Myers v The Queen - [2020] SASC 175

Supreme Court of South Australia
(Criminal: Application)
MYERS v THE QUEEN
[2020] SASC 175
Reasons for Ruling of The Honourable Justice Livesey (ex tempore)
17 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with committing robbery by force, or threatening to use force. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA). The applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.
Held, allowing the application; bail is granted.
Bail Act 1985 (SA) s 14, s 10; Criminal Law Consolidation Act (SA) s 19, s 85, s 137, referred to.

MYERS v THE QUEEN
[2020] SASC 175
Criminal: Application for review of bail

LIVESEY J: This is an application for the review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a Magistrate’s refusal to grant bail on 28 August 2020 at Elizabeth. The reason given by the Magistrate was the applicant’s failure to appear in a major indictable matter.
Circumstances of the alleged offending
The applicant is charged on Information dated 9 July 2020 with committing robbery by force or by threatening to use force on 29 April 2020 contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The alleged April offending concerns a set of “AirPods” and it is alleged that the offence is aggravated because it was committed in company with one or more other persons and, as well, it was associated with the threaten use of an offensive weapon, being a firearm.
The prosecution alleges that the complainant was on a bus on Grote Street, Adelaide, at about 8:00 pm on 29 April 2020. Three others got onto the bus at the same stop. The complainant sat down and the other three sat all around him. One of the three spoke to the complainant several times. The complainant took his earphone out so as to hear what was being said. They asked to see his earphone. Another one of the three said to the complainant that he had a “gun behind your neck”.
In fear, the complainant reluctantly gave over one of his earphones to one of the three people. The person to whom he handed it asked for the second one, whereupon the complainant was grabbed by the jacket. The complainant pushed away and ran to the bus driver asking for help. The bus driver stopped the bus and called police. The three then approached the complainant and the bus driver and, once the bus stopped, they left.
On 5 May 2020, after using a combination of closed circuit television footage and media releases, the police obtained information and executed a general search warrant at the home of one of the co-accused. He was arrested and a record of interview was conducted.
Later that same day the police attended the applicant's address, entered under a general search warrant and arrested the applicant. A search of the premises located clothing matching that worn by one of the offenders depicted in the CCTV footage. The applicant was taken to the City Watch House but a record of interview could not proceed because an interpreter was apparently required.
The applicant later told police that he had gone into the city with two friends, but he does not recall what he was doing or where they went. However, he did recall being on a bus and sitting adjacent to the complainant and speaking with him in a friendly manner. He denies stealing the AirPods. He says that he approached the bus driver so as to try and explain that he did not steal the AirPods. He told police that he and his friends then got off the bus and walked towards Mile End to the home of a friend.
Circumstances of the applicant
The applicant is 21 years of age and in a relationship with a Ms Faith Kun, who is also 21 years of age. Before this year, the applicant had no criminal antecedents.
After the subject alleged offending in April, the applicant was charged on Information dated 29 July 2020 with the following offences, said to have been committed earlier on 29 January 2020 in Adelaide:
1Without lawful excuse threatened to cause harm and intended to arouse fear that the threat was likely to be carried out, or was recklessly indifferent as to whether such a fear was aroused, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA); and
2Without lawful excuse and being recklessly indifferent as to whether property was damaged, damaged a plasterboard wall the property of “Helping Young People Achieve”, the damage amounting to not more than $2,500, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution alleges that late on the morning of Wednesday, 29 January 2020 the applicant attended the reception of “Helping Young People Achieve” at Currie Street in Adelaide with two other African males seeking his belongings. The complainant is a social worker and acting manager employed by “Helping Young People Achieve”.
At the time, the former partner of the applicant was in the building. The complainant knew that there was an intervention order in place. The applicant was asked to wait at reception and his belongings were brought to him. The applicant became verbally abusive and he was asked to leave. This provoked an escalation in aggression from the applicant. He punched a plastic barrier in the front reception area, slammed the open exit door against the wall with such force that it caused the door handle to damage the wall and, as he left the premises, he is alleged to have pointed to the complainant with his index finger and said “I will kill you, I will stab you”. He gestured with his right index finger across his throat. This caused the complainant fear and apprehension. The police information available to me suggests that there is a witness.
The applicant's affidavit
According to his affidavit affirmed 8 September 2020, the applicant says:
1The applicant was arrested in connection with the April allegations on 5 May 2020 and bailed to appear on 15 July 2020;
2The applicant was bailed to appear on 5 August 2020 in connection with the January allegations. The applicant claims that he did not know that he had “separate bail to attend on … 5 August 2020”;
3On 15 July 2020 the applicant says that he attended the Court but could not find his name on the cause list. He says he went to the Registry and was told that there were no matters currently before the court and so he left, without appearing;
4The applicant says that he first learnt about his failure to appear on 5 August 2020 when he went to the police station on 27 August 2020 to recover a mobile phone seized in connection with the April allegations. Police suggested that he surrender to the Elizabeth Police Station on 28 August 2020, and he did so. It was on that day that he was brought before the Magistrate. At that time he was unrepresented; and
5The applicant claims that he was not given an opportunity by the Magistrate to explain why he did not attend on 15 July or 5 August 2020.
The applicant by his affidavit goes on to criticise the Magistrate’s decision making and suggests that errors were made. As is well recognised, this is a hearing de novo and so it is, with all due respect, irrelevant and unhelpful to assert error. This is not an appeal.
However, in submissions today the applicant’s counsel emphasised that there was no written record of the remand date for 5 August 2020 and that the respondent did not disagree. In addition, it appears that the difficulties the applicant encountered in July may possibly have been contributed to by the applicant’s difficulty with reading.
I have been provided with a home detention enquiry report dated 16 September 2020 which suggests that the address nominated in Craigmore is suitable.
Disposition of the bail review
The applicant is not presently working or otherwise gainfully occupied. I am not in a position to resolve what did or did not occur before the Magistrate on 28 August 2020. Nonetheless, the applicant is entitled to a presumption in favour of bail by reason of s 10 of the Act.
The alleged offending in January and April 2020 is regrettable and serious but, of itself, does not warrant a refusal of bail. There is an evident need to ensure that defendants comply with the terms of their bail agreements and present themselves to the Magistrates Court when and where remanded. The onus lies with the defendant to attend and appear on time.
Nonetheless, whilst the failure to attend Court on two occasions is concerning, I am prepared to grant bail. I am prepared to grant bail on the following bases:
1That a guarantee is provided by Ms Faith Kun;
2That a cash surety is provided in the sum of $750; and
3There is regular reporting to SAPOL.
I will grant the parties an opportunity to address the precise terms of the bail agreement and my associate will provide you with a draft.
The order of the Court is that the application for review is allowed and bail is granted.