In the Matter of A Bail Application BY Steven Wayne Hillier

Steven Wayne Hillier applied for a review of the decision of the Magistrates Court to refuse him bail. He was charged with the murder of his former partner, Ms Ana Louise Hardwick, and arson. The prosecution case against him was entirely dependent upon circumstantial evidence. The most incriminating evidence was that relating to a "tape lift of DNA" taken from the collar of the deceased’s pyjamas. However, there was no report from the analyst who tested the sample. Section 43 of the Bail Act 1992 (ACT) ("the Act") provides that the Supreme Court may review any decision of, inter alia, the Magistrates Court in relation to bail. Section 8 provides that, subject to certain other provisions of no relevance to the present case, a person charged with any serious offence is entitled to be granted bail in accordance with the Act unless the Court is satisfied that refusal is justified having regard to certain factors. The only issue which caused concern was the protection of the community. The crucial question was whether there was a real risk that, if released on bail, the applicant might commit further offences and, in particular, whether there were any substantial grounds to fear that he might harm one or both of his children. However, the suggestion that a person who is not qualified as a psychiatrist or psychologist may express an expert opinion as to the personality, character and likely future behaviour of a man he has never met was one which I had not previously encountered in a court of law. The suggestion that a person who is not qualified as a psychiatrist or psychologist may express an expert opinion as to the personality, character and likely future behaviour of a man he has never met was one which I had not previously encountered in a court of law. Having considered the evidence carefully, I was obliged to conclude that the expressed concerns for the safety of the applicant’s children were based substantially upon speculation and, as the Full Court held in Dunstan v Director of Public Prosecutions, speculation is not enough. In these circumstances I was unable to find that the respondent had established any grounds justifying a denial of the legal right to bail provided to the applicant by s 8 of the Act. Accordingly, I ordered that he be admitted to bail but imposed strict conditions including requirements that any contact with his children occur only in the presence of officers of the Department of Family Services.

Associate:Date: 25 June 2003Counsel for the applicant: Mr J Purnell SCSolicitor for the applicant: Pamela Coward & AssociatesCounsel for the respondent: Ms P De VeauSolicitor for the respondent: ACT Director of Public ProsecutionsDate of hearing: 13 June 2003Date of judgment: 25 June 2003