In the matter of an application for bail by Brendan Baker
[2018] ACTMC 27
•2 November 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application for bail by Brendan Baker |
Citation: | [2018] ACTMC 27 |
Hearing Dates: | 26 and 31 October 2018 |
DecisionDate: | 2 November 2018 |
Before: | Special Magistrate Hunter OAM |
Decision: | See paragraphs [43]-[62] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – no presumption for bail – risk of intimidating witnesses – whether onus on applicant or prosecution – bail refused |
Legislation Cited: Cases Cited: | Bail Act 1992 (ACT) s 22 Corrections Management Act 2007 (ACT) s 44 Human Rights Act 2004 (ACT) s 19 Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 In the Matter of an Application for Bail by Michael Aaron Le Clair [2014] ACTSC 245 Nona v The Queen (No 2) [2012] ACTCA 59 R v Hilton (1987) 7 NSWLR 745 R v Kissner (unreported) NSWSC [January 1992] R v Laipato (No 2) [2014] ACTSC 363 R v Saedam [2015] ACTSC 85 |
Parties: | Brendan Baker (Applicant) Constable Louise Hawke (Respondent) |
Representation: | Counsel Self (Applicant) Mr M Keks (Respondent) |
| Solicitors Commonwealth Director of Public Prosecutions (Informant) | |
File Numbers: | CC18/5496-5506; CC18/6080-6081; CC18/11945 |
SPECIAL MAGISTRATE HUNTER
Background
The applicant has been charged with a number of very serious drug offences including 2 which carry life imprisonment.
Pursuant to section 9B of the Bail Act 1992 (ACT) (‘Bail Act’) there is no presumption for bail. That is because the accused has been charged with offences in schedule one of the Bail Act which means the presumption for bail does not apply. Those offences include trafficking in a controlled drug other than cannabis, trafficking in a commercial quantity of a controlled drug and importing a border controlled drug.
Therefore, in order for the applicant to be considered for bail he must meet the criteria set out in s 22 of the Bail Act.
I set out s 22 of the Bail Act:
Criteria for granting bail to adults
(1) In making a decision about the grant of bail to an adult in relation to
an offence, a court or authorised officer must consider—
(a) the likelihood of the person appearing in court in relation to the
offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone;
or
(iii) interfering with evidence, intimidating a witness, or
otherwise obstructing the course of justice, in relation to
the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2 the period that the person may be held in custody if bail is refused and the
conditions under which the person would be held
Note An example is part of the Act, is not exhaustive and may extend, but
does not limit, the meaning of the provision in which it appears (see
Legislation Act, s 126 and s 132).
(2) Also, if the person is convicted of an indictable offence, or the
elements of an indictable offence are proven in relation to the
person, but the person has not been sentenced, a court must consider
the likelihood of the person being given a sentence of imprisonment.
(3) In considering the matters mentioned in subsection (1) or (2), the
court or authorised officer may have regard to any relevant matter,
including—
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties; or
(c) the likely effect of a refusal of bail on the person’s family or
dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court
in relation to the offence, the court or authorised officer may have regard to
whether the person failed to comply with a bail condition previously.
(4) The reference in subsection (1) (b) (i) to an offence includes a
reference to an offence against a law of the Commonwealth, a State
or another Territory (including an external territory).
In order for a grant of bail the Court must be satisfied that a grant of bail is appropriate in the circumstances. In order to consider whether a grant of bail is appropriate the court must consider the criteria set out in section 22 of the Bail Act (set out above).
As part of his application the applicant tendered on the application a bundle of documents which I exhibited as D1. In that bundle the applicant provided:
1.a bail consideration summary;
2.2 personal references;
3.a statement of employment and education and training references;
4.certificates of attainment and assessment personal corrections case note;
5.the Human Rights Act 2004.
The applicant also provided a document in the bundle titled General Information which the applicant says is the evidence the prosecution proposes to lead against him at trial. The applicant has analysed that evidence and suggested that there is insufficient evidence to succeed in a prosecution of this nature having considered that evidence. I take that to mean that he indicates that there is not a strong prosecution case against him
I also received a detailed summary of charges, a reference under the hand of Afrian Hannan and one under the hand of Joel Olney. They both attest to his good character, lack of antecedents, ties to the ACT community, his past community service work as a volunteer both internationally and in Australia.
The applicant also provided what was essentially the brief of evidence provided by the Commonwealth prosecutor.
10. The essence of the application was that:
1.Since the applicant has been remanded in custody he has suffered a severe relationship breakdown which has strained his immediate family emotionally and financially, that he has been publicly defamed and linked to both criminal and outlaw motorcycle gangs by the media;
2.The applicant has no prior relevant criminal history (I know he has one conviction for prescribed concentration of alcohol in Western Australia in 2013 with a reading of equal to 0.09 and not more than 0.1. I also note that the equivalent prescription of alcohol in Western Australia at the time was 0.08) That does not become relevant in my view in this application, except perhaps for the fact there was no fail to appear before the court in relation to that charge;
3.The applicant has no history of failing to appear before the court;
4.Since he has been remanded in custody he has suffered significant personal financial difficulty with one of his businesses being closed down and the other losing significant money since his incarceration;
5.The applicant states he has defaulted on business credit accounts, a personal loan with the ANZ bank and has been unable to pay his mobile phone account and Internet utilities;
6.Since been remanded in the Alexander Maconochie Centre he has been restricted in his housing for up to 23 hours per day, must share a cell with a sentenced prisoner and for the last six months has not had running water for drinking purposes in his cell. The applicant asserts he has made numerous requests for the running water issue to be resolved without success;
7.The applicant asserts this is a breach of his human rights pursuant to chapter 3 section 19 of the Human Rights Act 2004 (ACT) and section 44 of the Corrections Management Act 2007 (ACT)
8.The applicant asserts that given his positive attitude in the correctional Centre, his significant charity and volunteer work in the community, his strong ties to the community and his lack of antecedents these matters strongly support the granting of bail;
9.Further the applicant stated his family have suffered financially and mentally as a result of his incarceration.
Applicant submissions
11. The applicant also made submissions on the bail application.
12. The applicant stated that there is a significant stress upon his family because they are trying to run his business which is a café in Kingston in his absence. He stated that that is on the verge of closing because he’s not there to run it.
13. The applicant stated that he is a main financial provider to the family even though they all contribute. Because the business is running at a loss all the family are financially suffering.
14. The Applicant further submitted that he is housed with a sentenced prisoner is a breach of section 44 of the Corrections Management Act 2007 (ACT) and also this abrogates his human rights. He said there is no running water in his cell for drinking. He said he is required to get water from the toilet or the shower which is quite hot water and not suitable for drinking particularly on hot days. [ I note that evidence produced before me today by the Respondent suggests the tap was tampered with and he has since been rehoused in another cell.]
15. The applicant submitted that those factors are akin to torture. The applicant also said he had been assaulted by his cellmate who is a sentenced prisoner. The applicant further submitted that on his analysis of the brief it lacks cogent evidence sufficient to establish the charges beyond reasonable doubt.
16. The applicant further submitted that in relation to all of the material seized there is not one fingerprint or strand of DNA found on any of that material which belongs to him. The applicant also said that there was money seized from him but that has since been returned to him because it cannot be said to have been the proceeds of crime. I take that to mean that that is further evidence that the Crown case is lacking.
17. The applicant further submitted that he had lost a block of land as a result of his incarceration because he wasn’t able to continue the transfer. The applicant further submitted that he has done every program available to him in the AMC, has done work at the AMC and has been a model remandee.
18. The applicant said in the recent past he has participated in community service work such as Rural Fire service and the like which does not reflect the character of a person who would commit the alleged offences.
19. The applicant further submitted that the Crown case is weak and relies on 2 witnesses whose credibility will be significantly in issue.
Respondent submissions
20. The respondent submitted that in relation to the custody or conditions complained of, the informant had made enquiries in relation to those issue. The prosecutor called Constable Louise Hawke to give evidence in that regard.
21. Constable Hawke said that the main concerns in relation to the applicant being admitted to bail are; that it is alleged that he is in a criminal drug syndicate. There have been a number of people charged in relation to that syndicate, that he is a mid to high level ranking person in that syndicate.
22. The main supplier of the syndicate went offshore fleeing to Thailand but has since returned. I was advised that he has not been remanded in custody and apparently is in the community. I also understand that he may have implicated a number of people in the syndicate.
23. Constable Hawke said that she is aware that if the applicant is released he will have access to funds and is well supported financially in that regard. Constable Hawke suggested there is intelligence evidence to suggest that the applicant purchased significant bitcoin or crypto currency for the purposes of importing the drugs.
24. There is no indication as to where that crypto currency is at the present time and given the restraints on the applicant’s assets the concern is that he will access the crypto currency for the purposes of escape.
25. Constable Hawke said that there is evidence to support the allegation that the applicant used the dark net to purchase drugs from China. Constable Hawke also indicated that the applicant has a good understanding of the dark net and access to false identification documentation for the purposes of travelling overseas. Constable Hawke said there was evidence in the form of a note found on a search of the applicant’s premises with an onion.com email address which is known to be a way of accessing the dark net.
26. Constable Hawke also indicated that there is very strong evidence that the applicant has knowingly participated in the assault of one of the key witnesses in this proceeding. He drove that person to a meeting place where he was assaulted and threatened that if he did not come up with the money owed for drugs he would be killed. There was also a threat that the money he owed is equivalent to 4 hits which Constable Hawke said means four murders.
27. Constable Hawke said there are two critical witnesses for the prosecution, one of whom has already been assaulted and threatened. Constable Hawke said that there are grave concerns that if the applicant is released into the community those persons are at a real risk to their safety as they are key witnesses.
28. Constable Hawke also said that the applicant’s girlfriend is a witness and has expressed concerns because he has made numerous attempts to call her and has asked family members to also contact her. Constable Hawke said that she is very concerned for her safety as she will be a witness in the trial as well.
29. Constable Hawke made enquiries in the AMC in relation to the situation where the applicant is housed. She advised that he is in a cottage and there are two persons in his cell, himself and another who is a sentenced prisoner there are 4 persons in the unit.
30. The issue in relation to the running water is accurate and as at the time when she was giving her evidence and had not been fixed. However the AMC stated that the problem is in the process of being repaired. The AMC staff advised that he has always had access to jugs of water and has never been denied a jug of water at any time. I note that this matter has now resolved.
31. In relation to whether he must stay in the cell with the sentence prisoner, he has been offered alternative accommodation within the prison but he has refused. The AMC state there is no greater risk of moving him to another cell within the prison than staying where he is.
32. In relation to where the applicant may live, Constable Hawke said that there is a concern if he lives with his mother. I’m not sure what that concern is although there was assertion that there may be drugs at the premises.
33. In terms of the applicants companies, Constable Hawke said that her inquiries reveal that one company was closing anyway and the café had not been regularly attended by the applicant when he was in the community because he employed his brother to run it.
34. Constable Hawke said there is no evidence to support his assertions that he supports the family or that he is struggling to come up with funds. That became apparent when listening to the telephone intercept conversations.
35. The respondent submitted that the two main witnesses have no credibility issues given the large number of statements police have already received which is consistent with the intelligence provided by the two witnesses. This supports the evidence that they are prepared to give at trial. Indeed a number of offenders have pleaded guilty and have been convicted in relation to the intelligence gathered from these two witnesses.
36. The respondent submitted that the two witnesses have not colluded together and in fact there is no loyalty between either of them and there has been no opportunity to concoct a story. Further one witnesses account is consistent with the others.
37. The respondent further submitted that in their view there is a risk of failing to appear because of the access to the dark net and the crypto currency. The respondent submitted that they take issue with the claim that the applicant has ties to the community. The respondent submitted that the applicant has no dependents and has access to funds.
38. The respondent further submitted that there is no presumption for bail, the Crown case is a strong one with two eyewitnesses plus the circumstantial evidence and telephone intercept material as well as recorded conversations.
39. The respondent submitted that given the nature and seriousness of the charges, the risks of reoffending, failing to appear, committing further offences are too great and could not be mitigated by conditions. The safety of the witnesses is paramount and given the physical assault on one of them and the death threats already made that risk is too great and could not be mitigated by appropriate conditions.
40. The applicant submitted that there is no risk of reoffending he has no prior relevant criminal history and he can live with his mother in the family home. The applicant also stated that he could report twice daily to police, participate in urinalysis when requested, attend any programs required, he said that he is no threat to any witness and has no prior violent history.
41. The applicant further submitted that he could have a non-Association and a curfew condition to mitigate against any offending. The applicant further submitted that he knew he was being investigated after the search to his home but he did not leave because he had no intention of leaving.
42. The applicant further submitted that he had been abused and assaulted whilst in custody.
Decision
43. I have been referred to two authorities by the respondent: In the Matter of an Application for Bail by Michael Aaron Le Clair [2014] ACTSC 245 and R v Saedam [2015] ACTSC 85. I have also considered R v Laipato (No 2) [2014] ACTSC 363 at [1], where Refshauge J makes the salient point in relation to a bail application;
“Despite some laypeople thinking otherwise, bail is not intended to punish people for offences with which they have been charged. Indeed, to the lawyer such a notion is offensive, for it must be recognised that persons who have been charged but not found guilty of offences are, by law, presumed to be innocent.
It is also important to state clearly that the Bail Act, as a whole, evinces an intention that real regard must be had by those charged with the grant of bail to the safety of complainants, especially those involved in allegations of domestic violence. It is well known that those who complain of domestic violence are particularly vulnerable, hence s 9F of the Act provides a restriction on the grant of bail by authorised officers, unless they are satisfied that the applicant poses no danger to the complainant”.
44. I have considered those principles in my consideration of this bail application.
45. His Honour Refshauge J raised an issue in R v Laipato (No 2) in relation to s9B of the Bail Act, setting out the various authorities and also what he considered to be the law, as reflected in R v Hilton (1987) 7 NSWLR 745, in relation to where the onus if it exists lies.
46. Ultimately His Honour followed Hunt J in R v Kissner (unreported) NSWSC [January 1992] where His Honour said (at p 4);[1]
Where the applicant has been charged with certain more serious offences (such as armed robbery and various drug offences), s 9 removes that presumption and there is left no presumption either way. The Act makes no reference to onus of proof in such a situation (s59 refers only to the burden to be discharged). At common law, a person charged with a non-capital offence was except after conviction – regarded as entitled to bail, so that the onus lay on the Crown to show why he should not be granted it. Although sometimes described as a presumption in favour of bail (albeit a “weak” one), it was in my view more properly described as an onus upon the Crown. The common law power to grant bail was abolished by s 62 of the Bail Act, although the power of this Court to make orders in the nature of habeas corpus was preserved by s 55. S 67 provides that the Act is to be applied to bail applications to the exclusion of the common law previously in force. The Bail Act provides in the place of that common law power a code, the language of which (in accordance with principle) must in the first instance be examined without regard to the previous law for the purpose of aiding its construction: Bank of England v Vagliano Bros [1891] AC 107 at 144-145. In relation to applications for bail in this present category by persons not yet convicted, therefore, there is in my view an onus on the Crown. The only presumption which the Crown may have to displace, however, is that of innocence – and then only on the balance of probabilities. The onus on the Crown in relation to this category is necessarily less onerous than it is in relation to the previous category. So far as convicted persons are concerned, they not only bear the onus of proof (Regina v Hilton (1986) 7 NSWLR 745 at 748, 751), they must also establish special or exceptional circumstances justifying the grant of bail (s 30AA).
[1] See Nona v The Queen (No 2) [2012] ACTCA 59 at [27].
47. I have followed those approaches as set out in R v Kissner and Nona v The Queen (No 2) [2012] ACTCA 59. In doing so I have also considered the strength of the Crown case having read the statement of facts. Taking the Crown case at its highest in my view it is a very strong case against the applicant.
48. I note that the applicant has no prior history other than the low level prescribed concentration of our alcohol conviction in 2013.
49. It appears the applicant has significant ties to the territory, which include that his family live here and I note they were in attendance at court. The applicant also has business in the territory.
50. I have taken into account the nature and seriousness of the offence and clearly they are grave, I have already determined that the Crown case is strong.
51. Further I have taken into account the section 22 criteria including:
1.the applicant’s character, background and community ties;
2.the effect of refusal of bail on the applicant and his family; and
3.the lack of relevant antecedent history.
52. Having considered the evidence before me it seems to me that the main concerns in relation to whether bail should be granted is the matters referred to at section 22(1)(b) They are committing an offence whilst on bail and intimidating, harassing a witness.
53. I consider risk of flight is a low level risk which could be mitigated by conditions.
54. I have when considering whether to admit the applicant to bail taken the approach in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184 and what was said in that case by Giles J; [56] and referred to by Refshauge J in R v Laipato (No 2):
“It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis”.
55. I note that, at the time of that decision, sectopm 21(1)(c) of the Bail Act was, relevantly, in the terms of what is now section 22(1)(b). I note that, in the same case, Madgwick J pointed out (at 174 [21]):
There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass.
56. I have taken that into account and adopted that approach when determining whether bail should be granted.
57. In relation to the real concern for me in this matter, that is intimidation of witnesses and the safety of witnesses. I refer to Refshauge J in Saedam where he said at [38]:
As to the intimidation of or interference with witnesses, I consider the approach to the issue In the matter of an application for bail by Eiginson [2014] ACTSC 234 at [105]-[109], where I said:
It seems to me that the same general approach should be taken to this issue as to the question of whether further offences are likely to be committed.
58. The concern I have is squarely raised in relation to criteria of section 22(1)(b)(iii) that is; harassing or endangering the safety and welfare of anyone and interfering with evidence or intimidating a witness or otherwise obstructing the course of justice in relation to a personal anyone else.
59. I considered R v Green (Unreported, New South Wales Supreme Court, Hunt J, 5 October 1979), where Hunt J said:
“where there was an objection that the accused may tamper with evidence, it was not sufficient simply for the Crown to allege such to be the case, but it was a matter that had to be proved”.
60. His Honour referred to his approach taken in R v Le Clair in relation to the nature and circumstance of attempts at sanctions to a (in that case a complainant) for failed drug deals being intimidated (stand over tactics) and considered that to be a circumstance which could be taken into account when considering whether a applicant poses a risk of interfering or intimidating a witness. The evidence on the prosecution case is strong in that regard in my view.
61. Critically there are two civilian witnesses who are extremely important in the Crown’s case. It would seem from the material I have before me that without them the Crown case would be extremely weak. In light of that there is a great risk as to their safety. I cannot conceive of any suitable condition which would mitigate against that grave risk. A condition not to contact in my view would not protect against that factor given the critical evidence those witnesses could give at trial.
62. Having carefully considered all of the material before me and the submissions and having considered the authorities to which I have referred, I cannot be satisfied that conditions available to me to impose could mitigate against the real possibility that the applicant would commit further offences, and particularly in relation to harassing or intimidating a witness or interfering with evidence. That is the basis upon which I will refuse bail.
Orders
63. I make the following orders:
1. Bail is refused.
I certify that the preceding sixty three [63] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.
Associate: Cecilia Pascoe
Date: 2 November 2018
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