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  • Unreported Judgment

Lansdowne v Director of Public Prosecutions

 

[2014] QSC 2

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Bail Application

ORIGINATING COURT:

DELIVERED ON:

15 January 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

9 January and 14 January 2014

JUDGE:

Byrne SJA

ORDER:

Bail granted

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – OTHER CASES – where the applicant is charged with contravening section 60A(1) of the Criminal Code – where applicant must show cause why detention in custody is not justified.

Bail Act 1980 s 16(2)(b), s 16(3A)(a), s 16(3C)(a), s16(3B)

Criminal Code Act 1899  s 60A(1)

Carew v DPP [2014] QSC 001

COUNSEL:

Mr J B Godbolt for the applicant

Mr D L Meredith for the respondent

SOLICITORS:

A W Bale and Son, Solicitors for the applicant

Director of Public Prosecutions for the respondent

Bail application

[1] Paul Lansdowne (“the applicant”) seeks bail on a charge of contravening s. 60A (1) of the Criminal Code.  The charge details are set out in my decision on a bail application by a co-accused, Joshua Carew[1].

[2] That decision canvasses the factual circumstances and legal considerations germane to the charge and discusses the applicable statutory provisions and general law principles governing bail[2]

S.16 (2)(b) factors

[3] The applicant is aged 57.

[4] He owns a fast food outlet in Nambour.  He ran that small business until his incarceration last December.  The business is not profitable enough to sustain employing a manager.

[5] The applicant lives at his property at Eerwah Vale.  The land secures a debt he incurred in establishing his business.  He claims that continuing detention may have such an adverse impact on his business income as to put his property in jeopardy.

[6] His Rebels membership matters.

[7] The hearing started last week.  At that stage, there was evidence to show that the applicant is a “patched” Rebels member. 

[8] There was no suggestion that he had in mind terminating his membership[3].

[9] A possible explanation for such reticence was that Rebels membership affords an opportunity to benefit from crime. 

[10] On the resumed hearing, by his affidavit, the applicant explained why he has chosen not to resign from the “organisation”: in short, he fears that such a step would implicitly acknowledge that he is a Rebel, constituting an admission that may be used against him – at this trial and afterwards. 

[11] There is, as the applicant accepts, a “strong” case that he is a Rebel.  But he does not accept that the issue whether he was, on 1 November 2013, a Rebel must be resolved against him. 

[12] On the available information, there is no satisfactory basis for supposing that, in his evaluation of the evidence against him, the applicant realises that the contention that he was a Rebel on 1 November 2013 will certainly be proved at trial to the requisite criminal standard.

[13] Now, if he is, or has ever been, a Rebel, the consequences are potentially serious.  For one thing, should he ever be charged in future with any offence – indictable, simple or even regulatory – he must be held in custody unless he shows that his detention pre-trial is not justified[4].

[14] So any conduct of his that constitutes an admission of Rebels membership could prejudice his liberty for years to come.

[15] In these circumstances, his professed attitude to resignation is plausible and understandable.

[16] It should not be inferred that the applicant’s unwillingness to resign indicates an enhanced risk of offending.

Passport

[17] The applicant holds a New Zealand passport.  It is to be surrendered[5].

Bail history

[18] The applicant has, it seems, complied with conditions of earlier grants of bail.

[19] He has previously been convicted[6] of two drink driving offences and possession of a prohibited import[7].  More recently, in 2009, he was fined $200 for possession of dangerous drugs and a weapon. 

[20] He was admitted to bail on the trafficking charge[8] and has answered that bail satisfactorily too.

Unacceptable risk?

[21] In view of the applicant’s ties to the Sunshine Coast, there is not an unacceptable risk that he would fail to appear at trial.  Indeed, as much is conceded; and no surety is sought.

[22] What of the risk of offending?

[23] The applicant proposes to submit to a bail condition that he not have any contact, direct or indirect, with anyone he knows to be a member of the Rebels. 

[24] The risk that the applicant would commit an offence if released will be ameliorated by reporting regularly and by the prohibition on Rebels involvement. 

[25] Moreover:

 only 10 weeks will elapse before trial.  So there is not much time in which to offend;

 the applicant’s anxiety not to return to solitary confinement is a substantial incentive not to commit an offence in the pre-trial interval;

 he expects that the Police will be on the lookout for any contravention of his bail conditions.

[26] There is not an unacceptable risk that the applicant would commit an offence pending trial.

Disposition

[27] In all the circumstances, the s.16 (3A) burden is discharged.

[28] Bail is granted.

Footnotes

[1] Carew v DPP [2014] QSC 001, [1].

[2] See, especially, [3]-[8], [28]-[43], [50]-[51].

[3] There is no material revealing what needs to be done to resign in accordance with any rule or some custom of the Rebels.

[4] S. 16 (3A)(a), (3C)(a) Bail Act 1980.

[5] See s.16 (3A), (3B) Bail Act.

[6] In 1978 and 1980.

[7] Which attracted a $300 fine.

[8] See, generally, Carew at [20]-[26].

Close

Editorial Notes

  • Published Case Name:

    Lansdowne v The Director of Public Prosecutions

  • Shortened Case Name:

    Lansdowne v Director of Public Prosecutions

  • MNC:

    [2014] QSC 2

  • Court:

    QSC

  • Judge(s):

    Byrne SJA

  • Date:

    15 Jan 2014

Litigation History

No Litigation History

Appeal Status

No Status