Citation: R v David Peter Cain (No.1) [2001] NSWSC 116
Court: Supreme Court of New South Wales, Common Law Division
Date: 1 March 2001
Judge(s): Sperling J
Background
The applicant, a 39-year-old Australian citizen residing with his de facto wife and two children in Banksmeadow, was arrested in January 2000 and had been in custody for over a year at the time of the application. He faced serious federal drug charges: conspiracy to import 74.5 kilograms of ecstasy and conspiracy to import 9 kilograms of cocaine, both quantities exceeding the commercial threshold, along with several lesser associated offences.
The application came before Sperling J in the Supreme Court after the matter had been before the Local Court. Because the charges fell within the category of serious drug offences, section 8A of the Bail Act 1978 (NSW) applied, creating a presumption against bail that the applicant bore the burden of displacing.
Legal Issues
- Whether the applicant could satisfy the court, under section 8A of the Bail Act 1978, that bail should not be refused despite the presumption against it applying to serious drug offences
- How the section 32 considerations (likelihood of appearance, interests of the applicant, protection of individuals, and community welfare) weighed in the circumstances
- What role the quantum and nature of security offered can play in displacing the section 8A presumption, particularly where a strong Crown case is assumed
Decision
Sperling J applied the principles he had articulated in his earlier unreported judgment in R v Amane Iskandar [2001] NSWSC 7. Under those principles, where section 8A applies, bail should normally be refused; a heavy burden rests on the applicant; the strength of the Crown case is the primary (though not exclusive) consideration; and the application must be "somewhat special" if that case is strong.
His Honour assumed, without deciding, that the Crown had a strong case. However, he found the application was distinguished by the exceptional level of security offered: family members and associates had offered agreements to forfeit sums totalling substantially more than $1 million, secured over real property and, in one instance, by a cash deposit. In most cases, the property offered was the offeror's only significant asset, which Sperling J regarded as strengthening the practical deterrent against the applicant absconding.
Turning to the section 32 considerations, his Honour acknowledged a strong motivation for flight given the seriousness of the charges, but weighed that against the applicant's strong community ties, his extended family relationships, no prior failure to appear, and the significant security offered. On the interests of the applicant, the court noted that the prospect of a person unconvicted of any offence being held in custody for up to two years pending trial was, absent exceptional circumstances, inconsistent with modern civil rights principles.
On community protection, Sperling J found no evidence the applicant posed a risk to any specific person, and considered it unlikely he would attempt to continue any illicit enterprise given the alleged network had been dismantled. Satisfied that the presumption against bail was displaced, he granted conditional bail.
Orders Made
- Bail granted on all outstanding matters and offences, subject to the following conditions:
- Reside at a specified Banksmeadow address
- Report daily to Botany Police Station between 8am and 6pm
- Not approach within one kilometre of any airport or recognised overseas departure point (except as required for reporting)
- No association with any co-accused
- No direct or indirect communication (other than through legal advisers) with any person notified as a prospective Crown witness
- Specified family members and associates to enter into forfeiture agreements totalling over $1.44 million, secured by mortgage and caveat over nominated properties
- One associate to deposit $100,000 cash as security for a forfeiture agreement
- Priority deed covenant required over one secured property
- Bail to be automatically revoked upon any breach, with the applicant liable to arrest by any police officer
- Liberty to apply for variation within 21 days on two days' notice
- Bail may be entered into before any justice of the peace
Key Takeaways
- Under section 8A of the Bail Act 1978, a presumption against bail applies to serious drug offences, placing a heavy burden on the applicant to show bail should not be refused, with the strength of the Crown case treated as the primary consideration.
- Sperling J confirmed the approach from R v Amane Iskandar: the application must be "somewhat special" to overcome a strong Crown case, and common bail considerations carry less weight in section 8A matters than in ordinary bail applications.
- Substantial security, assessed in light of the financial circumstances of those offering it, can constitute a sufficiently special circumstance to displace the section 8A presumption, as the earlier decision in Hanley demonstrated and this case reaffirmed.
- The significance of a forfeiture agreement is strengthened where the property offered is the offeror's only material asset, as this increases the practical deterrent against the applicant absconding.
- The prospect of a person being held on remand for approximately two years without conviction was treated by the court as a weighty factor in assessing the applicant's interests under section 32, and one that is generally inconsistent with modern civil rights principles absent truly exceptional circumstances.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), ss 8A and 32
Cases
- R v Amane Iskandar [2001] NSWSC 7 (Sperling J, 22 January 2001, unreported)
- Hanley (Badgery-Parker J, 8 December 1992, unreported)