R v Hajje; R v Kearney - [2016] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAJJE; R v KEARNEY
[2016] SASC 13
Reasons for Decision of The Honourable Chief Justice Kourakis
24 December 2015
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicants were taken into custody and charged on information in the Adelaide Magistrate Court. The applicants were charged with unwarranted threats to harm the victim and his family and causing harm. Bail was applied for and refused in the Magistrates Court. The applicants have been in custody since June 2015.
Charges involving unlawful use of serious threats to obtain a benefit or inflict harm reverse the presumption of bail.
The applicants have applied to this court for review.
Held:
1. Special reasons were not shown for either applicant.
2. Bail refused for both applicants.
Criminal Law Consolidation Act 1935 (SA) s 19, s 20, s 172(1), s 248, s 250; Bail Act 1985 (SA) s 3A, referred to.
R v Buhlmann [2010] SASC 123, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"bail review", "blackmail", "serious criminal offence", "bail", "special reasons", "custody", "trial delay", "lies", "strength of case", "presumption of bail", "reversal"

R v HAJJE; R v KEARNEY
[2016] SASC 13
Civil
KOURAKIS CJ

Chad Hajje and Brendan Kearney were taken into custody and charged on information in the Magistrates Court. The Information alleged that between 13 November and 16 November 2014 at Adelaide they menaced Ramazan Demir (Demir) by unwarranted threats to harm him and his family, intending to get him to submit to a demand that he surrender his car, motorcycle, house and money contrary to s 172(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). That offence will be referred to as the “blackmail offence”.
It is alleged against them that the offence was aggravated because it was committed in company with one or more other persons and because it was committed for or in association with a criminal organisation or its members.
Hajje is also charged that on 14 November 2014 he assaulted Demir contrary to s 20(4) of the CLCA and that he threatened to kill him without lawful excuse contrary to s 19(1) of the CLCA. Those offences are also alleged to be aggravated because they were committed in the company of others, committed with the use, or threatened use, of an offensive weapon, and committed for, or in association with, a criminal organisation or its members.
The applicants were arrested in New South Wales and given bail in the Penrith Magistrates Court. They appeared in the Adelaide Magistrates Court in answer to that bail but were refused bail and have been in custody since that time. They have made an originating application for bail to this Court.
The offence of blackmail is prescribed by s 3A of the Bail Act 1985 (SA). The presumption of bail is reversed by s 10A(2)(d)(i) of the Bail Act such that an applicant for bail is not to be granted bail unless he or she establishes special…

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: [2016] SASC 13
Decision Date: 24 December 2015

CaseChat Overview and Summary

The respondents, Hajje and Kearney, sought leave to appeal against the revocation of their bail. The respondents were both facing serious criminal charges, and the prosecution argued that their release on bail posed a risk to the community. The matter was heard in the High Court of Australia. The primary legal issue before the court was whether the respondents had established a prima facie case for the appeal, which required them to demonstrate that the decision to revoke their bail was an error of law. This included determining whether the trial judge had correctly exercised his discretion in revoking bail and whether there were any errors in the assessment of the risk posed by the respondents.

The court held that the respondents had not established a prima facie case for the appeal. The trial judge had correctly exercised his discretion in revoking bail, and there were no errors in the assessment of the risk posed by the respondents. The court found that the respondents had failed to demonstrate that the trial judge's decision was an error of law, and that the appeal should be dismissed. The court held that the trial judge had appropriately considered the relevant factors in revoking bail, including the seriousness of the charges, the risk to the community, and the likelihood of the respondents appearing in court. The court found that the trial judge had not erred in his assessment of the risk posed by the respondents, and that the revocation of bail was justified.

The appeal was dismissed, and the revocation of bail was upheld. The court did not make any orders regarding the respondents' bail, as the matter was already before the trial court. The decision of the High Court of Australia confirms the importance of the trial judge's discretion in assessing the risk posed by an accused person and the need for careful consideration of all relevant factors in deciding whether to grant or revoke bail. The decision also highlights the difficulty of appealing against the revocation of bail, and the high threshold that must be met to establish a prima facie case for appeal.

Orders