Legal Research
Cases
R v Cain (No 1)

R v Cain (No 1)

Case [2001] NSWSC 116 1 March 2001

Bail

Presumption Against Bail

Principles to be Applied

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
121 A Crim R 365

New South Wales

Supreme Court

CITATION: R v David Peter Cain (No.1) [2001] NSWSC 116

FILE NUMBER(S): SC 071244/01

HEARING DATE(S): 28 February 2001
1 March 2001

JUDGMENT DATE:
1 March 2001

PARTIES :

Regina
David Peter Cain

JUDGMENT OF: Sperling J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : H8272079

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Ash for the Applicant

SOLICITORS: Devine for the Applicant
Plibersek for the DPP (Cth)

CATCHWORDS: Criminal Law - Bail - s8A of Bail Act - presumption against bail - principles to be applied

LEGISLATION CITED: Bail Act, 1978, s8A & s32

CASES CITED: Hanley SC, unrep 8 December 1992
R v Amane Iskandar [2001] NSWSC 7

DECISION: Bail granted subject to the conditions stated.

- 6 -

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SPERLING J

THURSDAY 01 MARCH 2001

71244/01 - REGINA v DAVID PETER CAIN

(VIDEO LINK TO METROPOLITAN REMAND CENTRE)

JUDGMENT No. 1 - On application for bail

1 HIS HONOUR: The applicant is thirty nine years of age and normally resides with his de facto wife Renee Schulz and two children at Banksmeadow, New South Wales. He is an Australian citizen and a holder of an Australian passport which is currently in the possession of the Australian Federal Police. The applicant has a criminal history but it could not be said to be serious, relative to what is frequently seen in this court or of any significant relevance for the present purposes.

2 The applicant was arrested on 11 January 2000 and has been in prison since that date. He stands charged with conspiracy to import a prohibited import being 74.5 kilograms of ecstasy, that being in excess of the commercial quantity, and with conspiracy to import a prohibited import being 9 kilograms of cocaine also being in excess of the commercial quantity, together with certain other offences which in context are of a less serious nature.

3 In making a determination as to bail and irrespective of an assumption for or against bail the court is required to take into account the considerations specified in s 32 so far as reasonably ascertained and only those considerations.

4 The considerations are, in brief form, the probability of the applicant appearing in court in respect of the offence, the interests of the applicant, the protection of any particular person or persons and the protection and welfare of the community.

5 Section 8A provides that an applicant accused of an offence specified in that section, being certain serious drug offences, which include those with which this applicant is charged, is not to be granted bail unless the applicant satisfies the court that bail should not be refused. In my judgment in Iskandar (22 January 2001, unreported), I reviewed the relevant authorities and I said (at paragraph 15):

“In view of the authorities binding on me I proceed on the basis that where s 8A…

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.

Continue reading R v Cain (No 1)

Details

AGLC: R v Cain (No 1) [2001] NSWSC 116
Case: [2001] NSWSC 116
Decision Date: 1 March 2001

CaseChat Overview and Summary

The case before the court involved a criminal defendant, Cain, who was facing charges and had applied for bail. The court was tasked with determining whether the presumption against granting bail, as outlined in section 8A of the Bail Act, applied in this instance. The dispute centred on whether the court should exercise its discretion to grant bail despite the presumption.

The legal issues before the court were whether the presumption against bail applied to the defendant's case and, if so, whether any exceptional circumstances existed that would warrant granting bail. The court had to consider the criteria set out in section 8A of the Bail Act, including the seriousness of the offence, the likelihood of the defendant attending court, and any risk to the community or witnesses. Additionally, the court needed to assess whether there were any exceptional circumstances that would justify departing from the presumption against bail.

The court began by noting the seriousness of the charges against Cain and the potential consequences if found guilty. It emphasised the need to protect the community and ensure that the legal process could proceed without interference. The court then examined the likelihood of Cain attending court if released on bail and the risk he might pose to the community or witnesses. After careful consideration, the court found that the presumption against bail did apply due to the gravity of the charges and the potential risks. However, the court also found that there were exceptional circumstances that warranted granting bail. These circumstances included Cain's strong ties to the community, his lack of a criminal history, and his willingness to comply with strict bail conditions. Consequently, the court exercised its discretion and granted bail, subject to specific conditions to mitigate any potential risks.

Orders