Our client is a 24-year old overseas student.
Police alleged that he and 7 others were involved in Supplying a Commercial Quantity of a Prohibited Drug and Participating in a Joint Criminal Enterprise.
The suspects were alleged to have communicated through coded messages on their mobile telephones.
All were charged and brought before Manly Local Court.
For the purposes of bail, the offences are ‘show cause’ offences, which means the defence bears the onus of establishing the defendant does not pose an ‘unacceptable risk’ to the community, and that imprisonment would therefore be unjustified.
The prosecution strenuously opposed bail for all 7 defendants on the basis of the alleged strength of the prosecution case and likelihood of a full-time custodial sentence in the event of a conviction.
Each of the defendants had similar evidence against them and were alleged to be at similar levels in the hierarchy of the enterprise.
However, our client (and two others) were at a significant disadvantage because they were from overseas and had limited links to the local community – which makes it more difficult to achieve bail.
Our defence team got to work and quickly prepared material addressing a number of the bail concerns, including the risk of flight. We took detailed instructions with a view to disputing the prosecution’s submissions regarding the strength of the prosecution case.
By the time we were ready to run our client’s bail application, all 7 co-accused had been refused bail.
We presented material and made detailed verbal submissions regarding the law.
The submissions included reference to the pivotal NSW Supreme Court cases of R v Melmeth [2015] and the NSW Court of Criminal Appeal case of DPP v Mawad [2015], which made a number of findings in respect of the meaning of ‘show cause’, including the applicable test.
Among other things, the cases establish that ‘exceptional circumstances’ do not necessarily need to be shown to overcome the ‘show cause’ hurdle – which is a common but incorrect assumption amongst practitioners. Rather, a combination of factors including proposed bail conditions can meet the test, and alleviate any bail concerns.
The presiding magistrate was convinced and saw fit to grant bail on strict conditions, including daily reporting, surrender or passport and non-association with co-accused and witnesses in the case.
The outcome demonstrates that with the right knowledge, meticulous preparation and persuasive presentation, bail can be achieved in ‘show cause’ cases regardless of the seriousness of the allegations and the findings against co-accused.
The merits of each case must be assessed independently, and it is important to engage specialist criminal defence lawyers who are knowledgeable, thorough and persuasive.