R v M, RP - [2015] SADC 125

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…

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 M, RP

Details

AGLC: R v M, RP [2015] SADC 125
Case: [2015] SADC 125
Decision Date: 3 September 2015

CaseChat Overview and Summary

In the matter of Regina versus M, RP, the defendant faced charges related to criminal activities and was brought before the court to determine whether bail should be granted before the trial. The defendant contested the denial of bail and sought review by the higher court. The nature of the dispute centred on whether the defendant was entitled to bail under the provisions of the Bail Act and whether there were compelling reasons to deny bail due to the severity of the charges and the risk of flight or interference with witnesses.

The legal issues before the court were whether the defendant's application for bail should be upheld, considering the seriousness of the charges against him, the likelihood of him appearing in court if granted bail, and whether the denial of bail was justified by the potential risk he posed to the community. The court had to balance the presumption of innocence and the right to liberty against the need to protect the community and ensure the integrity of the judicial process.

The court considered the gravity of the charges and the evidence presented by the prosecution, including witness statements and the defendant's criminal history. It was noted that the charges were of a serious nature and that there was a significant risk of flight and interference with witnesses if bail were granted. The court found that the defendant's likelihood of appearing in court if released on bail was low, and the risk to the community was high. Consequently, the court upheld the denial of bail, emphasising the need to protect the community and ensure the proper administration of justice.

The final orders of the court maintained the denial of bail for the defendant pending the outcome of the trial, underscoring the gravity of the charges and the potential risk posed by the defendant if released. The court's decision was based on a thorough examination of the evidence and the principles of the Bail Act, reaffirming the importance of balancing individual rights with public safety.

Orders