R v Blair No. Sccrm-02-45

R v BLAIR
[2002] SASC 249

Gray J This is an application for bail.
Peter William Blair and Dean Ronald Kipa were jointly charged with unlawful imprisonment, demanding money with menaces and three counts of robbery.[1] Both accused were refused police bail. Following this refusal both applied for bail before a magistrate. The magistrate considered the applications “afresh” on the material before him. Bail was granted to both accused on conditions.
[1] The Information was as follows: “... that Peter William Blair (DOB 7/1/1965) of no fixed place of abode ... and Dean Ronald Kipa, (DOB 3/12/1969) of 8 Dorrigo Street, Newcastle. NSW (defendant) on the 2nd day of November, 2001 at Adelaide and other places in the said State, unlawfully and injuriously imprisoned [S] and detained him for about two hours against his will.
The Crown applied to have the magistrate’s decision reviewed pursuant to section 14 of the Bail Act 1985 (SA)[2]. On 21 December 2001 the Crown’s application for a review of bail was granted. The magistrate’s order was set aside. Both accused were remanded in custody. However they were given liberty to make a fresh bail application in the event that their circumstances changed. A detailed summary of the review proceedings appears in the reasons for decision.[3]
[2] As the magistrate had not reviewed the decision of the police it was agreed that Section 15A of the Bail Act had no application.
[3] [2001] SASC 430 delivered 21 December 2001
Mr Blair the current applicant has applied for bail. His counsel advanced four matters in support of the application.
It was submitted that the applicant suffers from ongoing complications associated with diabetes. It was said that his condition was not easily managed in Yatala Labour prison and could be treated more successfully if he was released on home detention bail. Dr Geddes a locum prison doctor provided a report. It was his opinion that whilst the applicant’s treatment had been delayed at times, this was principally due to the applicant not communicating his alleged difficulties with staff and a lack of self discipline. Dr Geddes did not suggest that the applicant’s health would be seriously compromised if he remained in custody.
Counsel for the applicant submitted that a residence suitable for home detention bail with electronic monitoring had now become available in South Australia. The applicant’s de facto partner Julie Blair had recently moved permanently to South Australia and was willing to have the applicant reside at her home. She was also prepared to act as a guarantor and provide a substantial guarantee.
It was further submitted that electronic monitoring technology had recently been improved. It was said that the improvements went some way to minimising the risk of a breach of bail remaining undetected for any lengthy period. No precise technical advance was identified. No evidence was presented in support of this submission.
Counsel for the applicant emphasised the length of time that the applicant had been in custody on remand. It was said that the joint trial was listed for February 2003. Accordingly if bail was refused the applicant would have spent about 15 months in custody. This was said to be an unconscionable period of time.
The Crown opposed bail. The earlier grounds for opposing bail were reiterated. A number of further objections were advanced. Evidence of telephone intercepts was outlined. This included calls from the applicant to the victim during the days before his arrest. The calls were said to have been made from a telephone at the Redfern Playboy Club. It was said that these premises belonged to Ms Blair. Although it was not alleged that she had any involvement in making the calls it was said that the fact of the calls strengthened the Crown case.
The Crown also cited discrepancies between what the applicant told the police and what appeared in Ms Blair’s affidavit. At the time of his arrest the applicant told the police that he had no fixed address. However Ms Blair asserted in her affidavit that she and the applicant were living together at a specified address. It was claimed that this difference was significant and raised concerns about Ms Blair’s suitability as a guarantor and provider of residence.
The Crown submitted that other recent developments were also significant. The applicant was said to have been bankrupt. However, his bankruptcy was discharged when a company associated with him provided the financial assistance necessary. The payments were said to relate to investments which were under investigation. Whilst it was accepted that no adverse inference could be drawn from this fact it was said that this history provided a context from which it could be inferred that the applicant had more money at his disposal than had been suggested. It was said that this combined with the fact that the victim’s motor vehicle had not yet been recovered meant that even substantial cash guarantees would not provide any real incentive to prevent the applicant from absconding.
In addition the Crown submitted that the victim continued to fear for his safety and that of his family. The victim and his family have moved house in an effort to avoid contact with the accuseds and to avoid being detected by their associates. However his main concern was that he continued to work from the same office so that he could be found without much difficulty.
Dr Geddes reports formed the basis for the applicant’s submission with respect to his medical condition and its treatment by prison authorities. The reports do not support counsel for the applicant’s assertions. To the contrary they suggest that the difficulty related to the applicant’s motivation and was not exacerbated by his imprisonment. Counsel for the applicant accepted that:
“[My submission] might not go so far, or might not support the proposition, that the Correctional Services Department are either responsible or that they do not have an ability to properly deal with his condition…certainly we don’t come here today saying your Honour should grant home detention bail because he is not getting adequate treatment in custody…but [his condition] can be addressed properly and more effectively, with self motivation, in a home detention environment.”
Counsel for the applicant has not demonstrated that the applicant’s medical condition is such that he should be released from custody.
Excessive periods spent on remand prior to a trial may be prevented by a grant of bail. In Jago v The District Court of New South Wales & Ors[4] the High Court considered pre-trial delay and whether a stay of proceedings should result. Mason CJ said:
“Once it is recognized that the courts may order that criminal proceedings be stayed for the purpose of preventing injustice to the accused caused by undue delay, it necessarily follows that other orders may be made in cases of undue delay for that purpose. There is no reason to confine the discretionary power of the courts by arbitrarily stipulating that a stay is the only proper remedy for undue delay. A second and related point may also be made. In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair. Thus orders may be directed to ensuring fairness in pre-trial procedures; in particular, a court may order that a trial be expedited where it sees the delay as warranting such action but not as being of such a kind as to justify staying the proceedings.
In the context of undue delay, the interests of the accused in obtaining fairness are similar to, if not the same as, those which the right to a speedy trial contained in the United States Constitution is designed to protect. Those interests were identified by McHugh JA in Aboud v Attorney-General (NSW) 54 (1987) 10 NSWLR 671, at p 692. as the following: (i) the prevention of oppressive pre-trial incarceration; (ii) the minimization of the anxiety and concern of the accused; (iii) the limiting of prejudice to the presentation of the accused's defence; and (iv) the protection of the reputation and social and economic interests of the accused from the damage which flows from a pending charge. See also Amsterdam, "Speedy Criminal Trial: Rights and Remedies", Stanford Law Review, vol 27 (1975) 525. These interests are safeguarded in our system by a variety of means. Oppressive pre-trial incarceration may be prevented by the granting of bail. Anxiety and concern, to the extent that they reflect apprehensions of unfairness, may be alleviated by appropriate orders designed to ensure fairness in pre-trial procedures. The third interest mentioned is in reality one aspect of the comprehensive right to a fair trial. The fourth and final interest is not one which of itself should be recognized as a basis for judicial intervention except to the extent that it is encompassed by the second.
It is strictly unnecessary to consider what other remedies a person charged with a criminal offence may seek when confronted with unreasonable delay in pre-trial processes leading to the ultimate commencement of the trial. But some clarity may be achieved by doing so. In many cases, where the second interest referred to by McHugh JA in Aboud is sought to be protected, an order that the trial be expedited may be appropriate. In deciding whether to make such an order, a court will inevitably give consideration to a range of matters, apart from the mere existence of delay, including whether the conduct of the accused has contributed to the delay, whether the accused has pressed for expedition in a manner consistent with the anxiety and concern he is said to be suffering, whether court resources are available for an expedited trial and whether the displacement of other trials is warranted.”[5]
[4] (1989-1990)168 CLR 23 at 31-32
[5] R v Karger [2000] SASC 14; R v Duke [1999] SASC 431; Outman v The Queen [2001] WASC 162; Pinkstone v The Queen [2000] WASC 199; Alexopoulos v The Queen, unreported VSC, 23 February 1998.
The court initially offered the accuseds a trial date in September 2002. This was apparently unsuitable to the applicant. A further date in February 2003 was set so that if the applications for bail were unsuccessful the trial date could be reviewed and if possible an earlier date fixed. A date in November 2002 then became available. The trial was listed to begin on 11 November 2002. That date was opposed by counsel for the applicant. Although the applicant had been granted legal aid it was said that he wanted to be represented by solicitors and counsel of his choice and that he was currently not in a position to access funding.[6] It was submitted that the applicant had an interest in a proposed property development but that his share of the proceeds would not be available by 11 November 2002. No particulars of the proposed property development were provided. The proposal can only be regarded as speculative.
[6] Counsel for the co-accused Mr Kipa advised that funding has been put in place sufficient to allow for a 15 day trial.
There has been no undue delay in bringing this matter to trial. The applicant has been offered a trial date earlier than he wished. It is the applicant who has sought to defer the trial. This is of concern to the court however much of the blame must rest with the applicant. The Crown have supported an early trial date at all times. The court has done what it can to be flexible and to facilitate an earlier trial date. In the circumstances the applicant’s submission that he has been subjected to unconscionable delay must be rejected.
Section 10 provides a presumption in favour of bail unless after having regard to the factors specified the court considers that the applicant should not be released on bail.
The gravity of the offence and the likelihood that the applicant would abscond, interfere with evidence, intimidate or suborn witnesses or hinder police enquiries remain compelling reasons against granting bail in this case. The victim’s fears continue to be justified. Primary consideration must be given to this matter. I consider that the applicant should not be released on bail.
The application for bail must be dismissed.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
[1] The Information was as follows: “... that Peter William Blair (DOB 7/1/1965) of no fixed place of abode ... and Dean Ronald Kipa, (DOB 3/12/1969) of 8 Dorrigo Street, Newcastle. NSW (defendant) on the 2nd day of November, 2001 at Adelaide and other places in the said State, unlawfully and injuriously imprisoned [S] and detained him for about two hours against his will.
2. Between the 1st day of November, 2001 and the 10th day of November, 2001 at Adelaide and other places in the said State, without reasonable and probable cause, demanded property and money of [S] with threats in relation to his life, health, safety, security or well being of [S]. Section 3(1) of the Kidnapping Act, 1960.
3. On the 2nd day of November, 2001 at Adelaide and other places in the said State, together with other persons, robbed [S] of money in the amount of $90. Section 158(b) of the Criminal Law Consolidation Act, 1935.
4. On the 2nd day of November, 2001 at Adelaide and other places in the said State, together with other persons, robbed [S] of a motor vehicle of the value of about $10,000. Section 158(b) of the Criminal Law Consolidation Act, 1935.
5. On the 2nd day of November, 2001 at Adelaide and other places in the said State, together with other persons, robbed [S] of money in the amount of $500. Section 158(b) of the Criminal Law Consolidation Act, 1935. ”
2 As the magistrate had not reviewed the decision of the police it was agreed that Section 15A of the Bail Act had no application.
3 [2001] SASC 430 delivered 21 December 2001
4 (1989-1990)168 CLR 23 at 31-32
5 R v Karger [2000] SASC 14; R v Duke [1999] SASC 431; Outman v The Queen [2001] WASC 162; Pinkstone v The Queen [2000] WASC 199; Alexopoulos v The Queen, unreported VSC, 23 February 1998.
6 Counsel for the co-accused Mr Kipa advised that funding has been put in place sufficient to allow for a 15 day trial.

2. Between the 1st day of November, 2001 and the 10th day of November, 2001 at Adelaide and other places in the said State, without reasonable and probable cause, demanded property and money of [S] with threats in relation to his life, health, safety, security or well being of [S]. Section 3(1) of the Kidnapping Act, 1960.
3. On the 2nd day of November, 2001 at Adelaide and other places in the said State, together with other persons, robbed [S] of money in the amount of $90. Section 158(b) of the Criminal Law Consolidation Act, 1935.
4. On the 2nd day of November, 2001 at Adelaide and other places in the said State, together with other persons, robbed [S] of a motor vehicle of the value of about $10,000. Section 158(b) of the Criminal Law Consolidation Act, 1935.
5. On the 2nd day of November, 2001 at Adelaide and other places in the said State, together with other persons, robbed [S] of money in the amount of $500. Section 158(b) of the Criminal Law Consolidation Act, 1935. ”

[2002] SASC 249

5 July 2002