R v Laipato (No 2)

[2014] ACTSC 363

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Laipato (No 2)

Citation:

[2014] ACTSC 363

Hearing Date(s):

19 December 2014

DecisionDate:

19 December 2014

Before:

Refshauge J

Decision:

The application for bail be dismissed.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – What constitutes a change in circumstances – Applicant has failed to comply with bail conditions on multiple occasions in the recent past – Application dismissed

Legislation Cited:

Bail Act 1992 (ACT), ss 9B, 20B, 20C, 22, 43A

Crimes Act 1900 (ACT), ss 27(3)(a), 30
Human Rights Act 2004 (ACT)

Cases Cited:

In the matter of an application for bail by Dhaimat (No 1) [2014] ACTSC 42
In the matter of an application for bail by Laipato [2014] ACTSC 130
In the matter of a bail application by Rodrigues [2008] ACTSC 50
Re an application for bail by Islam (2010) 4 ACTLR 235

Parties:

David Christopher Laipato (Applicant)

The Queen (Respondent)

Representation:

Counsel

Mr P Edmonds (Applicant)

Ms K Mackenzie (Respondent)

Solicitors

Paul Edmonds and Associates (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

SCC 71 of 2014;

SCC 77 of 2014

Refshauge J:

1. Despite some laypeople thinking otherwise, bail is not intended to punish people for offences with which they have been charged.  Indeed, to the lawyer such a notion is offensive, for it must be recognised that persons who have been charged but not found guilty of offences are, by law, presumed to be innocent.  Nevertheless, bail has become highly regulated by statute as the legislature has reacted to the demands of the community. 

1. The Court is required to comply with the various requirements of the Bail Act 1992 (ACT). While such legislation must be construed with the Human Rights Act 2004 (ACT), which the ACT legislature has enacted to ensure, as far as possible, compliance with the rights recognised by it, this is not a license to emasculate the legislation nor to ignore its intent. See, for an example, Re an application for bail by Islam (2010) 4 ACTLR 235.

1. Appearing before me and applying for bail is David Christopher Laipato, who has been committed for trial to this Court on the following charges:

·choking the complainant so as to render her insensible, an offence against s 27(3)(a) of the Crimes Act 1900 (ACT), rendering Mr Laipato liable, if found guilty, to a maximum penalty of imprisonment for ten years; and

·threatening to kill the complainant, intending to put her in fear that the threat would be carried out, or being reckless as to whether she would so fear and the threat was made without lawful excuse and in circumstances which a reasonable person would fear the threat would be carried out, an offence against s 30 of the Crimes Act, which also provides for a maximum penalty of ten years’ imprisonment.

1. The offences were said to have been committed on 16 February 2014, when Mr Laipato and the complainant were…