Re Botha

[1998] QSC 152

IN THE SUPREME COURT

OF QUEENSLAND  No. 6583 of 1998

Brisbane

[Re Botha]

IN THE MATTER OF THE CRIMINAL CODE

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IN THE MATTER OF THE BAIL ACT 1980

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IN THE MATTER OF NICHOLAAS JOHANNES BOTHA

CATCHWORDS:     CRIMINAL LAW - bail application - postponement of trial -

defence in committal proceedings contributing to delay

Counsel:Mr R Hanson QC for the applicant

Solicitors:Witheriff Nyst for the applicant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:              28 July 1998

REASONS FOR JUDGMENT - CHESTERMAN J.

Judgment delivered 4 August 1998

I have to decide the applicant’s fifth application for bail since his arrest early in December, 1997.  He has made unsuccessful applications to Shepherdson J. on 9 December, 1997; Dowsett J. on 12 February, 1998; Lee J. on 31 March, 1998 and Thomas J. on 8 May, 1998. 

Three common threads have run through the reasons for judgment refusing each of those applications.

They are:

(a)On the material presently available the Crown case appears strong.  The applicant has been charged with ten counts of obtaining money by fraud.  The amounts are substantial: the total amount which it is alleged the applicant received from his dishonesty is about $1.8 million.  (The imprecision stems from the fact that the funds specified in a number of the charges is in US dollars and the exchange rate has fluctuated considerably since December 1997.)  If convicted the applicant would probably be sentenced to several years’ imprisonment.

(b)There is a substantial body of evidence tending to the conclusion that if allowed bail the applicant will abscond the country.

(c)The conduct of the prosecution has been slow, perhaps dilatory, with the unsatisfactory consequence that the applicant has been detained in custody pending trial for a disturbingly long period.

The matter was carefully reviewed by Lee J.  The effect of the relevant affidavit material may be seen from his Honour’s reasons for judgment.

In exercising the discretion whether to grant the applicant bail on all former occasions points (a) and (b) outweighed point (c).  On the last application Thomas J. said:

“My main concern in this matter is that by the time he commences his trial which is currently estimated to be early next year he will have been in custody slightly more than twelve months .... that is a worrying period for anyone to be kept  incarcerated pending a trial.

However, the prospect of his absconding if granted bail is in my view and obviously in the view of other judges who have examined the matter very strong.  I may also say that at least on a broad picture of the method of receipt of money and the reason stated to return money to those who paid “advance fees” there would seem to be a strong case of dishonesty ... It is also obvious that if he is convicted then there would be a relatively substantial custodial sentence likely.  Those factors tend to balance the concern that I have already expressed about undue delay.”

The fifth application is said to be justified on the basis that Thomas J. had indicated there should be a reappraisal of the applicant’s position if there were further delays occasioned by the Crown presenting further charges on a “piecemeal basis”.

This has not happened but the applicant argues that the timetable which was in contemplation when the matter was argued before Thomas J. will not now be achieved.  The extension of time before a trial can commence is said to be caused by the Crown’s intransigence so that the factor of delay now outweighs the other considerations.

I was referred to correspondence in which the applicant’s solicitors invited the Crown to present an ex officio indictment against the applicant charging him with one only of the charges presently pending.  The trial of this charge should be regarded as a “test case” so that if acquitted of it the Crown should not proceed with the others.  This invitation was rejected for reasons which appear from Mr Field’s letter to the applicant’s solicitors (Exhibit DJF5 to the Affidavit of David John Field, filed by leave on 28 July, 1998).  I am not prepared to say that Mr Field’s reasons are without substance. 

It seems to me that the primary reason for the further delay in obtaining dates for the trial is the manner in which the applicant has chosen to conduct the committal proceedings.  I do not for a moment criticise the applicant’s tactics.  The manner in which he conducts his defence at the committal is a matter for him and his legal advisors.

The committal commenced on 19 March, 1998.  It occupied that day and the next, 20 March, 1998.  It resumed on 22 June, 1998 and continued until 3 July, 1998, a total of ten sitting days.  Some sixty witnesses remain to be examined and a further twenty-five days have been allocated for that purpose, commencing 26 October, 1998. 

The applicant retained Mr Macgroarty of counsel to appear for him when the committal resumed on 22 June, 1998.  He is also briefed to appear in October. 

The cross-examination of witnesses has been thorough and, perhaps, exhaustive.  It is the manner in which the defence has chosen to conduct its examination of witnesses at the committal that has protracted the time which will elapse before which trial dates can be allocated.

This is not a matter for which the Crown can be held accountable.  The circumstance which Thomas J. thought might justify reconsideration of the application for bail was that the period in which the applicant will be held incarcerated will extend by reason of the Crown’s conduct of the prosecution.

On 9 June, 1998 Mr Field, representing the Director of Public Prosecutions, wrote to the applicant’s solicitors.  He said:

“... this matter would benefit from early negotiation between Crown and defence designed to reduce the amount of court time which will otherwise be devoted to this matter.  It is also suggested that this process may begin .. at the committal stage ...

Firstly, there is certain background items of evidence which we would not imagine that your client will be seriously challenging .  Into this category fall the statement of witnesses ... this list is by no means exhaustive, but it is immediately apparent that the acceptance, by your client, of the accuracy of the contents of the statement of witnesses such as these, for the limited purposes of the committal, will speed up the process ...

Secondly, there is the issue of the cross-examination of the complainants themselves, which must of course occur, and occur at some length.  .... We wish to negotiate some sort of reasonable timetable for the calling of these witnesses ...

Finally, you will recall that at the commencement of the committal hearing, Mr Nyst was unable to nominate a single witness who would not be required for cross-examination, and insisted that each witness statement be tendered at the time of when each witness was called, and not before.  We formally call upon you to indicate whether or not this is still your position.”

The applicant’s solicitors have not replied to the letter.  Instead the applicant’s solicitors wrote to suggest the separation of charges which I have already referred to.

When the matter came before Thomas J. it was anticipated that there might be a trial in January or February of 1999.  Because of the postponement of the committal proceedings it is now anticipated that the trial might occur in March.

It seems to me that the additional period of six or eight weeks is not sufficient to tilt the balance in favour of allowing the applicant bail.  The countervailing considerations which, to date, have persuaded four judges of this court to refuse bail still outweigh the deprivation of the applicant’s liberty pending trial.  Not only is the additional period, in context, insufficient to alter the balance it is, in my judgment, significant that the further delay has been occasioned by the applicant’s approach to the committal.

The application should be refused.