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 as factors in favour of granting home detention bail on the earlier occasion were reinforced. Counsel emphasised that Dr Gassy’s parents had now moved to Adelaide, rented city accommodation, were willing to act as guarantors and were prepared to provide substantial real estate securities to support the guarantees. These factors were said to be weighty considerations in favour of a grant of bail. It was submitted that these considerations would militate against any risk of Dr Gassy absconding.
During the previous application for bail Dr Gassy made a number of submissions about the problems he faced on remand in preparing his defence. These submissions were summarised as follows:
The accused informed the court that he intended to represent himself at his trial. It was submitted that adequate facilities to enable him to prepare his defence were not available in custody. He complained in particular about the lack of a computer, the lack of access to word processing equipment and to law books.
These submissions were repeated on this occasion and pursued vigorously. Attention was drawn to material put before the trial judge in February of this year relating to difficulties Dr Gassy faced in preparing his defence.
The court sought further information to determine the facilities available to Dr Gassy in prison. In response to the court’s inquiry, counsel for the DPP provided a letter dated 3 May 2004 setting out the position as advised by the Yatala Labour Prison. The letter relevantly provided:
The accused is allowed to have his light on in his cell 24 hours a day. The accused will have an overhead light in the ceiling to use and the accused can purchase a lamp for use in his cell from the prison canteen. A socket for the lamp is available in the cell.
The accused has a desk in his cell.
The accused has access to folders, paper and pens. All of these items can be purchased from the prison canteen and can be kept in his cell for the course of the trial.
The accused will have a bookshelf as part of his desk where folders can be stored. The accused will have trays in drawers as part of the desk and he is also permitted to store folders on the floor. A cell inspection is conducted daily and whilst the accused must keep the cell neat and clean, he is not prohibited from storing the folders on the floor.
As a result of previous allegations made by the accused, the Yatala Labour Prison has already put in place a procedure whereby any requests by the accused to have material printed will be done through either:
The Unit Case Management Coordinator; or
The Unit Manager.
This procedure is in place to minimise the potential for further allegations and to ensure the accused’s confidentiality.
The Case Manager and Unit Case Management Coordinator will leave the prison and 6.00pm and will not return to the prison until 8.00am. If the accused returns form court at about 6:00pm and is then collected from the prison the following morning at 8:00am or thereabouts, it may not be possible to have the accused’s notes on the computer printed out before he leave for court.
(This would not however preclude the Courts’ Administration Authority from printing any notes upon his return to Court.)
In relation to visits to the prison, the prison’s policy is that no visitors are allowed into the prison after 4:00pm. On weekends the accused would be allowed professional visits up to 1 and a half hours in the morning and 1 and a half hours in the afternoon.
(This would not however preclude the accused having access to legal advisers at Court during the week.)
In substance the DPP outlined a set of procedures that should meet the reasonable concerns of Dr Gassy on remand preparing his own defence.
Counsel for Dr Gassy indicated that there was a further difficulty concerning the obtaining of legal advice by Dr Gassy. It was submitted that if bail was not granted the prospects of a fair trial would be put in jeopardy. This submission is rejected. There has been little information provided to support the suggestion that Dr Gassy has been compromised in the preparation of his defence.
As observed in the earlier reasons, bare assertions in this respect are not sufficient to make out the complaint. It should further be noted that the trial judge has the ability to take steps to ensure that Dr Gassy has sufficient time and appropriate facilities to deal with any particular circumstances of unfairness that may arise.
The matters raised in the earlier reasons remain of considerable concern and militate against a grant of bail. The circumstances of the alleged offending are grave. The Crown case provides clear links between the accused and the killing of Dr Tobin. Evidence of motive and opportunity have been identified. These matters weigh heavily against bail. Dr Gassy should not be granted bail, even on stringent terms and notwithstanding the substantial securities offered.
The application is refused.