R v Mehr - [2016] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MEHR
[2016] SASC 174
Judgment of The Honourable Justice Hinton
11 November 2016
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of an order refusing bail made in the Magistrates Court.
Mr Mehr was charged with one count of aggravated threaten to cause harm to another, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), one count of threaten to cause harm, contrary to s 19(2) CLCA, and one count of aggravated threaten to kill contrary to s 19(1) CLCA.
Bail was applied for and refused in the Magistrates Court in May 2016. Bail was again applied for and refused in September 2016. Mr Mehr sought a review of that refusal.
Held, dismissing the application:
1. In the absence of expert assistance in understanding Mr Mehr’s behaviour, bearing in mind the frequency with which he has come into contact with the police over the 18 months preceding 6 May 2016, his threats of self-harm and his counsellor’s concerns, and bearing in mind the seriousness of the charges, the victim’s fears and the ongoing investigation into the allegations of interfering with a witness, the likelihood of Mr Mehr offending again if released is such that the presumption in favour of bail is rebutted.
2. Bail is refused.
Bail Act 1985 (SA) ss 9, 10, 14, referred to.

R v MEHR
[2016] SASC 174
Criminal
HINTON J.
Introduction

This is an application pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) for the review of an order refusing bail made in the Magistrates Court on 2 September 2016. That order was made on an Information charging the applicant, Amir Amini Mehr, with one count of aggravated threaten to cause harm to another, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), one count of threaten to cause harm, contrary to s 19(2) CLCA, and and one count of aggravated threaten to kill, contrary to s 19(1) CLCA.
On the hearing of this application I have had regard to affidavits sworn by the following people on the dates identified and to the exhibits referred to therein:
·Kathryn Nicole Waite, 2 September 2016,
·Lucy Harvey, 6 September 2016,
·Kathryn Nicole Waite, 8 September 2016,
·David Romeo, 8 September 2016,
·Lucy Harvey, 23 September 2016,
·Samuel Adams, 8 November 2016.
In addition I have had the benefit of a Bail Enquiry Report dated 23 September 2016, a Home Detention Enquiry Report dated 2 September 2016, an undated statement from Senior Prosecutor Henry Cleland, and a statement from Brevet Sergeant James Watkins dated 9 November 2016.
I remind myself that this Court, as the reviewing authority, is obliged by s 14(3) of the Act to reconsider the application for release on bail made by Mr Mehr and is invested with power to make any decision on the application that should, in the opinion of the Court, have been made in the first instance. Consequently, it is not for Mr Mehr to establish error on the part of the Magistrate.
I would refuse bail. My reasons follow.
The offences to which the application relates and the circumstances of their commission
What follows is taken from the affidavit and other material referred to above. It should be understood as the allegations presently made by the prosecution and not as amounting to any findings of fact made by me.
On 4 May 2016 Mr Mehr contacted police communications. He reported that his home had been broken into and an Xbox belonging to him had been stolen. He nominated Sofia Hadiak as the thief.
Police communications had difficulty understanding Mr Mehr. Mr Mehr is from Iran and English is not his first language. The police decided to dispatch a patrol to Mr Mehr’s home to check on his welfare. On arrival police officers spoke to Mr Mehr. He advised the officers that he had just been in contact with Ms Hadiak who had told him that she had consumed a large amount of Valium. Mr Mehr was described as being argumentative and reluctant to provide details concerning the offending he had reported.
The police left Mr Mehr and attended at the address of Ms Hadiak. There they were met by other officers who moments before had spoken to Ms Hadiak. They had no concerns for her welfare.
Later that same day police again attended upon Mr Mehr at his home. On this occasion the intention was to commence investigation into the alleged break-in and theft. The officers were let in so that they could view the crime scene. They began to ask questions. Mr Mehr’s demeanour changed. He became louder, aggressive and abusive and demanded that the officers leave. He accused the officers of not believing him and talked over them when they attempted to explain their purpose. He stated that the officers had it in for him and asserted that they had no intention of investigating the complaint.
As the officers were leaving Mr Mehr demanded that they go and arrest Ms Hadiak. He was told that they would speak to her in due course. Mr Mehr then followed the police out abusing them as they went. The officers only stopped when Mr Mehr indicated that he had something to show them on his mobile telephone. Mr Mehr then referred to what was on his phone in a context of an intention on his part to contact the FBI and, in some way, in relation thereto would be able to cost the officers their jobs. The officers turned to walk away whereupon Mr Mehr said, “soon you will be down on your knees kissing my feet begging for your life”.
One of the officers, Senior Constable Symons, challenged Mr Mehr, asking him if he was threatening them, but to avoid further confrontation he and his partner left without saying anything more whilst Mr Mehr continued to abuse them.
Senior Constable Symons had had previous dealings with Mr Mehr. Those dealings involved allegations of dishonesty engaged in by Mr Mehr to feed a gambling habit. This prior involvement with Mr Mehr led the Senior Constable to suspect that there had in fact been no theft and that Mr Mehr had pawned the Xbox. This caused the Senior Constable and his partner to attend a pawn shop and make inquiries as to any items pawned by Mr Mehr in the previous 24 hours. Shop records showed that an Xbox had in fact been pawned by Mr Mehr earlier that afternoon. Police suspected the Xbox pawned to be the Xbox allegedly stolen.
On 5 May 2016 Senior Constable Symons contacted Mr Mehr in response to messages he had received indicating that Mr Mehr had tried to contact him. Mr Mehr was agitated and abusive during the call and demanded that Ms Hadiak be arrested. He was advised that the investigation was ongoing. He yelled, “you are ruining my life, why do you have it in for me?” Mr Mehr could not be reasoned with. The Senior Constable decided to hang up, but before he could so Mr Mehr said, “say hello to your neighbour Jason for me” and then hung up himself.
At that time Senior Constable Symons had a neighbour named Jason.
Five minutes later Mr Mehr telephoned the police station requesting that Senior Constable Symons contact him. The Senior Constable did so. Again Mr Mehr demanded the arrest of Ms Hadiak for stealing his Xbox and again he was told the investigation was ongoing. He then said, “you have disrespected me in front of my son. I am going to bash you and rape your wife”.
Senior Constable Symons had taken the precaution of making this telephone call to Mr Mehr on loud speaker. Consequently, other officers heard the threats made.
Senior Constable Symons considered that as Mr Mehr knew the name of his neighbour the threats were intended to be taken seriously. He was fearful for his own safety and that of his wife. He advised his superior officer of his fears.
On 6 May 2016 Mr Mehr attended at the Adelaide Police Station. He was arrested and charged with making a false report, carrying a knife without lawful excuse and breach of bail. The false report charge concerned the report he made as to the break-in and theft on 4 May 2016. The knife was in his pocket and was discovered in the course of his being processed for the false report charge. The knife is described as a small bladed knife. The breach of bail concerned the fact that he was now living at an address different to that contained in a bail agreement he had entered into on 3 March 2016.[1] At 12.40 pm Mr Mehr received police bail on these charges.
[1] On 3 March 2016 Mr Mehr was bailed on condition that he reside at River Street, Marden SA, in relation to charges of theft and providing false information to a second hand dealer. His address as at 6 May 2016 was Frederick Street, Magill. He had moved from one Housing SA property to another.
It appears that after being bailed Mr Mehr left the Adelaide Police Station and travelled to the Norwood Police Station arriving at about 1.40 pm. Senior Constable Symons was stationed at the Norwood Police Station. Mr Mehr was accompanied by Ms Hadiak. He asked to speak to the Senior Constable. The Senior Constable along with another officer spoke to Mr Mehr and Ms Hadiak in an interview room. Mr Mehr asked why he had been arrested for making a false report. Senior Constable Symons informed Mr Mehr that as he was not the investigating officer he could not answer his question. He then asked Mr Mehr to leave the police station and to attend at the Adelaide Police Station if he had any further questions. Senior Constable Symons then escorted Mr Mehr and Ms Hadiak out of the police station through a side entrance leading to a gate. As they were walking Mr Mehr became argumentative asking questions about his recent arrest. As Senior Constable Symons opened the gate for Mr Mehr the following exchange occurred:
Mr Mehr: “I threaten your life”
Senior Constable Symons: “You threaten my life, is that another threat?”
Initially Mr Mehr then refused to leave the area, but was persuaded to do so by Ms Hadiak.
During this interaction with Mr Mehr at the Norwood Police Station Senior Constable Symons was accompanied by Constable Sibbons. Constable Sibbons took the precaution of activating his body worn video camera. A transcript has been prepared of some of the conversation recorded by the camera. I have read the transcript. It is apparent that Mr Mehr wanted to discuss the charge of false report. It is also apparent that he was in a state of some excitement and was concerned to have the officers understand what he was trying to tell them. His English is poor and he experiences difficulty in making himself understood. The officers declined to discuss the case and try to bring the meeting to an end. In the recording Mr Mehr can also be heard referring to the allegations of threats he is said to have made. The transcript provides some reason to pause before concluding that the threats were made with the intention of engendering fear or being reckless thereto. I arrive at no conclusion on this issue. It is a matter for trial, assuming Mr Mehr does not plead guilty.
I have read a statement made by Senior Constable Symons regarding the events of 4 – 6 May 2016 and his interaction with Mr Mehr. In his statement Senior Constable Symons says that he became aware that police had been tasked to check on Mr Mehr’s welfare after Mr Mehr had made threats to kill a police officer and himself. Police became aware of this after being contacted by a counsellor who was working with Mr Mehr. The Senior Constable considered the threats to the police officer to be threats to him. He repeats his concerns for his safety and that of his family.
A draft of Senior Constable Symons’ statement was considered by other officers late on 6 May 2016. It was determined that Mr Mehr be arrested and charged. That took place shortly after 9.00 pm that evening. Mr Mehr was charged as follows:
i.on 4 May 2016, aggravated threaten to kill, contrary to s 19(1) CLCA. The relevant threat was the statement made to Senior Constable Symons by Mr Mehr that the Senior Constable would soon be down on his knees kissing Mr Mehr’s feet and begging for his life. Subsequently, no evidence was tendered on this count.
ii.on 5 May 2016, aggravated threaten to cause harm, contrary to s 19(2) CLCA. This charge relates to the threat to bash the Senior Constable. The circumstance of aggravation particularised is that Mr Mehr committed the offence against a police officer knowing the officer was acting in the course of his duty.
iii.on 5 May 2016, threaten to cause harm, contrary to s 19(2) CLCA. This charge relates to the threat to rape Senior Constable Symons’ wife.
iv.on 6 May 2016, aggravated threaten to kill, contrary to s 19(1) CLCA. This threat relates to the statement made by Mr Mehr as he and Ms Hadiak were being escorted out of the Norwood Police Station. The circumstance of aggravation particularised is that Mr Mehr committed the offence against a police officer knowing the officer was acting in the course of his duty.
I have read the transcript of the recording of the conversation between Mr Mehr and police at the time of his arrest for the offences listed above and when he was given his rights. Again it is apparent that Mr Mehr is distressed, agitated and in a state of excitement. Again he experiences difficulty in making himself understood. He refers to Senior Constable Symons as his enemy and attempts to offer a reason. That reason appears grounded in the Senior Constable’s treatment of him in the past. He refers to it as having been a game. He accused Senior Constable Symons of disrespecting him in front of his son and said that his doing so caused him to threaten to go to the Police Ombudsman whereupon he was threatened by the Senior Constable. He says that he wants to speak to his counsellor and is concerned for his son. Curiously, at the time of his arrest a friend is with him whose name happens to be Jason.
Inquiries conducted with Senior Constable Symons’ neighbour Jason confirmed that at about 6.00 pm on 6 May 2016 he noticed a car parked out front of his house in which a man was sitting in the driver’s seat. The man was unknown to him. He described the man as being in his 30s, of medium to smaller build with short dark hair. He said he looked like he was from Turkey, Lebanon, Iraq or Iran.
Police conducted a photo identification procedure with Senior Constable Symons’ neighbour Jason on 17 May 2016. I have been advised that no positive identification was made.
Mr Mehr was refused police bail. He applied to a Magistrate for bail and it was also refused. Thus, he has been in custody on these charges since 6 May 2016.
Other charges laid against Mr Mehr currently before the Courts
Mr Mehr is currently also charged:
i.on Complaint with one count of make a false report to police, one count of carrying an offensive weapon and one count of failing to comply with a bail agreement, such offences alleged to have been committed between 4 May 2016 and 6 May 2016.
I have referred to the circumstances of this offending above.
ii.on a second Information, with without lawful excuse throwing a missile, property damage, possess or use a dangerous article, and three counts of aggravated common assault. Those offences are alleged to have been committed on 13 November 2015.
It is alleged that on 13 November 2015 Mr Mehr threw rocks onto a construction site at the back of his unit, and was recklessly indifferent as to whether the rocks caused harm or damaged property (count 1), that he damaged the fence between his Housing SA property and the construction site, causing $935 damage (count 2), and that he possessed and used a dangerous article, namely a slingshot, to fire projectiles at construction workers (counts 3-6). None of the projectiles hit any of the workers and they did not require any medical assistance. The circumstances of aggravation concerning the assault charges are that Mr Mehr used a dangerous article, namely the slingshot.
When police attended at Mr Mehr’s unit in relation to these offences they recovered a slingshot, despite Mr Mehr’s denial of possessing or using a slingshot. Further, Mr Mehr told them that he had become frustrated with the noise and vibrations coming from the construction site behind his unit, which had been going on for two years. He said that he had snapped and admitted yelling at workers and throwing rocks into the construction site. Mr Mehr also admitted to the police that he damaged the fence. He stated that he did not like the fence which had been constructed to the rear of his unit. He believed it was his property and it was within his rights to damage it.
iii.on a third Information, with two counts of aggravated dishonestly dealing with property without consent, and one count of providing false information to a second hand dealer. These offences are said to have been committed between 1 August 2015 and 31 August 2015.
It is alleged that on two occasions in August 2015, Mr Mehr and Ms Hadiak conspired to steal gold jewellery before pawning the jewellery at a second hand dealer. The circumstances of aggravation of the two counts are that Mr Mehr and Ms Hadiak committed the offence knowing that the victim was over the age of 60 years. With respect to the third count, it is alleged that Mr Mehr attended at Cash Wizard and made a statement that was false, namely that he was the legitimate owner of the jewellery and had the right to dispose of it. In his interview with police Mr Mehr denied stealing the jewellery and said that he had no reason to as he had plenty of money of his own. He admitted however to having a gambling problem, but denied needing to steal from others in order to fund his addiction.
iv.on a fourth Information, with one count of dishonestly dealing with property without consent and one count of providing false information or a false document to a second hand dealer. Those offences are said to have occurred between April 2015 and September 2015.
It is alleged that between April and September 2015, Mr Mehr was engaged to undertake renovation work on Ms Beverly Gum’s unit at Firle. Mr Mehr and Ms Gum entered into a contract which included arrangements for the temporary storage of furniture and personal items belonging to Ms Gum. Between April and May 2015 Ms Gum travelled overseas during which time Mr Mehr was to complete the renovation work. Ms Gum provided Mr Mehr with a set of house keys. Upon returning from overseas, Ms Gum found the renovations were incomplete and a lot of her furniture and personal belongings had been taken, including her jewellery box.
Ms Gum sought help from her Church Minister, Paul Turley. Mr Turley was aware Mr Mehr had been undertaking renovation work on Ms Gum’s home. Mr Turley attended at Mr Mehr’s property and recovered the jewellery box. When Mr Turley returned the box to Ms Gum, she noticed that most of the jewellery was missing. After reporting the incident to police, Ms Gum was shown items of jewellery which had been recovered from Cash Converters. The second count relates to Mr Mehr attending at Cash Converters and pawning 12 items of jewellery. Mr Mehr told police that he had found the jewellery in his home, and believing it was his partner’s jewellery, had pawned it in order to fund his gambling habit.
v.on a fifth Information, with one count of deception. That offence was committed between 25 March 2015 and the 14 May 2015.
On 25 March 2015 Ms Judy Gum, the sister of Ms Beverly Gum, engaged Mr Mehr to undertake renovations on her investment property at Flagstaff Hill. Mr Mehr emailed Ms Gum a quote of $25,000 which included all labour and the majority of materials. The letterhead on which the quote was sent included a building licence number. Ms Gum understood this to mean that Mr Mehr was a licenced builder and hired him on that basis. The insurance policy held by Ms Gum in relation to the house only covered renovations if done by a licenced builder and properly certified trades people. Over the next four weeks, Ms Gum advanced Mr Mehr $25,000 through several instalments. Mr Mehr claimed he needed the money in advance to buy materials for the project because he had “financial difficulty”.

In April 2015 Mr Mehr ceased attending at the Flagstaff Hill property and all work stopped, despite the project being only partially completed. In May 2015 Mr Mehr admitted to Ms Gum that he had gambled all of the money but “just needed another $400 to finish the job”. Ms Gum discovered that the building licence number Mr Mehr had provided on his quote belonged to his former employer. She further discovered that Mr Mehr did not have a building licence of his own. This was confirmed by Consumer and Business Services.
Over the next few months Ms Gum engaged various licenced trades people who reported that the work that Mr Mehr had undertaken on the property was extremely substandard. The cost to repair the work Mr Mehr had undertaken was a further $61,000.
Mr Mehr initially denied any wrong doing. He acknowledged that his Iranian qualifications were not recognised in Australia. He admitted to not having completed the necessary Australian certification and not possessing a valid building licence. He asserted that Ms Gum was fully aware that he was not a licenced builder but hired him anyway because “she wanted to help him out”.
Mr Mehr claimed that Ms Hadiak had drafted the quote, that the building licence on it was not his and that its inclusion was a mistake.
Mr Mehr’s antecedents
Mr Mehr’s Offender History Report reveals that on 18 March 2014 he was sentenced without conviction to a fine of $50 for the offence of hinder police committed on 24 April 2013. No other prior conviction or finding of guilt of a criminal offence is recorded.
Mr Mehr’s personal circumstances
Mr Mehr is a 37 year old man who arrived in Australia from Iran with his son approximately 6 years ago. His son, Armin, is 9 years old.
Mr Mehr informed the Bail Enquiry Report writer that his wife and father were killed in a car accident in Iran and that he was driving the vehicle. As such, he has reported suffering from post-traumatic stress disorder, anxiety and depression. In addition Mr Mehr reported that he had been taking medication for a genetic heart condition for over 20 years.
Armin is currently under the guardianship of the Minister on a 12 month care and protection order due to the applicant being remanded in custody. Families SA had no prior involvement with Mr Mehr and his son until Mr Mehr was remanded. That said, notifications had been received as to concerns that Mr Mehr was gambling and leaving Armin home alone or in the car.
Families SA reports that it has not been able to assess Mr Mehr’s capacity to safely parent Armin. That will be undertaken when Mr Mehr is released from prison. If Mr Mehr remains incarcerated for a long period of time it will naturally impact on Families SA’s assessment and may result in Families SA applying for long term orders in relation to Armin.
Armin has said that he wants to see his father. However, Families SA does not support contact whilst Mr Mehr is incarcerated in prison. Families SA believes that with stable mental health and appropriate supports Mr Mehr will be able to address the concerns it has and mitigate the risk factors present in the home. Those factors concern his aggressive behaviour, mental health and inadequate supervision of Armin. Families SA considers that Mr Mehr has the capacity to make appropriate changes for reunification with his son to be viable.
Armin does not present as having any behavioural or developmental issues. That said I am advised that further assessments need to take place to consider the viability of reunification and in order to strengthen the relationship between father and son. Families SA supports Mr Mehr’s application for release on bail and will undertake the necessary assessments if that does occur. Families SA have made it clear that if Mr Mehr was released on bail, Armin would remain in care whilst assessments are undertaken, and that he must not have any contact with Ms Hadiak due to disclosures he has made.
To the Bail Enquiry Report writer Mr Mehr stated that he and Ms Hadiak had been in a relationship for two years and that he planned for the relationship to continue when he was released from custody, indicating that they would spend most days together. Mr Mehr described enjoying a good relationship with Ms Hadiak apart from the concerns his son had raised. The report writer consulted Ms Hadiak who confirmed this information and appeared keen for the applicant to return home. She stated that she was concerned about his mental health.
I have noted that Ms Hadiak has attended this Court on each occasion that Mr Mehr’s application was listed. I acknowledge the support for the applicant she has demonstrated.
The Bail Enquiry Report writer records that Mr Mehr denied any recent use of alcohol but described himself as an alcoholic who had been alcohol free for 12 years. Mr Mehr also denied the use of illicit substances.
The Bail Enquiry Report advises that since being in custody Mr Mehr has at times been monitored by the High Risk Assessment Team due to concerns regarding risks of self-harm. This occurred due to Mr Mehr threatening to harm himself.
Whilst in custody Mr Mehr has signed on to protection due to several confrontations that he has had with different prisoners and reports of ongoing threats to his safety. At times he has displayed abusive, erratic and demanding behaviour. Mr Mehr attributes his difficulties in custody to racism.
Subject to what is written below, since being at Mt Gambier no incidents concerning him have been reported.
Mr Mehr advised the report writer that if he was released on bail he would return to his housing trust property at Frederick Street, Magill. Prior to his arrest he resided at that address with Armin. Housing SA has confirmed that the defendant can return to the property, however they have expressed concern about the debt he has accrued since being in custody. In fact, I was informed on 8 November 2016 that Housing SA is planning on terminating Mr Mehr’s housing agreement and would be changing the locks on Mr Mehr’s property within the week, due to the significant debt that Mr Mehr has been accruing since his incarceration.
I have already referred to Ms Hadiak and to her relationship with the applicant. Ms Hadiak advised that she would be willing to act as guarantor should one be required. She stated to the Bail Enquiry Report writer that she understood the role and financial undertaking of a guarantor. Ms Hadiak however is in receipt of Centrelink benefits, has no assets and only a small amount of savings. Nonetheless, she is willing to offer the Court a maximum of $300 surety.
In the past Mr Mehr has had the assistance of a counsellor with the Personal Education and Community Empowerment, Multicultural Service. Through her interaction with Mr Mehr the counsellor reports that he has been experiencing high levels of depression due to the loss of his wife and father in the car accident previously referred to. As indicated he and his son survived the accident. They decided to come to Australia on a boat with the hope of embarking upon a new life. I understand they spent two years on Christmas Island before being released into the community. The counsellor suggests that Mr Mehr has difficulty in regulating his own emotions. It is suggested that ideally he should be exposed to a stable environment in which he could receive proper therapeutic treatment for his depression, anxiety, gambling, grief and loss related to long term trauma in his life.
The papers provided to the Court suggest that two days prior to his arrest on 6 May 2016 Mr Mehr had been in hospital after taking an overdose. No additional information has been provided to me regarding this. The counsellor expressed the opinion that at that time Mr Mehr was not functioning mentally and referred to his being miserable and suffering from post-traumatic stress disorder.
Other matters
Mr Mehr is currently accommodated in B Unit at Mt Gambier Prison. I have been advised that as of 23 September 2016 and whilst in custody Mr Mehr has been involved in six incidents of assault, abusive or threatening behaviour or threatening self-harm. The last such incident occurred on 11 August 2016.
I have also been advised of a consensual procedure Mr Mehr performed on another prisoner. The procedure involved making a series of incisions using a razor blade along the calves of the other prisoner for the purposes of pain relief. As I have said the procedure was consensual. It is said the procedure is one used by people of Persian background as both Mr Mehr and the other prisoner are. The other prisoner ultimately had to seek the assistance of the prison medical service.
I have also been advised that Mr Mehr works in the prison as the prison hairdresser and in that capacity he is exposed to a large number of his peers. Generally he is described as polite and respectful.
The prosecutor provided me with statements from officers Watkins and Cleland. Those statements reveal that the police are currently investigating Mr Mehr and Ms Hadiak for attempting to prevent a person from attending court to give evidence or attempting to pervert the course of justice. The allegation concerns an approach made to Ms Beverley Gum through an intermediary asking her to drop the case against Mr Mehr. The evidence against Mr Mehr and Ms Hadiak consists of things said by them in the course of telephone calls that have been recorded. No charge has as yet been laid. The investigation continues.
Consideration
Earlier in these reasons I reminded myself of the task with which the Legislature has burdened this Court under s 14(3) of the Act. This Court is empowered to make any decision that should, in its opinion, have been made at first instance. That necessarily directs the Court to consider the nature of the task to be undertaken at first instance which, in turn, directs one to s 10(1) of the Act.
Section 10(1) of the Act provides:
(1)    If 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; and
(b)the likelihood (if any) that the applicant would, if released—
(i)    abscond; or
(ii)   offend again; or
(iii) interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or
(iv) commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and
(d) any need that the applicant may have for physical protection; and
(e) any medical or other care that the applicant may require; and
(f) any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and
(g) any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
It is well settled that s 10(1) creates a presumption as to bail. No doubt that reflects amongst other things the presumption of innocence and the price that the community places upon liberty in the absence of conviction for an offence. That the applicant should be granted bail is the starting point. Thereafter having regard to the factors identified and any other relevant matter bail should be refused if the bail authority is persuaded that the applicant should not be released on bail. Thus initially the legislature has struck the balance between the presumption that an accused is innocent until proven otherwise, on the other hand, and the right of victims, witnesses and the community more generally to be protected from offenders and to be confident that persons charged with offences will be brought to trial, on the other, in favour of granting bail, but commits to a bail authority the task of determining in a given case whether the balance so struck should remain.
On 9 September 2016 this application was first called on before me. Pursuant to s 9(1)(a) of the Act, I ordered that a psychiatric report be prepared. Two months later that report had still not been prepared and I was informed that a psychiatrist would not be seeing Mr Mehr for the purposes of preparing the report until 21 November 2016. I have not been appraised fully of the reasons why it takes the best part of three months for such report to be obtained. When we are concerned with a person’s liberty, it is unsatisfactory. Here it is all the more unsatisfactory when the consequences of incarceration upon the father/son relationship, for Mehr’s immigration status and for keeping his tenancy are brought into account.
I had hoped that such report would assist me in understanding the relatively sudden frequency of Mr Mehr’s alleged offending in addition to providing a greater measure of objectivity in assessing the risk of re-offending he poses and assistance in setting any conditions that may benefit Mr Mehr in the event that he were to be released on bail.
Mr Mehr urged me to proceed in the absence of the report, particularly due to the threat of losing his Housing SA property. I have decided to do so. He has now been in custody and separated from his son for over 6 months.
The offending with which he is charged is serious. I appreciate that the charges are to be defended. I appreciate that language difficulties may figure largely in that defence. On the other hand, Mr Mehr’s counsellor heard threats uttered in a very different environment. I do not have the benefit of the entire prosecution brief nor Mr Mehr’s answer. In such circumstances I cannot gain any true appreciation of the strength of the prosecution case, save that some of the threats uttered are recorded. I assume that prosecutors have reviewed those recordings and decided that a reasonable prospect of conviction exists. As I have said, the charges are serious.
The prosecution has not put to me that Mr Mehr is a flight risk if released on bail.
I do think there is a very real risk that if released Mr Mehr will re-offend.
He has admitted to having a gambling addiction. Many of the offences with which he has been charged could be viewed as the consequence of that addiction. I know very little about the grip that this addiction has upon him. I do know that it has resulted in allegations of his being inattentive to the needs of his son being made. That is no reason to refuse bail, but it is an indication of his preparedness to feed his addiction.
I am concerned at Mr Mehr’s mental health more generally. I note that in the past he had the benefit of seeing a counsellor. That counsellor has mentioned that two days prior to 4 May 2016 Mr Mehr was hospitalised for his mental health. No detail regarding this has been provided to me. More recently, Mr Mehr has told me that whilst in custody he has received no treatment for his post-traumatic stress disorder.
Both Mr Mehr’s addiction and fragile mental health could be seen as explaining why he has come into contact with the police regularly over the 18 months preceeding May 2016. The latter particularly provides a background to the offending subject of this application.
Bail conditions in the past have not worked to prevent him coming into contact with the police. Mr Mehr’s conduct generally and his frequent involvement with the police makes it difficult to take any comfort in any promise he may give manifest in a bail agreement to abide by conditions imposed.
My apprehension could be addressed somewhat by ordering bail on home detention. However, the recently disclosed investigation concerns me for two reasons. First, it has been conducted through intermediaries and involves pressuring a witness. Second, Ms Hadiak is allegedly complicit. As to this second concern, I note that Ms Hadiak has also been involved in other offending committed by Mr Mehr. Despite her demonstrated support for him, and her preparedness to act as guarantor, her influence over Mr Mehr is not such as to give me confidence that it would influence his future conduct greatly.
I appreciate that if not granted bail Mr Mehr will lose his tenancy. I also appreciate that it will delay the commencement of the process to be undertaken with Families SA that will lead to his being re-unified with his son. That is most unfortunate. I note the complication introduced by Mr Mehr’s professed intent to carry on in his relationship with Ms Hadiak and Families SA’s attitude in that regard. Again that is no reason to deny bail, but it does suggest that the additional weight liberty gains by the desire to see him commence the reunification process is lessened.
Section 10(4) of the Act provides:
(4) Despite the other provisions of this section, if 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.
Section 10(4) operates on two levels; first where there is a risk that if the applicant is released on bail the physical security of the victim may be in peril. Second, where the victim perceives that if the applicant is released on bail their physical security may be in peril. In combination these two levels of operation require that the bail authority give primary consideration to the protection of the victim not only from a risk of physical harm objectively determined, but from the anguish that goes with a perceived risk of physical harm genuinely held by the victim.
In his statement to which I have referred above Senior Constable Symons expresses fears for the safety of himself and his family. There is no reason to think that his expressions of concern are anything other than genuine.
The material provided to me does not allow me to determine the actual risk that Mr Mehr poses to the Senior Constable or his family. Nonetheless, I take into account the Senior Constable’s perception.
In the end, in the absence of expert assistance in understanding Mr Mehr’s behaviour, bearing in mind the frequency with which he has come into contact with the police over the 18 months preceding 6 May 2016, his threats of self-harm and his counsellor’s concerns, and bearing in mind the seriousness of the charges, the victim’s fears and the ongoing investigation into the allegations of interfering with a witness, I am satisfied that the likelihood of Mr Mehr offending again if released is such that the presumption in favour of bail is rebutted.
Orders
For the reasons I have given, I refuse the application. Mr Mehr is remanded in custody.