Bertucci v Director of Public Prosecutions

Strength of the prosecution case

1. The CDPP submits that cause has not been shown, relying principally on its assessment of the strength of its case as well as the extremely serious nature of the importation, including the quantity of drugs involved and the sophistication.
2. I should indicate that the seriousness of the offence, the quantity involved and the sophistication of the operation, as alleged by the prosecution, does not of itself prevent this Court from granting bail. As a case of Mohr v R (Supreme Court of NSW, Hamill J, 22 December 2017, unrep) shows even in the most serious cases of importation of drugs an applicant may demonstrate that they have shown cause. Mr Mohr relied on a combination of circumstances, as does the applicant, to successfully achieve the grant of bail in a case where he had allegedly imported something in the order of half a tonne of cocaine. That combination of circumstances included the likely delay between arrest and trial, as well as the fact that he suffered from a significant medical condition, which was not properly treated whilst in custody.
3. Mr Lloyd submitted that the prosecution case is one of "moderate strength" but emphasises that is "purely circumstantial" and "clearly defendable". Mr Lloyd relied on the fact that the applicant was not under surveillance during the course of the events relied on by the prosecution and that there is, therefore, no direct proof that the applicant himself sent any emails, transferred monies referrable to the relevant consignments, or participated in any electronic communications with those associates referred to in the Statement of Facts.
4. Despite the evidence more recently derived from applicant's computer, Mr Lloyd maintained his submission that the prosecution case is purely circumstantial as the emails sent from that computer or from elsewhere cannot be attributed to any particular IP address. Some were also sent using a virtual private network (VPN) which cannot be traced, while other emails were sent without the use of a VPN. For the emails allegedly sent over the broadband service subscribed to the applicant's home address, Mr Lloyd relied on the fact that there is no direct evidence that the applicant was using the relevant telephone or Wi-Fi service at the time. He submitted that a jury may entertain a reasonable doubt as to who sent the emails relied on by the prosecution. He referred to associates of the applicant who are known criminals and, as I understood the submission, suggested that these associates may have used the applicant's devices to send the incriminating communications in the name of Daniel Musgrave.
5. On the other hand, Ms Rodger, who appeared for the CDPP, said that the case against the applicant is "overwhelming", particularly in light of the material located on devices clearly used by the applicant and the use of his 'phone and home internet services for some of the communications. In support of this submission, reference was made to the location of large sums of money in premises associated with the applicant although, upon interrogation, the precise connection between those premises and this importation was unable to be (or at least was not) identified.
6. Assessing the strength of the prosecution case at this distance is notoriously difficult. The statement of facts prepared by the AFP makes various factual assertions which appear to be no more than allegations. On countless occasions, the statement of facts assert that Mr Bertucci did something, whereas the reality is that the AFP asserts that the only reasonable inference is that he did something. On the other hand, Mr Lloyd's submissions involved a piecemeal attack on a circumstantial case which the tribunal of fact will ultimately be called upon to assess holistically. While it is obviously a circumstantial case, that is not unusual in cases of this kind and there appears to be a substantial body of evidence capable of implicating the applicant. It is not the case that the individual items of evidence relied upon by the prosecution need to be established beyond reasonable doubt.
7. It may be that a crucial or indispensable intermediate fact (requiring proof to the criminal standard) is the fact that Mr Bertucci was the author of the communications in the name of Daniel Musgrave. However, if that fact is established beyond reasonable doubt, the case against the applicant appears to be extremely strong. The laptop seized at Mr Bertucci's home was examined and the applicant's fingerprints were identified. There is a great deal of material on that laptop (documents, data and the like) linking the applicant to a number of aliases, including "Daniel Musgrave", as well as communications involving Opaque Whitegoods surrounding the importation of the consignments on both the dry runs and the live run. The police found evidence of the operation of an email account in the name of "Daniel Musgrave" on Mr Bertucci's personal mobile device and there is a link between that account and communications with the logistics company involved in the importation the subject of the charge.
8. There is also the evidence suggesting the applicant established a "safehouse" - where police later found $1.5 million in cash which is the subject of separate state offences to which the applicant has pleaded guilty - using another fake identity, that of "Ben Rogers". A copy of the tenancy agreement for those premises was found at the applicant's home and there is evidence on the laptop linking him to the safehouse and the person who purportedly took out the lease on those premises. Ms Rodger suggests that there is a nexus between this evidence and the drug importation charge although, as I have suggested at [14], that connection is a little opaque or indirect.
9. I do not accept the Prosecutor's submission that the case is "overwhelming" but I am satisfied that the case against the applicant is very strong, particularly in light of the "new" evidence and data found on the applicant's personal laptop. There is now evidence of emails directed to the organisation of the importation and evidence establishing a connection between the applicant and the accounts used to send those emails.
10. As the authorities demonstrate, the strength of the prosecution case is not determinative in cases where the applicant is required to show cause, but it is a material and significant factor.

Delay

1. As to delay, Mr Lloyd submitted that there will be a substantial delay between the time that the applicant went into custody and the time that his case will ultimately be heard. The case is listed for mention in the Local Court on 24 March 2021 and then, according to the respondent, it is anticipated that the matter will be adjourned for charge certification. On direct questioning on the bail application, the CDPP asserted that the brief will be served, in an appropriate if condensed form, by the time the case is next before the Local Court. Everything that follows is predicated on that assertion. The next stage of the process takes approximately six weeks, which means that the applicant's charges are likely to be certified sometime in May of this year. Following that, there will be an adjournment of approximately 8 weeks to allow for case conferencing. Doing the best one can to make predictions about the progress of court cases, it is likely the applicant will be committed for trial in around July this year.
2. Following the hearing of the release application, and with the consent of the parties, I made inquiries with the District Court about when a trial of six to eight weeks duration (based on Mr Lloyd's estimate) could be heard at the Downing Centre, following committal in the middle of the year. The information is that such a trial could be listed towards the end of this year, or in the early months of next year.
3. If those estimates are correct, the applicant is likely to spend in excess of 12 months on remand, while he is presumed to be innocent. Contrary to Mr Lloyd's submission, it does not seem likely that the applicant will be in custody for "upwards of two years." The delay in this case is unacceptable but not remarkable or unusual.
4. The Prosecutor made submissions based on the observations of Fullerton J in R v Gountounas [2018] NSWCCA 40. The following submissions were made (see Tcpt, 04/03/2021, p 27): "When her Honour goes to consider her view of that case at para 44, what her Honour said was: 'The relevance of delay in this case and the resultant length of time Mr Gountounas will remain on remand presumed to be innocent is, in my view, of little weight on the show cause question where the assessed strength in the Crown case for present purposes must be taken to mean there is a corresponding likelihood, perhaps even a probability, that he will be convicted.' In that case there was more than one Crown and her Honour was saying 'of either one or more charges'. Your Honour, I would submit that this case is in the same category in that there is a likelihood, or perhaps even probability, once your Honour has had the opportunity to analyse the strength of the Crown case, that he will be convicted of an offence that means he will be serving a significant period of time in custody."
5. A copy of that case was not provided to the Court. There was no reference made to the judgments of the other members of the Bench. I had a copy on the Bench with me and reviewed it as counsel continued with submissions. The other Judges who comprised the Bench in Gountounas took a different approach to the question of delay. Simpson JA said: "2. I do not regard the lengthy delay that is likely to occur before Mr Gountounas comes to trial as of little weight; I would accord it significant weight. Similarly, I consider that the fact that Mr Gountounas will be held in a New South Wales facility while his family, including a young child, remain in South Australia, and the difficulties of preparing for trial in those circumstances also to be of significant weight. 3. Notwithstanding that, these factors are not sufficient to overcome the very real risk of flight identified by Fullerton J by reason of the clear strength of the Crown case, the evidence suggesting prior offending of the same kind and potential access to financial resources."
6. McCallum J (as her Honour then was) dissented and on the issue of delay said: "54. Justice Fullerton has said that even significant delay is not, of itself, sufficient to show cause, citing the decision of Garling J in A1 v R; A2 v R [2016] NSWSC 1288 (publication restricted). With great respect to Fullerton J, I do not understand Garling J to have stated or applied a principle in those terms in that case. Bail judgments in the Supreme Court reveal that the show cause requirement is sometimes determined taking risk into account and sometimes determined putting risk to one side on the basis that its assessment must be a separate exercise. Taking the former approach, Garling J accepted that delay was a factor to be weighed in the show cause test but concluded that the applicants had not shown cause because there was an unacceptable risk of interference with a witness who had allegedly been threatened by the accused. 55. If the latter approach is taken, depending on the circumstances of the case, I consider that delay could be enough to show cause (although it would still be necessary separately to assess risk). In R v Cain (No 1) [2001] NSWSC 116, Sperling J said 'the prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights'. I respectfully agree. As I have said before, the Court must be astute to ensure that those concepts are not eroded by progressive numbness to delay or its normalisation due to the jading impact of straining against the stretched resources of the criminal justice system: R v Farrell [2016] NSWSC 1278 at [25]."
7. As Ms Rodger conceded, once these matters were raised there was no acceptance of the approach articulated by Fullerton J on the issue of delay. Further, there are many cases decided both in the Supreme Court bail list and the Court of Criminal Appeal where it has been held that delay is an important factor relevant when considering whether an applicant has shown cause. For example, in DPP v Zaiter [2016] NSWCCA 247, RA Hulme J considered that a delay of about 18 months was "unremarkable with the current heavy caseload pending in the District Court" but said (at [44]) that "the delay in this matter is concerning and is an important fact in the ultimate determination".
8. In the present case, I am not satisfied that the delay of itself would satisfy the show cause requirement. However, it is matter that is entitled to significant weight in determining whether the applicant has shown cause as to why his detention is not justified.

Evidence of the applicant's son's disability

1. The applicant also relied on the fact that the applicant's young son has a "likely" diagnosis of ADHD. Mr Lloyd submitted that the son's difficulties and the applicant's absence from the family home causes his wife grief and creates difficulties with the care of their children. The evidence suggests that, since the applicant has been in custody, the child's behaviour has become more difficult to manage. By way of example, the child has started to wet the bed since Mr Bertucci was incarcerated.
2. The evidence is in the form of a psychological report of an assessment of the child and affidavits of various family members which make some reference to the child's behaviour and medical condition. The psychologist found that the child's presentation was consistent with ADHD but said that the child was too young to make a formal diagnosis. The psychologist found that there was no indication that the child has an intellectual impairment.
3. As a result of precautions introduced to prevent the spread of COVID-19 within the prison system, visits to the applicant at the Parklea Correctional Centre, are extremely limited. This results in further hardship to the family.
4. While these issues are significant, they do not of themselves satisfy the show cause requirement. Comparison might be made with cases such as R v Mawad [2015] NSWSC 1237; Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 and R v Xi [2015] NSWSC 1575. In each of those cases there was clear and unambiguous evidence that the applicant's child had a severe medical or psychological condition. In Boatswain v R [2019] NSWCCA 238, the Court was not satisfied that the applicant's terminal illness satisfied the show cause requirement. Of course, none of these cases provide any authority which is dispositive of the applicant's release application. Rather, each application is to be determined by reference to its own individual facts and circumstances. Further, the family circumstances and the child's likely diagnosis of ADHD are matters to be considered along with the combination of other features to decide whether the applicant has discharged the onus to show cause why his detention is not justified.

Bail conditions, electronic monitoring and the personal circumstances of the applicant and his family

1. The final matter relied on in terms of the show cause issue, which is also relevant to an assessment of risk, is the applicant's willingness to submit to a set of stringent bail conditions, including electronic monitoring and the availability of a large surety.
2. The applicant's mother has offered surety in the sum of $280,000 to be secured by mortgage on her home. The applicant has offered to submit to conditions that amount to a form of house arrest and to pay for a well-known security company, Attenti Australia (Attenti), to attach an electronic monitor to his person in order for his movements to be monitored.
3. There was evidence from a director of Attenti explaining the way electronic monitoring works and undertaking to notify the AFP if the applicant were to breach any geographical restrictions placed on his movements pursuant to any bail agreement.
4. A transcript of the bail application before the Local Court was tendered and this included cross-examination of an AFP officer and a Correctional Services officer. The respondent tendered material raising questions about the utility and effectiveness of electronic monitoring and asserting that there are issues with the AFP's ability to allocate the resources to respond to notifications from Attenti and similar companies. The respondent relied on a judgment of Fagan J where his Honour accepted similar evidence, finding that the condition proposed was "unacceptable and not practically workable for an applicant such as this bail applicant, who is facing a Commonwealth charge": R v Bail Applicant M [2020] NSWSC 1685.
5. In the course the argument on this issue I enquired whether, if I took a favourable view of the applicant's release application, the AFP would prefer Mr Bertucci to be released without electronic monitoring. While counsel wondered out loud whether I was "being facetious", it was a genuine question asked in earnest. While it is obvious that such monitoring is not foolproof, as has been demonstrated in more than one notorious case, electronic monitoring can add a layer of security and will be an appropriate condition to impose in response to some applications. This is, no doubt, why it is often used in the management of high-risk offenders in the community after the expiration of their sentence. I am unable to accept that the decision of Fagan J in R v Bail Applicant M is binding authority for the proposition that electronic monitoring cannot be imposed, or is rarely appropriate, as a bail condition in offences prosecuted under Commonwealth law. The evidence adduced in the Local Court showed that there is more than one alleged Commonwealth offender currently subject to electronic monitoring and the AFP appears to accept that it can and will respond appropriately if the company supervising the device notifies it of any relevant incident of potential non-compliance.
6. In view of the conclusions I have reached, it is unnecessary to say more about this aspect of the case.
7. The conditions proposed by the applicant have some capacity to mitigate the risks associated with the applicant's release but they do not remove them altogether. Further, the offer to accept stringent bail conditions is relevant to the show cause issue but cannot be given too much weight in determining that question. Like the other matters to which reference has been made, it is to be considered along with all of the facts and circumstances to reach a determination about whether the applicant has shown cause why his detention is not justified.
8. I have considered the sad circumstances set out in the affidavits and references tendered on the applicant's behalf. It is clear that he has excellent community and family support.

Conclusion

1. I have considered all of these matters in combination. I have taken into account the seriousness and sophistication of the alleged offending, the quantity of drugs involved, the strength of the prosecution case and the likely sentence upon conviction. I have considered the likely delay between now and the time of the trial. I have considered the applicant's family circumstances and the difficulties faced by his wife in view of the behavioural issues and possible neurological condition of the couple's young son.
2. Taking all of those matters into account I am not persuaded that the applicant has shown cause why his detention is not justified.
3. For those reasons, the release application is dismissed and bail is refused.

Amendments 21 February 2024 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2024