R v GARDINER

[2005] SASC 353

Supreme Court of South Australia

(Criminal: Application)

R v GARDINER

Judgment of The Honourable Justice Gray (ex tempore)

8 September 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL

Crown application to revoke grant of bail by a magistrate - applicant charged with murder - consideration of s 10 of the Bail Act 1985 (SA) - consideration of presumption in favour of bail - consideration of nature of Crown allegations and seriousness of the offence - risk of intimidation of witnesses or interference with evidence - risk of offending whilst on bail. Held: Crown application to revoke bail granted - bail revoked.

Bail Act 1985 (SA) s 10, referred to.
R v Collie (No 2) (2002) 220 LSJS 236; Dietrich v The Queen (1992) 177 CLR 292; Webb v The Queen (1994) 181 CLR 41; Pfening v The Queen (1995) 182 CLR 461; Weissensteiner v The Queen (1993) 1789 CLR 217, considered.

R v GARDINER
[2005] SASC 353

Crown Application for Review of Bail

GRAY J:

1. This is an application by the Crown to revoke a grant of bail by magistrate.

2. In considering the application, I have had regard to the affidavit evidence presented by the Crown and to the submissions put by counsel for the Crown and counsel for the accused.[1]

   [1] R v Collie (No 2) (2002) 220 LSJS 236.

3. I have considered the provisions of the Bail Act 1985 (SA), which sets out the criteria by which I must resolve this matter. 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.

4. The allegations made by the Crown are grave.  They directly implicate the accused in the murder of Shane Francis Casey.  Mr Casey’s body was found bound by the side of the road. He was barely alive and he died later in hospital. He had been severely beaten.

5. On the Crown case, the accused had been involved at least in part with the beating.  It is said that vehicles linked to the accused had been involved in the events. One of those vehicles was located burnt out.

6. On the Crown case, those involved in the crime were and remain prepared to tamper with evidence. Reference was made to the destruction of the vehicle and also to a letter by a co-accused, said to be threatening to a witness or witnesses.

7. Very broadly, it is alleged that the accused was responsible, with a co-offender, for taking the victim to the location where another co-offender was residing. This was for the purpose of effecting retribution in regard to what was said to be either a drug-related theft or a drug-related matter.

8. On the Crown case, at the time the accused arrived in company with the victim, the victim displayed some signs of injuries.

9. According to the Crown witness declarations, the victim attempted to flee, but was chased and stopped by the accused and then severely kicked and beaten by both the accused and the co-offender.  The accused and a co-offender then forcibly put the victim in the back of a vehicle. 

10. On the Crown case, the accused and co-offenders then travelled with the victim to another location and, later, from that location to the side of the road where the victim was left.  The vehicle used was said to be associated with the accused and was later burnt out.

11. There are a number of factors that favour the continuance of bail. They include the presumption of innocence[2] and what has been described as the statutory presumption in favour of bail.  In addition, there is the fact that the accused has respected his home detention bail for the short period that he has been on bail.  There are also his general family circumstances, including the needs of his disabled father and his young child.  The fact that the charge is probably some 12 months away from trial is also a relevant factor to be weighed.

    [2] For discussion of the principle of general deterrence see Dietrich v The Queen (1992) 177 CLR 292; Webb v The Queen (1994) 181 CLR 41; Pfening v The Queen (1995) 182 CLR 461; Weissensteiner v The Queen (1993) 178 CLR 217.

12. However, notwithstanding these factors, I consider that bail in this case should be revoked. I have reached that conclusion having regard in particular to the gravity of the Crown allegations.

    As earlier observed, on the Crown case, the accused was directly implicated in many of the events leading up to the death of the accused.  The gravity of those allegations alone would be sufficient reason to revoke bail.

13. I have also had regard to the credible material suggesting there is a risk of destruction of evidence.  I refer again to the destruction of the motor vehicle.  I also refer to the risk of the intimidation, or possible intimidation, of witnesses, although in that respect, the evidence against this accused is less direct.

14. The accused faces a number of other serious charges.  He has demonstrated, on the Crown case, a lack of respect for authority. His willingness to provide a false name to police is example of such a lack of respect.  Also of concern is the locating by police of a sawn-off double barrel shotgun in a room at his parents’ home.  This firearm was, on the Crown case, identified as being stolen. Hydroponically grown cannabis plants were also located at the parents’ home.  These matters might suggest that even if bail were to be granted, residence at the parents’ home would not be appropriate.

15. On another occasion cannabis packaged for sale, together with scales, on the Crown case, have been located in a vehicle being driven by the accused but said to be owned by his sister.

16. The association of the accused with cannabis both being grown and packaged together with his association with the stolen sawn-off shotgun are material matters to be weighed when considering the revocation of bail.

17. The grant of bail is revoked.