Spurling v The Queen

[2020] SASC 192

Supreme Court of South Australia

(Criminal: Application)

SPURLING v THE QUEEN

[2020] SASC 192

Reasons for Ruling of The Honourable Justice Livesey (ex tempore)

30 September 2020

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

The applicant was arrested and charged with (i) manufacturing a large commercial quantity of a controlled drug intending to sell that drug, contrary to s 33(1) of the Controlled Substances Act 1984 (SA) ("the Controlled Substances Act"); and (ii) being in possession of prescribed equipment, contrary to s 33J(2)(b) of the Controlled Substances Act. Bail was applied for and refused in the Magistrates Court by reason of the gravity of the allegations, the strength of the prosecution case and the prospect that the applicant may hinder police enquiries if released. The applicant sought a review of the order of the Magistrate refusing the applicant bail. The Crown did not oppose bail on strict home detention terms with further conditions.

Held:

1.  The applicant’s application for review of bail is allowed. Bail is granted.

Bail Act 1985 (SA) s 14(2)(a); Controlled Substances Act 1984 (SA) s 33(1), s 33J(2)(b), referred to.

SPURLING v THE QUEEN
[2020] SASC 192

Criminal:         Application

LIVESEY J:

Introduction

1. This is an application for review of bail, pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a Magistrate’s refusal to grant bail on 8 September 2020. 

2. The Magistrate refused bail because of the gravity of the allegations, the strength of the prosecution case and the prospect that, if released, the applicant may hinder police inquiries.  Nonetheless, I was told that the Magistrate did not regard the applicant as a flight risk.

   The subject allegations

3. By an Information dated 8 September 2020, the applicant is charged with:

   1.On 18 August 2020, manufacturing a large commercial quantity of a controlled drug, intending to sell that drug, contrary to s 33(1) of the Controlled Substances Act 1984 (SA) (the Controlled Substances Act); and

   2.On 19 August 2020 was in possession of prescribed equipment, namely heating mantles, condensers, reaction vessels, separatory funnels and Buchner flasks, intending to use the equipment for the manufacture of a controlled drug, contrary to s 33J(2)(b) of the Controlled Substances Act.

4. The prosecution alleges that on Tuesday, 18 August 2020, after entering an address with the authority of a general search warrant, a sophisticated commercial‑sized methylamphetamine drug laboratory was detected.  This clandestine laboratory was thought to have been in operation for more than six months.

5. The laboratory extended from the loungeroom into three spare bedrooms, leaving only one bedroom and the kitchen/bathroom areas without drug‑making equipment or chemicals.  Approximately 21 litres of methylamphetamine oil and half a kilogram of other methylamphetamine were located.

6. Closed circuit television footage seized from the home apparently depicted the applicant attending the address.

7. Phone records apparently reveal regular contact between the co accused and the applicant, including advice from the applicant regarding a storage unit at Panorama.  On Wednesday, 19 August 2020, under the authority of a general search warrant, police gained entry to the storage unit and located a substantial amount of clandestine drug laboratory equipment.  It is said that closed circuit television footage from a storage facility shows the applicant attending the storage facility.

8. It is also alleged that on 26 May 2020, police conducted a search of the applicant’s motor vehicle and detected a notebook with hand-written notes concerning the manufacture of methylamphetamine.

9. The prosecution case is that the applicant has been actively involved in the process of manufacturing illicit methylamphetamine as well as concealing it. 

10. On 19 August 2020, police attended the applicant’s home and, again under a general search warrant, entered and located two tasers as well as evidence of items having been dug up and removed from the backyard of the premises.  Chemicals were also seized.

11. The applicant was located and arrested on 7 September 2020, after which he declined to answer questions, as was his right.

12. Police bail was refused because the view was taken that the applicant had been charged with serious offences involving a number of co‑accused.  It is alleged that the applicant is “at the higher end” of a serious and organised crime syndicate and there are concerns, said to be “serious concerns”, that evidence could be destroyed and witnesses interfered with, notwithstanding the absence of any criminal antecedents history or prior history of bail. 

    The circumstances of the applicant

13. I have very little information about the applicant.  He is 22 years of age and, according to a home detention enquirer report dated 29 September 2020, there is a suitable residence available at which the applicant is the lessee.

14. According to this report, the applicant has apparently admitted using methylamphetamines each week.  The amount is one-half of an “eight ball” each week.  The applicant has apparently been using methylamphetamine for a year. 

15. There is also a history of nitrous oxide abuse and a stroke for which the applicant was hospitalised in September 2019.

16. The applicant has apparently also admitted that he has been diagnosed with anxiety and depression and obtained the assistance of a psychologist.  Apparently, there are also diagnoses of bipolar and borderline personality disorders.

17. There is some risk of self-harm and some evidence of superficial cuts to the arm around three months ago.

    Disposition of the application

18. The applicant is entitled to a presumption of bail, pursuant to s 10 of the Act.

19. He has no prior history and, though the charges are very serious, the Crown does not oppose bail on strict home detention terms, provided that there are conditions which preclude contact, whether direct or indirect, with certain nominated co-accused.

20. In the circumstances, I am prepared to grant bail on strict home detention terms with the inclusion of a non-association clause as just mentioned, as well as a clause requiring supervision by the Community Corrections Department which supervision will include the capacity to give directions for engagement in drug treatment programs and counselling. 

21. Accordingly, the order of the court is the application for review is allowed and bail is granted.