The Queen v Wilson-Anderson [2020] NTSC 53

Suttie v The Queen [2013] NTSC 37, R v JDT [2011] NTSC 39, referred to.

Respondent: Office of the Director of Public Prosecutions

The Queen v Wilson-Anderson [2020] NTSC 53

• [1] This is an application for bail by Michael Scott Wilson-Anderson who has been charged with one count of intentionally supplying a commercial quantity of cannabis plant material between 1 January 2016 and 21 December 2017.
• [2] The maximum penalty for the offence is imprisonment for 14 years. This means that, pursuant to s 7A of the Bail Act, there is a presumption against bail and bail must not be granted unless the court is satisfied that bail should be granted. The matters to be considered in that process are those set out in s 24 of the Bail Act.
• [3] The applicant was arrested on 20 December 2017 and granted bail from that date until 29 June 2020. The matter came on for trial in the Supreme Court on 29 June 2020 but the jury was discharged on 30 June 2020 and the applicant was remanded in custody where he has remained. His trial is now listed to commence in a little over three and a half months, on 7 December 2020.
• [4] The Crown case against the applicant is that for a period of approximately two years he and a co-offender, JT, established and operated a commercial cannabis supply network in the Darwin region. The cannabis was sourced by the applicant in South Australia and transported to Darwin where he and JT would supply it, by the pound, to persons unknown. The Crown says that JT has provided a sworn statement detailing the drug operation conducted with the applicant in which JT estimates the pair have been involved in drug transactions of a value of at least $1 million in the two-year period prior to his arrest.
• [5] The Crown alleges that on 22 November 2017 JT and another male, JJ, drove a Holden Commodore south along the Stuart Highway. The vehicle was stopped by police and searched as it approached Katherine. The search revealed a number of items including Cryovac bags, multiple rubber bands and bundles of cash also secured by rubber bands. The total quantity of cash seized from the vehicle was $314,790. JT and JJ were arrested.
• [6] Later that same day Drug and Organised Crime Squad members executed a search warrant at the home shared by the applicant and JT in the course of which a number of items were seized including two vacuum sealer machines and two bundles of cash each in the sum of approximately $4,000.
• [7] A little over three weeks later on 16 December 2017, the applicant travelled to Adelaide accompanied by an alleged co-offender, AD. The Crown alleges that whilst in Adelaide the applicant sourced cannabis which was placed in two boxes which were in turn placed in a grey Prado motor vehicle. On 19 December 2017 the applicant departed Adelaide in a Mitsubishi Lancer travelling in front of AD who was driving the Prado. It is alleged that he did so as a pilot vehicle to alert AD of any police presence.
• [8] As the two vehicles approached Mataranka in the Northern Territory they were simultaneously apprehended by police. A search of the Mitsubishi located a wallet containing $4,200 in cash in $100 notes. A search of the Prado located the two boxes of cannabis. The applicant and AD were arrested.
• [9] AD participated in a formal interview in which he implicated the applicant in the offending. As was his right the applicant declined to comment. The street value of the cannabis was said to be $144,000.
• [10] Analysis of the rubber bands that had secured a sum of $122,000 found in JT's vehicle on 22 November 2017 disclosed DNA components overwhelmingly matching the accused. Swabs taken from one of the Cryovac machines recovered from the applicant's premises on that day were found to contain THC, the active ingredient in cannabis. Testing of the Cryovac bags used to contain the $314,790 seized from JT on 22 November 2017 revealed markings overwhelmingly consistent with being from one of the Cryovac machines seized from the home of the applicant on 22 November 2017.
• [11] AD has provided a sworn statement detailing the role of the applicant in obtaining and transporting the cannabis seized on 20 December 2018. As I have mentioned, JT has also provided a sworn statement providing details of the commercial drug operation undertaken by himself and the applicant in which he estimates the pair had conducted drug transactions of at least

$1 million in value in the two-year period prior to his arrest. The defence has indicated it will seek to discredit those witnesses but, of course, any attempt to do so will have to await the trial.

• [12] It is alleged that the sum of $314,790 seized from JT was the proceeds of the sale of approximately 28,576 grams of cannabis sold by JT and the applicant.
• [13] Given the statements of the two witnesses who are co-accused and who have not at this point been discredited, and given the forensic evidence, it cannot be, and has not been, suggested that this is a weak Crown case. As presently understood it would seem to me to be a strong Crown case. Further, in the event of a conviction against the applicant, the scale of the operation and the seriousness of the offending would call for a significant term of actual imprisonment.
• [14] In addition to those matters it is alleged that immediately after the Crown opening and during the first luncheon adjournment in the course of the Supreme Court trial which commenced on 29 June 2020, the applicant, who was then on bail, approached the witness AD and called him a "little Bitch" and said to him "you are going to get what is coming to you". There is no dispute that the two stood near each other at the time. Two police officers were nearby. One officer said that he saw the applicant walk directly up to AD and the applicant stood so close to AD as to suggest intimidation to the officer. The officer said that when AD left the area he appeared distressed. AD reported the incident to police very shortly after it occurred.
• [15] The applicant denies the allegations of interference and was supported by his mother who says she was nearby and heard nothing. The applicant has been charged with menacing or intimidating the witness and with attempting to obstruct or defeat the course of justice in relation to that incident. The matter is presently before the Local Court.
• [16] This occurrence contributed to the jury being discharged and the trial adjourned. AD said in a statement that he had "been feeling okay about giving evidence but now I am fearful". He said he did not want to give evidence in the court room.
• [17] It was observed on behalf of the applicant that no other complaint had been made by AD of attempted interference even though some time had passed before the trial. However, it is to be noted that the Crown had just opened its case before the jury spelling out in the presence of the applicant the detail of what was alleged against him.
• [18] In support of the application I have received an affidavit sworn by counsel for the applicant. In that affidavit the background of the applicant is set out. It is not necessary to repeat that in detail. He was born and raised in Darwin and apart from about one year has lived his life in the Northern Territory. His mother and a large extended family live in Darwin. He has a partner in Darwin, she is aged 20 years. His brother is offering to deposit $10,000 cash to guarantee his attendance at court. He has no prior convictions. He has qualifications as a window tinter on motor vehicles and has employment available to him. The employer provided a reference attesting to the work being available and the importance of the accused to the business. The applicant has previously honoured his bail conditions which continued up until the day his previous trial commenced. Apart from the alleged incident in the luncheon adjournment there is no other suggestion that he sought to interfere with AD or other witnesses prior to the trial.

• [19] By virtue of s 7A of the Bail Act, there is a presumption against bail. Section 7A(2) of the Act provides that bail must not be granted to a person accused of an offence to which this section applies unless the person satisfies an authorised member or court that bail should be granted. The onus of proof clearly rests upon the applicant.
• [20] In my opinion the approach to such an application is that expressed by

Kelly J in R v Williams [2012] NTSC 47 at [5] where her Honour said:

It seems to me that the plain words of s 7A do nothing more than cast an onus on the applicant to satisfy the court that bail ought not to be refused, and that in considering whether or not the applicant for bail has satisfied the onus, the court must (as in all other bail applications) take into consideration the matters set out in s 24 of the Act, and no others. If the applicant does not satisfy the onus, then bail should be refused.

• [21] This approach is consistent with that adopted by Blokland J in R v JDT [2011] NTSC 39 and by Hiley J in Suttie v The Queen [2013] NTSC 37. I do not follow the construction referred to in R v Wilson [2011] NTSC 15.

• [22] The first of the criteria to be considered is the probability of whether or not the applicant will appear in court in respect of the offence.
• [23] The evidence reveals the applicant is a long-term resident of Darwin and his mother, siblings and members of his wider family also reside here. His partner resides here with the applicant's mother. He has no prior convictions. He has worked for his most recent employer since March 2018 and employment is available to him with that employer should he be released.
• [24] He had been on bail prior to the previous hearing, he turned up for that hearing and had honoured his bail conditions. There is no suggestion that he has not complied with bail obligations in the past. His brother has offered a $10,000 cash deposit to guarantee his attendance at court on this occasion.
• [25] On the other hand, based upon the evidence available to me, and without having heard from the applicant, it would seem this is a fairly strong Crown case. This view may change in light of material yet to be produced to the court but the presence of two witnesses who give direct evidence of the involvement of the applicant in the alleged offending, considered along with the inculpating forensic evidence, leads me to that conclusion.
• [26] In the event of a conviction, and accepting for present purposes the description of the nature of the operation provided by the Crown, it is likely the applicant is facing a significant term of imprisonment.
• [27] Notwithstanding his strong ties to the Territory there would be a real incentive for him to flee the jurisdiction.
• [28] The next matter for consideration is the interests of the applicant. He has been in custody since 30 June 2020 and the trial is set for 7 December 2020. At that time he would have spent just under six months in custody.
• [29] Although it has not been argued I accept that conditions on remand are not ideal and that there are additional restrictions in light of the COVID-19 pandemic which must have an adverse effect on prison conditions. However, there is nothing in the material placed before me to suggest that the conditions on remand as experienced by the applicant are especially onerous.
• [30] It is not suggested that the applicant needs to be free to prepare for his appearance in court or to obtain legal advice. It is not suggested that he needs to be free for any other lawful purpose. I do not regard the desire of the employer for the applicant to assist in their business as creating a relevant need for the applicant to be free.
• [31] The balance of the criteria referred to in s 24(1)(b) of the Bail Act do not appear to be relevant.
• [32] A matter of significant concern is the risk that the applicant would, if released on bail, interfere with witnesses. This concern arises out of the incident alleged to have taken place in the luncheon adjournment on 29 June 2020. If proven, the comments alleged to be made by the applicant to one of the most significant of the Crown witnesses creates a very real concern regarding the potential for interference with witnesses.
• [33] In relation to the remaining criteria under s 24 of the Bail Act I am not aware of any evidence suggesting any relevant concern.
• [34] As I have mentioned, the onus is on the applicant to show that bail should be granted. Having considered the matters identified in s 24 of the Bail Act I find the applicant has failed to discharge that onus. The particular concerns I hold relate to the possibility of him absconding and, most significantly, the real concern that he would interfere with witnesses.
• [35] The application is dismissed.