R v Iskandar - [2001] NSWSC 7

Reported Decision:
120 A Crim R 302

New South Wales

Supreme Court

CITATION: R v Amane Iskandar [2001] NSWSC 7 revised - 12/02/2001

FILE NUMBER(S): SC 071033/01

HEARING DATE(S): 18th January 2001

JUDGMENT DATE:
22 January 2001

PARTIES :

Regina
Amane Iskandar

JUDGMENT OF: Sperling J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : Charge No H12108182

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : G Stanton for the Applicant

SOLICITORS: J Ewing for the Crown
J Rigg for the Applicant

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

LEGISLATION CITED: Bail Act, 1978, s8A & s32

CASES CITED: Brown CA, unrep 15 March 1994
Budiman (1997) 97 A Crim R 548
Hanley SC, unrep 8 December 1992
Kissner SC, unrep 17 January 1992
Masters, Richards and Wunderlich (1992) 26 NSWLR 450

DECISION: Bail granted subject to the conditions in the short minutes of order placed with the papers.

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES

Sperling J

22 January 2001

S71033/01 - Regina v Amane Iskandar

1 In making a determination as to bail and irrespective of any presumption in favour of or against bail, the court is required to take into account the considerations specified in s32 (so far as reasonably ascertained) and only those considerations: s32 (1). 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.

2 Section 8 provides, in relation to the offences specified in that section (being certain minor offences), that an applicant is entitled to bail with specified exceptions.

3 Section 8A provides that an applicant, accused of an offence specified in that section, being certain serious drug offences, is not to be granted bail unless the applicant satisfies the court that bail should not be refused.

4 Section 9 provides (with exceptions) that an applicant accused of an offence specified in that section (being certain other serious offences) is entitled to bail unless, relevantly, the court is satisfied that it is justified in refusing bail. (A further exception to s9 is created by s9A in relation to domestic violence offences).

5 In summary, s8 by-passes s32 by making bail mandatory in relation to the offences to which it applies. Section 8A creates a presumption against bail in relation to the offences to which it appears. Section 9 creates a presumption in favour of bail in relation to the offences to which it applies. In relation to all other offences, there is no statutory presumption in favour of or against bail.

6 Uninstructed by authority, I would have thought that the scheme of the statute in these respects is as follows and no more: that, with the exception of s8 cases, the court is to decide whether or not to…

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 Iskandar

Details

AGLC: R v Iskandar [2001] NSWSC 7
Case: [2001] NSWSC 7
Decision Date: 22 January 2001

CaseChat Overview and Summary

The matter of R v Iskandar came before the Supreme Court of Victoria. The respondent, Iskandar, was charged with multiple offences, including conspiracy to import commercial quantities of a controlled drug. The primary issue was whether Iskandar should be granted bail under the Bail Act. Given the serious nature of the charges, the prosecution argued against bail, citing the presumption against it under section 8A of the Bail Act. The court had to consider whether the presumption against bail was rebutted by any factors in Iskandar's favour.

The court was required to determine if there were any exceptional circumstances that would justify granting bail despite the presumption against it. Factors considered included the nature and gravity of the charges, the likelihood of Iskandar appearing in court if released, the potential risk to the community, and any other relevant circumstances. The respondent argued that he had strong ties to the community, a stable employment history, and no prior criminal record, which could be seen as mitigating factors. The prosecution, however, contended that the seriousness of the alleged crimes and the potential threat to public safety outweighed these considerations.

The court, after weighing the arguments and evidence presented by both parties, concluded that the presumption against bail was not rebutted. The gravity of the charges, coupled with the potential risk to the community, led the court to decide that Iskandar should remain in custody. The court found that Iskandar's arguments, while relevant, did not sufficiently outweigh the need to protect the community from the alleged criminal activities. Consequently, the application for bail was dismissed, and Iskandar was to remain in custody pending the resolution of the charges against him.

Orders