R v Ben-Abu

[2003] NZCA 442

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA209/03

THE QUEEN

v

ILAN BEN-ABU

Hearing:         30 July 2003

Coram:Anderson J Paterson J Salmon J

Appearances: P J Kaye & N Webby for Appellant

T A Simmonds for Crown

Judgment:      5 August 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1]      This is an appeal, pursuant to s66 of the Bail Act 2000, against a refusal by a

Judge of the High Court to grant bail.

[2]      The   appellant   has   been   committed   for   trial   in   the   High   Court   on

22 September 2003 on an indictment alleging that he, along with a Ms J A Birak and a Mr A Atias committed the following offences against the Misuse of Drugs Act:

R V ILAN BEN-ABU  CA CA209/03 [5 August 2003]

(a) One  count  of  importing  the  Class  B  controlled  drug  MDMA (Ecstasy)

(b) One count of possession of the Class B controlled drug MDMA (Ecstasy) for a prohibited purpose.

(c) One count of conspiracy to supply the Class B controlled drug

MDMA (Ecstasy) to other persons unknown.

[3]      The Crown case is that Ms Birak entered New Zealand from Amsterdam on

20 November 2002 with a suitcase constructed with a secret apartment containing

53,624 Ecstasy tablets.   The appellant arrived in New Zealand from Thailand on

27 November and the other co-accused arrived in New Zealand, from Singapore.  A search of Mr Atias on entry disclosed a brand new Samsonite hard sided briefcase containing a special purpose-built hidden compartment.  This led to Mr Atias being observed covertly by Police and Customs after he left the airport.  He booked into a motel in Grey Lynn and was seen that evening in the company of the other accused at an inner city restaurant.   On the morning of 29 November all three accused checked  into  the  same  motel.    On  the  afternoon  of  29  November  the  Police conducted a search of the motel room occupied by the two male accused after the associate of a well-known Auckland drug dealer had been seen at the motel.  A short time later the accused Ms Birak was seen to approach the motel unit where she apparently noticed damage caused by the Police entry and began to walk away.  She was  stopped  and  searched  and  found  to  have  in  her  possession  the  suitcase containing the 53,624 tablets of Ecstasy.   She was also in possession of a British passport issued to a man whom she said was her deceased brother.  Coincidentally, the  appellant  was  found  to have  in  his  possession  two  new  passport  photos  of himself giving rise to a possible inference that they may have been intended to be used in connection with the passport found in the possession of Ms Birak.   These matters combined with other evidence of association and common interests support a reasonably strong Crown case on the counts in the indictment, particularly, as far as this appellant is concerned, on the conspiracy charge.    Mr Kaye frankly acknowledges that.

[4]      Although arrested at the end of 2002, Mr Ben-Abu did not apply for bail until after his committal to the High Court at the end of May.   His absence of friends, references and associations with New Zealand made it unrealistic for him to make an application at an earlier time.

[5]      When the matter came before Priestley J, Mr Ben-Abu’s passport had not been discovered or produced.  There was no offer of a surety and evidence relating to his background was considered by Priestley J to be “scanty”.  A matter that weighed significantly with the High Court was the risk of flight, particularly in light of the seriousness of the charges the appellant faced.   The street value of the drugs in question was estimated by the Police at somewhere between 4.2 million and 5.3 million.  This was the largest Ecstasy seizure in New Zealand’s history.  The Judge also had regard to the appellant’s associations with a South American country which the  Judge  characterised  as  having  “a  substantial  culture  of  corruption”.     He considered that the appellant would have every motivation to try to leave New Zealand and that there was sufficient in the undisputed factual matrix relating to passports to suggest that leaving New  Zealand on a false passport  provided  by supporters or others would not be beyond the appellant’s wit.

Argument on appeal

[6]      The appellant sought leave to introduce fresh evidence showing that Mr Ben- Abu’s Israeli passport had now been discovered and could be surrendered as a bail condition; that his mother who is an Israeli resident was able to offer a surety of

$10,000; and that the appellant’s fiancée had arrived in New Zealand and was living in a place where she could provide a base for him.  Counsel submitted there was no justification   for   treating   a   foreign   national   significantly   differently   from   a New Zealand national in relation to perceptions of risk and that, in any event, any realistic risk could be negatived by a combination of a security bracelet, surety, curfew and reporting provisions.  Counsel also emphasised the practical difficulties in obtaining instructions for the purpose of trial preparation from a client whose relative unfamiliarity with the English language necessitated the assistance of an interpreter at briefing sessions.

[7]      The Crown, for its part, again emphasised the risk of flight in view of the strength of the Crown case, the seriousness of the offending indicated by the nature of the charges and the quantity of drugs, and the indications that the accused could obtain or create false travel documents to facilitate escape.  Emphasis was placed on a realistic appreciation of the facility with which large scale, international drug dealers could obtain and use false travel documents to flee jurisdictions.  There have been at least two instances where offenders bailed on terms requiring the wearing of a security bracelet have been able to shed the same.

Discussion

[8]      It is for the appellant to satisfy this Court that the learned High Court Judge erred in principle or was plainly wrong for the appeal to be allowed.  Because the High Court judgment was founded essentially on the extent of risk of flight, the arguments before us have focused on that as the determinative issue.  It is the case that Mr Ben-Abu has now been able to produce his passport which we have sighted, but  its  production  does  not  significantly diminish  the  possibility of  false  travel documents being obtained or concocted.   As a matter of commonsense it must be recognised that serious criminals engaging in cross border activities have both the ability and the willingness to concoct travel documents.  The passport photos in the possession of this appellant and the male passport in the possession of the female co- accused are highly suggestive of an intention to forge a travel document for criminal purposes.   The money involved in trading drugs worth millions of dollars is suggestive of foreign contacts relevant both to the dealing in contraband and the facilitation of disguised travel.

[9]      We have not been persuaded that Priestley J was wrong to determine the question of bail, ultimately, on the issue of flight risk.  It is now a relatively short time before the scheduled trial.

Result

[10]     The appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland