R v PG; R v Vettese
[2019] SASC 211
•12 December 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v PG; R v VETTESE
[2019] SASC 211
Reasons for Decision of The Honourable Justice Peek
12 December 2019
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - SERIOUS AND ORGANISED CRIME SUSPECTS
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - OTHER CASES
Application for review of two decisions to refuse bail and application for serious and organised crime suspect determination in respect of the applicant, PG.
PG and Vettese were jointly charged with one count of aggravated blackmail (Count 1) and one count of aggravated threaten to cause harm (Count 2). The complainant stated in his affidavit that, on 5 November 2019, he observed a vehicle arrive at his place of employment. PG and Vettese, together with their other two co-accused, Radomanski and Patterson, were in the vehicle. The complainant observed Radomanski exit the passenger side of the vehicle. Before Radomanski could speak to him, the complainant ran from the scene and was driven away by a friend. The complainant’s employer deposed in his affidavit to a conversation with PG in which PG stated that the complainant needed to “sort it out and pay off the debt”. The prosecution allege that the employer had acted as ‘agent’ for the complainant by receiving the alleged threat.
Held, dismissing the application for a serious and organised crime suspect determination and allowing the applications for review of bail:
1. An essential element of the charge of blackmail is proof of a ‘menacing’ in the sense of a threat being made at the time and place in the specified charge. It is strongly arguable that the words deposed to by the employer do not contain an express or implied threat to harm the complainant; and that while other words spoken by Radomanski to the complainant on previous occasion(s) might (or might not) have an evidentiary use, such cannot alter or enlarge the pleaded actus reus of the charge. There is a strong argument that Count 1 as presently pleaded has a quite low probability of success, at least as against PG and Vettese, and this is so in the present case notwithstanding the relevant decision of the High Court in Austin v The Queen (1989) 166 CLR 669 (not referred to by Counsel).
2. There is an equally strong argument in relation to Count 2.
3. The prosecution has not established that the discretion to declare PG a serious and organised crime suspect should be exercised in favour of the prosecution.
4. PG has established, by a narrow margin, that the cumulative effect of the relevant factors is that special circumstances exist justifying his release on Home Detention bail (on extremely restrictive conditions).
5. Vettese has also established the existence of special circumstances justifying his release on the usual Home Detention bail conditions.
Bail Act 1985 (SA) s 3A, s 10A, s 11; Criminal Law Consolidation Act 1935 (SA) s 5, s 19, s 83GC, s 171, s 172; Kidnapping Act 1960 (SA) s 3(1), referred to.
Austin v The Queen (1989) 166 CLR 669, discussed.
R v PG; R v VETTESE
[2019] SASC 211Reasons for Decision
PEEK J: Applications for review of two decisions to refuse bail.
Two applicants each apply for review of a Magistrate’s decision to refuse bail on joint charges concerning an incident which occurred on 5 November 2019. The application of PG was heard on 5 December 2019 when judgment was reserved. The separate application of Vettese was heard on 6 December 2019 when judgment was also reserved. In the case of PG (but not Vettese), there is a preliminary DPP application under s 3A(1) of the Bail Act 1985 (Bail Act) to be considered.
PART A: MATTERS COMMON TO BOTH APPLICATIONS
The offences are jointly charged against four persons PG, Patterson, Radomanski and Vettese (alphabetical order) as follows:
1.On the 5th day of November 2019 at SALISBURY PLAIN in the said State, menaced [the complainant][1] by an unwarranted threat to harm him, intending to get the said victim to submit to a demand that he pay moneuy [sic] namely $90000 [sic].
[1] The words ‘the complainant’ are substituted for the name which here appears.
Section 172(1) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence in company with one or more other persons, the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence, and in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation.
This is a Major indictable offence.
2.On the 5th day of November 2019 at SALISBURY PLAIN in the said State, without lawful excuse threatened to cause harm to [the complainant] and intended to arouse a fear that the threat would be carried out, or was recklessly indifferent as to whether such a fear was aroused.
Section 19(2) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence in company with one or more other persons, the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence, and in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation.
This is a Major indictable offence.
As to Defendant Christopher John RADOMANSKI
3.Between the 1st day of March 2019 and 31st day of March 2019 at SALISBURY PLAIN and another place in the said State, menaced [the complainant] by an unwarranted threat to harm him, intending to get the said victim to submit to a demand that he give the accused his 1967 Chrysler VE Valiant … .
Section 172(1) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence in company with one or more other persons.
This is a Major indictable offence.
Facts and circumstances pertaining to both applications
The facts and circumstances include the following. The complainant deposes in his affidavit:
6.At about 10.20 a.m. on Tuesday 5th November 2019, I was working at … . I have been employed with them for around two (2) years.
7.I was working on a car in the workshop when I saw a Red Hatchback pull into the garage. I saw a bloke get out passenger side of the vehicle I’m not sure if it was the front or rear and I recognised him as Chris RADOMANSKI, he was wearing black t-shit [sic] and he had something colourful around his neck and is in his mid 30’s with white skin, a medium build and blondish/fair hair. I have known Chris for about 6 years and know him through a friend of mine. I have been to his house a couple of times in PARA HILLS and have seen him at other car workshops and we used to party sometimes together. I had stopped seeing him around 4or 5 years [sic] ago because I wanted to try and sort my life out. I knew it wasn’t going to be good him being there so I flexed, which means ran, out of the workshop through the showroom and out the front door. I heard someone say “Where are you going?”, but by that time I had already ran out the door and to the street. I saw a guy I know who works in area and is a friend, he was just driving out of the driveway as he had just been to see my boss’s car. I jumped in his car and said “just go”. He drove off through the back streets of Brahma Lodge and I rang triple zero for police to come to the workshop. I can’t really remember what else I said to my friend as I was on the phone to the police.
The complainant then proceeds to recount in some detail his previous association with Chris Radomanski, and particularly Radomanski’s assertions to him in recent times that he was owed money by the complainant.
It is to be noted that Count 1 refers to an amount of $90,000. This amount appears only in the affidavit of the complainant’s employer (the employer) and not in the proposed evidence of the complainant. After referring to the events leading to the complainant running off, the employer deposes in his affidavit:
8. Whilst this was happening, I stayed in the workshop with [PG] as he spoke to me about the reasons why they had come to the store and also why they were after [the complainant].
He said,“[The complainant] owes money to Chris and he needs to pull his head in, sort it out and pay off the debt.”
I said,“What’s the debt for?”
He said,“It was for a Mercedes Benz and about $16,000 in cash.”
9. Moments later the 3 guys who were initially chasing [the complainant] returned, one of which was Chris, I am unsure of what Chris’s surname is.
10. Whilst speaking to [PG], Chris interrupted and added his peace [sic] to what was being said.
He said, “You might as well make that $90,000 now.”
11. I continued my conversation with [PG] as he wanted to address the matter with me.
He said, “I’ve got respect for you, this is why I’m coming to you.”
I said, “Yes likewise.”
He said, “You’ve got to sort this out with him.”
I said, “What do you want me to do?”
He said, “Tell him that he needs to do what he needs to do. I will come back later to see you.”
12. Following this all 4 guys jumped back into the vehicle and reversed back and out of the workshop. I am unaware of the direction they left in or where they would have gone. [Emphasis added]
PART B: PG’S APPLICATION FOR BAIL
PG is a prescribed applicant under s 10A(2)(d)(iii) of the Bail Act because he is charged with an offence contrary to Criminal Law Consolidation Act 1935 (CLC Act) s 172 and accordingly he must establish that there are special circumstances such that he should be granted bail. However, before considering his contention that he is able to establish such special circumstances, it is necessary first to consider the preliminary matter of the DPP application for a “Serious and Organised crime suspect determination” pursuant to s 3A(1) of the Bail Act because, if such an order were made in this case, it would effectively preclude PG from establishing special circumstances.[2]
THE DPP APPLICATION FOR A “SERIOUS AND ORGANISED CRIME SUSPECT DETERMINATION” PURSUANT TO S 3A(1) OF THE BAIL ACT
[2] Section 10A(1a)(a) of the Bail Act would apply since PG has a previous conviction for an offence of being present with two or more criminal organisation participants contrary to CLC Act s 83GC. (A Magistrate imposed a sentence of four months seven days imprisonment to be served on Home Detention).
The making of such an order is within the discretion of the Court but three conditions precedent must be satisfied by the DPP before that jurisdiction arises.
Does the jurisdiction arise?
The three conditions precedent are:
(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.
Condition (a): The person has been charged with a “serious and organized crime offence”
A “serious and organised crime offence” is defined by CLC Act s 5 thus:
serious and organised crime offence means—
(a) an offence against Part 3B; or
(b) an offence that—
(i) is punishable by life imprisonment; or
(ii) is an aggravated offence against a provision of this, or any other, Act,
if it is alleged that the offence was committed in the circumstances where—
(iii) the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or
(iv) in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation);
There are two sequential questions to be considered. First, is either of paragraphs (a), (b)(i) or (b)(ii) applicable? If yes, is either of paragraphs (b)(iii) or (b)(iv) applicable?
The answer to question one is in the affirmative because, although paragraph (a) of the definition is inapplicable,[3] paragraph (b)(ii) is applicable since both Counts 1 and 2 are “aggravated offences” within the meaning of that provision.
[3] Neither of Counts 1 or 2 is an offence against Part 3B.
The answer to question two is also in the affirmative because the prosecution alleges in each of Counts 1 and 2 that the offence was committed in circumstances which correspond with the circumstances set out in paragraph (b)(iv). It is important to note that the requirement in paragraph (b) is that certain matters are “alleged” rather than proven. Of course, the word “alleged” should be construed to mean alleged on the face of the Information; and in the present case the prosecution has alleged on the face of the Information in each of Counts 1 and 2 that the offence was committed in circumstances which correspond with the circumstances set out in paragraph (b)(iv).
I conclude (and PG does not dispute) that Condition (a) is satisfied.
Condition (b): The person was not a child
PG concedes through his counsel that Condition (b) is satisfied.
Condition (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
There is ample material before this Court to satisfy Condition (c) and it is appropriate to say no more than that in these proceedings.
Accordingly, I find that the three conditions precedent to jurisdiction are satisfied such as to enliven the jurisdiction (and discretion) to make the order sought by the DPP.
What is the appropriate exercise of discretion?
I now proceed to consider the appropriate exercise of the discretion.
The submissions for the applicants
Mrs Shaw QC, Senior Counsel for PG, submitted that the evidence before this Court positively establishes that the complainant saw the red Audi vehicle carrying four men (PG, Thomas Patterson, Christopher Radomanski and Michael Vettese) arrive at the premises and he immediately ran off. Some of the men attempted to follow him but soon returned to the premises because the complainant had got into a car that happened to be standing nearby outside with an acquaintance of his sitting in the driver’s seat; and they rapidly decamped the scene. This all happened very quickly indeed; so quickly that no threat or demand was made before the complainant decamped (if indeed it had been intended to make one).
This submission came as no surprise to prosecution counsel; the matter had been explicitly drawn to the attention of the prosecution by PG’s solicitor, Mr Barbaro, in his affidavit filed on 27 November 2019, well before the hearing of the first application on 5 December 2019. He there deposed:
14. It was submitted by counsel that the offence of blackmail was not made out at law.
15.In particular, a demand had not been made to the complainant and as a consequence, the charge was doomed to fail.
16.Counsel complained that the Facts of Charge were inconsistent on crucial aspects of the Crown case including:
i. The witnesses do not describe observing a weapon;
ii. Several of the witnesses do not observe the suspects wearing masks.
17.There is nothing contained within the material disclosed from the prosecution to establish knowledge of a plan to threaten to cause harm.
18.Critically, the complainant has decamped before the appellant has left the vehicle and as such, he has not had cause to menace or make a demand. These are elements that the prosecution must prove beyond a reasonable doubt. Exhibited hereto and marked “FB1” is a true copy of the Facts of Charge.
19.To the contrary, the brief of evidence is wholly consistent with a fleeting confrontation that did not involve blackmail.
20.Accordingly, the charges will be vigorously defended.
The essential point now made by Senior Counsel is that, as the complainant states in the extract from his affidavit reproduced above, his decision to run away was due to him recognising Chris Radomanski, a person with whom he had been having some problems. She submits that while it may be that the complainant thought that Chris Radomanski was there to ask him for money, there is a complete absence of evidence sufficient to establish a necessary element in each of the two Counts as they are pleaded.
The submissions for the prosecution
By the time of the application by Vettese on the following day, 6 December 2019, prosecution counsel had come to the following position as against both applicants:
MS DIAMANDI: … Prosecution submit that in this matter, the demand is made to the witness [the employer] essentially as an agent for the complainant who has, by that stage, left the workshop.
We submit that the circumstances in which that occurred establish that the demand was made with menaces. There can be an implied threat and we can submit -
HIS HONOUR: Can you just take me to where I find this particular demand you’re talking about?
MS DIAMANDI: … The Exhibit marked MK3 and that’s the statement of [the employer] and on p.2 at para.8, the witness describes the conversation that he had with one of the co-accused in relation to Chris, being the complainant, needing to pay a debt. Prosecution submit that that is the demand that's made to pay them money and it's the circumstances in which that occurred which constitutes the threat.
…
MS DIAMANDI: As submitted, we say that it is a demand when it’s [viewed] in the circumstances in which it's occurred.
HIS HONOUR: A demand to whom?
MS DIAMANDI: To the witness [the employer] as an agent of the complainant.
HIS HONOUR: What’s he supposed to do? He's merely told that someone else owes some money. He’s not being asked to come up with anything.
MS DIAMANDI: No, he’s not but he’s, we say, an agent for the complainant.
HIS HONOUR: Since when is he an agent for the complainant? Who says that?
MS DIAMANDI: In the circumstances in which it occurs. … Agent in the sense to send the message back to the complainant that ‘You need to pay that money’ …
Consideration
I now turn to each of the Counts in order to consider the above submissions in more detail.
Count 1: Criminal Law Consolidation Act 1935 s 172
Sections 171 and 172 of the CLC Act provide as follows:
Part 6B—Blackmail
171—Interpretation
(1) In this Part—
demand includes an implied demand;
harm means—
(a)physical or mental harm (including humiliation or serious embarrassment); or
(b) harm to a person's property (including economic harm);
menace—a person who makes a threat menaces the person to whom the threat is addressed (the victim) if—
(a)the threat is a threat of harm to the victim or a third person (to be inflicted by the person making the threat or someone else); and
(b) the threat is unwarranted; and
(c) either—
(i)the threat would be taken seriously by a reasonable person of normal stability and courage; or
(ii)the victim in fact takes the threat seriously because of a particular vulnerability known to the person making the threat;
serious offence means an offence punishable by imprisonment;
threat includes an implied threat but, unless the threat is a threat of violence, does not include a threat made in the course of, or incidentally to—
(a) collective bargaining; or
(b) negotiations to secure a political or industrial advantage;
unwarranted—a threat is unwarranted if—
(a)the carrying out of the threat would (if it were carried out in the State) constitute a serious offence; or
(b) the making of the threat is, in the circumstances in which it is made—
(i) improper according to the standards of ordinary people; and
(ii)known by the person making the threat to be improper according to the standards of ordinary people.
(2) The question whether a defendant's conduct was improper according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.
172—Blackmail
(1) A person who menaces another intending to get the other to submit to a demand is guilty of blackmail.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 20 years.
(2) The object of the demand is irrelevant.
Examples—
1The person who makes the demand may be demanding marriage or access to children.
2The person who makes the demand may be seeking to influence the performance of a public duty.
Count 1 charges a contravention of CLC Act s 172. The charge as particularised clearly necessitates proof that, “on the 5th day of November 2019 at Salisbury Plain in the said State, the defendant menaced [the complainant] by an unwarranted threat to harm him …”.
The verb ‘menace’ is in effect a synonym for ‘threaten’. Thus, the Shorter Oxford Dictionary defines ‘menace’ as:
Menace (me·năs), v. ME. [- AFr manasser, OFr. menacier (mod. menacer) :- Rom. *minaciaire, f. L. minacia; see prec.] 1. trans. To hold out menaces against; to threaten. 2. intr. To utter menaces; to be threatening ME. 3. trans. To threaten to inflict ME. 4. To use threateningly. MILT.
And the Macquarie Dictionary defines ‘menace’ as:
menace /'mεnəs/, n., v., -aced, -acing. -n 1. something that threatens to cause evil, harm, injury, etc.; a threat. 2. Colloq. → nuisance. – v.t. 3. to utter or direct a threat against; threaten. 4. to serve as a probable cause of evil, etc., to. [ME, from OF, from L minācia a threat] -menacer, n. -menacingly, adv.
The decision of the High Court in Austin v The Queen
It is a well-known principle of the criminal law that the actus reus and the mens rea must coincide. In the present case, the Information charges only an offence which is committed at the premises of the complainant’s employer on 5 November 2019. With respect, the submission by counsel for the DPP (unencumbered as it was by the citation of any authority) concerning a novel type of ‘agency’ in the criminal law was unpersuasive.
However, it is rather unfortunate that no counsel referred the Court to the decision of the High Court in Austin v The Queen[4] which is highly relevant here. That case does not deal with so-called ‘agency’ but rather with the correct construction of legislation. The facts are adequately summarised by the editor of the Commonwealth Law Reports thus:
On 26 November 1986 a man telephoned a television station in Adelaide and said that a letter making a threat had been left in a particular telephone box. The letter was collected by the police and read in part as follows: “This is to warn you that the Pope will be attacked unless the State Government does the following: 1. Order all prisoners keep in police cells to be take to Adelaide Gaol, A.R.C., this is to be done by 12 p.m. on 28.11.86. This is to be shown on T.V. news. 2. The State Government (Blevins) is to grant pay rises to all prisoners of $20, this is to be done by 29.11.86 again T.V. news. 3. Remove a number of prison officers from A.R.C. A list will be given to you … ” Bradley Wayne Austin was charged with having demanded money with threats contrary to s. 3(1) of the Kidnapping Act 1960 (S.A.). He elected to be tried by judge alone pursuant to s. 7 of the Juries Act 1927 (S.A.). The judge found that Austin had written the letter and placed it in the telephone box, and he was convicted. He appealed to the Full Court on grounds which included the ground that there was no evidence that the demand contained in the letter was ever communicated to Mr. Blevins, the Minister of Correctional Services, to whom it was alleged in the particulars of the charge to have been made. By majority (King C.J. and Jacobs J., Cox J. dissenting) the appeal was dismissed. Austin applied for special leave to appeal to the High Court confined to the question whether a demand within the meaning of s. 3(1) had to be communicated to the person to whom it was directed. [Emphasis added]
[4] (1989) 166 CLR 669.
I add that the Pope was then visiting, or was about to visit, South Australia and that it was accepted that there was no evidence that the demand was communicated to Mr Blevins. The relevant charge was there laid under the Kidnapping Act 1960 s 3(1) which then provided:
Any person who without reasonable and probable cause directly or indirectly and whether by letter, writing, word of mouth or any other medium whatsoever demands any property, chattel, money, valuable security or other valuable thing of any person with menaces or threats in relation to the life, health, safety, security or well-being of the person from whom the demand is made or of any other person or to the safety or security of the property real or personal of either such person shall be guilty of felony and liable to be imprisoned for life.
The Court stated:[5]
Whilst it is clear that there can be more than one view of the meaning of the words “demands … of any person”, it is, we think, in accordance with the ordinary usage of language to regard a demand as having been made at a point short of its actual communication to the person to whom it is directed. To do so is neither to conceive of the demand in an abstract form nor to use the word proleptically. Of course, a requirement, however peremptory, cannot amount to a demand unless it is made with the intention that it should be conveyed or communicated to the person to whom it is directed and in circumstances which are apt to achieve that end. A message put to sea in a bottle or a request shouted to the four winds cannot, except in the most extraordinary circumstances, amount to a demand of any person. On the other hand, a demand advertised in a newspaper may, even in the absence of actual communication, amount to a demand made of a person if the advertisement is an apt means of bringing the demand to the attention of that person.
…
… It is the behaviour of the offender in making a demand with menaces or threats which is the gist of the offence and not actions or events over which the offender may have no control. There are, of course, crimes in which the actus reus is incomplete until certain consequences occur as a result of the offender's conduct. Murder by shooting or poisoning, where death is the consequence of the offender's act, are examples. But where the definition of an offence can be construed either to include or to omit the consequences of the offender's act as an element of the offence, the immediacy of the consequences and their subjection to supervening events or actions are material to the construction to be placed upon the definition. Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence. [Emphasis added]
[5] (1989) 166 CLR 669, 674–675 (Brennan, Deane, Dawson, Toohey and McHugh JJ).
Of course, the charge in Austin was “demanding money etc with menaces or threats”, thus requiring not just a demand but a demand accompanied by menaces and/or threats. In Austin the demand clearly was accompanied by menaces and/or threats (“the Pope will be attacked unless the State Government does the following”).
In the present case, CLC Act s 172 provides that “A person who menaces another intending to get the other to submit to a demand is guilty of blackmail”; and the charge is particularised thus: “on the 5th day of November 2019 at Salisbury Plain in the said State, the defendant menaced [the complainant] by an unwarranted threat to harm him …”. Clearly, the centrepiece of this charge is that the defendants “menaced”.
I suppose that the prosecution case in this regard might be put on two different bases. The first is that the circumstances surrounding the arrival of the red Audi at the employer’s premises on 5 November 2019 at Salisbury Plain made out the particularised charge. Here I think that the submissions of Mrs Shaw QC would have to be accepted and it appears that the prosecution do not press this first alternative.
The second basis is that the actus reus is constituted by what was said to the employer well after the complainant had left the scene and it appears that the prosecution wish to adopt this alternative. This was expressed in terms of “agency”, but that will no doubt change to the words expressed by the High Court in Austin as the significance of that decision is appreciated.
However, a problem for the prosecution remains that “menacing” is the centre point of both the offence in s 172 of the CLC Act and the particularised charge in Count 1. If it is sought to sheet home that element of “menacing” by relying on a conversation with the employer (which it is hoped will be relayed by him to the complainant), it seems to me that it would be necessary for that conversation to be of a distinctly menacing or threatening nature.
In my view, it is strongly arguable that the words deposed to by the employer do not contain an express or implied threat to harm the complainant; and that while other words spoken by Radomanski to the complainant on previous occasion(s) might (or might not) have an evidentiary use, such cannot alter or enlarge the pleaded actus reus of the charge.
I consider that there is a strong argument that Count 1 as presently pleaded has a quite low probability of success, at least as against PG and Vettese. In the absence of full considered submissions by counsel with reference to authorities, I will not go further and decide whether or not the presently particularised charge is “foredoomed to fail”.
Count 2: Unlawful threat
Count 2 is an alternative to Count 1 and charges a contravention of CLC Act s 19(2) which provides as follows:
(2) A person who—
(a) threatens, without lawful excuse, to cause harm to another; and
(b) intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 7 years;
(c) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years.
(3)This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.
(4) In this section—
harm, in relation to a person, has the same meaning as in section 21.
It is submitted by the applicant that this charge is also foredoomed to fail for very similar reasons to those applying to Count 1. Again, without coming to a concluded view, I consider that again there is a strong argument that Count 2 as presently pleaded has a quite low probability of success, at least as against PG and Vettese.
In all of the circumstances, I am not persuaded by the prosecution that I should exercise my discretion in their favour and make the order sought. I decline to do so.
PART C: CONCLUSION ON PG’S APPLICATION FOR BAIL
As already noted, PG is a prescribed applicant under s 10A(2)(d)(iii) of the Bail Act because he is charged with an offence contrary to CLC Act s 172 and accordingly must establish that there are special circumstances such that he should be granted bail.
It is well established that special circumstances may be constituted by the combination of a number of factors. I turn to the relevant factors here.
I accept that the charges are serious, and the more so because it is alleged they were carried out as a joint enterprise by four men together, two of whom (PG and Patterson) were members of the Hells Angels with Radomanski and Vettese having associated with several members of the Hells Angels “North Crew”. For present purposes, I am prepared to accept in favour of the prosecution that it can be demonstrated that the Hells Angels OMCG is in fact a criminal organisation.
The evidence before me is that PG obtained full membership of the Hells Angels OMCG on or about 5 January 2016 and remained a full member as at 5 November 2019, and presumably remains a full member as at the present date.
I am told that PG’s date of birth is 24 September 1986 and he is therefore 33 years old at the present time. His most serious set of convictions appear to have been as a child for Attempted Robbery and Aggravated Robbery In Company; these were dealt with by the Children’s Court in April 2005 and he received a bond. Very shortly thereafter, in May 2005, he was dealt with as an adult in the Magistrates Court and received a suspended sentence of 18 months imprisonment with a 10-month non-parole period for Aggravated Serious Trespass. Since then he has had a number of less serious convictions and only three involving sentences of imprisonment. The first sentence was on 23 November 2015 when a Magistrate dealt with some five separate convictions of Driving Under Suspension and imposed a sentence of three months’ imprisonment to be released on a bond after serving five weeks’ imprisonment. The second was on 16 May 2019 when he was convicted of an offence of Fail To Comply With Bail Agreement and a Magistrate imposed a sentence of seven days’ imprisonment, suspended upon entry into a bond to be of good behaviour for twelve months. The third was on 12 June 2019 when he was convicted of two counts of Being Present With Two Or More Criminal Organisation Participants contrary to CLC Act s 83GC and a Magistrate imposed a sentence of four months seven days imprisonment to be served on Home Detention.
It is not a good record but it is certainly not the worst of criminal records. There is no particular reason to think that PG would not answer bail and appear at Court when required to do so.
However, prosecution counsel makes a number of valid points. First, the fact that he has some six offences of Driving Under Suspension and four convictions for Fail To Comply With A Bail Agreement shows that he cannot be trusted to obey the orders of the Courts and to that extent he may be a poor candidate for bail. Secondly, he has a history of illicit drug use and the latest Home Detention Compliance Report (10 December 2019) indicated that he has had two positive drug tests, the first for cannabis and the second for both cannabis and amphetamines; these are matters which also reflect adversely on his suitability for Home Detention. However, it is fair to add that the Home Detention Compliance Report (10 December 2019), while complaining that PG is not infrequently late for reporting conditions, did recognise that he “showed good compliance as there are no deviations noted whilst the defendant was out on a pass issued by his assigned officer”. It concludes that the defendant “has showed reasonable compliance through his Home Detention order/supervised order despite failing to report on time”. Thirdly, he remains a full member of the Hells Angels OMCG, which he knows to be a criminal organisation; as such, he is not to be trusted generally. Fourthly, the complainant is in genuine fear of the Hells Angels and associates thereof and one cannot rule out some degree of risk that PG, if released on bail, might in some way participate in intimidation of the complainant.
However, giving full weight to the factors militating against a finding of special circumstances and against the granting of bail in the present case, I consider that there are quite serious problems with the prosecution case having regard to the form of the charges selected. I must emphasise that these problems are not limited to matters of credibility or reliability of prosecution witnesses,[6] but rather they involve difficulties in proving the elements of the charged offences when the prosecution evidence is taken at its highest. For the reasons stated above, the nature and extent of this problem here is highly unusual and is a strong factor militating in favour of a finding of special circumstances.
[6] Although there may well be problems of that sort in due course.
PG also advances matters of personal circumstances in two major areas. First, his partner with whom he has a young child stated in her affidavit as follows:
2.I confirm that I am prepared to act as guarantor in relation to [PG’s] release on bail, should the court so require.
3.I do not have any criminal antecedents nor do I have current pending court matters.
4.I am employed part-time at … completing bookwork up to two (2) days per week.
5.I have been in a relationship with [PG] since 2016.
6.I understand [PG] has been charged with blackmail and threaten to cause harm. I acknowledge these are serious allegations which usually call for a term of imprisonment upon conviction.
7.We had our first child, a son, born 16 January 2018. He is now 22 months old.
8.Since having our son, I have struggled with post-natal depression and received treatment for this condition.
9.[PG] has significantly helped with managing my post-natal depression.
10.With the exception of [PG] and on the rare occasion, his mother, I have no other familial support.
11.Further, our son has severe behavioural issues as diagnosed by his paediatrician, Dr Pouras of North Adelaide.
12.Whilst he is not prescribed any medication, he is prone to prolonged emotional outbursts and self-harm (for example, purposely running into fixed objects and hitting himself in the head with his hand).
13.Our son has always responded well to [PG’s] discipline and [PG] has always been able to comfort and control his behaviour much better than I can.
14.These are critical years of our son’s development and if remanded in custody, [PG] will not be able to build upon the paternal bond with our son.
15.Since being remanded in custody, I have struggled at times to maintain discipline, in part due to the difficulty of doing it alone, but also because of my health issues.
16.Further, I have been dependent upon [PG’s] added income to service the home loan and pay day to day bills and expenses for our son.
17.Whilst I have some savings, I fear the house payments will fall into arrears if [PG] is remanded in custody.
18.I am completely aware of [PG’s] antecedents, including prior convictions for breaching bail.
19.I support [PG’s] release on home detention bail and understand the strict conditions that may be imposed.
20.As [PG] has children and property in the State of South Australia, he would not in my view be a flight risk.
21.I would not be risking financial hardship if I did not genuinely believe [PG] would comply with his bail obligations.
22.I am prepared to lodge a cash surety in the sum of $10,000 with the knowledge it is at risk of being forfeited if [PG] breaches his bail agreement.
Secondly, his counsel submits that PG (who is not serving any other sentence) has been transferred to Yatala Labour Prison while on remand, apparently as an administrative rather than a punishment measure. He has been placed in G Division. An extremely harsh regime there prevails and counsel sought to tender an affidavit by her instructing solicitor concerning this matter. Prosecution counsel was specifically asked as to her attitude to the affidavit and whether, if it were to be admitted, she wished to cross-examine. She consented to its admission and declined to cross-examine. The relevant portion is as follows:
2.Since my client’s arrest I have, as noted in my diary, attended upon him in custody at the Adelaide Remand Centre (“ARC”) on the following occasions:
i. 12 November 2019;
ii. 20 November 2019; and
iii. 25 November 2019.
3.On each of the above occasions I observed my client to be in good health and adequately managing the strictures of a custodial environment.
4.On Friday 28 November 2019 I received information that my client was being transferred from the ARC to the Port Augusta Prison (“PAP”).
5.Shortly thereafter I issued a request that he remain at the ARC given his pending bail review and I was informed that he would be held at the ARC.
6.I subsequently received information that my client was already en route to the PAP and as such could not be returned to the ARC until Tuesday 3 December 2019.
7.My client was transferred to the Yatala Labour Prison on Tuesday 3 December 2019 and since that time has remained in G Division.
8.I have been advised that my client is not being held in G Division as punishment for his behaviour.
9.I attended upon my client at about 2:00pm on Wednesday 4 December 2019.
10.I observed my client to be visually distressed and withdrawn which caused me to have serious concerns for his mental health.
11.My client informed me as follows:
i. Upon his arrival he was repeatedly told by guards that his uncle had been murdered, which I have been advised is false. This has only compounded my client’s distress.
ii. He has been kept in his call for twenty-four (24) hours per day and not had contact with other prisoners.
iii. He has been released from his cell only briefly to make a telephone call and for my professional visit with him.
iv. The lighting in his cell is automated for extended periods of time, commencing at 5:00am.
v. He does not have access to reading material, a radio or television.
vi. He does not have access to food, bar three (3) basic cold meals per day.
vii. He is required to scrub clean the stainless-steel fixtures, including toilet, basin and bed, several times per day with a handkerchief as and when directed.
12.I know the facts deposed to herein of my own knowledge except where otherwise appears.
While it is unknown how long it is proposed to keep PG in G Division, it is clear that charges before the Court will be tried in the District Court but are presently only in the early stages of the committal process in the Magistrates Court; a trial will not be reached for a considerable period of time.
I find that, by a narrow margin, the cumulative effect of all of the above factors is that special circumstances are established. I will grant bail to PG but on extremely restrictive conditions. In this regard, I will include some of the same conditions that would be imposed by dint of s 11(2aa) of the Bail Act were that provision to be applicable.[7]
[7] I emphasise that these conditions are adopted in the exercise of my general discretion and are not imposed by any operation of s 11(2aa) of the Bail Act.
PART D: VETTESE’S APPLICATION FOR BAIL
The DPP does not apply for a “Serious and Organised crime suspect determination” pursuant to s 3A(1) of the Bail Act in relation to Vettese.
However, Vettese is also a prescribed applicant under s 10A(2)(d)(iii) of the Bail Act because he is charged with an offence contrary to CLC Act s 172 and accordingly must establish that there are special circumstances such that he should be granted bail.
Counsel for Vettese makes the same submission concerning special circumstances as that of PG concerning the charges being foredoomed to fail.
In fact, Vettese’s position is stronger than that of PG for several reasons. It is not suggested that Vettese is a member of the Hells Angels OMCG, but that he has associated with several members of the Hells Angels “North Crew”. The CCTV footage appears to show that he did not leave the red Audi until after the complainant had commenced to run from the workshop. He was not wearing any Hells Angels paraphernalia on the subject occasion and is not referred to in any of the witness statements as saying or doing anything specific. The CCTV footage shows Vettese exit the righthand side of the vehicle, walk around the front of the vehicle before moving briskly to the rear of the vehicle, but he never appears to break into a run and is always visible within the premises of the workshop. It is not suggested that he had any previous dealings with the complainant whatever. There does not appear to be any evidence that he was aware of any previous dealings between Radomanski and the complainant. He took no part in the conversation with the employer.
I am told that Vettese’s date of birth is 3 July 1993 and he is therefore 26 years old at the present time. He has a minor criminal record only, with no imposition of custodial or non-custodial imprisonment. He has no previous history of breaches of bail. He has been working for an employer on a casual basis and now has a written offer for permanent employment from that same firm which he wishes to accept. If granted bail, he proposes to live in a house which is on the same block of land as, and only a short distance away from, the separate house in which his mother and father live. They are people with no criminal record and are prepared to be guarantors for their son and support him.
I find that the cumulative effect of the evidence before me is that special circumstances are established. I will grant bail to Vettese on the usual Home Detention conditions and without the more restrictive conditions applicable to PG.
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