R v Kotz - [2016] SASC 45

Supreme Court of South Australia
(Criminal: Application)
R v KOTZ
[2016] SASC 45
Reasons for Decision of The Honourable Chief Justice Kourakis (ex tempore)
4 March 2016
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was taken into custody and charged on an Information in the Adelaide Magistrates Court. The applicant was charged with a number for offences, including one of participating in a criminal organisation.
Bail was applied for and refused in the Magistrates Court in October 2015. The Magistrate made a serious and organised crime suspect determination.
Bail was again applied for and refused in February 2016. The applicant sought a review of that refusal.
Held per Kourakis CJ, dismissing the application:
1. Special circumstances warranting a grant of bail have not been shown;
2. Bail is refused.
Criminal Law Consolidation Act 1935 (SA) ss 83E(1), 275(3); Bail Act 1985 (SA) ss 3A, 10A, referred to.

R v KOTZ
[2016] SASC 45
Criminal

KOURAKIS CJ (ex tempore): Michael Kotz was taken into custody on 27 March 2015 on a number of charges including one of participating in a criminal organisation contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA) (the criminal organisation charge). It is alleged that following an incident involving members of the Nomads Outlaw Motor Cycle Gang (OMCG) at the Enfield Cemetery on 26 February 2015, Mr Kotz, and other members of the Nomads were ordered to find the premises of another Nomad member, Mr Demir and to extract $60,000 from him by way of a penalty for breaching the gang’s rules.
Mr Kotz participated with others in that search. Mr Kotz’s mobile telephone was subsequently found by police to have photos of the outside of Mr Demir’s home which had been taken on 15 March 2016. I am informed by Mr Kotz’s counsel that other members of the Nomads used Mr Kotz’s phone to take those photos. Whether Mr Kotz took the photos himself or allowed others to use his phone for that purpose does not much affect the outcome of this application.
On 17 March 2015 Mr Kotz told senior members of the Nomads, Mr Roberts and Mr Pishdari, that he had found where Mr Demir was living. Later, on 20 March 2015 Mr Kotz, again with others, went to Mr Demir’s house and broke in to it by kicking in a door. Mr Demir was not present but his premises were searched. The Nomads discovered a partially completed application made by Mr Demir to South Australia Police. That application later became the subject of some dispute between Nomads members as to how Mr Demir should be dealt with for making the application.
On 7 October 2015 Mr Kotz made a bail application in the Magistrates Court. Bail was refused and a serious and organised crime suspect determination was made pursuant to s 3A(1) of the Bail Act 1985 (SA). That determination ends on 7 April 2016. The determination being extant, it is necessary for Mr Kotz as a prescribed applicant to establish special circumstances justifying his release on bail.[1]
[1] Bail Act 1985 (SA) ss 10A(1), 10A(2)(bb).
Another application for bail was made before a Magistrate on 19 February 2016 but was refused. Mr Kotz now seeks a review of that refusal.
Mr Kotz will be arraigned in this Court on 21 March 2016 with other members of the Nomads. The Information will charge Mr Kotz, jointly with others, with the criminal organisation charge. That charge is count 11 on the Magistrates Court Information. The Information will include charges against other defendants for offences in which Mr Kotz is not alleged to be involved. Another Nomad member Mr Mackay, and others, will be charged with offences of aggravated causing harm and kidnapping respectively. If all of the counts are heard together, and the Director of Public Prosecutions intends to proceed in that way, it is unlikely that there will be a trial in this Court before July 2016.
If a separate trial were ordered on count 11, the trial of Mr Kotz could be heard earlier. However I will proceed on the basis that the trial will be heard at the same time as the other counts and that, therefore, Mr Kotz is unlikely to go to trial before July.
I turn to whether Mr Kotz has shown special circumstances warranting a grant of bail. First, I observe that it is plain from the legislative provisions governing the bail and trial of serious organised crime suspects that the denial of the presumption of bail is premised on the expeditious prosecution of serious and organised crime suspects.[2] In particular, Parliament intended there to be a periodic review of serious and organised crime suspect determinations, having regard to the progress in the prosecution of the charges against them.
[2] Bail Act 1985 (SA) s 3A(2); Criminal Law Consolidation Act 1935 (SA) s 275(3).
The progress of the prosecution is therefore a relevant consideration in determining whether special circumstances have been established. By the time of trial, the applicant is likely to have been in custody for more than 12 months.
The prosecution of this matter, and the other associated matters, in the Magistrates Court took longer than it might otherwise have because of the decision to charge two interstate members of the Nomads with an offence alleged to have been committed at the Adelaide High School oval. Those charges were based largely on the evidence of the Nomads member Mr Demir, the alleged victim of those offences. Towards the end of last year he withdrew his cooperation with the prosecution, resulting in the dismissal of those charges in February of this year.
However, no criticism is made of the decision of the Director of Public Prosecutions to join those charges with the charges against Mr Kotz. Nor has there been any more general criticism of the way in which the charges have been prosecuted.
Be that as it may, the time taken to trial is therefore not as expeditious as it might have been. Nonetheless I am satisfied that there has not been undue delay, or any unreasonable conduct, in the prosecution of the matter.
It is pressed upon me that Mr Kotz is no longer a member of the Nomads. That is a matter of some importance. The mischief which these special provisions reversing the presumption of bail address is the risk posed by the intimidatory methods of OMCGs to the community, and to the proper prosecution of the offences with which their members or alleged members are charged. These risks, arising as they do from membership of an OMCG, do not disappear on a defendant ceasing to be a member. A person might relinquish or lose membership of an OMCG for a range of reasons. It is notorious that a member of one OMCG might later become a member of another. There is nothing in the material before me to suggest that that is likely, but it remains a relevant adverse consideration that a defendant has been prepared to adopt the objectives of an OMCG. Those objectives are comprehensively described in the affidavit of Detective Senior Sergeant Featherby. A person who has shown a willingness to participate in the lawless operations of an OMCG continues to pose some risk to the community, and the administration of justice, whatever his current membership status may be.
Mr Kotz had an unfortunate childhood. He has suffered injury and illness as an adult. Those matters may assume greater importance in other contexts but, on his bail application, do not detract, to any large degree, from the risks to which the statutory reversal of the presumption of bail is directed.
Mr Kotz has offered a substantial guarantee by the proposed guarantor Mr Michael Hopkins. Mr Hopkins is in secure, well-paid employment at Moomba. His work ethic is demonstrated by the fact that he has taken on other employment as a truck driver whilst remaining on a retainer with Halliburton. He has been able to take up work as a truck driver because he is not presently required at Moomba because of a downturn in oil production.
The proposed guarantee has caused me to consider carefully whether special circumstances have been made out. The combination of the peripheral involvement alleged in the criminal organisation charge, the strength of the guarantee and Mr Kotz’s personal circumstances are a reasonable basis upon which to contend that special circumstances have been made out. In ordinary circumstances, where the presumption of bail operates, the security given by a guarantee such as that of Mr Hopkins would secure a grant of bail.
However after careful consideration I have concluded that there is not enough here to amount to special circumstances. Although I am sure that Mr Hopkins has done much to overcome the offending of his past, that offending precludes me from giving his guarantee sufficient weight to find, with the other matters I have mentioned, that there are special circumstances.
I mention here that the proposed residence for Mr Kotz is with his wife. There is an extant intervention order against Mr Kotz for the protection of his wife. Mrs Kotz offered to have her husband in the home notwithstanding that order after taking independent advice from the Women’s Legal Service. I make it clear that, for that reason, I have not taken into account the existence of the intervention order in the refusal of bail.
For the above reasons, I refuse the application for bail.