R v SILVERBLADE

[2005] SASC 409

Supreme Court of South Australia

(Criminal)

R v SILVERBLADE

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

28 October 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING

Application for bail subsequent to another judge declining to review a Magistrate's decision to refuse bail - whether appropriate to hear application - whether appropriate to order home detention bail report - application refused.

R v SILVERBLADE
[2005] SASC 409

Criminal

1. VANSTONE J:     On 4 October 2005, Nyland J dismissed an application for a review of a refusal to grant bail to the applicant in the Magistrates Court. 

2. On Thursday, 20 October, the matter came on before me, apparently because counsel for the applicant asked that it be listed again before a judge of this Court.  I pointed out to counsel that there were no current proceedings in this Court and that the appropriate course of action was to make a fresh application in the appropriate venue.  However, since the applicant had been committed to the District Court for trial in the interim and was not to appear there until 14 November, it seemed to me convenient that I should hear the application.

3. I heard submissions as to the advisability of ordering a home detention bail report and I indicated that I would order such a report provided I received, in a timely fashion, a written application for bail.  The address of the proposed home at which the applicant might reside during any period of bail was provided to me.  I indicated that providing the filing of the application was attended to promptly I could hear the matter on the morning of Friday, 28 October, and I tentatively fixed a time.

4. On the morning of Wednesday, 26 October, a bail application was received in the Registry and was subsequently forwarded to me.  I was advised there was probably insufficient time to allow for a home detention bail report to be obtained and furnished in time for this morning’s hearing. 

5. In any event, in the meantime, I had read the papers and had determined that I would not be prepared to grant bail at this time on any conditions.  I say ‘at this time’ because it is not known at this stage when a trial date might be fixed for this matter.  Nor are all the statements comprising the prosecution case before me.

6. My decision is based on the following.  First, the charge facing the applicant is for a grave offence.  Although arson is a property offence, its gravamen here appears to be an attempt to intimidate the applicant’s wife and further, to rob her of assets.  Next, on the material before me, the case against the applicant appears to be strong.  According to his wife, the applicant threatened to burn down the house – not for the first time – shortly before it in fact burned and, further, he admitted to the police that he had done so.  I note that later he was equivocal as to whether he had made such an admission.

7. Furthermore, according to the applicant’s wife, his behaviour occurred against a background of intimidation within the marriage.  His conduct has included, threats to leave her with nothing, to disappear to north Queensland, and not to allow her to have their son with her in the event of a separation.  I note that on the occasion of his apprehension, the applicant was carrying, in his vehicle, a sawn-off shotgun.

8. I consider that there is a real risk that the applicant might interfere with and intimidate his wife and, indeed their son, if released on bail.  I also consider that there is a risk of his absconding.  In my view, that first mentioned risk would not be sufficiently ameliorated by imposing a condition of home detention, even if the applicant’s place of residence were far removed from his wife’s location.  Neither the attitude to the grant of bail of Senior Constable Corbett expressed in his statement of 31 August 2005 – which is reflected in the prosecutor’s stance – nor the psychiatric report of Dr Begg of 9 August 2005, go any distance in assuaging my concerns.

9. As I say, it cannot be known at this time when the applicant’s trial might take place.  If it cannot be listed as a matter of urgency then that might incline another judge to take a different view.  In addition, the provision of further statements not currently before me might have a bearing on the matter. 

10. The Director of Public Prosecutions should take immediate steps to ensure that the matter is ready for an early trial. 

11. I am told that the applicant will appear in the District Court on 14 November 2005.  In the meantime, the application is refused and he will be remanded in custody.