R v SDB
[2021] SADC 99
•11 August 2021
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 7th 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 of the other’s presence or was reckless about whether anyone was in the said place.
Second Count
Statement of Offence
Aggravated Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidated Act, 1935).
Particulars of the Offence
SDB on the 7th day of March 2020 at Exeter, assaulted AO and thereby caused her harm.
It is further alleged that SDB committed the offence knowing that AO was a person with whom he was, or was formerly, in a relationship.
Third Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidated Act, 1935).
Particulars of the Offence
SDB on the 7th day of March 2020 at Exeter, being or having been in a relationship with AO, unlawfully choked, suffocated or strangled AO, without her consent.
In the alternative to Count 3 SDB is charged with:
Fourth Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidated Act, 1935).
Particulars of the Offence
SDB on the 7th day of March 2020 at Exeter, assaulted AO.
It is further alleged that SDB committed the offence knowing that AO was a person with whom he was, or was formerly, in a relationship.
The accused has entered pleas of not guilty to each of these charges. The trial of this action is set for early February 2022.
The principal prosecution witness is the victim who is the former partner of the accused. She is the mother of an 8 year old son but the accused is not the father of that child. As at March 2020, the Department of Child Services had taken care and control of the child from the victim. She and the accused had previously lived in a domestic relationship for a number of years. This relationship was ended by the victim who had at the time sought the return of the child. The Department had earlier informed her that before any consideration could be given to her request for the return of the child, she would first have to terminate her relationship with the accused.
The victim has given a detailed statement to the police dated 28 March 2020 and, within it, the following allegations of fact are made.
1.She said that she had known the accused for, approximately, two years and was on an on again/off again relationship with him that ended about six weeks ago.
2.She was told by the Department of Child Protection that the accused had a bit of a bad past and if she wanted to get her son back she would need to cease contact with him.
3.She was currently in domestic violence housing and she informed the accused of that address. This was a mistake which, implicitly, she regrets.
4.There was contact with him after the time that she told him that they could no longer be in a relationship.
5.On 7 March 2020, she went to lunch with her father in Semaphore and the accused attended. He had not been invited.
6.He stayed with them for some time.
7.The lunch ended at about 1.30.
8.She returned home, went for a run and at about 5.30 or thereabouts, she had a sleep.
9.At about 6.30 p.m, she woke up as she found the accused walking into her room.
10.She told him that he could not be there. She got emotional and started crying and he became angry.
11.She asked him how he got in because the doors were locked and he said 'I got in through the manhole'. He then grabbed her by the wrists, led her back to the bed and attempted to have sexual intercourse with her; she refused.
12.He led her to the kitchen and was continually asking her about who she was sleeping with and who she was cheating on him with; he would not accept that she was not seeing anybody.
13.He then put his left hand in front of her face and then used the palm of his right land to hit his left hand onto her nose. Her nose immediately started bleeding profusely.
14.He put her in the bath to clean her up and in an attempt to alleviate the situation she tried to console him to prevent him injuring her further.
15.He continued to make allegations that she was cheating on him and he took her phone and looked for contacts and maps. He continued to ask her who she was having sex with.
16.She made up a story to try to placate him.
17.During these exchanges, he kept grabbing her neck with both hands and holding her down and he choked her.
18.She thinks she passed out a couple of times. She had to keep sitting up because her nose was still bleeding.
19.Every time that he grabbed at her neck she struggled to breathe.
20.She did not know whether she would live through this and on one occasion when he was holding her down, she managed to get out from under his arms and run to the door. He slammed the door shut in front of her and she fell to the floor screaming. He put his hand over her mouth.
21.He then forced her out of her home to walk to his car, which he said was parked a few streets away. He needed her RAA card because he needed to get his car started. He made her put on her hat and gave her a rag to hold over her bleeding nose.
22.They left the house and walked west on Hargrave Street towards Military Road. She screamed a number of times whilst on Hargrave Street, calling out for help.
23.He restrained her and again put his hand over her mouth. When they turned onto Military Road she screamed for help to a man standing in his front yard. She asked the man to call the police but he did not give her any assistance.
24.They proceeded in the same fashion again until she recognised a man whom she knew called “D”, sought his help and then the accused then left the vicinity.
These are only factual allegations but they are of a very serious nature.
The victim thought the whole incident lasted for an hour from the time she first saw the accused in her house until the police were called. She was not clear on times because she was in a state of shock and was terrified for her life.
The victim suffered injuries and those injuries have been photographed. She says in her witness statement that she is petrified of the accused, has certain beliefs in relation to him and his intentions, and she was aware that through his father he may be aware of an address at which she was living.
These are some of the allegations of fact and form the basis of the prosecution case by which it intends to prove, beyond reasonable doubt, each of the elements of the offences charged. There is also photographic evidence and other circumstantial evidence including proof that the roof and ceiling of the victim’s home had been interfered with on that day.
The accused makes an application for bail. The relevant provisions of the Bail Act which govern this application are to be found in ss.10 and 10A of the Act and they provide as follows:
10—Discretion exercisable by bail authority
(1)If an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to—
(a) the gravity of the offence in respect of which the applicant has been taken into custody; and
(b) the likelihood (if any) that the applicant would, if released—
(i) abscond; or
(ii) offend again; or
(iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or
(iv)commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and
(d) any need that the applicant may have for physical protection; and
(e) any medical or other care that the applicant may require; and
(f) any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and
(g) any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
(2)If the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail.
(3)If the applicant is a person who is appearing or is to appear before a court as a witness in proceedings (other than proceedings relating to an offence for which that person has been charged or convicted), the bail authority should, subject to this Act, release the applicant on bail unless there is a likelihood that the applicant would, if released, abscond.
(4)Despite the other provisions of this section, if there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.
10A—Presumption against bail in certain cases
(1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.
(1a)An applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist for the purposes of subsection (1) unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of—
(a) a serious and organised crime offence; or
(b) an offence committed in another jurisdiction that would, if committed in this jurisdiction, have been a serious and organised crime offence.
(2) In this section—
prescribed applicant means—
(a) an applicant taken into custody in relation to any of the following offences if committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit:
(i)an offence against section 13 of the Criminal Law Consolidation Act 1935 in which the victim's death was caused by the applicant's use of a motor vehicle;
(ii)an offence against section 19A of the Criminal Law Consolidation Act 1935;
(iii)an offence against section 29 of the Criminal Law Consolidation Act 1935 if the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle; or
(b) an applicant taken into custody in relation to an offence against section 17 if there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under section 11(2)(a)(ii); or
(ba) an applicant taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or
(bb) an applicant who is a serious and organised crime suspect;
(c) an applicant taken into custody in relation to an offence of contravening or failing to comply with a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008; or
(ca) an applicant charged with an aggravated offence involving physical violence or a threat of physical violence if an aggravating circumstance of the offence is that, at the time of the alleged offence, the applicant is alleged to have contravened an intervention order of a court and the offence lay within the range of conduct that the intervention order was designed to prevent; or
(d) an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:
(ci) section 11;
(i) section 20A;
(ii) section 85B;
(iii) section 172;
(iv) section 248;
(v) section 250; or
(e) an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 3 Division 3 of the Sentencing Act 2017); or
(f) an applicant taken into custody in relation to both—
(i)a serious drug offence (within the meaning of section 34 of the Controlled Substances Act 1984); and
(ii)a serious offence against the person (within the meaning of section 74EA of the Summary Offences Act 1953); or
(g) an applicant who is a terror suspect; or
(h) an applicant taken into custody in relation to an offence against section 86(4) of the Children and Young People (Safety) Act 2017.
Under s.10A of the Bail Act, and it is not in contest that the accused is a prescribed applicant, the accused is not to be granted bail unless he establishes the existence of special circumstances justifying his release on bail. The accused has been in custody since his arrest in April 2020.
In June 2021, the time that this matter first came before me, I had not been made aware of a number of matters that were known by the police or about matters upon which the police needed to make further investigations. It is in the background of those matters and the submissions of Mr Vadasz that have been made today that this application must be resolved.
The basis of the application is first that a statutory declaration has been made by the victim. It reads:
I wish to withdrawal any previous statements made by myself regarding the alleged charges against <SDB>. The reason why I have provided a statutory declaration at the Mitcham Library with a JP is because I feel too intimidated by the police and the DPP to engage any further with this matter. The pressure by the police and the DPP has caused my anxiety levels to increase dramatically, this coupled with post-traumatic stress symptoms, pressure tactics like providing more statements, the DPP lawyers coaching me; and getting me to practice and rehearse what I will need to say if/when the matter goes to trial are a few examples of the pressure I am under. I wish to withdrawal charges and statements made thus far with this matter.
The declaration is witnessed by a JP.
In his submissions, Mr Vadasz referred to this statutory declaration and said that the deponent has now recanted her allegations and makes the position clear that she does not wish to proceed with the matter. He submits that the statutory declaration was forwarded to the DPP on 14 April 2021 and he said he understood that the last contact between the complainant and the investigating officer was 28 May 2021. That submission appears to be incorrect and I will come to that later. Mr Vadasz submits that there is no further statement made by the victim to recant what is contained within the statutory declaration. He submits that the investigating officer has lost contact with the complainant and notwithstanding, the DPP wishes to proceed and to continue to oppose bail.
Mr Vadasz then addressed the transcripts of telephone conversations between the accused and his father and letters sent to the victim which are annexed to the affidavit of Senior Constable Popa. He characterised the conduct of the defendant as being hopeful that something would develop and submitted that, rather than a contact being made through the auspices of his father and through a third party to the complainant, the correct position is that contact has been made from associates of the complainant back through one of the accused’s associates to himself. He also submitted that information has come forward that the complainant has suggested that if she was paid $10,000, she would withdraw the charges.
Mr Vadasz submitted that the court has now been told that the complainant is unwilling to proceed with the complaint, it has a statutory declaration and there is no question that it is genuine. She has been out of contact since and his client remains in custody. In those circumstances, these are all special circumstances and the decision of Stanley J in R v Moore[1] is distinguishable. In that case, the complainant had signed a form PD207 indicating that she did not wish to proceed with the prosecution. Mr Vadasz emphasised the difference that in this statutory declaration the complainant accuses the DPP and the police of using pressure tactics. He says that she is the only prosecution witness and the whole of the matter revolves around her credibility.
[1] Unreported decision, R v Moore, SCCRM-21-52, 4 March 2021.
In his affidavit, dated 7 July 2021, Senior Constable Popa said that he served the accused with a police interim intervention order for the protection of the complainant. It is annexure A to the affidavit. It is not in contest that the accused had been served with that order. It provides:
INTERIM INTERVENTION ORDER
…
The DEFENDANT must not:
1. Assault, threaten, harass or intimidate the protected person(s).
2. Follow or keep the protected person(s) under surveillance including tracking by GPS or otherwise.
3. Approach within 200 metres of the protected person(s) unless permitted by other conditions of this order.
4. Contact or communicate with the protected person(s) either directly, or indirectly in any way (including telephone, SMS messages, in writing, e-mail or any other social media etc).
He said that at 10.00 a.m. on 23 October 2020 he attended with the victim at the offices of the DPP for a follow-up meeting prior to a trial commencing and at that time she handed to him a number of letters that she had received from the accused. She said that these letters were received through a third party male she knew.[2] These were seized by Senior Constable Popa, they were photocopied and are annexure B to his statement. He has attempted to obtain a statement from the victim as to how she got the letters in order to progress an investigation regarding an alleged breach of intervention order that occurred as a result of the receipt of these letters. That has not yet happened.
[2] This person is identifiable as JDC, who is mentioned later in these reasons as an “associate”.
On 19 November 2020, Senior Constable Popa made a request to the Police Correction Section to access phone calls made by the accused from Mobilong Prison and these have been reviewed. After that request and on 24 April 2021, he received information that the statutory declaration had been received. This was notwithstanding that no response had been made to him by the victim in relation to the question of investigating the breach of the intervention order which was known as early as 23 October 2020.
He also then made a further request to Police Correction Section for phone calls made by the accused between 1 March 2021 and 1 May 2021. Having listened to those phone calls he became aware that the accused had been contacting his father from Mobilong Prison. He deposes that arrangements were being made for the accused’s father to contact a third party who had instructions to approach the victim and get her to drop the charges. Transcripts of those conversations are contained within Exhibit C to the affidavit.
I stay for the moment with the letters. The bundle of letters within annexure B to the affidavit are from the accused to the complainant. In the first relevant letter, the accused says to the victim that he could go on forever about his regrets and things that he would change. He expresses his sorrow. At the bottom of that page he says:
I need you to withdraw the charges, talk to my lawyer <name of lawyer> as soon as possible and he will talk you through what you need to do. Please, A.
He then sets out the charges and the penalties he may be facing in relation to those charges. He says the felony choking makes him a prescribed applicant, which means he's unable to get bail and he is also an automatic serious offender. He goes on to say:
If you don't withdraw your statement, I am looking at 10 years minimum. A, please, I can't do 10 years. I may deserve it but please have mercy.
In another letter, at p.1 of two, at the bottom of the page, he says:
If you are wondering how to withdraw the charges contact <name of lawyer> and he will give you the step-by-step but I imagine you would need to give <name of lawyer> a stat dec signed by a JP saying you were confused, angry and under pressure and duress from cops and DCPS to charge me. You have to be clear that I have never come into your home without being invited in, that I did not strike you or choke you, you made that statement out of anger, confusion and extreme pressure and duress. Ultimately you don't need to give a reason, just say you were confused and emotional and distressed because they had taken away your son and everyone you loved and you were having a breakdown. Talk to <name of lawyer> and he'll tell you the best thing to say. Please A, I am a fuckhead but I don't deserve 10 years do I?
The police now have transcripts of a series of phone calls between the accused and his father. The contents of a portion of one of those calls made on 5 March 2021 is as follows (the accused is identified as ‘I said’):
He said, Hello.
I said, Hello, hello.
He said, Yes can, who is speaking?
I said, It’s <S>.
He said,Oh sorry….. Another call mate so I’m up in the air. Okay. Okay so you got a number for me?
I said,Yes, yes, yes it’s oh, four, give, eight.
He said,Yes.
I said,Five, two, zero.
He said,Yes.
I said,Nine, six, three and its <associate>.
He said,How do you spell that?
I said,<spells out associate’s name>
He said, <associate> Okay.
I said,Yes.
He said,So if he doesn’t ring me by the middle of the week I ring him?
I said,Yes well I mean even, even in the next day or two just give him a buzz just to see if he’s got the letter yet.
He said,Okay. Alright.
I said,Alright so…………… so.
He said,What’s this letter? What’s this letter?
I said,It’s just instructions on how to go about proceeding.
He said,Right. Okay.
I said,So, so just quickly have you, have you decided you’re going to be able to help us or?
He said,Well it’s a question of how much and I wanna, I wanna sort of check this guy out……… myself.
I said,Yes, yes, yes.
He said,Well, let’s just assume that yerno we can make………. A way forward with it.
I said,Yep.
He said,When do we need to involve…… in this?
I said,Well I guess that’s, that’s, that’s your call I mean if you wanna, if you wanna give him a buzz and ask him his advice on how to proceed I don’t know.
He said,Yes because I mean we certainly shed, shed have to sign a statutory declaration or some kind of legal document.
I said,Yes, yes that’s right.
He said,Yes so I mean I think it would be wise to do that so I might even do that first.
I said,……………..
He said,Try and get on, get on to him.
I said,Yes.
He said,Because it yerno takes a day or two to get him.
I said,Yes, yes, yes.
He said,And then I’ll call <associate> next, early next week.
I said,Alright cool, cool.
He said,Alright.
I said,No worries. And just let Nick know that I would like a phone call with him after, after………. Sorted.
He said,Yes.
I said,I’d like, I’d like to speak to him just about the other matters just to get them………
He said,Alright, sure, sure.
Then on 9 March 2021 there is a further conversation. A portion of it provides:
He said, Yes, yes.
I said,And it occurred to me that I didn’t actually explain what his end of it was. He, he didn’t suggest to me that he be a middle man. What he did was he sent me a letter saying that he’d been contacted by her camp and that you should ring her and gave me her, her number which you might as well take down. Oh, four, eight seven.
He said, Oh, four, eight, seven.
I said, Eight. Oh fiv. Oh, four, five, five, one, eight.
He said, That’s his number?
I said, No that’s her number.
He said,Well look I’ve been talk, I’ve been talking to another lawyer, not Nick and they’re really, really worried about this whole process.
I said,Oh look I know that, I know that, that’s why, that’s why I was a bit hesitant to get you to talk to the lawyer in the first place. Because its tech, technically, it’s a bit nonkosher.
He said,Yes that’s right. I mean and, and there is a risk for all of us in it that, um.
I said,There is that’s why, that’s why.
He said,If she back tracks and says trying to coerce me you know what I mean. Or, or if might even be someone else is coercing her to coerce us.
I said,No, no so it’s nothing like that. It’s nothing like that. My mate wouldn’t, wouldn’t put it to me if there was anything dodgy about it at all and that’s why I suggested that he, he take the reins with it so you don’t have to be involved.
He said,Yes. Yes, yes.
I said,Right. All, all [unintelligible].
He said,When I get back which is the weekend.
I said,Yep.
He said,I’ll get in touch with him. I might even go and see him. I think it’s better than talking.
I said,I, I agree, I agree.
He said,Yes I’ll make a time and go and see him on the weekend.
I said,Yes.
He said,And just see what the [unintelligible] is, alright?
I said,Yep and there’s, there’s basically the process is there needs to be trip down to the, to the local police station and there’s a section.
He said,Yes.
I said,There’s a, twenty, twenty-three A or a twenty-three B form that needs to be filled out and that’s, that’s, that’s the long and the short of it.
He said,Okay. Alright.
I said,Alright. And like I said, I’ve given him instructions on how to approach it all and I, I suggested that he be, just so you don’t have to be involved and.
He said,No.
I said,All, all I need from you is to, is to come up with um, with as much paper as you can.
He said,Yes righto. Okay.
I said,Yes.
He said,Alright well look I’ll, I’ll talk to him on the weekend <S> and see where it leads alright.
I said,Yes it’s just that, this is like, I’ve looked at the whole situation and if, if don’t go down, if I don’t go down this avenue I’m kinda fucked.
He said,Yes okay, alright well let’s see how we go. Well I don’t know when it will be on the weekend so leave it with me and maybe give me a ring next week if you can?
I said,Alright.
He said,Alright.
There was another conversation on 18 March 2021; a portion of it provides:
I said, How are you mate?
He said, Yes good. I’ve just come back from a brief visit with your mate.
I said, Yep.
He said,And basically yerno we agreed yerno we’ve gotta be really careful about this and that the next step will be that he’ll make contact with her and try to confirm whether she’s um, whether she’s fair dinkum about going forward and if she is probably the next thing to do is for me to talk to Nick and get the appropriate form for her to sign.
I said, I’m pretty sure that has done at the police station.
He said,Yes. Oh no it would have, it would certainly have to involve a justice of peace or a police officer.
I said, Yes.
He said, Yes. Definitely but there may be a particular for, I don’t know.
I said, Yes there, there is.
He said, Okay well he will know what that is so.
I said, Yes.
He said, Yes.
I said, I think, I think it has, I think it has to be done at.
He said, [unintelligible] sorry.
I said, I think it has be done at the station but.
He said,Fair enough. Anyway he, he, he says your mate says that he will get on to it as soon as he can and let me know so I can then take it forward with Nick.
I said, Cool.
He said, Alright so.
I said, Oh excellent. No worries at all.
He said, Well I mean don’t get your hopes up too high, you know what she’s like so.
I said, Yes I know, I know. I know. Alright well I’ll leave you to it.
He said, Okay…
I said, Thanks, thanks heaps dad aye.
He said,I got a, I got a check in the mail. I’ve never had a check in the mail from you before. It was a, it was a first.
I said,Yes. Just my, my little contribution you know.
He said,Yes fair enough. Okay.
I said,Yes I know it’s not much but it’s something.
He said,I know. No the thoughts there. Alright buddy. Alright.
I said,Alright cool.
He said,Alright you take care and I’ll be in touch.
I said,Will do. Alright bye.
He said,See you. Alright bye.
There was a further conversation on 21 March 2021 which provides, in part:
He said, Hello again.
I said, Hey man. How are you going?
He said, Alright.
I said, Did you.
He said,How come you’re getting to do all these phone calls these days is there [unintelligible].
I said, Coz I’m just sort of assessing my priority around in here.
He said, Oh okay far out.
I said, Yes no, I just, just rung up to, have you spoken to Nick yet?
He said, No, no.
I said,No. Perhaps when you do just, just tell him that she’s reached out through a mutual friend.
He said, Yes, yes.
I said, And, and just, just that she’s looking to drop things. Don’t mention anything about this.
He said, Yes, yes, yes I understand.
On 30 March 2021, another phone call occurred between father and son.
I said, Any, any progress with the, my mate?
He said, Yes there is, there is.
On 6 April 2021, the following conversation occurred between father and son:
I said, Yes I will do. Did you, did you manage to speak to Nick?
He said, I did.
I said, You did? And he said he’s gonna give me a call?
He said, He’s arranging a call to you as soon as he could do it. That was.
I said, Okay.
He said, He called me Sunday.
I said,No worries. Well just, just, just to clarify for when I do speak to him, that, that favour I asked, that was pretty much done was it of?
He said,Well he’ll, he’ll clarify the extent to which it has been done. I don’t, I can’t [unintelligible]
I said,Okay, okay yeah no worries.
He said,But, but an effort was put in………….
I said,Okay.
He said,Stuff happened. It’s, it’s up to him to judge whether the you know it’s sufficient to go forward but what he said to me was, you really need, he, he, he thinks whatever’s gonna happen he’s gonna have another go at the home detention application.
I said,I’ve got nowhere to do it dad. If I can’t do it at that address.
He said,Yes you, you need to try and find another one.
I said,I haven’t got one. Simple as that.
He said,Well yes I know you don’t but try to find one.
I said,Yeah I can’t.
He said,Yes.
I said,I, I know, I know, I know without even bothering trying that was my only option so if they can’t make it work there well I haven’t really got any other options. Yeah.
He said,Well think, think about it because, you know, it could be, it could be a crucial element. I don’t know but.
I said,Yes, yes.
He said,But he’s seems to think that it’s really important.
I said,Okay.
He said,you know I mean he didn’t, he didn’t know how long it would take but he, he’s said you know he put in a whatever he has to, he has to do to get the call arranged so I’m assuming it’s gonna be in the next few days but I don’t know for sure.
And on 19 May 2021, the following call was made:
I said,And I haven’t heard anything from him so. If you, if you wouldn’t mind just, just dropping a message in with his office.
He said, Sure.
I said, And say that I need speak to him if that’s at all possible.
He said, Righto. No worries.
I said,Because we’ve got court on the seventh of next month and I wanna know what’s going on with it.
He said, Well what, what, what’s that about?
I said, I have no idea.
He said, Oh right.
I said,Yes I don’t know, I don’t know. Like it’s for, it’s for the major charges cause all the other ones are dealt with.
He said,Right.
I said,But yes, I don’t, I don’t exactly what’s happening with it.
He said,Oh okay. Alright.
I said,Yes so I don’t know if we’re looking at getting charges dropped at this point. I don’t know if its yes I’ve got no idea. Because the, the, the stat dec that was sent in has a different address from the previous address.
He said,Right.
I said,So I don’t know if that helps my situation with a bail application or not.
He said,Well where’s the new address?
I said,She’s, she’s now staying with her dad which is in Parkside.
He said,Oh right okay.
I said,Yes.
He said,Well that, that, that should mean the one you had before would be fine.
I said,Well you’d think so wouldn’t you?
He said,You would. Oh definitely yes, yes.
I said,Yes. So yes, yes I need to speak to Nick to find out what’s going on with that and.
He said,Alright.
I said,Yes. So yes if you wouldn’t mind calling his office and just.
He said,Yes no worries mate I’ll do that.
In his decision in R v Lombardi,[3] Kourakis CJ dealt with the question of special circumstances. He observed that:
Section 10A of the Bail Act reverses the presumption of bail with respect to certain categories of offenders whose release on bail could reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by the expression this rationale is clear. The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances, result in an unintended or unforeseen hardship or injustice.
[3] [2013] SASC 61 at [22]-[24].
In Butler v R,[4] Kourakis CJ referred again to these matters and said that:
Parliament has formed the view that risk of further serious offending against a victim of domestic violence even before the allegations are proved is so high that the presumption to bail should be reversed. That is the view formed by Parliament which has declared that persons charged with assaulting a domestic partner in breach of an intervention order must establish special circumstances before they can be admitted to bail.
[4] [2020] SASC 74 at [5].
In his decision in Moore, Stanley J also referred to the decision of Hinton J in R v Fox[5] and his Honour there emphasised the more onerous test of special circumstances and said:
The command in s.10A is not an accused is denied bail until the risk that he or she will reoffend is sufficiently ameliorated, the victim sufficiently protected and his or her attendance at court in the future ensured.
[5] [2017] SASC 5.
There his Honour was addressing whether the offer of protection to the victim would not ordinarily amount to special circumstances. Those are the authorities which inform me in the exercise of my discretion.
I emphasise that all of the allegations that have been put to me are merely allegations, however, as Kourakis CJ identified in Butler,[6] the decision has been made by Parliament to require the special circumstances to be made out.
[6] [2020] SASC 74.
I am satisfied of the following for the purposes of my decision.
(a)The accused has requested the victim to withdraw the charges.
(b)The accused has used a third party intermediary to attempt to dissuade the victim to not cooperate with the police.
(c)The accused through his father, with whom he has been regularly communicating by phone, is aware of the then address and the phone number of the victim.
(d)There is evidence that a third party has approached the victim to persuade her to withdraw the charges.
(e)There is evidence that the DPP have now received a statutory declaration signed by the victim purporting to request that the charges be withdrawn and blaming the police and the DPP for bringing her to that decision.
The basis of the application before me for an order for home detention bail is that the accused will be able to live with his father and that he is of no risk to the victim because of the intervention orders that are in place. There are obviously a number of difficulties with that approach. Mr Vadasz has quite properly admitted today before me that the actions of the accused in writing letters in the circumstances in which he did, are a breach of the intervention order referred to by Senior Constable Popa at para.4 of his affidavit of 7 July 2021.
It is apparent to me from the telephone exchanges that the accused has some idea where the victim is living, he has a phone number, that he has used the connections with his father to make some further contact with the third party or through a third party to approach the victim and whether or not that was successful the DPP have now received the statutory declaration.
I have had regard to the sentencing options for the alleged offending. I am unable to make much of an assessment of the sentencing options if, for example, the accused is remanded in custody until his trial in January. I think that if the allegations are made out and there is a conviction, then because of the seriousness of these matters, on balance, he is likely to be given a custodial sentence.
Even though the accused's proposed address is significantly distant from the victim's present address, that may change and he has earlier breached the intervention order. There is also evidence of his being willing to use the services of third parties to make contact with the victim to persuade her to cease cooperation with the police which indirectly at least, even on an attempt basis, is a further breach of his intervention order. That sits in the background of the antecedents of the accused, including, being guilty of offences of being unlawfully on premises and carrying offensive weapons, possession of the knife at a school or a public place, and more recently his failures to comply with his bail agreement. He has a very poor history of complying with his bail agreements and there is a long list of his failures to comply with those agreements.
There is something that must be said about the statutory declaration because Mr Vadasz in his submissions sought to distinguish the decision of Stanley J in his decision in Moore. In Moore, his Honour accepted, as I do, that a refusal of bail would mean the applicant would remain in custody for a lengthy period of time. His Honour held that this places the accused in no different position from any other accused person who is contesting charges whilst on remand. His Honour did not consider that to be a special circumstance. His Honour then turned to the attitude of the complainant and he did not consider that that attitude constituted special circumstances given that her motivation for executing the PD207 was a fear of retribution from the applicant. If anything, that would be a factor even if special circumstances were established against a grant of bail. His Honour, therefore, had before him some evidence of a fear by the complainant of retribution from the applicant.
I have already canvassed the relevant material facts and especially of the declaration of Senior Constable Popa of 7 July 2021. The content of the statutory declaration must be seen in light of all of those background circumstances. There is a particular aspect of the grammar used in and the form of the statutory declaration which this court is not accustomed to see but I will put that to one side. The second is that the content of the statutory declaration, in my opinion, borders on risible. The declarant suggests that she feels too intimidated by the police and the DPP to engage any further with the matter. She then complains of pressure by the police and the DPP caused by anxiety levels. Those are very matters that were referred to by the accused in his correspondence to her. The complainant has fallen into line with the request of the accused within his letters and, in my opinion, an inference, plainly, arises that she is doing so because of fear of retribution from the accused. Therefore, I see no material difference between the position in Moore and the position in this case. I adopt Stanley J's approach that that would be a factor, even if special circumstances were established in relation to a grant of bail.
I accept, as did Stanley J, that there might be a challenge to the credit of the complainant when it comes to the trial, however, in this case, there is corroboration of the position of the complainant. There is evidence of photographs and the evidence of the investigation of the police as to the method of entry into her house on the particular day.
Importantly, there is evidence that the accused forcefully took her out of the house and took her down the street, as I have earlier described.
I should finally address the fact that there has been a suggestion of an approach being made that the complainant would withdraw her complaint if she was paid the sum of $10,000. There appears to have been an intervention again by a third party. However, in the current circumstances, I am unable to give that any particular weight because it does not amount, in my opinion, to a special circumstance having regard to the nature of the allegations made and the requirements of the statute.
In those circumstances, I refuse the application because I am not satisfied that special circumstances have been established for s 10A of the Bail Act.
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