PJM v R [2025] SASC 1

Applicant: PJM Counsel: MR J WILSON - Solicitor: PATSOURIS & ASSOCIATES Respondent: R Counsel: MR A WILSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 29/11/2024 File No/s: SCCRM-22-011304 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v PJM [2025] SASC 1 Reasons for Decision of the Honourable Justice Kimber 14 January 2025 CRIMINAL LAW - PROCEDURE - BAIL CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - SERIOUS AND ORGANISED CRIME SUSPECTS CRIMINAL LAW - PROCEDURE - BAIL - OTHER MATTERS This is an application for bail. The applicant is charged in the Supreme Court with conspiracy to cause serious harm and participation in a criminal organisation. The applicant has been in custody with respect to those allegations since 6 June 2021. On the prosecution case, the applicant was closely involved in efforts made by a criminal organisation to cause serious harm to the alleged victim by shooting him. On the prosecution case, among other things, the applicant received, and was prepared to use a firearm to further the conspiracy. The trial of the matter in the Supreme Court is listed to commence in February 2026. The applicant is also charged with arson in separate proceedings before the District Court. That trial is listed to commence in July 2025. On the prosecution case, that arson also involved the applicant being prepared to assist a criminal organisation. The applicant does not have bail in that matter and submits that there is a risk that matter may not proceed as listed. The applicant seeks home detention bail in the matter before the Supreme Court. The defendant contends, among other things, that he has a presumption of innocence, a presumption of bail and that home detention bail is appropriate as, if bail is not granted, he will be in custody for more than four and a half years before his trial in the Supreme Court. Held, per Kimber J: 1. Given the gravity of the alleged offences and the likelihood of the applicant offending again if released on bail, bail is refused. -- 1 of 9 -- Bail Act 1985 (SA) s 10(1); Sentencing Act 2017 (SA) s 44(2); Telecommunications (Interception and Access) Act 1979 (Cth); Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), referred to. R v Slavin-Molloy [2021] SASC 134, applied. R v Bol [2017] SASFC 148, distinguished. Questions of Law (Nos. 1 and 2 of 2023) [2024] SASCA 82, considered. -- 2 of 9 -- R v PJM [2025] SASC 1 Criminal: Application KIMBER J: 1 These are my reasons for refusing to grant bail to the applicant on the file in this Court. Background 2 In this Court, the applicant is charged with conspiracy to cause serious harm and participation in a criminal organisation. Both alleged offences arise out of the same circumstances. The trial of that matter is listed to commence in February 2026. 3 The application before me is made in the context of the applicant also having a matter listed for trial in the District Court. On that file, the applicant is charged with arson and the trial is listed to commence in July 2025. The applicant does not have bail in that matter. 4 The applicant has a presumption of innocence and a presumption of bail. He has been in custody on the Supreme Court file since 6 June 2021. He was charged with the alleged arson while on remand with respect to the allegations the subject of the Supreme Court file. 5 The applicant is in his early thirties. His only offence is carrying an offensive weapon, committed in August 2018. That matter was dealt with without conviction and by placing the applicant on a bond. I do not regard that as a matter of any relevance to the application before me. 6 The applicant’s current remand is the first time that he has been in custody. He seeks bail on home detention and to live with his father. The address has been assessed as suitable for electronic monitoring. The applicant’s father is retired and prepared to lodge a $20,000 surety with the Court and place himself at risk of forfeiting an additional amount of $100,000 in the event that the applicant breaches his bail. 7 The applicant submits that home detention bail is appropriate given the presumption of bail; the disincentive that will exist to breach bail arising from the risk of his father losing a substantial sum; that his father will be living with the applicant and will have an incentive to supervise him and to avoid any risk of him losing that substantial sum; the stringent nature of home detention bail; and the delay since he was remanded in custody on 6 June 2021. As set out above, the applicant’s first trial is not listed until July 2025. By that trial date, he will have been in custody for more than four years. -- 3 of 9 -- [2025] SASC 1 Kimber J 2 8 The applicant submits that should he be convicted of the arson, his sentence might be backdated to when he was first taken into custody, notwithstanding that he was not charged with the arson until a later date. The applicant submitted that on the assumption that his trial proceeds in July 2025, by the date of that trial, he may have served his non-parole period. While I am prepared to assume that, in the event the applicant falls to be sentenced for the arson, there might be some risk of him having served his non-parole period, that assumption should not be taken to reflect a concluded view. Further, no assumption made for the purpose of this application could bind the sentencing Judge. Given the allegations, if the applicant falls to be sentenced for the arson, it is likely to be treated as a serious offence of its type given what appears to be evidence of some planning and it being done at the request of an organised criminal group. 9 In the context of the above submission, the applicant submitted that should he fall to be sentenced for the arson, that sentence could be backdated to the date of his arrest with respect to the matter the subject of the Supreme Court file (i.e. - 6 June 2021). The applicant did not identify the date on which he was charged with the alleged arson but accepted that it did not occur until a date after 6 June 2021. The applicant submitted that had he not been in custody at the time of being charged with arson, he would have applied for bail. On that basis, the applicant submitted that the time spent in custody from 6 June 2021 until being charged with the arson was ‘closely connected’1 with the arson which he submitted would permit any sentence for that offence to be backdated to 6 June 2021, despite The applicant not being in custody with respect to the alleged arson until a later date. I reject that submission. Section 44(2) of the Sentencing Act 2017 (SA) does not permit time already spent in custody to be taken into account unless that time has been spent in custody for the offence for which the defendant is being sentenced.2 In my view, on the submissions made before me, any sentence for the alleged arson should not be backdated to 6 June 2021. In short, the applicant was not in custody with respect to the arson on 6 June 2021 and the authority upon which the defendant relied can be distinguished. 10 The applicant submitted that the prosecution case in the District Court matter depends upon what can be described as ‘Anom’ communications (the communications). The applicant submitted that the High Court has granted Special Leave to appeal with respect to the judgment of the Court of Appeal,3 that judgment having held that the communications were not obtained in breach of the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act). 11 As for the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) (SLCA Act) recently passed by the Commonwealth Parliament which, for present purposes, is said to confirm that the communications were lawfully obtained and admissible, the applicant submitted that Act may be the subject of a 1 R v Bol [2017] SASFC 148, [10]. 2 R v Slavin-Molloy [2021] SASC 134. 3 Questions of Law (Nos. 1 and 2 of 2023) [2024] SASCA 82. -- 4 of 9 -- [2025] SASC 1 Kimber J 3 challenge, possibly at the same time as the appeal will be heard by the High Court. The applicant submitted that the defendants in the matter the subject of the grant of Special Leave (CD and TB) are likely to attempt to have the question of the validity of the SLCA Act removed for determination by the High Court and to be heard at the same time as the appeal. The appeal is yet to be listed. Given orders made by the High Court with respect to the dates by which submissions are to be filed, it is very unlikely that the appeal will be heard any earlier than April 2025. Indeed, there appears to be a very real risk that the appeal may not be heard any earlier than about May or June 2025. That may place the trial listed in July 2025 at risk of being adjourned, but if there is an application made to vacate that trial date, that will be a matter for the relevant District Court Judge who will have before them submissions which are not before me (e.g. – the submissions of the applicant’s co-accused; what is likely to be an updated position on the approach being taken in the High Court appeal; and the submissions of the Director which, given what was put to me in the matter to be discussed below, might include submissions about the merits of proceeding with the trial despite the High Court appeal). 12 Given the significance of the SLCA Act to the admissibility of the communications and to the application for bail, I delayed determining this bail application until I had dealt with another matter which was before me. Coincidentally, the other matter was an application by several defendants (including CD and TB) to remove a matter from the Supreme Court trial list in March 2025 due to the High Court appeal and a potential challenge to the SLCA Act. As CD and TB happen to be the appellants in the High Court, they were able to inform me about their approach to the validity of the SLCA Act and the approach they intended to take to that issue in the High Court. In that other matter, it was submitted that although it was contended that the SLCA Act was invalid; that CD had instructed that position should be advanced on his behalf; and that Senior Counsel had been engaged, neither CD or TB intended to raise the validity of the SLCA Act in the first written submissions which they will file in the High Court appeal.4 It appears that it is anticipated that what will occur is that one or both respondents will raise the SLCA Act in their written submissions which are due to be filed on 31 January 2025 and that CD and TB will then contend that the SLCA Act is invalid. CD and TB anticipate doing that in their submissions in reply to the submissions of the respondents, those submissions in reply not being due to be filed until about the middle of February 2025. 13 I make no criticism of the anticipated approach of the parties involved in the High Court appeal. The issues are complex and the approaches likely to be taken in that appeal have been carefully considered by experienced counsel. 4 Those submissions will have been filed by the time of this judgment. -- 5 of 9 -- [2025] SASC 1 Kimber J 4 Assumptions 14 Given the High Court appeal, in the circumstances, I consider that this application for bail should be determined based on several assumptions. These assumptions do not reflect any concluded view. 15 Firstly, the communications should be assumed to be admissible. In the absence of a substantial submission to the contrary, the SLCA Act should be assumed to be valid. On the application before me, the applicant did not advance any submission as to how the contrary might be so. Even were the SLCA Act invalid, and while the grant of Special Leave may be assumed to reflect that there is a real issue to be determined by the High Court about what is, to my mind, a complex and difficult issue, that the communications were not obtained in breach of the TIA Act was the unanimous view of the Court of Appeal. 16 Secondly, for reasons set out above, there is a risk that the trial of the alleged arson listed in July 2025 might not proceed. Nevertheless, there has been no application to vacate that trial and, at this time, I consider it appropriate to assume that trial is more likely to proceed than not. 17 Thirdly, I assume that the respective cases against the applicant in the matter in the District Court and the matter in this Court depend upon the prosecution being able to establish that the applicant was using a specific handle(s) during the Anom communications. The applicant made no concession about the ability of the prosecution to establish that. At the same time, in an approach he was entitled to adopt, the applicant did not advance any submission about why the ability of the prosecution to attribute a handle(s) to him might be doubted. The arson matter in the District Court 18 On the assumption the Anom communications are admitted, and the relevant handle(s) is connected to the applicant, between 7 March 2020 and 30 March 2020, it is alleged that the applicant was communicating with a senior member of an organised criminal group (the Comancheros). He was offering to provide that person with material to assist in committing an arson and/or offering to participate in undertaking the arson. About three days before the alleged arson was committed, the applicant was commenting about something being burnt. On the same day, he was offering to assist in the provision of false number plates and to drive the co-accused to the scene. The communications are also consistent with the applicant playing a central role in the arson ultimately committed on 28 March 2020, albeit apparently less successfully than was hoped. If the communications are any guide, the intention was to cause significantly more damage than was occasioned. The conspiracy matter in this Court 19 The events the subject of the Supreme Court file are alleged to have occurred in 2021. Assuming the Anom communications are admissible, and the relevant handle(s) is attributed to the applicant, the applicant was again offering his -- 6 of 9 -- [2025] SASC 1 Kimber J 5 assistance to a senior member of the Comancheros. I will not give a comprehensive summary of what is alleged. 20 On the prosecution case, between 23 May 2021 and 6 June 2021, there were three attempts to cause serious harm to the target of the alleged conspiracy. 21 On the prosecution case, the first attempt was on or about 23 May 2021. On or about that day, the applicant was responsible for providing a vehicle to be used and leaving it where it could be collected by other persons who are also said to be participants in the alleged conspiracy. On the prosecution case, the vehicle was collected and driven to a location near a house where it was believed the target of the conspiracy would be. The alleged attempt to harm the target was intercepted by police. Within the vehicle said to have been provided by the applicant was a face mask and false registration plates. 22 On the prosecution case, the second attempt was on 27 May 2021. On the prosecution case, that attempt was also interrupted by police. The prosecution factual summary does not suggest that the applicant participated in communications on this day. 23 On the prosecution case, the third and final attempt appears to have commenced with communications on 31 May 2021. On the prosecution case, that attempt was interrupted, at least in part, because the applicant was arrested on 6 June 2021. At the time of that arrest, it is alleged that the applicant was driving a stolen vehicle with false registration plates. 24 On the prosecution case, between 2 June 2021 and the date of his arrest, the applicant had been communicating, and meeting, with others involved in the alleged conspiracy. This includes at least one senior member of the Comancheros. 25 On the prosecution case, on the night of 2 June 2021, the communications are consistent with the applicant being in possession of a firearm and ammunition supplied to him by the Comancheros or supplied to him on behalf of that group. On the prosecution case, on 5 June 2021, the applicant communicated in terms consistent with him being enthusiastic about what was planned; having tried the firearm; and having prepared a false alibi. On the prosecution case, the applicant was the person who was going to harm the target using the firearm in his possession. Discussion 26 As earlier identified, the applicant has the presumption of bail and the presumption of innocence. He has not been imprisoned before, and he has been in custody for a very considerable time. He will be in custody for more than four years by the time of his first trial and there is a real risk of that trial date being vacated. Home detention is the most stringent form of bail and would provide an opportunity to closely monitor the applicant. If the applicant complies with that form of bail, it would remove the opportunity to engage in conduct like that alleged -- 7 of 9 -- [2025] SASC 1 Kimber J 6 in the offences with which he is charged. The exception might be that compliance by the applicant with home detention bail might not remove altogether his opportunity to co-ordinate others to do the sorts of things he is alleged to have done in the past (e.g. – to obtain vehicles and other items of assistance in committing offences). It can be assumed that the prospect of his father being at risk of losing a substantial sum is likely to be a disincentive to breaching bail. There is no reason to think that the applicant’s father will do anything other than his best to supervise the defendant and otherwise meet his obligations. The foregoing are matters which weigh heavily in favour of bail being granted. 27 At the same time, there is nothing before me to suggest that the applicant does not still have ties to the organised criminal group with which the communications suggest he was working so closely over a period of more than 12 months in 2020 and 2021. 28 In addition, given the assumptions earlier identified, there is good reason to believe that, over a period of more than a year, the applicant was closely associated with an organised criminal group which he knew was prepared to commit arson and to seriously harm a person through the co-ordinated efforts of several people. On the prosecution case, the applicant was prepared to receive, and was trusted by the Comancheros with, a firearm and ammunition. On the prosecution case, the applicant demonstrated a preparedness to use the firearm against the alleged target of the conspiracy and for the purpose of advancing the aims of a criminal group. Conclusion 29 In the circumstances, if released on home detention bail, I am satisfied that there is a real risk of the applicant engaging in serious criminal activity. Given the activities in which the applicant is alleged to have been engaged over a period of about a year, there is a real risk that the nature of that criminal activity may place members of the community at risk. If the communications are any guide, the applicant was asserting some experience with materials that could be used to damage property by fire; was asserting a willingness to possess, and use, a firearm; and was prepared to provide vehicles and other items which he expected would be used in the commission of serious and organised criminal activity. Further, the alleged offences the subject of the Supreme Court file can be characterised as particularly serious. On the prosecution case, the applicant was prepared to engage in a conspiracy to cause serious harm using a firearm and to advance the goals of a senior member(s) of an organised criminal group. 30 In the circumstances, notwithstanding the time that the applicant will be in custody without trial and the other matters which weigh in favour of the application, I decline to grant bail because of the gravity of the alleged offences -- 8 of 9 -- [2025] SASC 1 Kimber J 7 and the risk that the applicant will offend again even if subject to home detention bail with the other conditions suggested.5 5 Bail Act 1985 (SA) s 10(1)(a) and (b)(i). -- 9 of 9 --