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 Act1980, s 8, s 9, s 15, s 16 Criminal Organisations Act 2009 Justices Act1886 part 6A Practice Direction 21 of 2013 Chief Magistrate (Q) 4 November 2013 Criminal Law (Criminal Organisation Disruption) and Other Legislation Amendment Act 2013
J Godbolt for the Applicant S Farnden for the Respondent
SOLICITORS:
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 Act1980 (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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lansdowne v Odpp (Qld) [2013] QMC 19
Case
[2013] QMC 19
Decision Date
CaseChat Overview and Summary
The matter before the court involved an application for bail by the applicant, Lansdowne, against the objection of the Director of Public Prosecutions for Queensland. The applicant, who is a participant in a criminal organisation, was detained on charges related to their involvement in the organisation's activities. The central issue before the court was whether there were compelling reasons to justify the applicant's continued pre-trial detention, given their participation in a criminal organisation.
The court considered the principles governing bail applications in cases involving organised crime. It noted that participation in a criminal organisation could be a significant factor in determining the risk of interference with witnesses or the commission of further offences. The court assessed the evidence provided by both parties and evaluated the potential risk to the community if bail were granted. The applicant's role within the organisation, their history of compliance with legal obligations, and the likelihood of them absconding or reoffending were among the factors considered.
After carefully weighing these factors, the court concluded that the risk of the applicant interfering with the investigation or reoffending was too high to justify granting bail. The court was particularly concerned about the applicant's continued involvement in criminal activities and the potential for them to exert influence over others if released. Consequently, the court decided that there was a compelling reason to maintain the applicant's detention pending trial.
The court's final order was to refuse the applicant's bail application, reflecting the assessment that the risk to the community and the potential for further criminal activity outweighed the applicant's right to liberty.