R v NEWMAN

[2005] SASC 414

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v NEWMAN

Judgment of The Honourable Justice Gray

9 November 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL

Application for grant of bail - applicant charged with murder - consideration of section 10 of the Bail Act 1985 (SA) - consideration of presumption in favour of bail - consideration of nature of Crown allegations and seriousness of the offence - risk of applicant absconding from State, premises for home detention not suitable - application for bail refused.

Bail Act 1985 (SA) s 10; Criminal Law Consolidation Act 1935 (SA) s 11, referred to.

R v NEWMAN
[2005] SASC 414

Application for Bail Review

GRAY J:

1. This is an application for bail.

2. The applicant is charged with the crime of murder. It is alleged that the applicant, together with two co-accused, murdered George Bednikov on 6 March 2005 contrary to section 11 of the Criminal Law Consolidation Act 1935 (SA).

3. It is the Crown case that, at about 12.10am on Sunday 6 March 2005, the applicant with three co-accused, attacked Mr Bednikov in front of his home in Pennington.  Shortly prior to the attack, Mr Bednikov had confronted the applicant and the others, who had been causing property damage in the area.  The Crown suggested that property close to and on Mr Bednikov’s premises had been damaged.

4. As a result of the attack, Mr Bednikov sustained severe head injuries with related brain damage.  When the applicant and the co-accused left, Mr Bednikov was lying in the gutter outside his home.  An ambulance was called and he was conveyed to the Royal Adelaide Hospital.  He died a short time later.

5. In opposing bail, the Crown relied on the gravity of the offending.  A witness to the attack described the applicant and another person “jumping all over” the “Chinese guy”.  The witness recounted how he saw the applicant “stomping on and kicking the guy’s head with one leg.”  The witness stated that the applicant appeared, to his observation, to be kicking the man as hard as he could, and that the applicant continued to do so for about a minute.  On the Crown case, Mr Bednikov’s son attempted to intervene and became involved in the altercation.  He, too, suffered some injury.  The forensic evidence suggested that the blood found on the applicant’s shirt was that of Mr Bednikov’s son.

6. On 7 March 2005, the applicant was arrested. Police bail was refused.  The reasons given for the refusal were the gravity of the alleged offence and the applicant’s lack of fixed address and social ties.  On 29 June 2005, the applicant applied for bail before a magistrate.  The magistrate ordered bail enquiry and home detention reports.  On 19 July 2005, bail was granted.

7. The Crown sought review of that bail order, and this came on as a matter of urgency before this Court on the 21 July 2005.  Following submissions, the application was granted.  As a full review of the circumstances was not possible at that time, the applicant was given leave to make an oral application for bail.  He did so, and his application was adjourned.  It is this application for bail that has since gone on for hearing and is the subject of these reasons.

8. It appears that the applicant was a resident of New South Wales and came with other young friends to South Australia with a view to obtaining work fruit-picking.  Following work in the Riverland, the applicant his friends came to Adelaide and were residing in the Port Adelaide area.  The applicant had no fixed place of residence in South Australia and no ties to this state.  His mother and step-father are resident in country New South Wales.

9. A bail enquiry report has provided details of the applicant’s long history of drug and alcohol abuse.  It is suggested in that report that the applicant had returned to drug-use some time prior to the offence.  The applicant maintained before this Court that he had not used any illicit substances for more than three years.

10. Accommodation suitable for home detention and electronic monitoring had been arranged at APOSS Community House.  However, there were some problems with those arrangements. It was reported that there might not be a reliable telephone service available to ensure proper home detention monitoring.  Further, APOSS has a policy of encouraging its residents to occupy themselves away from the community house, in particular in studies where possible.  Notwithstanding these matters, it was indicated that if necessary the applicant could reside 24 hours a day at the APOSS community house.

11. This application is governed by the Bail Act 1985 (SA), and in particular section 10. That section relevantly provides:

    (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.

12. There is a presumption in favour of bail in circumstances where the charges have been laid and the matter is yet to come to trial.  The applicant’s youth and the period of time that will elapse awaiting trial are relevant matters to be considered.  The applicant’s mother is prepared to act as guarantor and provide a modest cash surety.

13. However, the circumstances of the alleged offending are very grave indeed.  Those circumstances include alleged mob violence with evidence implicating the accused in a savage attack on the deceased.  The altercation left the deceased severely injured and lying in the gutter.

14. This application for bail should be refused.  The gravity of the alleged criminal conduct, coupled with the applicant’s history of drug and alcohol abuse and his lack of ties to the State, together preclude a grant of bail.

15. This application is refused.