R v H, Im - [2006] SASC 94

Supreme Court of South Australia
(Criminal: Application)
R v H, IM
Reasons for Decision of The Honourable Justice Bleby (ex tempore)
17 March 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL
Application by accused for review of bail - Where applicant had been on bail for sexual offences - Applicant later charged with offence of inducing victim to not give evidence at trial, contrary to Criminal Law Consolidation Act 1935 (SA), s 244(1) - Consideration of Magistrate's reasons for refusing bail - Consideration of likelihood of applicant intimidating or suborning witnesses again - Bail Act 1985 (SA), s 10 - Whether presumption in favour of bail displaced - Other relevant factors considered - Bail granted with conditions.
Criminal Law Consolidation Act 1935 (SA) s 244(1); Bail Act 1985 (SA) s 10, referred to.
R v Iskra [2002] SASC 334, applied.
R v Jenner & Masters (2000) 110 A Crim R 512; Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303; Tillmann's Butcheries Pty Ltd v Australasian Meat Industries Employees' Union (1979) 42 FLR 331, considered.

R v H, IM
[2006] SASC 94

BLEBY J (ex tempore) The applicant was charged with and is awaiting trial on three counts of indecent assault of a person under the age of 12 years, two counts of indecent assault of a person over the age of 12 years, one count of gross indecency with a person under the age of 16 years, two counts of unlawful sexual intercourse with a person under the age of 12 years and two counts of unlawful sexual intercourse with a person under the age of 17 years (“the sexual offences”).
The offences were allegedly committed on the applicant’s daughter between February 1976 and December 1985 when his daughter was between the ages of 6 and 15. They are serious offences with maximum penalties ranging from three years imprisonment to imprisonment for life for each offence. The applicant’s trial for the sexual offences was listed to commence in the District Court on 20 February 2006. He is also separately charged with failing to keep a firearm secured in accordance with the firearms regulations.
The applicant is aged 63. He has no previous convictions and had been on bail for the sexual offences since 1 July 2005. He has been in regular employment for many years.
It was a condition of his bail in respect of the sexual offences that he not contact directly or indirectly or by a third person six named people, including his daughter. Those people include his former wife and the daughter’s mother, his daughter’s children, his former wife’s present partner and their children.
On 15 February 2006, the applicant was arrested and charged with offering a benefit to his daughter as a reward or inducement for not giving evidence, contrary to s 244(1) of the Criminal Law Consolidation Act1935 (“the bribery offence”). The maximum penalty for that offence is seven years imprisonment. That, too, is a serious offence which strikes at the heart of the judicial system and is designed to undermine the proper resolution of matters before a court of law.[1]
[1] R v Jenner and Masters (2000) 110 A Crim R 512 at 524, [72]; [2000] SASC 98 at [72].
A Magistrate refused bail for the bribery offence on 16 February 2006. This is an application to review that decision.
The arrest of the applicant on the bribery offence took place a matter of days before the applicant’s trial was due to commence on the sexual offences. The Magistrate was informed by the prosecution that they would be seeking to vacate the trial date in order to join a further charge or charges against the applicant relating to the bribery offence.
The Magistrate, in refusing bail, was not concerned with the seriousness of the offence alone, nor with the possibility that the applicant might abscond. The Magistrate did not consider, if the trial on the sexual offences proceeded as then planned, that there was any prospect of the applicant interfering with witnesses again. However, he did consider that if the then trial date for the sexual offences was to be vacated and further charges added, there was a possibility that, if released, the applicant might interfere with prosecution witnesses. When combined with the seriousness of the bribery offence the Magistrate considered that the presumption in favour of bail was displaced.
There seems to be little doubt that there was a discussion between the applicant and his daughter about the payment of money in relation to her giving evidence at his trial on the sexual offences. There also appears to have been some involvement of the applicant’s son in arranging the contact. The applicant foreshadows possible weaknesses in the prosecution case and the prospect of defences open to the applicant on the bribery offence. However, I am prepared to assume, against the applicant, that there is a reasonably strong case against him on the bribery offence.
In fact, the applicant’s trial on the sexual offences was vacated on the application of the prosecution. It is now due to commence on 1 May 2006. The prosecution is likely to seek to join the bribery offence in the same information, although the applicant is yet to be committed for trial on that offence.
The prosecution opposes bail on the grounds of the gravity of the bribery offence, the likelihood of the applicant re-offending, the likelihood that he would intimidate or suborn witnesses and his failure to comply with the bail agreement in respect of the sexual offences. In this case, the likelihood of re-offending and the likelihood of intimidating or suborning witnesses really constitute the same ground. The alleged failure to comply with the bail agreement is also founded on the applicant’s alleged conduct constituting the bribery offence.
I agree with the Magistrate that the gravity of the offence in itself is insufficient to displace the presumption in favour of bail. Many of the sexual offences for which he is on bail are much more serious than the bribery offence. The principal objection of the prosecution to the granting of bail is based on the likelihood that the applicant will intimidate or suborn witnesses in the trial of the sexual offences, and thereby commit a further offence in the nature of the bribery offence.
The relevant requirement of s 10 of the Bail Act1985 is that the court should release the applicant on bail “unless having regard to … the likelihood (if any) that the applicant would, if released … intimidate or suborn witnesses”, the court considers that the applicant should not be released on bail.
In my opinion, that does not mean that the presumption in favour of bail can only be displaced if the court is satisfied that it is more likely than not that such action will be taken. The words “likely” and “likelihood” assume different meanings in the statutory context in which they are used.[2]
[2] Compare the discussion on the use of the word “likely” by Bray CJ in Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 309-313, and that of Deane J in Tillmann’s Butcheries Pty Ltd v Australaslian Meat Industries Employees Union (1979) 42 FLR 331 at 346-348.
In the context in which it appears in s 10 of the Bail Act, the phrase “the likelihood (if any)” that the applicant would do certain things contemplates that there is a range of possibilities that must be considered by the court from a very small likelihood, or a mere possibility, to a very strong likelihood, or a high degree of probability. The greater the likelihood of the events happening, the more inclined a court would be to hold that the presumption in favour of bail is displaced.
Furthermore, as Lander J observed in R v Iskra[3] the mere fact that a person may have an opportunity to intimidate or suborn a witness does not mean that there is a greater likelihood that he will do so. What must be assessed in this case is the likelihood, if any, that between now and 1 May 2006 the applicant will intimidate or suborn a witness.
[3] [2002] SASC 334 at [28].
The applicant is now aware that any attempt on his part to intimidate or suborn the alleged victim of the sexual offences is likely to be reported to police. The evidence of his attempts to do so on the previous occasion involved the use of plain‑clothes police who carried a concealed listening device to record the conversation. I would assess the likelihood of his now attempting to suborn or intimidate that witness as being very low. The other likely material witness in the trial on the sexual offences is the alleged victim’s mother, the applicant’s former wife. Having regard to her reported disapproval of the applicant’s reported and observed abuse of the victim and the termination of the relationship between the applicant and his former wife, I would assess the likelihood of her being suborned or intimidated as being very low.
I suppose there is some possibility of the applicant attempting to suborn or intimidate his son in relation to the bribery offences. That is a possibility which cannot be overlooked. On the other hand, the applicant will now be aware of increased police vigilance on his movements and of the consequences of any further attempts on his part. Furthermore, it must be remembered that there has been no suggestion of any threat of physical harm to an intended witness. The evidence suggests that any intimidation or suborning of witnesses by the applicant, if it occurs, is likely to be by way of bribery or non-physical inducement. That is something which can be achieved just as successfully by a person in custody as by a person who is not. All that is required is a cooperative third party and access to funds. In that respect, confining an accused person in custody pending trial may well make little difference to the likelihood of the relevant conduct occurring. It would be different if there had been some threat of physical violence. Accordingly, if the likelihood of the applicant intimidating or suborning witnesses were to be regarded as reasonably high, refusing him bail would not materially diminish that likelihood.
I am not concerned in these proceedings with the guilt or innocence of the applicant of the sexual offences or of the bribery offence. Nor am I concerned with whether he is guilty, through committing the bribery offence, of a breach of his earlier bail agreement. My concern in respect of the latter is whether that indicates he is unlikely to comply with the terms of any bail agreement with respect to the bribery offence. The only suggestion of a breach of the earlier bail agreement is by way of contacting the victim of the sexual offences and by committing the bribery offence. No other threatened or actual breaches of bail are suggested. As I have said, the likelihood of that occurring again and of any further attempt to intimidate or suborn is not very high. It follows that the likelihood of the appellant committing a breach of any bail agreement in respect of the bribery offence is also not very high.
There are other relevant factors which favour the granting of bail. An obvious one is the desirability and need of the applicant to continue in employment and to enable him to prepare, as best he can, for his defence. Another is that, although there is no definitive opinion before me from a suitably qualified medical specialist, there is some evidence of the possibility of the applicant suffering from ischemic heart disease for which, if he has a repeat of the chest pain and breathlessness which he has allegedly recently suffered, he will need access immediately to appropriate emergency hospital treatment. There is a considerable risk that that might not be available to him in a timely fashion if he were in custody.
On the whole, in the unusual circumstances of this case, I am satisfied that the presumption in favour of bail has not been rebutted. I propose to grant bail. I have considered the question of bail on home detention conditions, but in the circumstances of this case I think that would make little difference.
The applicant lives alone. He is not required through employment or any domestic arrangements to have contact with his daughter or his former wife. He lives in a house as a tenant of his son. I am informed that his son is jointly charged with the applicant with the bribery offence or with some related offence. If the applicant is to be released, the conditions of his bail will need to be more stringent than those applicable to the bail agreement in relation to the sexual offences. Before being released the applicant will be required to pay into court the sum of $5000 to be forfeited to the Crown in the event of a breach by the applicant of the bail agreement. There will be a condition that he reside at the address shown in the information.
There will be a further condition that he not contact any of the persons named in the earlier bail agreement and that he will not contact, other than through his solicitors, his son.