R v Tuifua
[2020] ACTSC 73
•7 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tuifua |
Citation: | [2020] ACTSC 73 |
Hearing Date: | 7 April 2020 |
DecisionDate: | 7 April 2020 |
Before: | Elkaim J |
Decision: | The application for bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special and exceptional circumstances – history of failing to comply with bail conditions – criminal history and commission of offences whilst on bail – application refused |
Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 22 |
Parties: | Sione Tuifua (Applicant) The Queen (Respondent) |
Representation: | Counsel J Robertson (Applicant) S Janackovic (Respondent) |
| Solicitors Sharman Robertson Solicitors (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 288 of 2019 |
ELKAIM J:
This is an application for bail made pursuant to s 9D of the Bail Act 1992 (ACT). This means the applicant must establish special and exceptional circumstances in order to succeed. The application is opposed.
The matter is currently listed for a criminal case conference on 5 May 2020, call over on 10 June 2020 and trial commencing 15 June 2020. At this stage the likelihood of the trial proceeding on the assigned date is uncertain.
The matter has some unusual features. The applicant is charged with serious offences, in particular involving violence and the use of an offensive weapon. In addition, he has a significant criminal record.
However, as the indictment reveals, in all except one of the charges, there is a co‑accused, Mr Stanley Hambesis. The co-accused is on bail and has been since his arrest. I do not know if he has a less serious, or even any, criminal record. The information was simply insufficient for me to conclude that the co-accused’s bail necessarily suggests an injustice to the application.
The applicant submitted that even on the Crown case the co-accused played a greater role in the offending. The Crown did not accept this suggestion.
What makes the matter unusual, is that the complainant, Mr Simon Evans, has completed a statutory declaration, dated 1 April 2020, in which he says his original statement was in error and he was not assaulted by the applicant. Not only was he not assaulted but the applicant, perhaps a little inconsistently, has apologised. The complainant ends his statutory declaration saying this:
Given that I now know Sione [(the applicant)] wasn’t involved in the assault and he has apologised, I feel it’s unfair that Sione is currently locked up for something which he didn’t do, as Stan [(the co-accused)] was responsible for both the assault and theft of my car. Now that I know all this I personally have no concerns if Sione was to be released.
The change of recollection has been confirmed by the Crown to the effect that the complainant has apparently told the police that he was not sure about the correctness of his earlier statement.
The Crown has submitted that the retraction of the complainant’s allegations should be treated with some caution. It could even indicate that undue pressure has been put on him by the applicant through a third party. The Crown is concerned that should the applicant be on bail he could continue his threats against the complainant, and perhaps other witnesses, to ensure that they do not give evidence contrary to his interests.
The Crown has pointed out that although the complainant is obviously an important witness, there are other witnesses who can attest to events consistent with the complainant’s original statement.
If the applicant has indeed influenced the complainant from prison, one wonders why he would need to continue to do so out of prison. The bail consideration form points out that between 2010 and 2019 the applicant breached his bail conditions on 11 separate occasions. Further, when he was arrested for the current offences he was in breach of bail by failing to obey a curfew. The form notes that the applicant has made threats against the complainant and there is a belief that this will continue both against him and others. The police think that the applicant is “a significant threat to the community” and if released on bail “will continue to commit other offences”.
Dealing first with whether or not there are special circumstances, I think there are, and that they arise from the statutory declaration of the complainant. If this declaration is genuine then the Crown case will be substantially weaker. Another factor which influences my decision on this aspect is that this matter falls under s 9D because at the time of the offending the applicant had another serious offence pending. However, that charge was due to be withdrawn so the application of s 9D is somewhat fortuitous in the Crown’s favour.
Establishment of special circumstances does not however entitle the applicant to bail. Once this threshold has been met then s 9D(3) says the provisions of s 22 must still be considered. This is where the application is blunted.
Not only based on the police bail consideration form, but also having regard to his criminal record, it is apparent that the applicant has displayed a consistent and persistent disregard for bail conditions. Not only does he ignore simple conditions like curfews but, more importantly, he has committed numerous offences while on bail.
The COVID-19 epidemic has also been raised as a factor to be taken into account. I agree that it is a relevant factor. Although there is no evidence yet of any person at the AMC contracting the virus, it has had the consequence that visitors are no longer allowed at the prison and there is a real prospect that trials will be delayed. I was told that both the applicant and his co-accused wish to be tried by a judge and jury. If the recent amendments to the Supreme Court Act 1933 (ACT) do not impose a judge alone trial on the applicant, then his jury trial will almost certainly be delayed. The applicant has been in custody already for 251 days. There is a real possibility that a further extensive period will be spent in custody.
In addition, it was submitted that this lengthy period would have had a salutary effect upon the applicant so that he would be particularly concerned not to commit further offences on bail.
This is a matter in which I would have been disposed to grant bail. However, the probability, based on the applicant’s history, of effectively ignoring bail conditions, stultifies his application to an extent that bail must be refused.
I would finally add this; should it transpire that COVID-19 makes its way into the prison or the likelihood of the applicant coming to trial is delayed for a very significant period, I would regard either of those facts as establishing appropriate circumstances to ground a further application for bail. This observation of course is mine and would not bind any other judge who might be hearing the application.
Accordingly, the application for bail is refused.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 18 September 2020 |
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