Director of Public Prosecutions (SA) v Alzuain - [2020] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v ALZUAIN
[2020] SASC 136
Judgment of The Honourable Justice Doyle
20 July 2020
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - SERIOUS AND ORGANISED CRIME SUSPECTS
This is an application by the Director of Public Prosecutions for a determination under s 3A of the Bail Act 1985 (SA) that Mr Alzuain is a serious and organised crime suspect (an “SOC suspect”).
Upon an earlier application by the prosecution, a Magistrate made a determination to this effect. This determination has lapsed, and the prosecution now seeks a second determination that Mr Alzuain is an SOC suspect. It does so in the context of an application by Mr Alzuain for the review of a Magistrate’s decision refusing him bail.
The Director contends that s 3A of the Bail Act contemplates and permits multiple determinations that a person is an SOC suspect, albeit that the exercise of the Court’s discretion to make the determination will be influenced by the differing considerations which might arise in respect of second and subsequent applications.
Mr Alzuain opposes the application on the basis that s 3A permits only one such determination. In the alternative, he contends that to the extent that this Court, as the relevant bail authority, has a discretionary power to make a second determination, it should decline to exercise that discretion in the circumstances of the present case.
Held, per Doyle J, dismissing the application:
1. When s 127 of the Criminal Procedure Act 1921 (SA) and s 3A(1) of the Bail Act are considered together, they support a construction of s 3A(1) of the Bail Act which permits only one determination that a person is an SOC suspect.
Bail Act 1985 (SA) s 3A, s 4, s 10, s 10A, s 11; Criminal Law Consolidation Act 1935 (SA) s 275(3), s 275(5); Criminal Procedure Act 1921 (SA) s 103, s 127; Statutes Amendment (Serious and Organised Crime) Bill (SA), referred to.
R v Cekic; R v Dettman; R v Niemann [2014] SASC 132; R v Mackay [2016] SASC 44; R v Tamas [2017] SASC 12, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v ALZUAIN
[2020] SASC 136
Criminal

DOYLE J: This is an application by the Director of Public Prosecutions for a determination under s 3A of the Bail Act 1985 (SA) that Mohamed Alzuain is a serious and organised crime suspect (an “SOC suspect”).
Upon an earlier application by the prosecution, a Magistrate made a determination to this effect. This determination has lapsed, and the prosecution now seeks a second determination that Mr Alzuain is an SOC suspect. It does so in the context of an application by Mr Alzuain for the review of a Magistrate’s decision refusing him bail.
The Director contends that s 3A of the Bail Act contemplates and permits multiple determinations that a person is an SOC suspect, albeit that the exercise of the Court’s discretion to make the determination will be influenced by the differing considerations which might arise in respect of second and subsequent applications.
Mr Alzuain opposes the application on the basis that s 3A permits only one such determination. In the alternative, he contends that to the extent that this Court, as the relevant bail authority, has a discretionary power to make a second determination, it should decline to exercise that discretion in the circumstances of the present case.
For the reasons which follow, it is my view that s 3A permits only one determination that a person is an SOC suspect. It does not confer upon the bail authority a power to make multiple such determinations. As such, there is no occasion for me to consider whether it would be an appropriate exercise of such a power to make a second determination in the present case.
The alleged offending
Mr Alzuain, along with seven other men, is charged with the murder of Jason De Ieso. Two of the other accused men are brothers of Mr Alzuain.
The prosecution case is that on 21 November 2012, the eight accused (along with a ninth man, who is now deceased) attended a workshop in Pooraka where the deceased was working. The accused were armed with firearms, and upon approaching the workshop, opened fire. Mr De Ieso was shot in the head and died at the scene.
At the time of the offence, each of the accused had ties to the Hells Angels Motorcycle Club. Mr Alzuian was a prospect at the time, and later attained full membership. He has since ceased to be a member.
The alleged background to the shooting was that there had been escalating tensions between the Hells Angels and the Finks Motorcycle Club during 2011 and 2012. On 20 November 2012 the family residence of the Alzuain brothers was ‘firebombed’. It is alleged that the Alzuain brothers suspected the Finks of being responsible, and were seeking retribution.
In particular, it is alleged that on 21 November 2012, the Alzuain brothers and the other accused met at a house in Parafield Gardens. Having armed themselves with various firearms, they drove in multiple vehicles to a tattoo parlour in Salisbury North. They were looking for Charles Bonnici, a member of the Finks. After learning that he was not at the tattoo parlour, but nevertheless carrying out an attack upon the people at that location, they drove to the workshop in Pooraka where they understood Mr Bonnici would be.
Mr Bonnici had left the workshop when they arrived. However, CCTV footage shows two vehicles arrive at the workshop, and nine men get out of the cars and walk to the workshop entrance. Four of the men can be seen carrying weapons. As they approached the workshop, they opened fire on Mr De Ieso, and then ran back to their cars and drove off.
Applications for bail
Mr Alzuain was arrested and charged with murder on 2 August 2019.
On 30 October 2019, he applied to the Magistrates Court for bail. In the context of that bail application, the prosecution made an application pursuant to s 3A of the Bail Act for a determination that Mr Alzuain was an SOC suspect. The application was granted by Magistrate Sheppard. As a consequence of this, the applicant was a “prescribed applicant” for the purposes of s 10A of the Bail Act. He thus lost the benefit of the usual presumption in favour of bail, and was required to establish “special circumstances” before he was eligible for a grant of bail. Magistrate Sheppard held that Mr Alzuain had not established special circumstances and so refused bail.
Under s 3A(2) of the Bail Act, a determination that a person is an SOC suspect ceases to apply after six months, subject only to the accused’s trial having commenced or being the subject of a determination under s 127 of the Criminal Procedure Act 1921 (SA) (see below).
The applicant made a further application to the Magistrates Court for bail on 7 May 2020. At the hearing of that application, the prosecution conceded that the determination made on 30 October 2019 had lapsed, and made an oral application for a further determination under s 3A of the Bail Act that Mr Alzuain was an SOC suspect. However, Magistrate Dixon declined to entertain that application.
While thus proceeding on the basis that Mr Alzuain was not a prescribed applicant, and hence was entitled to a presumption in favour of bail, the Magistrate nevertheless refused bail. Mr Alzuain has brought an application for the review of that refusal of bail in this Court.
In the context of the hearing of the application for review of the Magistrate’s refusal of bail, the prosecution has now made a written application for a (second) determination under s 3A of the Bail Act that Mr Alzuain is an SOC suspect.
It is convenient to commence my consideration of this application with a summary of the legislative framework in relation to bail applications by persons charged with serious and organised crime offences.
The legislative framework
Under s 10 of the Bail Act, if an application for bail is made to a bail authority by an eligible person, the bail authority should, subject to any other provision in the Bail Act, release the applicant on bail unless, having regard to the matters set out in subsections (a) to (g), the bail authority considers that the applicant should not be released on bail. Section 10 thus operates on the basis of a presumption in favour of bail.
However, this presumption is subject to the other provisions of the Bail Act, and in particular s 10A. That section provides:
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.
The practical effect of s 10A(1) is to deprive a person who is a “prescribed applicant” of the presumption of bail, and to make their eligibility for bail dependent upon them establishing the existence of “special circumstances”. Subsection 10A(1a) contains various provisions governing the proof of special circumstances, and s 10A(2) defines “prescribed applicant”. Relevantly for present purposes, under s 10A(2)(bb) a prescribed applicant includes “an applicant who is a serious and organised crime suspect”.
The determination of whether a person is an SOC suspect is governed by s 3A of the Bail Act. That section is in the following terms:
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).
Thus, under s 3A(1), a bail authority “may” determine that a person is an SOC suspect if satisfied of the matters in ss 3A(1)(a), (b) and (c). There is no dispute in the present case as to the matters in ss 3A(1)(a) and (b), but there is a dispute as to the matter in s 3A(1)(c). There is also an anterior dispute as to whether s 3A(1) contemplates and permits a bail authority to make a second determination that a person is an SOC suspect.
However, before coming to the matters in dispute, I observe that under s 11 of the Bail Act, in the event that an SOC suspect is granted bail, then in addition to the usual mandatory conditions of bail prescribed by s 11(1), the grant of bail must also be subject to the minimum conditions in s 11(2aa). These conditions require that the bail be home detention bail at a specified address and with electronic monitoring; that the accused only be permitted to leave the specified address for the purposes of necessary medical or dental treatment, averting or minimising a serious risk of death or injury, or any other purpose approved by the Chief Executive Officer;[1] and that the accused not communicate with other than specified persons or categories of persons, and through specified communication devices.
[1] But not, it would seem, for the purpose of remunerated employment: see s 11(2aa)(b) and R v Tamas [2017] SASC 12 at [28].
Importantly, under s 3A(2) of the Bail Act, a determination that a person is an SOC suspect ceases to apply after six months if, at that time, both (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 District Court under s 127 of the Criminal Procedure Act.
Section 127 of the Criminal Procedure Act 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.
Consistent with the opening words of s 127(1) of the Criminal Procedure Act, rules 23 and 25A of the Supreme Court Criminal Rules 2014 (SA) and the District Court Criminal Rules 2014 (SA) provide for prescribed proceedings to be expedited for the purpose of the trial being commenced within six months after any determination under s 3A of the Bail Act that a person is an SOC suspect.
The reference in s 3A(2) of the Bail Act to a determination by the Supreme Court or District Court under s 127 of the Criminal Procedure Act is thus a reference to a determination by a superior court to the effect that it is not reasonably practicable for it to deal with the matter within six months of the bail authority’s determination that a person is an SOC suspect, or that there are exceptional circumstances that justify the matter being set down for trial at a later date.
Finally, I note that s 4 of the Bail Act lists the categories of persons eligible to apply for release on bail. Under s 4(1)(h), those categories include “a person who is no longer a serious and organised crime suspect because of the operation of section 3A(2).” And s 4(1a) provides that a person who is eligible to apply for bail in accordance with s 4(1)(h) may apply despite the fact they are already subject to a bail agreement (“the previous bail agreement”) if, at the time of the previous bail agreement, the person was an SOC suspect; and that if a new bail agreement is entered into following such an application, the previous bail agreement ceases to be in force. It was conceded before Magistrate Dixon that Mr Alzuain was a person eligible to apply for bail under s 4(1)(h) of the Bail Act by dint of the first determination that he was an SOC suspect having ceased to apply.
Speaking generally, the legislative intention of the provisions in relation to SOC suspects is clear. Given the nature and seriousness of the relevant offending of which they are suspected, the intention is that the accused person lose the benefit of the ordinary presumption of bail, that they be required to establish special circumstances before being eligible for bail, and that any grant of bail in their favour be a very strict form of home detention bail. However, in recognition of the significance of this encroachment upon the liberty of a person who nevertheless remains entitled to the presumption of innocence, the legislature has evinced an intention that in the ordinary course the determination will only have these consequences for a period of six months, and a correlative intention or expectation that in the ordinary course the trial of the accused for the relevant offence be heard within six months of the determination that they are an SOC suspect.
This legislative intention was adverted to in the second reading speech of the then Attorney-General on 15 February 2012 in respect of the Statutes Amendment (Serious and Organised Crime) Bill. In relation to the proposed insertion of s 3A to the Bail Act, the Attorney-General explained:[2]
This clause inserts proposed section 3A that provides for a bail authority to determine, on the application of the Crown, that a person is a serious and organised crime suspect if the person has been charged with a serious and organised crime offence, if the person was not a child at the time of the alleged offence, and if 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. A determination of a bail authority under this proposed section will cease to apply after 6 months if the person has not been tried, or is not on trial, for the offence and there has not been a determination of the Supreme Court under section 275(3) of the Criminal Law Consolidation Act 1935.
[2] South Australia, Parliamentary Debates, House of Assembly, 15 February 2012, 87.
(The reference to s 275(3) of the Criminal Law Consolidation Act is a reference to the predecessor to s 127 of the Criminal Procedure Act. As an aspect of the subsequent reforms to the procedures for dealing with indictable offences, ss 275(3) and (5) of the Criminal Law Consolidation Act were repealed and re-enacted through the introduction of s 127 of the Criminal Procedure Act.)
In relation to the amendments to the Bail Act, after referring to the imposition of a presumption against bail, and the objectives of protecting witnesses who might fear for their safety and preventing communications by an SOC suspect with such persons, the Attorney-General said:[3]
But people should not be subjected to this harsh regime indefinitely or even for a very long time. The status of being a serious and organised crime suspect should expire after 6 months unless either the person is on trial or special proceedings (described below) have been taken against the suspect.
[3] South Australia, Parliamentary Debates, House of Assembly, 15 February 2012, 83.
The reference to “special proceedings” was later explained by the Attorney-General in the following terms:[4]
Delay in the criminal justice system aids the defendant determined to intimidate and threaten witnesses, jurors and victims. The more delay, the more the opportunity. Therefore, the establishment of a special procedure of direct indictment in the hands of the Director of Public Prosecutions in the Supreme Court is proposed. Where that direct indictment is made, the trial of the accused must begin within 6 months of an operative determination by a bail authority that the defendant is a serious and organised crime suspect unless the Supreme Court determines that the commencement is not reasonably practicable or on application by either party that there are exceptional circumstances that justify delay. It is not the intention of the Government to dictate what those exceptional circumstances may be.
[4] South Australia, Parliamentary Debates, House of Assembly, 15 February 2012, 85.
It can thus be seen that it was envisaged by Parliament that proceedings involving serious and organised crime offences might proceed expeditiously through the mechanism of a “direct indictment in the hands of the Director of Public Prosecutions” in the Supreme Court. I understand this to be a reference to an anticipated use of the power under s 103(1) of the Criminal Procedure Act to try a person in the Supreme Court or District Court on an information presented “in the name and by the authority of the Director of Public Prosecutions”. In other words, it is a reference to the Director’s ability to proceed by laying an ex officio information directly in a superior court, rather than having a person committed for trial by the Magistrates Court. As confirmed by s 103(2), the Director may proceed in this way even if an information charging the same offence(s) has earlier been filed in the Magistrates Court.[5]
[5] In which event, s 103(2) provides that the information filed in the Magistrates Court will be taken to have been withdrawn on the giving of written notice by the Director to the Registrar.

This understanding that it was contemplated that proceedings involving serious and organised crime offences might be instituted in a superior court by the Director laying an ex officio information in accordance with s 103 of the Criminal Procedure Act is consistent with, if not confirmed by, the reference to that procedure in the concluding words of s 127(2) of that Act (see above).
Analysis
Upon satisfaction of the matters in ss 3A(1)(a), (b) and (c) of the Bail Act, the bail authority has a discretion to make a determination that a person is an SOC suspect.[6]
[6] R v Mackay [2016] SASC 44 at [19].
The prosecution contends that as there is no express barrier to second or subsequent determinations, the discretionary power under s 3A(1) should be construed as permitting such determinations to be made.
The prosecution draws support for this approach from the decisions of Kourakis CJ in R v Mackay[7] and Blue J in R v Tamas.[8]
[7] R v Mackay [2016] SASC 44.
[8] R v Tamas [2017] SASC 12.
In R v Mackay, the accused made an application for bail following the lapse of the initial determination that he was an SOC suspect. In his ex tempore reasons refusing bail, Kourakis CJ proceeded upon a basis that assumed there was power to make a second determination. In particular, after referring to s 3A of the Bail Act, and s 275(3) of the Criminal Law Consolidation Act (being the equivalent of what is now s 127 of the Criminal Procedure Act), his Honour said:[9]
The first declaration that Mr Mackay was a serious and organised crime suspect has now lapsed. The Director of Public Prosecutions, correctly in my view, accepts that s 3A of the Bail Act confers a discretion not to make the order even though the preconditions are satisfied and that the lapse of time is a relevant consideration in that discretionary exercise.
The statutory provisions to which I have referred contemplate an expeditious trial. However, they do not contemplate that the trial will necessarily take place within six months of the first determination, because the first determination may be made on a bail application in the Magistrates Court. The rules contemplated by s 275(3) of the CLCA can only be rules made by the District Court or the Supreme Court and which apply after arraignment.
Nonetheless it is clear from the enactment of s 275(3) CLCA that the statutory purpose in providing for the lapse of a serious and organised crime determination after six months is to allow a review of bail, and in particular a reconsideration of the making of the determination which has the effect of reversing the presumption of bail, in the light of the progress of the prosecution.
[9] R v Mackay [2016] SASC 44 at [19]-[21].
Having observed that there was no allegation in that case of any undue or unreasonable delay by the prosecution in the progress of the proceedings, Kourakis CJ exercised his discretion in favour of making a (second) determination, and then dismissed the application for bail.
In R v Tamas, an earlier determination that the accused was an SOC suspect had lapsed. Blue J proceeded upon the basis that there was power to make a further determination. His Honour said:[10]
[10] R v Tamas [2017] SASC 12 at [39]-[42].
The evident intention of section 3A of the Bail Act and subsection 275(3) of the Criminal Law Act is that it is a concomitant of the deprivation of the presumption in favour of bail in respect of a serious and organised crime suspect that when bail is refused such a suspect should not be kept in custody awaiting trial for more than six months from the date of the serious and organised crime suspect determination. As Kelly J said in R v Cekic; R v Dettman; R v Niemann:[11]
It is apparent from the statutory scheme enacted by the Parliament with regard to serious and organised crime suspects that the Parliament intended the six month time limit on all declarations made to ameliorate the harsh consequences of the making of a declaration under s 3A of the Bail Act.
…
… it was never the intention that prescribed applicants should be subject to an indeterminate period of detention or even detention for a very long time.[12]
While there is no doubt that a court has power to make successive serious and organised crime suspect determinations, the context in which a second application for a determination is to be considered is very different from that in which an original application is to be considered. The fact that a serious and organised crime suspect has already been in custody for six months awaiting trial and faces the prospect of being in custody for a further six months awaiting trial is a factor weighing against the making of a second determination.
On an original application for a determination, if the three prerequisites are satisfied, it may be expected that the discretion will usually be exercised in favour of making the determination. Conversely, when a previous determination has expired because the prosecuting authorities have not taken steps to facilitate the matter coming to trial within six months of the determination, there can be no such expectation.
When a second determination is sought after the expiry of a previous determination, it will be important to consider why the matter has not proceeded to trial within six months of the original determination. If this is due entirely to the conduct of the defendant, the fact that a second determination is sought will have much less weight than if this is due to the conduct of the prosecuting authorities or the court.
[11] [2014] SASC 132.
[12] At [45] and [47].
It is thus true that in both R v Mackay and R v Tamas their Honours proceeded upon the basis that there was power to make second or subsequent determinations under s 3A(1). At the same time, it is significant that it appears that in neither case was there any argument to the contrary. Certainly, neither Kourakis CJ nor Blue J referred in their reasons to any submission to the effect that the Court did not have the power to make multiple determinations. As such, I do not think either of these authorities is determinative of the issue of construction raised on behalf of Mr Alzuain in the present case.
Whilst the terms of s 3A(1) do not expressly proscribe second or successive determinations that a person is an SOC suspect, it may also be observed that they do not expressly contemplate more than one such determination. More significantly, I consider that once regard is had to the relevant legislative text, context and purpose as a whole, it becomes apparent that Parliament did not intend that there be more than one such determination.
The purpose of the legislative scheme, as outlined earlier in these reasons, was to establish a regime for persons charged with serious and organised crime offences that would provide a level of protection pending trial for the community, and in particular potential witnesses, that Parliament considered appropriate having regard to the nature and seriousness of the relevant alleged offending. However, as the extracts from the second reading speech set out earlier make plain, it was recognised that this regime would operate harshly from the perspective of an accused person, both in terms of the availability of a grant of bail and the strictness of the conditions on which any grant of bail might be made. In recognition of these harsh consequences, it was considered appropriate that the regime only apply for a limited period of six months, and that the proceedings be expedited with a view to them reaching a trial within that period of time.
In my view, the specification of a limited timeframe of six months for the consequences of the determination that a person is an SOC suspect tells against a construction of s 3A(1) that would permit multiple determinations to be made. That period of time is a reflection of Parliament’s intention as to the period it was appropriate to subject an accused person to the harsh consequences of a determination under s 3A(1) of the Bail Act, and as to the period within which it expected the proceedings could be expedited to trial.
It might be said, with some force, that six months was an optimistic, if not unrealistic, timeframe for proceedings involving serious and organised crime offences to progress to trial. Be that as it may, it is apparent from the terms of s 127 of the Criminal Procedure Act (and the second reading speech) that Parliament intended and expected that such matters could and would be expedited in the superior courts, with six months being an appropriate timeframe.
That said, I accept that Parliament may be taken to have contemplated that six months will not always be a sufficient period of time for a matter to progress to trial, and hence to have intended to cater for such cases. Were there no other mechanism for extending the effect of a s 3A(1) determination in such cases, then this may have been a reason in favour of construing s 3A(1) in the manner contended for by the Director – albeit that the capacity for a six month or nothing extension of the determination (as opposed to an extension tailored to the particular case), would seem to be a blunt and cumbersome method of addressing this contingency.
However, s 3A(1) of the Bail Act needs to be considered in combination with s 127 of the Criminal Procedure Act. The former expressly cross-refers to the latter, and they both form part of the overall legislative scheme that I have described. In those cases where the prosecution seeks a determination that an accused person is an SOC suspect, but where six months is unlikely to be a sufficient period for the matter to progress to trial, then s 127 supplies the remedy. It operates as a mechanism for a de facto extension of the six month time period contemplated by s 3A in those cases where there are good reasons for thinking that, even if expedited, the matter will not be ready for trial within six months. Under s 127, if the superior court determines that it is not reasonably practicable to deal with the matter within that period, or that there are exceptional circumstances justifying it being set down for trial at a later date, then by reason of s 3A(2) of the Bail Act this will operate to extend the effect of the s 3A(1) determination for whatever period is necessary or appropriate for the proceedings to progress to trial.
I observe that, by reason of the concluding words in the definition of “prescribed proceedings” in s 127(2), the de facto extension mechanism under s 127 will only be available in cases where the Director has instituted proceedings in a superior court by laying an ex officio information (as opposed to proceedings which might have been committed for trial in a superior court following committal proceedings on an information filed in the Magistrates Court). While this might at first blush seem a curious limitation upon the availability of the extension mechanism under s 127,[13] it is explicable by reference to an expectation on the part of Parliament that serious and organised crime offences proceed by way of ex officio information in order to ensure the intended expedition of those proceedings. This expectation is implicit in the terms of s 127 (in particular, its requirement that the superior courts make rules for expediting prescribed proceedings commenced in this way), and was in any event made explicit in the second reading speech through the reference to “special proceedings” involving “direct indictments”.
[13] This limitation was not contained in its predecessor provision, being s 275 of the Criminal Law Consolidation Act.
While not necessarily expecting, or requiring, that all matters involving serious and organised crime offences proceed by way of ex officio informations, it seems to me that the legislative scheme implemented by Parliament contemplated that this would be an appropriate way to proceed in such matters. It would be appropriate so as to ensure that the matter progresses to trial within the six month time frame contemplated by a determination under s 3A(1) of the Bail Act.
It is true that proceedings instituted by way of an ex officio information may deprive the defendant of some of the procedural opportunities or advantages available in committal proceedings. To the extent that such matters cannot be addressed through equivalent or similar pre-trial procedures available in the superior courts, I do not think this is a particularly significant consideration. It is simply an aspect of the balance sought to be struck by Parliament in dealing with serious and organised crime offences.
I also observe that if second and successive determinations under s 3A(1) were permitted, the bail authority would be put in the invidious position, when exercising its discretion, of having to undertake an assessment of the progress of the relevant criminal proceedings in order to form a view as to the explanation or blame for the time the proceedings are taking to progress. While Blue J undertook such an analysis in R v Tamas, it is not a matter that the bail authority is well-placed to consider. While the parties can, as they have in the matter before me, give their respective views as to why the matter has progressed at the speed it has, in a case where there are differing perspectives the matter soon becomes one in respect of which it is very difficult for the bail authority to reach any meaningful conclusion. Put another way, an application for a second determination under s 3A(1) of the Bail Act will often be an unsuitable vehicle for a meaningful consideration of such matters. The bail authority will also be confined to an all or nothing outcome; that is, either refusing to make a further determination, or making a further determination and hence inflicting the relevant consequences for the entirety of a further period of six months.
On the other hand, a determination under s 127 is one that will be made in the trial court, being the court managing the pre-trial progress of the matter. It is to be expected that this court will be better placed to form a view about – and indeed have some input into, if not control over – the appropriate speed with which the matter should progress to trial. But in addition to this, when considering the matter under s 127, the Court is not confined to a six month or nothing extension. Rather, the Court is empowered to make a determination that is tailored to the particular circumstances of the case.
Finally, I observe that if a bail authority were entitled to make a second determination some time after the lapse of the first determination, then the effect of making such a determination would seem to work an unintended consequence upon the legislative prescription in s 127(1) of the Criminal Procedure Act that the court expedite the proceedings so that the trial commences within six months of the determination being made. I say this because if there were to be a second determination, then this would seem to have the consequence that the prescribed date for the commencement of the expedited trial would be extended by six months. I consider it unlikely that Parliament would have intended this consequence. In my view, the terms in which this legislative prescription as to the commencement of trials is expressed in s 127(1) of the Criminal Procedure Act are thus an indication that Parliament intended that there would only ever be one determination that a person is an SOC suspect under s 3A(1) of the Bail Act, and that the trial should commence within six months of that determination; and an indication that Parliament intended that this six month period of expedition would be subject only to a pro tanto extension of that period by the trial court under s 127(1), and not a six month or nothing extension by dint of the decision of a bail authority under s 3A(1).
In summary, I consider that the availability of the pro tanto extension mechanism under s 127 of the Criminal Procedure Act militates against a construction of s 3A(1) of the Bail Act that would permit second or successive determinations that an accused person is an SOC suspect. When those sections are considered together, as they must be, they support a construction of s 3A(1) which permits only one such determination.
Parliament’s intention was thus that persons accused of a serious and organised crime offence be vulnerable to the harsh consequences of determination under s 3A(1) of the Bail Act for a limited period of six months, with a correlative intention or expectation that the matter would be expedited to trial within that period. In those cases where this timeframe proves to be unrealistic, the trial court is empowered under s 127 of the Criminal Procedure Act to make a determination that will operate as an extension of that six month period. To the extent that this construction of the legislation results in the Director laying ex officio informations in serious and organised crime matters, this appears to have been what Parliament anticipated and intended would occur.
Conclusion
On the proper interpretation of s 3A(1) of the Bail Act it does not permit second or successive determinations that an accused person is an SOC suspect. It permits only one exercise of the discretionary power to make such a determination. And that determination lapses after six months, unless a superior court makes a determination under s 127(1) of the Criminal Procedure Act that it is not reasonably practicable for the court to deal with the matter within that period, or that exceptional circumstances exist that justify the matter being set down for trial at a later date.
For these reasons, I dismiss the prosecution application for a (second) determination under s 3A(1) of the Bail Act that Mr Alzuain is an SOC suspect.