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 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.
Allegations of lack of appropriate medical treatment in correctional facilities are serious allegations that, if supported by evidence, must be addressed. However, in the absence of any evidentiary basis to these allegations, little weight can be attributed to the applicant’s concerns.
Counsel for the applicant submitted that, due to the applicant’s deteriorating physical health and developing mental health problems, his experience in custody on remand was particularly harsh. Counsel said that the applicant was developing suicidal tendencies. In a report dated 22 July 2005, a masked version of which was before the Court, Dr Raeside described the applicant’s mental condition as follows:
… Mr Agius repeatedly told me that he felt like killing himself. He said he felt like he was in a “dream and I haven’t woken up from it. I just feel like killing myself. If I don’t get out [on bail] then I will kill myself because I didn’t do anything wrong”. More specifically, he told me that he was hoping for home detention bail at the end of this week and specifically said that if he didn’t get bail then he “won’t hang around in custody for something I didn’t do”.
…
With respect to past self harm attempts Mr Agius said that he “smashed my head against the wall” after he was arrested and put in the watch house. He said he tried to split his head open, but a nurse gave him something to calm him down. Previously when he had been refused bail he said he came by to Yatala Labour Prison and felt like “doing it the”. However, he was informed by his defence lawyer that the matter would be taken to the Supreme Court, but he later dismissed that lawyer. He said consequently he was now waiting for the Supreme Court to make its decision about bail.
Dr Raeside recommended that the applicant receive close observation whilst in prison:
Should Mr Agius not receive bail then obviously close supervision by medical and psychiatric staff whilst in custody, with possible transfer to James Nash House if deemed necessary, would all be appropriate.
The Crown Allegations
The Crown opposed bail. It was said that the seriousness of the allegations and the strength of the Crown case, in particular the DNA evidence, represents a natural incentive for the applicant to abscond if granted bail. The Crown further contended that if the applicant were to remain in the community, there was a real risk that he would continue to re-offend. Counsel for the Crown submitted that the applicant was at risk of continuing to commit offences of both a sexual and general nature, having regard to the progression in time of the alleged rapes and the evidence of his further criminal conduct.
Seriousness of the Allegations
The offending involved five charges of rape relating to five separate victims. On the Crown case, there were “common threads” throughout the alleged offences compounding their seriousness. In each case, the complainant entered the applicant’s vehicle following the applicant’s offer of a lift. They bypassed the intended destination and drove to a secluded location where the alleged offence of rape occurred. It is alleged that in each case, the assailant required the complainant to perform fellatio upon him, and that penile penetration also occurred.
Counsel for the Crown submitted that each allegation when considered in isolation represents serious, violent, predatory behaviour and negates the suggestion that consent could be an issue at trial. Counsel for the Crown said that when the five attacks are considered together, the seriousness of the applicant’s alleged offending is compounded and must be described as very grave.
The DNA Evidence
On the Crown case, DNA evidence implicates the applicant in each of the offences. The forensic evidence before this Court provides that in four of the alleged rape incidents, DNA profiles obtained from each complainant are consistent with the applicant’s DNA profile. The profiles are said to match at nine loci and in addition at the sexing locus. The likelihood ratio that the DNA profiles match is said to be extremely high. Counsel for the Crown submitted that the DNA evidence is highly probative of establishing the identity of the offender. Counsel for the applicant conceded that, on its face, there is a strong suggestion that the DNA profiles analysed match.
In relation to the allegation of rape against the fifth complainant, the Crown relies upon the similarity of the conduct in each of the alleged offences and, in particular, the proximity of time and location.
In addition, the Crown relies on further circumstantial evidence that goes to identification of the applicant as the assailant.
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.
I have had regard to the applicant’s personal circumstances, in particular his stable family and employment and the fact that he has been “crime-free” for some 15 years. In particular, I have had regard to the considerable period the applicant will be likely to spend on remand in custody awaiting trial for these charges. It is of concern that a trial date is unlikely to be fixed until late 2006.
There is material before the Court to suggest that the applicant is suffering from physical and mental health problems that may negatively affect his experience of prison life. However, there is no evidence presently before the Court to suggest that the applicant is not receiving adequate medical treatment, including the facilitation of attendance at a private medical specialist appointment. Persons in custody are entitled to receive appropriate and adequate medical treatment. Should circumstances change so as to give rise to evidence that the applicant’s medical needs are not being adequately met in the prison environment, a further application for review of bail would be a course open to the applicant.
Having regard to the seriousness of the Crown allegations, the strength of the Crown case, and the circumstances referred to earlier, I am of the view that the applicant should be refused bail.
The application for review of bail is refused.