Suttie v The Queen - [2013] NTSC 37

Suttie v The Queen [2013] NTSC 37
PARTIES:SUTTIE, KRISTOPHER

v
THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21300439
DELIVERED:  21 March 2013
HEARING DATES:  11, 14 & 21 March 2013
JUDGMENT OF:  HILEY J
CATCHWORDS:

CRIMINAL LAW – Bail – Application for review of decision not to grant bail – presumption against bail – onus of proof lies with the Applicant to satisfy the Court that bail should not be refused – criteria to be considered in bail applications
Bail Act ss 7A(2), 24, 35
Misuse of Drugs Act ss 5, 9

R v Williams (2012) 32 NTLR 97, followed.
R v Wilson (2011) 29 NTLR 83, not followed.
R v JDT [2011] NTSC 39; R v Mills [1998] 4 VR 235, referred to.
REPRESENTATION:
Counsel:
Applicant:James Anderson
Respondent:  Michael McColm
Solicitors:
Applicant:NAAJA
Respondent:  ODPP
Judgment category classification:   B
Judgment ID Number:  Hil1306
Number of pages:  21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Suttie v The Queen [2013] NTSC 37
No. 21300439
BETWEEN:

Kristopher Suttie

Applicant

AND:

The Queen

Respondent

CORAM: HILEY J
REASONS FOR DECISION
Introduction

On 21 March 2013 I allowed bail on certain conditions and I indicated that I would provide written reasons for the benefit of the parties. However, since these reasons may contain information that may be prejudicial to the trial I propose and order that these reasons be and remain confidential to and between the parties until the final disposition of the principal proceedings, or until further order of this Court.
This is an Application under section 35 of the Bail Act for review of a decision of Magistrate Cavanagh made on 5 March 2013, refusing to grant bail to Mr Suttie (the Applicant). A review under s 35 is to be conducted by way of re-hearing, and the Court is not constrained by the evidence before the learned magistrate (s 36).
According to the Information for an Indictable Offence taken 4 January 2013,[1] Mr Suttie has been charged with six offences, in that he did unlawfully:
(a)supply MDMA, a dangerous drug specified in Schedule 2, to another person - contrary to s 5(2)(a)(iv) of the Misuse of Drugs Act:
(b)supply cannabis plant material, a dangerous drug specified in Schedule 2, to another person - contrary to ss s 5(1) & (2)(a)(iv) of the Misuse of Drugs Act;
(c)possess cannabis plant material, a dangerous drug specified in Schedule 2 - contrary to s 9(1) & (2)(f)(ii) of the Misuse of Drugs Act;
(d)possess Methamphetamine, a dangerous drug specified in Schedule 2- contrary to s 9(1) & (2)(f)(ii) of the Misuse of Drugs Act;
(e)possess MDMA, a dangerous drug specified in Schedule 2, and the amount of the dangerous drug was a commercial quantity, namely 48.9 grams - contrary to s 9(1) of the Misuse of Drugs Act;
(f)receive property, namely $6,995, obtained from the…

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 Suttie v The Queen

Details

AGLC: Suttie v The Queen [2013] NTSC 37
Case: [2013] NTSC 37
Decision Date: 21 March 2013

CaseChat Overview and Summary

Niel Suttie applied for bail, which was refused, and he appealed that refusal. The Applicant was charged with various drug offences, including trafficking and possession. The matter was before the Northern Territory Supreme Court. The legal issues to be decided included whether the Applicant had satisfied the onus of proving that bail should not be refused, and whether the presumption against bail should be applied. The court considered the nature of the alleged offences, the Applicant’s criminal history, and the risk of reoffending. The court also considered the interests of the community and the risk of flight.

The court found that the Applicant had not discharged the onus of proving that bail should not be refused. The Applicant’s criminal history was extensive, and the risk of reoffending was high. The court also found that the presumption against bail should be applied, given the nature of the alleged offences and the risk of flight. The court considered the evidence of the Applicant’s father and other affidavits, but found that they did not outweigh the risk of the Applicant reoffending or failing to appear in court. The court also found that the Applicant’s admissions during his record of interview were significant, and that they demonstrated a willingness to engage in criminal activity.

The application was dismissed. The court found that the Applicant had not satisfied the onus of proving that bail should not be refused, and that the presumption against bail should be applied. The court found that the risk of reoffending and the risk of flight were too high, and that the interests of the community required that the Applicant remain in custody. The court also found that the evidence of the Applicant’s father and other affidavits did not outweigh these factors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Because the fifth and sixth offences are punishable by terms of imprisonment of more than seven years, s 7A of the Bail Act applies, as a result of which bail is not to be granted “unless the person satisfies … [a] court that bail should not be refused."Evidence and other materials The Applicant filed and read three affidavits in support of his application:(a)Affidavit of Niel Suttie sworn 6 March 2013 (Exhibit A1);(b)Affidavit of Michael Suttie sworn 6 March 2013 (Exhibit A2);(c)Affidavit of James Anderson sworn 6 March 2013 (Exhibit A3). Mr Niel Suttie, the Applicant's father, also gave oral evidence, and he was cross-examined, mainly on his own criminal history and his suitability as a surety.Charges and surrounding circumstances Most of the information concerning the alleged offences is contained in the committal brief, annexed to Mr Anderson's affidavit. Of course, the information advanced for the purposes of this bail review application and referred to in these reasons only stands as material used and taken into account for the purpose of this application. A search warrant was executed by police on 3rd January 2013 at a residence at 21 Grebe Crescent, Wulagi. There had been 7 people living there, namely 3 step-brothers, Vinh Tran, Toai Tran and ND (aged 14), their sister HD (aged 12) and their mother Ngan Kim, the Applicant and Dan Albino. However Mr Albino had gone to Adelaide a few days earlier and was not present when the police attended. The police seized various drugs and other materials and cash, and took photographs. At about 5pm the three step-brothers were arrested and taken to the Darwin watch house, and interviewed. The Applicant had been spoken to when the police executed the search warrant, but was not arrested until later that evening after further information was obtained, presumably from one or other of the three step-brothers. He had previously admitted to possessing cannabis found in his bedroom when the police spoke to him at the house. The committal brief contains a number of statutory declarations by various police officers, a statutory declaration by Vinh Tran, and records of interview of ND and the Applicant. The Applicant made a number of admissions in his record of interview. These include admissions that he had possessed some of the drugs, and that he had sold MDMA pills for Dan Albino. He said that the MDMA pills were owned by Dan Albino, and that they and the proceeds of sale were kept in a safe in the room occupied by ND. It is said that only ND and Dan Albino had access to the safe. The police also found, in the safe, a ledger book, which contained some entries with the name Kris opposite numbers and dates, in columns headed “pill no”, “money” and “date”. (See Exhibit R1). After 5 entries where there was a “?” under the date heading, there were another 8 entries showing various dates between 27th and 31st December 2012 under the date heading. According to ND, most of the pills and cash were contained in the safe, which belonged to him. Because the Applicant did not have the combination to the safe, when the Applicant wanted to sell pills, he (ND) would get them out of the safe for him, and he would also put into the safe any cash proceeds. The Applicant says that he only sold the pills on behalf of Dan Albino, the owner of the pills, to help him out, and that he did not retain any of the proceeds.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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