KM v The Queen

[2020] SASC 190

Supreme Court of South Australia

(Criminal: Application)

KM v THE QUEEN

[2020] SASC 190

Reasons for Ruling of The Honourable Justice Livesey (ex tempore)

1 October 2020

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

The applicant was arrested and charged with (i) maintaining an unlawful sexual relationship with a person under the age of 17, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA); (ii) engaging in unlawful sexual intercourse with a person under the age of 14 years, contrary to s 49(1) of the CLCA; and (iii) aggravated indecent assault contrary to s 56 of the CLCA. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14(2)(a) of the Bail Act 1935 (SA), the applicant sought a review of the order of the Magistrate refusing the applicant bail.

Held:

1.  The alleged offending is very serious and the complainant vulnerable.

2.  Notwithstanding the availability of a residence in a different city for the purposes of bail on strict home detention conditions, there is a need to protect the complainant.

3.  The applicant’s application for bail is dismissed.  Bail is refused.

Bail Act 1935 (SA) s 14(2)(a); Criminal Law Consolidation Act 1935 (SA) s 49, s 50, s 56, referred to.

KM v THE QUEEN
[2020] SASC 190

Criminal:         Application

LIVESEY J:

Introduction

1. This is an application for review of bail pursuant to s 14(2)(a) of the Bail Act 1935 (SA) (the Act), following a Magistrate’s refusal to grant bail on 17 September 2020.

2. The Magistrate regarded the decision before her as “finely balanced”.  She refused bail because of the seriousness of the allegations and the potential for interference with ongoing investigation.

   The subject allegations

3. The applicant has been charged on Information dated 10 September 2020 with the following matters:

   1.Between 26 October 2018 and 9 September 2020, maintaining an unlawful sexual relationship with a person under the age of 17 by engaging in two or more unlawful sexual acts, namely:[1]

   1.1    causing or procuring the complainant to touch and masturbate the applicant’s penis on more than one occasion;

   1.2    causing the complainant to perform an act of fellatio upon the applicant on more than one occasion; and

   1.3    causing the complainant to watch pornography on more than one occasion.

   2.On 22 August 2020 had sexual intercourse with the complainant, a person under the age of 14 years, by causing her to perform an act of fellatio upon him, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

   3.On 22 August 2020 indecently assaulting the complainant by causing her to touch the applicant’s penis, contrary to s 56 of the CLCA. This is charged as an aggravated offence and it is alleged that the complainant was under the age of 14 years at the time of the offending.

   [1] Contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA).

4. The applicant is 24 years of age.  The complainant is 12 years of age.  The applicant is the older brother of the complainant.  Until recently, they were residing with their mother and three siblings in Port Augusta.

5. It is unnecessary to go into detail regarding the precise allegations which have been put before me. The prosecution alleges that there are witnesses to the complainant’s disclosure of the offending.  There are also allegations suggesting that the complainant has hearing and speech problems and she is “quite delayed for her age”.  There are allegations that the complainant has said that she has been hit when at home and bruising has been seen on her body.

6. Following his arrest on 9 September 2020, the applicant declined to answer questions, as was his right. 

7. When opposing bail on 10 September 2020, the prosecution emphasised that the applicant had been charged with a serious offence and that the applicant and the complainant reside at the same address where it was said that the applicant had little support.  Fears were expressed for the complainant’s safety and, in addition, the prosecution said that there was a risk of interference with the ongoing investigation.

8. Today I was told that the complainant and her mother went to a police station where the complainant retracted her allegations.  I was also told that, when not in the company of her mother, the complainant retracted that retraction.  It was emphasised that there was no suggestion that the applicant was involved in the attendance at the police station.  The submission that was made, however, was that this demonstrated the vulnerability of the complainant.  It was also put to me today that, if convicted, the applicant would be sentenced as a “serious sexual offender”.

9. A home detention inquiry report dated 17 September 2020 identifies a suitable residence with an uncle in Adelaide, some considerable distance from the complainant in Port Augusta.

   The application for review of bail

10. Counsel for the applicant today submitted that there were a number of matters which were strongly supportive of a grant of bail on strict home detention terms. 

11. First, she emphasised that the applicant has no prior convictions.  Secondly, she highlighted that the proposed home detention residence is some hours from the complainant.  Thirdly, she submitted that there was now less scope for concern about any risk to the investigation because all relevant statements have now been obtained.  Further, she said that the children of the family have now all been removed from the family home by the Department for Child Protection.  They are residing at locations which are not known to the applicant or his mother.

12. Finally, counsel for the applicant submitted that there would likely be a long delay until this matter is heard.  She put to me that the charge determination date has been set for 17 March 2021 and that the answer charge date would likely be two or three months after that.  She said that the arraignment would be at least six weeks after that date, and that a trial by the middle of next year was optimistic.  She submitted that there were other matters where home detention bail had been granted in respect of similar allegations, and in those cases the home detention bail addresses were in the same city as the complainant.

13. Whilst accepting much of what counsel for the applicant put to me, counsel for the Crown today emphasises that this is a matter which will be heard with priority.

    Disposition of the application for review

14. The applicant enjoys a presumption in favour of bail pursuant to s 10 of the Act and, as has been submitted to me, he has no prior convictions.  He enjoys a presumption of innocence.

15. Nonetheless, like the Magistrate, I find this matter finely balanced.  The alleged offending is very serious and the complainant vulnerable.  In my opinion the presumption in favour of bail is rebutted by the gravity of the allegations which have been made and the need to protect the complainant.

16. In all of these circumstances, I am not prepared to order bail on strict home detention conditions.

17. Accordingly, the application for review is dismissed and bail is refused.