R v Dunstan - [2010] SASC 12

Supreme Court of South Australia
(Criminal: Application)
R v DUNSTAN
[2010] SASC 12
Reasons for Ruling of The Honourable Justice Kourakis (ex tempore)
29 January 2010
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Applicant charged with aggravated serious criminal trespass, attempted murder, aggravated threaten life, aggravated cause harm with intent to cause harm and possessing an object to kill or cause serious harm - Magistrate refused applicant bail - applicant applied to be released on home detention bail - victim concerned with his wellbeing - applicant's capacity to cause harm low, particularly if applicant on home detention bail - applicant led exemplary life up until the events leading to the charges against her - applicant gave an explanation for her conduct relating to those events.
Held: Application refused - Bail Act 1985 s 10(4) makes the protection of the victim the primary consideration, but does not reverse the onus on an application for bail - bail must be granted unless good reason not to - whether or not protection of the victim demands a refusal of bail will depend on the circumstances of each case - the gravity of the alleged offending and the underlying factors which led to that alleged offending amount to good reason to deny bail.
Bail Act 1985 s 10(1), s 10(4), referred to.
R v Blair [2001] SASC 430, considered.

R v DUNSTAN
[2010] SASC 12
Criminal

KOURAKIS J: The accused is charged with aggravated serious criminal trespass, attempted murder, aggravated threaten life, aggravated cause harm with intent and possessing an object with intent to kill or cause serious harm.
According to a statement given by him to police, on the night of 16 August 2009 Trevor Kitson arrived at his home and left the door open to allow his dog out. When he returned to close it he was confronted by a person disguised with a balaclava and holding a knife who threatened to kill him. That person raised the knife and then brought it down towards his face and shoulder. A struggle ensued. An irritant was sprayed into his eye. Eventually Mr Kitson subdued his attacker and removed the balaclava. His attacker was the accused, Mrs Dunstan.
Mr Kitson had had an extramarital affair lasting about six years with Mrs Dunstan some 25 years ago. Mrs Dunstan was 19 years of age when that affair started and Mr Kitson many years her senior. They resumed their affair in about 2006 at a time in their lives when they were both emotionally vulnerable. That relationship ended in about February 2009.
According to the police, when they found Mrs Dunstan on a footpath near Mr Kitson’s house shortly after the alleged attack Mrs Dunstan was wearing soccer boots and shin pads. In her bags, which the police found nearby, were tinsnips, screwdrivers, a hairnet, cable ties fashioned as handcuffs, plastic gloves, a rope and some phials of medication. That medication included glyceryl trinitrate, sometimes referred to as GTN. GTN is prescribed for angina but in high doses it can lower blood pressure; it is also sometimes used as a sexual stimulant. In another phial was the drug Midazolam, which is a sedative. The police report states that there was also a phial containing an anticoagulant drug but that has not, I am informed, been confirmed by pharmacological analysis. Yet another phial contained insulin. Insulin, inappropriately administered, can cause the potentially fatal condition, hypoglycaemia.
Mrs Dunstan has since told a psychologist that some of these materials were in her possession for the purpose of, in some way, subduing Mr Kitson’s dog; I am told today that that dog is a Staffordshire Bull Terrier. I infer from the nature of the drugs and from Mrs Dunstan’s own admission as to their purpose, that the drugs could have been used to cause serious harm to Mr Kitson.
Mrs Dunstan has today, through her counsel, admitted that the drugs were taken from a hospital where she worked as a nurse. I infer from that that they were taken unlawfully and that some preparation would have been necessary to obtain them. Moreover, Mrs Dunstan must have appreciated that both her immediate employment and her professional career were placed in jeopardy by that conduct.
Mrs Dunstan has been married for 21 years. She has worked hard. She has raised three children who are aged 16 and 11; the youngest are twins. Mrs Dunstan has been in regular employment and has shouldered responsibility for the greater part of the domestic work. She has no criminal history or history of drug and alcohol abuse. She is well regarded by her community.
I accept that almost every aspect of Mrs Dunstan’s personal life suggests that in ordinary circumstances she would be a low risk if released on bail. However, the circumstances which have brought Mrs Dunstan before the court are far from ordinary. The primary explanation given by her for her offending is her confusion over the real nature and value of the relationship with Mr Kitson. Mrs Dunstan believes that Mr Kitson’s only interest in her was to satisfy his own sexual gratification. That belief has in turn grown into a conviction that she should be compensated hundreds of thousands of dollars for being deceived by him into providing what Mrs Dunstan now perceives to have been prostitution services.
Mrs Dunstan has told her psychologist that it was that moral debt that she wished to discuss with Mr Kitson on the night of 16 August. If that is so, the evidence suggests that Mrs Dunstan also went prepared to enforce that demand, or to, in some other way, extract another form of payment for what she sees as the abuse she suffered throughout their relationships.
I have already mentioned that Mrs Dunstan’s explanation for the items found in her possession is that she was concerned that she might be attacked by Mr Kitson’s dog. She was also worried that she might be harmed by his son, whom she believed to have connections with bikies. There remains some obvious tension between those explanations and the decision to go to Mr Kitson’s house at all.
Ultimately these are matters for trial. Suffice it to say that an inference can be drawn from the allegations, supported as they are now to a large extent by admissions made to police and, indeed, by submissions made to me this morning that Mrs Dunstan posed a risk to Mr Kitson’s wellbeing on that night and continues to do so.
Section 10 of the Bail Act 1985 provides that bail should be granted unless, in effect, there is good reason not to do so. The factors which must be considered in the exercise of that discretion are the gravity of the offence, the likelihood of absconding or further offending or interfering with witnesses and any other relevant factors. Section 10(4) provides that:
Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.
It is plain from that sub-section that the protection of the victim, and, indeed, the alleged victim’s perception of the need for protection are relevant factors. In my view, however, the sub-section does not reverse the onus on an application for bail.[1] Bail must be granted unless there is good reason not to, but, in determining whether or not there is sufficient reason, the protection of the victim is the primary consideration. Even though that protection is the primary consideration, it does not follow that wherever there is any need, real or reasonably perceived, to protect a victim that bail must be refused. Even though protection is the most important of the competing considerations, whether or not the particular circumstances relevant to that and the other considerations constitute good reason to refuse bail is a matter of judgment to be exercised on the particular facts of each application.
[1] The Queen v Blair [2001] SASC 430 at [39].
In this case Mr Kitson is concerned about his wellbeing. His concern is not based merely on the events of 16 August. The relationship has been a troubled one.
In 2008, whilst at the same time maintaining a relationship with Mrs Dunstan, Mr Kitson complained to police that he was being harassed. His fence was painted, sump oil daubed on his back gate and poisoned meat left in his yard. His car was scratched. Mr Kitson also complained that he was being stalked. He informed police that he suspected Mrs Dunstan. Mrs Dunstan has approached Mr Kitson’s employer and made a complaint against him that was calculated to, if not result in his dismissal, at least cause him difficulties in his employment. Mr Kitson eventually made a phone call to the applicant’s home. He spoke with Mrs Dunstan’s husband who warned him against any further contact with Mrs Dunstan. In February 2009 Mr Kitson sent an email to Mrs Dunstan warning her to stay away and threatening that, if she did not, he would proceed with stalking charges against her. There was no contact between the two of them between that email and the events of 16 August.
It seems that in the intervening period Mrs Dunstan ruminated on and became preoccupied with what she saw as the years of abuse she had suffered in their relationship. I am informed that Mrs Dunstan consulted solicitors about the possibility of legal action against Mr Kitson alleging sexual harassment. On 16 August, apparently dissatisfied with the advice, or progress, on those claims, Mrs Dunstan appears to have taken more direct action.
I accept that, speaking generally, Mrs Dunstan’s capacity to cause harm is limited, particularly under a regime of home detention at a home some distance from Mr Kitson’s last known residence and place of employment. That risk, based again purely on her capacities as a woman of her age and the distances involved, must be assessed as low.
It is also the assessment of the psychologist Mr Broomhall that Mrs Dunstan poses a low risk based on all her history. I accept that just about everything about Mrs Dunstan suggests that she should be regarded as a very low bail risk.
The refusal of bail would continue her separation from her family; they have continued to support her despite the unusual circumstances in which they find themselves. I am much concerned about the separation from her family that the denial of bail has thus far caused.
The dilemma that is posed by this application is that, despite Mrs Dunstan’s exemplary life, events occurred on 16 August, which, notwithstanding some dispute about precisely what occurred, can only be described as bizarre. Moreover the incident was not just bizarre; Mr Kitson was and remains very frightened. He has good reason to be scared. Mrs Dunstan was armed with a knife and with medication that could have caused him great harm and even death. The events in themselves, and the very nature of the relationship with which Mrs Dunstan became preoccupied, suggest that there is a significant risk of further offending. It is my assessment of that risk that must determine the fate of this application.
Ultimately I am not satisfied by the explanation for Mrs Dunstan’s conduct, nor sufficiently satisfied that her underlying obsession with the relationship and her perceived abuse has been resolved. There is a substantial risk that the strong feelings which may have been the motive for the alleged offending and other alleged harassment of Mr Kitson will again drive Mrs Dunstan to offend in some way, whatever restrictions are placed on her bail. The gravity of the offending and the underlying factors which led to that alleged offending amount, in my view, to good reason to deny bail. Notwithstanding the prescription of s 10(1) of the Bail Act 1985, I refuse both the application for review and the application for bail made orally in this Court on Mrs Dunstan’s arraignment.