Rezaei v The Queen

[2020] SASC 183

Supreme Court of South Australia

(Criminal: Application)

REZAEI v THE QUEEN

[2020] SASC 183

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

25 September 2020

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

The applicant was arrested and charged with four counts of sexual intercourse without consent, one count of threatening to distribute an invasive image of the complainant and one count of threatening to cause harm to the complainant’s daughter. He was released on police bail.

Whilst on police bail the applicant was arrested and charged with threatening a person involved in a criminal investigation to act in a way that might influence the outcome of that investigation and failing to comply with his bail agreement. By reason of these two offences the applicant is a “prescribed applicant” within the meaning of s 10(2) of the Bail Act 1985 (SA).

Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.

Held, dismissing the application:

1.  Special circumstances have not been established.

2.  Bail is refused.

Bail Act 1985 (SA) s 10A, s 14, s 17; Criminal Law Consolidation Act 1935 (SA) s 48, s 19, s 248; Summary Offences Act 1953 (SA) s 26DA, referred to.

REZAEI v THE QUEEN
[2020] SASC 183

Criminal:         Application

LIVESEY J:

Introduction

1. This is an application for review of bail under s 14(2)(a) of the Bail Act 1985 (SA) (the Act) dated 14 September 2020.  Bail was refused by a Magistrate on 4 August 2020. 

   The alleged offending

2. The alleged offending falls into two categories.  It is the second category that is of primary relevance to this review.  The initial allegations are the subject of an Information dated 12 August 2020 and comprise:

   1.Four counts of sexual intercourse without consent, contrary to s 48(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA);

   2.One count of threatening to distribute an invasive image of the complainant, contrary to s 26DA(1) of the Summary Offences Act 1953 (SA); and

   3.One count of threatening to cause harm to the complainant’s daughter, contrary to s 19(2) of the CLCA.

3. After the applicant was arrested for this alleged offending, he was granted police bail with strict conditions on 18 June 2020.  Those conditions included that there be no contact, whether directly or indirectly, with the complainant.  Whilst on police bail, it is alleged that the second category of offending occurred on 18 July 2020. 

4. The allegations of further offending are that the applicant made telephone contact with the former husband of the complainant with the assistance of a third party in Iran, using the WhatsApp application.  It is alleged that the applicant spoke with the former husband and said words to the effect that if the complainant did not drop her complaints, their daughter would be killed. He allegedly said, “I know more about your family than you do.  I know that she was at the park today with your child”.  To this the former husband is alleged to have said words to the effect, “this not Iran and there is law and order and you can’t do whatever you want”. 

5. These, however, are just allegations and I was told by Mr Barklay QC, who appeared for the applicant, that they are denied.  Moreover, I remind myself that the applicant enjoys a presumption of innocence. 

6. These further allegations are the subject of a second Information dated 20 July 2020 and a charge of threatening a person involved in a criminal investigation to act in a way that might influence the outcome of that investigation, contrary to s 248(1) of the CLCA. As well, the applicant has been charged with failing to comply with his bail agreement, contrary to s 17(1) of the Act.

   Prescribed applicant – special circumstances

7. By reason of these last two offences, and for which the applicant was taken into custody, he is a “prescribed applicant” pursuant to s 10A(2) of the Act and there is a presumption against bail unless he can show “special circumstances”.

8. In this case there is evidence of a number of medical and psychological conditions associated with an alleged work injury which are not being treated as the applicant would prefer.  For example, he is not receiving opioid medication, nor is he receiving regular physiotherapy and psychological services.  Nonetheless, the applicant does not seek a report from the Department for Correctional Services (DCS), anticipating that it will say that his essential needs can be met by DCS.

9. I was told that the applicant can offer cash guarantees from his two adult children in the sum of $5000 each and that his daughter can reside with him as part of a regime of strict home detention bail conditions in a residence that has been assessed as being suitable.

10. Whilst not underestimating the applicant’s medical and psychological difficulties, I do not regard them as sufficiently serious to be regarded as “special circumstances”.  They are not life-threatening and they can be managed by DCS, albeit not optimally.  Accordingly, I do not regard this case as outside the category that Parliament had in mind when reversing the presumption regarding bail. 

    Disposition of the review

11. This, therefore, is a case where there is a presumption against bail notwithstanding the likely delay before these matters are tried.  However, even if there were a presumption in favour of bail, I am concerned about the serious nature of the allegations regarding the further offending in July, as well as the need to protect witnesses.

12. I am not confident that the mobile phone service which must be maintained for electronic monitoring would not be abused. 

13. Accordingly, the order of the Court is that the application for review of bail is dismissed and bail is refused.