Alzuain v The Queen - [2020] SASC 203

Supreme Court of South Australia
(Criminal: Application)
ALZUAIN v THE QUEEN
[2020] SASC 203
Judgment of The Honourable Justice Livesey (ex tempore)
23 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with murder. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing her bail.
Held, dismissing the application; bail is refused.
Bail Act 1985 (SA) s 3A, s 10, s 14, referred to.
Alzuain v Director of Public Prosecutions (SA) [2020] SASC 6; Director of Public Prosecutions (SA) v Alzuain [2020] SASC 136, considered.

ALZUAIN v THE QUEEN
[2020] SASC 203
Criminal: Application
LIVESEY J:
Introduction

This is an application for review under s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a refusal by a Magistrate to grant bail on 3 August 2020.
The applicant was arrested in August 2019 and charged with a number of co-accused with the murder of Mr Jason De Ieso by shooting on 21 November 2012.
Previous applications
The applicant’s initial application for bail was heard and determined in the Magistrates Court on 6 November 2019, the Magistrate determining that the applicant was a “serious and organised crime suspect” within the meaning of s 3A of the Act. He was refused bail. The applicant then sought a review of the Magistrate’s decision to refuse him bail.
On 17 January 2020 Blue J dismissed the application, finding that the applicant could not demonstrate “special circumstances” as is required by s 10A of the Act. Blue J intimated that the applicant could make a fresh application for bail following 6 May 2020 when the serious and organised crime suspect determination would ordinarily expire.[1]
[1] Alzuain v Director of Public Prosecutions (SA) [2020] SASC 6, [84]. See s 3A of the Bail Act 1985 (SA).
Subsequently, Doyle J held that s 3A permits only one determination and an application by the Director of Public Prosecutions for a further determination in a different matter was dismissed.[2]
[2] Director of Public Prosecutions (SA) v Alzuain [2020] SASC 136.
The attitude of the prosecution
The prosecution opposes the grant of bail in any form given:
1.     the gravity of the offence and the strength of the prosecution case;
2.     the risk the applicant would abscond if granted bail;
3.the applicant’s criminal antecedents and consequent risk of reoffending; and
4.     the need to protect witnesses.
The application for review
The applicant now emphasises the presumption in favour of bail under s 10(1) of the Act. He pressed the following principal features on this application:
1.if released on strict home detention with electronic monitoring it is very unlikely that the applicant will abscond or again offend or interfere with prosecution witnesses; and
2.notwithstanding the applicant’s criminal antecedents, there is no good evidence that he is still associating with the Hells Angels Motorcycle Club, and a sentencing judge in 2016 found that the applicant enjoyed good prospects of rehabilitation.
The evidence considered
I have been provided with the following affidavits:
1.Affidavit of Samantha Ive affirmed on 21 November 2019 (annexures SI1 – SI27), filed on previous review.
2.Affidavit of Samantha Ive affirmed on 11 December 2019 (annexures SI28 – SI31), filed on previous review.
3.Affidavit of Samantha Ive affirmed on 3 September 2020 (annexures SI32 – SI79).
4.Affidavits of Harry Iraklis Paul Patsouris affirmed on 25 August and 18 September 2020.
5.Affidavit of Claudia Bonifazio sworn 17 August 2020.
6. Affidavit of Friday Nwaiwu sworn 16 September 2020.
7.Affidavit of Nunzio Bonifazio sworn 18 September 2020.
8.Affidavit of Emma Barolo sworn 18 September 2020.
9.Affidavit of Peter Stacy sworn 18 September 2020.
Much of this evidence was elicited in order to meet observations earlier made by Blue J regarding deficiencies in the evidence offered in support of the earlier application.
Consideration of the application
The submissions of the applicant did not dwell on the gravity of the offence, nor the strength of the prosecution case. Nonetheless it must be remembered, as was emphasised by the applicant, that the applicant enjoys the presumption of innocence and the many allegations made by the prosecution have not yet been tested.
In essence, the Crown case is that the attack on the deceased was planned as part of retribution by the Hells Angels Motorcycle Club against the Finks Motorcycle Club following an escalation in a feud between them during 2011 and 2012. Though it is not suggested that the deceased was involved with the Finks Motorcycle Club, Mr Charles Bonnici was friendly with the deceased and, at the time of the shooting, Mr Bonnici was a member of the Finks Motorcycle Club. It is not necessary to detail the various incidents that characterised the feud.
Whilst the prosecution submits that there are convictions for breaching bail and failing to comply with a public safety order, as well as a finding of a breach of a court-imposed bond, these all occurred between 2009 and 2012.
The applicant maintains that his domestic partner and her mother are prepared to be guarantors. Though there is evidence to suggest that the relationship between the applicant and his domestic partner is characterised by conduct which could be described as domineering, possessive and abusive, the affidavits supplied to me attest to the strong ties between the applicant and his domestic partner and members of her family. It also attests to their trust and faith in the applicant. Nonetheless, it is recognised that these relationships developed after the subject alleged offending in 2012.
The preparedness of the mother of the applicant’s domestic partner to provide significant funds by way of surety has previously been questioned in circumstances where, ultimately, it transpired that the funds were primarily to be sourced from the Alzuain family. In addition, insofar as she has said she is prepared to allow properties in which she is an owner to be caveated in support of her guarantee, there had been no evidence that the co-owner agreed. I have now been given evidence that both owners agree and, further, that any funds to be provided by the mother of the applicant’s domestic partner will be her’s alone. Today I was told about the source of those funds.
There is now some evidence of the value of the properties owned by the parents of the applicant’s domestic partner, and there is some evidence to suggest that there is equity available after allowance for bank mortgages and liabilities by way of unpaid emergency services levy and land tax. Whilst it cannot be said that the valuation evidence is compelling and the mortgage payments are barely being covered, I do accept and recognise the significance of the offer made by the family of the applicant’s domestic partner. On one view of it they are prepared to pledge all, or at least a very great deal, of what they have.
Insofar as the applicant is, himself, prepared to offer a surety in respect of his own property and by way of cash, the Crown says that there is uncertainty as to whether what is being offered has been derived from lawful earnings. Whilst the evidence suggests that the business in which the applicant is a partner is ongoing, I am not in any position to resolve the contention made by the Crown.
I granted adjournments on 7 and 11 September to 23 September 2020 to enable the applicant to put on the further evidence to which I have referred.
Determination of the application
I have carefully considered all of the materials supplied to me and the helpful submissions of counsel. I acknowledge that the applicant enjoys a presumption in favour of bail under s 10 of the Act. In my opinion, however, bail should be refused having regard to the following matters:
1.the gravity of the offence and the apparent strength of the evidence connecting the applicant with the offending on 21 November 2012;
2. the need to safeguard prosecution witnesses; and
3. the prospect that the applicant may abscond if released.
Accordingly, the order of the Court is that the application for review of bail is dismissed.