Re Application for Bail by Youssif Tawfik [2017] VSC 405 (13 July 2017)

1 The applicant, Youssif Tawfik, was arrested and charged, on 18 January 2017, with having attempted, between 28 October 2016 and 8 December 2016, to import a commercial quantity of a border controlled drug (cocaine). He was subsequently charged, in March 2017, with a number of additional offences, including money laundering and use of false documents. He now seeks bail.

2 In summary, the charges brought against the applicant are as follows:

Attempting to import a commercial quantity of a border controlled drug (cocaine) between 28 October 2016 and 8 December 2016

Dealing with money reasonably suspected as being proceeds of crime (less than $100,000) on 18 January 2017

Dealing with money reasonably suspected as being proceeds of crime (less than $100,000) on 18 January 2017

Dealing with money reasonably suspected as being proceeds of crime (less than $100,000) on 18 January 2017

Knowingly using a false document to the prejudice of another, namely the use of a false driver license to enter into a residential tenancy agreement on 12 December 2014.

Crimes Act 1958 (Vic) s 83A(4)

Knowingly using a false document to the prejudice of another, namely the use of a false Medicare card to enter into a residential tenancy agreement on 12 December 2014.

Crimes Act 1958 (Vic) s 83A(4)

Driving whilst unlicensed between 27 October 2016 and 18 January 2017.

Road Safety Act 1986 s 18(1)(a)

3 It is alleged that the applicant was a 'key organiser' of what the police have termed the 'Operation Barada' syndicate. The object of that syndicate was to facilitate the importation of some 187.9 kilograms of cocaine. This was to be achieved by arranging for a boat to be used to unload the cocaine from a 'mothership' in international waters, and then transport it ashore.

4 According to police, the ten-member crew of the 'mothership' were all connected with the attempted importation. They too have been charged with having attempted to import the cocaine into Australia. Police designated their part of the enterprise 'Operation Trapani'.

5 Pursuant to s 4(1) of the Bail Act 1977, the applicant is prima facie entitled to bail. That is, unless the police establish that there is an 'unacceptable risk' that, if he were to be released on bail, he would fail to surrender himself in answer to his bail, commit an offence whilst on bail, endanger the safety or welfare of members of the public, interfere with witnesses or otherwise obstruct the course of justice.

6 In relation to the applicant, the police have the onus of satisfying the Court that he poses such an unacceptable risk. That is because the applicant has only been charged with attempted importation,[1] rather than with importation itself. As matters stand, the offence of attempted importation does not fall within the definition of a 'serious offence',[2] as contained in s 3 of the Sentencing Act 1991.[3] Accordingly, the applicant is not required to 'show cause' as to why he should be granted bail, still less to demonstrate 'exceptional circumstances'.

7 The applicant and six other co-accused, all of whom are said to have been members of the Operation Barada syndicate, were to face a contested committal in late August 2017. However, I understand that that date has now been vacated. I was also told that the matter had been booked in on an estimate of perhaps between three and five days.

8 The applicant has once previously sought bail in the Magistrates' Court. On 2 March 2017, that application was refused on the basis that he was then considered to be an unacceptable risk of absconding, or committing an offence whilst on bail.

9 Several other members of the Operation Barada syndicate have been granted bail. Others, however, have had their applications refused.

10 The allegations surrounding the attempted importation of the cocaine can be briefly stated. Before doing so, however, I should say that this application for bail was heard together with an application brought by a co-accused, Moshey Youkhana. This was done on the basis that the evidence against each applicant would be considered separately. That is of some significance because, in the affidavit that was relied upon in opposing bail for Moshey Youkhana, there are references to a number of conversations to which the applicant was said to have been a party. Some of those conversations seem, on their face, to be more incriminating, so far as the applicant is concerned, than the specific conversations that form the basis of police opposition to his being granted bail. No explanation has been proffered as to why there is such a disparity. Nonetheless, I have adhered strictly, in my judgment in this matter, to my assurance to counsel that I would consider each application entirely separately, and determine whether to grant bail solely on the evidence specifically admissible in relation to each applicant.

11 On 12 December 2016, a Japanese ex-whaling vessel, the Kaiyo Maru No 8 ('KM 8'), was intercepted by an Australian naval vessel on the high seas, about 1300 kilometres off the coast of Tasmania. On 16 December 2016, that vessel was escorted into Hobart. The entire crew, consisting of nine Chinese nationals and one Singaporean, were arrested and charged.

12 Quite separately, six members of the Barada syndicate, including the applicant, were subsequently arrested. They were charged, on 18 January 2017, with having attempted to import the 187.9 kilograms of cocaine located on board the KM8. The cocaine had been wrapped in bricks weighing about one kilogram each. They were packed into nine hessian sacks found in a storage room on the boat.

13 As previously indicated, some two months later, on 16 March 2017, the applicant was charged with further offences. These involved three charges of money laundering and two of making use of false documents. These charges arose out of various searches that were conducted by police after his arrest.

14 On 31 March 2017, the applicant was served with a brief of evidence. Several additional volumes of the brief of evidence were served on him on 26 May 2017. It is clear, however, that the investigation is still ongoing. The evidence before me makes it clear that there is a great deal more intercept and listening device material to be transcribed, analysed and provided to the defence before this matter can proceed to committal.

15 Operations Barada and Trapani are obviously related investigations. They are being conducted by a joint task force consisting, inter alia, of the Australian Federal Police, the Victorian Police Joint Organised Task Force, the Australian Border Force and the Australian Defence Force. These investigations targeted what police say is a well-organised crime syndicate based in Melbourne, which had been monitored for some months before the KM8 was intercepted in December 2016.

16 Police allege that the plan was for the members of the Barada syndicate to arrange for the purchase of a boat to meet the 'mothership' (the KM8) in international waters, and bring the drugs ashore.

17 It is alleged that those members of the syndicate involved in Operation Barada attempted, on several occasions, to set out to sea. However, by reason of various mishaps, each of three boats that had been acquired to travel out to meet the KM8 and collect the cocaine was rendered unseaworthy and incapable of doing so.

18 The applicant's role was said to be one of considerable significance so far as the Barada syndicate was concerned. He was involved in the actual purchase of at least two of the boats that were acquired, and was also to assist with general planning, logistics and unloading the cocaine once it was ashore.

19 As matters stand, a good deal of the evidence against the applicant consists of listening device material. Most of this relates to conversations that took place between 1 December and 7 December 2016.

20 In an affidavit sworn in opposition to the grant of bail, Federal Agent Paul Wheeler deposed to what he described as three separate attempts at importation.

21 The first was a failed attempt, on 1 December 2016. The applicant is said to have discussed with others, in a Toyota Hilux vehicle, matters such as being worried about the weight, which was a 'few extra hundred kilo', and there being 'no reception out there'.

22 The second was also a failed attempt, this time on 3 December 2016. The applicant was seen to board a small vessel, the Perceive, and to have engaged in conversation with other alleged members of the Barada syndicate. A listening device recorded them as speaking of 'getting 150', and '500 the next job'. There were also references to 'the cops' searching 'it'. Later that same day, the applicant participated in a conversation in which there was talk of 'getting this one through and the next one being easier'.

23 The following day, 4 December 2016, the applicant is said to have discussed with another co-accused being 'ready to go again'. There is talk of someone 'reckoning they have a buyer straight away' for '195 - all of them'. Someone also says they will take 'our share' from that, 'our share' is said to be '20 percent' and that is the 'risk you will get done'.

24 Later that day, there are references to 'millionaires' and 'small time billionaires'. The discussion continues, 'hand balled it onto these guys, these Asians, they have lost millions'. There are other statements along the same lines, including references to being 'arrested', and 'throw[ing] it in the water'.

25 On 6 December 2016, the applicant is heard having discussions with another alleged member of the Barada syndicate. This time there is talk of 'satellite phones' and of 'meeting the Chinese'. Later that day, the applicant and the same individual speak of making sure 'we don't get robbed'. There is also a reference to 'nine bags', and also to 'expecting 184'. The other male says 'if it's less than 184 we can't take it'. According to police, the reference to nine bags in this discussion equates to the eight hessian bags found on board the ship, each with twenty blocks of cocaine, and one other bag with 26 blocks. This makes a total of 186 blocks, with a weight of 187.9 kilograms.

26 On 7 December 2016, in what is described as the 'third attempt', the applicant once again engaged in a conversation about money and risk. He stated that he was 'just broke' and did not want to 'think about money'. He added that, if they could not get the job done, he would be 'hit' for expenses. He also said 'I know it was an accident that fucked us but at this level people just expect the drugs'.

27 The further charges against the applicant relate to some $77,000 in cash that was seized from his vehicle and residential address at the time of his arrest. The charges involving the use of false identity documents concern his having used such documents to obtain a lease under a false name at his Southbank address. The documents in question are various driver licences in several false names.

28 The applicant has prior convictions. However, most of these date back to before 2010 and, although serious and in some cases involving violence, were all dealt with in the Children's Court. For present purposes, these are of limited relevance.

29 Later offending consists mainly of driving offences. In relation to one such offence, there was a failure to answer bail, in July 2013. I was told that the applicant was never dealt with for that breach, and that he was immediately bailed again by police. That was said to signify that the matter was not regarded as having been of any great significance. Apart from that one occasion, there is no other history of not meeting bail.

30 Although the police accept, as they must, that there is a 'presumption of bail' in the applicant's favour, they say that not only does he pose an unacceptable risk of failing to answer bail, but also of endangering the safety and welfare of members of the public.[4]

31 Primarily, the police contend that the applicant poses an unacceptable risk of absconding. They refer, in that regard, to his criminal history and, in particular, his having made use, in recent times, of false driver licences.

32 In short, the police say that the charges against the applicant are serious, and that the case against him appears to be a strong one. They say further that the applicant has previously shown a disregard for court orders, including having once failed to answer bail. They note that, as a child, he had breached various suspended terms of imprisonment and probation orders. They also note that he has repeatedly driven whilst disqualified. They refer to his use of false identity documents, and claim that this means that he has the means to abscond.

33 As to the suggestion, only made in passing, that the applicant poses a threat to the safety of members of the community, that seems to me to be of little substance. It appears to be based on nothing more than the applicant having become involved in a fight in November 2016, in which he is said to have knocked another person out, and then 'legged it'. In addition, it is said that, on 20 November 2016, the applicant told someone, in unspecified circumstances, that he wanted to 'smash some Asians'.

34 None of this even remotely supports the contention that the applicant relevantly poses a danger to the safety and welfare of members of the public, in the sense for which the police apparently contend. I note that it is not contended that he is likely to commit further offences if granted bail, and not suggested that he is likely to interfere with witnesses, or in any way seek to obstruct the ongoing investigation.

35 In reality, the police objection to bail rests entirely upon the proposition that the applicant poses an unacceptable risk of absconding. In that regard, it is noted the value of the cocaine, said to have been the subject of the alleged attempted importation, was some $60 million. The seriousness, therefore, of the charge brought cannot be gainsaid.

36 In addition, as has been noted, the police claim that the case against the applicant is a strong one. That, of itself, is said to provide a powerful incentive for him to leave the country.

37 I accept Federal Agent Wheeler's assessment of the evidence against the applicant as apparently strong. Nonetheless, it is always difficult to be definitive about matters such as this. The case against the applicant is based largely upon listening device and other intercepted material, some of which the police themselves concede is of relatively poor quality. There will undoubtedly be fertile room for dispute as to what is actually on the recordings, and by whom various statements were made.

38 I was presented with a clear example of that, when the unofficial, and unchecked, transcript that has thus far been prepared of one conversation attributes to one participant the statement that he was 'worried about the dope'. Yet, upon closer consideration, it is now accepted that what was actually said by that person was that he was worried about the 'boat'.

39 In addition, as Mr Richter QC for the applicant pointed out, the prosecution will have to establish, at trial, that the various discussions to which the applicant was party were referable to a border controlled drug, and not, for example, a precursor such as pseudoephedrine. All that is a matter for another day.

40 The applicant submits that the police have failed to establish that he is an 'unacceptable risk' of absconding. He says, correctly, that the onus rests upon those opposing bail to rebut the presumption in favour of bail.

41 The applicant says that if bail is granted he is willing to abide by the most stringent reporting and curfew conditions. He says that he will reside with his mother and sister at their home in Ashwood. He says that he will report daily to the police and accept a curfew between the hours of 9:00 pm and 6:00 am. He will, of course, accept all other usual conditions of bail, including the surrender of any passport, and not to attend any points of international departure. He will agree to attend psychological counselling and to engage with the Islamic Council of Victoria through the Muslim Connect Program, and follow all lawful directions of his assigned case manager or nominee. He will also agree not to possess a mobile telephone.

42 The applicant points to the fact that his parents and two brothers, as well as his sister, provide strong family support. The members of his family are all of good character. None of them has any prior convictions.

43 The police do not take issue with that assessment.

44 The applicant claims that he has been drug free since 2012. He is in a position to put forward three substantial sureties in an amount totalling $500,000. Mr Richter observed that his mother has such confidence in him not absconding that she is prepared to put up, effectively, her life savings.

45 The applicant has available to him employment with one of his brothers. Another brother is prepared to drive him to and from that employment each day. He has strong ties to Australia, having been born in this country. His mother was born here as well. His father is an Australian citizen, albeit with dual Egyptian citizenship.

46 The applicant is presently 25 years of age. That is said, by Mr Richter, to be a matter of some significance, given the fact that he is facing a lengthy term of imprisonment if convicted. The temptation to abscond would be greater, so it is said, if he were significantly older.

47 The applicant claims to have been involved in an ongoing relationship. He says that he has returned to the practice of his Islamic faith. However, police say that the applicant has been seen to consume alcohol and, as recently as November 2016, to have attended strip clubs.

48 The applicant also seeks to support his application for bail by reference to certain evidence led before me from Mr Phillip Schluter, the Business Development Manager of 3M Australia Pty Ltd, as to the availability of electronic monitoring whilst on bail. He says that he is willing to submit himself to, and pay for, such monitoring. The cost is not insubstantial, some $23,000 plus GST for the first 12 months.

49 The applicant refers, in that regard, to various New South Wales cases in which bail has been granted subject to such electronic monitoring. He says that, in his case, he would be content to be restricted to the metropolitan region of Melbourne, and prohibited from attending within one kilometre of any international point of departure.

50 Mr Schluter gave evidence of the efficacy of what he described as the 'One-Piece GPS Offender Tracking System'. This 'ankle bracelet', as it may be described, has a battery life of more than 30 hours, and is said to be completely tamper resistant, in the sense that if the device were removed, an alarm would be triggered.

51 The technology is sophisticated and may, in some cases, provide an additional level of comfort to a judge who is considering bail, but vacillating as to whether it should be granted.

52 I note that the use of an electronic bracelet as a method of ensuring compliance with bail was considered by the Court of Appeal in Director of Public Prosecutions (Cth) v Barbaro.[5] In that case, the appellant had been granted bail by a magistrate who concluded that, having regard to all of the circumstances, he did not represent an unacceptable risk of flight. On appeal by the Commonwealth Director of Public Prosecutions to the Trial Division, the decision to grant bail was overturned. On further appeal to the Court of Appeal, the Trial Division ruling was upheld.

53 Unlike the present case, Barbaro concerned s 4(2)(aa) of the Bail Act whereby the Court must refuse an application for bail by a person charged with one of the 'serious offences' there specified unless satisfied that 'exceptional circumstances' existed. In Barbaro, the Director conceded that exceptional circumstances existed, given the two year delay that would ensue in bringing the matter to trial after the appellant was charged. The question then became whether Barbaro posed an unacceptable risk.

54 In considering whether there was an unacceptable risk in that case, it should be noted that the evidence suggested that virtually all of the limbs of such risk, set out in s 4(2)(d) of the Bail Act, were invoked.

55 In dealing with the electronic monitoring mechanism then available, the Court of Appeal noted that the magistrate had been much influenced by the additional safeguard that it was said to have afforded. As in the present case, evidence had been given by a representative of the company responsible for the technology as it then stood. The Director had submitted to the magistrate that the introduction of the bracelet made no difference to the assessment of risk. He had noted that the sending of a SMS to a designated police officer at 3:00 am, if that occurred, might be useless in terms of preventing Barbaro from absconding.

56 The Court of Appeal, not surprisingly concluded that there were powerful factors pointing to a substantial risk of flight, namely: incentive, capacity and disposition. The existence of the monitoring technology was, in that regard, given relatively short shrift.

57 For my part, I am by no means convinced that the 3M device adds significantly to the applicant's case for bail. I can see all sorts of reasons why the police would not be attracted to the notion that the attachment of such a device, even with its anti-tampering technology, would significantly reduce the risk of absconding. I also think it imposes an unnecessary and inappropriate burden upon police to have to rely upon an instant response to what may turn out to be a 'nuisance alert', of which there may well be a number, given the sensitivity of these devices. My decision with regard to bail does not turn upon the availability of this device, or the applicant's willingness to use it.

58 In the end, having given this matter careful consideration, I am of the view that the police have not discharged the onus of satisfying me that the applicant poses an unacceptable risk of absconding. I think that, with the imposition of appropriately stringent bail conditions, there is little real risk that he will abscond.

59 I am under no illusion as to the potential strength of the prosecution case. I have taken into account the gravity of the charges that the applicant is facing. I have had regard to his previous criminal record and to his alleged use of false driver licences.

60 At the same time, the applicant is fully entitled to the presumption of bail. None of the matters upon which the police rely, whether individually or in combination, are sufficient to rebut that presumption.

61 I propose to impose the most stringent of conditions upon the grant of bail. I will not, however, impose a requirement that the applicant wear an electronic monitoring device. I consider that frequent reporting to the police, the imposition of a curfew, and the requirement of substantial sureties will meet the needs of this case.

62 I should add that I have taken into account, to the limited degree permitted by the judgment of the Court of Appeal in Barbaro,[6] that this matter is not likely to come to trial until some time in 2019. By then, the applicant will have been in custody for more than two years.

63 I will hear the parties further as to the conditions upon which bail should be granted.

[1] Under ss 11.1 and 307.1 of the Criminal Code Act 1995 ('Criminal Code').

[2] I was informed by counsel for the Director of Public Prosecutions (Cth) during the course of the hearing that the Bail Act has recently been amended to include an offence under s 11.1 of the Criminal Code to require 'exceptional circumstances' before bail can be granted. However, the new provision has not yet been proclaimed. It is perhaps fortunate for the applicant that it is not applicable to the present application before me.

[3] Section 3 of the Bail Act adopts the definition of a 'serious offence', as contained in the Sentencing Act, for the purposes of the 'show cause' requirements in s 4(4).

[4] They invoke, therefore, two of the four limbs of 'unacceptable risk' contained within s 4(2)(d) of the Bail Act.

[5] [2009] VSCA 26; (2009) 20 VR 717 ('Barbaro').

[6] Ibid [41]. See also Mokbel v DPP (No 3) [2002] VSC 393; (2002) 133 A Crim R 141, 143.