Johannes Cornelius Van Leeuwen v the State of South Australia No. SCGRG 95/2353 Judgment No. 6141 Number of Pages 4 Criminal Law Jurisdiction, Practice and Procedure Bail

[1997] SASC 6141

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DUGGAN, J

Criminal law - jurisdiction, practice and procedure - bail - issue arising on a construction summons as to whether police bail can be granted pending the first court appearance of a defendant charged with breaching a domestic violence order made under the Domestic Violence Act 1994. - Held that on a proper construction of the Domestic Violence Act and the Bail Act 1985 police bail may be granted.

ADELAIDE, 18 April 1997 (hearing), 15 May 1997 (decision)

#DATE 15:5:1997

#ADD 21:5:1997

Plaintiff:

Counsel: Mr G Mancini

Solicitors: George Mancini & Co

Defendant:

Counsel: Ms J Olsson

Solicitors: Crown Solicitor (SA)

Order: Summons determined.

DUGGAN J

1. The plaintiff has applied by way of summons pursuant to SCR 63.02 for the determination of a question of construction in relation to the DomesticViolence Act 1994 and the Bail Act 1985. The question posed by the summons is whether a person charged with the offence of breaching a domestic violence order can be granted police bail pending appearance before a court of summary jurisdiction.

2. At the hearing of the matter I announced that I would entertain the application and I will not repeat in detail the reasons for that decision. Suffice to say that I reached the conclusion that the question is not entirely academic, the issue is one of general importance and the opportunity to determine it would arise but rarely. I make it clear that I am in no way commenting on the merits of any bail application which might be made in this or any other case; the construction question is confined to whether there is power to grant bail in the circumstances which I have identified.

3. It is unnecessary to refer to the facts of the present matter other than to say that the plaintiff was advised by the sergeant in charge of the city watch-house that he was not eligible for bail because he was charged with the offence of breaching a domestic violence restraining order and a magistrate refused to review the decision because he was of the view that the sergeant had no authority to grant bail in the circumstances.

4. In order to answer the question which has been raised it is necessary to consider the relevant provisions of both Acts. The Domestic Violence Act came into operation on 1st August, 1994. It provides, inter alia, for restraining orders in cases of domestic violence. Section 15 makes it an offence to contravene or fail to comply with a domestic violence restraining order. It states:

"15. (1) A person who contravenes or fails to comply with a domestic violence restraining order or a registered foreign domestic violence restraining order is guilty of an offence.

Penalty: Division 5 imprisonment.

(2) If a member of the police force has reason to suspect that a person has committed an offence against subsection (1), the member may, without warrant, arrest and detain that person.

(3) A person arrested and detained under subsection (2) must be brought before the Court as soon as practicable, and in any event, not more than 24 hours after arrest, to be dealt with for the offence.

(4) In calculating the time that has elapsed since arrest for the purposes of subsection (3), no period falling on a Saturday, Sunday or public holiday will be counted." 5. The schedule to the Act amended certain provisions of the Bail Act. It repealed s10(1)(c) of that Act which stipulated that one of the matters upon which a refusal of bail could be based was "any need that the victim may have, or perceive, for physical protection from the applicant". This provision was replaced by s10(4) which states:

"Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant." 6. The schedule also substituted a new s24. The old section read:

"24. Nothing in this Act affects the operation of -

(a) Division VII of Part IV of the Justices Act, 1921; or (b) the Children's Protection and Young Offenders Act, 1979."

7. The new s24 reads:

"24. Nothing in this Act affects the operation of -

(a) the Domestic Violence Act 1994; or

(b) the provisions of the Summary Procedure Act 1921 relating to restraining orders." 8. The Domestic Violence Act does not oust the operation of the Bail Act in relation to charges alleging offences against the provisions of the Domestic Violence Act. There is an acknowledgment in s9(1) of the Domestic Violence Act that bail might be granted in relation to a complaint alleging domestic violence. The enactment of the new s10(4) of the Bail Act increases the significance of the need for the physical protection of a victim as a factor to be taken into account in bail applications and, although the new sub-section is general in its terms, it is not without significance that it was enacted as part of an Act which focuses on domestic violence. Presumably the intent of the new s24 was to ensure the supremacy of the Domestic Violence Act and the provisions of the Summary Procedure Act relating to restraining orders in those areas of their operation which could be thwarted by the granting of bail. Section 8(7) of the Domestic Violence Act is an example. It provides:

"If a member of the police force has reason to believe that a complaint is being, or is about to be, made against a person by telephone, the member may -

(a) require the person to remain at a particular place while the complaint is made and dealt with so that any order or summons made or issued on the complaint may be served on the person; and

(b) if the person refuses or fails to comply with the requirement or the member has reasonable grounds to believe that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for -

(i) so long as may be necessary for the complaint to be made and dealt with and any order or summons made or issued to be served on the person; or

(ii) two hours,

whichever is the lesser." 9. Section 99B of the Summary Procedure Act is to similar effect and s24 of the Domestic Violence Act ensures that a bail authority does not impose conditions of bail which would be inconsistent with a restraining order made under the Summary Procedure Act.

10. Section 4 of the Bail Act deals with eligibility for bail. The categories of eligible persons include someone who has been taken into custody on a charge of an offence. (S4(1)(a)(i)). Section 5(1)(e) of the Act constitutes a police officer of or above the rank of sergeant or who is in charge of a police station as a bail authority where the eligible person has been arrested on a warrant or "has not appeared before a court charged with the offence in respect of which he or she has been taken into custody". On a literal interpretation of the Bail Act, therefore, a person arrested under s15 of the Domestic Violence Act for an offence of contravening or failing to comply with a domestic violence restraining order would qualify as a person who could be granted bail by a bail authority and a police officer of the appropriate rank or posting could act as a bail authority in relation to that person prior to the first court appearance.

11. Miss Olsson, for the defendant, conceded that the Bail Act permitted a court to act as a bail authority in the case of a person brought before it for a breach of a domestic violence restraining order. Indeed it was pointed out on the hearing of the appeal that the plaintiff was granted bail in the Holden Hill Magistrates Court in the present matter. However Miss Olsson argued that police bail could not have been granted prior to the person's appearance in the court. She contended that persons charged with an offence of this nature, along with persons charged with breaching a restraining order made under the Summary Procedure Act and persons arrested for breach of bail agreements, were charged with offences in the nature of contempt of court. It was in recognition of this consideration, so it was argued, that a person arrested and detained for a breach of a domestic violence order under s15 of the Domestic Violence Act must be brought before the court as soon as practicable, and in any event not more than 24 hours after arrest. (S15(3)). According to the argument these directions in the section ousted the power to grant police bail.

12. I am unable to accept this argument. I have pointed out that there is nothing in the Bail Act or the Domestic Violence Act which specifically excludes the granting of police bail in the circumstances under consideration. Moreover the provisions of the Bail Act are wide enough to permit such an order in the case of an arrest under s15(3) of the Domestic Violence Act. Miss Olsson acknowledged that it would be appropriate to take such a person into custody at a police station to await a court appearance. By stipulating that the arrested person is to be brought before the court as soon as possible and in any event, not more than 24 hours after arrest, s15(3) is doing no more than placing a time limit on police custody. Section 13(3) of the Bail Act makes similar provision for the general run of cases.

13. The right of a person held in police custody to apply for bail is of fundamental importance. It is to be expected, therefore, that it would not be modified or reduced except by provisions which were clear and express. (See eg. Bail Acts4(2)).

14. I repeat my observation that my decision is restricted to a determination of the question as to whether there is power to grant police bail in the circumstances under discussion. Whether or not police bail should be granted in particular cases in which persons are charged with breaches of s15 of the Domestic Violence Act is quite another question. In particular the police officer constituted as a bail authority would be required to take into account the matters stipulated in s10(4) of the Bail Act. However, for the reasons which I have given, it is my view that a police officer, acting as a bail authority, may grant bail to persons arrested and charged with contravening or failing to comply with a domestic violence restraining order contrary to s15(1) of the Domestic Violence Act and who have not yet appeared before the court.