R v Brooker

[2020] SASC 169

Supreme Court of South Australia

(Criminal: Application)

R v BROOKER

[2020] SASC 169

Reasons of The Honourable Justice Livesey (ex tempore)

11 September 2020

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

The respondent was arrested and charged with a number of serious offences involving sexual contact with children, the possession and dissemination of child pornography and the possession and dissemination of child exploitation material. Bail was applied for and granted in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the Director of Public Prosecutions made an application in the Supreme Court seeking a review of the order of the Magistrate granting the respondent home detention bail.

Held, allowing the application; bail is revoked.

Bail Act 1985 (SA) s 10, s 14(2); Criminal Law Consolidation Act 1935 (SA) s 50, s 63, s 63A, s 63B, s 65A, referred to.

R v BROOKER
[2020] SASC 169

Criminal:  Application for review of bail

1. LIVESEY J:        This is an application by the Director of Public Prosecutions for the review of a bail decision pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act).

2. On 26 August 2020 the respondent, Jadd William Brooker, was arrested and did not apply for police bail. On 27 August 2020 an application was made to obtain a bail enquiry report and a bail enquiry home detention report. On 3 September 2020, a further bail enquiry home detention report was sought.

3. On 9 September 2020 a Magistrate granted the respondent bail on a number of stringent conditions.  Bail was granted over the opposition of the prosecution.

4. The review hearing before me today is a hearing de novo and, as is well recognised, it is not necessary to identify error in the decision made by the Magistrate. On the hearing of this review I have been assisted by the submissions of counsel and an affidavit from Jason Winter affirmed 10  September 2020 which includes an affidavit of Detective Brevet Sergeant David Townsend affirmed 9 September 2020.

5. In addition, I have been provided with a home detention enquiry report which suggests that home detention is available at the address nominated by the respondent.

6. The charges against the respondent have been supplemented by an Information which was handed to me in the course of the review which is dated 10 September 2020. It identifies 44 counts which, broadly, concern sexual contact with two children and a large number of charges concerning what might be described as the possession and dissemination of child pornography and inappropriate communications with children with the intention of making them amendable to sexual activity contrary to ss 50, 63, 63A, 63B and 65A of the Criminal Law Consolidation Act 1935 (SA).

7. The Director submits that bail ought not be granted despite the presumption in favour of bail under s 10 of the Act because of the gravity of the offences, the risk of further offending and the risk of interference with evidence. The Director points to evidence suggesting that the applicant was able to enlist the assistance of his mother in connection with deleting a particular Facebook account.

8. For the respondent it is said that the Magistrate acted entirely in accord with the Act and made an appropriate decision. It is also said that the particular Facebook account which was the subject of communication with the respondent’s mother is of no moment for reasons that I need not now go into. The respondent contends that home detention bail was ordered in a manner that sufficiently protects the community and his assistance given to police demonstrates that it is unlikely he will offend again or interfere with evidence.

9. It is obvious that the alleged offending is extremely serious.  Whilst I accept the submission of counsel for the respondent that there is a degree of emotion involved in the way in which the police and the Director have put the case, one need not dwell on that but simply look at the bare description of the material before the Court to understand why the investigating detective regards the material as the worst and most degrading witnessed in 14 years of investigation.

10. It is important to recognise that the offending occurred at a time when the respondent was HIV positive and it will be alleged that he took part in unprotected sexual activity with children.  It is also important to recognise that the 44 charges are the result of what might be described as a preliminary review of a large cache of electronic items, messages and material. There are over 50,000 messages yet to be reviewed. Further charges must be a distinct possibility.

11. In these circumstances, I have decided that bail should be refused, given the gravity of the offences with which the applicant has been taken into custody. I should emphasise that there is no suggestion that the applicant has been taken into custody in connection with the new charges in the new Information. Nonetheless, I think that they can be taken into account in connection with the risk of further offending.

12. Accordingly, the order of the Court is that bail is revoked.