R v Haydock No. Sccrm-00-135

R v HAYDOCK
[2000] SASC 248

Bail Review

ex tempore

1................ Gray J Brett Lee Haydock (the defendant) has been charged with counts of aggravated serious criminal trespass, unlawful imprisonment, threaten life, assault occasioning actual bodily harm and common assault . He made application for bail on 21 June 2000. Mr Eardley SM refused bail and gave the following reasons:

"Application for bail refused having regard to the gravity of the offence for which the defendant was taken into custody and the likelihood he will abscond if released and intimidate the alleged victim."

The defendant's review application came on for hearing before Martin J on 26 June 2000. His Honour ordered bail assessment, and home detention reports and adjourned the matter to 10 July 2000.
It is alleged that the defendant and a co-offender came to the victim's house in the early hours of the morning. On the door being opened, the victim was struck severely about the face and head. He was then abducted. His life was threatened. He was subjected to physical violence whilst being driven to a different location.
It is further alleged that, following his escape, the victim was observed by police to have suffered obvious facial injuries. The victim said that the offences related to a dispute about amphetamines that he had supplied to the defendant and the co-offender. The victim was able to identify the defendant. DNA testing is being undertaken on blood found in the car and on the defendant's clothing.
The Crown opposed bail and opposed the making of a home detention order.
A Bail Enquiry Report was provided to this Court by an officer of the Department for Correctional Services. It was in part based on information provided by the defendant, his mother and his friends, Ms Idle and Ms Armener. Information was also obtained from the Manager of the OARS Hostel where the defendant had lived for a period. Regard was had to Court, police and departmental records and information received from the Western Australian Police Offender Information Bureau.
The report disclosed that the defendant came to South Australia about seven months ago. His parents live in Western Australia and he has no family ties in this State. Within days of his arrival he was arrested and on 20 January 2000, convicted of unlawful possession. He was released on a good behaviour bond which included conditions of supervision and community service. It is said that he breached the terms of that bond. He failed to undertake the community service ordered and failed to maintain contact with his community corrections officer. A departmental report of non-compliance has been submitted. The defendant offered the explanation that he couldn't find the time, as he was working at a Hotel.
According to the report, the defendant stated that he left Western Australia to get away from drugs. However, it is to be noted that he failed to appear as required in the Perth Magistrates' Court on six counts of fraud; and counts of stealing; possess cannabis; breach of violence following a restraining order. He was further charged with "no licence" and "giving a false name". A bench warrant was issued on 31 December 1999 and remains outstanding.
Following his arrest in South Australia, he was granted bail. He was to reside at an OARS Hostel. Ultimately he resided at an OARS Unit at 4/76 Bower Road, Semaphore. He was there for some months. He then moved to the next door unit and took up residence with Ms Armener aged 17. Ms Idle also resides at the same address.
The report discloses that the defendant failed to pay rent to OARS. On leaving, the unit was trashed and a large number of syringes were found. The report records the defendant's assertion that he has not abused drugs in Adelaide. His mother had described him as "going off the rails" three years ago, but that when she visited him in April 2000 he appeared better.
The report concludes:
"Given the defendant's absconding while on bail in Western Australia and his poor response to the bond he entered in January I have concerns about his likely response to bail conditions, particularly to a condition of 'home detention'. I have serious doubts about his assertion that he has not abused any drugs since leaving Western Australia.'
The charges against the defendant have been adjourned to the Christies Beach Magistrates Court on 29 August 2000. It was common ground that there is unlikely to be a trial in the matter until early next year. The reason for the delay has been the need for the police to follow up DNA testing on blood found in the car used in the alleged offence and on clothing of the defendant.
Counsel for the defendant submitted that the delay in the trial of the matter until early next year was an important factor to be considered in regard on the application for review. It was submitted that the defendant's criminal history was of recent origin. It was said that for the vast majority of his life he had been a law abiding person. The cause of his trouble was the breakdown in his relationship with his parents. The offences in Western Australia were directly related to his problems with his parents. It was submitted that as the defendant intends to reside in Semaphore, well distant from the alleged victim's residence in Morphett Vale, that contact was unlikely. The explanation offered in regard to the breach of bail in Western Australia was that he had come to South Australia to start a new life and that he had left Western Australia in a confused and upset state. It was submitted that the reason for his failure to meet the terms of his bond following his arrest and conviction in South Australia, was that he anticipated being able to work things out with the Department. I was informed that a cash surety from Western Australia could be provided.
It was submitted by the DPP that in view of his bail history, it was unlikely that terms of bail would be complied with. It was said that the applicant's girlfriend , Ms Armener, was an important Crown witness and that if the applicant were to reside with her intimidation or insubordination may occur. It was further submitted that the victim had very real fears about his safety.
Section 10 of the Bail Act 1985 (SA) relevantly provides as follows:
"10    (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;
...
(g)     any other relevant matter
(4). Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant."
In my view this application for review should be rejected. In forming this view, I have had regard to gravity of the offence, the risk of the applicant absconding and the risk of the applicant intimidating and subordinating a witness. I have had further regard to the applicant's failure to comply with the terms or conditions of bail in Western Australia. Another matter that I consider relevant, is the defendant's breach of the terms of his good behaviour bond. As directed by section 10(4) I have given primary consideration to the need the victim may have or perceive for physical protection from the applicant. The suggestion that the place of residence of the applicant at Semaphore would be a barrier to contacting the victim at Morphett Vale carries little weight in my mind.
It is important that this matter come to trial as soon as practicable, which I understand to be early next year. If there is to be any further lengthy delay in the matter coming to trial beyond that time it may be necessary to review the issue of bail.
The application to review Mr Eardley's refusal of bail is dismissed.

[2000] SASC 248

13 July 2000