R v LOVE - [2005] SASC 324

Supreme Court of South Australia
(Criminal: Application)
R v LOVE
Judgment of The Honourable Justice Gray (ex tempore)
20 July 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL
Application for review of a decision by a magistrate to refuse bail - applicant charged with causing death by dangerous driving - refused police bail - magistrate refused bail on grounds of applicant's antecedents, non-compliance with orders of court and seriousness of offending - consideration of applicant's history of failing to comply with orders of court - consideration of applicant's personal circumstances - consideration of presumption of bail and section 10 of Bail Act 1985 (SA) - held: application for review of bail granted - applicant released on home detention bail with electronic monitoring and additional conditions.
Bail Act 1985 (SA) s 10, referred to.

R v LOVE
[2005] SASC 324
Application for Review of Bail
Ex Tempore Remarks
GRAY J:

This is an application to review a decision of a magistrate refusing bail.
The applicant is charged with the offence of causing death by dangerous driving. It is alleged that the offence occurred on 9 April 2005 at about 1.40 am, and that the applicant was driving a Ford Fairlane sedan on Salisbury Highway at Parafield Gardens. It is alleged that this vehicle was travelling at a speed of about 100 kilometres per hour within the left traffic lane when it impacted with the rear of another vehicle, which was being driven by the deceased. The deceased was driving in the same direction as the applicant at a speed of about 60 kilometres per hour. The deceased’s vehicle was forced into a stobie pole causing impact, injuries and death.
The applicant was then conveyed to the Royal Adelaide Hospital. A blood alcohol reading of 0.17 was obtained.
Witnesses at the scene spoke of seeing the applicant near the driver’s door of the Fairlane. When interviewed, the applicant said that he had no memory of the event and could not indicate whether he was the driver. However, he spoke of the only other occupant of the vehicle being a passenger. He said that he had purchased his vehicle shortly prior to the incident.
At the time of the accident, the applicant was disqualified from driving. The vehicle was unregistered and uninsured. The applicant denies the offence. He claims that he was not the driver of the vehicle.
The applicant was in hospital for about a week. He was not apprehended by the police until June 2005, when he was involved in another incident which has led to other charges.
The magistrate refused bail having regard to the applicant’s criminal antecedents, his non-compliance with orders of the court, the gravity of the offence and the magistrate’s view of the likelihood that the offence would lead almost inevitably to a term of immediate imprisonment.
On the application for review, counsel for the applicant submitted that bail on strict terms would ensure the applicant’s attendance at court and would adequately protect the community. Counsel drew attention to a bail report that provided information concerning the applicant’s general circumstances and place of residence as well as particulars of proposed guarantors. A home detention report reported favourably on the suitability of the premises.
Counsel for the Director of Public Prosecutions opposed bail, principally because it was said that the community was at risk. Counsel contended that the applicant had shown an unwillingness to comply with orders of the court, and that his alcohol and amphetamine use would almost inevitably expose him to further offending.
When determining whether to grant bail, the Court must have regard to the presumption in favour of bail for persons yet to be tried for the offences with which they have been charged and the factors set out in section 10(1) of the Bail Act 1985 (SA):
(1)Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to--
(a)the gravity of the offence in respect of which the applicant has been taken into custody;
(b)     the likelihood (if any) that the applicant would, if released--
(i)    abscond;
(ii)     offend again;
(iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;
...
(d)any need that the applicant may have for physical protection;
(e)any medical or other care that the applicant may require;
(f)     any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;
(g)     any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
...
(4)Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.
In the present case, the presumption in favour of bail has not been rebutted. The concerns of the Crown regarding potential risk that the applicant could pose to the community and his history of unwillingness to comply with orders of the court can be adequately addressed by strict terms and home detention bail. Such terms would operate to ensure that the applicant did not consume alcohol, did not make contact with vulnerable Crown witnesses and undergo appropriate counselling for his alcohol problems. Should the applicant breach these terms, his bail will be revoked and his likelihood of subsequently obtaining bail would be significantly diminished.
Having regard to the provisions of the Bail Act and, in particular, the presumption in favour of bail, this application should be allowed. There should be a grant of bail to the applicant but on very strict terms.
The applicant must understand that these strict terms are to be complied with. Any breach of the terms of bail is likely to lead to his being taken into custody. The prospects of any further grant of bail would be minimal.
The terms of bail are as follows:
-that the applicant be on home detention bail with electronic monitoring at 24 Cork Street, Salisbury Downs;
-that the applicant not absent himself from that address without the written permission of his supervising Correctional Services Officer, or in circumstances where there is a need to minimise the risk of serious injury or death to a person at those premises;
-that the applicant obey all the lawful instructions of his Community Corrections Officer who is to supervise his home detention bail;
-that the applicant wear an electronic transmitter and comply with the rules of electronic monitoring;
-that the applicant not consume alcohol or any other drug which is not medically prescribed or otherwise legally available, and then only at the prescribed dosages;
-that the applicant undergo such courses or counselling as may be recommended in regard to alcohol and drug abuse;
-that the applicant submit to any breath test or urine analysis as directed by his corrections officer;
-that the applicant not approach, either directly or indirectly, the Crown witness Margareta Bendessi;
-that in the event of a breach, the applicant forfeit to the Crown the sum of $5000;
-that there be two guarantors, Gaynor Brooks and Saynara Brooks, each in the sum of $5000, and each is to lodge $1000 cash surety with the sheriff.