R v Hepworth No. DCCRM-02-792

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;
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(d)     any need that the applicant may have for physical protection;
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(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.
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(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 (1947) 64 WNNSW 100 at 101 it was said that the likelihood of a conviction for the crime charged was the safest test for whether bail should be granted, and was of equal importance to the criterion of the probability of the accused attending at the trial. The Second Reading speech in the Legislative Council for the Act on 14 November 1984 (Hansard 1849-50) shows Parliament intended to liberalise the common law for the granting of bail to unconvicted persons and to recognise their presumption of innocence in their eligibility for bail. In relation to s10 it was said at 1850:
“Subsection (1) provides that, in relation to a person who has not yet been convicted of the offence charged, the bail authority should grant bail unless it considers, for reasons specified in the legislation, that the person should not be released.” (underlining added)
In view of the importance of probability of conviction as a criterion at common law for the refusal of bail it is clear that by not repeating it in s10(1) Parliament was deleting it as a criterion in its own right which was to be considered by the Court on bail applications. In view of its prominence at common law it could not have been intended to have been subsumed in (1)(g) under “any other relevant matter”.
Accordingly, I consider that the likelihood of conviction or acquittal is not a criterion in its own right under s10(1) to which the Court can have regard in refusing bail to an unconvicted person. This is giving effect to the presumption of innocence. It may be that the probability of conviction is relevant to the likelihood of the accused absconding, which is a criterion under (1)(b)(i), but there would usually need to be other indicators of a likelihood to abscond before the Court would go into the probability of a conviction as being relevant on that head to the refusal of bail. In this matter there is no other indicator of any likelihood of the accused absconding. Thus I decline to have regard to any alleged strength or weakness of the prosecution case.
The other issue of significance in this matter was the prosecution’s submission that the victim required protection from the accused. This is a criterion for the refusal of bail under (1)(d). It is also relevant under s10(4). Section 10(4) was introduced by an amendment in 1994. It would seem to supersede (1)(d). By its preamble it overrides the statutory presumption for bail in (1) in situations to which it applies. In R v Blair, (Gray J, 21/12/01, Jud No [2001] SASC 430, unreported) it was held for the purposes of (4) the perception of the victim must be reasonable in all of the circumstances and not fanciful or far-fetched and the test for determining whether the victim need physical protection is both objective and subjective.
The only evidence about the victim’s need of protection from the accused was what was contained in the depositions. The accused had visited the victim’s home on a few occasions prior to 1 January 2002. They were acquaintances but they did not have any close relationship. The victim alleges that on 1 January 2002 the accused grabbed her by the throat and punched her, but it is not suggested that she thereby suffered any significant injury. In her declaration of 28 March 2002 she stated she remained in fear of the victim and if possible would seek a restraining order to stop him from approaching or contacting her or her children and to stop him from attending any place where she might be. On 8 August 2002 she made a further declaration in which she said she had left the house in which the offences had occurred and was too scared to return there and she remained in fear of the accused and did not want to come across him again. I was told there were other proceedings in the Magistrates Court against the accused in which the victim was the subject of some offence, but I was not given any details of it. There was no suggestion that the accused has attempted to contact the victim while he has been on remand. There is nothing to show that the accused knows where she now lives.
While I accept that the victim is fearful of the accused and has concerns for her safety at the present time they are not of such magnitude that they cannot be dealt with by the equivalent of a restraining order in the bail conditions. They are not sufficient under s10(1)(d) or (4) of the Act to justify refusing bail to the accused.
I acknowledge that the accused has a long criminal record, but that does not in itself establish any likelihood that he would offend again if released on bail. I consider that his offer of two guarantors, and the other conditions to be imposed on his bail, are such that the criteria in s10(1) and (4) do not justify refusing him bail.
The accused will be granted bail in his own agreement of $2,000 and upon the following conditions:
1.Two guarantees in the sum of $2,000 are to be given by each of Robert Hentschke and Byron Mordaunt.
2.The accused is to reside at 79 Pratt Avenue, Pooraka.
3.The accused is to report weekly to a police station.
4.The accused is not directly or indirectly approach or contact the victim or her children or knowingly go within 100 metres of any house in which they are residing.
I will hear submissions on the precise wording of the bail agreement.

[2002] SADC 153

6 December 2002