QUESTION OF LAW RESERVED NO. 3 OF 2023 - [2024] SASCA 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
QUESTION OF LAW RESERVED NO. 3 OF 2023
[2024] SASCA 29
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
21 March 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - OTHER MATTERS
Questions of law for referral to the Court of Appeal pursuant to s 49 of the Supreme Court Act 1935 (SA).
On 5 December 2023, a judge of this Court reserved two questions of law for consideration by the Court of Appeal:
1.Is a person ‘taken into custody’ for the purposes of s 10A of the Bail Act 1985 (SA) (‘Bail Act’) on each occasion on which they are apprehended by a police officer on suspicion of having committed an offence?

2. Was the [appellant] a ‘prescribed applicant’ within the meaning of s 10A of the Bail Act?
Sub-section 10A(1) of the Bail Act provides that bail is not to be granted to a ‘prescribed applicant’ unless the applicant establishes the existence of special circumstances justifying the applicant’s release on bail. Sub-section 10A(2) identifies ‘prescribed applicants’ by reference to types of offence in relation to which the applicant has been ‘taken into custody’.
On 27 August 2023, the appellant was arrested on charges of trafficking in the sale of a controlled drug to a child (‘C’) and cultivating a controlled drug. He was granted bail on the condition that he not have any contact with C.
On 11 September 2023, the appellant was arrested on allegations of breaching his bail conditions as he was found in C’s home (‘breach bail offending’). His arrest was made pursuant to s 75 of the Summary Offences Act 1953 (SA). He was brought to the Elizabeth Cell Complex and an interview was conducted by a police officer. He was charged, at that time, with breaching a bail condition contrary to s 17(1) of the Bail Act.
Later that same day, and while still in custody, the appellant was arrested again and charged with further offences, including administering a drug to a child (C), rape and unlawful sexual intercourse with C (the ‘prescribed offending’). These offences meant that the appellant would be a ‘prescribed applicant’ under s 10A(2)(f) of the Bail Act if he had been ‘taken into custody’ in relation to them.
The Information was filed with the Magistrates Court the next morning. A magistrate granted the appellant home detention bail.
The Director applied to review the grant of bail. The appellant contended that as he was already in custody for the breach bail offending, he was not ‘taken into custody’ in relation to the prescribed offending. He was consequently not a ‘prescribed applicant’ within the meaning of s 10A(2)(f) of the Bail Act.
The primary judge held that the appellant was a ‘prescribed applicant’ and refused bail.
Held (by the Court) as to the answers to the questions of law reserved:
1. Yes.
2. Yes.
Bail Act 1985 (SA) ss 4(1), 5(1), 5(1)(e), 10, 10(1), 10A(1)-(2), 10A(2)(f), 13(1), 17(1); Summary Offences Act 1953 (SA) ss 75, 78, 78(1)-(2), 78(5), 79(1)-(2); Supreme Court Act 1935 (SA) s 49; Legislation Interpretation Act 2021 (SA) sub-s 14(1), s 19, referred to.
Smith v The Queen (2020) 136 SASR 588, not followed.
The King v Welsh [2023] SASC 152; Smith v The Queen (2020) 136 SASR 588; Santos v The Queen (1987) 75 ALR 161; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; Lee v NSW Crime Commission (2013) 251 CLR 196; Daly v Thiering (2013) 249 CLR 381; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Hore v The Queen (2022) 273 CLR 153; Wichen v The Queen (2021) 138 SASR 134; Hurt v The King [2024] HCA 8, considered.

QUESTION OF LAW RESERVED NO. 3 OF 2023
[2024] SASCA 29
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: The issue arising in this matter concerns the construction of the words, ‘taken into custody’ in s 10A(2) of the Bail Act 1985 (SA) (‘Bail Act’).
Section 4(1) of the Bail Act identifies the persons who are eligible for release on bail under that Act. Relevantly, this includes:
(a) a person who has been taken into custody—
(i) on a charge of an offence…
Section 10 then sets out the discretion exercisable by a bail authority. Relevantly, s 10(1) provides:
(1)If an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to—
(a)   the gravity of the offence in respect of which the applicant has been taken into custody; and
(b)   the likelihood (if any) that the applicant would, if released—
(i)      abscond; or
(ii)     offend again; or
(iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or
(iv)commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and
(d)   any need that the applicant may have for physical protection; and
(e)   any medical or other care that the applicant may require; and
(f)    any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and
(g)   any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
Sub-section 10(1) establishes a presumption in favour of bail, capable of being displaced on consideration of the various matters then listed. Section 10A then effectively reverses that presumption in respect of a ‘prescribed applicant’. Sub-section 10A(1) establishes the concept of a ‘prescribed applicant’:
(1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.
Sub-section 10A(2) then defines ‘prescribed applicant’ by identifying, in a series of sub-paragraphs, applicants who meet various criteria. Most of these criteria concern categories of offence an applicant has committed or allegedly committed. Thus, for example (and relevant to the present matter), s 10A(2)(f) extends the definition of ‘prescribed applicant’ to:
(f)an applicant taken into custody in relation to both—
(i) a serious drug offence (within the meaning of section 34 of the Controlled Substances Act 1984); and
(ii) a serious offence against the person (within the meaning of section 74EA of the Summary Offences Act 1953); …
The ultimate issue in the present case is whether the appellant was ‘taken into custody’ in relation to offences meeting the description in s 10A(2)(f), in circumstances where at the time he was charged with this offending, he was already in custody.
Background Facts
On 27 August 2023, the appellant was arrested on charges of trafficking in a controlled drug, sale of a controlled drug to a child (‘C’) and for cultivating a controlled drug. He was granted bail on the condition that he not have any contact with C.
On 11 September 2023 at 2:23 pm, the appellant was arrested for breaching a bail condition contrary to 17(1) of the Bail Act (‘the breach bail offending’). C had been found in the appellant’s home. He was placed in the rear of a police cage vehicle. A video camera was activated and he was read his arrest rights. No warrant had been issued for that arrest. Accordingly, the arrest was necessarily made pursuant to s 75 of the Summary Offences Act 1953 (SA) (‘SOA’):
75—Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
Section 78 of the SOA prescribes what must then happen in the event of such an apprehension:
78—Person apprehended without warrant—how dealt with
(1)Subject to this section, a person who is apprehended without warrant must, as soon as reasonably practicable, be delivered into the custody of—
(a) the police officer in charge of the nearest custodial police station; or
(b) a police officer at a designated police facility.
Acting in compliance with this section, at about 2:40 pm that day police took the appellant to the nearest police station, being the Elizabeth Cell Complex. It is not disputed that this was the ‘nearest custodial police station’ within the meaning of this section.
Section 13(1) of the Bail Act provides for the procedure on arrest. The arresting officer must inform the person of their entitlement to apply for release on bail:
13—Procedure on arrest
(1) If a police officer arrests a person who is, on arrest, eligible to apply for release on bail, the police officer must—
(a) as soon as reasonably practicable after delivering the arrested person to a police station or designated police facility after making the arrest, take reasonable steps to ensure that the arrested person (and, if the arrested person is a child, any guardian who is present) understands that the arrested person is entitled to apply for release on bail under this Act; and
…
Police interviewed the appellant. The appellant was charged with the breach bail offending and left in the care of cell staff. The appellant emphasised that it should be inferred that he was charged soon after completion of the interview, sometime after 2:40 pm.
The ‘Application for Release on Bail’ form attached to the Information charging the breach bail offending is dated 11 September 2023, with a time recorded of 18:59 hours. The form is blank, other than for a stamp that reads, ‘did not apply for bail’.
At 6:49 pm the same day, after the police had interviewed C, police arrested the appellant for further offences. These included administering a drug to C, the rape of C, and engaging in unlawful sexual intercourse with C. It is not disputed that these charged offences together met the collective descriptions in s 10A(2)(f) of the Bail Act. It is also not in contest that the power of arrest in this instance arose under s 75 of the SOA. Police read the appellant his arrest rights. This was recorded on video camera.
Police interviewed the appellant again at 8:15 pm that evening. A medical practitioner conducted procedures on the appellant. The ‘Facts of Charge’ form records that the appellant ‘was charged and left in the care of cell staff’.
The ‘Facts of Charge’ form relating to the breach bail offending records an ‘authorised date’ of 12 September 2023 at 10:18 am, that is, the next morning. The ‘Facts of Charge’ form relating to the other offending records an ‘authorised date’ of 12 September 2023 at 10:27 am. The documents were printed at 10:39 am. The appellant submitted, and it does not appear to be contested, that the Information was thereby reduced to writing and filed with the Magistrates Court.
The matter first came before a magistrate at 11:20 am on 12 September 2023. The appellant applied for bail. The magistrate granted him home detention bail.
On 27 September 2023, a judge of the Supreme Court allowed an application for review brought by the Director of Public Prosecutions. The judge published reasons for his decision on 23 October 2023.[1]
[1] The King v Welsh [2023] SASC 152.
On 5 December 2023, the judge reserved two questions for this Court’s consideration pursuant to s 49 of the Supreme Court Act 1935 (SA):
1.Is a person ‘taken into custody’ for the purposes of s 10A of the Bail Act on each occasion on which they are apprehended by a police officer on suspicion of having committed an offence?
2.Was the [appellant] a ‘prescribed applicant’ within the meaning of s 10A of the Bail Act?
The primary judge held that the appellant could not be granted bail in the absence of special circumstances within the meaning of s 10A(1). He concluded that a person is ‘taken into custody’ for the purposes of s 10A on each occasion on which he or she is apprehended by a police officer on suspicion of having committed an offence.
That decision and his Honour’s reasoning conflicts with the decision of Smith v The Queen,[2] where Livesey J held that an applicant was not ‘taken into custody in relation to’ a serious firearms offence in circumstances where he had already been taken into custody, and remained in custody, in connection with an offence of trafficking in controlled drugs.[3]
When is a person ‘taken into custody’ for the purposes of s 10A of the Bail Act?
[2] (2020) 136 SASR 588.
[3] Smith v The Queen (2020) 136 SASR 588 at [57].
The appellant’s argument was premised on the proposition that the Bail Act and the SOA together establish a scheme of eligibility for bail that distinguishes between being ‘apprehended’, being ‘taken into custody’ and being charged. First, s 75 of the SOA empowers a police officer to ‘apprehend’ a person without a warrant. Section 78 then obliges that police officer to then deliver the person ‘into the custody of’, relevantly, the police officer in charge of the nearest custodial police station. The appellant relied on the difference in language between the two sections to contend that the statute creates a statutory concept of being ‘taken into custody’ (being the language used in ss 4, 10 and 10A of the Bail Act) that is conceptually different from that of ‘apprehension’.
The appellant accepted that ‘in terms of plain English’, once a person is apprehended, they lose their freedom and are taken into custody. However, he submitted that the statute created a conceptual distinction that operates once the person is delivered into the custody of the police officer in charge of the nearest custodial police station pursuant to s 78(1) of the SOA. In this regard the appellant drew first on the statement by the High Court of the object of s 78 in Santos v The Queen (‘Santos’):[4]
The object of the section is to ensure that, subject to the stated exceptions in sub-ss (2) and (3), a person apprehended is forthwith delivered into the custody of an officer in charge of the nearest police station so that he may be charged and apply for bail.
[4] (1987) 75 ALR 161 at 165.
That is, in the appellant’s submission, the purpose of delivery into custody under s 78(1) is for the person to be charged and be in a position to apply for bail. Otherwise, they are to be released under s 78(5), which provides:
(5)If it is decided not to charge a person who is apprehended on suspicion of having committed an offence, the police officer who is in charge of the investigation of the suspected offence must ensure that the person is, if the person so requires—
(a) returned to the place of apprehension; or
(b) delivered to another place that may be reasonably nominated by the person.
The appellant submitted that the statutory distinction between being ‘apprehended’ and being ‘taken into custody’ turned on the ‘fulcrum’ of being taken to a responsible officer in charge of a police station. On this understanding, s 78(1) of the SOA provides one process for being ‘taken into custody’. Section 79 provides another:
79—Arrest without warrant if warrant has been issued
(1)A police officer may, without a warrant, take into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose apprehension or commitment a warrant has been issued by a justice.
A third is being arrested pursuant to a warrant and taken to a relevant court. In each of these cases, on the appellant’s submission, the step of being ‘taken into custody’ has a direct relationship with the existence of a ‘charge’.
On the appellant’s argument, it is at this point that the Bail Act, by use of the term ‘taken into custody’, operates. Eligibility for bail arises under s 4 where a person is ‘taken into custody’ on a charge of an offence. Section 10 then contemplates an application for bail by ‘an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody’ (emphasis added). Similarly, under s 10A, a prescribed applicant is ‘an applicant taken into custody in relation to…’ certain identified offences.
It follows as a matter of straight textual reading, on the appellant’s submission, that a person can only be ‘taken into custody’ within the statutory meaning of the phrase at the point that they are formally charged.
The consequence of this, in the appellant’s submission, is that it was only once the appellant was delivered into the custody of the police officer in charge of the nearest custodial police station and formally charged, that he was ‘taken into custody’ in relation to the breach bail offence. He was not then ‘taken into custody’ in relation to the charged offences of administering a drug to C, the rape of C, and for engaging in unlawful sexual intercourse with C, as he was already in custody. His (subsequent) arrest for those offences was, in his submission, a ‘nullity’. Indeed, in the appellant’s submission, there was no need to arrest him again. The further charges could simply be laid.
This submission went so far as to say that once a person is ‘taken into custody’ as contemplated by s 78(1), neither the Bail Act nor the SOA permitted a ‘transfer of custody’ that would necessarily have to occur in order for a police officer to be able to arrest a person who was already in custody. When challenged on where such a prohibition was to be found, senior counsel submitted that it must be an implication by virtue of the obligation under s 78 to keep the person in custody.
That being the case, in the appellant’s submission, he had only been ‘taken into custody’ in relation to the breach bail offence. He was not ‘taken into custody’ in relation to the more serious offences. It followed that he was not a prescribed applicant for the purposes of s 10A, as he had not been ‘taken into custody’ in relation to the offending contemplated by s 10A(2)(f).
It is important to understand the principles of statutory interpretation that the appellant invoked in mounting this argument. The appellant expressly characterised his argument as ‘taking into account the text primarily’. However, strictly speaking, the argument drew on the SOA as providing relevant context for the interpretation of the phrase ‘taken into custody’ in ss 4, 10 and 10A of the Bail Act. However, the main thrust of the appellant’s argument was that the phrase ‘taken into custody’ could only be construed as referring to the occasion when the person was first taken into custody. Whatever happens after that, if the person remains in custody, they cannot again be ‘taken into custody’.
The effect of the appellant’s submission appeared to be that there was no need to progress to matters of context or purpose that may be drawn from the Bail Act. Indeed, the appellant’s argument studiously avoided any consideration of the purpose that would be served by such a construction and the extraordinarily arbitrary consequence that would follow. That consequence can be expressed simply. It is that when a person is charged with an ordinary offence, and subsequently an offence or offences that would cause them to be a prescribed applicant, their entitlement to a presumption in favour of bail would depend only on the timing of the charges.

To limit the construction of a statute to its text, with no regard to matters of surrounding context or the purpose to be served by the provisions is not an accepted approach of contemporary statutory interpretation. In Project Blue Sky Inc v Australian Broadcasting Authority, the High Court said:[5]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
(Footnotes omitted)
[5] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).
The first difficulty with the appellant’s argument relates to the support he sought to draw from the SOA. Section 78 of the SOA requires that the person who is apprehended without warrant be delivered into the custody of the police officer in charge of the nearest custodial police station. It does not use the phrase, ‘taken into custody’. This may seem an observation of small moment, but on an argument that looks to common textual usage across different pieces of legislation, differences in wording are likely to matter.
If any inference is to be drawn at all from this language, it is that the use of the word ‘deliver’ implies that the person has already been taken into custody and is now being delivered to the custody of another person. ‘Deliver’ recognises the existence of custodial control. That is necessarily the custodial control exercised on apprehension. That observation lessens the force of the submission that the phrase, ‘taken into custody’ in the Bail Act cannot extend to the concept of apprehension under 75 of the SOA. However, it is by no means determinative.
The next aspect of the appellant’s argument also relied on the contextual impact of the SOA. The appellant pointed to an apparent link between the act of formally charging a person and the right to apply for bail. The effect of s 78(1) of the SOA is that the person is apprehended by a police officer and then delivered to the custody of the police officer in charge of the nearest custodial police station. As the High Court observed in Santos,[6] the purpose of doing so is for the person to be charged and to allow them to apply for bail.
[6] Santos v The Queen (1987) 75 ALR 161.
This chronological description of proceedings can be accepted. It can also be accepted that s 78(1) prescribes a process that facilitates an application for bail under the Bail Act. It does not expressly connect that process with the step of formally charging a person. However, there is a practical connection. Under s 13(1) of the Bail Act, the police officer who arrested the person is required, as soon as reasonably practical, to take reasonable steps to ensure that the arrested person understands that they are entitled to apply for release on bail. As already observed, pursuant to s 4(1) of the Bail Act, eligibility for bail arises where a person is taken into custody ‘on a charge of an offence’. It is necessary, therefore, that there be a charge.
The steps of delivery and ‘charging’ might not happen immediately. Sub‑section 78(2) of the SOA allows for certain steps to be taken prior to delivering the person into the custody of the police officer in charge of the nearest custodial police station:
(2)If a person is apprehended without warrant on suspicion of having committed a serious offence, a police officer may, for the purposes of investigating the suspected offence, before dealing with the person in accordance with subsection (1)—
(a) detain the person for whichever is the lesser of—
(i)the period necessary to complete the immediate investigation of the suspected offence; or
(ii)4 hours or such longer period (not exceeding 8 hours) as may be authorised by a magistrate; and
(b) take the person, or cause him or her to be taken, during the course of detention under paragraph (a), to places connected with the suspected offence.
The person need not be formally charged during this period. Eligibility for bail does not arise. The scheme operates such that eligibility arises on the person being charged. As a matter of practicality, that occurs when the person is delivered into custody in accordance with s 78(1).
However, the legislation does not equate the step of charging with that step of delivery into custody. For example, the Act does not require the police officer in charge of the station to charge the person. Indeed, it does not prescribe who is to charge the person. By contrast, the obligation to inform the person of the right to apply for bail lies with the arresting officer.[7] The responsibility of returning the person to the place of apprehension, etc., if it is decided not to charge, lies with the investigating officer under s 78(5) of SOA.
[7] Bail Act, s 13(1).
The process of charging once in the custody of the police officer at the custodial police station effectively triggers the eligibility for bail. However, that is simply a function of the steps put in place by the SOA for ensuring that the person can apply for bail at the earliest practical opportunity, while allowing any immediately necessary steps in the investigation to occur. It says nothing about when the person is ‘taken into custody’ as contemplated by s 4 of the Bail Act.
Given that the appellant relied heavily on the context he submitted was provided by the SOA, it is appropriate to have regard to the full suite of provisions informing that asserted context. Section s 79 of the SOA provides for an arrest without warrant if a warrant has been issued, in the following terms:
79—Arrest without warrant if warrant has been issued
(1)A police officer may, without a warrant, take into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose apprehension or commitment a warrant has been issued by a justice.
(2)If a police officer, without a warrant, takes into custody a person whom the officer has reasonable cause for believing or suspecting to be a person for whose committal a warrant has been issued by a justice, the officer must, as soon as reasonably practicable, deliver that person into the custody of the police officer in charge of the nearest police station and must, as soon as conveniently may be, produce or cause to be produced to the person taken into custody the warrant of commitment (if any), and the person must then be dealt with as required by the warrant.
This section authorises a police officer to ‘take into custody’ a person (s 79(1)) and ‘deliver that person into the custody of the police officer in charge of the nearest police station’ (s 79(2)). That is, it expressly contemplates that a person can be taken into custody prior to them being delivered into the custody of the police officer in charge, etc.
The section uses the words ‘take into custody’ rather than ‘apprehend’. That is a clear difference with s 78(1). However, the section heading forms part of the Act.[8] The heading uses the word ‘arrest’, which the text of s 79(1) appears to equate with ‘take into custody’. That would suggest that the SOA treats an initial arrest, as ‘tak[ing] into custody’, consistently with the plain meaning of those words. It becomes more difficult to see what, precisely, the qualitative difference in terms is.
[8] Legislation Interpretation Act 2021 (SA), s 19.
The appellant sought to distinguish the facility in s 79 on the basis that it provided an alternate regime. He submitted that if a person is taken into custody under s 79(1), the person is entitled to apply ‘to that police officer’ for bail under s 5(1)(e) of the Bail Act. That is, this section facilitates a bail regime that is not dependent on the person being delivered to the officer in charge, etc.
That submission is not correct. Section 5(1) of the Bail Act constitutes bail authorities for the purposes of that Act. Sub-section 5(1)(e) provides that the following are bail authorities:
(e)if the eligible person—
(i)    has been arrested on a warrant (other than a warrant endorsed by the court or justice issuing the warrant with a statement excluding the granting of bail by a police officer); or
(ii)     has not appeared before a court charged with the offence in respect of which he or she has been taken into custody,
a police officer who is—
(iii)    of or above the rank of sergeant; or
(iv)    the responsible officer for a police station;
Section 79(1) of the SOA operates where a police officer has reasonable cause for believing or suspecting that the person is a person for whose apprehension or commitment a warrant has been issued by a justice. Assuming for the moment that the suspicion is confirmed, the bail authority is the same for a person so taken into custody as it is for a person apprehended under s 75 and delivered into the custody of the officer in charge of the nearest station. That is, it is a police officer of or above the rank of sergeant or the responsible officer for the police station. Contrary to the appellant’s submission, if the arresting officer is not of or above the rank of sergeant, they do not constitute a bail authority. Similarly, if a person is arrested on suspicion under s 75 and then delivered to the custody of the officer in charge, etc., the bail authority need not necessarily be the officer in charge.
The appellant also submitted that a distinction with s 79 lay in the fact that the purpose of an arrest under that section was to fulfil the purpose of a warrant. As we understood the submission, the person is ‘taken into custody’ under that section because of the (suspected) existence of a warrant. That is a different process from a simple apprehension on suspicion under s 75. The section therefore uses the phrase ‘take into custody’.
It might be said that the process is different under s 79 because s 79 provides a different legal justification for the initial deprivation of liberty of a person. However, ultimately, the appellant was unable to explain why that difference sounded in the application of the phrase ‘taken into custody’ in the Bail Act.
Section 79 of the SOA provides further context that cannot be ignored when considering the appellant’s invocation of s 78. So understood, it destabilises the appellant’s submission that the phrase ‘taken into custody’ in the Bail Act, when read in light of the SOA, refers only to when the person is delivered into the custody of the officer in charge of the nearest custodial police station.
Ultimately, the appellant deployed this contention in service of a more fundamental argument. This was that when the appellant was arrested later in the day for the more serious offending, he was already in custody. He therefore could not at that time be ‘taken into custody’ within the meaning of that phrase as used in the Bail Act by the device of an arrest. Specifically, he submitted that there was ‘no purpose’ in a second arrest. There would be no difference if police had simply laid another information. The second arrest was a ‘nullity’.
The fundamental difficulty with this submission was its essential reduction of the concept of ‘custody’ to mere physical incarceration. ‘Custody’, of course, always requires a lawful basis. Thus, the Bail Act contemplates that a person is taken into custody ‘on a charge of an offence’ (s 4), ‘in respect of an offence’ (s 10) or ‘in relation to an offence’ (s 10A). For the reasons discussed above, these words do not contemplate that a person is only taken into custody when delivered into the custody of a police officer in charge of a custodial station. Rather, they simply identify the legal basis for the contemplated custody on which the Bail Act then operates. For present purposes, they identify that to be ‘taken into custody’ is to be subjected to a legal power justifying an actual physical incarceration.
This is an obvious, but significant observation in addressing the appellant’s contention that a person cannot be ‘taken into custody’ within the meaning of the Bail Act once they are already in custody.
Sub-section 14(1) of the Legislation Interpretation Act 2021 (SA) provides:
(1)In interpreting a provision of an Act or a legislative instrument, the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation.
The purpose of the relevant provisions in the Bail Act is clear. It is to make sure that within the code that the Bail Act forms for the release on bail of a person in custody, the availability of bail depends in the first instance on the nature of the charges in relation to which the person is in custody. To read ‘taken into custody’ (on a charge of an offence, in relation to an offence or in respect of an offence) as referring only to the physical change from liberty to custody, would be manifestly contrary to that purpose.
On the other hand, to read ‘taken into custody’ as referring to the exercise of lawful power justifying the physical incarceration of a person, such that it is immaterial whether the person is already physically in custody pursuant to some other lawful exercise of power, furthers that purpose. Such a reading recognises that there can be more than one lawful basis for taking a person into custody, and that each is capable of justifying the person’s physical incarceration. On this reading, a person can be repeatedly ‘taken into custody’, by a fresh exercise of lawful power each time.
The appellant’s reading, that ‘taken into custody’ simply implies a physical event that has passed, would result in an arbitrariness, if not absurdity, in the operation of the presumption against bail under s 10A. Indeed, the appellant contends for such an outcome. That is, because he was first arrested and taken into custody in relation to the breach bail offence, he cannot have been ‘taken into custody’ in relation to the more serious offences. That is notwithstanding his arrest and charge on those offences. He is, on the appellant’s argument, immune from the operation of s 10A.
Indeed, the appellant’s reading of ‘taken into custody’ has the potential to not only produce arbitrary or absurd consequences, but to undermine the coherence of the Bail Act more generally. Notably, under s 4(1)(a) of the Bail Act, a person’s eligibility for bail depends upon him or her having been ‘taken into custody’ on a charge. Assuming that the words ‘taken into custody’ are used consistently in ss 4 and 10A of the Bail Act, then a logical consequence of the appellant’s argument would be that he is not eligible for bail at all in respect of the offences for which he was later arrested.
Similarly, the discretion in s 10(2) to grant bail to a person convicted of an offence – for example, pending appeal – is expressed in terms which confines its operation to offences in respect of which the person has been ‘taken into custody’. It is difficult to conceive of any sound rationale for making the availability of bail pending appeal turn upon the sequence in which a person is charged with offences.
The appellant sought to characterise these potentially anomalous outcomes as involving merely ‘potentially arbitrary consequences as all statutes do’. That significantly understated the effects of the appellant’s construction.
As Gageler J observed in R v Independent Broad-based Anti-corruption Commissioner:[9]
Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction…
… any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical.
(Footnotes omitted)
[9] R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 at [76]-[77] (Gageler J).
A person may already be in lawful custody, be reasonably suspected of having committed a further offence, and consequently be arrested and charged, all the while never being removed from physical incarceration. There is no reason not to characterise that person as having been ‘taken into custody’ in relation to the new offence, within the meaning of the Bail Act provisions. To do so does not strain the language. The point of s 10A is not to ask whether the person’s physical status of incarceration has changed. It is to enquire into what exercise or exercises of power have justified the person’s incarceration.
‘Custody’ describes a legal status as much as it does a physical status. To arrest someone who is already in lawful custody is to exercise a police power so as to establish a further lawful reason for their incarceration. The person is then charged. At that point they have (also) been ‘taken into custody’ in respect of that charge within the meaning of the Bail Act provisions. Reading the phrase ‘taken into custody’ in this way ‘best give[s] effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’.[10]
[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] (McHugh, Gummow, Kirby and Hayne JJ).
It is necessary to address some other, more disparate submissions by the appellant.
The appellant submitted that the SOA and the Bail Act did ‘not permit’ custody being transferred from the officer in charge, etc., to an arresting officer where the person had already been taken into custody. He submitted that this arose ‘by implication by virtue of the obligations under s 78 to keep that person in custody’. He submitted, rhetorically:
Why then would the statute be read as there being a power to arrest that person under s 75 in order to lay a fresh charge? Because of course there’s no requirement that the laying of a charge can only follow on an arrest. In circumstances such as this, the further charge can simply be laid.
The appellant’s argument was that because there is no ‘need’ for a second arrest, there must be no power to make a second arrest.
Apart from appearing to amount to a submission in support of a collateral challenge to his arrest, which is not before the Court on the questions reserved, that conclusion does not follow. The possibility that a further charge could simply be laid does not warrant implying a prohibition on arresting the person for the subsequent offences. For the reasons explained above, the purpose of a second arrest when the person is already in custody is to exercise a power by which the person’s incarceration is then also justified by reference to the new charges. That is, it is to establish a further lawful basis for the incarceration.
It may be an open question whether a person can be said to be ‘taken into custody’ in respect of the new charges, within the meaning of the Bail Act provisions if the person is simply charged and not actually arrested. The implication of the appellant’s argument was that the person could not be so described. Given our rejection of the premise of the appellant’s argument, even that proposition must be open to doubt. However, to exercise the power of apprehension in this situation is, even if physically inconsequential, appropriate in ensuring that there has been a lawful exercise of power justifying the custody of the person in relation to the subject offending.

Related to this, and again appearing to go beyond the scope of the questions of construction reserved to this Court, the appellant contended that the second arrest and notional delivery into the custody of the officer in charge of the police station was an entirely artificial process and must be taken to be a ‘nullity’. He submitted that the second arrest was then only done to fulfil the purposes of s 10A of the Bail Act, given the nature of the offences.
That argument assumes that which it is trying to prove, namely that to be ‘taken into custody’ necessarily only means to be removed from liberty to physical incarceration. However, for the reasons expressed above, there is no reason to imply into the SOA (or the Bail Act) a prohibition on taking the steps necessary to ensure that a person’s ongoing physical incarceration is justified by reference to whatever further charges have been identified. Section 10A of the Bail Act then simply responds to that reality on its terms.
The appellant eventually went so far as to submit that there was no change in legal custody by reason of the second arrest. That submission conflated the concepts of lawful custody and the basis or bases of lawful custody. By the time the appellant was charged with the more serious offences, the basis of his lawful custody had extended to those more serious offences. They formed part of the legal justification for his custodial status. That being the case, the Bail Act then recognises that as a matter of legal status, he had by then been ‘taken into custody’ in relation to those offences also.
Senior counsel for the appellant was unable to identify any purpose that would be served by the narrow, physically oriented construction of the words ‘taken into custody’, where the result would be that s 10A would not apply to a person in the appellant’s position. He simply submitted that it would strain the language not to read ‘taken into custody’ in the way for which he contended. For the reasons given above, there is no straining of the language. The surrounding context of the Bail Act provisions and their manifest purpose require a conclusion that the appellant was ‘taken into custody’ in relation to the more serious charges, within the meaning of s 10A, after he was arrested and charged with those offences. That is notwithstanding that he remained physically incarcerated the whole time.
As an alternative to his reliance on the ‘plain words’, ‘taken into custody’, the appellant invoked the principle of legality as supplying a presumption in favour of his narrow interpretation of those words. He described the principle as incorporating a ‘subset’ principle ‘that any provision that otherwise affects the liberty of the subject is to be strictly construed’.
The principle of legality operates as a presumption that Parliament would not abrogate a fundamental right, freedom or immunity without expressing its intention with irresistible clearness.[11] The immediate difficulty with invoking the principle as an aid to the appellant’s interpretation in this case is that the Bail Act operates as a code for when a person who has been taken into custody on a charge of an offence may be restored to their liberty. That is to say, the Bail Act does not act to deprive a person of their liberty. It operates to restore it and sets out the conditions under which it is to be restored.
[11] Lee v NSW Crime Commission (2013) 251 CLR 196 at [171] (Kiefel J).
Relevantly, it is the SOA that operates to abrogate a fundamental right or freedom, by providing for the power of arrest, etc. What is required to be construed on the questions reserved in the present case is the Bail Act. That does not mean that the principle has no operation. However, the starting point is that rights to bail arise under the Bail Act as an amelioration of a legislative interference with a person’s liberty. The Bail Act does not interfere with common law rights and liberties. The ‘jealous scrutiny’ that courts apply to statutes that might incidentally affect such rights is not applicable.[12]
[12] Daly v Thiering (2013) 249 CLR 381 at [32]-[33].
In Smith v The Queen,[13] which concerned circumstances comparable to this case, Livesey J drew on the principle of legality in concluding that for the purposes of s 10A, a person can only be ‘taken into custody’ once in respect of any single period of physical incarceration:[14]
One cannot ignore the words actually used. For example, it will not be sufficient to show that the accused could have been, but was not in fact, taken into custody in relation to a specified offence. Likewise, it would not be sufficient to show that the loss of liberty could later be justified by the laying of charges regarding offences specified within s 10A(2) but where the loss of liberty is not attributable to the offending the subject of those later charges. Whilst it may be accepted that whether an applicant is “taken into custody in relation to” a specified offence, as distinct from merely later charged with such an offence, may sometimes be a matter of happenstance, that remains the legislative criterion.
In my opinion, these considerations do not suggest any scope for a broad or practical approach. The principle of legality requires that the ordinary meaning be given to the words actually used by Parliament when construing this category of “prescribed applicant”. Even if there were ambiguity, I must apply the “construction … which involves the least interference with … liberty”.[15] Here, that means the construction that preserves the statutory presumption in favour of bail.
On the facts of this case, I find that the applicant was not “taken into custody in relation to” his serious firearms offence. At the hearing of this matter, there appeared to be no dispute about that. The applicant was taken into custody and remains in custody in connection with a major indictable offence of trafficking in cocaine, methylamphetamine and MDMA.
(Footnote in original)
[13] (2020) 136 SASR 588.
[14] Smith v The Queen (2020) 136 SASR 588 at [55]-[57].
[15] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] (French CJ, Kiefel and Bell JJ).
For the reasons expressed above, we would respectfully not adopt this analysis. The presumption of bail in s 10 is a statutory construct, as is the reversal of that presumption in s 10A. As Gageler and Keane JJ observed about the principle of legality in Lee v NSW Crime Commission:[16]
The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.
(Footnote omitted)
[16] Lee v NSW Crime Commission (2013) 251 CLR 196 at [313]-[314] (Gageler and Keane JJ).
The appellant submitted that this statement represented an ‘alternate theory’ of the principle of legality that had not found favour with the majority of the High Court. We do not accept that this statement represents an ‘alternate theory’. It is an exposition of a limit to the principle. In Hore v The Queen,[17] The High Court approved of this Court’s rejection of the application of the principle of legality to a question of statutory construction. That rejection had relied expressly on this passage.[18] Further, and in any event, this approach to the principle of legality, including the very passage from the reasons of Lee v NSW Crime Commission extracted above, was very recently endorsed by the High Court in Hurt v The King.[19]
[17] (2022) 273 CLR 153 at [49].
[18] Wichen v The Queen (2021) 138 SASR 134 at [27].
[19] Hurt v The King [2024] HCA 8 at [106] (Edelman, Steward and Gleeson JJ); see also at [49] (Gageler CJ and Jagot J).
By s 10A of the Bail Act, the legislature ‘has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed’.[20] The principle of legality does not operate to support a reading of s 10A that would result in an arbitrary, indeed absurd, application of the presumption in favour of bail, simply depending on the timing of arrests.
[20] Lee v NSW Crime Commission (2013) 251 CLR 196 at [314] (Gageler and Keane JJ).
Conclusion
We answer the questions reserved as follows:
1.Is a person ‘taken into custody’ for the purposes of s 10A of the Bail Act on each occasion on which they are apprehended by a police officer on suspicion of having committed an offence?
Yes.
2.Was the [appellant] a ‘prescribed applicant’ within the meaning of s 10A of the Bail Act?
Yes.