R v Briggs

[2014] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v BRIGGS

[2014] SASC 62

Judgment of The Honourable Justice Sulan

22 May 2014

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

Application to review an order of a Magistrate refusing to grant the applicant bail.  Applicant charged with firearm and drug-related offences.

Whether the application for bail is governed by s 10A of the Bail Act 1985 (SA). Whether the applicant established the existence of special circumstances justifying his release on bail.

Held (allowing the application for review):

1 Where bail is opposed by the prosecution on the basis that an applicant is a prescribed applicant by force of s 10A(2)(e) of the Bail Act 1985 (SA) on the basis that the circumstance said to amount to a serious firearm offence is the connection between the firearm offence and the serious drug offence pursuant to s 20AA(1)(d) of the Criminal Law (Sentencing) Act 1988 (SA), the prosecution must satisfy the Court that such a connection exists.

2 Section 10A(2)(e) of the Bail Act 1985 (SA) is not enlivened and the presumption against bail does not apply in respect of the applicant.

3 If s 10A(2)(e) of the Bail Act 1985 (SA) is enlivened, special circumstances exist justifying the applicant's release on bail.

R v BRIGGS
[2014] SASC 62

Criminal:         Application for Review of Bail

1. SULAN J: On 1 May 2014, I heard an application for a review of the decision of the Magistrates Court refusing to grant bail to the applicant, Ryan Frederick Briggs. I ordered that the applicant be released on bail and indicated that I would provide reasons for doing so later. These are those reasons.

   Background

2. On Saturday 5 April 2014, police attended at the applicant’s premises at Morphett Vale and executed a general search warrant after receiving information that a person at the address had supplied cannabis to another person. The applicant was not present at the time of the search and could not be contacted by police. Inside the premises police located an imitation handgun in the top drawer of a bedside cabinet in the master bedroom. A large tub containing cannabis was located under a bed in the spare bedroom. Kitchen scales with cannabis residue were located in the kitchen cupboard.  An amount of $5,550 in cash was found in a drawer insider the wardrobe in the master bedroom.

3. At around 2.30pm on Sunday 6 April 2014, police returned to the Morphett Vale address and arrested the applicant. The applicant told police that the firearm located in the master bedroom was in the house when he moved in and that he was not aware that it was an offence to possess it. He said that the cannabis was for personal use and that the cash was his savings.

4. He was subsequently charged on Complaint as follows:

   Offence details
   

   1. On the 6^th day of April 2014 at MORPHETT VALE in the said State,

   
   

   was in possession of a class c firearm namely an imitation handheld pistol whilst not holding a firearms licence authorising possession of that firearm.

   
   

   Section 11(1) of the Firearms Act 1977.

   
   

   This is a major indictable offence

   2. On the 6^th day of April 2014 at MORPHETT VALE in the said State,

   
   

   had in his possession an un-registered firearm namely an imitation handheld pistol.

   
   

   Section 21(1) of the Firearms Act 1977.

   
   

   This is a summary offence.

   3. On the 6^th day of April 2014 at MORPHETT VALE in the said State,

   
   

   being a person (other than a dealer) who had possession of a class c firearms, failed to keep that firearm secured in accordance with Regulation 38(2) of the Firearms Regulations 2008.

   
   

   Regulations 38(2) and 61 of the Firearms Regulations, 2008.

   
   

   This is a summary offence.

   4. On the 6^th day of April 2014 at MORPHETT VALE in the said State,

   
   

   had in his possession personal property namely $5,500 in cash which either at the time of such possession, or at a subsequent time before making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means.

   
   

   Section 41(1) of the Summary Offences Act 1953.

   
   

   This is a summary offence.

   5. On the 6^th day of April 2014 at MORPHETT VALE in the said State,

   
   

   did traffic in cannabis being a controlled drug.

   
   

   Section 32(3) and 32(4) of the Controlled Substances 1984.

   
   

   This is a summary offence.

5. The applicant appeared in the Magistrates Court on 7 April 2014 and bail was refused on the basis of the seriousness of the offending and that special circumstances had not been established.  A bail enquiry report and a home detention report were subsequently ordered. On 17 April 2014 the applicant appeared in the Magistrates Court and bail was refused on the ground that special circumstances had not been established to justify the applicant’s release on bail. The applicant seeks a review of the Magistrate’s decision.

   The presumption against bail

6. Section 10 of the Bail Act 1985 (SA) (the “Bail Act”) provides that a person taken into custody with respect to an offence should be released on bail unless the bail authority reaches a contrary conclusion having regard to the circumstances prescribed by that section. Those circumstances include the gravity of the offence, the likelihood that the applicant would, if released, abscond or offend again and whether the person has previously contravened or failed to comply with the condition of a bail agreement.

7. Section 10A, however, establishes a presumption against bail in particular circumstances. It provides as follows:

   10A—Presumption against bail in certain cases

   (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.

   (1a)An applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist for the purposes of subsection (1) unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of—

   (a)     a serious and organised crime offence; or

   (b)     an offence committed in another jurisdiction that would, if committed in this jurisdiction, have been a serious and organised crime offence.

   (2)In this section—

   prescribed applicant means—

   (a)     an applicant taken into custody in relation to any of the following offences if committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit:

   (i)an offence against section 13 of the Criminal Law Consolidation Act 1935 in which the victim’s death was caused by the applicant’s use of a motor vehicle;

   (ii)an offence against section 19A of the Criminal Law Consolidation Act 1935;

   (iii)an offence against section 29 of the Criminal Law Consolidation Act 1935 if the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle; or

   (b)     an applicant taken into custody in relation to an offence against section 17 where there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under section 11(2)(a)(ii); or

   (ba) an applicant taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or

   (bb)   an applicant who is a serious and organised crime suspect;

   (c)     an applicant taken into custody in relation to an offence of contravening or failing to comply with a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008; or

   (d)     an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:

   (i)section 172;

   (ii)section 248;

   (iii)section 250;

   (iv)section 85B; or

   (e) an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988).

8. The applicant advanced two grounds for review. Firstly, it was submitted that he is not a prescribed applicant for the purposes of s 10A of the Bail Act and, secondly, if he is determined to be a prescribed applicant, then special circumstances exist to justify his release. The respondent opposed the granting of bail. Counsel for the respondent contended that the applicant is a prescribed applicant and that there are no special circumstances which exist to justify his release on bail.

   A prescribed applicant?

9. Section 10A(2)(e) of the Bail Act provides that a person is a prescribed applicant where he or she is taken into custody in relation to a serious firearm offence within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988 (SA) (the “Sentencing Act”). Part 2 Division 2AA of the Sentencing Act is comprised of three sections which deal with sentencing serious firearm offenders. Section 20AA defines a serious firearm offence. It provides:

   20AA—Interpretation

   (1)   In this Division—

   "serious drug offence" means an offence against section 32, 33, 33A, 33B, 33C, 33F, 33G, 33H, 33I, 33J, 33K, 33LA or 33LB of the Controlled Substances Act 1984 ;

   "serious firearm offender" means a person who is, by virtue of the operation of section 20AAB, a serious firearm offender;

   "serious firearm offence" means—

   (a)an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or carriage of—

   (i)     a class H firearm—

   (A)that is unregistered at the time of the offence or is registered in the name of a person other than the defendant; and

   (B)for which the defendant does not, at the time of the offence, hold a firearms licence authorising possession of the firearm; or

   (ii)   a class C firearm or class D firearm that is an automatic firearm; or

   (iii) a prescribed firearm (other than a firearm declared by the regulations to be excluded from the ambit of this subparagraph); or

   (iv) any other firearm declared by the regulations to be included in the ambit of this paragraph; or

   (b)an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or possession of a firearm and committed—

   (i) while the defendant is the subject of a control order under the Serious and Organised Crime (Control) Act 2008; or

   (ii) in the circumstances contemplated by section 5AA(1)(ga) of the Criminal Law Consolidation Act 1935; or

   (iii) while the defendant is the subject of a firearms prohibition order; or

   (c)an offence against section 29A of the Criminal Law Consolidation Act 1935; or

   (d)an offence against the Firearms Act 1977 involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence; or

   (e)an offence against the Firearms Act 1977 committed while the defendant—

   (i) is on bail (being bail that was, at the relevant time, subject to the condition imposed by section 11(1)(a) of the Bail Act 1985 ); or

   (ii)   is the subject of a bond under this or any other Act (being a bond that was, at the relevant time, subject to the condition imposed by section 42(a1)(a), or a condition of a similar kind); or

   (iii) is on release from prison on home detention (being a release subject to the condition imposed by section 37A(3)(ca) of the Correctional Services Act 1982 ); or

   (iv) is on parole (being parole that was, at the relevant time, subject to the condition imposed by section 68(1)(a)(ia) of the Correctional Services Act 1982 ); or

   (v)   is on release on licence from custody under this or any other Act (being a licence that was, at the relevant time, subject to a condition prohibiting the defendant from possessing a firearm, part of a firearm or ammunition).

   (2)   In this Division, the following terms have the same meaning as in the Firearms Act 1977 :

   (a)automatic firearm;

   (b)class C firearm;

   (c)class D firearm;

   (d)class H firearm;

   (e)firearm;

   (f)firearms prohibition order;

   (g)prescribed firearm.

   (3)   For the purposes of this Division, a reference to imprisonment includes, in the case of a youth, a reference to detention in a training centre or home detention (within the meaning of the Young Offenders Act 1993).

10. Section 20AAB of the Sentencing Act provides that a person is taken to be a serious firearm offender if he or she is convicted of a serious firearm offence. Section 20AAC then contains specific provisions for sentencing a serious firearm offender.

11. It was contended by the respondent that the applicant is a prescribed applicant by force of s 20AA(1)(d) of the Sentencing Act on the basis that he is charged with offences against the Firearms Act 1977 (SA) involving the use or possession of a firearm in the course of, or for a purpose related to, the commission of a serious drug offence, being the possession of a trafficable quantity of cannabis.

12. Counsel for the applicant submitted that s 20AA(1)(d) of the Sentencing Act was not enlivened. The bases for this contention were twofold. Firstly, it was submitted that it could not be established by the prosecution that the applicant committed a serious drug offence as defined by s 20AA(1) of the Sentencing Act. The contention was that because the amount of cannabis located at the applicant’s premises was less than that to which the presumption in respect to trafficking cannabis applied,[1] the prosecution could not establish that the defendant did in fact traffic in the cannabis. Secondly, it was contended that, if a serious drug offence was established, the prosecution had failed to establish a sufficient connection between the firearm and the drug offending pursuant s 20AA(1)(d) of the Sentencing Act.

    [1] Section 32(5) of the Controlled Substances Act 1984 (SA).

13. In Lombardi,[2] Kourakis CJ considered s 10A(2)(e) of the Sentencing Act. He observed that unlike the other subparagraphs in s 10A(2) which condition the presumption against bail on the making of an allegation that the offending was committed in the circumstances set out in each subparagraph, s 10A(2)(e) refers to a person taken into custody in relation to the offending committed in the circumstances set out by that subparagraph. As to the reason for the difference, Kourakis CJ observed:[3]

    However, it will be noticed that a serious firearm offence for the purpose of s 20AA CLCA is not defined as an offence alleged to have been committed in the course of, or for a purpose related to, the commission of a serious drug offence. The reason for that is found in s 20AAC of the CLSA. That section provides that, save in an exceptional case, a sentencing court must not suspend a sentence of imprisonment imposed on a serious firearm offender. The section contemplates that a sentencing court will make a finding as to whether or not a defendant is a serious firearm offender as part of the sentencing process. Indeed it might even be that the allegation will have been included in the particulars of the offence as a matter of practice or that alternatively a jury has determined both the firearm offence and drug offence in the same trial.

    [2] (2013) 115 SASR 577

    [3] (2013) 115 SASR 577, [16].

14. The Chief Justice then construed s 10A(2)(e) in the following way:[4]

    However in my view, consistently with the other subparagraphs of s 10A(2) of the Bail Act, subparagraph (e) should be construed to refer to an applicant who has been taken into custody in relation to a firearm offence which is alleged to be a serious firearm offence as defined by s 20AA of the CLSA.

    [4]    R v Lombardi (2013) 115 SASR 577, [18].

15. As to the applicant’s first submission, I consider that the prosecution has established that the applicant has been taken into custody in relation to the alleged commission of a serious drug offence. Section 20AA(1) of the Sentencing Act defines a serious drug offence as an offence against s 32 of the Controlled Substances Act 1984 (SA). The Information upon which the applicant is charged contains a count alleging an offence against ss 32(3) and 32(4) of the Controlled Substances Act 1984 (SA). In my view, that is sufficient to establish that the applicant is alleged to have committed a serious drug offence for the purpose of s 20AA(1)(d) of the Sentencing Act.

16. In relation to the applicant’s second contention, it is clear that s 20AA(1)(d) of the Sentencing Act requires the prosecution to establish a nexus between the offence contrary to the Firearms Act 1977 (SA) and the serious drug offence. The words of the provision are unequivocal in this respect. Section 20AA(1)(d) states, “an offence against the Firearms Act 1977 (SA) involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence”. As observed by the Chief Justice in Lombardi, s 20AAC of the Sentencing Act contemplates a finding that a defendant is a serious firearm offender would be made as part of the sentencing process. The allegation that a defendant has committed a serious firearm offence would typically be made by the prosecution during submissions on sentence.

17. In my view, where bail is opposed by the prosecution on the basis that an applicant is a prescribed applicant by force of s 10A(2)(e) of the Bail Act on the basis that the circumstance said to amount to a serious firearm offence is the connection between the firearm offence and the serious drug offence pursuant to s 20AA(1)(d) of the Sentencing Act, the prosecution must satisfy the court that such a connection exists. The issue that arises is what is required to satisfy a court that such a nexus exists where the court is making the determination for the purpose of a bail hearing.

18. In Lombardi, the Chief Justice rejected an invitation by counsel for the Director of Public Prosecutions to find that s 10A(2)(e) of the Bail Act was enlivened by making a factual finding on the basis of the affidavit material that the defendant was a person who had committed a serious firearm offence. He considered that a court is not in a position in a bail hearing to reach a conclusion as to the guilt of a defendant on the charges on which he or she seeks bail. The Chief Justice then observed:[5]

    The charge that the respondent possessed in his home a sawn off shot gun allegedly at the same time that there was present in that home amphetamine brings the respondent within the terms of s 10A(2)(e) of the Bail Act.

    [5]    R v Lombardi (2013) 115 SASR 577, [18].

19. In my view, establishing the necessary nexus between the firearm offence and the serious drug offence for determining whether an applicant is a prescribed applicant requires more than the aggregation of those two offences on the same information, even where they are alleged to have been committed on the same date in the same location. I consider that the appropriate course is to consider the available evidence and determine whether, taking the Crown case at its highest, it is capable of supporting an allegation that the firearm offence involved the use or possession of the firearm in the course of, or for a purpose related to, the commission of the serious drug offence.

20. Counsel for the respondent submitted the following circumstances support the contention that necessary nexus exists. It was submitted that a large amount of cash indicative of the dealing in drugs was located at the premises, digital scales containing cannabis residue were located and there was evidence obtained from text messages which indicated that the applicant had supplied cannabis the previous evening to another person who had been charged with trafficking in cannabis. It was further submitted that although the firearm was located in a separate room to where the cannabis was located, it was easily accessible to the applicant.

1. In my view, the first three factors identified by the respondent are relevant to the issue of whether the applicant committed an offence contrary to s 32 of the Controlled Substances Act 1984 (SA). They are not, in themselves, capable of establishing a nexus between the firearm offence and the serious drug offence. Further, simply because the firearm was easily accessible, it does not follow that it was used or in the possession of the applicant in the course of, or for a purpose related to the serious drug offence.

2. In cases such as Lombardi, where there are weapons such as a shotgun modified for the purpose of concealment, the presence of a significant amount of ammunition and GPS tracking equipment as well as the presence of amphetamines, the inference can more readily be drawn that there is a connection between the firearm offence and the serious drug offence. Such items are common indicia of serious and organised drug operations and are undoubtedly the type of offenders which Parliament intended to target by reversing the presumption of bail in particular cases.

3. The applicant submitted that the quantity of cannabis located in the spare bedroom was 160 grams. He says that the cash found in the wardrobe was the proceeds of savings taken from a joint account, which he held with his girlfriend, accumulated for the purpose of purchasing her an engagement ring. He states that the imitation firearm was in the house that came fully furnished when he moved in. It was stored in the bedside cabinet of his partner’s side of the bed. It was made of plastic and the applicant believed it to fire plastic pellets, although he never had any ammunition and never fired it. He said that he understood it to be broken as it rattled and was bound with tape. He states that he was unaware that it was an offence to possess it.

4. In my view, s 10A(2)(e) is not enlivened and the presumption against bail does not apply in respect of the applicant. If I am wrong about that, and assuming s 10A(1)(e) is enlivened, for the reasons that follow I consider that special circumstances exist to justify the defendant’s release on bail.

   Special circumstances

5. In R v Buhlmann,[6] I considered the meaning of the phrase “special circumstances” used in s 10A(1) of the Bail Act. I said:[7]

   The meaning of “special circumstances” was discussed by Mitchell J in Saywell v Yiu. In that case, the Local and District Criminal Courts Act 1926 provided that an appellant may appeal against a decision of a Special Magistrate upon obtaining the leave of a  judge of the Supreme Court, which leave may be granted in special circumstances as the judge thinks fit.  Mitchell J considered the meaning of the words “special circumstances” in the context of that legislation.  She said:

   … Where the legislature has left it to the discretion of the Judge hearing the application for leave to appeal to decide whether there are special circumstances justifying him in giving leave, the words “special circumstances” should be given their natural and ordinary meaning and not read in a restricted manner.  They are “wide, comprehensive, and flexible words, … and no Court can or ought to lay down an exhaustive definition of them” (per Lopes L.J. in In re Norman).  (Citations omitted)

   The words are wide and import a flexible approach by the Court. 

   There are no words limiting the scope and meaning of “special circumstances” in s 10A of the Act. They should be given their ordinary meaning. They import a wide and flexible approach in determining whether an applicant has established special circumstances. There are a variety of circumstances which will justify concluding a person should be released on bail. The words of the section are not limiting. The section is to be interpreted having regard to the principle that a person charged with an offence is presumed innocent and should only be held in custody if they cannot establish special circumstances to be released.

   [Citations omitted].

   [6] [2010] SASC 123.

   [7]    R v Buhlmann [2010] SASC 123, [21]-[23].

6. In R v Lombardi, Kourakis CJ further observed:[8]

   It can be accepted that the term “special circumstances” cannot be comprehensively or exhaustively defined.  The particular circumstances which might qualify as special circumstances may vary over a great range.  In my view, that is the point made by Mitchell J in Saywell.  However, the term “special circumstances” will ultimately take its meaning and content from the context of the provision in which it appears.  It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision. 

   In R v Barnett, I surveyed the use of the expressions “special reasons” and “special circumstances” in South Australian statutory provisions.   The survey showed that special reasons or circumstances are those reasons or circumstances that were beyond the contemplation of Parliament.

   As I earlier observed, s 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough. The discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen hardship or injustice.

   [Citations omitted].

   [8] (2013) 115 SASR 577, [22]-[24].

7. In my view, the following factors in this case amount to special circumstances. The applicant is 28 years of age. He comes before the court with no relevant prior convictions. He owns the premises at Morphett Vale which is encumbered by a significant mortgage. He has a de facto partner and 18 month old daughter. He is the sole income earner in the family. He is employed as Business Improvement Manager at a roofing company, a position he has held for 10 years. He is currently receiving income through leave entitlements. His employment will continue to be available to him provided that he is not imprisoned for an extended period of time.

8. It is likely that the trial of the charges will not occur for some 12-18 months. There is a real possibility that if the charges against the applicant are found proved, the sentence he receives will be less than the period he would serve on remand awaiting his trial.

9. The offending, whilst serious, was at the lower end of the range for the type of offences with which the applicant is charged.

10. The applicant does not pose a risk to the community if released on bail.  He is not a person who it can be said was contemplated by Parliament as posing a particular risk to the community over and above the risk posed by persons who are charged with drug offences at the lower end of seriousness for those offences.

    Conclusion

11. For these reasons, I released the applicant on bail forthwith.