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

1. 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

2. 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).

3. 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 the Wami Kata Old Folks Home at Davenport, four kilometres north-east from Port Augusta.  The complainant apparently told police that the applicant became “jealous and cheeky” with her but then angry before assaulting her at around 9:10 pm on Monday, 31 August 2020.

4. The alleged offending is said to comprise two punches to the left side of the complainant’s neck, pushing her into a campfire and then hitting her in the back with a firestick. 

5. That same evening, police attended at the Lakeview Accommodation Centre, saw the complainant's injuries and arranged an ambulance so as to ensure the complainant was treated at a hospital.

6. Later that same evening, the applicant was arrested whilst walking along a street in Port Augusta.  He refused to answer questions.  Nonetheless he told police that he did not believe that there was a domestic violence order in place.

   Circumstances of the applicant 

7. The circumstances outlined by the prosecutor to the Magistrate on 3 September 2020 were and are tragically familiar. 

8. The prosecutor maintained that the applicant was a flight risk because he usually resided in the Northern Territory but had been bailed to reside at an OARS hostel in Port Augusta.  He was, otherwise, “sleeping rough in the sandhills” near Port Augusta.  The applicant was said to live an itinerant lifestyle with no fixed place of abode, no current employment, study or volunteer work of any kind.  At the time of the offending, the applicant was not living in his nominated bail address, the OARS hostel.

9. The prosecutor maintained that the applicant was very likely to reoffend, given his extensive criminal history in the Northern Territory with convictions for assaults against the same complainant and a number of serious traffic offences involving drink driving and driving whilst disqualified, as well as other assaults and breaches of intervention orders.

10. At the time of his offending the applicant had other matters pending before the Court and for which he was on bail, being an offence of exceeding the prescribed content of alcohol, driving whilst unlicensed, driving while unregistered and uninsured, as well as breach of bail.

11. The prosecutor told the Magistrates Court that “grave concerns” were held for the safety of the complainant given the history of the applicant assaulting her, whether in the Northern Territory or in South Australia. As the prosecutor put it, there had been a “disregard for the conditions” of the earlier intervention order.  As well, the complainant had repeatedly failed to take responsibility for her own safety. The prosecutor cited two separate arrests for two separate assaults on the same complainant earlier that year, following each the complainant requested that police take no further action.  The prosecutor was concerned that “harm will inevitably come” to the complainant were the applicant to be released.

12. 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

13. 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).

14. 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).

15. 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).

16. 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.

17. 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.

18. 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.

19. The author emphasised that the applicant required more support with alcohol counselling and “a review of domestic violence issues which will be the main focus if he returns to an OARS hostel”. The applicant has been offered the opportunity to return to an OARS hostel where he can be closely managed and provide with support.

    Disposition of the bail review

20. The applicant must demonstrate “special circumstances” pursuant to s 10A(2) of the Act.

21. These may relate to the circumstances of his alleged offending, or his personal circumstances, or both. 

22. There is nothing about the circumstances of the offending that could be regarded as taking this matter outside the purview of s 10A(2) of the Act. On the contrary, it is what might be regarded as unfortunately typical.

23. Whilst the applicant’s progress during July and August 2020 is to be commended, the subject alleged offending came only days after participation in these programs and a period of home detention.

24. Regrettably, it cannot be said that these matters, individually or in combination, demonstrate “special circumstances” as required by the Act. There is, as with many cases of repeated domestic violence, a particular need for the protection of the complainant.

25. Accordingly, the order of the Court is that this bail review is dismissed.