Mokbel v DPP [2002] VSC 127

Supreme Court of Victoria|2002-04-26|Before: Kellam J

The applicant concedes that the onus is upon him to show that new facts or circumstances have arisen since he made his previous bail application.

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 legal representation where there was none previously, or upon the existence of new facts or circumstances. See s.18(4) of the Bail Act 1977.

It is submitted on behalf of the applicant that a number of events which have occurred since the previous bail application provide a demonstrable change of circumstances. Furthermore, the applicant contends that such changes in circumstances amount, either alone or in combination, to exceptional circumstances.

The applicant submits that there has been a change in circumstances in relation to the likely date of the trial of the applicant. The magistrate hearing the bail application relied upon a delay of two years between arrest and trial. Cummins J relied upon this estimate of the likely delay in his consideration of whether or not exceptional circumstances had been established. The evidence before me is that the committal proceedings in relation to the State charges will commence on 15 July 2002. The committal proceedings in relation to the Commonwealth matters will now commence on 9 May 2002. Accordingly, if the committal proceedings take place on the dates proposed, there is no reason why the estimate given to the magistrate of a two year delay between arrest and trial is inaccurate. I was informed upon the hearing of the application that the State prosecution will seek to have those proceedings heard in the Supreme Court. Indeed, if the matters proceed in accordance with the proposed timetable it is probable that the cases will come to trial in this court well within the estimated time period.

However, the applicant contends that events which have occurred since the previous bail application make it unlikely that the committal proceedings will be able to proceed and conclude in July 2002. It will be recalled that both the State and Commonwealth prosecution cases rely upon tape recordings of conversations between a registered informer ("the informer") and the applicant. The informer, it is submitted by the applicant, was "handled" by two former members of the Victorian Drug Squad, Detective Sergeant Rosenes and Detective Senior Constable Paton. Both Rosenes and Paton have been arrested and charged with drug offences by the Ethical Standards Department of the Victoria Police. They were both arrested and charged in July 2000 and before the applicant was arrested and charged. These facts, it is submitted, are relevant to both the issue of delay and to the strength of the two prosecution cases.

The applicant submits that, in particular, by reason of the fact that neither Rosenes nor Paton nor the informer will be called to give evidence, both the State and Commonwealth prosecution cases are considerably weaker than was represented by the prosecution to be the case before the magistrate and before Cummins J. This, it is submitted, is a significant change in circumstances.

It was in relation to this submission that Detective Inspector De Santo was subpoenaed by the applicant to give evidence. Mr De Santo is assigned to the Corruption Investigation Division of the Ethical Standards Department of the Victoria Police Force. In the course of his evidence Detective Inspector De Santo confirmed that Rosenes and Paton had been each charged "out of separate incidents with trafficking in commercial quantities of drugs of dependence". He confirmed that Paton was to face committal proceedings on 8 April and that Rosenes was to face committal proceedings commencing the first week of May this year. In the course of giving his evidence Mr De Santo stated that investigations were continuing in relation to matters including Rosenes and Paton. The following questions were asked of Detective Inspector De Santo:

MR REDLICH: Which members of the Drug Squad who were involved in the investigation of the applicant have been charged with any offence?---Your Honour, Detective Sergeant Rosenes and former Detective Senior Constable Stephen Paton have both been charged out of separate incidents with trafficking in commercial quantities of drugs of dependence.

HIS HONOUR: With what offences have they been charged?---They have both been charged out of separate incidents with trafficking in commercial quantities of drugs of dependence.

MR REDLICH: Do any of those charges relate to drugs that it is suggested were drugs that Mr Mokbel and the informer - you know who we are referring to as the informer, Inspector?---Yes, I am.

Were any of the charges that you have just referred to concerning drugs that it is alleged were passed between the applicant and the informer?---Your Honour, at this time even in relation to Paton and Rosenes there are continuing investigations which may be canvassed by that question.

In the course of the application before me Detective Sergeant Martin Allison was called to give evidence. On 8 March 2002 Mr Allison had prepared a statement relating to the current application for bail made by the applicant. That material was exhibited to the affidavit sworn by Mr Atkinson from the Victorian Office of Public Prosecutions. The statement set out a history of the investigation, referred to matters which Mr Allison considered were relevant to issues of unacceptable risk and responded to a number of issues raised in the affidavit of Mr Valos sworn 26 February 2002.

Counsel for the applicant was critical of the statement by Mr Allison. He submitted that the informant in the proceedings was Detective Senior Constable Firth of the Drug Squad and that the statement of Mr Allison did not reflect personal knowledge on his part. It was submitted that Mr Firth had been responsible for misleading the magistrate (and Cummins J) into "thinking that the Crown case was going to be centred on the informer being the primary witness." It should be noted that evidence was given that Mr Firth was on leave at the time of the hearing conducted before me.

Detective Sergeant Allison gave evidence that he was a member of the Major Drug Investigation Division of the Victoria Police and had been a member of the former Drug Squad from 1 November 2000. He stated that at the time relevant to the investigation of the applicant there were between 40 and 50 members of the Drug Squad of whom nine (including Paton and Rosenes) were engaged in an investigation which led to the arrest of the applicant and others.

Mr Allision was cross-examined at length by counsel for the applicant. In the course of his cross-examination Mr Allison confirmed that he and two other police by the names of Anastasiadis and Bartlett are the subject of an investigation into allegations made by a person named McCullough. Detective Inspector De Santo later gave evidence that McCullough had made allegations against Mr Allison that he had fabricated evidence. Mr De Santo stated that Mr Allison had requested those allegations be investigated immediately by reason of "possible impact" upon these and other proceedings.

The applicant through his Counsel relies upon the evidence of Mr De Santo and Mr Allison to assert that there are new facts or circumstances in that the investigation into officers of the former Drug Squad goes beyond the prosecution of Rosenes and Paton.

Mr Redlich submits (at p.35) in relation to the evidence of Mr De Santo that:

"He cannot tell us at this point in time that the investigations that are under way may bear upon the use of drugs that it is said were produced in the course of discussions between the informer and the applicant. Were that not the case we would both, Your Honour, have got a different answer from the witness. All that goes merely to the fact that it is simply another indicia of the proposition that the current investigations concern officers and drugs which are linked to and relevant to the applicant's charges. Accepting that it is entirely proper at this moment in time that the Ethical Standards Division or the Director of Public Prosecutions should not be required to disclose in any way what the nature of those investigations are, we respectfully submit that Your Honour would have to proceed on the basis that those investigations potentially impact on other witnesses, other police officers, who are relevant to the applicant's cases."

As stated above, the applicant places considerable significance in terms of change of circumstances upon his submission that both the magistrate and Cummins J were misled as to whether or not the informer would be called as a witness in the prosecution cases. The assertion that the magistrate was misled in this regard is based upon two matters. The first matter is evidence given before the magistrate by Detective Senior Constable Firth in the course of cross-examination by Mr Dane QC who was then appearing on behalf of the applicant in the bail application. The relevant part upon which the applicant relies (at p.22 of the transcript of the bail application) is as follows:

"Q: Now then Mr X was provided with an indemnity under s.51 of the Drugs Poisons and Controlled Substances Act, correct?

A: I am not sure of the specific date it was issued.

Q: Well when was it, what month? We will start with the year.

A: I am not sure but certainly prior to these transactions.

Q: He at that stage had been charged with offences, is that correct?

Q: Because you say that there were discussions where Mr Mokbel said that he would be able to compromise his, that is Mr X's prosecution?

Q: And so he at that stage had been charged with what offences?

A: Trafficking cocaine, Ecstasy, cannabis, amphetamines and possession of articles with intent to manufacture.

Q: So it would be anticipated that he as a witness would be the subject of an attack upon his credit, is that fair to say?

A: I would say that would be an option open to the defence counsel, yes.

Q: That is not a particularly serious concern I suggest to you now because everything that he will be able to provide to a court has been recorded, correct?

Q: And so he has been provided with an instrument whereby he can make a recording and the police officer who attaches that instrument to him will be able to give the evidence of the attachment, the surveillance will be able to say who it is that he is speaking with and then the officer that took the listening device from him will be able to say what time it is that he took that device away and the product will be the transcript of the conversation that occurred between those two acts, correct?

Q: And so he, a witness that may well be the subject of an attack upon his credit, will be support (sic) by the hard evidence of the tape recording, correct?

Q: And so even if he was to fall under the bus the evidence will not be lost, will it?

A: I don't know that I am in a position to comment on that.

Q: What, do you think that the evidence will go with him?

Q: Well the evidence is still there. It is locked secure, is it not?

Q: And the men that provided them with those tape recording devices they are here in court even, are they not?

Q: Well they are all police officers, are they not?

It is apparent that the above cross-examination was directed at the issue of unacceptable risk which was then being ventilated. It is submitted, however, on behalf of the applicant, that the cross-examination was predicated on the proposition that the informer would be called to give evidence and thus it was misleading for Mr Firth not to advise the magistrate that he did not believe the informer would give evidence.

The second basis upon which the applicant relies is the assertion that Cummins J was misled in a statement made by Firth on 13 September 2001. The statement was exhibited to an affidavit sworn by Mr Peter Atkinson on 19 September 2001 in support of the s.18A Bail Act Appeal. It is asserted by counsel for the applicant in written submissions before me that "Firth knew that the Crown would not be calling (the informer) as a witness at the time he gave evidence that (the informer) was a witness before the Magistrates' Court and again when he swore that to be the Crown's position in a report exhibited to the Affidavit in support of the Director's Appeal".

I have read the statement in question carefully and can find no assertion in it that the prosecution would be calling the informer. However, it is true that Mr Firth certainly did not express any doubt in this statement or for that matter in his evidence before the magistrate that the informer would not give evidence. It is apparent that at all material times there was, at the minimum, considerable doubt in the minds of police as to whether or not the informer would give evidence and that Firth knew that that was the case. Indeed the evidence of Mr De Santo is that throughout the period since June 2001 there have been difficulties experienced with the informer and although negotiations have taken place he has never agreed to give a statement or to give evidence in the prosecution of the applicant.

The applicant relies further upon evidence of a deterioration in his financial circumstances since he was placed on remand as a changed circumstance. Affidavits sworn 26 February and 25 March 2002 by Michael Hymer, his accountant, are relied upon in this regard.

Mr Hymer, in his affidavit sworn 26 February 2002, deposes to having given evidence on behalf of the applicant before the magistrate. He exhibited to his affidavit part of the transcript of his evidence before the magistrate. Regrettably, by reason of tape malfunction, it appears that a full transcript of his evidence before the magistrate is unavailable. However, it is apparent that the magistrate accepted that the financial consequences of failing to grant bail would be "dire" for the applicant. In his affidavit dated 26 February 2002, Mr Hymer has referred to numerous liabilities of the applicant to the National Australia Bank of Australia which as at 24 August 2001 were sworn to be in the sum of $7,543,045.

In his affidavit of 26 February 2002 Mr Hymer deposes to the liability of the applicant to the National Australia Bank now exceeding $8,000,000, and he asserts that the capacity of the applicant to monitor and manage his business assets is affected by his incarceration.

The affidavit of Mr Hymer dated 26 February 2002 was responded to by Mr Phillip Raimando, a solicitor in the employ of the Victorian Office for Public Prosecutions, who swore an affidavit in opposition to a grant of bail. He contended that the matters raised by Mr Hymer were not new facts and circumstances. In response to that affidavit, Mr Hymer swore a further affidavit on 25 March 2002. I shall refer to this affidavit further at paragraph 43.

The State Prosecution, through Mr Morgan-Payler QC, submits that the applicant has failed to establish that there are sufficient fresh facts and circumstances to "warrant re-visiting the question of bail". Mr Morgan-Payler submits that given that the case against the applicant depends "virtually entirely" upon tape recordings made when the informer was wearing a covert tape recorder or, alternatively, upon the product of listening devices, the absence of Paton and Rosenes from the witness list is "trifling". He submits that the volume of evidence consisting of telephone intercepts, listening device material, covert tapes of meetings with the informer, video and manual surveillance of meetings, and the evidence of the informer "leaving with sums of money and returning with quantities of drugs" is overwhelming.

Insofar as the evidence placed before me as to the financial circumstances of the applicant is concerned, Mr Morgan-Payler simply submits that any cash flow problems experienced by the applicant are not related to any legitimate income of the applicant being affected by his incarceration.

Likewise, Mr O'Sullivan, on behalf of the Commonwealth DPP, submits that there is no evidence of a change in circumstances sufficient to justify reconsideration of bail in relation to the Commonwealth charges. Mr O'Sullivan submits that the fact that the informer is not likely to give evidence is irrelevant to the strength of the Commonwealth proceeding. Furthermore, he submits that there is no evidence that Rosenes or Paton had any involvement in the conversations recorded by listening devices between the applicant and the informer upon which the Commonwealth relies. Those conversations occurred on 25 October 2000, 10 November 2000 and 1 December 2000. Mr O'Sullivan relies upon the fact that those conversations were conducted substantially under the surveillance of the State Crime Surveillance Unit and not by the Drug Squad of the Victoria Police.

As to the submission of the applicant that there has been a change in financial circumstances, Mr O'Sullivan submits that little change has occurred since the matter was aired before the magistrate. Furthermore, he submits there has not been full disclosure to me of the true state of the financial affairs of the applicant.

Furthermore, Mr O'Sullivan submits that insofar as there is any change in circumstances such changes are detrimental to the applicant. He observes that additional charges have now been laid against the applicant, that the four co-accused in the Commonwealth prosecution have all been committed for trial, that the committal is now listed for 9 May 2002 and that it is expected that the Commonwealth case will be listed as a case conference on 13 May 2002.

In response to the submissions made by the State DPP and the Commonwealth DPP that there are no changed circumstances, counsel for the applicant in written submissions dated 3 April 2002 and provided to me on 4 April 2002, submits that Cummins J was misled by the Drug Squad investigations as to the nature of the Crown case and particularly as to the part the informer would play in the trial.

It is submitted that Cummins J was invited to conclude that the applicant was an unacceptable risk because he would interfere with the informer if he were to be granted bail. It is submitted that the findings of Cummins J were based upon evidence and submissions which were "false and misleading" and that fact, together with the "new" knowledge of which witnesses are now proposed to be called, the revelations about the extent of the investigation into corruption in the Drug Squad, the fact that principal investigators involved in the investigation have either been charged with offences or are under investigation, continued with the deteriorating financial position of the applicant, require this Court to consider the matter of bail afresh.

Conclusion as to whether or not the applicant has established new facts or circumstances

The applicant must satisfy the Court that new facts or circumstances have arisen since the making of the previous order before the court may proceed to hear the application. In my view the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required.

Clearly not every new fact or change of circumstance will fall into this category.

In my view, there is no distinction between the State and Commonwealth prosecutions insofar as the matter of any changed financial circumstance of the applicant is concerned. There is arguably a distinction between the State and Commonwealth prosecutions insofar as it is submitted by the applicant that there are new facts and circumstances relevant to the strength of the prosecutions and to the issue of delay. Accordingly, I propose to deal first with the issue of whether or not fresh facts and circumstances have been established in relation to the financial circumstances of the applicant.

Counsel for the applicant submits that the affidavit sworn by Mr Hymer on 25 March 2002 was not contradicted and that as neither the State nor the Crown prosecution sought to cross-examine Mr Hymer no substantial argument can be made out that the applicant's financial position is not as set out in his affidavit material. There can be no doubt that the applicant and the companies in which he has an interest, hold substantial assets. I accept that, at the least, his incarceration has created severe difficulty for him in giving instruction, taking advice and managing his assets and other affairs related to his investments. It is obvious, however, that these matters were well established at the time of the hearing before the magistrate. Nevertheless, Mr Hymer's affidavit of 26 February 2002 in paragraph 12 sets out a number of companies in which the applicant has an interest and deposes to the fact that as at the date of his arrest the applicant was indebted to the National Bank in the sum of $7,543,045. That sum has increased to a sum in excess of $8,000,000 as at February 2002. Those liabilities are incurring interest at 13% in respect of overdraft facilities and 16% in respect of commercial bills. It is asserted by Mr Hymer that such interest rates are in his belief a "direct consequence of the applicant's incarceration".

Notwithstanding the fact that it was not considered appropriate by the prosecution to cross-examine Mr Hymer it appears to me that his affidavit material in relation to the issue of the financial circumstances of the applicant is far from satisfactory. It refers in some detail to liabilities of the applicant. There is, however, no statement of assets. No details of income are provided. No tax returns or other documents relating to the financial affairs of the applicant such as balance sheets or profit and loss statements, are provided. The applicant is without doubt restricted in his capacity to conduct his financial affairs because of his remand in custody. I accept that his business relationships with bankers and others are affected by such remand, but the fact that he is facing serious charges and the fact that restraining orders have been made, pursuant to the Confiscation Act, in relation to certain property are other factors which no doubt are relevant to those business relationships. If it is the case that his financial circumstances are deteriorating, that is certainly a matter that was fully argued before both the magistrate and before Cummins J. In such circumstances, I am far from satisfied that there are any new facts or circumstances in relation to the applicant's general financial affairs which were not the subject of submission to the magistrate in September 2001.

In the course of his reasons for judgment Cummins J referred to the statement of the magistrate that "a very long delay of about two years awaiting trial ... might in itself be enough to meet the test". He said, "The delay of two years until trial was based upon an estimate given by the State Director. Plainly the magistrate was entitled to act on that estimate and give it very substantial weight. However, delay is to be assessed in the light of the nature and gravity of the charges and the risks involved".

Accordingly the fact is that both the magistrate and Cummins J had before them material which established that the trials of these charges were unlikely to be commenced until 2003 and that the delay until trial could be up to two years.

The applicant submits that a delay between arrest and trial in the vicinity of two years is unacceptable and, of itself may constitute exceptional circumstances. That submission may have some basis, but in the circumstances before me the onus is upon the applicant to show changed circumstances. It is apparent that it has always been contemplated that there may be up to two years' delay between arrest and trial. There is no reason at the moment to say, in respect of the proposed timetables, that the trial of the proceedings will be delayed for more than two years. As stated above the Commonwealth committal proceeding is listed to commence on 9 May 2002 and the State committal proceeding is listed to commence on 15 July 2002. It can be anticipated that in the event that the applicant is committed for trial each proceeding will be the subject of early directions after the committal proceedings.

However, counsel for the applicant contend by written submission that the likely timetable must be considered "in the context of involvement of Victorian Police Drug Squad officers in the investigation into the applicant who are now charged themselves." Furthermore the applicant relies upon the fact that the informer has been charged with offences and does not appear on the witness list as being relevant to the issue of delay. In addition, it is submitted that an ongoing investigation by the Ethical Standards Department of Victoria Police in relation to corruption in the Drug Squad is a significant issue in terms of delay. It is submitted by Mr Redlich that these matters are new facts or circumstances in relation to both the Commonwealth and State Prosecutions in terms of delay.

It may be that one or more of these matters may in due course become relevant to both prosecutions and that events will unfold in such a way that these issues in due course will cause some delay. However to form a judgement on the current material is, in my view, not possible. In each case before me there is a long summary of evidence which demonstrates that there is a volume of evidence supported by telephone intercepts, listening devices, covert tapes recorded by the informer, and video and manual surveillance of meetings between the informer and the applicant. Although this is not the time to conduct a detailed examination of the prosecution cases, there is no basis to say that Rosenes or Paton particularly in relation to the Commonwealth prosecution, are essential witnesses in terms of providing proof of any matter that cannot otherwise be proved. In my view it is speculative to say that the likely absence of the informer as a Crown witness, or the fact that the members of the former Drug Squad including, but not confined to Rosenes and Paton, are under investigation will be determinative of any delay beyond the proposed timetable. It should be observed from the transcript of the cross-examination of Mr Firth by Mr Dane QC referred to in paragraph 24 above, that at the time of the application before the magistrate it was well known to the applicant's advisers that the informer was the subject of charges relating to drug trafficking at that time. It is clear from that cross-examination that Mr Dane was advancing the proposition that the informer is not a vital witness. In all the circumstances I am not satisfied that any of these issues can be said confidently to be new facts or circumstances which will be productive of delay beyond that the subject of consideration by the magistrate. It is speculative at this stage to contemplate whether the matters relating to Rosenes, Paton, the informer, or other members of the Drug Squad will be productive of delay beyond that currently expected.

Strength of the Crown case as a new circumstance

I turn now to the submission that there have arisen new facts or circumstances which are relevant to the strength of the prosecution cases.

The briefs of evidence in this case were served upon the applicant's solicitors after the bail application before the magistrate. Counsel for the applicant submits that service of a brief of evidence is a matter that may be considered in determining the existence of new facts or circumstances.

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.

Dealing first with the Commonwealth prosecution, I am far from convinced that the failure of Rosenes and Paton or the informer to give evidence in the Commonwealth prosecution case can be said to be a new fact or circumstance of any significance at all. That case involves limited issues. The prosecution case relies to a considerable extent upon tape recordings of conversations between the informer and the applicant. These conversations took place on 25 October 2000, 10 November 2000 and 1 December 2000. There is no suggestion that either Paton or Rosenes had any connection with the taking of the tape recordings on these dates and so the fact that they will not give evidence in the Commonwealth prosecution appears to be an irrelevant issue. In my view the fact that the informer is unlikely to be called to give evidence cannot be said to be a new fact or circumstance of significance to the issue of bail. It is difficult to see what evidence which would add anything to the evidence upon which the Commonwealth prosecution intends to rely, could be given by the informer. He was the vehicle by which covert tape recordings of conversations had with the applicant were obtained. All of that covert evidence is available to the prosecution and as I understand the position, no continuity issues arise in relation to the evidence. In such circumstances it cannot be said at this stage that the Commonwealth case is weaker by reason of the failure to call the informer. It may, of course, be that the defence will be able to make some forensic use of the failure to call the informer at the trial. However, in my view, the Commonwealth prosecution case does not appear to have changed in any significant way from the time a summary was first provided to the magistrate in the first bail application and I am unable to conclude that it is a substantially weaker case because the prosecution does not intend to call the informer. Accordingly, there are no new facts or circumstances which can be said to bear in any relevant way upon the strength of the Commonwealth prosecution.

I turn now to the submission that the failure to call Rosenes, Paton, or the informer in the State prosecution case reflects upon the strength of that case.

As pointed out above there is no doubt that the applicant or his advisers knew before the bail hearing of the identity of the informer and of the fact that he had been charged with offences. As Mr Dane QC pointed out in cross-examination of Mr Firth before the magistrate, the strength of the evidence against the applicant is to be found in the tape recordings which were obtained in the conversations had between the applicant and the informer. The summary of evidence provided to the magistrate referred to numerous telephone intercepts of conversations between the informer and the applicant as well as the tape recordings of conversations between the informer and the applicant.

It is clear also that Paton and/or Rosenes were "the handlers" of the informer during the whole or a significant part of the time that is relevant to 16 of the 18 State charges which the applicant currently faces. It may well have been expected by the defence that they would be called to give evidence of a corroborative or continuity nature. However, no evidence has been put before me to the effect that their evidence is vital or necessary in proving part of the Crown case. The brief of evidence has been delivered and nevertheless I have not been directed to any part of it which may suggest, for instance, that continuity cannot be proved because of their absence. The fact that Paton and Rosenes are not included by the State prosecution upon the witness list does not, on the material before me, establish that the State prosecution case lacks strength. It may be of course, that different considerations will arise in the course of, or by reason of the committal hearing. However, on the basis of the material which has been put before me, I am unable to conclude that the failure to include Rosenes and Paton on the witness list attached to the brief of evidence is a new fact or circumstance of any significant weight in all the circumstances in relation to the State prosecution case .

However, the written submissions of the applicant in reply rely upon the absence of Rosenes and Paton and the informer to be included as witnesses in the State prosecution in an additional way. In responding to the submissions made on behalf of the Commonwealth and State Offices of Public Prosecution before me that there are no changed circumstances and that the fact that the informer, Rosenes and Paton would not be called by the prosecution is not a matter of significance, counsel for the applicant submits in writing that

"It should be remembered that the Senior Crown Prosecutor sought leave at the conclusion of the applicant's submission to call evidence from Detective Sergeant Allison to establish that there was no basis for the allegation that the Crown had previously been misled or that the Crown case was weakened by the absence of (the informer) Paton or Rosenes. Allison's evidence failed to support either proposition and when considered in conjunction with Inspector De Santo's evidence established the contrary. The evidence of both De Santo and Allison demonstrates that the court constituted by Cummins J was misled as to the role of Rosenes, Paton and more particularly (the informer). Cummins J was invited to and did conclude that the applicant was an unacceptable risk because he would interfere with the witnesses and in particular (the informer) if he were granted bail. Clearly the Drug Squad Investigators (who provided instructions to the OPP) allowed the Crown to mislead Cummins J. This court upon being satisfied that there is a change to the applicant's circumstances, as it now must be, is permitted to consider the application for bail afresh, putting aside the findings of Cummins J on the basis that those findings were based upon evidence and submissions that were false and misleading."

I have read the reasons for decision of Cummins J carefully and can find no basis for a suggestion that his Honour was misled as to the "role of" Rosenes and Paton as submitted by the applicant. It is apparent, however, that Cummins J was not informed of the difficulty the prosecution had in relation to calling the informer.

However, in addition, as stated above, the applicant's counsel asserts that Cummins J was misled in particular about the "role of" the informer and that Cummins J was "invited to and did conclude that the applicant was an unacceptable risk because he would interfere with the witnesses and in particular" with the informer if he were granted bail. I am now invited to "put aside" the findings of Cummins J on the basis that his findings were based upon "evidence and submissions which were false and misleading" and that that fact permits the court to consider the bail application afresh. It is appropriate to observe that this criticism is made not of the State DPP or counsel, but of the Drug Squad investigators providing instructions to the State Office of Prosecutions and in particular of Mr Firth.

I have read the transcript of the application before Cummins J (Exhibit JV16 to the affidavit of James Valos sworn 26 February 2002). It is the fact that counsel for the State prosecution in the course of submission before Cummins J referred to the informer as a "witness". He said (at pp.16 and 17 of the transcript) in referring to the evidence

" ... The bulk of the evidence in this case is in the form of tape recordings. Tape recordings generally tend to remain about the same. It is very hard to cross-examine a tape recording into making concessions and such like. We say in this case, where although the witness is an important witness to introduce the evidence and to explain the evidence, where the Crown case is heavily corroborated by recordings of the conversations that actually transpired. This case is not one of those where it is likely that the hubris of the Crown shortly after arrest, will be seen to be just that and many of the allegations will dissipate by concessions made by witnesses under cross-examination."

Thus it is submitted by Counsel for the applicant in the written submissions in reply that there is a basis to say that there are new facts and circumstances in relation to the finding by Cummins J that the applicant was an unacceptable risk. It should be observed that Cummins J was principally not satisfied that exceptional circumstances existed as required by s.4(2)(aa) of the Bail Act. However, in addition he found that there was an unacceptable risk as contemplated by s.4(2)(d)(i) which he said was

" ... in particular of interfering with witnesses, interfering with the course of justice and of committing further offences if on bail."

It is now submitted that as the informer is not to be called as a witness there is no-one else who could be the subject of interference, as the rest of the witnesses are police officers and thus there are new facts or circumstances established.

Had the decision made by Cummins J been based solely upon the issue of unacceptable risk of interference with witnesses, rather than upon the principal issue that the court is required to refuse bail unless satisfied that exceptional circumstances exist, then it may be that some change in the witness list may be capable of being seen as a new fact or circumstance which would justify the issue of bail being revisited. There is however, no basis to say that Cummins J regarded any risk to the informer as being a predominant issue in respect of his conclusion that there was an unacceptable risk. In the course of his reasons he said (at p.4):

"The State summary and Commonwealth draft statement, if an accurate account of truthful matter, propounded a web of illegality and corruption with the respondent at its apex. If accurate and true, the material exposed continuous and substantial drug offences of an egregious kind and incidents of corruption or attempted corruption of the course of justice. The covert recordings if accurate and truthful, revealed discussions by the respondent with the informer about payment or offers of payment by the respondent to corrupt police to pervert the course of justice. One of the respondent's numerous prior convictions is of attempting to pervert the course of justice, for which he was sentenced to 12 months imprisonment, six months of which was suspended for 12 months. The offence arose from an attempt by the respondent to bribe a County Court Judge through the Judge's Associate. Unfortunately for the respondent the Associate he sought to utilise was an undercover police operative. The attempt was to obtain a non-custodial sentence of a drug dealer.'

In my view, it cannot be said that Cummins J was misled into concluding that there was an unacceptable risk on the basis that the applicant might prove to be some risk to the informer. A reading of the judgment of Cummins J demonstrates clearly that in terms of unacceptable risk, the statements of the applicant, which had been covertly recorded, relating to his relationships with police, together with his prior conviction for attempting to pervert the course of justice were at the forefront of the reasoning of Cummins J. In my view each of the matters referred to by Cummins J continue to be the case notwithstanding the fact that the informer is not at present intended to be called. However, even in this regard, it should be observed that Mr Allison expressed the hope that the informer will be co-operative in the future. It is not irrelevant to this issue that both Mr Allison and Mr De Santo gave evidence before me that one issue of concern raised by the informer in the course of discussions about his co-operation with police was the adequacy of "witness protection" with which he would be provided.

For the above reasons I am not satisfied that any new facts or circumstances have been established as relevant to whether or not the issue of a grant of bail should be revisited in respect of the State or Commonwealth prosecution case.

However, notwithstanding the above conclusion, I consider it is appropriate to say that even if the matters raised by the applicant were sufficient to establish new facts or circumstances I would not conclude that exceptional circumstances have been established by the applicant. In all the circumstances of this proceeding I do not consider that the likely delay between arrest and trial of up to two years is an exceptional circumstance. The financial circumstances in which the applicant finds himself do not, in my view, amount to an exceptional circumstance. The fact that members of the former Drug Squad and the informant have been charged with separate drug offences and that other members of the former Drug Squad are under investigation does not appear to me to be an exceptional circumstance relevant to the bail of the applicant. I am not satisfied upon the material before me that the Commonwealth prosecution case is weakened in any way by the fact that Paton, Rosenes or the informer will not give evidence. Likewise, although forensic issues may well arise in the conduct of the State prosecution case I am, on the current material, not of the view that that Prosecution case is so weakened by the absence of those witnesses that it can be said not to be a strong case. In my view, this matter is not an exceptional circumstance in the context of the application for bail. Furthermore, I do not consider that the combination or totality of these factors amounts to exceptional circumstances within the meaning of s.4(2)(aa) of the Bail Act 1977.

It follows the application will be dismissed.

I certify that this and the 23 preceding pages are a true copy of the reasons for Judgment of Kellam J of the Supreme Court of Victoria delivered on 26 April 2002.

The matter came on for hearing before Cummins J on 1 October 2001, upon which date Cummins J allowed both appeals against the decision of the magistrate. On that date the applicant was committed to custody to await his trial. Subsequently, on 19 October 2001, Cummins J handed down written reasons for his decision. (See DPP v Antonios Mokbel [2001] VSC 403.)

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (1)