Alzuain v Director of Public Prosecutions

[2020] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ALZUAIN v DIRECTOR OF PUBLIC PROSECUTIONS

[2020] SASC 6

Judgment of The Honourable Justice Blue

17 January 2020

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - SERIOUS AND ORGANISED CRIME SUSPECTS

The appellant is charged with murder. On his application for home detention bail, a Magistrate determined that he was a “serious and organised crime suspect” within the meaning of section 3A of the Bail Act 1985 and refused bail. He applies for review of the decision to refuse bail.

The appellant was determined to be a serious and organised crime suspect because the charge against him is punishable by life imprisonment; the offence was allegedly committed for the benefit and in association with the Hells Angels Motorcycle Club which was allegedly a criminal organisation; and his release on bail would be likely to cause a potential witness to reasonably fear for his safety.

The appellant does not challenge the serious and organised crime suspect determination and accepts that, pursuant to section 10A, he must establish special circumstances justifying his release on bail. He contends that special circumstances have been established.

Held (dismissing the application):

1. In the context in which an applicant is a prescribed applicant because he or she is a serious and organised crime suspect, establishing special circumstances requires an applicant to establish that the applicant’s circumstances place him or her outside of the contemplated risk to the community generally posed by persons falling within the class of serious and organised crime suspects having regard to the criteria for determination that a person is a serious and organised crime suspect (at [68]).

2. The appellant’s contention that he has severed all ties with the Hells Angels Motorcycle Club (and consequentially that he falls outside the risks posed to the community by the class of serious and organised crime suspects) is unsupported by evidence (at [74]-[75]).

3. On the evidence adduced during the bail review, the appellant has failed to establish the existence of special circumstances (at [81]).

4. Application for review of bail decision dismissed (at [83]).

Bail Act 1935 (SA) ss 3, 3A, 4, 10, 10A, 12; Criminal Law Consolidation Act 1935 (SA) ss 5, 83D, 127; Criminal Procedure Act 1921 (SA); Serious and Organised Crime (Control) Act 2009 (SA), referred to.
R v Lombardi (2013) SASR 577; R v Webb [2019] SASC 8, considered.

ALZUAIN v DIRECTOR OF PUBLIC PROSECUTIONS
[2020] SASC 6

Criminal: Bail Review

BLUE J:

1. The appellant Musa Alzuain (Mr Alzuain) has been charged with the murder of Jason De Ieso on 21 November 2012. On his application for home detention bail, a Magistrate determined that he was a “serious and organised crime suspect” within the meaning of section 3A of the Bail Act 1985 (SA) (the Act) and refused bail. This is his application for review of the decision to refuse bail.

2. Mr Alzuain was determined by the Magistrate to be a serious and organised crime suspect because the Magistrate determined that the charge against Mr Alzuain is a serious and organised crime offence within the meaning of section 5(1) of the Criminal Law Consolidation Act 1935 (SA). This was because the charge against Mr Alzuain is punishable by life imprisonment; the offence was allegedly committed for the benefit and in association with the Hells Angels Motorcycle Club which was allegedly a criminal organisation; and his release on bail would be likely to cause a potential witness to reasonably fear for his safety.

3. Mr Alzuain does not challenge the serious and organised crime suspect determination and accepts that, pursuant to section 10A, he must establish special circumstances justifying his release on bail. He contends that special circumstances have been established.

   Evidence

4. Mr Alzuain tendered, and I received, six affidavits by his solicitor, Harry Patsouris, sworn on 11 November, 21 November, 16 December, 17 December, 18 December and 19 December 2019 (which also exhibited various documents) together with two affidavits by his partner’s mother Emma Barolo and one affidavit by his boxing trainer Friday Nwaiwu. He also tendered a reference by Phillip Goods, a former president of Boxing Australia SA, and a letter by Joe Palladino.

5. The respondent Director of Public Prosecutions tendered, and I received, an affidavit by a solicitor in the Director’s office, Samantha Ive, sworn on 21 November (which in turn exhibited multiple affidavits by police and civilian witnesses and other documents) together with affidavits by Detective Brevet Sergeants Daniel Richardson and Daniel Ford each sworn on 18 December 2019.

6. No deponent was cross-examined and no oral evidence was adduced.

   Background

7. The facts set out below are based on the evidence adduced to the extent that it was not contradicted or challenged at the hearing of the bail review. Obviously, if such evidence were adduced in a different context (for example in the criminal proceeding), its admissibility and/or accuracy may be challenged. The facts, and the identification of the prosecution case, set out below are set out purely for the purpose of the bail review.

8. On 2 August 2019 Mr Alzuain was arrested for the murder of Mr De Ieso. On about the same date, his older brothers Hussain and Mohamed Alzuain, together with Daniel Jalleh and Ross Montgomery, were also arrested for the murder of Mr De Ieso. On 5 August 2019 an information was laid in the Magistrates Court charging those five men with the murder of Mr De Ieso.

9. On 21 November 2012 Mr De Ieso was shot and died at his workshop premises at Pooraka. The police subsequently recovered CCTV footage from the Pooraka premises which allegedly shows the arrival at approximately 1.40 pm of nine men in two cars, being a white Nissan Pulsar and a white Mazda. The CCTV footage from the Pooraka premises allegedly shows six of the men holding firearms, one of which was a sawn off shotgun. The prosecution case is that Mr De Ieso was shot in the head with a shotgun and that Mr Alzuain was the man seen in the CCTV footage holding a sawn off shotgun.

10. The prosecution case is that, at the time of the shooting, Hussain Alzuain was a full member, and the Sergeant at Arms, of the Hells Angels Motorcycle Club’s North Crew; Mohamed Alzuain, Mr Montgomery and Mr Jalleh were each “prospects”; and Mr Alzuain was an associate who spent time at the clubrooms and associating with full members and prospects. The prosecution case is that the shooting was intended as retribution for a firebombing of the Alzuain brothers’ parents’ house on the previous evening believed to have been undertaken by the rival Finks Motorcycle Club.

11. The prosecution case is that antipathy between the Hells Angels and the Finks pre-dated 2012. On 3 March 2012 there was an affray between Hells Angels members and associates and Finks members and associates outside Strats Nightclub at Hindley Street, Adelaide, in the course of which two shots were fired towards the Hells Angels members and associates. The prosecution case is that Mr Alzuain and Hussain Alzuain were present but not that they participated in the affray.

12. On 17 November 2012 there was an affray between Hells Angels members and associates and Finks members and associates at the entrance to a kick boxing event at the Adelaide Arena, Findon. The prosecution case is that Mr Alzuain and Hussain Alzuain were present but not that they participated in the affray.

13. On the evening of 20 November 2012, the front doors of the Alzuain brothers’ parents’ house were forced open and a Molotov cocktail was thrown into the house, causing a small fire in the kitchen. No one was home when this occurred. Later Mr Alzuain and Hussain Alzuain returned home and declined to speak to police. The prosecution case is that Hells Angels North Crew members and associates believed that the attack was made by the Finks Motorcycle Club.

14. In November 2012 Mohamed Alzuain was living at a unit at Parafield Gardens together with Mr Montgomery and his then girlfriend, “A”. A swore affidavits in August 2019 in which she said that:

    ·on the morning of 21 November 2012 she lent her car, a white Mazda 2, to Husain Alzuain (the prosecution case is that this was the Mazda seen on the CCTV footage at the Pooraka premises);

    ·several hours later Mr Jalleh and Mr Montgomery returned in her Mazda, and A drove off with them;

    ·Mr Jalleh asked her if she had insurance and, when she replied that she did not, Mr Montgomery said that he thought that she did and also said that they would sort it out;

    ·Mr Montgomery dropped A off at a shopping centre and departed in the Mazda;

    ·the police later phoned her and said that they had found the vehicle burnt out;

    ·on the following day Husain Alzuain said to her words to the effect “you’ll get a new car” (although this did not transpire).

15. A had originally signed a statement in November 2012 saying that she had left her car at the shopping centre, implying that someone must have stolen it and not mentioning any of the matters addressed in her 2019 affidavits. A’s evidence is likely to be challenged at trial, although it is to be noted that she does not implicate Mr Alzuain.

16. The prosecution case is that on the late morning of 21 November 2012 the five defendants together with five other men met at the Parafield Gardens unit. The white Nissan Pulsar and the white Mazda 2 were at or outside the unit. There was a silenced machine gun, a shotgun, a Russian pistol and a silver handgun on the table. The prosecution case is based on statements made to police by “B” in June 2013 and affidavits sworn by B in 2019. B said that he was called to the Parafield Gardens house by Mr Alzuain. B’s evidence is likely to be challenged at trial.

17. The prosecution case is that nine of the men present at the unit travelled to a premises at Salisbury North containing a tattoo parlour business owned by “C”, a member of the Finks Motorcycle Club; they arrived at about 1.15 pm, where they assaulted staff; and C was not present because he was at Mr De Ieso’s premises at Pooraka. The prosecution case is that the men learnt of C’s whereabouts and travelled to Mr De Ieso’s premises at Pooraka.

18. The prosecution case is that the men arrived at Mr De Ieso’s premises at approximately 1.40 pm in the white Nissan Pulsar and white Mazda 2, Mr De Ieso was shot in the head with the shotgun and a shot was fired from the silver handgun. There is no suggestion before me that Mr De Ieso was associated with the Finks but the prosecution case is that C, who had earlier been at Mr De Ieso’s premises, was a Finks member.

19. The prosecution case is that, after Mr De Ieso was killed, Mr Alzuain met up with B. Mr Alzuain arrived in the white Nissan Pulsar. He gave to B a black duffel bag containing heavy metallic items (which on the prosecution case were inferentially firearms taken to the scene of the murder) and instructed him to make sure that they were cleaned and destroyed. The prosecution case is based on evidence by B.

20. The prosecution case is that on 23 November 2012 Mr Alzuain met up with B at a tattoo parlour, gave him a handgun and said words to the effect “take this, have it on you just in case the same shit happens that we did the other day”.  When they left the tattoo parlour, Mr Alzuain told B to hold onto the gun because he might be raided by the police and did not want to have it with him. The prosecution case is based on evidence by B.

21. On the evening of 23 November 2012, the police found the silver handgun in the possession of B. The prosecution case is that ballistic evidence shows that this was the gun which fired a bullet found at the scene of Mr De Ieso’s murder. B was arrested and charged with being in possession of the handgun. B told the police at the time that he had found the handgun near his house.

22. The prosecution case is that, a few weeks after 23 November 2012, B asked Mr Alzuain if the gun that he gave him had been used in the murder and Mr Alzuain said words to the effect “it may have been fired into the air or into the workshop, there might be a bullet there”. The prosecution case is based on evidence by B.

23. On 6 March 2013 Mr Alzuain was interviewed by the police and informed that he was a suspect in the investigation of the murder of Mr De Ieso.

24. On 23 March 2013 B was formally interviewed by the police. He reiterated that he had found the handgun near his house and did not mention the matters addressed during his June 2013 interviews or in his 2019 affidavits.

25. On 15 and 23 June 2013 B was again formally interviewed by the police. He told the police the matters largely as summarised above.

26. In August 2015 the Hells Angels Motorcycle Club became a declared organisation under the Serious and Organised Crime Control Act 2009 (SA).

27. In July 2019 the police conducted a further series of interviews with B.

28. On 2 August 2019 Mr Alzuain was arrested for the murder of Mr De Ieso.

29. On 5 August 2019 Mr Alzuain appeared in the Magistrates Court on the charge of murder. He did not apply for bail and was remanded in custody.

30. On 6 November 2019 Mr Alzuain appeared in the Magistrates Court on his application for home detention bail. The Magistrate determined that he was a “serious and organised crime suspect” within the meaning of section 3A of the Act and refused bail.

    Personal and other circumstances

31. Mr Alzuain was born in 1992 in Saudi Arabia, his parents being refugees from Iraq. The family migrated to Australia in 1994 and moved to Adelaide in 1998. Mr Alzuain completed year 12 in 2011 and then started working in his father’s transport business. At some point he commenced his own transport business operating several trucks in the metropolitan area of Adelaide. Since he was arrested in August 2019, a friend of his, Mr Palladino, has overseen the operation of the business.

32. In 2013 Mr Alzuain’s parents were divorced. They each currently live alone. Evidence was not adduced as to where Mr Alzuain has lived since December 2012 before he moved in to live with Ms Barolo’s family in about May 2019.

33. In about July 2018 Mr Alzuain began a relationship with Claudia, Ms Barolo’s elder daughter, who was then 18 or 19 years old.

34. In about May 2019 Mr Alzuain moved into the family home of Ms Barolo and her husband in which Claudia and her family were living.

35. Mr Alzuain owns a residential property. He offers to provide security, supported by a caveat, over the property as security for his bail recognisance. A Land Services SA search showed its purchase date and price, its capital value assessed by the Valuer-General as at 1 January 2019 and that it is subject to a mortgage. Mr Patsouris said in his affidavit sworn on 19 December 2019 that he is instructed as to the market value of and the amount of debt secured against the property.

36. Ms Barolo offers to act as a guarantor of bail. She offered in her first affidavit sworn on 26 November 2019 to provide a cash surety of up to $350,000. Evidence was then adduced by the Director of communications indicating that this money would be provided by Mr Alzuain or his family. Ms Barolo in her second affidavit sworn on 18 December 2019 said that, if she provided a cash security, it would be sourced by her borrowing $200,000 from Husain Alzuain’s wife and $150,000 from Mr Alzuain. She also said that she was willing to have a caveat executed over her property.

37. Ms Barolo alone or jointly with her husband owns three properties. Land Services SA searches showed their capital value as assessed by the Valuer-General as at 1 January and mortgages or charges registered in respect of each property. Mr Patsouris said in his affidavit sworn on 17 December 2019 that he is instructed as to the market value of and amount of debt secured against each property.

38. Mr Patsouris said in his affidavit sworn on 19 December 2019 that he was instructed that Ms Barolo’s husband was willing to allow a caveat to be registered over his interest in the joint properties.

39. Mr Alzuain’s partner Claudia and his mother also offered to act as guarantors of bail.

    Legislative regime

40. Sections 3 and 4 the Act define an eligible person to be, amongst others, a person who has been taken into custody on a charge of an offence.

41. Subsection 10(1) of the Act creates a primary rule that an eligible person who applies for bail and has been charged but not convicted should be released on bail. This rule is commonly referred to as a presumption in favour of bail.

42. The primary rule is subject to exceptions. The first exception is that subsection 10(1) vests in the bail authority a discretion to decline to grant bail if, having regard to relevant matters, the bail authority considers that the applicant should not be released on bail. Paragraphs (a) to (f) identify five specific matters to which the bail authority may (and implicitly must) have regard. Paragraph (g) identifies “any other relevant matter” as a matter to which the bail authority may have regard. Subsection 10(4), which has no application in the present case, requires the bail authority to give primary consideration to the need that the victim of the charged offence may have or perceive for physical protection from the applicant.

43. Subsections 10(1) and (4) provide:

    10—Discretion exercisable by bail authority

    (1)If an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to—

    (a)     the gravity of the offence in respect of which the applicant has been taken into custody; and

    (b)     the likelihood (if any) that the applicant would, if released—

    (i)abscond; or

    (ii)offend again; or

    (iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or

    (iv)commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and

    (d)     any need that the applicant may have for physical protection; and

    (e)     any medical or other care that the applicant may require; and

    (f)    any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and

    (g)     any other relevant matter,

    the bail authority considers that the applicant should not be released on bail.

    …

    (4)Despite the other provisions of this section, if there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.

44. Section 10 recognises that the question whether bail should be granted involves balancing the prejudice or risk of prejudice to the community if bail is granted against the prejudice or risk of prejudice to the applicant if bail is refused. The risks to the community that most commonly arise for consideration are those reflected in paragraph (b), namely that the applicant will:

    1.     abscond;

    2.     interfere with witnesses, evidence or police inquiries; or

    3.     commit a further offence (including a breach of an intervention order).

45. The gravity of the offence (section 10(1)(a)) and any previous failure to comply with bail terms (section 10(1)(f)) may be seen to impact on the assessment of these risks.

46. On the other hand, a primary risk or prejudice to the applicant if bail is refused will usually be that the applicant will have spent time in custody if the applicant is ultimately not found guilty or is not sentenced to a term of imprisonment for that period. Other risks or prejudices include any need the applicant may have for medical care that cannot be provided in custody (section 10(1)(e)), any need for physical protection that cannot be provided in custody (section 10(1)(d) – although this factor may point in the other direction) and other effects on the applicant (and those dependent on the applicant) of being in custody.

1. The second exception to the primary rule is that, if the applicant is a prescribed applicant within the meaning of section 10A, bail is not to be granted unless the applicant establishes the existence of special circumstances justifying release on bail. This exception is commonly referred to as a presumption against bail.

2. Subsections 10A(1) and (2) provide:

   10A—Presumption against bail in certain cases

   (1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.

   …

   (2)In this section—

   prescribed applicant means—

   (a)an applicant taken into custody in relation to any of the following offences if committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit:

   (i)an offence against section 13 of the Criminal Law Consolidation Act 1935 in which the victim's death was caused by the applicant's use of a motor vehicle;

   (ii)an offence against section 19A of the Criminal Law Consolidation Act 1935;

   (iii)an offence against section 29 of the Criminal Law Consolidation Act 1935 if the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle; or

   (b)an applicant taken into custody in relation to an offence against section 17 if there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under section 11(2)(a)(ii); or

   (ba)an applicant taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or

   (bb)an applicant who is a serious and organised crime suspect;

   (c)an applicant taken into custody in relation to an offence of contravening or failing to comply with a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008; or

   (ca)an applicant charged with an aggravated offence involving physical violence or a threat of physical violence if an aggravating circumstance of the offence is that, at the time of the alleged offence, the applicant is alleged to have contravened an intervention order of a court and the offence lay within the range of conduct that the intervention order was designed to prevent; or

   (d)an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:

   (i)section 20A;

   (ii)section 85B;

   (iii)section 172;

   (iv)section 248;

   (v)section 250; or

   (e)an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 3 Division 3 of the Sentencing Act 2017); or

   (f)an applicant taken into custody in relation to both—

   (i)a serious drug offence (within the meaning of section 34 of the Controlled Substances Act 1984); and

   (ii)a serious offence against the person (within the meaning of section 74EA of the Summary Offences Act 1953); or

   (g)an applicant who is a terror suspect.

3. It can be seen that there are a range of diverse circumstances in which an applicant will fall within the definition of a prescribed applicant. However, they have in common the fact that the legislature perceives that the risks to the community of release on bail are greater when they are present to the extent that the usual presumption of bail should be reversed.

4. One of these circumstances is that contained in paragraph (bb), namely that the applicant is a serious and organised crime suspect. That term is defined in section 3A, which provides:

   3A—Serious and organised crime suspects

   (1)A bail authority may determine that a person is a serious and organised crime suspect for the purposes of this Act if the bail authority is satisfied, on application by the Crown, that—

   (a)the person has been charged with a serious and organised crime offence; and

   (b)the person was not, at the time of the alleged offence, a child; and

   (c)     the grant of bail to the person is likely to cause a potential witness, or other person connected with proceedings for the alleged offence, to reasonably fear for his or her safety.

   (2)A determination by a bail authority that a person taken into custody on a charge of an offence is a serious and organised crime suspect ceases to apply after 6 months if, at that time—

   (a)the person has not been tried, or is not on trial, for the offence; and

   (b) the trial of the offence is not subject to a determination of the Supreme Court or the District Court under section 127 of the Criminal Procedure Act 1921.

   (3)Subsection (2) does not affect the operation of a bail agreement to which the person is subject at the time at which the determination ceases to apply.

   Note—

   The person is, however, eligible to reapply for bail—see section 4(1)(h).

5. Section 3 of the Act defines a serious and organised crime offence to have the same meaning as in the Criminal Law Consolidation Act 1935(SA) (the Consolidation Act). Subsection 5(1) of the Consolidation Act defines that term as follows:

   serious and organised crime offence means—

   (a)an offence against Part 3B; or

   (b)an offence that—

   (i)is punishable by life imprisonment; or

   (ii)is an aggravated offence against a provision of this, or any other, Act,

   if it is alleged that the offence was committed in the circumstances where—

   (iii)the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or

   (iv)in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation);

6. Part 3B of the Consolidation Act creates offences involving participation in a criminal organisation which is defined by subsection 83D(1) to be either a declared organisation (within the meaning of the Serious and Organised Crime (Control) Act 2008 (SA)) or a criminal group (within the meaning of subsection 83D(1) of the Consolidation Act).

7. Subsection 3A(2) of the Act provides that a serious and organised crime suspect determination has a limited duration of six months before trial unless the Supreme Court or the District Court makes a determination under section 127 of the Criminal Procedure Act 1921(SA). That section provides:

   127—Prescribed proceedings

   (1)The Supreme Court and the District Court must make rules for expediting prescribed proceedings and, if there has been a determination by a bail authority under the Bail Act 1985 that the defendant in such proceedings is a serious and organised crime suspect, the trial of the matter must be commenced within the period of 6 months after the making of that determination, unless the determination ceases to apply or the court determines—

   (a)     on its own initiative, that it is not reasonably practicable for the court to deal with the matter within that period; or

   (b)     on application by the Director of Public Prosecutions or the defendant, that exceptional circumstances exist that justify the matter being set down for trial at a later date.

   (2)In this section—

   prescribed proceedings means proceedings for—

   (a)     an alleged serious and organised crime offence; or

   (b)     an offence joined in the same information as an alleged serious and organised crime offence,

   where the proceedings have been instituted in a superior court by the Director of Public Prosecutions laying an information ex officio in accordance with section 103.

8. On a literal reading of section 127, it appears to be confined to proceedings instituted by an ex officio information, although this appears to be contrary to its evident purpose. This question of construction has not been argued on this bail review and I do not express a view concerning it.

9. Section 4(1)(h) of the Act provides that eligible persons include:

   (h)a person who is no longer a serious and organised crime suspect because of the operation of section 3A(2);

   and subsection 4(1a) provides that:

   A person who is eligible to apply for bail in accordance with subsection (1)(h) may so apply despite the fact that he or she is already subject to a bail agreement (the previous bail agreement) if, at the time of the previous bail agreement, the person was a serious and organised crime suspect (and if a new bail agreement is entered into following such an application, the previous bail agreement ceases to be in force).

10. These provisions appear to have been inserted out of an abundance of caution because nothing in the Act prevents subsequent bail applications and subsection 12(2) expressly provides that refusal of an application for release on bail does not preclude further applications. However, they do underline the fact that a serious and organised crime suspect determination is of limited duration (prima facie six months).

11. Subsection 10A(1a) precludes a serious and organised crime suspect from establishing special circumstances unless that person first establishes by evidence that he or she has not previously been convicted of a serious and organised crime offence. That subsection provides:

    (1a)An applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist for the purposes of subsection (1) unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of—

    (a)a serious and organised crime offence; or

    (b)an offence committed in another jurisdiction that would, if committed in this jurisdiction, have been a serious and organised crime offence.

12. It is common ground in this case that Mr Alzuain has established that he has not previously been convicted of a serious and organised crime offence.

13. Returning to subsection 10A(1) of the Act, the term “special circumstances” is not defined. In R v Lombardi[1] Kourakis CJ said:

    It can be accepted that the term “special circumstances” cannot be comprehensively or exhaustively defined.  The particular circumstances which might qualify as special circumstances may vary over a great range.  ...  However, the term “special circumstances” will ultimately take its meaning and content from the context of the provision in which it appears.  It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision. 

    In R v Barnett, I surveyed the use of the expressions “special reasons” and “special circumstances” in South Australian statutory provisions.   The survey showed that special reasons or circumstances are those reasons or circumstances that were beyond the contemplation of Parliament.

    As I earlier observed, s 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough. The discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen hardship or injustice.[2]

    [1] [2013] SASC 61, (2013) 115 SASR 577.

    [2]    At [22]-[24]. (Footnotes omitted)

14. In applying this approach to the facts of that case, Kourakis CJ said:

    In my view, the respondent has failed to establish the existence of special circumstances in this case. The primary consideration must be whether the applicant’s circumstances place him or her outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicant. The circumstances of the alleged offending will therefore be very important. In this case, the alleged circumstances of the offending are typical of the class of serious firearm offenders prescribed by s 10A(2)(e) of the Bail Act. The firearm was a sawn-off shotgun hidden in a house in which it is alleged there was a significant quantity of the drug amphetamine. The possession of the listening devices, having been left unexplained, raises an inference of sophisticated involvement in organised crime. Ammunition was scattered around the house.

    I accept that the circumstances which should be considered for the purposes of s 10A(1) also extend to the respondent’s personal circumstances. In this case the respondent’s criminal offending history is not as bad as some of the offending histories of persons charged with offences of this kind. However, it is not a good record. The respondent’s relatively poor health is important. It would make it difficult for him to stay on the run for a protracted period of time but his need for medical attention is periodic and not constant. Moreover, his condition has not prevented him from working in the relatively arduous occupation of tiler. As I earlier observed there is no material to suggest that his condition cannot be suitably managed in prison.

    The remand of the appellant in custody will result in some hardship for his de facto partner but there is no reason to think that she and her child will not be supported by her family and friends, including the respondent’s mother.  Indeed, the appellant’s partner had been residing in Mount Gambier for three months before the appellant’s home was searched by police.

    The respondent’s capacity to abscond and commit any further offences would be severely limited by home detention bail.  However, the possibility of home detention bail must have clearly been in the contemplation of Parliament and in itself, therefore, does not go very far in establishing special circumstances in a particular case.

    The respondent is in a position to offer substantial guarantees of bail.  The ability to offer by way of security amounts as substantial as that which the respondent’s mother could provide is not commonplace.  However, a circumstance is not special simply because it is rare.  Some care must be exercised in the weight which is accorded to the capacity to offer a substantial guarantee.  If it is accorded too much weight it may serve to advantage prescribed applicants who are higher up in an organised crime hierarchy.[3]

    [3]    At [25]-[29]. (Footnotes omitted)

15. The approach to the connotation of special circumstances articulated by Kourakis CJ at [59] above has been adopted in subsequent cases.[4]

    [4]    See for example R v Ravesi [2016] SASC 128 at [12] per Nicholson J; R v Perre [2017] SASC 102 at [20]-[21] per Kourakis CJ; R v Hayes [2018] SASC 114 at [11] per Kelly J; and R v Webb [2019] SASC 8 at [9]-[13] per Hinton J.

    Have special circumstances been established?

16. The Magistrate made a determination under section 3A of the Act that Mr Alzuain is a serious and organised crime suspect. On the bail review, Mr Alzuain does not challenge that determination.

17. The first essential element of the determination was that Mr Alzuain has been charged with a serious and organised crime offence. The first component of this element is that he has been charged with an offence punishable by life imprisonment. The offence of murder is punishable by life imprisonment.

18. The second component of the first element is that the alleged offence by Mr Alzuain was for the benefit, at the direction or in association with a criminal organisation or benefit of two or more members of a criminal organisation. It is an integral part of the prosecution case that the murder of Mr De Ieso was committed for the benefit of, and in association with, the Hells Angels Motorcycle Club and that organisation was at the time a criminal group and thereby a criminal organisation.

19. The second essential element of the determination was that Mr Alzuain was not a child at the time of the alleged offence.

20. The third essential element of the determination was that the grant of bail to Mr Alzuain is likely to cause a potential witness (or other person connected with proceedings for the alleged offence) to reasonably fear for their safety. The affidavits by B provided material on the basis of which the Magistrate could find that he reasonably feared for his safety if bail is granted to Mr Alzuain.

21. Mr Alzuain contends that special circumstances have been established because he no longer has any connection to the Hells Angels, which indicates (amongst other things) that he is not at risk of interfering with witnesses.

22. It is common ground on the bail review that, as held by Kourakis CJ in R v Lombardi,[5] the discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk that Parliament had in contemplation in reversing the presumption. In the context in which an applicant is a prescribed applicant because he or she is a serious and organised crime suspect, establishing special circumstances requires an applicant to make out that his or her circumstances place him or her outside of the contemplated risk to the community that is generally posed by persons falling within the class of serious and organised crime suspects, having regard to the criteria for determination that a person is a serious and organised crime suspect.

    [5] [2013] SASC 61, (2013) 115 SASR 577.

23. The first step in assessing whether special circumstances have been established must therefore be to identify the risk that Parliament had in contemplation and has resulted in the applicant being a prescribed applicant.

24. In this case, Mr Alzuain is a prescribed applicant as a result of a combination of three circumstances:

    1he allegedly committed an offence punishable by life imprisonment (murder);

    2the offence was allegedly committed for the benefit and in association with the Hells Angels Motorcycle Club, which was allegedly a criminal organisation; and

    3his release on bail would be likely to cause a potential witness to reasonably fear for his safety.

25. If Mr Alzuain has established that he no longer has any connection to the Hells Angels, it is common ground that this would affect the assessment of the risk that he would interfere with a witness, namely B, if released on bail. Whether this would result in the establishment of special circumstances would then need to be assessed.

26. It is clear that section 10A imposes the onus of establishing special circumstances on the applicant. Mr Alzuain has not given any evidence, whether by affidavit or orally, on the bail review. He has not adduced evidence that he has severed any ties with the Hells Angels Motorcycle Club. The absence of such evidence was drawn to the attention of his counsel during an early hearing of the bail review but he did not subsequently adduce any such evidence.

27. Mr Patsouris in his affidavit sworn on 16 December 2019 set out what he described as a “combination of some of the submissions made by senior counsel for the applicant during the hearing of the bail application before Magistrate Sheppard and other facts personal to the applicant”. Those matters included a statement that since March 2016 “he has distanced himself from the negative peer group that he associated with” before that time. I infer that this was a submission made by Senior Counsel to Magistrate Sheppard at the bail hearing. Mr Patsouris does not in his affidavit purport to give hearsay evidence in the form of a statement that he has been informed by Mr Alzuain and believes that he severed all ties with the Hells Angels Motorcycle Club. Nor does he give any detail in relation to such ties or the severing of them. In the circumstances, Mr Patsouris’ affidavit is incapable of amounting to evidence, let alone establishing, that Mr Alzuain has severed all ties with the Hells Angels Motorcycle Club. If Mr Alzuain wished to establish this fact, it was incumbent on him to give first hand evidence in detail to establish it.

1. Mr Alzuain has not established that he no longer has any connection to the Hells Angels. It follows that he has not established that the severing of ties has diminished the risk that he would interfere with a witness, namely B, if released on bail.

2. Mr Alzuain contends that the severing of any connection to the Hells Angels also indicates that he is not at risk of reoffending. However, he has failed to establish the major premise for this contention for the reasons given.

3. Mr Alzuain contends that special circumstances are established because, after being put on notice that he was a suspect in a murder investigation on 6 March 2013, he travelled overseas for boxing tournaments and returned to Australia, indicating that he is not a flight risk. Mr Alzuain left and returned to Australia in May 2018 and April 2019. This was more than five years after he was told that he was a suspect in the murder investigation. The circumstances are very different now that he has been charged with murder and has received disclosure of some of the evidence intended to be relied on by the prosecution. In any event, the primary risk by reason of which Mr Alzuain is a prescribed applicant relates to the risk of interference with witnesses rather than the risk of absconding. The fact that Mr Alzuain has twice travelled overseas after having been informed in March 2013 that he was a murder suspect is incapable of amounting to special circumstances in the context in which he is a prescribed applicant because he is a serious and organised crime suspect.

4. Mr Alzuain contends that special circumstances are established because he is in a supportive relationship, his home detention would be with his partner’s mother, he has several guarantors and he is able to put up significant cash and property surety.

5. In R v Lombardi[6] Kourakis CJ accepted that the circumstances which should be considered for the purposes of subsection 10A(1) also extend to the applicant’s personal circumstances and in R v Webb[7] Hinton J had regard to the fact that the applicant was the primary caregiver of two sons aged five and two in the course of finding that special circumstances were established in the case.

   [6] [2013] SASC 61, (2013) 115 SASR 577.

   [7] [2019] SASC 8.

6. I accept that Mr Alzuain is in a supportive relationship with his partner Claudia and his home detention if bail is granted would be with her mother and family. Evidence was adduced and submissions were made by both parties concerning communications between Mr Alzuain and Claudia but it is not necessary to consider those communications. This is a factor particularly in assessing the risk of absconding but is incapable of amounting to special circumstances in the context in which Mr Alzuain is a prescribed applicant because he is a serious and organised crime suspect.

7. I also accept that Mr Alzuain has several guarantors and is able to put up significant cash and property surety. I note that there is no independent evidence, and no real evidence, as to the market values of or amounts secured by mortgages or charges over the properties. Such evidence ought to have been adduced. However, assuming that evidence could be adduced to support the figures advanced by Mr Patsouris, I accept that the provision of such security and sureties is relevant to an assessment of the risk that Mr Alzuain would breach the conditions of bail if bail were granted. However, it is incapable of amounting to special circumstances in the context in which Mr Alzuain is a prescribed applicant because he is a serious and organised crime suspect.

8. Considering the matters contended by Mr Alzuain to give rise to special circumstances both individually and in combination, Mr Alzuain has failed to establish the existence of special circumstances. By the operation of section 10A, bail is not to be granted.

9. Mr Alzuain contends that his transport business has suffered as result of his being in custody and will continue to suffer if he remains in custody. He relies on a letter by Mr Paladino addressed to whom it may concern. Mr Alzuain does not contend that this comprises a special circumstance, but rather that it is a matter to be taken into account if special circumstances are otherwise established in determining whether bail should be granted. Given my conclusion above, it is not necessary to further consider Mr Paladino’s letter. However, I observe that the letter is vague concerning Mr Paladino’s dealings with Mr Alzuain since Mr Alzuain’s arrest, the conduct of the transport business since that time and the precise reasons why the business has suffered and will continue to suffer if Mr Alzuain remains in custody. If Mr Alzuain wished to rely on such hardship, it was incumbent on him to adduce evidence in relation to it, such as by obtaining a detailed affidavit from Mr Paladino.

   Conclusion

10. Mr Alzuain’s application for review of the bail decision is dismissed.

11. I observe that the serious and organised crime suspect determination will in the ordinary course expire on 6 May 2020, being six months after it was made. If that occurs, Mr Alzuain can make a fresh application for bail in the Magistrates Court (or in the Supreme Court if an ex officio information in this Court has by then been laid) in a context in which he is no longer a prescribed applicant.