R v SEM

[2008] SASC 73

Supreme Court of South Australia

(Criminal: Application)

R v SEM

[2008] SASC 73

Reasons for Ruling of The Honourable Justice Vanstone (ex tempore)

6 March 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL - MURDER CASES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

Prosecution application to revoke grant of bail in the Magistrates Court - charge of murder - suggestions of witnesses holding fears of reprisal for co-operation with police - weapon not yet recovered - whether Magistrate was correct in granting bail - whether bail conditions were adequate. Held: grant of bail appropriate but further term requiring surrender of passport required.

Bail Act 1985 (SA) s 14, referred to.

R v SEM
[2008] SASC 73

1. VANSTONE J:     The Director of Public Prosecutions applies to have this court review the grant of bail by a magistrate to the respondent, Rotha Sem.

2. The respondent is charged with murder; the particulars being that he, on 2 December 2007, at Parafield Gardens, murdered Thea Kheav.

3. The injuries leading to the victim’s death were sustained at a party which took place at Vartue Street, Parafield Gardens, on 2 December 2007.  The police allege that during the party a group of persons, including the respondent, arrived and that fighting took place at the front of the premises.  During the fighting, the victim was stabbed.  He died as a consequence.

4. The police apparently have witnesses who claim that they saw the respondent and another man viciously assaulting the victim.  Police also claim to have physical evidence linking the respondent to the crime.  When spoken to by police, the respondent initially admitted being at the party, then leaving after some trouble and returning with others and then being involved in a fight, but then leaving again.  Later he declined to answer further questions.  He was arrested on 22 February 2008 and has been in custody since.

5. On 22 February the respondent was refused police bail.  On 25 February he appeared in the Adelaide Magistrates Court and a Bail Inquiry (Home Detention) report was ordered.  That was favourable.

6. On 4 March the respondent appeared before the Deputy Chief Magistrate and was granted bail.  The terms included home detention with an electronic transmitter; obedience to lawful directions of a Community Corrections Officer;  that he not make any telephone calls;  a recognisance of his own in the sum of $5000 and two guarantors, each in the sum of $5000.  It is in relation to that decision that this review is sought.  Because the prosecution indicated it would have the decision reviewed, the respondent’s release was deferred.

7. I note that under s 14 of the Bail Act1985 a review by this court, in these circumstances, involves a reconsideration of the application for release on bail.  I may make any decision that could have been made by the magistrate.

8. Factors tending against the grant of bail, which were presumably put to the learned Deputy Chief Magistrate, include that the respondent is alleged to be a member of an Asian gang, which has a reputation for crimes of violence and drug dealing; that police believe he has a position of power within that gang;  that the weapon used on the victim has not been located;  that witnesses are said to be reluctant to speak to police for fear of reprisals from gang members, and that it is said that the victim’s brother, a witness in the matter, has received threats.

9. On the other hand, the respondent is young, he is 18 years of age, on my calculation.  He has no prior convictions.  He can live with his parents in their home and be electronically monitored there.  They will guarantee his compliance with the terms of the bail.  I have not been told anything to the effect that they are not persons of good character.

10. Although I accept that the investigation continues and that the weapon is still outstanding, it is now more than three months since the incident and no doubt the main work, in terms of identification and efforts to recover the weapon, has been attended to.

11. I have considered the material before me, which I might say is scant, in more than one sense;  in particular there is no material on oath to support the fears and beliefs which are attributed to the police and witnesses and which I have mentioned.  There is no material on oath to support the allegation of threats to the victim’s brother, nor to link that allegation to this respondent.

12. A further important matter is that, on my reckoning, the respondent could not expect to have his trial before the end of 2009, because of the amount of work to be done in preparing the matter and because it is unlikely that the matter will be committed for trial (assuming it is) before the end of this year.

13. Faced with this decision at first instance I would have come to the same conclusion as did the learned magistrate.  I decline to revoke the grant of bail.

14. The respondent and his guarantors should now be permitted to enter into their respective agreements, but there should be one additional term added to the draft bail agreement and that is that prior to his release his passport be surrendered to the Deputy Registrar (Criminal) of the Supreme Court.  I reserve the right to settle these reasons.

15. Therefore my order is:

    Bail is granted to the respondent on the same terms as in the Magistrates Court except that also, the respondent must, before release, surrender his passport to the Deputy Registrar (Criminal) of the Supreme Court.