QUESTION OF LAW RESERVED NO. 3 OF 2023

In Question of Law Reserved No. 3 of 2023, the Full Court of the Supreme Court of South Australia considered a question of law reserved by a single judge. The appellant had been arrested on 11 September 2023 for breaching a bail condition, having been found in possession of a child with whom he was prohibited from contacting. He was placed in a police cage vehicle and subsequently taken to a police station. At the time of this arrest, the appellant was already in custody for prior drug-related offences.

The central legal issue before the court was whether the appellant was "taken into custody" for the purposes of section 10A of the Bail Act 1985 (SA) in relation to the breach bail offending, given that he was already in custody for other offences. This question arose in the context of determining if the appellant was a "prescribed applicant" under section 10A, which deals with the presumption in favour of granting bail.

The court reasoned that the phrase "taken into custody" in section 10A should be interpreted broadly to encompass each occasion on which a person is apprehended by a police officer on suspicion of having committed an offence. The court applied the principle of legality, noting that the legislature, by enacting section 10A, had clearly intended to curtail certain rights or freedoms in specific circumstances. The court rejected an interpretation that would lead to an arbitrary or absurd application of the bail presumption based solely on the timing of arrests. Accordingly, the court concluded that the appellant was taken into custody on each occasion he was apprehended.

The court answered the questions reserved as follows: first, a person is "taken into custody" for the purposes of section 10A of the Bail Act on each occasion they are apprehended by a police officer on suspicion of having committed an offence; and second, the appellant was a "prescribed applicant" within the meaning of section 10A of the Bail Act.