TXR v R

[2024] NSWSC 197

Supreme Court

New South Wales

Medium Neutral Citation:

TXR v R [2024] NSWSC 197

Hearing dates:

22 February 2024

Date of orders:

08 March 2024

Decision date:

08 March 2024

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

Application for release filed 21 December 2023 is dismissed.

Catchwords:

CRIME – Bail – Show cause – Strength of the prosecution case for a murder charge and serious drug charges – Time elapsed until trial – Applicant’s conditions of custody and safety – Proposed bail conditions – Bail refused.

Legislation Cited:

Bail Act 2013

Crimes Act 1900.

Crimes (Administration of Sentences) Act 1999

Drug Misuse and Trafficking Act 1985

Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

TXR (Applicant)
The Crown (Respondent)

Representation:

Counsel:
P Strickland SC (Applicant)
N Lawrence (Respondent)

Solicitors:
Criminal Law Group (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2024/8396

Publication restriction:

Pseudonym and non-publication orders made by Garling J on 22 February 2024.

Pseudonym and non-publication orders made by the Local Court with respect to AA and AB.

JUDGMENT

1. The applicant, who is 23 years old, makes a release application with respect to a series of criminal offences with which he was charged on 18 December 2023. The hearing of the proceedings on the release application was conducted in circumstances where there are a number of non-publication orders, which are in place in the Local Court, or else have been made in this Court.

Pseudonym and Non-Publication Orders

2. In light of those Orders, it is appropriate to limit the publication of the applicant’s name and personal details. Accordingly, he has been assigned the pseudonym TXR. In addition, a non-publication order has been made with respect to the proceedings and the material and evidence placed before the Court.

3. The charges faced by the applicant can conveniently be described as falling into three “groups”.

Offences for which Bail is Sought

4. The first group, which is a single offence, is that of murder. It is a show cause offence under s 16B(1)(a) of the Bail Act 2013 (“the Act”) because it carries a maximum penalty of life imprisonment and because the murder involved the use of a firearm and therefore constitutes a serious indictable offence under Part 3 of the Crimes Act 1900.

5. The proceedings with respect to the charge of murder, as are all other charges, are next listed before the Downing Centre Local Court on 9 May 2024 for Brief Service Confirmation Mention.

6. The second group of charges relate to the supply of drugs in the period from 1 June 2023 to 27 July 2023. These charges include two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 of knowingly taking part in the large commercial supply of a prohibited drug. One charge involves a prohibited drug being 1 kilogram of cocaine. The second charge involves a prohibited drug being 500 grams of methylamphetamine.

7. Because both offences carry maximum penalties of life imprisonment, they are also show cause offences. As well, because these offences involve the supply of more than a commercial quantity of a prohibited drug, they are also categorised as show cause offences.

8. Together with these two offences, the applicant is charged with possessing a Dedicated Encrypted Criminal Communication Device (“DECCD”) for the purpose of committing criminal activities contrary to s 192P(1) of the Crimes Act; failing to comply with a Digital Evidence Access Order Direction contrary to s 76AO(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002; knowingly dealing with the proceeds of crime, namely $28,750 cash and participating in a criminal group contrary to s 93T(1) of the Crimes Act.

9. The third group of charges relate to a series of drug and related offences which are alleged to have occurred between 30 July 2023 and 20 September 2023, and involve the same charges and offences as have just been identified for the earlier period of June 2023 and July 2023. Insofar as the applicant is charged with knowingly dealing with the proceeds of crime, the sum is $39,205.

10. This third group of charges, as with the second group, include two which are show cause offences, because they have maximum terms of life imprisonment, and because they involve the supply of prohibited drugs at a quantity above the commercial supply threshold.

Attitude to Bail

11. A solicitor in the Office of the Director of Public Prosecutions who appears on behalf of the Crown opposes a grant of bail and submits that there are four unacceptable risks: namely a risk of the applicant failing to appear at any proceedings for the offences; a risk that if released on bail he would commit further serious offences; a risk that if released on bail he would endanger the safety of the community; and, finally, a risk that there would be interference with witnesses or evidence.

Future Course of Proceedings against the applicant

12. The Crown accepted that all of the applicant’s charges would not be dealt with on the same Indictment. Rather, the applicant submitted, and the Crown accepted, that the probabilities are that the charge of murder would proceed on one Indictment as that charge involves seven other co-accused, and that the drug and other related charges would proceed separately on another Indictment. Those charges do not involve any of the seven co-accused.

13. In considering when the applicant would face trial on the charge of murder, having regard to the fact that it is unlikely that the applicant would, after the conclusion of the Early Appropriate Guilty Plea process in the Local Court, be arraigned in this Court before August or September 2024, the probabilities are that he would not face a trial in the Supreme Court on the murder charge before the third quarter of 2025 i.e., a period of between 21 months and 2 years from the time of his arrest.

14. The drug charges will be dealt with in the District Court rather than in the Supreme Court, and it seems to me that the applicant will be likely to face a trial on those charges in the first quarter of 2025 i.e., in a period of about 12 months or so.

Show Cause

15. The applicant submitted that he discharged his onus of showing cause by a combination of the following matters:

1. the strength of the prosecution case, which the applicant submitted was not strong on the murder charges and, with respect to the drug charges, the prosecution case could not be regarded as strong because it depended entirely on the attribution to a single encrypted identity;

2. the time which would elapse before the applicant stood trial on any of the offences;

3. the age of the applicant and his conditions of custody, including the risk to the applicant’s safety if he remained in custody; and,

4. that the bail conditions which the applicant proposed would alleviate any risks of the kind raised by the Crown such that his being admitted to bail would not create any unacceptable risks.

16. It will be necessary to consider each of these matters in turn.

Murder – Strength of the Prosecution Case

17. The applicant is charged with the murder of Alen Moradian on 27 June 2023. He is one of seven individuals charged with the same offence.

18. As is obvious, although the murder occurred in June 2023, the applicant was not charged until the elapse of about 6 months.

19. Two principals, who have been given the pseudonyms AA and AB, were arrested and charged with the murder in September 2023; three other co‑accused were arrested and charged after that time but before the applicant; and the final co-accused was only arrested and charged a few weeks ago, but after the applicant.

20. According to the applicant’s solicitor, a Brief of Evidence has been served on his office containing 1,883 pages of material and 571 gigabytes of electronic material contained on a hard‑drive. There is said to be some further Brief material to be served, but it is not anticipated that it would be of a great quantity. No doubt this is because a large part of the Brief is common to all charged defendants and was initially served on AA or AB, who were the first two people arrested.

21. The prosecution’s case is that the murder of Mr Moradian was a carefully planned and complex interaction of those who have been charged, each having carried out their respective roles knowing that they were participants in this serious criminal enterprise to kill or seriously injury Mr Moradian jointly.

22. Mr Moradian was said to be a high-ranking member of the Comanchero Outlaw Motor Group who, after his release from imprisonment, was living with his wife, Natasha, in an apartment in Spring Street, Bondi Junction. Although they had moved into that apartment in late 2022, their residential location was not generally known.

23. Putting it at a simple level, the murder of Mr Moradian involved, at least, the following steps, some of which took place contemporaneously:

1. the identification of the residential address of Mr Moradian;

2. the obtaining of the requisite weapons to be used in the murder;

3. the identification of two individuals who would be tasked with carrying out the shooting itself, and the destruction by fire of the motor vehicles used in the murder and for their escape;

4. the identification of individuals who could supply stolen motor vehicles with false registration plates to be used in the conduct of the murder and the escape, together with the timely acquisition of those motor vehicles;

5. a reconnaissance to establish locations where motor vehicles could be pre‑positioned for the purpose of a successful escape after the murder;

6. a physical reconnaissance of Mr Moradian’s address in order to establish its suitability for the murder to take place and for the offenders to escape; and

7. the carrying out of the murder, and the escape of the assassins.

24. These steps were accompanied at various times by the transfer of and payment of different sums of money.

25. As well, the prosecution case records a significant number of personal and telephone interactions between AA and the applicant, with the occasional presence of AB. The discussions during the personal meetings were not able to be discerned. However, it is clear, having regard to the dates and times of the meetings, that the overwhelming probability is that there were discussions between AA and the applicant about some of the events concerned with, or connected to, the complex arrangements in place to murder Mr Moradian.

26. Senior Counsel for the applicant submits that the Court should find that the prosecution case for the charge of murder is not at all strong. He submits that, having regard to the legal principles of liability for a participant in a joint criminal enterprise or an extended joint criminal enterprise, that it is necessary for the prosecution to be able to prove that the applicant either agreed to participate in the murder, or else knew, in the course of what he was doing as part of the enterprise, that there was an intent to kill or cause grievous bodily harm to Mr Moradian, or that he was part of a joint enterprise in which he foresaw the possibility that Mr Moradian would be killed or be subject to grievous bodily harm.

27. Senior Counsel submits that there is no material which actually demonstrates any of such requisite states of knowledge in the applicant. Senior Counsel submits that the prosecution’s description of the factual material in its outline of the case invites the Court to infer that the applicant had the requisite state of knowledge, however, it is submitted, there are other inferences consistent with the applicant’s innocence of involvement in any joint criminal enterprise.

28. The Crown submits to the contrary. The Crown points to the fact that the applicant not only supplied tracking devices for the purpose of establishing Mr Moradian’s residential address, but that he also supplied the mobile devices necessary to enable the whereabouts of the tracking devices to be determined, and followed, in real time. The Crown points to the fact that all of the subscriptions for these devices and, as well, the purchase of the tracking devices was carried out by the applicant in fictitious names, with fictitious identities.

29. The Crown also relied upon facts which disclosed, or from which it can be inferred, that the applicant himself was personally involved in placing or assisting to place, a tracking device on the car of Mr Moradian’s wife whilst she was visiting a family member. Immediately after the tracker was placed on Mr Moradian’s wife’s motor vehicle, the applicant’s mobile telephone, and the mobile telephone used to observe the whereabouts of the tracking device placed on the motor vehicle, together with a device which was accessing a Gmail account, were all switched on in the same location, and a couple of hours later, were still operating during a period when the applicant met with AA and AB at AA’s house.

30. Later that evening, three days prior to the murder, the applicant interacted with two other participants whose task was to undertake surveillance of the location of Mr Moradian’s residence. The applicant provided them with a further tracking device for their use which was also installed on the motor vehicle being used by Mr Moradian’s wife. He did so having been in telephone contact with AA.

31. I accept Senior Counsel’s argument that the prosecution will in due course need to prove that the applicant had the requisite state of mind in order to establish his criminal liability for the participation in the events leading to the murder.

32. At an early stage of criminal proceedings, it is always a difficult task for the Court to make an assessment of the strength or otherwise of a Crown case which depends upon the drawing of inferences, including whether they are capable of being drawn, and whether there are other inferences consistent with the innocence of the applicant, which are also capable of being drawn. That is because the whole of the factual context from which the inferences are said to arise is not known.

33. However, it seems to me, having regard to the complexity of the arrangements upon which the prosecution relies, the frequency of the involvement of the applicant in carrying out the identified tasks, visiting and having discussions with AA and AB, taking steps to place a tracking device in the vehicle of the wife of the deceased, combined with the obvious criminal purpose of obtaining the tracking devices and commissioning them for use (which is to be inferred from the fact that they were subscribed, as were the relevant other mobile devices, in false names) that the Crown has reasonable prospects of establishing the requisite knowledge on the part of the applicant. The inference that the applicant had the requisite state of mind does not strike me as being far-fetched or fanciful.

34. I would not describe the Crown case as overwhelming, or very strong. However, at this early stage, and in the nature of the assessment, which is necessary on a bail application, my conclusion is that there are reasonable prospects of the Crown case succeeding at trial. On the material presently available, it is unarguable that the applicant will be committed for trial.

Drug Charges - Strength of Case

35. A few days after the murder occurred, on 26 July 2023, the Police executed a search warrant at the applicant’s residential premises. They seized three mobile telephones, as well as the sum of $28,750 in cash.

36. The Police asked for the applicant’s assistance by providing the necessary code to access the devices in circumstances where a Digital Evidence Access Order had been made. The applicant declined to assist the Police.

37. In circumstances where the applicant, whilst obliged by an Order to assist the Police to access the relevant devices, refuses to do so, then for the purpose of this bail application, that conduct enables me to draw an inference that the applicant was concerned that the Police not have access to the devices because of the contents contained in them. As well, it demonstrates that the applicant was not willing to comply with a lawful order such as to be a relevant consideration for considering whether it is likely that he would comply with any bail conditions.

38. Police did in due course access one of the devices, a Samsung Flip Phone (“the First Samsung”) which had installed upon it an operating system with an encrypted chat application called “Threema”. The Threema handle for the First Samsung was “Abra Cadabra”. The device contained 19 separate chat groups containing communications between Abra Cadabra and other people. The common feature of the chat groups was the user Abra Cadabra.

39. It is the contents of those chat groups recorded on the First Samsung seized from the applicant’s premises which reveal, on the Crown case, that the applicant, using the Threema handle Abra Cadabra, was knowingly taking part in the supply of large commercial quantities of both cocaine and methylamphetamine, as well as dealing with the proceeds of crime.

40. The First Samsung phone also contained numerous images of firearms, large amounts of cash and what appears to be prohibited drugs.

41. All of this material supports the second group of charges.

42. The Crown contends that the user of the First Samsung was the applicant. It contends that he has been identified on that phone as obtaining the Land/Air/Sea GPS trackers which were used in the murder of Mr Moradian. As well, the Crown notes that a significant number of conversations implicating members of the chat groups in the commission of serious criminal offences had been deleted. An instruction to delete previous notes and communications was also discovered on the device, when the deleted contents were recovered. Such deletion points to a real consciousness on the part of the applicant that the content of the First Samsung would provide evidence of criminality.

43. On 20 September 2023, the applicant was present at the business premises leased to AB. The Police executed a search warrant of those premises. The applicant was searched. A Samsung Flip phone (“the Second Samsung”) was located in his possession and seized. It was not in use with any current mobile telephone plan at the time of the execution by the Police of the first search warrant. The applicant’s existing Samsung Flip phone (the First Samsung) was seized by Police and had not been returned to the applicant by the time of this second search.

44. Upon examination, it was apparent that the Second Samsung was also running an operating system upon which there was the encrypted application Threema, just like on the First Samsung. The Threema username for the Second Samsung seized was “Abra Cadabra 2.0”. On that device, there were 48 separate Threema chat groups containing communications between the applicant and a range of other persons. The common element for those chat groups was the user Abra Cadabra 2.0. Those communications reveal that the applicant was knowingly taking part in the supply of large commercial quantities of cocaine and methylamphetamine, dealing with the proceeds of crime and planning for “robberies of drugs”. This material supports the offences in the third group of charges.

45. The Second Samsung also contained numerous images of firearms, large amounts of cash and what appear to be prohibited drugs, just like on the First Samsung.

46. Similarly, with the First Samsung which was seized, the applicant, notwithstanding being served with the requisite Order, refused to assist the Police in obtaining access to the Second Samsung. I would draw the same inference with respect to this attitude as I have previously noted.

47. Senior Counsel for the applicant drew attention to the fact that it will be necessary for the prosecution to prove that user of the Threema identification “Abra Cadabra” and “Abra Cadabra 2.0” is the applicant. So much can be accepted. If accepted, the contents of these two Samsung Flip phones amounts to powerful contemporaneous evidence of the applicant’s serious criminality over a period of many months of being knowingly involved in the supply of large commercial quantities of prohibited drugs.

35. In my view, the coincidence of both of the Samsung Flip phones which were identical in make and model being in possession of the applicant, his use of the First Samsung for purposes associated with the murder, the use of the same Threema handle which only differs by the addition of “2.0”, and the possession of each of the Samsung Flip phones at the relevant time, all point strongly to the applicant being the person using the requisite Threema handle and, accordingly, being knowingly involved in the drug offences.

36. I regard the Crown case against the applicant with respect to the serious drug offences in respect of which he is required to show cause, as being very strong.

Custodial Circumstances

50. The applicant is presently 23 years old. Except for a period of about a month in 2021, when the applicant was in custody prior to bail being granted for a different charge, he has not previously served any lengthy period of time in custody.

51. The applicant relies upon his conditions of custody as being a factor in the assessment by the Court of the show cause requirement.

52. A few days after the applicant’s arrest, there was publicity in the general media which identified the fact that he had been arrested for the murder of Mr Moradian. Two days later, the applicant’s family home was subjected to a drive‑by shooting. Following that shooting, the Correctional Services authorities placed the applicant into segregation, having determined that he was “at risk from others”. That relocation was not at the request of the applicant but was, rather, undertaken pursuant to the powers contained in s 78A of the Crimes (Administration of Sentences) Act 1999.

53. According to the submissions of Senior Counsel for the applicant, whilst the applicant was at Parklea Correctional Centre he remained in strict segregation in a small cell, which included a 3m x 3m caged area. He was only allowed out of the cell and caged area for a maximum of one hour per day. Senior Counsel drew attention to Regulation 53(2) of the Crimes (Administration of Sentences) Act, which he noted provided that unless an inmate was the subject of a penalty imposed under ss 53 or 56 of the Act, the Regulation required a prisoner to be allowed a minimum of two hours per day for exercise in the open air.

54. The Crown accepted that whilst such custodial conditions existed at the Parklea Correctional Centre, the applicant had been transferred from that centre to a different correctional centre where such restrictions were no longer in place, and the applicant was no longer being held in segregation.

55. Whilst the applicant accepted that this was so, Senior Counsel for the applicant pointed to the fact that the applicant would always be at risk of being subjected to such conditions again in light of the fact that he is charged with the murder of Mr Moradian and that there are obviously some concerns about his safety both in the community and whilst in the correctional system.

56. In his submissions, Senior Counsel for the applicant drew attention to part of the contents of a letter received by his solicitor from Corrective Services NSW which noted that the applicant was “… at potential serious risk from a number of inmate groups”. The letter also noted that the future placement of the applicant would have regard to those matters and other matters raised by the applicant’s solicitor. It concluded with this statement: “… presently there are significant concerns for his safety in prison”.

57. I accept that, by reason of the fact that the applicant is alleged to have participated in the murder of Mr Moradian, he is at risk for his own personal safety. That risk to him exists whether he is in the community or else in the custody of Corrective Services. The risk in the community is clear from the fact that his home was the subject of a drive-by shooting. The risk to him in custody has been identified by Corrective Services in the material to which I have drawn attention.

58. His risk whilst in custody is known to the Corrective Services, they have officers dedicated to acquiring intelligence relating to, amongst other things, the safety of inmates from other inmates, and they are able to move inmates around within the Corrective Services system so as to place them in a location or at a different Correctional Centre which addresses any risks which are identified.

59. Whilst the applicant’s conditions in custody, if he is segregated at some time in the future, will be challenging for him, I do not regard the current conditions of custody as being so overwhelmingly difficult as would warrant, by themselves and without more, a conclusion that the applicant had shown cause.

60. Nevertheless, his current conditions of custody and any further potential restrictions are relevant to be taken into account in weighing up the effect of any period of pre-trial custody as a consideration as to whether or not the applicant has shown cause why his detention is not justified.

Conditions of Bail

61. The applicant has provided proposed bail conditions. Senior Counsel submits that those proposed conditions would ensure that the risks noted by the Crown as bail concerns, to which I have earlier made reference, would be minimised to such an extent that the Court would regard them as not being unacceptable.

62. The applicant submits that it is an important consideration in the show cause determination that there are conditions which reduce the risks to not being unacceptable.

63. The conditions include the usual or standard conditions as to conduct, residence and appearing in Court. As well, they provide for twice daily reporting to the Police, a house arrest condition which provides for the limited purposes for which the applicant could leave the house and then, as well if required, in the company of identified individuals. The conditions prohibit the applicant from driving a motor vehicle, drinking alcohol or taking any illegal or prohibited drugs. The conditions also propose, in addition to the usual travel and passport restrictions, that the applicant would be subject to electronic monitoring and be limited to using one mobile telephone service, the details of which are to be provided to the Officer in Charge of the investigation. The conditions would also include a prohibition on using any encrypted device, or any means of communication using encrypted applications.

64. As well, the conditions provide for a substantial financial surety from members of the applicant’s family.

Risk of Flight

65. The Crown submitted that, having regard to the seriousness of the offences with which the applicant was charged, the likelihood, if convicted, that he would face a very lengthy custodial sentence, would constitute a pressing motive for the applicant to flee the jurisdiction regardless of the large sum of security being proffered. As well, the Crown pointed to instances which it submitted meant that the Court could not regard the use of electronic monitoring as being completely foolproof. The Crown noted that there were a number of individuals who, notwithstanding being required to wear electronic monitoring equipment, had managed to flee the jurisdiction.

66. The applicant submitted that it was unlikely that, in light of the conditions, he would flee the jurisdiction. First, he noted that he had previously been subject to a grant of bail and had always complied with it. Secondly, he submitted that he has strong ties to the Australian community where he was born and educated and where his immediate and extended family all live. He pointed to the fact that the Crown had not identified any other community in any other country with which he would have ties. Thirdly, he pointed to the fact that his passport would be surrendered and that his movement restrictions would require him not to approach points of international departure. Fourthly, the applicant pointed to the fact that after the execution of the first search warrant in July 2023, and prior to the execution of the second warrant, where he was personally searched, the applicant had travelled to the United States of America for the month of August and had returned to Australia in early September 2023, which the applicant noted, was at a time that he knew the Police were investigating the murder and that his home had been the subject of a lawful search.

67. In my view, whilst a risk always remains that the applicant might flee the jurisdiction, the conditions which are proposed would lessen that risk to such an extent that I would regard it as an acceptable one.

Commission of Further Serious Offences

68. The second risk identified by the Crown was that the applicant would continue to engage in and commit further serious offences.

69. The applicant submitted that the conditions restricting him to house arrest, electronic monitoring, and only possessing or using one mobile telephone – details of which would be known to the Officer in Charge of the investigation who would also have access to that telephone when sought – were such as would restrict this risk to being a minimal one, which was in the circumstances not unacceptable.

70. In considering this risk, it is relevant to take into account some additional factual material provided to the Court by Detective Senior Constable Anicic, the Officer in Charge of the investigation. Detective Anicic provided further details obtained from the Cellebrite Report for each of the First and Second Samsung.

71. With respect to the First Samsung, there were messages recorded on it of the applicant offering a user, who I will call “X”, money to purchase three vehicles from an online marketplace. A number of vehicles were purchased and photographs of the purchased vehicles were sent by X to the applicant. They were recorded as being registered to a false identity. On the night that AA and AB were arrested and charged with murder, one of the vehicles was discarded in Pennant Hills and set alight. Two of the other vehicles sourced from the online marketplace, and registered in the name of a false identity, were directly used in the murder of Mr Moradian.

72. A further review of the First Samsung provided abundant evidence, as I have earlier indicated, of drug supply. The messages between the applicant and a user, whom I will call “Q”, included references to doing serious harm, or perhaps killing individuals, with whom the applicant and Q were dealing. Those messages included such phrases as:

• “And believe me bro when we have a drama and we need to plug someone we do it and we do it properly”;

• “If someone actually hurts u or does something I’ll sort everything for him to get blasted and you don’t even have to move a finger”; and

• “But bro that’s not us we just make money and if someone tried to interfere with us or our family we kill them.”

73. It is also apparent from the First Samsung that the applicant was in contact with another user regarding the supply of cocaine during which he discussed personally pressing cocaine using moulds and a box, in connection with the supply.

74. On the Second Samsung, the Cellebrite Report includes extracts of messages containing the following material. At one stage in contact with at least two users in a group conversation, the applicant discussed that he had access to stolen vehicles and firearms and that the group intended to steal prohibited drugs from a drug house.

75. In a further conversation, the applicant was in contact with another user who requested “bricks” from the applicant. The applicant responded that he had some available, priced at $160,000, and provided images of a half-brick of compressed white powder sitting on top of an electronic scale and weighing approximately 500gms. The applicant is recorded as offering similar quantities of drugs to two other users at a similar price.

76. The significance of this material is that it demonstrates that the applicant was engaged in extensive criminality, operating from communication devices which, by use of an encrypted platform, ensured a significant degree of anonymity. Such devices are easily obtained in false names, readily concealed, and the surrounding circumstances demonstrated that the Police only came across such devices by chance in the course of the execution of search warrants rather than through any other investigative means.

77. The conditions of bail, whilst they act as a prohibition on obtaining more than one mobile device and using encrypted devices or applications, cannot prevent the applicant from engaging in serious criminal offences of the kind demonstrated from the First and Second Samsung.

78. Nor can those conditions actually prevent the applicant from obtaining and using DECCDs or other mobile devices using encrypted applications and carrying on with offending of the kind which can be seen from the First and Second Samsung. After all, his arrest would not have impacted on those with whom he was dealing via the encrypted application.

79. The fact that the applicant was living at home with his family did not act as any deterrent, for him to undertake the type of criminal activities revealed by the contents of the two Samsung Flip phones.

80. The quantities of drugs involved in the messages on the First and Second Samsungs, together with the amount of cash which was involved in the sale and supply of such quantities of such drugs, demonstrate a course of conduct of a high criminal order, being conducted as though it were a business enterprise in circumstances where it was not obvious or apparent to anybody externally that was what was going on, because of the steps taken to conceal the activity.

81. I cannot be satisfied that the conditions proposed would in any way be effective to prevent this applicant, in these circumstances, from committing further serious crimes.

Safety of the Community/Interference with Witnesses

82. The Crown also relied upon a risk that if released on bail the applicant would endanger the safety of the community or that there would be interference with witnesses or evidence. To the extent that I have formed the view that there is an unacceptable risk that the applicant would engage in further serious criminal offences, such as being involved in the supply of large quantities of drugs, the safety of the community is thereby put at risk.

83. Insofar as the drug charges are concerned, and the murder charge is concerned, whilst there is a risk that the applicant may interfere with witnesses or evidence, the fact is that much of the evidence which will be relied upon by the Crown as probative of the applicant’s involvement in any of the offences is obtained through electronic means and relies upon the evidence of Police officers, and perhaps other experts, to prove the case. Any risk of interference with witnesses or evidence is, in my view, not unacceptable.

Discernment

84. The Court, in light of the foregoing, now needs to consider whether the applicant has shown cause why his detention is not justified.

85. Clearly, the period of time that the applicant would remain in custody if bail is refused, so far as the murder trial is concerned, is a period of between 18 months and 2 years, which is a very long time for a young man who has not been convicted of the offence, to spend in custody awaiting trial. If that were the only charge that the applicant was facing then, of itself, it may have been sufficient to show cause.

86. However, to concentrate only on that period of detention prior to trial would be to ignore the reality that the applicant will stand trial for the drug charges in about 12-months or so. These are serious charges as I have earlier indicated. They carry a maximum penalty of life imprisonment, although if convicted, I do not think that the circumstances are such that the applicant would face the maximum term. However, they are show cause offences too and the applicant has to show cause why his detention for a period of a little over 12 months prior to those offences coming to trial is not justified.

87. As I have earlier indicated, the applicant is confronted by a very strong Crown case on the drug charges. If convicted, he will certainly face a lengthy period of imprisonment. Having regard to his conduct in committing these offences, I have concluded that the conditions proposed would not ameliorate the risk of the ongoing commission of serious crimes, such as these drug offences, if the applicant was released on bail.

88. I accept that the period of custody awaiting trial needs to be viewed together with such risks to the safety of the applicant as exist whilst he is in custody. However, those risks, it seems to me, are probably similar to, or perhaps less than, the risks he faces in the community.

89. I do not regard the period of time that the applicant would be required to spend in custody, notwithstanding his youth, having regard to the strength of the Crown case and all other factors, to be such as to demonstrate that the applicant has shown cause why his detention with respect to the drug charges is not justified.

90. In respect of the applicant’s drug charges, because I am not satisfied that the applicant has demonstrated that his detention is not justified, the legislation requires that I must refuse bail, which I do.

91. The applicant’s trial for the murder charge, on the estimates provided to the Court in the course of the hearing of this bail application, will be likely to take place about 12 months after his drug charges are dealt with if they proceed to trial.

92. If the applicant is convicted of the drug offences, then he will undoubtedly receive a custodial sentence which will be of a length that would overtake the period leading up to and after his murder trial.

93. If the applicant is acquitted of the drug offences, or they are otherwise dealt with in a way which does not mean he would remain in custody much past the trial date for them, then the Court is being asked to consider what is in effect a 12‑month period of additional time in custody prior to his murder charge coming to court for trial.

94. In light of the seriousness of the offence and, having regard to all of the other considerations, including that the Crown’s case is a reasonable one, I am not persuaded that a further delay of 12 months until the murder charge is dealt with by trial is such as to make the applicant’s detention not justified.

95. If the applicant is acquitted on the drug charges, or they do not proceed to finality, then the applicant can always seek to make a further release application with respect to the murder charge, subject to showing a change of circumstances of a kind sufficient for the threshold requirements in the legislation.

96. In those circumstances, I also dismiss the bail application with respect to the murder charge.

Order

97. I make the following order:

1. Application for release filed 21 December 2023 is dismissed.

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Decision last updated: 08 March 2024