Director of Public Prosecutions (Cth) v Heng

Reasons bail was granted

1. The release application before his Honour was based primarily upon the need for Mr Heng to prepare for his trial. The prosecution brief of evidence is substantial and it comprises a considerable amount of electronic material by way of surveillance videos and conversations recorded by telephone intercepts and listening devices.
2. A substantive hearing of the bail application took place on 19 November 2015. Affidavits were read and oral evidence was taken, particularly concerning the extent of Mr Heng's requirement for access to a computer upon which to review evidence served by the Crown in electronic form. The evidence and submissions before Hidden J on 19 November 2015 canvassed the limitations upon Mr Heng's access to computers whilst in custody.
3. In a preliminary judgment of 24 November 2015, Hidden J said that he considered the prosecution case to be "a strong one". He considered that "there are real concerns as to [Mr Heng's] appearance at court and as to the risk of further serious offences if he were released on bail".
4. Hidden J's primary reason for granting bail on 15 December 2015 was that Mr Heng was unable to have sufficient access to computers in the custodial environment to review the electronic material in the prosecution brief. Following the hearing on 19 November 2015 and his Honour handing down his preliminary judgment of 24 November 2015, some arrangements were made for improved access for Mr Heng to computers. Hidden J stood the matter over to 17 December to see what might transpire. When the matter came back before him on that date there was evidence that Mr Heng had had "substantial access to computer facilities" in the preceding 3 weeks or so. However, his Honour accepted the concern of Mr Heng's solicitor that this access remained deficient and that this put in jeopardy the proper preparation of his defence for his trial due to commence in February 2016.

Bail conditions imposed by Hidden J

1. The conditions of bail imposed by Hidden J were very strict. They required Mr Heng to live at a certain address and not to leave it except in the company of a nominated person or for the purpose of attending his solicitor's office. Other conditions included that Mr Heng was to report to police twice daily and to only use one mobile phone the number of which was to be provided to police.
2. Four nominated acceptable persons were to deposit security for the payment of a total of $380,000 and to forfeit it if Mr Heng failed to appear in court.
3. The rationale for granting bail and imposing these conditions was that Mr Heng would attend his solicitor's office Monday to Friday each week from 9.00am to 6.00pm where he would devote himself to a consideration of the material in the prosecution brief and then provide instructions to his solicitor and counsel.

Relevant provisions of the Bail Act

1. The Director's detention application required this Court to consider the question of bail afresh: Bail Act s 75. It was not a matter of reviewing the decision of Hidden J.
2. Mr Heng is required to show cause (on the balance of probabilities: s 32) why his detention is not justified: Bail Act 2013 s 16A. One reason for this is that the offences alleged are punishable by imprisonment for life (s 16B(1)(a)). The first offence is under Part 9.1 of the Criminal Code Act 1995 that involves the importation of a commercial quantity of a serious drug within the meaning of the Criminal Code Act 1995 (Cth) (s 16B(1)(g)). The second offence is under the Drug Misuse and Trafficking Act 1985 and involves the manufacture of a commercial quantity of a prohibited drug (s 16B(1)(f)) and is one of aiding and abetting an offence mentioned elsewhere in s 16B (s 16B(1)(k)). Another reason why cause must be shown is that both offences are serious indictable offences alleged to have been committed whilst Mr Heng was on parole (s 16B(1)(h(ii)).
3. In relation to the last of those provisions that invoke the show cause requirement, Mr Heng was sentenced in the District Court on 5 December 2008 for the supply of a prohibited drug and received a sentence of imprisonment of 7 years 6 months with a non-parole period of 3 years 9 months. The sentence dated from 10 May 2007. The non-parole period expired on 9 February 2011 and the total term expired on 9 November 2014. Mr Heng's parole was revoked after his arrest for the present matter on 9 July 2013. He had been at liberty on parole for two years and five months by that date. He served the balance of his earlier sentence in custody from 1 August 2013 until 3 December 2014. Only his custody from 3 December 2014 to the present (now approximately 14 months) has been attributable solely to his remand to face the current changes.
4. If Mr Heng were successful in this Court in showing cause, it would remain to consider whether there were any "bail concerns" by a consideration of (and only) the various matters listed in s 18(1) of the Bail Act 2013. In doing so, if the Court were to come to the conclusion that there were any "unacceptable risks", it would be required to refuse bail. Of course, one of the mandatory matters listed in s 18(1) for consideration is whether bail conditions that could reasonably be imposed could address any bail concerns (s 18(1)(p)).

The competing contentions of the parties

1. In brief, the Director contended in this Court that the relevant bail concerns in this case were the risks that Mr Heng will fail to appear in court and will commit a further serious offence. He contended that after an assessment of the s 18(1) factors, including s 18(1)(p), the Court would conclude that these presented unacceptable risks. But the Director's primary contention was that Mr Heng had not shown cause. Although the application of that test is a distinct preliminary step in determining an application such as this it has been recognised by this Court that the considerations defined as "bail concerns" in s 17 Bail Act 2013 (that is, risk of flight, risk of commission of further offences, danger to victims, individuals and the community and risk of interference with witnesses or evidence) may bear upon whether detention is justified: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24].
2. Counsel for Mr Heng contended that in the unusual circumstances of this case (namely the need for his client to be at liberty in order to prepare for his trial), cause had been shown and, with stringent conditions of the nature of those imposed by Hidden J, the risk of commission of a serious offence was "fanciful" and the concern of failing to appear in court was sufficiently ameliorated to the point of not being an "unacceptable risk".

The evidence

1. The case against Mr Heng concerns the alleged importation into Australia in late May 2013 of about 144 kg of impure methylamphetamine secreted in a container of furniture. (The pure weight is calculated as being in the order of half that.)
2. The prosecution alleges that Mr Heng was involved in leasing a warehouse in anticipation of the arrival of the container. After the container arrived he oversaw, but did not directly involve himself in, its transfer to the warehouse, the isolation of the boxes within it that contained the drug and the transfer of those boxes to other premises where a laboratory was set up. At the laboratory wax blocks concealed in the furniture were removed. methamphetamine within the wax was extracted and further refined.
3. In a condensed statement of facts which was tendered to Hidden J and which was before us the Crown set out a summary of telephone conversations in which Mr Heng was a participant. These were intercepted on telecommunications services used by him and subscribed in false names. The conversations include discussions with the sub lessor of the warehouse. These discussions concerned securing the sub lease, informing the sub lessor of Mr Heng's expectation of the arrival of a container, informing the sub lessor that the container would hold flat boxes of furniture pieces and giving to the sub lessor a false name. Intercepted phone conversations in early June recorded Mr Heng procuring an associate, Choy, to dress up on the pretense of being a manual workman for the purpose of visiting the warehouse with Mr Heng.
4. The condensed statement of facts refers to evidence the Crown will call of surveillance showing that Mr Heng and his associate, dressed in high visibility workwear, attended to inspect the warehouse on 13 May 2013. On 21 May 2013 Choy alone inspected the warehouse and the Crown will lead evidence of his intercepted phone report to Mr Heng about its condition.
5. When Choy arranged for the container to be transported to the warehouse on 3 June 2013 (presumably from premises of a freight-forwarding firm to which it had been consigned from overseas), Mr Heng was observed to follow the route of the transport truck during its journey and to wait in his car near to the warehouse for the container to arrive. He was observed to wait nearby in his own vehicle whilst Choy and others unloaded the contents of the container into the warehouse.
6. The condensed statement of facts asserts that further telephone intercepts of conversations will be tendered in which Choy reported to Mr Heng on 4 June 2013 after having moved boxes around within the warehouse and having selected 21 of them. Those 21 boxes were moved by Choy and a man named Wan to the laboratory and unloaded there. Choy phoned Mr Heng to say that "something looks missing", then drove to Mr Heng's premises in Homebush and met with him in person. On this occasion he told Mr Heng that he had been checking numbers against "the list" and that a lot seemed missing.
7. On 5 June 2013 Cheng and Wan selected another 31 boxes from the warehouse and took them to the laboratory. During that day intercepted phone calls between Mr Heng and Choy showed that the latter was reporting to Mr Heng on the progress of selecting boxes from those which had been unloaded out of the container into the warehouse. He was reporting to Mr Heng on the moving of these boxes to the laboratory. Choy sought instructions from Mr Heng about obtaining assistance with the task as it had proved to be a substantial one.
8. The condensed statement of facts continues with summaries of numerous further intercepted telephone conversations during the first half of June 2013, in which Mr Heng was a participant and in which there was discussion of aspects of the transfer of the boxes to the laboratory and the obtaining of equipment (plastic tubs and a fridge) related to the extraction and refinement of the methamphetamine. Surveillance during this period revealed Choy and Wan actively extracting wax from the furniture and methamphetamine from the wax. Mr Heng's intercepted telephone conversations in about mid-June 2013 also concerned arrangements he was making for supply of something to a third party and for testing of that which was to be supplied. Having regard to what was in fact later found by police to have been extracted from the furniture consignment, there will be available to the jury a strong inference that Mr Heng was in these telephone calls arranging the testing and sale of the methamphetamine.
9. This is undoubtedly a strong Crown case. The Court may infer that counsel who advised Mr Heng at the time he entered pleas of guilty to the charges (see [3]) made the same judgment. Having regard to the quantity of drugs involved and the fact that Mr Heng was on parole under a sentence for a previous similar offence when these events occurred, if he is convicted he will face a very long sentence of imprisonment. He is under an enormous incentive to flee if he is released on bail. Considering his demonstrated connections with persons overseas and the amounts of money which it may be inferred were outlaid on this enterprise, he likely has the means to flee.

Preparation of Mr Heng's defence

1. In response to the Crown's detention application in this Court, Mr Heng's case on "cause why his … detention is not justified" is solely that his requirement for extended access to a computer for the review of electronically recorded material served by the Crown, in preparation for the trial, cannot be met under the conditions of his custody. He tendered evidence to establish limited periods of access to computers for this purpose. This contention on the part of Mr Heng requires, first, careful consideration of how much electronically stored material realistically needs to be reviewed by Mr Heng himself.
2. Affidavits of Detective Sergeant Hendry of the New South Wales Police Force and of Federal Agent Willey relied upon by the Crown establish that the Crown brief as served includes the following electronically stored material which directly depicts or records Mr Heng: 1. One CD on which are recorded 234 intercepted telephone calls wherein Mr Heng was a participant, totalling 4 hours and 46 minutes. 2. One CD on which are recorded 17 audio files from listening devices which capture Mr Heng participating in conversations over a total of 2 hours and 51 minutes. 3. Five DVDs of surveillance which record movements of Mr Heng and/or movements of Choy (in the case of the latter, movements which correlate with telephone conversations in which Mr Heng spoke on matters which concerned Choy's activities). The playing of these DVDs would occupy less than 2 hours. 4. Two DVDs of a police search of Mr Heng's home address and one CD of intercepted telephone calls from Mr Heng's custody locations (for voice comparison purposes). The total listening and/or viewing time of the DVDs and the CD in this category is 5 hours and 16 minutes.
3. The total listening and viewing time of all of the material in categories (1), (2) and (3) is approximately 9.5 hours. The Crown analysis is that really only the 4 hours and 46 minutes in category (1) is significant for Mr Heng to listen to. Because Mr Heng does not speak or understand Cantonese his conversations with Choy were in English. In preparation of his defence there could be utility in him listening to or viewing the material in categories (1), (2) and (3), which likely would not be a particularly demanding task as the recordings purport to be of his own words and conduct and would, presumably, be familiar to him. It is significant that Mr Heng has had paper transcript of all of these material conversations since early 2015. Before Hidden J Mr Heng's solicitor gave evidence that he had "gone through… with Mr Heng", already, half of the 234 calls referred to in category (1).
4. The Crown has also served DVDs and some CDs (a total of 49 discs) recording audio and video surveillance material capturing Mr Heng's alleged co-conspirators. There would be little utility in Mr Heng reviewing these recordings on a computer because of his lack of knowledge of the language in which the conversations took place. Transcripts in English translation have been prepared by the Crown and served. Mr Heng's review of conversations of this nature will necessarily be limited to examining the transcripts, which can be done on paper and for which computer access is not necessary. He has had these transcripts, also, for an adequate time to enable him to review them before the detention application came on for hearing before this Court.
5. Some of these DVDs concerning the actions of co-conspirators record activities over long periods involving persons other than Mr Heng. The evidence on this detention application shows that although many of the recordings are of long duration they can be played forward at eight times the speed of recording without losing the meaning or understanding of what is depicted. Federal Agent Willey's evidence is that the very brief periods in which any activity of Mr Heng himself is shown on any of these DVDs can be identified and the replaying of the images can be fast-forwarded to those points. Some of these DVDs, of considerable length, captured the execution of search executed at various premises other than premises ever occupied or controlled by Mr Heng.
6. We are comfortably satisfied that adequate preparation by Mr Heng and his advisors for his trial does not require that he should review on a computer the additional 49 discs recording the conversations and actions of his co-conspirators. With respect to any of this material which is in due course tendered Mr Heng's solicitors and counsel may well wish to obtain his instructions about some of the things shown. With respect to the conversations in Cantonese they may well need to seek comment from Mr Heng on the basis of the transcripts in English translation. But we are quite satisfied that adequate preparation does not require that Mr Heng should play back the entirety of the 49 discs in this category (which would require many hours) nor even that he play back any significant part of this material.
7. According to Mr Heng's affidavit of 15 December 2015, by that date he had been given access to computers within the prison where he is held for a total of 32 hours since 25 November 2015. Affidavits of a Correctional Officer establish that ongoing from 15 December 2015 and continuing up to the commencement of his trial, computer access would continue to be made available to Mr Heng for a certain 10 hours per week and a probable, but less reliable, further 10 hours per week. It is not possible for the Court to determine precisely how many additional hours this may give him as it is clear from the evidence that whatever arrangements may be made and best endeavours undertaken there will be operational considerations in the running of the Correctional Facility where he is housed which may make it impractical for access to be given from time to time although planned and promised. Such interruptions may arise from the requirements of Mr Heng's work assignments in the laundry where he has been engaged, lockdowns for security reasons, interruptions for staff training, availability of computers, availability of supervision staff and so on.
8. Nevertheless with 32 hours access allowed between 25 November and 15 December 2015 we are of the view that there is a reasonable expectation that at least that amount of time again may be granted to Mr Heng on a computer between the date of hearing this application, 23 December 2015, and the date of commencement of his trial, 15 February 2016. Notably the evidence showed that a full 15 hours of computer access was granted in a single week (30 November 2015 to 6 December 2015) and there appears on the evidence no reason why this sort of duration could not be achieved regularly. The Court is satisfied that upon a realistic assessment of Mr Heng's requirement for computer access, measured against the amount of access he has already had and the probable duration of additional access available to him up to the commencement of the trial, his continued custody has not been shown to be unjustified on grounds of exigencies of defence preparations or otherwise.

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: 04 March 2016