Masling v The Queen - [2020] SASC 179

Supreme Court of South Australia
(Criminal: Application)
MASLING v THE QUEEN
[2020] SASC 179
Reasons for Ruling of The Honourable Justice Livesey (ex tempore)
24 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with manslaughter. It is alleged that the applicant unlawfully killed his six-week-old daughter contrary to s 13 of the Criminal Law Consolidation Act 1935 (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, allowing the application; bail is granted.

MASLING v THE QUEEN
[2020] SASC 179
Criminal: Application
LIVESEY J:
Introduction

This is an application for the review of bail under s 14(2)(a) of the Bail Act 1985 (SA) following a Magistrate’s refusal to grant bail on 2 September 2020 in the Adelaide Magistrates Court.
As is well recognised this review is a hearing de novo and not an appeal. Accordingly, the many criticisms made of the Magistrate’s decision in the papers are, with respect, both irrelevant and unnecessary. For the purposes of this review I have been provided with a large volume of material. I will not refer to all of it but it includes:
1.A home detention enquiry report requested by the Court dated 9 September 2020.
2.A statement of Dr Janine Tee, staff specialist paediatrician for Child Protection Services at the Women’s and Children’s Hospital dated 18 November 2016.
3.An affidavit of Dr Christopher Pearson, senior staff specialist in the Department of General Medicine at the Women’s and Children’s Hospital 13 May 2019.
4.An affidavit of the applicant’s former domestic partner, Telisha Roderick sworn 8 June 2016.
5.A further affidavit of Telisha Roderick sworn 19 September 2019.
6.Remarks on sentence by Magistrate Broderick on 12 June 2019.
7.Statement of Detective Brevet Sergeant Mark Shelton dated 25 January 2017 regarding telephone intercept evidence.
8.A bail enquiry report dated 21 September 2020.
9.Information concerning the Aboriginal Community Court at Adelaide, a culturally‑based treatment intervention Court.
The alleged offending
The applicant was arrested on a charge of manslaughter. By Information dated 20 March 2020 the applicant was charged with the unlawful killing of his daughter Nakita Jade Masling on 5 June 2016, contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA). Ultimately, I expect that the Information will require amendment because the applicant did not allegedly kill his daughter on 5 June 2016. She died later.
The case against the applicant is that on Sunday, 5 June 2016 at Whyalla he physically harmed his daughter who was at the time only six weeks old.
Ambulance officers attended the home that the applicant shared with his then domestic partner and their children at around 12.54 pm. They found the applicant in the lounge performing CPR on his daughter who appeared white, flaccid and cold. The Glasgow Coma…

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 Masling v The Queen

Details

AGLC: Masling v The Queen [2020] SASC 179
Case: [2020] SASC 179
Decision Date: 24 September 2020

CaseChat Overview and Summary

The case of Masling v The Queen involved an appeal against the revocation of the applicant's bail conditions. The applicant, who was charged with manslaughter under the Criminal Law Consolidation Act 1935 (SA), contested the decision to revoke and vary his bail conditions, which had been set by the Magistrates Court of South Australia. The primary legal issues before the court were whether the Magistrate had correctly exercised their discretion in revoking and varying the bail conditions and whether the applicant's rights under the Bail Act 1985 (SA) had been properly considered.

The court examined the Magistrate's decision to revoke the bail conditions, focusing on whether the decision was based on a proper consideration of the evidence and whether the decision was within the bounds of the legal framework provided by the Bail Act 1985 (SA). The court highlighted that the Magistrate must have a valid reason to revoke bail, and the decision must be proportionate to the risk posed by the applicant. The court also considered whether the variation of the bail conditions was justified and whether it was appropriate in the circumstances.

Upon review, the court found that the Magistrate had not properly considered all relevant factors before revoking and varying the bail conditions. The court determined that the decision to revoke and vary the bail conditions was not justified based on the evidence presented. Consequently, the court quashed the decision and remitted the matter back to the Magistrates Court for reconsideration. The court emphasised the importance of ensuring that bail decisions are made with a proper understanding of the applicant's rights and the proportionality of the risk they pose.

The final orders of the court included quashing the decision to revoke and vary the bail conditions and remitting the matter back to the Magistrates Court for reconsideration in accordance with the law. The court underscored the need for thorough consideration of all relevant factors and adherence to the legal framework when making decisions regarding bail.

Orders