Re Baker
[2013] QMC 17
•21 November 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Baker, Re [2013] QMC 17
PARTIES:
BRADLEY MAURICE BAKER
(applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)
FILE NO/S:
MAG223598/13(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Interlocutory application, Re an application for Bail
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
21 November 2013
DELIVERED AT:
Southport
HEARING DATE:
15 November 2013, 19 November 2013, 21 November 2013
MAGISTRATE:
COSTANZO JJ
ORDER:
Pursuant to practice direction 21 of 2013, the contested bail application made at Southport by Bradley Maurice Baker is adjourned to court no. 20 at the Brisbane Magistrates Court
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE - BAIL — Contested bail applications — Participant in a criminal organisation — Practice Direction — Whether Practice Direction valid or binding on Magistrates — Threshold issue “is defendant a participant in a criminal organisation?” — Whether threshold issue must be decided, before Practice Direction applies to bail application.
LEGISLATIVE
PROVISIONS
CONSIDERED
Acts Interpretation Act 1954, s 14B
Bail Act 1980, s 8, s 9, s 15A, s 15B, s 16
Criminal Code, s 60A, s 597C
Criminal Organisations Act 2009
Justices Act 1886, s 22B, s 23C, s 23E, s 23EC, s 139
Justice and Other Legislation Amendment Act 2013
Magistrates Act 1991, s 12, s 41 and Practice Direction No. 21 of 2013, Chief Magistrate (Qld), 4 November 2013
CASES CITED
Asmar, Bail application [2005] VSC 487
Da Silva v Director of Public Prosecution; Da Silva v Director of Public Prosecution; Spence v Director of Public Prosecution [2013] QSC 316
Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413
Neale, Re an Application for Bail [2013] QSC 310
Spence v Queensland Police Service [2013] QMC 14
Williamson v Director of Public Prosecutions [2001] 1QdR 99
OTHER SOURCES CITED
Mack K. and Anleu S.R.: The Administrative Authority of Chief Judicial Officers in Australia (2004) 8 Newcastle Law Review 1
Oxford Dictionary of English, online edition
Oxford Thesaurus of English, Second Edition
Record of Proceedings (Hansard), Legislative Assembly of the Parliament of Queensland, 15 October 2013
COUNSEL:
M Gatenby (solicitor) for the applicant
D Summerfield (sergeant) for the respondent
SOLICITORS:
Gatenby Criminal Lawyers for the applicant
Respondent on own behalf
Background
Bradley Maurice Baker is charged with three charges:
1.“That on the 13th day of November 2013 at Main Beach in the State of Queensland one Bradley Maurice BAKER being a participant in a criminal organisation namely the motorcycle club known as the Mongols was knowingly present in a public place namely (sic) public foyer area of Palazzo Versace with two or more other persons namely James William CLEAVE and Leslie Andrew MARKHAM who were participants in a criminal organisation namely the motorcycle club known as the Mongols.”
2.“That on the 13th day of November 2013 at Main Beach in the State of Queensland one Bradley Maurice BAKER unlawfully had possession of a dangerous drug namely Alprazolam.” It is alleged he possessed four full and four pieces of tablets of XANAX.
3.“That on or about the 13th day of November 2013 at Main Beach in the State of Queensland one Bradley Maurice BAKER received tainted property namely a quantity of Australian property and had reason to believe the property was tainted property.” It is alleged he had $5705.40 in his bum bag.
If convicted on these charges the penalties are:
For charge 1: a minimum penalty of six months imprisonment to be served wholly in a corrective services facility and a maximum of three years imprisonment.
For charge 2: a maximum penalty of 15 years imprisonment.
For charge 3: a maximum penalty of seven years imprisonment.
It is the laying of the first of these charges (the one with the least maximum penalty) which caused Mr Gatenby, solicitor of the Defendant, to raise the issues upon which I must rule.
The issues
The issues raised are:
1.Whether Practice Direction 21 of 2013 (the PD) issued by the Chief Magistrate on 4 November 2013 is valid, and binding on me.
2.If the PD is valid, whether there is a threshold issue which I must decide at Southport namely, whether the defendant is presently, as a question of fact, a participant in a criminal organisation, before the PD applies (that is, applies to require the contested bail application to be listed in Court 20 in the Brisbane Magistrates Court).
The Practice Direction
Practice Direction 21 of 2013 is headed “Contested Bail Applications” but it does not apply to all contested bail applications. The first six paragraphs state:
“1. This Practice Direction governs any contested application for bail to which s 16(3A) of the Bail Act 1980 (Q) (the Act) applies. It relates to any such application in Queensland that has not yet been set down for hearing.
2. As from the date of publication of this Practice Direction, unless the Chief Magistrate otherwise orders in the interests of justice, all bail applications to which this Practice Direction applies, will be listed for hearing in Court 20, in the Brisbane Magistrates Court, not before 2:30pm. No more than 2 (two) applications may be listed on one day.
3. The Office of the Director of Public Prosecutions Office will represent the Crown in all such applications.
4. At the first mention, the parties should be ready to provide the court with an estimate of time required to be ready to proceeding to hearing. An adjournment of a s 16(3A) application of more than 7 (seven) days should not be sought by the prosecution except with the applicant’s consent.
Purpose
5. The primary object of this Practice Direction is to give practical expression to ss 15(1) and 16(1A) of the Act so as to ensure that, the hearing is ready to proceed as fairly as possible without needless delay and on the best available material.
6. Ancillary purposes include: listings management, proper preparation and presentation by all parties, reducing the cost implications for the Office of the Director of Public Prosecutions (ODPP), and increasing security for all.”
The remaining paragraphs from 7 to 17 are about disclosure by the Queensland Police Service, provision of evidence by way of affidavit and provision of written submissions to the court to which matters are adjourned in Brisbane.
The First Issue: Is the Practice Direction valid and binding?
Mr Gatenby said his client is applying to me for bail. The application is disputed. The prosecution allege section 16 (3A) of the Bail Act is the subject of the disputed bail application and that the PD requires an adjournment of the application to be heard and determined in court 20 in Brisbane.
Mr Gatenby, for the defendant, submitted that I am bound by the Bail Act and not by the PD. He submitted further that the PD is invalid or unreasonable. He submitted the Bail Act is exhaustive as to “what can and can’t be done” with respect to bail hearings.
Reference was made to the following sections of the Bail Act:
Section 6: Definitions, in particular
court includes—
(a) a judge or justice, whether sitting in court or acting in another way; and
(b) a court exercising appellate jurisdiction; and
(c) a justice or justices conducting an examination of witnesses in relation to an indictable offence; and
(d) a justice acting under section 15A.
...
criminal proceeding includes a hearing, trial or appeal in relation to an offence.
…
hearing means a proceeding before a court or judge or before any justice or justices dealing summarily with a charge of a simple offence or conducting an examination of witnesses in relation to an indictable offence or a proceeding wherein a person is to be sentenced and includes a proceeding wherein a person is charged with an offence on indictment whether or not the person has been called upon to plead to that indictment.
…
participant, in a criminal organisation, see the Criminal Code,
section 60A.
Section 8(1)(a):
Power of court as to bail
(1) A court, subject to this Act—
(a) may grant bail to a person held in custody on a charge of or in connection with an offence if—
(i) the person is awaiting a criminal proceeding to be held by that court in relation to that offence; or
(ia) the court is a Magistrates Court and the person is awaiting an appeal under the Justices Act 1886, section 222 to be held in the District Court; or
(ii) the court has adjourned the criminal proceeding; or
(iii) the court has committed or remanded the person in the course of or in connection with a criminal proceeding to be held by that court or another court in relation to that offence
Section 9:
Duty of court to grant bail in certain cases
Where a person held in custody on a charge of an offence of which the person has not been convicted appears or is brought before a court empowered by section 8 to grant bail to the person in relation to that offence, the court shall, subject to this Act, grant bail to that person or enlarge or vary bail already granted to the person in relation to that offence.
The defendant may, under section 8, be awaiting a criminal proceeding to be held by this court in relation to the offences charged but that does not mean the bail application and the trial must be conducted by the same Magistrate. Section 9 is the section which, generally, gives a defendant a right to be granted bail. It is the default position. The starting point is that there is a presumption in favour of granting bail unless an Act requires otherwise, as in section 16 of the Bail Act itself. Mr Gatenby submits the court referred to in these sections must be the same court throughout.
The making of a bail application in one court does not always result in the hearing and determination of that application by the same court. The court may be differently constituted. In the Southport Magistrates Court it is often the practice, consistently with the Bail Act, that an application can be made in court 2, the arrest and remand court, before one magistrate, and then the application is adjourned, because the prosecution or the defence need more time, to the following week when another magistrate is sitting in court 2. Provided the first magistrate has not begun to hear and determine the application on its merits it can be adjourned, and often is, to another “court”. The definition of “court” in the Bail Act is inclusive and not exhaustive. The reference to “that court” can be taken to include the originating magistrates court or a court of the Magistrates Court of Queensland. See section 22 of the Justices Act 1886 under which the Magistrates Court is continued in existence.
See also section 8 of the Magistrates Act 1991 which provides:
“A magistrate may exercise, throughout the State, all the jurisdiction, powers, and functions conferred on a magistrate … by or under any law of the State”
This submission fails.
Mr Gatenby submitted further that section 15A is the only section which allows a Magistrate in another district to hear a bail application made in this district.
It is only relevant and necessary to quote the first three subsections:
15A Applications for bail in special circumstances
(1) This section applies if—
(a) a police officer has refused to grant bail to a person under section 7 for an offence; and
(b) a Magistrates Court is authorised under this Act to grant bail to the person for the offence; and
(c) having regard to all the circumstances, the person may not reasonably or practicably be brought personally before a court to apply for bail because of the person’s remote location.
(2) The person may apply to a magistrate for bail for the offence by telephone, radio or by another form of communication (a remote communication device).
(3) The application may only be made when—
(a) the magistrate is constituting a Magistrates Court; or
(b) the court registry where the magistrate usually constitutes the court (the relevant court registry) is open for business.
There is no merit in this submission. Section 15A simply explains the sole circumstances in which a bail application can be made by a remote communication device such as a telephone, fax or radio for a defendant or police officer in a remote location.
The submission also relied on section 15B(1)(d).
Section 15B provides:
Application for bail by remote communication device outside district or division
(1) This section applies if—
(a) a police officer has refused to grant bail to a person under section 7 for an offence; and
(b) a Magistrates Court is authorised under this Act to grant bail to the person for the offence; and
(c) having regard to all the circumstances, the person may not reasonably or practicably be brought personally before a court; and
(d) a practice direction made by the Chief Magistrate provides for the making of an application for bail if the circumstances mentioned in paragraphs (a) to (c) apply.
(2) An application for bail may be made under section 15A whether or not that section would otherwise apply, to a magistrate constituting a Magistrates Court outside the district or division in which the application would otherwise be required to be made.
(3) However, section 15A(6) does not apply to the deciding of the application.
(4) The application must comply with the practice direction.
(5) In this section— district means a district appointed under the Justices Act 1886 for the purposes of a Magistrates Court. division means a division appointed under the Justices Act 1886 for the purposes of a Magistrates Court.
It is submitted that this is the only permitted practice direction the Chief Magistrate may make for the Bail Act. I do not accept this submission. The section merely sets out one type of specific practice direction the Chief Magistrate can make to make section 15A workable and to ensure the resources will be available at given times to take applications from remote locations. For this purpose section 23 EC of the Justices Act 1886 is also relevant.
Section 23 EC provides:
Magistrate for other district or division authorised to grant bail may also adjourn a hearing for offence
(1) This section applies if an application for bail is made under the Bail Act 1980, section 15A, as applied under section 15B of that Act, to a magistrate constituting a Magistrates Court (the bail court) for a district or division outside the district or division in which the application would otherwise be required to be made.
(2) At the hearing, the magistrate, as well as deciding the application for bail, may—
(a) adjourn the proceeding for the offence to a stated time and place; or
(b) adjourn the proceeding without stating a time and place, and order that the time and place be decided by a Magistrates Court, whether or not the bail court, for a stated district or division.
This section is dealing with the adjournment of the criminal proceeding for the offence back to the originating court or to another place after an application for bail is made outside the district or division in which the application would otherwise be required to be made.. The fact that an application for bail is made or required to be made in a certain district or division does not mean that it must be wholly heard and determined within that district or division.
Mr Gatenby also referred to section 22B of the Justices Act 1886:
22B Magistrates Courts districts
(1) The Governor in Council may make regulations with respect to—
(a) the appointment of districts, and divisions of districts, for the purposes of Magistrates Courts; and
(b) the names of districts and divisions; and
(c) the appointment of places for holding Magistrates Courts within districts and divisions; and
(d) the transfer of proceedings, matters, documents, records and accounts from one Magistrates Court to another.
While this section does appear in part 3 (Jurisdiction) of the Justices Act it gives the Governor in Council power to make regulations about the transfer of proceedings and matters from one Magistrates Court to another. The Magistrates Act, section 12, on the other hand gives the Chief Magistrate the power to make directions. I deal with these further below.
Mr Gatenby, also made reference to section 23C of the Justices Act 1886. I find nothing helpful in that section which deals with the venues for hearing complaints of a simple offence or breach of duty which is determined subject to section 139 and according to decentralised magistrate courts districts and divisions.
Finally, Mr Gatenby referred to section 23E of the Justices Act 1886, which provides:
23E Court or justices may adjourn within or outside district
(1) Notwithstanding the provisions of this Act or any other Act a court or justices sitting for any purpose at a place within a district may, in order to carry out such purpose, sit at any other place within such district or within an adjoining district and may, from time to time (whether before or after entering upon the purpose for which such court or, as the case may be, justices are then sitting)—
(a) adjourn the proceeding to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties then present or of their respective lawyers or agents then present; or
(b) adjourn the proceeding and leave the time and place at which the proceeding is to be continued to be later determined by such court or, as the case may be, justices.
(1A) However, a proceeding so adjourned shall not be continued at a time and place so determined unless the court or, as the case may be, justices are satisfied that the parties or their respective lawyers or agents have been given reasonable notice of such determination.
(2) Upon such an adjournment the court or, as the case may be, justices may exercise in respect of a defendant to a complaint any of the powers which the court or justices might exercise in respect of a defendant upon an adjournment under this Act apart from this division.
I see nothing in this section to say that is the exclusive method by which a matter may be adjourned to another district. The word “may” in subsection (1) is purposive and permissive and not exclusive. It gives the court a discretionary power. It does not say the court must adjourn matters only in the ways stated.
The Magistrates Act, section 12, on the other hand gives the Chief Magistrate (since 29 August 2013, with the assent to the Justice and Other Legislation Amendment Act 2013) the power to make directions as follows:
(a)deciding the magistrates who are to constitute the Magistrates Courts at particular places appointed under the Justices Act 1886, section 22B(1)(c) or who are to perform particular functions; and
(b)giving directions about the practices and procedures of Magistrates Courts; and
(c)deciding the magistrates who are to exercise the jurisdiction and powers of Magistrates Courts in particular matters or particular classes of matters; and
(d)allocating the functions to be exercised by particular magistrates and deciding when and where the functions are to be exercised; and
(e)deciding the days, places and times for constituting Magistrates Courts; and
(f)nominating a magistrate to be a supervising magistrate or a coordinating magistrate for the purpose of allocating the work of Magistrates Courts; and
(g)nominating a Deputy Chief Magistrate to act as the Chief Magistrate under section 14(b); and
(h)giving directions to an acting magistrate or acting judicial registrar about when the person is to carry out the duties of office of a magistrate or judicial registrar during the person’s period of appointment.
These are very broad and sweeping powers. See Kathy Mack and Sharyn Roach Anleu: “The Administrative Authority of Chief Judicial Officers in Australia” (2004) 8 Newcastle Law Review 1 at 2 where the authors noted that “an examination of legislation and case law relating to the authority of chief judicial officers discloses significant differences between the authority of Chief Magistrates in comparison with the authority of Chief Justices and Chief Judges of the higher courts. The authority of Chief Magistrates tends to contain more specific powers, and to be less constrained by formal obligations of consultation or by powers of collective decision making vested in the members of the court acting as a whole.” Since the amendment of s 12(2) of the Magistrates Act this year the powers of the Chief Magistrate have been vastly widened compared with what they were in 2004.
However, provided there is nothing inconsistent between the PD and any Act passed by Parliament or any regulation made by the Governor in Council the PD is binding on me unless it is unreasonable. No such regulation has been cited to me.
Section 41(1) of the Magistrates Act provides:
Functions of magistrates generally
Every magistrate must comply with every reasonable direction or requirement given or made to the magistrate by the Chief Magistrate or by another magistrate authorised in that behalf by the Chief Magistrate.The PD itself, although it adds a layer to the determination of bail applications, appears to be binding on the face of it because it appears to be made within the bounds of that which is permitted under section 12 of the Magistrates Act. It is for others to determine if it is necessary or desirable.
Validity of the PD
I express no concluded view as to whether the PD is invalid. As I am here concerned with issues of jurisdiction, no law or authority was cited to me about any jurisdiction I may have to determine if the PD is invalid. Instead of answering my question as to what my jurisdiction is to determine the validity of the PD, Mr Gatenby submitted that I should instead ask myself whether to follow the PD would exceed my jurisdiction. Mr Gatenby submitted that although the Chief Magistrate has power to issue practice directions, he is constrained and confined by the legislative basis provided in the Bail Act and that it is the Bail Act that sets out the relevant procedures for the determination of all bail applications.
This submission ignores the opening lines of section 12(2) of the Magistrates Act 1991:
“Subject to this Act and to such consultation with magistrates as the Chief Magistrate considers appropriate and practicable, the Chief Magistrate has power to do all things necessary or convenient to be done for ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts, including, for example—”
While the PD does not disclose what consultation with magistrates the Chief Magistrate considered appropriate and practicable or what consultation occurred, if any, I do not have the jurisdiction, or the power to rule on the validity of the PD.
Mr Gatenby also submitted that the law in the Bail Act and Justices Act must take precedence over the PD which merely facilitates a procedure. This is a correct statement but there is nothing in the PD which conflicts with, or attempts to extend, the operation of the Bail Act.
Mr Gatenby further submitted that the Chief Magistrate only has power to direct the filing of affidavits in this district, that is: the types of directions he made at paragraphs [7] to [17] of the PD. The plain words of section 12(2)(b) and (c) just quoted above plainly do not support that submission.
In conclusion, I am bound by the PD.
The Second Issue: If the Practice Direction is binding is there a threshold issue for my determination before the Practice Direction applies, namely whether the applicant is a participant in a criminal organisation?
Mr Gatenby submits that at best, if the PD is valid and binding, then according to the terms of the first paragraph of the PD I am bound to adjourn the bail application to Brisbane only if I have determined that the defendant is (presently) a participant in a criminal organisation. He submits that if I find the defendant is not a participant in a criminal organisation then I must continue to hear and determine the remainder of the bail application.
The Bail Act
It is important to understand that under the Bail Act in Queensland, a person charged with an alleged criminal offence has a prima facie right to bail. See section 9. Only the Bail Act provides for exceptions to that rule. See section 16.
Section 9 provides:
“Duty of court to grant bail in certain cases
Where a person held in custody on a charge of an offence of which the person has not been convicted appears or is brought before a court empowered by section 8 to grant bail to the person in relation to that offence, the court shall, subject to this Act, grant bail to that person or enlarge or vary bail already granted to the person in relation to that offence.”
Section 16 relevantly provides:
“Refusal of bail
(1) Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied—
(a) that there is an unacceptable risk that the defendant if released on bail—
(i) would fail to appear and surrender into custody; or
(ii) would while released on bail—
(A) commit an offence; or
(B) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
(C) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
(b) that the defendant should remain in custody for the defendant’s own protection.
(1A) Where it has not been practicable to obtain sufficient information for the purpose of making a decision in connection with any matter specified in subsection (1) due to lack of time since the institution of proceedings against a defendant the court before which the defendant appears or is brought shall remand the defendant in custody with a view to having further information obtained for that purpose.
(2) In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—
(a) the nature and seriousness of the offence;
(b) the character, antecedents, associations, home environment, employment and background of the defendant;
(c) the history of any previous grants of bail to the defendant;
(d) the strength of the evidence against the defendant;
(e) if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about— (i) the defendant’s relationship to the defendant’s community; or (ii) any cultural considerations; or (iii) any considerations relating to programs and services in which the community justice group participates.
(3) Where the defendant is charged—
(a) with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence; or
(b) with an offence to which section 13 applies; or
(c) with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or
with an offence against this Act; or
(e) with an offence against the Criminal Organisation Act 2009, section 24 or 38[1]; or
(f) with an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2);
the court or police officer shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified and, if bail is granted or the defendant is released under section 11A, must include in the order a statement of the reasons for granting bail or releasing the defendant.
(3A) If the defendant is a participant in a criminal organisation, the court or police officer must—
(a) refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified; and
(b) if bail is granted or the defendant is released under section 11A—
(i) require the defendant to surrender the defendant’s current passport; and
(ii) include in the order a statement of the reasons for granting bail or releasing the defendant.
(3B) If the defendant is required to surrender the defendant’s current passport under subsection (3A)(b)(i), the court or police officer must order that the defendant be detained in custody—
(a) until the court or police officer is satisfied about whether the defendant is the holder of a current passport; and
(b) if the defendant is the holder of a current passport—the passport is surrendered.
(3C) For subsection (3A), it does not matter whether the offence with which the defendant is charged is an indictable offence, a simple offence or a regulatory offence.
(3D) Subsection (3A) does not apply if the defendant proves that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.
(4) In granting bail in accordance with subsection (3) or (3A) a court or police officer may impose conditions in accordance with section 11.
…”[1] Persons charged under the Criminal Organisation Act 2009, section 24 (Contravention of control order or registered corresponding control order) and section 38 (Contravention of public safety order) are not covered by the Practice Direction No 21 of 2013 even though such persons may have already been found to be, or to have been, a member or associate of a criminal organisation under either section 18 or 28 respectively.
On a plain ordinary grammatical reading of these sections every defendant is entitled to bail (with or without conditions) unless bail must be refused under section 16. If either section 16 (3) or 16(3A) do not apply, then the prosecution must prove under section 16(1) that the person is an unacceptable risk or needs to be held in protective custody. If either section 16(3) or 16(3A) does apply then the onus shifts to the defendant to show that continued detention is not justified, that is: the defendant must satisfy the court that he or she is not an unacceptable risk. No grant of bail is totally risk free. Therefore, another way of putting it is that if subsection (3A) applies to the applicant he must satisfy the court he is an acceptable risk (at least that takes out the double negative).
“Participant in a criminal organisation”
In the Bail Act, section 6 (Definitions) participant, in a criminal organisation, has the meaning given to that term in the Criminal Code, section 60A.
The Criminal Code, section 60A provides.
participant, in a criminal organisation, means—
(a) if the organisation is a body corporate—a director or officer of the body corporate; or
(b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the organisation; or
(c) a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation; or
(d) a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or
(e) a person who takes part in the affairs of the organisation in any other way;but does not include a lawyer acting in a professional capacity.
Under the Criminal Code (Criminal Organisations) Regulation 2013, section 2, the motorcycle club entity known as the Mongols is declared to be a “criminal organisation” for the Criminal Code, section 1, definition criminal organisation, paragraph (c). It is a deeming provision.
In Neale, Re an Application for Bail [2013] QSC 310 at [14] North J considered
“… that the prosecution has available to it a body of evidence, assuming it can be proven in an admissible form, capable of proving to the requisite standard words or conduct on the part of the applicant on or after 17 October 2013 where he asserted or declared or advertised his membership of or association with the “motor cycle club known as the Rebels” or words or conduct whereby he sought to be associated with that organisation.”
Not having cited the Neale decision, the prosecution in this case adopted the position, nevertheless consistent with this statement from Neale’s case, of tendering an affidavit, not for the purpose of proving to me that the defendant is a participant in a criminal organisation, but only to show me that there is a live issue raised under s 16(3A) as to whether the defendant is a participant in a criminal organisation. Sgt Summerfield submitted that the prosecution merely has to allege the defendant is a participant in a criminal organisation for section 16(3A) to apply to the bail application and that the only requirement is that the application will involve section 16(3A). He said that all I need to know is that the material alleges the argument before the court will be about participation in a criminal organisation. He submitted the affidavit of Lynton Raymond Bradbury is meant to comply with the PD.
The affidavit shows that the police rely on CCTV footage as evidence that the defendant, a 26 year old man from Western Australia, attended the Palazzo Versace hotel in the company of two other motorcycle club members while sporting a baseball cap and a tattoo on his face. Both contained the words “Mongol MC”.
Sgt Summerfield also stated that if I decide the issue of participation in a criminal organisation is one for me to decide then the prosecution will seek to have the matter “stood down” and then the would prepare a evidence and a submission to help the court determine the issue. However he also pointed to the intended role of the DPP in paragraphs [3] and [6] of the PD.
Comparison: s 16(3) and s 16(3A)
In Da Silva v Director of Public Prosecution; Da Silva v Director of Public Prosecution; Spence v Director of Public Prosecution [2013] QSC 316 Wilson J said that both section 16(3) and section 16(3A) are referred to as show cause provisions.
At pages 4 to 5 her Honour held:
“The wording of section 16(3A) can be contrasted with that of section 16(3). Subsection (3) looks to past conduct; it requires the making of an allegation about past conduct. Subsection (3A) on the other hand requires proof of a fact.
In construing subsection (3A) it is proper to start by giving the words their plain meaning. It is expressed in the present tense. On its plain meaning it refers to someone being such a participant at the time of the application.” (my underlining)
Under subsection (3) a defendant is placed in a show cause situation by being charged with any one of six listed categories of offences, e.g. murder. The allegation in the charge of murder is that A unlawfully killed B. The laying of that charge places such a defendant in a show cause situation without requiring proof by the prosecution that A unlawfully killed B. However, following her Honour’s decision in Da Silva, when a defendant is alleged to be a participant in a criminal organisation the prosecution must first prove that allegation as a fact before subsection (3A) applies to him.
In Neale, Re an Application for Bail [2013] QSC 310 at [9] North J considered
“The curiosity of s 16(3A) is that it does not specify the offence or offences with which a participant in a criminal organisation might be charged that the provision is to apply. This tentative view seems to be reinforced by s 16(3C) which appears to be intended to have effect that s 16(3A) is to apply whether a defendant is charged with an indictable offence, a simple offence or a regulatory offence.”
Regulatory offences includes offences like shoplifting.
Therefore, in Queensland, on an application for bail, any citizen charged with murder and any citizen who is proved to be a participant in a criminal organisation charged with shoplifting each have to show cause why their detention in custody is not justified. However, one might expect that in many cases that onus would more easily be discharged in the later case than the former.
The test at the end of the day
However, at the end of the day the test to be applied is the same: “Is the person an unacceptable risk?” In Asmar, Bail application [2005] VSC 487 Maxwell P was considering a similar provision of the Bail Act 1977 (Victoria), section 4, which provided that if a defendant has been charged with indictable offences in the course of committing which he or she is alleged to have used or threatened to use a firearm “the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified." At [11], [12] Maxwell P held:
“11. In my view, the question – the only question – for the Court on an application to which s 4(4) applies is:
"Has the applicant shown cause why his/her detention in custody is not justified?"
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. (The contrast with the two-step approach which is required in an "exceptional circumstances" case is considered below).
12 This does not mean that the "unacceptable risk" issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.”
By way of contrast, in the same Victorian Bail Act there are provisions which require, in some circumstances, that a defendant must show “exceptional circumstances” to justify his or her release from custody. At [18] Maxwell P held:
“18. The one-step approach required by s.4(4) may be contrasted with the two-step approach which has been held to be required where s.4(2)(a) or s.4(2)(aa) applies, that is, where the Court must refuse bail unless satisfied that –
"exceptional circumstances exist which justify the grant of bail."
This Court has consistently held that, once the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused – in accordance with s.4(2)(d) – if the prosecution establishes unacceptable risk.”
In Neale, Re an Application for Bail [2013] QSC 310 at [10] North J noted
“Both counsel submitted, correctly in my view, that in considering the applicant’s application to show cause why his continued detention in custody was not justified attention should focus upon the matters specified in s 16(1) of the Bail Act 1980 and other relevant discretionary considerations, namely the strength of the prosecution case and the time that might elapse between the application and when the defendant might stand his trial which have been identified in a number of cases binding upon myself.” Williamson v Director of Public Prosecutions [2001] 1QdR 99; Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413.
Under section 16(1) the court must be satisfied (whether it is the prosecution or the defence that carries the onus of proof) that the defendant either is or is not an unacceptable risk that the defendant if released on bail—
1.would fail to appear and surrender into custody; or
2.would while released on bail commit an offence, or endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare, or would interfere with witnesses or otherwise obstruct the course of justice.
Therefore, the need to find that a person is a participant in a criminal organisation before subsection (3A) shifts the onus to the defendant, is an added layer of complexity to the Bail Act in Queensland which appears to do nothing to change the ultimate test of whether the applicant is an unacceptable risk.
While hearing Mr Gatenby and Sgt Summerfield in this matter, I said it is not as if the legislature had chosen to go down the same path as in some other Australian States where in some circumstances the defendant has to show “exceptional circumstances” before he or she can be released from custody. At the end of the day the test here is still whether the defendant is an unacceptable risk under s16. It was for these reasons that I asked on the first day of the hearing of this application for further submissions. Subsection (3A) is new and the parties are obliged to assist the court with authorities and submissions. Not one case was cited by either party as authority for any proposition. As this judgment shows there is already a body of jurisprudence on the subject.
I sought further submissions to assist with the interpretation and purpose of section 16(3A). I referred to the possible need to access the second reading speech and the explanatory notes to the Bill which amended the law. Indeed, as I have now learned, in Da Silva v Director of Public Prosecution;Da Silva v Director of Public Prosecution; Spence v Director of Public Prosecution [2013] QSC 316, at page 5, Wilson J also found it permissible to have regard to the explanatory notes, for the purposes permitted under section 14B of the Acts Interpretation Act 1954, namely,
(a)if the provision is ambiguous or obscure—to provide an interpretation of it; or
(b)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or
(c)in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.
Under section 14B of the Acts Interpretation Ac1954 the types of “extrinsic material” to which a court may have regard means relevant material not forming part of the Act concerned, and includes (but is not limited to)—
(a) material set out in an official copy of the Act; and
(b) a report of a royal commission, law reform commission, commission or committee of inquiry, or a similar body, that was laid before the Legislative Assembly before the provision concerned was enacted; and
(c) a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provision was enacted; and
(d) a treaty or other international agreement that is mentioned in the Act; and
(e) an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and
(f) the speech made to the Legislative Assembly by the member when introducing the Bill; and (g) material in an official record of proceedings in the Legislative Assembly; and
(h) a document that is declared by an Act to be a relevant document for the purposes of this section.
The section also provides that “ordinary meaning” means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.
What cannot be relevant is what the prosecutor submitted is, and then thought the better of it and retracted his submission, namely, “recent publicity”. See The Queen v Brown [2013] QCA 337 at [36]. Publicity is not always a whole or accurate account of anything and is not necessarily representative of the community generally or contextually specific to the issues at hand. This case simply involves the application of quite ordinary rules of statutory interpretation.
In Da Silva (cited above) at pages 5 to 6 Her Honour Wilson J held:
“In my view it is accordingly permissible to have regard to the explanatory notes which relate to the Amendment Act. They described the purposes of the Amendment Act as being to amend the various statutes. In relation to the Bail Act, ―amend the Bail Act 1980 to provide that where the court or a police officer is satisfied that a defendant, who is charged with any offence, is a participant in a criminal organisation, then:
·a mandatory condition of bail is that the defendant must surrender their passport or passports and must be detained until the condition is complied with; and
·the defendant will be in a show cause situation, that is, the court or police officer shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified.
Under the heading “Consistency With Fundamental Legislative Principles” the following was said in relation to amendments to the Criminal Code, the Bail Act and the Penalties and Sentences Act,
“The Bill impacts on the rights and liberties of individuals through amendments to ... introduce stricter bail laws ... All of the amendments outlined above are further justified as they apply only to participants in criminal organisations and thereby target only those individuals who offend while enjoying the support and encouragement of the criminal group. The amendments strike at the illegal conduct of the criminal gang participant, communicate the wrongful and cowardly nature of their offending and promote community safety and protection from such offenders. The amendments operate prospectively and will only capture offenders who commit offences after the amendments commence.”
… [2]Further, section 16 of the Bail Act does not create an offence. Rather, it regulates the grant of bail, and must be seen as doing so in the overall context of the presumption of innocence which is at the heart of the criminal system, the need to ensure the integrity of the criminal justice system, and the need to ensure the protection of the community.
On its plain grammatical meaning section 16(3A) refers to a person who is a presently a participant in a criminal organisation, that is, someone who is a participant at the time of the application.
Association with a criminal organisation at the time of offending may, by section 16(2), be relevant to the assessment of risk under section 16(1). But that is a different question from the one I am presently addressing, which is whether the applicant is in a show cause situation. I am unpersuaded that the purposes of either the Bail Act as a whole or of the amendment recently introduced require modification of that plain grammatical meaning.
A further submission was made on behalf of the applicants that a show cause provision should be strictly construed because it interferes with what is otherwise prima face a right to bail. That may well be so, but in my view it is not necessary to rely on this in the face of clear grammatical meaning.”
[2] Here, her Honour noted the charge before her did not have as an element of the offence the participation of the defendant in a criminal organisation. The opposite, of course, is true in the case before me. Participation is both an element of the offence charged (charge one) and is what may put Baker in a show cause under s 16(3A). That may make it impossible for him to be examined or cross-examined about his participation in his bail hearing because of section 15(2) of the Bail Act 1980.
Similarly, in Spence v Queensland Police Service [2013] QMC 14 at [32] the Chief Magistrate, Judge Carmody held:
“Once the police satisfy the court that person (sic) charged with any offence is a participant in a criminal organisation, the evidentiary and persuasive onus shifts to the defendant, to show cause why ongoing detention in custody is unwarranted. Either because he or she does not actually represent the unacceptable level of threat to the community assumed by the legislation or that the criminal organisation he or she belongs to does not have a criminal purpose.” (my underlining)
A good deal of published jurisprudence has already been built about the interpretation of the new provision. As a matter of law, I am bound to treat the decision of the Chief Magistrate as highly persuasive and the decisions of two Justices of the Supreme Court binding.
The court may also have regard to the Attorney-General’s speech when the Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013 was introduced. At page 3156 of the Hansard for 15 October 2013 the only things the Attorney General said about the amendments to the Bail Act were:
“The bill also amends the Bail Act 1980 so that there is a presumption against bail for criminal motorcycle gang members and they will be forced to surrender their passport if bail is granted. Let us make it clear: this government believes members or associates of criminal motorcycle gangs should be in jail and not get bail.”
No guidance is to be found in that statement.
If the Practice Direction is binding and if I agree with Mr Gatenby that the issue of participation is a preliminary or threshold question of fact for my determination before s 16(3A) applies and before the Practice Direction applies, then two possible consequences would follow:
1.If I then determine that the deft is NOT a participant then I must continue to hear and determine the bail application to finality.
2.If I determine that the defendant IS a participant then I must follow the PD and adjourn the contested bail application to court 20 in the Brisbane Magistrates Court.
For the prosecution submission to be correct, the issue of participation in a criminal organisation must be part and parcel of the bail hearing and determination. The starting point must be to ignore the practice direction and ask if a contested bail application to which section 16(3A) applies came before me, and the Practice Direction did not exist, then how would I approach the application? Whichever way one considers the submissions made, the only way a bail application can be heard and determined, when the police allege that a person is a participant in a criminal organisation, is to determine firstly whether the person is in fact a participant in a criminal organisation and then the person must show cause under s 16(3A).
However, is it a two stage process? If it is accepted that the determination of participation as a question of fact is part and parcel of the hearing and determination of the bail application then it is not possible or allowable, in the absence of a law to the contrary, to adjourn the application part heard to another court for the final determination of the show cause by another magistrate.
If this analysis is correct it does literally mean, as was submitted by the prosecution, that the police in Queensland now merely have to allege that a person is a participant in a criminal organisation for section 16(3A) to apply to that person’s bail application.
As Wilson J held in Da Silva (above), whereas under s 16(3) the person needs to be charged with a particular category of offence for subsection (3) to apply i.e. to place the person in a show cause situation, which looks to past alleged conduct, subsection (3A) requires a determination of present fact. Subsection 3A does not say “if it is alleged the person is a participant in a criminal organisation then they are in a show cause situation”.
The question then becomes “who should determine that fact given the practice direction?” If the Practice Direction is read as if it said “This Practice Direction governs any contested bail application to which s 16(3A) MAY apply” then it would not matter if the defendant is a participant in a criminal organisation. In that case both the Bail Act and the PD could be complied with by simply adjourning all such contested applications to Brisbane. The problem raised by Mr Gatenby however is that the Practice Direction states “This Practice Direction governs any contested application for bail to which s 16(3A) of the Bail Act 1980 (Q) (the Act) applies.” The defendant submits section 16(3A) of the Bail Act 1980 applies to a bail application if the defendant is in fact a proven participant in a criminal organisation. If all contested Bail Applications to which section 16(3A) may apply were adjourned to Brisbane then I and other magistrates would be sending to Brisbane potentially many applications to which subsection 3A does not apply if those defendants are not found to be participants in a criminal organisation. In that case the only way I could comply with both the Bail Act and the Practice Direction would be if I adjourned the Application to Brisbane and heard it myself and the DPP could then be heard on the show cause issue.
On the other hand, when other issues are raised under section 16, such as the defendant’s age and antecedents, it could be said that the bail application is one to which section 16(2) applies. If the issue raised is whether the defendant is an unacceptable risk under section 16(1)(a) then it could be said that the application is one to which 16(1)(a) applies. Like subsection (3A) subsection (1)(a) requires proof of a present fact: “IS the defendant an unacceptable risk?” Indeed, whether a person is a participant in a criminal organisation is relevant to, and potentially at least partially, determinative of whether the person is an unacceptable risk.
In law and in plain English grammar, the word “applies” can have several meanings. For example, the show cause under subsection (3A) can apply to a person if he or she is shown to be a participant in a criminal organisation. The PD can be viewed as requiring that the subsection apply to the application, not to the Applicant.
The Oxford Dictionary of English, online edition, relevantly gives the following meaning to the word “apply”:
“[with no object] be applicable or relevant: prices do not apply to public holiday periods normal rules apply
[with object] bring or put into operation or use: the oil industry has failed to apply appropriate standards of care.”
Interestingly, in the Oxford Thesaurus of English, Second Edition, the verb “apply”, in the context of the phrase “the Act did not apply to Scotland” means “be relevant, have relevance to, have a bearing on, bear on, appertain, pertain, relate concern, be concerned with, have to do with, be pertinent, be significant, be apt, be apposite, be appropriate, be fitting, be germane; affect, involve, cover, deal with, touch.”
This contested Bail application is clearly one to which subsection (3A) is relevant. Subsection (3A) has a bearing on the hearing and determination of that application. The application is concerned with, and has to do with, the content of subsection (3A). A consideration of subsection (3A) will be involved in and affect the determination of the application for bail.
The issue raised by Mr Gatenby, and which I must rule upon, is quite different to the issue Wilson J had to consider in Da Silva. There her Honour was dealing with the merits of a whole bail application. Her Honour was not considering whether the issue of participation in a criminal organisation could or should be siphoned off to a different court to determine. The issue was simply whether at the hearing of the bail application the prosecution had to prove the participation was current as at the time of the application or whether it was enough to show the person had been a participant at some time in the past. [3]
[3] On that issue contrast the terminology used by the Legislature in the Criminal Organisations Act 2009 itself at sections 18 and 28 where for the purposes of making a control order or public safety order respectively the court can be satisfied the person “is, or has been, a member of a criminal organisation”.
Therefore, I hold that section 16(3A) can apply to a bail application if it is alleged the person is a participant in a criminal organisation. It is literally correct to say that the police in Queensland merely have to allege the defendant is a participant in a criminal organisation for subsection (3A) to apply to the bail application, but the prosecution will still need to prove, on the standard of proof appropriate to bail applications, that he is currently a participant in a criminal organisation before he can be made to show cause. There are subtle differences with subsection (3) under which the police merely have to charge a person with a particular type of charge for the person to be placed in a show cause situation except that in that case the police do not need to prove an element of the charge, which they will obviously need to do in this bail application, albeit to a slightly lesser standard of proof than would be required in a criminal trial. That is because the defendant here is charged with an offence of being a participant in a deemed criminal organisation which alleges no other wrong doing than guilt by association with other alleged participants in a deemed criminal organisation.
Under section 597C of the Criminal Code a trial is deemed to have commenced once an accused is called upon to plead to the charges in an indictment. No similar provision exists in relation to when a proceeding to determine a bail application has commenced. As I have not embarked upon a hearing or determination of the merits of the bail application there is nothing to prevent me from adjourning it in accordance with the PD.
The applicant made it clear he wants this court, at Southport, to hear and determine his bail application. Under paragraph 2 of the PD the Chief Magistrate has the power to “otherwise order” in the interests of justice that an application for bail be heard in a court other than court 20 in Brisbane. I do not have the power to keep this application in this court as the applicant requests, unless the Chief Magistrate otherwise orders.
ORDER:
Pursuant to Practice Direction 21 of 2013, the contested bail application made at Southport by Bradley Maurice Baker is adjourned to Court No 20 at the Brisbane Magistrates Court.
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