exist namely a Magistrate and a Judge of the Supreme Court. The finding was that the clear intent of the code is that when the Supreme Court sits as a bail authority, its decision is not subject to review. I was taken particularly to the judgment of Gray J where at paragraph [131] he stated as follows:
A situation may arise where bail has been granted and on review in the Supreme Court the grant of bail is set aside. Bail may be refused in the first instance by a Supreme Court judge. In either circumstances the person presumed innocent will have lost their liberty and, on the Crown’s contention, have no right of appeal or other review. Further applications for bail may be made, but that absent a change of circumstances there will be in practice little or no prospects of success.
[4] (2003) 87 SASR 17
In reply, counsel for Mr Ribbon submitted that there were changed circumstances, namely actual evidence from him and others by way of affidavit. This material was not before the Court of Criminal Appeal. Counsel submitted that the evidence before this court is now clear that Mr Ribbon was aware of the substantial period of imprisonment facing him if convicted a second time; that he did not have a fairly wide network of friends and acquaintances and associates in South-East Asia; that Mr Ribbon was the holder of a British passport, but that this had been surrendered and that he was not aware of how to abscond overseas without a passport.
Counsel for the prosecution submitted that the matters Mr Ribbon deposes to were the same as the submissions that were made on his behalf before the Court of Criminal Appeal, and that the assertions now made by him were not accepted just because they are contained now within affidavits.
Ruling
Section 10 of the Bail Act provides that a person who has been taken into custody and not yet convicted of an offence, should be released on bail unless the bail authority, having considered the circumstances set out in that section, including the gravity of the offence and the likelihood that the applicant would, if released, abscond or offend again, is of the view that the applicant should not be released on bail.
The Supreme Court sitting as the Court of Criminal Appeal, and acting as a bail authority pursuant to s 5 of the Bail Act considered an application by Mr Ribbon for bail after that court had allowed his appeal against conviction by a jury. They considered s 10 of the Bail Act and noted that they had had regard to “… all of the factors to be referred to under the Bail Act and to all of the facts and circumstances of the present case…”.[5]
[5] Transcript of 8 November 2019 T11.20 – 22
The facts and circumstances considered by the Supreme Court included the evidence in the trial of Mr Ribbon as put before the jury, including the evidence that was part of the grounds of appeal. Having considered that evidence it was noted by the Court that the guilty verdict had not been set aside on the ground that there was not sufficient evidence to support a guilty verdict. The application for bail was refused with concerns stated as to the gravity of the offending and the risk of Mr Ribbon absconding before re-trial.
I accept that Mr Ribbon has a right to bring a fresh application for bail as set out in s 12(2) of the Bail Act and confirmed by Debelle J in Webster v State of South Australia.[6] However, in relation to such fresh applications His Honour noted that:
Ordinary prudence dictates that a fresh application would not be made unless circumstances have changed in a way which would justify a fresh application. Nevertheless, there is nothing to prevent a fresh application even in the absence of a change in circumstances.
[6] (2003) 87 SASR 17 at [95]
This statement by Debelle J is consistent with the statement made by Gray J in the same decision as set out above, namely that further applications for bail will have little or no prospects of success absent a change of circumstances.
As I have set out above, the submissions made by Mr Ribbon’s counsel before the Court of Criminal Appeal were largely the same as the submissions made by his counsel before me in the fresh application for bail. The only real difference being that the submissions before me were supported by affidavit evidence from Mr Ribbon, his wife and a guarantor Mr Jones, and in those affidavits, there is more information provided regarding Mr Ribbon’s lack of resources to abscond.
Mr Ribbon’s counsel submitted that this sworn evidence on oath had not been contradicted by the prosecution. Counsel for the prosecution submitted that the assertions in the affidavit were not accepted, and I note that there was no opportunity for any of the deponents to be cross-examined.
Conclusion
Having regard to those submissions and the evidence before me I am not satisfied that there has been a change in circumstances to such an extent that I can come to a different conclusion on bail as that arrived at by the Court of Criminal Appeal. The three judges of that Court had the opportunity, that I have not had, to hear submissions on and consider the full transcript of the evidence at trial. They took that into account in relation to Mr Ribbon’s prospects at re-trial. On the basis of their review of all of the evidence, they concluded that Mr Ribbon’s offending was grave and that he was a serious risk of absconding if allowed bail.
Having reviewed the submissions of Mr Ribbon’s counsel on the bail hearing before the Court of Criminal Appeal, I find that the further information that was provided on affidavit before me, does not amount to a change of circumstances.
Having weighed all of the factors in this matter, I refuse Mr Ribbon’s application for bail.
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