R v O'Donnell No. Sccrm-00-210

[2000] SASC 413

R v SHAUN JASON O'DONNELL

[2000] SASC 413

Criminal (Ex tempore)

1................ LANDER J....... This is an application for bail by an accused person, who has been arraigned in this Court on a charge of murder, to which he has pleaded not guilty.

1. It is the Crown case that the applicant murdered Paul Francis Stewart on 30 June 2000.

2. The Crown case is that, in the early hours of 30 June 2000, there was an altercation at Sharkeys Pool Hall, near Reynella. The altercation spilled out into the car park of an adjacent Christian Centre. A fight developed between two men in that car park. Later, other men became involved. One man was struck over the head with a car lock.  One of two men, who was wielding a car lock, was set upon by a number of persons, including the applicant. The applicant stabbed the deceased three times in the back, and the deceased died of his wounds very shortly thereafter. The Crown case is that the deceased died of a stab wound to the back, penetrating the left chest. It is the Crown case that the applicant left the scene with a woman friend. He later gave the knife to a third person to dispose of, and the knife was disposed of.

3. On the Crown case, and, indeed, on the defence case, alcohol was involved.

4. The applicant was interviewed on 1 July 2000, and was arrested for murder. He told the police that he stabbed the deceased after the deceased had struck his friend over the head with a club lock, and his friend had apparently lost consciousness. He told the police that he did not mean to kill the man, he was scared, and he did not want to get hit with the pole, himself.

5. I can assume, I think, at this stage, that, at the trial, the applicant will require the Crown to negative the defence of self-defence.

6. The applicant is aged 19 years. He resides with his parents at 47 Sherebrooke Boulevard, at Woodcroft.

7. He applied for, and was granted bail by a Magistrate on 10 July 2000, on the condition that he reside at home and submit to home detention conditions.

8. It was also a condition of the bail agreement that he report to the Christies Beach Police Station three days each week, in the company of one of two guarantors, who were also required under the bail agreement.

9. There was a further condition that he not approach some witnesses.

10. He remained on bail until the committal proceedings on 29 August 2000, when he was committed to this Court. At that stage, no application for bail was made.

11. There is a presumption that a person who has been charged with, but not convicted of, an offence should be granted bail, unless the presumption is displaced for any of the reasons in s 10 of the Bail Act 1985.

12. There is no suggestion, in this case, that there is any likelihood that the applicant would, if released, offend again, or that conditions could not be put in place which would, if the applicant was released, ensure that he not approach witnesses.

13. In this case, bail would only be refused if the gravity of the offence, in respect of which the applicant has been taken into custody, is such that, by itself, he should be refused bail or, because of the gravity of the offence, he might be likely to abscond or, because if, on any previous occasion, the appellant failed to comply with a condition of a bail agreement.

14. In the State of South Australia v Machin (1992) 163 LSJS 377, King CJ said that it would be very unusual for a court to grant bail on a charge of murder. Murder being the most serious crime in the criminal calendar, it would follow that it would be the most likely offence to disqualify an applicant from bail, because of the gravity of the offence.

15. It, however, cannot be a universal rule that an applicant cannot be released on bail when charged with murder, because that would be to include in s 10 something which Parliament has not included; namely, that, where a person is charged with, but not yet been convicted of, murder, that person is not eligible for bail.

16. It will, because of the provisions of s 10 of the Bail Act, be unusual for a person charged with murder to be granted bail. There will, however, be circumstances where it is appropriate, notwithstanding the gravity of the offence, that bail be granted; R v Duke [1999] SASC 431. I would not necessarily refuse the applicant bail on that ground alone.

17. There is a risk that, because of the gravity of the offence, he may abscond, but, on the other hand, he did not do so when previously on bail.  That risk, again, in my opinion, would not disqualify him.

18. When this matter came on earlier, I ordered, and was provided with, a Home Detention report. The author of that report believes that home detention would not be an appropriate condition for this bail applicant. He reports:

    “Applicant caused considerable problems whilst on home detention previously, flaunting the rules on several occasions.  On conducting the residence check. the mother and father were of different opinions for applicant to reside at nominated residence.”

19. I have also been provided with a letter/affidavit from Mary Longbottom, a Community Correctional Officer of the Department for Correctional Services. She has indicated that, on 16 August 2000, the applicant breached his condition of home detention by being absent from the premises without permission. She also has reported that he did not comply with the rules of electronic monitoring. Lastly, and most importantly - and, in my opinion, most seriously - she has reported that she was advised by the applicant’s father, who was a guarantor under the previous bail agreement, that he had taken the applicant to the “pub” one night for dinner, without, the permission of the Community Correctional Services Officer.

20. I accept the information contained in Ms Longbottom’s letter/affidavit; indeed, it was not suggested that I should do otherwise.

21. Having regard to the opinion of the Department of Correctional Services in relation to home detention, and the report of Mary Longbottom, Mr Braithwaite, who appeared for the applicant, did not press for bail with conditions of home detention. Indeed, in my opinion, he could not; the evidence was overwhelmingly against him in relation to that application.

22. Instead, he sought bail on conditions, which did not include home detention. He suggested that those conditions could include the requirement to report to the Christies Beach Police Station, a condition that he reside with his parents, and the provision of guarantees.

23. He explained his client’s previous breaches of the bail agreement by pointing to the applicant’s age and immaturity. He said that the applicant has learnt, over the last few months, that he would have to comply with any conditions which were imposed upon him.

24. In my opinion, the applicant’s previous breaches cannot be excused merely by reason of his youth or, indeed, by reason of his immaturity. In my opinion, the applicant has apparently deliberately breached conditions of his bail agreement, in circumstances where he had obtained bail for the most serious offence known to the law in this State.

25. In my opinion, if the applicant is not a satisfactory candidate for bail on the condition of home detention, he is most certainly not a candidate for bail on any lesser conditions.

26. The application for bail is refused.