Spence v Queensland Police Service

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Spence v Queensland Police Service [2013] QMC 14

PARTIES:

MICHAEL KENNETH SPENCE

(applicant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

MAG207306/13(4)

DIVISION:

Magistrates Courts

PROCEEDING:

Bail Application

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2013

MAGISTRATE:

The Honourable Judge Carmody QC

ORDER:

Bail is refused.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – BAIL – whether the applicant is a participant in a criminal organisation – whether the applicant can show cause why their continued detention is unjustified

Bail Act 1980 (Qld)

COUNSEL:

JR Hunter QC for the applicant

CD Patterson (Sergeant) for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant

Respondent on own behalf

The application

1. This is a contested pre-trial bail application by a locksmith charged with trafficking in the dangerous drug amphetamine with an estimated street value exceeding $2.5 million between 26 June 2012 and 20 October 2013.

1. He and two co-defendants are said to have been members of the Hells Angels outlaw motorcycle gang. The prosecution initially claimed that the applicant was the Sergeant at Arms of that organisation during the whole alleged trafficking period but now concedes that he was not actually a gang member after 17 October 2013.

1. However, it is contended that they nonetheless continued to participate together in a defined criminal organisation involved in serious criminal activity up to the date of their arrest on 20 October 2013.

1. Investigating police oppose bail even with onerous conditions on the basis of an asserted belief that:-

(a)        the applicant poses an unacceptable risk if freed or fleeing;

(b)        endangering public safety;

(c)        tampering with witnesses; and

(d)        otherwise obstructing the court of justice but he’s apparently not expected to commit criminal offences.

1. The power to grant bail from police custody on criminal charges in Queensland is regulated by the Bail Act 1980 (Qld) (the Act).

The bail discretion

1. Magistrates have had the duty of settling bail terms in the common law world since 1679, when the English parliament passed the Habeas Corpus Act.

1. The main social purpose of bail is to strike the right balance between not unduly infringing upon the liberty of a charged, but yet unconvicted person, entitled to their freedom on the one hand and ensuring that he or she does not tamper with witnesses and go into community welfare or otherwise offend if released, until such time as the benefit of the presumption of innocence is lost.

1. Thus the bail discretion is exercised in a way that gives practical expression to the legislative intent and public policy objectives. It is the parliament’s responsibility to make good laws consistent with the peace, order and good government of the state, consistently, with contemporary social values. It is for the police to enforce those laws and the courts to interpret and apply them, without fear or favour.

1. The court has a duty to grant bail under section 9 of the Act. Conditions for release must be no…