Trinh v R

Court of Criminal Appeal (NSW)|2016-04-08|Before: Basten JA, McCallum J, Davies J, Schmidt J

Solicitors: Hanna Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/257305

Judgment

BASTEN JA: On 23 December 2015 the applicant, Mr Trinh, filed a "release application", seeking release on bail, following his arrest on 22 July 2015 and charging with numerous serious indictable offences involving computer fraud. On 29 July 2015 he was before the Burwood Local Court and applied for release on bail. The application was refused.
On a date which is not apparent from the material before this Court, a release application was lodged with the Supreme Court. The application was heard by Schmidt J on 6 November 2015 and was refused, the judgment being delivered on 9 November 2015. On 23 December 2015 the applicant lodged the release application presently before this Court.
The application for release on bail must be dealt with pursuant to the Bail Act 2013 (NSW). Any general law power to grant bail was abolished by its predecessor, the Bail Act 1978 (NSW), s 14 and s 62. The repeal of that Act did not revive any general power to grant bail. [1]

Jurisdiction and powers of Court of Criminal Appeal

The powers to hear bail applications are conferred under Pt 6 of the Bail Act. Part 6 contains four divisions, namely "Interpretation" (Div 1), "General powers" (Div 2), "Additional powers" (Div 3) and "Restrictions on powers" (Div 4). It is convenient to deal first with the provisions in Divs 1, 2 and 4. The general power to hear a bail application is conferred upon the court in which the substantive proceedings for the offence, which does not include proceedings on an application for bail, is to be heard. [2] There is also a general power to hear a bail application if the court has convicted the person and if there is an appeal against conviction or sentence in another court, but the person has not yet made a first appearance before the appellate court. None of these provisions confers power on this Court in this case, the applicant being on remand awaiting trial. The powers of this Court therefore depend upon the provisions of Div 3, "Additional powers". The scheme of that Division is, subject to specific exceptions, to create jurisdiction on an hierarchical basis.
Variation decisions are dealt with separately from release decisions (seeking a grant of bail) and detention decisions (seeking a return of an accused person to custody) and may be put to one side. (Variation decisions involve applications to vary the terms on which bail has been granted.)
A Local Court may hear a bail application if a bail decision has already been made by an authorised justice or police officer. [3] The District Court has very limited additional powers, that is powers in relation to persons other than those who have proceedings for the offence pending in the District Court. [4]
The powers specific to the Supreme Court are dealt with separately as to release applications and detention applications. Relevantly for present purposes, the Supreme Court may hear a release application if bail has been refused by another court, an authorised justice or a police officer. In the present case, the jurisdiction exercised by Schmidt J arose because the applicant had been refused bail in the Burwood Local Court.
Before turning to the powers of this Court, it is convenient to note the prohibition on multiple applications for release or detention applications. Both kinds of application are dealt with in s 74, which with respect to release applications reads as follows: 74 Multiple release or detention applications to same court not permitted (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. … (3) For the purposes of this section, the grounds for a further release application are: (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence.
It follows that, subject to s 74(3), no further application for release could be made by the applicant to a single judge in the Common Law Division. For that reason, he has invoked the powers of this Court which are set out in s 67. 67 Powers specific to Court of Criminal Appeal (1) The Court of Criminal Appeal may hear a bail application for an offence if: (a) the Court has ordered a new trial and the new trial has not commenced, or (b) the Court has made an order under section 8A(1) of the Criminal Appeal Act 1912 and the person is before the Court, or (c) the Court has directed a stay of execution of a conviction and the stay is in force, or (d) an appeal from the Court is pending in the High Court, or (e) a bail decision has been made by the Land and Environment Court, the Industrial Court or the Supreme Court. (2) Despite subsection (1)(e), a Judge of the Court of Criminal Appeal sitting alone cannot hear a bail application if a bail decision has been made by the Supreme Court (however constituted) unless the rules made under the Supreme Court Act 1970 permit the Judge to do so.
The reason for conferring jurisdiction on this Court in relation to paragraphs (a)-(d) of subs 67(1) is understandable. The present case, however, falls only within par (e), satisfying that condition because "a bail decision has been made by … the Supreme Court." Accordingly, a condition to invoke the powers of this Court has been satisfied. Three questions then arise: namely, (a) the nature of the hearing which this Court is empowered to conduct, (b) whether a court, in the exercise of the additional powers which state that it "may hear" a bail application for an offence, may also decline to hear the application and (c) if there is a discretion to decline to hear the application, on what grounds it may be exercised. These questions are closely related.

Power to decline to hear application

The first issue of construction is whether s 67 (no doubt in common with other sections in Div 3 conferring additional powers) conferred a power coupled with an implied duty to exercise the power, once properly engaged. The Interpretation Act 1987 (NSW), s 9(1) states that "the word 'may', if used to confer a power, indicates that the power may be exercised or not, at discretion." However, that meaning may give way to an inconsistent textual or contextual indication. [5] Some support for the existence of an implied duty may be derived from s 75 which reads as follows: 75 Fresh application to be dealt with as new hearing Any bail application heard by a court or authorised justice 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. (Emphasis added.)
This question does not seem to have received reasoned consideration in this Court. On one view, that is curious, as ss 67 and 75 (unlike some other provisions in the Bail Act) have been unamended since the commencement of the Act on 1 December 2013. On the other hand, so far, there appear to have been relatively few applications to this Court for bail following refusal by a judge of the Supreme Court. (The number of cases which might come via the Land and Environment Court or the Industrial Court would be insignificant.) Beech-Jones J expressed disquiet in Director of Public Prosecutions (NSW) v Mawad [6] that the Bail Act requires that this Court "must conduct a fresh review even though the question of bail will ordinarily have already been considered by at least two levels of the judicial system." However, Beech-Jones J did not consider what precisely was required by s 75, an issue to which it will be necessary to return shortly.
Whether it is correct to say that the Court "must conduct" a hearing raises squarely the issue of statutory construction. Section 75 should be considered in its statutory context; it appears in Pt 7 of the Bail Act, which covers ss 71-76.
Section 72 uses language which is in contrast to that used in the sections conferring powers on the courts. It expressly imposes an obligation to hear a bail application, where it operates: 72 Application by accused person must be heard on first appearance (1) A court or authorised justice must hear any release application or variation application made by an accused person on a first appearance in substantive proceedings for an offence. (2) The court or authorised justice is not to decline to hear the application because notice of the application has not been given to the prosecutor in the proceedings, but may adjourn the hearing, to enable notice to be given, if the court or authorised justice considers it necessary in the interests of justice.
Section 72(1) does not, of course, apply in the present case: the applicant does not appear before this Court in the substantive proceedings for an offence, let alone by way of a first appearance in such proceedings.
Section 73 provides discretionary grounds to refuse to hear a bail application in proceedings other than those referred to in s 72. 73 Discretionary grounds to refuse to hear bail application (1) A court may refuse to hear a bail application if satisfied that: (a) the application is frivolous or vexatious, or (b) the application is without substance or otherwise has no reasonable prospect of success. (2) A court (other than the Local Court) may refuse to hear a bail application if satisfied that the application could be dealt with as a variation application by the Local Court or an authorised justice. (3) This section does not apply to a release application or a variation application made by an accused person on a first appearance in substantive proceedings for the offence.
It is clear, therefore, that s 67 does not confer a power coupled with a duty in unqualified terms. One question, raised by s 73, is whether that provision purports to be an exclusive identification of the circumstances in which the court may refuse to hear an application. Although that is a possible construction, there are three reasons to think that it may not be the appropriate construction in the context. First, the grounds themselves involve evaluative concepts and are not defined with precision. Secondly, because of the limited circumstances in which a second or further application can be made, following a refusal of a release application, there may be a benefit to the accused person in allowing the court a reasonably broad power to decline to hear an application. Thirdly, both a police officer (pursuant to s 44) and a court (pursuant to s 56) may "defer" making a bail decision if the accused person is intoxicated. These provisions also provide grounds for thinking that a discretionary power to decline to hear an application should not be narrowly defined.
Turning to s 67, other considerations are relevant. These include the right of an accused person to make a further release application in the circumstances identified in s 74(3). This being essentially an appellate court, without any other freestanding original jurisdiction, it may be inferred that it should have a power to decline to hear a matter which could properly be dealt with by a single judge. To the extent that a statute seeks to confer original jurisdiction which is not secondary to the Court's appellate jurisdiction, it should be inferred that the Court has reasonable powers to avoid undue interference with the proper exercise of its primary appellate function.
Thus, one ground upon which the Court might decline to hear an application is where the accused person was not legally represented below, so that he or she would be able to make a further application once legal representation was obtained. [7] Similarly, if the application was made by a child, or if it were apparent to the Court that material information sought to be relied on had not been presented at the earlier hearing, or that circumstances were likely to have changed since the earlier application (all factors which might give rise to a further application in the court below) there might well be occasions when the Court could properly save the time which would otherwise be devoted to a hearing.
The proper construction of s 67(1) is that the power it confers on this Court to hear a bail application is discretionary. With respect to the circumstances set out in paragraphs (a)-(d), it may well be that, in practical terms, it can be treated as a power coupled with a duty to exercise the power, although subject to the discretionary grounds identified in s 73. With respect to par (e), it should be accepted that the discretion to decline to exercise the power is a broader one. That is for four reasons. First, where the Act seeks to be prescriptive (as in s 72) or restrictive (as in s 68) it has used mandatory language; in s 67(1) it does not. Secondly, the power is, in any event, subject to the express power to refuse to hear an application (s 73). Thirdly, the express discretion to decline a hearing in s 73 is identified in terms which invite evaluative judgment and defy precise constraints. Fourthly, the proper construction of the Act should take into account the nature and function of this Court's jurisdiction and thus the circumstances in which a hearing can properly be declined.
Finally, it should be noted that s 75 provides no basis for a contrary conclusion; it does not mandate the holding of a hearing, but the nature of the hearing. It is convenient to turn to that topic, because it is relevant to the grounds on which the Court can properly decline to conduct a hearing into a release application.

Nature of hearing

It is not entirely clear how broadly s 75 is intended to operate. It follows immediately upon the provision for a further application to the same court and clearly applies only in circumstances in which there has been an earlier bail decision. It is possible that it was intended to apply only to a further bail application in the same court, rather than to applications within the hierarchy identified in the earlier division conferring "additional powers". On the other hand, it may apply in both situations. Clearly it does not apply to a first application in a court. The precise scope of s 75 need not be resolved; it is sufficient to assume that it would apply to an application in the Court.
Apart from the use of the phrase "a fresh review" in Mawad, statements may be found in several cases, the first being R v Kugor, that an application is to be heard by this Court "de novo". [8] In Director of Public Prosecutions (NSW) v Campbell [9] R A Hulme J was more explicit, stating: "This is not a review of his Honour's decision; it is a de novo (or fresh) consideration of the question of bail …."
Similar language was used by the Court in Director of Public Prosecutions (NSW) v Brooks, [10] namely that the application "is to be determined by this Court afresh; that is, it is not an appeal from, or a review of, the decision of [the judge in the Common Law Division]."
In each case, reference was made to Kugor, and, as in that case, the proposition appears to have been unchallenged and unexplored. Indeed, in Kugor the statement was said to be "common ground"; furthermore, Kugor involved a detention application by the Director, not a release application.
The language of s 75 can give rise to difficulties in its application. To say that evidence or information (the rules of evidence do not apply) may be given "in addition to, or in substitution for," the evidence at the earlier hearing, allows for the possibility of various hybrid forms of hearing. As in the present case, it is unlikely that the evidence relied upon at the earlier hearing will be discarded entirely. It is also quite likely that, as in this case, oral evidence may be called at the earlier hearing and witnesses cross-examined, but no oral evidence called at the later hearing.
Section 75 is, in form, similar to (though not identical with) s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), providing a form of appeal by way of new hearing from the Children's Court to the District Court in care proceedings and ss 18-20 of the Crimes (Appeal and Review) Act 2001 (NSW). Although the precise language varies, similar difficulties have arisen with their practical operation. These were discussed recently in the Court of Appeal in AG v Director of Public Prosecutions (NSW). [11] At least in a case where oral evidence has been called at an earlier hearing, it seems inevitable that this Court should be entitled to take account of findings, particularly as to the credibility of witnesses, made by the judge in the earlier proceeding. That suggests that the form of "new hearing" is to be approached with a degree of flexibility, depending upon the circumstances presented in the particular case. Indeed, the applicant accepted that, in the present circumstances, the Court would be entitled to have regard to the reasons of the primary judge.

Grounds for exercising discretion to refuse to hear an application

Accepting that this Court has a discretionary power to refuse to hear an application for bail, it is necessary to identify the grounds upon which that power may be exercised. However, that task should be approached with caution. First, what follows is directed to the exercise of the Court's powers under s 67(1)(e) and not other provisions; secondly, it is directed to the powers with respect to a release application and not any other application. It is also proper to note that the manner of exercise of the discretion cannot (and should not) be constrained within some predetermined framework. [12] Appropriate guidance can only be developed on a case by case basis.
Subject to these qualifications, three considerations will commonly be relevant and would be relevant in the present case. First, having regard to the appellate function of the Court, it may be appropriate for the Court to decline to hear an application if satisfied that the circumstances relied upon would permit a further release application to be made in the court below, pursuant to s 74(3).
Secondly, although the jurisdiction of the Court conferred by s 67 is not to review the decision in the court below, it may well be the case that, unless an applicant can identify a possible error in the approach adopted by the primary judge or suggest that the outcome was in some sense unreasonable, this Court may refuse to hear the application on the basis that it has no reasonable prospect of success. The legitimacy of that approach may be supported by two specific considerations, namely the fact that the primary judge has had the opportunity to hear witnesses give evidence and that is not sought to be repeated in this Court, and further that the primary judge, as is commonly now the case, has provided detailed reasons for his or her decision.
Thirdly, the appellate functions of the Court and the need to avoid undue interference with the exercise of those functions with respect to appellants seeking to challenge their convictions, sentences or interlocutory rulings, may allow the Court a broader discretion to decline to hear a bail application than would be the case in a trial court. That aspect of the discretion may also allow the Court to constrain the manner in which a bail application is sought to be presented, for example by declining to hear oral evidence which has already been considered by a judge below.
A possible refusal to hear an application must always take into account that the applicant has been charged with, but not convicted of, a serious offence and is deprived of his or her liberty pending trial. It is in that context that the power is conferred on this Court to hear a release application and it is always a material factor in determining whether to refuse to hear such an application.

Merits of application

The parties came to the hearing of this application ready to deal with the matter on the merits. Although any court faced with such an application is required to deal with it expeditiously, [13] the Court sought assistance in relation to its powers and jurisdictions and the issues discussed above. Given those circumstances, it is appropriate that, in this case, the application should be dealt with on the merits.
I agree that the application should be dismissed, for the reasons given by Davies J, subject to one qualification.
The only qualification is that I would place significant weight, in favour of release, upon the difficulties which the applicant will undoubtedly face if he remains in custody in preparing his defence. The charges laid against him are numerous and will involve complex documentary records, including records of electronic communications and activities. At the time of the hearing of the bail application, the applicant did not have access to a computer in his current custody. Nevertheless, the evidence indicated that he would have access in the near future. In identifying the circumstances on which the present application is addressed, I would assume that that expectation will be fulfilled.
The second aspect of the matter concerns the extent to which the applicant will be frustrated in preparing his case as a result of his incarceration, assuming reasonable access to a computer. His solicitor provided an affidavit, dated 5 November 2015, anticipating that there would be a large volume of material, both in written and electronic form included in the police brief, once it was served. The solicitor's affidavit also sought to make good the need for close communication between solicitor and client in the preparation of any defence.
These expectations should also be accepted. The nature of the alleged offending warrants such a conclusion. Nevertheless, in the absence of the prosecution brief, the real extent of the difficulties caused by incarceration can only be assessed in the broadest terms. At this stage, they do not warrant a finding that the other risks associated with release, identified by Davies J, are outweighed. Accordingly there remains an unacceptable risk within the terms of s 19 of the Bail Act.
For completeness I note that the Bail Act refers, in ss 17(2)(c), 18(1)(o) and 19(2)(c), to endangering the safety of victims, individuals or the community. That language should not be understood to extend beyond the physical safety of individuals. A broader reading is unnecessary given that commission of a further serious offence if released from custody is a separate "bail concern" identified in s 17(2) and in s 19(2). Similarly, interfering with witnesses is a separate bail concern. In the present case, the material did not demonstrate that release of the applicant would create an unacceptable risk of endangering the physical safety of others.
McCALLUM J: I agree that the application should be refused, for the reasons stated by Davies J. I have read the judgment of Basten JA in draft. I am not persuaded that s 67(1) confers any broader discretion on this Court, beyond the grounds expressly stated in s 73 of the Act, to decline to exercise the power to hear a release application or a detention application. However, I would respectfully agree with his Honour's analysis of the nature of such a hearing and particularly his Honour's conclusion at [28] that such hearings are to be approached with a degree of flexibility, depending on the circumstances.
DAVIES J: The applicant has been charged with 158 offences involving fraud. The offences include: (1) Dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The applicant is alleged to be an accessory either before or after the fact to such offences. The maximum penalty for this offence is ten years' imprisonment. (2) Dealing with identification information to commit or facilitate commission of an indictable offence contrary to s 192J of the Crimes Act. The indictable offence is fraud. The maximum penalty for this offence is ten years' imprisonment. (3) Causing an unauthorised computer function with intent to commit a serious indictable offence contrary to s 308C(1) of the Crimes Act. The serious indictable offence is fraud. The maximum penalty for this offence is the maximum penalty for fraud which is ten years' imprisonment (s 192E of the Crimes Act). (4) Knowingly deal with the proceeds of crime offence contrary to s 193B(2) of the Crimes Act. The maximum penalty for this offence is 15 years' imprisonment. (5) Knowingly direct activities of a criminal group offence contrary to s 93T(4A) of the Crimes Act. The maximum penalty for this offence is 15 years' imprisonment.
On 9 November 2015 the applicant was refused bail by Schmidt J in the Supreme Court. The applicant now seeks bail from this Court pursuant to s 67(1)(e) of the Bail Act 2013 (NSW). The Crown opposes bail and says that no conditions imposed can adequately address the bail concerns.
The application comes before this Court not by way of review of Schmidt J's decision but as a de novo consideration of the question of bail: R v Kugor at [4]; DPP (NSW) v Campbell at [4]. Whilst accepting that this is the effect of ss 67 and 75 of the Act, I endorse the remarks of Adams J and Beech-Jones J in Mawad at [6] and [49].
I have read the judgment of Basten JA. The question of the power of the Court of Criminal Appeal to refuse to hear a bail application was not argued in the present matter and I would defer expressing any views on that question until an appropriate case arises. I agree, however, with his Honour's view at [28] concerning the flexibility with which the hearing before this Court may proceed. In particular, I agree that this Court is entitled to take into account the findings of the judge in the earlier application, including findings in relation to the credibility of witnesses. A similar view had been reached by this Court in Mawad at [5] and [8]. Since the rules of evidence do not apply (s 31) no issue arises by reason of s 91 of the Evidence Act 1995 (NSW).

Facts of the offending

The general overview of the Crown case is as follows:
Since May 2014, fraud investigators from multiple banks reported to NSW Police that they saw an escalation of what are commonly termed 'linking' frauds. These offences are highly organised and require a high degree of planning. Linking frauds involve the use of a mule who is recruited by a criminal group to open a new bank account (or use their existing account) for the purposes of receiving fraudulently obtained funds. The group gain access to the internet banking account of a bank customer (the victim) by unknown means although it is suspected that malicious software or a phishing attack (acquiring sensitive information by masquerading as a trustworthy entity in an electronic communication) is responsible. The mule attends a bank branch and produces an 'Authority to Operate' form effectively linking the bank account of the mule to the bank customer. Alternatively they simply open up a fraudulent joint account between the bank customer and the mule.
On some occasions another person attends the bank with the mule and takes over the identity of the bank customer producing fraudulent identification in the bank customer's name. When the accounts are linked several large transactions are performed from the bank customer's account to the mule's account. The funds are then withdrawn in cash at multiple branches or transferred to other mules to be withdrawn in cash. The group has also utilised the funds to purchase gold and other electronic products. The group typically obtains tens of thousands or over a hundred thousand dollars in cash from every bank customer's account that they compromise. The group often commit various parts of the linking fraud in different states to hamper bank checks and law enforcement investigation into the offences. The group continuously change their modus operandi to combat law enforcement.
The group utilise mules that are predominately foreign nationals, and in particular Korean and Chinese nationals, as another means to combat law enforcement as these persons have, on some occasions, left the country before they were able to be prosecuted for their involvement in the offences. Several of the Korean mules have been arrested and charged and have formally stated that they were recruited to participate in the group after seeing a job advertisement on the Korean classifieds website www.hoiunara.com. The mules were told to open a bank account and on some occasions multiple accounts, and provide full details of the account to their recruiters. These details include their internet banking username and password. The mules were often offered a fixed amount or percentage of any funds withdrawn.
Investigators have identified the applicant, as a participant in a criminal group that is involved in committing these linking frauds. The applicant is alleged to be a high level member of the group responsible for the planning and preparation in order to commit the fraud offences. The applicant is also said to have directed other members of the criminal group to perform activities in furtherance of the criminal enterprise.
The applicant has allegedly committed multiple preparatory acts in relation to the fraud offences. These acts include the unauthorised access into the internet bank accounts of multiple bank customers, the purchase of flights under false names for lower level members of the group to assist in the commission of the offences, conducting checks on bank customers to gain more identification information about them and the takeover of the mobile phone services of bank customers to facilitate the offences.
In December 2014, Strike Force Cottenham was formed as a joint strike force between the NSW Police Force and the Australian Federal Police (AFP) to investigate these fraud offences. Several Internet Protocol (IP) addresses registered under the fictitious identities Adam Tram (Tram) and Adam Tran (Tran) were used in commission of these offences. These identities have been conclusively linked to the applicant through numerous means including documentation of the applicant using the identity with his partner Ara Jo, telephone intercept material with the applicant referring to himself as Adam Tran, CCTV of the applicant using the identity when he came out of a gold shop, witness photographic identification parades conducted, and a wallet found by a passerby on 11 April 2015 on the footpath outside 7 Rider Boulevard, Rhodes which was handed to police containing identification in the name of Tram as well as identification documents pertaining to the applicant. These documents included a fraudulent NSW driver's licence in the name of Adam Tram depicting a photo of the applicant. The unit where the applicant was residing at the time of his arrest was also leased under the name of Adam Tram (or Tran - typographical error on lease documents) (DOB: 11/12/1980) and the applicant's partner Ara Jo.
Numerous identified IP addresses are said to be associated with the Tram and Tran identities that have been used in the commission of unlawful activity.
These IP addresses have been used to gain unauthorised access to the internet bank account of multiple bank customers throughout Australia. The IP addresses have also been used to gain access to the accounts of mules, who on instructions have provided their internet banking username and passwords to the group. The accounts are usually accessed from these IP addresses well before the 'linking' of victim and mule accounts occurs. IP logs from Bendigo Bank show that the applicant accessed his own Bendigo Bank account taken out in his real name from all these IP addresses. The applicant also accessed a Bank of Queensland bank account taken out in the false name of Adam Tram from a majority of these IP addresses. Fraudulent transfers of funds from the bank account of victims to mules are almost always conducted from a mobile broadband device such as a 3G/4G smart phone or laptop computer with a 4G device attached (e.g. 4G USB dongle). This is a deliberate method employed to make tracing the IP more difficult.
The applicant was arrested on 22 July 2015 at his residence. He was searched. Four mobile phones were seized from him as well as a Virgin credit card in the name of Hammed Assifi. That credit card was linked to one of the frauds involving Dion Warr.
The total amount of the fraud in which the applicant was involved is said to be in excess of $6.5 million. This includes a little over $3 million of actual frauds and in excess of $3.5 million of attempted fraud.
A search warrant was executed at the applicant's premises and multiple SIM cards, documents, computers and data storage devices were seized. In particular, the following items were found: (a) A fraudulent licence in the name of John Smith with a picture of a koala on the photograph image. The applicant has a known nickname of "Koala" and there is some reference to "Koala" on telephone intercept material of the applicant. (b) There were multiple receipts for Louis Vuitton and Burberry purchases in the name Ara Jo. Jo is the partner of the applicant and several IP addresses linked to the applicant were registered in the names of Adam Tram and Ara Jo. (c) A Victorian change of name certificate for the applicant who has changed his name to Dinh Anh Khoi Mai. There was also a complete passport application in the name of Dinh Anh Khoi Mai where the applicant has listed his email address as kdat@iinet.com.au. This is the same email address that is registered under the Rider-Rhodes IP address. (d) A document pertaining to the funeral of Mark Easter. This relates to the applicant's association with Easter as seen in the offence involving Fraser Motorcycles. (e) A shredded TAB card in the name of Raymond Huang. This relates to the Virgin credit card fraud where a card was applied for in the name of Raymond Hwang even though identification documents listed the cardholder as Raymond Huang. (f) A BankWest general account authority form for Mr G R Jiade Su providing authority to Yu-Chuan Ting. This authority form is similar to many authority forms used to facilitate the linking frauds. (g) A fraudulent NSW driver's licence in the name of the applicant.
The alleged offence involving Fraser Motorcycles (referred to in (d) above) was this. On 15 December 2014 the applicant attended Fraser Motorcycles Pty Ltd in Concord purporting to be Adam Tram. He made a finance application to purchase a Harley Davidson motorcycle with a total cost price of $22,000. He requested finance in the amount of $15,631.29. He produced a fraudulent NSW driver's licence in the name of Adam Tram with his own photograph.
That day Capital Finance received an Individual Finance Application from Fraser Motorcycles for Adam Tram. In the application the applicant specified numerous false details on his finance application. He provided a false payslip purporting to be from employer S D Exclusive Services. The payslip indicated that the pay was to Tram's account number with Westpac. However, Westpac indicated that the account did not belong to Tram. The application for finance was subsequently declined.
Two days later the applicant returned to Fraser Motorcycles and tried to pay $19,990 for the motorcycle in cash and have it delivered to Mark Easter at an address in Waterloo. The staff at Fraser Motorcycles refused to allow the motorcycle to be delivered to another party. Later that day Easter attended and paid that amount in cash for the motorcycle. Easter is said to be an associate of the applicant and it is alleged that he was involved in a fraud offence with the applicant in 2013.

Bail concerns

The present offences are not "show cause" offences for the purposes of s 16A of the Act. Accordingly, it is necessary only for the Court to assess the bail concerns set out in s 17. In doing so it is to consider the matters listed in s 18. If the Court finds that any of the bail concerns constitute an unacceptable risk, s 19 requires the Court to refuse bail.
Of the four bail concerns and unacceptable risks referred to in ss 17 and 19, the applicant concedes that the Court might find that there are concerns the applicant will fail to appear, might commit a serious offence and might endanger the safety of victims, individuals or the community. However, the applicant submits that there is no evidence to indicate that the applicant will interfere with witnesses or evidence.
Section 18 of the Act provides: 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division: (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A. (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered: (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.
The applicant submits that the relevant matters for consideration are all of the matters listed in s 18(1) except (j), (k) and (m).
The bail proposal is that the applicant would live with his parents in Lakewood Drive, Woodcroft. In his affidavit the applicant's father says that he and his wife own the family home which has an equity of approximately $400,000. He said that he and his wife were willing to use the entire amount of the equity in the family home and in their other assets of about $30,000 as security for the applicant's bail. Counsel for the applicant refined this to an offer of security in the sum of $320,000.
The applicant's mother says that she is prepared to cease working as the receptionist in their family real estate agency in Fairfield to be at home to supervise the applicant. Both parents say that they are prepared to have the internet disconnected at home and they will not allow him to use their mobile phones.
The applicant is prepared to be subject to a curfew whereby he would not be absent from the Woodcroft property except in the company of his father and only to attend Court, to attend conferences with his lawyers, to report to police, to attend medical appointments and to attend church with his parents within defined hours on a Sunday. The applicant also offers to wear electronic monitoring.

Assessment of the bail concerns

The overlap in the bail concerns in this matter requires consideration of them together. The Crown did not contend that the concern for the safety of the community included what was referred to as "economic safety". However, the applicant had only one offence on his record as a 13 year old that could be regarded as an offence of violence.
The applicant has been charged with a large number of fraud offences. The execution of the search warrant at his premises resulted in the finding of a number of identification documents suggesting that the applicant creates and uses other identities in the commission of some or all of the offences charged. Evidence otherwise obtained tends to show the adoption of false identities by the applicant. The facts suggest that many of the offences were committed by using IP addresses that gave unauthorised access to bank accounts of customers. In that way fraudulent transfers of funds were able to be made.
The evidence identified in the Crown facts justify the conclusion that the Crown case against the applicant, at least in respect to a large number of the offences charged, is a strong one. Counsel for the applicant accepted that it is a reasonably strong circumstantial case. If the applicant is convicted of some but not all of the offences he is likely to face a lengthy time in custody. There is a strong incentive for the applicant not to appear. Considered in conjunction with how the offences were said to have been committed and in the light of the false identification material located there is a substantial concern that he has the facility to fail to appear and subsequently evade detection. That must also be seen in the light of his connections with Korea where he has spent long periods in recent times.
The applicant's criminal record does not assist him in that regard. It discloses four breaches of bail and a number of breaches of parole in respect of which warrants were issued for his arrest. The extent of his previous offending, most although not all of which involved offences of dishonesty, gives no confidence that he will not continue to commit further serious offences. It is also of concern that his custodial record discloses prison offences involving drugs since he went into custody in 2015.
These concerns are submitted to be met by the bail conditions proposed. In substance those conditions require the applicant to be under house arrest and under the control and supervision of his parents. In addition, he would wear electronic monitoring.
The likelihood of those conditions being successful in achieving the applicant's appearance and in preventing him from continuing to commit serious offences is put in considerable doubt by the evidence given by his father before Schmidt J.
Despite the applicant's father saying that he had a close relationship with and was very close to his son Mr Trinh gave evidence that he did not know if his son had ever had any paid employment or jobs, that he could not recall seeing or having contact with his son either at the time of his son's birthday, the birthday of his wife or himself in 2014 or 2015 or at Christmas, that he does not contact the applicant but leaves it for the applicant to contact him. In addition, Mr Trinh gave evidence that his son constantly changes his phone number, that when the police rang in August 2014 asking where his son lived he told them that he did not know where he lived. This evidence was then given: Q. And the police tell you that there was a warrant out for your son's arrest as well, don't they? A. Well they do but I say it is not my business. I can't control him any longer. I say to him like this. Q. Did you speak to your son after, did you ever have a conversation with your son after the phone call with the police and say I spoke to police, they are looking for you? A. No, they say, I inform them he always ring me. Q. When he rang you for his next conversation did you tell him the police had rung you to speak to you about him? A. What happening, I treat him as an adult. As the parent I was very concerned what he was doing. Every time I rang him I ask him what you are doing for a living now and he kept telling me, never told me. I know what he was doing but I don't have evidence what he was doing. I asked him what you do for a living. That is a parent. If you have a son or daughter you concerned about living, you ask the same questions and they tell you the truth or not true. It is up to them. … Q. Weren't you surprised to have the police ring you? When the police rang you were you surprised? A. I was not surprised, no, because I thought maybe if police had rung and asked these things because I always say to the police he already an adult. Q. He what? A. Not under my care any longer. He not with me. … Q. When your son next called, why didn't you tell him the police are ringing and looking for you? A. I very rarely talk to him. Maybe he could ring my wife but not all the time he walk [scil. talk] with me. (emphasis added)
When re-examined, he was asked if he became aware that his son was in breach of his bail what would he do, he said "I definitely would report to the police, I would take (sic) to the police straight away." In the light of his evidence about his response to the police ringing in August 2014, the evidence that he would report a breach of bail to the police can only be accepted with considerable reservations.
The portion of Mr Trinh's evidence above identified in bold was not elaborated on by request of either counsel appearing before Schmidt J. In circumstances where it is known what the applicant was doing and how he was making his money, Mr Trinh's statement suggests more knowledge on his part than he was prepared to impart. That inference can also be drawn from what I take to be the evasive answers that he gave relating to contact with the applicant. I note in that regard what Schmidt J had to say about Mr Trinh's evidence at [37]. Her Honour had the added advantage of seeing and hearing Mr Trinh give his evidence.
Noting the applicant's father's evidence that he cannot control the applicant, that the applicant would not tell his father what he did for a living and that his father considers he has little responsibility because the applicant is an adult, there is nothing in the applicant's mother's evidence to suggest that she is in any better position to supervise or control him. That is particularly significant when the offences with which the applicant is charged are offences that can readily be committed by the use of computers or smart phones in the privacy of the house in which the applicant is living. Statements by the parents that they would not permit the applicant to have access to a computer or telephones must be treated with considerable caution in the light of the evidence of the applicant's father.
A further matter should be noted in relation to the proposal for control and supervision by the applicant's parents. In respect of offences for which the applicant was charged as a young person including the serious offence of being armed with intent to commit an indictable offence, the applicant was released on bail conditions which required him to live with his parents and be subject to a curfew unless in the company of his parents. On three occasions he breached his bail conditions including being out during curfew hours. On one such occasion when he had been arrested and his father was contacted to say that he was in custody at Parramatta Police Station, Mr Trinh informed the police that he had not seen nor heard from his son for the past two weeks. On another occasion where he breached his bail the applicant informed the police that he had been kicked out of home by his parents and was not currently living anywhere in particular.
Those matters indicate an inability or an unwillingness on the part of his parents to ensure that he comply with bail conditions whilst he was a young person. That elevates the significance of Mr Trinh's statements in evidence before Schmidt J that he cannot control the applicant and that, in any event, the applicant is an adult who is no longer under his care. This is a matter relevant to the offer of the parents to provide a security on their home. Even assuming in their favour that they would endeavour to supervise and control the applicant, I have considerable unease that they will be able to do so. Moreover, I am not satisfied of the adequacy of the security when the amounts involved in the offending are considered.
Counsel for the applicant submitted that two considerations in s 18 were significant for the release application. The first was the delay before it is likely the matters will come to trial. The evidence of the applicant's solicitor was that the trial would be unlikely to be completed before the end of 2017 or even early 2018. That is partly because of the amount of the material that needs to be served and assessed including telephone intercepts in multiple languages and also because of the likely length of the trial.
The second matter concerned the ability of the applicant properly to prepare with the assistance of his lawyers his case for trial. In that regard, reference was made to the evidence from the applicant's solicitor of the inability so far for the applicant to be given access to a computer or a laptop whilst in custody. Reference was made to the decision of R S Hulme J in Shalala v R [2012] NSWSC 351. In that case R S Hulme J said: [19] I turn to Mr Shalala's interests. On the evidence before me, it is impossible to avoid the conclusion that Mr Shalala is unable to prepare his case while incarcerated and this because the Corrective Services authorities have not provided him with a computer or other equipment on which to see or listen to the recorded evidence and there is nothing to suggest that their stance will change. [20] On the evidence before me, it seems also that there has been scant provision of any significant library facilities to Mr Shalala. [21] The evidence indicates, although there is a library at the MRRC where Mr Shalala is currently incarcerated, because of cut backs to prison staff, that library is practically inaccessible unless a Corrective Services officer can be spared at any particular time to supervise Mr Shalala. [22] The terms of s 8A of the Bail Act 1978 and the significance of the matters referred to in paragraphs (a) and (c) of s 32(1) of that Act 1978 are such that in the normal course I would unhesitatingly have refused Mr Shalala's application for bail. However, he is entitled to prepare his case. Given that he is effectively being prevented from doing so whilst in custody by the attitude of the Corrective Services, I feel constrained to give him bail.
Evidence from the applicant's solicitor attests to the attempts he has made to have the applicant issued with a laptop whilst in custody to assist in the preparation of the matter for trial. As at the end of March 2016 his efforts had been unsuccessful. However, an email from an officer of the Department of Corrective Services dated 24 March 2016 said that laptops were being issued over the 7-10 days following the email to eligible inmates of whom the applicant was one. By the date the present bail application was heard the applicant did not have a laptop.
Although s 18(1)(l) lists the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, it is not immediately apparent how that assists in the assessment of the bail concerns in s 17. I accept, however, that it is likely, as McCallum J suggested during the course of argument, that s 18 is directing the Court to undertake an evaluative weighing exercise of competing concerns, some of which are concerns of the person seeking bail that they be able to prepare their defence adequately and, for that matter, not be detained without conviction for a lengthy period of time.
In the light of the evidence that the applicant is to be included in the initial rollout of laptops I do not consider that his need to be free to prepare for his trial is a matter of great weight. It is significant in that regard that in Shalala the applicant was appearing for himself and preparing his own defence without the assistance of lawyers.
In relation to delay it may be accepted, as this Court said in R v Kugor at [35] that it is a very serious matter to deprive a citizen of liberty for a long period of time when he has not been convicted of any offence. The delay being considered by the Court in that case was a period of about 15 months. The applicant was arrested on 22 July 2015. As noted, the evidence from the applicant's solicitor is that his trial is unlikely to conclude until the second half of 2017 or early 2018. That time in custody prior to conviction is a matter of considerable significance on a bail application.
Although it is entirely unsatisfactory that an accused person should because of delays in the justice system, be detained in custody prior to trial for lengthy periods, that is but one factor to be considered when assessing bail concerns to see whether they rise to the level of unacceptable risk. In the present case, the earlier matters to which I have referred seem to me to outweigh the significance of that delay. The seriousness of the charges, the nature of the offending, the amounts involved, the strength of the Crown case, the applicant's prior criminal record when considered with the entirely unsatisfactory relationship with his family and the proposed arrangements involving them lead me to the conclusion that there is an unacceptable risk that the applicant will fail to appear at any proceedings and will continue to commit serious offences.
In my opinion, bail should be refused.

Endnotes

Bail Act, Sch 3, cl 11.
Bail Act, s 61, s 59 and s 5(3).
Bail Act, s 64(3).
Bail Act, ss 65 and 61 respectively.
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Lord Cairns LC); Ward v Williams (1955) 92 CLR 496 at 505.
[2015] NSWCCA 227 at [49].
Bail Act, s 74(3)(a).
R v Kugor [2015] NSWCCA 14 at [4] (Hoeben CJ at CL, R A Hulme J and R S Hulme AJ agreeing).
[2015] NSWCCA 173 at [4] (R A Hulme J, Hoeben CJ at CL and Campbell J agreeing).
[2015] NSWCCA 190 at [3] (Hoeben CJ at CL, Johnson and R A Hulme JJ).
[2015] NSWCA 218 at [5]-[6] and [8], [23] and [36].
Norbis v Norbis (1986) 161 CLR 513 at 534 (Wilson and Dawson JJ).
Bail Act, s 71. 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: 10 June 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (8)

Cited By (15)