Rasaubale v Commonwealth Director of Public Prosecutions - [2019] WASC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RASAUBALE -v- COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2019] WASC 142
CORAM:   FIANNACA J
HEARD:   27 MARCH & 4 APRIL 2019
DELIVERED          :   4 APRIL 2019
PUBLISHED           :   1 MAY 2019
FILE NO/S:   MBA 17 of 2019
BETWEEN:   SERUPEPELI ANTHONY RASAUBALE
Applicant

AND

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

Catchwords:

Bail application - Importation of more than one tonne of methylamphetamine - Application of cl 1(g) of sch 1 pt C of Bail Act 1982 (WA) - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant	:	Mr T Percy QC & Mr D Renton (27 March 2019)
Respondent	:	Mr L Glenn (27 March 2019)

Solicitors:

Applicant	:	Zara Lawyers
Respondent	:	Director of Public Prosecutions (Cth)

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

AMP Inc v Utilux Pty Ltd [1972] RPC 103
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Quaid [2009] WASC 202
Sabau v The State of Western Australia [2007] WASC 183
The State of Western Australia v Sturgeon [2005] WASC 256
Vander Waide v Western Australia Police [2015] WASC 497
WCVB v The Queen (1989) 1 WAR 279
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

On 4 April 2019, I refused this application for bail and gave brief reasons, with detailed reasons to follow. These are my reasons.

The application and its history

The applicant, Serupepeli Anthony Rasaubale, has applied for bail in respect of a charge of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1 of the Criminal Code (Cth) (the Criminal Code). The application is opposed by the respondent, the Commonwealth Director of Public Prosecutions (the CDPP).
The maximum penalty for the offence is life imprisonment or a fine of $1,575,000 or both.
The offence is alleged to have been committed on 21 December 2017 at Geraldton. The applicant was arrested on that day and has been in custody on remand since then. He is alleged to have been a member of a syndicate that was involved in the importation of more than one tonne of methamphetamine. It is said by the CDPP that it is currently the largest seizure of methamphetamine in Australian history. Eight co‑accused were also charged. In essence, the prosecution's case is that the applicant was caught 'red‑handed' after he and others loaded bags containing the methamphetamine, which had been imported on a marine vessel, into a van he had rented.
The applicant was initially charged with the offence of possessing a commercial quantity of a border controlled drug, contrary to s 307.8 of the Criminal Code. That offence carries the same maximum penalty as the offence of importation under s 307.1. The charge of importation was substituted on 12 December 2018.
In the meantime the applicant had made an application for bail in the Stirling Gardens Magistrates Court, which was heard on 5 December 2018 by Magistrate Whitbread. Her Honour refused the application.
The matter is in the pre-committal stage in the Stirling Gardens Magistrates Court. The applicant's next appearance is on 10 April 2019 for a Committal Mention.

Legislative provisions

The application before this court was filed on 27 February 2019. The application is brought under s 14(2) of the Bail Act 1982 (WA) (the Act). It invokes this Court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail on 5 December 2018.
As the Court's jurisdiction to grant bail arises by the operation of s 13 and sch 1 pt A of the Act, it must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1.
Clause 1 of pt C provides that, subject to cl 3A and cl 3C, neither of which applies in this case, the grant or refusal of bail 'shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested'. It goes on to provide that the discretion shall be exercised having regard to a number of questions set out in pars (a) to (g) of cl 1, 'as well as to any others which [the judicial officer or authorised officer] considers relevant'.
The questions in pars (a) to (g) of cl 1 are non‑exhaustive mandatory considerations.[1] They are non‑exhaustive because cl 1 expressly provides that the judicial officer may have regard to any other questions he or she considers relevant. In this case, such questions are raised by the matters relied upon by the applicant in support of the application. However, the starting point is to consider the mandatory questions in cl 1. Of relevance in this case are the questions in subclauses (a), (e) and (g).
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24].
The questions in cl 1(a) are directed at whether the accused will do a number of things if not kept in custody. The focus is whether there are reasons why bail should not be granted. As McLure P explained in Milenkovski v The State of Western Australia,[2] the consequence of the structure of cl 1 is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
[2] Milenkovski [41].
Ordinarily, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in cl 1, having regard to the matters in cl 3.
The questions in cl 1(a) include whether the accused may fail to appear in court as required by his bail undertaking, whether he may commit an offence, whether he may endanger the safety or welfare of any person and whether he may interfere with witnesses. Clause 3 of pt C provides that, in answering those questions, the court must take into account a number of specific matters set out in that clause, as well as to any others the court considers relevant. The specific matters may be summarised as follows:
(1)the nature and seriousness of the offence or offences and the probable method of dealing with the applicant if he is convicted;
(2)the accused's personal circumstances, including his character and antecedents, which include any previous convictions;
(3)the history of any previous grants of bail; and
(4)the strength of the evidence against him.
If the court is satisfied of the possibility that the accused will do any of the things referred to in cl 1(a), having regard to the matters in cl 3, it must then consider, under cl 1(e), whether there are conditions that could reasonably be imposed which would 'sufficiently remove the possibility' of the accused doing those things.
The proper approach to the questions and considerations in cl 1(a), cl 1(e) and cl 3 was explained in YSN v The State of Western Australia [2017] WASCA 155 at [15] ‑ [21]. The following principles extracted from that decision are relevant for present purposes:
(1)The risk or possibility referred to in cl 1(a) must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer considers relevant;
(2)The court must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period;
(3)The reference in cl 1(e) to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced; and
(4)The possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
For convenience, I will refer to the question in cl 1(e) as whether the risk can be reduced to an acceptable level, which is to be understood in the context of the principles outlined in the preceding paragraph, in particular in points (3) and (4).
As I have said, cl 1(g) is also relevant in this case. That subclause requires the court to consider 'whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate'. The ambit of the provision has been considered in previous cases, notably The State of Western Australia v Sturgeon [2005] WASC 256 (EM Heenan J), Sabau v The State of Western Australia [2007] WASC 183 (Johnson J) and Vander Waide v Western Australia Police [2015] WASC 497 (Simmonds J).
While each of the decisions in Sturgeon and Sabau examined the scope of cl 1(g), each was also concerned with the question of whether an accused was required to demonstrate exceptional circumstances before bail could be granted in the case of particularly serious offences, which was the position that had applied at common law. EM Heenan J and Johnson J came to different conclusions about that issue in those cases. In Milenkovski v The State of Western Australia, the issue was subsequently resolved in favour of the construction that an accused does not need to establish exceptional circumstances if a case falls within cl 1(g).[3] Although Johnson J had come to the contrary position, her Honour's observations in relation to cl 1(g) remain instructive, in my respectful opinion.
[3] Milenkovski [37], [42].
In Sabau, Johnson J made the following observations about the criteria in cl 1(g) (see [14] above), with which I respectfully agree:[4]
This criteria clearly refers to the circumstances of the offence rather than the nature of the charge. It goes beyond offences which are necessarily serious because of their nature, such as murder or wilful murder and would include cases where the charges themselves are not of an inherently serious nature but there is some particular seriousness in the way in which the offences were committed or some other factor relating to the commission of the offences. Of course, in some cases, both the nature and the circumstances of the offence might be particularly serious but I consider cl 1(g) to be broader in scope than the principle stated in cases such as Lim v Gregson, Jemielita v The Queen and WCVB v The Queen.
[4] Sabau [52]. The cases to which her Honour referred are Lim v Gregson [1989] WAR 1, Jemielita v The Queen (1994) 12 WAR 362 and WCVB v The Queen (1989) 1 WAR 279.
The principle stated in the cases referred to by Johnson J was that bail would only be granted in exceptional circumstances where the offence charged was of a particularly serious kind, such as murder. As her Honour noted, cl 1(g) does not refer to the nature of the offence, but to the circumstances of the offence amounting to 'wrongdoing of such a serious nature as to make a grant of bail inappropriate'. Her Honour went on to express agreement with a view that had been expressed by EM Heenan J in Sturgeon[5] that cl 1(g) was, 'to a significant extent, tautologous or circular because in effect it prescribes that the bail be refused if the magnitude of the alleged offending is such as to render it 'inappropriate' to grant bail, without specifying or indicating any objective criteria by which the index of 'inappropriateness' may be evaluated'.[6] Her Honour considered that the words 'such as to make a grant of bail inappropriate' were superfluous and that, when considered together with the introductory words of cl 1, subclause (g) need only read, 'whether the alleged circumstances of the offence or offences amount to wrongdoing of a serious nature'.[7] Her Honour was of the view that, in that way, 'no additional criteria to assist in applying cl 1(g) are required.'[8]
[5] Sturgeon [37].
[6] Sabau [53].
[7] Sabau [53].
[8] Sabau [53].
In my respectful opinion, there is a difficulty with the view that the reference in cl 1(g) to the inappropriateness of bail should be regarded as superfluous. First, in accordance with the ordinary principles of statutory construction, effect should be given to all the words of a provision.[9] Secondly, to reduce cl 1(g) to the formulation suggested by Johnson J in Sabau would appear to give it no effect beyond the requirement in cl 3 that the court have regard to the seriousness of the offence. The reference to 'offence' in that clause must include the circumstances of the offence, as 'the probable method of dealing with the accused … if he is convicted' (which is also referred to in par (a) of cl 3) may depend on those circumstances. Of course, the factor concerning seriousness in cl 3 is directed at answering the questions in cl 1(a). It is linked with the probable disposition in the event of a conviction, which is primarily concerned with the risk that the accused will fail to appear in accordance with a bail undertaking. By contrast, the provisions of cl 1(g) are not linked to cl 1(a). Further, the provisions of cl 1(e), which require consideration of bail conditions that might reasonably be imposed, do not apply to cl 1(g). They are directed at whether the risks referred to in cl 1(a) can be sufficiently reduced.
[9] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby & Hayne JJ).
In my opinion, it is difficult to discern a practical effect for cl 1(g) that is additional to the effect of cl 3(a), unless the inappropriateness of bail because of the seriousness of the circumstances of the offence can be found independently of whether the applicant is likely to do any of the things referred to in cl 1(a). As Gummow J noted in Minister for Resources v Dover Fisheries Pty Ltd:[10]
[I]t being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.
[10] Minister for Resources v Dover Fisheries Pty Ltd(1993) 43 FCR 565, 574, referring to what Lord Reid said in AMP Inc v Utilux Pty Ltd [1972] RPC 103, 109.
In my opinion, the absence of any specified 'objective criteria by which the index of “inappropriateness” may be evaluated', as noted by EM Heenan J in Sturgeon and Johnson J in Sabau, does not mean that the qualification is superfluous. The wording serves to emphasise the discretionary nature of the decision to be made. It is also apt to incorporate community standards or expectations, of the kind referred to by EM Heenan J in Sturgeon when his Honour explained the rationale for the requirement for exceptional reasons in cl 3A, which deals with circumstances in which an accused is applying for bail for a serious offence (which is defined) that is alleged to have been committed while he or she was on bail for another serious offence. His Honour posited that the policy for cl 3A rested 'in the concern of the legislature, responding to public anxiety, that persons who may turn out to be serious serial offenders may be permitted to remain at large when there is public concern about their ever‑present threat to the community'.[11]
[11] Sturgeon [39].
Although cl 1(g) is not concerned with the prospect that the offender may turn out to be a 'serious serial offender', and there is no presumption against the grant of bail in the absence of exceptional reasons, the recognition of public concern about the accused's possible threat to the community, arising from the seriousness of the alleged wrongdoing, may be a relevant consideration in determining that a grant of bail is inappropriate. The seriousness of the alleged offending may be such that no risk of such a threat would be regarded as acceptable, having regard to the principles outlined in YSN (see [16](4) above). Similarly, the seriousness of the alleged wrongdoing and its impact on the community may be such that any residual risk to the course of justice (for instance, from the possibility of flight), after the imposition of reasonable conditions, will be regarded as unacceptable and warranting the detention of the accused, notwithstanding that he has not been convicted and is presumed to be innocent.
In Vander Waide, Simmonds J considered that the approach he should adopt to cl 1(g) was as described in Milenkovski [29] ‑ [39]. In that decision, although McLure P referred to the Second Reading speech for the Bill which became the Bail Amendment Act 1998 (WA), which inserted par (g) of cl 1, her Honour did not specifically deal with the manner in which that paragraph should be construed. However, it is clear from her Honour's reasons (with which Pullin JA and Hall J agreed), that the question in cl 1(g) is to be regarded as one of a number of considerations in the discretionary judgment that the court is required to make. As her Honour said:[12]
The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
[12] Milenkovski [39].
It seems to me that it was in that context that in Vander Waide Simmonds J adopted the approach in Milenkovski. His Honour noted that a denial of bail on the basis of cl 1(g) 'would appear itself necessarily to be an exercise of a discretion described in clause 1's opening words'.[13] However, having referred to the Second Reading speech, his Honour reached the following conclusion, with which I respectfully agree:
It seems to me clear from the language of cl 1(g), confirmed by the language of the extract from the legislative history I have just referred to, that the matter of seriousness is one capable of operating independently of other considerations in relation to the grant of bail.
[13] Vander Waide v Western Australia Police [2015] WASC 497 [121].
The relevant extract from the Second Reading speech by the Honourable Attorney General was as follows:
Another important aspect of the Bill is that it will make the granting of bail inappropriate where the alleged circumstances of the offence amount to wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail.
In my view, the language and context of cl 1(g) is consistent with the stated intention that bail may be considered to be inappropriate even if the answers to the questions in cl 1(a) and (e) would not lead to the conclusion that bail should be denied. It does not amount to a presumption against the grant of bail.[14] To that extent, I accept the submission made by senior counsel for the applicant that a finding that a case falls within the ambit of cl 1(g) cannot be the end of the enquiry the court is required to undertake in the exercise of its discretion. Such a finding does not mean bail is automatically denied. However, such a finding may provide a sufficient basis in the exercise of discretion, weighed against other factors, for the refusal of bail, even if measures could be put in place otherwise to sufficiently reduce the risk of the applicant failing to appear, committing an offence, endangering the safety or welfare of other persons or property, or interfering with witnesses.
[14] Milenkovski [36] ‑ [39].

Senior counsel for the applicant submitted that the ambit of cl 1(g) should be confined to cases in which the evidence is overwhelming and almost incontrovertible, and where the crime is particularly 'heinous', at the highest end of criminality. Counsel also submitted that it would be a rare case in which cl 1(g) would operate to result in a refusal of bail.
In my opinion, the first qualification submitted by counsel involves a gloss on the language of the provision for which there is no basis. There is nothing in the express terms or from the context of cl 1(g) that requires consideration of the strength of the prosecution case. It may be that if the prosecution case against the accused is shown to be weak, less weight would be given to cl 1(g) in the exercise of discretion, but that is very different from making the application of the paragraph conditional on the court being satisfied that the case is almost incontrovertible.
As for the second qualification submitted by counsel, it seems to me, with respect, to be unhelpful to substitute adjectives for the words adopted by the legislature. Given that cl 1(g) must have work to do that is additional to the consideration of the seriousness of the offence under cl 3, as discussed above, it may be accepted that the degree of seriousness with which cl 1(g) is concerned is of a very high order. That would follow from the words 'wrongdoing of such a serious nature' and is confirmed, in my view, by what was said in the Second Reading speech. In my view, that does not mean that the offending has to be in the worst category for the offence charged. However, even if counsel's submission were correct, that the offending must be at the highest end of criminality, it was conceded on behalf of the applicant that this case would fall into that category.
I note that in the Second Reading speech, the Attorney General referred to a person being charged with 'a particularly vicious crime'. To the extent that such language might be confined to a crime of violence, it would appear to have been by way of example only, not a qualification on the application of cl 1(g). There is nothing in the language of cl 1(g) that would justify confining the provision to crimes of violence. To the extent that the inappropriateness of bail is a reflection of community concerns about a person being at large when the allegation is of wrongdoing of a very serious kind, such concerns might be held in respect of various offences which have the potential to cause serious harm to society, including large scale drug distribution.
Ultimately, as Simmonds J approached the matter in Vander Waide, the assessment of whether the seriousness of the alleged conduct is such as to engage cl 1(g) is a matter of impression.[15]
[15] Vander Waide [123].

The evidence in the proceedings

The application is supported by an affidavit of the applicant's solicitor, Ms Aisha Lopez, which outlines the applicant's personal circumstances, issues that have arisen in relation to the applicant's access to the materials disclosed by the prosecution, and information in respect of the proposed bail conditions. Attached to the affidavit are a number of documents, including: certificates in relation to training undertaken by the applicant; a bail assessment report in respect of the suitability of the applicant and certain proposed residential premises for the purposes of home detention; the applicant's criminal history in New South Wales; and documents in support of the suitability and financial capacity of the proposed surety. The applicant also filed the transcript of proceedings before Magistrate Whitbread on 5 December 2018 and a copy of the prosecution notice.
The respondent tendered the prosecution Statement of Material Facts, which outlines the prosecution case against all of the accused in considerable detail (it spans 54 pages), a document headed Elements and Evidence Summary, which specifically outlines the evidence on which the prosecution will rely in the case against the applicant, and witness statements from three of the applicant's co‑accused, SD, JJS and WSH.

The prosecution case

The prosecution case against the applicant relies on a large body of circumstantial evidence, some of which establishes the broader criminal enterprise of which the applicant is alleged to have been a part, and some of which goes to establish more specifically the applicant's role in that enterprise. It is not necessary or appropriate to set out the respondent's detailed outline of evidence in these reasons. It was conceded on behalf of the applicant that it is a strong prosecution case, although it was submitted that it is 'not an incontrovertible case'. Notwithstanding the concession, it is appropriate to provide a summary of the case, focussing on the evidence against the applicant.
The evidence on which the prosecution will rely was the product of a joint agency investigation, which commenced on 11 July 2017, following the suspected importation of a commercial quantity of border controlled drugs into Geraldton, Western Australia on board the Marine Vessel Valkoista. The investigation involved a number of agencies, including the Australian Federal Police, WA Police and Australian Border Force. The evidence includes bank records and business records in respect of the purchase of airline tickets, the purchase of vehicles and the hiring of vehicles. It also includes the observations of police surveillance operatives, CCTV footage, and the product of intercepted telephone calls and text messages. Finally, it includes the evidence of police officers involved in the arrest of the applicant and the co-accused and the seizure of the drugs, and expert evidence in respect of the analysis of the drugs.
In brief, the criminal enterprise is alleged to have involved the use of the Valkoista to collect a large haul of methamphetamine from an international marine vessel offshore, to be loaded into a van or truck in Geraldton and transported to Perth, potentially to be further transported interstate. The syndicate involved is alleged to have consisted of three groups of participants: the 'boat crew', being those involved in acquiring, navigating and being crew on the Valkoista; the 'shore party', which was responsible for travelling to Western Australia from NSW, buying and hiring vehicles to transport the drugs from Geraldton, and loading the drugs for transportation, once they had been brought to shore on the Valkoista; and the 'organisers', who appear to have organised the finances for the enterprise, made arrangements for the delivery of the drugs and issued instructions to the boat crew and shore party. The shore party is alleged to have consisted of the applicant, who was in charge of that group, WSH and Mr Kaena.
The Valkoista was purchased from a marine broker in Hillarys on 5 July 2017 and was registered in the name of JJS, who had been recruited by the syndicate to purchase the boat and to be its skipper. Another co‑accused, Mr Bouhamdan, went with JJS to the broker to arrange for a viewing of the vessel. Ownership of the vessel was transferred to JJS on 7 July 2017.
It is apparent from conversations between the boat crew and at least one of the organisers that fishing equipment was bought and plans were made as to the use of the vessel to give the appearance that it was being used legitimately for fishing. At a later time, in September 2017, a fishing tour operations licence was bought by JJS in a further effort to legitimise the use of the Valkoista.
On 5 July 2017, when the vessel was being purchased, the applicant and others travelled to Perth by air. Two vans were hired.
On 7 July 2017, the Valkoista departed from the Hillarys Boat Harbour with JJS and Mr Bouhamdan on board. In the early hours of 11 July 2017, the vessel docked at the Geraldton Marina. A few hours later, still early in the morning, one of the vans that had been hired was driven onto the Geraldton Public Jetty where some 30 to 32 items were transferred from the Valkoista to the van. JJS and Mr Bouhamdan subsequently returned to Sydney the same day.
Between 11 and 13 July 2017, a telephone service belonging to the applicant, along with the telecommunication services of two co‑accused, interacted with cell phone towers between Geraldton and Sydney in a manner consistent with them travelling from Geraldton to Sydney. On that basis, it is alleged the applicant was involved in what is referred to as the 'first drive across Australia'.
It is then alleged that the applicant took part in the 'September activities'. Those activities included a meeting in Perth on 19 September 2017 between other co‑accused, including one of the organisers and one of the boat crew, at which planning for the importation was discussed. As for the applicant, he travelled to Perth by air on 28 September 2017, along with WSH and Mr Kaena. A car was hired at Perth Airport by WSH, and all three travelled in the car to Geraldton under the direction of a fourth co‑accused who was not with them. The prosecution alleges that the purpose of that visit to Geraldton was to take possession of a commercial quantity of a border controlled drug. However, no importation took place on that occasion. The applicant and his two co accused were directed to return to Perth Airport, where they returned the hire car.
At 5.38 pm on 1 October 2017, six minutes after returning the hire car at Perth Airport, the applicant hired a vehicle from a different hire company at the airport, with the intention of driving from Perth to Sydney. Bank records show that the applicant's bank card was used ten times between Western Australia and South Australia from 1 to 3 October 2017.
The vehicle the applicant hired at Perth Airport was returned to a company depot at Adelaide Airport on 3 October 2017 at 8.18 am. When the car was returned, it was recorded in the relevant business documentation that it had travelled 2,753 kilometres, a distance consistent with a journey from Perth to Adelaide. The two co‑accused who had travelled with the applicant took a flight from Adelaide to Sydney. The applicant remained in Adelaide.
The syndicate's activities that followed included the acquisition of satellite telephones and equipment commonly used to join two vessels at sea.
From 30 October 2017, the applicant was in contact with a person he called 'Tarzan'. The prosecution alleges that 'Tarzan' is the co‑accused Mr Harb, who is said to have been one of the organisers. References henceforth to Mr Harb making contact by text message with the applicant are to messages from 'Tarzan'. From 30 October to 5 November 2017, the applicant and Mr Harb were in contact by telephone regarding the booking of flights and obtaining refunds for travel.
At 1.05 pm on 5 November 2017, Mr Harb sent the applicant a number of text messages. At least one of them instructed the applicant and the 'guys' to be ready. Later that day the applicant and two co‑accused flew from Sydney to Perth. They took a taxi from Perth Airport to the Criterion Hotel in Perth, where they checked in for five nights.
I note that JJS had travelled to Perth from Sydney on 1 November 2017, and had then travelled to Geraldton.
On 7 November 2017, the applicant purchased a 2 tonne Hino truck from AUS Cars and Commercials in Bassendean. The truck was registered in the applicant's name.
On 9 November 2017, 'Tarzan' sent the applicant a text message indicating that Mr Rasaubale was the 'boss' and the two co‑accused with him were 'workers'. The applicant was directed to give a 'toy' to the two co‑accused who were with him. It is alleged that the 'toy' was a Blackberry device later found in the shore party's possession.
On 10 November 2017 the following text message conversation took place between the applicant and Mr Harb:
10:20:00 -
RASAUBALE: Did you receive what we were expecting or not
HARB: I need to come to talk to you. Where are you
RASAUBALE: I'm still here bro. I'm getting the 11 o'clock flight so I can get there early in the morning
20:20:26 -
HARB: I'll make the call now if you want. Haven't asked anyone
RASAUBALE: Are you fuckin serious, nothings there
On 13 November 2017, the applicant and the two co‑accused changed accommodation to the Comfort Inn Bel Eyre Perth, which is in Belmont.
That evening, two of the boat crew, Mr Bouhamdan and Mr Cafcakis, arrived in Perth from Melbourne. At about 10.00 pm that night, the applicant, WSH and Mr Kaena were observed driving in the first Hino truck to a carpark in Hillarys where they met with Mr Bouhamdan and Mr Cafcakis. Mr Bouhamdan handed the applicant a satellite phone.
It appears that all of those present for that meeting subsequently returned to either Sydney or Adelaide, before travelling again later to Western Australia for the importation. In the interim, further meetings took place between various co‑accused and preparations for the importation continued. When the boat crew eventually returned to Geraldton, conversations between them while on board the Valkoista were recorded lawfully by the use of a listening device. It is sufficient to say that the evidence indicates there were some tensions between members of the syndicate, that some problems had arisen in relation to the enterprise, that there were concerns about the timing of the rendezvous with the international vessel from which the drugs were to be transferred, but that ultimately the plan was in place to proceed.
On 23 November 2017, the applicant flew from Sydney to Perth and checked into the Criterion Hotel.
On 24 November 2017, he used his phone to have a conversation with Mr Harb. During the call, the applicant advised Mr Harb that he was going to buy another truck, leave one in Perth and drive the second back. Mr Harb advised the applicant to do what would make him happy, but not to get into a situation that he would be unable to get out of.
On 25 November 2017, the applicant attended WA Hino Sales and Service, in Welshpool. As a result of the visit he entered into an agreement to purchase a second Hino truck (the second Hino Truck).
On 26 November 2017, the applicant used his phone to have a conversation with Mr Harb, who advised the applicant not to leave Perth until he was sure of something.
On 27 November 2017 the applicant left Perth in the first Hino truck he had bought.
On 28 November 2017, WA Hino Sales and Service received a $20,000 electronic fund transfer from the applicant for partial purchase of the second Hino truck.
On 14 December 2017, JJS flew to Perth from Sydney. On 17 December 2017, Mr Bouhamdan and Mr Cafcakis, the other two in the boat crew, also flew to Perth from Sydney.
On 17 December 2017, the applicant, WSH and Mr Kaena flew from Sydney to Perth, arriving in Perth at about 11.50 pm. Prior to the flight, Mr Kaena received a message on the Blackberry from the contact name 'Bornin2Money', stating '[an address]. Bring this with u bro'. That address was the residential address of Mr Harb.
Upon landing in Perth, the applicant, WSH and Mr Kaena checked into the Comfort Inn Bel Eyre in Belmont.
On 18 December 2017, after refuelling and taking aboard food supplies, the Valkoista departed Geraldton at about 2.13 pm with JJS, Mr Bouhamdan and Mr Cafcakis on board. Between its departure and 9.38 pm the following day, the vessel travelled approximately 300 nautical miles westward off the coast of Western Australia, where it rendezvoused at sea with another ship and took possession of approximately 1.2 tonnes of border controlled drugs.
Around 10.12 am on 19 December 2017, while the Valkoista was at sea, the applicant was observed hiring a Ducato van from Rent WA in Guildford.
Around 7.45 pm on 20 December 2017, the second Hino Truck and the applicant's rented van were driven by the shore party and were observed in Geraldton. CCTV footage shows that the second Hino Truck was parked and left in a street in Webberton, approximately five kilometres from the Batavia Coast Marina in Geraldton.
At 1.30 am on 21 December 2017, police observed the Valkoista at sea, while it was returning to Geraldton. The vessel entered the Batavia Coast Marina at 1.55 am. The boat crew disembarked after the engines were turned off, shortly after 2.00 am. JJS and Mr Cafcakis subsequently returned to the vessel, while Mr Bouhamdan remained in a vehicle. At 3.25 am, the vessel was moved a short distance to the Batavia Coast Marina public jetty, where it was tied up alongside the jetty.
At 3.37 am, the applicant's rented van was observed to drive onto the jetty and park adjacent to the Valkoista. Over the next eight minutes, 59 bags containing approximately 1.2 tonnes of methamphetamine were transferred from the Valkoista to the van. One bag containing about 20 kilograms of methamphetamine was left on the Valkoista.
At 3.47 am police intercepted the applicant's rented van as it was reversing off the jetty. Police also boarded the Valkoista as it was preparing to move. The applicant and five co‑accused were arrested.
As a result of the arrest police executed a number of search warrants.
Upon searching the applicant's rented van, they located the 59 bags that were transferred from the Valkoista to the van. When one of the bags from the van was subsequently opened, it was found to contain 20 bricks of a crystalline substance that tested positive for methamphetamine. Later analysis showed that the methamphetamine that was seized weighed a total of 1,194 kg and was of a purity of 79.8% ‑ 80%.
In addition to a substantial body of circumstantial evidence, including communications between the applicant and alleged accomplices, the prosecution intends to rely on the evidence of three alleged accomplices, two of whom (JJS and SMD) have been convicted on their pleas of guilty to the same offence with which the applicant is charged and have been sentenced, and the other of whom (WSH) has also pleaded guilty, but is yet to be sentenced.
JJS, who was recruited to navigate the Valkoista for the importation, describes a meeting, at the time he was being recruited, at which the applicant was present with other alleged accomplices, in which the applicant took part in a conversation about collecting something off the coast and transferring it from a larger boat into a smaller boat. He also identifies the applicant as one of the persons who transferred the bags of methamphetamine from the Valkoista to the van.
SMD states that he first met the applicant, in the context of the criminal enterprise in July 2017. He describes the applicant as being one of the 'ground crew', and says the applicant appeared to be in charge of that crew. That is consistent with the text message sent by 'Tarzan' to the applicant on 9 November 2017, when the applicant was told he was the 'boss' of that crew.
WSH was one of the shore party. He describes his interactions with the applicant after he was recruited by Mr Kaena, who was known to him. Apart from confirming the applicant's involvement in the first trip that involved driving back from Western Australia through South Australia, and confirming activities undertaken by the applicant that indicated he was in charge of the shore party, WSH describes a number of conversations with the applicant in which the applicant indicated his knowledge of what was being imported. First, during the drive back to Sydney (which actually ended in South Australia) the applicant is alleged to have said they could not pass the border checkpoint and would have to use a particular dirt track 'they had used previously with a 600 kg drug run that he did in the seventh month of 2017'.[16] WSH also states that the applicant spoke about where the 600 kg of drugs had gone and its distribution. WSH states that the applicant spoke about the 600 kg job again at a later time in Sydney.
[16] Statement of WSH, 5 March 2019, [32].
WSH states that during the trip to Perth in early November 2017, during a discussion about how much payment Mr Kaena and WSH had been offered by an international connection to remain on the job, the applicant said he was being paid $2,000,000.[17]
[17] Statement of WSH, 5 March 2019, [42].

WSH also states that when the shore part arrived in Geraldton, the truck was left in an industrial area because the applicant said that 'the plan was to load the drugs into the van and then drive to the industrial area and put them in the truck'.[18]
[18] Statement of WSH, 5 March 2019, [73].
It is significant also that WSH states he was aware that what was being imported was 'drugs', although he claims not to have known which particular drugs. His awareness appears to have come from discussions with Mr Kaena, Mr Harb and the applicant.

The applicant's defence

Although the applicant did not provide evidence concerning the allegations, at the hearing senior counsel for the applicant said that what will be in issue is the applicant's knowledge of the nature of the goods that were imported. That is, in general terms it will not be in issue at trial that he engaged in activities that resulted in the importation of a border controlled drug. What will be in issue is that he knew that what was being imported was a border controlled drug, or that he was reckless as to that fact. It will be contended that he did not intend to aid in the importation of a border controlled drug.[19]
[19] ts 5.
There is nothing in the evidential material referred to by the respondent that provides any obvious foundation for that contention. The prosecution must prove the applicant's knowledge and intention as alleged, but those matters can be inferred from all of the circumstances. Further, the evidence WSH, if accepted, would be capable of establishing, or at least reinforcing the finding, that the applicant knew he was involved in the importation of a border controlled drug.
Senior counsel for the applicant noted, properly, that a direction will be given to the jury about the caution it will need exercise before it could rely on the evidence of the alleged accomplices to make any adverse finding against the applicant. That is so, but a jury may rely on the evidence nevertheless, and at this stage it is sufficient to say that the evidence of the alleged accomplices, especially WSH, adds to the strength of the circumstantial evidence against the applicant.

The strength of the prosecution case

It is not the task of the court on a bail application to make findings in relation to the alleged facts of offending. The applicant is presumed innocent. It will be for a jury in due course to determine whether the case against the applicant is proved beyond reasonable doubt. However, the court is required to make an assessment of the strength of the evidence against the applicant, if that is possible. That assessment is one of the factors that informs the court's findings in respect of the questions in cl 1. As McLure P noted in Milenkovski:[20]
The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
[20] Milenkovski [42].
In this case it is possible because of the detailed information provided to the court about the evidence, and the fact that much of it will not be in issue.
The respondent's description that the applicant was caught 'red-handed' is apt, having regard to all the circumstances disclosed in the Statement of Material Facts. There is a very strong case that the applicant was knowingly involved in the importation of illicit goods by boat, involving the transfer of the goods from an international vessel to a domestic vessel. There is a very strong case that he played an integral role in that importation as a member of the shore party.
The issue of whether he knew that the goods were a border controlled drug, or whether he was reckless in relation to that fact, will need to be assessed in light of the sophistication of the criminal enterprise, the number of people involved, and the financial outlay, including numerous flights, the purchase of a boat and vehicles. It will also be relevant to have regard to the applicant's background, which is outlined below, and which suggests the applicant is an intelligent individual with experience in logistics and national security. Finally, as I have already noted, despite the caution a jury will need to exercise in relation to the evidence of any accomplice, that evidence, if accepted would reinforce a finding that the applicant knowingly assisted in the importation of a border controlled drug.
Taking all of those matters into account, I consider that, notwithstanding his intended defence, the applicant must apprehend that the strength of the case against him in respect of his knowledge is such that there is a real prospect that he will be convicted of the offence charged.

The applicant's personal circumstances

The applicant is 34 years of age. He was born in Fiji and moved to Australia with his family in 1986 (when he was about 2 years old). His family lived in Bankstown, in Western Sydney.
At the time of his arrest, the applicant was living in Campsie, New South Wales.
The applicant's parents are leading pastors in a Fijian church in New South Wales. All of the applicant's family are involved with the church.
The applicant has two brothers, aged 32 and 31. The 31‑year‑old is studying and working as an enrolled nurse. The 32‑year‑old was in a trucking business with the applicant. He has continued to run the business since the applicant's arrest.
The applicant also has an aunt who was involved in looking after the applicant and his brothers when they were children. She is willing to be the applicant's surety and has offered the equity in her home (which is approximately $460,000) as surety. The information provided by the applicant's solicitor indicates that the applicant's aunt is a person of good character.
Having completed high school, the applicant did some study at university in respect of aviation before discontinuing the course to focus on obtaining a commercial pilot's licence, which he achieved in 2006, after four years of training. He subsequently joined the Military and obtained a qualification as an Aircraft Technician in 2009. He was Dux of his year. After completing further training at the Army Aviation Training Centre in Queensland, the applicant was employed as a full‑time Aircraft Technician Supervisor, achieving the rank of Corporal. His subsequent deployments included working in a unit providing Domestic Counter Terrorism Security at the G20 Summit in Brisbane in 2014.
In 2017, the applicant left the Military and commenced working as a sole trader, driving a truck in his business 'Mr Fiji Transport'. He worked as a subcontractor for a number of companies.
The applicant's 32‑year‑old brother now manages the trucking business.
At the same time as he was running his business, the applicant was also completing his Command Instrument Rating with the Sydney Flying College on a part‑time basis. He was also completing bi‑annual flight training. However, the applicant's solicitor states that the applicant does not have a current and valid flying licence, as he has not completed the required training modules and has not flown in the last two years as required. She states that the applicant's flight training does not permit him to fly aircraft that have the capacity to travel long distances, and his experience thus far has been with aircraft that have single engines and minimal fuel capacity.
The applicant has a criminal history in New South Wales consisting of driving offences, an offence of providing a false name of address as the driver of a vehicle, and an offence of stalking or intimidating intending fear of physical harm. In respect of the latter, he was fined $1,500. The applicant's solicitor explains in her affidavit that the offence arose out of a dispute between the applicant's housemate and his housemate's friend (the complainant) arising out of an allegation that the complainant had stolen the housemate's dog. The argument occurred outside an apartment block and the applicant was present. I find it difficult to accept that the applicant would be charged simply on the basis that he was present. On its face, the conviction indicates that the applicant was prepared to engage in intimidating behaviour.
The applicant has no history of breaching bail, although it is not apparent whether he was on bail for all or any of the offences for which he has convictions. If he was previously on bail, there is no information as to the conditions that applied. In any event, none of the previous charges, or the potential consequences from them, were comparable to the present case.
The Bail Assessment Report that was prepared for the bail application in the Stirling Gardens Magistrates Court to determine the suitability of certain premises and the applicant for home detention, was accepted in these proceedings to still be current. The report notes that the applicant has no friends, family or supports in Western Australia. However, his brother has indicated that he is willing to come to Western Australia from New South Wales to help the applicant set up his home.
It was proposed that the applicant reside at a property in Golden Bay which was available to him at the time of the hearing. The lessor, who is a friend of a person the applicant has met while in custody, was willing to lease the residential property to the applicant, in the knowledge that the applicant would be on home detention bail. The arrangement to lease the property was made 'primarily' with the applicant's brother. It appears that the next door neighbours were prepared to provide some support to the applicant, in that they had offered to provide him with transport from his place of custody to his home.
The property at Golden Bay was assessed to be suitable for home detention.
If released on bail, the applicant intends to work for a wage in the 'Mr Fiji Transport' business, 'manning telephones and working logistics', which would not require him to leave home.

The parties' submissions

In opposing the application, the respondent submitted that the questions of significance in this case are whether, if not kept in custody, the applicant will fail to appear in court, will commit an offence or will interfere with witnesses. The respondent submitted that, on the materials before the court, I can be satisfied that each of those things may occur. The respondent also submitted that this is a case that comes within the ambit of cl 1(g), and that the seriousness of the circumstances of the alleged offence are such that a grant of bail would be inappropriate independently of the consideration of the questions in cl 1(a) and cl 1(e).
As will appear below, I consider that the case turns on the seriousness of the alleged offending and the risk that the applicant will fail to appear in order to stand trial, if he is not kept in custody. The possibility that the applicant would do any of the things specified in cl 1(a) arises by way of inference, having regard to the factors in cl 3. In my opinion, it is doubtful that the circumstances would support the inference that the applicant would interfere with witnesses. Similarly, it seems to me that any inference that the applicant would commit an offence would be linked to the risk that he would abscond. Therefore, I do not consider it necessary to make any finding about the matters referred to by the respondent under cl 1(a) other than the risk of flight.
The applicant did not dispute that it can be inferred from all the circumstances that there is a possibility he will fail to appear if he is not kept in custody. However, he submitted that the possibility can be sufficiently reduced by the imposition of reasonable conditions, including home detention. He relied essentially on three factors which he submits, in combination, weigh in favour of a grant of bail, notwithstanding the seriousness of the alleged offending and the risk of flight that may be inferred. They are:
(a)the delay before a trial could be held, which could see the applicant remain in custody for over two years before trial;
(b)the difficulties the applicant has and may continue to have in being able to access the prosecution brief and provide instructions to his counsel in the custodial setting; and
(c)the need for the applicant to be able to run his business to fund his defence.
Before dealing with those matters, which can properly be taken into account as 'other matters' under cl 1 and cl 3, it is appropriate to deal with the specific questions that are relevant in this case under cl 1.

Consideration of cl 1 questions

Consistently with the approach I consider to be appropriate in relation to cl 1(g), as discussed at [29] above, the considerations under that subclause must be weighed with (or against) the considerations under cl 1(a) and cl 1(e). I will deal first with the issue of risk of flight and the measures that can be put in place to reduce that risk. It is necessary to assess those questions having regard to the matters specifically identified in cl 3.

Whether the applicant may not appear

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. It is accepted on the applicant's behalf that if he is convicted the applicant would receive a significant term of imprisonment. In fact, it is conceded that the alleged offending is in the worst category for the offence charged and is likely to attract a term of life imprisonment. That has been the case in respect of the two co‑accused who have been sentenced. Further the minimum non‑parole period the applicant would be required to serve, if convicted, would potentially be in excess of 20 years, having regard to the sentencing standards for offending at the higher end of the scale of seriousness.
The probable outcome in the event of conviction provides a powerful incentive for the applicant to abscond in order to avoid that outcome. That is a matter of logic, experience and commonsense.[21] The possibility that the applicant will be motivated to do so is reinforced by consideration of the last matter under cl 3, namely the strength of the evidence against the applicant. As I said earlier, I am satisfied that the evidence, as outlined in these proceedings, discloses a strong case against the applicant, such that the applicant must apprehend there is a real prospect that he will be convicted of the offence charged.
[21] Milenkovski [53] (Hall J).
The next specific matter to be considered under cl 3 is the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant. I referred to those matters in outlining the applicant's personal circumstances. On balance, I consider the effect of those matters to be neutral in considering the applicant's flight risk. The applicant's background reveals a person of relatively good character from a good family. However, it appears not to be in issue that he was prepared to associate with persons who were involved in a substantial sophisticated criminal enterprise (putting aside his knowledge of what was being imported illicitly), and he was willing to have a significant role in that enterprise and engage in clandestine conduct over a lengthy period. In those circumstances, his antecedents can have little, if any, predictive value in assessing the possibility that the applicant will do any of the things referred to in cl 1(a).
The final specific matter to be considered under cl 3 is the history of any previous grants of bail to the applicant. As I noted earlier, he has no history of breaching bail, but there is no information as to any previous grant of bail and, in any event, none of the offences of which he has been convicted previously was of comparable seriousness to the charge in this case. Therefore, I regard the effect of this factor to be neutral in considering the applicant's flight risk.
Having taken into account all of the matters under cl 3, I am satisfied that the applicant poses a significant flight risk, for the reasons outlined in [110] and [111] above.
Turning to the conditions that could be reasonably imposed, the applicant submitted that, apart from any other conditions the court may consider necessary, the following conditions would sufficiently reduce the risk of flight, such that the applicant's detention on remand would no longer be warranted:
(1)There be a surety in the sum of $440,000, provided by the applicant's aunt, by way of equity in the property owned by her in New South Wales;
(2)The applicant be subject to home detention conditions and reside at the property in Golden Bay;
(3)The applicant report to a designated police station between the hours of 5.00 am and 9.00 pm daily;
(4)The applicant surrender his passport to the Investigating Officer or the Court registry;
(5)The applicant is not to apply for a passport or any other travel document;
(6)The applicant is not to approach within 100 metres of any point of international departure;
(7)The applicant is not to leave Australia;
(8)The applicant is not to leave the State of Western Australia; and
(9)The applicant is to use only one 'smart phone' and provide the number of the SIM card and the IMEI number of the phone to the Investigating Officer.
Notwithstanding the fact that there is no history of the applicant breaching bail and the availability of suitable accommodation for home detention, I am not satisfied that the combination of proposed conditions would prevent the applicant from absconding if he chose to do so. Further, I consider that the incentive for the applicant to make that choice (as discussed above) is such that the very substantial potential loss to his aunt, if she were accepted as surety, would not be a sufficient counterweight to justify the court having any confidence that the applicant would comply with his bail undertaking.
The following view expressed by Le Miere J in R v Quaid [2009] WASC 202 [43] is apt in this case:
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 case involved a charge of conspiracy to traffic in a commercial quantity of a border controlled drug. On the evidence presented in that case, Le Miere J concluded that the accused had the 'means and associations' to flee if he chose to do so.
Similarly in this case, the nature of the syndicate and the operation disclosed in the Statement of Material Facts and the materials from the prosecution brief that were tendered in the application, support the conclusion that the applicant has the means and associations to abscond if he chose to do so. On the facts alleged in those materials, it was a sophisticated operation in which the applicant was an integral and trusted participant. It may be inferred from the apparent nature of the syndicate that it would have the means to overcome any conditions of the kind that have been proposed that could reasonably be imposed to ensure that the applicant were to comply with an undertaking to appear in relation to this matter. In my opinion, that inference can be drawn notwithstanding the restrictive nature of the conditions, including the reporting condition and home detention, which would include electronic monitoring by a tracking device affixed to the applicant.
The condition concerning the use of one telephone would rely on trust being placed in the applicant to comply. It would not prevent him from gaining access to a telephone or other means of communication surreptitiously, if he chose to do so in breach of such a condition. While other conditions could be formulated intended to prevent the applicant from having contact with persons who might be inclined to assist him to abscond, compliance with such conditions would be difficult to monitor. The adequacy of conditions to sufficiently reduce the risk of the applicant failing to appear should not depend on obligations being placed on law enforcement agencies to take additional actions, such as surveillance.

The respondent noted that travel records obtained by the authorities indicate that the applicant has travelled overseas and interstate on numerous occasions. It also pointed to the fact that the applicant has no ties to Western Australia. His main residence and family are in New South Wales. I note also that his aunt, who is prepared to be his surety, also lives in New South Wales and would not be in a position to personally ensure the applicant's attendance at court. Finally, the respondent submitted that the applicant's qualifications, training and experience in aviation are relevant considerations in determining whether he has the means to abscond, despite the limitations referred to at [98] above.
I consider that the matters outlined in the preceding paragraph tend to reinforce the conclusion that the proposed conditions would not adequately mitigate the risk that the applicant would abscond.
In summary, I consider that there are no conditions which could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear in court.

Clause 1(g) is satisfied

In any event, I am satisfied that this case does come within cl 1(g), having regard to the matters I referred to at [25] and [29] above. In my opinion, the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make the grant of bail inappropriate, in that no degree of risk that the applicant would abscond would be regarded as acceptable, having regard to the principles outlined in YSN. That is so because the alleged offending is in the worst category for an offence of its kind, as was conceded on the applicant's behalf,[22] and the applicant was apprehended in circumstances in which he was loading the drugs with others into a van hired by him. The fact that the issue at trial may be that the applicant was not aware that what he was loading into the van was a border controlled drug, and that he was not reckless in that regard, does not detract from the conclusion I have reached in respect of cl 1(g), in light of the strength of the case against him, as I have found it to be.
[22] ts 5 ‑ 6.
The operations of organised international drug syndicates on the scale involved in this case are difficult to detect, and the investigation and bringing to trial of those involved in the importation of prohibited and dangerous drugs as part of such operations require the expenditure of enormous resources. In this case, the community interest in ensuring that persons who are charged with such offending are brought to trial is such, in my view, that keeping the applicant in custody prior to trial is warranted if there is any residual risk to the course of justice, after consideration of the matters in cl 1(a) and cl 1(e).
In coming to that view, I have weighed the factors put forward on the applicant's behalf in support of the application.

The applicant's arguments

Delay

By far the most significant factor on which the applicant relies is the time that will have elapsed, since the applicant went into custody, before a trial will take place. It was submitted that the delay has been exacerbated by the 'relatively recent' arrest of the co‑accused Mr Harb. He was arrested in New South Wales on 21 December 2018, after an arrest warrant had issued from the Magistrates Court in Western Australia on 4 October 2018. After his arrest, he was extradited to Western Australia.
The applicant submitted that tentative trial dates had been considered for July to September 2019, but the arrest of Mr Harb and the need for charge against him to proceed in the usual way through the Magistrates Court meant that the tentative dates could not be utilised.
Counsel for the respondent informed me that Mr Harb had been provided with full disclosure and was in a position to be committed for trial at his next appearance in the Stirling Gardens Magistrates Court. He also informed me that the inclusion of Mr Harb as an accused in the proceedings would 'not overly complicate an already complicated matter'.
Nevertheless, it is intended that the applicant will be tried with six co‑accused, and it was agreed between the parties at the hearing of this application that the trial may occupy in the order of 12 weeks, and a trial of that length is unlikely to proceed until early next year. There is the prospect, therefore, that the applicant (who was arrested on 21 December 2017) will have been in custody for more than two years prior to the commencement of his trial.
Significant delay is a matter that can be taken into account as a basis for justifying the grant of bail, when weighed against other considerations under cl 1 of sch 1 pt C of the Act. The reason is obvious. The inevitable consequence of an accused being kept in custody for a very lengthy period before trial is that he will have suffered a serious injustice if he is acquitted. However, while such a consequence is regrettable, there will be cases in which it cannot be avoided in order to safeguard the administration of justice. In such cases, the seriousness of the alleged offending and the risk of flight may be of such a high order that, despite the potential injustice, bail is nevertheless inappropriate. In my opinion, this is such a case.
In my view, assuming the trial will proceed in early 2020, this is not a case in which the delay could be said to have been unreasonable or unjustifiable because of the conduct of the prosecution, which might have warranted giving that factor greater weight. As the respondent submitted, it would not be reasonable to characterise in that way the time it has taken to advance the prosecution, given the protracted nature of what was a multi‑agency investigation into an international drug syndicate, which was conducted in various jurisdictions both within and outside of Australia. Of course, the possibility that a grant of bail may become appropriate at a later time if the delay does become unreasonable is not foreclosed by a refusal of bail on this occasion.

Difficulty accessing brief and giving instructions

The second matter relied on by the applicant concerns his (and his counsel's) ability to properly prepare for his trial, in order to ensure that the trial is fair.
The applicant's solicitor, Ms Lopez, attested in her affidavit to difficulties the applicant had experienced in gaining access, while in custody, to the voluminous materials constituting the prosecution brief. In electronic form, the prosecution brief contains approximately 34GB of data. The applicant was provided with the materials in electronic and hard copy format. Some of the electronic materials (such as recordings of intercepted calls, surveillance material and CCTV footage) could not be produced in hard copy and had to be accessed on a computer. It was submitted on the basis of the information in Ms Lopez's affidavit that 'the applicant has unsatisfactory access to a computer while in custody to review the brief, make notes in relation to its contents and properly communicate his instructions to his solicitor.' Further, the hard copy that was provided to the applicant had become disorganised as a result of prison staff removing certain parts that were deemed to be 'sensitive'. Although the whole of the brief was returned to the applicant, he had difficulty putting it back in order.
Counsel for the respondent referred to communications the investigating officer had with the responsible officer at the prison where the applicant is being held, as a result of which an arrangement had been put in place for the applicant to have access to a computer two to three hours a day for up to two weeks, with further access to be considered if necessary. The access would be to a laptop with a hard drive containing the prosecution brief. I note that the arrangement had been pursued after Magistrate Whitbread had required that enquiries be made, when the issue of access to the brief was raised before her.
In his evidence at the hearing, the applicant said that he had not been told of that arrangement. He said he had only had seven hours of access to the electronic brief on a laptop. He said that, on an occasion when his co-accused were given access to the brief on a laptop, he was not informed.
In any event, the applicant is now aware of the arrangement brokered by the investigating officer, and it would be expected that the arrangement would be honoured by the officers responsible for providing access to the laptops at the prison. Any continuing difficulties in relation to the applicant accessing the prosecution brief and providing instructions are matters which need to be addressed by the Executive.
In conclusion on this point, I am not satisfied that the difficulties the applicant has experienced in gaining access to the prosecution brief cannot be overcome. Nor are the logistical difficulties in counsel taking instructions insurmountable. I am not satisfied, on the information available in the proceedings, that the applicant would be denied a fair trial, if he remains in custody, because of an inability to access the evidence or provide instructions to his counsel. Senior counsel for the applicant quite properly conceded that they are not matters that would, without more, justify a grant of bail.

The need for the applicant to be able to run his business

As for the applicant's need to earn an income to fund his defence, that is not an unusual circumstance for an accused to be in. The applicant's counsel acknowledged that it would not be a sufficient basis alone to justify bail in the circumstances of this case, but it was said to strengthen the argument in relation to delay. I note that, in her affidavit, Ms Lopez states that the applicant's brother, who is the applicant's partner in the business, is continuing to conduct the business.

Conclusion in relation to the additional factors

I have had regard to each of the factors raised by the applicant and whether, in combination with the proposed conditions for bail, a grant of bail would be appropriate, despite the conclusions I have reached in respect of the seriousness of the alleged offending and the significant risk that the applicant would not comply with a bail undertaking to appear. I am of the view that the matters on which the applicant relies do not outweigh the factors that otherwise make a grant of bail inappropriate. Those factors remain compelling reasons why the applicant should be kept in custody pending trial in this matter.

Conclusions

In conclusion, I am satisfied that there are no conditions that could reasonably be imposed that would sufficiently reduce the very real risk that the applicant would fail to appear if not kept in custody. Further given the exceptional seriousness of the circumstances of the alleged offence, I am satisfied that a grant of bail would be inappropriate.

Order

Accordingly, the application for bail is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
Associate to the Honourable Justice Fiannaca
1 MAY 2019