R v M, RP
[2015] SADC 125
•3 September 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, RP
[2015] SADC 125
Reasons for Decision of Her Honour Judge McIntyre
3 September 2015
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - OTHER CASES
Application by Director of Public Prosecutions for a determination that the defendant is a serious and organised crime suspect under s3A of the Bail Act 1985 (SA).
Application by defendant for release on bail.
Held:
1. The criteria in s3A(1) of the Bail Act are met.
2. It is appropriate in the circumstances to make a declaration that the defendant is a serious and organised crime suspect.
3. The defendant has failed to establish the existence of special circumstances justifying his release on bail.
Criminal Law Consolidation Act 1935 s172(1); Bail Act 1985 (SA) s3A, s10A, referred to.
R v Buhlman [2010] SASC 123; R v Lombardi [2013] SASC 61; R v Cekic; R v Dettman; R v Niemann [2014] SASC 132, applied.
R v M, RP
[2015] SADC 125
These reasons relate to two applications.
The first is an application by the Director of Public Prosecutions for a determination that the defendant is a serious and organised crime suspect and the second is the defendant’s application for bail.
The accused, M, RP is jointly charged with two others on Information dated 24 August 2015 with two counts of aggravated blackmail contrary to s.172(1) of the Criminal Law Consolidation Act 1935. The allegations are summarised in the category notice. I will not repeat them.
DPP Application
I will deal first with the DPP’s application for a determination that M, RP is a serious and organised crime suspect. This application is brought under s.3A of the Bail Act 1985 which relevantly reads as follows:
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.
The basis of the application is set out in an affidavit of Ms O’Donnell sworn on 31 August 2015. The defendant concedes that he is charged with serious and organised crime offences and that, at the time of the alleged offences, he was not a child having been born in 1989. I am satisfied that pre-conditions (a) and (b) of s.3A(1) are established.
The third pre-condition is contentious. The DPP contends that there are a number of civilian witnesses in this matter including the complainant SC and witnesses FP, WC, DC and MT who are likely to reasonably fear for their safety if the applicant is released on bail.
The defendant contends that there is not a sufficient basis for the court to be satisfied that this condition is made out. It is said that the complainant remains in gaol on other matters and accordingly could not fear for his safety if the defendant is released on bail. I accept that submission. The defence submissions focussed on FP who is the complainant’s girlfriend. She had direct contact with the defendant being the person who the prosecution allege handed money to him on two occasions. I accept that FP describes the accused as polite at all times. I further accept that there is no allegation that he ever made a threat to her or has attempted to interfere with her as a witness or indeed that he has personally made threats to any other witnesses. Notwithstanding this, I consider that there are persuasive inferences to be drawn that each of the named witnesses are likely to reasonably fear for their safety if the defendant is released on the basis of the following matters:
1.The nature of the allegations.
2.The defendant’s close relationship with his co-accused and his apparent preparedness to do their bidding whilst they are in jail.
3.The defendant and his co-accused’s apparent association with the Finks outlaw motor cycle gang and the defendant’s apparent relationship with the Mongols outlaw motor cycle gang.
4.The allegation in the complainant’s declaration that he was shown a list of names and addresses of his family members by the co-accused. That list included the civilian witnesses referred to in the DPP application.
5.The allegation that the defendant attended FP’s home address on two occasions.
I am therefore satisfied that pre-condition (c) is made out.
I must now consider whether to exercise my discretion to grant the application. In particular I must consider whether the allegations that comprise the charges are supported by evidence. Both counsel have submitted written outlines supplemented by oral submissions on this topic. I have considered those submissions and the declarations to which they refer.
The defendant submits that, taken at its highest, the evidence may sustain an inference that he had participated in some form of illegal activity, specifically collecting funds that may be related to some form of criminal activity, but that the prosecution have no evidence of his participation in the offences charged. I do not accept that submission.
It is my view that the material relied upon by the prosecution is capable of supporting the allegations made against this defendant if accepted. There is evidence capable of supporting findings that the defendants menaced the complainant with the intention of getting the complainant to submit to a demand, that the defendants were acting as part of a joint enterprise and that they identified themselves as belonging to or being associated with a criminal organisation in connection with the offence. In relation to this defendant specifically there is evidence which, if accepted, is capable of establishing inter alia that:
1. There is a close connection between the three co-accused;
2. He was in regular contact with his co-accused both directly and indirectly;
3. He assisted his co-accused with various matters whilst they were in jail and he was in the community;
4. He was aware of the actions of the co-accused to obtain money from the complainant, that he understood his role in that process and that he was prepared to participate;
5. He attended at FP’s home address on two occasions and collected the sum of $25,000 on each occasion;
6. When he was asked to attend on FP on a second occasion he was aware of the purpose for which he was attending and was prepared to continue.
Accordingly I am satisfied that in all of the circumstances it is appropriate to exercise my discretion to make the order sought by the DPP. I therefore determine that the defendant is a serious and organised crime suspect for the purposes of the Bail Act.
Bail Application
The provisions of s.10A of the Bail Act govern the circumstances in which a serious and organised crime suspect can be granted bail. Even before the declaration that I have just made that the defendant is a serious and organised crime suspect he was a prescribed applicant under s.10A due to the nature of the charged offences.
A prescribed applicant must establish the existence of special circumstances justifying his release on bail. A prescribed applicant, who is also a serious and organised crime suspect, cannot establish special circumstances unless he establishes by evidence verified on oath that he has never previously been convicted of a serious and organised crime offence. Affidavit material has been filed by the defendant which the DPP concedes establishes that he has not previously been convicted of a serious and organised crime offence.
The defendant has previously been refused bail in the Magistrates Court on the basis that he was unable to establish special circumstances. This was confirmed on two bail reviews to the Supreme Court. It is said that since those applications there has been a change in the defendant’s circumstances such that he can now establish the existence of special circumstances justifying his release on bail. These matters are, in summary:
·the asserted difficulties with the Crown case;
·delay;
·the availability of three guarantors and a cash surety;
·a stable place of residence;
·the strict conditions of release, specifically home detention;
·an offer of employment;
·lack of antecedents;
·his relative youth;
·positive evidence of good character and service to the community as evidenced by the tendering of a number of references;
·the defendant’s stated intention to leave the Finks motor cycle club and to refuse to patch over to the Mongols.
I have carefully considered the submissions that were made to me together with the affidavit material including the bail reviews undertaken by his Honour Justice Stanley on 11 February 2015 and his Honour Justice Peek on 28 May 2015. I have also considered the cases to which I was referred in argument. In particular I have been assisted by the observations of his Honour Justice Sulan in R v Buhlman,[1] Chief Justice Kourakis in R v Lombardi[2] and Justice Kelly in R v Cekic, R v Dettman and R v Niemann.[3]
[1] [2010] SASC 123
[2] [2013] SASC 61
[3] [2014] SASC 132
I reject the defence submissions that the prosecution case is weak and not capable of establishing that the defendant committed the offences with which he has been charged. I refer to my reasons above.
I also reject the proposition that there has been considerable delay in this matter. The committal process appears to have been handled expeditiously in the circumstances. The defendant was committed to this court and arraigned on 24 August 2015. A directions hearing has been listed on 16 September 2015. In light of the declaration that I have just made, the prosecution have indicated that from the crown perspective there is no reason why the matter cannot proceed to trial within 6 months pending court availability. This is a different scenario to that in R v Cekic, R v Dettman and R v Niemann where the delay was substantial and, in combination with other relevant matters, amounted to special circumstances justifying the release of Cekic and Niemann on bail but not Dettman.
I further do not consider that there is a significant change in circumstances since the bail reviews conducted by Justices Stanley and Peek. Those reviews, inter alia, referred to defence submissions as to an appropriate home detention address, a cash surety of $10,000, employment within the building industry, the youth of the accused and the fact that he had no prior record of breaching bail.
In my view, the circumstances identified by the defendant do not, even in combination, amount to special circumstances. I therefore do not consider that the applicant has discharged his onus of establishing special circumstances within the terms of the Bail Act and accordingly I refuse the application for bail.
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