Appellant v Respondent

Supreme Court of Victoria|2009-02-06|Before: FORREST J

APPEAL - Bail - Appeal by DPP (Cth) against grant of bail by a Magistrate pursuant to s 18A of Bail Act - New facts or circumstances under s 18(4) of the Bail Act - Manifest error in granting bail - Bail should be refused.

2 As this is a Director's appeal, it is necessary for the Director to demonstrate that there was an error of law in the Magistrate's decision or, alternatively, that the order is manifestly wrong.

3 If I am persuaded of either of these matters (upon which the Director bears the onus), then it will be necessary for this Court to determine whether bail should be granted.

4 During 2007 and 2008, the Australian Federal Police ("AFP") conducted extensive investigations and surveillance of a numbers of persons, including Mr Barbaro, primarily centering upon the importation of drugs of varying types into the country.

5 On 8 August 2008, Mr Barbaro was arrested by members of the AFP and charged with five separate criminal offences:

(a) That between 16 May 2007 and 3 October 2007 at Melbourne in the State of Victoria, he conspired with Saverio Zirilli and others to import a border controlled drug, namely a commercial quantity of MDMA, contrary to subsections 11.5(1) and 307.1(1) of the Criminal Code (Cth) 1995 ("the tomato container charge").

(b) That between 24 January 2008 and 7 August 2008 at Melbourne in the State of Victoria, he trafficked in a controlled drug, namely a commercial quantity of MDMA, contrary to subsection 302.2(1) of the Criminal Code (Cth) ("the ecstasy trafficking charge").

(c) That between 6 July 2008 and 7 August 2008 at Melbourne in the State of Victoria, he imported a border controlled drug, namely a commercial quantity of cocaine, contrary to subsection 307.1(1) of the Criminal Code (Cth) ("the cocaine charge").

(d) That between 14 May 2008 and 7 August 2008 at Melbourne in the State of Victoria, he conspired with Anil Suri and others to import a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a commercial quantity of a border controlled precursor, contrary to subsections 11.5(1) and 307.11(1) of the Criminal Code (Cth) ("the MSG charge").

(e) That between 22 February 2008 and 7 August 2008 at Melbourne in the State of Victoria, he and Sharon Ropa did deal with money which is the proceeds of crime, being cash in excess of $7,440,000, and at the time of the dealing the value of money is $1,000,000 or more, contrary to subsection 400.3(1) of the Criminal Code (Cth) ("the money laundering charge).

6 I shall return to particular aspects of these charges in due course.

7 The Crown case is that Mr Barbaro was the ringleader of a syndicate responsible for the alleged criminal enterprises. These allegations are denied by Mr Barbaro.

8 Subsequent to his arrest on 8 August 2008, Mr Barbaro was remanded in custody.

9 On 18 and 19 September 2008, a Magistrate heard Mr Barbaro's application for bail. Before the Magistrate could consider whether bail ought to be granted, he was required to be satisfied, at least in relation to one of the charges, that Mr Barbaro had demonstrated that exceptional circumstances existed which justified the grant of bail: s 4(2)(iii) of the Bail Act.[1] The Magistrate concluded that exceptional circumstances had been demonstrated, relying upon the delay that was likely to ensue between the time of hearing of the bail application and the likely date of trial (over two years), but also concluded that Mr Barbaro was an unacceptable risk of failing to answer his bail and obstructing the course of justice, two of the matters contained in s 4(2)(d) of the Bail Act. On that basis he refused bail.

10 On 15 December 2008, Mr Barbaro lodged a further application for bail which was heard by the same Magistrate who had refused bail in September. Section 18(4) of the Bail Act prevented the Magistrate proceeding to hear the application unless "the applicant satisfies the Court hearing the application that new facts or circumstances have arisen since the making of the order". Ultimately, the Magistrate determined that new facts and circumstances had arisen since his previous order. He granted bail to Mr Barbaro with conditions attached:

• That he report to the Griffith Police Station twice a day between the hours of 6 a.m. and 9 a.m. and 5 p.m. and 9 p.m.;

• That he reside at Lot 1302 Whites Road Tharbogang New South Wales;

• That he surrender valid passports or other valid travel documents held prior to release and not apply for any other;

• That he not contact witnesses for the prosecution other than the informant;

• That he not associate, contact or communicate with any co-accused;

• That he not leave his place of residence between the hours of 9 p.m. and 6 a.m.;

• That he not attend ports, airports or points of international departure;

• That he not leave New South Wales unless for the purpose of attending on legal representatives or Court proceedings and not before giving 24 hours notice to the informant;

• The defendant must be in possession of a charged mobile phone at all times and the mobile phone must have a video camera facility;

• The defendant will permit reasonable and random visits by members of the Australian Federal Police and New South Wales Police to his property;

• The defendant will allow an Elmotech electronic monitoring system to be fitted to his body and any other device installed and kept at his residence;

• The defendant will at all times wear the monitoring device;

• The defendant is to be released from custody on Monday 22 December 2008 by 10 a.m. and will travel directly to Griffith Police Station NSW;

• The defendant will allow members of the Australian Federal Police to follow him to Griffith Police Station;

• On arrival the defendant is to be fitted with the electronic monitoring system;

• Any violation of the electronic monitoring system will constitute a breach of bail;

• The AFP are to notify Abakus-Elmotech Pty Ltd of the SMS/email contacts if any violation of the monitoring system occurs;

• Any violation of the electronic monitoring system will result in the defendant being taken into custody until further order by this Court;

• Until the defendant is provided with the GPS tracking device he is to remain within the confines of his home, other than between 6 a.m. and 7 a.m. and 7 p.m. and 8 p.m. for the purpose of reporting to the police station;

• Once the defendant receives the tracking device he is to notify the informant forthwith and thereafter he becomes subject to the other conditions;

• The number of the mobile phone that the defendant is to be in possession of must be notified to the informant or his delegate;

• Any change in the mobile number must also be notified to the informant or his delegate;

• The defendant is not to go beyond a 25 kilometre radius from his home; and

• In relation to the fitting and ongoing maintenance of the electronic bracelet and other provided equipment, the defendant is to comply with all lawful directions given to him by the Australian Federal Police, NSW Police and representatives from Abakus-Elmotech Pty Ltd.

11 Mr Barbaro remained in custody until 22 December 2008 and has been on bail subject to the conditions since that time.

12 Pursuant to s 18A of the Bail Act, the Director of Public Prosecutions has the right to appeal provided the Director is satisfied that the appeal should be brought in the public interest. The Director has certified that he is so satisfied. The Notice of Appeal set out the following grounds of appeal:

1. The learned Magistrate erred in finding that new facts or circumstances had arisen since the making of the original order.

2. The learned Magistrate erred in proceeding to hear the bail application.

3. The learned Magistrate erred in granting bail to the Respondent.

4. The learned Magistrate erred in finding that, if released on bail, there was not an unacceptable risk the Respondent would:

(a) fail to surrender himself into custody in answer to his bail;

(b) obstruct the course of justice whether in relation to himself or any other person; and

13 After hearing the submissions of the Director, his appeal may be distilled as follows:

(a) That the Magistrate committed a specific error of law by permitting the application to proceed when he should not have been satisfied that new facts or circumstances had arisen since he refused bail.

(b) Alternatively, that upon the material before the Magistrate, he was manifestly wrong in granting bail.

14 On the appeal, it was accepted by the Director that exceptional circumstances, in the form of the delay, existed. The appeal, therefore, focused on the Magistrate's decision to grant bail and his consideration of s 18(4) and s 4(2)(d)(i) and s 4(3) of the Bail Act.

15 It is convenient now to refer to the principles governing an appeal under s 18A. Section 18A(6) of the Bail Act reads as follows:

"Upon an appeal under this section the Supreme Court shall if it thinks that a different order should have been made quash the order and, without in any way limiting the powers of the Supreme Court with respect to bail, make any order in substitution therefor as it thinks ought to have been made."

16 Notwithstanding the apparent width of the section, the Full Court in Beljajev & Anor v DPP (Vic) and DPP (Cth)[2] said as follows:

"It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.

In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.

There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate courts have frequently refused to interfere with a primary judge's decision on a matter of practice and procedure."

17 The principles set out in Beljajev have been applied by a number of this Court in determining appeals under s 18A.[3]

18 In Fernandez v DPP, [4] Winneke P said as follows:

"It is clear from these authorities - as the court noted in Beljajev - - that the principles which the court applies in deciding a "director's appeal" against sentence are broad, in the sense that intervention is not confined to demonstrated error of law. Rather, the director may succeed if he can show that on any ground, whether of law or fact, the discretion of the primary judge has miscarried and can persuade the court that a different order should have been made. Similar principles, therefore, are applied by the judge who entertains an appeal by the director pursuant to s 18A of the Bail Act. However, as was pointed out by the court in Beljajev, the appeal which is brought to the court by virtue of s 18A is an appeal against orders made "in a matter of practice and procedure", and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders." (Emphasis added).

Was the Magistrate wrong in determining that new facts or circumstances had arisen?

19 Section 18(4) of the Bail Act required the Magistrate to be satisfied that new facts or circumstances had arisen since the refusal of bail in September. Mr Barbaro, who was represented by senior and junior counsel, asserted that two new facts or circumstances had arisen, namely -

(a) A Mr Sergi had agreed to provide a surety of $2 million in the event of bail being granted. Such a surety was not available at the time of the September hearing.

(b) Mr Barbaro had identified the existence of an electronic bracelet, to be worn by him, which would enable the AFP to monitor his whereabouts at any given time. No evidence was led or submissions made as to this issue before the Magistrate at the September hearing.

20 Counsel for the Director contended before the Magistrate and before this Court that neither the existence of the surety or the availability of an electronic monitoring device constituted "new circumstances or facts". The surety, so he argued, was just another "offer" to the Court which, if it was minded to fix bail, would fix the amount of the surety regardless of the preparedness of an individual to provide the surety. He further contended that the existence of electronic monitoring devices was well known and that this was a new idea, rather than a new circumstance or fact.

21 Having heard argument, the Magistrate concluded as follows:

"I am also informed that the surety of $2 million can now be provided and that a monitoring bracelet is now available which may make any risk of flight an acceptable risk to this court. In my view the substantial increase in the surety being offered and the availability of a monitoring bracelet are new facts and circumstances which are relevant to bail and therefore I'll proceed to hear the bail application."[5]

22 On the hearing of the appeal, it was accepted by counsel for the Director that, traditionally, the hurdle imposed by s 18(4) has not been difficult to satisfy. However, he argued that, in this case, that hurdle had not been surmounted and that the Magistrate was wrong as a matter of law to conclude that the two matters referred to constituted "new facts or circumstances".

23 It is not a question of whether this Court would have regarded these matters as "new" within the meaning of the section, but rather whether it was open to his Honour to make such a finding.

24 Section 18(4) is not to be considered in isolation. Section 4(1)(b) provides for a prima facie right to bail whilst an accused is awaiting trial. Whilst that is qualified by subsequent provisions of the Act, it nevertheless remains the starting point, as it must.

25 The use by the legislature of the word "circumstance" in addition to the words "new" and "fact" is of significance. The word "circumstance" is defined in the New Shorter Oxford English Dictionary 4th edition as follows:

"That which stands around or surrounds", or "The material logical or other environmental conditions of an act or event".

26 The words used demonstrate a clear intention to encompass a broad range of matters which may be considered under this rubric. The legislature was, I think, endeavouring to preclude a party from raising a point which had been raised at the previous hearing, but no more than that. If a particular matter had been considered previously by a Court and bail refused, then that would not constitute a new fact or circumstance. On the other hand, if there was no consideration of the issue on the previous application, it was to be regarded as a new circumstance or, depending upon its nature, a new fact. This approach is consistent with the fundamental right of a defendant to be at liberty and the right to be granted bail provided the provisions of the Bail Act are satisfied.[6]

27 Significantly, the legislature did not impose any prescription upon whether the facts or circumstances were known to the applicant at the time that bail was refused. Nor did it attach any condition in relation to reasonable inquiries being made to ascertain such facts or circumstances. Rather, it elected to enact a broad concept, presumably taking into account the fact that the subject matter was the liberty of the subject.

28 In Mokbel v DPP (No.2),[7] Kellam J was required to determine whether new facts or circumstances had arisen which would justify a reconsideration of a refusal to grant bail. In particular, it had been contended that the delivery of the brief of evidence constituted a new circumstance insofar as it affected the strength of the Crown case. His Honour said as follows:

"In my view the fact of the service of a brief of evidence does not by itself amount to a new fact or circumstance. However the delivery of the brief may in some circumstances, by reason of its contents, or perhaps lack of contents, raise the issue of whether or not there are new facts or circumstances. Put another way, the question is whether or not there are new considerations which were not before the court on the occasion of the previous application when bail was refused, and which in a relevant way bear upon the question of whether or not bail should be granted."[8]

"In Victoria, at least in some circumstances, the right to make a fresh application for bail where an earlier application has been refused is now made dependent upon ... the existence of new facts or circumstances - see the Bail Act 1977, section 18(4). The right of an accused to make a fresh application for bail where an application has previously been refused underlines the fact that an accused person deprived of his liberty prior to trial stands in a situation which is subject to constant variation, where factors which may tend in favour of a grant of bail may at a particular stage become predominant, whereas at another, earlier time they were not; or where new factors may emerge and tip the balance in favour of a grant of bail."

"The common law bail procedure was always intended to be a 'one-stop shop' before a single judge, subject to the prisoner's right of re-application in changed circumstances. The concept of 'appellate rights' was at odds with the dynamic influences governing bail applications."[10]

31 Each of these analyses are consistent with the legislative purpose, namely, to ensure that an issue or matter which has previously been the subject of a refusal of bail cannot be re-agitated, but not to shut out a person in custody from seeking to have additional information considered in a further application for bail. This is consistent with the underlying notion of the liberty of the subject being one of the touchstones of the granting of bail as modified by the will of the legislature.

32 The existence of a surety prepared to provide $2 million is, in my view, a new circumstance. It is not to the point that a Court will, on its own consideration of the evidence, determine the level of the surety. In a practical sense, day in, day out, Courts are advised as to whether a surety is available and at what level the surety might be provided. Indeed, it often forms the basis of negotiation between the prosecution and the defence. In this case, the availability of a person to stand surety for a very large sum of money was a new circumstance which the Magistrate was entitled to consider afresh.

33 I am of the same view in respect of the availability of an electronic monitoring device. It was not suggested either before the Magistrate or before me, that this was an irrelevant matter to the granting of bail. It had not been considered previously by the Magistrate at the September hearing and constituted a new circumstance to be taken into account. Ultimately, the evidence demonstrated that such technology could be utilised to provide further reassurance to the AFP as to the precise whereabouts of Mr Barbaro. This was a fresh consideration for the Magistrate, particularly in the light of the fact that, absent bail, Mr Barbaro would spend around two years in gaol awaiting trial. It may also be a new idea, but that does not preclude it from being a new circumstance relevant to the consideration of the granting of bail.

34 It was open to the Magistrate to treat both the matters as being "new" within the meaning of s 18(4).

35 In summary, I am not satisfied that there was any error on the part of the Magistrate in finding that s 18(4) was satisfied.

Was the granting of bail manifestly the wrong order?

36 As I have said, it was not in issue that the Magistrate had not erred in finding that exceptional circumstances existed as required by s 4(2) of the Bail Act. However, the Magistrate was then required to consider s 4(2)(d)(i), which provides that a Court shall refuse bail if it is satisfied:

"that there is an unacceptable risk that the accused person if released on bail would -

fail to surrender himself into custody in answer to his bail;

commit an offence whilst on bail;

endanger the safety or welfare of members of the public; or

interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person".

37 In determining whether s 4(2)(d)(i) was satisfied, the Magistrate was obliged to take into account the provisions of s 4(3), which reads as follows:

"In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say-

(a) the nature and seriousness of the offence;

(b) the character, antecedents, associations, home environment and background of the accused person;

(c) the history of any previous grants of bail to the accused person;

(d) the strength of the evidence against the accused person;

(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail."

38 The apparent purpose of s 4(3) is to ensure that, when determining whether there is an unacceptable risk (be it of a failure to answer bail or committing an offence whilst on bail), the Court is not confined to those matters exclusively, but rather has regard to a variety of matters which are relevant to the grant or refusal of bail. This, I think, is a matter of some significance in relation to his Honour's considerations on 18 December.

39 In Mokbel v DPP (No.3),[11] Kellam J said:

"The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay." (Emphasis added).

40 It is convenient now to examine the matters relevant to the consideration of the granting of bail.

The nature and seriousness of the offences alleged

41 On any view, the conduct alleged on the part of Mr Barbaro was at the highest end of seriousness. The alleged offences took place over a period between May 2007 and August 2008. They carry maximum penalties ranging between 25 years' imprisonment and life imprisonment.

42 The tomato container charge relates to the importation of over 4,000 kilograms of ecstasy tablets with an estimated street value of approximately $450 million.[12] The tablets were placed in cans said to be containing tomatoes and within cardboard boxes in a container on a ship despatched from Naples, Italy, in late May 2007. Mr Bates, the informant, deposed that this is the largest quantity of ecstasy ever seized by law enforcement authorities anywhere in the world.

43 The heart of the Crown case is that Mr Barbaro was the leader of a group, or syndicate, responsible for the importation of the cans. Mr Barbaro is said to have been in contact with co-accused, including one who attended the premises of the freight forwarder, waiting for the arrival of the container. Recorded conversations between various members of the group, including Mr Barbaro, are alleged to have referred to the shipment and the likelihood that it had been discovered by the authorities. The Crown also relies upon the fact that within ten days of the container being seized by the AFP, the respondent departed for Italy, having said that he would "go back to his roots to lick their wounds".

44 The trafficking in ecstasy charge is asserted to have occurred during 2008. The Crown case relies upon a number of the conversations recorded between Mr Barbaro and his co-accused, which have been summarised by Mr Bates as follows:

• Mr Barbaro stated that he is still waiting for an associate to pay $600,000.

• A co-accused stated that the "pure MDMA" is already mixed with the binding material and that 10,000 pills weighs 3.2 kilograms.

• Mr Barbaro stated there are a lot of "good pills" and that he wants to give his people overseas $1,000,000.

• Mr Barbaro stated that the pills he had bought were already mixed.

• Mr Barbaro and other co-accused discussed different weights of pills, "mixing pure MDMA" and "getting 10,000 from 3 kilos".

• Mr Barbaro stated he could have sold 25,000 a day and said that if an associate has not sold them he wants them back as he (the Respondent) can sell them straight away.

• Mr Barbaro stated he had sold two lots of 25,000 in two days.

45 Mr Bates deposes that at least 720,000 ecstasy pills had been trafficked by the syndicate of which the respondent is said to be a principal since February 2008.

46 The cocaine charges relate to the delivery of another container to Melbourne said to contain bags of coffee originating from Colombia. The container arrived on or about 24 July 2008 with approximately 150 kilograms of cocaine located within three large canvas bags placed amongst the bags of coffee. Between 26 and 27 July, Mr Barbaro and several co-accused engaged in conversations recorded by the AFP concerning the status of the container and ongoing plans to have it removed from the docks. It appears that, subsequently, a co-accused advised Mr Barbaro that the shipment had been detected and other recorded conversations identify Mr Barbaro describing the location of the three bags inside a container and later stating "coke ... we'd love 150 kilos of it".

47 The precursor importation charge relates to the importation between May and September 2008 of one hundred kilograms of MSG. Recorded conversations involving the respondent indicate that, via an associate, approximately $20,000 was transferred to India in May of 2008. In September, another container arrived in Melbourne from India containing the MSG, with the consignee said to be Phill Bee Interiors. In the course of previous recorded conversations, the respondent and a co-accused had made, as asserted, numerous references to a receipt for the goods being in the name of Phill Bee.

48 Finally, there is the money laundering charge. It is asserted by the Crown that over $7 million of the proceeds of drug sales has been transferred overseas through a process known as "cuckoo smurfing". Surveillance of Mr Barbaro on 29 March 2008 showed him handing at least $300,000 in cash to a co-accused at a supermarket in Footscray, with the apparent purpose of remitting the moneys overseas. On 24 July 2008, Mr Barbaro, with other co-accused, was recorded discussing arrangements for the transportation of $5 million from Adelaide to Melbourne, with the inference being that these moneys would be remitted by his co-accused overseas.

49 The Magistrate at the September hearing concluded that Mr Barbaro was the principal organiser of the syndicate with strong international connections. That finding was well founded on the evidence before him.

50 I pause at this stage to make an observation. If proved, Mr Barbaro's conduct was not only persistent, but also involved grave wrongdoing. It is hard to imagine, in the context of drug trafficking and importation, a more persistent and serious course of conduct than that alleged by the Crown.

51 The Magistrate, in his judgment of 19 September 2008, said as follows:

"The Court is however required to make some assessment of the strength of the Crown case from the evidence given by Constable Bates of the Australian Federal Police. In general terms his evidence against Mr Barbaro is that Mr Barbaro was involved in the drug enterprise from beginning to end, he was a main player in that he directed the conduct of others, being the co-accused. He set and guided the agenda and he personally participated in its activities both in Australia and overseas.

Constable Bates indicated that the evidence against Mr Barbaro consists of telephone intercepts, surveillance and documentary evidence obtained by way of search warrant. I do not propose to set out the circumstances of the alleged offending as it was detailed by Constable Bates and Mr Richter, who appeared for Mr Barbaro, conceded that it appeared that the Crown has a relatively strong case."

52 It was not contended before me that this assessment was wrong or that his Honour's summary of Constables Bates' evidence was incorrect.

53 Mr Barbaro is now aged 46. He was raised and has lived in the Griffith area all his life. He is married with four children, two of whom are teenagers. His parents are now quite elderly, and each has significant health issues.

54 Mr Barbaro has a psychological condition which is diagnosed as depression or as a bipolar disorder with associated depression; it requires him to take medication.

55 The Barbaro family operates a number of farms, all within close proximity and primarily utilised as part of a large citrus and vineyard business. Mr Barbaro is said to spend considerable time both managing the farm administratively and carrying out hands-on labour on the farm. The Magistrate, however was not persuaded that Mr Barbaro was as vital a cog as he contended:

"I have also noted the various medical conditions that Mr Pasquale Barbaro and members of his family suffer. In particular, Mr Barbaro suffers from long-term depression which requires appropriate medication. According to Giuseppe, he and his brother assist in taking care of their elderly father and mother. I have taken into consideration the effect of Mr Barbaro being remanded until trial on his family members and the family business, although as the Crown rightly contend, Mr Barbaro's substantial absences from the farm between 2006 and 2008, without apparent explanation to his brother Giuseppe who is the farm manager, together with Giuseppe's inability to recall the extent of these absences does not lead me to conclude that Pasquale's role on the farm is as fundamental and important to its continued operation and financial survival as alleged."

56 Mr Barbaro has several prior convictions. The only conviction of relevance to this application is that in November 2002 at the Supreme Court of Queensland in Brisbane, where he was convicted and sentenced to three years' imprisonment, suspended for three years and six months after having served a term of ten months' imprisonment in relation to a conviction for the supply of dangerous drugs.

The financial impact upon Mr Barbaro if denied bail

57 It was accepted at the September hearing, after hearing evidence from Mr Barbaro's brother, that Mr Barbaro played a part in the business. However, as can be seen from the above extract of his Honour's reasons, the level of his involvement was by no means as clear nor as fundamental as asserted by him.

58 At the December hearing, it was said that the family business was deteriorating whilst Mr Barbaro remained in custody.

59 I have already referred to this in the context of exceptional circumstances. It is estimated that there will be a trial in this Court towards the end of 2010. The delay is clearly significant and is a highly relevant but not necessarily decisive factor in the consideration of determining whether the Crown had established that bail should be refused.

60 On occasions, Mr Barbaro utilised or resided at premises in Carlton. Those premises were the subject of surveillance by AFP. On 8 August of last year, a search warrant was executed at these premises with seizure of the following items:

• Approximately 860 grams of a substance suspected to be MDMA;

• Two unregistered firearms, a silencer and three balaclavas buried in the backyard;

61 In addition, three Victorian motor vehicle licences in different names but each depicting a photo of Mr Barbaro were seized. One of these licences was used by Mr Barbaro to travel under a false name to Perth.

62 The Crown also relied upon evidence surrounding the unlawful departure of a Mr Jan Visser from Australia as being relevant to the issue of flight; in particular, the monitoring in an apartment at a hotel in Melbourne of conversations involving Mr Barbaro and others related to obtaining a false passport for Mr Visser so that he could leave Australia. In the course of the monitored discussions, Mr Barbaro was involved in conversations related to obtaining passports, facial recognition systems, techniques used to obtain false identifications and the manner in which one could exit Australia without alerting the authorities and the provision of false passports. Subsequent to Mr Visser's departure from Australia in early October 2007 under a false passport, Mr Barbaro departed on 14 October for Belgium. When searched by Customs officers, he was found to be carrying a Dutch passport and Mr Visser's birth certificate, as well as a mobile phone number which had been subscribed in a false name.[13]

63 Monitored conversations of Mr Barbaro at the Carlton premises recorded him as saying of Mr Tony Mokbel: "Yeah, but what's money, what's money, what's money? I'd rather be poor and be free than be a millionaire and be in gaol."[14]

64 The Crown relied upon these matters when combined with the seriousness of the offences and the prospective penalties to contend that there was a significant risk that Mr Barbaro may not answer his bail.

65 Mr Barbaro pointed to the following facts which, it was contended, demonstrated that he was not a flight risk.

66 He and his family have long-established roots and connections with the Griffith area both in terms of family, residence and business. Indeed, the business is a large scale operation and required Mr Barbaro's regular involvement.

67 The provision of a significant surety, which could be obtained, as has been seen, in the sum of $2 million.

68 The monitoring by the use of an electronic bracelet would enable the AFP to know exactly where Mr Barbaro was at any given time. The system, once perfected, allowed Mr Barbaro to be tracked when at home and also within a radius of 25 kilometres of his home. In the event of the bracelet being removed, a fault signal would be given off which in turn would alert AFP to the fact that it had been removed. Indeed, a number of fault signals had been sent to AFP as a result of technical difficulties. It was accepted that the system could not prevent Mr Barbaro from attempting flight, but rather it was an inhibitor upon him contemplating such a course as AFP would have a firm base from which to commence a search for him, rather than being left with no knowledge as to his starting point.

69 Although this was not a matter before the Magistrate, Mr Barbaro relied upon what was said to be a relatively lax attitude on the part of the AFP in regards to his monitoring after being released on bail. It was said that the AFP had not availed itself of other means by which to check on Mr Barbaro's whereabouts (such as the use of a video phone beside a recognisable monument in the area around Griffith).

70 Counsel for Mr Barbaro contended that the conditions attached to the granting of bail (not confined to that of the electric monitoring and the increased surety but also including the reporting conditions) constituted the most onerous set of conditions on bail that a court could set. When combined with Mr Barbaro's bail history (to which I will turn in a moment), it was contended that the Crown could not make out that there was an unacceptable risk on the part of Mr Barbaro and therefore he was entitled to be bailed.

71 Coupled with delay, the most significant matter relied upon by Mr Barbaro is his past bail history. Mr Barbaro was charged with serious drug offences in New South Wales. He was tried on those offences on two separate occasions and had two appeals determined by the New South Wales Court of Appeal. Each appeal was successful and ultimately a nolle prosequi was entered by the Crown. During that time, a period of some eleven years, he was, from time to time, on bail and at times in custody. Notwithstanding the imposition of hefty penalties for the alleged crimes, it was accepted that at all times he answered his bail. This was said by his counsel to be "a unique bail history".

Parity with co-accused who have been granted bail

72 Considerable reliance was placed by counsel for Mr Barbaro both before the Magistrate and before me on the question of parity in terms of the granting of bail. All co-offenders have been granted bail. In particular, two others who, it is contended, were in the leadership group. A number of those granted bail also face periods of imprisonment of 25 years or life imprisonment. One of the co-accused in particular is the subject of identical charges as those brought against Mr Barbaro and he has been granted bail on conditions considerably less stringent than those imposed by the Magistrate in relation to Mr Barbaro's bail.

73 The Magistrate was familiar with bail granted to the other co-accused as he was, in effect, "managing" the proceedings up until the committal stage. He reached the following conclusion:

"Constable Bates gave evidence that it is his view that Mr Barbaro is in fact the head of the syndicate. On the basis of the limited evidence I have heard in all four applications, it would appear his opinion is correct."

74 It is impossible on a bail application to be precise as to the pecking order in relation to the members of the syndicate. However, on what I have read, there seems to be considerable support for Constable Bates' conclusion and that of the Magistrate. In any event, each application for bail is to be treated on its own merits and considerations of parity may often be misleading in bail applications (as opposed to the sentencing exercise).

September 2008: The first decision of the Magistrate

75 Having considered the matters which I have adverted to, the Magistrate concluded as follows on 19 September 2008:

"I am of the view that the Crown's concerns are not mere speculation or suspicion but have the foundation. Being satisfied that these risks exist, the question now turns to whether the imposition of stringent bail conditions, including the provision of a surety of $1 million as offered can make these risks acceptable to the court. Mr Barbaro is, in my view, the principal organiser of the syndicate, with strong international connections. The case against him is strong. If convicted he will face a long custodial sentence. His alleged direct involvement with large sums of money and his strong connections with overseas members of the international syndicate, his past close involvement with Mr Visser and his connection to false documentation and his stated views as to what needs to be done to successfully abscond satisfies me, notwithstanding his previous bail history, family ties that are lay involved that he is an unacceptable risk and a risk that cannot be made acceptable by the provision of a $1 million surety as offered or the usual reporting and other conditions, including a suggested curfew. On that basis I refuse his application."

December 2008: The decision of the Magistrate on the new bail application

76 The focus of the evidence at this hearing was directed to the electronic monitoring device and its efficacy with evidence being given by both a Mr Keen, an expert in electronic monitoring, and Mr Wiggett of AFP as to the practical implementation of the device and the burden it would cast upon the AFP in terms of monitoring if wearing it became a condition of bail. The contention made on behalf of Mr Barbaro was that the added safeguard of the electronic monitoring bracelet combined with the increased surety reduced the risk of flight to such a point that Mr Barbaro was, on the information available in December 2008, not an unacceptable risk for bail. In addition, there was evidence that the family business had suffered as a result of Mr Barbaro's incarceration.

77 It cannot be doubted that the Magistrate considered the basis upon which he had denied bail in September. He then concluded as follows:

"The real issue to decide is whether the additional bail conditions as suggested by Mr Barbaro now makes his risk of flight and obstructing the course of justice acceptable to the court. These additional conditions include: static residential address, twice daily reporting, a curfew between 9 p.m. and 6 a.m., being in possession at all times of a mobile phone with a video camera facility, permitting reasonable and random visits to his residence by the Australian Federal Police, remaining within a set radius of his home wearing a Elmotech electronic monitoring device at all times and the provision of a surety in the amount of $2 million.

The monitoring device suggested is not without its limitations. What it is is an additional condition that can be imposed as part of his bail to reduce the risk of flight that I found to exist on the last occasion. Evidence was given by Mr Keen, the director of Abacus Elmotech Pty Ltd as to how the device works and its monitoring capabilities. The wearing of the device does not and cannot prevent Mr Barbaro from absconding if he chooses to do so, only being in custody will do that. It does however allow for a more effective monitoring of him by notification to the relevant receivers of violations of its use which monitor his movements. The additional surety of $1 million also provides additional incentive for Mr Barbaro and the Sergi brothers who are providing the surety to comply with all bail conditions and particularly appear in court.

I am satisfied that with these additional conditions the risks that I have found to be unacceptable risks on 19 September 2008 are now acceptable to the court."

78 I am conscious of the limitations imposed upon a Court on an appeal under s 18A where manifest error is asserted. I have, however, no hesitation in reaching the conclusion that the Magistrate was manifestly wrong in granting bail to Mr Barbaro. Simply put, bail in these circumstances should have been refused. The Crown established that there was an unacceptable risk in granting bail. These offences were extraordinarily serious and, as I have said, demonstrated a continuous course of conduct undeterred by the failure of at least one or more of the various criminal enterprises. The Crown case, on its face, seems strong and Mr Barbaro faces lengthy periods of imprisonment. His bail history, of course, has to be taken into account, but against that is his recent involvement in procuring false driver's licences bearing his face and knowledge of, at least, the supply of false passports, all of which demonstrate a potential ability to have recourse to means which would enable and facilitate flight.

79 Whilst parity may at times be a relevant consideration to a determination to grant bail, the Magistrate's acceptance of Mr Bates' evidence that Mr Barbaro was the principal is a relevant distinguishing factor. As I have said, considerations of parity have their limits in the consideration of a bail application, and each application for bail depends primarily upon matters relevant to the applicant seeking bail.

80 Similarly, delay was a highly relevant consideration, but it also was only part of the mosaic before the Magistrate.

81 Although it is not necessary for me to determine a particular aspect of the Magistrate's finding that may have led to the manifest error, it seems to me that the focus in the December hearing on the efficacy of the bracelet and the provision of the surety deflected the Magistrate from taking into proper account the seriousness of the charges alleged against Mr Barbaro and the extent to which he was a flight risk.

82 Notwithstanding the important matters of delay, Mr Barbaro's bail history and his links to the jurisdiction, when all the considerations are taken into account, I think that there was obvious error on the part of the Magistrate. The additional matters of the provision of the electronic bracelet and the surety for $2 million do not, in my mind, lead me to doubt that, overall, the granting of bail on conditions was manifestly wrong.

83 The question of the granting of bail needs to be considered afresh. The synthesis of relevant matters which I have adverted to in my consideration of the Magistrate's decision points directly, I think, to the conclusion that bail should be refused. As I have said, notwithstanding the delay and the impact that the refusal of bail will have upon Mr Barbaro, he represents an unacceptable risk if granted bail. The offences are particularly serious and the Crown case, which appears strong, demonstrates a continuous course of wrongdoing undeterred by the prospects of detection. Despite his bail history, his familiarity with false passports and his possession of false driving licences are highly relevant factors given the terms of imprisonment now facing him. His bail should now be revoked.

84 The Crown has demonstrated manifest error and, accordingly, the Magistrate's decision should be set aside. I accept that exceptional circumstances have been demonstrated as required by s 4(2)(aa), but conclude, as I have said, that there is an unacceptable risk as contemplated by s 4(2)(d)(i). Mr Barbaro is committed to custody to await his trial.

[1] Under s 4(2)(iii) of the Bail Act an applicant charged with breaches of contract provisions of the Criminal Code of the Commonwealth is required to demonstrate "exceptional circumstances". Conspiracy to import a border controlled drug is not one of the specified offences, nor is trafficking in a controlled drug contrary to sub-s 302.2(1). In fact, only one of the charges, the cocaine charge, required Mr Barbaro to demonstrate exceptional circumstances.

[3] DPP (Vic) v Cozzi [2005] VSC 195, DPP (Vic) v Mokbel [2001] VSC 403, DPP (Vic) v Tong [2000] VSC 451, DPP (Cth) v Thomas [2005] VSC 85, Fernandez v DPP (Vic) [2002] VSCA 115; (2002) 5 VR 374.

[6] See Schoenmakers v DPP (1991) 30 FCR 70, 74 - 75.

[9] Unreported, 8 August 1991, at pp 9 - 10.

[12] The summary of these charges is based upon the affidavit of Mr Paul Bates, the informant.

At a glance

Court

Decision date

Before

Source

Judgment (164 paragraphs)

Parties

Cases Cited (2)