Homsi v The Queen - [2020] SASC 242

Supreme Court of South Australia
(Criminal: Application)
HOMSI v THE QUEEN
[2020] SASC 242
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
8 December 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant is charged with a number of offences including aggravated assault, unlawful imprisonment and detention and unlawful choking under s 20A(1) of the Criminal Law Consolidation Act 1935 (SA). The alleged offending commenced in November 2019 and ceased in April 2020. The applicant has been in custody since April 2020.
The applicant is a prescribed applicant within the meaning of s 10(2) of the Bail Act 1985 (SA). Accordingly, the applicant must show "special circumstances" within the meaning of s 10A(1) of the Act.
Held, allowing the application:
1. Special circumstances exist for two reasons:
a. While the alleged offending is very serious, the applicant and the complainant are no longer in a relationship and the complainant's whereabouts are not known to the applicant. The prosecution accepts that there are issues regarding the credibility of the complainant.
b. The applicant has been in custody in connection with these matters since April 2020. The matter is unlikely to be tried until the first half of 2022, with the delays exacerbated by the recent lockdowns associated with the COVID-19 pandemic.
2. Bail is granted on strict home detention conditions, supported by a guarantee.
Bail Act 1985 (SA); Criminal Law Consolidation Act 1935 (SA), referred to.
Smith v The Queen [2020] SASC 132; Lillyman v The Queen [2020] SASC 55, considered.

HOMSI v THE QUEEN
[2020] SASC 242
Criminal: Application
LIVESEY J:
Introduction

This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) dated 18 September 2020. The application is brought in respect of a refusal to grant strict home detention bail on 19 August 2020.
The Magistrate refused bail on the basis that there were no “special circumstances” proved by the applicant within the meaning of s 10A(1) of the Act.
The subject alleged offending
By an Information dated 14 September 2020 the applicant is charged with the following nine offences:
1.On 25 November 2019, at Glenelg, assaulted the complainant, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). This is alleged as an aggravated offence. It is alleged as a circumstance of aggravation that the applicant used or threatened to use a knife. It is alleged as a further circumstance of aggravation that the offence was committed knowing that the claimant was a person with whom the applicant was, or was formerly, in a relationship.
2.On 25 November 2019, at Renown Park, unlawfully imprisoned the complainant and detained her against her will, which is a common law offence.
3.On 25 November 2019, at Renown Park, caused harm to the complainant, intending to cause her harm, contrary to s 24(1) of the CLCA. This is alleged as an aggravated offence. It is further alleged as a circumstance of aggravation that the applicant used, or threatened to use, a pellet gun. It is further alleged as a circumstance of aggravation that the applicant committed the offence knowing that the complainant was a person with whom he was, or was formerly, in a relationship.
4.On 13 December 2019, at Bedford Park, assaulted the complainant, contrary to s 20(3) of the CLCA. This is alleged as an aggravated offence. A further alleged circumstance of aggravation is that the applicant used, or threatened to use, a machete, and, it is further alleged, as a circumstance of aggravation, that the applicant committed the offence knowing that the complainant was a person with whom he was, or was formerly, in a relationship.
5.On 13 December 2019, at Bedford Park, without lawful excuse, threatened to cause harm to the complainant, intending to arouse fear that the threat would, or was likely to be, carried out, or being recklessly indifferent as to whether that fear was aroused, contrary to s 19(2) of the CLCA. This is alleged as an aggravated offence. It is further alleged, as a circumstance of aggravation, that the applicant used, or threatened to use, a blowtorch. It is also alleged, as a circumstance of aggravation, that the applicant committed the offence knowing the complainant was a person with whom he was, or was formerly, in a relationship.
6.On 13 December 2019, at Bedford Park, whilst being in, or having been in, a relationship with the complainant, unlawfully choked, suffocated or strangled her without her consent, contrary to s 20A(1) of the CLCA.
7.On 13 December 2019, at Bedford Park, being in, or having been in, a relationship with the complainant unlawfully choked, suffocated or strangled her without her consent, contrary to s 20A(1) of the CLCA.
8.On 13 December 2019, at Bedford Park, assaulted the complainant and caused her harm, contrary to s 20(4) of the CLCA. This is alleged as an aggravated offence. It is further alleged as a circumstance of aggravation that the applicant used, or threatened to use, a machete. It is also alleged, as a circumstance of aggravation, that the applicant committed the offence knowing that the complainant was a person with whom he was, or was formerly, in a relationship.
9.Between 29 February and 1 April 2020, at Fulham Gardens, attempted to dissuade the complainant from attending as a witness or from giving evidence in judicial proceedings, contrary to s 244(3)(b) of the CLCA.
According to the information made available to me, the alleged offending commenced in November 2019, after the applicant had asked the complainant to hire a motor vehicle in her name for him to use. There were apparently arguments about the vehicle and the applicant is alleged to have refused to return it on time.
It is alleged that, because of the escalating misbehaviour of the applicant, the complainant no longer felt safe and booked into a motel at Glenelg. Nonetheless, the applicant is said to have discovered the complainant and forced her, and the person with whom she was in a motor vehicle, to travel to where the hire car was parked. This was allegedly achieved with threats and by brandishing a knife. Once they had arrived at the hire car, the complainant and the applicant drove to an address where it is alleged that the applicant continued to make threats which were taken seriously by the complainant.
The allegations involving the gel gun are said to involve the applicant shooting the complainant at a close range over a period of two hours without respite, notwithstanding the presence of others in the room. Again, the conduct is alleged to have been characterised by threats.
Later, a third person agreed to drive the applicant and the complainant to Glenelg so that the complainant could retrieve her belongings. During this trip, it is alleged that the applicant continued to threaten the complainant. When the applicant returned with the complainant’s belongings, the three of them then drove towards Semaphore. Another vehicle is said to have approached and the complainant recognised a woman in the other vehicle. The applicant told the complainant to get into that other vehicle. The three of them then drove to West Lakes.
Later, the complainant escaped to her mother’s address where she told her mother what had happened, and subsequently, they reported the matter to police.
Police also allege that on 13 December 2019, the applicant falsely imprisoned the complainant by refusing her permission to leave her apartment whilst a number of serious assaults were carried out. These include, it is alleged, hitting the complainant in the head twice with the blunt side of a machete and slapping her in the face, threatening her whilst holding the machete, and stating that the applicant was “going to gaol today for murder”, and causing fear in the complainant.
On the same day, it is alleged that the applicant put a blowtorch near the complainant’s face and, later, held a pillow against her face, restricting the complainant’s breathing, causing her to fear that she might lose consciousness. On the same day, two superficial lacerations were caused to the complainant’s throat with the machete, together with a large defensive laceration to the complainant’s finger.
It is alleged that the complainant was then taken to the Westfield Marion Shopping Centre so that she could purchase pain relief medication. However, she escaped and managed to contact police.
Police allege that, on 13 December 2019, they responded to a report of domestic abuse. The applicant was sighted as a passenger in a vehicle that was travelling at speed. The pursuit was stopped because of the manner of driving.
Police spoke with the complainant and attended at the accommodation she shared with the applicant. There, they collected a machete and a butane gas bottle with a blowtorch nozzle, and took photographs of the scene. A subsequent search for the applicant proved fruitless. He appeared to be moving among the northern suburbs of Adelaide.
By January 2020, police received information that the applicant was residing in Victoria.
On 14 February 2020, the applicant failed to appear before the Adelaide Magistrates Court and bail was revoked and a warrant issued. As will be seen, there was already a warrant issued on 25 October 2019 regarding alleged offending on 19 September 2019.
The applicant was eventually arrested at the end of April 2020 and remanded on 1 May 2020 for the first eight of the charges earlier outlined.
On 3 June 2020, the applicant was in custody and appeared by video link before the Adelaide Magistrates Court and a bail application was withdrawn.
On 12 August 2020, the applicant again appeared by video link in the Adelaide Magistrates Court and a Bail Enquiry (Home Detention) Report was ordered. On 19 August 2020, the applicant’s application for bail was refused.
The circumstances of the applicant
The applicant is 32 years of age and his criminal antecedents history dates back to 2007. Much of it is concerned with various motor vehicle offences. Nonetheless, he has, at times, breached bonds, possessed controlled drugs or prohibited weapons, and failed to comply with the terms of bail agreements. A warrant history Information sheet suggests that warrants have been issued in 2010 (twice), 2016, 2019 and 2020.
Before the subject alleged offending, the applicant allegedly became embroiled in a motor accident which is the subject of an Information dated 24 October 2019 and the following charges:
1.On 19 September 2019, at Somerton Park, drove a vehicle without due care, contrary to s 45(1) of the Road Traffic Act 1961 (SA).
2.On 19 September 2019, being the driver of a motor vehicle involved in a crash, failed to give his name and address to the other driver within the required time, contrary to r 287(1) and r 287(2) of the Australian Road Rules.
3.On 19 September 2019, without lawful excuse, damaged a fence, the damage amounting to not more than $2,500, contrary to s 85(3) of the CLCA.
The allegations are, essentially, that the applicant was involved in a rear‑end collision, colliding with the rear of a truck. The driver of the truck denies applying his brakes or slowing before impact. The applicant is alleged to have driven away, leaving behind $5,000 damage to the truck and the damaged front bumper of the applicant’s vehicle on the roadway, which clearly displayed his registration plate.
About an hour later, a nearby resident heard banging and, a little after that, was contacted by police. It was brought to his attention that his fence had been damaged. Police will allege that the applicant absconded and, whilst being chased by police, attempted to flee over a fence, causing it damage.
The applicant admitted colliding with a truck but claimed that the driver had braked. He explained that he did not remain at the scene, nor exchange details, because had had been “hard done by” by police in the past.
It would appear that the applicant was granted police bail. Notwithstanding having been granted police bail, the applicant failed to attend before the Adelaide Magistrates Court on 25 October 2019 and bail was revoked. A warrant was then issued.
On 30 April 2020, the applicant was made the subject of an interim intervention order, with the complainant involved in the present alleged offending as the protected person.
The applicant was located and arrested at 10.55 am at Elizabeth Grove. He required treatment at the Lyell McEwin Hospital for injuries sustained during the arrest. Both the 25 October and 14 February warrants were executed at 4.30 pm at Elizabeth Police Station. Police bail was refused.
According to the Home Detention Enquiry report, dated 19 August 2020, the proposed residence of the applicant’s mother is suitable but, apart from the intervention order in respect of the complainant, there is another intervention order in respect of another protected person, being another former domestic partner. The nominated address is just over half an hour’s drive from each of the last registered addresses of the protected women.
Corrections expressed concern about the suitability of the applicant for home detention bail because, on two prior occasions during March and May 2019, the applicant was on home detention bail when he interfered with the GPS anklet electronic monitoring equipment. The precise circumstances of the alleged offending for which the applicant was on home detention bail, and the precise circumstances of the interference, have not been made known to me. Nonetheless, it appears that the applicant has been imprisoned four times since 2010.
The application for review
According to the applicant’s originating application, the prosecution conceded before the Adelaide Magistrates Court on 12 August 2020 that they had concerns about the credibility of the complainant. The application for bail was apparently not opposed by the prosecution at that time. However, by the time the home detention report was available on 19 August 2020, though prosecution again advised the applicant’s solicitor that bail would not be opposed because the complainant was “not credible on his assessment”, the Magistrate appeared to take a different view, and required submissions to be made on “special circumstances” within the meaning of s 10A of the Act. It was following those submissions that the application for bail was refused.
It is said that, on 16 September 2020, the prosecution again advised the Court that the credibility of the complainant was in issue and a 12-week adjournment was sought so as to obtain evidence. That application was refused. The matter was adjourned only until 18 November 2020.
The applicant maintains that, notwithstanding the alleged offending in November and December 2019, the complainant and the applicant remained in a relationship until the applicant was arrested in April 2020. He says that he was living in Melbourne and the complainant voluntarily travelled to see him and spend time with him. Apparently, the complainant’s father has contacted the mother of the applicant and revealed that the complainant has a significant drug addiction and has been stealing from her own family. The applicant strongly contests the allegations against him.
Given the conflicting assertions about the credibility of the complainant, I adjourned the matter to allow that issue to be addressed. Accordingly, the review was adjourned to various dates between September 2020, October 2020 and November 2020 until 7 December 2020. Some of the delays were because of difficulties getting instructions due to various lockdown arrangements at the facility at which the applicant has been held.
I have received and considered a number of affidavits from the complainant, as well as an affidavit from Brevet Sergeant Ferguson. Whilst at one stage I was told that there are no longer any concerns about the complainant’s credibility, I was told yesterday that there were, on the face of it, still some “issues” about the complainant’s credibility, though these were “matters for trial”. The nature and extent of those issues were not explained.
Disposition of the application
The applicant enjoys a presumption in favour of bail under s 10 of the Act unless he is a “prescribed applicant” within the meaning of s 10A(2) of the Act, in which case there is a presumption against bail unless the applicant demonstrates “special circumstances”.
The applicant is charged with an offence contrary to s 20A(1) of the CLCA (offence 9), which is an offence prescribed by s 10A(2)(d)(i) of the Act.
In the circumstances of this case, there was initially some scope to question whether the applicant was “taken into custody in relation to an offence” specified within s 10A(2).[1] However, it was ultimately made clear that the applicant was taken into custody on 30 April 2020 in relation to a prescribed offence, so that the applicant is therefore a prescribed applicant within the meaning of s 10A(2) of the Act, and required to show “special circumstances” under s 10A(1) of the Act.
[1] Smith v The Queen [2020] SASC 132.
I must admit to considerable concern about the applicant’s earlier failures to comply with the terms of various bail agreements. I am also concerned about the serious nature of the offending and the extended period over which it is alleged to have occurred. These matters are aggravated somewhat by the circumstances in which the applicant failed to deliver himself up to police, and, eventually, it was necessary for him to be arrested.
Nonetheless, and with some hesitation, I am prepared to find that there are special circumstances in this case for essentially two reasons.
First, whilst the alleged offending is very serious and, on one view of it, typical, the applicant and the complainant are no longer in a relationship and the complainant’s whereabouts are not known to the applicant. In addition, it is conceded that there remain “issues” about the complainant’s credibility.
Secondly, and relatedly, the applicant has been in custody in connection with these matters since April 2020. It is accepted by the prosecution that there is likely to be no trial of these matters until the first half of 2022 at the earliest. That is a very long time indeed, exacerbated by delays caused by the recent lockdowns associated with the global pandemic.[2]
[2] cf. Lillyman v The Queen [2020] SASC 55.
In all of these circumstances, I am prepared to grant bail on strict home detention conditions. I will have a draft bail agreement provided to the parties so that they may confer about the appropriate terms, which will include a guarantee to be provided by the applicant’s mother and a condition precluding any contact with the complainant.
The draft agreement will be provided later this afternoon. It will be necessary, as I say, for the parties to confer and, once you have done that, please return that to my Chambers. I will review that in Chambers and make the orders. If there is any dispute between the parties about the terms of the orders, please let my Chambers know and I will call the matter back on at short notice, but it is not likely that the bail agreement and guarantee will be in place before tomorrow.