R v Hay [2010] NSWSC 14 (20 January 2010)

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R v Hay [2010] NSWSC 14 (20 January 2010)

Last Updated: 2 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Hay [2010] NSWSC 14
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:


FILE NUMBER(S):
209616/2009

HEARING DATE(S):
20 January 2010

JUDGMENT DATE:
20 January 2010

EX TEMPORE DATE:
20 January 2010

PARTIES:
Regina - Crown
Applicant - Matthew Robert Hay

JUDGMENT OF:
Latham J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Regina - Ms M Lagana
Applicant - Mr G Williams

SOLICITORS:
Regina - Commonwealth Director of Public Prosecutions
Applicant - Guy P Williams & Co


CATCHWORDS:
Bail s.8A Bail Act - Application under Criminal Code (Cth) - s 8A(1)(b1) - drug offences - relevant quantity of drug - pure quantity is relevant commercial quantity

LEGISLATION CITED:
Criminal Code
Drug Misuse and Trafficking Act 1985
Bail Act 1978

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
Bail application refused



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

LATHAM J

20 January 2010

209616/20099 R v Matthew Robert HAY

JUDGMENT - Application for bail

1 The applicant, Matthew Robert Hay, applies for bail in respect of two charges, one under s 307.6 of the Criminal Code, being possess a marketable quantity of a border controlled drug, namely, cocaine and another under s 307.1 of the Criminal Code charged as a conspiracy to import a commercial quantity of a border controlled drug, namely, cocaine.

2 It should be observed that the Commonwealth Crown has acknowledged that the latter charge will shortly be withdrawn and substituted with a charge under s 307.2 of the Criminal Code, namely, conspiracy to import a marketable quantity of a border controlled drug, being cocaine.

3 The case against the applicant is entirely circumstantial. That, of course, is not an unusual characterisation of a Crown case in such matters.

4 The offences might best be briefly described in the following terms: the applicant who has worked for a company over the past 18 months or thereabouts was responsible for meeting and servicing aircraft with food and beverages. He was rostered on certain days with the company known as "Gate Gourmet" to carry out that activity. The Crown case consists of a number of communications including text messages and conversations captured by way of intercepts between the various employees of the company, including the applicant and others, whereby, by means of interpreting what is said to be a code, the co-conspirators were arranging for the importation of cocaine in aircraft which were to be serviced as part of their employment duties. The conspiracy is said to relate to a period between 30 October 2008 and 20 September 2009. It is true to say that the actual communications between the applicant and his alleged co-conspirators are confined largely to a period between 3 September 2009 and 20 September 2009 and that the occasions on which the applicant arranges, according to the Crown case, for his shift to be changed with another employee, in order to allow him access to the relevant aircraft upon which the drugs were concealed, support the interpretation which the Crown seeks to place upon those communications and upon other features of the Crown case.

5 It is acknowledged that the applicant is perhaps not at the top of the hierarchy, nonetheless his role in the commission of the offences if it is proved to the requisite standard is a significant one and exposes him to a maximum penalty on each charge of 25 years imprisonment.

6 The applicant has a criminal history which cannot be described as serious, certainly not by reference to the gravity of the charges which he presently faces. His criminal history is confined to a period between 1980 and 1998 and is also confined largely to the Riverina area in which he then resided. They are entirely convictions of a summary nature and are confined to minor property offences and assault offences. He has remained offence-free, as I said, since late 1998. It is in these circumstances that the applicant's ties to the community and his capacity to answer bail acquire some weight in what would ordinarily be an exercise of the discretion to grant bail. However, the discretion in this case is circumscribed by the terms of s 8A of the Bail Act 1978. Section 8A operates to impose a presumption against bail for certain offences and provides that the Court is not to grant bail unless the applicant satisfies the Court that bail should not be refused. Thus it is that the presumption must be displaced by the applicant.

7 Section 8A (1)(b1) provides in respect of Commonwealth drug offences that it applies to an offence under s 307.2 and s 307.6:

"....only if the goods or substances concerned are alleged to be of a nature and quantity required for an offence referred to in paragraph (a)...".

8 Paragraph (a) contains references to offences under the Drug Misuse and Trafficking Act 1985. Included in paragraph (a) is a reference to an offence under s (25)(2) of that Act. That section deals with the supply of a prohibited drug and prescribes a regime whereby for the purposes of this case the commercial quantity applicable to cocaine is 250 g. It is, of course, accepted that 250 g of cocaine for the purposes of the offence under the Drug Misuse and Trafficking Act relates to the gross weight of the drug that is seized , that is, what is referred to in the Act as the ad mixture. This regime varies from that prescribed by the Commonwealth in that for the purposes of the respective quantities of drugs under the Criminal Code that expose an offender to ever increasing penalties, the relevant quantity is the pure quantity of the drug, that is, not the gross weight or the ad mixture.

9 In the circumstances of this case the possess charge relates to a gross weight of 966.3 g of cocaine, being a pure weight of 250.7 g of the drug. The same quantity of the cocaine is the basis for the conspiracy to import charge. Thus it is that the pure weight, namely, 250.7 g is not less than the relevant prescribed commercial quantity for the purposes of the Drug Misuse and Trafficking Act regime. It is clear that on this basis the offences charged against this applicant come within the terms of s 8A.

10 Before moving to a further consideration of the limits of s 8A it is pertinent to observe that I do not read s 8A(1) (b1) of the Bail Act 1978 in the terms suggested by the representative of the Commonwealth Crown. It was submitted at one stage in the course of these proceedings that the Commonwealth has regarded the gross weight of the drug as the relevant quantity for the purposes of bringing the matter within s. 8A of the Bail Act. In my view the words in s 8A(1) (b1), namely:

"... only if the goods or substances concerned..."

relate to the goods or substances concerned in the commission of the offence, namely, the pure quantity of the drug being that which grounds the offence under the Commonwealth Code. Furthermore the reference to:

"... of a nature and quantity required for an offence referred to in paragraph (a)..."

clearly establish a direct link between the pure quantity of the drug and the threshold amounts established by the Drug Misuse and Trafficking Act, albeit that those threshold amounts are for the purposes of the New South Wales prosecutions referable to an ad mixture. In other words, I do not approach this application on the basis that 966.3 g of cocaine is the relevant amount for the purposes of determining the attraction of s 8A. I approach it on the basis that the pure weight of 250.7 g is the appropriate weight for the purposes of determining whether or not s 8A applies. That this is the proper interpretation of s 8A(1)(b1) follows from a consideration of the possible circumstances under which s 8A might apply if the Commonwealth Crown's submission was to be accepted. It cannot be the case that the supply of 2 kg of a powder of which, upon analysis, only 10 g constitutes a pure drug attracts the terms of s 8A. That would be to make a mockery of the legislative intent behind s 8A, namely, that it should apply to the most serious offences in the criminal calendar that prescribe sentences of at least 25 years imprisonment. A quantity of a drug as low as 10 g for the purposes of a Commonwealth prosecution could not possibly attract a term of imprisonment of that order if it were charged under the relevant section of the Criminal Code.

12 It follows then to consider whether or not s 8A operates in these circumstances to confine the applicant's prospects for bail. It is trite to observe that the legislative intention behind s 8A is that bail would ordinarily be refused and that a heavy burden rests on an applicant to satisfy the Court that bail should be granted.

13 One of the principal considerations in the approach to s 8A is to determine the strength of the Crown case and to accord somewhat lesser weight than would otherwise be placed upon subjective circumstances which are common to a number of bail applicants. There is nothing special in the case of this applicant that would overshadow the strength of the Crown case against him. In saying that I acknowledge that he has remained crime-free for a period of approximately 10 years and that his community ties are unremarkable, albeit they are substantial. It is also not uncommon for the Court to encounter persons of otherwise good character who are accused of drug offences of the instant kind. That is commonly the case because persons whose employment is associated with the movement of international aircraft are subjected to greater scrutiny than might otherwise be the case.

14 It is acknowledged that the Crown case is perhaps not as strong as other conspiracies where in addition to the circumstantial nature of the case there might be concrete evidence associating the applicant with the drug in question. It is, however, pertinent to note that the drug which is the subject of the possess charge and of the conspiracy charge was located by AFP officers in the rear of the aircraft which was accessed by the applicant and another alleged co-conspirator shortly after the aircraft had landed. Indeed, the applicant and a co-conspirator gained access to the rear of the aircraft before passengers had fully disembarked. The drug was found in two packages of compressed powder which had, according to some surveillance in the course of the flight, been secreted in the toilet at the rear of the plane. The applicant's alleged co-conspirator is said to have retrieved the package from that space and placed it on a food carrier on top of the food trolley. Thereafter it was the applicant who opened the aircraft door and the trolley was pushed along the aisle and through that door before being placed upon a truck used by Gate Gourmet.

15 In summary there is, in my view, sufficient material in the Crown’s circumstantial case to raise a reasonable prospect of a conviction in respect of both charges against the applicant and on that basis I would refuse the application. It is, however, open to the applicant following the committal of these matters for trial to re-visit this application if anything should emerge which changes the circumstances of his application either by way of his subjective circumstances or by way of any significant diminution in the Crown case as I have briefly outlined.

16 At this stage the entirety of the brief has not been served, although it is acknowledged that most of the material referable to the applicant is in the possession of his legal advisers.

17 For all of the above reasons the application is presently refused.

**********

AMENDMENTS:


01/02/2010 - Amend format of Judgment - Paragraph(s) 1-17

01/02/2010 - 25.7g amended to 250.7 g - Paragraph(s) 9


LAST UPDATED:
1 February 2010