Olsen v State of Tasmania

[2005] TASSC 40

[2005] TASSC 40

CITATION:              Olsen v State of Tasmania [2005] TASSC 40

PARTIES:  OLSEN, David
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
DELIVERED ON:  13 May 2005
DELIVERED AT:  Hobart
HEARING DATE:  13 May 2005
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

[Edited edition of reasons for judgment given orally]

Criminal Law – Jurisdiction, practice and procedure – Bail – Grounds for granting or refusing – Before trial – Other cases – Presumption of innocence reversed by statute.

Family Violence Act 2004 (Tas), s12.
Aust Dig Criminal Law [643]

REPRESENTATION:

Counsel:
           Applicant:  Self-represented
           Respondent:  P Divis
Solicitors:
           Applicant:  Self-represented
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2005] TASSC 40
Number of paragraphs:  10

Serial No 40/2005

DAVID OLSEN v STATE OF TASMANIA

REASONS FOR JUDGMENT  UNDERWOOD CJ

13 May 2005

1. This is an application for bail.  The applicant is charged with one count of aggravated assault.  The complainant is his former partner and who is, therefore, an affected person within the meaning of the Family Violence Act 2004, s12. The Crown case is that the assault consisted of a threatening gesture or gestures with a replica pistol. The applicant strongly disputes there was any assault by threat with this replica pistol. He explained to me that he was just showing it to her.

1. The Crown have told me that they would not oppose bail if the applicant is able to produce a suitable surety.  It appears that he suffers from schizophrenia and would benefit very much from the supervision of a surety to see that he did not breach any conditions of bail.  However, through no fault of his own, the applicant is not able to produce a surety.  The only family member that he has is his 13 year old son and, of course, he would not be a suitable surety.  This is not a criticism of the son I hasten to add. 

1. Were I free of the restraints imposed by the Family Violence Act, s12, I would grant bail. I would do so because on the face of it, the assault is not a serious one, because the applicant has been in custody since 10 or 11 April, and because it will be some time before this applicant has his case heard. He is next due to appear in the Launceston Court of Petty Sessions on 24 May 2005, but that is only for the taking of a plea. If he enters a plea of not guilty, I would be surprised if his case can be heard before the end of June, so if not granted bail, he will face the prospect of remaining in custody on remand for a period in the order of three months. He has no relevant prior convictions.

1. However, the Family Violence Act, s12(1), provides that I am not to grant him bail unless I am satisfied that his release on bail would not be likely to adversely affect the safety, well being and interests of the complainant. In assessing those matters, I am to take into account the matters listed in subs(2). This application was first called on before me two days ago. I asked Mr Divis, counsel for the respondent, if there were in existence any of the reports or assessments referred to in s12(2). Counsel advised that he did not know, and accordingly the application was adjourned until today. As the applicant appeared without the benefit of counsel, as do so many applicants for an order of bail, Mr Divis was kind enough to make some enquires at my request to see if counsel could be obtained, but to no avail.

1. Mr Divis informs me that the practice is not to undertake a rehabilitation assessment until after there has been a conviction, so except in the case of a repeat offender, it seems unlikely that that will be a matter to consider on an application for bail.  He also informs me that in this case there is a safety audit and a risk assessment screening.  Curiously, it appears that they were in existence at the time this application first came on for hearing, but counsel for the Crown was not aware of this.  Of course, the applicant was not aware of these documents as he has been in custody. 

1. Mr Divis told me that it is the policy of the Executive Government not to release these documents to persons charged.  I asked him if he wanted to show them to me.  He said that he was instructed to do so if I asked him, but repeated that it was policy that they not be shown to the applicant.  Such a course is quite contrary to the rules of natural justice.           After some debate between us, they were produced to me upon the basis that I hand them to the unrepresented applicant. 

1. Mr Divis told me that the "family violence risk assessment" is completed as a result of an interview between police officers and the complainant.  I see that numbers 1- 3 are placed against a number of questions and added up.  In the case of the applicant, the numbers add up to 31 which, according to the form's own rules, is a high risk.  But the sole source of information in the preparation of this document is the complainant, and at the foot of the document, under the heading "Source Rellability" [sic], the person filling it in has circled the words "Rellability unknown" [sic].  Under the heading "Information Accuracy" the words "Possibly true report" are circled.  I showed the document to the applicant and he went through it in some detail and disputed every aspect of it.  What a judge is supposed to make of all that I do not know.  There is no evidence and there has been no hearing to enable any evidence to be tested. 

1. The "Safety Audit" is simply a description of the complainant's house, whether the doors and windows can be seen from the street, whether there is a security alarm and all that sort of thing.  It even deals with other home safety issues such as smoke alarms and whether fire extinguishers are available.  With respect to each of those matters, there is the answer "yes" or "no".  I am unsure how that is supposed to help me determine the issues I have to determine on this application. 

1. I am also required to take into account the applicant's demeanour.  I have no idea what that means, whether that means how he looks to me now, or how he looked at some other time.  What relevance that has is difficult to discern.

1. The Act, s12, also requires me to take into account the safety, well being and interests of the complainant. However, Mr Divis did not have any instructions about this and as the applicant has been in custody, he has no idea where the applicant is living at this time. The difficulty about all this is that the onus is on the applicant to satisfy me that his release on bail will not be likely to adversely affect the safety, well being and interests of the complainant. Without knowing where she is living and without a surety to monitor the applicant's behaviour, I regret to say I cannot be so satisfied, and I must reject the application for bail. In doing so, I want to say very strongly that this man needs legal assistance and he needs it urgently, otherwise he is likely to stay where he is for a considerable period of time because of the provisions of the Family Violence Act, s12.