R v Fox - [2017] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v FOX
[2017] SASC 5
Judgment of The Honourable Justice Hinton
3 February 2017
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of an order refusing bail made in the Magistrates Court.
Mr Fox was charged on Information with two counts of contravene term of intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and one count of aggravated threaten to cause harm to another contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). Bail was applied for and refused in the Magistrates Court in December 2016. Mr Fox sought a review of that refusal.
Mr Fox is a prescribed applicant pursuant to s 10A of the Bail Act 1985 (SA). The application was brought on the grounds that special circumstances were established by virtue of the problems with the prosecution case, the availability of home detention and the availability of a substantial cash surety.
Held, dismissing the application:
1. Special circumstances have not been established.
2. Bail is refused.
Bail Act 1985 (SA) s 10A; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31, referred to.
R v Lombardi (2013) 115 SASR 577; R v Buhlmann [2010] SASC 123, considered.

R v FOX
[2017] SASC 5
Criminal
HINTON J.

This is an application by Brett Jarred Fox made pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) for the review of the order of a Magistrate made on 8 December 2016 refusing him bail. That order was made on an Information charging Mr Fox with two counts of contravening a term of an intervention order, contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), and one count of aggravated threaten to cause harm, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
On the hearing of this application I have had regard to the affidavits sworn by the following people on the dates identified and to the exhibits referred to therein:
·Peter Alexander Hill, 15 December 2016.
·Kimberly Riggs, 20 December 2016.
I have also had the benefit of two Home Detention Enquiry Reports dated 21 December 2016 and 18 January 2017, in addition to declarations from Mr Fox’s mother and brother, both dated 26 January 2017.
I would refuse the application. In my view, Mr Fox has failed to establish that special circumstances exist.
The offences to which the application relates and the circumstances of its commission
On 14 September 2016 Mr Fox was charged with using a dangerous article, contrary to s 21C(2)(b) of the Summary Offences Act 1953 (SA), aggravated assault with a weapon against his own child or spouse, contrary to s 20(3) CLCA, and committing an assault aggravated by the use of an offensive weapon, contrary to s 20(3) CLCA.[1]
[1] Exhibit KR4.
This offending occurred against the background of…

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 Fox

Details

AGLC: R v Fox [2017] SASC 5
Case: [2017] SASC 5
Decision Date: 3 February 2017

CaseChat Overview and Summary

The matter of R v Fox concerned an application by the respondent, Fox, for the revocation of his bail. Fox had been in custody since 7 December 2016 and was facing charges that included offences under s 31(2) of the relevant statute. The court had to determine whether special circumstances existed to justify the revocation of bail. The primary issue was whether the respondent had demonstrated exceptional hardship or other special circumstances warranting the revocation of his bail. The court had to assess the evidence presented, including the text message sent from Fox's mother's phone on 3 December 2016, which was suggested to have been sent by Fox while in custody.

The court examined the circumstances surrounding the text message, which was part of the prosecution's case against Fox. The evidence suggested that the message could have been sent by Fox using his mother's phone, as she was hospitalised on the relevant date. Fox's mother denied sending the message, and his brother's investigation into the phone revealed no messages to or from the recipient. This led to the inference that the messages had been deleted, making the prosecution's case circumstantial. The court considered whether these circumstances constituted special circumstances that would warrant the revocation of Fox's bail.

The court concluded that no special circumstances had been established. Fox had not demonstrated any exceptional hardship resulting from his continued incarceration, nor had he shown that the allegations against him were outside the ordinary scope of the offences under consideration. The court noted that Fox had been in custody for two months and that bail conditions could be imposed to significantly reduce the risk to the alleged victims. The court found that the allegations did not fall outside the ordinary examples of offending that Parliament had intended to be subject to the presumption against bail. Consequently, the application for the revocation of Fox's bail was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HINTON J

None of the sorts of special circumstances that Sulan J referred to in R v Buhlmann[9] were agitated in this case. Mr Fox has not pointed to any exceptional hardship that will result from his continued incarceration. [9] [2010] SASC 123. Conclusion In my view special circumstances have not been established. The application is refused.

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

Subsequently the prosecution forwarded two additional declarations to my chambers. The first was from Mr Fox’s mother and is dated 26 January 2017. She states that she went to hospital on the evening of 3 December 2016. She denies sending the text message to ML to which I have referred. The second is from Mr Fox’s brother and is dated 26 January 2017. He suggests that the text message sent to ML on 3 December 2016 could not have been sent by his mother as she was in an ambulance making her way to Noarlunga Hospital at the relevant time. On 4 December 2016 he had reason to attend his mother’s home and check her mobile telephone, the implication being that her mobile telephone was not with her at the hospital. Mr Fox, the applicant, was living with his mother at that time. It may be inferred then that he had access to his mother’s mobile telephone. His brother’s check of their mother’s mobile telephone revealed no messages to or from ML. That was considered strange as Mr Fox’s mother and ML were normally in regular communication. The inference invited is that the messages to and from ML had been deleted. Thus the prosecution case as to Mr Fox’s use of his mother’s mobile telephone to send the text message of 3 December 2016 is circumstantial. Consideration Mr Fox has now been in custody since 7 December 2016. It cannot be said that he has, as yet, served a period of time in custody equal to or greater than any sentence he may receive or is approaching doing so. I do not think the allegations made against Mr Fox fall outside what may be considered an ordinary example of offending caught by s 31(2). He is then the very sort of offender to whom Parliament contemplated the ordinary approach that it has prescribed, namely, the presumption against bail save where special circumstances are established, would apply. It follows then that if there are special circumstances they must be located in matters extraneous to the allegations. It also follows that it cannot be said, focusing upon the allegations in isolation, that Mr Fox is not a prescribed applicant to whom it would be unjust, in the sense referred to in R v Lombardi, to apply the ordinary approach.[8][8] (2013) 115 SASR 577. In this case bail conditions can be fashioned which significantly reduce the risk to ML and DL – home detention with electronic monitoring, coupled with the identification of an area of exclusion (e.g. south of Darlington), the provision of a guarantor, the payment into court of a cash surety, an obligation to refrain from the use of alcohol and illicit drugs, random testing for alcohol and drug use, and no contact in any way howsoever with ML or DL. This could be done against the background of the sobering effect of the two months in custody that Mr Fox has spent to date. Putting to one side the question of whether, in the light of his antecedents, Mr Fox’s undertaking to comply with such conditions can be relied upon, has Mr Fox established special circumstances?