R v P, AC - [2005] SASC 451

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v P, AC
Reasons for Ruling of The Honourable Justice Bleby
29 November 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL - GENERALLY
HIV-positive accused charged with two separate counts of endangering life arising out of consensual unprotected sexual intercourse with two women in the course of relationships with each – Second offence alleged to have occurred whilst on bail for first offence – Previous grant of bail in District Court revoked by Judge of Supreme Court on application for review by Crown – A different District Court Judge subsequently granted bail on more onerous conditions, including home detention – Second Crown application for review under s 14 Bail Act – Court unable to deal with complex review involving large volume of evidentiary material within 72 hours required by s 16 – Bail revoked and immediate oral application for bail entertained.
Consideration of previous revocation of bail in Supreme Court – Whether any error in application of s 10(1)(b)(ii) as to likelihood of “re-offending” where accused has no previous convictions – Proper construction of s 10(1)(b)(ii) – Likelihood and consequences of possible offending pending trial.
Factors considered – Presumption in favour of bail – Gravity of alleged offences – Protection of general public – Risk of re-offending in context of circumstances of alleged offending and current stable relationship with fiancée – Implications of accused being in custody for management of illness and for his physical and mental health – Likelihood of discrimination and harassment of accused in gaol – Ability of accused to assist in preparation of his case for trial – Whether guarantors would report any breaches of bail – Role and responsibilities of guarantors – Home detention bail with electronic monitoring granted subject to extensive and strict conditions, guarantees and written assurances given pursuant to s 11(2)(b).
Criminal Law Consolidation Act 1935 s 29(1); Bail Act 1985 s 10(1), s 11(2)(b), s 14, s 16(2)(c), referred to.
R v Collie (No 2) (2002) 220 LSJS 239, applied.

R v P, AC
[2005] SASC 451
BLEBY J:
Brief history

These proceedings began as an application by the DPP pursuant to s 14(2)(a) of the Bail Act 1985 for review of bail granted on 22 November 2005 by a Judge of the District Court. The accused had been in custody and on that day was granted bail in the District Court on conditions of home detention. I will refer in more detail later to the conditions imposed.
The accused is charged with two counts of endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935. He is a carrier of the HIV/AIDS virus. It is alleged that he had unprotected sexual intercourse with two women, the first between August 2000 and July 2001, and the second between August 2004 and 15 October 2004. Although he was aware that he was HIV positive at the time of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v P, AC

Details

AGLC: R v P, AC [2005] SASC 451
Case: [2005] SASC 451
Decision Date: 29 November 2005

CaseChat Overview and Summary

The case of R v P, AC involved an HIV-positive individual charged with two separate counts of endangering life. These charges arose from consensual unprotected sexual intercourse with two women, each during separate relationships. The second offence was alleged to have occurred while the accused was on bail for the first offence. The Supreme Court had previously revoked the bail granted by the District Court, but a subsequent District Court Judge granted bail on more stringent conditions, including home detention. The Crown sought a second review of the bail decision, which was denied due to the court's inability to handle the extensive evidentiary material within the required 72 hours. Consequently, the bail was revoked, and an immediate oral application for bail was entertained.

The legal issues before the court involved the proper construction of Section 10(1)(b)(ii) of the Bail Act 1985, which pertains to the likelihood of re-offending, and whether there was an error in its application given the accused's lack of previous convictions. The court had to consider the implications of the accused being in custody for managing their illness, as well as the potential discrimination and harassment they might face in prison. Additionally, the court examined the risk of re-offending in the context of the circumstances surrounding the alleged offences and the accused's current stable relationship with their fiancée.

The court found that Section 10(1)(b)(ii) should not be narrowly interpreted to require past proven offending for the likelihood of re-offending to be considered. Instead, the court should focus on the potential consequences of any re-offending, which, in this case, were deemed catastrophic due to the risk posed to innocent third parties. Despite the presumption in favour of bail, the gravity of the alleged offences and the need to protect the general public weighed heavily in the court's decision. The court granted bail subject to extensive and strict conditions, guarantees, and written assurances, including home detention with electronic monitoring.

The final orders of the court included granting bail to the accused on conditions that mandated home detention with electronic monitoring, subject to the extensive conditions, guarantees, and assurances provided. The court also required the accused to comply with a strict set of terms and conditions designed to mitigate the risks associated with their release, including regular reporting, adherence to specific health and safety protocols, and the involvement of guarantors who would monitor compliance and report any breaches.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I will refer in due course to the other evidence before the District Court Judge.Matters for consideration The present matter came before me initially by way of review under s 14 of the Bail Act 1985. Because it was an application by the prosecution for a review of the grant of bail there was a statutory stay of the District Court Judge’s order under s 16 of the Bail Act for a maximum of 72 hours from the time when the order was made. It became apparent that I could not deal with the application satisfactorily within that time. I therefore revoked the grant of bail and entertained an immediate oral application for bail by Mr Borick QC, counsel for the accused. It is that application which is now formally before me. I do not consider that, apart from the extra few days in custody pending the hearing of the application, the accused is prejudiced in any way by having to make a further application for bail. If the matter were dealt with under s 14 of the Bail Act by way of review, I would be obliged to reconsider the application for release on bail and to make any decision on that application that should, in my opinion, have been made in the first instance.[1] I would be required to review the material placed before the District Court Judge together with such other evidence and material as is placed before me. In effect, I would be hearing the application for bail de novo. That is precisely what I am doing in this case, and for that purpose I have access to all the material and evidence that was before both District Court Judges, together with such further evidence as has been led before me.[1] Section 14(3) Bail Act 1985.The earlier refusal of a Judge of this Court to grant bail Where there is a very recent decision to grant or refuse bail on an application for review of bail by a Supreme Court judge, it will be unusual to reverse that decision without very good reason and without some substantially different material being placed before the judge on the second review or application. The review process and renewal of applications for bail cannot be used for the purpose of judge shopping in order merely to attempt to obtain a favourable result from another judge. In order to avoid the consequences of that decision in this case, Mr Borick QC, counsel for the accused, sought to argue that the Judge had applied a wrong test. The Judge expressly had regard to the submissions of counsel, the presumption in favour of bail and the evidence given before him by the accused’s fiancée and mother. In refusing bail he said:Even if the risk of re-offending is moderate to low, and it cannot be said that it is negligible in view of the allegation of re-offending whilst on bail, the consequences of any re-offending for an innocent third party will be catastrophic. In my opinion, that is the most important consideration in this case. This is the passage in which Mr Borick alleges there was an error. Section 10(1)(b)(ii) of the Bail Act 1985 requires the Court to have regard to the likelihood (if any) that the applicant would, if released, offend again. Subparagraph (g) requires the Court to have regard to any other relevant matter. Taken literally, the likelihood of offending again assumes some past proven offending. Mr Borick claims that in this case that has not occurred, and the Judge’s application of that paragraph was wrong. However, I do not think that that is what is intended by s 10(1)(b)(ii). Otherwise, that provision could not be used to justify detention of an alleged serial rapist or killer who has no previous conviction for those offences. That would, understandably, give rise to public outcry.