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  • Unreported Judgment

Re Tesic

 

[2015] QSC 205

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

Re Tesic [2015] QSC 205

PARTIES:

R
(respondent)
v
IVAN TESIC
(applicant/accused)

FILE NO/S:

SC No 3108/15

DIVISION:

Trial Division

PROCEEDING:

Bail Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2015

JUDGES:

Carmody CJ

ORDERS:

The orders of the Court are that:

  1. That there be a non-publication order pursuant to s 12 of the Bail Act 1980 (Qld) in relation to paragraphs 8, 9 and 10 and Annexure H of the affidavit of Brice William Neilson dated 22 April 2015 as well as anything else that might imply the content of those paragraphs and annexure;
  1. This order to be in force until any other order of the Court is made in respect of the non-publication of that material;
  1. The applicant be granted bail on the conditions that:
  1. That the applicant reside at [redacted], unless the applicant receives express prior written consent of the Director of Public Prosecutions of Queensland to reside elsewhere;
  1. That the applicant report twice daily between the hours of 8:00AM to 6:00PM to the Office in Charge of police at the Green Valley police station unless he receives prior consent of the Director of Public Prosecutions of Queensland to report elsewhere;
  1. That the applicant must remain in the confines of the dwelling-place prescribed under Clause 4 between the hours of 8:00PM and 6:00AM;
  1. That the applicant must not, except through his legal representatives, contact or attempt to contact any Crown witnesses, either directly or indirectly, while subject to this bail order;
  1. That the applicant must not, except through his legal representatives, contact or attempt to contact N, either directly or indirectly, while subject to this bail order;
  1. That the applicant must not use, possess, control or otherwise have access to, directly or indirectly, an encrypted mobile phone or other telecommunication device;
  1. That the applicant must only use, possess, control or have access to one (1) unencrypted mobile phone, and not any other telecommunication device;
  1. That the applicant must surrender any telecommunication devices which he possesses, controls or uses, or otherwise has access to, for examination by appropriate law enforcement authorities as required;
  1. That the applicant must permit law enforcement authorities to access and maintain records of any information, data or other content recorded on any telecommunication devices which he possesses, controls or uses, or otherwise has access;
  1. That the applicant must take all reasonable steps to assist and facilitate law enforcement authorities to access and record any information, data or other content recorded or retained by the applicant or a third party regarding the usage of any telecommunication devices which the applicant possesses, controls or uses, or otherwise has access;
  1. That the applicant must provide an undertaking not to engage in any act or omission, or use any application, which would destroy, corrupt, impair, modify, obfuscate, conceal, or otherwise render inaccessible any information, data or content retained or generated by any telecommunication device which is possessed, controlled, used or accessed by the applicant;
  1. That the applicant must not approach any international or domestic airports, shipping ports or docks used for the interstate or international transportation of persons, or train stations used for the interstate carriage of persons, while subject to this bail order, except to enable travel to Queensland for purposes connected with the court proceedings to which this application relates and except to return to Sydney New South Wales after release on this bail. In so doing the applicant must contact the Bail section of the Office of the Director of Public Prosecutions 12 hours before any return flight to New South Wales and provide flight details, must leave from the Brisbane Domestic Airport and must do likewise on any further flight to Sydney following any court proceedings to which this application relates;
  1. That the applicant must not leave the territory of New South Wales without notifying the Director of Public Prosecutions of Queensland;
  1. The applicant must wear a personal electronic monitoring (GPS tracking) device, procured at his own expense, and consent to an appropriate law enforcement authority within Queensland, New South Wales and/or other state or territory to remotely access, examine or review the data from such device at any time. The applicant shall have 7 days from release on bail to procure such a device, or such further time as consented to by the Director of Public Prosecutions of Queensland;
  1. That the applicant must provide an undertaking not to apply for any passport, exit visa from Australia, entry visa into another nation-state, or other travel documentation while subject to this order;
  1. That the applicant must surrender any passports, exit visas or other travel documents under his actual or constructive possession or control; and
  1. That the applicant provide the following sureties to the Supreme Court Registry:

a) A surety of $500,000 from an acceptable person whose name will have been given to an officer of the Bail Section of the Office of the Director of Public Prosecutions at least 12 hours before the surety has been entered into;

b) A surety of $400,000 from Natica Tesic and Djordje Tesic; and

c) A surety of $500,000 from Stacey Tesic.

  1. That the applicant must not, except through his legal representatives, contact any of the following named persons, either directly or indirectly while subject to this bail order:-

a) Sureshen Reddy;

b) Terry Gooney;

c) Billy Raymond Thomas;

d) Nicholas Alexis Hatton;

e) Darren John Dark;

f) Shaun Henry Beechey;

g) Ricky Anthony Ciano;

h) Vlatko Tesic; and

i) Novak Tesic.

CATCHWORDS:

CRIMINAL LAW – REAPPLICATION FOR BAIL – MATERIAL CHANGE IN CIRCUMSTANCES – where the applicant was indicted for trafficking and possessing dangerous drugs – where the previous application for bail was refused – where the applicant alleges delay in disclosure – where there were difficulties experienced by the applicant in accessing the brief of evidence – where the applicant gave supplementary affidavit evidence – where the applicant is now willing to reside in New South Wales – whether there is a material change in circumstances justifying a grant of bail

CRIMINAL LAW – APPLICATION FOR BAIL – SHOW CAUSE APPLICATION – UNACCEPTABLE RISK – where applicant indicted for trafficking and possessing dangerous drugs – where applicant alleged office bearer of a relevant association under the Vicious Lawless Association Disestablishment Act 2013 (Qld) – where previous application for bail refused – where recorded statements include direct and indirect threats against witnesses and third parties – where substantial duration of potential imprisonment term if convicted – whether unacceptable risk of interfering with witnesses – whether unacceptable risk of failing to appear when required – whether the applicant can show cause that continued detention is unjustified

Bail Act 1980 (Qld)

Criminal Code (Qld)

Criminal Organisation Act 2009 (Qld)

Drug Misuse Act 1986 (Qld)

Vicious Lawless Association Disestablishment Act 2013 (Qld)  

Ex parte Edwards [1989] 1 Qd R 139; [1988] QSC 195

Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413

Prevato v Governor, Metropolitan Remand Centre and Others (1986) 8 FCR 358

R v Hughes [1983] 1 Qd R 92

R v Malone [1903] St R Qd 140

Scrivener v DPP [2001] QCA 454

COUNSEL:

P J Callaghan SC for the applicant

D Meredith for the respondent

SOLICITORS:

AHA Taylor Lawyers for the applicant

ODPP (Qld) for the respondent

  1. THE CHIEF JUSTICE: On 27 March 2015 the applicant, Mr Ivan Tesic, filed an originating application for bail with the registry of the Queensland Supreme Court.  The application was heard and reserved for judgment on 17 April 2015.  Justice Jackson of the Queensland Supreme Court previously refused bail for the applicant. 
  2. There are two main issues in dispute:

1. whether there has been a material change in circumstances justifying a reconsideration of the application for bail;

2.whether the applicant presents an unacceptable risk of:

  1. committing further offences whilst on bail;
  1. failing to appear when required; or
  1. interfering with witnesses for the prosecution.

Charges against the Applicant:

  1. On 4 April 2014 the applicant was arrested and charged (“subject charges”) with:

1. Unlawfully trafficking a Schedule 1 dangerous drug, namely methylamphetamine;[1] and

2. Unlawfully possessing a Schedule 1 dangerous drug, namely methylamphetamine, in a quantity exceeding the amount prescribed under Schedule 4.[2]

  1. The applicant was jointly charged with co-accused Mr Brett William Young.  Mr Young has since furnished evidence against the applicant. 
  2. The precise circumstances relating to the charges have not yet been comprehensively presented before the Court.  However, the respondent alleges that Mr Young is an integral component of the primarily circumstantial case formulated by the prosecution against the applicant.  The applicant and respondent diverge in their assessment of the relative cogency and strength of the prosecution’s case. 
  3. A relevant circumstance of aggravation relating to this offence is the allegation that the applicant was a vicious lawless associate and office bearer of a relevant association under sections 3, 5(1) and 6 of the Vicious Lawless Association Disestablishment Act 2013 (Qld) (“VLAD Act”) at the time of committing the offences.  The offences are “declared offences” under Schedule 1 of the VLAD Act.
  4. The maximum base penalty for the subject charges are 25 years imprisonment.[3]  If the circumstances of aggravation are established, the applicant will be subject to a mandatory further penalty of 25 years imprisonment for being a “vicious lawless associate” and an “office bearer” of a relevant association.[4]  Assuming the base penalties are served cumulatively and the circumstances of aggravation are proven, the applicant may be liable to a maximum period of imprisonment of 50 years, and minimum period of 25 years, on conviction.[5] 

Procedural History Relevant to Bail

  1. On 18 September 2014 an originating application for bail was heard before Jackson J of the Queensland Supreme Court relating to the subject charges. 
  2. Justice Jackson delivered reasons ex tempore and refused the application for bail.  On my reading of Jackson J’s reasons, his Honour primarily refused the application substantially because the applicant was unable to show cause why his detention in custody was not justified, having regard to the unacceptable risk that he might interfere with the witnesses of the prosecution, more specifically Mr Young.

Material Change in Circumstances

  1. Before embarking on an analysis of the alleged level of risk associated with granting the applicant bail, it is convenient to examine the threshold question of whether this Court should entertain the reapplication for bail, having regard to the well-reasoned refusal of bail delivered by Jackson J. 
  2. If this Court is satisfied that there is no material change of circumstances, there are strong policy reasons for refusing to embark on a reconsideration of the level of risk associated with granting the application for bail. 

Submissions of the Parties

  1. The applicant advances four circumstances which, either separately or in combination, are alleged to constitute a “material change in circumstances”:

1. The intervening provision of the full brief of evidence by the prosecution and the related delay;

2. The difficulties experienced by the applicant in accessing the brief of evidence;

3. The applicant’s own evidence about the recorded conversations concerning the alleged threats against witnesses; and

4. The applicant’s commitment to residing in New South Wales. 

  1. The respondent, whose outline of submissions was prepared and filed without the benefit of having read the outline of submissions of the applicant, denies that any of these circumstances amount to a “material change in circumstances”.

Principles Governing Reapplications for Bail

  1. Prior to 1980, the right to make successive applications for bail was codified under section 555 of the Criminal Code (Qld).  However, this provision was repealed by section 4(1) of the Bail Act 1980 (Qld), which entered into force on 1 July 1980. 
  2. Despite the abolition of section 555 of the Criminal Code (Qld), this Court has consistently upheld the right of a person charged with a criminal offence detained in custody to file successive applications for bail before differently constituted courts possessing the requisite jurisdiction to hear and determine the application.[6]  The applicant is not precluded from renewing their application for bail merely by reason of a prior refusal. 
  3. The rationale for permitting successive applications for bail resides within the extraordinary nature of pre-trial detention. Individuals charged with serious criminal offences may be detained in custody where they present an unacceptable risk to the community and the integrity of the administration of justice. Such individuals – despite ostensibly benefitting from the presumption of innocence – have not yet been tried or convicted of the criminal offence for which they have been charged. Having regard to the singular significance the courts assign to personal liberty within Australia’s liberal democracy, this constitutes an exceptional power vested within judiciary which requires prudent precautionary measures. One such safeguard is the Court’s indulgence of successive applications for bail. 
  4. However, this Court does not possess an unlimited tolerance for reapplications for bail.  A party should not be entitled to engage in “judge shopping” for the purposes of securing a judicial officer more sympathetic to their predicament. Similarly, a party should not be able to rely on information or alternative bail conditions deliberately not presented, for tactical reasons or otherwise, to judges determining earlier applications for bail.  Such practices, if allowed, would not only impugn the finality of proceedings, but result in the proliferation of bail applications, which would rapidly become an intolerable burden on public time and resources. 
  5. Accordingly, before the Court will consider the merits of a successive bail application, it should be satisfied that there is a material change in circumstances.[7]  Although this is not an absolute encumbrance on jurisdiction, it represents a pragmatic policy designed to promote judicial comity, predictability and certainty in decision-making, public confidence in the justice system, and economical use of curial resources. The applicant bears the persuasive onus to establish, on the balance of probabilities, that such a “material change in circumstances” has occurred.
  6. A “material change in circumstance” may be defined as one which would justify an order in favour of the applicant.[8] This definition, however, merely describes the nature and extent of the qualifying concept of “material change”.  It provides no descriptive or criteriological content to the concept of “circumstance”.  The Oxford English Dictionary describes “circumstance” as “that which surrounds materially, morally, or logically”.  Further definitions include “that which stands around or surrounds; the totality of surrounding things; surroundings ; environment” and “the logical surroundings or ‘adjuncts’ of an action; the time, place, manner, cause, occasion etc…”.
  7. The core of the concept of “circumstance” is that it surrounds the relevant subject; that is, it will ordinarily be of an external or exterior nature.  For this reason, a mere change in the mind of the applicant, alternative presentation of bail conditions available at the original application, or appreciation of the significance of facts known at the time of the bail application, will not ordinarily, without a corresponding adjustment or modification of the underlying factual matrix, constitute a change in “circumstances”. 
  8. This principle is not absolute.  In exceptional circumstances, an internal or interior change in the mind of the applicant may give rise to a “material change in circumstances”.  This would include, for example, where the applicant was a self-represented litigant at the prior bail application, and therefore did not appreciate the significance of certain evidence.  Alternatively, the applicant may have experienced the sudden onset of a crippling mental illness following the original application of bail.  Accordingly, although the external and internal dichotomy may be a useful guide in certain cases, it must not displace the fundamental question, which is whether there has been a “material change in circumstance”. 

Delay

  1. The applicant has been in custody since 4 April 2014.  A partial brief of evidence was served on the applicant in August 2014.  The full prosecution brief was served on 18 February 2015.  There is limited evidence explaining the delay.  Committal of the applicant is set down for 25 and 26 June 2015, and the applicant claims that it is “entirely foreseeable” that this matter will not reach trial until 2017.  On this basis, the applicant claims that the delay is a “material change in circumstances” justifying a renewal of the application for bail.
  2. The applicant bears the persuasive onus, but has not adduced evidence explaining why it is “entirely foreseeable” that this matter will not reach trial until 2017.  Delay may be caused by the prosecution or the defence, and may be explicable, in complex proceedings involving voluminous documents such as this case, by a shortage of resources of the prosecution, defence or the Courts.  The length of, and reasons for, the delay must be balanced to determine whether there is a change in circumstances or bail should be granted.[9] 
  3. Despite this, the applicant has been detained in pre-trial custody for in excess of one year.  The dates listed for the committal proceeding indicate that significant further delay is inevitable.  In September 2014 the Court was under the apprehension that the trial would may not be held in 2015.  This has now become a virtual certainty, and further delay is reasonably anticipated having regard to the voluminous nature of the respondent’s case.  Accordingly, the duration and circumstances of the delay may be sufficient to constitute a change in circumstances. 

Difficulties in Accessing the Brief:

  1. The applicant submits that a “particular prejudice will accrue to the applicant if he is not granted bail” because of the difficulties associated with preparing and financing a defence whilst in prison.  The applicant posits that although “this prospect was contemplated, in the abstract, on the previous bail application, this reality is now the subject of evidence that was not previously before the Court.”
  2. Firstly, it is unclear whether any special prejudice will be caused to the applicant if not granted bail.  Although the challenges associated with preparing and financing a brief whilst in prison are “notorious”,[10] accused persons not infrequently successfully defend voluminous prosecution cases from inside corrective services facilities.  Entitlement to bail does not – and, indeed, should not – depend on the mere size of the prosecution’s brief of evidence. 
  3. Secondly, it is unclear how the complexity or dimensions – whether physical or conceptual – of a brief of evidence impact, directly or indirectly, on whether the accused is an “unacceptable risk” of either committing an offence on bail, failing to appear when required, or interfering with witnesses.  The size of the brief is, at best, a comparatively minor discretionary factor.  It is not of such a nature that it would require the applicant to be granted bail.
  4. However, the applicant has demonstrated that the attitude of corrective services and the circumstances of his incarceration have significantly limited his ability to access the brief of evidence.  The applicant was first permitted to access the brief on 2 March 2015, and throughout the entire month of March was entitled to only 24 hours of access to view the brief.  The respondent has not shown that such constraints were reasonably necessary in the circumstances, or indicated that corrective services may be willing to increase the applicant’s opportunity to access the brief of evidence.  As these events only crystallised after the original application for bail, they evince a change in circumstances. 

Applicant’s Evidence regarding Recorded Conversations

  1. The applicant claims that his own affidavit, sworn on 21 April 2015, contains material vitiating the menacing effect of certain recorded conversations.  According to the applicant, certain threats made to Mr Young emanated from an offensive and ominous letter received by his then fiancée, N. The applicant has not established that this letter was sent, directly or indirectly, by Mr Young or his associates. 
  2. The applicant has supplied no explanation as to why this evidence, which was within the knowledge of the applicant, was not presented before Jackson J at the original bail application.  The mere fact that the applicant has now elected to give evidence on such matters does not amount to a “material change in circumstances”. Rather, it constitutes a tactical decision to present facts and arguments which were known, but not advocated, at the previous application.
  3. Parties are not entitled to utilise this Court as a forum for testing alternative case theories not advocated in a previous application for bail.  Information or evidence which was known to the applicant, but not advanced by reason of inattentiveness, negligence, or tactical choices, will not generally give rise to a “material change in circumstances” justifying a reconsideration of the application for bail, unless the failure to do so would give rise to gross or serious injustice. 
  4. Accordingly, the affidavit presented by the applicant explaining matters exclusively or predominately within his knowledge at the time of the prior bail application does not constitute a “material change in circumstances”. 

Willingness to Reside in New South Wales as a Condition of Bail

  1. The applicant states that he is now willing to reside at a property he maintains in New South Wales if granted bail.  The applicant claims that his willingness to reside in New South Wales constitutes a material change in circumstances.
  2. It appears that the applicant knowingly maintained this property prior to his bail application in September 2014.  No evidence has been adduced explaining why the applicant is only now expressing a willingness to reside in New South Wales as part of a grant of bail.  This bail condition should have been presented to Jackson J at the original application for bail.
  3. The applicant’s expressed willingness to reside in New South Wales constitutes a change only to the intentions or desires of the applicant.  There has been no material modification or adjustment to the surrounding factual matrix which has given rise to a “change of circumstances”. 
  4. If this Court were to uphold that an applicant merely changing their desires and intentions in terms of acceptable bail conditions amounts to a “material change of circumstances”, applicants would be encouraged to submit incrementally more onerous bail conditions to different Courts for the purposes of securing the least burdensome bail requirements.  This would rapidly create an intolerable burden on public time and resources, and undermine public confidence in the administration of justice.  Accordingly, applicants should be dissuaded from withholding material information or acceptable bail conditions from the Court at first instance. 
  5. Therefore, the applicant’s expressed willingness to reside in New South Wales does not constitute a “material change in circumstances” requiring this Court to entertain a fresh bail application on a whole new basis.

Conclusion on Material Change of Circumstances

  1. The convergence of circumstances post-dating the original application for bail demonstrating the likelihood of protracted delay in bringing the matter to trial, excessive periods of detention in pre-trial custody without conviction, and difficulties associated with accessing the brief of evidence are sufficient, in combination, to constitute a “material change in circumstances”.  Accordingly, this Court should exercise its discretion to entertain a fresh consideration of the full circumstances relevant to the merits of the bail application.

Merits of the Application for Bail

  1. Persons detained in pre-trial custody on a charge for a criminal offence for which they have not been convicted are presumed to be entitled to bail, subject to the provisions of the Bail Act 1980 (Qld).[11]
  2. The presumption in favour of bail reflects fundamental social values underpinning Australia’s liberal democracy. As a general principle, persons of sound mind should not be deprived of their liberty except as prescribed by law, and ordinarily only after conviction following a fair trial before an impartial and independent tribunal.  Furthermore, as persons are presumed not guilty, pre-trial detention is not justifiable as a form of extra-curial punishment or retribution.  The rule of law requires such safeguards to preserve the supremacy of regular law, and protect the citizenry from arbitrary, idiosyncratic, excessive or unjustified Executive action.
  3. However, personal liberty is not an absolute principle.  In appropriate circumstances, it must accede to the demands of community protection, the incapacitation of serious criminal offenders, and the preservation of the integrity of the administration of justice.
  4. The law seeks to balance these competing and conflicting interests through two broad mechanisms of relevance in this case.  Firstly, the law requires the refusal of bail if the applicant presents an “unacceptable risk” of engaging in certain conduct which requires incapacitation, community protection, and the safeguarding of judicial processes.[12]  Secondly, where the applicant is alleged to have committed certain serious criminal offences of a nature deemed by the legislature to prima facie require detention, the onus of proof is reversed and the applicant must “show cause” why continued detention is unjustified.[13] 
  5. It is convenient, for present purposes, to take the second issue first.

Show Cause Applications: Participants in Declared Criminal Organisations

  1. An applicant must “show cause” why continued detention in custody is unjustified if certain allegations under sections 16(3) and 16(3A) are made.  Under section 16(3A)(a) of the Bail Act 1980 (Qld) if the defendant is alleged to, at any time, have been a participant in a criminal organisation, the Court must refuse to grant bail unless the defendant shows cause why their continued detention is not justified. “Allegation” was defined in Prevato to mean the assertions made, expressly or impliedly, in the whole of the evidence advanced by the accuser.[14] 
  2. The charges particularised by the prosecution against the applicant merely allege that he is an “office bearer” of a relevant association that has committed a declared offence.  These charges do not, by necessity, require any allegation that the applicant was a participant in a declared criminal organisation.  However, the respondent has made submissions that the applicant is also a participant in a “criminal organisation”, because he is involved in a joint criminal enterprise with a group of people to traffic drugs. 
  3. Section 6 of the Bail Act 1980 (Qld) defines “criminal organisation” by reference to section 1 of the Criminal Code (Qld).  Section 1 defines a criminal organisation as:

1. an organisation of three or more persons

  1. who have as one of their purposes engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in “serious criminal activity” as defined under the Criminal Organisation Act 2009 (Qld); and
  1. who, by reason of their association, represent an unacceptable risk to the safety, welfare or order of the community; or

2. a criminal organisation under the Criminal Organisation Act 2009 (Qld); or

3. an entity declared under a regulation to be a criminal organisation.

  1. The affidavits of Mr Young and Detective Senior Constable Lynton Bradbury indicate that the joint criminal enterprise to traffic methylamphetamines consisted of three or more persons.  The trafficking of methylamphetamines appears to be the primary, if not the only, purpose of the criminal organisation. 
  2. Under section 6(a) of the Criminal Organisation Act 2009 (Qld) “serious criminal activity” means a “serious criminal offence”.  Section 7(a) of that Act defines “serious criminal offence” to include an indictable offence punishable by at least seven years imprisonment.  As discussed above, under paragraph [7], the maximum penalty for each of the subject offences, which are both indictable, is 25 years imprisonment.  Accordingly, the purpose of the joint criminal enterprise was to engage in “serious criminal activity”.
  3. The proliferation of methylamphetamines generates tragic and deleterious consequences for the broader welfare of society.  Trafficking in dangerous drugs causes irrevocable and catastrophic emotional, physical and psychological damage to consumers and their families and friends.  Drug dependency also presents an extraordinary economic burden on the community, not only in the form of direct costs associated with medical treatment, social welfare and rehabilitation, but through indirect costs deriving from a reduction in aggregate productivity and efficiency.  Therefore, it is accepted that an association formed for the purposes of trafficking in methylamphetamines presents an “unacceptable risk” to the safety, welfare, and order of the community.  Accordingly, the joint criminal enterprise entered into by the applicant constitutes a “criminal organisation”. 
  4. To facilitate a show cause application under section 16(3A)(a) of the Bail Act 1980 (Qld), it is also necessary to allege that the applicant is a “participant” in the criminal organisation.  Section 6 of the Bail Act 1980 (Qld) defines “participant” by reference to section 60A of the Criminal Code (Qld). Section 60A(3) defines a “participant” to include, inter alia, a person attending more than one meeting or gathering of persons who participate in the affairs of the organisation in any way, or a person who takes part in the affairs of the organisation in any other way.  As the respondent asserts that the applicant took part in the affairs of the criminal organisation by coordinating the trafficking of methylamphetamines, the applicant is properly alleged to have been a participant in the criminal organisation.
  5. The Bail Act 1980 (Qld) does not require the prosecution to discharge a persuasive onus to establish that the applicant is a participant in a criminal organisation; the allegation merely must be made on the basis of the evidence.  On the orthodox jurisprudence, it appears that once a “show cause” ground is alleged, the applicant must prove the negative fact that there is “no unacceptable risk” of certain matters under section 16(1) of the Bail Act 1980 (Qld) on the balance of probabilities. 
  6. Although one might query whether the question of whether continued detention in custody is “unjustified” is semantically or conceptually identical to the inquiry into whether the applicant is an “unacceptable risk”, the parties appear to have prepared their submissions on this basis.  Accordingly, I will proceed on the basis that section 16(3A)(a) of the Bail Act 1980 (Qld) merely shifts the onus to the applicant to disprove the unacceptable risk matters under section 16(1).

Unacceptable Risk

  1. Section 16(1) relevantly provides that a court shall refuse to grant bail to a defendant if it is satisfied that there is an unacceptable risk that the defendant, if released on bail, would:

1. fail to appear and surrender into custody;[15]

2. while released on bail:

  1. commit an offence;[16]
  1. endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare;[17] or
  1. interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else.[18] 
  1. “Unacceptable risk” is a composite concept.  A “risk” is a possibility, chance or likelihood of a particular adverse consequence.   In the context of bail applications, the risk is necessarily of a non-deterministic or stochastic nature, meaning that although susceptible to analyses, it cannot be precisely predicted or mathematically quantified.  “Unacceptability”, however, merely refers to something which is morally, logically, socially, or legally incapable of being accepted or intolerable.  As an evaluative social construct, the “acceptability” of a risk is determined by underlying social, legal and community norms and values.   
  2. Although not exhaustive, bail conditions frequently serve two primary purposes to correct information asymmetries and mitigate risk.  Firstly, certain bail conditions, such as electronic monitoring or surrendering passports, directly or indirectly restrict the applicant from engaging in the relevant categories of conduct described under section 16(1). Secondly, other bail conditions, such as sureties and undertakings, operate as signals committing the applicant to prospective patterns of behaviours, and impose socio-economic penalties for failure to abide by such behaviours. Both categories of conditions seek to differentiate “good-risk” applicants from “bad-risk” applicants to protect against adverse selection.
  3. The respondent opposes bail principally on the grounds that, if released on bail, there is an unacceptable risk that the applicant would:

1. Fail to appear and surrender into custody when required;[19]

2. Endanger the safety and welfare of another person;[20] or

3. Interfere with witnesses or otherwise obstruct the course of justice.[21] 

Failure to Appear

  1. The applicant submits that he is not an unacceptable risk of failing to appear and surrendering into custody when required because he is embedded in the local community.  His parents and brothers are located in Queensland, and his former wife and son reside in New South Wales.  The applicant possesses a business and prospect for employment if bail is granted. 
  2. The applicant has benefitted from substantial sureties offered by various members of his family, and the result of his non-appearance would be to cause them oppressive and irrevocable economic and social hardship.  A significant proportion of the applicant’s property has also been restrained by the State.
  3. The applicant has surrendered his valid and expired passport.  He is an Australian citizen, and has resided in Australia since 1975.  There is no evidence of established and continuing networks overseas which may be leveraged to facilitate absconding from the jurisdiction. 
  4. The applicant’s bail and criminal history is not of such a nature that it indicates he presents a material risk of non-appearance.  With the exception of one breach of bail, the applicant has demonstrated a consistent willingness to comply with judicial orders requiring him to surrender himself into custody.  The applicant has also demonstrated a willingness, to a degree, to cooperate with police. 
  5. However, these circumstances must be weighed against countervailing factors. As noted by Jackson J in his ex tempore decision, if convicted of the subject offences with all relevant circumstances of aggravation, the applicant will likely be exposed to between 25 and 50 years imprisonment.  As the consequences of conviction are fundamentally different in degree and nature than previous circumstances within which the accused has surrendered himself into custody, prior conduct is not necessarily an effective indicator of future conduct. 
  6. Despite this, the applicant is willing to submit to onerous bail conditions.  The applicant is willing to report twice daily to the Officer in Charge of local police stations.  The applicant is willing to subject himself to a curfew, and undertake not to apply for any travel documents.  The applicant has also indicated he would accept a condition not to approach international or domestic airports except for the purposes of facilitating attendance at court proceedings in Queensland.
  7. Although, as noted by Jackson J, there remains some degree of risk of failing to appear and surrender into custody when required, the bail conditions are sufficient to reduce this risk to the level of acceptability.  Accordingly, this will not constitute an “unacceptable risk”.

Endangerment of the Welfare and Safety of Another Person

  1. The respondent has submitted that the applicant may pose an unacceptable risk of endangering the safety of Mr Young and N.  As the threat posed to Mr Young is more conveniently dealt with under the rubric of section 16(1)(a)(ii)(C), this section will be confined to consideration of N. 
  2. On 28 September 2014 recorded conversations between the applicant and N demonstrate that the former threatened to cause actual bodily harm to the latter.  The statements were made in the context of a discussion regarding the dissolution of their relationship. 
  3. In isolation, the statements made by the applicant regarding N appear merely aggressive bravado and false boasts intended to disturb or intimidate N.  However, on 3 December 2014 – more than two months after the recorded exchange – the applicant made statements [redacted] that he would “move her nose to the other side of her face”.  As such statements were not made in response to an immediate provocation, they may reflect a sustained intention to cause significant harm or injury to N.  [Redacted]. 
  4. [Redacted].  N has not provided any subsequent affidavits supporting the current bail application of the applicant. 
  5. There is no evidence suggesting that N was provided an opportunity to rescind or modify her previous affidavit.  In any event, if N perceived the applicant as a legitimate threat to her well-being, any failure to revoke her previous supporting affidavit is explicable by fear.  Accordingly, there is insufficient evidence to conclude that N does not currently perceive the applicant as a threat to her safety.
  6. Notwithstanding this, there is little evidence indicating that the applicant is aware of the residence of N.  [Redacted].  The applicant’s willingness to submit to a bail condition of residence in New South Wales mitigates his direct risk to N. 
  7. The applicant has not signalled an intention to commission a third party to cause injury to N.  Furthermore, she is not an integral witness in the respondent’s prosecution.  Any harm caused to N, if connected with the applicant, would be devastating to his defence and of little strategic value.  Although the applicant presents a risk of endangering the safety of N, it is unlikely that this constitutes an “unacceptable risk”. 

Interfering with Witnesses or Otherwise Obstructing the Course of Justice

  1. The respondent contends that the applicant presents an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice.  The risk relates to an intention to interfere with the most important Crown witness, Mr Young.
  2. Mr Young’s testimony, as an alleged participant within a joint criminal enterprise with the applicant to traffic in methylamphetamine, represents the only direct evidence connecting the applicant with the relevant offence.  There remains some divergence regarding the relative strength of the respondent’s case.  The applicant contends that it is relatively weak, whereas the respondent contends that it is relatively strong.  Neither party has adduced evidence conclusively determining either way.  At this stage, I am willing to accept that the applicant’s case is likely sufficient to enable a reasonable jury to safely reach a guilty verdict.  The incapacitation of Mr Young, or intimidating of Mr Young such that he recants his testimony, would likely seriously undermine the prosecution’s case.
  3. The applicant has made various threats in recorded conversations against Mr Young.  The most significant of these occurred on 6 May 2014, where the applicant acknowledged that his continued detention was likely caused by the evidence proffered to the prosecution by Mr Young.  The applicant proceeds to state:

Why does he know so much if he’s only fucking – I’ll tell you what about tampering with witnesses.  I’m going to pull his eyes out of his head.

  1. The applicant, therefore, has recognised that his continued detention, and the prosecution’s case, largely depends on the evidence of Mr Young.  He has further noted that the elimination of Mr Young, as a witness, may undermine the prosecution’s case.  The applicant has drawn a direct connection between his intention to harm Mr Young, tampering with witnesses, and his continued detention. 
  2. The most significant countervailing factor is the applicant’s proposed condition to reside in New South Wales.  This substantially mitigates the direct risk posed by the applicant to Mr Young.  However, the respondent claims that the applicant, as an alleged member of a notoriously violent criminal organisation, namely the Rebels Motorcycle Club, nonetheless presents an indirect risk of commissioning third parties to cause harm to Mr Young. 
  3. The applicant, albeit in respect of Mr Young’s father, has stated that:

Mate, they don’t want to let me out on bail, mate.  I will send 20 cunts to his house if he fucking wants.

  1. Although this threat was not directed towards Mr Young, but his father, it demonstrates that the applicant claims to possess the requisite capacity to commission third parties – potentially in significant numbers – to cause harm, or intimidate, third parties.  Furthermore, this threat must be observed in the context of the fact that: (a) Mr Young is an integral component of the prosecution’s case; and (b) the applicant, if convicted with the circumstances of aggravation, is liable to an extensive period of imprisonment, likely ranging between 25 and 50 years.
  2. The applicant contends that his outbursts were borne out of frustration and anger caused by threatening mail received by N.  The fact that such statements were made in the context of known recorded conversations does not necessarily fortify the proposition that they were merely emotive expressions.  Rather, they demonstrate poor impulse control and an awareness of the significance of the consequences of the statements.  However, the graphic and unrealistic quality of the threatening representations is suggestive of the fact that they may be merely false boasts and fabricated bravado.  
  3. In oral argument, counsel for the applicant further posited that, if indeed the applicant is a member of a criminal organisation, the level of indirect risk posed to Mr Young would not increase as a result of being released on bail.  The applicant contends that he would possess the same ability to arrange an assault against Mr Young, regardless of whether he is in prison. 
  4. Firstly, this submission is manifestly incorrect.  Although an alleged office bearer of a notoriously violent criminal organisation may be able to arrange an assault against Mr Young from prison, it does not follow that such arrangements would not be made easier if released on bail. The arrangements would not be recorded, and therefore need not be conducted through coded conversations or prison backchannels. 
  5. Secondly, it mistakes the operation of section 16 of the Bail Act 1980 (Qld).  In show cause proceedings, an applicant is required to show that continued detention is unjustified, ordinarily by demonstrating that there is no unacceptable risk of certain conduct identified under section 16(1).  The prosecution need not show that the level of risk, if already unacceptable, would be increased as a result of the release of the applicant on bail.  If this were the case, it would produce the absurd result that an applicant who presents an unacceptable risk of interfering with witnesses regardless of whether detained would be entitled to bail, whereas an individual who only presents an unacceptable risk of interfering with witnesses when released on bail would not be entitled to bail.  In such circumstances, the former more dangerous individual would receive bail, whereas the latter, presumably less dangerous, person would be denied bail.  This extraordinary outcome alone is sufficient to reject the interpretation advanced by the applicant. 
  6. Despite this, however, the argument advanced by the respondent regarding the capacity for the applicant to commission a third party to cause harm to Mr Young is predicated on a finding that the applicant is a member of a widely connected and notoriously violent criminal organisation.  The evidence to this effect primarily consists of an intelligence log summary indicating that on 28 September 2012 the applicant was observed wearing a jacket bearing the colours of the Finks criminal motorcycle gang, and statements made by Detective Lynton claiming, without supporting reasons or evidence, that the applicant was formerly a member of the Hell’s Angels criminal motorcycle gang, and remains a close associate of the Rebels criminal motorcycle gang.
  7. The evidence presented by the respondent evinces only a weak connection between the applicant and the stated criminal organisations.  There is little evidence that the relationship remains close and continuing.  There is no evidence indicating that the applicant, if a member of such organisations, possesses the requisite authority to commission an indirect assault against Mr Young.  Additionally, the criminal history of the applicant does not support the proposition that he has a significant propensity to engage in serious acts of violence.
  8. As this is a show cause application, the applicant possesses the persuasive onus to establish that continued detention in custody is unjustified.  However, the prosecution bears an evidential burden to bring certain allegations into question.  The strength of the prosecution’s evidence regarding the applicant’s alleged association with a criminal motorcycle gang will modify the degree of proof required from the applicant to discharge the persuasive onus.  This is particularly where the allegation is grave and results in serious adverse inferences regarding to likely behaviour, intentions and capabilities of the applicant.  Indeed, the proximity of association between the applicant and a notoriously violent and extensively networked criminal organisation will often be a highly compelling, if not determinative, consideration in an application for bail.
  9. The respondent has adduced only tenuous evidence of the applicant’s alleged membership or association with a criminal motorcycle gang.  This must be observed in the context of the applicant’s submissions that he is not a member of a criminal motorcycle gang and the inherent difficulties associated with proving a negative fact.  Although this is a show cause application, this Court cannot safely act on such a paucity of evidence to deprive a person of their liberty.  In the future, the respondent must adduce more substantial and robust evidence of association with a notoriously violent criminal organisation before this Court is willing to draw the damaging adverse inferences urged by the prosecution. 
  10. This Court is unable to find, on the basis of the questionable evidence and bare allegations of the respondent, that the applicant is a member of a criminal motorcycle gang. Even if such a conclusion was reasonably available on the evidence, this Court cannot be satisfied that the applicant occupies a position wielding the requisite authority to present an indirect risk to Mr Young. 
  11. The applicant is willing to submit to restrictive bail conditions which prohibit any contact, or attempts to contact, Crown witnesses.  The applicant has indicated a willingness to use only a single unencrypted mobile phone.  The applicant has also accepted the Court’s suggestion that a bail condition be imposed whereby any data retained on any telecommunication device used by the applicant may be regularly examined, if required, by appropriate law enforcement authorities.  I also propose to impose conditions requiring the applicant not to contact N directly or indirectly, and to wear a GPS tracking anklet at all times.  The applicant will be required to provide substantial sureties and reside in New South Wales.
  12. Subject to the abovementioned bail conditions being imposed on the applicant, I am satisfied that he does not present an unacceptable direct or indirect risk of interfering with witnesses or otherwise obstructing the course of justice. 

Conclusion

  1. Although this is a finely balanced application, I am satisfied on the balance of probabilities that the continued detention of the applicant in custody is unjustified. The outcome may have been different if the respondent had adduced substantial evidence of a continued connection between the applicant and a notoriously violent criminal organisation, and the occupation of a position within such an organisation which would possess the authority to commission a third party to harm Mr Young.

Proposed orders

  1. For the abovementioned reasons, the applicant should be granted bail subject to the following orders:

1. That there be a non-publication order pursuant to s 12 of the Bail Act 1980 (Qld) in relation to paragraphs 8, 9 and 10 and Annexure H of the affidavit of Brice William Neilson dated 22 April 2015 as well as anything else that might imply the content of those paragraphs and annexure;

2. This order to be in force until any other order of the Court is made in respect of the non-publication of that material;

3. The applicant be granted bail on the conditions that:

4. That the applicant reside at [redacted], unless the applicant receives express prior written consent of the Director of Public Prosecutions of Queensland to reside elsewhere;

5. That the applicant report twice daily between the hours of 8:00AM to 6:00PM to the Office in Charge of police at the Green Valley police station unless he receives prior consent of the Director of Public Prosecutions of Queensland to report elsewhere;

6. That the applicant must remain in the confines of the dwelling-place prescribed under Clause 4 between the hours of 8:00PM and 6:00AM;

7. That the applicant must not, except through his legal representatives, contact or attempt to contact any Crown witnesses, either directly or indirectly, while subject to this bail order;

8. That the applicant must not, except through his legal representatives, contact or attempt to contact N, either directly or indirectly, while subject to this bail order;

9. That the applicant must not use, possess, control or otherwise have access to, directly or indirectly, an encrypted mobile phone or other telecommunication device;

10. That the applicant must only use, possess, control or have access to one (1) unencrypted mobile phone, and not any other telecommunication device;

11. That the applicant must surrender any telecommunication devices which he possesses, controls or uses, or otherwise has access to, for examination by appropriate law enforcement authorities as required;

12. That the applicant must permit law enforcement authorities to access and maintain records of any information, data or other content recorded on any telecommunication devices which he possesses, controls or uses, or otherwise has access;

13. That the applicant must take all reasonable steps to assist and facilitate law enforcement authorities to access and record any information, data or other content recorded or retained by the applicant or a third party regarding the usage of any telecommunication devices which the applicant possesses, controls or uses, or otherwise has access;

14. That the applicant must provide an undertaking not to engage in any act or omission, or use any application, which would destroy, corrupt, impair, modify, obfuscate, conceal, or otherwise render inaccessible any information, data or content retained or generated by any telecommunication device which is possessed, controlled, used or accessed by the applicant;

15. That the applicant must not approach any international or domestic airports, shipping ports or docks used for the interstate or international transportation of persons, or train stations used for the interstate carriage of persons, while subject to this bail order, except to enable travel to Queensland for purposes connected with the court proceedings to which this application relates and except to return to Sydney New South Wales after release on this bail. In so doing the applicant must contact the Bail section of the Office of the Director of Public Prosecutions 12 hours before any return flight to New South Wales and provide flight details, must leave from the Brisbane Domestic Airport and must do likewise on any further flight to Sydney following any court proceedings to which this application relates;

16. That the applicant must not leave the territory of New South Wales without notifying the Director of Public Prosecutions of Queensland;

17. The applicant must wear a personal electronic monitoring (GPS tracking) device, procured at his own expense, and consent to an appropriate law enforcement authority within Queensland, New South Wales and/or other state or territory to remotely access, examine or review the data from such device at any time. The applicant shall have 7 days from release on bail to procure such a device, or such further time as consented to by the Director of Public Prosecutions of Queensland;

18. That the applicant must provide an undertaking not to apply for any passport, exit visa from Australia, entry visa into another nation-state, or other travel documentation while subject to this order;

19. That the applicant must surrender any passports, exit visas or other travel documents under his actual or constructive possession or control; and

20. That the applicant provide the following sureties to the Supreme Court Registry:

  1. A surety of $500,000 from an acceptable person whose name will have been given to an officer of the Bail Section of the Office of the Director of Public Prosecutions at least 12 hours before the surety has been entered into;
  1. A surety of $400,000 from Natica Tesic and Djordje Tesic; and
  1. A surety of $500,000 from Stacey Tesic.

21. That the applicant must not, except through his legal representatives, contact any of the following named persons, either directly or indirectly while subject to this bail order:-

  1. Sureshen Reddy;
  1. Terry Gooney;
  1. Billy Raymond Thomas;
  1. Nicholas Alexis Hatton;
  1. Darren John Dark;
  1. Shaun Henry Beechey;
  1. Ricky Anthony Ciano;
  1. Vlatko Tesic; and
  1. Novak Tesic.

Footnotes

[1] Drug Misuse Act 1986 (Qld), s 5(1)(a), sch 1.

[2] Drug Misuse Act 1986 (Qld), s 9(1), schs 1, 4.

[3] Drug Misuse Act 1986 (Qld), s 5(1)(a), 9(1) schs 1, 4.

[4] Vicious Lawless Association Disestablishment Act 2013 (Qld), ss 7(1)(b) (further sentence of 15 years imprisonment for being a “vicious lawless associate” at the time of committing the declared offences), 7(1)(c) (further sentence of 10 years imprisonment for being an “office bearer” of a relevant organisation at the time of committing the declared offences).  In accordance with s 7(2)(a)-(b) of that Act, the further sentences must not be mitigated or reduced, and must be served cumulatively with the base sentence imposed for the declared offences. 

[5] Having regard to the alleged circumstances of the offences, however, it is unlikely that the maximum sentence will be imposed in relation to the subject charges.  Regardless, if the circumstances of aggravation are established on the evidence, the applicant will nonetheless be subject to a minimum imprisonment period of 25 years. 

[6] R v Malone [1903] St R Qd 140, 141; R v Hughes [1983] 1 Qd R 92, 93; Ex parte Edwards [1989] 1 Qd R 139, 141-143; Scrivener v DPP [2001] QCA 454, [11]-[12]. 

[7] Ex parte Edwards [1989] 1 Qd R 139, 141-143; Scrivener v DPP [2001] QCA 454, [11]-[12]; Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, [18].

[8] Ex parte Edwards [1989] 1 Qd R 139, 142.

[9] Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, [10]-[14].

[10] MBB v DPP [2000] QCA 515, 5.

[11] Bail Act 1980 (Qld), s 9.

[12] See generally, Bail Act 1980 (Qld), ss 16(3) - 16(3A).

[13] See generally, Bail Act 1980 (Qld), s 16(1).

[14] Prevato v Governor, Metropolitan Remand Centre and Others (1986) 64 ALR 37, 52-53.

[15] Bail Act 1980 (Qld), s 16(1)(a)(i).

[16] Bail Act 1980 (Qld), s 16(1)(a)(ii)(A).

[17] Bail Act 1980 (Qld), s 16(1)(a)(ii)(B).

[18] Bail Act 1980 (Qld), s 16(1)(a)(ii)(C).

[19] Bail Act 1980 (Qld), s 16(1)(a)(i).

[20] Bail Act 1980 (Qld), s 16(1)(a)(ii)(B).

[21] Bail Act 1980 (Qld), s 16(1)(a)(ii)(C).

Close

Editorial Notes

  • Published Case Name:

    Re Tesic

  • Shortened Case Name:

    Re Tesic

  • MNC:

    [2015] QSC 205

  • Court:

    QSC

  • Judge(s):

    Carmody CJ

  • Date:

    06 May 2015

Litigation History

No Litigation History

Appeal Status

No Status