SAW v R [2025] SASC 19

Applicant: SAW Counsel: MS J ABBEY KC (05/02/2025); MR S MCDONOUGH (21/02/2025) - Solicitor: OLIVIA FANTIS LEGAL Respondent: R Counsel: MR A WILSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 05/02/2025, 21/02/2025 File No/s: SCCRM-22-011304 C 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 SAW [2025] SASC 19 Reasons for Decision of the Honourable Justice Kimber 27 February 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 with conspiracy to cause serious harm and participation in a criminal organisation. It is alleged that members of the Comancheros, which is allegedly a criminal group, conspired with others to harm the alleged target (the target). On the prosecution case, there were three attempts to harm the target. The applicant was involved in the second attempt. On the prosecution case, he was to shoot the target. On the prosecution case, significant aspects of the planning for the alleged offences were conducted using the ANOM application. The applicant was not a member of the Comancheros and was not a user of the ANOM application. The applicant has been in custody with respect to the alleged offences since 9 June 2021. The trial is listed to commence in February 2026. If bail is not granted, the applicant will be in custody for about four years and eight months before his trial. The applicant seeks home detention bail. The applicant has a presumption of bail and submits that four years and eight months on remand before trial will be oppressive. The Director submits that bail should be refused given the gravity of the alleged offences and the risk to the community. It was not submitted that, if released on bail, the applicant might pose a risk to the target. The applicant has a lengthy criminal history, but has not been sentenced to imprisonment before and has not committed an offence of violence since 1992. Held: -- 1 of 8 -- 1. Bail is granted on home detention. The risks of the applicant offending and absconding are sufficiently mitigated by home detention bail. Bail Act 1985 (SA), referred to. Questions of Law (Nos. 1 and 2 of 2023) [2024] SASCA 82, considered. -- 2 of 8 -- R v SAW [2025] SASC 19 Criminal: Application KIMBER J. 1 This is a bail application. 2 The applicant is charged with the following offences arising out of the same allegations: conspiring to cause serious harm and participating in a criminal organisation (the offences). 3 For the following reasons, I grant bail on home detention. Background 4 The background below is based upon the prosecution case statement about which, for the purposes of this application, there is no dispute. The background below is simply what is alleged by the prosecution. Nothing in this judgment reflects any view of what will be established in the trial(s) of the applicant or his co-accused. It also does not reflect any view of what may be established in the trials of any other defendants who might have matters which are, or which might come, before me. 5 From December 2019, senior members of the Comancheros, a group which is alleged to be a criminal organisation, came to believe that the alleged target of the offences owed a senior member of the Comancheros, RPHJ, a debt of about $300,000. Throughout 2020, RPHJ and others connected to the Comancheros engaged in communications suggesting a strong interest in seeking retribution against the alleged target for the debt, including by shooting him. In February 2021, RPHJ began to believe that his position as a senior member of the Comancheros was under threat as others believed that he had failed to act against the alleged target. On 21 May 2021, these beliefs were the subject of a meeting in a public park in the eastern suburbs of Adelaide. 6 After the meeting on 21 May 2021, there were three separate and unsuccessful attempts to harm the alleged target. The attempts were on 23 May 2021 (the first attempt); 27 May 2021 (the second attempt); and 6 June 2021 (the third attempt). It is these attempts, and the steps taken in the preparations for them, that found each of the two offences. Each attempt occurred against the background of discussions and other acts on days other than those identified above. Substantial aspects of the discussions and other acts took place utilising what is known as the ‘ANOM application’ installed on what are known as ‘ANOM phones’. -- 3 of 8 -- [2025] SASC 19 Kimber J 2 7 The workings of the ANOM application and ANOM phones have been set out in other judgments and need not be detailed here.1 For this judgment, it is sufficient to note only the following: • The ANOM application enabled encrypted communications to be sent between phones on which that application had been installed. • Communications using the ANOM application were promoted as being immune to penetration by investigators. • The result was, allegedly, that those who used the ANOM application to communicate with others using the same application commonly, if not exclusively, used it to further unlawful activity and did not take any further steps(s) to hide the subject of the communications. 8 Unbeknownst to those using the application, the communications were being received not only by those for whom they were intended, but by the Australian Federal Police. 9 It is not suggested that the applicant had access to a phone on which the ANOM application had been installed, nor is it suggested that he was a member of the Comancheros. These are matters which might inform his standing with others also charged with the offences; what he knew about what was planned with respect to the alleged target; what he knew about why certain things were being done, including things done by him; and why he played the role alleged by the prosecution. They are matters which also inform whether the applicant should be granted bail. 10 It is not necessary to detail the prosecution case with respect to each attempt. It is sufficient to state that each was an apparently carefully planned attempt to cause serious harm to the alleged target by attending at what was thought to be his home in Rosslyn Park (the house). Unbeknown to the alleged conspirators, the alleged target was not residing at the house at the time of the attempts. The plans to harm the alleged target included ensuring the availability of a loaded firearm(s); the use of stolen and/or disguised vehicles; and plans for the destruction of evidence which might implicate certain participants. 11 The applicant is only alleged to have been involved in the second attempt. 12 On 26 May 2021, members of the alleged conspiracy other than the applicant took steps to ensure that a loaded firearm was available. On 27 May 2021, at about 1:30pm, the firearm was likely placed in a Subaru vehicle (the Subaru). 13 At about 11:17pm, the Subaru was driven to Rosslyn Park and the driver stopped in a street which intersects with the street in which the target was believed to be living. The applicant was in the passenger seat and got out of the car, leaving 1 See, for example, Questions of Law (Nos. 1 and 2 of 2023) [2024] SASCA 82. -- 4 of 8 -- [2025] SASC 19 Kimber J 3 the driver inside. The driver kept the Subaru running while the applicant walked a short distance away from the vehicle and placed an item on the ground. The applicant then walked in the direction of the house before hiding in, or behind, a hedge two doors from the house. However, when the police made their presence known by attending in a marked vehicle(s), the applicant sought to move quickly in the direction of the Subaru in an apparent attempt to flee. 14 Having attended in a marked vehicle(s), police took a position behind the Subaru. The Subaru left at speed and the driver was not caught. About 30 minutes later, the driver dumped the Subaru and ran away. Within the Subaru was accelerant, perhaps consistent with a plan to burn the car after the alleged goal of the conspiracy had been achieved. 15 In the area in which the applicant had hidden in, or behind, the hedge, police found a black scarf and surgical mask suitable for use as a disguise, and a pair of gardening gloves. The applicant told the police those items were his. The following day, the area where the applicant had been seen to place an item was searched. Police found a firearm, loaded with five rounds. 16 On the prosecution case, likely while disguised and wearing gloves to avoid leaving behind his fingerprints and DNA on the firearm or any other item he might touch, the applicant was to shoot the alleged target. The criminal history of the applicant and time on remand 17 The applicant has been in custody with respect to the offences since 9 June 2021. The trial is listed to commence on 16 February 2026. By the time the trial commences, about four years and eight months will have passed since 9 June 2021. 18 The applicant is 55 years of age and has a lengthy criminal history. Since 1986, when he was a youth, he has committed offences on a regular basis. Although he has a lengthy history of offending, while persistent, it can be characterised as being towards the lower end of seriousness. It does not appear that the applicant has been sentenced to an immediate term of imprisonment. Many convictions have been for driving offences. The applicant has committed assaults, but not since 1992. The convictions for assaults were dealt with by the imposition of fines. No matters have been dealt with in the District or Supreme Courts. The previous convictions of the applicant include breaching bail several times. The applicant has also breached bonds. A summary of the submissions of the applicant 19 The applicant has a presumption of bail. For the purposes of this application, the applicant does not deny the summary of the prosecution case which I have outlined. Nevertheless, the applicant emphasises that, on the prosecution case, the applicant was not entrusted with an ANOM phone and was not a member of the Comancheros. The applicant submits that these are matters which inform his -- 5 of 8 -- [2025] SASC 19 Kimber J 4 position in the alleged conspiracy; what he knew at the time of the second attempt; and the strength of the case against him. The applicant submitted, with respect to what must be proven at trial regarding the applicant, that the prospects of the prosecution not meeting its burden were very good. 20 The applicant did not dispute his criminal history but says that it reflects a longstanding problem with drugs rather than violence. 21 The applicant submits that the period between 9 June 2021 and today is oppressive, and that will be even more so by the time of trial. The applicant submits that he has been adversely impacted by his mother passing while on remand and by being unable to spend time with her before her passing. The applicant submits that he is burdened by the separation from his partner with whom he hopes to conceive and by issues impacting upon his health. The applicant has a cardiac issue which means that, were he in the community, specialist consults would be more common, and he also has an issue which impacts his bowels. The applicant submits that the home detention address is suitable and will afford appropriate protection to the community. A summary of the submissions of the Director 22 The Director opposes bail given the gravity of the offences; the applicant’s criminal history, including his history of breaching bail; and the risk posed to the community if the applicant were to be released on bail. Discussion 23 A few months ago, the prosecution abandoned seeking to prove a conspiracy to kill the alleged target. Nevertheless, assessing the gravity of the alleged offences requires consideration of matters beyond the elements of those offences. 24 On any reasonable view, the alleged offences are very serious. If the factual matters set out in the prosecution case statement were ultimately established by the evidence at trial, it is arguable that the prospects of the prosecution meeting its burden of proof are greater than that characterised by the applicant in submissions. Ultimately, that depends on the evidence; the testing of that evidence; and the submissions advanced at trial. It is not possible, nor appropriate, to express any view other than that, if the evidence set out in the prosecution factual summary is admitted, the inferences that the prosecution will seek to have drawn at trial appear open. 25 On the prosecution case, the applicant was prepared to shoot the alleged target. On the evidence which will be sought to be led at trial, the applicant does not appear to dispute that there is a persuasive case that it may have been obvious that there had been planning given that, at least, the applicant was driven to a location by another late at night; the driver waited and kept the car running; the applicant placed a loaded firearm away from the car; and the applicant appears to have had with him items suitable for a disguise. Having placed the loaded firearm -- 6 of 8 -- [2025] SASC 19 Kimber J 5 away from the car, late at night, the applicant approached a house which was not his own; took up a position in or behind the hedge of a nearby house; and attempted to leave the area when police attended. It is not suggested that the applicant had any motive of his own to involve himself in these alleged events. On the prosecution case, and subject to what evidence is ultimately admitted at trial, the only motive said to be revealed by the evidence is one held by the Comancheros. On the prosecution case, the inference is that the applicant was doing the bidding of an organised criminal group. These things said, on the prosecution case, the applicant was not an organiser of the conspiracy. On the prosecution case, if the applicant was involved, it is more likely that he was doing the bidding of others. 26 The Director submitted that the alleged involvement of the applicant in the two offences means that there is a risk to the community should he be released. The significance of that risk must be evaluated not only given his alleged role in the alleged offences but also given other matters. As set out above, the applicant has not committed an assault since 1992. The Director made no submission which suggested that, should the applicant be released on home detention bail, police considered the applicant posed a risk to the alleged target. Assuming for the purposes of this application, but not deciding, that some members of the Comancheros might still be motivated to harm the alleged target, it is not suggested that the applicant is a member of that group. The Director did not submit that, in 2025, the Comancheros might wish, or be able to, use the applicant to further a continuing motive to harm the alleged target and, in the absence of a persuasive submission, I do not make such a finding. 27 At the same time, given matters that do not appear to be disputed for the purposes of this application, there is a strong inference that in May 2021 the applicant was prepared to assist others involved in what he likely understood was serious and planned criminal activity involving the use of a loaded firearm. Why the applicant might have been motivated to do that is unknown. That unknown does not assist the applicant, as it might give rise to a concern that the motive persists. Discussion 28 Some of the matters emphasised by the applicant weigh heavily in favour of bail, but not all. 29 I do not regard the health issues of the applicant as weighing in favour of bail. Without wishing to be disrespectful, I have almost the same view about the passing of the mother of the applicant and his separation from his partner. To the extent those matters have any weight, that weight is very limited. It is only relevant to how the defendant may be burdened if not granted bail. 30 There is a presumption of bail.2 If bail is not granted, the period in custody between the arrest of the applicant for this matter and his trial will be four years 2 Bail Act 1985 (SA) s 10. -- 7 of 8 -- [2025] SASC 19 Kimber J 6 and eight months. That alone weighs very heavily in favour of a grant of bail. Home detention is the most stringent form of bail and would limit, but not remove entirely, the opportunity for the applicant to engage in criminal activity. Putting aside what the prosecution will allege in the trial, despite a lengthy criminal history, I would not characterise the applicant as a person with a propensity for violent conduct. As set out above, it has not been submitted that the applicant might pose an ongoing risk to the alleged target. 31 At the same time the alleged offences are grave. For the purposes of this application, it is not disputed that the applicant took a loaded firearm to the vicinity of house which was not his own; had available to him items suitable for disguise; had a car waiting; and within the car were the means to destroy the car and any evidence with it. Conclusion 32 In the circumstances, and although I regard the application as relatively finely balanced, I am satisfied that bail on home detention is appropriate for this applicant. 33 It is not suggested that the applicant was/is a member of an organised criminal group nor is it clear that he was in direct contact with members of that group, senior or otherwise. It is not suggested that he was a user of an ANOM phone. It is not suggested that the applicant had involved himself in the activities of an organised criminal group beyond his alleged conduct on the second attempt. The applicant has no other matters before the Courts. It is not suggested that the applicant might have the means to abscond in an organised way. Any risk that he might abscond is, in my view, appropriately mitigated by home detention. 34 Given the applicant’s history, it cannot be said that there is no risk of offending while on bail. But, for this applicant, I am satisfied that risk is sufficiently mitigated by home detention conditions. Four years and eight months in custody before trial is an exceptionally long period for a person not sentenced to a period of imprisonment before. For this applicant, despite his criminal history and the gravity of the alleged offences, that would be too long when home detention is available. -- 8 of 8 --