R v David Peter Cain

• 6 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

(VIDEO LINK TO METROPOLITAN REMAND CENTRE) JUDGMENT No. 1 - On application for bail

1 HIS HONOUR: The applicant is thirty nine years of age and normally resides with his de facto wife Renee Schulz and two children at Banksmeadow, New South Wales. He is an Australian citizen and a holder of an Australian passport which is currently in the possession of the Australian Federal Police. The applicant has a criminal history but it could not be said to be serious, relative to what is frequently seen in this court or of any significant relevance for the present purposes. 2 The applicant was arrested on 11 January 2000 and has been in prison since that date. He stands charged with conspiracy to import a prohibited import being 74.5 kilograms of ecstasy, that being in excess of the commercial quantity, and with conspiracy to import a prohibited import being 9 kilograms of cocaine also being in excess of the commercial quantity, together with certain other offences which in context are of a less serious nature. 3 In making a determination as to bail and irrespective of an assumption for or against bail the court is required to take into account the considerations specified in s 32 so far as reasonably ascertained and only those considerations. 4 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. 5 Section 8A provides that an applicant accused of an offence specified in that section, being certain serious drug offences, which include those with which this applicant is charged, is not to be granted bail unless the applicant satisfies the court that bail should not be refused. In my judgment in Iskandar (22 January 2001, unreported), I reviewed the relevant authorities and I said (at paragraph 15): "In view of the authorities binding on me I proceed on the basis that where s 8A 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." 6 I apply those principles. However, in the course of my review of the authorities in Iskandar I noted that in Hanley (8 December 1992, unreported) Badgery-Parker J, who had been closely involved in generating the line of authority to which I have referred, granted bail in a s 8A application, notwithstanding a strong Crown case, because of the substantial security offered. The figure in that case was $1 million but as I said in Iskandar (at paragraph 10): "… the significance of the amount of security offered must vary with the financial circumstances of the persons involved". Hanley is an important precedent in relation to the application of the principles to which I have referred. 7 I assume for the purpose of the present application, without deciding, that the Crown has a strong case against the applicant in relation to the offences with which he is charged. On the other hand, members of the applicant's family and others have offered to enter into agreements to forfeit sums of money substantially in excess of $1 million in total. In one instance, the offer is to deposit cash. Otherwise, security over real estate is offered, the properties being of sufficient value on the uncontested evidence to support the respective agreements. There is also uncontested evidence that in almost all instances, the property offered as security is the only significant asset of the individual concerned. That is a factor which strengthens the practical value of the offers in minimising the possibility that the applicant might abscond. 8 I have regard to the following considerations pursuant to s 32 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 charges are very serious charges. I have assumed for the purpose of the application that there is a strong Crown case. There is, accordingly, on that assumption, a strong motivation for flight, and I take into account that the applicant may have access to funds and the means of obtaining false documents to enable him to disappear. As against that, I find that the applicant has very strong community ties, being ties with his de facto wife, his children and his extended family. There has been no previous failure to appear in court. The prospect that the applicant will appear in court as required would be fortified by the security which can be provided for his attendance. 9 As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial but a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights. 10 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. 11 As to the protection and welfare of the community, it is unlikely, in my view, that the applicant would endeavour to carry on any illicit enterprise of a similar kind if released on bail. On the evidence before me, the ring in which the applicant was allegedly involved, has been broken. 12 Having regard to these considerations I am satisfied that the presumption against bail is displaced and that conditional bail should be granted. 13 In relation to all outstanding matters and offences I grant bail subject to the following conditions:

1. The applicant is to enter into an agreement to observe the following requirements as to his conduct while at liberty on bail.

a) He is to reside at 52 Brighton Street, Banksmeadow.

b) He is to report to the officer in charge of the Botany Police Station once on each day, between the hours of 8am and 6pm.

c) He is not to go within one kilometre of the boundary of any airport or recognised point of departure for overseas except as may be necessary for reporting to the police.

d) He is not to associate in any way with any of his co-accused.

e) He is not to communicate directly or indirectly, except through his legal advisers, with any person of whom he has received notice that the person is to be called or is likely to be called by the Crown at his trial.

f) The following persons are to enter into agreements to forfeit the following respective sums if the applicant fails to comply with his bail undertaking, such agreements to be secured by mortgage and caveat over the respective properties specified: Mr W P Cain fifty thousand dollars, 811/243 Pyrmont Street Pyrmont; Ms A Cain fifty thousand dollars, 811/243 Pyrmont Street Pyrmont; Ms R D Schulz one hundred and fifty thousand dollars, 52 Brighton Street Banksmeadow; the applicant, one hundred and fifty thousand dollars, 52 Brighton Street Banksmeadow; Ms R J Schulz, three hundred thousand dollars, 16/16 Morgan Street Botany; Mr B J Dunn, two hundred and fifty thousand dollars, 8 Torrens Street Matraville; Mr G A MacDonald, four hundred and fifty thousand dollars, 10/2 Melrose Parade Clovelly; Mr B Schweickle, forty thousand dollars, 24 Toyer Street Tempe.

g) Ms R J Schulz is to covenant by deed that the proposed security over 52 Brighton Street, Banksmeadow, has priority over the existing mortgage for one hundred thousand dollars in her favour over that property.

h) Mr M E Gould is to enter into an agreement to forfeit the sum of one hundred thousand dollars if the applicant fails to comply with his bail undertaking, and is to deposit that sum of one hundred thousand dollars cash as security.

2. Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may thereupon be arrested by any police officer.

3. Without prejudice to any other application to vary this order, liberty to apply to me for any variation to this order within twenty one days from today on two days notice.

4. Bail may be entered into before any justice of the peace. oOo

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