Gleeson JA: My reasons for joining in the orders of the Court made on 16 November 2016 refusing the applicant's release application accord with those of Button J.
Rothman J: I agree with Button J.
Button J:
Background
Ms Kristen Moukhallaletti (the applicant) was refused bail by Bellew J on 11 November 2016. Five days later, on 16 November 2016, she made a further release application to the New South Wales Court of Criminal Appeal. There was no dispute between the parties that the second application was to be determined de novo, although both parties were content for us to have recourse to the judgment of his Honour. At the end of that hearing, I joined in orders of this Court that the application should be refused, with reasons to be provided later. These are my reasons for doing so.
The first set of allegations
The applicant has been charged with two sets of offences. The first set contains three offences, all of them alleged to have arisen from the one incident.
The first offence is an allegation that, on 16 September 2015 at the Metropolitan Reception and Remand Centre (MRRC) at Silverwater, she intentionally fabricated false evidence with intent to mislead a judicial tribunal in a judicial proceeding (s 317(b) of the Crimes Act 1900 (NSW); maximum penalty of imprisonment for 10 years).
The second offence is an allegation that, with intent to mislead a judicial tribunal in a judicial proceeding, the applicant falsified the statement of a witness, knowing that it was or may be required as evidence in a judicial proceeding (s 317(a) of the Crimes Act; maximum penalty of imprisonment for 10 years).
Finally, it is alleged that she intentionally made use of fabricated false evidence with intent to mislead a judicial tribunal in a judicial proceeding (s 317(c) of the Crimes Act; maximum penalty of imprisonment for 10 years).
The applicant was arrested on those charges on 17 November 2015, and granted conditional bail. She remains on bail with regard to them. The charges are listed for summary hearing in the Local Court at Campbelltown on 31 January 2017.
The background of those allegations can be shortly stated. Some time ago (it seems in 2014), the husband of the applicant was charged with supplying a large commercial quantity of methamphetamine, dealing with the proceeds of crime and directing the activities of a criminal group. He subsequently pleaded guilty to those charges on 9 September 2016, and is now in custody.
The Crown case is that the applicant's husband has had, as a result of his highly profitable dealing in prohibited drugs, access to very substantial amounts of cash and very significant assets, including aeroplanes that have been used to transport prohibited drugs internationally.
On 16 April 2015, he was granted strict conditional bail. One of his bail conditions was that he was not to associate or communicate, or attempt to communicate, by any means with any of his co-accused, except through his lawyers.
The Crown alleges that, on 16 September 2015, the applicant visited one of those co-offenders at the MRRC. That visit is seemingly undisputed by the applicant, although the circumstances leading up to it are in sharp dispute.
The person whom the applicant visited need not be identified by name, but he was undoubtedly charged with serious offences along with the applicant's husband. That visit was captured on CCTV cameras.
The Crown case is that that person had been incarcerated for about 12 months pursuant to those charges, but he had never received a visit from the applicant before 16 September 2015.
He has informed police that, during the visit, the applicant called upon him to "do that statement" about which her husband had previously spoken. It is alleged that the prisoner well knew that the applicant was referring to a request her husband had made to him, some time before, that he make a false statement to police about the ownership of some drugs and firearms that they had seized.
The prisoner also alleges that, immediately after that request, the applicant changed the topic of conversation to a general discussion about the members of the family of the prisoner. The Crown case is that one can infer that that was an implied threat.
Subsequently, the prisoner in question was moved to a different gaol. Furthermore, he did not appear in court with the applicant's husband by audio-visual link (AVL), at a time when one would have expected him to do so.
The day after his absence from court, the applicant allegedly visited the prisoner again. According to him, she expressed her suspicions about the absence of the prisoner from the AVL link to the joint hearing the day before. She allegedly said "You have to look at it from our point of view. It looks like you've rolled". The prisoner further asserts that the applicant told him that her husband wanted to give him some money, but only after the requested false statement had been completed.
In short, the three charges reflect the allegation that the applicant sought to have the prisoner make a false statement in her husband's proceedings, in order to further his forensic interests dishonestly.
As I have said, the applicant retains bail on the three charges arising from that alleged incident; I recount the details of the incident and the charges as context only.
The second set of allegations
Whilst on bail, it is alleged that the applicant committed further offences. It was not disputed by senior counsel for the applicant that that state of affairs gives rise to the position that this Court must refuse bail on those charges unless the applicant shows cause why her detention is not justified: see s 16A(1) and s 16B(1)(h)(i) of the Bail Act 2013 (NSW).
The new charges are as follows. First, it is alleged that, between 1 June and 8 July 2016, the applicant intentionally fabricated false evidence with intent to mislead a judicial tribunal in a judicial proceeding (s 317(b) of the Crimes Act; maximum penalty of 10 years imprisonment).
Secondly, it is alleged that, between 8 July and 14 September 2016, the applicant dealt with proceeds of crime in the amount of $170,000, well knowing its true nature, and intending to conceal its true nature (s 193B(1) of the Crimes Act; maximum penalty of 20 years imprisonment; a strictly indictable offence).
The background to these new charges is as follows. As part of their investigation into the activities of the applicant's husband, the authorities allege that a number of pieces of real property have been purchased with proceeds of crime derived from the syndicate operated by him.
On 13 July 2016, a judge of the Supreme Court of New South Wales made orders restraining the interests in real property of a company said to be associated with the applicant and her husband. In the same month, investigators became aware that a particular piece of real property at Theresa Park (a southern suburb of Sydney) had been sold. A caveat had been lodged on the title of the property by Mr Ryan Cooke, who was allegedly an associate of the applicant and her husband. On 8 July 2016 (that is, five days before the restraining order was made), $170,000 from the proceeds of sale of the Theresa Park property was deposited into a bank account associated with Mr Cooke.
On 11 August 2016, a search warrant was executed at the home of Mr Cooke. During that process, Mr Cooke told police that, in fact, at the time he lodged the caveat, he had already been paid $35,000 by the applicant's husband, and was owed only $25,000 more. The Crown alleges that the caveat in the amount of $170,000 was therefore groundless and fraudulent.
Furthermore, Mr Cooke has told police that the applicant coerced him into providing a false statutory declaration to the effect that Mr Cooke had given her $170,000 as part of a "business agreement". The Crown's allegation is that that false statutory declaration was intended to be used in order to resist the restraining orders, and any subsequent confiscation proceedings.
Mr Cooke has made a statement to police in accordance with his allegations. He has not been charged with any offence.
In late August 2016 and early September 2016, investigators intercepted and recorded a number of conversations between Mr Cooke and the applicant. The Crown case is that they were discussing the need to ensure that their false accounts of the provenance of the $170,000 married up, in an effort to defeat any confiscation of it.
Extracts of the listening device product were placed before us. I provide the entirety of the tendered transcript of that product, reproduced verbatim, except for references to "the accused" having been changed to "the applicant", for the convenience of the reader:
COOKE:…Its just pot luck that I seen Justin [first name of prisoner who is the subject of the first set of allegations]…I was just trying to play dumb because I didn't know to what extent he knew
APPLICANT:…oh I told him, I wanted to see ya
COOKE:…he said Sam [first name of applicant's husband] wanted to make sure this and that, I'm thinking, I didn't want to elaborate too much with him
APPLICANT: Yeah, you don't need to tell him anything, because he was on a visit when I seen Sam and he goes like…just double check with you, have they been back to speak to you, has my solicitor rang you?
COOKE: Nah, oh, on a private number?
APPLICANT: Nah it'll just be his mobile number
COOKE: Oh, that Henry, Harry..?
APPLICANT: No, no, no, that's the accountant, the solicitor, Daniel. So I explained to him what's going on. He goes "This is fucking bullshit, they can't do this". I was like, well they've done it, what the fuck?"
COOKE: No, I haven't got a phone call from him, unless its….no it wouldn't
APPLICANT: I haven't, like, Sam told him via, when they had a conference, "get on to him, ring him, just to let you know, like, you know, they can't tell you what they told you, like, let alone the, I don't even know how they got a warrant, like seriously, he said it's just, and what they said to you about taking the houses and stuff in two weeks, he goes, they just cant say that, like…
COOKE:….yeah…
APPLICANT:…like, it's a shit go. Fuck it's a shit go, but anyway. I just wanted to make sure you're all good and that and they hadn't harassed you again
COOKE: No, no. I haven't heard nothing from them yet, so…
APPLICANT:…nuh?...
COOKE:…I'm assuming, if they need something, they'll ring me
APPLICANT:…Oh, if they need something, they'll ring ya but still, fuck, it's just the pressure. It's just, it makes me sick thinking about it.
COOKE:…Oh, Emily has been chewing my arse, "argh, argh, argh"
APPLICANT: Yeah I know, like, you ring my phone, I'm like, "Oh fuck?"
COOKE: Oh, that's what I thought, making a legit call
APPLICANT: Yeah, there's no point not but I was just like, fuck, I don't want you having any more pressure, like, fucking hell.
COOKE: Yeah, that's what I …yeah. Like, I've got the majority of the money out. I was going to go get the rest tomorrow
APPLICANT: whispers Can you just keep it somewhere for me, like? Or you really want to give it to me?
COOKE: I just sort of want to get it out, yeah.
APPLICANT: Yeah, it's up to you
COOKE: Yeah, it's just easy I guess. Because it's only sitting around and if something happens
APPLICANT: Yeah, yeah. Um, yeah let me work out what I'm going to do then. I'll work out what I wanna do. With the numbers and stuff, what are we gonna do? Are you…you told Harry that you don't want to.
COOKE: Yeah, well, he said to me on the phone, best that, if it's not 100 percent, don't do it…
APPLICANT:…don't do it…
COOKE:…because, if you're showing money going back in, he goes…
APPLICANT:…mmm…
COOKE:…like, what you've got taken out, um, like if you show money going back in, like, it could balance it back up…
APPLICANT:…yeah, yeah.
COOKE:…, and that's what he said, why he wasn't…
APPLICANT:…that's ok, I just wanted to make sure where we're at.
whispers They're gonna grill you about the caveat
COOKE: Yeah
APPLICANT: whispers And just in case they do…
COOKE:… Yeah…
APPLICANT: whispers I just want to make sure that we're on the same page, that's all so…
COOKE:…so…
APPLICANT:…What do you want to…what are you going to say to that?
COOKE: How do you want to attack it? Like…
APPLICANT: Well you legit lent us some money.
COOKE: Well yeah, I've…
APPLICANT:…So it's just a matter of, I don't know. I just don't want to, if we, we got to make sure it matches up otherwise they're gonna, and we can put interest to what
COOKE:…yeah…
APPLICANT:…there's nothing illegal in it…
COOKE:…yeah…
APPLICANT:.. in it, but it just needs to be, just to do the same, that's all
COOKE:…yeah…
APPLICANT:…otherwise
COOKE:…I just have to go through the figures and that again…
APPLICANT:…Yeah, if you can. Just so that, in case they call ya, like you don't know, who knows, fucking, they haven't called us, but I just think, if they've gone to that extent,
COOKE:…yeah…
APPLICANT:…they're probably going to call you and ask you
COOKE:…yeah…
APPLICANT:…why did you do this? What did you do, you know what I mean? It will be better if we are on the same page.
COOKE: Yeah definitely.
APPLICANT: Yeah if you can. The rest is interest. You lent us money, we put whatever on there. If not.
Meanwhile, on 1 September 2016, the Crown case is that the solicitor to whom the applicant and Mr Cooke had referred in their discussions arranged to meet with Mr Cooke at a public park, which meeting later occurred on 3 September 2016. Senior counsel for the applicant did not resist the proposition that it is highly unusual for a solicitor of this Court to conduct a conference in such a place. Nor did he resist the proposition that a person might do so in order to minimise the risk of electronic interception of such a conversation.
The Crown case is that Mr Cooke then met with the applicant on three further occasions in September 2016, two of which were at the applicant's residence where they discussed a break-up of funds to account for the $170,000 received by Mr Cooke if they were ever questioned by police.
Ultimately, the applicant was arrested on 14 September 2016. She was charged with the second set of offences, and has been in custody ever since.
Submissions of the applicant
A deal of affidavit evidence was placed before us on behalf of the applicant. It was relied upon in support of the proposition that the applicant had shown cause, and, if that submission were accepted, that there were no unacceptable risks that should stand in the way of strict conditional bail: see s 18 of the Bail Act.
In that regard, senior counsel proposed the following bail conditions: that the applicant would live at home with her children; report daily to a police station; have no direct or indirect contact with any notified Crown witness; not go within 1 kilometre of a point of departure from Australia; and be of good behaviour in every way whilst on bail. It was also proposed that funds be deposited as surety, as against any failure to appear by the applicant, and that they would be provided by three persons in a total amount of $35,000.
Senior counsel for the applicant submitted that the following factors, taken as a whole, show cause for the purposes of the Bail Act.
First, the applicant has a son aged 14, a son who is aged 7, and a daughter who is aged 4 (I shall refer to them by their ages rather than their names). It was said that the three children of the applicant are very disadvantaged by her incarceration (her husband, of course, is in custody, and inevitably will remain there for many years).
The children are currently being cared for by the brother of the applicant's husband, Mr Paul Moukhallaletti. In his affidavit, he has explained that the 14 year old has serious behavioural issues arising from Attention Deficit Hyperactivity Disorder (ADHD). The child is medicated and sees a psychologist, but remains aggressive and difficult to control. As one would expect, the effect upon the 14 year old of the incarceration of both of his parents has been very severe. His uncle has explained that recent events have "brought out the worst in him".
The 7 year old has handled his mother's absence reasonably well. The 4 year old cries bitterly every night, and is described as missing her mother terribly.
Mr Paul Moukhallaletti suffers from serious health problems, including Parkinson's disease. Its symptoms include muscular tremors, and he is not confident driving. As one would expect, his affidavit explains that his care of the children is hardly optimal.
The three children are also cared for by a friend and neighbour of the applicant, Ms Beverley Donnelly. She resides with her family in premises owned by the brother-in-law of the applicant. She herself suffers from the serious chronic degenerative disease multiple sclerosis, and has significant physical and mental deficits as a result.
In her affidavit evidence, she has confirmed the serious behavioural problems of the 14 year old, and speaks of him being "a complete nightmare to look after". She believes that, if the applicant is not released, the 14 year old will choose not to attend a residential school where he has been getting help. As for the 4 year old, she has on occasions cried herself to sleep, and is missing her mother deeply.
Ms Donnelly also confirms the serious health problems of Mr Paul Moukhallaletti. She also refers to the fact that, for a time, the applicant was held at Wellington Correctional Centre, a 5 hour drive away from Sydney, making visits from her children extremely difficult.
In short, the first factor relied upon was the grievous effect upon her three children of the incarceration of the applicant.
Secondly, senior counsel submitted that there is a distinct possibility that the applicant, if incarcerated, will lose her job with the New South Wales Department of Family and Community Services, where she has been employed since February 1999. It was also said that, even if the applicant is granted further leave without pay, she relies upon her income from that employment in order to maintain herself and her family.
Thirdly, it was emphasised that the applicant, a woman of 36 years of age, has no criminal record whatsoever. She also enjoys, it was submitted, very strong community ties in Sydney, the most significant of whom are her three young children.
Fourthly, it was said that there will inevitably be a substantial delay in the resolution of the matters upon which the applicant is refused bail. That is because the proceeds of crime offence is strictly indictable. One would also expect, it was said, that the allegation of fabricating false evidence in July 2016 will be dealt with in the District Court as well.
In short, senior counsel submitted that the applicant had shown cause as called for by the Bail Act. He then turned to a contingent discussion of unacceptable risks, and submitted that, in light of the stringency of what was proposed, there were none.
Determination
I consider that the following basic principles apply to a determination of whether an applicant has shown cause that his or her detention is unjustified.
First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].
Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.
Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].
Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].
Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.
Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.
Application of principles to evidence
Turning to decide the first question of whether the applicant has shown cause, I am not of the view that the factors relied upon have that result, whether individually or by way of their cumulative force.
Contrary to the submission of senior counsel, I regard the Crown case with regard to the second set of allegations as strong. It is certainly true that the credibility of Mr Cooke will be the subject of trenchant attack at any trial, bearing in mind the circumstances in which he came to make his allegations against the applicant and the fact that he has not been charged, despite his admitted criminality. Reading the listening device product provided to the Court as a whole, however, I consider that there is a strong Crown case that, whilst on bail for an offence against public justice, the applicant calculatedly committed the same kind of offence.
Secondly, contrary to the submission of senior counsel for the applicant, I regard the second set of charges (and indeed the first) as serious alleged attacks on the administration of justice. Without seeking to bind any subsequent judicial officer in the slightest, I venture the opinion for the purposes of this application that, if the applicant is convicted of any of the offences alleged against her, a sentence of full-time imprisonment may be expected to follow.
Thirdly, by way of context, it is not unimportant that significant assets and vast sums of cash are alleged to have been available to the man who is the husband of the applicant, the father of her children, and the brother of one of their carers. Nor is it unimportant that the subject matter of the recorded conversations that form the basis of the second set of alleged offences is the very substantial sum of $170,000.
Those aspects inevitably give rise to reflection on the existence of resources that could be used by a person, perhaps reluctant to return to full-time custody, to disappear. And my assessment of the strength of the allegation that the applicant committed a serious offence against public justice as recently as three months ago, whilst on bail, exacerbates that concern.
Turning to the particular factors relied upon to show cause, I accept, of course, that the children of the applicant are suffering as a result of her absence. I also accept that the eldest child suffers from significant behavioural and other issues. And no doubt the circumstances of both parents being incarcerated add to the distress of the children.
Regrettably, children inevitably suffer whenever any parent is incarcerated. And whilst the care of the children of the applicant is not perfect, they have not been left bereft. They have the benefit of the care (admittedly imperfect) of two adults who are close to their mother. The circumstances here are deeply unfortunate; seen in the context of the strength of the Crown case that the applicant has committed a serious offence against public justice, they are not compelling.
Secondly, there was no evidence placed before the Court to confirm that, if she is not released to bail, the applicant will lose her job. Rather, the evidence tendered by the applicant established that she had been on leave without pay until 9 November 2016, and for reasons unexplained, had not requested any further leave from her employer. Bearing in mind her employment with the one large government organisation for over 17 years, and the fact that her absence from work is enforced against her by court order, I think that it would be very surprising if her employer were so harsh in its approach as to terminate her employment.
Thirdly, it is true that the applicant is a person of prior good character with sound community ties. To be weighed against that is the fact that, as I have said, I consider that the Crown case is strong that she breached bail with respect to a public justice offence by recently committing a serious offence of the same kind. Again, the fact that a person with no criminal record is refused bail can be characterised as regrettable; it is hardly of itself an argument for the release of that person.
Fourthly, it is well known that there are delays in all the criminal courts of New South Wales in resolving contested matters. And it is true that sometimes the position can be so extreme, either alone or in combination with other factors, that the delay can lead to a finding that the applicant has shown cause. But the resolution of the first set of alleged offences will occur, all proceeding smoothly, no later than in early February 2017. As for the second set of offences, there is nothing to suggest that their resolution will be exceptionally delayed.
In short, whether one reflects on each factor separately, or their combined force, I am of the view that the applicant has not succeeded in showing cause as to why her detention is not justified until the second set of alleged offences is resolved.
Ancillary analysis
In those circumstances, there is no need for me to provide any detailed assessment of unacceptable risks. It suffices to say that, if I be wrong in my assessment of whether the applicant has shown cause, I would refuse bail in any event. That is because of my affirmative belief that, if the applicant were granted bail, there would be an unacceptable risk that she would commit a serious offence against public justice, by way of interfering with the prosecution witness Mr Cooke.
Other matters
It should be noted that this judgment will be published on Caselaw. If the parties consider that the interests of justice warrant it being removed at some point, for example because a trial is proximate, then they should notify the Court accordingly.
Order
It is for those reasons that I joined in the following order of the Court of 16 November 2016:
1. Release application refused.
[2]
Amendments
08 August 2018 - Publication restriction removed - judgment republished.
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: 08 August 2018