R v Gassy No. Sccrm-03-218

R v GASSY

[2003] SASC 348

Application for Bail

1. GRAY J             This is an application for bail. 

2. The accused, Jean Eric Gassy, is charged with the murder of Margaret Julia Tobin at Adelaide in South Australia on 14 October 2002.

3. 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.

4. 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.

5. 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   (c)(Repealed)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.”

6. 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…