R v Encheff - [2004] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ENCHEFF
Judgment of The Honourable Justice Gray
20 January 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL
Accused charged with murder - application for bail - Crown oppose grant of bail - gravity of offending - concerns of witnesses and victim's family - consideration of Section 10 Bail Act 1985 (SA) - presumption in favour of bail - bail refused on several prior occasions - accused's wife terminally ill - humane and compassionate considerations - home detention bail with electronic monitoring to be granted on strict conditions.
Bail Act 1985 (SA) s 10, s 11, referred to.
R v Halas (2001) 81 SASR 1; R v Goldsmith (Prior J, 15 March 1995, unreported); R v Goldsmith (Matheson J, 3 August 1995, unreported), considered.

R v ENCHEFF
[2004] SASC 200
Bail Review
GRAY J
Introduction

This is an application for bail review. Bail had been refused by a magistrate.
The accused, Dragni Encheff is charged with the murder of Vicki Evanoff. The Crown opposed the application for review because of the gravity of the offending and the likelihood that the accused may interfere with or intimidate witnesses and the victim’s family.
The Crown case is that at or about 6.00 am on 14 October 2002 the accused shot the victim in the back using a shotgun. It was said that the shooting took place in the car park of Woolworths Shopping Centre, Virginia. Witnesses observed a man standing over the body in the car park following the shooting. One witness observed that the man was holding a gun. On the crown case, the offence was planned. The accused was waiting for Mrs Evanoff to appear and shot her from behind. The circumstances of the killing are very grave.
Later on 14 October 2002 the accused was arrested at his home and taken into custody. Items including a shotgun and shotgun shell were found on his property and seized. Police bail was refused.
Mrs Evanoff is a relation of the accused. On the Crown case there was a family dispute between the accused and the victim relating to a will and the division of an estate. It is the Crown case that this circumstance provided a motive on the part of the accused.
Members of the victim’s family have indicated concerns that they may be at risk from the accused were he to be released from custody. The victim’s 13 year old daughter and husband have allegedly received threats from the accused. There is evidence that the victim held fears for her daughter’s safety from the accused.
In a statement to police, Denis Evanoff, the victim’s husband said:
… I would prefer [the accused] to be in custody because of threats he has made to my daughter. I am not concerned for my welfare but there were only three members of my immediate family, my wife, my daughter and myself and he has made threats to wipe out my family. Stacey and I are the only two left. I believe he is capable and willing to carry out these threats.
In a signed statement, the victim’s sister Stephanie Douglas said:
I hold grave fears for the safety of my niece Stacey Evanoff (Vicki’s Daughter) and for Denis Evanoff (Vicki’s husband). Stacey Evanoff is staying with me (WA) at the moment and I believe she is at risk of being murdered by Dragni Encheff.
A further statement was received from Ivan Angelov, the victim’s father as follows:
My greatest fear at this time is the welfare of my granddaughter Stacey Evanoff. I believe she is at risk of being killed by Dragni Encheff.
The Bail Act
Section 10 of the Bail Act 1985 (SA) relevantly provides that there is to be a grant of bail unless the bail authority considers the applicant should not be released. However, this presumption is subject to section 10(4).
Section 10 provides:
(1) Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to —
(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 bail authority considers that the applicant should not be released on bail.
…
(4) 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.
Section 11(2) of the Bail Act provides for conditions which may be attached to a grant of bail:
The conditions that may be imposed in relation to the grant of bail are as follows:
   (a)      that the applicant agree —
(i)       to reside at a specified address; or
(ia)to reside at a specified address and to remain at that place of residence while on bail, not leaving it except for one of the following purposes:
(A)     remunerated employment; or
  (B)     necessary medical or dental treatment for the applicant; or
(C)averting or minimising a serious risk of death or injury (whether to the applicant or some other person); or
(D)     any other purpose approved by a community corrections officer; or
(ii)where there is a victim of the offence in respect of which the applicant has been charged — to comply with such conditions relating to the physical protection of the victim that the authority considers should apply to the applicant while on bail; or
(iii)to be under the supervision of a community corrections officer and to obey the lawful directions of the officer; or
(iv)     to report to the police at a specified place and at specified times; or
(v)      to surrender any passport that the applicant may possess; or
(vi)to comply with any other condition as to the applicant's conduct that the authority considers should apply while on bail;
(b)     that the applicant provide the bail authority with written assurances from a stipulated number of persons, who are acceptable to the bail authority, that they are acquainted with the applicant and are confident that the applicant will comply with the terms and conditions of a bail agreement;
(c)     that the applicant agree to forfeit to the Crown a sum of money (to be stipulated in the bail agreement) if the applicant fails, without proper excuse, to comply with a term or condition of the bail agreement;
(d)     that the applicant provide security of a specified amount or value to secure payment of a monetary forfeiture agreed to under paragraph (c);
(e)     that the applicant obtain specified guarantees, or guarantees of a specified nature;
(f)     that a guarantor provide security of a specified amount or value to secure payment of a stipulated monetary forfeiture.
(2a) In deciding on the conditions to be imposed in relation to a grant of bail, a bail authority should give special consideration to any submissions made by the Crown on behalf of a victim of the alleged offence.
(3) A bail authority should not impose a condition under subsection (2)(a)(ia) or (iii) except on the application, or with the consent, of the Crown.
(3a) A bail authority should not impose a condition under subsection (2)(a)(ia) without first obtaining a report (whether oral or in writing) from the Crown on the appropriateness of such a condition being imposed in the applicant's case.
(4) A condition (other than a condition as to the conduct of the applicant while on bail) must not be imposed under this section unless the condition is, in the opinion of the bail authority, reasonably necessary to ensure that the applicant complies with the bail agreement.
(5) A financial condition must not be imposed under this section unless the bail authority is of the opinion that the object of ensuring that the applicant complies with the bail agreement cannot be properly secured by a non-financial condition or combination of non-financial conditions.
(6) It is a condition of every bail agreement that the person released in pursuance of the agreement will not leave the State for any reason —
(a) if the person is under the supervision of a community corrections officer — without the permission of the Chief Executive (or his or her nominee) of the administrative unit of which the community corrections officer is an officer or employee;
(c)      in any other case — without the permission of —
(i)       a judge or magistrate; or
(ii)a member of the police force of or above the rank of sergeant or in charge of a police station.
(7) A condition imposed under this section must be stipulated in the bail agreement.
(7a) Where it is a condition of a bail agreement that the person released in pursuance of the agreement will remain at a particular place of residence, a member of the police force or a community corrections officer authorised by the Minister for the purpose may enter the residence at any time for the purpose of ascertaining whether or not the person is complying with the condition.
…
Bail – Charge of Murder
The grant of bail where an accused is charged with murder has received recent consideration. In R v Halas[1] the court observed:
In R v Karger Mullighan J noted that it is unusual for bail to be granted in cases of murder. His Honour said at [9]:
‘Whichever way the matter is considered, it is clear that this Court has taken the view since the coming into operation of the Bail Act that in cases of murder bail is not usually granted. As the former Chief Justice, King CJ, said in South Australia v Machin (1992) 163 LSJS 377 at 378: 'It is very unusual for the courts to grant bail on a charge of murder.’ Nonetheless, bail has been granted on occasions and on some occasions since the coming into existence of the home detention facilities.’
Research indicates that since 1997, bail has been granted in more than 25 per cent of cases where an accused is before the Supreme Court and has been charged with murder. A number of the grants of bail have been made by magistrates without the Crown bringing an application to review the decision. Cases where grants of bail have been made in the Supreme Court since 1997 include R v Foster, R v Duke, R v Anderson, R v Miller, R v T. It can no longer be said that a grant of bail on a charge of murder is very unusual. However invariably stringent conditions continue to be applied. When home detention bail has not been ordered, conditions have included frequent police reporting, curfews and close supervision by probation officers.
[1] (2001) 81 SASR 1 at 2-3
Bail Application History
An application for bail was made before a magistrate on 19 February 2003. Submissions put to the magistrate included that the crown case against the accused was circumstantial, and that there was no forensic evidence linking him to the crime. It was said that the accused was suffering from ill health that could not be monitored effectively whilst in custody. It was said that there was a suitable residence available for home detention bail. A bail enquiry report was ordered. On 10 March 2003 the magistrate refused bail.
On 19 March 2003 a further application for bail was made. Bail was refused. The magistrate noted the gravity of the alleged offence and the possibility of interference with witnesses.
On 27 March 2003 an application for review of the refusal of bail was made before a judge of this court. Ultimately the application was not pursued.
Following a change in circumstances, the application for review of bail was reagitated in late December 2003. The accused’s wife was diagnosed with a terminal illness. A medical specialist estimated that her life expectancy was then between 6 and 12 weeks. An affidavit from Mrs Encheff’s treating medical practitioner of 6 January 2004 provided further information:
I was the medical practitioner responsible for the care of Eva Encheff between 22 December 2003 and 30 December 2003, when she was admitted as an in-patient at the RAH. Mrs Encheff was admitted so that surgery could be performed to correct what was anticipated to be a small bowel obstruction.
I conducted the operation, which took place on 23 December 2003. At that time, it was discovered that Mrs Encheff had a widely disseminated, metastatic adenocarcinoma of the stomach. Given the extent of the disease and the characteristics of this type of cancer, it is almost certain to prove fatal to Mrs Encheff in the immediate future. My prognosis is that Mrs Encheff has a life expectancy of between six and twelve weeks from the date of affirming this affidavit.
If it were not for Mrs Encheff’s terminal illness with a very short life expectancy the bail review would be refused. However, the evidence provided to the court regarding Mrs Encheff’s condition is relevant and material. Humane and compassionate considerations arise. Mrs Encheff’s wish to have her husband at home with her during the final weeks of her life is a material consideration in the application for bail.
A variety of options to facilitate a compassionate solution to allow Mrs Encheff to spend time with the accused were discussed during the hearing of the review application. The court was informed that Mrs Encheff has been able to visit the accused at the Adelaide Remand Centre. However, the length of her visit was limited. Mrs Encheff is restricted to a wheelchair. The fact of Mrs Encheff’s illness will inevitably mean that at some stage in the future she will no longer be well enough to visit the accused in the remand centre.
Counsel for the Crown indicated that special arrangements could be made to allow for more frequent and less restricted visits by Mrs Encheff to the remand centre. However contact would still be restricted and difficult.
The further option of escorted visits by the accused to his home was considered. One escorted visit had been facilitated by the Department of Correctional Services. However, limited resources would only permit one further escorted home visit while Mrs Encheff survives and a final escorted visit to allow the accused to attend her funeral.
None of these options are ideal.
Periodic Bail
In R v Goldsmith[2] this court granted bail for a fixed period to an indigenous youth who was in custody awaiting sentence. The purpose of the grant was to allow the defendant to attend the funeral of a family member in a remote part of South Australia. The Correctional Services Department did not have the resources to arrange an escort. Bail was granted. The defendant was released from custody at a certain time and had to return to the remand centre by a particular time three days later. The defendant was released into the custody of his mother, a guarantor, and he had to remain in his mother’s presence for the entire period of bail.
[2] Supreme Court Criminal File 39/1995 See transcript of 15 March 1995 before Prior J and 3 August 1995 before Matheson J
While this is an unusual course to take, the particular circumstances of this case can best be addressed by such an arrangement. Mr Encheff should be granted home detention bail with electronic monitoring to permit him to be with his wife for a period of time before her death. However, strict conditions must be imposed.
It would be inappropriate to create any expectation that bail would continue after Mrs Encheff’s death. As earlier observed, were it not for the unique circumstances of Mrs Encheff’s terminal illness and limited life expectancy, the application for bail review would have been refused.
The statements of the victim’s family as earlier referred to in these reasons have been considered. It is relevant to note that the victim’s husband did not object to bail being granted on the basis of Mrs Encheff’s illness and limited life expectancy. Mr Evanoff said:
If it is true that Eva is terminally ill and does not have long to live, out of compassion for her, I agree for Dragni Encheff to have bail to reside with his daughter at Paralowie as long as he does not attend anywhere in the Virginia area or anywhere where my daughter Stacy might be.
Mr Evanoff provided a further statement in which he said:
…I am having second thoughts about Drago’s release. I don’t believe Eva is terminally ill as she is not in a hospital, it just does not make sense to me that she would be out of hospital if she was so ill.
I would feel a lot more comfortable if Drago was to remain in prison. I still fear reprisals from him about what happened to Vicki and I am particularly concerned for my daughter Stacey. Drago has a ‘pet hatred’ for her as she is an adopted child…
I believe that Drago is vindictive and that he would be thinking about reprisals against myself and Stacey. I don’t think he would have second throughs about what he did to my wife. My daughter lives with me and we still live in the same house as we did when Drago was out. Our habits and movements are not all that different from when Drago was around.
While Mr Evanoff states that he no longer agrees to the release of the accused, the grounds for his objection are that he does not believe Mrs Encheff is terminally ill. His changed attitude appears to have arisen from a misunderstanding. The undisputed medical evidence has confirmed that Mrs Encheff is terminally ill with a very limited life expectancy.
Concerns were expressed about the relatively close proximity of the victim’s family home to the accused’s home. This problem has been substantially alleviated by the provision of a house at a more distant location for the accused and Mrs Encheff to use as their residence during the period of home detention bail.
A closed period of home detention bail with electronic monitoring, with guarantors, with substantial cash security and on strict terms should provide adequate protection against the concerns of the victim’s family and the wider community.
This review is allowed. The accused is granted bail on the following conditions - that the accused :
-be released on home detention bail with electronic monitoring for a period of 7 days.
-      reside at 2 Rostrevor Avenue, Rostrevor.
-be released from remand into the custody of one or both guarantors at 10.00 am on Thursday 22 January 2004 from Adelaide Remand Centre.
-on release travel direct to the premises at Rostrevor and upon arrival contact the Home Detention Unit on (08) 8411 0790.
-      be in the company of at least one of the guarantors at all times.
-not absent himself from the Rostrevor premises for any reason other than a medical emergency to himself to avert or minimise a serious risk of death or injury to himself without the prior agreement of a judge of this court. In the event of a medical emergency concerning Mrs Encheff, he must remain at the Rostrevor premises with one or both of the guarantors. Such a medical emergency does not constitute grounds for an exemption to the home detention requirements.
-      not leave the State for any reason.
-      surrender any passport that he may possess.
-      not apply for any passport or for renewal of an existing passport.
-forfeit to the crown the sum of $50,000 if he fails, without proper excuse, to comply with a term or condition of the bail agreement.
-provide two guarantees in the amount of $50,000 each. TheGuarantors are to be Jeanette Russo and Claudio Romano Russo. Each guarantor is to lodge a cash surety with the Sheriff in the amount of $50,000.
-at the conclusion of the seven days of home detention bail, the accused is to return in the company of at least one guarantor and surrender himself to the Correctional Services Department at the Adelaide Remand Centre by no later than 4 pm on Thursday 29 January 2004.
-have no direct or indirect contact of any nature whatsoever with the husband, parents, sister or child of the deceased victim, Vicki Evanoff.
-have no direct or indirect contact of any nature whatsoever with any of the witnesses to be called by the prosecution.
-not consume any alcohol or drugs other than those that may be medically prescribed.
-to be under the supervision of a community corrections officer and to obey the lawful directions of the officer.