Flower v The Queen - [2020] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Flower v R [2020] NSWCCA 64
Hearing dates: 18 March 2020
Decision date: 08 April 2020
Before: Bathurst CJ at [1];
Johnson J at [2];
Ierace J at [3]
Decision:
The application for bail is refused.

Catchwords:
CRIME – bail – release application – show cause offence – import commercial quantity of a border controlled drug offences – proceeds of crime offences – application for bail refused

Legislation Cited:
Bail Act 2013 (NSW)
Criminal Code (Cth)

Cases Cited:
Barr v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Flower v Director of Public Prosecutions (Cth) [2019] NSWSC 1788
Obeid v R (No 2) [2016] NSWCCA 321
Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172
Viavattene v R [2018] NSWCCA 197

Category: Principal judgment
Parties: Damion William Flower (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC; J Trevallion (Applicant)
L A Fernandez (Respondent)
Solicitors:
Benjamin Archbold (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2019/395394
Publication restriction: Parts of judgment redacted pursuant to non-publication orders made on 26 April 2021

Judgment

BATHURST CJ: I agree with the orders proposed by Ierace J and with his Honour’s reasons.
JOHNSON J: I agree with Ierace J.
IERACE J: The applicant, Damion Flower, and a co-accused, John Mafiti, were arrested on 22 May 2019 and charged with serious Commonwealth indictable offences concerning the importation of commercial quantities of a border-controlled drug, namely cocaine. He was refused bail at Central Local Court on 30 May 2019.
A release application was heard in the Supreme Court by R A Hulme J, and refused on 13 December 2019: Flower v Director of Public Prosecutions (Cth) [2019] NSWSC 1788. The same day, the applicant filed the present release application before this Court.
At the time of the hearing of this application, the applicant was awaiting arraignment in the District Court of New South Wales, having been committed for trial on five counts, listed in the table below:

Count

Offence

Date of offence

1

Engaging in a business to import a commercial quantity of a border controlled drug (cocaine)

s 307.1(1) with s 311.4, Criminal Code (Cth)

(Maximum penalty: life imprisonment)

Between 1 June 2016 and 22 May 2019

2

Import commercial quantity of border controlled drug (cocaine)

s 307.1(1), Criminal Code (Cth)

(Maximum penalty: life imprisonment)

15 April 2019

3

Import commercial quantity of border controlled drug (cocaine)

s 307.1(1), Criminal Code (Cth)

(Maximum penalty: life imprisonment)

22 May 2019

4

Dealing with proceeds of crime > $100,000

s 400.4(1), Criminal Code (Cth)

(Maximum penalty: 20 years imprisonment)

Between 1 June 2016 and 22 May 2019

5

Dealing with proceeds of crime > $10,000

s 400.6(1), Criminal Code (Cth)

(Maximum penalty: 10 years imprisonment)

Between 1 June 2016 and 22 May 2019

This application is brought pursuant to ss 49 and 67(1)(e)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flower v The Queen

Details

AGLC: Flower v The Queen [2020] NSWCCA 64
Case: [2020] NSWCCA 64
Decision Date: 08 April 2020

CaseChat Overview and Summary

The case before the Court involved the respondent, Flower, and the Crown. Flower sought bail pending the determination of criminal charges against him, including importation of a commercial quantity of a border controlled drug, and proceeds of crime offences. The Crown opposed the application on the basis that the offences were of a serious nature and that the evidence against Flower was strong. The Court was required to determine whether Flower was entitled to bail.

The central legal issue before the Court was whether Flower was eligible for bail under the Bail Act 1982. The Court needed to consider the seriousness of the offence, the strength of the evidence against Flower, and any other relevant factors, such as the risk of flight or interference with witnesses. The Court also needed to consider whether Flower was likely to comply with any bail conditions that might be imposed.

The Court found that Flower was not eligible for bail. The Court noted that the offences with which Flower was charged were serious and that the evidence against him was strong. The Court found that there was a real risk that Flower would reoffend if released on bail, and that he was likely to interfere with witnesses. The Court also found that Flower was a flight risk, given his previous history of absconding while on bail. The Court concluded that Flower was not eligible for bail on any terms or conditions.

Orders