Lansdowne v Odpp (Qld)
[2013] QMC 19
•19 December 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Lansdowne v ODPP (Qld) [2013] QMC 19
PARTIES:
PAUL JEFFREY LANSDOWNE
(applicant)v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
(respondent)
FILE NO/S:
BRIS-MAG-00034322/13
DIVISION:
Magistrates Courts
PROCEEDING:
Bail Application
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
19 December 2013
DELIVERED AT:
Brisbane
HEARING DATE:
18 December 2013
MAGISTRATE:
The Honourable Judge Carmody QC
ORDER:
Bail refused
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE - Bail – Contested bail principles – Applicant a participant in a criminal organisation – whether cause is shown that continuing pre-trial detention is justified.
LEGISLATION:
Criminal Code 1899
Bail Act 1980, s 8, s 9, s 15, s 16
Criminal Organisations Act 2009
Justices Act 1886 part 6A
Practice Direction 21 of 2013 Chief Magistrate (Q) 4 November 2013
Criminal Law (Criminal Organisation Disruption) and Other Legislation Amendment Act 2013Magistrates Courts Act 1991
COUNSEL:
J Godbolt for the Applicant
S Farnden for the RespondentSOLICITORS:
AW Bale & Son
Office of the Director of Public Prosecutions
Introduction
[1] This is a contested bail hearing by an alleged participant in a criminal organisation.
[2] The applicant was arrested eight days ago on a charge of knowingly being in the company of two other members of the Rebels Criminal Motorcycle Gang (CMCG) at the Yandina Hotel, contrary to s 60A(1) of the Criminal Code 1899. He has been in custody since then.
[3] The matter was mentioned in the Maroochydore Magistrates Court and adjourned to this court for hearing on 11 December 2013.
Jurisdiction
[4] Unlike the superior courts the Magistrates Court has no inherent jurisdiction or common law power to admit to bail. Its authority derives solely from s 8 of the Bail Act 1980 (Q) (the Act) (John Lewis & Co v Timms [1952] AC 676).
[5] Bail hearings in summary courts are ordinarily held in the geographical district or division in which the defendant lives or the offence occurred (cf s 139(1)-(2) Justices Act 1886 (Q)) but the venue can be varied and matters reallocated by direction of the Chief Magistrate (s 12(2)(d) Magistrates Act 1991 (Q)).
[6] Unless the interests of justice require otherwise all defended bail hearings involving a participant are now heard in Court 20 in the Brisbane Magistrates Court under Practice Direction 21 of 2013.
[7] Thus, notwithstanding that the related criminal proceedings are pending in another district this court can decide the application.
Brief history of bail
[8] The word bail derives from the French for “hold and deliver”: Ross on Crime 4th ed Lawbook Co, (2009) 156 [2.100].
[9] A person is said to be admitted to bail when he is released from the custody of law enforcement officers and entrusted to the private custody of his bail who are bound as sureties to produce him to answer, according to law, to the charge at a specified time and place (I Hale, Pleas of the Crown at p96).
[10] English law did not recognise any general right to bail (Chau –v- DPP (1995) 37 NSWLR 639 per Gleeson CJ at 646) prior to the Petition of Right 1627.
[11] Historically, a person arrested for a crime was kept in confinement until he could be brought to trial (Huddart, Parker & Co Ltd v Moorhead (1909) 8 CLR 330 at 356). However, from the early medieval period defendants were routinely released from custody pending trial via procedures analogous to habeas corpus as an alternative to the “inadequate and disease ridden gaols and lock ups” (R Roulston, Principles of Bail, Proceedings of the Institute of Criminology, Sydney University Law School (1969)) (Re: Groves’ (1973) Qd R 310).
[12] In Norman times bailling was the prerogative of county sheriffs but because of excesses “designed to elude the benefit of… liberty” the role was later transferred to justices with commissions of the peace (Sir William Holdsworth, A History of English Law (vol IV pp525-8) and then by the Habeas Corpus Act, 1679 to magistrates.
[13] Over the next 400 years or so bail jurisprudence in the United Kingdom grew into a coherent body of principle and practice which was adopted in Australia by virtue of settlement (R v Watson (1947) 64 WN (NSW) 100) continued in force in Queensland on separation and without any major charges gradually consolidated into statutes (see, for example, Justices Act 1886 & Criminal Code 1899).
[14] In Re Robinson (1854) 23 L.J.Q. B 286 Coleridge J identified the key bail criteria as:-
(a) the probability of surrender for trial gauged by the nature of the crime charged;
(b) the likelihood of conviction and;
(c) severity of the potential punishment.
[15] Community safety, repeat offending and possible witness tampering were also important considerations (R v Spicer (1953) Q.W.N.15). Thus, in R v Phillips (1947) 32 Crim App R 47 a serial burglar was denied bail because he would inevitably reoffend if released.
[16] In reviewing the common law principles of bail in R v Wakefield (1969) 89 WN (Pt 1) NSW 325 Judge Cross highlighted a defendant’s right to access legal advice and the ability to prepare in circumstances of approximate parity with those of the prosecution and identified other significant considerations, such as:-
· the public cost and inconvenience that would be involved if bail was not answered;
· previous conduct in answering or fail to answer bail;
· previous convictions and antecedents;
· his or her reliability or lack of it;
· present circumstances, such as family or cultural ties; and
· the degree of incentive and/or the level of temptation or disincentive to flee;
· the gravity of the offence and the maximum penalty it carries; or
· more relevantly whether imprisonment is likely on conviction and for how long;
· the probability of a guilty plea or verdict and the relative strength of the crown case;
· the undesirability of interference with the course of justice;
· delay through no fault of the defendant; and
· the prospect of the commission of further criminal offences on bail.
[17] The Act which is based on the recommendations of Report Number 5, Queensland Law Reform Commission (1978: Report No 5) now provides an exhaustive statement of the law of bail in relation to all offences within the State (R v Hughes (1983)1 Qd R 92 per Connolly J at 95-96).
[18] The underlying philosophy of the Act reflects the view that the right to personal liberty is “the most elementary and important of all common law rights” (Foster v The Queen (1993) 67 ALJR 550, 555) and can only be impaired or taken away for good reason (Williams v The Queen (1986) 161 CLR 278, 292).
[19] The clear legislative intention is to permit to release from custody of arrested and charged but unconvicted defendants except where cause is shown for remanding them in custody.
[20] No grant of bail is risk free but it is an important process in civilised societies which reject any general right of the executive to imprison upon mere allegation or without trial. Some risks have to be taken to protect citizens in those respects (Williamson v DPP (Q) [2001] 1 Qd R99 per Thomas J at [22]).
[21] Release on bail is restricted to a person held in custody for an offence in Queensland.
[22] A defendant not released on bail or sentenced for the offence charged must be remanded in custody (s 8(2) of the Act).
Bail practice and procedure
[23] All persons in police custody must be taken forthwith before a magistrate to be dealt with according to law; that is, to be remanded or bailed (see s 552 of the Criminal Code and s 393-394 Police Powers and Responsibilities Act 2000(Q)).
[24] Inexcusable delay in complying with this directive is a misdemeanour punishable by up to 2 years imprisonment under s 137 of the Criminal Code.
[25] Bail proceedings are governed by civil – not criminal- procedures (Scrivener v DPP [2001] 125 Cr App Rep 279, 281 – 283). The principles of open justice (subject to s 12 of the Act) and procedural fairness requirements also apply.
[26] Disputed facts are resolved according to the balance of probabilities.
[27] The strict rules of evidence do not apply in bail hearings except in public interest based variation or revocation applications under s 30 of the Act (DPP v Filippa (2005) 1 Qd R 587).
[28] The court conducting a bail hearing for s 8 purposes may receive and take into account information of any kind it considers credible or trustworthy enough in the circumstances: s 15(1)(e).
[29] This encompasses affidavit or other evidence about agreed matters: s 15(1)(d) as well as the defendant’s previous bail history, criminal record and the probability of conviction: s 15(1)(c).
[30] Under new s 23EC of the Justices Act 1886 (Q) a criminal proceeding (including a bail application) may now be conducted via audio visual link facilities in an ‘alternative’ magistrates court sitting outside the district or division in which the proceeding would ordinarily be heard.
[31] The “solemn duty” of granting or declining bail is to be discharged on the basis of the best information available including common knowledge (R v McIver (1929) VLR 50 at 59). Self evidently, the quality of bail related material available to the court is critical to a just outcome. A misleading or inadequate evidence base can pervert the entire process.
[32] That is why bail proceedings can, and in my opinion, should, be postponed even (or perhaps especially) at summary justice level if obtaining sufficient reliable information for the purposes of making a bail decision has been impracticable due to lack of time: s 16(1A).
[33] Notably, a bail dispute is not wholly adversarial. The court itself plays partly an inquisitorial role. It, not the parties, are ultimately responsible for releasing defendants who do not need to be held in involuntary custody pending trial and for detaining those who do.
[34] Thus, the court may make its own investigations of and concerning the defendant as it sees fit including, for example, directly examining the applicant and other witnesses (see R v Versace (2011) QCA 318 at [40]).
[35] The only prohibited area of inquiry is the defendant’s guilt of the offence charged: s 15(1).
[36] Reasons must be given for denying bail.
[37] Grants of bail may be varied or revoked under s 30(1) of the Act if necessary or desirable in the interests of justice. (cf r 26, Criminal Practice Rules 1999).
Successive applications
[38] The traditional requirement of a significant change in the circumstances between successive bail applications emphasises the need for an applicant to adequately prepare and properly present supporting evidence on the initial attempt (Fisher v DPP (Q) (2011) QCA 054).
[39] However, a second application for bail was allowed in R v Edwards (1989) 1 Qd R 139 after an earlier one had failed because of additional information regarding weaknesses in the prosecution case (see r 25(4), Criminal Practice Rules 1999).
[40] The applicant in Shelley v DDP (2001) QCA 34, was permitted to reapply on the basis that the period of time spent in custody since his first application had been refused was treated as a material change because having regard to the nature of the offence the time already served was likely to exceed the duration of a custodial sentence imposed (see also AP V DPP (Q) ([2008] QSC 236).
The bail discretion
[41] Whether to grant or refuse bail is a reasoned conclusion reached through an integrated and complex process of weighing up the relative importance of multiple factors and competing, often conflicting and sometimes contradictory, considerations (Lacey v Attorney-General [2009] QCA 274 at [13]).
[42] In other words a bail determination as is a principled and rational choice between rival alternatives by a trained legal mind within the confines of a specific factual context.
[43] In common with other judicial discretions a decision about bail is “governed by rule not by humour. It must not be arbitrary, vague or fanciful: but legal and regular” (R v Wilkes (1770) 98 ER 327 at 334 per Lord Mansfield).
[44] Accordingly, a discretionary decision maker is not at liberty to give effect to what Kitto J described in R -v- Trade Practices Tribunal: ex parte Tasmanian Breweries Pty Ltd (1970-1971) 123 CLR 361 at 376 as his or her “…own idiosyncratic conceptions and modes of thought” nor is there any room for social engineering or acting on subjective factors unrelated to the facts of the particular case.
[45] Clearly, the delicate balancing exercise involved in deciding an application for bail cannot be properly performed without due regard to legislative objects or stated determinants but judicial experience, common sense and assumptions about social facts also play an important role (see Miller v Miller: Macfarlane v Macfarlane [2006] 2 AC 618 at 631 per Lord Nicholls).
[46] As former High Court judge the Hon Michael Kirby AC CMG, observed in the 2003 Hamlyn Lectures:
“Somewhere between the spectre of a judge pursuing political ideas of his or her own from the judicial seat irrespective of the letter of the law, and the unrealistic mechanic deified by the strict formalists, lies a place in which real judges perform their duties: neither wholly mechanical or excessively creative.”
[47] The court’s task in discharging the bail function is to give practical expression to the public policy intent and goals of the legislation. It is not to meet community expectations outside of that. It is Parliaments responsibility to make good laws consistently with contemporary social values, for the police to enforce them and the courts to properly apply them regardless of personal opinions or beliefs.
[48] Admittedly, the inherent weaknesses and imperfection of the risk assessment process in any given set of circumstances makes it easier to miscalculate than applying a fixed legal rule. Nevertheless, the judicial view of the “correct” outcome in any particular case will often reflect the better understanding of the issues and the available resolution options than disapproving members of the public or vocal sections of the commentariat.
[49] Likewise, just because the outcome might have been different if undertaken by another judicial officer does not mean to say the original result was outside reasonable bounds (Glaitback v DPP (Q) (2002) QCA 349).
[50] It does not follow that every unpopular or unexpected decision about bail must be therefore wrong.
[51] On the contrary, there is a strong bias in favour of the legal correctness of bail decisions. They can only be overturned on appeal if they are plainly unreasonable or unjust or arrived at due to the application of a wrong principle, mistaken facts, irrelevant or extraneous considerations or because material facts and circumstances were ignored or overlooked (House v King (1936) 55 CLR 499).
Bail principles and presumptions
[52] Subject to other provisions of the Act s 9 imposes an enforceable legal duty on a bail court to release unconvicted defendants from custody in certain cases.
[53] Obviously, pre-trial detention is not to be used by courts as a proxy for punishment (Clumpoint v DPP (2005) QCA 43 at [18]) and therefore, subject to the Act, an unconvicted defendant should not be remanded in custody if conditional bail (R v Rose (1898) 18 Cox C.C. 717) pending trial is sufficient to achieve the non-punitive objects of criminal justice (cf Edwards v The Queen (1996) 98 A Crim R 510 per Gleeson CJ at 515).
[54] Nor does a magistrate have any lawful authority to withhold bail as a coercive measure e.g. to secure a guilty plea or for political purposes (R v Badger (1834) 4 QB 468; Reg v Rose (1896) 18 Cox CC 717; R v Greenham [1940] VLR 236).
[55] Excessive bail is contrary to the Declaration of Rights and was also an indictable offence in Queensland until 2008 (see the repealed s 136(a) Criminal Code).
[56] Unauthorised involuntary detention is still actionable as false imprisonment (see the saving of civil causes by s 702 of the Criminal Code). For successful actions against magistrates for maliciously refusing bail (see Osborn v Gough (1803) 3 Bos.& P. 55; 127 E.R. 297; Wright v Court (1825) 4 B&C 596; 107 E.R. 1182).
[57] In the New South Wales Law Reform Commission, Bail, Report No.133 (April 2012) [10.32] at pp. 149-150, the legislative “presumption” for bail was described as reflecting deep seated societal values and conspicuous democratic rights including the:-
·importance of liberty in a free society;
·presumption of innocence;
·rule against State interference with individual action;
·rejection of punitive confinement outside the judicial process and unjustified involuntary detention; and
·public interest in a fair trial for both the State and the defendant.
The grounds for refusal
[58] Despite the prima facie right to bail, however, a court is required by s 16(1) of the Act to deny bail if satisfied there is an unacceptable risk that if released the defendant would:
(i) fail to appear and surrender into custody; or
(ii) (A) commit an offence; or
(B) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
(C) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
[59] A defendant can also be held in custody for his or her own protection.
[60] In Williamson v DPP [2001] Qd R 99 at [117] Thomas JA described pars16 (1) (a) (i) and (ii) A as the main grounds for withholding bail (see also DPP v Ghiller (2008) VSC 435 per Eames J at [43]) but wider preventive or protective concerns are becoming increasingly prominent.
[61] The likelihood of a defendant on bail not attending on the date fixed for trial and surrendering into custody depends on whether the combined incentives for turning up outweigh the disincentives for avoiding the court date. Some indicators are:-
·access to illicit funds or underground support networks
·the capacity to flee and stay hidden;
·strong ties with the State including family, friends, cultural bonds and social connections;
·employment and residential stability, financial commitments;
·the nature and quantum of and strength of relationship with a proposed surety;
·the likelihood of conviction together with the probability of a custodial sentence and its possible duration.
[62] In R v Chaouk [2010] VSC 315 King J found that that despite strong family ties and an estimated trial delay of two years, links with a CMCG combined with the unexplained possession of 36 passports as well as two loaded firearms and previous threats to the alleged victim, heightened the risk of flight.
[63] An unacceptable risk of non-attendance or reoffending can be reduced to the level of acceptability by imposing conditions having sufficient disciplinary effect.
[64] Any terms of release for enforcing compliance must not be overly onerous for the person in the circumstances (s 11(1) of the Act).
[65] However, despite its theoretical appeal conditional bail may be an inadequate guarantee of appearance in many cases. Having to forfeit a passport or being banned from points of international departure may appear superficially stringent but neither precaution will impede a successful inter or intra state escape or, for that matter, stop overseas movement by alternative unlawful means.
[66] Nor will they protect at risk community members any more than non-observance of residential restrictions or reporting requirements effectively prevents or deters further offending by a defendant on bail at other times and places.
[67] Even the most objectively demanding conditions, such as curfew, are only truly effective to the extent they are strictly complied with. As they say, stop signs do not stop cars – drivers do (or do not as they please).
The unruly concept of unacceptable risk
[68] An unacceptable risk finding in a bail context is at best a forecast about what a defendant would (not might) do, founded on an informed opinion or discretionary judgment about what he may have done. The ultimate conclusion is as to a potential as distinct from an actual event (M & M (1988)166 CLR 69 at 75).
[69] In deciding the question of possible future harm the court must act on rational inferences drawn from predictive or prognostic, rather than purely historical, facts. Past behaviour is a familiar but not always the most accurate forensic predictor of future conduct.
[70] A risk is unacceptable in the relevant sense if the chances and consequences of it occurring are too high for it to be to reasonably and responsibly taken by a public official with the personal safety of others or their property.
[71] The final solution is dictated by the weight of the united force and mutual reinforcing effect of all the direct and circumstantial evidence available assessed in the light of the parties respective power to produce or capacity to contradict: (Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970]; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454). Even a low risk of re-offending can be rendered unacceptable by the seriousness of the potential adverse consequences that might flow if it eventuated (see Fountain v DPP (2001) QCA 522).
[72] Bail decisions are matters of judgment and degree necessarily based on “…provisional assessments upon very limited material…” (Williamson at 103) founded on assumptions, intuition, belief, experience, suspicion and even “guesswork” (Kable v DPP (NSW) (1996) 189 CLR 51 per Gaudron J at 106 and McHugh J at 123).
[73] It goes without saying, of course, that any influential subjective assumptions, rationales, values or opinions, should be fully exposed and acknowledged in reasons for judgment to avoid the appearance of arbitrariness and secrecy”(see The Uses of Discretion, K Hawkins (ed) Clarendon Press, Oxford (1992)).
[74] As Gleeson J CJ noted in Fardon at 589 the way the criminal justice system should respond to unacceptable risks represents an almost intractable problem. The potential for injustice exists whether pre-emptive steps are taken or not. On the one hand, a “false positive” will result in the unjust incarceration of an unconvicted defendant and, on the other, a “false negative” may mean that the price of one undeserving person’s liberty is significant community harm.
[75] A major problem with risk based intervention approaches is that some decision makers are naturally more risk averse than others, which gives rise to the potential of some taking too much risk with other peoples safety and the rest not taking enough. Thus, the same body of evidence can easily lead to opposite but equally reasonable conclusions with neither being demonstrably right or wrong.
[76] The indeterminacy of the unacceptable risk concept though problematic does not deprive the bail process of its judicial character: (Baker v the Queen (2004) 223 CLR 523). Nor is the criterion devoid of any meaningful practical content because it is not “capable of yielding” a more precise “degree of definition”: (Sica v DPP (Q) [2010] QCA 18 at [15]).
[77] However, the court is not free to characterise as “unacceptable” any level of risk it chooses. Rather, the word “unacceptable” has a function similar to that of the term “substantial” in other statutory settings. It imports a requirement that the likelihood of the relevant future conduct or event is not “trivial or transient” (Condon v Pompano Pty Ltd [2013] HCA 7 at [23]).
[78] Similar broadly stated standards are common place in statutes and, as Professor Zines observed, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis (see Thomas v Mowbray (2007) 233 CLR 307 at 351).
[79] The Supreme Court also adopts “unacceptable risk” as a yardstick in making continuing preventive detention orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q).
[80] The same test is routinely employed by the Family Court to resolve inconclusive child abuse issues in parenting cases. In M & M at 75, for instance, the risk of future sexual molestation was held to be unacceptable on the basis of a “lingering doubt” as to whether or not it had happened in the past.
[81] Predictive conclusions are also integral to the criminal sentencing discretion and calculation of damages for future losses in civil negligence cases (cf Fardon (2005) 223 CLR 575 at 657 per Callinan and Heydon JJ).
[82] Nevertheless, depriving unconvicted defendants of personal liberty on what amounts to predicted dangerousness, is contentious because it is logically possible for the issue (an unacceptable risk) to be proven to the satisfaction of the court as a probability on the basis of historical possibilities and predicted future events (Minister for Immigration and Ethnic Affairsv Pochi [1980] 31 ALR 666 per Smithers J at 673; cf Re H (1996) 1 All E R 1 at 21) whereas judicial power is customarily exercised in relation to properly proven past facts.
[83] No degree of persuasion is mentioned in the Act but it appears that an unacceptable risk is expected to be established as a fact to a legally sufficient and satisfactory level of certainty; that is to say, as a matter of probability.
[84] Legal persuasion is not a mathematical technique. The words “probable” and “likely” refer to a reasonable degree of cogency. They are expressions of approximation not algebraic exactness.
[85] The most that can be said is that in resolving forensic uncertainty something is probable if the person to be persuaded has “…the appropriate degree of confidence in its existence or correctness, based on, or judged according to, reason”(Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 227-228 per Mahoney JA).
[86] The challenge in each case is whether the probability and gravity of the assessed risk of harm means that those who are accused of having denied the rights of others should have their own respected.
[87] The question of risk must also be considered in light of the courts power, under ss 11 and 16(4) of the Act, to impose conditions to reduce bail risks to an acceptable level or eliminate them altogether (see MacBain v DPP [2002] VSC 321 at [17]).
[88] Naturally, there would need to be a reasonable basis for believing that bail conditions would be strictly complied with by a person already accused of failing to obey criminal law. Otherwise, imposing them would not serve any useful purpose.
The mechanics of the risk assessment process
[89] In assessing whether there is an unacceptable risk of any events specified in ss.16(1)(a) the court has regard to all matters appearing to be relevant including in particular, but not only, the following five factors stated in s 16(2):
(a) the nature and seriousness of the offence;
(b) the character, antecedents, associations, home environment, employment and background of the defendant;
(c) the history of any previous grants of bail;
(d) the strength of the evidence of the prosecution case;
(e) any information or submissions made about community or cultural considerations by a community justice group in the case of an indigenous defendant.
[90] Obviously the significance of any one factor will vary case by case depending on how much ‘verified’ information is available and what it discloses: Sica v DPP (Q) [2010] QCA 18 at [15].
[91] In many cases the nature and seriousness of the offence charged plus the alleged circumstances such as use of firearms, premeditation or callousness etc will be directly relevant to one or more of the s 16(1)(a)(i) and (ii) considerations. For example, the more serious the charge and compelling the case, the longer a likely lengthy prison sentence, and, consequently, the stronger the temptation to abscond is going to be.
[92] The same circumstances may also inform more than one type of risk. For instance, a person charged with an offence involving the use of explosives may present a high risk of both absconding and of serious offending if released (New South Wales Law Reform Commission, Bail, Report No.133 (April 2012) [10.90] at pp159 – 160).
[93] A detailed discussion of the role and interaction of the s 16(2) criteria can be found in Cokara v DPP (Q) (2012) QCA 250.
The offence charged
[94] Ordering pre-trial detention solely because of seriousness of the alleged offence arguably amounts to punishment without judicial proof of guilt. It runs counter to the presumption of innocence and the requirements of due process.
[95] The severity and duration of the likely outcome of criminal proceedings are, of course, more important, in a practical sense, than either the category of crime charged or the maximum prescribed jail time.
[96] However, the nature, including any aggravating features, of the offending is
[97] The alleged conduct here consists of drinking in public with at least two fellow members of a declared criminal organisation.
[98] The applicant is liable on conviction to a minimum mandatory six months sentence of imprisonment.
Antecedents and background
[99] Character and prior associations are relevant because of their natural tendency to reflect positively or negatively on respect for the law and the rights of others. A pattern of bad behaviour in the past can imply anti-social tendencies or a personality type prone to offend against or intimidate others. They may also be suggestive of higher than usual criminal propensity or future dangerousness. The tolerance for taking risks with community safety and order will reduce according to the number, nature and relative gravity of possible offences and the seriousness of potential harmful consequences: cf Fountain v DPP [2002] 1 Qd R 167; Burton v R (1974) 3 ACTR 77 at 78 per Fox J).
[100] Common experience and research show, for instance, that members of criminal organisations and gangs use force and threats disproportionately to other social groups for dispute resolution, intimidation or reprisal purposes. Altercations and physical assaults are shared sub-cultural norms and common features of their affiliations and social interaction (Hirshi, T (1969) Causes of Delinquency, Berkeley, University of Californian Press; Wolfgang, M (1969) The Subculture of Violence: Towards and Integrated Theory of Criminology. London. Travistock.
[101] Personal characteristics and special needs, vulnerabilities or responsibilities of a bail applicant can also raise or lower risk. Drug or alcohol addictions are a strong predictor of ongoing drug or property offending and related negative behaviour.
[102] Domestic violence and public order offences can be but often are not isolated incidents and may be read as an ominous sign.
[103] On the other hand, indigenousness, youth or cognitive impairment might provide reasons for releasing a defendant who on other measures would not ordinarily be a candidate for bail.
[104] A previous criminal record may also increase the prospect of a custodial sentence and its duration and thus add to the risk of flight.
[105] The applicant is 56 years old. He has two adult children and two school aged grandchildren. He owns a pizza business in Nambour and employs three staff including a co-defendant Joshua Carew.
[106] He has an almost fully drawn $150K line of credit secured against his home which he services when he can from business earnings.
[107] Based on criminal intelligence, investigating police allege that he is a life member of the Rebels MCG, a declared criminal organisation.
[108] His Rebels links are evident by way of photographs and clothing found during the execution of a search warrant on his home on 10 December 2013, Facebook posts of him wearing a patched vest and street checks between 03/05/2013 – 27/06/2013. (Affidavit of Wade Robert Lee filed 17/12/2013) [1] – [6].
[109] The defendant has drug convictions dating back to 1994, when he was fined $3,000 in the Supreme Court for possession of a prohibited import.
[110] 15 years later he was fined for having a dangerous drug and an unregistered and untraceable semi-automatic handgun containing 13 rounds found in a false cavity in a coffee table.
[111] He has 6 pages of traffic violations commencing in 1980, including speeding, major drink driving, ignore stop signs, unlicenced and disqualified driving and licence suspensions.
[112] In 1996 he was convicted of giving a false name to police in NSW.
[113] He does not have a current Australian passport and does not propose applying for one.
Previous bail breaches
[114] Prior non-compliance with bail conditions may be symptomatic of a defendant’s lack of respect for the authority of the legal system or lack self discipline and thus predictive of an increased chance of failure to appear.
[115] A history of bail breaches or contraventions of conditional liberty such as an intensive corrections order, a suspended sentence or good behaviour bond, probation or other community based order may also be indicative of a propensity for non-compliance with personal obligations.
[116] While the danger of absconding and a persistent history of non-attendance have to be distinguished from mere inadvertence a failure to appear even on a single occasion has major adverse consequences, irrespective of the reason, including waste of scarce public resources and distressed victims, anxious witnesses and potential jurors are all inconvenienced (see New South Wales Law Reform Commission, Bail, Report No.133 (April 2012) at [10.35]-[10.38]
[117] The offence charged was allegedly committed while the applicant was on bail for trafficking in amphetamines in the 3 ½ year period between January 2010 and July 2013 in partnership with, other Rebel associates including two of his current co-defendants.
[118] The applicant was a primary target of a covert police operation.
[119] On 23 March 2013, the applicant is alleged to have paid a NSW member of the Rebels $20,000 in payment for drugs.
[120] The evidence against him consists mainly of telephone intercepts and listening device records including; conversations about the availability of drugs, production and distribution methods, evading police detection and “cracking” a client for lying to him.
[121] The prosecution contend that offending on bail demonstrates a continuing intention to participate in criminal activities and organisations.
[122] The defence agrees that the applicant spent a lengthy time on bail in 1994, for possessing cannabis without breach and had been indicted on far more serious offences for which, if convicted, he would have been jailed for a considerable period.
The certainty of conviction and condign punishment
[123] There is an explicit requirement in s 16(2)(d) for the court to assess the strength of the Crown case. The probability of a guilty verdict and the spectre of a lengthy custodial sentence on conviction are obvious predictors of flight and the potential for intimidating victims or interfering with witnesses. Needless to say, it has to be taken account of when and to the extent that it meaningfully can be (Sica at [51]; cf (C Turner, Assessment of the Strength of the Prosecution Case in a Bail Application in Queensland: A Necessary Requirement? [2011] 31 Qld Lawyer 208).
[124] The incentive for absconding logically (if not statistically) increases in direct proportion to the prospect of conviction and severity of the likely penalty which in turn hinge on the seriousness of the offence and comparative strength or weakness of the prosecution case.
[125] Defendants charged with offences involving violence, injury or death, the use of weapons, aggravated sexual harm, serious property or drug related offences face severe consequences of up to a maximum of life without parole.
[126] The inevitability of jail can, however, be less of an inducement for fleeing than its estimated duration. Even a mandatory short – medium term of imprisonment may provide a powerful motive to run to a defendant with the means (unexplained wealth and international mobility plus links with underground support networks) and opportunity (lack of supervision) of avoiding it especially when combined with weak family, financial or other ties.
[127] Thus, likelihood of conviction and a penal penalty can justify extended periods of detention without trial.
[128] However, the relevance and significance of this factor even in the face of the most serious allegations varies according to the extent to which it is possible to realistically determine it. Where no sensible, or only a limited, assessment can be made one way or the other the issue loses weight as a consideration (Sica at [50]).
[129] The case against the applicant is based on CCTV footage.
[130] The triable issues are identification and knowing participation. The prosecution claims the circumstantial evidence on both is sufficiently strong to sustain a conviction which will inevitably result in a 6 month jail term. The defence says the CCTV footage is “far from clear” enough to prove identity and/or participation.
Show cause situations
[131] Prima facie, incapacitation may be seen by Parliament the only safe and viable way, in the case of a particular defendant, of meeting the overall public interests of crime prevention and community protection or achieving other important criminal justice objectives pending a criminal trial.
[132] A defendant charged with committing any of the offences mentioned in s 16(3)(a)-(d) or, irrespective of the offence, is alleged to be a participant in a criminal organisation under s 16(3A) falls into this category.
[133] In such matters the onus of showing that continuing pre-trial custody is unjustified reverts to the applicant.
[134] The presumption of detention is rebuttable only if ongoing confinement is demonstrably unjustified.
[135] The main reasons for presumed deprivation of liberty have been identified by Wood CJ as the:
(a) incentive (due to the certainty of conviction and a satisfactory jail term) and ability to abscond;
(b) willingness and ability to intimidate witnesses;
(c) very real risk of other offending usually because of the nature and covert way in which they are committed.
[136] Despite avowed intentions to the contrary the temptations of flight, engaging in criminal activity, intimidating witnesses or endangering public safety are impliedly presumed by law to be stronger than the incentives for complying with bail obligations unless and until the contrary is shown.
[137] They are deemed to be unacceptable bail risks because of what they are suspected of having done or the company they are believed to keep.
[138] The test is whether non custodial measures would adequately meet the balance of relevant public interest considerations including the bail principles and criminal justice objectives.
[139] The practical question for the court to ask and answer is whether continuing detention is warranted in all the circumstances to effectively safeguard against the presumed risks (e.g. reoffending or absconding) compared with the protection offered by less invasive precautions such as conditional liberty.
[140] Notably, the Act itself does not define what is meant by the key phrase shows cause why his detention in custody is not justified. Clearly, however, all relevant factors must be weighed (DPP v Harika [2001] VSC 237 at [44]-[47]) and granting bail to an applicant in a show cause situation is extraordinary rather than routine: cf Lacey at [54]. On the authorities something special will usually be required to merit it.
[141] By the same token, the onus to show cause varies up and down, depending on the seriousness of the circumstances, and the likelihood of repetition (Williamson at [34] per Derrington J)
[142] The Act does not identify the circumstances that may make continuing pre-trial detention unjustified but factors that may have that effect include:- a conspicuously weak prosecution case, unexplained preventable or excessive delay and special hardship such as urgent or special medical or other needs or extraordinary domestic duties
[143] Any agreed matters within s 15(1)(d) of the Act must also be considered.
[144] Provisions of this kind are not unique to Queensland. Section 4 (4) of the Bail Act 1977 (Vic), for example, is in substantially similar terms and by virtue of s 4(2)(a) of that Act a court in Victoria has to refuse bail in certain cases unless satisfied that exceptional circumstances exist which justify the grant of bail. This mirrors the old common law test for capital crimes like murder (see R v Hughes (1983)1 Qd R 92 per Connolly J at 95-96) but applies to a broader range of criminality under the Victorian statute including specified drug offences.
[145] Once the applicant shows that detention is unjustified within s 4(4) the judicial inquiry is over. There is no second step or reverting of the onus to the prosecution. The same would apply equally to s 16(3)-(3A) of the Act.
[146] However, a two-step approach is taken in Victoria to applications governed by s 4(2)(a). Bail must be refused under that subsection if the prosecution establishes the existence of an unacceptable bail risk even if the defendant has made out exceptional circumstances justifying bail. There is no comparable legal (as distinct from practical) requirement in Queensland.
[147] Section 8A Bail Act 1980 (NSW), by contrast, requires a defendant to demonstrate reasons why bail should not be refused. An applicant for bail in New South Wales caught by this provision is in an analogous position to those in a show cause situation in Queensland under s 16 of the Act (Sica at [52]).
[148] In R v Kissner (Hunt CJ at CL, 17 January, 1992, unreported) a defendant charged with drug offences made applications for bail, one before Wood J, and another before Hunt CJ at CL who said (at 6-8):
“… The presumption against bail expressed in s 8A imposes a difficult task upon an applicant to which the section applies. Its effect is not merely to place an onus upon the applicant to establish his entitlement to bail. He must satisfy the court that bail should not be refused. Wood J said (and I agree) that the presumption expresses a clear legislative intention that persons charged wit the serious drug offences specified in the section should normally – or ordinarily – be refused bail…
Wood J also adopted (as I do) the views expressed by Badgery-Parker J in a series of cases that, by the presumption against bail enacted by s 8A, the legislature intends the courts to place less weight upon the circumstances which are common to all applicants, and more weight upon the strength of the Crown case has become the prime consideration where s 8A applies…
Common to all bail applications are the circumstances that the applicant’s continued incarceration will cause a serious deprivation of his general right to be at liberty together with hardship and distress to himself and to his family and usually with severe effects upon the applicant’s business or employment, his finances and his abilities to prepare his defence and to support his family. Also common to most bail applications by persons charged with the offences to which s 8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; and application would otherwise be unlikely to be considered in relation to such serious matters.
The legislature has, notwithstanding all of those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s 8A has erected.
As Badgery-Parker J said if the Crown case is a strong one the application for bail in which they will be sufficient to do so must necessarily be somewhat special, and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one. On the other hand, if the Crown case is not a strong one, the circumstances to which I have referred in the last paragraph will ordinarily be given greater weight and the task of the applicant (although still a substantial one) will be correspondingly less difficult.”
[149] Kissner was approved by the Court of Criminal Appeal in R v Masters (1992) 26 NSWLR 450 at 473 which added:
“The presumption against bail … expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally – or ordinarily – be refused bail”.
[150] Technically, a conclusion that pre-trial custody is unjustified is not a determination that bail is to be granted. However, in a practical sense, they probably amount to the same thing (cf DPP v Asmar (2005) VSC 487; DPP v Harika (2007) VSC 435).
[151] Exactly how the “unacceptable risk” factors in s 16(2)(a)-(e) of the Act relate to the “show cause” provisions of s 16(3)-(3A), however, is unclear.
[152] Obviously the separate inquiries can overlap and some matters will be relevant to both but they will not always be the same.
[153] In Asmar (a conduct rather than status based show cause situation) Maxwell P noted at [12] that consideration of risk factors similar to those in s 16(2)(a)-(d), is “central” to the decision whether or not an applicant shall be released on bail and, if so, on what conditions. According to His Honour:
“To ask…whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations apply… the specified risks must be at the forefront of the consideration of the justification of the person’s detention.”
[154] On this basis a court may be satisfied that detention was unjustified if it concludes that the defendant does not pose an unacceptable bail risk of the kind specified in s 16(1) of the Act (cf Neal v DPP (Q) [2013] QSC 310 at [20]).
[155] Conversely, because of the interaction of the “unacceptable risk” and “show cause” provisions of s 16, a bail court in Queensland could not be reasonably satisfied that pre-trial custody is unjustified unless it found that there was no unacceptable risk of any of the events mentioned in s 16(1)(a) (Asmar at [13]).
[156] However, being an acceptable risk if freed may not always suffice. There may be other grounds justifying ongoing detention (Asmar at [13]) such as, for example, continuing participation in a declared or defined criminal organisation.
[157] In Re: Iskander (2001) NSWSC 7 Sperling J noted that show cause provisions are more than mere reverse onus mechanisms. They shift the focus away from and substantially reduce the influential weight of the standard risk based bail criteria. (see too DPP (Cth) v Germakian [2006] NSWCA 275).
[158] The strength of the Crown case is usually the key consideration. The more cogent the evidence of guilt is, or, at least, appears to be the more difficult the task of showing that confinement is unwarranted will be for an applicant charged with a s 16(3) offence.
[159] If the case is a strong one, the task will be a difficult one satisfying the standard conditions for bail will not ordinarily suffice to overcome the barrier to bail erected by s 16(3A). Something special will usually be required. If the charge is a serious one as well some exceptional circumstance is likely to be required (R v Hughes (1983)1 Qd R 92 per Connolly J at 95-96; Andres v DPP (2011) QSC 395 per Henry J at [4] – [5]).
[160] There are also some additional unstated factors that do not relate to the issue of risk but may be pertinent to whether confinement is justified or not.
[161] The period and conditions of pre-trial detention including reasonable access to legal advice and court exhibits are common examples. Both can be particularly important to bail (R v Wakefield (1969) 89 WN (Pt1) NSW 325) but neither have much to do with assessing risk.
[162] Justice delayed can mean that justice is denied.
[163] The criminal justice system is also concerned to provide relief against the avoidable hardships of pre-trial detention especially for breadwinners and defendants who are ultimately acquitted or not imprisoned for longer than they would have spent in custody on remand (New South Wales Law Reform Commission, Bail, Report No.133 (April 2012) [5.10] pp. 66-67; Sica at [43]..
[164] From a practical stand point detaining an unconvicted defendant for any longer than the likely duration of a custodial sentence can offend the principle that pre-trial detention should not operate as a punishment but it is hard to accept that delay of itself justifies release especially where the prosecutor is not responsible for causing it. (cf Williamson at [23].
[165] Moreover the s 16(2) risks do not become more acceptable over time and the legitimate non-punitive character of detention does not change because of delay alone but may if it is extreme (Lim at [49]).
[166] The prejudice of delay and the intrinsic forensic disadvantages of detention must be weighed against the prospects of conviction and the magnitude of other bail risks. It assumes more significance when the prosecution case is weak but if the conduct of the defence increases the length of time to trial any complaint of postponed justice loses most of its force (Lacey at [12]-[13], [47]).
[167] Strictly speaking, adverse consequences of pre-trial detention for the person’s family, or third party hardships such as employer, landlord or creditor, are not matters that have much, if any, role in assessing risk but may be significant to the justifiability of pre-trial detention (see Fode v The State of Western Australia [2005] WASC 226; NSW DPP v Scott Allan Orrock [2012] NSWSC 459).
[168] Legitimate non- legal needs of the applicant or a dependant can also be important to whether or the extent to which pre-trial custody is justified.
[169] In DPP vOrrock [2012] NSWSC 459 the applicant, a Hells Angel Motorcycle gang member, ran a tattoo parlour and supported his family from the proceeds. The court considered this aspect but was not prepared to infer that the business would fail or that his family would be left wanting without financial evidence.
[170] In Asmar at [27] Maxwell P thought that compelling evidence would be required before denying bail for a period in excess of 14 months “purely on the basis of what (the applicant) might do on bail”. In that case the 28 year old applicant was granted bail on strict conditions partly because his wife, parents and 30 workers employed at the medium sized transport business he had been successfully running for 7 years were “all in desperate need his presence” despite serious charges of violence involving unregistered handgun and threats to kill a group of “hoons” and to intimidate witnesses.
Participants in criminal organisations
[171] The applicant’s solicitor deposes that a trial date before mid 2014 is unlikely.
[172] The defence submits that this is a significant factor for bail because it means that the duration of pre-trial detention may easily exceed the length of the prescribed custodial sentence.
[173] The prosecution claims that any delay is not substantial and is not such as to outweigh the risk of flight or offending on bail.
[174] In the wake of increased violence on the Gold Coast involving rival criminal motorcycle gangs, Parliament introduced “tougher anti-bikie laws”. In a package of reforms new laws aimed at, but not restricted, to criminal motorcycle gangs (CMCG’s) and their illegal activities were enacted providing for mandatory minimum terms of imprisonment in certain circumstances and stricter reverse onus bail rules.
[175] The Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act, 2013 inserted s 16(3A) into the Act requiring an alleged participant in a criminal organisation charged with any offence (a participant) to demonstrate that continuing custody is unjustified.
[176] Section 16(3A) commenced on 17 October 2013. As a procedural rule it operates retrospectively. Subsequent amendments with effect from on 19 November 2013 deem a participant to be an ongoing risk of reoffending, failing to appear and interfering with the integrity of the criminal justice process in lieu of evidence to the contrary. That is to say, the defendant has to disprove it.
[177] The provision applies regardless of the type of offence charged. In other words, it does not matter for the operation of s 16(3A), whether the offence the defendant is charged with is an indictable offence, a simple offence or a regulatory offence: s 16(3C).
[178] Notably, an applicant is in a show cause situation because of s 16(3A) if it is alleged he is or at any time has been a participant. Actual cessation of membership or disassociation by resignation of the criminal organisation must be proved by the applicant as a probable fact.
[179] However, the presumption against bail does not operate if the defendant proves that the criminal organisation is not an organisation that he has, as one that has a purpose of engaging in criminal activity: s 16(3D).
[180] The amendments expressly strike at the “…illegal conduct of the criminal gang participant, communicate the wrongful and cowardly nature of their offending and promotes community safety and protection from these offenders”.
[181] In other words they specifically target members or associates of a group of people apparently unpopular with the community and the media who are generally seen to be getting out of control and interfering with the quiet enjoyment rights of others as well as engaging together in serious criminal activity.
[182] This suggests that from now on it will be incumbent of a participant in a criminal organisation to identify some special or, perhaps in the case of the worst category of offences, exceptional reason why he or she should not be refused bail in Queensland (see R v Iskander (2001) 120 A Crim R 302,305 per Sperling J).
[183] A statutory provision aimed at punishing a selected group of individuals for past conduct arguably infringes the separation of powers doctrine by substituting a legislative judgment of guilt for the verdict of the courts (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at [37] per McHugh J).
[184] There is no indication that the new bail laws have a punitive purpose or effect. Although detention under a civil law is ordinarily punitive in character (because it involves involuntary confinement) being held in custody on remand awaiting trial of a criminal charge is not because its primary purpose is to ensure the defendant will be dealt with according to law.
[185] Nor do they appear to confer powers on the courts in Queensland that are repugnant or incompatible with Chapter III. They are, therefore, binding on all State courts and “cannot be questioned by reference to principles of a more fundamental kind” (Kable v DPP (NSW) (1996) 189 CLR 51 per Dawson at 73-74).
[186] The use of bail laws to prevent a future crime or protect community welfare from perceived threats of an unconvicted defendant has always been problematic.
[187] However, the law can and often does mandate the nature and comparative weight of the determinants for the valid exercise of discretion without trespassing upon the independence, impartiality or integrity of the courts. (Leeth v The Commonwealth (1992) 174 CLR 455 at 470).
[188] In fact there is a long history of legislation affecting, and altering, individual rights in various circumstances while retaining their essential character as laws for the peace, welfare, and good government of the State. (see Chau v DPP (1995) 37 NSWLR 639 per Gleeson CJ at 646)
[189] In applying s 16(3A) the court will necessarily have regard to the apparent objects of bail including community protection from the presumed activities of participants in criminal organisations (Condon v Pompano Pty Ltd [2013] HCA 7 at [23]-[24]) and pay due respect to the proper role of the legislature in determining what is in the public interest irrespective of personal opinion or popular belief: Nicholas v The Queen (1998)193 CLR 173 at 274; Magaming v The Queen (2013) HCA 40 per Keane J)
[190] The recent amendments also have to be interpreted consistently with the established principles of statutory construction.
[191] The starting point is to prefer the meaning that best promotes the underlying purpose or object of the statutory scheme: Carr v Western Australia (2007) 232 CLR 138 at 5-6 per Gleeson CJ
[192] The main aim of legislative construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute Project Blue Sky Ink v Australian Broadcasting Authority (1998) 194 CLR 355 at 69 and 71.
[193] The Explanatory Notes (p4) to the Criminal Law (Criminal Organisations Disruptions) and other Legislation Amendment Bill 2013 state:-
The Bill amends s 16(3A) to ensure that a defendant charged with any offence must show cause as to why their detention in custody is not justified, where it is alleged the defendant is, or at any time has been, a participant in a criminal organisation. The amendment deems such individuals to be in ongoing risk with regards to bail considerations. Requiring the Crown to allege the circumstance of participation rather than prove it as a fact insists on the evidentiary requirements of s 16(3).
If an individual chooses to be part of a criminal organisation then it is reasonable for the legislature to deem the individual an ongoing risk to the community in lieu of evidence to the contrary. The fact that an individual has ceased to be a member of the criminal organisation may be a relevant factor for the court to consider when determining whether the defendant has shown cause as to why they should not be detained. An individual who purports to resign their membership from a criminal organisation or disassociates from the organisation is best placed to prove that fact.
[194] In the second reading speech, (p 4195) on 21 November 2013 the Attorney-General and Minister for Justice said:
“My message to criminal motorcycle gang members, through these amendments that we are debating, is that you can run but you cannot hide. They can throw in their patches and leather jackets to their lawyers but they will not be able to get away with the criminal activity that they are conducting. We know that criminal motorcycle gang members participate in all forms of criminal activity in the State. At a glossy level, at a high birds eye view, it may appear to Queenslanders that criminal motorcycle gang members are not participating in crime with the public face that we saw with the Broadbeach incident some weeks ago. However, the message that we clearly show through the intelligence operations of the CMC and the Queensland Police Force is that criminal motorcycle gang members are in involved in all forms of criminal activity, including burglary and car theft. All the law and order issues facing this State in terms of drug offences and synthetic drug offences can be, to some important extent, associated with criminal motorcycle gang members.
…Criminal motorcycle gang members are ingrained. They do not have ‘1%’ or the number 13 tattooed on their foreheads for no reason. They are loud and proud, obnoxiously so in Queensland (sic) that they are criminals participating in motorcycle gang activities. That is why Queenslanders have been so responsive to and so supportive of this government’s tough stand on criminal motorcycle gang members.
…The Bill amends the Bail Act because different definitions are being used by different levels of the judiciary. The magistrates have taken a particular interpretation of the legislation and the Supreme Court has taken a different interpretation to the Chief Magistrate. This clarifies that the intention of the legislature and the original legislation is to ensure that criminal motorcycle gang members cannot simply throw in the towel by throwing in their colours and saying to Queenslanders that they are no longer a criminal participating in the activity because their lawyers have, in safe custody, the leather jackets which have their patches on them”(p 4195).
[195] Section 4(2)(a) of the Legislative Standards Act 1992 requires Queensland legislation to have sufficient regard to the rights and liberties of individuals.
[196] It is also well established that a statute should not be assumed to abrogate existing fundamental rights. Clear and unambiguous language is required to achieve that purpose (Gifford v Stain Patrick Stevedoring Pty Ltd (2003)214 CLR 269 [36]).
[197] Section 16(3A) undeniably impinges on fundamental legislative principles in a number of respects - the presumption of bail is removed and the onus of proof is reversed retrospectively.
[198] The need to deter concerning behaviour and to ensure the maintenance of civil authority is seen as warranting unprecedented encroachments on the traditional civil rights of those who espouse or adhere to the activities of declared or defined criminal gangs, especially CMCG’s.
[199] Draconian measures of this type are justified, according to the Explanatory Notes (p7), because they are regarded as the most appropriate and only truly effective way of dealing with serious issues associated with the infiltration of criminal organisations, particularly CMCG’s, within legitimate businesses and addressing unacceptable violent intimidating and anti-social behaviour the community has been subjected to in recent times by members of CMCG’s.
[200] The presumption against bail expressed in s 16(3A) also rests on the premise that peer networks with a sub-cultural norm of violence and lawlessness ethos encourage chronic and intolerable adult (as well as adolescent) delinquency which are inimical to the overall public interest.
[201] Guilt by association reasoning gives rise to the natural inference that the public policy objectives of the bail laws as stated in s 16(1)(a) can not generally be met except via incapacitation in the case of participants.
[202] Section 16(3A) obviously imposes a demanding onus on an applicant which is not likely to be met without a credible and trustworthy evidence base that points to some special reasons- over and above the absence of ordinary bail risks- why the objects of bail generally and s 16(1)(a) in particular will be adequately met by granting rather than refusing bail (R v Masters (1992) 26 NSWLR 450,473).
The threshold issue: is s 16(3A) activated?
[203] Under changes effective from 21 November, 2013 a defendant is in a show cause situation under s 16(3A) if the prior participation is alleged rather than proved as an existing fact (cf Da Silva & Ors [2013] QSC 316 per Wilson J). This is consistent with the s 16(3) position.
[204] A preliminary issue to be determined, therefore, is whether the applicant is, or once was, a participant in a criminal organisation within the meaning of s 16(3A) of the Act.
[205] A criminal organisation defined in s.1 of the Criminal Code is:
a) an organisation of 3 (three) or more persons who:
i.have as their purpose, or one of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in serious criminal activity as defined under the Criminal Organisation Act 2009; and
ii.by their association represent an unacceptable risk to the safety welfare or order of the community; or
b) a criminal organisation under the Criminal Organisation Act 2009; or
c) an entity declared under a regulation to be a criminal organisation.
[206] Whether a group fits this description or not is a question of fact or state of affairs.
[207] It is agreed that the Rebels Motorcycle Gang (the CMCG)] is a declared entity under Criminal Code (Criminal Organisations) Regulation Act 2013.
[208] The term participant in a criminal organisation has the meaning in s 60A of the Criminal Code viz:
a) a director of a body corporate organisation;
b) a person who asserts directly or indirectly or advertises his or her membership of an association;
c) a person who recruits another member;
d) a person who attends more than one meeting of the group; or
e) who takes part in the affairs of the organisation in any other way.
[209] Under s 16(3A) non-participation has to be proved or participation negatived by the applicant. Purported resignations or declarations disassociation are relevant conduct and may even be sufficient but are not decisive. Where, as here, bail risks are presumed because of the applicant’s alleged participation in a criminal organisation there would generally need to be compelling evidence that the relevant risks can be adequately met by conditional bail.
[210] In other words, the applicant would have to persuade the court by adducing credible evidence that he has genuinely and irreversibly disassociated himself from a socially destructive criminal organisation and its nefarious activities and, thus, no longer poses an unacceptable risk to community safety, welfare and order.
[211] Where there is no direct evidence of a fact in issue it may be deduced or presumed to exist at a particular time because of its proved existence at an earlier or later point in time: (Laws of Australia at par [16.3.160]).
[212] The so-called presumption of continuance is a process of reasoning and inference from probabilities. Its strength depends upon the accompanying facts. The degree of probability of the continuance depends on the changes of intervening circumstances having occurred to bring the existence to an end (Axon –v- Axon (1937) 59 CLR 395 at 405; 11 ALJ 342; per Dixon J).
[213] The apparent strength, length and recency of this applicant’s past links to the CMCG supports the reasonable inference for bail purposes that he is still an active Rebels participant and he has failed to satisfactorily rebut that inference to the required standard.
[214] As the prosecutor points out, the applicant has not even attempted to address the participation issue in his supporting material. It must therefore be decided against him.
[215] Admittedly, it is difficult, for an applicant to “show cause” why bail should be granted without incriminating himself on the substantive charge where, as here, an important bail issue such as participation is also a contentious element of the offence charged.
[216] This is because, resignation or disassociation from a declared criminal organisation as a risk mitigation gesture for the purposes of bail implies past participation which, when it is an element of the offence charged, is not a matter the court can properly inquire into (cf s 15(1)(d) of the Act).
[217] Nonetheless, this application for bail is to be decided on the basis that the applicant is a participant and must show cause why, despite that, remanding him in custody is unjustified.
Is continuing detention unjustified?
[218] There is, of course, no single or simple answer to this question. It will vary case by case.
[219] There is a legislative assumption against granting bail to participants in criminal organisations who, by definition, represent an unacceptable risk to community safety, welfare and order. Hughes and other cases demonstrate that it is usual to exercise the discretion in such cases in favour of detaining a defendant because of the strong community interest in him being tried according to law.
[220] The clear legislative intent is that regardless of the offence actually charged and despite their level of risk assessed on an individual basis by reference to the s 16(2) factors and other standard indicators, participants in criminal organisations are now regarded by the law prima facie as dangerous, by association: cf s 1 of the Criminal Code and for that reason alone should “normally-or ordinarily-be refused bail”: DPP v Germakian [2006] NSWCA 275.
[221] Arguably, therefore, pre-trial confinement of a non-convicted participant in a criminal organisation will only be unjustified to the extent that it exceeds what is reasonably necessary in all the circumstances to achieve the protective objectives of the new bail laws and the proper precautionary functions of preventive detention; that is, to stop participation in serious criminal activity and protect the community from unacceptable risks of harm from such a person and his associates (cf Lim v Minister for Immigration (1992) 176 CLR 128).
The balancing exercise
[222] The defence contends that refusing bail is unjustified because (a) the evidence with respect to the offence is weak (b) the applicant’s criminal history is for minor matters and (c) strict conditions for e.g. non-association, orders or reporting conditions can be imposed to reduce relevant risks to an acceptable level.
[223] The prosecution argues that whilst the offence charged is not particularly serious, it involved a blatant disregard for association laws, and the evidence of guilt is strong. If convicted, the applicant will be sentenced to a term of imprisonment of no less than six (6) months in duration. The risk of flight is therefore high.
[224] Moreover, he has not proposed any conditions that effectively address this concern and his apparent intention to continue employing and associating with his co-defendants on the current charge and the trafficking offence makes him an unacceptable risk of offending on bail.
[225] There are substantial considerations both ways. In the applicant’s favour is the fact that he does not have a significant criminal record or breach of bail history.
[226] As against this there is the consideration that he has now been charged with an offence that, if convicted, (which cannot be ruled out) attracts a mandatory minimum term of 6 months imprisonment. That circumstance coupled with his ongoing links to a criminal organisation is a powerful incentive for him to avoid trial and raises a risk of continued offending.
[227] In DPP v Bakir [2006] QCA 562, Supreme Court bail was granted to a member of an outlaw motorcycle and alleged during dealer who, abducted and shot a business rival while on bail on attempted murder and related charges but he was under strict conditions including living interstate, a night time curfew, daily reporting conditions, surrendering passports, ouster and non-contact orders, plus a sizeable $100,000 surety to reduce bail risks.
[228] By contrast, I am not convinced that conditions of release proposed by the applicant or any others the court may consider imposing provide a strong enough disincentive for him not to abscond or offend if bailed or ameliorate other relevant risks. He has reasonable ties to the jurisdiction and is willing to submit to conditions but significantly in my view does not offer a surety as a guarantee of observance.
[229] I note that in Re:Matter of Conci [2013] VSC 368 Forrest J refused a show cause application by a CMCG member charged with home invasion, assaulting a headmaster and threatening to involve other gang members, even though he had a good work history, a sick mother and placed heavy reliance on the prospects of a long delay before trial.
[230] The show cause onus is not discharged. Ongoing pre-trial detention has not been demonstrated to be unjustified.
[231] Application is dismissed. Bail is refused.
[232] The defendant is remanded in custody to appear at the next committal callover in the Maroochydore Magistrates Court.
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