In the matter of an application for bail by Connors

[2015] ACTSC 407

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - applicant charged with trafficking in large commercial quantity of controlled drug - need to show special or exceptional circumstances - weakness of circumstantial case - low flight risk shown by applicant's failure to leave jurisdiction for 10 months after co-accused charged - neither matter was a special or exceptional circumstance alone - combination of the matters did not produce special or exceptional circumstances - bail refused.

Bail Act 1992 (ACT), ss 9C, 9C(3), 22, 22(3), 22(3)(e),

Criminal Code 2002 (ACT), ss 45, 45A, 603(1), Pt 6.2

An application for bail by John Whiteside [1999] VSC 413

In the matter of an application for bail by Daniel Paul Jones [2014] ACTSC 248

In the matter of a bail application by Dianne Faye Griffey [2006] VSC 86

In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64

In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145

In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70

In the matter of an application for bail by Costa [2013] ACTSC 15

1. Andrew Connors was arrested on 27 August 2015 and charged with trafficking in a large commercial quantity of a controlled drug, namely, methylamphetamine, or Ice, on 23 October 2014. That offence is created by s 603(1) of the Criminal Code 2002 (ACT). He pleaded not guilty and was remanded in custody.

2. On 16 October 2015 he appeared in the Magistrates Court, maintained his plea of not guilty and was committed to this court for trial. I understand that counsel for Mr Connors did not oppose the committal.

3. Mr Connors now applies for bail in this court. This is the first bail application that has been made since his arrest. Because Mr Connors has been charged with an offence against s 603(1) of the Criminal Code, s 9C of the Bail Act 1992 (ACT) creates a presumption against the grant of bail, and specifically operates to prevent a court granting bail to the person "unless satisfied that special or exceptional circumstances exist favouring the grant of bail". Furthermore, s 9C(3) of the Bail Act provides that:

... even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -

(a) for an adult - the matters mentioned in section 22

4. That is, as a threshold question, I must determine whether Mr Connors has established the existence of special or exceptional circumstances favouring the grant of bail.

5. On behalf of Mr Connors, his counsel, who is incidentally not the same counsel who did not oppose the committal of the charge to this court, has identified two matters that he says constitute, either alone or taken together, special or exceptional circumstances for the purposes of this bail application.

(a) first, that the Crown case is "impossibly weak"; and

(b) secondly, that Mr Connors is clearly not a flight risk.

7. It will be necessary to expand on both those propositions.

8. Before considering the evidence relating to them, however, I note that neither of those grounds was identified in the bail application filed on 30 October 2015, and nor was either of them identified in the affidavit of Mr Maher, affirmed on 30 October, that was specified in the bail application as setting out the grounds of the application.

9. The facts relied on to make out the special or exceptional circumstances pointed to were certainly known to police and prosecutors, but one of the facts relied on for the second ground was not mentioned anywhere in Mr Maher's affidavit, and the argument made in court by reference to it would not have been immediately obvious, even if that fact had been mentioned. Despite this, the prosecutor did not seek an adjournment to consider the application further.

10. There was some discussion of other bail decisions in which the strength of the Crown case had been considered in cases where there was a requirement to show special or exceptional circumstances. Such decisions include: In the matter of an application for bail by John Whiteside [1999] VSC 413; In the matter of a bail application by Dianne Faye Griffey [2006] VSC 86; In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64; and In the matter of an application for bail by Daniel Paul Jones [2014] ACTSC 248.

11. All of those decisions accepted that, in certain circumstances, a weak Crown case could, either alone or taken with other matters, constitute special or exceptional circumstances favouring the grant of bail. However, none of those decisions addressed the question of how weak the Crown case had to be before that matter went from being simply one of the criteria to be considered in making a decision about a grant of bail under s 22(3)(e) of the Bail Act to being a matter that could amount to a special or exceptional circumstance.

12. The police Statement of Facts prepared for Mr Connors' appearance in the Magistrates Court on 27 August this year runs for five pages. It is fair to say, and counsel for Mr Connors did not submit to the contrary, that the Statement of Facts sets out a reasonably strong case that Mr Connors' co-accused was involved in arrangements to transport a significant quantity of drugs to Melbourne on 23 October 2014, an activity that was interrupted in the early afternoon of that day when, before it left Canberra, police searched the co-accused's car and discovered the drugs concealed in it.

13. The involvement of Mr Connors, however, occupies a relatively small proportion of the Statement of Facts. It can be summarised as follows:

(a) The Statement of Facts refers to intercepted telecommunications, and material obtained by the use of listening devices, under warrants obtained in relation to Mr Connors' co-accused, some of which involved communications between the co-accused's phone and Mr Connors' phone.

(b) The statement details the involvement of an undercover agent, referred to in the statement as "Human Source (HS) 103115" (HS), with the co-accused and several other men. Among other things, it reports a meeting at about 8.30 am on 23 October 2014 between Mr Connors, the co-accused and one Richard Hedley, and that Mr Connors and Mr Hedley left that meeting around the same time.

(c) The statement refers to travel by Mr Connors between Melbourne and Canberra on 22 October 2014, and Mr Connors' return to Melbourne on the next day, 23 October. It notes that when he arrived in Canberra Mr Connors rented a car, which was then, on that next day, being driven by the co-accused's son, allegedly with his father's permission.

(d) The statement reports information from HS to the effect that at about 12.20 pm on the day that Mr Connors flew back to Melbourne, arriving shortly before 2.00 pm, HS was asked by the co-accused to drive a car containing unspecified items from Canberra to Melbourne, where he was to go to a specified shopping centre and locate a big black Range Rover.

(e) HS said that he was told he could not take anyone with him on the trip, that he could not take his mobile phone with him, that he must not speed during the drive, that he should write the co-accused's phone number on his hand so he could rub it off if he had to, and that in Melbourne he would be given $5,000. The statement says that after HS left the co-accused's house, instead of driving to Melbourne, he drove to a carpark in Kambah, where he met police. Police subsequently searched the car and found a large quantity of methylamphetamine.

(f) The statement reports evidence of the exchange of two phone calls and a text message between Mr Connors' phone and Richard Hedley, or perhaps a phone associated with Richard Hedley, between 7.21 pm and 7.44 pm on 23 October 2014. The statement specifies that as at 23 October 2014, a black Range Rover was registered in Victoria in Mr Connors' name.

(g) The statement also records reports from HS that the co-accused told him:

• (i) that the person who would meet him at the shopping centre was Mr Connors and that the black Range Rover was his;
• (ii) that Mr Connors would give him $5,000;
• (iii) that Mr Connors would take the car driven by HS "for a short period of time and do his thing"; and
• (iv) that Mr Connors had been in Canberra all day on the previous day and the co-accused had told Mr Connors that HS would do the drug run.

14. In evidence on the bail application, the police officer in charge of the case, the informant, said that the Statement of Facts summarised above referred to all the relevant material currently comprising the Crown case against Mr Connors.

15. Counsel for Mr Connors pointed to what he said were two significant gaps in the Crown case. First, he pointed to the definition of "trafficking" in the Criminal Code which is as follows:

(i) with the intention of selling any of it; or

(ii) believing that someone else intends to sell any of it; or

(i) with the intention of selling any of it; or

(ii) believing that someone else intends to sell any of it; or

(d) guards or conceals the drug with the intention of -

(i) selling any of it; or

(ii) helping someone else to sell any of it; or

(e) possesses the drug with the intention of selling any of it.

16. That is, counsel said, to be guilty of trafficking a drug the person must sell the drug, prepare it for supply, transport it, guard or conceal it or possess it and as relevant, do so with a specified state of mind. However, on the face of it, nothing in the Statement of Facts, as summarised above, indicates that Mr Connors has personally done any of the specific actions that amount to trafficking.

17. Furthermore, counsel for Mr Connors said, HS's evidence identifying the person who would meet him in Melbourne would probably be inadmissible hearsay in any trial.

18. The prosecutor conceded that the case against Mr Connors was entirely circumstantial. She also conceded that, not personally having the carriage of this case, she was not in a position to explain how the Crown would seek to establish the particular elements of the trafficking offence against Mr Connors. However, she agreed in the course of discussions at the hearing of the application that the indictment, which I understand is not due to be filed until 19 November this year, might refer to an offence that relied on some form of extended criminal liability.

19. Extensions of criminal liability are dealt with in ss 45 and 45A of the Criminal Code. It is sufficient for present purposes to note that a person is taken to have committed an offence under s 45 (Complicity and common purpose) if, among other things, the person is knowingly concerned in, or a party to, the commission of the offence by someone else, and under s 45A (Joint commission) if the person and at least one other person enter into an agreement to commit an offence and an offence is committed either in accordance with the agreement or in the course of carrying out the agreement.

20. It seems to me that a person could be, within the meaning of s 45, knowingly concerned in or a party to the commission of the trafficking of drugs, or might have entered an agreement within the meaning of s 45A for the trafficking of drugs, without physically undertaking any of the conduct described in the definition of trafficking as summarised above. In those circumstances it may be unsurprising that the evidence by which such an involvement in a trafficking offence could be established would be entirely circumstantial.

21. Counsel may turn out to be right that the Crown would not be permitted in Mr Connors' trial to lead evidence from HS that the co-accused told him that Mr Connors was the person who would meet him in Melbourne, do "his thing" with the car driven by HS, and give HS $5,000.

22. Whether the Crown would be permitted to lead evidence that the co-accused told HS that he needed to locate a big black Range Rover was not explicitly dealt with in submissions and is not immediately clear to me. However, even if that evidence as well as the evidence naming Mr Connors is excluded, there is still apparently admissible evidence:

(a) putting Mr Connors, the co-accused and Mr Hedley together in Canberra on 23 October 2014, the day the drugs were discovered in the co-accused's car;

(b) indicating that Mr Connors had supplied a car to the co-accused on the same day on which the co-accused's car was to be driven to Melbourne;

(c) putting Mr Connors back in Melbourne before the co-accused's car was expected in Melbourne; and

(d) showing a series of exchanges between Mr Connors and Mr Hedley at around the time at which a car that left Canberra around 1.00 pm might be expected to arrive in Melbourne.

23. There may also be material from the telephone intercepts or the surveillance device indicating that Mr Connors was generally aware of drug-related activity by the co-accused, but this is not specified in the Statement of Facts.

24. This is not a particularly strong circumstantial case but nor is it, in my view, impossibly weak. It is not so weak as to amount, of itself, to a special or exceptional circumstance favouring the grant of bail.

25. The second special or exceptional circumstance pointed to by counsel relates to Mr Connors' risk of flight. As noted, Mr Connors was not arrested until 27 August this year, 10 months after his co-accused was arrested on 23 October 2014 immediately after police discovered the drugs in the co-accused's car.

26. No explanation was offered by the Crown for the delay in arresting Mr Connors or for the timing of his arrest. However, the informant did give evidence, tendered by the Crown as relevant if I reach the stage of considering the s 22 criteria for the grant of bail, that on 25 August this year he received advice from a potential witness in the matter that he, the witness, had been harassed and intimidated such that he had real concerns for his safety and the safety of his family, and that he was accordingly not prepared to speak to police openly or to make a written statement. The informant said that the contact had been from Mr Connors.

27. That was almost the full extent of the informant's evidence. He declined to identify the potential witness or to say whether the contact from Mr Connors had been direct or indirect or to give any other details, saying that this was because the witness was frightened of the consequences if Mr Connors found out he had spoken to police. The informant also said that he had still not taken a statement from the witness despite Mr Connors now having been in custody for over two months.

28. It seems to me not unreasonable to infer that there might have been some connection between the claims made by the witness and Mr Connors' arrest only a couple of days later, although that does not explain why Mr Connors had not been arrested earlier.

29. Be that as it may, the significance of Mr Connors' late arrest to the bail application was, counsel said, that despite the arrest of the co-accused almost immediately after the drugs had been found in the co-accused's car, Mr Connors had taken no steps to remove himself from the jurisdiction during the following 10 months. This, counsel said, established that Mr Connors was not a flight risk and this, in turn, constituted a special or exceptional circumstance.

30. The argument was, in effect, that this fact was extraordinarily convincing proof that Mr Connors was not a flight risk and that such a convincing proof was highly unusual, especially in the context of a serious charge carrying, as this one does, a maximum penalty of life imprisonment.

31. It seems to me that there could be any number of reasons why Mr Connors had not removed himself from the jurisdiction after his co-accused was arrested and before he was himself arrested.

32. Certainly he has real connections with the ACT. He was born and brought up here. He owns, subject to a mortgage, a house in the ACT, and his mother still lives in the ACT. Immediately before his arrest he was living in the house in the ACT with his family, although the Statement of Facts and an affidavit sworn by Mr Connors' wife suggest that before the co-accused's arrest in 2014, Mr Connors had been living and working in Melbourne since 2013. He is married and has two very young children, the younger of whom has been born, I understand, since he was arrested. These factors may continue to influence his willingness to remain in the ACT and face trial.

33. On the other hand, as already discussed, the Crown case against Mr Connors, being both a circumstantial case and one that may turn out to be based on a statutory extension of criminal liability, may appear to a layman to be quite weak.

34. Of course, I do not know whether, before he was arrested, Mr Connors had seen the statement of facts prepared in relation to his co-accused, or whether he had sought any legal advice about the risk of being charged himself, but he could have formed the view that by the time the co-accused's car was seized he, Mr Connors, had done nothing that would justify his arrest, and that any flight might of itself raise suspicions. Any view about the weakness of the case against him might well have been reinforced as the months passed without further police attention.

35. There may be other equally likely explanations for Mr Connors remaining in Canberra until he was arrested that were not mentioned in submissions and that have not occurred to me. There are thus various different perspectives from which to assess Mr Connors' willingness to remain in the ACT, despite having being involved with a person who had been arrested on serious drug charges.

36. To the extent that it arose from any kind of confidence that he was not personally under suspicion, that willingness can no longer be relied on now that he has also been charged with a serious offence arising out of his involvement with the co-accused. To the extent that he remained in the ACT because of his personal ties with the Territory, this does not distinguish him from many other bail applicants, who have homes, families and work in the ACT, many of whom also stay in the ACT for some time after a relevant incident that might give rise to charges.

37. Those kinds of ties are an important consideration in applying s 22 of the Bail Act, but Mr Connors' particular personal circumstances do not appear to rise above the ordinary case so as to justify a finding that his failure to leave the ACT after his co-accused was arrested makes him such an unusually low flight risk that he has established a special or exceptional circumstance. In fact, for the reasons already mentioned, if I were for the purposes of s 22 assessing Mr Connors' flight risk if he were now released from bail, I would not be persuaded that it was as exceptionally low as counsel has submitted.

38. It has also been recognised in various other bail decisions (In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145; In the matter of an application for bail by Rebecca Massey [No. 2], [2009] ACTSC 70; In the matter of an application for bail by Costa [2013] ACTSC 15) that a combination of circumstances, none of them special or exceptional alone, might in some cases amount to a special or exceptional circumstance.

(a) the fact that the Crown case is a circumstantial case, and not an overwhelming one; and

(b) the fact that for reasons that are not clear and that might or might not affect his flight risk now that he has been charged, Mr Connors chose not to leave the ACT for 10 months despite the charging of his co-accused;

taken together, amount to special or exceptional circumstances sufficient to permit me to consider the s 22 criteria for deciding whether to grant bail.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.