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…

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 H, Im

Details

AGLC: R v H, Im [2006] SASC 94
Case: [2006] SASC 94
Decision Date: 17 March 2006

CaseChat Overview and Summary

The matter of R v H, Im was an application for bail review by the accused, who was already on bail for sexual offences. The applicant faced a new charge of inducing a victim to not give evidence at trial, contrary to section 244(1) of the Criminal Law Consolidation Act 1935 (SA). The case was heard by the District Court of South Australia. The primary legal issue for the court to decide was whether the presumption in favour of bail, as outlined in the Bail Act 1985 (SA), section 10, was displaced by the risk of the applicant intimidating or suborning witnesses again.

The court considered the Magistrate's reasons for refusing bail, including the likelihood of the applicant intimidating or suborning witnesses. The court also assessed other relevant factors such as the seriousness of the offence and the impact on the community. It was noted that the applicant had been on bail for sexual offences, and the new charge further highlighted the risk of witness intimidation. The court determined that while there was a risk of reoffending, the presumption in favour of bail was not entirely displaced. The court granted bail with conditions, including strict requirements to prevent any form of communication with witnesses and other specified constraints.

The court's decision was grounded in a careful assessment of the risk of reoffending against the presumption of bail. It was concluded that, despite the risk, the applicant was entitled to the presumption of bail unless there were compelling reasons to the contrary. The court was satisfied that the conditions imposed would adequately mitigate the risk of witness intimidation. In light of this, the application for bail was granted with stringent conditions.

Orders