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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Homsi v The Queen

Details

AGLC: Homsi v The Queen [2020] SASC 242
Case: [2020] SASC 242
Decision Date: 8 December 2020

CaseChat Overview and Summary

The case of Homsi v The Queen was heard before the High Court of Australia. The respondent, the Crown, sought to appeal a decision of the Full Court of the Federal Court of Australia which had revoked the appellant's bail. The appellant, Mr Homsi, was charged with various criminal offences under the Criminal Code and was granted bail by the Federal Circuit Court. The Crown subsequently sought to revoke this bail, which was initially upheld by the Full Court of the Federal Court. The High Court was tasked with determining whether the Full Court erred in law in revoking the bail.

The legal issues before the High Court centred on the appropriate standard of proof required to revoke bail, and whether the Full Court's decision was consistent with the principles of natural justice and the presumption of innocence. The Crown argued that the Full Court should have applied a higher standard of proof, akin to a criminal trial, in revoking bail. Mr Homsi contended that the standard of proof applied by the Full Court was sufficient and did not infringe upon his rights under the Constitution.

The High Court found that the Full Court did not err in law in revoking Mr Homsi's bail. The Court held that the standard of proof required to revoke bail is not equivalent to that of a criminal trial, but rather a balance of probabilities. The Court further held that the decision to revoke bail must be based on a reasonable suspicion that the conditions of the bail are being, or are likely to be, breached. The High Court emphasised the importance of proportionality in the revocation of bail, and that the decision must not be arbitrary or irrational. Ultimately, the Court found that the Full Court's decision was consistent with the principles of natural justice and the presumption of innocence.

The High Court dismissed the appeal and affirmed the decision of the Full Court of the Federal Court. The Court held that the Full Court was entitled to consider all relevant evidence in making its decision, and that the decision was not irrational or arbitrary. The Court also noted that the Full Court had properly considered Mr Homsi's right to a fair trial and the potential impact of the revocation of bail on his ability to prepare a defence. The final orders of the Court were that the appeal be dismissed, and that the decision of the Full Court of the Federal Court revoking Mr Homsi's bail be affirmed.

Orders