R v Mackay - [2016] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MACKAY
[2016] SASC 44
Reasons for Decision of The Honourable Chief Justice Kourakis (ex tempore)
4 March 2016
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The respondent was taken into custody and charged on an Information in the Adelaide Magistrates Court. He was charged with aggravated cause harm with intent to cause harm and aggravated unlawful detention with the intention of committing an indictable offence.
A determination that the respondent was a serious and organised crime suspect was made in the Magistrates Court in August 2015. That determination came to an end, and in February 2016 the Magistrate declined to make another determination and granted the respondent bail on strict home detention conditions.
The applicant, the Director of Public Prosecutions (SA), reviewed that decision.
Held per Kourakis CJ, allowing the application:
1.         The respondent is determined a serious and organised crime suspect;
2.         Special circumstances warranting a grant of bail have not been shown;
3.         Bail is refused.
Criminal Law Consolidation Act 1935 (SA) ss 5(1), 24(1), 39(1), 275(3); Bail Act 1985 (SA) ss 3A, 10A, referred to.

R v MACKAY
[2016] SASC 44
Criminal

KOURAKIS CJ (ex tempore): Nathan Mackay is in custody on two counts for which he is to be arraigned in this Court on 21 March 2016. The counts, using the enumeration in the Magistrates Court Information are: count 8, aggravated cause harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (the cemetery offending) and count 12, aggravated unlawful detention with the intention of committing an indictable offence, namely blackmail (the kidnapping offence) contrary to s 39(1) of the CLCA.
The allegations with respect to the cemetery offending are that there was a meeting of members of the Nomads Outlaw Motor Cycle Gang (OMCG) at the Enfield Cemetery. At that meeting there was what might be called an interrogation of a Nomad member, Mr Demir. That interrogation became violent when at one point the President of the Adelaide chapter of the Nomads, Mr Pishdari, punched Mr Demir in the face. It is alleged that Mr Mackay and another Nomad member, Mr Coulter, also struck Mr Demir.
The prosecution of Mr Mackay is heavily dependent on the evidence of Mr Coulter.
The evidence of Mr Coulter is corroborated, at least as to the sustaining of injuries, by evidence that Mr Demir attended the Berri Hospital on 17 February 2015. X-rays taken then revealed a displaced fracture of the nasal bone.
Mr Mackay took office as Sergeant at Arms of the Adelaide Nomads chapter on 14 March 2014. He succeeded Mr Coulter. It is not disputed on this bail application that Mr Mackay was a member of the Nomads and that he was at the relevant times the Sergeant of Arms.
There was a falling out within the Adelaide chapter of the Nomads over whether the leadership of the interstate chapters of the Nomads should be informed about some documents found in Mr Demir’s home which evidenced some contact with the police.
In the course of the dealing with that issue, Mr Mackay, in his capacity as Sergeant at Arms, invited Mr Coulter to his house for a meeting. Mr Mackay was present with other Nomad members or nominees, including Mr Kotz, Mr Pishdari and Mr Mitchell. Using threats they demanded that Mr Coulter pay them $5,000 ostensibly as an internal gang disciplinary measure.
Mr Coulter was ordered into the back seat of a car driven by Mr Mackay and was driven to various locations to collect that money. They visited two persons who withdrew money from automatic teller machines and paid it over to Mr Mackay. A further sum of about $2,500 was found by Mr Coulter at another house and handed over. Some of these activities are corroborated by CCTV footage.
Serious and organised crime suspect
A determination that Mr Mackay was a serious and organised crime suspect was made in the Magistrates Court on 12 August 2015 pursuant to s 3A(1) of the Bail Act 1985 (SA) (the Bail Act). That determination came to an end by effluxion of time after six months on 12 February 2016. On 29 February 2016 a Magistrate granted Mr Mackay bail on very strict home detention conditions after declining to make a second serious and organised crime suspect determination. On 2 March 2016 the Director of Public Prosecutions sought a review of that decision.
When that review came before me on 2 March 2016, I revoked the bail granted in the Magistrates Court and continued to hear the matter as an application for bail. I revoked Mr Mackay’s bail because I was satisfied that the absence of sufficient guarantors meant there was an unacceptable risk in his release on bail.
Even though the Magistrate did not make a determination that Mr Mackay was a serious and organised crime suspect, I am asked to make such an order on this application.
It is not disputed that Mr Mackay satisfies the first precondition for a declaration pursuant to s 3A(1) of the Bail Act, in that he has been charged with a serious and organised crime offence.[1] Section 5(1) of the CLCA Act defines ‘serious and organised crime offence’ to include offences which are aggravated by the circumstance that the offence was committed for the benefit of a criminal organisation. That element of aggravation applies to both offences with which Mr Mackay is charged and evidentiary material provided on this application supports that pleading.
[1] Bail Act 1985 (SA) s 3A(1)(a).
Mr Mackay is an adult.[2]
[2] Bail Act 1985 (SA) s 3A(1)(b).
As to the third precondition, I am satisfied that Mr Mackay’s release on bail is likely to cause potential witnesses, in particular Mr Coulter, to reasonably fear for their safety.[3] Mr Coulter has deposed to the grave fears he holds. The fact that various protective measures have been taken for Mr Coulter do not in any way detract from the reasonableness of his fear. His fear is informed by his personal knowledge of the nature of the Nomads OMCG. Protective measures will not always be enough to give a sense of security to witnesses in Mr Coulter’s position.
[3] Bail Act 1985 (SA) s 3A(1)(c).
The fact that Mr Mackay is no longer a member of the Nomads might in some circumstances affect the reasonableness of the fear, but Mr Coulter has explained why he still fears for his safety. I accept his explanation.
In any event, it is notorious that former members of OMCGs may rejoin the same gang or associate themselves with similar organisations.
Length of time awaiting trial
Section 3A(2) of the Bail Act provides:
A determination by a bail authority that a person taken into custody on a charge of an offence is a serious and organised crime suspect ceases to apply after 6 months …
In a related provision, s 275(3) of the CLCA provides that:
(3)The Supreme Court and the District Court must make rules for expediting prescribed proceedings and, if there has been a determination by a bail authority under the Bail Act 1985 that the defendant in such proceedings is a serious and organised crime suspect, the trial of the matter must be commenced within the period of 6 months after the making of that determination, unless the determination ceases to apply or the Court determines—
(a) on its own initiative, that it is not reasonably practicable for the Court to deal with the matter within that period; or
(b) on application by the Director of Public Prosecutions or the defendant, that exceptional circumstances exist that justify the matter being set down for trial at a later date.
The first declaration that Mr Mackay was a serious and organised crime suspect has now lapsed. The Director of Public Prosecutions, correctly in my view, accepts that s 3A of the Bail Act confers a discretion not to make the order even though the preconditions are satisfied and that the lapse of time is a relevant consideration in that discretionary exercise.
The statutory provisions to which I have referred contemplate an expeditious trial. However, they do not contemplate that the trial will necessarily take place within six months of the first determination, because the first determination may be made on a bail application in the Magistrates Court. The rules contemplated by s 275(3) of the CLCA can only be rules made by the District Court or the Supreme Court and which apply after arraignment.
Nonetheless it is clear from the enactment of s 275(3) CLCA that the statutory purpose in providing for the lapse of a serious and organised crime determination after six months is to allow a review of bail, and in particular a reconsideration of the making of the determination which has the effect of reversing the presumption of bail, in the light of the progress of the prosecution.
On this application there is no allegation of undue or unreasonable delay by the Director of Public Prosecutions. The committal proceedings were conducted reasonably expeditiously even though they were longer than they might have been because the Information included charges against two interstate members of the Nomads with respect to offending alleged to have been committed at the oval of the Adelaide High School shortly before the cemetery offending with which Mr Mackay is charged. The alleged victim of those offences was also Mr Demir. Mr Demir subsequently withdrew his cooperation with police and, as a result, the charges against the interstate members of the Nomads were dismissed. Nonetheless, there is no reason to think the Director acted unreasonably in charging them. In particular, those charges were important precursors, and explained the motives for, the cemetery offending.
In considering whether or not to renew the serious and organised crime suspect determination, it is an important consideration that Mr Mackay was, on his own admission, the Sergeant at Arms of the Nomads. Detective Senior Sergeant Featherby’s declaration shows that the Sergeant at Arms is in charge of maintaining order and discipline at club meetings of OMCGs and responsible for enforcing the President’s orders. According to Detective Senior Sergeant Featherby, a Sergeant at Arms is integral to any aggressive activity directed towards other OMCGs.
Detective Senior Sergeant Featherby explains that OMCGs traditionally have a range of sanctions against members and prospects (or nominees) who fail to obey club policy or rules. These sanctions may include suspension, violence, or dismissal from the club. Expulsion from the club is likely to result in violence and the seizure of ‘colours’ and property (paraphernalia signifying club membership). The Sergeant at Arms is authorised to enforce those sanctions.
As Sergeant at Arms, therefore, Mr Mackay was a senior officer in an OMCG which, as Detective Senior Sergeant Featherby’s declaration explains, has the following objects and working methods:
1.     A strict code of silence throughout the entire membership;
2.     A culture and acceptance of violence applied internally and externally;
3.     Demonstrated loyalty to the club and its members;
4.A strict obedience to club hierarchy and rules that is enforced by monetary fine, expulsion and/or violence;
5.Disregard for established social norms and law enforcement authority;
6.Practices of intimidation towards the community and police;
7.A high percentage of members have history of criminal behaviour;
8.Use of sophisticated electronic equipment;
9.Counter surveillance is conducted and intelligence gathered against law enforcement and rival gangs; and
10.The cultivation and corruption of contact persons within key agencies and utilities.
The mischief to which s 3A(1) of the Bail Act is addressed is the risk to the administration of justice posed by the intimidatory conduct of OMCGs. Mr Mackay’s former senior position within the Nomads is a very weighty consideration in the exercise of the discretion it confers. That is particularly so because one of those risks is the use of various forms of coercion to dissuade witnesses from cooperating in prosecutions. A Sergeant at Arms of an OMCG accepts responsibility for, and thereby manifests a willingness to engage in, tasks of that kind.
I acknowledge that on a bail application the prosecution case is not yet proven and is therefore no more than an alleged case, however, the circumstances which led to the dropping of the charges against Mr Demir illustrate how fear of OMCGs may obstruct the administration of justice.
In this case the main prosecution witness, Mr Coulter, continues to be in fear, notwithstanding the protective measures to which I have referred. The very release on bail of someone, like Mr Mackay, who has held a senior position in an OMCG would, in itself, be reason for Mr Coulter and other witnesses to be concerned.
The fact that Mr Mackay is no longer a member of the Nomads is only of limited weight. It is notorious that members of OMCGs rejoin them or associate with other OMCGs.
For the reasons that, in summary:
·the time taken to prosecute Mr Mackay has not been unduly long;
·the prosecution has not been unreasonable;
·Mr Mackay held a senior role in the Nomads; and
·these offences go to the heart of Mr Mackay’s role and the lawless operations of OMCGs,
I make a determination that Mr Mackay is a serious and organised crime suspect.
Special circumstances
It is necessary, therefore, that Mr Mackay establish special circumstances if he is to be granted bail.[4]
[4] Bail Act 1985 (SA) ss 10A(1), 10A(2)(bb).
Mr Mackay has a history of offending from when he was about 14 years of age. The offences include assaults, damaging property, offensive language and minor licensing offences and drug possession. As an adult, he was sentenced to imprisonment for theft offences in 1997. Again in 2003 he received a suspended sentence for dishonesty offences. In 2005 Mr Mackay was convicted and fined for possession of a prohibited weapon, and in 2009 he was sentenced to a suspended term of imprisonment of three months for possessing a firearm without a licence. In 2012 he was convicted of importing a marketable quantity of a controlled drug and of importing a prohibited tier two item (a stun gun). One of the reasons given by Mr Coulter for fearing Mr Mackay is a belief that Mr Mackay has access to firearms.
Mr Mackay has proffered four guarantors; his mother, his aunt, his sister and his partner. Because of their modest means, the individual amounts of the guarantees are relatively small but in total would amount to something over $20,000. However, I am not satisfied that the amounts individually or in totality, or the influence which the proposed guarantors are likely to have over Mr Mackay, are sufficient to reduce the risks posed, and the apprehension of fear caused by his release, to constitute special circumstances.
For the above reasons, bail is refused.