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 alleged offences, it is alleged that he did not alert either of the two women to this fact, that he knew that an act of unprotected sexual intercourse was likely to endanger the life of the victim, and that he intended to endanger the victim’s life or was recklessly indifferent as to whether her life was endangered.
The victim of the first alleged offence has contracted HIV/AIDS. The victim of the second alleged offence has not. It is alleged that the second offence occurred whilst the accused was on bail for the first offence. Both offences are said to have arisen out of serial relationships with the women concerned, separated by a period of three years. On 1 December 2003, while on bail, the accused was first arraigned in the District Court on the first charge. He pleaded not guilty. Bail continued.
Following his arrest for the second offence, the accused was refused police bail in respect of that charge on 30 January 2005. He later applied for bail in the Magistrates Court and a Bail Enquiry Report was ordered. The author of the report considered that bail on home detention conditions with electronic monitoring would be appropriate, but the Magistrate nevertheless refused bail on 1 April 2005, based on the serious nature of the allegations and because of “extreme reservations” held by the Magistrate due to allegations that the accused had re‑offended whilst on bail, that the victim of the second offence was fearful that the accused would try to contact her, and the concerns of police that the accused may attempt to intimidate the victim, abscond and continue to have unprotected sexual intercourse without divulging his illness to his sexual partners. He was committed for trial in the District Court on the second charge, was arraigned on 27 June 2005 and pleaded not guilty. He did not apply for bail, no doubt because of other events I am about to mention.
On 11 April 2005 the accused was arraigned again on the first charge. He pleaded guilty, and bail on that charge was revoked at the invitation of his then counsel.
The accused then changed his solicitor and counsel, and application was later made on behalf of the accused to change his plea on the first charge to not guilty. As I understand it, that application was based in part on the effect of the HIV/AIDS virus on the accused’s cognitive ability and his possible lack of complete understanding of the advice received from and instructions given to his solicitor, coupled with a denial of the necessary mental element of the offence of both intent and of reckless indifference. As I understand it, the accused does not deny knowledge of his own HIV infection, does not deny having unprotected sexual intercourse on many occasions with the alleged victim of the first charge, does not deny that he did not inform the alleged victim of his condition, and does not deny that she is now HIV positive. What he denies is that there was any intention to endanger the life of that victim and any reckless indifference as to whether the victim’s life was endangered. This is said to be based on his intent and his practice of withdrawing from vaginal intercourse before ejaculation, in the belief that such practice was safe, and that if he did in fact ejaculate in the victim’s vagina, this was unintentional.
During the course of the hearing of the application to change his plea, the DPP withdrew his opposition to the application, and the District Court Judge permitted the accused to change his plea on count 1. He was re‑arraigned on 14 October 2005 and pleaded not guilty.
Notwithstanding the accused’s foreshadowed defence, during the course of an interview with police he asserted that he assumed the alleged victim knew of his condition and acknowledged, in hindsight, regret at what had happened.
In the meantime, on 27 June 2005, the accused had been arraigned and pleaded not guilty to the second charge. The victim in that case alleges a sexual relationship between the two during a period of two months in 2004, and that she was aware of the accused ejaculating inside her on at least one occasion. She was not told by the accused of his HIV infection. The accused exercised his right to silence upon his arrest on this charge, although he has since, through his counsel, denied any act of intercourse with the alleged victim.
Following acceptance of the accused’s plea of not guilty to the first charge on 14 October 2005, the accused then applied to the District Court Judge for bail. Bail was granted on the accused’s own recognisance in the sum of $1,000, with two guarantees of $5,000 and $500 to be given by the accused’s mother and fiancée respectively. There was a condition that he reside at the home of his fiancée. The Judge refused an application by the prosecution to impose a condition of home detention. Before the District Court Judge the prosecution had opposed any grant of bail on both counts based on the seriousness of the offences, the risk of further offending, the need to protect the female community from the accused and the fact that the guarantors, being the accused’s mother and fiancée, were in no position to protect others from the accused and indeed had a disincentive to report breaches of bail.
The accused relied on the presumption of bail, and the fact that the charges were denied, albeit on quite different grounds. In the case of the second charge, the accused relied heavily, as an indication of lack of sexual intercourse, on the fact that the alleged victim was not infected by the virus despite allegations of numerous acts of intercourse. He also relied on evidence that stress makes it difficult for the accused to communicate his instructions, that while in prison he was under extreme stress, making preparations for his trials difficult. He relied on guarantor support from his mother and his fiancée.
The DPP applied for a review of the decision to grant bail. On 17 October 2005 a Judge of this Court ordered that the accused be remanded in custody and published reasons for his decision to refuse bail. It is clear from those reasons that the Judge was of the opinion that the accused posed a serious risk to the community, and that even if the chance of his re‑offending was moderate to low, the potentially catastrophic consequences for any victim had to be afforded considerable weight. The Judge was not invited to consider conditions of home detention and electronic monitoring or any other bail conditions.
Bail was again granted in relation to both offences by another Judge of the District Court on 22 November 2005. It is that decision which was the subject of review before me.
Unlike the previous grant of bail, the bail agreement the subject of that review was on home detention conditions with electronic monitoring. The conditions imposed by the District Court Judge included a condition that the accused reside at his fiancée’s rented unit, that he could not leave that house other than in the company of his mother, his fiancée or AIDS professional care worker, and then only for the purpose of attending medical appointments or for a purpose approved by his Community Corrections Officer. He was not permitted to leave the house for purposes of employment. He was required to wear an electronic transmitter and comply with the rules of electronic monitoring. He was not to consume alcohol or any drug which was not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosages, and to submit to any blood test as directed by the Community Corrections Officer. There were two guarantors, namely the accused’s mother, this time in the sum of $50,000, and his fiancée in the sum of $2,000. These guarantees were for much greater sums of money than the guarantees under the previous grant of bail revoked in this Court. The District Court Judge had before him a Bail Enquiry Report which concluded that home detention bail was appropriate in the accused’s circumstances. He also had a satisfactory Bail Enquiry (Home Curfew) Report. The Judge also had discussions in Court with the accused’s mother and fiancée to ascertain their willingness to ensure compliance with the conditions of home detention bail and to report any breaches should they occur. He was evidently satisfied by their responses.
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.
The requirement of s 10(1)(b)(ii) must be construed to give effect to the object of that particular provision. That is, to protect members of the public from the effects of possible offending by the accused pending trial of the offences with which he is charged. In my opinion, it requires the Court to have regard to the likelihood of conduct on the part of the accused which could give rise to further charges for alleged breaches of the criminal law. So construed, it is proper to take into account both the risk or likelihood of that happening and the consequences to members of the public if it does happen, notwithstanding the presumption of innocence in favour of the accused on the charges the subject of the bail application. That is all that the Judge of this Court did on the previous review. The risk of re-offending, in the sense I have described, even if considered moderate to low, was, with respect, properly regarded as the most important consideration in the case because of the potential consequences. The Judge did not misdirect himself in saying what he did.
The previous hearing before the Judge of this Court was limited both as to time and extent of material argued before the Judge. As it was a prosecution application for review, his Honour, not unreasonably, wanted it completed within the 72 hours prescribed by s 16(2)(c) of the Bail Act.
His Honour was reviewing an order, not for bail on home detention, but for bail with a residence condition simpliciter, with no curfew, at the home of the accused’s fiancée, with rather limited guarantees by persons who were shown to have an interest in ensuring that the accused remained out of custody, thus having, it might be said, little incentive to report breaches of bail.
The bail conditions imposed by the District Court Judge on this occasion are much more stringent, and the conditions on which I would consider granting release on bail are even more onerous still. The Judge of this Court on the previous review did not have before him the benefit of evidence from Mr Huddleston or Dr Holmwood to which I will refer in due course. He did not have, as I have had, evidence called from a friend of the accused’s mother. In addition, I have heard further evidence both from the accused’s mother and his fiancée which is relevant to conditions not considered on the previous review.
As I have said, I respectfully agree with the Judge on the previous review that the likelihood of re-offending, in the sense I have described above, is perhaps the most important consideration. This is so particularly given the allegation that the accused has re-offended while on bail for the same offence, and particularly also given the potentially disastrous consequences of any re‑offending. However, that likelihood of re-offending and those consequences must be assessed against the evidence that was before the District Court Judge and which is now before me and which was not necessarily before the Judge of this Court on the previous occasion.
As Gray J said in R v Collie (No 2):[2]
The court is required to make an assessment of the strength of these allegations and make predictions about the applicant’s future conduct The scope of a bail hearing is much broader than many other criminal proceedings There is a level of informality about the entire process. The rules of evidence are not strictly enforced as the court is assessing risk, not determining guilt.
[2] (2002) 220 LSJS 239; [2002] SASC 247 at [8].
Without going into detail of all the evidence led before me, I make the following findings which are relevant for the purposes of s 10 of the Bail Act.
The circumstances of the alleged offending
I have already commented on the likelihood of re-offending and its consequences. That likelihood, while real, and its consequences being potentially lethal, must be assessed against a number of other factors.
The first is that evidence of the accused’s alleged offending is not based on a series of multiple casual relationships or so called “one night stands”. The offending is alleged to have occurred, in each case, during serial and apparently serious and at the time stable single relationships. The accused is in one such relationship at present, with every indication that it will continue, at least for the time being. The accused’s fiancée has spoken of an agreement to marry when the opportunity presents itself. The accused’s present partner is aware of the accused’s medical condition and the consequences of unprotected sexual relationships. So long as the relationship between the two of them continues, the likelihood of the accused having sexual relations with another person is substantially diminished. If that relationship did not exist or if, for some reason, it is terminated, it is unlikely that I would, in the interests of the female community, entertain releasing the accused on bail.
Conditions to which the accused is subject in custody

Being infected with the HIV/AIDS virus, the accused, in the interests of his own health, is required to undertake continued monitoring of his condition and varied drug therapy from time to time. As the disease progresses, and he has been infected now for about 8 years, he is more likely to be subject to opportunistic infection.
Besides hearing evidence from the accused’s mother and his fiancée, the District Court Judge heard evidence from a Mr Huddleston, a social worker, counsellor and HIV support worker for the Adelaide Diocesan AIDS Centre, a division of Centacare Family Services. It is necessary to summarise his evidence briefly.
Although not a medical practitioner, Mr Huddleston, through his working with AIDS patients and with the medical profession, is aware of the nature and effect of HIV blood counts and what are known as CD4 blood counts. According to his evidence, the accused’s CD4 blood count in May 2005 indicated severe damage to his immune system and a high level of susceptibility to opportunistic infection. He has some knowledge of the South Australian prison system as it affects HIV/AIDS victims. He considers that the system is unable to provide the basic requirements of regular and timely access to an HIV medical practitioner for regular monitoring of virus and CD4 levels and early diagnosis and treatment of increasingly frequent relatively minor diseases or major opportunistic illnesses, such as pneumonia or cancer. According to his evidence, part of the necessary treatment usually involves drug therapy which also requires constant monitoring and some flexibility in administration routine which is not possible in a prison system. He also claims that there are difficulties with speedy access to HIV specialists in cases of urgency, and lack of access to new drugs and treatments. Proper diet management and avoidance of stress are also important in the treatment of HIV sufferers. He says that HIV sufferers also become the subject of discrimination and harassment in the prison system. He describes imprisonment as “an especially harsh experience for people with HIV”. Having had contact with the accused, his belief was that the accused’s health had deteriorated since his remand in custody, and that he has been the subject of discrimination and harassment. No particulars of the latter were given by Mr Huddleston. That is not surprising, as the evidence would be hearsay.
Dr Holmwood, the clinical director of the SA Prison Health Service, was also called by counsel for the DPP. He explained that the Prison Health Service was the equivalent of a patient’s general practice, and that it co‑managed chronic conditions with specialists. He was not aware of any difficulties in ensuring that an HIV prisoner received timely and specialist treatment where that was required. There was no difference in accessing emergency treatment inside or out of prison. He acknowledged that there were practical barriers and disincentives for prisoners undertaking outpatient visits at the Royal Adelaide Hospital for specialist treatment and monitoring. That was largely based on the requirements for escort and the temporary placement during the day in court holding cells before attending, escorted, an outpatient appointment.
He also had access to the records of the accused. That indicated that, since his admission to the prison system on 31 January 2005, the Royal Adelaide Hospital had indicated a willingness to continue the accused’s care. There were occasions on which the accused had refused to undergo blood tests, although some samples had been taken, and apparently samples had been taken on a visit to the Royal Adelaide Hospital. There were other occasions when the accused had declined to attend an appointment inside the prison. That may be because of a desire to conceal from supervisors and inmates his HIV positive status. However, he had been assessed on several occasions and his HIV treatment plan discussed. Dr Holmwood noted that his viral load in February/March had been about 800 and his CD4 level 106, whilst in May his viral load was almost undetectable and his CD4 level had increased to 216. Those figures demonstrated a significant improvement in his response to medication over that time since he had been in custody. Dr Holmwood considered that medication programs could usually be accommodated within the prison system. There was no need for special diet while his condition was controlled by medication, although special diet meals were also available. Trials of new drugs could be accommodated. There were no difficulties in administering the current treatment program. He acknowledged that there were difficulties with escorts and with occasional industrial action by prison staff, and there was sometimes a want of effective communication between the hospital outpatient department and the Prison Health Service.
Mr Huddleston was called before me but only in relation to proposed conditions of bail. While there are differences between the evidence of Mr Huddleston and that of Dr Holmwood in relation to monitoring and treatment of HIV/AIDS patients in the prison system, differences which it is difficult for me to resolve, not having heard their evidence, I note that Mr Huddleston’s views were coloured largely by research into the New South Wales prison system, the results of which will not necessarily be the same in South Australia. It would also appear that Dr Holmwood has a much more intimate knowledge of the Prison Health Service and the management of chronic conditions within the prison system than Mr Huddleston. Nevertheless, I gain the impression from Dr Holmwood’s evidence that there are certain inflexibilities within the prison system which create disincentives for optimum management and review of prisoners suffering HIV/AIDS compared with those outside the prison system. For present purposes I am prepared to accept that there are some but not significant disadvantages in the management of such patients.
Dr Holmwood said that there was a record of an attack of diarrhoea and vomiting on 6 October when the accused was assessed by nursing staff, and the accused’s fiancée confirmed that evidence. There is no evidence before me as to the precise cause of that. The evidence of the fiancée suggested that it was ongoing and that there appeared to have been an overall deterioration in the accused’s health since his incarceration. I am prepared to accept that there has been some deterioration, although it is not entirely clear that this would not have been the case had the accused been living in the community.
There was evidence before the District Court Judge who heard the first application by way of a report from Dr M.M. Wood, a neuropsychologist, that the accused’s ability to process information had been adversely affected by stress and the advanced stage of the accused’s disease, thus rendering the accused at a disadvantage in preparation for his trial if he remains in custody. I accept that he is probably subject to stressors in prison which he would not have if he were on bail. The effect of those stressors is difficult of precise assessment.
Mr Huddleston referred to the fact that HIV sufferers in the prison system were generally subject to a greater degree of discrimination and harassment than in the case of other prisoners. While I can accept that that is likely in most cases, the evidence foreshadowed by Mr Borick QC that this accused had been subjected to particular harassment was not forthcoming. Accordingly, I can only act on the fact that the likelihood of any such harassment is greater inside than outside the prison system.
Therefore, I am prepared to accept that the accused does suffer some disadvantage in the management and treatment of his infection compared with someone outside the prison system, but this has not been shown to be a substantial disadvantage. I also accept that there is a greater likelihood of discrimination and harassment of the accused because of his condition than would be the case of a person in good health remanded in custody, but I cannot on the material before me, find that he has in fact been harassed or discriminated against. I can and do find that he is likely, because of the factors I have just mentioned, to be subject to stressors to which someone on bail and a non-HIV sufferer in prison would not be subject, and that in his condition, if that occurs, he is likely to be placed at a significant disadvantage in the preparation of his case for trial if he remains in custody.
Prosecution concerns
Before the District Court Judge and before me the principal concern of the Director of Public Prosecutions was the protection of the community by denying the accused the opportunity of re‑offending, particularly in circumstances where it was alleged that he had re‑offended whilst on bail for the first offence. Coupled with that is the fact that the guarantors offered, namely the accused’s mother and his fiancée, both have an interest in ensuring that he remains out of custody, and therefore have a disincentive to report any breaches of bail for fear that bail would be revoked.
The accused’s mother, in particular, has been greatly distressed by the events since the accused was charged with the first offence. She has written to the Director of Public Prosecutions alleging, among other things, unjust detention of the accused and suggesting that he has been denied natural justice by being incarcerated before being found guilty of the offences. It is evident that she still holds those views and is greatly distressed by the accused’s detention.
The accused’s fiancée is also fairly distressed by his incarceration and wishes to have him live at her home.
On the one hand, it may be seen from the relationships between the accused and his proposed guarantors that there might be a reluctance on their part to report any breaches of bail. On the other hand, the breach which the prosecution most fears is perhaps unlikely to be detected by the guarantors if it occurs. Furthermore, and this is a matter of some significance, the guarantors give the guarantee in the knowledge that if there is a breach, they stand to lose a substantial sum of money. They therefore have an incentive to ensure, as far as possible, that no breaches of bail occur, and an incentive to take whatever steps are in their power to prevent such a breach from occurring.
This is a heightened responsibility, particularly on the part of the accused’s mother, who is prepared to increase the amount of her guarantee from $5,000 to $50,000 and, at my suggestion, is prepared to provide some of that as a cash guarantee.
The role of a guarantor in the granting of bail is particularly important. The guarantor must first know and understand the conditions on which it is proposed that the accused should be released. Where a guarantor knows or has reasonable cause to suspect that the person released under a bail agreement has failed to comply with one of those terms, the guarantor must take reasonable steps to inform a member of the Police Force that the failure has or may have occurred. It is an offence to fail to do so. But the obligation is more than that. The obligation is to take such steps as are open to the guarantor to ensure that the accused complies with the conditions, because if he does not, not only does he forfeit the amount of his surety, but the guarantor can be called upon to forfeit the amount of the guarantee. In the case of a cash guarantee, the amount of the cash will be immediately forfeited to the Crown. If the accused is released, it is most important that both guarantors understand the nature of that obligation.
While there was some indication given in the course of submissions of the possibility of some increased surveillance of the accused while he remained at home, that is not something which the Court can ensure by way of imposing conditions. If, to ensure compliance with their obligation properly to supervise the accused in the observance of any conditions of bail, they choose to take such additional steps, that is a matter for them, bearing in mind their assessment of the risk of the accused re-offending and their potential liability under the guarantees.
Section 11(2)(b) of the Bail Act enables the Court to impose a condition of bail that the applicant provide the Court with written assurances from a stipulated number of persons, who are acceptable to the bail authority, that they are acquainted with the applicant and are confident that the applicant will comply with the terms and conditions of a bail agreement. Both the applicant’s mother and his fiancée have indicated a willingness to provide such assurances without, of course, knowing precisely what the conditions of bail might be if he were released. If the accused were to be released I would require the accused to provide one other such assurance from Mr Huddleston.
I am therefore satisfied that some of the prosecution fears concerning the guarantors are balanced by the heightened obligations proposed to be borne by the guarantors and the assurances proposed, if they are forthcoming.
Consideration of the application
I turn to consider the matters to which I am required to have regard under s 10 of the Bail Act. In the first place, I am required to release the accused on bail unless, having regard to the matters referred to in s 10(1) I consider that the applicant should not be released on bail. In other words, the accused has what is commonly known as a presumption in favour of bail to be displaced only if the factors which I am about to mention require otherwise.
The first is the gravity of the offences. They are both serious offences. Each of them carries a maximum penalty of 15 years imprisonment. The form of the offence in the circumstances of this case renders it particularly serious because at the time of the offending the victim is quite unaware that his or her life is threatened. In fact, a female victim in this situation is submitting herself, usually voluntarily, even enthusiastically, to an act of intense passion and pleasure but which in reality, quite unknowing to her, may be an act of treacherous deceit having life threatening consequences.
Next, I must have regard to the likelihood that the applicant would, if released, abscond. Under present circumstances I think that is unlikely, and it has not been suggested as a likely possibility. He has many and close family ties in Adelaide.
As I have already mentioned, the most significant issue in this case is the likelihood of the accused offending again. I have already discussed that. That likelihood is, in my opinion, significantly reduced, for reasons I have already given, for so long as the accused remains in his present relationship with his fiancée. I have already spoken of the incentive to his fiancée and to his mother to take steps to ensure that he does not re-offend. If the condition of home detention with electronic monitoring remains with the extremely limited circumstances under which he may leave the residence and then only accompanied by one of three nominated persons, the prospect of him re-offending whilst outside the house is very low. Given that his fiancée is a student and spends much of her time at home, and given also the fact that the accused’s mother and his fiancée have a strong incentive to ensure that he is properly supervised at home, the chance of his re-offending at his fiancée’s residence would also be very low. It would be an act of deceit and an insult to his fiancée and would be inconsistent with his past apparent monogamous relationships. I foresee the greatest risk of his re-offending arising on the termination, if it occurs, of the present relationship with his fiancée. In those circumstances, it is appropriate to impose an additional condition that if the accused becomes aware or suspects on reasonable grounds that his fiancée intends no longer to reside or in fact ceases to reside at the address or that she no longer desires a sexual relationship with him, he be obliged to inform both his mother and his community corrections officer of that fact. That would no doubt immediately precipitate an application to revoke bail by virtue of the changed conditions.
I also think it would be appropriate, if he were released, to impose a further condition that he not engage in any sexual activity with another person without first informing that person that he is a carrier of the HIV/AIDS virus and that that virus may be transmitted by sexual activity. A breach of that condition in itself would be an offence, quite apart from whether some other offence of the nature of that with which he is now charged has also been committed.
The greatest risk of any re-offending is the transmission of a deadly disease. One of the more obvious means of transmission is by unsafe use of syringes. Even though the chances of transmission by that means may be low, I think it would also be appropriate, if he is released, to require observance of a condition prohibiting the use of a hypodermic syringe save under the supervision of a legally qualified medical practitioner.
The main concern of the Court is to ensure that any conditions of bail imposed which are designed to prevent or to minimise the risk of re-offending will be observed. For that reason I would also require written assurances pursuant to s 11(2)(b) of the Bail Act that the guarantors are confident that the accused will comply with the terms and condition of the bail agreement concerned. In this case, I would also require a similar assurance from Mr Huddleston.
The next matter to which the Court must have regard is the likelihood (if any) that the accused would, if released, interfere with evidence, intimidate or suborn witnesses or hinder police enquiries. There is no evidence that that has occurred so far. However, contact with witnesses, particularly the two alleged victims, was a matter of concern to the Magistrate when he first considered the question of bail on 1 April 2005. By nature of the alleged offending in this case, the relationship with the two alleged victims has been one of some intimacy and confidence. There will always be a risk in such circumstances of an attempt to interfere with witnesses. If released, I would require a precautionary condition that the accused not make contact or attempt to make contact with either of the two alleged victims or their families.
A further matter to which regard must be had is any need that the accused may have for physical protection. There was a suggestion of this by virtue of harassment of the accused in the prison system. However, it was not supported by any evidence or other material on which reliance could be placed. Accordingly, it has no present relevance in the decision required to be made.
The next matter for consideration is whether there are any previous occasions on which the accused may have contravened or failed to comply with a term or condition of a bail agreement. There is no suggestion that the second alleged offence was committed in breach of the bail agreement then in existence. The only relevance of the fact that an offence may have been committed whilst the accused was on bail is that it suggests a greater tendency to offend again, and that topic has already been dealt with.
Finally, the Court must have regard to any other relevant matter. There is nothing under this heading which has not already been considered under one of the others.
Taking all these matters into consideration and bearing in mind the conditions which the District Court Judge imposed and those additional conditions to which I have referred, I am not persuaded that the presumption in favour of bail, under present circumstances, is outweighed by the other matters to which the Court must have regard. Accordingly, I am prepared to grant bail upon not only the conditions imposed by the District Court Judge but upon a number of other conditions to which I have referred elsewhere in these reasons, and which I will now provide to counsel to consider and in order properly to advise those required to commit themselves to their various responsibilities.