R v NIEMANN

[2014] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v NIEMANN

[2014] SADC 38

Reasons of His Honour Judge Brebner

14 March 2014

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

Application for bail.

Held: Bail refused

Bail Act 1985 3A, 10A; Criminal Law Consolidation Act 1935 275(3), referred to.
R v Buhlman (2010) SASC 123; R v Lombardi (2013) SASC 63, applied.

R v NIEMANN
[2014] SADC 38

1. This is an application for bail. The applicant is charged along with five other men with aggravated causing serious harm with intent to cause such harm, aggravated robbery and participating in a criminal organisation.

2. The allegations and some of the anticipated evidence are succinctly summarised in the category notice and I will not stay to repeat it all.

3. Suffice it to say that the allegations are very serious.  The applicant and the other men will all be facing substantial sentences of immediate imprisonment if they are ultimately convicted. The temptation to abscond must thus be greater than it would otherwise be.

4. Pursuant to s.3A of the Bail Act 1985, (“the Act”) and on 19 July 2013, the committing magistrate declared that the applicant was a serious and organised crime suspect. The applicant thus became a prescribed applicant within the meaning of s.10A of the Act.

5. Counsel for the applicant submitted that the magistrate’s declaration should be cancelled or otherwise vacated. The question of whether I have the power to cancel the magistrate’s declaration thus arises.

6. Relevantly, s.3A(2) of the Act provides:

   A determination by a bail authority that a person taken into custody on a charge of an offence as a serious and organised crime suspect ceases to apply after six months if, at that time:  

   (a)the person has not been tried or is not on trial for the offence; and

   (b)the trial of the offence is not subject to a determination of the Supreme Court or the District Court under s.275(3) of the Criminal Law Consolidation Act 1935.’

7. Also relevantly, s.275(3) of the Criminal Law Consolidation Act 1935 provides:

   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 six 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 for the defendant, that exceptional circumstances exist that justify the matter being set down for trial at a later date.’

8. A section 275(3) determination has been made and the applicant’s counsel concedes that the magistrate’s declaration still stands.

9. The trial is listed to commence on 30 June 2014.

10. Neither the Bail Act nor the Criminal Law Consolidation Act confer any express powers on either this court or the Supreme Court to cancel declarations made pursuant to s.3A of the Act. If such a power is to be found, it must be by necessary implication.

11. Section 10 of the Act confers a discretion on a bail authority to grant or refuse bail. There is nothing in that section which by necessary implication confers any power on a bail authority to cancel or otherwise extinguish a declaration.

12. S.10A of the Bail Act deals with prescribed applicants such as this applicant. Again, there is nothing in s.10A which by necessary implication confers any power on a bail authority to cancel a declaration.

13. If Parliament had intended to confer any such power on a bail authority, one would have expected it to be found in either s.10 or s.10A of the Act. Moreover, the Second Reading Speech is consistent with it being Parliament’s intention not to confer any power to cancel declarations on any counts. I thus conclude that I have no such power. The magistrate’s declaration must stand.

14. The applicant thus remains a prescribed applicant, pursuant to s.10A(1) of the Act and so before he can be admitted to bail he must establish the existence of special circumstances justifying his release and, by evidence on oath or affidavit, he must establish that he has not been convicted of a serious and organised crime offence, or that he has not been convicted in any other jurisdiction of an offence which would have amounted to such an offence if he had committed it in South Australia.

15. The applicant has established the second of these pre-conditions.

16. “Special circumstances” for the purposes of s.A10(1) of the Act are not defined by the Act. The question of what amounts to such circumstances for these purposes was considered by Sulan J in R v Buhlman (2010) SASC 123 where, at [23], his Honour relevantly said:

    There are no words limiting the scope and meaning of special circumstances in s.10A of the Act. They should be given their ordinary meaning. They import a wide and flexible approach in determining whether an applicant has established special circumstances. There are a variety of circumstances which will justify concluding a person should be released on bail. The words of the section are not limiting. The section is to be interpreted having regard to the principle that a person charged with an offence is presumed innocent and should only be held in custody if they cannot establish special circumstances to be released.

17. In R v Lombardi (2013) SASC 61, Kourakis CJ revisited the question and said at para.24:

    Section 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough. Discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The discretion exists to allow the release on bail if those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen hardship or injustice. Obviously enough, a combination of circumstances when considered can amount to special circumstances.

18. In my view, the circumstances identified by counsel for the applicant do not, even in combination, amount to anything of the kind contemplated by the Chief Justice and Sulan J.  Indeed even in combination they are nothing out of the ordinary.

19. In particular, I disagree with counsel’s submissions that the prosecution case is weak and, that, at worst, the applicant was only on the periphery of any offences which might have been committed. I also disagree with his submission that the inference that a number of potential witnesses or people who might be able to assist the police with their inquiries are in fear cannot be drawn.

20. In any event, the combination of considerations militating against a grant of bail identified by counsel for the prosecution combine together so as to render the applicant what can best be characterised as an unconscionable bail risk.

21. The application is refused accordingly.