R v Iskra No. Sccrm-02-346 - [2002] SASC 334

R v ISKRA
[2002] SASC 334
Criminal

LANDER J This is an application by the Crown for review of a decision of a magistrate granting bail to the respondent.
The respondent is aged 38 years. He has been married but is divorced. He shares the custody of his two children with his former wife.
He lives with his fiancee at 2 Eltham Court, Fulham. He works as a builder in a family company and also conducts a florist business at a shopping centre in suburban Adelaide.
He has had previous convictions but of a relatively minor nature.
On 30 July the applicant was charged with four offences relating to driving offences and their sequelae. The report, in relation to those offences, suggests aggressive behaviour on the part of the respondent. He was charged and summonsed to appear in court on 29 August 2002 but did not appear.
A further summons has been issued and I have assumed that the original summons was not served.
He was charged, on 24 September, first, with attempted murder and secondly, wounding with intent, Christopher Clemente.
At about 11 o’clock on that day Mr Clemente was shot three times: in the leg, the arm and the back. A number of neighbours heard a number of shots fired. One neighbour, immediately before the first shot was fired, heard someone say ‘Phil, I’m not your mate, you wog cunt’. The respondent’s Christian name is Phillip.
The respondent has provided the prosecuting authority with a handwritten statement. He said he was at home with his de facto wife, his two children and a male friend. He said that three persons carried out a home invasion, two were wearing hoods and all three were armed with pistols. It is the respondent’s case that one or more of the men broke down the back door and during an altercation some 20 shots were fired at him. The respondent says that he got his gun and fired back and wounded Mr Clemente in the manner which I have described.
It is the respondent’s case that Mr Clemente was taken away by the two persons accompanying him in an unmarked car, unmarked in the sense that it carried no number plate. He says that those three persons later returned and fired a number of further shots at the house. Mr Abbott QC, who appeared on his behalf, talked of 40 shots.
Apparently 12 casings have been found near the house. Eight or nine of these casings were found near the front gate. Some were 9 mm and some others 45 mm. The accused fired his shots from a 38. That would suggest that at least three different guns were fired on the night.
It is the Crown case that the shots which were fired from the front of the house were fired after Mr Clemente was shot but before he was taken away.
A video film was taken from security cameras mounted near and about the respondent’s house. Apparently three cameras caught…

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] SASC 334
Decision Date: 30 September 2002

CaseChat Overview and Summary

In the case of R v Iskra, the Crown sought to review a decision by a magistrate granting bail to the respondent, Phillip Iskra, who was charged with attempted murder and wounding with intent. Iskra had previously been charged with driving offences and failed to appear in court. He was later charged with attempted murder and wounding with intent in relation to an incident involving Christopher Clemente. Iskra claimed that he acted in self-defence during a home invasion and that he fired shots in response to the attackers. The prosecution argued that Iskra should not be granted bail due to the likelihood of him absconding, intimidating witnesses, or hindering police inquiries.

The court had to determine whether the statutory presumption in favour of granting bail should apply, considering the nature and gravity of the charges against Iskra. The prosecution mainly argued that Iskra would likely intimidate witnesses or hinder police inquiries if released on bail. However, the court found no evidence to support this claim and concluded that the statutory presumption should apply. The court dismissed the Crown's application for review of the bail decision, agreeing with the magistrate's decision to grant Iskra bail on his own recognisance with certain conditions.

The final orders of the court were to dismiss the Crown's application for review of the bail authority's decision and to uphold the bail conditions set by the magistrate, including a curfew, a firearm restriction, and a condition that Iskra must not go within 100 metres of the Royal Adelaide Hospital where the victim is being treated. Additionally, Iskra's mother was required to guarantee his performance of his bail conditions in the sum of $10,000, with $4,000 to be deposited in cash.

Orders