Rus v The Queen - [2001] WASC 68

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RUS -v- THE QUEEN [2001] WASC 68

CORAM: ROBERTS-SMITH J

HEARD: 2 MARCH 2001

DELIVERED : 2 MARCH 2001

FILE NO/S: MCS 78 of 2000

BETWEEN: GHEORGE RUS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Application for bail - Second application to Supreme Court - First application refused - Provision of prosecution brief for committal - Assessment of strength of prosecution case - Whether changed circumstances

Legislation:

Bail Act 1982 (WA), Part B, par 4 of Schedule 1

Result:

Bail refused

Representation:

Counsel:

Applicant: Mr P A Dunn QC
Respondent: Ms C A O'Brien

Solicitors:

Applicant: Mr Laurie Levy
Respondent: State Director of Public Prosecutions

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

Rus v The Queen [2000] WASC 297

Case(s) also cited:

Nil

ROBERTS-SMITH J: This is an application by way of notice of motion for bail, the notice of motion being dated 22 February 2001. The application is made in relation to three complaints: the first, number 42615 of 2000 which charges one offence of possession of heroin with intent to sell or supply on 3 September 2000 (the quantity apparently being 7 to 10 ounces); the second, number 42616 of 2000, possession of heroin with intent to sell or supply on 12 September 2000 (an unknown quantity of heroin); third, number 42617 of 2000, supplying heroin on 2 October 2000, (the quantity alleged being 110.47 grams).
This applicant has previously applied to this court for bail and I heard that application on 28 November last year and refused it. My reasons were given that day: Rus v The Queen [2000] WASC 297. At [43] to [48] of my reasons given on that occasion I identified the major factors then influencing me as: first, the seriousness of the offences charged and the likelihood of a substantial sentence of imprisonment if the applicant were to be convicted; second, the strength of the prosecution case (which included telephone intercepts) and third, the prospect that the applicant might abscond if released to bail.
Being a second application for bail made to this court this application falls to be decided under Part B par 4 of Schedule 1 of the Bail Act 1982 (WA). Under that provision the applicant must satisfy me of one of a number of things: first of all, that new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously refused or that the applicant failed to adequately present his case for bail on the previous occasion or if bail was granted subject to a home detention condition, that has been complied with for a period of 1 month or more. In the instant case the application is based on the first of those; namely, that new circumstances have arisen or circumstances have changed since bail was refused on the last occasion.
The application is supported by the affidavit of the applicant sworn 22 February 2001 and Mr Dunn QC who appears for the applicant also relies on the affidavits filed in support of the earlier application. As I have said, the present application is based on what are said to be changed circumstances since 28 November last year. At par 6 of the applicant's affidavit they are identified as follows:
"(a)materials amounting to a brief of evidence were served upon me by the police on 29 November 2000. These are not completely consistent with the outline of evidence given by the Crown in my bail application. Annexed hereto and marked with the letters 'GR3' is a true copy of the Election Brief;
(b)on 6 December 2000 being my Election Date, the matter was set down for a preliminary hearing of a period of three days, commencing on 21 May 2001;
(c)upon my instructions my solicitor has taken steps to cancel my passport."

The next paragraph, which is incidentally also wrongly enumerated as par 6 but which I will refer to as par 7, states that the applicant has been informed by his solicitor that the translation of the telephone intercepts contained in the election brief was completed by a Constable Lucian Jonescu, a member of the Western Australian Police Service who the applicant understands is not an appropriately accredited translator.
In his oral argument today Mr Dunn QC confined his submissions, in effect, to one changed circumstance, namely, the fact that the applicant has now been provided with the prosecution brief from which it is said it can now be seen the case against him is weak. I deal first, therefore, with the application insofar as it relies upon the prosecution brief of evidence.
I think the real question in relation to this is whether what is on the prosecution brief does reveal that my earlier assessment of the strength of the prosecution case now needs to be changed so as to recognise that the case is in fact not strong. I am prepared to accept that, should I be of that view, that would be a relevant changed circumstance for present purposes and so I turn to consider the strength of the case.
I do not propose to refer to all of the evidence, nor, indeed, to recapitulate nor reiterate the comprehensive submissions made by Mr Dunn. Suffice to say that, having worked through the material on the prosecution brief, the proposition essentially, as I understand it, appears to be that certainly in relation to the first two relevant dates, 2 September and 13 September, there is no direct evidence of any involvement of the applicant with the offences charged, or, I suppose, any offences.
The proposition is that there are essentially only a number of telephone intercepts which, to use a word I used on the last occasion, elliptically describe, amongst other things, arrangements for the supply of what are described as cabbage rolls. Most of the discussions are between Marianna Mocanu and Demitrou Nestor, and there are references in them which one could reasonably conclude were references to the applicant as part of the arrangements being discussed between Nestor and Mocanu.
There is no police surveillance evidence, generally speaking, as to the first two matters. There is some surveillance evidence in relation to the second, but I think it probably fair to say that if the material in relation to those stood alone, it would be difficult to see a case of any substance at all against the applicant. However, as Mr Dunn himself points out, the view which might be taken and which clearly has been taken on behalf of the prosecution in relation to the material as to the first two offences charged is coloured by the events which happened at the end of the month and leading up to the actual arrest of the applicant on 2 October.
Mr Dunn concedes the evidence in relation to the third offence charged is somewhat more substantial than that in relation to the first two. Again, I do not propose to canvass that. Suffice to say, it does include evidence of telephone intercepts and arrangements being made and observations of police surveillance operatives which would indicate that the arrangements made were implemented and involved the applicant. There is a civilian eyewitness, a Mr Lunt, at page 29 of the prosecution brief, whose evidence would be that he saw a man drop a white package over the back fence into a property, which was the property in which the heroin was immediately afterwards found, and the evidence generally is that that was the applicant, and there is direct evidence of that.
Whilst, therefore, it is true that the circumstances and evidence relating to the first two matters are, from the prosecution point of view, coloured by the events relating to the last, it seems to me that that is not only a legitimate approach but a necessary one and one which would ordinarily be taken where the evidence is circumstantial in nature, as it is here, particularly in relation to the first two charges. The evidence must be considered as a whole, and if on a consideration of the whole of the evidence the conclusion that each of the offences has been committed is inescapable, then that is clearly a legitimate inference to draw and one which, viewed in that way, would be capable or could be capable of supporting a conviction.
It seems to me that, in light of the actual material viewed in that way, the case against the applicant is still a very strong case.
It is very difficult to move on one further step to forecast what the penalty on conviction might be. If the applicant were to be convicted only on the third count, that would probably attract, in my view, at this stage on the limited material I have before me, a sentence of possibly somewhere between 4 to 8 years, although that is almost speculative in the present circumstances.
I certainly accept Mr Dunn's submission's that a term of imprisonment in these circumstances, given the relatively low purity - I am told 20 per cent - of the heroin charged here, any sentence imposed would not be as long as that reported in the newspaper today, which was a sentence of 15 years' imprisonment with eligibility for parole in respect of what I understand was an amount of heroin of something in the order of, or somewhat slightly more than, 400 grams.
The other matters to which Mr Dunn referred, namely the presumption of bail, the risk of flight, the fact that the applicant is "well and truly tied to Australia", has a house in Victoria and so on, are I think matters which would really only arise on the present application were I to find a relevant change in circumstances.
For the reasons I have given I am not persuaded that the provision of the prosecution brief and the assessment of the prosecution case which now can be made on the basis of that, constitutes such a relevant change in circumstances.
Although not pressed by Mr Dunn I think I should address the other facts raised by the applicant on this application. The second one was that the matter has been set down for a three day preliminary hearing. The applicant deposes that the election date was on 6 December last year and on that occasion the preliminary hearing was listed for 3 days from 21 May this year.
I note in passing that 6 December was the date then counsel for the respondent informed me at the last hearing that had been set for the applicant's election although his counsel was then under the impression it was to be 29 November. Be that as it may, the question is whether the fixing of the date for the preliminary hearing is a relevantly changed circumstance. Given that the fixing of such a date was inevitably to be anticipated it seems to me it does not constitute such a change.
The next point was that on the applicant's instructions his solicitor has taken steps to cancel his passport. In this regard it is pertinent to remember what was put to me on 28 November about the applicant's passports. The relevant observations appear at [32] and [33] of my reasons.
I took those considerations into account and (at [48]) concluded:
"Were the applicant minded to abscond I think he could manage to disappear quickly and put the whole prosecution and judicial process at nought. I am mindful in particular of the submissions made to me in relation to the passports but it seems to me possibly naive to proceed on a view that there are not other ways of departing from Australia and particularly Western Australia without legitimate or other passports."
It can be seen from this that I took the view then that physical production of the applicant's known Australian or Romanian passports before he would be admitted to bail might give rise to some degree of comfort that he would attend for his trial, but that was not sufficient to outweigh my concern that he might nonetheless abscond. In this context the fact that he has now given written instructions for cancellation of his Australian passport cannot properly stand in my view as a relevant change in circumstances.
The final factor raised is that Constable Jonescu was not an accredited translator. If the applicant's claim about that is correct it would not necessarily result in exclusion of the translations from evidence. On the face of it, it is a point going to the weight of the evidence. For the purposes of this application for bail, and in the absence of any suggestion, much less evidence, that the translation is in fact inaccurate in any significant respect or at all, I think I should proceed on the assumption the evidence will stand at trial.
In any event, again, I do not consider this to be a relevant change of circumstances. For these reasons the application is refused.