R v Cooke

R v COOKE
[2003] SASC 403
Magistrates Appeal

GRAY J This is a Crown application for bail review.
The accused Robert Cooke is charged with murder, causing death by dangerous driving and failing to truly answer.[1]
[1] The information includes:
On 4 November 2003 a magistrate granted bail. The terms included that the accused not leave the State for any reason without permission; that he reside with his elderly mother at Port Willunga with at least one of his guarantors present at all times; that approval for granting employment be excluded; that he wear an electronic wristlet and comply with the rules of electronic monitoring; that he not communicate, either directly or indirectly, or approach any of the prosecution witnesses; and that he forfeit to the Crown the sum of $50,000.00 if he failed to comply with a term of the bail agreement.
As indicated the Crown sought a review of the grant of bail. The grounds advanced included the gravity of the alleged offending and the risk of witness intimidation or interference.
In R v Collie (No. 2) [2002] SASC 247 the court made the following observations in relation to the approach to be taken to pre-trial bail applications:
Pre-trial bail applications are common. There are features about them that set them apart from other hearings, particularly those made during the course of a trial. Bail applications must be determined expeditiously. Time is of the essence. The Crown will make allegations against an applicant. These will often be untested assertions and may include information about the applicant’s character, propensity to act in a certain way, uncharged conduct and the perceived fear of the alleged victim or victims. The court is required to make an assessment of the strength of these allegations and make predictions about the applicant’s future conduct. The scope of a bail hearing is much broader than many other criminal proceedings. There is a level of informality about the entire process. The rules of evidence are not strictly enforced as the court is assessing risk not determining guilt.
These observations are relevant to the way in which the material placed before this court is to be assessed.
The Crown Case
The Crown case is that the deceased, Gregory Keam, met his death on or about 10.20 pm on 16 September 2003. He was struck by a maroon coloured Toyota Landcruiser driven by the accused whilst walking east along a footpath on Norwood Parade, not far from The Colonist Tavern, Norwood. It was said that the deceased was not the intended victim, but, rather, the intended victim was Steven Madden.
It is the Crown’s case that on the evening the alleged offences took place, Mr Madden and Sybil Nelson were at The Colonist Tavern, Norwood. Mr Madden noticed a man looking at him and Ms Nelson. Mr Madden said something in the nature of ‘What are you looking at’. This man was later identified as being the accused. Sometime later, Mr Madden and Ms Nelson left the hotel and Mr Madden walked to the vehicle he was driving that evening. Mr Madden noticed another male, later identified as Mr Keam, near the vehicle. On the Crown case, Mr Keam approached Mr Madden and began administering electric shocks to his body with a ‘taser’ gun. Mr Madden informed an employee of the Tavern that Mr Keam was trying to electrocute him and asked her to call the police. Mr Madden then followed Mr Keam west on Norwood Parade towards Fullarton Road and then east towards the Tavern. Mr Madden continued to follow. Suddenly Mr Madden was aware of a four wheel drive heading towards him and Mr Keam. Mr Madden was hit by the vehicle and suffered minor injuries. Mr Keam was struck by the vehicle. He died at the scene from injuries suffered as a result of the collision. It is the Crown case that the accused was the driver of the vehicle.
Section 10(1) of the Bail Act 1985 (SA)
Section 10(1) of the Bail Act sets out those matters that a bail authority must have regard to when considering a grant of bail:
(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;
(c)     (Repealed)
(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.
Gravity of the Offence
Counsel for the Crown submitted that the gravity of the offence was such that bail should not be granted. It was said that the accused’s actions were deliberate. It was contended that the declarations established that the accused drove a four-wheel drive vehicle onto the footpath, where there were two pedestrians, at a speed somewhere between 30 and 60 kilometres per hour. The vehicle struck the deceased with considerable force, almost severing his leg and resulting in his death. The Crown submitted that these circumstances disclosed serious offending and of such gravity that bail should be refused.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
This paragraph is suppressed.
Section 11(3) of the Bail Act
It was submitted by counsel for the accused that bail with electronically monitored home detention conditions would be an appropriate order in this case. Counsel said that the accused’s criminal antecedents indicated that he had previously been subject to, and has complied with, conditions of bail. The premises identified were suitable for home detention bail. Counsel further submitted that the conditions should allow the accused to work as a builder, to manage the adult bookshop Secrets and the Venus massage parlour.
When considering home detention conditions, it is necessary to have regard to section 11 of the Bail Act which provides:
(1) Subject to this section, a bail authority may impose one or more of the conditions referred to in subsection (2).
(2) The conditions that may be imposed in relation to the grant of bail are as follows:
…
(a) that the applicant agree-
(i)    to reside at a specified address; or
(ia)    to reside at a specified address and to remain at that place of residence while on bail, not leaving it except for one of the following purposes;
(A)    renumerated employment; or
               (B)     necessary medical or dental treatment for the applicant; or
(C)averting or minimising a serious risk of death or injury (whether to the applicant or some other person); or
(D)    any other purpose approved of by a community corrections officer; or
        …
(iii) to be under the supervision of a community corrections officer and to obey the lawful directions of the officer; or
…
(3) A bail authority should not impose a condition under subsection (2)(a)(ia) or (iii) except on the application, or with consent, of the Crown.
Counsel for the accused submitted that the magistrate took the view that he could not grant bail with a home detention requirement as this was not consented to by the Crown. It was submitted that the magistrate followed an interpretation of section 11(3) contained in the following remarks of a judge of this court in R v Duke:
It seems to me, pursuant to s11(3) of the Bail Act, that I cannot impose a condition for home detention or a condition for supervision by an officer of the Department of Correctional Services without the consent of the Crown. The Crown has not given its consent in this case so that if I was minded to grant bail it has to be without the conditions of home detention and supervision.[2]
Having regard to the Crown’s opposition to home detention, it is not permissible for me to impose a condition of home detention and in those circumstances I must impose other bail conditions. [3]
[2] Duke [1999] SASC 431 para 6
[3] Duke [1999] SASC 431 para 16
Counsel for the accused submitted that this approach to subsection 11(3) of the Bail Act was not correct as it failed to take into consideration the consequences of the judge’s interpretation of the word ‘should’. It was submitted that the effect of interpreting ‘should’ to imply that the bail authority was under an obligation not to impose such conditions without the consent of the Crown would invest the Crown with the power to in effect, veto the decision of any bail authority to grant home detention bail. Counsel further submitted that such an interpretation was contrary to the purpose of the subsection, which was inserted to address a resource issue within the Department for Correctional Services related to the supervision of home detention, rather than to invest the Crown with a power of veto. In the course of the second reading speech of the Minister said:
[Section] 11 relates the conditions that may be imposed under a bail agreement. One condition worth noting relates to requiring a person to place himself under the supervision of an officer of the Department of Correctional Services. It is hoped that this will improve the alternatives available to bail authorities, and may become particularly useful if the person is awaiting sentencing. However, the availability of this condition will depend on departmental resources and so will only be possible upon the application, or with the consent, of the Crown.[4]
It is to be accepted that the Department of Correctional Service’s ability to provide the necessary resources for the supervision of bail is a factor that should weigh heavily in the mind of the court when exercising its discretion to grant bail with conditions. Section 11(3) is designed to ensure that home detention conditions are not imposed in circumstances where necessary resources are not available. However, in some circumstances it may be that bail granted with home detention conditions results in a prudent application of resources when compared to the alternative options available. Should the Crown seek to use this section to oppose bail with home detention conditions for reasons other than those related to resources, it would cause unreasonable hardship to those persons presumed innocent. There is no suggestion that the legislature intended section 11(3) to provide the Crown with a general power to prevent the grant of bail with home detention conditions.
[4] Government Gazette 19 February 1985 p. 2618
There appears to be debate as to the precise meaning of the word ‘should’ in section 11(3). In particular, it is said to be unclear as to whether ‘should’ infers that a bail authority is obliged not to impose the particular condition except on the application or with the consent of the Crown, or whether the subsection provides the bail authority with a discretion.[5]
[5] This terminology is preferred by the High Court over the previous mandatory-directory terminology, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490, see also Pearce and Geddes , Statutory Interpretation in Australia, (5^th edn, 2001) p. 272 [11.1]
It has been suggested that, subject to the context in which they appear, affirmative words (such as ‘must’) are prima facie taken to be obligatory in nature.[6] Similarly, permissive words are taken to infer a discretionary meaning.[7] This approach accords with the terms of section 34 of the Acts Interpretation Act 1915 (SA) which provides:
Where, in any Act passed after the first day of January 1873, the word “may” is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word “shall” is used in conferring a power, it implies that the power must be exercised.
[6] Pearce and Geddes p. 274 Referring to Grunwick Processing Laboratories Ltd Advisory, Conciliation and Arbitration Service [1978] AC 655 and DPP (ACT) v Hiep Huu Le (1998) 156 ALR 110
[7] This view was expressed by the High Court in Ward v Williams (1955) 92 CLR 496 at 505:
“… it is necessary to bear steadily in mind that it is the real intention of the legislation that must be ascertained and that in ascertaining it you being with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning.”
The term ‘shall’ is not defined in the dictionary section of the Acts Interpretation Act 1915 (SA). However in Black’s Law Dictionary ‘should’ is cited as a synonym for ‘shall’ which is defined as ‘having a duty to; more broadly, is required to’.[8] Although the word ‘should’ appears to be absent from many legal dictionaries, ‘shall’ is frequently described as denoting obligation.[9] However, in Stroud’s Judicial Dictionary[10] and West’s Legal Thesaurus/Dictionary,[11] the meaning of ‘shall’ is expressed more ambiguously: ‘usually a word of command denoting obligation, although it is sometimes construed as permissive or directory’[12] and ‘implying a mandate, or giving permission or direction.’[13]
[8] Bryan A Garner (ed) Blacks Law Dictionary, (7^th edn, 2000) pg 1379
[9] For example see Bryan A Garner (ed) Blacks Law Dictionary, (7^th edn, 2000) pg 1379 and Butterworth’s Australian Legal Words and Phrases 1900-2002 Volume P-Z pg 615
[10] Greenberg and Millbrook Shroud’s Judicial Dictionary (6^th edn, 2000)
[11] William Statsky, West’s Legal Thesaurus/Dictionary (1985)
[12] William Statsky, West’s Legal Thesaurus/Dictionary (1985) pg 691
[13] Greenberg and Millbrook Shroud’s Judicial Dictionary (6^th edn, 2000) Volume 3 pg 2427
Pearce concludes that there is no clear cut approach to categorising words as either obligatory or discretionary and that courts have on occasions ascertained the intended effect of the legislation when determining their meaning.[14] Pearce observes:
When identifying the factors that will affect whether a power is obligatory or discretionary, it is difficult to go beyond the most general statement that all will depend upon the court’s view of the purpose of the provision in question.[15]
Pearce continues:
If a great inconvenience or injustice will follow from requiring strict compliance with a provision, the courts are disinclined to hold that the provision imposes an obligation and this even though it may be couched in mandatory terms.[16]
[14] Pearce and Geddes, at p. 271
[15] Pearce and Geddes at p. 279
[16] Pearce and Geddes at p. 282 [11.18]. The following examples of such an approach were cited by Pearce, Simpson v Attorney-General [1955] NZLR 271, Clayton v Heffron (1960) 105 CLR 214, Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] and Ex parte Tasker; Re Hannan [1971] 2 NSWLR 804
In Project Blue Sky Inc v Australian Broadcasting Authority[17] the High Court endorsed this approach and emphasised the need to consider the consequences intended to flow from the interpretation of the particular word as having either an obligatory or discretionary meaning. McHugh, Gummow, Kirby & Hayne JJ observed:
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 Angalianos 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. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
(footnotes removed)
[17] (1998) 194 CLR 355 at 381-382
The purpose of the Bail Act was to invest bail authorities with a wide discretion with respect to the grant of bail. The legislature identified in section 10 the relevant factors to be considered. Section 11 provides for conditions of bail. Section 11(3) placed a fetter on the discretion to impose a condition of home detention. The concern of the legislature related to the availability of resources to enable effective supervision[18]. Plainly this would be a relevant factor for the court to consider. However in this case there is no suggested difficulty in the monitoring of home detention bail.
[18] Government Gazette 19 February 1985 2617-2619
Having regard to the scheme of the Act, it is apparent that the legislature did not intend to provide any veto power in the Crown with respect to home detention bail. In these circumstances it is appropriate to read the word ‘should’ as imposing a discretion. A bail authority in the exercise of discretion will have regard to the ability of the State to properly monitor home detention bail when considering the imposition of such a condition.
Conclusion
In this matter the gravity of the alleged offence suppressed material constitute good grounds to refuse bail. The application for review is granted. The magistrate’s order of 4 November 2003 is set aside. Bail is refused.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT

1 The information includes:
Robert Patrick Cooke the 16^th day of September 2003 at Norwood in the said State murdered an unknown male person.
Section 11 of the Criminal Law Consolidation Act, 1935.
This is a major indictable offence.
on the 16^th day of September 2003 at Norwood in the said State drove a motor vehicle in a culpably negligent, or recklessly, or at a speed or in a manner which was dangerous to the public, and by that culpable negligence, recklessness or other conduct, caused the death of an unknown male person.
Section 19(a)(1) of the Criminal Law Consolidation Act, 1935.
This is a major indictable offence.

2 Duke [1999] SASC 431 para 6
3 Duke [1999] SASC 431 para 16
4This terminology is preferred by the High Court over the previous mandatory-directory terminology, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490, see also Pearce, 2001, p. 272 [11.1]
5Pearce at p. 274 Referring to Grunwick Processing Laboratories Ltd Advisory, Conciliation and Arbitration Service [1978] AC 655 and DPP (ACT) v Hiep Huu Le (1998) 156 ALR 110
6This view was expressed by the High Court in Ward v Williams (1955) 92 CLR 496 at 505:
“… it is necessary to bear steadily in mind that it is the real intention of the legislation that must be ascertained and that in ascertaining it you being with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning.”

7 Bryan A Garner (ed) Blacks Law Dictionary, (7^th edn, 2000) pg 1379
8For example see Bryan A Garner (ed) Blacks Law Dictionary, (7^th edn, 2000) pg 1379 and Butterworth’s Australian Legal Words and Phrases 1900-2002 Volume P-Z pg 615

9      Greenberg and Millbrook Shroud’s Judicial Dictionary (6^th edn, 2000)
10     William Statsky, West’s Legal Thesaurus/Dictionary (1985)
11     William Statsky, West’s Legal Thesaurus/Dictionary (1985) pg 691
12Greenberg and Millbrook Shroud’s Judicial Dictionary (6^th edn, 2000) Volume 3 pg 2427

13 Pearce, 2001 at p. 271
14 Pearce, 2001 at p. 279
15Pearce at p. 282 [11.18]. The following examples of such an approach were cited by Pearce, Simpson v Attorney-General [1955] NZLR 271, Clayton v Heffron (1960) 105 CLR 214, Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] and Ex parte Tasker; Re Hannan [1971] 2 NSWLR 804

16 (1998) 194 CLR 355 at 381-382
17 Government Gazette 19 February 1985 2617-2619

Robert Patrick Cooke the 16^th day of September 2003 at Norwood in the said State murdered an unknown male person.
Section 11 of the Criminal Law Consolidation Act, 1935.
This is a major indictable offence.
on the 16^th day of September 2003 at Norwood in the said State drove a motor vehicle in a culpably negligent, or recklessly, or at a speed or in a manner which was dangerous to the public, and by that culpable negligence, recklessness or other conduct, caused the death of an unknown male person.
Section 19(a)(1) of the Criminal Law Consolidation Act, 1935.

This is a major indictable offence.

[2003] SASC 403

22 December 2003