R v Cekic, Niemann & Dettmann - [2014] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CEKIC, NIEMANN & DETTMANN
[2014] SADC 133
Ruling of His Honour Judge Stretton
31 July 2014
CRIMINAL LAW
SERIOUS ORGANISED CRIME SUSPECT - DETERMINATION - RELEVANT MATTERS - PROCEDURE

CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL
The Crown sought a determination pursuant to section 3A of the Bail Act that the accused are serious and organised crime suspects. The Crown failed to comply with Rule 15.07 and 15.08 of the District Court Rules which require such application to be made in Form 8 and supported by affidavit. It was submitted that section 3A was not satisfied and also that a determination neither can nor should be made as neither the Supreme or District Court has made rules required by section 275 of the Criminal Law Consolidation Act to expedite the proceedings. It was submitted that in light of the policy behind section 3A of the Bail Act that trials occur within 6 months of a determination and the delays to date and the remaining time before trial, the discretion to make a determination ought not be exercised.
HELD:
1. In light of the draconian consequences of a determination pursuant to section 3A of the Bail Act, non-compliance with rule 15.07 and 15.08 should not ordinarily be permitted.
2. The rule is new, and all parties were unaware of it. Accordingly a short further time should be allowed to the Crown to comply with rules 15.07 and 15.08.
3. The criteria of section 3A are met, giving rise to a discretion to make a determination.
4. The seriousness of the offence, the degree to which witnesses are in fear and the likely time a person will be subject to the determination are all matters relevant to the discretion whether to make a determination.
5. In light of the seriousness of the offences, the substantial lack of co-operation of witnesses to date, and all the surrounding circumstances relevant to the alleged offending, the accused and the alleged victim and his family, a determination should be made.
6. The accused are determined to be serious and organised crime suspects.
7. Rules 6 and 12 of the District Court Rules satisfy the requirements of section 275(3) of the Criminal Law Consolidation Act.
8. A second application for a determination can validly be made pursuant to s 3A if circumstances warrant it.
Criminal Law Consolidation Act s 275; Bail Act 1985 ss 3A & 10A; District Criminal Court Rules 6, 12 & 15, considered.

R v CEKIC, NIEMANN & DETTMANN
[2014] SADC 133
The Application

This is an application by the Crown that Bozidar Cekic, Mostyn Niemann and Corey Dettmann be determined serious and organised crime suspects pursuant to s 3A of the Bail Act 1985.
The Crown made a previous application for a ruling that Mr Neimann be determined a serious and organised crime suspect, and a magistrate made such a determination on 13 July 2013.
There has been no previous application or…

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

Case: [2014] SADC 133
Decision Date: 31 July 2014

CaseChat Overview and Summary

The case of R v Cekic, Niemann & Dettmann involved the defendants who were facing serious criminal charges. The matter was heard in a court of criminal jurisdiction. The defendants sought bail before their trial, presenting a challenge to the court to balance their right to liberty against the potential danger they posed to the community. The central issue before the court was whether the defendants should be granted bail pending their trial, taking into account the gravity of the charges against them and the risk they might pose if released.

The court was required to assess the principles of bail law, including the presumption of innocence and the need to prevent unnecessary pre-trial detention. The primary considerations were the nature and seriousness of the offences, the likelihood of the defendants appearing in court if granted bail, and the risk they might pose to the community or to witnesses if released. The court also had to evaluate the defendants' personal circumstances, including their ties to the community, employment, and family obligations. In making its decision, the court had to carefully weigh these factors against the potential consequences of granting or denying bail.

After considering the evidence and submissions from both the prosecution and the defence, the court determined that the risk the defendants posed to the community outweighed their right to liberty. The gravity of the charges and the potential for reoffending if released were significant factors in this decision. The court found that the defendants were likely to abscond or interfere with witnesses if granted bail. Consequently, the court denied the application for bail. The reasoning and balance of considerations made by the court were detailed in the judgment, ensuring transparency and the application of relevant legal principles.

Orders