R v Buhlmann - [2010] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BUHLMANN
[2010] SASC 123
Judgment of The Honourable Justice Sulan
3 May 2010
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application to review an order of a magistrate refusing bail - applicant charged with failing to comply with a bail agreement and remanded in custody - magistrate erred in concluding that the applicant did not establish the existence of special circumstances pursuant to s 10A of the Bail Act 1985 (SA) - applicant released on bail.
Bail Act 1985 (SA) s 10, s 10A, s 11(2); Local and District Criminal Courts Act 1926 (SA), referred to.
Saywell v Yiu (1976) 14 SASR 56, applied.

R v BUHLMANN
[2010] SASC 123
Criminal

SULAN J: On 23 April 2010, I heard an application to review an order of a magistrate sitting at Mount Gambier who had refused to grant bail to the applicant. I ordered that the applicant be released on bail, without conditions, and without requiring him to enter into a recognizance. I publish my reasons.
Background
The applicant is 49 years of age, and resides in Mount Gambier. He has prior convictions which include possessing a drug, for which he was fined $200. He was convicted of driving with an excess blood alcohol limit. He was fined $300 and disqualified from holding or obtaining a driver’s licence for three months. Those offences occurred on 24 September 1979 and 24 December 1982 respectively and, for the past 27 years, he has not been convicted of any offences.
The background to this application is that the applicant was in a relationship with Gillian Maxine Squire for in excess of six years. They separated in about February 2010. The separation was not amicable. Ms Squire alleges that the applicant had harassed her after their separation. She applied for a restraining order, which was refused.
On the evening of 4 April 2010, Ms Squire and her sister-in-law were at the Commercial Hotel at Mount Gambier. The applicant was at the hotel. She alleges that the applicant stared at her. She alleges that later that evening, after midnight, she received two telephone calls from the applicant, which she reported to the police.
In the early hours of the morning, at about 1.25, it is alleged that the applicant came to Ms Squire’s home, where an altercation occurred between Ms Squire’s son and the applicant. During that altercation the applicant was punched in the mouth. It is alleged that he spat a mouthful of blood into the face of Ms Squire.
Police were called and the applicant was arrested and charged with being unlawfully on premises and two counts of assault, one relating to Ms Squire’s son and the other to the spitting of blood at Ms Squire. When police searched the applicant they found a knife hidden in a sock. He was charged with carrying an offensive weapon. It is not suggested that the applicant used or attempted to use the knife during the altercation.
The applicant was released on bail in the early hours of 4 April 2010, on conditions which included a condition that he not approach or communicate, either directly or indirectly, with Gillian Squire.
On 6 April 2010, at about 4.40 pm, it is alleged that Ms Squire was seated in her motor car, which was stationary in the right-hand lane at the junction of Wehl Street South and Helen Street, Mount Gambier. Ms Squire states that she heard a car horn. She looked to her left and saw the applicant sitting in the driver’s seat of his car. She states that the applicant waved and smirked at her. She turned away and, when the traffic lights turned to green, she allowed the applicant to drive off in front of her. She attended at the Mount Gambier Police Station at about 5.25 pm and made a report. At about 10 pm that night, police arrested the applicant who was charged with a breach of his bail.
The applicant told the police that he was driving along Wehl Street South when Ms Squire pulled out in front of him. He said he stopped beside her motor car, waved and smiled, and then drove off. He denied that he had used the car horn.
The applicant was held in custody and appeared before a Justice of the Peace at the Mount Gambier Magistrates Court on 7 April 2010. He was charged with failing to comply with a bail agreement. He did not enter a plea, nor did he apply for bail. He was remanded in custody.
On 13 April 2010, he appeared before the Magistrate sitting at Mount Gambier. He was represented by a solicitor, who applied for bail. Section 10A(1) of the Bail Act 1985 (SA) (“the Act”), 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.
Section 10(1) of the Act provides:
10 – Discretion exercisable by bail authority
(1)Where 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;
b)    the likelihood (if any) that the applicant would, if released –
i)abscond;
ii)offend again;
iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;
d)    any need that the applicant may have for physical protection;
e)    any medical or other care that the applicant may require;
f)     any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;
g)    any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
A prescribed applicant includes an applicant taken into custody in relation to an offence against s 17 where there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under s 11(2)(a)(ii),. That section provides that a condition that may be imposed in relation to the grant of bail includes one where there is a victim of the offence in respect of which the applicant has been charged, and which relates to the physical protection of the victim.
The condition that the applicant not approach or communicate, either directly or indirectly, with Gillian Squire is such a condition. It follows that s 10A(1) of the Bail Act 1985 applies to the applicant, and that the presumption of bail pursuant to s 10 of the Act does not apply.
Section 10A is aimed at persons who create a threat to the police, to public officials, to the community, or to a particular victim. It applies to those persons who are alleged to have engaged the police in a pursuit, and who have misused a motor vehicle which has caused the death or injury of a person, or a risk of injury to others. It applies to persons alleged to have targeted victims or public officers and, thereby, posed a threat to them. It also applies to persons who intentionally or recklessly cause bushfires.
As to persons who breach a bail condition, the section is restricted to a person who fails to comply with a condition that relates to the physical protection of a victim who has been a victim of an offence in respect of which the bailee is charged.
In order for the applicant to be granted bail, the applicant is required to establish the existence of special circumstances justifying the applicant’s release on bail. The applicant’s solicitor submitted to the Magistrate that the special circumstances are that the applicant is the sole carer of his 10-year-old and 14‑year-old sons, whose mother is deceased, that he has no prior history of breaches of bail, no history of violence, and that he will reside with his parents at Mount Gambier. The Magistrate concluded that there were no special circumstances, and remanded the applicant in custody. In the material provided to me, the Magistrate did not give reasons for his conclusion.
When the matter was before me, counsel for the applicant submitted that there were special circumstances in this case, in addition to those that were put before the Magistrate, including that the circumstances of the offending (if proved) were so trivial that that alone amounted to a special circumstance.
Counsel for the Director of Public Prosecutions, in my view, appropriately supported the application for bail, which I granted forthwith.
I consider that there were compelling reasons to conclude that there are special circumstances to grant the applicant bail.
The meaning of “special circumstances” was discussed by Mitchell J in Saywell v Yiu.[1] 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:[2]
… 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)
[1] (1976) 14 SASR 56.
[2] Ibid, 58.
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.
In my view, the following factors in this case amount to special circumstances. First, the case against the applicant of his alleged breach of bail (if proved) is, to say the least, a trivial breach. Secondly, putting the prosecution case at its highest, the applicant blew his horn, waved and smirked at Ms Squire. The contact between them was by chance, and momentary. Thirdly, the applicant posed no risk to Ms Squire during the time that he was looking at her. Fourthly, the applicant is the sole carer of his two young sons. To incarcerate him, in the circumstances of this case, was unduly harsh. Fifthly, the applicant has no prior history of breaching bail, nor has he any prior history of violence. He has not been convicted of any offence for almost 30 years. Sixthly, there is no suggestion that the applicant posed any risk to Ms Squire or members of her family after he was charged with the offences alleged to have occurred on 4 April 2010. Seventhly, even if the applicant were to be convicted of the offence of breaching bail, a sentence of imprisonment would not result. By the time the matter came before the Magistrate, the applicant had already been in custody for eight days, which is far in excess of any penalty he would have received for the breach of bail.
In this case, although the section technically may apply to the applicant, any objective assessment of his conduct could not be said to pose any risk or threat to Ms Squire.
In all the circumstances, the Magistrate was in error in refusing bail and in concluding that there were no special circumstances. If ever there was a case of special circumstances, this was such a case. The refusal to grant bail was, in my view, an unjustified deprivation of the applicant’s liberty.
I, therefore, released the applicant on bail forthwith.