Butler v The Queen - [2020] SASC 74

Supreme Court of South Australia
(Criminal: Application)
BUTLER v THE QUEEN
[2020] SASC 74
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
16 April 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of bail.
The applicant was taken into custody in January 2020 on, inter alia, charges of aggravated assault against his former partner. He is also charged with aggravated assault of the same former partner and contravention of an intervention order in September 2019. The alleged offending in January 2020 included punching the back of his former partner’s head and striking her with a water bottle, and punching and kicking her to the head. He also allegedly hit and kicked her head in September 2019.
A Magistrate refused bail on 26 March 2020. The applicant, a prescribed applicant under s 10A of the Bail Act 1985 (SA) (the Bail Act), contends that special circumstances exist for the granting of bail.
Held, dismissing the application:
1. The presumption against bail enacted by s 10A of the Bail Act is against all bail. Nonetheless, in some particular circumstances the availability of home detention bail, together with other matters, might amount to a special circumstance.
2. No combination of the applicant’s personal circumstances is sufficient to constitute special circumstances.
Bail Act 1985 (SA), s 10A; Criminal Law Consolidation Act 1935 (SA), s 20; Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 31, referred to.

BUTLER v THE QUEEN
[2020] SASC 74

KOURAKIS CJ (ex tempore): This is an application for the review of the refusal of bail by a Magistrate on 26 March 2020. The applicant, Mr Butler, was taken into custody on 28 January 2020 on, inter alia, charges of having on that day committed an aggravated assault on his former partner, Ms Nelson, and of committing the same offence on Ms Nelson less than a fortnight earlier.[1] Mr Butler has been in custody continuously since that time, initially at Mobilong Prison and now at Yatala Prison.
[1] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The alleged offending on 28 January 2020 included punching Ms Nelson to the back of her head and striking her with a bottle of water. The allegations as to the offence of aggravated assault on 17 January 2020 are more serious. It is alleged that Mr Butler assaulted Ms Nelson by punching and kicking her to the head.
Mr Butler is also charged with an aggravated assault of Ms Nelson in September 2019.[2] It is alleged that he assaulted her by hitting and kicking her head. On the same occasion, Mr Butler was charged with breaching the term of an intervention order imposed in the Northern Territory.[3] Mr Butler has a number of convictions for breaching that intervention order.
[2] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to s 31(2aa)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
Mr Lang, counsel for Mr Butler, correctly submits that the charged offences are not the most serious of their kind but they are in themselves serious enough. Punching and kicking Ms Nelson carried with it a risk of greater injury than that which she actually suffered.
I have set out the allegations not because I take them to be true; in the context of criminal proceedings they are merely allegations. However, Parliament has formed the view that the risk of further serious offending against a victim of domestic violence, even before the allegations are proved, is so high that the presumption to bail should be reversed. Parliament has formed that view on its own survey of the incidence of domestic violence. Parliament is not bound by the rules of evidence which courts apply. Parliament can inform itself as it sees fit. Having done so, Parliament has declared that persons charged with assaulting a domestic partner in breach of an intervention order must establish special circumstances before they can be admitted to bail. There is nothing in the nature of the allegations made against Mr Butler which, in themselves, constitute special circumstances. Indeed, the allegations are a paradigm case of the very problem which Parliament sought to address by reversing the presumption to bail.
However, in his forceful and comprehensive submissions, Mr Lang has pressed Mr Butler’s personal circumstances which are typical for many Indigenous people. They are circumstances which have led to the socially unacceptable disproportionate imprisonment of Indigenous people.
In the face of the systematic and endemic disadvantage of Indigenous people, it is appropriate on applications for bail, and indeed sentencing, to thoroughly investigate each defendant’s personal circumstances to see whether, despite the burden of social disadvantage he or she carries, there is some special reason in the particular case to find special circumstances to grant bail, or to provide a more rehabilitative, than punitive, sentence. It is for that reason that I made a number of inquiries for further information before determining this application.
In Mr Butler’s case, I accept that he personally, like many other Indigenous prisoners, finds imprisonment particularly onerous for cultural reasons. I accept that that is exacerbated in Mr Butler’s case because he is a Luritja man from the Northern Territory and is unlikely, therefore, to find support from other prisoners from his own cultural and linguistic background, or support by way of family visiting.
The problem of supportive visits from family or friends is, of course, exacerbated in current times because there are no longer any face-to-face visits allowed in South Australian prisons. I also accept that the measures which the prisons have had to put in place because of the COVID-19 pandemic have made living conditions more burdensome. I accept that prisons pose a potential health risk because if there were to be a COVID-19 infection in prison, it is likely to spread quickly. I accept that that may play on the minds of many prisoners, although there is no indication in the materials that Mr Butler is particularly anxious about that.
Mr Butler became despondent, if not depressed, after the refusal of bail the subject of this application. Such was his reaction that the High Risk Assessment Team, at the Department of Correctional Services, put Mr Butler on a self-harm watch list.
Since that time, Mr Butler has been interviewed on a number of occasions and some improvement has been noted. He has been removed from the watch list. I treat that observed improvement with considerable caution. It is well-known that Indigenous people are shy and reticent to disclose much. That has been compounded in Mr Butler’s case by a language barrier. I am acutely aware of the risk that incarceration has posed for Indigenous people of Mr Butler’s age and that is a matter which must always be kept in mind. However, in the particular circumstances of the improvement that has been noticed up until now, I cannot place much weight on general epidemiological risks when balancing them against the statutory presumption against bail.
Mr Lang has also pressed the supportive home and residence which will be provided by Mr Yamma and Ms Armstrong if Mr Butler were on home detention bail. I accept, from what Mr Lang has told me, from my observations of Mr Yamma and Ms Armstrong and from the brief discussion I had with Ms Armstrong yesterday, that they would be responsible guarantors. However, they have not had a personal relationship with Mr Butler. I, therefore, cannot have a high degree of certainty about the extent to which they would be able to modify any aberrant, or possibly unlawful, behaviour on his part.
There is a further qualification to the weight I can put on the accommodation they would provide. I have no doubt that their generosity, and the support they are prepared to provide Mr Butler, would also be extended to others in need. The officer who inspected the premises of Mr Yamma and Ms Armstrong, to assess the suitability of their residence, reported that a number of other people have resided there from time to time. A more crowded house poses at the very least a slightly increased risk of a breach of bail or that the accommodation will become unsuitable.
True it is that home detention bail has the capacity to reduce much of the risk which concerned Parliament and caused it to enact s 10A of the Bail Act 1985 (SA) but the presumption against bail it enacts is against all bail. Parliament must have had in contemplation, and must have appreciated, that bail could include home detention bail. In short, the reverse presumption that Parliament enacted was not only against simple bail, it was against any bail. Nonetheless, I accept that in some particular circumstances the availability of home detention bail, together with other matters, might amount to a special circumstance. However, in Mr Butler’s case, in giving weight to the amelioration of risk by home detention bail, I must bear in mind that he has breached bail orders and the intervention order protecting Ms Nelson in the past.
I cannot ignore that Mr Butler now faces charges for three separate alleged assaults against Ms Nelson and indeed that even on 28 January, although the assault occurred in one place on that day, when he was arrested he was again with Ms Nelson at another place. I acknowledge that Mr Butler has told his solicitor that he now accepts that that relationship has ended, but it is one thing to intellectually come to that position; it is another thing to come to terms with the end of a relationship emotionally. In any event, the underlying problem here is not Mr Butler’s relationship with Ms Nelson, if the allegations are made out, but the alleged resort to violence in dealing with interpersonal conflict.
I have looked closely at all the circumstances in the hope that a solution might be found which safeguards Ms Nelson and the public generally, but does not expose Mr Butler to the deprivations, anxiety and risk of harm posed by prison whilst he awaits the determination of the charges. I have been unable to satisfy myself that any combination of his personal circumstances is sufficient to constitute special circumstances, so as to take his case out of the generality of cases that Parliament had in mind.
I note that although it must seem a long time to Mr Butler, he has only been in custody now for about three months. I acknowledge that because of, again, COVID-19 restrictions, obtaining a trial date will be some way off yet. If, after the charges are considered more closely by his solicitor, it appears that the trial is a long way off, or if it appears that there is a deterioration in Mr Butler’s mental health, then in my view those circumstances would be changed circumstances, which would require a fresh review of the question of bail.
Unfortunately, for now, for the reasons I have given, I dismiss Mr Butler’s application for review. Mr Butler will not be granted bail. He will remain in custody.
I thank counsel for their submissions and counsel and solicitor for the applicant for their efforts in providing me with the information I have requested so quickly.