R v Blayney - [2002] SASC 184

R v BLAYNEY
[2002] SASC 184

Bail Application

Gray J The applicants, Erik and Daniel Blayney seek bail pending the hearing of their appeals against conviction. Both were charged and convicted by a jury of rape. Both have been granted leave to appeal.
The bail applications were heard together.
Section 10(2) of the Bail Act 1985 (SA) provides:
“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.”
Unlike a bail application prior to conviction, there is no presumption in favour of granting bail pending appeal[1] It is necessary for the applicants to establish a basis for the exercise of the discretion in their favour. A number of decisions have considered section 10(2) and have recognised that the discretion is unfettered.[2]
[1] R v Baker [2000] SASC 281
[2] Beshara & Kleut v Paphitis (1987) 136 LSJS 16; R v Amuso (1987) 137 LSJS 258; R v Baker [2000] SASC 281
Counsel for the applicants drew attention to the grants of leave to appeal. This was said to demonstrate that the appeals must have some prospect of success.
The applicant’s personal circumstances were emphasised. It was submitted that both applicants had previously complied with the terms of their bail. Although charges with respect to the applicant Daniel Blayney were not laid for some time, he had not attempted to flee. It was submitted that both applicants were prepared to abide by any conditions imposed by the court. It was said that they understood their obligations to attend the hearing of the appeal and that any grant of bail may be reviewed by the Court of Criminal Appeal at that time.
I have received a Bail Enquiry and Home Detention Report pertaining to both applicants. The report suggest that a residence in Port Lincoln is suitable for home detention bail with electronic monitoring.
The applicants’ parents are prepared to have both applicants reside at the family home in Pt Lincoln. They are prepared to act as guarantors, and to lodge a cash security of $20 000. Both parents are prepared to ensure that either of them in the presence of the applicants at all times. The applicants’ father attended at court in Adelaide. He agreed to transport both applicants to Port Lincoln and then to return to Adelaide with them for the hearing of the appeal.
The Crown opposed bail. Attention was drawn to the seriousness of the conduct, the verdicts of guilty and the antecedents of the applicants. However it was conceded that the applicants’ past behaviour did not make the risk of absconding a primary concern.
Presently appellants do not experience delays awaiting the hearing of criminal appeals. These appeals will be heard by the Court of Criminal Appeal within 5 weeks of the grant of leave and less than a month from a grant of bail.

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 Blayney

Details

AGLC: R v Blayney [2002] SASC 184
Case: [2002] SASC 184
Decision Date: 7 June 2002

CaseChat Overview and Summary

The applicants, Alex Blayney and Margaret Blayney, sought bail in the Supreme Court of South Australia, with the matter being presided over by Justice Doust. The dispute revolved around the granting of bail to the applicants in a criminal case, with specific conditions to ensure compliance and safety. The applicants, facing serious criminal charges, argued for their release on bail pending the appeal against their conviction and sentence. The central legal issue was whether the applicants met the criteria for bail under the Bail Act 1985, particularly focusing on the balance between the rights of the applicants and the interests of the community. The court had to determine whether the stringent bail conditions proposed were necessary to ensure the applicants' appearance in court and to protect the community.

The court considered the applicants' personal circumstances, their ties to the community, and the nature of the charges against them. Justice Doust highlighted the severity of the charges, which necessitated stringent bail conditions to ensure the applicants' compliance and to protect the community. The court noted the precedents set by cases such as R v Baker, which underscored the necessity of strict bail conditions in cases involving serious criminal charges. The court also considered the applicants' family ties and their potential risk to the community if not properly supervised. Based on these considerations, the court concluded that the proposed bail conditions were necessary to balance the applicants' rights with the community's interests.

After thorough deliberation, the court granted the applicants home detention bail with stringent conditions, including electronic monitoring, a curfew, and restrictions on their movement and activities. The court imposed these conditions to ensure the applicants' compliance and to mitigate any potential risk to the community. The applicants were required to reside at a specified address, wear an electronic monitoring device, and abstain from alcohol and non-prescribed drugs. Additionally, the applicants were required to forfeit a sum of money if they failed to comply with the bail conditions. The court also mandated that the applicants obtain financial guarantees to further ensure their compliance.

The final orders of the court granted the applicants bail under the specified conditions, ensuring their attendance at the appeal hearing while safeguarding the community's interests. The court's decision reflected a careful balancing of the applicants' rights and the community's safety, as guided by relevant legal principles and precedents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I grant each applicant home detention bail with electronic monitoring on the following conditions:1 That you not leave the State for any reason except as allowed under the Bail Act 1985.2 (a) That you reside at 27 York Street, Port Lincoln and not absent yourself from that address except for any necessary medical or dental treatment, to minimise risk of serious injury or death, whether to yourself or some other person, for any other purpose approved by a community corrections officer of the Department for Correctional Services and that each approval be granted in writing and that written permission shall specify the date, time and location proposed for each absence, but approval for granting employment is excluded and at least one of your guarantors has to be present at your home at all times and if away from the residence you be accompanied by at least one of your guarantors and in particular when travelling to Adelaide upon the hearing of the appeal.(b) That you obey all the lawful instructions of any community corrections officer designated to supervise you on home detention.(c)That you wear an electronic wristlet and comply with the rules of electronic monitoring.(d) That you not consume alcohol or any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosages and you will submit to any breath test or urine analysis as directed by your community corrections officer.(e) That immediately upon release you will travel to the address above in the company of at least one of your guarantors and upon arrival you will contact the Home detention Unit of the Department for Correctional services by telephoning 8683 0266.(f) That you not approach, contact or attempt to contact, in any way, directly or indirectly any of the prosecution witnesses in regard to the charge against you.(g) That you forfeit to the Crown the sum of $10,000.00 if you fail to comply with a term or condition of this bail agreement.(h) You will obtain two guarantees, in the sum of $5,000.00 (each) and that sum be paid to the Sheriff of South Australia in cash by way of surety. (Guarantors to be your parents, Alex Blayney and Margaret Blayney, each of 27 York Street, Port Lincoln.)LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT1 R v Baker [2000] SASC 2812 Beshara & Kleut v Paphitis (1987) 136 LSJS 16; R v Amuso (1987) 137 LSJS 258; R v Baker [2000] SASC 2813 (1986) 1 Qd R 303 at 310; These observations were approved by the High Court in United Mexican States v Cabal (2001) 183 ALR 645 4 [2001] SASC 172 5 (2001) 183 ALR 645 ; see also Collins [2002] SASC 2

Ratio Decidendi

Legal Principle Established

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