R v Cekic; R v Dettman; R v Niemann

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CEKIC; R v DETTMAN; R v NIEMANN
[2014] SASC 132
Judgment of The Honourable Justice Kelly
10 September 2014
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application to review an order of a District Court Judge refusing to grant each applicant bail. The applicants were each arrested in early April 2013 on charges of aggravated causing serious harm with intent to cause serious harm, aggravated robbery and participation in a criminal organisation.
Whether the applications are governed by s 10A of the Bail Act 1985 (SA). Whether each of the applicants has established the existence of special circumstances justifying his release on bail. Whether, in all of the circumstances, each of the applicants should be granted bail.
Held (allowing the application for review in respect of Cekic and Niemann; refusing the application for review in respect of Dettman):
1. In respect of each of the applicants, the criteria of s 3A of the Bail Act are met and the declarations pursuant to that section were properly made.
2. In the circumstances of Cekic and Niemann, the delays caused, which will result in them spending approximately 696 days in custody between arrest and trial, together with other relevant considerations amount to special circumstances justifying their release on bail.
3. Although Dettman has also been the subject of inordinate delay, that delay when considered in light of all other relevant considerations, in particular his extensive criminal history, does not give rise to special circumstances justifying his release on bail.
Criminal Law Consolidation Act 1935 (SA) s 275; Bail Act 1985 (SA) s 3A, s 10, s 10A, s 11, referred to.
R v Buhlmann [2010] SASC 123, considered.

R v CEKIC; R v DETTMAN; R v NIEMANN
[2014] SASC 132
Criminal: Application
KELLY J.

The applicants, Bozidar Cekic, Corey Dettman and Mostyn Niemann, each apply for bail. Two of the applicants Mr Cekic and Mr Niemann were arrested on 5 April 2013, and Mr Dettman on 6 April 2013 on charges of aggravated causing serious harm with intent to cause serious harm, aggravated robbery and participation in a criminal organisation alleged to have been committed on 13 February 2013 at Salisbury.
Each of the applicants have been declared pursuant to s 3A of the Bail Act 1985 (SA) (“the Bail Act”) to be a serious and organised crime suspect. Accordingly, their applications for bail are to be determined on a quite different regime to any other application for bail under the Bail Act.
Each of the three applications has certain features in common, however, the procedural history of the matter in respect of each application is somewhat complicated and it is important to set out the chronology of events to the present date.
On 5 April 2013 the applicants Mr Cekic and Mr Niemann were arrested. Mr Dettman was arrested the following day at Adelaide Airport on 6 April 2013. Each of the applicants have been in custody since the date of their respective arrests.
They have been charged with two other men who have not applied for bail.
Mr Niemann applied for bail in the Adelaide Magistrates Court. On 19 July 2013 a Magistrate declared Mr Niemann to be a serious and organised crime suspect pursuant to s 3A of the Bail Act. His application for bail was refused.
On 29 November 2013 the five accused were committed for trial.
At their arraignment in the District Court on 13 January 2014 each pleaded not guilty to all of the charges. At that time, having had the provisions of s 275 of the Criminal Law Consolidation Act 1935 (SA) (“the Criminal Law Consolidation Act”) brought to his attention, the arraignment Judge made a determination pursuant to the provisions of s 275(3)(a) that it was not practical for the Court to try the matter within the six month period determined by that section. A determination made under s 275(3) has the effect of continuing a declaration pursuant to s 3A of the Bail Act for an indeterminate period.
The Court attempted to expedite the proceedings by listing the trial of all five accused to commence on 30 June 2014. The trial was anticipated to take four weeks.
Mr Niemann renewed his application for bail in the District Court, however on 14 March 2014 a Judge of that Court refused the application.
On 21 May 2014 the Director of Public Prosecutions applied to adjourn the trial listed to commence the following month, on the basis that issues concerning the admissibility of certain evidence likely to be led from a police officer at the trial were the subject of an appeal in a similar matter, namely R v Cluse, which appeal was to be heard in the June sittings of the Court of Criminal Appeal. On that date all counsel for the accused objected, correctly in my view, to the application for adjournment. At that stage the Chief Judge rejected the application by the Director and ordered the trial to proceed as scheduled on 30 June 2014.
On 24 June 2014, less than one week prior to trial, the Director renewed his application to adjourn based on a senior prosecutor’s understanding of what had occurred in the Court of Criminal Appeal during the argument in the R v Cluse appeal.
Faced with a strident application from the Director and a relatively docile acquiescence to the Director’s application by all counsel for the accused, the Chief Judge vacated the trial date which had been scheduled to commence a week later.
Each of the three applicants then made an application for bail. The Director then applied for a determination in relation to Mr Cekic and Mr Dettman that they be declared serious and organised crime suspects pursuant to s 3A of the Bail Act. At the hearing it was conceded that the status of Mr Niemann should be considered afresh and he too was made the subject of the application for a further declaration that he is a serious and organised crime suspect.
In due course the District Court Judge published reasons for his determination that each of the applicants are determined to be serious and organised crime suspects pursuant to s 3A of the Bail Act. Subsequently on 21 August 2014 the Judge published reasons for refusing all three applications for bail. I take a different view from the District Court Judge on only one aspect of this matter. However, it is an important aspect and that is whether any or all of the three applicants have established the existence of special circumstances under s 10A of the Bail Act. In my view two of the applicants have established that there are circumstances which when considered together with other facts and circumstances relevant to that particular applicant, amount to special circumstances justifying their release on bail. My reasons are as follows.
The statutory scheme in relation to a person declared to be a serious and organised crime suspect under s 3A of the Bail Act
The consequences under the Bail Act for an applicant who is prescribed under the provisions of s 3A(1) as a serious and organised crime suspect significantly affects and restricts the declared applicant’s prospects of successfully applying for bail.
Section 3A of the Bail Act states:
3A—Serious and organised crime suspects
(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.
(2)A determination by a bail authority that a person taken into custody on a charge of an offence is a serious and organised crime suspect ceases to apply after 6 months if, at that time—
(a)     the person has not been tried, or is not on trial, for the offence; and
(b) the trial of the offence is not subject to a determination of the Supreme Court or the District Court under section 275(3) of the Criminal Law Consolidation Act 1935.
(3)Subsection (2) does not affect the operation of a bail agreement to which the person is subject at the time at which the determination ceases to apply.
Note—
The person is, however, eligible to reapply for bail—see section 4(1)(h).
The provisions of s 10A of the Bail Act govern the circumstances in which a serious and organised crime suspect can be granted bail. Section 10A states:
10A—Presumption against bail in certain cases
(1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.
(1a)An applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist for the purposes of subsection (1) unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of—
(a)     a serious and organised crime offence; or
(b)     an offence committed in another jurisdiction that would, if committed in this jurisdiction, have been a serious and organised crime offence.
(2)In this section—
prescribed applicant means—
(a)     an applicant taken into custody in relation to any of the following offences if committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit:
(i)an offence against section 13 of the Criminal Law Consolidation Act 1935 in which the victim's death was caused by the applicant's use of a motor vehicle;
(ii)an offence against section 19A of the Criminal Law Consolidation Act 1935;
(iii)an offence against section 29 of the Criminal Law Consolidation Act 1935 if the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle; or
(b) an applicant taken into custody in relation to an offence against section 17 where there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under section 11(2)(a)(ii); or
(ba) an applicant taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or
(bb)   an applicant who is a serious and organised crime suspect;
(c)     an applicant taken into custody in relation to an offence of contravening or failing to comply with a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008; or
(d)     an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:
(i)section 172;
(ii)section 248;
(iii)section 250;
(iv)section 85B; or
(e) an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988).
Pursuant to the provisions of s 10A(1), s 10A(1a) and s 10(2)(bb) a prescribed applicant will need to establish the existence of special circumstances justifying his release on bail. A prescribed applicant who is a serious and organised crime suspect cannot establish special circumstances unless he establishes by evidence verified on oath that he has never been previously convicted of a serious and organised crime offence. Even if there are circumstances that might qualify as special circumstances pursuant to s 10A of the Bail Act it is still necessary to go on and determine, in light of all considerations set out in s 10 of the Bail Act, whether those special circumstances in the case of a particular applicant justify the grant of bail. The s 10 considerations are highly relevant and it is only once they are considered together with the s 10A special circumstances that a bail authority can exercise its discretion.
To be clear, it is only after taking into account all s 10 and s 10A circumstances that a bail authority can determine whether, in the case of an individual, the combination of circumstances established does in fact amount to special circumstances justifying release on bail.
Finally, even if a prescribed applicant who is a serious and organised crime suspect is successful in obtaining bail, any grant of bail is subject to very stringent restrictions set out in s 11(2aa) of the Bail Act. Those conditions are set out as follows:
(2aa)If the applicant is a serious and organised crime suspect, any grant of bail to the applicant—
(a) must be made subject to the following conditions:
(i)a condition that the applicant agree to reside at a specified address and to remain at that place of residence while on bail, not leaving it except for 1 of the following purposes:
(A)necessary medical or dental treatment for the applicant;
(B)averting or minimising a serious risk of death or injury (whether to the applicant or some other person);
(C)any other purpose approved by the Chief Executive Officer;
(ii)a condition that the applicant agree to be fitted with a device of a kind approved by the Chief Executive Officer for the purpose of monitoring compliance with the condition referred to in subparagraph (i) and to comply with all reasonable directions of the Chief Executive Officer in relation to the device;
(iii)a condition that the applicant agree to not communicate with any person other than specified persons, or persons of a specified class or of a class prescribed by regulation;
(iv)a condition that the applicant agree to only use for communication purposes, or be in possession of, such telephones, mobile phones, computers or other communication devices as may be specified; and
(b) may not be made subject to the condition referred to in subsection (2)(a)(ia) (but the bail authority may, subject to this section, impose any other condition referred to in subsection (2)).
Under the provisions of s 3A(2) a determination that a person is a serious and organised crime suspect made under s 3A of the Bail Act will cease to apply after a period of six months if at the end of that period the prescribed applicant is not either on trial or has not been tried for the offence and the trial has not been subject to a determination of the Supreme Court or the District Court under s 275(3) of the Criminal Law Consolidation Act.
Section 275 of the Criminal Law Consolidation Act provides as follows:
275—Information may be presented in name of Director of Public Prosecutions
…
(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.
(4)For the avoidance of doubt, any power of the Supreme Court or the District Court to order the transfer of proceedings under this or any other Act or law applies to proceedings brought under this section in the same way as it applies to any other criminal proceedings.
(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.
It can be seen from the combined effect of the provisions in s 275(3) of the Criminal Law Consolidation Act and s 3A of the Bail Act that if a Court makes a determination under s 275(3) whether on its own initiative or on the application of the Director of Public Prosecutions, the effect of such a determination is that a declaration made under s 3A of the Bail Act thereby becomes indeterminate.
I turn first to the question whether each of the s 3A declarations was appropriate in the circumstances.
Section 3A of the Bail Act determinations
Each of the three applicants contend that the criteria required before a declaration could be made under s 3A of the Bail Act were not established. The applicant Mr Niemann has conceded that at the time when the first declaration was made on 19 July 2013 it was at that time open on the basis of the material put forward before the Magistrate to make a declaration at that stage. However, counsel for Mr Niemann contends that the circumstances have now changed and it is no longer appropriate for his client to be subject to a declaration under s 3A.
As the submissions made on Mr Niemann’s behalf were in all relevant respects mirrored by submissions made in support of the applications made by both Mr Cekic and Mr Dettman, I intend to deal with the submissions as to whether a declaration under s 3A was appropriately made compendiously.
Each of the three applicants conceded that the grounds set out in s 3A(1)(a) and s 3A(1)(b), namely that the applicant has been charged with a serious and organised crime offence and is not a child, are satisfied.
It was contended that it is now apparent that the alleged victim Charles Bonnici is not and will not be a complainant or a witness at the trial. He has never made a statement and he has never expressed any concern. A similar submission was made in relation to the person from whom the bolt cutters were obtained. That person has never been identified and, it was submitted, in any event it is not disputed that the bolt cutters were obtained. Counsel for Mr Niemann submitted that will be made the subject of an agreed fact and no statement will ever be needed from the person whoever he or she was. Consequently there is no reason to apprehend that he or she may be in fear as a consequence. Furthermore, it was pointed out that the prosecution case in substance will depend on the evidence presented of events recorded on a closed circuit television camera. The bulk of all the other evidence has been agreed. Therefore it was submitted there is no reason to apprehend that the grant of bail to Mr Niemann or any of the other applicants is likely to cause any potential witness or other person connected with these proceedings to reasonably fear for his or her safety.
In respect of the one person from whom a statement has been obtained, namely Leanne Bonnici, the wife of the alleged victim, it was submitted that she is in the same category as the person who supplied the bolt cutters. Her statement contains only an extremely generalised expression consistent with any fear in that the statement concludes with an assertion by the witness that she does not wish to be involved in this matter any further. In any event, her evidence is irrelevant and insofar as it might have any peripheral relevance the contents will be agreed.

As for the numerous other persons in nearby premises who all declined to give statements or speak with the police, it was submitted there has been no clear expression of any fear articulated, nor any statements obtained and their evidence is not central to, or in the case of some of those witnesses, even relevant to any issue at trial.
These were the general submissions made by each of the applicants in support of the submission that a s 3A declaration should not have been made.
Those submissions necessitate a close examination of the provisions of s 3A(1)(c). That sub-section refers to “a potential witness, or other person connected with proceedings for the alleged offence”.
It follows from the plain wording of that sub-section that the category of person referred to extends beyond persons who will actually be called as a witness or who may be called as a witness. It certainly extends to the alleged victim in this case and to Leanne Bonnici.
In my view the wording of that sub-section “or other person connected with proceedings for the alleged offence” can clearly include other persons in nearby premises who whether they like it or not are connected with these proceedings. I consider it beside the point that some or all of them may have refused to cooperate with police. In my view the fact that so many potential witnesses and relevant persons have refused to cooperate with police is itself sufficient to draw the inference that there is an element of fear in their failure to cooperate.
This category of people includes persons who were the occupants or apparent occupants of premises nearby. It includes the persons who were occupants of the premises from where the bolt cutters came. Those premises were searched and some of the people questioned by the police. All of them refused to speak with the police.
In my view all of those people are properly within the category of persons contemplated in s 3A(1)(c) of the Bail Act.
Just because evidence of particular witnesses may be agreed does not obviate the likelihood that some or all of those people may reasonably fear for their safety if the applicant or applicants are granted bail. Indeed very often evidence is only agreed because it is obvious if it is not agreed that the prosecution are in a position to call that evidence.
For all of these reasons I consider that the inference can be drawn in this matter that there are a number of potential witnesses and other people connected with the proceedings for this alleged offence who are likely to fear for their safety if the applicants are released on bail.
Accordingly in my view the declaration under s 3A was properly made in relation to each applicant.
This is not the end of the matter. For the reasons which I have expressed earlier, the Bail Act specifically contemplates that even a person declared to be a serious and organised crime suspect under s 3A may, in special circumstances, justify his release on bail.
Accordingly, I must now consider whether each of the applicants has established special circumstances justifying their release on bail.
Special circumstances
In my view special circumstances is wide enough to encompass a circumstance here clearly not contemplated by the legislature, namely, that prescribed applicants would be detained in custody pending a trial that should have taken place in six months but will not now take place for a period of two years from the date of incarceration.
In the case of each of the three applicants, determinations under s 275(3) have been made with the consequence that currently they are subject to determinations under s 3A which are effectively indeterminate.
This is a curious result and in the circumstances of the present matter an extremely unfortunate one. The trial will not now commence until 2 March 2015. By that date each of the three applicants will have been in custody for 696 days and 697 days respectively. It is apparent from the statutory scheme enacted by the Parliament with regard to serious and organised crime suspects that the Parliament intended the six month time limit on all declarations made to ameliorate the harsh consequences of the making of a declaration under s 3A of the Bail Act.
When introducing the amendments into Parliament in 2012 the relevant Minister in the Second Reading Speech said:[1]
[1] South Australia, Parliamentary Debates, Legislative Council, 1 March 2012, 439-441 (Gail Gago).
(vii) – Bail
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.
…
(ix) – Special Procedure
Delay in the criminal justice system aids the defendant determined to intimidate and threaten witnesses, jurors and victims. The more delay, the more the opportunity. Therefore, the establishment of a special procedure of direct indictment in the hands of the Director of Public Prosecutions in the Supreme Court is proposed. Where that direct indictment is made, the trial of the accused must begin within 6 months of an operative determination by a bail authority that the defendant is a serious and organised crime suspect unless the Supreme Court determines that the commencement is not reasonably practicable or on application by either party that there are exceptional circumstances that justify delay. It is not the intention of the Government to dictate what those exceptional circumstances may be.
It can be seen from the foregoing that it was never the intention that prescribed applicants should be subject to an indeterminate period of detention or even detention for a very long time.
The events which I have set out earlier in these reasons illustrate that in this case the intention of the Parliament has been frustrated. As counsel for Mr Dettman pointed out during submissions, the statutory time limit stipulated in s 3A(2) of the Bail Act had almost expired by the date the accused were first arraigned on 13 January 2014. That in itself is a most unsatisfactory state of affairs; however, the Court did attempt to deal with the matter expeditiously as it is required to do under the legislative scheme and set a date for hearing on 30 June 2014.
To my mind the application made by the Director to adjourn the trial was ill-advised. The appeal to which the prosecutor referred did not raise any new or novel point of law. Rather it involved a consideration of well established principles concerning the admissibility of hearsay and opinion evidence given by police officers. I make no criticism of the Chief Judge. After all, he was faced on 24 June 2014 with an application from the Director which at that stage was no longer opposed by any of the parties.
However, in the end result the delay between the date of the applicants’ arrest and the date for trial will now be 696 days during which time the applicants have been remanded in custody.
In these particular circumstances I find that the delay caused in this matter in combination with other factors may amount to special circumstances. The history of this matter illustrates why this Court must be vigilant to ensure insofar as is reasonably possible within the parameters of the legislative scheme under the Bail Act, that prescribed applicants subject to the harsh regime within the Bail Act are not subject to lengthy or indeterminate detention.
Each case will need to be judged on its own particular facts. In the circumstances of this case I am influenced by the delay which had already occurred even before the application for adjournment by the Director. However, in my view the unwarranted application for an adjournment in June 2014 and the consequential adjournment of eight months, tips the scales in favour of the applicants.
As has been pointed out in previous decisions of this Court there are no words limiting the scope and meaning of “special circumstances” in s 10A of the Bail Act. They should be given their ordinary meaning. They import a wide and flexible approach in determining whether an applicant has established special circumstances. There are a variety of circumstances which will justify concluding that a person should be released on bail. The words of the section are not limiting. The section is to be interpreted having regard to the principle that a person charged with an offence is presumed innocent and should only be held in custody if they cannot establish special circumstances.[2]
[2] R v Buhlmann [2010] SASC 123 per Sulan J.
To that I would add that here in the case of an applicant prescribed as a serious and organised crime suspect under s 3A of the Bail Act it is of course necessary to adopt a very cautious approach. The applicants in this case stand in precisely the same position as the applicant in R v Lombardi,[3] that is to say the very reason for the existence of the declaration under s 3A is that each of the applicants do pose a real risk to certain witnesses if released on bail.
[3] (2013) 115 SASR 577.
The consideration of the protection of the public and any potential witnesses remains a very important consideration in deciding whether it is appropriate to release any serious and organised crime suspect on bail in any form.
It might be thought that there is an inherent contradiction in concluding that a person who has been determined to be a serious and organised crime suspect, partly for the reason that any grant of bail is likely to cause a potential witness or other person connected with the proceedings for the alleged offence to reasonably fear for his or her safety, might nevertheless be an appropriate candidate for bail.
However the Parliament has contemplated such a result and made provision in s 11(2aa) of the Bail Act for that eventuality.
Effectively, s 11(2aa) stipulates that in relation to any serious and organised crime suspect the minimum conditions necessary to give effect to the stated purpose of protecting the public and any potential witnesses is home detention bail on extremely restrictive conditions.
A serious and organised crime suspect who is granted bail in addition to being on restricted home detention bail may be subject to a provision that he not have communication with certain persons or the ability to communicate by telephone or electronic means. In addition, he is not permitted to leave the residence except with the approval of the Chief Executive Officer of the Department of Correctional Services. No permission to leave for remunerated employment can be given.
In my view these provisions are designed to ensure maximum protection to any potential witnesses if a serious and organised crime suspect can establish the existence of special circumstances justifying his release on bail.
In summary, in my view, the combination of circumstances here together with the inordinate delay in bringing the applicants to trial in the particular circumstances of this matter may amount to special circumstances justifying an individual applicant’s release on bail.
Accordingly, I will now consider whether bail should be granted to any or all of the applicants.
Consideration of applications for bail
Mr Niemann
As I have earlier stated the consideration of the protection of the public and any potential witness and other person connected with these proceedings remains a very important consideration in deciding whether it is appropriate to release Mr Niemann on bail, and if it is appropriate, which form of bail.
In reaching my conclusion I take into account that he is still a young man with a negligible prior criminal history that includes only convictions in respect of breaches of bail which, in the scheme of things, could be described as minor breaches. I take into account that if he is required to remain in custody he will have been in custody for 696 days before his trial commences. It was plainly the intention of Parliament in enacting the extremely restricted regime for declared applicants to obtain bail, that applicants declared as serious and organised crime suspects would have a trial within six months of the declaration being made.
The delay here is significant and at least with respect to a significant portion of that delay it cannot be attributed to any conduct on the part of the applicant.
The allegations are plainly very serious. Contrary to Mr Niemann’s counsel’s submissions, his role in the alleged offending could not be described as peripheral. In my view the allegations against Mr Niemann are no more or less serious and his role no more or less central than any of the others charged in this offence. That in itself is not necessarily a bar to grant of bail for it is now not uncommon for persons charged with extremely serious offences of violence, including murder, to be released on some form of bail.
There is no suggestion that Mr Niemann poses a flight risk. His family have indicated their preparedness to be guarantors and to provide cash sureties.
In all of the circumstances I consider that Mr Niemann has discharged the onus upon him in s 10A(1) of the Bail Act.
I am prepared to grant bail to Mr Niemann. It will have to be on strict conditions of home detention as set out in s 11(2aa) of the Bail Act and I will hear both counsel as to any additional appropriate conditions which might be required in accordance with s 11(2aa)(a)(iii) and (iv) of the Bail Act.
I turn now to consider Mr Cekic’s application for bail.
Mr Cekic
Mr Cekic did not apply for bail until after the trial date of 30 June 2014 had been vacated on 24 June 2014.
The declaration that he is a serious and organised crime suspect was not made until 31 July 2014, nevertheless it was necessary for the Judge to almost immediately make a determination under s 275(3)(a) of the Criminal Law Consolidation Act that it would not be reasonably practicable for the Court to deal with the trial of Mr Cekic in the six month period prescribed by s 3A of the Bail Act. Accordingly, as with Mr Dettman, Mr Cekic is now subject like Mr Niemann to an indeterminate determination under s 3A of the Bail Act. For all relevant and practical purposes I do not consider that the position of Mr Cekic or Mr Dettman for that matter is relevantly different to the position of Mr Niemann. That is because Mr Cekic has also been in custody since 5 April 2013. The same general considerations apply to Mr Cekic.
Mr Cekic does have a minor criminal history which includes one relevant prior offence. That is the conviction for affray committed on 29 May 2011 for which he was sentenced to 19 months imprisonment with a non-parole period of 10 months suspended on agreeing to enter into a bond to be of good behaviour. If he is convicted on any of the current offences that will constitute a breach of that bond. Mr Cekic also has two prior convictions for failing to comply with a bail agreement although it must be said that those breaches were very minor, one involving a failure to report on a public holiday and one involving the timing of reporting to the police which was late on another occasion.
However I remind myself that the Bail Act has not reversed the presumption of innocence and I must proceed on the basis that the accused is presumed to be innocent unless and until he is convicted. Like Mr Niemann he too will have been in custody for 696 days by the time his trial commences.
Mr Cekic has demonstrated ties with South Australia and excellent family support. All members of his family have stated their preparedness to be guarantors and to provide modest cash sureties.
Given the stringent requirements set out in s 11(2aa) of the Bail Act I consider that any risk in releasing Mr Cekic on strict conditions of bail to live with his family is negligible. In all of the circumstances I consider that Mr Cekic has discharged the onus upon him under s 10A(1) of the Bail Act. I am prepared to grant bail to Mr Cekic. I will hear both counsel as to appropriate terms pursuant to the provisions of s 11(2aa)(iii) and (iv).
Mr Dettman
I turn now to Mr Dettman. Unlike the previous two applicants Mr Dettman has an extensive criminal history. Mr Dettman’s first conviction was recorded in 1988, when he was 15 years old. He has, over the course of his life, received a number of significant custodial sentences and has in fact spent much of his adult life in custody. The nature of the previous offences committed by Mr Dettman also causes me some disquiet. Many involve violence and a number involve firearms. I note also that he has convictions for resisting or obstructing a forensic procedure and driving dangerously to escape police pursuit. The cumulative effect of Mr Dettman’s antecedent report does not give me any confidence in him complying with any bail conditions.
While the submission that he is not a flight risk may well be correct, nevertheless I consider in light of his history there is a high risk of offending again by this applicant. In my view the risk of reoffending by Mr Dettman is so high that he is not an appropriate candidate for bail in any form. In all of the circumstances I do not consider that Mr Dettman has discharged the onus upon him under s 10A(1) of the Bail Act. Even if he had discharged that onus I would not consider he was an appropriate candidate for bail. Bail is refused.

[2014] SASC 132

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Bail

Protection of Public

Custody Delay

Serious and Organised Crime Suspect