R v Gassy - [2004] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GASSY
Judgment of The Honourable Justice Gray
3 May 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL
Application for bail immediately prior to trial - applicant charged with murder - earlier application for bail refused - applicant submitted that risk of absconding was low due to parental supervision - applicant planned to represent himself at trial - applicant submitted that facilities at his place of detention were inadequate to allow him to properly prepare for the trial and would jeopardise his right to a fair trial - consideration of facilities available at place of detention - circumstances of alleged offending grave, nature of offending grave, no information to suggest that the applicant would be denied a fair trial if bail was refused - application for bail refused.
Bail Act 1988 (SA), referred to.
R v Gassy [2003] SASC 348, considered.

R v GASSY
[2004] SASC 202
GRAY J:

This is a further application for bail by Dr Gassy. This application for home detention bail with electronic monitoring was made on the eve of trial
Dr Gassy’s earlier application for bail was refused. Reasons were given on 3 October 2003.[1] In the previous reasons the history of the matter, the approach to be taken to bail and the relevant section of the Bail Act 1998 (SA) were discussed. These reasons remain relevant to the consideration of the present application. In the circumstances it is not necessary to repeat all of those observations in the present reasons.
[1] R v Gassy [2003] SASC 348.
In the previous reasons the Crown case was summarised as follows:
The Crown alleges that the deceased, Dr Tobin, was killed shortly after 2.30pm on 14 October 2002. At about that time she returned to the Citi Centre building in Adelaide and travelled by lift to the eighth floor. Dr Tobin travelled in the lift with three people. Two exited the lift at level seven leaving Dr Tobin and another person to travel to level eight. As she walked away from the lift on the eighth floor she was shot four times in the back. It was said that the accused remained in the lift and murdered Dr Tobin.
During the course of the present application, a proposed opening was provided by the Crown, outlining the Crown case in far greater detail.
In the earlier reasons the Crown submissions concerning what was said to be a psychotic state suffered by the accused were discussed. These submissions were repeated this occasion. The draft Crown opening provided further particularity said to support the Crown case. The earlier submissions were discussed in the earlier reasons but were suppressed from publication.
As noted on the earlier occasion, counsel for the accused maintained that there were significant weaknesses in the Crown case. It was said that these weaknesses should be given considerable weight when considering the application for bail.
The matters identified…

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 Gassy

Details

AGLC: R v Gassy [2004] SASC 202
Case: [2004] SASC 202
Decision Date: 3 May 2004

CaseChat Overview and Summary

The applicant, Gassy, applied for bail immediately prior to his trial for the charge of murder. His earlier application for bail had been refused. The central issues before the court were whether the risk of Gassy absconding was low enough to warrant bail, and whether the facilities at his place of detention were adequate for him to prepare for his trial. Gassy argued that his risk of absconding was low due to parental supervision and that he intended to represent himself at the trial. He also claimed that the facilities at his detention were inadequate and would jeopardise his right to a fair trial.

The court carefully considered Gassy's arguments but ultimately found that the circumstances of the alleged offending were grave, as was the nature of the offence itself. There was no information to suggest that Gassy would be denied a fair trial if bail was refused. The court also noted that the facilities available at his place of detention were sufficient for him to adequately prepare for his trial. Consequently, the application for bail was refused.

Given the gravity of the offence, the risk of absconding, and the adequacy of the detention facilities, the court found no grounds to grant bail. The court's decision was informed by the serious nature of the charge and the lack of any compelling reason to believe that Gassy would not abscond or that the detention conditions were inadequate for trial preparation. Therefore, the application for bail was dismissed, and Gassy remained in custody awaiting trial.

Orders