R v Tamas - [2017] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v TAMAS
[2017] SASC 12
Reasons for Ruling of The Honourable Justice Blue
14 February 2017
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Bail Review.
Application by Director of Public Prosecutions for review of Magistrate’s decision making serious and organised crime suspect determination but finding special circumstances justified the respondent’s release on home detention bail.
On 27 May 2006, the respondent poured petrol on the front fence of the victim’s house and set it alight. The fence was made of corrugated iron and damage to the value of about $500 was allegedly caused. The defendant was arrested and charged with arson and participating in a criminal activity of a criminal organisation.
On 22 June 2016, on a review of a Magistrate’s decision to grant bail, a Judge of the Supreme Court made a serious and organised crime suspect determination and refused bail.
On 22 December 2016, the serious and organised crime suspect determination lapsed because no trial had commenced, the respondent not yet having been committed for trial.
On 6 February 2017, a Magistrate made a fresh serious and organised crime suspect determination and granted home detention bail, finding that special circumstances justified the respondent’s release on bail.
Held:
1. Observations concerning the serious and organised crime suspect regime (at [23]-[30]).
2. Taking into account the expiration of the original serious and organised crime suspect determination as a result of the prosecuting authorities not having taken steps to expedite committal in the Magistrate’s Court, the relatively low gravity of the offending for offences of the type charged, the time the respondent would otherwise spend in custody until his trial and the respondent’s personal circumstances, the discretion should be exercised against making a fresh serious and organised crime suspect determination (at [43]-[49]).
3. Taking into account the same matters, there would be special circumstances justifying the grant of bail if a fresh serious and organised crime suspect determination were made (at [57]-[60]).
4. The respondent should be released on home detention bail conditions (at [61]).
5. Orders by Magistrate set aside. Respondent released on new home detention bail conditions (at [61]).
Bail Act 1985 (SA) s 3A, s 10A, s 11, s 14(2)(a), s 15A; Criminal Law Consolidation Act 1935 (SA) s 83E, s 85, s 275; District Court Criminal Rules 2014 (SA) r 23, r 25A; Supreme Court Criminal Rules 2014 (SA) s 23, s 25A, referred to.
R v Cekic, R v Dettman, R v Niemann [2014] SASC 132, discussed.
R v Buhlmann [2014] SASC 123, considered.

R v TAMAS
[2017] SASC 12
Bail Review
BLUE J:

This is an application by the Director of Public Prosecutions for review of a Magistrate’s decision whereby the Magistrate made a serious and organised crime suspect determination but released the respondent on home detention bail.
Background
On 27 May 2016, the respondent Daniel Tamas was arrested and charged with two offences allegedly committed on that date. Count 1…

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 Tamas

Details

AGLC: R v Tamas [2017] SASC 12
Case: [2017] SASC 12
Decision Date: 14 February 2017

CaseChat Overview and Summary

The Director of Public Prosecutions filed an application for review of a decision made by a Magistrate to grant bail to the respondent, Daniel Tamas, on home detention conditions. Tamas was arrested on 27 May 2016 and charged with two major indictable offences: arson and participation in a criminal organisation. The respondent was released on home detention bail by the Magistrate, despite the Director of Public Prosecutions opposing bail and seeking a serious and organised crime suspect determination. The Director applied for a review of the Magistrate's decision to grant bail to Tamas.

The legal issues before the court were whether the Magistrate had erred in granting bail to Tamas, and whether the Magistrate had correctly applied the relevant criteria under the Bail Act 1985 (SA). The Director argued that Tamas should not have been granted bail because he was a serious and organised crime suspect, and the risk of reoffending was high. The respondent, on the other hand, submitted that the Magistrate had correctly exercised his discretion in granting bail, and that the evidence did not support a serious and organised crime suspect determination.

The court held that the Magistrate had exercised his discretion correctly in granting bail to Tamas. The court found that the evidence did not support a serious and organised crime suspect determination, and that the Magistrate had appropriately considered the relevant factors in deciding to grant bail. The court held that the risk of reoffending was not so high as to preclude bail, and that the conditions of home detention bail were sufficient to mitigate any risk of reoffending. The court further found that the Magistrate had appropriately considered the seriousness of the offences and the evidence in deciding to grant bail.

The court dismissed the application for review and upheld the Magistrate's decision to grant bail to Tamas on home detention conditions.

Orders

Orders of the court

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Background

Background to the litigation

This is an application by the Director of Public Prosecutions for review of a Magistrate’s decision whereby the Magistrate made a serious and organised crime suspect determination but released the respondent on home detention bail. Background On 27 May 2016, the respondent Daniel Tamas was arrested and charged with two offences allegedly committed on that date. Count 1 is arson, namely that the respondent intentionally by fire damaged a building.[1] Count 2 is that, by damaging the property, he knowingly or recklessly participated in a criminal activity of a criminal organisation.[2] Both counts are major indictable offences.[1] Criminal Law Consolidation Act 1935 (SA) section 85(1).[2] Criminal Law Consolidation Act 1935 (SA) section 83E(3). The prosecution case on count 1 is that the respondent, in company with another person, attended at a house property, poured petrol on the front corrugated iron fence and set it alight, thereby causing damage to the value of about $500. The respondent admits the physical element of the offence but does not admit that the fence comprises a “building” within the meaning of the Criminal Law Consolidation Act 1935 (SA) (the Criminal Law Act) or the mental element of intention to cause damage. The prosecution case on count 2 is that the victim in May 2016 resigned from a particular crew of the Hells Angels Motorcycle Club; the respondent was a member of that crew; the victim on 19 May 2016 made postings on social media derisory of the leadership of the crew; the crew was angry with the victim as a result; the respondent was appointed Sergeant-at-Arms of the crew on 24 May 2016; and that the respondent committed the act the subject of count 1 for and on behalf of the Club. The prosecution case is that the incident on 27 May 2016 was preceded by two earlier incidents, namely throwing of a Molotov cocktail at the victim’s house on 20 May and a drive by shooting of the house on 22 May, each of which was performed for and on behalf of the Club, although it is not alleged that the respondent participated or was complicit in those earlier incidents. If the respondent committed the offence the subject of count 1 for and on behalf of the Club, and particularly if it were committed in the knowledge of the two earlier incidents, this would be an aggravating factor if he is convicted of count 1. In addition, the respondent was on bail and subject of a bond requiring him to be of good behaviour at the time and this would also be an aggravating factor if he is convicted of count 1. I assume that counts 1 and 2 are alternatives and that count 2 is the primary count with count 1 being an alternative if the prosecution fails to prove the necessary connection between the act and the Club. Even if that is not so, in a practical sense the two counts are alternatives because the respondent would not stand to be sentenced cumulatively for each count given the overlap between them. On 30 May 2016, the respondent appeared in the Adelaide Magistrates Court and applied for bail, which was opposed. On 3 and 17 June 2016, the Magistrate heard submissions concerning bail, during the course of which the Director applied for a serious and organised crime suspect determination.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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