R v Egan - [2005] SASC 404

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v EGAN
Judgment of The Honourable Justice Gray
11 October 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL
Applicant applied for bail - applicant charged with false imprisonment, wounding with intent to do grievous bodily harm, two counts of causing grievous bodily harm with intent to do grievous bodily harm, two counts of assault occasioning actual bodily harm and threatening life - circumstances of alleged offences are very grave - safety and protection of alleged victim of primary concern - bail refused.
Bail Act 1985 (SA) s 10, referred to.

R v EGAN
[2005] SASC 404
Application for Bail Review
GRAY J:

This is an application for review of a decision by a magistrate refusing the grant of bail.
Background
The applicant, Joseph Ephrain Egan, is charged with false imprisonment, wounding with intent to do grievous bodily harm, two counts of causing grievous bodily harm with intent to do grievous bodily harm, two counts of assault occasioning actual bodily harm and threatening life.
The Crown alleges that from 30 March 2005 to 3 April 2005, the applicant unlawfully imprisoned Gloria Lavinia Rankine, his defacto partner, and detained her in their home for two days against her will. The Crown further alleges that while the applicant held Ms Rankine captive, he unlawfully and maliciously wounded her with intent to do her grievous bodily harm, unlawfully and maliciously caused her grievous bodily harm with intent to cause her that harm, assaulted her thereby occasioning actual bodily harm, and threatened to kill her.
The Crown alleges that, at about 2.00 pm on Thursday 30 March 2005, the applicant forced Ms Rankine to return to the family home with him after she had told him that she no longer wanted to be with him.
When they arrived home, the applicant locked the entire house. He then ordered Ms Rankine to remove all of her clothing and lie on a mattress on the living room floor. The Crown alleges that he then began to bash her, kicking her in the ribs and in the face.
Over the ensuing two days, according to the Crown, the applicant repeatedly bashed Ms Rankine, at times using an iron bar and a metal meat tenderiser. These beatings occurred in front of the couple’s two young sons, aged two and three. The Crown also alleges that, on a number of occasions during the period of incarceration, the applicant threatened to kill Ms Rankine.
On Saturday 2 April 2005, at around lunchtime, the applicant telephoned his mother and asked her to bring food and cigarettes to the house. When his mother arrived, the applicant went out of the front door to meet her, and spoke to her in the front yard of the property. Ms Rankine used this as an opportunity to escape. She grabbed a towel to wrap around herself and ran from the house.
However, she was unable even to leave the property before the applicant seized her, causing her towel to fall off so that she was in the street completely naked. He then dragged her back toward the house. As he did so, the applicant allegedly screamed, “Get back in the house, you slut. You’re dead, you’re dead. Wait until I get you inside,” and then, “Wait till you get in here, bitch, you’re dead! I’m getting the iron bar for [you]!”
On the Crown case, the applicant’s mother and stepfather, who were in the driveway of the house, were both witnesses to these events.
The Crown alleges that, once the applicant had forced Ms Rankine back into the house, he proceeded to beat her repeatedly about the head with an iron bar. The Crown alleges that he also encouraged one of their young sons to use the meat tenderiser to hit Ms Rankine.
The applicant’s mother telephoned the police, who arrived at the property some time later. She was still at the scene at this time, and had a conversation with the police officers. Upon entering the house, the police found the applicant sitting in a chair in the living room and Ms Rankine naked and covered in blood, standing in the living room of the house. Ms Rankine had a deep wound to her head that was bleeding profusely. A police officer observed that Ms Rankine had blood on her chest and dried bloodstains on her stomach and legs. He observed that her left upper arm was swollen and that her arm appeared broken. The officer observed fresh blood on one side of her neck and dark blood in her hair. Her left eye and cheek were bruised, and there was bruising about her face and arms and red marks about her face and upper body. The officer observed Ms Rankine to be unsteady on her feet. She appeared to be in shock. The police called an ambulance.
The police arrested the applicant and conveyed him to the Holden Hill Police Station.
Ms Rankine was subsequently taken to the Royal Adelaide Hospital. Upon arrival, Ms Rankine was observed to have lacerations to her scalp and in front of her right ear; swelling and redness under her left eye; an abrasion on her left chest wall with associated reduced breath sounds; a tender abdomen; a swollen right hand and forearm; a swollen left upper arm, hand and fingers and an abrasion to her right knee.
Subsequent medical examinations revealed that Ms Rankine had suffered three fractured ribs; a broken upper left arm; multiple fractures in her left hand and fingers, and a fractured right wrist. She required plastic surgery to her fingers as well as surgery for her fractures. She has received ongoing treatment, including physiotherapy to assist her to regain movement in her hand.
Police examined the premises at which the applicant is alleged to have beaten Ms Rankine and held her captive. They found several pools of blood, both on the floor and on the walls, as well as several trails of blood throughout the house. Police found a metal pole, approximately one metre in length, lying on a mattress on the living room floor. One end of the pole had blood on it. On a table in the dining area adjoining the living room, police found a meat tenderiser.
On 4 April 2005, the applicant applied to a magistrate sitting at Holden Hill for bail. The magistrate refused bail, given the serious nature of the charges and the nature of the injuries sustained by Ms Rankine.
When determining whether to grant bail, the Court must have regard both to the presumption in favour of bail for persons yet to be tried for the offences with which they have been charged as well as the factors set out in section 10(1) of the Bail Act 1985 (SA):
(a)the gravity of the offence in respect of which the applicant has been taken into custody;
(b)the likelihood (if any) that the applicant would, if released--
(i)    abscond;
(ii)    offend again;
(iii)     interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;
(d)any need that the applicant may have for physical protection;
(e) any medical or other care that the applicant may require;
(f)any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;
(g)any other relevant matter.
The allegations against the applicant are very grave. There are a number of aggravating features, including the applicant’s alleged imprisonment of Ms Rankine for two days and the sustained nature of the alleged attack upon her, much of it in the presence of the two small children.
Notwithstanding that the applicant’s mother has indicated to police that neither she nor her husband are prepared to have any further involvement in the proceedings against her son, the Crown case against the applicant is strong.
The applicant has several relevant criminal antecedents, including common assault on a family member and assault occasioning actual bodily harm, in both cases the victim being Ms Rankine. Of particular relevance and concern to the present application are instances of breach bail.
The prosecution presented to the Court apprehension reports detailing the circumstances of previous arrests of the applicant. These reports suggest a pattern and history of serious domestic violence perpetrated by the applicant upon Ms Rankine. It would seem that domestic violence occurred even when the applicant had been ordered by a court as a condition of his bail to refrain from contacting Ms Rankine.
The safety of Ms Rankine is a primary consideration. Section 10(4) of the Bail Act provides:
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.
In a statement given to police, Ms Rankine stated that, upon learning that the applicant was applying for bail, she felt immediately scared. She said this was because, at the time of his arrest, he had threatened that if he was released from gaol, he would come looking for her and he would kill her. She also stated that she had been very frightened following the assault and she fears that, due to her injuries, she would not possess the strength to get away from the applicant if he was to come looking for her.
Having previously guaranteed the applicant’s bail only to have the applicant then breach bail, the applicant’s mother is not prepared to act as a guarantor on this occasion. This raises doubt as to the level of confidence that the Court can have that the applicant will comply with his bail.
I have had regard to the presumption in favour of bail. However, having regard to the gravity of the alleged offences and all of the circumstances, I consider that this is an inappropriate case for a grant of bail.
The application is refused.