R v A, MC

[2013] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v A, MC

[2013] SASC 128

Reasons for Ruling of The Honourable Justice Nicholson

8 August 2013

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

Application by the DPP to review an order of a Magistrate granting home detention bail - due to statutory time constraints applicable to the hearing of such a review, the bail as granted was revoked during the hearing and a fresh (oral) application for bail heard.

Held:  bail refused.

Bail Act 1985 (SA) s 10, s 10A, s 16, referred to.
Lavers v Fauser (1986) 41 SASR 593; R v P, AC [2005] SASC 451, considered.

R v A, MC
[2013] SASC 128

Criminal: Application for Bail

1. NICHOLSON J.  This matter came before me on a summons by the Director of Public Prosecutions for the review of a decision by a magistrate to grant the accused home detention bail.  However, by the time I came to hear the matter it was almost inevitable that the 72 hour period during which such a review must be completed[1] would expire before I would be able to make a considered determination of the Crown’s application.  Accordingly, and without opposition from the accused, I revoked the grant of bail and proceeded by hearing an immediate oral application for bail. 

   [1] Where there is an application by the prosecution for review of a grant of bail there is a statutory stay of the bail authority’s order pursuant to s 16 of the Bail Act 1985 (SA) pending a determination of the review but only for a maximum of 72 hours.

2. Apart from a brief additional period of time in custody pending my consideration of the matter, there would be no prejudice afforded to the accused (to whom I will hereafter refer as the applicant) as a result of this process.  A review in this Court of a bail authority’s decision to grant bail is in the nature of an appeal de novo.  The review is to be determined on the basis of the information placed before this Court which ordinarily includes the information that was before the bail authority whose decision is subject to review.  The Court is to reach a decision it would have made if it had been the bail authority hearing the application for bail.[2]  I am in the same position in hearing an oral application for bail; I have before me the material that was before the Magistrate when bail was first granted together with such other material provided during the hearing before me and I am to decide the question of bail afresh.[3]

   [2]    Lavers v Fauser (1986) 41 SASR 593 at 595-6.

   [3]    See generally, R v P, AC [2005] SASC 451 at [16]-[17] (Bleby J).

3. The applicant has been charged with the offence of attempted murder for which the maximum penalty is life imprisonment and the offence of without lawful excuse discharging a firearm intending to injure, annoy or frighten a person, for which the maximum penalty is eight years imprisonment.  The alleged offending is said to have occurred on 12 July this year.

4. Ordinarily, there is a presumption that bail should be granted subject to undertaking the assessment mandated by s 10 of the Bail Act 1985 (SA) which provides as follows.

   (1)Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to—

   (a)     the gravity of the offence in respect of which the applicant has been taken into custody;

   (b)     the likelihood (if any) that the applicant would, if released—

   (i)    abscond;

   (ii)     offend again;

   (iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;

   (iv)commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009;

   (d)     any need that the applicant may have for physical protection;

   (e)     any medical or other care that the applicant may require;

   (f)     any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;

   (g)     any other relevant matter,

   the bail authority considers that the applicant should not be released on bail.

   (2)Where the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail.

   (3)Where the applicant is a person who is appearing or is to appear before a court as a witness in proceedings (other than proceedings relating to an offence for which that person has been charged or convicted), the bail authority should, subject to this Act, release the applicant on bail unless there is a likelihood that the applicant would, if released, abscond.

   (4)Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.

   In certain defined circumstances, s 10A of the Bail Act operates to effect a presumption against bail being granted. However, the Crown did not submit that this case fell within s 10A. Apparently, the Crown is satisfied that the guns found in the applicant’s possession, including the one allegedly used in the offending, were licensed in Western Australia.

5. The allegations against the applicant, in summary, include the following.  On the morning of the incident, the complainant was driving his motor vehicle on the Eyre Highway 20-30 kms west of Kimba.  The applicant was driving a motor vehicle behind him.  According to the complainant, the applicant’s vehicle followed him for some distance, quite close to the rear of his vehicle, before overtaking and returning to the correct lane.  However, as soon as the applicant took up a position in front of the complainant’s car, the applicant braked heavily which, according to the complainant, caused the complainant to collide with the rear of the applicant’s vehicle.  The complainant states that he was in fear as a result of the erratic driving of the applicant and therefore attempted to overtake so as to get away from the applicant’s vehicle.  At this point, he noticed the applicant’s head and arm come out of the driver’s window.  According to the complainant, the applicant was holding a large silver gun in his right hand and was pointing the gun towards the complainant’s vehicle.  The complainant ducked and accelerated to go past the applicant.  A second or so later he heard a loud metallic thud at the front driver’s side wheel of the car.  He drove off as fast as he could and eventually overtook the applicant.  At times the complainant was travelling at approximately 180 kms per hour because he was in fear of being shot.  The applicant’s vehicle was keeping up with him in apparent pursuit.  At times he saw, in the rear view mirror, that the applicant had his head and arms, still holding the firearm, outside the driver’s window and pointing a gun at the complainant’s car.  The complainant continued driving at speed with the applicant’s vehicle chasing during which the complainant was making attempts on his mobile telephone to contact the police.  Eventually he lost sight of the applicant’s vehicle and soon after that met up with a police patrol vehicle to whom he told his story.

6. In the applicant’s motor vehicle at the time was his wife, BA. She has given an account of events consistent in a number of important aspects with the account of the complainant and the police evidence of the search of the applicant’s vehicle. Given the possibility that an application under s 21 of the Evidence Act 1929 (SA) might be made, I will not include in these reasons any detail of what she said to the police.

7. The police stopped the applicant’s vehicle some 30 kms east of Iron Knob, detained the applicant and searched the vehicle.  They located a silver .357 revolver under the driver’s seat.  They located other guns in the vehicle.  They also found an empty speed loader which had a capacity to contain six rounds of ammunition.  The speed loader was found in a handkerchief.  Also in the handkerchief were five spent .357 rounds of ammunition and one live .357 round of ammunition.  An examination of the complainant’s vehicle revealed bullet entry damage in the fuel tank.

8. The offences alleged to have been committed are plainly serious.  Even if the attempted murder charge were to be downgraded, any alternative offence, would necessarily be a serious one with a substantial term of imprisonment as its maximum penalty.  The circumstances of the offending can only be described as gravely serious.  The notion that a person in a fit of road rage would chase another vehicle at such high speeds whilst leaning outside the window, firing a hand gun at the other vehicle and in fact, as it would appear, successfully hitting the vehicle’s petrol tank, beggars belief.  In the event that the Crown case were to be made out, the applicant would be shown to be a person from whom the public at large would have a very real need for physical protection.

9. Given the physical evidence and, in particular, the finding of the speed loader with five spent rounds of ammunition together with the evidence of a bullet entry hole in the petrol tank of the complainant’s car, there is some strength to the Crown case in that there is significantly more to it than simply a version of events given by the applicant to be contrasted with a version of events given by the complainant if it were to come to trial. There is, in addition, the eye witness account of the applicant’s wife who was in the car with him. If this evidence were to be given and accepted by a trier of fact the Crown case would be further strengthened. In this respect, counsel for the applicant raised as a possibility that the applicant’s wife might not ultimately give evidence given the provisions of s 21 of the Evidence Act.  This is always a possibility but even so and even without her evidence, there would remain strength to the Crown case.

10. Furthermore, the spectre of s 21 of the Evidence Act needs to be considered in the context of the Crown’s second concern or ground for its application that bail should be refused, that is, that there is a risk of the applicant interfering with a witness in the proceedings, namely his wife, BA.  According to the statement of Police Officer Starkey, who was on duty at the Port Augusta Police Station where the applicant was held in custody after police bail had been refused, he heard the applicant tell his wife that she needed to withdraw her statement to the police.  According to Police Officer Starkey the applicant told his wife “that she was placed under duress during her interview, due to being pressured by six police officers and having guns put in her face”.  This last reported statement of the applicant needs to be considered in the context that by all accounts BA is quite psychiatrically ill; she has attempted suicide on as many as four occasions and suffers, inter alia, with severe depression.  She may be quite vulnerable to any pressure, if brought to bear on her, by the applicant.  The Crown submits that there has already been an attempt by the applicant to interfere with a Crown witness, including an attempt to intimidate or influence her not to cooperate with the prosecution authorities.

11. The matter is due to come before the Magistrates Court for the applicant to answer the charges on 4 November 2013.  As a consequence, completion of the committal process and any arraignment, either in the District Court or in this Court, is some time away.  The applicant, through his counsel, has indicated that the charges will be defended.  If that position is maintained it is unlikely that a trial will be conducted much before, say, the middle of next year.  The fact that the applicant, if refused bail, will spend a significant period of time, perhaps 12 months or more, in custody awaiting a trial is an important consideration in the determination of any bail application.  In addition, the Court in this case has before it a positive home detention bail report being the one that the Magistrate was prepared to rely upon when granting home detention bail.  The home detention bail previously granted is to an address in the Riverland which is quite some distance from the locality where the alleged offending took place.  Counsel for the applicant has told the Court that the applicant is not aware of the address of the complainant in any event.

12. The house to which the applicant was to be bailed is the residence of his wife’s daughter (the applicant’s stepdaughter), her husband and their children.  Conditions were to be imposed to the effect that the applicant is not to approach or contact in any way his wife, BA, and to the effect that if BA were to contact the applicant or the guarantors, being the stepdaughter and her husband, Community Corrections had to be notified immediately.  The intent of these conditions would appear to be that BA was not to have any communication with either the applicant, her daughter, or her son‑in‑law or, that if there was communication with the latter two, Corrections had to be told.  It is difficult to see how these conditions would be workable unless it be the case that BA is content to be cut off entirely from these members of her family.  Still, I have been told that all parties were consulted and agreed with this regime.

13. Counsel for the applicant submitted that if there is a fear that the applicant will intimidate or attempt to influence BA, the regime in place pursuant to the home detention bail conditions is far more likely to prevent that than if he were remanded in custody.  In the latter case, according to counsel’s submission, there would be nothing to stop BA visiting or telephoning the applicant in custody and thereby exposing herself to influence.  I do not accept this submission.  In my view, the risk that the applicant might improperly influence or intimidate BA would be more easily protected against and ameliorated with the applicant being in custody rather than on home detention bail and living with his wife’s daughter and son‑in‑law in a relatively remote location.

14. Counsel advised the Court of the extent to which the Magistrate who granted bail undertook steps to ensure that the proposed premises were suitable including police checks that there were no firearms available and in order to verify that there would be no difficulty with ensuring that the applicant had no contact with his wife whilst on home detention bail.  Counsel also submitted that the location of the bail premises is in an isolated area in the Riverland and that the applicant does not know the address of the complainant. 

15. The applicant has little of relevance by way of antecedent criminal history; some motor vehicle offences and public disorder offences all of which are quite old now.  The applicant does not have a record involving violence.  Counsel also submitted that the Court ought to have no concern about the applicant answering his bail and, in particular, attending at a trial nor that there was any real concern to be had with respect to any interference with the police investigation.  I have already reviewed this latter submission.

16. In short, the position is that there are a number of factors concerning the personal circumstances of the applicant and the availability of, apparently, suitable home detention premises that, in combination, lends support to a grant of bail on home detention bail conditions.  As against that, are the two Crown concerns, namely the seriousness of the offences alleged and the risk that the applicant might again seek to influence his wife, perhaps with the result of her withdrawing her assistance to the prosecution. 

17. I take the view that, if proved, the alleged offending was extremely serious and would show the applicant to be a person who carries a real risk of reoffending.  Anyone who engages in a road rage of this nature to the extent of chasing another vehicle at high speed and shooting a gun directly at that vehicle is not a person to be trusted or relied upon should they be antagonised and lose their temper again.  Whilst the Crown case is at the stage of allegations only and there is yet to be a trial at which, according to present indications, the applicant will plead not guilty, there is strength to the Crown case.  The task of the Court when conducting a bail hearing is not to assess guilt but involves an assessment of the risks inherent in a grant of bail in the particular case.

18. Finally, I am concerned about the risk of interference with the proposed witness AB. In my view, the gravity of the offence and the nature and seriousness of the allegations are such as to overcome the factors in favour of bail and to overcome the presumption in s 10 that bail should be granted. The risk of interference fortifies my view that bail should be refused. I refuse the application for bail. It follows that if I had decided this matter on the basis of the Crown’s application to review the Magistrate’s decision to grant bail I would have allowed the review.