Re Ikebudu
[2023] VSC 265
•12 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0057
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an Application for Bail by MAXWELL IKEBUDU
BETWEEN:
| MAXWELL IKEBUDU | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 April 2023 |
DATE OF JUDGMENT: | 12 May 2023 |
DATE OF REASONS: | 19 May 2023 |
CASE MAY BE CITED AS: | Re Ikebudu |
MEDIUM NEUTRAL CITATION: | [2023] VSC 265 |
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CRIMINAL LAW — Application for bail — Conspiracy to defraud, dealing with proceeds of crime — Email scams involving false identities, impersonation, diversion of funds to bank accounts — Crime syndicate — Circumstantial case — Self-represented litigant — Delay — Procedural fairness — Strength of prosecution case — Flight risk — Risk of committing further offences whilst on bail — Unacceptable risk — Bail refused — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | N/A (self-represented) | |
| For the Respondent | D Caruso | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Maxwell Ikebudu [‘the applicant’]. He is in custody for the first time and self-represented. He seeks bail on the following charges, alleged to have occurred between 19 February 2019 and 6 July 2021:
(a) conspiracy to defraud (contrary to the common law);
(b) intentionally deal with proceeds of crime – $1,000,000 or more (two charges) (contrary to section 400.3(1) of the Criminal Code Act 1995 (Cth));
(c) intentionally deal with proceeds of crime – $100,000 or more (two charges) (contrary to section 400.4(1) of the Criminal Code Act 1995 (Cth));
(d) intentionally deal with proceeds of crime – $50,000 or more (three charges) (contrary to section 400.5(1) of the Criminal Code Act 1995 (Cth)); and
(e) intentionally dealing with proceeds of crime – $10,000 or more (two charges) (contrary to section 400.6(1) of the Criminal Code Act 1995 (Cth)).
The applicant was arrested on 1 August 2021, and has remained in custody since. He has been refused bail on two occasions since then. First, on 16 August 2021, in the Melbourne Magistrates’ Court, on the basis that he posed an unacceptable risk of failing to surrender into custody in accordance with bail conditions. Second, on 12 December 2022, in the Melbourne County Court, on the basis that he posed an unacceptable risk of committing an offence and failing to surrender into custody in accordance with bail conditions.
On 5 April 2023, the applicant filed an application for bail in this court. The applicant’s matter is next listed for a directions hearing in the Melbourne County Court on 30 June 2023. His trial has been set down for a contested hearing beginning on 19 February 2024 with an estimated duration of two months.
The applicant appeared self-represented on this application. In support of his arguments, he filed a detailed written submission, and addressed oral submissions to the court.
The prosecution case
In brief, it is alleged that as part of an organised crime syndicate, the applicant engaged in scams intended to compromise business emails of various organisations. The prosecution alleges that, between 19 February 2019 and 6 July 2021, members of the syndicate (who have not been identified) gained unauthorised access to eight business email accounts. They identified upcoming transactions, and then impersonated payees via email correspondence (purporting to provide “updated” bank account information) in order to divert funds from legitimate invoices to bank accounts controlled by the syndicate. It is alleged that the applicant used stolen identities (and in some cases, mules) to create bank accounts which the syndicate utilised. It is further alleged that the stolen funds were then laundered by the applicant and others who acted on his instructions.
The prosecution case includes evidence in the form of CCTV, mobile phone records, various receipts, bank records, witness statements and seized property.
On 1 August 2021, the applicant was booked to fly out of Melbourne Airport to Doha, Qatar on a one way ticket. He was arrested on board the aircraft shortly before it was scheduled to depart. Police seized the applicant’s luggage, and found within it:
(a) six iPhones and one Samsung mobile phone;
(b) nine SIM cards concealed in the lining of a wallet and wrapped inside electrical tape (four of which related to the alleged offending);
(c) several expensive watches, other jewellery and luxury items;
(d) two bank cards in his name; and
(e) $2,361.00 in cash.
The applicable legislation
Guiding principles
Although the applicant has previously been denied bail by the Magistrates’ Court and County Court in relation to this matter, he has a right to make a further application to this court for bail.[1] The application is to be conducted de novo, that is, as a fresh hearing.[2]
[1]Bail Act 1977 (Vic), ss 18(1) and 18AA(2).
[2]Ibid s 18AB.
When interpreting and applying the Bail Act 1977 (Vic) [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[3] Section 1B provides:
[3]Ibid s 1B(2).
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
A person who is accused of an offence, and who is being held in custody for that offence, is entitled to be granted bail unless the Act requires it be refused.[4] Section 4AA of the Act outlines the circumstances in which a two-step test applies to the determination of whether to grant bail. Because no such circumstance exists in this case, the applicant is prima facie entitled to be granted bail, subject to the terms of the unacceptable risk test.
[4]Ibid s 4.
Section 4E of the Act sets out the unacceptable risk test. It provides that bail must be refused if the respondent satisfies the court that:[5]
(a) there is a risk that the accused would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
[5]Ibid s 4E(1).
In determining this, the court must have regard to the relevant surrounding circumstances, including those set out in section 3AAA(1) of the Act, and consider whether there are any bail conditions that may mitigate the risk so that it is not unacceptable.[6] The prosecution bears the burden of satisfying the court that an unacceptable risk exists.[7]
[6]Ibid s 4E(3).
[7]Ibid s 4E(2).
The applicant’s contentions
The notice of intention to make an application for bail lodged by the applicant states that bail is applied for on the following grounds:
THE GROUNDS on which the application is made, (including any applicable considerations under s 3A of the Bail Act 1977) are:
1.Inordinate Delays
2.Insufficient Evidence to prove charges of ‘Intentionally Dealing with Proceeds of Crime’
3.Wrongly made out Charge(s) of ‘Conspiracy to defraud’ (Charge 1)
4.Procedural Unfairness
5.CISP [Court Integrated Services Program] as a condition for bail.
The applicant relies on these matters, in combination with the following surrounding circumstances, in support of his bail application.
Surrounding circumstances
Strength of the prosecution case
The applicant submits the prosecution case is weak, insufficient and “foredoomed to fail”.
In relation to the charge of conspiracy to defraud, the applicant contends that it has been incorrectly laid. In support of this contention, he relies on the principle of parity. He notes that his co-accused have not been charged with this offence, and submits that the charge must be laid under the Criminal Code 1995 (Cth), rather than pursuant to common law. The applicant submits that his alleged involvement in the charge of conspiracy to defraud — being creating bank accounts and using stolen identities to launder funds — more squarely relates to the allegations of dealing with the proceeds of crime. He highlights that the prosecution has not produced evidence to demonstrate his involvement in the email compromise of affected businesses, and submits that his alleged involvement therefore falls outside the scope of conspiracy to defraud.
In relation to the nine charges of intentionally dealing with proceeds of crime, the applicant states that there is insufficient evidence to prove the charges. The applicant submits that his possession of SIM cards linked to bank accounts utilised as part of the alleged offending does not prove that he originally obtained those SIM cards, set up associated bank accounts, or had full control of those bank accounts. He submits that, in the circumstances, it might be possible to prove “conspiracy to deal with proceeds of crime” but not intentionally dealing with proceeds of crime.
The applicant also raises issues of procedural unfairness on the basis of:
(a) extensions granted by the County Court, delaying the commencement of trial;
(b) none of the proposed witnesses being called to give evidence at the committal proceeding; and
(c) “defective” trial documents filed by the prosecution.
Criminal history
The applicant highlights that he has no criminal history.
Bail compliance history
The applicant states that he has not previously been on bail.
He notes that the prosecution has alleged he breached bail in 2019. He denies this, instead submitting that he was on summons at the time.[8]
[8]The applicant was subsequently acquitted of this charge, which is consistent with his lack of criminal history.
Outstanding matters
The applicant notes that he is subject to an outstanding warrant in New South Wales, but raises issues with its validity.
Family support and stable accommodation
In his affidavit of support, the applicant proposed to reside at an address in Bellbrae, Victoria, if granted bail.
The applicant submits that his family continue to financially support him and have done so since his arrival to Australia in 2013.
The applicant was assessed by the Court Integrated Service Program [‘CISP’] on 18 April 2023 at Ravenhall Correctional Centre [‘Ravenhall’]. A report was prepared on the same date. It noted that the applicant anticipated being financially supported by his parents in Nigeria if released on bail, which would assist him to secure a rental property. However, in the interim, the applicant has requested emergency accommodation. Accordingly, CISP has arranged motel accommodation in South Melbourne for the applicant to stay in for a single night, if released on bail. It is then recommended that the applicant engage with Launch Housing to explore further accommodation options, pending receipt of financial support from his family.
Special vulnerability
The applicant contends that bail will “help better [his] psychological and physical wellbeing as this is [his] first time incarcerated”. The applicant further submits bail will make it easier for him to communicate with his family, receive financial assistance for his trial, and obtain legal advice and representation.
Availability of treatment or bail support services
The CISP report focuses on the applicant’s past substance use. The applicant reported consuming cannabis, cocaine and alcohol recreationally after moving to Melbourne, due to his friendship circles at the time. This escalated following difficulties he experienced gaining employment (resulting in financial hardship), compounded by a relationship breakdown, and ultimately reached a point of daily usage. The applicant advised CISP that, prior to being remanded in custody, he was consuming alcohol, cocaine and cannabis, although did not specify the extent of his usage.
The applicant did not identify substance use as a current problem (having engaged with treatment during his time on remand), and was confident that he could independently obtain support in the community if required. He reported previously achieving abstinence on his own, in part by keeping busy with employment, and identified distancing himself from old friendships as a means to help moderate future risk of returning to substances.
Because the applicant was confident in his ability to independently access supports, CISP did not consider that ongoing case management was needed, but instead recommended that the applicant engage with the following community referrals:
(a) Launch Housing for assessment and support in relation to housing needs;
(b) CoHealth for drug and alcohol treatment, as required, together with DirectLine for drug and alcohol counselling and support (via a 24 hour telephone line), and access to self-help material; and
(c) Bridge Centre for support transitioning into the community.
As detailed, CISP has arranged one night’s motel accommodation for the applicant, if bail is granted. If the applicant faces difficulty or delay in obtaining funds from his family to support his accommodation needs, CISP will provide further funding for motel accommodation.
Delay and likely sentence
The applicant has been remanded in custody for one year and eight months.
He submits that delay in reaching trial is so inordinate that it overcomes any unacceptable risk alleged. In doing so, the applicant relied on Mokbel v DPP (No 2).[9] In that case, Justice Kellam held that an anticipated delay of approximately two years until trial amounted to an exceptional circumstance for the purposes of the Act.[10]
[9](2002) 132 A Crim R 290.
[10]Ibid 294-295 [18]-[29]. However, bail was ultimately refused on the basis of unacceptable risk.
Unacceptable risk
In relation to the risk of flight alleged by the respondent, the applicant submits that — notwithstanding that he was arrested at the airport — he was not attempting to leave the jurisdiction. He contends he was in fact travelling to attend his brother’s wedding, and was not aware of any arrest warrant at the time. The applicant denies he is part of, or has links to, a Nigerian syndicate.
The applicant admits to booking four hotels with fictitious names prior to his arrest, albeit he submits he also booked nine other places with his real name. The applicant submits his behaviour is not indicative of someone trying to avoid being detected by authorities.
The applicant submits that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including that he:
(a) surrender his passport and any other travel documents to the police (although the applicant alleges that the police already possess his passport);
(b) report daily or weekly to the police station;
(c) not commit any crime while on bail;
(d) inform police of any change of address; and
(e) comply with CISP conditions.
The respondent’s contentions
The respondent opposes the application for bail on the basis the applicant poses an unacceptable risk of either committing an offence while on bail or failing to surrender into custody in accordance with bail conditions.
In response to the applicant’s contentions, the respondent relies on the following.
Surrounding circumstances
Nature and seriousness of the alleged offending
The respondent submits the alleged offending is very serious, and that the applicant faces the prospect of a lengthy term of imprisonment if convicted.
Strength of the prosecution case
The respondent does not agree with the applicant’s categorisation of the prosecution case as weak.
Criminal history
The respondent acknowledges that the applicant has no criminal history.
Outstanding matters
The respondent notes that there is an outstanding warrant for the applicant’s arrest in New South Wales, relating to his alleged involvement in an organised crime syndicate said to have handled and laundered over $6 million in proceeds of crime.
When asked for a copy of the warrant, counsel for the respondent disclosed that the prosecution did not possess a copy. It was stated that the informant had obtained the reasons for the New South Wales warrant, but not the warrant itself. Further, no representative of New South Wales Police was present in court to arrest the applicant in the event he was granted bail in Victoria.
Accommodation and ties to the jurisdiction
The respondent notes that a person by the name of Felix Martin Caddaye-Rose resides at the bail address posited by the applicant, and believes that he and the applicant met in prison while Mr Caddaye-Rose was serving a sentence for carjacking. Mr Caddaye‑Rose was released on 24 December 2022, and is currently serving an 18‑month Community Correction Order. Mr Caddaye-Rose has a criminal history, which includes dispositions for dishonesty, bail, drug and driving offences.
The respondent highlights that the applicant has had no permanent residence since early 2020, and was residing in Airbnb and short-term hotel accommodation prior to his remand.
The respondent submits the applicant has no ties to the jurisdiction, either in terms of work (having not engaged in any lawful employment for several years) or family connections. The respondent asserts the applicant’s lifestyle has been funded by proceeds of crime.
Availability of treatment or bail support services
The respondent refers to a CISP report dated 16 February 2023. The respondent asserts that this report concluded that the applicant posed a high risk of general reoffending due to alcohol and drug use, a pro-criminal attitude, and an absence of strong personal supports. It is the respondent’s position that the applicant has shown limited understanding of the role of CISP if he were to be placed on the program.
However, during the hearing, the applicant disclosed that he had not received a copy of this report. Further, he noted that the later CISP report dated 18 April 2023 did not reference the earlier CISP report or make any finding as to his risk of reoffending. It was not immediately apparent why two CISP reports had been authored, or why the author of the later report appeared to be unaware of the earlier report’s existence. A copy of the earlier 16 February 2023 report was given to the applicant during the hearing.
Delay and likely sentence
The respondent submits that delay in the matter to date has largely been attributed to changes in the applicant’s legal representation. The respondent also submits that the time taken by the prosecution to prepare and finalise the trial documents has been due to the voluminous material in the matter, which includes 400 exhibits and depositions in excess of 28,000 pages.
However, during the application hearing, counsel for the respondent conceded that the applicant has already been on remand for a lengthy period. Further, it was acknowledged that, if the applicant was denied bail, it would mean he would have been held in custody for up to two and a half years before his trial commences in February 2024. Nevertheless, the respondent submitted that the case against the applicant was strong and that, if convicted, he would likely receive a lengthy sentence of more than two and a half years.
Unacceptable risk
Committing an offence whilst on bail
The respondent’s primary concern is that the applicant will commit offences whilst on bail, noting that he has no legitimate source of income or family support in Australia. In support of this contention, the respondent asserts that the applicant used his mobile phone to commit offences while in immigration detention between 16 June and 13 September 2019.
Further, at the hearing, the respondent stated that the fact that the applicant was on bail at the time of some of the offending was “a relevant factor in terms of the factual matrix” before the court. It was acknowledged, however, that the applicant was subsequently acquitted of the charges for which he was placed on bail. The respondent therefore placed limited emphasis on the applicant’s previous non-compliance with bail.
The respondent emphasises its reliance on the earlier CISP report dated 16 February 2023, which purportedly stated that the applicant posed a high risk of offending.
The respondent submits that the imposition of strict bail conditions will not alleviate the applicant’s risk of offending, which the respondent considers will likely be very difficult to monitor and detect — with reference to the covert and sophisticated nature of the current charges against the applicant. The respondent refers to the several SIM cards located in the applicant’s luggage following his arrest, many of which were in the names of others and connected to the alleged offending.
Failing to surrender into custody in accordance with the conditions of bail
The respondent asserts that the applicant has strong ties to a Nigerian crime syndicate and that his lifestyle and activities are funded by the proceeds of crime.
The respondent notes that, prior to applicant’s arrest, he undertook multiple interstate trips using false identification and aliases to commit offences and secure accommodation. The respondent submits the applicant is at risk of fleeing the jurisdiction through the use of false or stolen identity.
The respondent notes that $3,346,809 of the $8,307,061 fraudulently obtained funds connected to the alleged offending remains outstanding. The respondent asserts that the applicant has access to these unrecovered funds, as well as multiple cryptocurrency accounts established in his name. The respondent accordingly submits the applicant has ample resources to arrange his flight from the jurisdiction, including leaving the country. In this regard, the respondent also relies on the circumstances of the applicant’s arrest. As mentioned above, he was arrested on board an aircraft scheduled to depart Melbourne Airport for Doha, Qatar. He had not booked a return ticket and did not have an address to return to in Australia.
Finally, the respondent highlights that the applicant does not have employment, family ties, or stable accommodation in Australia, and that the applicant faces the prospect of a lengthy term of imprisonment if convicted.
The respondent submits that the imposition of strict bail conditions will not alleviate the risk of absconding, again noting the covert and sophisticated nature of the alleged offending.
Analysis and conclusions
The applicable law
As noted, section 4 of the Act provides that a person accused of an offence being held in custody, is entitled to a grant of bail unless the Act requires that grant to be refused. Section 4AA of the Act provides for the circumstances where a two-step test applies to determining whether a grant of bail should be given. However, as the two-step test is not applicable to this application, the applicant is prima facie entitled to a grant of bail, subject to whether or not it has been established he is an unacceptable risk, as defined under the Act.
As noted above, section 4E of the Act sets out the matters to be taken into account in assessing whether the applicant is an unacceptable risk such that the grant of bail should not be given.
When determining whether to grant bail, the court must consider factors beyond the applicant’s circumstances; it must be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision-making and the need to facilitate public understanding of bail practices.
With the above factors in mind, I turn to considering the merits of the application.
An observation
It should be noted that some of the applicant’s submissions appear to have been based on a misunderstanding of criminal procedure and the workings of the law. As a result, the applicant’s argument at times failed to fully address the relevant enquiry, that is, whether the prosecution has established on the balance of probabilities that an unacceptable risk exists. This is due, no doubt, to the fact that the applicant was self-represented.
As noted, the applicant provided a written application, which in effect, set out in narrative form the applicant’s arguments. Furthermore, the applicant addressed oral submissions to the court which were relatively brief. The court has considered all the matters put before it by the applicant.
In circumstances where the applicant is self-represented and may be under some misapprehensions as to the applicable law and process, I have ensured that all relevant possible arguments and submissions have been considered regarding the applicant’s circumstances. Further, I have taken the view that the court should consider whether there are any circumstances or provisions that the applicant may not have emphasised amongst the many matters he put before the court. One particularly important aspect is that when the Act uses the phrase, “if the bail decision maker is satisfied”, it does not place the onus on the applicant to satisfy the court that he is an acceptable risk, but to make it clear, it is the respondent who carries the burden of establishing that matter to the satisfaction of the court.
I have therefore considered the evidence in its totality and applied in his favour any factors that I consider support the applicant’s request for bail.
Conclusion
In his arguments, the applicant raised five particular grounds which he relied upon (in combination with other circumstances) in support of his application.
As to the question of inordinate delay, the applicant points to the fact that he was arrested on 1 August 2021, and has been in custody continuously from that time. Furthermore, the matter is set down for trial on 19 February 2024. He also notes the likelihood that, in the face of a contested trial of some two months duration, he will have been on remand custody for about two and a half years, or more, before the matter is finalised. On any view, this is a very significant time for the applicant to remain on remand custody. In different circumstances, albeit not in the present case, such a delay would be regarded as a significant factor in support of the satisfaction of the exceptional circumstances test. That is not the test to be employed in this application.
In the context of this significant delay, the applicant also relies on an argument that the prosecution case is likely to fail. He submits that there is insufficient evidence to prove charges of intentionally dealing with the proceeds of crime, and that the charge of conspiracy to defraud is wrongly made out. In these circumstances, the applicant argues he is likely to serve an unjustifiably lengthy period on remand, either because the prosecution case will fail and he will receive no custodial sentence, or because he may receive a custodial sentence in respect of some charges that would not exceed the period of his remand.
In my opinion, the length of the applicant’s remand in custody is a significant factor weighing in favour of the grant of bail. However, this matter must be considered in the whole context of the matters alleged against him, and other factors relevant to weighing the unacceptable risk issue.
In my opinion, the matters raised regarding the inadequacies or insufficiencies of the prosecution case are not easily evaluated by this court on an application such as this. In the face of a prosecution case that alleges a sophisticated and complex fraud, involving the methodologies put forward, it is not for this court to form a concluded view about the strength or weaknesses of the prosecution case. Rather, I simply observe that it would appear there is a viable prosecution case that appears to be plainly arguable. Looking at it from another perspective, in my opinion it cannot be said that the prosecution case appears to be inherently weak, or foredoomed to fail.
As to the matter of procedural unfairness, again it is not appropriate for this court to come to conclusions about whether or not procedural unfairness has been experienced by the applicant. Rather, in my opinion, these are matters more appropriately within the jurisdiction of the County Court pre-trial or trial processes. Should the applicant have a complaint about procedural unfairness at the hands of the prosecution, he has remedies that lie in applications of various kinds to a judge of the County Court. Should he have applications that arguably go to the heart of the trial, then in circumstances where he has remained in custody for a very considerable time to this point, those applications should be heard and dealt with expeditiously.
As part of the applicant’s grounds in support of his application for bail, he relies on a combination of family support, stable accommodation, and the support of the CISP program. I have taken into account the CISP conclusions as set out in the reports dated 16 February 2023, and 18 April 2023.
The conclusion of the 18 April 2023 report provides that the outcome of the CISP assessment is that the applicant is recommended for Community Referral, with no ongoing case management. In particular, I have noted that CISP proposes the applicant will reside in motel accommodation paid for by CISP for one night, following which he is urged to attend a walk-in service to assess his housing needs and to complete housing referrals for either supported accommodation or boarding house accommodation options. CISP have also indicated that if ongoing accommodation is unable to be sourced, the applicant will be provided with further accommodation until a suitable option can be located. CISP also advises that the applicant can contact the nearest drug and alcohol treatment service, DirectLine for telephone support or self-help materials regarding drug and alcohol matters, and Bridge Centre for case management and advocacy support, amongst other available supports. The proposal appears to me to leave a significant degree of discretion to be exercised by the applicant in programs that he may wish to take up.
Further, as part of his argument, the applicant relies on the fact that he has no criminal history or adverse bail history that can be put against him, and cannot be relied on by the respondent in support of the opposition to a grant of bail.
Turning to the assessment of unacceptable risk, the respondent relies on a number of matters that, when looked at in combination, it submits should satisfy the court that the risk remains unacceptable. The respondent also submits that no conditions attached to a grant of bail can reduce the risk to an acceptable level.
As a starting point, it is worth noting that the grant of bail almost always involves risk. The question to be addressed is not whether risk can be eliminated, but whether risk that attaches to a grant of bail can be reduced to a level which is acceptable. As a preliminary matter, it is worth noting that the respondent submits that the alleged offending is very serious, and that the applicant faces a lengthy term of imprisonment if he is convicted of all, or perhaps some of the alleged offending. The respondent argues that the prosecution case cannot be regarded as weak.
In my opinion, the position taken by the respondent in this respect is correct. The case alleged against the applicant appears to amount to a sophisticated and well organised fraud committed by a number of persons acting in a conspiracy, alleged to be in the form of an organised crime syndicate, and amounting to a series of predatory behaviours against legitimate business organisations with the actual loss of significant amounts of money. The sophisticated nature of the alleged fraudulent activity involves unauthorised access to business email accounts, the identification of upcoming transactions, the impersonation of payees and the diversion of funds from legitimate invoices to bank accounts controlled by the syndicate. In particular, it is alleged the applicant utilised stolen identities to create bank accounts for the use of the syndicate. Furthermore, it is alleged that stolen funds were then laundered by the applicant and others, acting on his instruction. It may be observed that the scale of the alleged fraud is said to involve millions of dollars. Finally, it is alleged that the applicant has the ability to create false identities, and it appears there is evidence that supports this aspect.
Turning to the circumstances of the applicant, the respondent relies on a number of matters to establish the unacceptability of risk, particularly the risk of further offending and the risk of flight.
With respect to the risk of flight, it may be observed that in many cases where the prosecution puts forward an argument as to the risk of flight, the argument is often based solely on the fact that an applicant has links to countries or persons overseas. In my opinion, in the present case, the evidence goes beyond showing that the applicant has ties to his family, or his home country overseas. Rather, it appears he intended to leave Australia and permanently reside overseas. On 1 August 2021 he was arrested on board an aircraft waiting to depart Melbourne airport for Qatar. Investigations revealed that he had not booked a return ticket, and further, did not have a fixed address should he return to Australia. The applicant, allegedly, has been in the practice of residing in a series of temporary accommodations, in some instances under false names.
This also goes to show that the applicant has few ties to Australia. He appears not to have employment, or the prospects of employment available. He also has no family ties or what might be regarded as stable accommodation in Australia. He appears to have been living a transient lifestyle, which is alleged to have been supported by the funds produced by his criminal activity. Whilst CISP can provide the applicant with some assistance with housing, and other support services, at the present time the proposal does not involve any suggestion of permanence with respect to a stable or static address, and further assistance appears to be put forward on the basis that the applicant can utilise future support services should he choose to do so. In my opinion, in all of these circumstances, the CISP proposal does not provide a degree of supervision that this court finds sufficient.
Taking these matters into account, in combination, in my opinion they present a risk that if provided the opportunity, the applicant will attempt to leave the jurisdiction, either to travel interstate, or out of the country. In regard to his ability to fund this possibility, it is to be noted that the prosecution alleges that a large amount of money was stolen as a result of his alleged criminal activity, a portion of which is still unaccounted for.
Furthermore, the respondent points to the ability of the applicant to utilise his skills to create false identities, and to perpetrate sophisticated frauds by using electronic devices. The prosecution case is that the type of fraud alleged to have been committed, in company with others involved in an organised crime syndicate, is difficult to monitor and detect, and is carried out covertly and with sophistication. The prosecution points to a number of SIM cards located in the applicant’s luggage when he was arrested, many of which were in the names of others and connected to the alleged offending. In short, the prosecution argues that there is a risk the applicant will utilise his skills to commit further fraud should he be granted bail.
I note also that material was placed before the court relating to an arrest warrant, apparently issued in New South Wales, on fraud related charges arising in that State. On further investigation, it appears that whilst an arrest warrant has been issued, New South Wales Police are not actively seeking to arrest the applicant at this stage, but will rather delay that decision until the resolution of the Victorian matters. A copy of the warrant was not able to be placed before this court. In the circumstances as they have played out, I have decided not to act on his evidence and have ignored it in making my determination on this application. Specifically, I have not taken the interstate charges into account in any adverse way against the applicant’s interests.
The respondent points to the matters identified above, in combination, in order to argue that the court should be satisfied that taking into account all matters, the applicant represents an unacceptable risk of committing further offences, and failing to surrender into custody in accordance with conditions of bail. Furthermore, the respondent argues that no conditions can be applied to a grant of bail that would reduce the risk to an acceptable level.
I have taken into account the matters put forward by the applicant, particularly with respect to the matters raised in his written outline regarding the past and likely future duration of his remand in custody. This remains a particularly concerning aspect of this application, and in my opinion efforts should be made to have the applicant’s trial resolved well before the listed trial date in 2024.
I have also taken into account the guiding principles of the Act, as set out above.
Weighing all of the matters put before the court, I conclude that the respondent has satisfied me that the risk attaching to the grant of bail in the case of this applicant is one that is unacceptable. In my opinion there is an unacceptable risk that if the applicant is released on bail he will commit a further offence whilst on bail, or fail to surrender into custody in accordance with the conditions of a grant of bail. In my opinion, there are no sufficient conditions that could be imposed on a grant of bail that can reduce the risk to an acceptable level.
In the circumstances, the application for bail will be refused.
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