R v Agius - [2005] SASC 320

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v AGIUS
Judgment of The Honourable Justice Gray
25 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL
Application for review of a decision by a magistrate to refuse bail - applicant charged with five counts of rape, attempted serious criminal trespass, four counts of serious criminal trespass and theft - refused police bail - magistrate refused bail on grounds of seriousness of offending and likelihood of applicant re-offending - consideration of gravity of offending - consideration of strength of Crown case - considerable DNA evidence before the Court in support of Crown case - consideration of applicant's personal circumstances - consideration of applicant's poor health - adequate medical treatment available in custody - held: application for review of bail refused.
Bail Act 1985 (SA) s 10, referred to.
R v Schmidt (2002) 221 LSJS 299; Collie (No 2) [2002] SASC 247, considered.

R v AGIUS
[2005] SASC 320
Application for Bail Review
GRAY J:

This is an application for review of a decision by a magistrate to refuse bail.
Background
The applicant, Andrew Timothy Agius, is charged with five counts of rape, one count of attempted serious criminal trespass, four counts of serious criminal trespass, and one count of theft. The offending is alleged to have occurred between December 2003 and October 2004 at various locations around suburban Adelaide.
Counsel for the Crown informed the court that, having considered the fact that each complainant alleged that more than one act of intercourse occurred during each incident, it believes that the number of individual counts of rape the applicant is charged with is likely to be increased. In any event, the Crown presently alleges five separate incidents of sexual attack.
During the course of these proceedings, reference has been made to an outstanding possession of amphetamine charge. However, counsel for the applicant informed the Court that he had received information from the Department of Public Prosecutions that there is a likelihood the charge will not proceed.
A magistrate sitting at the Adelaide Magistrates Court refused the applicant bail on 21 April 2005.
The Applicant’s Submissions
Counsel for the applicant submitted that bail ought to be granted. It submitted that the applicant does not present a “flight risk”, and that it is not likely that he will re-offend. The applicant denies committing the offences.
The applicant is a 33-year-old man of Aboriginal heritage. He is the father of two dependant children aged 14 and 15 years. Prior to being taken into custody, he resided with his sister, having separated from his wife about 12 months earlier. The applicant has had a good employment history and prior to his arrest was employed by General Motors Holden. He has not committed any criminal offences since 1989. Counsel for the applicant submitted that he has a stable home at 2 Fox Avenue, Klemzig, with a telephone line suitable for home detention conditions. Counsel said…

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.

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Details

Case: [2005] SASC 320
Decision Date: 25 August 2005

CaseChat Overview and Summary

The case of R v Agius involves an application for review of a magistrate's decision to refuse bail to the applicant, Andrew Timothy Agius, who is charged with multiple serious offences, including five counts of rape, one count of attempted serious criminal trespass, four counts of serious criminal trespass, and theft. The applicant's bail was refused by a magistrate on the grounds of the seriousness of the offending and the likelihood of the applicant reoffending. The case was brought before the court to review the magistrate's decision.

The legal issues central to this case revolve around the grounds for granting or refusing bail, particularly in light of the gravity of the charges, the strength of the Crown's case, and the applicant's personal circumstances, including his health conditions. The court had to assess whether the presumption in favour of bail, as outlined in section 10 of the Bail Act, could be rebutted based on the specific factors mentioned in section 10(1), such as the risk of the applicant absconding, reoffending, or interfering with witnesses or evidence.

The court considered the seriousness of the charges, which include multiple instances of sexual assault and other serious offences. The Crown's case was deemed strong, supported by considerable DNA evidence and circumstantial factors that pointed towards the applicant as the offender. The court also took into account the applicant's personal circumstances, including his health issues, and noted that adequate medical treatment was available in custody. Given these considerations, the court held that the application for bail review should be refused, upholding the magistrate's decision.

The final orders of the court were to refuse the application for review of the bail decision, thereby maintaining the magistrate's ruling that the applicant should remain in custody pending trial.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision by a magistrate to refuse bail.Background The applicant, Andrew Timothy Agius, is charged with five counts of rape, one count of attempted serious criminal trespass, four counts of serious criminal trespass, and one count of theft. The offending is alleged to have occurred between December 2003 and October 2004 at various locations around suburban Adelaide. Counsel for the Crown informed the court that, having considered the fact that each complainant alleged that more than one act of intercourse occurred during each incident, it believes that the number of individual counts of rape the applicant is charged with is likely to be increased. In any event, the Crown presently alleges five separate incidents of sexual attack. During the course of these proceedings, reference has been made to an outstanding possession of amphetamine charge. However, counsel for the applicant informed the Court that he had received information from the Department of Public Prosecutions that there is a likelihood the charge will not proceed. A magistrate sitting at the Adelaide Magistrates Court refused the applicant bail on 21 April 2005.The Applicant’s Submissions Counsel for the applicant submitted that bail ought to be granted. It submitted that the applicant does not present a “flight risk”, and that it is not likely that he will re-offend. The applicant denies committing the offences. The applicant is a 33-year-old man of Aboriginal heritage. He is the father of two dependant children aged 14 and 15 years. Prior to being taken into custody, he resided with his sister, having separated from his wife about 12 months earlier. The applicant has had a good employment history and prior to his arrest was employed by General Motors Holden. He has not committed any criminal offences since 1989. Counsel for the applicant submitted that he has a stable home at 2 Fox Avenue, Klemzig, with a telephone line suitable for home detention conditions. Counsel said that members of the applicant’s family, including the applicant’s sister and mother, could guarantee the applicant’s compliance with bail and would enter an agreement in the form of a bail guarantee. Counsel for the applicant further contended that, should the applicant be refused bail, he would be remanded in custody for a considerable period awaiting trial. The Applicant’s Medical Health Counsel for the applicant drew attention to the applicant’s medical health problems. These problems include internal haemorrhoids which require gastroenterology treatment. Counsel for the applicant said that the applicant suffers pain and discomfort as a result of these medical conditions and is concerned that he will not receive adequate medical treatment whilst in custody. Material was before the Court in support of counsel’s assertion that the applicant’s health condition required specialist medical attention. However, there was no material before the Court suggesting that adequate treatment would not be available to the applicant whilst in custody. The Department for Correctional Services has taken steps to ensure that the applicant receives adequate medical treatment. Following a request from the prosecution, Correctional Services were able to facilitate the applicant’s attendance at a private medical appointment. There is no medical evidence to suggest that the applicant’s medical needs are not presently being addressed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the Crown agreed with the applicant’s contention that, should he be refused bail, he would be remanded in custody for a considerable period awaiting trial. Counsel for the Crown anticipated that the dishonesty offences could be dealt with both separately from the rape charges and summarily. Assuming the rape charges would be heard together by way of joint trial, counsel for the Crown anticipated a trial date may be fixed possibly as late as the end of 2006. Conclusion As provided in section 10 of the Bail Act, there is a presumption in favour of bail. However, that presumption can be rebutted having regard to the factors outlined in section 10(1), including the gravity of the offence and the likelihood (if any) that the applicant would, if released abscond or offend again; or that the applicant would interfere with evidence, intimidate witnesses, or hinder police inquiries.[1][1] Section 10(1)(a) and (b) Bail Act 1985 (SA). In Schmidt[2] and Collie (No 2)[3], the court considered the approach to be taken to pre-trial bail applications. The following remarks were made: [4]Pre-trial bail applications are common. There are features about them that set them apart from other hearings, particularly those made during the course of a trial. Bail applications must be determined expeditiously. Time is of the essence. The Crown will make allegations against an applicant. These will often be untested assertions and may include information about the applicant’s character, propensity to act in a certain way, uncharged conduct and the perceived fears of an alleged victim or victims. The court is required to make an assessment of the strength of these allegations and make predictions about the applicant’s future conduct. The scope of a bail hearing is much broader than many other criminal proceedings. There is a level of informality about the entire process. The rules of evidence are not strictly enforced as the court is assessing risk not determining guilt.[2] (2002) 221 LSJS 299.[3] [2002] SASC 247.[4] (2002) 221 LSJS 299 at [5]; [2002] SASC 247 at [8]. These observations are relevant to the way in which the material placed before this court is to be assessed. In the present case, the Crown allegations against the accused are very serious. It is alleged that the applicant committed five separate sexual attacks on five different complainants. In addition, the applicant is charged with a number of dishonesty offences. The Crown case against the applicant appears, on its face, strong. DNA evidence has been before the Court indicating the extreme high probability of a match between the DNA profiles obtained from four of the complainants and the DNA profile of the accused. Counsel for the applicant agrees that there is a strong suggestion of a match. In addition, the Crown relies on circumstantial evidence including the “common threads” emerging from the nature, location and proximity of the offending. At the least, it must be said that there is a considerable body of evidence adduced by the Crown that, if accepted, goes towards establishing the applicant as the offender.

Ratio Decidendi

Legal Principle Established

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