R v I, DM

[2013] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v I, DM

[2013] SASC 127

Reasons for Ruling of The Honourable Justice Nicholson

8 August 2013

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

Application by the Director of Public Prosecutions to review an order of a Magistrate granting home detention bail - due to statutory time constraints applicable to the hearing of such a review, the bail as granted was revoked during the hearing and a fresh (oral) application for bail heard.

Held:  bail refused.

Bail Act 1985 (SA) s10, s 10A, s 16, referred to.
Lavers v Fauser (1986) 41 SASR 593; R v P, AC [2005] SASC 451; R v Buhlmann [2010] SASC 123; R v Lombardi [2013] SASC 61, considered.

R v I, DM
[2013] SASC 127

Criminal:  Application for Bail

1. NICHOLSON J.  This matter came before me on a summons by the Director of Public Prosecutions for the review of a decision by a magistrate to grant the accused home detention bail.  However, by the time I came to hear the matter it was almost inevitable that the 72 hour period during which such a review must be completed[1] would expire before I would be able to make a considered determination of the Crown’s application.  Accordingly, and without opposition from the accused, I revoked the grant of bail and proceeded by hearing an immediate oral application for bail. 

   [1] Where there is an application by the prosecution for review of a grant of bail there is a statutory stay of the bail authority’s order pursuant to s 16 of the Bail Act 1985 (SA) pending a determination of the review but only for a maximum of 72 hours.

2. Apart from a brief additional period of time in custody pending my consideration of the matter, there would be no prejudice afforded to the accused (to whom I will hereafter refer as the applicant) as a result of this process.  A review in this Court of a bail authority’s decision to grant bail is in the nature of an appeal de novo.  The review is to be determined on the basis of the information placed before this Court which ordinarily includes the information that was before the bail authority whose decision is subject to review.  The Court is to reach a decision it would have made if it had been the bail authority hearing the application for bail.[2]  I am in the same position in hearing an oral application for bail; I have before me the material that was before the Magistrate when bail was first granted together with such other material provided during the hearing before me and I am to decide the question of bail afresh.[3]

   [2]    Lavers v Fauser (1986) 41 SASR 593 at 595-6.

   [3]    See generally, R v P, AC [2005] SASC 451 at [16]-[17] (Bleby J).

3. The applicant has been charged with the offences of aggravated serious criminal trespass in a residence which was occupied, for which the maximum penalty is life imprisonment; attempted aggravated robbery, for which the maximum penalty is 12 years imprisonment; and discharging a firearm intending to injure, annoy or frighten a person, for which the maximum penalty is eight years imprisonment.  All of the alleged offending is said to have occurred on 16 April this year.

4. Ordinarily, there is a presumption that bail should be granted subject to the assessment to be undertaken in accordance with s 10 of the Bail Act 1985 (SA) which provides as follows.

   (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;

   (iv)commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009;

   (d)     any need that the applicant may have for physical protection;

   (e)     any medical or other care that the applicant may require;

   (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.

   (2)Where the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail.

   (3)Where the applicant is a person who is appearing or is to appear before a court as a witness in proceedings (other than proceedings relating to an offence for which that person has been charged or convicted), the bail authority should, subject to this Act, release the applicant on bail unless there is a likelihood that the applicant would, if released, abscond.

   (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.

   However, in certain cases, there is a presumption against bail being granted.  Subsection 10A(1) provides:

   Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.

   Subsection 10A(2) sets out various circumstances in which an applicant for bail will be characterised for the purposes of s 10A(1) as a “prescribed applicant”. Subsection 10A(2)(e) provides that a “prescribed applicant” means [that is, includes]:

   [A]n applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988).

   Counsel for the Director submitted that the nature of the offending alleged against the applicant and the terms of s 10A(2)(e) enlivened the presumption against bail in the absence of special circumstances. That this was so was conceded by counsel for the applicant.

5. In the event that s 10A were to be engaged, bail is not to be granted unless the applicant can establish “special circumstances justifying [his] release on bail”. I am not satisfied that special circumstances have been established in this case. However, and in any event, even if I were to decide the matter pursuant to s 10, that is, on the basis that there is a presumption of bail as in the ordinary case, I would, in exercising the discretion open to me, refuse bail.

6. The allegations against the applicant, in summary, include the following.  At or about 8.30 pm on 16 April, TI, one of three complainants who were at their home address in Kudla, a community less than 10 kms south of Gawler, went outside the house.  TI’s female partner, LD, remained in the lounge area of the house and her son, CB (who was about 17) was asleep in one of the bedrooms.  Whilst outside, TI heard noises and upon looking saw three men.  They had their faces covered with a bandana or such like.  Two of the men approached him.  According to TI, one of them was carrying a sawn‑off or cut down rifle.  There was an altercation and he states that he saw a flash from the firearm which he believed was the firearm being discharged. 

7. TI engaged in a physical altercation with two of the men whilst a third man remained on the front deck of the premises.  TI was able to fend off the two men and he ran inside but they followed.  When he went inside, TI saw the third man standing in the lounge area with his partner, LD, lying on the floor.  The third man was standing over her and had in his hand what appeared to be a silver revolver.  It was pointed towards LD.  Demands were made of TI for money and drugs and TI was again physically assaulted.  The man who was standing over LD with the silver revolver fired a single shot.  At some time something that tasted of pepper was sprayed in TI’s face.  TI was able to flee from the lounge room into the kitchen.  Two of the offenders, including the one carrying the sawn‑off rifle, followed him there.  Again, demands were made for money and drugs.  Throughout these events TI denied to the offenders that he had any money or drugs.  According to TI he was again sprayed with the pepper‑like spray. 

8. However, at some point TI had an opportunity to obtain a knife that was in the kitchen and he used it to stab the male who was carrying the sawn‑off rifle in the belly.  According to TI, who claimed that this was in self‑defence, he pushed it into the man’s belly as far as it would go.  The two men in the kitchen, including the one who had been stabbed in the belly, ran off and left the premises.  TI went into one of the bedrooms of the house where he saw the third man.  TI used the knife to slash the third man and formed the view that he had slashed the left arm of that man. 

9. The events just described are said to have occurred between 8:30 and 9:10 in the evening and very soon after, following a call placed by the 17 year old CB at 9:12 pm, police attended the scene.  There was a substantial amount of blood at the premises and the knife, said to have been used by TI, was surrendered to the police.

10. Whilst at the complainants’ house, police received information that two males had attended at the accident and emergency section of the Gawler Hospital.  Police attended at the hospital at about 10:40 pm where they found MQ, a co‑accused in the matter, who was being treated for an injury to his left forearm and the applicant, who was being treated for a stab wound to his abdomen.  The applicant was later transferred to the Royal Adelaide Hospital for treatment.  As he was being prepared for surgery, two shot gun cartridges were located in his underwear by the medical staff and handed to the police.  In this respect, it is to be noted that TI described seeing the man whom be stabbed in the belly with what looked to him to be a sawn‑off or cut down .22 rifle, whereas CB, in his statement to the police, described seeing a side by side double barrelled sawn‑off shotgun.  CB also described another man holding a hand gun.

11. The Crown submits that the evidence, as summarised to this point, presents a strong circumstantial evidence case against the applicant to the effect that he was the man with the sawn‑off gun who was one of three men who engaged in a home invasion and committed the three offences with which he has been charged.  In this respect, the strength of the Crown case lies in the location of the two men at the Gawler Hospital, each with an injury consistent with those said to have been inflicted by TI, having strong proximity (both temporally and physically) with the events said to have taken place in the house at Kudla.  According to the Crown, the presentation of two men at the hospital within a quite short period of time after the described offences, one with a left arm injury capable of being caused by a knife and the other with a stab wound to the belly, is simply too much of a coincidence to be explained in a manner consistent with the innocence of the two men found at the hospital.  In addition, there are the two shot gun shells found in the underwear of the man with the belly wound.  According to TI, the man he stabbed in the belly was the man he observed to have been in possession of the sawn‑off rifle, also described by CB as a sawn‑off shotgun.

12. The applicant has indicated that he is not guilty of the charges and that they will be defended.  At this stage, the Crown case remains at a level of allegations only and it will be for the Crown to prove that the man arrested at the hospital with the stab wound in the belly is the same man as the one that was involved in the home invasion.  Nevertheless, I accept the Crown’s submission that, on the evidence available to this point, there is some strength to the Crown’s circumstantial evidence case.  A number of forensic samples were taken from the site of the home invasion including blood samples.  The Crown expects to receive, on or about 16 August 2013, an expert report dealing with the DNA analysis of the blood samples.  The DNA analysis may serve to further implicate the applicant.  Alternatively, to the extent that it were to point to unknown persons (that is persons other than the complainants or the present applicant and the co‑accused) having been involved, it might offer evidence potentially exculpatory of the applicant.

13. The Crown, in opposing bail, relies principally on the seriousness of the alleged offending.  However, it also raises as concerns the fact that the firearms apparently used have not been located and, in particular, that there is a third offender whose identity is unknown. 

14. In connection with the notion of “special circumstances” my attention was drawn to the decisions of R v Buhlmann[4] and R v Lombardi.[5]  In the latter case, the Chief Justice considered the observations of Sulan J in Buhlmann concerning the notion of “special circumstances” as used in s 10A and with which the Chief Justice essentially agreed. His Honour then said this.[6]

    It can be accepted that the term “special circumstances” cannot be comprehensively or exhaustively defined.  The particular circumstances which might qualify as special circumstances may vary over a great range.  In my view, that is the point made by Mitchell J in Saywell.  However, the term “special circumstances” will ultimately take its meaning and content from the context of the provision in which it appears.  It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision.

    In R v Barnett, I surveyed the use of the expressions “special reasons” and “special circumstances” in South Australian statutory provisions.  The survey showed that special reasons or circumstances are those reasons or circumstances that were beyond the contemplation of Parliament. 

    As I earlier observed, s 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other related offenders.  Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough.  The discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption.  The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen hardship or injustice.

    [4] [2010] SASC 123 (Sulan J).

    [5] [2013] SASC 61 (Kourakis CJ).

    [6]    At [22]-[24], citations omitted.

15. According to the Chief Justice, the primary consideration is whether an applicant’s circumstances place him or her outside of the contemplated risk to the community that is generally posed by members of the applicable class or prescribed applicant.[7]  According to his Honour, the circumstances of the alleged offending will be very important although the circumstances to be considered for this purpose will also extend to an applicant’s personal circumstances.

    [7] At [25].

16. The Crown accepts that the applicant has no relevant criminal antecedents. In addition, the Court is in possession of a positive home detention bail report in the sense that the proposed address has been found suitable for home detention bail.  The address to which the applicant was bailed on strict and usual home detention conditions by the Magistrate, before I revoked that bail, is an address in Parafield Gardens, some significant distance away from Kudla.  It is the home of the applicant’s mother who has agreed to provide a guarantee in the sum of $2,000.  It was also a condition of the bail that the applicant was not to contact in any manner whatsoever, TI, LD and CB. 

17. The fact that the applicant has no relevant criminal antecedents and that suitable home detention bail premises are available, together with the fact that he has not yet completed a committal process let alone been arraigned in the District Court such that a trial of the matter, should it go to trial, would not be expected to occur before the middle of next year at the earliest, are matters that would ordinarily tell in favour of a grant of bail.

18. According to the court endorsement received from the Magistrates Court referrable to the grant of bail, the Magistrate found that the “porosity” (sic paucity) of the evidence to identify the applicant as the person responsible for the home invasion satisfied the requirement of special circumstances. The Crown challenges the conclusion that the evidence thus far in support of its case against the applicant is properly or fairly to be described as having a “paucity” but also has submitted that, on its own, the notion of a “paucity of evidence” cannot amount to special circumstances sufficient to justify a grant of bail in a case to which s 10A applies.

19. Bearing in mind the observations of the Chief Justice in Lombardi concerning the meaning of or approach to be taken to the notion of “special circumstances” and with which I am in general agreement, I do not accept that the question of “paucity of evidence” or, in other words, the strength of the Crown case, could never form part of a court’s consideration of whether in a particular matter “special circumstances” exist.  However, I do not need to form a final or concluded view on this issue.  I take the view, as already indicated, that there was not a paucity of evidence in this case but, on the contrary, the Crown’s circumstantial case against this applicant had some strength to it.

20. Counsel for the applicant made these submissions.

    (i)The finding of the Magistrate that there was a paucity of evidence and that this comprises a special circumstances was correct.  I have already indicated that I do not accept that argument at least on a factual basis.

    (ii)As far as the Crown’s reliance on the gravity of the offence is concerned, counsel for the applicant submitted that that concern can be or is to be neutralised by the fact that his client has indicated pleas of not guilty.

    (iii)As far as the likelihood that the applicant might offend again if released on bail might be a consideration, counsel submitted that there is no basis for such a concern particularly given the lack of relevant prior convictions.

    (iv)As far as any likelihood that the applicant might abscond if released on bail is concerned, counsel relied on the facts that the applicant’s family resides in Adelaide, that his mother and uncle were in court and offered their support, that he was a single man with no dependants and that he has available to him an offer of full‑time employment as a motor mechanic.

    (v)Insofar as there may be a concern for the welfare of the complainants is concerned, counsel reiterated that the offending was denied and submitted that home detention bail with very strict conditions would seem to alleviate any such concerns.

21. I accept that the various personal circumstances of the applicant as described by his counsel and including the matters in (ii), (iii) and (iv) above, can be regarded as an element or elements of the requirement of “special circumstances”.[8]  I also accept that the matters referred to by counsel in (ii) to (v) above, together with the fact that, should bail be refused, the applicant will spend a considerable period of time in custody awaiting trial ordinarily would  lend support to a favourable exercise of the discretion to grant bail.

    [8]    R v Lombardi [2013] SASC 61 at [26].

1. However, the special circumstances calculus also requires close attention to be paid to the circumstances of the alleged offending.[9]  In this case, the offences alleged to have been committed were very serious ones and the factual basis of the alleged offending is extremely serious.  This was an example of that type of home invasion which instils, in my view, rightly, great fear and trepidation in members of the public generally and one which was of the type specifically targeted by the legislature when enacting the offence of aggravated serious criminal trespass in a place of residence and providing for a maximum penalty of life imprisonment.  The offending, if made out, involved three men breaking into or invading a residential house at night, acts of physical violence, threats of serious physical violence, the use of at least two guns and the discharge on at least two occasions of a gun.  The people who committed this offending are people from whom not just the present complainants but the public generally require protection.  The task of the Court when conducting a bail hearing is not to assess guilt but involves an assessment of the risks inherent in a grant of bail in the particular case.

   [9]    R v Lombardi at [25].

2. In these circumstances and given the nature of the Crown case, as it presently stands, I am not satisfied that special circumstances have been made out sufficient to overturn any presumption that bail should not be granted. In any event, and if this case were not to fall within s 10A but be one to which the presumption of bail in accordance with s 10 applies, I would still exercise the discretion to refuse bail for the reasons I have given.

3. As I have mentioned, an expert report concerning the DNA analysis of blood samples taken at the scene of the offending is due shortly.  It may be that the results of that report might be such as not to add to the Crown’s circumstantial evidence case or even to weaken it.  If so, there would be nothing to prevent the applicant from bringing a fresh application for bail.  However, in the circumstances presently before the Court I refuse bail.  It follows that, if I had decided this matter on the basis of the Crown’s application to review the Magistrate’s decision to grant bail, I would have allowed the review.