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During a search of Draca’s premises, police found 293 cannabis plants and 54 kilograms of harvested cannabis heads

The likelihood that the accused would lose his business unless released swayed the Supreme Court’s decision to grant bail

The Supreme Court of New South Wales decided R v Draca [2015] NSWSC 1150 in August 2015. The case concerned Draca’s application for bail.

Draca was arrested for cultivating and supplying cannabis. Both allegations involved a large commercial quantity of the drug.

During a search of Draca’s premises, police found 293 cannabis plants and 54 kilograms of harvested cannabis heads. Another 230 kilograms of cannabis leaves and stems were buried in the yard. Intercepted telephone communications between Draca and an alleged accomplice suggested that Draca was aware of the growing operation and was seeking advice about the watering system.

Draca’s bail application

Draca and his wife migrated to Australia from Croatia in 1996. He is 40 years old and has no significant criminal record. He has two children who attend school. His family has lived at its current address (a rental) for 4 years. Some members of his extended family live in the Wollongong area.

In addition to those community ties, Draca is a builder who has six fulltime employees. He has operated his business for 14 years and is presently engaged in four building projects. His wife has kept the business in operation on borrowed money since his arrest but the business is likely to fail for lack of financing unless Draca can return to work.

The Bail Act

In light of the charges against Draca, section 16A(1) of the Bail Act requires his detention unless he is able to show cause why his detention is not justified. If he makes that showing, the court must consider whether his release would pose an unacceptable risk that Draca would:

flee,
commit a serious offence,
endanger the safety of the public or any specific person, or
interfere with witnesses or evidence.

The court emphasized that the two components of the test must be considered separately. In Draca’s case, there was little reason to think that Draca would pose an unacceptable risk and the Crown did not argue otherwise. His community ties made him an unlikely flight risk and nothing in his history suggested he would commit other crimes or engage in harmful acts if he were released on bail.

The decisive question was therefore whether Draca could show cause why his detention would not be justified. The fact that he posed no unacceptable risk if released was a factor in his favor. Draca also argued that the Crown had a weak case. The court was satisfied that the evidence, if proved, would be sufficient to establish Draca’s guilt, so that factor weighed against Draca’s release.

Draca established that his business would fail unless he was released. His family and his employees would lose their source of income. That factor weighed heavily in favor of release. On balance, the court agreed that Draca’s detention prior to trial would not be justified. The court therefore granted bail, including the requirements that Draca not change his residence, that he report to the police three times a week, that he avoid contact with witnesses and his co-accused, and that $15,000 be deposited by a surety, subject to forfeiture if Draca fails to come to court.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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