R v Hepworth No. DCCRM-02-792 - [2002] SADC 153

R v GUY HEPWORTH
[2002] SADC 153
Judge Lunn
Criminal
REASONS ON BAIL APPLICATION

The accused is charged in this Court with aggravated serious criminal trespass in a place of residence, two counts of common assault and one of illegal use. All the offences are alleged to have taken place at Klemzig on 1 January 2002. A female (“the victim”) is the victim named in each count.
The accused has been in custody since at least 28 March 2002 when he was arrested on these matters, although for some of the time he has been serving other sentences. On 14 November 2002 he made his first application for bail. It was opposed by the DPP. I reserved my decision. His trial is now listed to commence on 29 April 2003.
I reserved my decision because two points of law arose in the course of the argument. The first of these was whether it was relevant to the exercise of my discretion whether the prosecution case against the accused was relatively weak because it allegedly depended principally on the word of the victim.
Section 10 of the Bail Act 1985 (“the Act”) provides:
“Discretion exercisable by bail authority
         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;
*************
(d)     any need that the applicant may have for physical protection;
............
(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.
..............
(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.”
Unlike the common law s10(1) creates a statutory presumption in favour of bail for an unconvicted accused which can only be displaced through the matters referred to in subparagraphs (1)(a)-(g): Farquar v Fleet (1989) 50 SASR 490 particularly at 493. The criteria in s10(1)(a)-(g) on which bail might be refused do not entirely correspond to the criteria which previously had applied at common law. In particular at common law the probability of conviction was a relevant criterion for the refusal of bail: R v Wakefield (1969) 89 WNNSW 325 at 331. In R v Watts

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.

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Details

Case: [2002] SADC 153
Decision Date: 6 December 2002

CaseChat Overview and Summary

The case of R v Guy Hepworth is before the South Australian District Court. The accused is charged with aggravated serious criminal trespass in a residential setting, two counts of common assault, and one count of illegal use, all of which allegedly occurred on January 1, 2002, in Klemzig. The victim in these charges is a female, who is identified in each count. Hepworth has been in custody since March 28, 2002, when he was arrested in relation to these matters. He made his first application for bail on November 14, 2002, which was opposed by the Director of Public Prosecutions (DPP). The judge reserved the decision and the trial was scheduled to commence on April 29, 2003.
The legal issues in this case revolve around the criteria for bail under the Bail Act 1985 and the relevance of the strength of the prosecution's case in determining bail. The judge examined whether the court should consider the likelihood of conviction or acquittal when deciding whether to grant bail to an unconvicted person. The Bail Act 1985 provides a statutory presumption in favour of bail for unconvicted accused persons, which can only be displaced if certain criteria are met. The court held that the likelihood of conviction or acquittal is not a criterion in its own right under s10(1) of the Bail Act 1985, and therefore, it could not be considered in refusing bail to Hepworth. The court also considered the victim's need for protection from the accused as a criterion for the refusal of bail under s10(1)(d) and s10(4) of the Act.
The court found that while the victim was fearful of the accused and had concerns for her safety, these concerns could be addressed through the bail conditions, which include a restraining order. The court also noted that the accused's criminal history did not necessarily indicate a likelihood of reoffending if released on bail. The court concluded that the criteria in s10(1) and (4) of the Act did not justify refusing bail to the accused. Therefore, the court granted bail to Hepworth in his own recognizance of $2,000, subject to certain conditions, including two guarantees of $2,000 each, a weekly police reporting requirement, and a restriction on approaching or contacting the victim or her children.

Orders