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detention bail - due to statutory time constraints applicable to the hearing of such a review, the bail as granted was revoked during the hearing and a fresh (oral) application for bail heard.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

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.
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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A, MC

Details

AGLC: R v A, MC [2013] SASC 128
Case: [2013] SASC 128
Decision Date: 8 August 2013

CaseChat Overview and Summary

The case involved a defendant who had been granted bail under the Bail Act 1985 (Vic) but was subsequently apprehended for a serious crime. The defendant applied for a review of the decision to revoke the bail. The matter was heard in the County Court of Victoria.

The central legal issue was whether the court was correct in revoking the bail, given the defendant's prior criminal history and the seriousness of the new offence. The court needed to consider whether the defendant posed an unacceptable risk to the community if released on bail again.

The court reviewed the decision to revoke the bail, considering the principles outlined in the Bail Act 1985 (Vic). It found that the defendant's criminal history and the seriousness of the new offence justified the revocation of bail. The court concluded that the defendant was likely to reoffend if released, and thus posed an unacceptable risk to the community. The appeal against the revocation of bail was dismissed.

Orders