R v Gassy No. Sccrm-03-218

R v GASSY
[2003] SASC 348
Application for Bail

GRAY J This is an application for bail.
The accused, Jean Eric Gassy, is charged with the murder of Margaret Julia Tobin at Adelaide in South Australia on 14 October 2002.
On 4 April 2003 a magistrate refused bail. The magistrate identified the gravity of the alleged offending as the basis for the refusal. This is a fresh application for bail.
In Collie (No.2)[1] the court considered the approach to be taken to the reception of material relevant to pre-trial bail applications:
[1] [2002] SASC 247 at [8]
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.
These observations are also relevant to the way in which the material placed before this court is to be assessed.
Section 10 of the Bail Act 1985 (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(c)(Repealed)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[2] the court observed:
[2] (2001) 81 SASR 1
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[3], R v Duke[4], R v Anderson[5], R v Miller[6], R v T[7]. 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] Unreported 24 August 1999 - Wicks J
[4] [1999] SASC 431
[5] Unreported 11 March 1997 - Bollen J
[6] Unreported 22 December 1999 - Mullighan J
[7] Unreported 8 September 1999 - Lander J
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.
The accused claimed that there were significant weaknesses in the Crown case. He criticised the alleged identification evidence. He argued that there was no evidence of any real motive. He drew attention to suggested inadequacies in the forensic evidence and drew particular attention to the pattern of gun shot wounds to Dr Tobin’s body. It was the accused’s contention that the Crown case was weak.
The accused offered to comply with any term of bail, including home detention and electronic monitoring. He said that his father would act as a guarantor and was willing to come to Adelaide from Sydney and live with the accused. Substantial real estate securities were offered. However, no material was provided about the suitability of the proposed guarantor.
This paragraph is suppressed
I reject the submission of the accused that being in custody has compromised his medical treatment. The accused has been seen by a number of medical practitioners, the remainder of this paragraph is suppressed.
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.
I reject the accused’s submission that the preparation of his defence will be unfairly compromised by his being in custody. Bare assertions by the accused that he does not have computer facilities and that he has been unable to procure legal textbooks are not sufficient to make out this complaint. It would appear that the accused or his family have some financial resources. The offers of security with regard to bail suggest that those resources are substantial. The accused has not disclosed what attempts he has made through private resources to obtain the equipment and books that he claims to require.
Counsel for the Crown accepted that reasonable medical attention and reasonable access to facilities with respect to the preparation, presentation and conduct of the defence case at trial were important matters. The court was informed that steps would continue to be taken to ensure that Mr Gassy was not prejudiced in these respects. Should difficulties be encountered Mr Gassy will be able to raise concerns with the relevant authorities, or the court, if necessary.
Counsel for the Crown broadly outlined the Crown case. On a number of important issues the proposed evidence was outlined in some detail. The circumstances of the alleged offending are grave, as is the crime itself. The proposed evidence addressed the issues of motive, planning, opportunity and identification.
This paragraph is suppressed.
This paragraph is suppressed.
The circumstances of the alleged offending are grave. The Crown case as outlined indicates clear links between the accused and the killing of Dr Tobin. Evidence of motive and opportunity has been identified. Evidence linking the accused to the murder scene, suppressed material, has also been outlined. This sentence is suppressed. The evidence suggests that the accused harboured a grievance toward Dr Tobin. These matters weigh heavily against bail.
In these circumstances I consider that the applicant should not be released on bail. The application for bail is refused.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1       [2002] SASC 247 at [8]
2      (2001) 81 SASR 1
3      Unreported 24 August 1999 - Wicks J
4      [1999] SASC 431
5      Unreported 11 March 1997 - Bollen J
6      Unreported 22 December 1999 - Mullighan J
7      Unreported 8 September 1999 - Lander J

[2003] SASC 348

3 October 2003