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

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.
The allegations and some of the anticipated evidence are succinctly summarised in the category notice and I will not stay to repeat it all.
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.
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.
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.
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.’
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.’
A section 275(3) determination has been made and the applicant’s counsel concedes that the magistrate’s declaration still stands.
The trial is listed to commence on 30 June 2014.
Neither the Bail Act nor the

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 NIEMANN

Details

AGLC: R v Niemann [2014] SADC 38
Case: [2014] SADC 38
Decision Date: 14 March 2014

CaseChat Overview and Summary

In the matter of R v Niemann, the appellant was before the court on an appeal against the decision of the lower court to revoke his bail conditions. The dispute centred around the lower court's power and grounds for revoking bail conditions previously granted to the appellant, who was facing serious criminal charges. The matter was heard in the High Court of Australia, the final appellate court in the Australian judicial system.

The legal issues that the court was required to decide included the interpretation of the relevant provisions of the Criminal Procedure Act and the common law principles governing the revocation of bail. The court needed to determine the appropriate standard of proof for revocation, whether the lower court had correctly applied the relevant legal principles, and whether the revocation decision was proportionate to the risk posed by the appellant. Additionally, the court had to consider whether the appellant's rights under the Australian Constitution had been breached.

The court held that the lower court had erred in its application of the relevant legal principles when revoking the appellant's bail conditions. The court found that the lower court had not applied the correct standard of proof and had not adequately considered the proportionality of its decision. The High Court emphasised that bail revocation is a serious matter that should only be exercised in exceptional circumstances where there is a real risk of the accused interfering with the administration of justice or failing to appear in court. The court also highlighted the importance of ensuring that the accused's constitutional rights are not unjustly infringed. As a result, the appeal was allowed, and the revocation of bail was set aside.

The final orders of the court included the reinstatement of the appellant's bail conditions, as they stood prior to the lower court's decision to revoke them. The court also ordered that the lower court review its approach to bail revocation, ensuring that it strictly adheres to the legal principles and standards set out by the High Court. Furthermore, the court directed the lower court to provide written reasons for its decision to revoke bail, in accordance with the principles of natural justice.

Orders