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[2017] VSC 406
General information, not legal advice.
Supreme Court of Victoria
2017-07-13
Weinberg AP
Original judgment source is linked above.
CRIMINAL LAW - Application for bail - Attempting to import commercial quantity of cocaine and other offences - Applicant in 'show cause situation', having been charged with indictable offence while on bail - Whether 'unacceptable risk' of failing to answer bail and of committing further offences while on bail and of endangering safety and welfare of members of public - Applicant said to be 'key organiser' of drug syndicate - Failure of applicant to discharge onus of demonstrating not 'unacceptable risk' - Bail refused - Bail Act 1977 ss 4(2)(d) and 4(4)(a) - Criminal Code Act 1995 (Cth) ss 11.1 and 307.1.
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
1 The applicant, Moshey Youkhana, now aged 47, was arrested and charged on 18 January 2017 with having, between 28 September 2016 and 8 December 2016, attempted to import a commercial quantity of cocaine, contrary to ss 11.1 and 307.1 of the Criminal Code Act 1995 (Cth) ('Criminal Code').
2 In March 2017, following the execution of various search warrants, a number of further charges were laid:
3 The applicant now seeks bail. He is required to 'show cause', pursuant to s 4(4)(a) of the Bail Act 1977, as to why his detention in custody is not justified. That is because he allegedly committed these offences while he was at large, awaiting trial for another indictable offence or offences. It is common ground that that means that the onus rests upon him both to show cause, and to satisfy the Court that he is not an unacceptable risk of failing to surrender himself into custody in answer to his custody, of committing an offence whilst on bail, and endangering the safety or welfare of members of the public.[1]
4 In relation to the present matters, the applicant was to face a contested committal in late August 2017. However, I understand that that date has now been vacated. I am of the view that this trial will not take place before the first half of 2019 at the earliest.
5 The applicant has previously been refused bail, apparently on the basis that he was said to pose an unacceptable risk.
6 The background to the applicant's alleged offending is similar in many respects to that set out in my judgment this day granting bail to a co-accused, Youssif Tawfik.[2] These reasons should be read in conjunction with that judgment, at least in so far as the background facts are concerned.
7 The evidence thus far gathered, upon which the police primarily rely in opposing bail, is set out in an affidavit affirmed by Detective Senior Constable Andrew Sward, who is a special member of the Australian Federal Police stationed at Melbourne. Detective Sward is currently attached to the Joint Organised Crime Task Force investigating this matter. It may be summarised as follows.
8 During the investigation, it was established that the applicant had, at relevant times, used seven mobile telephone numbers, all subscribed using false details. He also used eight different motor vehicles, all registered to others.
9 The applicant's involvement is said to date back as far back as April 2016. In his capacity as a director of a company known as Boat Tech Customs Pty Ltd ('Boat Tech'), he purchased an 11.5 metre Shark Cat boat, and stored it at a factory in Campbellfield. He commenced modifications upon it, including the installation of additional fuel tanks.
10 On 18 May 2016, the applicant supplied another alleged member of the Barada syndicate with three photographs of a Caribbean Reef Runner boat, marked with signage indicating that it was for sale. Police believe that the members of the Barada syndicate were, at that stage, intending to use that boat to collect a consignment of cocaine from the 'mothership', known as the KM8.
11 On 28 September 2016, water police intercepted the Caribbean Reef Runner on Port Phillip Bay. On board they found what they described as 'anti surveillance equipment'. That same day, a search warrant was executed at Boat Tech, and the Shark Cat was seen to be under repair. The applicant acknowledged that he owned the Shark Cat, and that he was currently modifying it, apparently for long range sea travel.
12 Between 17 and 21 October 2016, the applicant purchased a large, white 7.4 metre trailer boat, Lucky Strike. The purchase price was $185,000.
13 On 28 October 2016, the applicant, along with two other members of the Barada syndicate, was seen to be travelling along the road to Port Fairy. They were towing the Lucky Strike, and had with them a number of jerry cans filled with fuel. They were then observed to conduct what the police described as a 'test run' off the southern coast from Port Fairy.
14 On 1 December 2016, described by Detective Sward as 'Attempt 1', the 'mothership', KM8, entered an area, outside the economic exclusion zone, approximately 300 nautical miles from Port Fairy. The applicant and another Barada syndicate member drove to Port Fairy, again towing the Lucky Strike. When they were near Colac, the boat dislodged from the trailer and fell on to the freeway, sustaining significant damage. The applicant attended an auto store in Colac and purchased fibre glass tape in an attempt to effect repairs. They then attempted to launch the vessel but the Lucky Strike could not stay afloat, and was removed from the water.
15 On 2 December 2016, the applicant, with another member of the syndicate, organised for the purchase of a new, replacement boat, the Perceive. The boat was ultimately purchased for $100,000 in cash.
16 On 3 December 2016, described by Detective Sward as 'Attempt 2', the applicant and another syndicate member purchased a number of jerry cans. Importantly, there was reference in their recorded conversation to 'some guys in Sydney who were selling the product before it arrived.' It was said that one of them was 'tapped' and that Federal Police had heard that there was a 'bigger ship coming', about 100 kilometres outside Sydney. Someone was said to have 'got 15 years for sailing', while another 'did nine'.
17 The conversation continued: '...have to go to China, why the fuck are we dealing with these cunts, let's go straight there, chop these motherfuckers out, we'll come to you don't worry, come close to you.' Later that day, the applicant, along with two other syndicate members, was in a Toyota Hilux. There was discussion regarding the purchase of satellite phones. Subsequently, on board the Perceive, someone said 'just in case the cops search it'. Later that day, in the car again, there was talk of 'getting this one through and the next one being easier'.
18 On 5 December 2016, there was discussion about how high seas and bad weather had apparently foiled the next attempt.
19 On the evening of 6 December 2016, and the early hours of the following morning, the Perceive was taken out into the water near the Port Fairy lighthouse. Shortly afterwards it crashed into rocks. This caused significant damage, which rendered the vessel unseaworthy.
20 In short, the various attempts made by the applicant to acquire a small boat to unload the cocaine from the KM8 all failed. Two of those boats were damaged and rendered unusable.
21 Detective Sward contends, with some force, that the evidence against the applicant, consisting largely of recorded conversations to which he was a party, appears telling, and gives rise to what seems to be a strong prosecution case.
22 The applicant has a significant criminal history. Putting to one side low level driving offences, of which there are a large number, his record may be summarised as follows.
23 On 10 August 2016, the applicant was charged with possession of cocaine, methylamphetamine, cannabis and anabolic steroids, as well as trafficking ecstasy and dealing with property suspected of being proceeds of crime. He was bailed by police on that day, and his bail was extended to 11 October 2016. On 18 November 2016, his case was adjourned for a contest mention on 10 March 2017. That was further adjourned until August 2017. However, at a contest mention on 11 July 2017, the matters were resolved by way of a plea to the possession charges, while the charges of trafficking and dealing with property were withdrawn. The applicant was fined an aggregate sum of $2000.
24 On 2 March 2017, the applicant was charged with possessing a prescribed precursor chemical (not less than the prescribed quantity), trafficking methylamphetamine and possession of methylamphetamine. Those charges arose out of an incident on 2 September 2015, where he was observed by police putting a bag, later found to contain a chemical precursor, on a co-offender's car back seat. Forensic analysis of the substances seized has identified one of the items as consisting of 1.4 kilograms of Iodine, and approximately four grams of methylamphetamine. The lapse of time between the execution of the search warrant and the applicant being charged is said to have been because of delays with forensic analysis and a period of extended leave on the part of the informant.
25 Mr Maidment SC, who appeared for the applicant, acknowledged correctly that his client had to show cause why he should be granted bail. He also acknowledged that, unlike Youssif Tawfik, the applicant bore the onus of satisfying the Court that he did not pose an unacceptable risk of failing to answer bail, of committing further offences, or endangering the safety and welfare of members of the public.
26 In support of the application, Mr Maidment submitted that:
27 In addition, the applicant indicated during the course of argument, through Mr Maidment, that he would be prepared to be fitted with an electronic ankle monitoring device of the same kind that was the subject of evidence in the matter of Tawfik, which, as I have said, was heard together with this application.
28 The police, in opposing bail, submitted first that the applicant had not shown cause. Secondly, they submitted that he had not demonstrated that he did not pose an unacceptable risk when it came to considering whether he was likely to fail to answer bail, commit offences whilst on bail and endanger the safety or welfare of others. They emphasised the following matters:
29 When the applicant was arrested in his hotel room at the Versace Hotel on the Gold Coast at about 6:00 am on the morning of 18 January 2017, police located a sum of approximately $98,000 in cash. He was also in possession of a small quantity of cocaine, as well as an encrypted Blackberry mobile phone. He said, once again somewhat improbably, that he knew nothing about the Blackberry, stating that it was already in the room when he checked in.
30 In addition, the applicant is said to have made a number of material false denials in his record of interview with police. He initially denied ever having gone to Port Fairy. He later admitted to having been on the Lucky Strike, to go tuna fishing. He then claimed he had only gone to Port Fairy twice, first on the Lucky Strike, and only 20 kilometres for tuna fishing. He said that the first time he went out on the Perceive, someone became seasick and the boat was forced to return. He said that the second time he understood they were going to 'Tassie', even though he did not know where 'Tassie' was. He said that they were not fishing but that they had left at 1:00 am because that was 'the time they wanted to go'.
31 The police contend that the applicant has failed to show cause why his detention in custody is not justified. They go on to say that, even if the Court were to be satisfied that he had shown cause, he is an unacceptable risk of: (a) failing to answer bail, (b) committing offences whilst on bail and (c) endangering the safety and welfare of members of the public.
32 I can dispose of (c) relatively briefly. It rests upon the fact that, on 27 September 2016, members of the Homicide Squad executed a search warrant at the applicant's home address. The warrant related to a murder that had been committed the previous day. It seems that the brother of the applicant's de facto had been charged with that murder. During the search, investigators found a witness statement that related to the 2002 murder of the applicant's cousin, arising out of which the applicant had been convicted of interfering with a corpse. Sections of the witness statement relating to the applicant having been in possession of a firearm around the time of the murder in 2002 were highlighted. Police say that they subsequently notified the New South Wales Homicide Squad of what they had found, because they had concerns about the safety of the person who made that witness statement.
33 It would be somewhat speculative, on that evidence alone, to find that the applicant, if released on bail, would endanger the safety and welfare of members of the public.
34 There is far more to be said for the concern expressed by Detective Sward as to the risk posed by the applicant of committing further offences if granted bail. His criminal record is a lengthy one, and there are indications of recent offending.
35 No doubt, that risk could be mitigated to some extent if the applicant were to go into the DayHab Addiction Treatment Centre, as is proposed. Evidence regarding that institution was led before me. Conditions there are such that he would be closely monitored for at least the period of his residence (three months or so). He would also be expected to be drug-free. Of course, he could leave at any time, but an undertaking was proffered to the Court by the manager, Ms Sarah Green, that were he to do so, or breach any of his bail conditions, that fact would immediately be reported to police.
36 It is the likelihood of the applicant committing further offences, in combination with the risk of his failing to answer bail, that seems to me to stand as an insuperable obstacle to his being released on bail.
37 There is powerful evidence to suggest the applicant was, as the police contend, a key organiser within the Barada syndicate. The listening device recordings speak for themselves. They seem to me to be particularly incriminating and, I think, a jury may well find them so. It will be difficult for the applicant to provide a plausible explanation for his movements, as observed by police, and for his involvement in the recorded conversations. In particular, the applicant's participation in a discussion about individuals in Sydney having been 'selling the product before it arrived' and 'one of them being tapped', as well as the references in that discussion to the sentences imposed upon those involved in drug dealing in New South Wales, are particularly damaging.
38 I do not consider the applicant's willingness to undergo electronic monitoring by way of ankle bracelet as sufficient to discharge the onus that rests upon him to show that he is not an unacceptable risk of failing to meet his bail. My reasons for that conclusion are the same as those expressed in my judgment in the matter of Tawfik.
39 Accordingly, given that the applicant has the onus of satisfying the Court that he is not an unacceptable risk with regard to both absconding and committing further offences, and given that he has not discharged that onus, I would refuse bail.
[2] Re Tawfik [2017] VSC 405 ('Tawfik').