Snounou v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2019-07-12|Before: Leeming JA, Hulme J, Davies J

Judgment

LEEMING JA: My reasons for making orders at the conclusion of the hearing dismissing the release application are as stated by Davies J.
R A HULME J: I agreed with the order made by the Court on 12 July 2019 for the reasons provided by Davies J.
DAVIES J: On 12 July 2019 the Court dismissed a bail release application made by the applicant, Michael Snounou, and said that reasons would be provided at a later time. These are my reasons for joining in the order of the Court.
The applicant has been charged with the following offences:
Twenty eight counts of possession of a precursor, namely, iodine, with intent to manufacture a prohibited drug, namely methamphetamine, contrary to s 24A of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is ten years' imprisonment (Counts 1, 2 and 7 to 32).
One count of importing a commercial quantity of a border controlled drug, namely Gamma-Butyrolactone (GBL) contrary to s 307.1(1) of the Criminal Code 1995 (Cth). The maximum penalty for this offence is life imprisonment (Count 5).
One count of importing a border controlled precursor, namely benzyl cyanide contrary to s 307.13(1) of the Criminal Code 1995. The maximum penalty for this offence is seven years' imprisonment (Count 6).
One count of possession of a precursor, namely hypophosphorous acid, with intent to manufacture a prohibited drug, namely methamphetamine, contrary to s 24A Drug Misuse and Trafficking Act. The maximum penalty for this offence is ten years' imprisonment (Count 33).
The offences are alleged to have taken place between September 2011 and June 2018. The most recent offence (which post-dates the applicant's arrest) relates to chemicals subsequently seized from premises linked to him.

Bail applications

The applicant was arrested on 21 February 2018 and has been remanded in custody since that time. He applied for bail on 15 March 2018 at Central Local Court, but the application was refused.
He applied for bail in the Supreme Court on 6 June 2018. Justice Lonergan refused bail on 8 June 2018.
A second application for bail was made in the Supreme Court on 21 February 2019. On 12 March 2019 Ierace J refused to grant the applicant bail.
The offence contrary to s 307.1(1) of the Criminal Code is a show cause offence under the Bail Act 2013 (NSW). Both Lonergan J and Ierace J refused the applicant bail on the basis that he had not shown cause why his continued detention was not justified.
The applicant applies pursuant to s 67(1)(e) of the Bail Act on the basis that a bail decision has been made by the Supreme Court. Section 75 of the Bail Act provides that any bail application is to be dealt with as a new hearing and evidence or information may be given in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision.
Although the Court is not reviewing or hearing an appeal from the bail decisions Lonergan J and Ierace J, this Court is entitled to approach the application with a degree of flexibility and may have regard to the reasons of the judges who heard the earlier bail applications: Trinh v R [2016] NSWCCA 110 at [28].

The alleged offending

The facts alleged by the Crown may be briefly stated. The applicant is a director of a company called Cyndan Manufacturing Pty Ltd. Cyndan is a business involved in the sale of commercial and industrial cleaning and associated products. Cyndan came to the attention of police in 2011, following the detection of orders for significant quantities of hypophosphorous acid and iodine, both of which can be used to manufacture methamphetamine.
Cyndan has ordered the following amounts of iodine: • In 2011: 350kg • In 2012: 400kg • In 2013: 2,100kg • In 2014: 3,150kg • In 2015: 3,000kg • In 2016: 1,000kg • In 2017: 1,000kg
The Department of Immigration and Border Protection has also detected importations by Cyndan where the item imported has an illicit application: • On 25 June 2017, a 225kg consignment of benzyl cyanide was detected. It was addressed to "Mike" and mislabelled "cleaning agent". Benzyl cyanide can be used in the manufacture of methamphetamine. • On 15 December 2017, a 190kg consignment of GBL was detected. The consignment was addressed to Caan Phillips (apparently the CEO of Cyndan) and mislabelled "essence aroma". GBL is a prohibited drug under the Drug Misuse and Trafficking Act. It is also a border controlled drug pursuant to schedule 4, item 91 of the Criminal Code Regulations 2002. A commercial quantity is 1 kilogram. An end user declaration was submitted by the applicant. He was listed as the applicant on that declaration.
Surveillance showed that quantities of iodine received by Cyndan were placed into white buckets and taken to various locations. Some of those buckets were moved to a location in Rhodes and subsequently to South Granville where they were loaded onto a truck driven by one Brian Farrugia. On a later occasion Mr Farrugia was stopped driving a vehicle containing 11kgs of methamphetamine.
At various times police have found containers containing iodine at various locations including places where methamphetamine and drug apparatus were found. Serial numbers recorded on the iodine packaging in each case indicated that the containers seized were containers that had been supplied to Cyndan or were buckets into which the iodine had been placed by Cyndan employees.
When a search warrant was executed at the home address of the applicant, the end user declaration for 4-hydroxybutanoic acid lactone was found. Evidence was also found linking the applicant to the importation of the benzyl cyanide.
At the time of the bail applications before Lonergan J and Ierace J, the applicant had been charged with three counts of possession of a precursor being iodine and two counts under the Commonwealth Criminal Code of importing border controlled substances.
Since the application to Ierace J in February 2019, an additional 28 charges under s 24A of the Drug Misuse and Trafficking Act have been laid and two earlier ones were withdrawn. Count 3, now withdrawn, was a rolled-up charge and has been replaced with Counts 7 to 32. There was an issue concerning the weight of the substance charged in Count 4, and that has been replaced with Count 6. Count 33 is a new and additional charge since the application to Ireace J.
The applicant was represented by counsel at the earlier applications but appeared for himself on the present application. It is apparent, however, from his written submissions that he has received legal assistance in preparing those submissions. He informed the Court that he retains solicitors for his defence of the charges.

Show cause

It is necessary, first, to consider whether the applicant shows cause in relation to Count 5. If he does, it will then be necessary to consider bail concerns in respect of all of the offences charged.
The applicant appears to put his show cause application on a combination of factors. He relies on what he says are the weaknesses in the Crown case, the likely delay in finalising the proceedings, and the difficulties he has in prison in terms of being able to review the material in the Crown brief. The submissions also faintly suggest that there is a need for him to be out of custody to support his family.

Strength of the Crown case

An important consideration in any show cause application is the strength of the Crown case.
The documents concerned with the importation of the GBL are these:
There is a permit to import GBL in a quantity of 12 x 25kg packs granted to Sigma-Aldrich Pty Ltd at Castle Hill. The permit required that the goods must be imported on or after 10 November 2017 and before 31 December 2017.
There is an end user declaration dated 12 January 2018 addressed to Sigma-Aldrich signed by the applicant on 15 January 2018. The declaration said the product was required for two applications as follows: 1. To determine Gamma-Butryolactone efficacy in removing cured cyanoacrylate. … 2. To be used as an intermediate in the manufacture of pyrrolidones.
There were purchase orders from Cyndan to Sigma-Aldrich dated 25 September 2017 for 12 x 25 kilogram packs of hydroxybutanoic acid lactone, 11 January 2018 for 12 x 25 kilogram packs of the same product, 15 January 2018 for 40 x 25 kilogram packs of the same product, and 13 February 2018 for 60 x 25 kilogram packs of the same product. All of those orders fell outside the period for which Sigma-Aldrich was permitted to import the drug, and many exceeded the quantity permitted to be imported. It appears that hydroxybutanoic acid lactone is a synonym for GBL.
There is an affidavit from Jacqueline Engdahl, a compliance specialist at Sigma-Aldrich. She says that her role includes obtaining documentation from customers where required for regulated products. In relation to the drug concerned, Ms Engdahl says: It is not a chemical commonly sold in large quantities to industry. We don't sell a lot of this product, research customers such as universities may order 25 grams to 500 grams, however some Flavours and Fragrance companies have purchased packages of 10 or 25 kilograms. These orders are referred to State Police for review.
Ms Engdahl referred to receiving an end user declaration from Cyndan dated 10 October 2017 in respect of an amount of 8 x 25 kilogram containers of GBL. The end usage was identical to what appears in the January 2018 end user declaration. That end-user declaration was not available at the hearing.
A document was found at the applicant's house when a search warrant was executed. The following (inter alia) was written on it: Benzo 50 x 198 = 9900 - 5000 = 4900 300L GBL x 200 = 60,000 1000L GBL x 200 = 200,000
It appears from the documents referred to above that Cyndan did not in fact import the GBL. Rather, Sigma-Aldritch imported it under its permit, whether because of the specific purchase orders from Cyndan or otherwise.
The show cause offence with which the applicant is charged is an offence contrary to 307.1(1) of the Criminal Code as follows: 307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for life or 7,500 penalty units, or both. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c).
The definition of "import" is found in s 300.2 as follows: import, in relation to a substance, means import the substance into Australia and includes: (a) bring the substance into Australia; and (b) deal with the substance in connection with its importation.
The Court sought to understand from the Crown at the hearing how the offence was constituted, particularly having regard to the fact that the documents suggested that the importer was Sigma-Aldrich, and that Cyndan had simply placed orders for GBL with Sigma-Aldrich. Counsel for the Crown ultimately relied on what she called the "extended definition" of "import", which would extend to the movement of the drugs until they reached their intended destination. That was, no doubt, submitted in reliance on paragraph (b) of the definition.
The difficulty for the Crown on the present application was that the Court only had scant evidence of the movement of the imported substance after it arrived and of the acts performed by the applicant that would be within the concept of "deal with the substance in connection with its importation". The end-user declaration was dated one month after the GBL was detected and seized.
The seized hand-written document did not inexorably point to profit being made from the sale of GBL. There was, in any event, a factual dispute about whose document it was, with the applicant saying somewhat confusingly that the document had been tested for fingerprints and that it was found not be his handwriting. There was, as the Crown accepted, no evidence on the application about whether Cyndan legitimately used GBL in the manufacture of its products, although the Crown asserted that the purposes stated on the end-user declaration(s) were lies.
Whilst it may be the case, as the Crown submitted, that there was too much material to be included in the Crown papers on the application, the Court can only assess the strength of the Crown case on the material put forward by the parties. Even having regard to the provisions of s 31 of the Bail Act, it cannot be said that the Crown case on Count 5 is a strong one on the material available.

Ability to prepare for trial

An affidavit from the applicant's solicitor sworn 14 February 2019 indicates that there is a large amount of electronic material in the brief. There was said to be 18 discs and two USBs which had over 440 videos. There is also CCR material, telephone intercepts and Excel documents of Cyndan sales. Ms Eldridge set out in that affidavit the difficulties that the applicant had encountered to that time in being able to view the electronic material in the brief because of the shortage of computer access whilst he is in custody.
In response to an enquiry from R A Hulme J at the hearing of the present application, counsel for the Crown said that she was instructed that it was possible for the New South Wales Police to provide the applicant with a laptop with the material to be viewed.
The ability of an applicant to be able to prepare properly for trial in conjunction with his lawyers is a significant consideration in determining whether an accused person is able to receive a fair trial. A failure by the authorities to provide facilities such as a laptop or a computer to an offender may result in the situation where there is little alternative but to grant that offender bail: Shalala v R [2012] NSWSC 351 at [19]-[22].
In the light of the statement made by the Crown concerning the provision of a laptop to the applicant, the issue of proper preparation for the trial does not currently arise.

Delay until trial

At the outset of the hearing, counsel for the Crown said that enquiries had been made with the District Court on the previous day about when it was likely that the trial would be heard. The enquiry was made on the basis of a committal hearing which is listed for October 2019. The Crown indicated that the District Court had said that a likely trial date would be July 2020. A trial in about the middle of 2020 was the estimate given at the hearings before Lonergan J and Ierace J.
Justice Lonergan considered that the Crown's case was circumstantial but not weak. However, her Honour did not consider separately the strength of the case on Count 5. Her Honour held that cause was not shown despite the delay until trial.
Justice Ierace appeared to consider that Count 5 was one of four charges in respect of which the Crown case was a strong one, but his Honour did not consider the strength of the case for Count 5 separately. His Honour also appeared to accept that the delays in the case were not uncommon for cases of this type.
The applicant was arrested and went into custody on 21 February 2018. In my opinion, whilst holding a person in custody for two and a half years might be considered acceptable for this type of matter where there was a strong Crown case, I do not consider it acceptable on the strength of the Crown case assessed on the material before the Court on the present application.
In my opinion, the applicant shows cause why his continued detention is not justified.
However, it is necessary to consider bail concerns.

Bail concerns

When considering the issue of bail concerns it is necessary, first, to have regard to the strength of the Crown case in relation to all of the counts charged. In relation to the 28 counts involving the possession of the precursor iodine, the applicant drew the Court's attention to the conviction of another director of Cyndan, Mr Sami Raheb, for manufacturing drugs at the Cyndan premises. It was suggested that the imported iodine relevant to those counts was used by Mr Raheb rather than the applicant.
The receipt of the iodine is not answered by the charging of Mr Raheb. The facts disclose that in 2015 3,000kgs of iodine was received by the company, and in each of 2016 and 2017 1,000kgs was received. In any event, Mr Raheb was not charged with manufacturing methamphetamine but with manufacturing MDMA. Moreover, there was no evidence that Mr Raheb was using iodine in that process.
Further, the information in the statement of facts set out at [15] and [16] above when taken with the evidence that iodine is not a product used in any of Cyndan's chemicals, provides a proper basis for concluding that the Crown case is a strong one in relation to those counts. The evidence concerning count 33 relating to the possession of hypophosphorous acid also supports a strong Crown case when regard is had to the telephone intercepts involving the applicant's enquiries about the shipment of that product, taken together with the evidence that hypophosphorous acid is also a substance not used in Cyndan's products.
Those assessments of the strength of the Crown case are a relevant consideration when regard is had to the length of time the applicant is likely to spend in custody if bail is refused. There can be little doubt that, if convicted, the applicant will receive a lengthy custodial sentence, certainly one exceeding any remand period on the basis of a trial commencing in the middle of 2020.
The Crown submitted that the likelihood of a conviction on a number of the counts involving precursors with the prospect of a lengthy custodial sentence gives rise to three bail concerns, namely, that the applicant will fail to appear at any proceedings for the offences, that he may interfere with witnesses, and that he will continue to commit serious offences.
The second of those concerns is said to arise because it appears from the material that employees of Cyndan were involved in the conduct that led to the possession of the precursors. However, there is no evidence to suggest any attempts by the applicant or third parties to contact employees, former employees or other witnesses. This concern is not an unacceptable one.
The applicant's criminal record gives rise to a concern that he will continue to commit further serious offences. His record shows that he has previously been convicted for importing a border controlled drug. Although it may be accepted that the penalty imposed suggested that the offence was in the lower range of seriousness, it was a condition of a three year recognisance that the applicant undertake examination, assessment, therapy, treatment, counselling or urinalysis, suggesting an ongoing drug problem. No evidence was given concerning that matter or what treatment or counselling the applicant had undertaken.
The applicant has also been convicted of possessing or using a prohibited weapon and impermissibly possessing ammunition. The courts are well aware of the link between illegal possession of weapons and involvement in the drug milieu. Those convictions and the lack of evidence about the applicant's ongoing drug issues, when considered with the strength of the Crown case for the offences involving precursors, amount to a serious concern that further serious offences may be committed.
The most significant concern is that the applicant will fail to appear at his trial. That arises not only because of the strength of the Crown case and the likelihood of a significant custodial sentence but by reason of the applicant's family residing in Lebanon, a country with which Australia has no extradition treaty. Although the relationship between the applicant and his wife has broken down, on the evidence of various members of his family, the applicant travelled overseas to see them on a regular basis when they lived in Dubai in the United Arab Emirates before they relocated to Lebanon. The evidence from the applicant's wife suggests that the applicant and his children have a close relationship.
Two matters are put forward by the applicant to deal with this bail concern. The first is offers of security from his brother for $150,000, from an aunt for $600,000, and from another aunt and uncle for between $800,000 and $1,000,000. The second matter is that there is an offer by the applicant to be subject to electronic monitoring.
The extent of the monitoring and how it operates is set out in an affidavit from Philip Schluter affirmed 1 June 2018. Mr Schluter points out that if a violation event occurs, the police officer charged with monitoring will receive an SMS or email to their nominated contact details within approximately 20 seconds or so of the central monitoring system receiving the violation notice.
The difficulty is, however, that unlike the position with high risk offenders who are under an extended supervision order, the NSW police force has no policy, capacity or staff to monitor individuals on electronic bail 24 hours a day. The difficulties in that and other regards are set out in an affidavit of Alison Smith sworn 13 February 2019. Further, it is now widely accepted that electronic monitoring is not a fail-safe system. Subject to it being continuously monitored, it can reduce the risk of flight, but the absence of 24 hour monitoring significantly reduces its effectiveness.
The applicant submitted that prior to his arrest he had travelled overseas to visit his family and had always returned to Australia. The significance of that fact is considerably reduced because there is no evidence that the applicant knew or believed that he was under surveillance or was otherwise being targeted in relation to the commission of the offences.
The applicant himself mentioned that he has business connections overseas, but sought to minimise any risk as a result of those connections by submitting that they were business relationships, and that his businesses and ties were based in Australia. He pointed to his strong community ties, financial commitments, employment opportunities with his brother and strong family ties by those who were present at the hearing of the present application.
Although the applicant says that he would never put his family's investments in jeopardy, I do not consider that the offer of security by the family members mitigates the bail concern that he will not appear at the trial given the strength of the Crown case on most of the charges, the likelihood of a substantial custodial sentence and the fact that his family, particularly his children with whom he is very close, reside in Lebanon. Although his wife says that, if the applicant is granted bail she will travel with the children to Australia to see him, she says that she is unemployed and has been entirely dependent upon the applicant. Further, the applicant's brother who has since been supporting the applicant's wife and children says that he is no longer in a position to do that. That heightens the risk that the applicant may attempt to travel to Lebanon to see and be with his family because it is unlikely that they will be able to travel here.
I consider that the risk of non-appearance by the applicant rises to the level of unacceptable concern, and for that reason I considered that the release application should be refused.

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: 09 August 2024

Bail Act 2013(NSW)ss 31, 67, 75

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