R v Karger No. Sccrm-98-224 - [2000] SASC 14

R v KARGER
[2000] SASC 14

Criminal

MULLIGHAN J This is an application by the accused for bail pending his trial which is to commence on 5 June this year, a little over four months away.
There has been considerable delay in the progress of this matter through the system.
The accused was arrested and charged with this crime of murder on 24 March 1998. I do not propose in these brief reasons to set out the history of the matter in any detail, but I just make the observation that he was committed for trial in September 1998 and was due to come to trial on 7 June 1999. For various reasons the trial dates which have been fixed, including that date, have been vacated.
To summarise the reasons in a sentence or so will necessarily be inadequate, but for present purposes it is sufficient to say that the accused has wished to challenge evidence of mainly a scientific nature which the prosecution propose to lead, and challenge it to the extent of also seeking to have it excluded from the trial.
There have been various obstacles facing the accused in the preparation of his defence due mainly to the lack of funding at various times, including to instruct appropriate experts and to have them complete their reports.
As I say, that is an inadequate dissertation of what has happened in the past, but as I have been, in a sense, managing this case since September of last year, I am well aware of what has happened at each stage of the proceedings thereafter.
In all events the trial is now to commence on 5 June. It was due to commence on 7 February, but I vacated that date because I was satisfied that if I had not done so there was a danger that the accused would not have a fair trial because of his possible inability to challenge the scientific evidence to which I have briefly alluded.
He now seeks bail pending the trial, as I have said.
During the course of argument this morning it has been urged upon me that pursuant to the Bail Act 1985 there is, in effect, a presumption in favour of bail regardless of the nature of the charge, and if the charge is of a nature which is regarded as grave, that is but a matter to be taken into account in exercising the discretion and in deciding whether that so-called presumption has been rebutted.
Whichever way the matter is considered, it is clear that this Court has taken the view since the coming into operation of the Bail Act that in cases of murder bail is not usually granted. As the former Chief Justice, King CJ, said in State of South Australia v Machin (1992) 163 LSJS 377 at p378:
“It is very unusual for the courts to grant bail on a charge of murder.”

Nonetheless, bail has been granted on occasions and on some occasions since the coming…

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: [2000] SASC 14
Decision Date: 28 January 2000

CaseChat Overview and Summary

In the matter of R v Karger, the applicant, Karger, sought bail pending his trial for the offence of murder. The trial was scheduled to commence on 5 June, with the application for bail being heard by Mulligan J in the South Australian Supreme Court. Karger's application for bail arose against the backdrop of significant delays in the proceedings, including various vacated trial dates and challenges to scientific evidence that the prosecution intended to present. These delays were attributed in part to the lack of funding for the accused to adequately prepare his defence, including the instruction of experts.

The legal issues before the court encompassed whether the presumption in favour of bail under the Bail Act 1985 could be rebutted, particularly in light of the gravity of the charge, which was murder. The court considered the principles established by King CJ in State of South Australia v Machin, which highlighted that bail in murder cases is highly unusual. Additionally, the court assessed whether the delay in bringing the case to trial and the accused's period in custody warranted bail. Mulligan J weighed these factors alongside the potential for home detention as a bail condition.

Mulligan J concluded that, despite the significant delays and the availability of home detention as a bail condition, the nature of the charge and the established judicial precedent against granting bail in murder cases were compelling reasons to deny the application. The court found that the factors in favour of granting bail did not sufficiently outweigh the seriousness of the offence. Consequently, the application for bail was refused, and Karger would remain in custody pending the commencement of his trial on 5 June.

Orders