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R v Buhlmann

R v Buhlmann

Case [2010] SASC 123 3 May 2010

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Buhlmann

Details

AGLC: R v Buhlmann [2010] SASC 123
Case: [2010] SASC 123
Decision Date: 3 May 2010

CaseChat Overview and Summary

In this case, the applicant, Buhlmann, applied to the court to review a magistrate's order refusing bail. Buhlmann was charged with failing to comply with a bail agreement and was subsequently remanded in custody. The primary legal issue before the court was whether the magistrate had erred in concluding that Buhlmann had not established the existence of special circumstances that would warrant a grant of bail under section 10A of the Bail Act 1985 (SA). This section allows for the consideration of special circumstances that may justify bail even if the standard criteria are not met.

The court examined the magistrate's decision and found that there was indeed an error in the conclusion that Buhlmann had not established special circumstances. The magistrate had not properly assessed the evidence presented regarding these circumstances. Consequently, the court found that the magistrate's decision was flawed and that Buhlmann should have been granted bail based on the special circumstances presented. The court exercised its discretion to release Buhlmann on bail, reversing the magistrate's earlier decision.

The final orders of the court were that the application to review the magistrate's order was allowed, and Buhlmann was released on bail. The court directed that the special circumstances identified should be taken into account in any future proceedings.

Orders