R v Gountounas [2018] NSWCCA 40 | Case summary

The investigation and arrest of Mr Gountounas

Mr Gountounas and a co-offender, Mr Leo Yan Lai Chueng, were arrested at the culmination of a joint investigation by New South Wales police and the Australian Criminal Intelligence Commission into the suspected involvement of both men in the importation and supply of commercial quantities of prohibited drugs. That investigation commenced in February 2017. In March 2017 an authority to conduct a cross border controlled operation was granted.
As the investigation progressed, a New South Wales police force undercover operative was deployed to meet with Mr Gountounas and Mr Cheung on the pretext of negotiating the terms upon which he could arrange for the drugs (both methamphetamine and cocaine) to be packaged overseas for importation into Australia to avoid detection by Australian Border Force. Various methods of importation and methods of communicating with each other to avoid detection by law enforcement agencies were discussed.
A number of face to face meetings convened on various dates between March 2017 and June 2017 were all electronically recorded and physically monitored by surveillance police.
In the course of one of the early meetings Mr Gountounas spoke of a previous importation where he and Mr Cheung had used water pumps as a means of concealing imported drugs. Mr Gountounas is recorded as saying: With the water pumps that time, they had to grind 'em open to get it out. This is not a good method because the time to take out.
In another meeting Mr Gountounas informed the undercover operative that the overseas syndicate he and Mr Cheung had been working with had been importing drugs for over a year but that they wanted to establish their own business as importers. They also represented, at least by inference, that they had funds to sufficient to finance that endeavour.
As the arrangements for the importation progressed, the terms upon which the imported drugs would be sold was also discussed. The undercover operative made it clear that he wanted no involvement in the on-supply of the drugs that were to be imported but was only interested in the wholesale value of the drugs to negotiate his percentage of the profits of sale.
The importation of a small quantity of drugs was proposed as a test for future importations of much larger quantities. Mr Gountounas is recorded as saying: They're not gonna just do a tonne on the first one. What we want is a long-term relationship. And obviously the smallers are just to establish the trust.
In the course of a lawfully intercepted telephone conversation between Mr Goutounas and the undercover operative on 16 July 2017, a test import of 50 kilograms of methamphetamine was discussed. It was later increased to 100 kilograms and then 101 kilograms. The following terms were ultimately agreed:

101 kilograms of "ice" will be imported from Mexico City to Australia.
The undercover operative will make arrangements to have persons in Mexico City meet with Gountounas and Cheung's associates who will supply them the 101 kilograms of "ice".
The undercover operative's associates will prepare 101 kilograms of "ice" to be packaged and imported to Australia.
The undercover operative will arrange movement and transportation of the "ice" from Mexico to Australia.
The undercover operative will receive 20% wholesale value of the "ice" upon sale.

Ultimately Mr Gountounas sent a text message to the undercover operative proposing the terms upon which the first importation would take place: So after much consideration… We would like to propose that we send 100 on 1st run. This obviously makes it more profitable for all parties while and more rewarding for the effort. To proceed with this we would need you to send your guys to pack. I recall that 50 was not really feasible. In original discussion 120 was, as this is effectively a test run we would like to stick to 100 for all the reasons we need to re hash. That should also alleviate any concerns you have regarding your costs to initiate the job, as your guys will see, handle and pack the product. Everything else is all ready on our end. I trust this will be more to your liking, and look forward to hearing from u.
On 1 August 2017, the undercover operative received an invoice sent by Mr Gountounas by email for the purchase of items which were to be used in the importation of the 100 kilograms of methamphetamine. Mr Gountounas informed him that the items had been purchased under a fictitious name and that the importation was in the process of being arranged out of Mexico City from a nominated business address.
On 14 September 2017, Mr Chueng advised the undercover operative of the location in Mexico City where the methamphetamine would be found and the arrangements for collecting it. Later that day an unidentified male collected a number of suitcases containing 101 kilograms of methamphetamine from that address after the exchange of a coded message which authorised the handover. The drugs were later seized by Mexican Federal Police. Upon analysis undertaken by a drug testing facility in Mexico the product was confirmed as being methamphetamine.
In his subsequent dealings with Mr Gountounas, the undercover operative maintained the ruse that the drugs had been successfully exported from Mexico City and that their arrival in Australia was imminent.
From 30 September 2017 Mr Gountounas and the undercover operative exchanged numerous text messages regarding an importation of cocaine from Columbia utilising the same method that had been purportedly used for the importation of the methamphetamine from Mexico.
To that end, on 30 September 2017 and 4 October 2017 Mr Gountounas sent the following text messages: Hey I know we don't want to cross lines etc. But we are all pretty confident in your services and given all progresses as smoothly as it should. The guys are professional and are already coordinating or should I say preparing other projects. So a quick question, can your service pick up from Columbia? Also next job is pretty much ready as soon as u can let us know when u can get your guys there […] So as soon as this one is safe and in their hands we can initiate the next one immediately. Will be 500 or max capacity, so we will need some lead time once u confirm. Once this is done, we (you and I) we can coordinate exact time for product to be picked up and packed. And so on. That's all just a formality on our end mate. Really looking forward to completion of this one, and onto bigger and better ones. Also they will be very frequent :-)

The obligation to show cause

This Court in Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 outlined the basic principles that apply to a determination of whether an applicant has shown cause that his or her detention is unjustified: [51] 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]. [52] 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. [53] 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]. [54] 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]. [55] 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. [56] 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.
The anterior show cause question in s 16A of the Bail Act, as it arises on the Crown's detention application, was whether Mr Gountounas had discharged the onus of establishing on the balance of probabilities that he has shown cause as to why his continued detention is not justified. An assessment of the factors that bear upon that question must be considered separately from the question whether there is an unacceptable risk of him failing to appear to answer his bail (the bail concern in s 17 of the Act upon which the Crown placed primary reliance) and the matters in s 18 that are relevant to an assessment of that risk.
While it is important not to conflate the two tests, or to import into the show cause question in s 16A the factors that are specified in s 18 as the matters to be considered as an assessment of the bail concerns in s 17 of the Act, it was accepted at the hearing of the detention application that the strength of the Crown case is not only a factor that has a direct bearing on an assessment of the risk of Mr Gountounas absconding, but it is also relevant to the question whether he has shown cause as to why his continued detention is not justified.
The nature and extent of the electronic and telephonic surveillance which records Mr Gountounas' direct dealings with the undercover operative over many months as a person he believed could facilitate large-scale importations of drugs into Australia, a summary of which is set out above, more than justifies the Crown case being described as one of very considerable, if not overwhelming, strength. There was no submission to the contrary.
Both in this Court and on the release application before Hamill J, Mr Gountounas sought to discharge the onus of establishing that his detention is not justified by reference to what was submitted on his behalf to be a compelling combination of circumstances despite the strength of the Crown case and the maximum penalty that may be imposed were he convicted.
Those factors included what is said to be an unacceptable delay in the matters under charge in the Local Court proceeding to trial. Time spent in custody pending trial may be a relevant factor in considering whether an applicant has showed cause why his or her detention is not justified. However, even significant delay is not, of itself, sufficient to show cause (see A1 v R; A2 v R [206] NSWSC 1288 per Garling J).
It must now be accepted that orders for service of the brief will be complied with by 21 March 2018 and, subject to an application by Mr Gountounas to cross-examine the undercover operatives under s 91 of the Criminal Procedure Act 1986 (NSW) being granted and the need for a contested committal to be convened, that he will be arraigned in the District Court this year and a trial date secured for a four to six week trial in 2019. I note that the brief of evidence will be served well ahead of the time Hamill J considered that was likely to occur. I also note that no decision has yet been made by lawyers retained to act for Mr Gountounas in the criminal proceedings to mount an application to cross-examine any prosecution witness, nor was there any submission advanced on the detention application directed to any basis on which that application might be granted in respect of the undercover operative.
Notably, under s 91(3) the onus is on a defendant to satisfy the Court that there are substantial reasons why in the interest of justice a prosecution witness whose statement has been served should attend to give oral evidence. In this case, unlike perhaps other cases where an undercover operative is deployed and where the incriminating nature of that relationship depends upon the credibility or the reliability of his or her account of conversations with an accused, the entire course of the relationship between the undercover operative in this case and Mr Gountounas was scrupulously monitored by investigating police. There was no submission advanced that the quality of the electronic product recording the course of that relationship was deficient in some way, or that the intercepted telephone and text messages were obtained unlawfully such as might render the evidence, which on any view is replete with admissions of his complicity in both counts of conspiracy, susceptible to challenge.
In contrast to the approach taken by Hamill J, I do not propose to make an assessment of the impact of delay on the show cause question on what I regard as nothing other than a theoretical possibility of an application being made under s 91 of the Criminal Procedure Act adding to the delay in the matter progressing to trial.
In the result, there is a delay of what is likely to be something in the order of 18 months between the date of Mr Gountounas' arrest and subsequent extradition to New South Wales and his trial. That is no less regrettable by apparently being commonplace given the current pressure on the listing arrangements of the District Court. So much was conceded by the Crown. That said, the relevance of delay in this case, and the resultant length of time Mr Gountounas will remain on remand presumed to be innocent is, in my view, of little weight on the show cause question where the assessed strength in the Crown case for present purposes must be taken to mean there is a corresponding likelihood, perhaps even a probability, that he will be convicted of one or both of the charges of conspiracy.
Save for the separation from his family, in particular from his five-year-old son who resides with his wife in South Australia, and save for some suggestion that he will find it difficult to prepare his case for trial because he has retained South Australian lawyers to act for him (neither factor, in my view, carrying any significant weight on the show cause question), no submission was advanced that Mr Gountounas' continued detention is particularly burdensome for him, or his wife and son, such that his continued remand is not justified for that reason. No evidence was advanced to suggest that his son had special needs of some kind, or that he was unable to travel with his mother to visit Mr Gountounas as a remand prisoner, however undesirable that may be for any number of obvious reasons. Additionally, no submission was advanced that his preparations for trial necessitated intensive face-to-face dialogue with his lawyers, or that they could not travel to New South Wales for scheduled conferences in a remand setting in their preparation for trial, or that they were unwilling to do so.
The final factor relied upon on the show cause question was the preparedness on the part of multiple members of Mr Gountounas' family to collectively forfeit a very large sum of money, secured against their own real property, were Mr Gountounas to leave the jurisdiction in breach of his bail obligations. That state of affairs also needs to be considered in the context of the evidence in the Crown case. Mr Gountounas not only represented to the undercover operative that he had established links with an international drug smuggling syndicate in the past, and a proven ability to fund his new venture with new partners in the future, but he also conducted himself on the basis that he had a proven ability to access extremely large quantities of prohibited drugs in cooperation with international affiliates and a capacity to arrange for their wholesale supply in this jurisdiction. In those circumstances, neither Mr Gountounas' lodgement of $100,000 and a promise to forfeit a further $50,000, nor his family's willingness to put at risk their property holdings, advances his obligation to show cause why his continued detention is not justified.
I am not satisfied that the factors relied upon by Mr Gountounas, either alone or in combination, are of sufficient weight to meet the show cause test in s 16A of the Bail Act and, that being the case, the Crown's detention application must succeed.
McCALLUM J: I did not join in the orders of the Court made on 23 February 2018. I would have refused the prosecutor's detention application, for the following reasons.
I note that the application was argued on the assumption that the Court was required to revoke bail unless the respondent satisfied the show cause requirement under s 16A of the Bail Act 2013 (NSW). The show cause requirement is expressed to apply where a bail authority is making "a bail decision for a show cause offence". The term "bail decision" (defined in s 8 of the Act) does not include a decision to revoke bail once granted. However, the significance of those provisions was not explored and it is appropriate to determine the application on the basis on which it was argued.
I consider that the respondent satisfied the show cause requirement. The decision of the Court of Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 holds that that is a separate test, not to be conflated with the unacceptable risk test. However, as Fullerton J has explained, factors relevant to the unacceptable risk test may also inform the determination of the show cause requirement. The Act does not preclude that approach; so much was accepted in Tikomaimaleya at [24]. In practice, the two tests will often involve overlapping considerations.
The Act provides no express guidance as to when detention is "not justified." The content of that broad, evaluative test is left to be developed by bail authorities having due regard to accepted legal principles, including the right to personal liberty.
It must be accepted that the imposition of the show cause requirement stands as a deliberate encroachment on that right, implicitly holding that the fact of having been charged with a show cause offence of itself affords some justification for detaining a person pending trial. In order to understand what an accused person must show in order to displace or outweigh that justification, it is necessary to examine its underlying premises. It cannot be seen as a reversal of the presumption of innocence or authority for pre-empting punitive detention. It appears, rather, to reflect an assumption that a person charged with a show cause offence is inherently likely to pose unacceptable risk and a policy that such persons should bear the onus of displacing that justification for their detention.
I agree with Simpson JA that delay, the interests of the respondent's family in South Australia, including his young child, and the likely difficulties of preparing for trial in circumstances where his legal representatives are also in South Australia are matters of significant weight in the present case.
Justice Fullerton has said that even significant delay is not, of itself, sufficient to show cause, citing the decision of Garling J in A1 v R; A2 v R [2016] NSWSC 1288 (publication restricted). With great respect to Fullerton J, I do not understand Garling J to have stated or applied a principle in those terms in that case. Bail judgments in the Supreme Court reveal that the show cause requirement is sometimes determined taking risk into account and sometimes determined putting risk to one side on the basis that its assessment must be a separate exercise. Taking the former approach, Garling J accepted that delay was a factor to be weighed in the show cause test but concluded that the applicants had not shown cause because there was an unacceptable risk of interference with a witness who had allegedly been threatened by the accused.
If the latter approach is taken, depending on the circumstances of the case, I consider that delay could be enough to show cause (although it would still be necessary separately to assess risk). In R v Cain (No 1) [2001] NSWSC 116, Sperling J said "the prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights". I respectfully agree. As I have said before, the Court must be astute to ensure that those concepts are not eroded by progressive numbness to delay or its normalisation due to the jading impact of straining against the stretched resources of the criminal justice system: R v Farrell [2016] NSWSC 1278 at [25].
If the assessment of risk is undertaken separately and put to one side for the purpose of the show cause requirement, I consider that the combination of factors relied upon by the respondent satisfy the requirement to show cause why his detention is not justified in the present case.
That conclusion is not relevant to the determination of whether there is any unacceptable risk: s 19(3). Turning to that issue, I respectfully agree with Fullerton J that the Crown case is one of very considerable strength and that, if the respondent is convicted, the imposition of a lengthy term of imprisonment appears inevitable. Justice Hamill similarly concluded that there is a strong Crown case of extremely serious offending. That is not of itself a justification for detaining the respondent in the period before the imposition of any sentence. The relevance of a strong Crown case for a serious offence is that it points to a risk of flight, which I accept exists in this case (the existence of a strong Crown case also reduces the weight of the risk of an innocent person being incarcerated for a lengthy period).
Separately, the conduct described in the Crown case statement suggests some risk of future offending and danger to the community, although that is a lesser risk, in my view. I have regard in that context to the fact that the respondent has no relevant criminal history. It seems unlikely, having been arrested and made aware of the surveillance he was under, that he would now engage in any undertaking of the kind with which he is charged. It must nonetheless be accepted as a risk that exists.
The point on which I differ from Simpson JA is that, in my view, the thoughtfully tailored conditions imposed by Hamill J are adequate to address those risks. While I accept that the Court is entitled to regard large deposits of security with a measure of scepticism in such cases, the combination of the security offered (both as to its value and the variety of sources from which it is offered) and the family connections revealed by the evidence persuade me that the bail risks that exist can be adequately addressed by the imposition of conditions in this case. For those reasons, I would have refused the detention application.

R v Gountounas

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