R v Snounou

1. [1]

   The applicant for bail is to stand trial commencing on 1 February 2021 in the District Court on an indictment pleading 31 counts of serious prohibited drug offences. There are 28 counts of possessing a precursor (iodine) between 13 September 2013 and 30 March 2017. One count of importing a border-controlled precursor (benzyl cyanide) between 23 March 2017 and 30 March 2017 and one count of possessing a different precursor (hypophosphorous acid) between 21 October 2016 and 13 June 2018 and, finally, one count of importing a commercial quantity of gamma-butyrolactone (GBL) on or about 15 December 2017. The last mentioned offence carries a maximum penalty of life imprisonment and is a show cause offence for the purpose of s 16A and s 16B Bail Act 2013 (NSW).

2. [2]

   The Crown case is that iodine is a precursor in the manufacture of methylamphetamine. The total amount involved in the 28 offences allegedly committed over a period of 3 and a half years is 17 tonnes. A single shipment of 225 kilograms of benzyl cyanide, which the Crown evidence associates with the applicant, landed in Australia on or before 25 June 2017, and the hypophosphorous acid was detected on 21 October 2016 at premises controlled by the applicant. Some quantities of these precursors were detected by investigators variously distributed among nine clandestine drug manufacturing laboratories raided by police at various times over the period of the alleged offending. Physical surveillance evidence and telephone intercepts on the Crown case connect the applicant to the supply of the precursors to at least some of these laboratories.

3. [3]

   One kilogram is the threshold for the commercial quantity of GBL. The charge against the applicant relates to a single consignment of 190 kilograms detected upon entry into Australia on 15 December 2017.

4. [4]

   The applicant has been in custody bail refused since his arrest on 21 February 2018.

5. [5]

   Bail was applied for on 15 March 2018 when the matter was before Central Local Court and was refused. There have been two prior bail applications in this Court, on 6 June 2018 and 21 February 2019 which were refused on 8 June 2018 and 12 March 2019 respectively. An application for bail to the Court of Criminal Appeal when the applicant was self-represented was refused on 12 July 2019 for reasons published in a restricted manner on 26 July 2019. The course of the proceedings before the Court of Criminal Appeal and its reasons for refusing bail assumed some importance in the conduct of the application before me as I refer to below.

Previous bail applications and determinations

1. [6]

   That Lonergan J and Ierace J refused bail after hearing a release application engages s 74 of the Bail Act requiring me to refuse to hear this application “unless there are grounds for a further release application”. A number of grounds as set out in s 74(3) were propounded by Mr Brady SC who appeared for the applicant. Mostly, these matters were disputed by Ms Newman of Counsel for the Crown but she accepted that with respect to the relocation of Mr Snounou’s family to Australia “circumstances relevant to the grant of bail have changed” since the previous “applications in this Court”. This change related to the circumstances informing the bail concern that if the applicant is released from custody he will fail to appear at his trial for the offences. Ms Newman also accepted that one change of circumstance was sufficient to engage the Court’s power to consider the current application. In my judgment these concessions were properly made. I record that the risk of non-appearance was material to the refusal of bail by each of Lonergan J, Ierace J, and the Court of Criminal Appeal.

2. [7]

   I should note that it was not argued that the refusal of bail by the Court of Criminal Appeal in July 2019 affected my power to consider this application. This seems odd because by s 3(1) Criminal Appeal Act 1912 (NSW), “the Supreme Court shall for the purposes” of that Act “be the Court of Criminal Appeal … constituted by such three or more judges of the Supreme Court as the Chief Justice may direct”. But for some purposes at least under the Bail Act, the Court of Criminal Appeal is treated as though it were a court different from the Supreme Court: see s 22 and s 67 of the Bail Act. In this regard, s 67(2) prohibits a single judge of the Court of Criminal Appeal from hearing a bail application if a bail decision has been made by the Supreme Court, except as may be authorised under the Supreme Court Act 1970 (NSW). Section 69 of the Bail Act refers to the Supreme Court and Court of Criminal Appeal separately but, it must be said treats their bail decisions equally. The main thrust of s 69 is that other courts may only hear a bail application after a bail decision has been made by the Supreme Court or the Court of Criminal Appeal, inter alia, if “special facts or special circumstances justify the hearing of the bail application”. It does not provide that the Supreme Court may only hear a bail application after a bail decision has been made by the Court of Criminal Appeal “if … special facts or special circumstances justify the hearing of the bail application”.

3. [8]

   Were I wrong about this, I repeat that the applicant was not legally represented when his bail application to the Court of Criminal Appeal was dealt with and he now has representation: s 74(3)(a) Bail Act. This fact would empower me to hear this release application, in any event.

Show cause requirement

1. [9]

   As I have already said, Count 31, importing a commercial quantity of GBL on 15 December 2017, is a show cause offence because it carries a maximum penalty of life imprisonment. By s 16A Bail Act I must refuse bail unless Mr Snounou shows cause why his detention is not justified. This question is separate from and anterior to the application of the unacceptable risk test: s 16A(2); Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25]; Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 at [51]. However, the bail concerns identified in s 17 and the mandatory considerations listed in s 18 Bail Act are not irrelevant to the question of whether Mr Snounou has shown cause that his detention is not justified: Tikomaimaleya [24]; Moukhallaletti at [53].

2. [10]

   A conventional approach to the show cause decision is to make an assessment of the strength of the Crown case against an applicant and then view the matters propounded as showing cause through the lens of the strength of the Crown case. Such an assessment is not limited to s 17 and 18 considerations. Other factors relevant generally may be taken into account. The enactment of the show cause requirement establishes that there are certain offences, the presumption of innocence and the general right to be at liberty notwithstanding, for which the detention of the accused person on remand awaiting trial is justified.

3. [11]

   I think it also relevant to bear in mind in the circumstances of the present case that although only one of the thirty-one counts is a show cause offence, as Ms Newman has submitted, the assessment of its strength falls to be made in the context of other alleged instances of serious drug offending. The twenty-nine counts of possessing a precursor used in the manufacture of prohibited drugs each carry a maximum penalty of imprisonment for ten years.

The applicant’s show cause case

1. [12]

   To show cause Mr Brady relies upon the following five factors in combination:

The need to be at liberty to prepare for trial

1. [13]

   So far as the applicant’s need to be at liberty to prepare for trial is concerned, it is necessary to refer to the proceedings in the Court of Criminal Appeal. It should be borne in mind that the applicant has been in custody since the date of his arrest on 21 February 2018 and is not to stand trial until 1 February 2021. Given the period of time over which the alleged offending took place, the brief consists of some fifteen lever arch folders and includes: lawfully intercepted telephone conversations, surveillance evidence, courier records relating to the delivery of iodine to presumptive users, the location of buckets of iodine which the Crown allege can be traced to the applicant at some nine illegal drug labs, direct evidence of the applicant delivering iodine to a drug lab operator, evidence of employees that the precursor drugs were not used in the company’s manufacturing operations, handwritten notes at the applicant’s home, which the Crown alleges refer to methamphetamine and MDMA and other evidence.

2. [14]

   The question of the difficulty of an accused person preparing his defence while on remand was raised in argument before the Court of Criminal Appeal on 12 July 2019. In the course of argument, counsel then appearing on behalf of the Crown (not Ms Newman) in countering the then unrepresented Mr Snounou’s show cause case referred to his argument about “his difficulty in preparing his defence given the large amount of electronic evidence”. This led to the following exchange with R A Hulme J (at 7.20 - .38T):

3. [15]

   Counsel downplayed the force of that consideration by observing that it is not uncommon for there to be significant amounts of electronic evidence in “large drug matters such as this matter” and for the accused to be on remand awaiting trial. In response Davies J observed (at 7.47T):

4. [16]

   Counsel was instructed that it was possible for the New South Wales Police to be able to provide a laptop with the brief in electronic form but “there may be some delay”.

5. [17]

   At the conclusion of oral argument that day, the Court dismissed the bail application reserving its reasons. When pronouncing those orders the Presiding Judge, Leeming JA stated (at 21.25 - .30T):

6. [18]

   The Court’s reasons were published on 26 July 2019 with Davies J giving the leading judgment in which Leeming JA and R A Hulme J agreed: [2019] NSWCCA 167. Davies J dealt with this issue at [32] – [35]. His Honour referred to the large amount of electronic material in the brief, including 18 discs and 2 USBs containing over 440 videos. The brief also included CCR material relating to the applicant’s movements logged by reference to his mobile signal, telephone intercepts and Excel documents of sales made by his chemical company over the period covered by the charges. His Honour said:

7. [19]

   Shalala v R was a decision of R S Hulme J. The passage referred to by Davies J, his Honour said at [19] – [22]:

8. [20]

   The evidence before me establishes that New South Wales Police have been unable to equip Mr Snounou with a laptop over the objections of Corrective Services. It should be noted that Mr Snounou himself had made an application on 3 June 2019 to Corrective Services seeking access to a laptop “with internet access” and “printing facilities” for the purpose of the preparation of his defence. This application was not processed until after he was moved to a different correctional centre. Eventually Mr Snounou’s application was refused by letter dated 7 November 2019 because Corrective Services would not countenance other than a laptop with read only functionality. It was assumed such a laptop would not meet Mr Snounou’s requests. It was also pointed out that, albeit limited, computers were available for use by inmates during restricted hours, Monday to Friday.

9. [21]

   A request by the Officer in Charge in September 2019 for “further access to a computer” for Mr Snounou does not appear to have been answered in any meaningful way. A further enquiry by the OIC on 19 May 2020 produced a copy of the letter of 7 November 2019. An earlier email of 4 May 2020 made clear that Corrective Services would not allow outside agencies to provide laptops. It confirmed that read only laptops were available at the discretion of a particular Corrective Services Committee that meets monthly.

10. [22]

    It is quite apparent to me that notwithstanding the observations of the Court of Criminal Appeal in July 2019, nothing meaningful has been done to equip Mr Snounou with the means of reviewing the brief in the electronic form. It is obvious having regard to the material that he needs access to a laptop or a computer over an extended period. No offer of a read only laptop for his personal use appears to have been made and his trial is due to commence in a little under five months. I accept that he is at a significant disadvantage in preparing his defence to a large number of charges relating to alleged offending over several years supported by a very voluminous brief including material which could only be considered on a computer. The probabilities are that this disadvantage will not be remedied in sufficient time for him to properly prepare his defence in consultation with his lawyers prior to the commencement of his trial, and that further efforts by New South Wales Police are unlikely to bear any fruit.

11. [23]

    These considerations are somewhat compounded by the circumstances in which persons are held in custody during the current public health pandemic. All legal conferences are required to be conducted by audio visual link. Again the demand for limited facilities outweighs supply.

Time in and circumstances of custody

1. [24]

   As I have said, by the likely time of the jury’s return, Mr Snounou will have spent over three years in custody. Even for a large drug matter involving a high degree of complexity this is a long time. But I would not regard it, of itself as constituting “cause”. I acknowledge, however, that part of the delay was caused by delay in providing the brief. I accept that time in custody during the pandemic given the measures that Corrective Services have taken to safeguard officers and inmates from an outbreak of coronavirus in correctional centres are even harder than they would normally be. However, in my view, relevant as this remains, it must be borne in mind that this factor is common to all inmates and not particular to Mr Snounou’s case. Again, of itself it would not constitute cause.

Family circumstances

1. [25]

   Although more relevant to the unacceptable risks test to which I will return, his family who had previously been living in Lebanon, and supported by Mr Snounou’s family in Australia, have now returned to take up residence in this country again. They are in fact living with Mr Snounou’s mother at Sylvania Waters. This factor reduces the risk of flight, but does not in my view contribute much to cause.

The father’s ill health

1. [26]

   The evidence establishes that Mr Snounou’s elderly father has separated from his mother and has a number of medical conditions which require the provision of domestic assistance that was formerly provided by his wife. The father’s situation, given his age and his vulnerability is exacerbated by the pandemic. He accordingly is in need of assistance which cannot readily be provided by other members of the family who are in full time employment with obligations to their immediate families. If released to bail the applicant, it is proposed, would reside with his father and take up responsibility for providing the necessary care.

The strength of the bail proposal

1. [27]

   As I will return to, a very stringent suite of conditions is proposed with a very significant financial surety to be provided with security. Again this is more relevant to the unacceptable risks test and of itself may not make much difference to the question of cause.

The strength of the Crown case

1. [28]

   As Mr Brady acknowledges in assessing the strength of the Crown case, the Court has limited time and limited materials available to it. It is inappropriate to attempt to conduct a mini trial. Mr Brady acknowledges that “it could not be said that the Crown case is weak” but there are triable issues. He submits that there is a real prospect of an acquittal at trial. So far as the show cause offence is concerned, Mr Brady referred to s 313.2 of the Criminal Code 1995 (Cth) which effectively allows a defence of honest and reasonable mistake. The basis of the mistake is that Mr Snounou’s company had ordered the purchase of GBL through another agency, Sigma Aldrich Pty Ltd in September 2017. The relevant Federal authority granted a permit to Sigma authorising the importation of as much as 300 kilograms of GBL. Mr Snounou’s company, as the intended end user declared that it required the chemical for use as an enhancement to electronic circuit board cleaners and paint stripper the company was already manufacturing and distributing. And also wished to explore its usefulness as “an intermediate in the manufacture of pyrrolidones”.

2. [29]

   As things transpired Sigma was only able to source 90 kilograms from their suppliers in the United States. The evidence in the Crown case will be that Sigma had advised Mr Snounou that the permit would lapse at the end of the calendar year and he sourced the approximate balance from a supplier in China, which was delivered in December 2017 before the permit lapsed.

3. [30]

   There are many issues about this case, but it should be borne in mind that the Crown will carry the onus of negativing the possible defence beyond reasonable doubt. Some of the issues, about which I am not purporting to be exhaustive, include the consideration that the permit authorised Sigma and not Mr Snounou’s company to import the chemical. And the chemical imported from China was described by the supplier on its invoice as “essence aroma”. The Crown case is that this is a deliberate misdescription for the purpose of concealing the true nature of the importation indicating, on the part of the importer (said to be Mr Snounou), rather than the exporter, a consciousness of guilt. However, the evidence will indicate that a lawful use of the controlled importation of GBL includes the manufacture of fragrances including in the perfume industry.

4. [31]

   Mr Brady relies upon the following factors to demonstrate that the Crown may have difficulty in negativing the defence:

The Court of Criminal Appeal’s decision on cause

1. [32]

   The Court of Criminal Appeal was satisfied that Mr Snounou had shown cause, however, it was not satisfied he had passed the unacceptable risk test. That Court was of the view that the Crown case was weak on the element of importation given that Mr Snounou’s company had placed orders for the GBL with Sigma which was the entity responsible for the importation. Moreover, the Crown conceded that there was no evidence about whether Mr Snounou’s company legitimately used GBL other than the assertion that the contents of the end user declaration were lies. The Court was not convinced that the Crown case was a strong one on the material available to it.

2. [33]

   Mr Brady concedes that the offending importation was made by Mr Snounou’s company from China and not through Sigma, so that difficulty conceived of by the Court of Criminal Appeal could not be maintained before me. However, the honest and reasonable mistake point was not run before the Court of Criminal Appeal.

3. [34]

   In the end the Court of Criminal Appeal found that cause had been shown by viewing the question of delay until trial through the prism of what it regarded as “not a strong Crown case”. When the Court of Criminal Appeal made its decision it was expected that the trial would be held in about the middle of 2020. Even so, Davies J said at [39]:

Conclusions as to cause

1. [35]

   Looking at the show cause offence separately, I am of the view that there is a real issue for trial in terms of the honest and reasonable mistake defence which the Crown must negative. For this reason, different from the reasoning of the Court of Criminal Appeal, I am of the view, on the material before me that the Crown case is not very strong and that there is a real prospect that Mr Snounou may be acquitted. Looking then at the difficulties Mr Snounou faces in terms of preparation for a complex trial, and taking into account as an additional factor the prospect of delay which concerned the Court of Criminal Appeal, I am persuaded on the balance of probabilities that Mr Snounou has shown cause why his detention is not justified.

The unacceptable risk test

1. [36]

   It is appropriate to consider the strength of the whole of the Crown case including the 30 other counts, for the purpose of the unacceptable risk test. The prosecution emerges from a long and detailed police investigation into the commercial activities of Mr Snounou as the controller of a chemical company involved in the manufacture of commercial and industrial cleaning products. As I have stated, most of the charges relate to possession of iodine as a precursor with intent to manufacture methamphetamine and the Crown brief is voluminous.

2. [37]

   As against this, the applicant while not carrying any onus of proof asserts that the iodine was acquired and supplied in the ordinary course of the company’s business.

3. [38]

   Mr Brady acknowledges that the Crown case is not weak. Indeed it seems to me that it has the hallmarks of having been produced by a long and careful police investigation. Some aspects of the case seem damning, such as the location of iodine or iodine containers that the Crown assert can be traced to the applicant, or his company, at raided drug labs. A former business partner of the applicant had been arrested running a drug lab at the company’s premises to manufacture MDMA and it is said that the Crown case does not exclude him as the source of the iodine. I am satisfied that the Crown case on these other counts is one of some strength, even if it is difficult on a bail application to be satisfied that each and every count is strong.

4. [39]

   I turn then to the specific bail concerns.

Risk of flight

1. [40]

   The Crown submits that there is an unacceptable risk of the applicant failing to appear at any proceedings for the offence. It was this concern rising to the level of unacceptable risk that caused the Court of Criminal Appeal to refuse the applicant’s bail application. The risk of flight was a significant factor influencing the decision of Lonergan J and it is clear from the reasons of Ierace J that the risk of flight was one of real concern to him. In this regard their Honours took into account the seriousness of the drug importation charge and the maximum penalty for that charge as factors which would cause concern that even a person with a robust belief in his own innocence may take flight rather than take his chances before a jury. Moreover, it is evident from the evidence that the applicant has business contacts in India and Dubai and when the prior applications were made, the applicant’s estranged wife and their three children were residing overseas, first in Dubai and then in Lebanon, albeit supported by the applicant’s family based here in Australia.

2. [41]

   As I have said the return of his family to reside in Australia is a material change in circumstances which to my mind very substantially reduces the risk of flight notwithstanding, obviously, he maintains his overseas business contacts. One needs to also bear in mind that Australian borders are currently closed and one may only leave the country under an express exemption granted by the Minister for Home Affairs. It seems likely that these restrictions will remain in place for the foreseeable future up to and beyond February 2021.

3. [42]

   Equally important to the management of this risk as the return of the applicant’s family is the large surety of $1.67 million proffered by the applicant’s family and friends. The whole of this amount would be secured by either a charge over real property or cash deposit. I am of the view that in the changed circumstances these measures together with surrender of passports, reporting requirements and curfew reduce the risk of flight well below the level of unacceptability.

Risk of commission of a serious offence

1. [43]

   Given the nature of the charges as alleged incidents of the large scale manufacture or supply of prohibited drugs, the Crown understandably raises the bail concern that the applicant may commit a serious offence if released to bail. It is the experience of the courts that persons involved in drug supply at various levels often fall into their old ways if released on bail. It must be said, current charges aside, that the applicant’s criminal record is not suggestive of a person who has long and deep involvement in the supply of prohibited drugs. There is a conviction in 2010 for importing a border controlled drug without commercial intent. I understand from what I was told from the Bar table, without objection that this offending consisted of the applicant returning to Australia with a very small amount of a prohibited drug in a plastic bag in his pocket. Clearly it was for personal use as is evidenced by the consideration that he was dealt with by recognisance under s 19B Crimes Act 1914 (Cth). The applicant does not appear to be a person who has a serious addiction which would lead him back into a criminal milieu. His record is not such as to give rise to a concern of serious offending. The stringent bail conditions to which I have referred are such as to reduce this risk to manageable proportions.

Interfering with witnesses

1. [44]

   Part of the Crown case depends upon the evidence of persons associated with or employed by the applicant’s company. There is a clear risk, given that his need to prepare his defence is a governing factor indicating the appropriateness of a grant of bail, that he may come into contact with or be tempted to approach these people. Mr Brady made clear that apart from making himself familiar with the case against him, Mr Snounou needs to be at liberty to identify, obtain and organise documents capable of showing that the chemicals referred to as precursors in the charges were acquired for legitimate purposes. This may involve liaising with company officers to obtain those documents.

2. [45]

   It seems to me that the conditions I have already referred to will assist to manage this risk together with a geographical restriction preventing the applicant from approaching the business premises of the company and a non- contact condition.

3. [46]

   During discussion at the hearing, a Mr Graham Peters was identified as an officer of the company who would be in a position to assist with the provision of documents. I think it appropriate that Mr Snounou be able to contact that person but only through his solicitor, Mr Faro or his associates.

4. [47]

   The need to adequately prepare his defence and the delay in the matter coming to trial are considerations which not only serve to show cause why Mr Snounou’s detention is not justified, but also indicate that he has a legitimate need to be at liberty and for the reasons I have given, I am satisfied that the concerns legitimately raised by the Crown are not unacceptable.

5. [48]

   For these reasons I grant conditional bail.