Lansdowne v Director of Public Prosecutions
[2014] QSC 2
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- Unreported Judgment
- Lansdowne v Director of Public Prosecutions[2014] QSC 2
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Lansdowne v Director of Public Prosecutions[2014] QSC 2
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), s 16(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].