R v Karger No. Sccrm-98-224

[2000] SASC 14

R v KARGER
[2000] SASC 14

Criminal

1. 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. 

2. There has been considerable delay in the progress of this matter through the system.

3. 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. 

4. 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. 

5. 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. 

6. 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. 

7. 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.

8. 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.

9. 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 into existence of the home detention facilities. 

1. I accept that if this man is granted bail his parents would act as guarantors and would do all in their power to ensure that he complied with the conditions of bail, particularly if a condition was that he was to reside at their residence. 

2. There is nothing in particular about this case which suggests that there is a likelihood that the accused would abscond.  If there was, of course, bail would be out of the question, but this is a very grave crime and that is a matter which, under the Bail Act, I must bring into consideration in a relevant and meaningful way. 

3. It is urged upon me that because the accused has been in custody since 24 March 1998, that that in itself is a matter to be brought to account and is indicative of bail.

4. Delay in the hearing of proceedings has often been regarded as a matter which may justify bail.  In the cases of which I am aware such delay has been prospective rather than retrospective.

5. In this case I think the relevant delay for me to consider is the delay for the next four months in this matter coming to trial, and that is what I bring to account.

6. Given the nature of the charge, the view that this Court has usually taken about bail on these sorts of cases, which I regard as a proper and appropriate view, and despite the matters favourable to the accused in favour of bail, which have been mentioned, and also that home detention bail is available to him, I do not regard this as an appropriate case for bail. 

7. The application is refused.