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 determination in relation to either Mr Cekic or Mr Dettmann as neither has previously applied for bail.
Procedural Issue – previous determination re Mr Neimann
When Mr Neimann was arraigned in the District Court on 13 January 2014 the Crown directed the Court’s attention to section 275 of the Criminal Law Consolidation Act, and the Court declared pursuant to that section that it was not reasonably practicable to try him within 6 months of the order, as contemplated in that legislation.
That declaration had the ostensible effect pursuant to section 3A(2) of the Bail Act and section 275(3) of the Criminal Law Consolidation Act of allowing the determination to continue beyond 6 months. The nature of the proceedings and the effect of the order on 13 January were in dispute, and the Crown agreed that the matter should proceed before this court on the basis that a determination was not currently in force in relation to Mr Neimann, and that the Crown would need to establish the basis for any determination against him in the same way it would against the other two accused. Accordingly that is the way the matter has proceeded.
Mr Neimann submitted that no second application could be made against him. I have had regard to all submissions made on that topic, however in the time available will only give brief reasons for rejecting them.
Firstly, there is no ostensible statutory limitation on the Crown’s ability to make an application, and hence a further application. In relation to other powers in relation to bail, such as to apply for bail, apply to vary bail and to revoke bail, which may be expressed in similar singular terms, it is plain that such applications may be made more than once where circumstances change, for example where more evidence becomes available, or a differing view is taken by counsel as to the chances of success or the appropriateness of what is sought.
Similarly in the case of section 3A, circumstances may change in relation to one or more of the considerations relevant to whether a determination should be in place. For example, the need for an order may for some reason cease due to, say, a frightened witness no longer needing to be a witness, and in that event the order allowed to lapse after 6 months, or indeed the order might be revoked by consent in those circumstances, however things may change again and new witnesses located who then need protection, necessitating the need for a new application for a determination. There may be other such circumstances where the criteria for a determination initially exist, then ameliorate, then resurface. Overall, I cannot detect any legislative intention to limit the Crown to a single application and prevent the application being made a second time where circumstances warrant it.
I therefore find that a further application may lawfully be made pursuant to section 3A of the Bail Act.
Principles of abuse of process will be available to reject any misuse of the Crown’s ability to make a further application.
Procedural issue – the form of the application per Rule 15
Pursuant to Rule 15.07 of the District Court Criminal Rules, applications by the Crown under section 3A of the Bail Act for such a determination are required to be in Form 8 and are to be supported by an affidavit in which the deponent deposes to the matters relied upon by the Crown for the application. Rule 15.08 requires such application and supporting affidavit to be served upon the person who is the subject of the application.
Rule 15.07 and 15.08 have not been complied with. It seems all parties were unaware of the rule prior to the application coming before the court. Counsel for the Crown apologised for being unaware of the rule and indicated that she could comply with the rule if granted a short adjournment. Upon indication that I would require the application to be in the proper form and likely adjourn the matter for a short time for that to occur, counsel for the accused indicated a strong preference that the matter proceed without further delay. Accordingly with all counsel’s consent, pursuant to Rule 2.03 I dispensed with compliance with Rule 15.07 and 15.08 in this occasion.
I indicate however that in future, especially given the draconian nature of the consequences of a determination pursuant to section 3A of the Bail Act, Rule 15.07 and 15.08 should be complied with, and dispensation from it will not be easily granted.
Section 3A of the Bail Act
Section 3A of the Bail Act provides that:
(1)A bail authority may determine that a person is a serious and organised crime suspect for the purposes of this Act if the bail authority is satisfied, on application by the Crown, that –
(a)the person has been charged with a serious and organised crime offence; and
(b)the person was not, at the time of the alleged offence, a child; and
(c)the grant of bail to the person is likely to cause a potential witness, or other person connected with proceedings for the alleged offence, to reasonably fear for his or her safety.
The Charges
The accused are charged with aggravated causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935, aggravated robbery pursuant to s 137(1) of the Criminal Law Consolidation Act 1935, and participation in a criminal organisation contrary to s 83E(1) of the Criminal Consolidation Act.
I turn to consider whether the criteria prescribed in sections 3A(1)(a), 3A(1)(b) and 3A(1)(c) of the Bail Act have been satisfied.
Section 3A(1)(a)
A serious and organised crime offence is defined in s 5 of the Act and includes an offence against Part 3B of the Act. Participating in a criminal organisation contrary to section 83E of the act is such an offence.
A serious and organised crime offence also includes any aggravated offence where it is alleged that the offender committed the offence for the benefit of a criminal organisation or at the direction of or in association with a criminal organisation. Each of the charges of aggravated causing serious harm with intent to cause serious harm and aggravated robbery are alleged to have been committed in such circumstances.
Accordingly, each of the offences of which the accused are charged are serious and organised crime offences.
Accordingly, s 3A(1)(a) of the Bail Act is satisfied, in that each of the three have been charged with a serious and organised crime offence.
Section 3A(a)(b)
It is agreed that none of the accused are children. Accordingly, s 3A(1)(b) of the Bail Act is also satisfied.
Section 3A(1)(c)
The remaining criteria is whether pursuant to s 3A(1)(c) ‘the grant of bail to the person is likely to cause a potential witness, or other person connected with proceedings for the alleged offence to reasonably fear for his or her safety.’ This is the area of primary dispute on this application.
It is clear that the accused are charged with mounting a severe attack on a Mr Charles Bonnici. It is alleged they together, on 13 February 2013, at the motorcycle club premises with which they were associated, subjected Mr Bonnici to a sustained attack intending to and causing very serious injury to him. Mr Bonnici was hospitalised for 6 weeks, some of that time in an induced coma.
Mr Bonnici, despite being the victim in the matter has refused to provide a statement to police and is not cooperating with them. On the prosecution case he is the only eye witness to the offence. Solely due to that lack of cooperation he is not currently proposed to be called as a prosecution witness in the proceedings against the accused.
The victim’s wife Mrs Bonnici does not live with Mr Bonnici but has children and is aware that the accused know where she lives.
The eight people who were in the vicinity of the alleged offending, in adjacent premises, including premises where it is alleged that one of the accused retrieved bolt cutters for the purposes of the assault and aggravated robbery of Mr Bonnici, have all refused to cooperate or give statements to the police. It seems that a number of them have done so on the claimed basis that they did not see and do not know anything.
Further, it is part of the prosecution case that one of the accused purchased six cricket bats from Big W at the time of the offence. The allegation is that these were likely potential weapons. Witnesses at Big W have also expressed concern to police about giving evidence.
The DPP has tendered expert evidence from a Detective McMannus that the accused are involved with a motorcycle club that has a reputation for violence and intimidation. The prosecution case is that there was a history of incidents leading up to the present offending. The basis of the prosecution case against the accused is that there was internal animosity within the motorcycle club, leading to the events alleged to have occurred on 13 February 2013.
I have regard to the submissions of counsel for each of the accused concerning the strength of the prosecution case, and in particular their submissions that it is not established that any witnesses are indeed in fear nor is the grant of bail likely to cause any potential witness or other person connected with proceedings for the alleged offence to reasonably fear for his or her safety. I have regard to, without repeating here, everything put and submitted.
The allegations are of a particularly violent attack and robbery by members of one motorcycle gang on another member of that gang. The expert evidence establishes that the motorcycle club concerned has a reputation for and history of conduct and behaviour likely to cause witnesses to reasonably fear for their safety upon cooperation with authorities in prosecutions of their members. There has been little or no cooperation by the victim and little or no cooperation from a significant number of witnesses approached by police.
In short, the combination of the offending, the circumstances surrounding it including the involvement of the motorcycle club, which is alleged to be notorious for violent, threatening behaviour, and the refusal or failure of so many potential witnesses to assist can lead to no other conclusion than that potential witnesses are already concerned for their safety and would be even more concerned were any of the three accused granted bail.
In all the circumstances, on the material available to the court, s 3A(1)(c) is clearly satisfied.
Accordingly, all three preconditions for a determination pursuant to s 3A of the Bail Act are satisfied. There remains a discretion as to whether a determination should be made.
There is a discretion, notwithstanding the satisfaction of the criteria in section 3A of the bail Act
Section 3A provides that if the criteria in the section are satisfied, the Court ‘may’ determine that the accused is a serious and organised crime suspect. Accordingly the court has a discretion to make the determination, even if all three criteria are satisfied.
In exercising any judicial discretion, the scheme of the legislation, its purpose and the consequences of the exercise of that discretion must be considered. That is particularly the case here where the consequences for the accused and for potentially intimidated witnesses are significant.
Matters affecting the exercise of the discretion whether to make a determination - the nature and consequences of a section 3A determination considered
A section 3A determination has three primary effects. It affects the accused’s ability to secure bail, it protects witnesses and those connected with the proceedings, and it affects the passage to trial of the substantive charges the accused faces.
It affects the accused’s ability to secure bail in the following way:
Section 3A of the Bail Act works in tandem with section 10A to modify the criteria for an accused’s release on bail. Section 10A provides that where a person has been determined to be a serious and organised crime suspect they cannot be granted bail unless they establish special circumstances justifying the person’s release on bail, and they are not eligible for bail at all if they have previously been convicted of a serious and organised crime offence either here or in any other jurisdiction.
Accordingly, a determination pursuant to section 3A will have the immediate consequence of rendering it more difficult, and in some cases impossible, for an accused person to secure bail.
Accordingly the consequences to the accused of the order, and in particular the time they are likely to be subject to the determination is potentially relevant. The importance of this consideration is emphasised by section 275 of the Criminal Law Consolidation Act.
Where a determination has been made pursuant to section 3A, section 275 of the Criminal Law Consolidation Act is activated. This affects the passage of the substantive charges to trial.
Section 275 relevantly provides:
(3)The Supreme Court and the District Court must make rules for expediting prescribed proceedings and, if there has been a determination by a bail authority under the Bail Act 1985 that the defendant in such proceedings is a serious and organised crime suspect, the trial of the matter must be commenced within the period of 6 months after the making of that determination, unless the determination ceases to apply or the Court determines—
(a)on its own initiative, that it is not reasonably practicable for the Court to deal with the matter within that period; or
(b)on application by the Director of Public Prosecutions or the defendant, that exceptional circumstances exist that justify the matter being set down for trial at a later date.
…
(5) In this section—
prescribed proceedings means proceedings brought under this section for—
(a) an alleged serious and organised crime offence; or
(b)an offence joined in the same information as an alleged serious and organised crime offence.
The rationale of the legislation is apparent from the Second Reading Speech delivered in the Upper House on 1 March 2012:
Witnesses should be supported by amendments to the Bail Act 1985. If a person is charged with a serious and organised crime offence and a grant of bail would cause a potential witness or other person connected with the case to reasonably fear for his safety, there should be a presumption against bail. Such a person is to be described as a serious and organised crime suspect. The presumption against bail can be rebutted by the applicant showing that he or she has not previously been convicted of a serious and organised crime offence.
...
If there is any grant of bail, the conditions of any bail agreement must protect the witness from any and all association and contact with the person charged with the offence and any member of the organisation to which it is alleged the accused belongs to the extent required. This entails binding over other members not to approach or in any way communicate with the witness.
The Bill proposes measures to attain these two objectives. It should insert in the Bail Act 1985 a new sub-section setting mandatory conditions for bail if granted to a serious and organised crime suspect. These are to be, in brief, home detention bail with electronic monitoring, and special conditions restricting the ability of the accused to communicate with specified people or classes of people and restricting the devices that the person on bail may use for communication.
But people should not be subjected to this harsh regime indefinitely or even for a very long time. The status of being a serious and organised crime suspect should expire after 6 months unless either the person is on trial or special proceedings (described below) have been taken against the suspect.
In addition, it is proposed to amend the Act in essence requiring the bail authority to consider applying for an order or imposing on the applicant for bail or any other person associated with the applicant an intervention order if the bail authority is made aware that the victim of the offence or a person otherwise connected with the proceedings feels a need for protection from the applicant or any person associated with the applicant.
It is clear on a reading of section 3A of the Bail Act, section 275(3) of the Criminal Law Consolidation Act and the second reading speech that this legislation, amongst other things, aims to expedite the trial of an accused person to whom a determination applies, primarily due to the ‘harsh regime’ concerning bail that a determination applies to them.
Accordingly, the likely time a person will be subject to a determination is in my view relevant to the exercise of the discretion to make a determination.
A determination also protects witnesses by impeding and in some cases preventing the release of an accused person on bail, where that release would cause a person connected with the proceedings to reasonably fear for their safety.

Accordingly, the number of potential witnesses and others affected, the degree to which they are affected and the degree of their fear and concern are relevant considerations.
I turn to consider these criteria.
In this matter the three accused have been in custody for over a year to date. Their recent trial date was vacated by consent, and the new trial date is in early 2015. Accordingly, they face nearly two years in custody prior to trial. Whilst two of the three have not applied for bail to date, as things currently stand they have been in custody for over a year and face more than six further months before their trial. A determination will impede their ability to get bail, and may well result in their incarceration for over six further months.
This is a significant period. There are reasons for this which were articulated in submissions,[1] however, the end result is far from satisfactory given the seriousness of the charges, the accused’s interest and the public interest in a timely trial, the statutory intention of a timely trial in the case of such matters, and indeed the interest of witnesses who are in potential fear.
[1] The most significant delay, which required a June 2014 trial date to be adjourned by consent, is that it seems all parties are awaiting a Full Court decision which will determine the likely admissibility of certain evidence the prosecution propose to lead.
The defence submits that this time taken in the matter to date provides grounds for the court to exercise its discretion not to make a determination pursuant to s 3A of the Bail Act.
Applying the considerations relevant to the exercise of the discretion
I take into account the significant period the accused may be subject to the determination, and consider it against the backdrop of the time already spent in custody. It is a considerable period. None of that period has been the fault of either the Crown or the accused.
I also observe that such delay might constitute special circumstances relevant to releasing the accused on bail pursuant to section 10A of the Bail Act, notwithstanding that a declaration might be made concerning them.
I take into account that in the circumstances of this case where there has been a significant failure by a number of potential witnesses to co-operate and assist police including the only eye witness, that a significant number of potential witnesses are likely now in fear of the accused and likely to be in more fear should the accused be released on bail. I take into account the very serious charges, the surrounding circumstances, and all submitted by each counsel.
In the final analysis, although it is a difficult balance with important considerations on both sides, the balance in this case falls on the side of protecting the witnesses and others associated with the proceedings for the alleged offence.
Adequacy of the Rules of Court
Counsel for the accused raised an issue concerning the rules of court.
Section 275 of the Criminal Law Consolidation Act provides that the Supreme Court and the District Court must make rules for expediting such proceedings. The defence submits that neither the Supreme Court nor the District Court have complied with s 275, in that adequate rules have not been made pursuant to s 275.
Accordingly, it is argued that no determination either could or should be made. Alternately it is put that their limited or inadequate nature should be taken into account when exercising the discretion whether or not to make a determination.
The District Court has implemented the following Rules:
Serious and organised crime offences
6
[r 6.01] If proceedings are, or will be, prescribed proceedings under s 275 of the Act or a bail authority has determined under s 3A of the Bail Act 1985 that an accused person is a serious and organised crime suspect:
·(a)   the Director is to include an endorsement to that effect on any information filed in the Court charging the person with the offence or offences relied upon for the determination or concerning such proceedings; and
·(b)   if the determination that a person is a serious and organised crime suspect is made after an information has been filed, the Director is to apply as soon as practicable to amend the information to add an endorsement to the same effect.
[r 6.02]     An endorsement under rule 6.01 is also to include a statement informing the accused that the proceedings may be expedited in accordance with s 275(3) of the Act and the rules made by the Court under that provision.
[r 6.03]     If there has not been any information filed in the Court to which rule 6.01 may apply, the Director is to inform the Court at the first arraignment that the proceedings are prescribed proceedings under s 275 of the Act, or that the accused person is a serious and organised crime suspect, as the case may be.
……
[r 12.08]     Any directions hearing required in relation to prescribed proceedings as defined in s 275(3) of the Act or in relation to proceedings in which an accused person is a serious and organised crime suspect will be held as soon as possible and, in any event, within four weeks of the arraignment.
[r 12.09]     Subject to rule 12.10, at the first directions hearing the Director and accused persons are to address the means by which:
·     (a)   proceedings which are prescribed proceedings may be expedited; and
·(b)   the trial of proceedings involving an accused person who is a serious and organised crime suspect may commence within six months after the making of the determination that an accused is such a suspect.
[r 12.10]     Any application by the Director or an accused for a determination under s 275(3) of the Act that exceptional circumstances exist justifying the trial not commencing within six months of the determination that an accused is a serious and organised crime suspect is to be filed and served at least seven days before the first directions hearing.
…….
[r 15.07] Applications by the Crown under s 3A(1) of the Bail Act 1985 for a determination that a person is a serious and organised crime suspect or under s 19A of the Bail Act 1985 for the cancellation of bail are to be in form 8 and are to be supported by an affidavit in which the deponent deposes to the matters relied upon by the Crown for the application.
[r 15.08] The applicant is to serve the application and supporting affidavit filed under rule 15.07 on the person who is the subject of the application.
The rules require the DPP to endorse the information against any accused, and thus bring to the attention of the court, the fact that a determination has been made. The rules then require that any directions hearing must be heard as soon as possible and in any event within four weeks of arraignment. The rules require the DPP and the accused to address at that directions hearing means by which the proceedings may commence within the prescribed six months from the time of the making of the determination. The clear inference of that rule is that the court must have regard to such submissions and give effect to them if practicable. The rules also prescribe that if the DPP proposes to make a submission that pursuant to section 275(3)(b) that exceptional circumstances exist justifying the matter being set down for trial at a later date, the DPP must file and serve such application at least seven days prior to that first directions hearing.
In my view, these are ‘rules for expediting prescribed proceedings’, and directed towards the trial of an accused person occurring within six months of a determination. There is therefore no failure to comply with section 275.
Accordingly there is no need to further consider the consequences the accused submit would flow from a failure of the court to have articulated rules pursuant to section 275 of the Criminal Law Consolidation Act.
Conclusion
In relation to each of the accused, the criteria articulated in section 3A of the Bail Act for the making of a determination are satisfied, and further, in light of the seriousness of the charges, the number of witnesses potentially effected, the degree of such effect in the circumstances of this case, and in the totality of the circumstances, an order should be made in the case of each accused.
Each of the accused is determined to be a serious and organised crime suspect.