Mohr v Director of Public Prosecutions (Cth)

The Commonwealth Director of Public Prosecutions makes a detention application pursuant to s 50 of the Bail Act 2013 (NSW) for the detention of Darren Mohr to whom I refer to throughout as "the accused" in relation to an offence of conspiracy to import a commercial quantity of a border-controlled drug. The offence charged against the accused is one of extreme seriousness and involves a conspiracy whereby an attempt was made to import into Australia something in the vicinity of half a tonne of cocaine. A subsequent conspiracy, with which the accused is not charged but which followed upon the conspiracy with which he is charged, resulted in the seizure of a quantity of cocaine in that amount and involved some of the co-conspirators involved in the conspiracy with which he is charged.

Because of the nature of the charge and the maximum penalty availability, which is life imprisonment, sections 16A-16B of the Bail Act require the accused to show cause why his detention is not justified.

The accused was arrested on 27 December 2016 and remained in custody for a little less than one year. In that time he made two unsuccessful applications for release pursuant to the Bail Act. The first application was made before Magistrate Swain on 24 February 2017. Then, on 27 April 2017, a release application was made to her Honour Fullerton J in this Court. Her Honour's judgment is before me and helpfully provides a summary, both of the nature of the prosecution case against the accused and also the basis upon which he contended, unsuccessfully, that he had shown cause why his detention was not justified. I will return to her Honour's reasons, but at this point I simply note that her Honour was called upon to make – and did make – an assessment of the strength of the prosecution case. Her Honour assessed that case as being "a strong Crown case".

In June of 2017 a pre-existing medical condition for which the accused had previously undergone surgery flared up whilst he was in prison. There is a great deal of material – perhaps too much – before the Court on the present application concerning that condition and attempts that have been made (or not made) to treat it. It is a condition of a rather personal nature and counsel for each side spoke in circumspect terms about the condition. In any event, attempts were made to have the condition treated and in October of 2017 the accused sought to re-ventilate his release application before Fagan J in this Court. However, when the application came on for hearing, Senior Counsel, who is not Senior Counsel who now appears for the accused or who appeared at the committal hearing, withdrew the release application on the basis that certain undertakings had been made by prison authorities which would enable the accused to receive the treatment that he required and, indeed, under the care of the doctor who had performed the initial surgery, being Associate Professor Moore.

The next relevant date in the chronology of the litigation is that committal proceedings were heard in early December 2017. Following submissions by each side, a Magistrate came to the conclusion that there was insufficient evidence of the applicant's involvement in the conspiracy or agreement – or perhaps more correctly and as best as I can understand it, insufficient evidence, or reasonable evidence, of preconcert – that will enable a number of highly incriminating conversations and acts undertaken by the co-conspirators to be admissible against the accused at his trial. Accordingly, the Magistrate ordered that the accused be discharged at the committal hearing.

Senior Counsel both for the Commonwealth Director of Public Prosecutions and for the accused have made a number of submissions in relation to the reasoning undertaken by the Magistrate and also in relation to the legal impact, if any, of the decision to discharge the present accused insofar as it relates to this application. It will be necessary to return to those submissions and to analyse for myself the strength of the prosecution case. I have to say, on the material that I have seen, the decision of the Magistrate seems to be a surprising one. In any event, the accused was released unconditionally upon his discharge at the committal hearing. He has been at large and at liberty since, that is since 12 December 2017.

The matter comes before me on the last working day of the year, that is Friday, 22 December 2017. Senior Counsel for the accused places significant reliance upon the fact that in that period of time, that is from 12 to 22 December 2017, there has been no attempt by the accused to flee.

On the same day as the Magistrate ordered the discharge of the accused at the committal, the Commonwealth Director of Public Prosecutions signed, and I take it filed, an ex officio indictment charging the accused with an offence.

The terms of the ex officio indictment filed by the Commonwealth Director of Public Prosecutions are these:

The matter then came before Fullerton J on 14 December 2017 and the Commonwealth DPP mounted, or attempted to mount, its detention application. Her Honour granted an adjournment application by the accused based on the unavailability of Senior Counsel who appeared at the committal and appears again today.

The transcript of proceedings on that day shows that the accused attended voluntarily upon the Supreme Court and upon her Honour and, in spite of there being no particular power in the Court to do so, or to order the accused to do anything, he made a number of undertakings in relation to where he would live and what he would do with his passport and other matters capable of comforting the Court and the Director that the accused would not take flight in spite of his discharge at committal, his freedom to do so, and the seriousness of his legal predicament. In accordance with such undertakings and suggestions, the parties agree that the accused surrendered his passport to the officer in charge of the investigation.

The matter was adjourned until this week before me sitting as the vacation duty Judge and, by arrangement with Senior Counsel, the matter was, regrettably, listed today. The matter commenced at 10am and the time is now twenty to five. For that reason, and for the convenience of Corrective Services officers who are present in court lest the detention application succeeds and the staff in the Supreme Court Registry who are remaining after office hours lest the detention application is refused and conditional bail is granted, I must by necessity be brief in providing reasons. I may at times indicate where I will later insert into the judgment relevant passages of authorities and relevant factual matters.

The provisions in the Bail Act requiring an accused person to show cause why their detention is not justified have by now been subject to many decisions: see, for example, Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83; Director of Public Prosecutions v Tony Mawad [2015] NSWCCA 227; DPP v Zaiter [2016] NSWCCA 247; Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314; Director of Public Prosecutions v Hourigan [2017] NSWCCA 170; JM v R [2015] NSWSC 978; R v Xi [2015] NSWSC 1575; Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312.

In Director of Public Prosecutions v Hourigan, a Court of Criminal Appeal comprising of Gleeson JA and Harrison and Fullerton JJ provided a helpful overview from [9] – [11] by reference to the decision in Moukhallaletti v DPP (NSW):

In the present case, the accused relies on what he says are a powerful combination of circumstances which he says satisfies the show cause requirement. At the forefront of his submission is the fact that the Magistrate discharged him at committal. The Crown accepts that this has relevance but only in a limited or perhaps peripheral way. In particular, Senior Counsel appearing for the Director acknowledges that the fact that the accused was discharged at committal probably will have a psychological impact on the accused so that he is more likely to attend the trial proceedings on the basis that the approach taken by the Magistrate will give him some comfort as to his capacity successfully to defend the criminal charges.

Further, it is accepted that the fact that the accused was discharged at committal, has been at large in the ten days since, and has twice appeared in the Supreme Court in circumstances where there was at least a reasonable possibility that his liberty would again be taken away provides a powerful circumstance in combination with other things to satisfy the show cause requirement.

I accept that the discharge of the accused at committal is relevant to the question of whether he has shown cause in those two ways. I am less convinced that the fact that the Magistrate ordered the discharge of the accused at the committal is relevant to an assessment of the strength of the prosecution case. As I have said, I have found the decision of the Magistrate to be a surprising one. Fullerton J set out in her short, but compelling judgment the basis upon which her Honour came to the view that the prosecution case was a strong one and I will insert a moderately lengthy passage from her Honour's reasons when I revise the judgment:

It seems that the Magistrate, whilst having a voluminous brief tendered before him in the form of a hard drive, was focused upon the same material and summaries of the chronology of events and facts that I am dealing with here today and with which Fullerton J was concerned back in April. I am told, by both Senior Counsel, and I accept, that the question before the Magistrate was whether the accused's involvement in the conspiracy could be established. To use the terminology of the old and well-known co-conspirators’ rule, the question was whether there was “reasonable evidence of preconcert”. If there was such evidence, the acts and conversations of the co-conspirators was admissible evidence against the accused. If there was no such evidence, such evidence would not be admissible or able to be used against him.

A lengthy statement of facts was tendered in evidence as part of Ex A and it is behind tab 3. Its detail did not enhance its usefulness. However, it shows that there were many, and I underline the word "many", conversations and acts committed by the co-accused or alleged co-conspirators which had the capacity of implicating the accused in the extremely serious offence with which he is charged.

Further, a chronology of events which became Ex L sets out the acts of the accused upon which the Crown relies to establish his participation in the conspiracy or, if you like, the reasonable evidence of preconcert. The relevant parts of this chronology, which became Ex L, are as follows:

It is, of course, notoriously difficult for a bail judge to form an assessment of the strength of a prosecution case at this distance and in the absence of all of the evidence and, of course, the evidence that might be tendered on behalf of an accused person. For one thing, I have no idea what, if any, explanation might be proffered for some of the seemingly sinister temporal coincidences emerging from the chronology. However, on the imperfect information that I have, I agree with the assessment of Fullerton J that the prosecution case appears to be a strong one. Senior Counsel for the Director submitted that it was in fact an overwhelming prosecution case. Perhaps it is, but I would prefer to adopt the less strident language employed by Fullerton J and simply accept that the prosecution case is strong.

The fact that the accused faces a strong prosecution case in relation to an offence that carries life imprisonment and which must be seen, given the quantity of drugs and the sophistication of the conspiracy, as a particularly egregious example of an offence of this kind is a strong and compelling factor militating against a finding that the accused has shown cause why his detention is not justified.

Having said that, the authorities are clear that the strength of the prosecution case is not determinative of an application under the Bail Act, whether it be a release application or a detention application, when cause is required to be showed by an accused person: see, for example, JM v R at [41] adopted by Beech-Jones J in the Court of Criminal Appeal in DPP v Mawad at [44]. Even so, in my view, it is a powerful factor in the present case.

As to this, even though Senior Counsel for the accused was really compelled to concede that the prosecution case may be seen as a strong one, he maintained the submission that the powerful combination of circumstances satisfied the show cause requirement. Two matters were urged in particular. The first, to which I have already referred, is the fact that the accused was discharged by a judicial officer who had considered the whole of the evidence and the arguments made on both sides. The result of that finding is that the accused has been at large for about ten days and has twice attended court in the knowledge that his liberty may be taken away.

The accused also relied on a number of other considerations that might ordinarily be associated with matters relevant to what is known as the “unacceptable risk” test in sections 17-19 of the Bail Act. These include the availability of a very large surety to be provided by his father and also by the accused himself. In due course, those sureties would be secured by the title deeds of his parents' only substantial asset, their home.

That brings me back to the other major factor referred to by the accused as justifying a finding showing cause why his detention is not justified. This concerns his medical condition. There was, as I said earlier, a great deal of material tendered on this issue and a spirited debate took place both in exchanges of correspondence which became exhibits before the Court and in the submissions of Senior Counsel for each side as to the extent to which the accused's condition can appropriately and properly be dealt with while he is in custody. That debate encompassed questions around whether or not the accused's condition was satisfactorily dealt with when he was in custody from June 2017 when the condition flared up until his release on 12 December 2017.

It was suggested that the accused was exaggerating the extent to which he was denied medical treatment while in custody. It is, again, difficult to make an assessment of this and nothing that I have to say should doubt the goodwill of both the Commonwealth DPP and the gaol authorities. However, it is the fact that the accused presented on 6 June with what can only be described as serious and debilitating symptoms. He complained of pain which he estimated to be “ten out of ten” and the doctor who examined him observed both that there was blood in his urine and swelling in the area around the groin.

I accept that attempts were made thereafter to provide the accused with some medication which might help to alleviate his symptoms. However, I accept his evidence that the treatment inside the gaol cannot be as comprehensive or convenient as the treatment that he might receive outside.

The accused, not surprisingly, given the personal nature of the treatment and the apparent success of the original operation, wishes that Associate Professor Moore conduct both the examination and, if necessary, any procedure or treatment, be it surgical or otherwise, that is necessary. That is not an easy thing for the authorities who are charged with the responsibility of securing many thousands of inmates across New South Wales to organise. I have evidence before me from senior Corrective Services officers and I accept that they have, at least more recently, done everything in their power to arrange for escorts and other practical matters to enable the accused to be treated by the doctor of his choice. However, what is also clear is if that were to occur while the accused is in custody, he will be put to significant expense.

The Commonwealth Director also submitted, and the evidence supports the submission, that the authorities had in fact organised for the accused to see a specialist doctor, but the accused claims he was not aware of this and was simply told that he was being moved to Long Bay Gaol. It is difficult to assess the credibility of the accused on this issue, but I am inclined, on balance, to accept what he had to say. I can well envisage that communications within the custodial setting may not have been perfect even with the best will in the world on both sides.

It is less easy to understand why the accused, once he was aware that a medical appointment was arranged, chose to cancel that appointment. His stated reason, that he believed that he was about to be granted bail, seemed to be a triumph of optimism over reality.

It is difficult to come to any firm and final conclusions in relation to these matters but I do find that the applicant suffers from a condition that needs properly to be investigated and that such an investigation will be far more readily achieved if the applicant is at liberty. Indeed, he seems to have achieved more in obtaining some satisfactory outcome in relation to the investigations into his condition in the ten days since he was discharged at committal than had occurred in the previous months. Again, these remarks should not be seen as critical of the officers of the Department of Corrective Services, but it must be the reality that dealing with medical conditions of this kind while the applicant is in custody is particularly difficult, given the needs and demands of other inmates.

It is also significant that for the applicant to obtain the treatment from the doctor of his choice, it will cost many tens of thousands of dollars. This is because a condition of Corrective Services providing the escort to the doctor's surgery or hospital must be met by the applicant.

In addition to those matters, the accused also relied upon the length of remand. He was kept in custody enjoying the presumption of innocence for a period of almost 12 months before the Magistrate ordered his discharge at committal. During at least some of that time he had the stress and physical pain of the medical condition to which I have referred. The conditions of his incarceration were, therefore, quite onerous.

It is likely from the information I have received from the Registrar of this Court that he will receive a trial date in around July of 2018 because the Commonwealth Director has now indicated that the accused will be tried alone and will be tried before his co-conspirators and those charged with the other related but separate conspiracies. This means a total period of around 18 months will be spent in custody pending his ability properly to test the prosecution case. The Court of Criminal Appeal has held now more than once that the current state of criminal lists in New South Wales means that such a delay is unremarkable. I refer there to the decision of R A Hulme J in the case of DPP v Zaitar. However, even in Zaitar, the Court in considering a show cause application said that a delay of such magnitude is concerning and is an important matter in the ultimate determination.

None of the matters to which I have referred would by themselves satisfy the show cause requirement. However, I am persuaded that those matters in their totality constitute what has been described as a “powerful combination of factors”. I am satisfied that all of the above, including the discharge of the accused at committal, his conduct since discharge, his attendance at court and failure to flee, along with the medical conditions and other matters more typically associated with an ordinary bail application, satisfy the requirement that he has shown cause why his detention is not justified.

That, of course, is not the end of the matter. As the Court of Criminal Appeal made clear in Tikomaymalaya, the test of show cause and the test of unacceptable risk must not be conflated. In the case of Mawad the Court of Criminal Appeal was in fact satisfied that the applicant had shown cause but, by majority, accepted that he constituted an unacceptable risk of committing further offences, and serious ones of violence.

In the present case, the Commonwealth Director submits that the accused constitutes an unacceptable risk that he will fail to attend court. The prosecution does not submit that there is an unacceptable risk that the accused will commit further offences, or that he represents a danger to the community or individuals, or that there is an unacceptable risk that he will interfere with witnesses or evidence.

As to the risk of flight, the prosecution points to evidence of significant - and, I might say, apparently unexplained - wealth, along with the travel movements of the accused over the last years. It is clear he has travelled overseas often. The prosecution also relies on the fact of the inevitability of an extremely long custodial sentence if the applicant ultimately is convicted at trial.

Against that, senior counsel for the accused submits that the kind of stringent bail conditions that have been proposed are sufficient to ameliorate that risk. In particular, the accused relies on the availability of $800,000 in secured security to be provided by the accused's parents.

As the argument progressed, and at the very last moment, it became apparent there was a significant glitch in the proposed arrangement whereby the accused's father had offered to deposit the title deeds of his house. A question arose as to the proper interpretation of s 26 of the Bail Act, and possibly s 29 as well.

The problem, as articulated by senior counsel for the accused, is that there is a very small amount of money owing to the bank which holds the title deeds – an amount of less than $20 – which means the title deeds cannot be released. For reasons which I do not understand, but I dare say would find bewildering, this has not been sorted out before the matter came on before me today. It is suggested the title deeds will not be available for a period of something like a month.

In addition to the ability of the accused's father, if given time, to provide security over a promise or undertaking to forfeit the sum of $800,000, the accused also owns two partly encumbered properties in Sydney, in relation to which he may also be in a position to make an offer to forfeit a substantial sum of money.

I am satisfied orders can be fashioned in compliance with the provisions of the Bail Act which would satisfy the concerns raised by the Director as to the flight risk represented by the accused. Accordingly, while I accept that a genuine bail concern arises, that the accused may fail to appear for the purpose of s 17 of the act, I am not satisfied that the risk of flight rises to the level of being an unacceptable risk in view of the conditions of bail that can be imposed to secure the accused's attendance.

Accordingly, I propose to grant bail on the following conditions [CONDITIONS REDACTED].