R v SDB - [2021] SADC 99

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SDB
[2021] SADC 99
Reasons for Decision of his Honour Judge Slattery (ex tempore)
11 August 2021
CRIMINAL LAW - PROCEDURE - BAIL
SPECIAL CIRCUMSTANCES
The accused is charged with a number of offences of violence against his former partner, including aggravated assault, aggravated serious criminal trespass and unlawfully choking or strangling another.
The accused has been in custody since March 2020 and applies for an order for home detention bail under s 10A of the Bail Act. The trial of the action is set for February 2022.
Whether the accused is able to establish special circumstances.
Held: application refused.
Bail Act 1985 (SA) s 10, s 10A, referred to.
R v Moore unreported decision, SCCRM-21-52, 4 March 2021; R v Lombardi [2013] SASC 61; Butler v R [2020] SASC 74 ; R v Fox [2017] SASC 5, discussed.

R v SDB
[2021] SADC 99

Application for the accused to be released on bail.
This application first came before me on 3 June 2021. At the time, I indicated to the parties that, having regard to the content of a statutory declaration sworn by the complainant of 27 March 2021, there was an issue that needed to be resolved as to whether or not this matter would proceed. In this statutory declaration, the complainant says that because of the effect of what she describes as pressure from police and the DPP, she feels unable to continue with the prosecution. I set out the content of the statutory declaration in full below.
On 3 June 2021, the prosecution indicated that a survey was being made of a number of pieces of evidence concerning that statutory declaration. The Director indicated that an affidavit would be filed that dealt with those matters and that the issues for determination on this bail application would need to be considered in the background of that further material.
The court has now received and the Director reads into evidence, an affidavit of Senior Constable Gabriel Popa sworn 7 July 2021. No objection was raised by Mr Vadasz to the receipt of the affidavit or that its contents in full should be read into evidence. This affidavit provides the information that was required by me on 3 June 2021 and its receipt into evidence is largely determinative of this application.
I turn first to the charges against SDB.
SDB has been charged on the Information dated 18 December 2020 with the following offences:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidated Act, 1935).
Particulars of the Offence
SDB on the 7^th day of March 2020 at Exeter, entered or remained in the place of residence of AO as a trespasser, with the intention of committing an offence therein, namely assault.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and SDB knew…

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 SDB

Details

AGLC: R v SDB [2021] SADC 99
Case: [2021] SADC 99
Decision Date: 11 August 2021

CaseChat Overview and Summary

The case of R v SDB involved the accused, SDB, who was in custody and had applied for an order for home detention bail. The charges against the accused included aggravated assault, aggravated serious criminal trespass, and unlawfully choking or strangling another person, all of which were alleged to have been committed against the accused's former partner. The application for bail was made under section 10A of the Bail Act, and the trial was scheduled for February 2022.

The primary legal issue the court needed to address was whether the accused could establish special circumstances that would warrant a grant of bail. Special circumstances are circumstances that make it just and equitable to grant bail, even if the usual considerations for bail do not support such a decision. The court had to evaluate the evidence and arguments presented to determine if the accused had met this high threshold.

In making its decision, the court considered the nature and seriousness of the charges, the accused's history of offending, and the potential impact on the community and the alleged victim. The court concluded that the accused had not demonstrated special circumstances sufficient to warrant a departure from the usual bail considerations. Consequently, the application for home detention bail was refused.

The court's decision was based on a comprehensive assessment of the evidence and the arguments presented. It was determined that the serious nature of the charges and the potential risk to the alleged victim and the community outweighed any arguments for bail. Therefore, the application for bail was dismissed, and the accused remained in custody pending the trial.

Orders

Orders of the court

SPECIAL CIRCUMSTANCES

The accused is charged with a number of offences of violence against his former partner, including aggravated assault, aggravated serious criminal trespass and unlawfully choking or strangling another.

The accused has been in custody since March 2020 and applies for an order for home detention bail under s 10A of the Bail Act. The trial of the action is set for February 2022.

Whether the accused is able to establish special circumstances.

Held: application refused.

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

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