R v Carew

[2] The applicant has been on remand for the charges the subject of this application since his arrest on 4 January 2014. His next court appearance is a 17 February 2014 mention in the Southport Magistrates Court. The applicant's trial has not yet been given a hearing date. It appears from the submissions made on behalf of the applicant that no trial can be expected before 7 May 2014.

Section 16 of the Bail Act

Section 16(1) of the Bail Act - unacceptable risk

[3] Section 16(1) of the Bail Act provides that a court shall refuse to grant bail if the court is satisfied that there is an unacceptable risk that the defendant if released on bail would:

(b) interfere with witnesses or otherwise obstruct the course of justice;

(d) endanger the safety or welfare of victims or others; or

(e) pursuant to section 16(1)(b) - be at risk such that the detention in custody would be justified by the need for his own protection.

Section 16(3A)(a) of the Bail Act - applicant to show cause

[4] There is no contest that because it is alleged that the applicant is a "participant in a criminal organisation" the applicant is in a show cause situation pursuant to s 16(3A)(a) of the Bail Act 1980. Accordingly, bail must be refused unless the applicant "shows cause why" his "detention in custody is not justified".

[5] Section 16(2) of the Bail Act provides that in assessing whether there is an unacceptable risk with respect to any event specified in s 16(1)(a), the court is to have regard to "all matters appearing to be relevant" and in particular to such of the considerations listed therein as appear to be relevant. For present purposes, those considerations are:

(b) the character, antecedents, associations, home environment, employment and background of the defendant;

(d) the history of any previous grants of bail to the defendant;

(e) the strength of the evidence against the defendant."

Section 16(2)(a) - seriousness of the offence

[6] Conviction of the offence or offences charged would mean imprisonment ranging from a mandatory minimum of six months served wholly in a corrective services facility to a maximum penalty of three years: see s 60A(1) Criminal Code.

[7] The circumstances of the alleged offending are that:

• The applicant was in the company of Dario Halilovic, Daren Haley, Kresimir Basic and Daniel Lovett when spoken to by police at 10 pm on Friday 3 January 2014 on Elkhorn Avenue, Surfers Paradise (count 1).

• The applicant was in the company of Dario Halilovic; and Kresimir Basic in a hotel room at the Hilton Hotel, Orchid Avenue, Surfers Paradise on Saturday 4 January 2014 (count 2).

[8] It is alleged that all five men are members of various Criminal Motorcycle Gangs. The applicant does not dispute that he was a member of the Comanchero Motorcycle Club in July 2013, but has deposed that he quit the club in August 2013 and has not associated with the club since that time. Halilovic does not dispute that he was a nominee of the Comanchero Motorcycle Club in Victoria in July 2012, but has deposed that he quit the club in early 2013. He further deposes that he has not had any association with the club since that time. Lovett is alleged to be the Sergeant-at-arms of the Victorian Hells Angels. Haley is alleged to be a member of the Hells Angels. There is no issue that the Hells Angels and Comancheros have each been declared to be "criminal organisations": see Criminal Code (Criminal Organisations) Regulation 2013.

[9] Basic is alleged to be a participant in the affairs of an association pursuant to s 4 of the Vicious Lawless Association Disestablishment Act 2013. The respondent's submissions in that regard are that Mr Basic "asserts, declares or advertises his association with the association or he seeks to be associated" with such association.

[10] It is not suggested that the occasions of 3 or 4 January 2014 were used to further other criminal activity.

[11] The applicant is a 30 year old single man, who has resided for the past 12 years with his parents in Dandenong, Victoria. He has worked as a sole trader for the past 10 years both printing and selling promotional material. He works 6 days per week and earns between $500 - $1000 net per week. Approximately 6 months ago, he and Halilovic commenced a business in partnership. Such business is still in its infancy.

[12] The applicant has a criminal history in Victoria. His criminal history indicates he has been convicted of breaching a bond/undertaking in 2009 and a community service order in 2011. However, his criminal history does not indicate he has breached any bail undertaking.

[13] The applicant was on bail in Victoria when he travelled to Queensland. That bail was granted for 2 counts of offences of recklessly causing injury, 2 counts of intentionally causing injury, a count of recklessly causing serious injury, 2 counts of blackmail, 2 counts of trafficking methylamphetamine, 1 count of intentionally causing serious injury and one count of reckless conduct endangering serious injury (offences committed on 21 March 2012, 4 February 2013, 25 September 2013 and 25 September 2013). He has been committed to stand trial upon those offences.

[14] His presence in Queensland did not contravene any bail condition, and as mentioned, he has not previously failed to appear in respect of any bail undertaking.

Section 16(2)(d) - the strength of the crown case

[15] As to the strength of the prosecution case, it was submitted on behalf of the applicant that, prima facie, the prosecution will be able to prove that the applicant was at the relevant times in company with his alleged co-accused. However, the applicant contended that the critical issue at trial will be whether the prosecution proves to the requisite criminal standard that the applicant was at the relevant times on 3 and 4 January 2014 a participant "in a criminal organisation".

[16] In that regard, as already referred to, the applicant and Dario Halilovic depose that they were either supporters, nominees or patched members of the Comanchero Motorcycle Club, Hallam chapter from July 2012 to August 2013. But they depose to having resigned from and having had no association with the club since then. The applicant deposes that at all relevant times in January 2014, neither he, nor Kresimir Basic or Dario Halilovic were members of a motorcycle club. The applicant deposes that he has never been a member of the Hells Angels, sought to join the Hells Angels, or attended motorcycle club meetings, functions or rides.

[17] The respondent submitted that the evidence as it currently stands in respect of the Crown case is in the form of intelligence reports suggesting membership or association by all men with either the Hells Angels or Comancheros at least in 2012 and 2013. It was accepted by the respondent that conviction of the charged offences may depend on whether the applicant adduces the evidence deposed to in his affidavit at trial.

[18] The second offence charged is particularised as having been committed in a hotel room. Given that that raises an issue as to whether a hotel room falls within the definition of a public place (see s 60A Criminal Code definition), the respondent's counsel sensibly conceded that the prosecution case was not a strong one.

Interfering with witnesses/obstruct the course of justice

[19] It was conceded by the respondent that there is no evidence to suggest that any witness will be at risk if bail were to be granted.

[20] The applicant's current Victorian bail conditions include residential and reporting conditions. The applicant does not have any ties to Queensland; his ties which are significant are to Victoria. Given the absence of any previous convictions for failing to appear to answer any prior bail undertakings, it is accepted that he is not a flight risk.

[21] The applicant is on bail currently for charges of offences involving violence and drugs and it was therefore argued by the respondent that there is "some" risk of reoffending.

[22] As mentioned, the applicant has deposed that he has disassociated himself from the Comancheros. The respondent accepted that resignation or dissociation from a criminal organisation, like any demonstrated act of rehabilitation, may give rise to cause being shown and the court being satisfied that the person has shown that he is not an unacceptable risk. In addition, the applicant's legal representative referred to and adopted the observation made by Byrne J in R v Carew [2014] QSC 001 as apposite in this case - namely, that the applicant's anxiety not to return to solitary confinement is a substantial incentive for him not to commit offences. (Since 17 January 2014, the applicant has been in what the applicant described as solitary confinement: a situation described by the respondent as a "single cell with no contact with other inmates" and with "access to an exercise yard").

[23] If released on bail, the applicant intends to return to and continue to reside in Victoria with his parents.

[24] On the material before the court, the risk of reoffending is not unacceptable if bail were granted on the conditions contained in the draft order provided to the court, which include conditions as to the applicant appearing and surrendering himself into custody, conditions as to residency, reporting to police, non-contact,[1] that he not leave the State of Victoria except with the prior written consent of the Office of the Director of Public Prosecutions and that he not apply for a passport or permit to travel outside Australia.[2] The respondent did not seek any other condition of bail in addition to those in the draft order.

[25] The applicant has discharged the burden in s 16 (3A) of the Bail Act to show cause. In those circumstances, bail is granted on the conditions provided in the draft order.

[1] The applicant has previously abided by a condition that he has no contact with Dario Halilovic, imposed as part of Victorian bail.

[2] Section 16(3A)(b)(i) of the Bail Act provides that if bail is granted the court is required to order that the applicant surrender his passport. However, the applicant does not hold a passport and will not apply for one under the terms of his existing bail undertaking.