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Supreme Court 22 January 2001

R v Amane Iskandar

[2001] NSWSC 7

Also reported as 120 A Crim R 302
Drugs
CRIMINAL LAW BAIL S8A OF BAIL ACT PRESUMPTION AGAINST BAIL PRINCIPLES TO BE APPLIED

Citation: R v Amane Iskandar [2001] NSWSC 7 revised 12/02/2001; reported at 120 A Crim R 302
Court: Supreme Court of New South Wales
Date: 22 January 2001
Judge(s): Sperling J

Background

The applicant was charged with serious drug offences to which section 8A of the Bail Act 1978 (NSW) applied. Bail had been refused in the Local Court, and the applicant sought a review in the Supreme Court. The Crown opposed bail, arguing there was a strong case against the applicant, a significant risk of flight, and potential access to funds and means of obtaining false identity documents.

The applicant had strong community ties, including close family connections and a two-year-old child in her care. She had no prior criminal record and no history of failing to appear. Her parents offered security over the equity in their home.

The Crown case centred on drug distribution. The judgment noted that the applicant's involvement appeared to be limited to distribution rather than procurement, with procurement attributed to another person named in the proceedings.

  • What is the correct approach to bail applications governed by section 8A of the Bail Act 1978, which creates a presumption against bail for certain serious drug offences?
  • What weight should be given to factors common to all bail applicants (such as hardship and community ties) versus the strength of the Crown case?
  • On the specific facts, had the applicant discharged the burden of satisfying the court that bail should not be refused?

Decision

Sperling J provided a thorough account of the statutory framework before turning to the binding authorities. Under section 32, any bail determination must take into account only the specified considerations: the probability of appearance, the interests of the applicant, the protection of particular persons, and the protection and welfare of the community. Section 8A adds a presumption against bail for serious drug offences, placing the burden squarely on the applicant to satisfy the court that bail should not be refused.

The binding line of authority, beginning with Kissner and confirmed by the Court of Criminal Appeal in Masters, Richards and Wunderlich (1992) 26 NSWLR 450 and affirmed again by the Court of Appeal in Brown, establishes that Parliament intended persons charged with the relevant drug offences to be refused bail ordinarily. That authority also establishes that the strength of the Crown case becomes the prime consideration under section 8A, and that circumstances common to all applicants (such as hardship to family and the availability of sureties) carry less weight than they would in other bail applications.

Applying those principles, Sperling J assumed for the purpose of the hearing that the Crown had a strong case, but found that the remaining section 32 considerations weighed in the applicant's favour. The strong community ties, the absence of any criminal history, the specific need to care for a young child, the absence of any risk of harm to others, and the court's assessment that the applicant was unlikely to continue or interfere with the relevant enterprise all pointed toward bail. The security offered by the applicant's parents over the equity in the family home was treated as significant, consistent with the approach in Hanley where Badgery-Parker J had granted bail in a section 8A case on the basis of substantial security.

Sperling J concluded that the presumption against bail was displaced on the particular facts and that bail should be granted, subject to very strict conditions.

Orders Made

  • Bail granted in respect of all outstanding matters and offences, subject to the conditions set out in the short minutes of order filed with the papers.

Key Takeaways

  • Under section 8A of the Bail Act 1978, the presumption against bail for serious drug offences places a substantial burden on the applicant to satisfy the court that bail should not be refused; it is not simply a matter of shifting the ordinary onus of proof.
  • Binding authority from the Court of Criminal Appeal in Masters, Richards and Wunderlich and the Court of Appeal in Brown confirms that Parliament intended persons charged with the relevant drug offences to be refused bail ordinarily, with the strength of the Crown case elevated to the prime consideration.
  • Factors common to all bail applicants, including family hardship, loss of employment, and the availability of sureties, carry reduced weight in section 8A applications, though they remain part of the section 32 assessment.
  • The presumption against bail under section 8A is not absolute. Bail remained available in an appropriate case, as illustrated by Hanley, where substantial security displaced the presumption despite a strong Crown case.
  • A combination of strong community ties, no prior criminal record, no history of failing to appear, a specific need to care for a child, and meaningful security over real property was sufficient, on the facts of this case, to displace the presumption and support the grant of bail on strict conditions.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), sections 8, 8A, 9, 9A, and 32

Cases
- R v Masters, Richards and Wunderlich (1992) 26 NSWLR 450 (Court of Criminal Appeal)
- R v Kissner (Hunt CJ at CL, 17 January 1992, unreported)
- R v Hanley (Badgery-Parker J, 8 December 1992, unreported)
- R v Brown (NSW Court of Appeal, 15 March 1994, unreported)
- R v Budiman (1997) 97 A Crim R 548