Youkhana v Director of Public Prosecutions (Cth)

1. [1]

   HOEBEN CJ at CL: I agree with the reasons of Fullerton J.

2. [2]

   BRERETON JA: At the conclusion of the hearing of the applicant’s release application on 26 August 2019, being satisfied that the applicant had shown cause why his continued detention was not justified, and that he did not pose an unacceptable bail risk, I joined in the orders made on that day granting his application, upon the conditions then specified. My reasons for being so satisfied were, in summary form, the accumulation of the following matters:

   1. (1)

      despite an apparently strong Crown case, there was more than a merely theoretical possibility that the applicant would not be convicted;

   2. (2)

      it would be some considerable time before the matter came to trial, during which his absence from his business would occasion significant hardship;

   3. (3)

      the evidence convincingly demonstrated that the applicant was not an unacceptable bail risk and the Court could have a high degree of confidence that he would answer his bail if granted, which was fortified by the proposed conditions; and

   4. (4)

      accordingly, in addition to the common law presumption of innocence and the general right to be at liberty, the applicant would not if released pose a threat to the safety of victims of crime, individuals and the community, nor would his release involve any unacceptable risk to the integrity of the justice system, so that his release on bail was therefore consistent with all three considerations referred to in the preamble to Bail Act 2013 (NSW).

3. [3]

   I have had the benefit of reading in draft the reasons to be delivered by Fullerton J, with which I agree.

4. [4]

   FULLERTON J: The applicant, Ashoor Youkhana, makes a release application under s 49(1) of the Bail Act 2013 (NSW).

5. [5]

   On 26 August 2019, at the hearing of the application, this Court was exercising jurisdiction under s 67(1)(e) of the Bail Act after R A Hulme J dismissed a release application on 4 July 2019. The application was heard de novo. It was not an appeal from, nor was it a review of, the earlier bail decision (see Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173).

6. [6]

   After the hearing, the Court resolved to grant the application on conditions that are annexed to the Court’s file copy of this judgment.

7. [7]

   What follows are my reasons for joining in that decision.

8. [8]

   The applicant was arrested on 15 April 2019 and charged with one count of trafficking a commercial quantity of a controlled drug, namely 24 kilograms of cocaine, contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth). That offence carries a maximum penalty of life imprisonment, thereby enlivening ss 16B(1)(a) and (g) of the Bail Act which oblige the applicant to show cause why his continued detention is not justified. If that onus is not discharged the Court is obliged to refuse the application. If the onus is discharged (on the balance of probabilities) the Court is then to determine whether, having regard to such of the bail concerns identified in s 17 of the Bail Act as are relevant to the application, there remains an unacceptable risk of a kind provided for in s 18 of the Bail Act, in which case the release application is refused.

The Crown case in summary

1. [9]

   The Crown case against the applicant is summarised in a lengthy statement of facts annexed to the affidavit of the applicant's solicitor. The same statement of facts is relied upon in support of the prosecution of two co-accused, Mr Flower and Mr Mafiti, who are jointly charged, contrary to s 307.1 of the Criminal Code with having imported successive consignments of a commercial quantity of a controlled drug, namely cocaine, in duffel bags on passenger flights from Johannesburg. One of the consignments was the commercial quantity of cocaine the applicant is charged with trafficking. Mr Flower is alleged by the Crown to have been a facilitator of the importations whilst Mr Mafiti was a baggage handler at the international airport at Sydney. It was Mr Mafiti’s role to collect the duffel bags containing the drugs at the end of his shift and leave the airport with the duffel bags in his possession as if it were his personal property.

2. [10]

   The case against the applicant consists in his having allegedly taken possession of one of the duffel bags from Mr Mafiti by pre-arrangement with Mr Flower who was planning to be interstate when the consignment was due to arrive at the airport. The Crown relies upon various intercepted conversations between the applicant and Mr Flower (in each case initiated by Mr Flower), including a face-to-face meeting on 14 April 2019 before Mr Flower travelled interstate, as evidencing an association between the two men.

3. [11]

   On the morning of 15 April 2019, Mr Flower sent Mr Mafiti an SMS message which said, “Bro sister is picking up the kids today …” It is the Crown case that this is a coded instruction for Mr Mafiti to deliver the duffel bag containing the drugs to the applicant. The balance of the message is said by the Crown to be a coded message directing Mr Mafiti to retrieve the duffel bag from a nominated Qantas flight.

4. [12]

   CCTV footage records Mr Mafiti’s collection of the duffel bag after which he left the airport with it, then making his way to the Rydges Hotel located near Sydney Airport. His arrival at the hotel is recorded on CCTV cameras as is the arrival of the applicant. Mr Mafiti is seen to approach the applicant’s car, put the duffel bag in the back seat, after which he then departs the area in his car, followed by the applicant in his car. The applicant was stopped minutes later by police and the locked duffel bag seized. The bag contained 24 one-kilogram blocks of cocaine.

5. [13]

   The applicant was arrested. On a search of his home, four Rolex watches and $32,500 in cash were located.

6. [14]

   The elements of the charge of trafficking a commercial quantity of a border controlled drug are as follows:

7. [15]

   “Traffics” is defined in s 302.1 as follows:

8. [16]

   To prove the applicant trafficked cocaine as a controlled drug pursuant to s 302.1(1)(c), the Crown is obliged to prove that the applicant knew or believed that the duffel bag he “transported” in his car contained a controlled drug. In relation to the first element (that he trafficked in a substance), that is the physical element for which the default fault element is intention (see s 5.6(1)). Having regard to the definition of “traffics” in s 302.1, assuming the inference can be drawn that the applicant was to give the bag he transported to Mr Flower, it is necessary for the Crown to prove that the applicant believed that Mr Flower, or another person, intended to sell the contents or any part of it. Recklessness as to that fact is not enough. Were the applicant simply collecting the bag for Mr Flower, unaware of (or under a misapprehension as to) the contents of the bag, it follows he would not know of Mr Flower’s (or some other person’s) intention to “sell” the substance in the duffel bag.

The question of cause

1. [17]

   The show cause test in s 16A of the Bail Act requires an applicant to demonstrate why in the particular case, and on the balance of probabilities, his or her detention is not justified. In contrast, the unacceptable risk test is confined to an exhaustive list of statutory considerations in s 18 of the Act which apply to all offences. While on many release applications the satisfaction of the show cause test will also result in the unacceptable risk test being met, that is not the inevitable outcome: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24]; R v Marcus [2016] NSWCCA 237 at [31] and [35]; McAndrew v R [2016] NSWCCA 58 at [9].

2. [18]

   This Court has also recognised that there is likely to be an interplay between factors that are relevant to both the show cause question and whether there is an unacceptable risk of certain things occurring were the applicant granted bail. Notwithstanding that interplay, the tests to be applied on a release application remain distinct.

3. [19]

   Mr Dhanji SC, who appeared for the applicant, commended the approach taken by Leeming JA in Barr (A Pseudonym) v Director of Public Prosecutions [2018] NSWCA 47; 97 NSWLR 246 at [85] where his Honour observed that in order to give content to the “conspicuously open-textured” test of justification in the show cause question in s 16A, this Court should take the preamble to the Bail Act as an appropriate starting point.

4. [20]

   The preamble provides as follows:

5. [21]

   Mr Dhanji submitted that in addition to the applicant enjoying “the presumption of innocence” and a general right to be at liberty, because there is nothing in the case advanced by the Crown to suggest that there is some additional factor relevant to the need to ensure the safety of victims of crime, individuals and the community, or the need to ensure the integrity of the justice system, considerable weight should be given to that state of affairs on the show cause question.

6. [22]

   The close relationship between the matters with which the Bail Act is concerned as set out in the preamble, and the bail concerns in s 17, underpins Leeming JA’s further observation in Barr where his Honour said, at [86]:

7. [23]

   Mr Dhanji submitted that on this application evidence from a large number of witnesses whose affidavits were read without objection amply demonstrates that none of the bail concerns in s 17 of the Bail Act that might give rise to an unacceptable risk of the kind with which s 18 of the Act is concerned are at issue. He submitted that, given the applicant’s established family and community ties, there is no risk of flight (or at least no assessable risk that appropriate bail conditions cannot deal with) (s (17(2)(a)); no risk of the applicant committing a serious offence (s 17(2)(b)); no risk of him presenting a danger to the community (s 17(2)(c)); and no risk that he will interfere with witnesses (s 17(2)(d)).

8. [24]

   Mr Dhanji submitted that in those circumstances this Court could find that the applicant has discharged the onus of demonstrating that his continued detention is not justified without the Court being concerned with an assessment of the strength of the case. He referred the Court to a line of authority that provides that although the assessment of the strength of the Crown case informs a consideration of the various bail concerns in the unacceptable risk test, a finding that the Crown case is strong is not determinative of the show cause question adverse to an applicant (see, for example, JM v R [2015] NSWSC 978 per Garling J at [41]).

9. [25]

   In further support of his submission that the applicant had discharged the onus of showing that his detention is not justified, Mr Dhanji relied upon a combination of matters personal to the applicant which justified him being on conditional liberty pending his trial. In that context the Court's attention was drawn to what was said to be the applicant’s legitimate interest in being at his liberty to support his infant son and his wife who, with a clinical history of anxiety and depression, has recently suffered a miscarriage, and his interest in doing what he can to maintain his commercial operations as an owner/operator of a smash repairs business which has been in business for 15 years; which currently employs 17 people; and which regularly engages subcontractors seeking to meet client demands. Mr Dhanji submitted that despite the New South Wales Crime Commission seeking orders restraining dealings with the applicant's property he has a legitimate interest in being at his liberty to both deal with that litigation and also to preserve his business assets.

10. [26]

    The applicant's wife gave evidence that since the applicant’s arrest she has endeavoured to expand her previous role as an administrative assistant to the business into a managerial position but she is struggling to discharge the additional responsibilities and to parent her infant son. She gave evidence that without the applicant's managerial skills the business is unsustainable and a sale is inevitable in the short term.

The Crown’s submissions

1. [27]

   The Crown submitted that the various matters relied upon by the applicant to satisfy the show cause requirement in s 16A are not sufficiently powerful to establish, on the balance of probabilities, that the applicant's continued detention is not justified.

2. [28]

   In the Crown's submission, this Court would not endorse Mr Dhanji’s submission that satisfaction of the unacceptable risk test is sufficient to discharge the onus on the applicant of showing cause, since that approach would undermine Parliament’s intention on the passage of the Bail Act that where there is a “show cause requirement for certain offences” the onus is on the applicant to establish that his or her detention is not justified. Ms Rodger submitted that that onus had not been discharged.

3. [29]

   She also submitted that the strength of the Crown case is a most material consideration on this application. In her submission, the Court should view the Crown case as strong given the overwhelming inference from the objective facts that the applicant knew or believed from what he was told by Mr Flower that the bag he was told to collect from Mr Mafiti at the hotel contained drugs, and that he took possession of the bag Mr Mafiti put in his car (without conversation or contact), knowing it contained drugs, believing that the drugs would later be surrendered to Mr Flower and thereafter on sold by him or someone else. She submitted that only a trusted accomplice would be delegated the task of collecting a valuable consignment of contraband and that his codename “sis” is evidence of that relationship.

4. [30]

   The Crown also submitted that despite the quantum of the security that is offered by the applicant, and from multiple sources, exceeding $1 million, there remains an unacceptable risk that he will fail to appear at his trial given the strength of the Crown case, the maximum penalty of life imprisonment and what the Crown submitted was evidence of the applicant’s continuing criminal connections with Mr Flower given the evidence that after his arrest he was visited in prison by one of Mr Flowers’s associates.

Determination

1. [31]

   While there is some force in Mr Dhanji’s favoured approach to the show cause question - an approach which would eschew focus on the strength of the Crown case and focus instead on the fact that there are no unacceptable risks of the kind with which s 18 of the Bail Act is concerned, on this application I am satisfied that the strength of the Crown case cannot be overlooked. I regard the Crown case as strong, although not overwhelming. However, despite the interplay of a number of bail concerns, the most critical being the risk of flight, I am satisfied that the applicant has shown cause why his continued detention is not justified. In coming to that view, I have given preponderant weight to the uncontradicted evidence from the applicant’s wife as to the difficulties she is experiencing in the applicant’s absence and what I am satisfied is the applicant’s legitimate interest in resuming the management of his business at a time when the business is subject to the commercial pressures identified by his wife in her evidence, pressures which I understand are driven, in part, by civil proceedings initiated by the New South Wales Crime Commission and his remand in custody over the last four months.

2. [32]

   I have also taken into account on the show cause question that any risk of flight (a bail concern under s 17 which I regard as in play where an applicant is accused of a serious offence carrying life imprisonment and when the evidence against him is objectively probative of his guilt) is addressed on this application by the evidence which establishes the strength of the applicant's ties to the community through his family, his legitimate business interests and the substantial security offered by friends and family. Although there was some suggestion of unexplained wealth consisting of the cash and watches seized on the applicant’s arrest which the Crown pointed to as an indicator of a source of funds to facilitate the applicant’s flight from the jurisdiction, in light of the review of his taxable income most recently undertaken by an accountant and other evidence tending to establish the provenance of the watches, I do not regard that submission by the Crown as attracting weight sufficient to displace the evidence upon which the applicant relied in support of his contention that, together with his ties to the jurisdiction, any risk of flight can be addressed by strict bail conditions.

3. [33]

   Finally, I am satisfied that release on the conditions I propose will adequately address any residual bail concerns in s 17 of the Bail Act which might give rise to an unacceptable risk that the applicant will fail to abide by his obligations to be of good behaviour whilst on bail as the criminal proceedings are processed through to trial or sentence.

Orders

1. [34]

   I propose the following orders:

   1. (1)

      Bail release application granted.

   2. (2)

      The applicant be admitted to bail upon the conditions set out in a schedule annexed to the Court’s file copy of this judgment.