R v Duke

[1999] SASC 431

R v DUKE

[1999] SASC 431

1 LANDER J:         This is an application for bail by Nicholas Duke who has been charged with the murder of Scott Averis on 5 May 1999.  The applicant has been in custody since shortly after the alleged offence was committed. 
2 When this matter first came before me counsel for the Director of Public Prosecutions advised me that the Director had no objection to the applicant being released on home detention bail.  Later this week my associate was advised by the Director that that submission had been put in error and that the Director wished to be heard in opposition to this application. 
3 This morning Ms Davidson, who did not appear on the previous occasion, appeared for the Director and sought leave to be heard in opposition to the bail application and I granted leave. 
4 The circumstances of the alleged offence, as put to me by the Crown, are that on 5 May 1999 the applicant sought out the victim of this offence for the purpose of confronting the victim in relation to some stolen property.   In seeking out the victim, it is alleged that the applicant took with him a hunting style knife 300 mm long.  I am told that the Crown case is that the applicant was not able to find the victim at his address but found the victim at his girlfriend's address.  It is alleged by the Crown that the applicant then provoked a fight and during the fight stabbed the victim on three occasions thereby causing his death. 
5 The applicant's counsel, Mr Barrett QC, has pointed to various facts and circumstances which he said will give rise to an examination of the defence of self-defence.  Mr Barrett has also pointed out that the applicant made no attempt to leave the scene after the victim was stabbed,  assisted at the scene and remained at the scene until the police arrived.  He puts that submission forcefully, of course, for the purpose of demonstrating that there is little likelihood that this applicant is likely to abscond. 
6 On this further application, the Crown made it clear that it did not consent to the imposition of a condition of home detention. It seems to me, pursuant to s 11(3) of the Bail Act, that I cannot impose a condition for home detention or a condition for supervision by an officer of the Department of Correctional Services without the consent of the Crown. The Crown has not given its consent in this case so that if I was minded to grant bail it has to be without the conditions of home detention and supervision.
7 It was put by Mr Barrett that the Crown is not entitled to withhold its consent for a collateral purpose, that is to defeat bail, but that is a matter which I need not rule upon for the purpose of this application. 
8 An application for bail, where a person has not been convicted of an offence, must be approached on the basis that where a person has not been convicted of an offence the applicant should be released on bail unless having regard to the matters referred to in s 10(1) of the Bail Act it would be appropriate not to release the applicant on bail. Regard must also be had to s10(4). In this case I think it is fair to say that the only factor which would prevent the applicant succeeding on this application is the gravity of the offence in respect of which the applicant has been taken into custody.
9 Section 10(1)(a) provides that if having regard to the gravity of the offence in respect of which the applicant has been taken into custody, I consider that the applicant should not be released on bail, I may refuse the application. There is no more serious offence than that with which the applicant is charged. It is the most serious offence in the criminal calender. In that respect it appears to me the offence charged comes within s10(1)(a) and it may of itself be a reason for me to refuse this application.
10 However, a consideration of a bail application requires not only a consideration of the gravity of the offence which, as I say, may be sufficient of itself to refuse the application, but all other factors relevant to the applicant.  In the end, the question for the bail authority is whether or not the applicant is likely to answer his bail by attending at his trial. 
11 If, in the opinion of the bail authority, it is likely that the applicant will attend at trial, then ordinarily, in conformity with s 10, the bail authority should grant the application. 
12 There are circumstances, however, where even if it is likely that the applicant will attend at trial in accordance with the bail agreement, bail should be refused.   Those circumstances include, for example, the likelihood that the applicant, if on bail, might interfere with evidence, intimidate witnesses or hinder police inquiries.   None of those matters are suggested in this case. 
13 It is unusual, as King CJ said in State of South Australia v Machin (SCSA, s3328 King CJ, 13 March 1992, unreported) for a person charged with murder to be released on bail.  However, in this case the applicant has been in custody since May 1999.   The forensic evidence, through no fault of his, has not been collected and has not been completely examined.  It is likely that the Crown's evidence will not be available to the applicant until late November and it is likely that his trial will not take place until early next year.  The delay is a reason why the applicant should be granted bail pending his trial. 
14 The applicant's antecedents in this case do not disqualify him from being granted bail.  He does not have a history of the kind that would suggest he would not answer his bail nor a history of the kind which would suggest he is not suitable for bail.  In the end result it comes down to whether or not I think he should not be granted bail simply because of the gravity of the offence for which he is charged, namely murder. 
15 Taking all things into consideration, in my opinion it would be appropriate to grant the applicant bail and I am prepared to do so.  Having regard to the Crown's opposition to home detention, it is not permissible for me to impose a condition of home detention and in those circumstances I must impose other bail conditions. 
16 I impose the following conditions:

1. that the applicant enter into recognizance of $250; and that he attend his trial;

2. that he reside at 1 Sixth Avenue, Cheltenham;

3. that he report to the Angas Street Police Station on Saturday and Wednesday of each week between the hours of 8.00 am  and 5.00 pm.;

4. that he provide three guarantors each to give a guarantee in the sum of $5000, the guarantors to be Sonia Farquhar 110 Bower Road, Semaphore, his brother Rodney Duke and his mother Miriam Wood;

5. that during the period of the bail agreement he not enter the suburbs of Ethelton, Exeter or Largs Bay; and that he not approach any of the witnesses whose declarations have been provided to his legal advisors, except Sonia Farquhar, Simone Simpson and Dallas Duke.
   17 I understand the guarantors are in court. They would want to understand that of course if there was any breach of the bail agreement they could be called upon to pay the $5000 which underscores the guarantee that they are about to give. They would also want to understand that they have an obligation under the Bail Act to report any breach of a bail agreement to the police and that if they fail to report any breach of the bail agreement that of itself is a criminal offence on their part.

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