Solicitors:
Solicitor for Director Public Prosecutions (Crown)
Conaghan Lawyers (Respondent)
File Number(s): 2018/291791
Decision under appeal Court or tribunal: Local Court NSW
Before: Magistrate Shurr (LCM)
[2]
Judgment
Two days ago, I heard an application by the Commonwealth Director of Public Prosecutions for the detention of the respondent, Levi John Russell, who has been granted bail by a magistrate in respect of 6 related charges. Yesterday I refused the application. I outlined my reasons briefly, undertaking to provide fuller reasons today. These are those reasons.
The first 2 charges allege the importation (on different occasions) of commercial quantities of methylamphetamine. The third is a charge of dealing with the proceeds of crime, being a substantial sum of money. The fourth is the (deemed) supply of a commercial quantity of cocaine. The fifth is possession of a prohibited weapon, a taser cartridge, and the sixth is a charge of goods in custody relating to bankcards, bearing a signature other than the respondent's, issued by a bank based in Singapore. The first, second and fourth charges require the respondent to show cause why his detention is not justified, and argument upon the application focused upon those charges and the charge of dealing with money, the proceeds of crime.
The respondent is the proprietor of an earth moving and excavations company. Put shortly, the importation charges arise from the delivery at the company's premises of machinery items containing the methylamphetamine. The first delivery is alleged to have occurred in October 2017, and the second between late November 2017 and early August 2018. On each occasion there was a large amount of methylamphetamine of a high degree of purity. The third and fourth charges arise from the police finding at those premises cash in excess of $300,000 and a substantial quantity of cocaine on the day the respondent was arrested, 3 August 2018.
All the charges are listed at Central Local Court on 31 October 2018 for replies to the brief. On 30 August 2018, Magistrate Shurr granted the respondent conditional bail, which was entered into on 6 September 2018.
The major charges, particularly the two importation charges, are very serious and, in the event of conviction, are likely to result in a substantial term of imprisonment. The Crown case is strong. There was argument at the hearing of the application as to how strong it was. To an extent the case relies upon inferences available from certain facts, and counsel for the respondent, Mr Brady SC, argued that the drawing of those inferences is contestable. Nevertheless, he conceded that it was not a weak Crown case and described it as "relatively strong". I would put it higher than that. Moreover, the facts alleged disclose an operation of some sophistication and convey that the respondent has significant criminal associations overseas and in this country.
The police material reveals contact by the respondent with 3 men who have been involved in criminal activity, one of them a member of the Nomads Outlaw Motorcycle group. The examination of his mobile phone revealed that he had used a number of encrypted messaging services. Between October 2017 and July 2018 he had flown to Singapore on a number of occasions. Police expressed the belief that he has been involved with a South East Asian syndicate suspected to have imported a very large quantity of methylamphetamine in 2017. It is said that further charges of the importation of that drug may be laid against him. It is difficult to evaluate this material. Obviously, if further charges are laid the question of bail would need to be revisted.
The respondent is 42 years old. He has a minor criminal history, of no significance for present purposes. He has strong family support. His company was established in 2002, and employs 27 staff. His sister, Asha Russell, has taken control of its operations. The police suspect that he was using the business to launder the proceeds of drug importation. This also is difficult to evaluate. However, even if he had done so at some stage, it is clear from Ms Russell's affidavit that it has been a viable and legitimate enterprise. The New South Wales Crime Commission has obtained a restraining order over the property of the respondent, including the business, but has permitted it to continue to trade.
The respondent's father, Anthony Russell, and his step-mother, Lynette Pate, have provided him with accommodation at their home at Wamberal. Asha Russell, and her partner, Michael Rawiri, have between them provided security by way of a deposit of $1 million. That money was available after the sale of a property of theirs at Avoca Beach.
The prosecutor submitted that cause had not been shown and that, in any event, there were unacceptable risks which could not be met by the bail order. In particular, she relied upon a risk that the respondent would fail to appear, given the gravity of the offences and the substantial custodial sentence he would face in the event of conviction. On this issue she also referred to his criminal associations, and the inference from the large amount of cash found at the business premises that he might have access to funds to facilitate fleeing the jurisdiction. Further, she argued that there was a risk that the respondent, himself or through his criminal associates, might threaten or intimidate witnesses in the prosecution case.
On the issue of show cause, the prosecutor cited the summary of the relevant principles to be found in the judgment of Button J in Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, at [51] - [56]. These include the admonition by Beech-Jones J in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42] against placing a gloss on the words of the Bail Act 2013 (NSW) . Beech-Jones J noted, in particular, that it is not incumbent upon an applicant for bail to show special or exceptional circumstances in order to show cause. The prosecutor accepted this as the basic guiding principle.
However, in the course of her submissions she referred to and adopted expressions used in other authorities. In Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190, the Court observed at [22] that there was "nothing particularly special or unusual" in what had been put on the issue. In Mawad at [44], Beech-Jones J referred to an aspect of the evidence on the issue as "compelling". These expressions, however, were used in the course of the Court's assessment of the significance of the evidence in those particular cases, and should not be understood as setting a benchmark for the consideration of the issue in all cases. Indeed, so much was spelt out in Mawad, in the judgment of Gleeson JA at [2] and of Beech-Jones J at [40] - [42], by reference to the expression used in Brooks.
The prosecutor also referred to the judgment of Button J in Moukhallaletti at [54], where his Honour said that cause may be shown "by a single powerful factor, or a powerful combination of factors". Again, this should not be understood as a benchmark to be applied in all cases. For that proposition Button J referred to R v S [2016] NSWCCA 189 at [63], but what the Court there said was simply that cause may be shown by "a series of circumstances", unqualified by any adjective.
To show cause Mr Brady relied upon a number of matters:
1. The respondent's attendance at court for the present application;
2. The stringent conditions of the bail order, including the very substantial security;
3. The likely delay before the matter comes to finality;
4. The respondent's antecedents, his social stability and his family support;
5. The control of the New South Wales Crime Commission over the respondent's financial resources and the power to investigate his use of them.
As to delay, as I have said, the matter is listed on 31 October for replies to the brief. Inquiries by the DPP about listing in the District Court convey that the matter could come to trial in the later part of 2019. Mr Brady expressed scepticism about that timetable, particularly in the light of the amount of surveillance material in the prosecution case. That scepticism may be justified but, on the material before me, I cannot conclude that there would be undue delay in the matter coming to trial.
I appreciate that the respondent's financial resources are controlled by the New South Wales Crime Commission but, as I understand it, the risk perceived by the prosecutor is his clandestine access to illicit funds.
However, the respondent's attendance at court for the hearing of this application is significant. His solicitor was served with the application on the afternoon of 6 September, the day he was admitted to bail. He informed the respondent of the application the next day. Accordingly, the respondent had almost a month's notice of the hearing of the application, during which time he would have been aware that he was in jeopardy of being returned to custody.
Also significant are the terms of the bail order, including the security. The order imposes conditions of residence and a curfew such that he cannot leave the premises at all unless in the company of his father or step-mother, together with an enforcement condition relating to that curfew. He is to report to police daily. He is not to apply for a passport or other travel document, or enter any point of departure from Australia. He is not to approach or contact, or attempt to approach or contact, any prosecution witness (except through his legal representatives). He is to possess and use one mobile phone only and to provide that number to police, and is not to possess a phone capable of encrypted applications. He is not to enter his business premises at Tuggerah, and is not to have any contact with any member of an outlaw motor cycle gang.
The amount of the security, $1 million, is exceptional. The prosecutor sought to diminish its significance by reference to the following passage in the judgment of Fullerton J in R v Gountounas [2018] NSWCCA 40 at [46]:
"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."
One can readily understand her Honour's scepticism about the value of security lodged by Mr Gountounas himself. However, with respect, I would question whether the willingness of his family members to raise a large sum of money and to put their property holdings at risk should be viewed in the same light. This may have been no more than observation by her Honour about the circumstances of that particular case. If, however, it was intended as a more general observation, it carries the implication that in cases of this kind family members might be willing to provide substantial security comfortable in the expectation that, should the accused choose to abscond, he or she would be in a position to reimburse them. That is how the prosecutor sought to interpret it. There is nothing in the evidence in the present case to warrant such a cynical view of the provision of security by the respondent's sister and her partner.
The combination of the respondent's attendance at court for the present application, his stability and family support, the strict terms of bail and the substantial security persuade me that cause has been shown. I am also satisfied that the bail order sufficiently addresses the risk of flight by the respondent and any risk of interference with witnesses. As to the latter consideration, I understand that the Crown case relies very largely on police evidence, and the limited evidence from civilians which will be tendered is not such as is likely to be susceptible of interference or intimidation.
Accordingly, I refused the application and directed that the bail order made by Magistrate Shurr should stand.
[3]
Amendments
12 October 2018 -
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Decision last updated: 12 October 2018