D108 v R

Court of Criminal Appeal (NSW)|2023-02-20|Before: Beech-Jones CJ, Price J, Wilson J, Hulme AJ, Jones CJ

Solicitors: One Group Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2019/305307 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Date of Decision: 25 October 2022 Before: R A Hulme AJ File Number(s): 2022/276555

(Revised from transcript)

BEECH-JONES CJ at CL: On 8 April 2022, the applicant for bail, D108 [1] , was convicted in the Local Court of three offences of knowingly give false or misleading evidence to the NSW Crime Commission (the "Crime Commission") contrary to s 27(1) of the Crime Commission Act 2012 (NSW) and one offence of obstructing or hindering the Crime Commission in the exercise of its functions contrary to s 47G of the Crime Commission Act. The maximum penalty for an offence under s 27(1) is 5 years' imprisonment, although, if dealt with summarily, the Local Court is restricted to imposing a sentence of 2 years imprisonment (s 27(2) and (4)). The maximum penalty for an offence under s 47G is 2 years imprisonment.
On 20 June 2022, the applicant received an aggregate sentence in the Local Court of imprisonment of 3 years and 3 months with a non-parole period of 2 years commencing on 30 September 2021. Under that sentence he will be first eligible for release on parole on 29 September 2023.
The applicant has filed an appeal to the District Court against both his conviction and sentence (Crimes (Appeal and Review) Act 2001 (NSW), s 11). His appeal is listed for hearing for two days commencing on 23 June 2023.

Background

The following additional aspects of the chronology to this application should be noted.
The applicant is 40 years of age. He has a number of prior convictions including convictions for assault and stalking and dealing with the proceeds of crime. In September 2018 the applicant was arrested on the latter charges and granted bail. In April 2019, he was arrested and charged with the possession of an unregistered firearm being a pistol. He was remanded in custody until he was released on bail by the Supreme Court in July 2019. As explained below, the events the subject of his convictions took place on 26 August 2019 and 30 September 2019. In September 2019 the applicant was sentenced for the proceeds of crime offences. He received an Intensive Correction Order ("ICO") for a period of 18 months. In December 2019 this was varied on appeal to a Community Correction Order.
On 1 October 2019, the applicant was charged with various offences arising out of his appearance before the Crime Commission including the offences in respect of which he was ultimately convicted (the "Crime Commission charges"). He was refused bail. He applied for bail in the Supreme Court but that was refused on 7 November 2019. Meanwhile, on 19 November 2019 the firearms charges were dismissed.
A further application for bail was refused in the Supreme Court on 19 February 2020. However, following another application, on 18 June 2020 N Adams J granted the applicant bail on reasonably strict conditions. There was evidence before her Honour that the applicant's eldest child was in particular need because of his autism. As at June 2020, the effects of the pandemic restrictions on persons in custody were significant.
The hearing of the Crime Commission charges took place on various dates throughout 2021 with the judgment recording the applicant's guilt on some of the charges delivered on 8 April 2022.

The Convictions

One matter of significance to this application is whether the applicant has reasonably arguable prospects of successfully appealing his convictions and sentence (Bail Act, s 18(1)(j)).
Placed before this Court was a copy of the Presiding Magistrate's reasons delivered when the applicant was convicted (and acquitted on the balance of the Crime Commission charges). Like Musgrave DCJ, who refused the applicant bail in the District Court on 4 July 2022, and R A Hulme AJ, who refused the applicant bail on 25 October 2022, I regard those reasons as cogent and comprehensive.
In summary, the Crime Commission was conducting an investigation into five gang‑related murders committed between April 2016 and March 2017. The applicant was summonsed to appear at hearing before the Crime Commission in circumstances where his fingerprints and DNA were found on items located in a BMW motor vehicle including a Glock pistol, a rifle and a bag of ammunition. The applicant was a previous owner of the BMW. On 22 August 2017, three firearms involved in the last of the five murders had been found in the BMW.
The applicant attended a hearing before the Crime Commission on 26 August 2017. He was examined under oath. Amongst other topics he was asked about his possession, and the whereabouts, of an encrypted mobile phone. One of the charges of which he was convicted concerned answers he gave to the effect that, at the time he was questioned, the phone was at his home in Southwest Sydney. During that hearing, the applicant reluctantly provided the questioners with the password for the phone. He was directed to produce the mobile phone to the police that evening "and not in some altered state". At the conclusion of the hearing, the applicant returned to his home purportedly to collect the phone. In the presence of his solicitor, he delivered the phone to the police later that evening.
When the mobile phone was examined, it was found that it had been, or at least appeared to have been, "wiped" in that it did not have user generated data created prior to 6.54pm on 26 August 2017. No password was required to access the phone at the time of the examination. The applicant returned to the Crime Commission on 30 September 2017. He again stated that his mobile phone was at his home on 26 August 2017. He also denied he was responsible for factory resetting or "wiping" the encrypted phone. The falsity of these two answers was the basis for the other two charges of giving false or misleading evidence of which the applicant was convicted. The charge of obstructing or hindering the Crime Commission concerned the applicant's conduct in resetting or wiping the encrypted phone.
Thus, in effect the prosecution case in respect of these charges was that the applicant falsely told the Crime Commission that his encrypted phone was at his home, that shortly after leaving the Crime Commission he wiped or reset the phone, delivered it the police and then later denied doing so. His Honour's reasons for concluding beyond reasonable doubt that this aspect of the prosecution case was made out were as follows: "This is a circumstantial case. I accept from the defendant's evidence at the Crime Commission that he is [the] only person that has access to the phone. I accept that it takes approximately one and a half hours to get from his place to the city and vice versa. I accept the evidence that the call records indicate the phone pinging off the David Jones tower in the Sydney CBD at 4.48pm and later at 6.50pm. The phone was handed to police [at a station in Southwest Sydney] at 8.23pm on 26 August 2019, deducting one and a half hours from that time and noting that [that police station] is close to the defendant's home the defendant would have commenced his drive around the time of the final call record being made i.e. about 6.50pm. For file logs to be created by powering on at 6.54pm, 7.43pm and 7.57pm on 26 August 2019 the phone must have been in the defendant's possession in the city to be able to ping off the David Jones tower in the CBD at 6.50pm. If the phone was at home and opened by another person it would not and could not have pinged off the David Jones tower at 6.50pm. On the defendant's evidence no other person could have used or accessed the phone by opening it. If the phone was at home at 6.54pm it would have been impossible for the defendant to have powered on the phone because he was not there and again at 7.43 and 7.57pm given the time that the phone pinged off the David Jones tower in the CBD. By powering on at 6.54pm and the subsequent two occasions shortly thereafter the only logical and rational inference is that the defendant knew that the encrypted phone had been wiped and he in fact wiped the phone or restored it to factory settings."
The applicant's written submissions in this Court referred to the evidence given at the hearing in the Local Court by the forensic expert who examined the phone. In a passage from that evidence extracted in the submissions the expert conceded the possibility that the phone was "wiped" by an "automatic process". It was also submitted that the evidence raised a possibility that data on the phone was not wiped but stored in the "cloud" and that the phone was capable of being accessed remotely and wiped.
On the limited material available to this Court, I regard these contentions as only raising bare possibilities but no more. They do not account for the evidence of the applicant that he was the only person who had access to the telephone. They do not account for the applicant's phone "pinging" with cell towers in the city in circumstances where the applicant testified on oath that the phone was at his home. They do not account for the fact that a password was not required to examine the phone when a password had to be extracted from the applicant under oath. There is no rational reason for an encrypted phone not having a password. Moreover, it would be irrational for an encrypted phone to have all of its data stored in the "cloud" yet have no password. Lastly these possibilities do not account for the remarkable coincidence in timing in that generated data on the phone only commenced at a time between when the applicant left the hearing before the Crime Commission and the phone was delivered it to the police.
Her Honour Judge Musgrave concluded that the prosecution case was strong. R A Hulme AJ concluded that the applicant did not have reasonable prospects of success in overturning his convictions. My assessment accords with their Honours. Amongst other matters, the significance of the applicant's convictions for these offences in these circumstances means that it has been established that the applicant has previously had access to enciphered communications devices and is capable of acting dishonestly. Given the context in which the offences were committed, they also provide strong support for the suggestion that he has criminal associations.
So far as the appeal against sentence is concerned, the applicant's submissions contended that there is substantial possibility that his client might be made subject to an ICO having regard to the reasons in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, and that otherwise his sentence appeal may be frustrated if he is refused bail. The applicant also seeks to raise an argument about the jurisdictional limit of the Local Court to impose a sentence of the length it did in this case.
It is beyond argument that the applicant's offending required the imposition of a substantial custodial sentence. Beyond that, I am not in position to assess his prospects of successfully varying the sentence that was imposed. While the possibility that the applicant might obtain a reduced sentence is relevant to whether the applicant has shown cause, it does not play any significant role in this case in the assessment of bail concerns under the Bail Act.

Other Material

The applicant has put forward reasonably strict proposed bail conditions. He proposes a form of "curfew" in which he will live at his family home and only leave in specified circumstances including reporting to the police, attending court and accompanying his wife and children. Those circumstances also include attending employment with his father. The applicant agrees to present himself at the front door if requested by the police to monitor compliance with his curfew conditions.
The applicant proposes to report to police three days a week. The applicant offers to have an acceptable person agree without security to forfeit $300,000 in the event that he does not comply with his bail conditions. His sister has previously agreed to those terms. The applicant also proposes conditions that involve him possessing only one mobile phone without any encryption software and that he provide the means of accessing that telephone to the police.
Tendered on behalf of the applicant was a significant amount of material concerning the applicant's two children. His son is six years old and his daughter is just under three years old. They are both autistic. They are developmentally delayed and their behaviour is described as "challenging". They require significant levels of support. The applicant's wife experiences great stress in caring for them by herself. A behavioural intervention specialist has reported that, since the applicant was incarcerated, there had been a significant decline in the applicant's son's progress in therapy.
The applicant also referred to oral evidence that was adduced at the hearing of his bail application before her Honour Judge Musgrave in June and July 2022. The applicant's wife told her Honour that her daughter was born while the applicant was incarcerated. She described her daughter's autism as "severe" with her experiencing "developmental delay, meltdowns [and her] sleep pattern is horrible". She was also concerned that her son had become "very harmful, even with his sister". The applicant's wife said she operates a business from her own home and the applicant could assist her in running the business from there if he was released. In cross‑examination, she said she received some assistance from her mother who spends her time between Sydney and Melbourne. She rejected the suggestion that she could not monitor her husband's actions while he was at home with her.
The applicant's sister confirmed that she had provided surety for the applicant's existing bail. She is employed full-time recruiting clients for a finance company. The applicant's father gave evidence that he had a business delivering tobacco and related products which the applicant assisted him with. He said the applicant commenced work at around 6.00am each day and finished at around 5.00pm. In cross‑examination, he stated that he was with the applicant "most of the time". The applicant's father also stated that he had overheard the applicant having telephone contact with the owner of a smash repairer's business in Matraville. A Detective Senior Constable within the Homicide Squad of State Crime Command gave evidence that that owner had "intelligence holdings for money laundering and motor vehicle rebirthing".
In this Court, the Crown tendered letters from that Detective Senior Constable outlining various matters relevant to the bail application. The applicant objected to the tender of these letters but the Court received them. I addressed the significance or otherwise of expressions of opinions contained in such letters in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 (at [31]‑[39]; "Mawad"). I will not repeat that discussion. The letter from the Detective Senior Constable does not simply make assertions about bail risks (cf Mawad at [35]) but instead collates concrete information of relevance to the application for bail. The officer notes that in early 2020, while the applicant was refused bail, he was found guilty of a correctional centre offence of possessing a mobile phone. This device was said to have all the "trademarks" of a "Cipher encrypted handset". The Detective Senior Constable reports that lawfully intercepted evidence reveals attempts by the applicant to introduce drugs into the prison system and an attempt by him while incarcerated to locate a prison informer who was also in custody. On this application, the Court was taken to source material which appears to support those statements. Lastly, the Detective Senior Constable also notes that, on one occasion in January 2021, the applicant failed to report on bail.

Determination

As noted, the applicant was on bail at the time he appeared before the Crime Commission in August and September 2019. It follows that he must "show cause" why his detention is not justified (Bail Act, s 16A and 16B(2)(h)).
The interrelationship between the necessity to show cause and the demonstration of the existence of unacceptable risk of a bail concern materialising was outlined in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 ("Tikomaimaleya"). It suffices to state that, where the show cause test applies, the Court must apply a two-stage test. The first is to determine whether or not the accused person has shown cause "why his or her detention is not justified" (s 16A(1)). The second stage arises if cause is shown, as the court must then assess whether or not the person's release raises any bail concerns (s 17(1); s 16A(2)) and, if so, determine whether there is an unacceptable risk of those concerns materialising (s 19). A bail concern is a concern that the person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence (s17(2) and s19(2)). In relation to the first stage, the justification or otherwise for a person's detention is to be determined by consideration of all the circumstances whereas the unacceptable risk test requires that consideration only be given to the factors in s 18 (Tikomaimaleya at [24]‑[26]), although it "may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test" (Tikomaimaleya at [24]).
Although a number of matters were said by the applicant to show cause, two matters were of particular significance. The first is the position of his children which has been described. In and of itself, that would not be sufficient to show cause in this case, however when taken with other matters it can assist in cause being shown. Second, and most importantly, there is the timing of his appeal. As noted, his appeal is set down for 23 June 2023 which is just over three months prior to the expiry of his non-parole period. This substantially undermines the utility of his appeal and has the tendency to frustrate his appeal rights. In these circumstances, I am satisfied that cause has been shown.
The Crown contended that, if released, the applicant presented an unacceptable risk of failing to appear (Bail Act, s 19(2)(a)). It pointed to his slim prospects of success on appeal, the remaining period of his sentence, his conviction for dishonesty and his poor bail history in that he committed the offences the subject of the appeal while on bail. I accept that there is a risk of the applicant failing to appear but I do not accept that, when considered with the proposed bail conditions, that risk is unacceptable. While the applicant has proven to be dishonest, it seems to me unlikely that he would abandon his family altogether to avoid serving the balance of his non-parole period.
The Crown also contended that, if released, the applicant posed an unacceptable risk of committing a serious offence (s 19(2)(b)). The Crown referred to his commission of the offences the subject of the appeal while on bail, the evidence of his association with organised crime and his custodial history. The applicant's submissions pointed to his history of compliance with the bail conditions imposed by N Adams J and the frustration of his appeal rights that would ensue if bail is refused. The applicant's submissions also pointed to the likelihood of his appeal against conviction succeeding, a matter that has already been addressed. It was also submitted that the matters referred to by the Detective Senior Constable are deserving of little weight given that many of them involve matters of which he has no direct knowledge.
The applicant has been convicted of lying to the Crime Commission and interfering with an encrypted mobile phone. He did so in circumstances that strongly point to an association on his part with organised crime. I regard his prospect of overturning those convictions as slight. Those offences were committed while he was on bail. When the circumstances of that offending are taken with the evidence that he obtained another telephone with encryption while in custody and the other material referred to by the Detective Senior Constable, even bearing in mind the concerns about the weight to be attached to that material, then the evidence of his involvement with organised crime becomes overwhelming. The combination of his having committed those offences while on bail, having access to encrypted devices and having an association with organised crime creates a very serious risk of the commission of serious offences. I do not consider that risk can be ameliorated by bail conditions including those that seek to restrict his access to mobile phones. The applicant has contravened legal obligations imposed on him in relation to mobile phones twice. There is no reason to believe he will not do so again.
The risk of commission of a serious offence by the applicant if he is released on bail is unacceptable (s 19(1)).
Accordingly, I would refuse bail.
PRICE J: I agree with Beech-Jones CJ at CL.
WILSON J: I agree with the orders proposed by Beech-Jones CJ at CL for the reasons that his Honour has given.
BEECH-JONES CJ at CL: Accordingly, the order of the Court is that bail is refused.

Endnote

The applicant is to be referred as "D108" pursuant to an order made by Fagan J on 9 August 2019 (see New South Wales Crime Commission v D108 [2019] NSWSC 1035). 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 2023

(Crimes (Appeal and Review) Act 2001(NSW)

Supreme Court (Bail Act 2013(NSW)

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