R v Elphick - [2014] ACTSC 372

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Todd William Elphick
Citation:	[2014] ACTSC 372
Hearing Date(s):	15 December 2014
DecisionDate:	16 December 2014
Before:	Refshauge J
Decision:	The application be dismissed.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Presumption of bail – Accessory after the fact not an offence of actual or threatened violence – Applicant breached previously imposed bail conditions – Applicant breached court orders – Whether totality of factors amounts to “special or exceptional circumstances”
Legislation Cited:	Bail Act 1992 (ACT), ss 9A, 9B, 9D, 22, 23A, 43 Human Rights Act 2004 (ACT)
Cases Cited:	Burton v The Queen (1974) 3 ACTR 77 In the matter of an application for bail by Massey [2008] ACTSC 145 Re an Application for Bail by Allen [2009] ACTSC 64 R v Smith (2012) 269 FLR 233
Parties:	Todd William Elphick (Applicant) The Queen (Respondent)
Representation:	Counsel Mr R Livingston (Applicant) Mr T Hickey (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) Legal Aid (ACT) (Respondent)
File Number(s):	SCC 183 of 2013

Refshauge J:

Following a trial by jury, Todd William Elphick was acquitted of one count of causing damage to a building by fire, namely arson, and one count of threatening to damage a building by fire, which building belonged to another person, namely a threat of arson.

He had, however, earlier pleaded guilty to other charges which broadly arose out of the same circumstances. These charges were two counts of contravening a protection order to which he was subject, stalking and attempted arson. He is to be sentenced for these offences on 12 February 2015.

Mr Elphick was arrested for the arson offence and also for one of the counts of contravening protection order on 10 July 2013 and has remained in custody since then.

Following the findings of the jury acquitting him of the two charges to which I have referred, he has now applied for bail.

It is necessary, briefly, to set out the statutory circumstances in which this bail application is to be made.

At the time of Mr Elphick’s arrest on 10 July, 2013 for the charge of arson and one of the counts of contravening a protection order he was on bail for a serious offence. Ultimately, that serious offence did not proceed, but he was convicted and sentenced for being an accessory after the fact of a more serious offence when he assisted Kai Yuen, of leaving the scene of a murder for which Mr Yuen was later convicted, Mr Elphick believing that Mr Yuen had committed a related offence of intentionally and unlawfully using an offensive weapon against another person likely to endanger human life and with the intention of allowing Mr Yuen to escape apprehension or prosecution.

On 30 July 2013, Mr Elphick was sentenced to seven months and sixteen days’ imprisonment, backdated to 15 December 2012, which appears to have represented all the pre-sentence custody, although…

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 Elphick

Details

AGLC: R v Elphick [2014] ACTSC 372
Case: [2014] ACTSC 372
Decision Date: 16 December 2014

CaseChat Overview and Summary

The case of R v Elphick involved the respondent, who was the applicant in the High Court seeking bail. The applicant had previously been charged with accessory after the fact and was subject to bail conditions that were breached. The primary legal issues before the court were whether the totality of the factors presented constituted "special or exceptional circumstances" warranting the grant of bail, despite the applicant's breach of previously imposed bail conditions and court orders.

The court examined the nature of the offence, the applicant's criminal history, and the circumstances surrounding the breach of bail conditions. It was noted that the offence of accessory after the fact was not an offence of actual or threatened violence. The court also considered the seriousness of the breach and the applicant's compliance with other legal obligations. Ultimately, the court found that the breach of bail and court orders, coupled with the lack of any exceptional circumstances, outweighed any presumption in favour of bail.

The court held that the totality of the factors did not amount to special or exceptional circumstances that would justify the grant of bail. The application was dismissed, and the applicant was to remain in custody pending the resolution of the charges against them. The decision underscores the importance of adhering to bail conditions and court orders, and the court's cautious approach to granting bail in cases where such conditions have been breached.

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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