R v Blayney

[2002] SASC 184

R v BLAYNEY
 [2002] SASC 184

Bail Application

1. 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.

2. 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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. In Ex parte Maher[3] Thomas J considered an application for bail pending the hearing of an appeal following conviction and an order for imprisonment.  He was concerned that a grant of bail -

   [3] (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 at 656

   .        makes a conviction appear contingent until confirmed;

   .places a court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;

   .        encourages unmeritorious appeals;

   .undermines respect for the judicial system; in having a “recently sentenced man walking free”;

   .undermines the public interest in having convicted persons serve their sentences as soon as is practicable.

   These remarks were made at a time when the options available to the court did not include home detention bail. 

10. In R v Halas[4] the availability of home detention and its significance with respect to bail were discussed as follows:

    “Section 11(2) of the Bail Act allowed a bail authority to order that a person reside at a specified address and remain there while on bail. The second reading speech provides that the reasoning behind this provision echoed powers which had already been deliberated on during the introduction of the Correctional Services Amendment Act 1986 (SA) (Act No.98 of 1986). The second reading speech for that Act provides that the bill was a response to overcrowding in prisons. Home detention was intended to be a tightly controlled correctional program aimed at providing a cost effective alternative to imprisonment for selected prisoners. The program was designed to maintain the security of the community and to assist with prisoner rehabilitation, by allowing detainees to engage in appropriate employment and rehabilitative programs. Detainees would be required to nominate a residential address within the metropolitan area. They would be strictly monitored and be required to be accessible by telephone at all times.

    The concept of home detention bail is derived from the Correctional Services Act Amendment Act. The principles underlying the amendment to the Bail Act are similar in nature. Whilst new technologies have today advanced the Department of Correctional Services’ ability to control and monitor detainees, the inherent objects of home detention remain the same.

    There has been judicial recognition that home detention bail operates as a material deprivation of liberty.”

    Once it is recognised that home detention bail with strict conditions including electronic monitoring is available, the impact of the issues identified in Maher is reduced. Given the advent of this more recent technology a bailee should not be seen as ‘walking free’. Bailees would not have enjoyed the benefits of being handed back liberty.  The court is not placed in as invidious a position because the bailee’s circumstances would not have changed as dramatically as in the past.  Any delay in the bailees serving their sentences as soon as practicable in the event of the appeals being dismissed is minimised.

    [4] [2001] SASC 172

11. In United Mexican States v Cabal[5] the basis of the jurisdiction to determine bail pending an appeal to the High Court was discussed. Exceptional circumstances need to be established before bail will be granted. In such a case the correctness of the conviction has been confirmed on appeal. That situation can be distinguished from the case of bail pending an initial appearance.

    [5] (2001) 183 ALR 645 ; see also Collins [2002] SASC 2

12. I am satisfied that the applicants have established a basis for an exercise of discretion in their favour.

13. I am prepared to grant home detention bail with electronic monitoring pending the hearing of the applicants’ appeals. Home detention bail with electronic monitoring, with other strict conditions and with guarantors providing security provides a significant measure of protection. The Crown has conceded that the grants of leave carry the necessary implication that the appeals are arguable. A grant of bail in these circumstances cannot be said to encourage unmeritorious appeals.

14. 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 JUDGMENT

    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

    3 (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