R v Doyle - [2014] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v DOYLE
[2014] SASC 199
Reasons for Decision of The Honourable Justice Sulan
18 December 2014
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application by the Director of Public Prosecutions (SA) to review a decision of a Magistrate granting the respondent bail. Applicant charged with blackmail under s 172 of the Criminal Law Consolidation Act 1935 (SA). Applicant is a prescribed applicant under s 10A of the Bail Act 1985 (SA) which provides a presumption against bail. The applicant demonstrated special circumstances to justify release on bail. Application refused.
Bail Act 1935 (SA) s 10A; Criminal Law Consolidation Act 1935 (SA) s 172, referred to.
R v Lombardi ]2013] SASC 61, applied.
R v Buhlmann [2010] SASC 123, considered.

R v DOYLE
[2014] SASC 199
Criminal: Application for Review of Bail

SULAN J: This is an application by the Director of Public Prosecutions to review a Magistrate’s decision granting bail to the respondent, John William Doyle, on 16 October 2014. I dismissed the application on 17 October 2014 and ordered that the respondent be released on bail under the existing agreement. I indicated that I would provide reasons. These are those reasons.
Background
On 6 September 2014, the respondent allegedly committed blackmail. The complainant was previously in a relationship with the respondent’s current partner. It is alleged that the respondent telephoned the complainant and said ‘You’ve got until 12 o’clock tonight to give me $5000 or I’m going to kill your son and you’re going to have to explain to your wife why he’s dead.’ The complainant reported that threat to police on the same day. At the time of this alleged offence, the applicant was on bail for unrelated offences. Additionally, his partner was a protected person under an intervention order.
On 8 September 2014, the respondent allegedly assaulted his partner. On 10 September 2014, he was taken into custody on the assault charge in addition to two counts of failing to comply with a bail agreement and two counts of contravening a term of an intervention order. The respondent was refused police bail. An application for bail before a Magistrate was refused on 11 September 2014. He was granted bail by a different Magistrate on 17 September 2014 in relation to these charges.
On 18 September 2014, the respondent allegedly assaulted the first complainant. It is alleged that at Sefton Plaza the respondent kicked the complainant to the front of his left upper leg while the complainant was speaking on his phone. The respondent then said ‘you fucking faggot’ and walked away. This assault and the blackmail charge were the subject of the application.
On 16 October 2014, the respondent was arrested in relation to the blackmail and assault charges. He was refused police bail. Subsequently, on that day the respondent was granted bail by a Magistrate. The terms of the bail agreement require the respondent to comply with the following conditions:
· Not to leave the State for any reason without lawful permission under the Bail Act, 1985.
·    To forfeit to the Crown the sum of $1,000.00 if he fails to comply with a term or condition of this Bail Agreement.
·    To reside at 58 Knightsbridge Avenue, VALLEY VIEW SA 5093.
·    To report to the police at HOLDEN HILL police station between the hours of 9:00 am and 9:00 pm each Tuesday commencing on 21/10/2014.
·    Not to approach or communicate, either directly or indirectly, with Alexander Maclachlan-Lester.
·    Not to attend within 50 metres of any place at which Alexander Maclachlan-Lester may reside.
·    Not to approach Alexander Maclachlan-Lester in any public place.
·    Not to possess a firearm, ammunition or any part of a firearm.
·    To submit to tests (including testing without notice) for gunshot residue as directed by SA Police.
The respondent was remanded in custody pending the outcome of the application for review. He was further charged on a separate complaint with breach of bail arising out of the assault on 18 September 2014, driving while disqualified and carrying an offensive weapon which were allegedly committed on 16 October 2014.
The application
The prosecution contends that the respondent is a prescribed applicant under s10A(2) of the Bail Act 1985 (SA) (“the Bail Act”). There is a presumption against bail with respect to prescribed applicants unless the prescribed applicant demonstrates special circumstances.
Section 10A of the Bail 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.
(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 if 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).
Counsel for the prosecution submitted that the respondent’s history of offending, including numerous breaches of bail, required that bail be refused. The respondent is a prescribed applicant, as he is charged with an offence contrary to s 172 of the Criminal Law Consolidation Act 1935 (SA). It is correctly contended that the Magistrate was in error in failing to consider whether special circumstances existed to rebut the presumption against bail.
Counsel for the respondent contended that special circumstances existed to rebut the presumption against bail. Counsel submitted that the allegations of blackmail and assault against the first complainant may be motivated by animosity as a result of the complainant’s past relationship with the respondent’s partner. The threat was not followed through and the subsequent assault occurred when the respondent saw the complainant, by chance, at the Sefton Plaza shopping centre. Counsel further submitted that these circumstances, taken together with the period of time without committing further relevant offences prior to the respondent’s arrest on 16 October 2014, demonstrated that he is not at serious risk of reoffending.
The review
The review of a Magistrate’s decision to grant bail is heard de novo. The information alleges that the respondent:
1. On the 6^th day of September 2014 at WAYVILLE in the said State menaced Alexander MACLACHLAN-LESTER by an unwarranted threat to harm him intending to get the said victim to submit to a demand that he wanted money otherwise he would kill son.
Section 172(1) of the Criminal Law Consolidation Act 1935.
This is a major indictable offence.
2. On the 18^th day of September 2014 at SEFTON PARK in the said State assaulted Alexander MACLACHLAN-LESTER.
Section 20(3) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a summary offence.
The usual presumption in favour of release on bail, as provided in s10 of the Bail Act does not apply in this instance.
The Magistrate does not appear to have considered s 10A when deciding to release the respondent on bail. There is a presumption against his release on bail which can only be rebutted by establishing special circumstances justifying his release.
Special circumstances
In R v Buhlmann,[1] I considered the meaning of “special circumstances”. I observed that there are no words limiting the scope of special circumstances in s 10A of the Bail Act. The words should be given their natural and ordinary meaning.
[1] [2010] SASC 123 at [23].
A bail authority has a wide and flexible discretion in determining what constitutes special circumstances.
In R v Lombardi,[2] Kourakis CJ stated that the term “special circumstances” cannot be comprehensively or exhaustively defined and is aimed at circumstances “which take the particular case outside of the contemplated scope of the statutory provision.”[3] Kourakis CJ said:[4]
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.
[2] [2013] SASC 61.
[3] [2013] SASC 61 at [22].
[4] [2013] SASC 61 at [24].
I accept that the respondent’s threat to kill the complainant’s son if he did not pay $5000 is a serious allegation. On the other hand, the time within which payment was demanded passed and there was no further follow up from the threat. After the threat was made, the only interaction between the respondent and the complainant, until his arrest some six weeks later, was the allegation of an opportunistic assault at Sefton Plaza, which occurred 12 days after the blackmail incident. The police officer appeared not to have regarded the threat as serious, because the respondent was not arrested and charged until six weeks had elapsed. It is instructive to consider the period of time the respondent spent in the community until this application. I note that the respondent was in custody in relation to allegedly assaulting his partner from 11 to 17 September, after which he was granted bail by a Magistrate and released from custody. It was submitted that the respondent’s partner, who was the victim of the alleged assaults, applied to revoke the intervention order and does not support the prosecution of the respondent for these charges.
The respondent is 27 years of age. In 2007, the respondent was convicted of breaching an intervention order and breaching bail, for which he was sentenced to four months’ imprisonment, which was suspended.
In 2009, the respondent received a nine-month suspended sentence for serious criminal trespass and other offences. In 2011, he entered into a good behaviour bond after being convicted for threatening to cause harm and property damage.
It appears that the respondent has had difficulty in controlling his temper. He has taken steps to manage his anger by commencing a six-month abuse intervention program which is not available to him in prison. The respondent is currently residing with his parents. He is currently employed on a part-time basis cleaning yards.
A bail agreement is a promise to appear in court at the next hearing, subject to conditions. The bail authority must be satisfied that the risk to the community and to the administration of the criminal justice system is not of such a magnitude as to warrant the removal of an individual’s liberty who has only been accused of committing a criminal offence. Despite the higher level of risk that Parliament has attached to persons charged with certain prescribed offences, I was satisfied that the respondent has demonstrated special circumstances to justify his release.
The circumstances of the alleged offending, along with the respondent’s personal circumstances, place the respondent beyond the contemplated scope of the statutory provision. In particular, I have had regard to the fact that the blackmail allegations are of a relatively minor nature for that offence. The threat and demand were allegedly made, but there was no follow up. I have had regard to the fact that the police did not regard the alleged offences as sufficiently serious to follow them up immediately. The respondent was arrested when he committed other relatively minor offences.
Conclusion
The Magistrate’s decision releasing the respondent on bail failed to consider the relevant provision in the Bail Act. However, I was satisfied that there were special circumstances to justify the release of the respondent on bail. I dismissed the application and ordered that the respondent continue on bail, pursuant to the existing agreement.