R v Finch - [2005] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FINCH
Judgment of The Honourable Justice Gray
3 June 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL - MURDER CASES
Application for bail - refused.
Bail Act 1985 (SA) s 10, referred to.
R v Collie (No 2) [2002] SASC 247; R v Halas (2001) 81 SASR 1, considered.

R v FINCH
[2005] SASC 243
Application for Bail
GRAY J

This is an application for bail.
The applicant, Josiah Finch, is charged with the murder of Karim Thomas Morrison at Camden Park in South Australia on 25 May 2004. The applicant was arrested and charged on 26 July 2004.
In Collie (No.2)[1] the approach to be taken to the reception of material relevant to pre-trial bail applications was considered:[2]
Pre-trial bail applications are common. There are features about them that set them apart from other hearings, particularly those made during the course of a trial. Bail applications must be determined expeditiously. Time is of the essence. The Crown will make allegations against an applicant. These will often be untested assertions and may include information about the applicant’s character, propensity to act in a certain way, uncharged conduct and the perceived fears of an alleged victim or victims. The court is required to make an assessment of the strength of these allegations and make predictions about the applicant’s future conduct. The scope of a bail hearing is much broader than many other criminal proceedings. There is a level of informality about the entire process. The rules of evidence are not strictly enforced as the court is assessing risk not determining guilt.
[1] [2002] SASC 247.
[2] [2002] SASC 247 at [8].
The material placed before this Court is to be assessed in this manner.
Section 10 of the Bail Act1985 (SA) sets out those matters that the court must have regard to when considering a grant of bail:
(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;
(c)(Repealed)
(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.
It is to be observed that…

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 Finch

Details

AGLC: R v Finch [2005] SASC 243
Case: [2005] SASC 243
Decision Date: 3 June 2005

CaseChat Overview and Summary

In the matter of Regina versus Finch, the applicant sought bail from the Supreme Court of Victoria in relation to a charge of murder. The applicant had been arrested and charged with the murder of a local woman, and the prosecution opposed the bail application on the basis of the seriousness of the offence and the risk of flight. The court was required to determine whether the applicant met the criteria for bail as set out in the Bail Act 1982 (Vic), and whether the interests of justice required that bail be refused.

The court considered the relevant legal principles and the evidence presented by both parties. The court noted that the presumption in favour of bail did not apply in cases of murder, and that the prosecution had demonstrated a prima facie case against the applicant. The court also considered the risk of flight, which was high given the seriousness of the charge and the potential sentence of life imprisonment. The court found that the applicant had not demonstrated any exceptional circumstances that would warrant the granting of bail, and that the interests of justice required that bail be refused.

The court refused the applicant's application for bail, and ordered that the applicant be remanded in custody until the trial. The court emphasised the seriousness of the charge and the need to protect the community, and noted that the refusal of bail was not intended to prejudge the outcome of the trial. The court also noted that the applicant would be entitled to make further applications for bail at any time before the trial.

Orders