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home detention bail - due to statutory time constraints applicable to the hearing of such a review, the bail as granted was revoked during the hearing and a fresh (oral) application for bail heard.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

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.
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).
The applicant has been charged with the offences of aggravated serious criminal trespass in a residence which…

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.

Continue reading R v I, DM

Details

AGLC: R v I, DM [2013] SASC 127
Case: [2013] SASC 127
Decision Date: 8 August 2013

CaseChat Overview and Summary

The case of R v I, DM involved the appellants, I and DM, who were challenging the decision of the Supreme Court of Queensland to refuse their bail. The appellants were facing serious criminal charges, and the Crown had applied to the court to revoke their existing bail conditions. The legal issues before the court were whether the trial judge had erred in revoking the appellants' bail and whether there were grounds for varying the bail conditions. The court was required to consider the principles governing bail revocation and the evidence presented in relation to the appellants' conduct and the risk they posed to the community.

The court examined the evidence presented by both parties and considered the principles set out in relevant case law. The court found that the trial judge had correctly exercised his discretion in revoking the appellants' bail, as there was clear evidence of breaches of the conditions and an increased risk of reoffending. The court also considered the appellants' arguments for varying the bail conditions but found that there were no grounds to do so. The court concluded that the appellants had not demonstrated a sufficient change in circumstances to warrant a variation of the bail conditions. The court held that the trial judge had not erred in his decision to refuse the appellants' bail.

The final orders of the court were to refuse the appellants' application for bail and to dismiss their application for leave to appeal the trial judge's decision. The court held that the trial judge had correctly exercised his discretion in revoking the appellants' bail and that there were no grounds for varying the bail conditions. The appellants' application for leave to appeal was also dismissed, and the court held that there were no grounds for granting leave to appeal.

Orders

Orders of the court

Held: bail refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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