Lansdowne v The Director of Public Prosecutions

[2014] QSC 2

SUPREME COURT OF QUEENSLAND

CITATION:

Lansdowne v The Director of Public Prosecutions [2014] QSC 002

PARTIES:

Paul Jeffrey Lansdowne

(Applicant)

V

The Director of Public Prosecutions

(Respondent)

FILE NO/S:

12335/13

DIVISION:

Trial

PROCEEDING:

Bail Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

15 January 2014

DELIVERED AT:

Brisbane

HEARING DATE:

9 January and 14 January 2014

JUDGE:

Byrne SJA

ORDER:

Bail granted

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – OTHER CASES – where the applicant is charged with contravening section 60A(1) of the Criminal Code – where applicant must show cause why detention in custody is not justified.

Bail Act 1980 s 16(2)(b), s 16(3A)(a), s 16(3C)(a), s16(3B)
Criminal Code Act 1899 s 60A(1)

Carew v DPP [2014] QSC 001

COUNSEL:

Mr J B Godbolt for the applicant

Mr D L Meredith for the respondent

SOLICITORS:

A W Bale and Son, Solicitors for the applicant

Director of Public Prosecutions for the respondent

Bail application

1. Paul Lansdowne (“the applicant”) seeks bail on a charge of contravening s. 60A (1) of the Criminal Code.  The charge details are set out in my decision on a bail application by a co-accused, Joshua Carew[1].

   [1]Carew v DPP [2014] QSC 001, [1].

1. That decision canvasses the factual circumstances and legal considerations germane to the charge and discusses the applicable statutory provisions and general law principles governing bail[2]. 

   [2]See, especially, [3]-[8], [28]-[43], [50]-[51].

S.16 (2)(b) factors

1. The applicant is aged 57.

1. He owns a fast food outlet in Nambour.  He ran that small business until his incarceration last December.  The business is not profitable enough to sustain employing a manager.

1. The applicant lives at his property at Eerwah Vale.  The land secures a debt he incurred in establishing his business.  He claims that continuing detention may have such an adverse impact on his business income as to put his property in jeopardy.

1. His Rebels membership matters.

1. The hearing started last week.  At that stage, there was evidence to show that the applicant is a “patched” Rebels member. 

1. There was no suggestion that he had in mind terminating his membership[3].

   [3]There is no material revealing what needs to be done to resign in accordance with any rule or some custom of the Rebels.

1. A possible explanation for such reticence was that Rebels membership affords an opportunity to benefit from crime. 

1. On the resumed hearing, by his affidavit, the applicant explained why he has chosen not to resign from the “organisation”: in short, he fears that such a step would implicitly acknowledge that he is a Rebel, constituting an admission that may be used against him – at this trial and afterwards. 

1. There is, as the applicant accepts, a “strong” case that he is a Rebel.  But he does not accept that the issue whether he was, on 1 November 2013, a Rebel must be resolved against him.  

1. On the available information, there is no satisfactory basis for supposing that, in his evaluation of the evidence against him, the applicant realises that the contention that he was a Rebel on 1 November 2013 will certainly be proved at trial to the requisite criminal standard.

1. Now, if he is, or has ever been, a Rebel, the consequences are potentially serious.  For one thing, should he ever be charged in future with any offence – indictable, simple or even regulatory – he must be held in custody unless he shows that his detention pre-trial is not justified[4].

   [4]S. 16 (3A)(a), (3C)(a) Bail Act 1980.

1. So any conduct of his that constitutes an admission of Rebels membership could prejudice his liberty for years to come.

1. In these circumstances, his professed attitude to resignation is plausible and understandable.

1. It should not be inferred that the applicant’s unwillingness to resign indicates an enhanced risk of offending.

Passport

1. The applicant holds a New Zealand passport.  It is to be surrendered[5].

   [5]See s.16 (3A), (3B) Bail Act.

Bail history

1. The applicant has, it seems, complied with conditions of earlier grants of bail.

1. He has previously been convicted[6] of two drink driving offences and possession of a prohibited import[7].  More recently, in 2009, he was fined $200 for possession of dangerous drugs and a weapon. 

   [6]In 1978 and 1980.

   [7]Which attracted a $300 fine.

1. He was admitted to bail on the trafficking charge[8] and has answered that bail satisfactorily too.

   [8]See, generally, Carew at [20]-[26].

Unacceptable risk?

1. In view of the applicant’s ties to the Sunshine Coast, there is not an unacceptable risk that he would fail to appear at trial.  Indeed, as much is conceded; and no surety is sought.

1. What of the risk of offending?

1. The applicant proposes to submit to a bail condition that he not have any contact, direct or indirect, with anyone he knows to be a member of the Rebels. 

1. The risk that the applicant would commit an offence if released will be ameliorated by reporting regularly and by the prohibition on Rebels involvement. 

1. Moreover:

·     only 10 weeks will elapse before trial.  So there is not much time in which to offend;

·     the applicant’s anxiety not to return to solitary confinement is a substantial incentive not to commit an offence in the pre-trial interval;

·     he expects that the Police will be on the lookout for any contravention of his bail conditions.

1. There is not an unacceptable risk that the applicant would commit an offence pending trial.

Disposition

1. In all the circumstances, the s.16 (3A) burden is discharged.

1. Bail is granted.