Katelaris v Director of Public Prosecutions (NSW)

[2018] NSWCCA 193

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Katelaris v Director of Public Prosecutions (NSW) [2018] NSWCCA 193
Hearing dates:	30 July 2018
Date of orders:	30 July 2018
Decision date:	31 August 2018
Before:	Beazley P; R A Hulme J; Hamill J
Decision:	(1) Release application allowed. (2) Conditional bail granted.
Catchwords:	CRIMINAL LAW – release application – show cause requirement – applicant crusader for legalisation of cannabis for medicinal purposes – supply and manufacture of large commercial quantity of cannabis leaf and oil – breach of bail – complex issue of medical necessity to be ventilated at trial – where applicant likely to represent himself – where applicant without access to necessary resources – unusual circumstances – show cause requirement established – bail concerns mitigated by conditions – no unacceptable risk
Legislation Cited:	Bail Act 2013 (NSW) ss 16A, 16B, 17, 18, 19, 49, 67(1)(e) Court Suppression and Non-publication Orders Act 2010 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 R v Cairns [1999] 2 Crim App Rep 137 R v Dudley and Stephens (1884) 14 QBD 273 R v Katelaris [2018] NSWSC 931 R v Loughman [1981] VR 443 R v Rogers (1996) 86 A Crim R 542
Category:	Principal judgment
Parties:	Andrew Katelaris (Applicant) Regina (Respondent)
Representation:	Counsel: Self represented (Applicant) S Dowling SC (Respondent)   Solicitors: Self represented (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2018/00219136
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: [2018] NSWSC 931 Date of Decision: 20 June 2018 Before: Wilson J File Number(s): 2018/129653

Judgment

1. THE COURT: On Monday 30 July 2018 Andrew John Katelaris made a release application under ss 49 and 67(1)(e) of the Bail Act 2013 (NSW). He appeared for himself. His application was successful and bail was granted on the following conditions: –

1. To be of good behaviour.

2. A residence condition: To live at [REDACTED].

3. A reporting condition: To report to [REDACTED] Police Station between the hours of 8.00am and 6.00pm each Monday, Wednesday and Friday.

4. To appear at:

(a) The Sydney District Court on 5 November 2018 at his trial.

(b) The Newcastle Local Court on 23 August 2018.

and on such date and at such courts thereafter as required.

5. Not to see or communicate with persons for the purpose of offering advice or treatment of a therapeutic, quasi therapeutic or purportedly therapeutic, nature including any dietary or medical advice or advice as to the benefits or effects of cannabis, cannabis oil or other cannabis products.

6. Not to procure, manufacture, possess, cultivate, distribute, supply or participate in the procurement, manufacture, distribution or cultivation of cannabis or the derivatives of cannabis.

7. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor).

8. On the application of the prosecutor under s 30 Bail Act:

Enforcement of drug abstention condition: To undertake any testing at the direction of any police officer to confirm compliance with the drug/abstention condition. Such direction may only be given by a police officer who believes on reasonable grounds that the applicant may have consumed drugs in breach of the bail acknowledgment. Such testing may only be non-invasive and carried out with respect given to the applicant’s privacy.

2. We indicated that we would provide reasons at a later time. These are those reasons.

3. The applicant is charged with a variety of offences, all of which in one way or another arise out of what appears to be his earnest belief in the medical benefits of cannabis and cannabis oil. The first series of charges arose after the applicant appeared on national television and showed the journalists, and in turn the television audience, a secret laboratory within his home on the north shore of Sydney. Following the telecast, police executed a search warrant on the premises on 30 May 2017. As a result, the applicant was charged with a variety of offences. Most significantly, he was charged with the supply of a prohibited drug (being 10.6245kg of cannabis leaf), the supply of a large commercial quantity of cannabis oil (8.1975kg) and manufacturing or producing a prohibited drug in an amount not less than the large commercial quantity (being the same 8.1975kg of cannabis oil). He was also charged with possessing around $10,000 in cash suspected of being the proceeds of crime. The offences involving large commercial quantities carry a maximum penalty of life imprisonment. Accordingly, s 16B(1)(a) and (f) of the Bail Act required the applicant to show cause why his detention is not justified.

4. Further, on 24 January 2018, the applicant was granted conditional bail by Judge Syme in the District Court in relation to those serious charges. Then, on 13 April 2018, the applicant was arrested when he was observed to be driving somewhat erratically on the Central Coast. He was charged with supplying a prohibited drug (being 76g of cannabis oil), possessing a prohibited drug (a tiny quantity of cannabis leaf) and driving while there was present in his blood an illicit substance (THC). Because these alleged offences constituted a breach of the bail on the more serious charges, he was also caught by the provision in s 16B(h)(i). Again, he was required to show cause why his detention is not justified.

5. The applicant was in custody between 5 December 2017 (when the prosecution made a successful detention application) and 24 January 2018 (when he was granted bail by the District Court). He has been in custody since 13 April 2018. He made a release application to the Supreme Court on 14 June 2018 but this application was refused on 20 June 2018. [1] The present application is a re-hearing and not a review or appeal from the decision made in the bail court. There is no legal error asserted or established.

   1. R v Katelaris [2018] NSWSC 931.

6. The applicant was also charged, by court attendance notice, with offences under the Court Suppression and Non-publication Orders Act 2010 (NSW) and the Children and Young Persons (Care and Protection) Act 1998 (NSW). Those offences involved the applicant publishing the names of children on his Facebook page. The post was calculated to explain the success of treating those children with medical cannabis. When asked by a caseworker to remove the names of the children, the applicant refused or failed to do so. There is no bail in relation to those offences. Their relevance resides in their support of the prosecutor’s submission that the applicant is, at best, indifferent to his obligations to act within the law.

7. The most serious matters are listed for trial in the Sydney District Court on 5 November 2018. The April 2018 matters are listed for mention in the Newcastle Local Court on 23 August 2018.

8. The prosecution opposed the grant of bail. It submitted that the applicant had not shown cause why his detention is not justified. Further, the prosecution submitted that the applicant's attitude, criminal record, and conduct over the last 12 months suggests that, if granted bail, he represents an unacceptable risk of committing serious offences and endangering individuals and the community. It was submitted in writing that the applicant also presented an unacceptable risk of failing to appear, but this submission was not pressed with any force at the hearing. As was observed in the course of argument, the applicant appears to be keen to appear at his trial in order to make his defence of "medical necessity" and thereby advocate publicly in favour of the cause of legalising cannabis at least for medicinal and therapeutic use.

9. The prosecution pointed to the applicant’s criminal history which includes a number of convictions for possession and cultivation of drugs, and some offences involving resisting police and refusing to comply with directions going back to 1992, 2005 and 2010. However, none of these matters resulted in any more than the imposition of a small fine and while they show a long standing interest in cannabis and, perhaps, a longstanding cantankerous attitude, they are of little relevance to the present application.

10. It is well established that the requirement to show cause pursuant to ss 16A and 16B is independent of, and should not be conflated with, the assessment of risk for the purpose of ss 17, 18 and 19 of the Bail Act. [2] It is equally well established that similar factual matters may inform each of those considerations. [3]

    2. See, for example, Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25] and Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 at [76]-[86], [129]-[148].

    3. Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24].

11. As to the requirement to show cause, each case will turn on its own particular facts and it is difficult to gain any real guidance from previous cases. [4] That is particularly so where, as here, the case is unusual. The present applicant does not present as a typical criminal or drug dealer. On the contrary, it is apparent from the abundance of material tendered on the application that he is something of a crusader for the cause of legalisation of cannabis for medical use. He was a registered medical practitioner but was deregistered in circumstances which are, according to him, controversial. Part of the material is an extensive report of the Health Care Complaints Commission. It is unnecessary to consider the contents of the report in any detail but it seems the applicant was de-registered in 2005 but continued to treat people in the years that followed. On the other hand, some of his previous "patients" are supportive of him and indicate that his therapeutic use of cannabis has relieved their suffering and improved their quality of life.

    4. Cf Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30]-[33] and Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35].

12. Of course, none of that amounts to a defence in law although the applicant submitted that it may go to support a defence of “necessity” and justify his possession of the cannabis leaf and oil. The offences with which the applicant is charged are on their face extremely serious and may carry a substantial custodial sentence if proved. In spite of the applicant's submissions in relation to his defence, which were more political than they were legal, the prosecution case appears to be a strong one. The question will be what the tribunal of fact makes of his defence of necessity. It is always difficult for a court sitting on a bail application, and not appraised of all of the evidentiary material that will ultimately be produced at trial, to make an assessment of the prospects that an applicant for bail will be convicted or acquitted.

13. What is known in the present case is that the matters the applicant will seek to ventilate at his trial are relatively complex from a factual and evidentiary point of view and also in relation to the legal issues that arise when an accused seeks to have the defence of necessity left for the jury’s consideration. [5]

    5. As to the difficulties confronting an accused relying on necessity, see, for example, R v Dudley & Stephens (1884) 14 QBD 273, R v Loughman [1981] VR 443, R v Rogers (1996) 86 A Crim R 542 and R v Cairns [1999] 2 Crim App Rep 137.

14. There is controversy around whether the applicant will be represented by lawyers at his hearing. The prosecution submitted that he has a grant of legal aid and that a particular solicitor has been assigned to his case. However, the applicant informed the Court that he is not satisfied with the services he has received to this point and it is likely, or at least possible, that he will represent himself at trial.

15. The applicant also put to the Court, and we are inclined to accept, that he has very limited access to legal resources whilst in custody. He is unable to access legal authorities on websites such as Caselaw and the like. Further, it is likely the applicant will need to consult with medical and pharmacological experts in order to lay the foundation of the defence he hopes to conduct. Although this latter point was not specifically articulated, we must take into account the fact that the applicant represented himself and, in spite of his obvious self-assurance (not to say solipsism), is not legally qualified or skilled in advocacy. Mustering such evidence and preparing for the legal arguments is particularly difficult for him whilst he is in custody.

16. It must be accepted that it would be an unusual case where an applicant could show cause by reference to the difficulties in preparing their defence represented by their incarceration. As Senior Counsel for the prosecution pointed out, this is a problem faced by most remand prisoners in one form or another. However, in the particular and unusual circumstances of the present case, we are satisfied that in combination with a number of other matters the applicant’s inability or difficulties in preparing his defence satisfies the show cause requirement.

17. In summary, we are satisfied that the following combination of circumstances establish that the applicant has shown cause why his detention is not justified:

1. The unusual circumstances of the drug charges and the fact that the applicant is not, in any meaningful sense, a typical "drug dealer”, but rather a person who has an earnest belief in the medical benefits of cannabis and whose offences were not committed for financial gain but in pursuit of his beliefs.

2. The possibility (or likelihood) that the applicant will represent himself at trial and the difficulties confronting him in accessing legal resources and expert evidence in view of the complexity of the issues to be ventilated at the hearing.

3. The fact that the applicant was on bail granted by the District Court for around seven weeks and the relatively benign nature of the breach of the bail. While the charge of supply is always a serious one, the vial of cannabis oil possessed by the applicant was deemed to be in his possession for supply due to its quantity. There was no other evidence or indicia that he was engaged in the supply of that oil. He will have an onus of proof to establish that the cannabis oil was not in his possession for supply. It remains to be seen whether a magistrate might accept his explanation that the vial had been there for some considerable time and he had merely failed to dispose of it after he was released from custody.

18. In reaching the conclusion that the applicant has shown cause, we have also taken into account the length of time that he would be in custody pending resolution of his criminal matters even though the period of time is not a particularly lengthy one by current standards. We have also considered other matters more usually associated with an assessment of risk in ss 17 – 19 of the Bail Act as well as the community support that the applicant enjoys.

19. It may be that none of those matters individually would be sufficient to overcome the hurdles that the applicant faces to show cause in the circumstances of this case. However, we were satisfied that the combination of matters did so.

20. The applicant's criminal history, the breach of bail and the content of a number of his submissions justified the prosecution’s position that there were a number of bail concerns. In particular, there was a concern that the applicant may continue to commit offences involving the possession, supply, manufacture or cultivation of cannabis or cannabis oil. Similarly, if the applicant engages in treating or advising patients and the material in the Health Care Complaints Commission report has any substance, the prosecution was justified in submitting that there is a risk that the applicant represents a danger to the safety of the community.

21. While we accept that these are “bail concerns” for the purpose of s 17 of the Bail Act, having considered the relevant criteria in s 18, we were satisfied that the conditions settled upon mitigate those concerns to such a degree that there are no “unacceptable risks” for the purpose of s 19.

22. It is for those reasons that the release application was granted and bail granted on the terms indicated in the first paragraph of this judgment.

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Endnotes