R v Z, D (No 2)

[2013] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v Z, D (No 2)

[2013] SASC 100

Judgment of The Honourable Justice David

27 June 2013

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

Application for the review of a decision of a Magistrate to refuse bail - applicant charged with murder - applicant originally granted strict home detention bail by a Magistrate, a decision which was subsequently subject to an application for review by the Crown - application allowed by this Court and bail revoked - applicant made a second application for bail in the Magistrates Court, which was refused - applicant sought the review of this decision by this Court, which was unsuccessful - applicant made a further application for bail in the Magistrates Court, which was refused on the grounds of the gravity of the offence and the likelihood that the applicant would, if released, intimidate or suborn witnesses - applicant now seeks the review of this decision by this Court.

Held:  Application to be considered afresh from previous reviews by this Court in relation to the applicant and also his co-accused - questions of parity and a sense of grievance not matters to be taken into account in determining a bail application - presumption of bail clearly rebutted by the seriousness of the offending - application refused.

R v Z, D (No 2)
[2013] SASC 100

Criminal:          Application

1. DAVID J:              This is an application for review of a decision by a Magistrate made on 31 May 2013 refusing bail to the applicant.

2. This is the second such review to come before me in relation to this applicant.  He has been charged with the crime of murder.  Four other people have been arrested for the same alleged crime, and there are possible ongoing investigations which may result in others being arrested.

3. All other four defendants have been at some stage allowed bail.  It is to be noted, however, that one of those is a youth.  The applicant in this matter was refused bail by a Magistrate on 4 January 2013.  On 17 January 2013, on a review of that decision, I dismissed the application challenging that refusal.

4. As I stated in my reasons in that previous matter, the death which is the subject of the charge, occurred on 4 August 2012 and the applicant was arrested on 1 November 2012 and has been in custody since that time.  He is 22 years of age and has no previous criminal history.  He made an application before a Magistrate for home detention bail that was granted on 9 November 2012.  A bail review was brought by the DPP and allowed by his Honour, Justice Anderson, on 12 November 2012.  Consequently, his bail was revoked.  A further application for release on bail was heard by Magistrate Anderson on 4 January 2013, and bail was refused.  A bail review was brought by the applicant in relation to that decision before me and, as stated, on 17 January 2013 I refused that application.

5. A further application was made by the applicant to a different Magistrate on 31 May 2013 and bail was again refused.  It is against that decision that the present review is brought.

6. Although I am looking at the matter afresh, Ms Powell QC for the applicant puts to me that there has been a change in the situation since my previous refusal in that his Honour, Justice Nicholson, on 3 May 2013, by way of bail review, allowed a co-accused in this matter to be granted home detention bail.  Ms Powell QC concedes that questions of parity and a sense of grievance are not matters to be taken into account on a bail application, as distinct from sentence but, nevertheless, points out that of the five accused in this matter, the applicant is the only one at this stage not to be granted bail.

7. Ms Powell QC further argues that, in the present day, it is not unusual for strict home detention bail to be granted to applicants charged with murder, and there is no evidence that he is a flight risk. 

8. As I indicated earlier, these are very serious allegations.  On the prosecution case, the alleged victim was stabbed up to 15 times when being attacked by a group in the vicinity of six to eight people.  The Crown will be leading evidence of a forensic nature putting the applicant at the scene, combined with further evidence of a circumstantial nature.  I accept, as Ms Powell QC says, it will be some considerable time before this matter comes on for trial.  Nevertheless, I find the presumption of bail is clearly rebutted by the seriousness of the alleged offending.

9. I refuse the application.