R v Iskra No. Sccrm-02-346

[2002] SASC 334

R v ISKRA
[2002] SASC 334

Criminal

1. LANDER J            This is an application by the Crown for review of a decision of a magistrate granting bail to the respondent.

2. 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.

3. 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.

4. He has had previous convictions but of a relatively minor nature.

5. 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.

6. A further summons has been issued and I have assumed that the original summons was not served.

7. He was charged, on 24 September, first, with attempted murder and secondly, wounding with intent, Christopher Clemente.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. A video film was taken from security cameras mounted near and about the respondent’s house. Apparently three cameras caught different aspects of the events which unfolded that night.

14. Mr Snopek, who appeared on behalf of the Crown, referred to a number of matters which were captured by the video cameras.

15. Mr Abbott, who appeared for the respondent, asserted that Mr Snopek could not rely upon the matters contained in the video without producing the video to court. Mr Snopek responded to that submission by submitting that if the prosecution were bound to supply the video before it could rely upon the video in this Court, it would not do so because the production of the video would itself hinder police inquiries.  He said he could rely upon the contents of the video without being called upon to tender it.

16. In my opinion, Mr Snopek’s submission in that regard is correct. The court is not bound by the rules of evidence on a bail application or on a review of a bail application. It would be incongruous if the prosecution was always bound to produce its evidence even if the production of that evidence in opposition to a bail application would hinder the investigation into the offences for which the person is charged. I think, therefore, that Mr Snopek was entitled to rely upon the matters contained in the video without having to produce the video.

17. There are substantial differences in the respective cases mounted by the prosecution and the respondent. This court cannot and should not resolve those differences on this application.

18. The respondent has provided the prosecuting authority with a name of a person who he says was with him in the house immediately before Mr Clemente was shot. He has provided the police with a handwritten statement, I think of some five pages. He has also provided the police with the gun which he says he used.

19. The magistrate granted the respondent bail upon his own recognisance of $10000.  She imposed a curfew restriction and a firearm restriction. She imposed as a condition of the bail agreement that he not go within 100 metres of the Royal Adelaide Hospital where Mr Clemente presently is. Lastly and relevantly she imposed as a condition of the bail agreement an obligation on the part of the respondent’s mother to guarantee his performance of his bail conditions in the sum of $10000 of which $4000 had to be deposited in cash.

20. Section 10 of the Bail Act1985 (SA) (“the Act”) provides a statutory presumption that the court should grant a person, charged with but not convicted of an offence, bail unless, having regard to any of the matters in s 10(1) of the Act, bail should not be refused.

21. On this application, the prosecution relied upon three matters which it said were such that the statutory presumption should not apply. First, it claimed that there was a likelihood that the respondent would abscond if released on bail. Secondly, it claimed that the respondent would intimidate witnesses or interfere with police inquiries if released on bail.  Thirdly, it claimed that the gravity of the offence was such that the respondent should not be released on bail.

22. Clearly enough, the magistrate rejected all three grounds when the matter was before her.

23. When the matter came on before me for review the applicant abandoned the first ground, that is that there was a likelihood the respondent would abscond if released on bail.

24. I shall deal with the third ground first. There is no doubt that the offence of attempted murder is a grave one, however, there must be circumstances where a person charged with attempted murder, or, indeed, even murder, is entitled to bail. I considered those matters in R v Duke (1999) SASC 431. In my opinion, the circumstances leading up to these charges are not such that the gravity of this offence should disqualify the respondent from the benefit of the statutory presumption.

25. The prosecution relied, in the main, on the submission that there was a likelihood that the respondent would intimidate witnesses or interfere with police inquiries if released on bail. Section 10(1)(b) provides that the statutory presumption should not apply if the likelihood is that applicant would, if released, interfere with evidence, intimidate or suborn witnesses or hinder police inquiries. As can be seen, the placitum identifies three different and alternative circumstances where, if the likelihood was proved, the statutory presumption can be rebutted. In this case the prosecution has not relied upon the first of those three alternatives, namely the likelihood that the applicant would interfere with evidence.

26. During submissions, Mr Snopek put to the court that the video showed the respondent hosing down the verandah immediately after the events near where Mr Clemente fell after being shot. That might indicate that there is a likelihood that the respondent would, if released, interfere with evidence.  However, as I have said, the prosecution has not, on this application for a review of the magistrate’s decision, relied upon such a likelihood.  Instead it has limited itself to relying upon the likelihood that the respondent would intimidate or suborn witnesses or hinder police inquiries.

27. There is no evidence to support the first of those two alternatives. No evidence has been brought forward to suggest that the respondent would intimidate witnesses. No submission has been put to me that any witness fears that they are likely to be the subject of any intimidation on the part of the respondent. In those circumstances the prosecution has not made out the likelihood that the respondent would, if released, intimidate or suborn witnesses.

28. Mr Snopek submitted that if the respondent were released he would have an opportunity to hinder police inquiries. I think that follows logically.  Clearly enough if the respondent is not subject to the regime of correctional services he would have a better opportunity of hindering police.  However, that does not establish, in my opinion, that there is a likelihood that the respondent would, if released, hinder police inquiries. Indeed, there is evidence contrary to an interference of that kind.  The respondent has, as I have said, named the person who was with him on the night of these events.  He has given a statement to the police and he has handed over the gun, which will be a most important part of police inquiries. There is not, in my opinion, any evidence to support the proposition that there is a likelihood that the respondent would, if released, hinder police inquiries. In those circumstances, the statutory presumption should apply.  It follows from my reasons that I agree with the decision arrived at by the magistrate.  The application for review of the bail authority’s decision is dismissed.