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…

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 Duke

Details

AGLC: R v Duke [1999] SASC 431
Case: [1999] SASC 431
Decision Date: 24 September 1999

CaseChat Overview and Summary

In the case of R v Duke, the applicant, Nicholas Duke, applied for bail while charged with the murder of Scott Averis on 5 May 1999. The applicant had been in custody since shortly after the alleged offence was committed. The circumstances of the alleged offence, as put to the court by the Crown, involved the applicant confronting the victim in relation to some stolen property, armed with a hunting knife. The Crown case was that the applicant provoked a fight and stabbed the victim on three occasions, causing his death. The applicant's counsel submitted 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.

The legal issues in this case centred around the granting of bail for the applicant, Nicholas Duke, while he was charged with the murder of Scott Averis. The key issue was whether the applicant should be released on bail, considering the gravity of the offence and other relevant factors. The court had to determine if the applicant was likely to answer his bail by attending his trial and whether the applicant's release on bail would interfere with evidence, intimidate witnesses, or hinder police inquiries.

The court, after considering the relevant factors, concluded that the applicant should be granted bail. The gravity of the offence, being murder, was a significant factor that may have been sufficient to refuse the application. However, the court also took into consideration the applicant's antecedents, the delay in the forensic evidence and the Crown's evidence becoming available, and the applicant's likelihood of attending his trial. The court ultimately decided to grant the applicant bail, subject to certain conditions, including a recognizance of $250, residence at a specific address, reporting to the police station on specified days, providing three guarantors, and restrictions on entering certain suburbs and approaching specific witnesses.

The final orders of the court were that the applicant, Nicholas Duke, be granted bail subject to the conditions imposed, including entering into a recognizance of $250, residing at 1 Sixth Avenue, Cheltenham, reporting to the Angas Street Police Station on Saturday and Wednesday of each week between the hours of 8.00 am and 5.00 pm, providing three guarantors, not entering the suburbs of Ethelton, Exeter, or Largs Bay, and not approaching any of the witnesses, except Sonia Farquhar, Simone Simpson, and Dallas Duke.

Orders