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 bail is to be granted unless the bail authority considers that the applicant should not be released on bail. In Halas[3] it was observed:[4]
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.
[3] (2001) 81 SASR 1.
[4] (2001) 81 SASR 1 at [8].
The Crown opposed bail. It was alleged that the applicant committed the crime of murder of Karim Morrison, who was 18 years of age at the time of death. The murder occurred on the night of 25 May 2004. A firearm was used. Mr Morrison was shot twice, once high on the shoulder and once in the neck. One bullet entered his brain. On the Crown case, the murder was connected with drug dealing. The Crown relies on circumstantial evidence. The allegations are very grave.
Counsel for the Crown submitted that there was a risk that the applicant would abscond given the gravity of the charge and the consequences that he would face if found guilty. Moreover, it was submitted that there was a significant risk that the applicant would re-offend.
Counsel for the Crown further submitted that there was a risk that the applicant would interfere with witnesses if granted bail. Some witness’ statements indicate that the applicant has attempted to hide amphetamine paste involved in events associated with the murder. The firearm used in the murder has not yet been recovered. Some witnesses, according to the police, have given statements and then subsequently refused to sign them. It was submitted that a possible explanation for this may have been interference by the applicant.
The accused is 19 years of age. Notwithstanding his relative youth, he has a number of criminal antecedents, including a crime involving serious violence, two offences of being in possession of drugs for sale and a number of breaches of bonds and of bail. He has also been convicted of the offence of assist offender and on several occasions with failing to truly answer questions.
The Crown emphasised the applicant’s previous failures to comply with court orders and bail agreements as supporting its opposition to bail. It was said that the Court could have no confidence that the applicant would answer his bail.
The applicant’s counsel submitted that the breaches of bail arose from either very minor offending or as a result of confusion on the part of the applicant. It was said that the applicant is now fully apprised of the consequences that flow from non-compliance with a bail agreement.
Two breaches of bail occurred in November 2001. A further three breaches of bail occurred in August 2004. The applicant’s breaches of bail are serious matters. On the information provided to the court, they cannot be characterised as minor, technical or trivial breaches. One involved a breach of home detention bail by engaging in criminal conduct.
A primary submission advanced by counsel for the applicant was the length of time that the applicant would be on remand in custody pending trial. The applicant has been on remand for some seven months. His trial is not due to be heard until February 2006. The applicant will then have spent approximately 15 months in custody. This is a serious consideration. However, it is relevant to record that the Court offered a trial date in October 2005. The offer was not accepted by the applicant as his counsel of choice was not then available.
The applicant offered to comply with any term of bail, including home detention with electronic monitoring. It was submitted that the accused has a suitable address that has been approved on a Home Detention report. The Court heard evidence from Cheryl Rawson. Ms Rawson supervised the accused during a previous period that he spent on home detention. The effect of Ms Rawson’s evidence is that the applicant, during his 12-month stay at her house, complied with all of the conditions of his home detention and did not cause her concern. The applicant’s parents are prepared to act as guarantors. This evidence must however be considered against the background of the applicant’s repeated breaches of bond and breaches of bail.
Counsel for the applicant further submitted that there was no risk that the applicant would abscond and that there was no risk to witnesses. This, it was said, was evidenced by the period between the date of the offence, 25 May 2004, and the date of the applicant’s arrest, 26 July 2004, during which the applicant was at large and made no attempt to flee or to interfere with witnesses.
The circumstances of the alleged offending are grave. The Crown case as outlined indicates clear links between the accused and the alleged murder of Mr Morrison. Evidence of motive and opportunity has been identified. Evidence linking the accused to the murder scene, has also been outlined.
The applicant’s prior breaches of bail suggest that there is a real risk that the applicant will not comply with his terms of bail including answering his bail. There is a risk that he will interfere with witnesses. There is a risk that the applicant, given his apparent extensive drug history, will offend again. These matters weigh heavily against a grant of bail.
In all the circumstances I consider that the accused should not be released on bail. The application for bail is refused.