IN THE MATTER OF AN APPLICATION FOR A VARIATION OF BAIL BY RISHI KHANDELWAL [2011] ACTSC 95 (2 June 2011)

BAIL VARIATION – variation to bail conditions sought to allow applicant to travel overseas – risk of applicant failing to return to Australia if permitted to travel overseas – application dismissed

Criminal Code 1995 (Cth)

No. SCC 283  of  2010

Judge:	Nield A/J
Supreme Court of the ACT
Date:	2 June 2011

IN THE SUPREME COURT OF THE	)
	)	No. SCC 283 of  2010
AUSTRALIAN CAPITAL TERRITORY	)

	

IN THE MATTER OF AN APPLICATION FOR A VARIATION OF BAIL BY RISHI KHANDELWAL

ORDER

Judge:	Nield A/J
Date:	2 June 2011
Place:	Canberra

THE COURT ORDERS THAT:

1.	The application to vary bail is dismissed.

1.	On 19 February 2010 the Australian Taxation Office (ATO) reported an alleged income tax fraud by the applicant, Mr Rishi Khandelwal.
2.	On 2 August 2010 Police obtained search warrants to search:
a)	11 Kalianna Street, Harrison, in the ACT, at where the applicant lived;
b)	unit 2, 24 De Burgh Street, Lyneham, in the ACT, at where the applicant had lived;
c)	the applicant’s workplace at Food Standards Australia New Zealand, Level 2, 55 Blackall Street, Barton, in the ACT, at where the applicant was employed;
d)	a 2005 model black-coloured Toyota Camry sedan, number plate ACT YDU 31L, registered in the applicant’s name;
e)	a 2004 model silver-coloured Nissan coupe, number plate NSW ARR 23P, registered in the applicant’s name; and
f)	various post office boxes at various locations in Canberra controlled by the applicant. 
3.	On 3 August 2010 Police searched:
a)	a locked 3-drawer filing cabinet at the applicant’s workplace at Food Standards Australia New Zealand finding, inter alia, six bundles of $50 notes, totalling $60,000.00, in the second drawer;
b)	the master bedroom of 11 Kalianna Street, Harrison, in the ACT, finding, inter alia, $9,305.00 and a receipt for payment for two lockers at the Sports and Recreation Centre, Building 19, at the Australian National University (ANU) in North Road, Acton, in the ACT, in a shoebox in the top drawer of a wardrobe, and 
c)	2004 model silver-coloured Nissan coupe finding, inter alia, 97 bank key cards in various names and a diary.
4.	On 3 August 2010, after finding the receipt related to the lockers at the Sports and Recreation Centre, Police obtained a warrant to search the lockers and later searched locker number seven finding, inter alia, five bundles of $50 notes, totalling $50,000.00, and then locker number 54 finding, inter alia, six bundles of $50 notes, totalling $60,000.00.
5.	Later, on 3 August 2010 Police, who had the applicant under surveillance, followed the applicant to the Escape Internet Cafe on the upper level of the Canberra Centre, Civic, in the ACT, at where he sat at a computer terminal and deleted emails from a web-based email account.
6.	Then at about 6.33 pm on 3 August 2010 Police arrested the applicant and took him to the ACT City Watch House, at where, after declining, as he was entitled to do, to be interviewed, he was charged with the offence of dealing with money, valued at $100,000.00 or more, namely $179,305.00, knowing it to be the proceeds of crime, contrary to s 400.4 (1) of the Criminal Code 1995 (Cth) and, after being charged, he was remanded in custody, bail refused, to appear later before a magistrate in the ACT Magistrates Court to answer the charge.
7.	Accordingly, on 4 August 2010 the applicant appeared before a magistrate in the ACT Magistrates Court in relation to the charge and the proceedings were stood over to 18 August 2010 and he was remanded in custody, bail again refused.
8.	On 10 August 2010 the applicant applied to the Supreme Court for bail.  The application was supported by an affidavit of the applicant’s wife, Mrs Surbhi Khandelwal, affirmed on 10 August 2010 and by two affidavits of the applicant’s solicitor, Mr Benjamin Aulich, one affirmed on 10 August 2010 and the other on 11 August 2010.
9.	On 13 August 2010 Higgins CJ heard the applicant’s application for bail and granted bail upon conditions that:
1.	a surety is to deposit $12,000.00 cash and/or deeds to a house;
2.	the applicant is to report twice daily to Gungahlin Police Station once between the hours of 6.00 and 10.00 am, and once between the hours of 6.00 and 10.00 pm;
3.	both the applicant and Mrs Khandelwal are to surrender their passports to Police;
4.	the applicant is not to apply for any further travel identity documents;
5.	the applicant is to reside at 11 Kalianna Street, Harrison, in the ACT;
6.	the applicant is not to leave the ACT;
7.	the applicant is not to leave Australia;
8.	the applicant is not to approach within 100 metres of any point of international departure; and
9.	the applicant is not to use a telecommunications service, including telephones and the internet.
Subsequently, on 11 November 2010 conditions two and nine were varied.
10.	On 18 August 2010 the applicant was charged with 51 offences of dishonestly obtaining a financial advantage from a Commonwealth entity, namely the ATO, by deception, contrary to s 134.2 (1) of the Criminal Code 1995 (Cth), in addition to the offence of dealing with the proceeds of crime with which he had been charged on 3 August 2010.
11.	On 18 September 2010 the applicant appeared before the Registrar of the ACT Magistrates Court and he pleaded not guilty to each of the offences with which he had been charged.
12.	On 11 November 2010 the charges against the applicant were listed before the Chief Magistrate of the ACT Magistrates Court for a case management hearing and the hearing was stood over to 31 March 2011, later to 23 June 2011, to allow further time for the Police to complete the investigation into the applicant’s activities.
13.	On 2 May 2011 the applicant applied to this Court to vary the conditions of bail to allow him to travel, with his wife and their baby daughter, from the ACT to India so that he and his wife may perform two rituals of the Hindu faith on their daughter.  His application was supported by an affidavit of Mrs Khandelwal affirmed on 2 May 2011 and an affidavit of Mr Aulich affirmed on 2 May 2011.
14.	On 6 May 2011 the applicant’s application for a variation of bail came on for hearing before me and, on the application of the applicant, the hearing was stood over to 20 May 2011.
15.	Accordingly, on 20 May 2011 the applicant’s application again came on for hearing before me.  On this occasion, the applicant’s counsel asked me to disqualify myself from hearing the application on the basis of apprehended bias for some comments that I made in Court on 6 May 2011.  As I did not consider that any fair minded observer sitting in Court on 6 May 2011 would reasonably apprehend that I might not bring an open and unbiased mind to the application, or that I may have pre-judged the applicant’s application, I refused to disqualify myself from hearing the application.
16.	On the hearing of the applicant’s application for a variation of bail the Crown prosecutor, who said that the Crown opposed the application, called Federal Agent Tony de Smet to give evidence and tendered into evidence a spreadsheet of 87 pages containing details of many people, see Exhibit A, a series of emails between the applicant’s wife and Foram Pabari (who I assume to be a relative or close friend of the applicant’s wife) in which reference was made to the plan of the applicant and his wife to return to India to live, see Exhibit B, and an email from Dr Assa Doran, a fellow in Anthropology of the School of Culture, History and Language, of the ANU, commenting upon the rituals that the applicant and his wife wish to perform on their daughter, see Exhibit C.  The applicant’s counsel tendered a copy of the Extradition Treaty between Australia and the Republic of India dated 23 June 2008 issued by the Department of Foreign Affairs and Trade, a copy of the Extradition (India) Regulations made on 8 July 2010 and the Explanatory Statement related to the Regulations issued by the Minister of House Affairs, see Exhibit 1.
17.	The Crown’s overall case is that the applicant had lodged income tax returns seeking a tax refund using the names of students who had lived in Australia and who had returned to live in their homelands, and that he had received the payments of tax refunds into bank accounts over which he had control and for which he had the banks’ key cards.  I understand that the Crown will lay about 250 charges of dishonestly obtaining a financial advantage by deception, as well as the charge of dealing with the proceeds of crime, and that the Crown will allege that the applicant received about $900,000.00 in payment of tax refunds issued by the ATO.  Details of 225 instances in which a tax refund was paid by the ATO into a bank account in the name of a student who had lived in Australia and over which the applicant had control are contained in the 104 pages of the statement of facts prepared by Federal Agent Tony de Smet, which statement is part of annexure A to the affidavit of Mr Aulich affirmed on 2 May 2011.  The Crown prosecutor submitted that the Crown’s overall case was strong and supported by the spreadsheet found on the applicant’s computer equipment, the applicant’s diary and the various key cards found in the applicant’s car and the sum of $179,305.00 found in the applicant’s home, at his workplace and the lockers at the Sport and Recreation Centre.
18.	The applicant’s counsel submitted that the application for variation of bail should be granted because, although these are not his words - 
a)	the religious rituals that the applicant and his wife wish to perform on their daughter are important rituals of the Hindu faith;
b)	the applicant must be present at and participate in the rituals;
c)	the rituals must be performed in India;
d)	the applicant has complied with the conditions of bail granted on 13 August 2010 and varied on 11 November 2010 and is likely to continue to comply with the conditions of it if it is varied;
e)	bearing in mind the numbers of charges, laid and to be laid, and the volume of material in the Crown’s brief of evidence – 38 A4 ring binder folders as at 2 May 2011 (see paragraph eight of Mr Aulich’s affidavit affirmed 2 May 2011), it is unlikely that a committal hearing in relation to the charges will be held before the end of this year;
f)	in the unlikely event that the applicant did not return from India, there is an extradition treaty in force which would enable his extradition from India.
19.	The Crown prosecutor submitted that the applicant’s application should be refused because, although these are not her words –
a)	so far as the Crown knows, neither the applicant nor his wife has any close relatives in Australia;
b)	other than he or his wife or both of them owning two homes in the ACT, both of which are encumbered by a mortgage, neither the applicant nor his wife has any tie to Australia;
c)	the applicant and his wife had intended to leave Australia to return to India to live, albeit that that plan was postponed to the end of 2009 and then not put into effect;
d)	as the offences are serious offences, and as the Crown’s cases are strong, the likelihood of conviction for the offences is high, with sentences of imprisonment, measured in years not months, being imposed, with the result that there is incentive for the applicant, if allowed to travel to India, to fail to return to Australia from India;
e)	if the applicant fails to return to Australia from India, finding him in India, although possible, would be difficult and expensive and extradition to Australia from India, although possible, would be also difficult and expensive.
20.	I note that the applicant’s wife does not say in her affidavit the time when the rituals should be performed on her daughter.  I do not know whether they should be performed before the child’s first birthday, or the child’s third birthday, or the child’s tenth birthday, or before the child attains her majority.  The absence of evidence as to the time when the rituals should be performed removes the element of urgency from the applicant’s application.
21.	I note that Dr Doran says that, although ideally the rituals should be performed in a localised setting along the river Ganges, it is not essential for them to be so performed.  This removes the element of necessity to travel from the applicant’s application.
22.	In any event, I agree with the Crown prosecutor that the risk of the applicant failing to return to Australia from India if he were allowed to travel to India with his wife and daughter is too great to grant the applicant’s application.
23.	In the result I dismiss the applicant’s application to vary a condition of his bail.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:

Date:	 3 June 2011

Counsel for the applicant:	Mr J Pappas
Solicitor for the applicant:	Ben Aulich and Associates
Counsel for the respondent:	Ms Sara Cronan
Solicitor for the respondent:	Commonwealth Director of Public Prosecutions
Date of hearing:	20 May 2011
Date of judgment:	2 June 2011