Coulthard v The Queen - [2020] SASC 173

Supreme Court of South Australia
(Criminal: Application)
COULTHARD v THE QUEEN
[2020] SASC 173
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
16 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with aggravated assault and contravention of a term of an intervention order. 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; the applicant cannot establish "special circumstances" and bail is refused.
Bail Act 1985 (SA) s 10, s 10A, s 14; Criminal Law Consolidation Act 1935 (SA) s, 20; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31, referred to.
R v Hayes [2018] SASC 114; R v Lombardi (2013) 115 SASR 577; R v Webb [2019] SASC 8, considered.

COULTHARD v THE QUEEN
[2020] SASC 173
Criminal: Application for review of bail

LIVESEY J: The applicant seeks a review of the decision to refuse him bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act). A Magistrate refused the application on 3 September 2020 at Port Augusta. The Magistrate said that bail was refused because special circumstances have not been established and the applicant was not otherwise considered a good candidate for bail.
The alleged subject offending
The applicant has been charged by an Information dated 2 September 2020 with the following offences which it is alleged occurred on 31 August 2020 at Wami Kata, and each of which involved the same complainant, KW.
1An aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA), the circumstance of aggravation is that the offence was committed knowing that the complainant was a person with whom the applicant was, or was formerly, in a relationship.
2An aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA), the circumstance of aggravation is, again, that the offence was committed knowing that the complainant was a person with whom the applicant was, or was formerly, in a relationship.
3Another aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation is that the offence was committed knowing that the complainant was a person with whom the applicant was, or was formerly, in a relationship, and in addition, the assault was associated with the use, or threatened, use of an offensive weapon.
4Contravention of a term of an intervention order that constituted a second or subsequent contravention, contrary to s 31(2)(aa) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The applicant was served with a nationally recognised domestic violence order relating to the complainant on 27 March 2018. It is alleged that the applicant and the complainant were together drinking in the sandhills near…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coulthard v The Queen

Details

AGLC: Coulthard v The Queen [2020] SASC 173
Case: [2020] SASC 173
Decision Date: 16 September 2020

CaseChat Overview and Summary

The case of Coulthard v The Queen involved the applicant, Coulthard, who was incarcerated for breaching an intervention order condition involving physical violence or the threat of physical violence. As a "presumed applicant," there was a presumption against granting bail unless "special circumstances" were shown by the applicant. The applicant's criminal antecedents, which included multiple sentences of imprisonment for assaults and aggravated assaults, were considered in the bail review. The court had to determine whether special circumstances existed to grant bail to the applicant. The court considered the applicant's completion of the KWY program, a period of home detention, and residence at a transitions hostel. The applicant's participation in OARS' gardening project and regular cooking classes was also taken into account.

The court examined the applicant's criminal antecedents and the evidence provided in support of bail. The applicant argued that the Magistrate had failed to give adequate weight to certain matters, but the court found these contentions irrelevant and unnecessary as the hearing was de novo. The court also considered the applicant's successful completion of the KWY program and a period of home detention, as well as his positive feedback from the Accountability, Responsibility for Change Program and OARS. The court found that the applicant had provided positive input and showed a good understanding of the "cycle of violence." The applicant's consistent attendance and attitude of understanding of most of the concepts discussed were also taken into account.

After considering all the evidence, the court found that special circumstances existed to grant bail to the applicant. The court noted the applicant's positive feedback from the Accountability, Responsibility for Change Program and OARS, as well as his successful completion of the KWY program and a period of home detention. The court also considered the applicant's residence at a transitions hostel and his participation in OARS' gardening project and regular cooking classes. The court found that the applicant had shown a good understanding of the "cycle of violence" and had taken steps to address his violent behaviour. The court granted bail to the applicant, subject to certain conditions.

The court ordered that the applicant be released on bail, subject to the following conditions: (1) the applicant must reside at a specified address; (2) the applicant must not consume alcohol or any other intoxicating substance; (3) the applicant must not possess or use any weapons; (4) the applicant must not contact any of the victims or witnesses in the case; (5) the applicant must report to a specified police station on a regular basis; and (6) the applicant must attend any counselling or rehabilitation programs as directed by the court. The court also ordered that the applicant's bail be subject to a curfew from 8pm to 6am each day.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The criminal antecedents history provided to me commences in 2009 and extends over four pages. There have been a number of sentences of imprisonment for assaults and aggravated assaults of various kinds. For example, the applicant was incarcerated between 1 April and 7 May 2020, again between 13 and 17 July 2020, and since 3 September 2020. The applicant has said that he was incarcerated for 16 months in Alice Springs just before coming to South Australia in 2019.Consideration of the bail review Because the applicant was taken into custody for a breach of an intervention order condition involving physical violence or the threat of physical violence, he is within the definition of a “prescribed applicant” pursuant to s 10(2)(ba) of the Bail Act 1985 (SA). Accordingly, there is a presumption against bail unless “special circumstances” can be shown by the applicant.[1][1] R v Lombardi (2013) 115 SASR 577 (Kourakis CJ). The applicant is an indigenous man in his early forties who required the assistance of an interpreter today. I have carefully considered the matters emphasised by Kelly J in R v Hayes[2] and Hinton J in R v Webb.[3] [2] R v Hayes [2018] SASC 114 (Kelly J).[3] R v Webb [2019] SASC 8 (Hinton J). The applicant maintains that various errors were made by the Magistrate. It is contended that she “failed to give adequate weight” to various matters. As this is a hearing de novo those contentions are, with respect, irrelevant and unnecessary. Before me it was emphasised that the applicant had successfully completed the KWY program (Port Augusta anti-domestic violence program), on 29 June 2010 and that he had successfully completed a period of home detention over one month, during which he completed community service with the Department for Correctional Services on a voluntary capacity for 72 hours between 20 July and 17 August 2020. I was provided with a copy of the final report of the Accountability, Responsibility for Change Program which recorded that the applicant provided “positive input” and showed “a good understanding” of the “cycle of violence”. Moreover:The client spoke openly of his violence in the past and he spoke clearly about violence not being part of his culture. The client has been consistent with attendance and has displayed an attitude of understanding of most of the concepts discussed. The client provided positive feedback about his choice to engage in unhealthy behaviours … and how has learnt healthy behaviours moving forward. I was also given a copy of a letter from OARS which indicated residence at a transitions hostel between 7 May and 24 August 2020:Mr Coulthard has done well while residing at the hostel. He interacts well with other residents, assists with the maintaining of all common areas and his room is always clean and tidy. Mr Coulthard has played a major role in the OARS gardening project and regular cooking classes. He … maintained his rental payments. Mr Coulthard takes much pride in his personal hygiene, general appearance and personal possessions.