R v Amane Iskandar

1 In making a determination as to bail and irrespective of any presumption in favour of or against bail, the court is required to take into account the considerations specified in s32 (so far as reasonably ascertained) and only those considerations: s32 (1). The considerations are - in brief form - the probability of the applicant appearing in court in respect of the offence, the interests of the applicant, the protection of any particular person or persons, and the protection and welfare of the community. 2 Section 8 provides, in relation to the offences specified in that section (being certain minor offences), that an applicant is entitled to bail with specified exceptions.

3 Section 8A provides that an applicant, accused of an offence specified in that section, being certain serious drug offences, is not to be granted bail unless the applicant satisfies the court that bail should not be refused.

4 Section 9 provides (with exceptions) that an applicant accused of an offence specified in that section (being certain other serious offences) is entitled to bail unless, relevantly, the court is satisfied that it is justified in refusing bail. (A further exception to s9 is created by s9A in relation to domestic violence offences).

5 In summary, s8 by-passes s32 by making bail mandatory in relation to the offences to which it applies. Section 8A creates a presumption against bail in relation to the offences to which it appears. Section 9 creates a presumption in favour of bail in relation to the offences to which it applies. In relation to all other offences, there is no statutory presumption in favour of or against bail.

6 Uninstructed by authority, I would have thought that the scheme of the statute in these respects is as follows and no more: that, with the exception of s8 cases, the court is to decide whether or not to grant bail having regard to the considerations specified in s32; that, in relation s8A cases, the burden is on the applicant to satisfy the court that the balance of those considerations is in favour of bail; that, in relation to s9 cases, the burden is on the Crown to satisfy the court that the balance of those considerations is against bail; and that, in all other cases, the court decides whether to grant or refuse bail having regard to the specified considerations without any such provisional presumption in favour of or against bail.

7 However, decisions binding on me go much further.

8 I begin with the first instance decision of Kissner (Hunt CJ at CL, 17 January 1992, unreported). It followed an earlier decision by Wood J, in relation to the same applicant, refusing bail. Section 8A applied. In a judgement again refusing bail, Hunt CJ at CL said: The presumption against bail expressed in s8A imposes a difficult task upon an application to which the section applies. Its effect is not merely to place an onus upon the applicant to establish his entitlement to bail. He must satisfy the court that bail should not be refused. Wood J said (and I agree) that the presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail.

Wood J also adopted (as I do) the views expressed by Badgery-Parker J in a series of cases that, by the presumption against bail enacted by s8A, the Legislature intends the courts to place less weight upon the circumstances which are common to all applicants, and more weight upon the strength of the Crown case against the applicant in the particular case under consideration. The strength of the Crown case has become the prime consideration where s8A applies: see for example: Regina v Michael Youssef Toubya (15 November 1990); Regina v Garry Roy Morton (15 May 1990); Regina v Antonio Franco (23 July 1991); Regina v David Clyde Brown (25 July 1991), all unreported. Common to all bail applications are the circumstances that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, an usually with severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence and to support his family. Also common to most bail applications by persons charged with the offences to which s8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; an application would otherwise be unlikely to be considered in relation to such serious matter. The Legislature has, notwithstanding all those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s8A has erected. As Badgery-Parker J said: if the Crown case is a strong one, the applications for bail in which they will be sufficient to do so must necessarily be somewhat special, and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one. On the other hand, if the Crown case is not a strong one, the circumstances to which I have referred in the last paragraph will ordinarily be given greater weight, and the task of the applicant (although still a substantial one) will be correspondingly less difficult.

9 The first part of this passage and, I trust, the second part of it were referred to with approval by the Court of Criminal Appeal in Masters, Richards and Wunderlich (1992) 26 NSWLR 450 (Hunt CJ at CL, Allen and Badgery-Parker JJ) at 473, where the court said: The presumption against bail expressed in trial section (s8A) imposed a difficult task upon the person so charged to persuade the court why bail should not be refused. That presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail. That is the effect of a series of decisions by single judges of the Supreme Court, most recently collected and discussed in Regina v Kissner (Hunt CJ at CL, 17 January 1992, unreported). We agree with that interpretation of s8A.

10 The statement of principle in Masters, approving what was said in Kissner, is binding on judges at first instance. However, the principles leave room for the grant of bail in an appropriate case. In Hanley (8 December 1992, unreported), Badgery-Parker J, who had been so instrumental in generating this line of authority, granted bail in a s8A application, notwithstanding a strong Crown case, because of the substantial security offered. The figure in that case was $1 million, but the significance of the amount of security offered must vary with the financial circumstances of the persons involved.

11 In Brown, (NSW Court of Appeal, 15 March 1994, unreported), Kirby P affirmed the Kissner approach. Speaking of s8A, he said: The section clearly provides a presumption against bail. It does so in the case of defined drug offences. It has come under the consideration of the Court in Regina v Peter Edward Kissner 17 January 1992 (unreported - the Chief Judge at Common Law); and of the Court of Criminal Appeal in Regina v Masters (1992) 26 NSWLR 450 (CCA) at 473. The foregoing decisions make it plain, as indeed the section itself does, that it is the will of Parliament that persons charged with offences of this variety should ordinarily be refused bail. In determining whether the very high onus imposed by law has been discharged, less weight is placed upon the circumstances common to all applicants for bail. More weight is placed upon the strength of the Crown case against the person seeking bail.

12 The other members of the court, Powell JA and Hunt CJ at CL, took no exception to this re-affirmation of principle.

13 The Kissner approach was again approved by the Court of Appeal in Budiman (1997) 97 A Crim R 548 (Mason P, Powell and Sheller JJA) at 550.

14 In view of the authorities binding on me, I proceed on the basis that , where s8A applies, an application for bail should normally or ordinarily be refused. A heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not the exclusive consideration. Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case. The application must be somewhat special if the Crown case in support of the charge is strong.

15 In the present case, the applicant is charged with conspiracy to supply not less than a large commercial quantity of heroin and not less than a commercial quantity of cocaine. Section 8A applies to at least the first of these offences. The presumption against bail attaches to an applicant who is "a person accused of an offence to which this section applies". Accordingly, no question arises as to whether the present applicant has been correctly charged with the specified offence. The charge itself attracts the presumption against bail.

16 The applicant was arrested with others on 21 December 2001 in the course of a police operation which targeted a large illicit drug distribution enterprise. The Crown case against this applicant is that the head of the organisation was Walid Chami, with whom the applicant was living in a de facto relationship; that the applicant was one of three managers under him who managed the distribution of drugs by others from premises used as bases; and that the evidence against the applicant consists principally of a large number of recorded telephone conversations establishing the nature and scope of the business and the applicant's role in it. Most of this evidence has not yet been served on the applicant's legal representatives. They have, accordingly, not had the opportunity of evaluating it, including the evidence of voice identification.

17 The applicant is 23 years of age. She has a 2 year old child from a previous marriage or relationship. She has the support of her parents. She wishes to live with them, her two younger sisters and her child, pending her trial. Her parents are willing and anxious to have her. They are willing to pledge the equity in their home as security.

18 I have regard to the following considerations, pursuant to s32. As to the probability of whether or not the applicant will appear in court in respect of the offences for which bail is sought, the offences charged are very serious charges and I assume for the purpose of this application (without deciding) that there is a strong Crown case against the applicant. The Crown says, in these circumstances that there is strong motivation for flight and that the applicant has or may have access to funds and the means of obtaining false documents to enable her to disappear. As against that, I find that the applicant has very strong community ties, being ties with her parents and siblings and with her child. She has no criminal record. There has been no previous failure to appear in court pursuant to any bail undertaking. There is specific evidence tending to indicate a probability that the applicant will appear in court, namely, the security which her parents are willing to provide over the equity in their home.

19 As to the interests of the applicant, it is common experience that cases of this kind may take a long time to come to trial because of delays in serving evidence and because of the length of committal proceedings. The applicant has a specific need to be free for a lawful purpose pending trial, namely, to care for her two year old child.

20 As to protection of any particular person or persons, there is no suggestion that, if released on bail, the applicant might cause harm to anyone.

21 As to the protection and welfare of the community, it does not seem to me that the applicant is in a position to interfere in any significant way with continuation of the police operation in relation to the illicit enterprise. I also think it unlikely in the extreme that the applicant would endeavour to carry on the illicit enterprise herself if released on bail, as has been suggested. It is not part of the Crown case, so far as the evidence before me discloses, that the applicant had any personal involvement in the procurement of drugs as distinct from their distribution. That function was carried out by Walid Chami. Nor do I think there would be any significant prospect of further criminal activity of any other kind if strict bail conditions were imposed restricting the applicant's movements except in the presence of one of her parents.

22 Having regard to these considerations, I am satisfied that the presumption against bail is displaced in this case and that bail on very strict conditions should be granted.

23 In relation to all outstanding matters and offences I grant bail subject to the conditions in the short minutes of order placed with the papers.

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