R v Laipato
[2015] ACTSC 420
•18 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Laipato |
Citation: | [2015] ACTSC 420 |
Hearing Date(s): | 18 December 2015 |
DecisionDate: | 18 December 2015 |
Before: | Walmsley AJ |
Decision: | The application for bail is refused. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – bail – appeal pending – reasonable prospects of success upon appeal – previous breach of bail conditions – further offending – unacceptable risk of further offending |
Legislation Cited: | Bail Act 1992 (ACT), s 9(e) |
Parties: | The Queen (Crown) David Christopher Laipato (Defendant) |
Representation: | Counsel Mr A Williamson (Crown) Mr P Edmonds (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds Solicitor (Defendant) | |
File Number: | SCA 104 of 2015 |
WALMSLEY AJ:
The applicant for bail was convicted in the Magistrates Court on 9 November 2015 of two counts of assault, one count of burglary and one of damage property. He was sentenced to a term of imprisonment relevantly including a minimum term of ten months to be served in full-time custody. With backdating it is probable that a major part of his period of imprisonment will have been served by the time his appeal has been heard.
That is a factor relied on on this application so as to bring it within s 9(e) of the Bail Act 1992 (ACT) to permit me to reach the threshold and find exceptional circumstances.
The other aspect relied on to bring him within exceptional circumstances is the issue of prospects. Part of the transcript was tendered by Mr P Edmonds, who appears for the applicant. At page 51 her Honour, the Chief Magistrate, said:
I note that there was no information or evidence before me or any suggestion put to [the complainant] in relation to how she might benefit in some way from or on this occasion bringing false evidence at this time in relation to the defendant rather than for his benefit. Indeed she stated that the reason she was prepared to come to court and give evidence on this occasion was because she was in genuine fear of the defendant.
Mr Edmonds submitted to me that that passage in the context in which it appears shows that her Honour placed an improper burden on the appellant, suggesting a reversal of the onus of proof, requiring him in some way to explain why she might give false evidence.
On the face of it, given what her Honour said, I can see that there are reasonable prospects of success on the appeal. But that is not the end of the matter.
By reason of what I see as reasonable prospects of success and the fact that a major part of the period of imprisonment will have been served by the time this appeal is heard, exceptional circumstances have been shown.
The applicant for bail has offered as conditions upon which he is to be given bail that he reside with his parents in Kambah; that he report twice weekly to the police at Woden; that he not approach within 100 metres of SM, she being the mother of his child, and someone with whom he has been in a relationship, and that he not contact her unless indirectly and in relation to their child, and that he not be in the suburb of Page where she apparently lives.
In opposing the application, the Crown called evidence to the effect that there have been at least two prior occasions in recent times when he has been given bail and on each of those occasions it was a condition that he not approach SM and each time he was found to have been in breach of that condition. Following those breaches, he was caught on CCTV attending the premises of SM and that resulted in another conviction.
Cross-examination by Mr Edmonds of the police officer adduced some evidence to the effect that at the time those breaches occurred it might well have been that there was a continuing relationship, whereas now, since he has been in prison for some months, there is no longer a relationship and he apparently accepts that.
It may be that the relationship was continuing at the time of the previous breaches. But his attitude does not suggest to me that he has any regard for orders of this Court or conditions of bail.
He has a fairly lengthy record which includes, as the Crown points out, eight offences of violence, not counting the ones on appeal.
Police evidence was to the effect that, apart from breaching previous bail conditions that he not approach SM, he also failed to comply with a curfew. Further, he was also in breach of bail conditions by not reporting to the Corrective Services officers or otherwise co-operating.
There was also evidence from the police officer that a number of claims have been made about him by SM. Because she has admitted perjury, one must be sceptical about those, particularly since the evidence that I have just received was hearsay. I do not give any weight to an allegation, for example, that he uses drugs, because of its hearsay nature. The same applies to her claim that he has had firearms in his possession. The evidence of the officer was that no firearms have been found connected with him in the five months they have had information from her that she had seen him with firearms.
There is one additional matter. He has been charged with another significant matter which is driving while disqualified and being in a police chase. According to the police officer who gave evidence, a police officer who was familiar with the applicant saw him driving the car, and the car was later found not un-adjacent to where SM lives.
On the face of it, there are reasonable prospects of success of that prosecution, which is due to be heard in March next year.
Having regard to the submissions and all of the evidence, my view is that there is an unacceptable risk if I were to give bail that further offending would occur, in particular in relation to SM, and accordingly I refuse the application.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date:15 February 2016 |
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