R v RS - [2011] NSWSC 103

Supreme Court

New South Wales

Medium Neutral Citation: R v RS [2011] NSWSC 103
Hearing dates: 23/2/2011; 24/2/2011; 25/2/2011
Decision date: 28 February 2011
Jurisdiction: Common Law
Before: BUDDIN J
Decision:
The application for the review of the respondent's bail is refused

Catchwords: BAIL - Crown application for review - conspiracy to import commercial quantity and supply large commercial quantity of pseudoephedrine - presumption against bail - assessment of strength of Crown case - probability that respondent will attend court - factors relating to the protection and welfare of the community - inordinate delay in bringing proceedings to finality - respondent's conduct whilst at liberty on bail pending review
Legislation Cited: Bail Act 1978
Cases Cited: DPP v Basic [2008] NSWCA 361
Category: Principal judgment
Parties: Regina (Applicant)
RS (Respondent)
Representation:
Counsel:
G Bellew SC/P McGuire (Applicant)
G Turnbull SC/A Djemal (Respondent)
Solicitors:
Solicitor for Commonwealth Director of Public Prosecutions (Applicant)
Martin Green (Respondent)

File Number(s): 2008/250866

JUDGMENT

This is an application brought by the Director of Public Prosecutions (Cth) (the applicant) pursuant to Part 6 of the Bail Act 1978 for a review of a bail determination made by Magistrate Pierce in the Local Court on 24 December 2010. His Honour granted bail to the respondent upon the following conditions:

i To be of good behaviour;

ii To report to the officer in charge at Manly Police Station daily between 8.00 am and 8.00 pm;

iii To reside at [a specified address] and to be present within those premises between 8.30 pm and 6.00 am and to present himself to any police officer who calls to check his presence;

iv Not to associate with or in any way attempt to communicate with nor engage in any communication initiated by others and his co-accused or Crown witnesses or any Crown witnesses in [specified proceedings];

v Not to go within one kilometre of any point of overseas departure and not to leave Australia;

vi Not to apply for any new passport or travel documents during the currency of the bail; and

vii That four acceptable persons enter into an agreement or agreements, and deposit security, to forfeit the amount of $1 million in total if the accused fails to comply with the bail undertaking.

On 13 January 2011 Magistrate Huber varied conditions (ii) and (iii) so that the respondent is now required to report to Dee Why police station and to reside at a specified address in Warriewood.

The respondent is charged with the following offences:

(i) Conspiracy to import a border controlled precursor, namely a commercial quantity of pseudoephedrine between about 01/12/2005 and 25/09/2008.

(ii) Conspiracy to supply not less than the large commercial quantity of a prohibited drug namely pseudoephedrine between about 01/12/2005 and 25/09/2008.

(iii) Possess ammunition without holding a licence/permit/authority on 25 September 2008.

The maximum penalty for the first offence is imprisonment for 25 years and/or 5,000 penalty units, for the second offence it is imprisonment for life and/or 5,000 penalty units and for the third…

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 RS

Details

AGLC: R v RS [2011] NSWSC 103
Case: [2011] NSWSC 103
Decision Date: 28 February 2011

CaseChat Overview and Summary

The case of R v RS concerned a Crown application to review a bail decision made in respect of the respondent, who was charged with conspiracy to import and supply a commercial quantity of pseudoephedrine. The matter was heard in the Supreme Court of South Australia. The central issue before the court was whether the presumption against bail should apply, given the nature and seriousness of the charges, and whether the respondent was likely to attend court if released on bail. The court also needed to consider factors relevant to the protection and welfare of the community and the respondent's conduct while at liberty on bail pending the review.

The court noted that the presumption against bail was applicable due to the severity of the charges and the potential for significant harm if the respondent were to commit the alleged offences. However, the court was also required to assess the strength of the Crown's case against the respondent and whether there was a substantial prospect of conviction. The respondent's conduct while at liberty on bail was also considered, including whether it suggested a likelihood of reoffending or a failure to attend court. Additionally, the court examined whether the delay in bringing the proceedings to finality warranted any consideration in the bail assessment.

After weighing the various factors, the court concluded that the presumption against bail applied due to the seriousness of the charges and the potential harm if the respondent were to reoffend. The court found that the Crown had a strong case against the respondent, and there was a substantial likelihood of conviction. The respondent's conduct while at liberty on bail did not provide any grounds for altering the presumption against bail. Consequently, the court determined that the respondent should not be granted bail and the bail decision was revoked. The court emphasised the importance of bringing criminal proceedings to finality in a timely manner and the need to protect the community from the potential harm caused by the respondent's alleged offences.

Orders