R v Hantis

[2004] NSWSC 153

CITATION:

R v HANTIS [2004] NSWSC 153

HEARING DATE(S):

4 March 2004

JUDGMENT DATE:

4 March 2004

JUDGMENT OF:

Levine J

DECISION:

Application for bail refused

CATCHWORDS:

Application for bail - exceptional circumstances

LEGISLATION CITED:

s9C Bail Act 1978

PARTIES :

REGINA

v

JACQUES LOUIS GUY HANTIS

FILE NUMBER(S):

SC 71116 OF 2004

COUNSEL:

D Laird
(Crown)

D Pullinger
(Applicant)

SOLICITORS:

DPP
(Crown)

W R Goodman & Associates
(Applicant)

- 1 -

Ex tempore: revised
[2004] NSWSC 153

N THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

THURSDAY 4 MARCH 2004

71116 OF 2004

REGINA v JACQUES LOUIS GUY HANTIS

JUDGMENT – Application for bail

(VIDEOLINK TO LONG BAY CORRECTIONAL COMPLEX)

1 This application for bail falls for consideration pursuant to s9C of the Bail Act, which was enacted in the Bail Amendment legislation in 2003. That section provides that an authorised officer or court is not to grant bail to a person in respect of an offence of murder unless the court is satisfied that “exceptional circumstances” justify the grant of bail.

2 In the second reading speech in the New South Wales Parliament a Mr Gaudry on behalf of the Attorney General moved that the bill containing the clause that became this section be read a second time and said that the bill was to provide for (three) things: “first, to prevent a person who is accused of murder from being granted bail other than in exceptional circumstances”. And later on he said:

“Exceptional circumstances will be left to the court to decide on an individual case-by-case basis. However, as a general guide it might include cases including a battered wife, or a strong self-defence case or a weak prosecution case. It might also include a case in which the defendant is in urgent need of medical attention or who has an intellectual disability, or a case in which the court is satisfied that the offender poses no threat to the victim or the community”.

3 I will not remark upon the notion of a person charged with murder posing no threat to the victim of the murder.

4 This is the first occasion in which I have had to consider the operation of s9C and the circumstances of the application are themselves extraordinary. Shortly stated, the applicant shot the victim and thereafter unsuccessfully sought to shoot himself, suffering injury apparently to the side of his head.

5 The evidence before me principally is constituted by three reports of Doctor Westmore, of 8 and 15 December 2003, and 19 February 2004. It is clearly Doctor Westmore’s view that the applicant should be admitted to a psychiatric facility for ongoing assessment. He needs regular psychiatric reviews and at present does not receive them. The applicant’s depression needs aggressive management and he requires psychiatric and psychological counselling to help him understand and address the events which led to his present situation.

6 An institution known as St John of God Health Services is recommended by Doctor Westmore, whose opinions always enjoy respect, as a place where the regime could be initiated. It is a place from which the applicant, if released to bail, is at perfect liberty to leave. What is the concern of that situation? The concern is - and this is acknowledged by Doctor Westmore in his evidence - that, whilst he may leave the St John of God Centre in circumstances which give cause for no alarm at all, after leaving, he could, as Doctor Westmore acknowledges, exhibit what has been described in fairly stark terms, suicidal or indeed homicidal behaviour, whereupon, of course, anything would be possible. Of the things that are possible, the evidence points to the more likely being self-harm.

7 How, if granted bail, the applicant, Mr Hantis, would get from Long Bay to Burwood is not known and, without further information, I do not know whether I am in a position to require of St John of God Medical Centre an obligation on it to go to Long Bay to pick him up. Other organisations in the City do provide this service I know.

8 Mr Hantis is next to appear at the Nowra Local Court on 16 March for mention. What is quite clear is that it will be quite some time before any trial for murder, if there be a trial for murder, takes place. That is more often than not an incident, and an unfortunate one, of the administration of criminal justice generally.

9 The extraordinary circumstances to which I have referred of this applicant being where he is because he failed to commit suicide cannot of themselves constitute exceptional circumstances under s9C, nor can the delay in the processing of his charges. The one matter of concern is the need for medical attention. However, the circumstances in which Doctor Westmore suggests that they could be provided contain flaws, to which I have referred, in relation to the liberty of the applicant at that place, which derogate from the medical aspects at this stage being exceptional.

10 This is a very difficult application and it is difficult for me to take the step I propose to, namely to refuse it. It seems to me that, while Parliament has been good enough to let judges or other officers decide case by case what are exceptional circumstances, I can say in relation to this one that far more information about the precise regimes of service and treatment at such an institution as St John of God Medical Centre, including transport arrangements, whether there are in place protocols in connection with the local police station or other historical examples of success, even though presumably before s9C would be of much assistance. But in the instant application it is refused.

11 PULLINGER: Would your Honour grant liberty if there is further material to--

12 SPEAKER: He’s passed out, your Honour.

13 PULLINGER: Would your Honour perhaps grant liberty to approach your Honour’s Associate if we’re able to supplement that material?

14 SPEAKER: Hantis, Hantis, can you hear me?

15 PULLINGER: I need to know that, your Honour. I appreciate your Honour has determined the application. It just appears that to perhaps recall the material that your Honour’s already privy to, if we’re able to then provide some supplementary material that addresses the matter of concern that your Honour’s addressed.

16 HIS HONOUR: You would have to do it by tomorrow.

17 PULLINGER: We’ll see what we can do by tomorrow, your Honour.

18 HIS HONOUR: Otherwise I would direct that any new application be dealt with instanter by the bails judge next week, whoever it is. But if you can get it by tomorrow I would reconsider it. What are your views, Mr Crown?

19 LAIRD: I think there’s certainly an avenue that would overcome the provisions of 22A, your Honour.

20 HIS HONOUR: Yes, I thought I’d made it quite clear the one window that has to be properly dressed and that’s the one that concerns the Crown and concerns me, and if it can be done by tomorrow--

21 LAIRD: I’ll remain with the matter and I’ll await Mr Pullinger’s call.

22 BENCH: I will relist it for tomorrow. You can do that by arrangement with my Associate.

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Last Modified: 03/12/2004