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.

1. 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).

2. 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.

3. 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.

4. 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

5. 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.

6. This offending occurred against the background of the breakdown of Mr Fox’s relationship with ML. That relationship had lasted ten years. Mr Fox and ML separated in around September 2015. They have three young sons in relation to whom they share custody.

7. At the time of the 14 September 2016 offending ML had commenced a new relationship with DL. The offending occurred at ML’s home at Goolwa Beach. The apprehension report relating to the offending of 14 September 2016 states:

   The victim [ML] started seeing the witness [DL] 2 months ago. Since then the accused has become problematic to the victim. The accused began texting the victim wanting to fight the witness. 12/9/16 the accused during a phone called (sic) told the victim ‘you’re a useless cunt, you’ve ruined my life’. The witness got on the phone, telling the accused not to talk to the witness [victim?] like this. At 8.20p.m. 14/9/16 the accused text the victim saying, ‘see you real soon.’  About 15 minutes later he was seen by the witness to drive past the house then attended. The witness was in the front yard and the victim went outside. The accused produced a torch Taser in his left hand, turned it on so it was arching, the witness could see the current arching blue and heard the sound. He has the stepped towards the victim, she stepped out the way to avoid be Tasered then retreated to the front door. The accused has then stepped at the witness with the active Taser; the witness has picked up a shovel and struck the accused twice. The accused has then run inside, locking the victim and witness out of her house. The witness ran next door to call the Police. The accused came outside and the victim went inside, locking the door and hiding. The accused was banging on the doors and windows. She could hear the witness yell at the accused ‘drop the Taser’ then heard banging. She also heard the witness say ‘leave her alone’.

   The victim came inside and the accused came to the back door covered in blood, he said, ‘look what you’ve fucking done.’

8. In view of his conduct on 14 September 2016 an interim intervention order was made against Mr Fox on 15 September 2016. That order contained the following conditions:

   1.   The Defendant must not assault, threaten, harass or intimidate the protected person(s).

   2.   The Defendant must not follow or keep the protected person(s) under surveillance.

   3.   The Defendant must not be within 50 metres of the protected person(s).

   4. The Defendant must not contact or communicate with the protected person(s) either directly or, indirectly in any way (including phone, letter, cards, SMS messages, e-mail, facsimile, Facebook, Skype, etc.) except with respect to contact and access to children pursuant to any order or direction of the Family Law Court or other Courts exercising jurisdiction under the Family Law Act.

   5.   The Defendant must not enter or remain within 50 metres of the boundary of the place of residence or place of employment or any other place at which the protected person(s) is staying, residing or is employed.

   6.   The Defendant must not damage or interfere with the premises where the protected person(s) is staying, residing or is employed.

   7.   The Defendant must not publish on the internet, by E-mail, SMS or other electronic means any material about the protected person(s).

   8.   The Defendant must not cause, allow or encourage another person to do anything forbidden by this order.

   9.   The Defendant is disqualified from holding or obtaining a licence or permit authorising the possession of a firearm and any such licence or permit held by the defendant is suspended; and is prohibited from being in possession of a firearm, including in the course of employment; and must surrender to the Registrar of Firearms any firearm, licence or permit in their possession.

9. The order identified ML and DL as the protected persons.

10. On 6 December 2016 Mr Fox pleaded guilty in the Magistrates Court to the 14 September 2016 offending. He was sentenced to imprisonment for two months. That sentence was suspended upon him entering into a bond in the amount of $500 to be of good behaviour for 12 months. At that same time the interim intervention order was confirmed in the same terms.

11. The following day, 7 December 2016, Mr Fox was arrested and charged with the offences set out in opening this judgment and in relation to which he now seeks bail. As for these offences it is alleged that on Saturday 3 December 2016 at 10.55 pm Mr Fox contravened the interim intervention order dated 15 September 2016 by making indirect contact with ML via SMS using a phone belonging to his mother. The content of the text message read:

    What you’ve do e to your kids and Brett when are we getting our boys back. Brett is going to loose everything at lease let him have the kids till then, he will stop all the bullshit but you need to trust him and you know he’s a good dad xxx

12. In making contact with ML Mr Fox is alleged to have acted in breach of clause 4 of the interim intervention order. This offence does not carry with it the consequence that he is a prescribed applicant for the purposes of the Act. That is because this offence was not committed in circumstances that involved physical violence or a threat of physical violence.

13. It is further alleged that four days later, on 7 December 2016, Mr Fox spoke to his mother over the telephone. During that conversation it is alleged he said, “I will either pay someone or do it myself to kill [ML, DL] and the kids” and “I will drive myself into a tree”.[2] Later that day, ML was contacted by Mr Fox’s mother and was told of the threats that Mr Fox had made. It is on the strength of this conduct that Mr Fox has been charged with a second count of contravening an intervention order and the additional offence of threatening to cause harm. The second count of contravening an intervention order alleges, in effect, the breach of clause one of the confirmed intervention order. That clause reads:

    1.   The Defendant must not assault, threaten, harass or intimidate the protected person(s).

    [2]    Apprehension Report, Exhibit KR1.

14. After being arrested on 7 December 2016 Mr Fox was refused police bail. Subsequently an application for bail made to a Magistrate failed. The reasons given were the absence of special circumstances, the need for the protection of the complainant and the seriousness of the allegations.

    Presumption of bail reversed

15. As indicated Mr Fox is a prescribed applicant within the meaning of s 10A(2)(ba) of the Act on account of the fact that he is charged with having committed an offence against s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and, allegedly, in committing that offence has threatened to use violence. That has the consequence of enlivening the command contained in s 10A(1), namely, that Mr Fox is not to be granted bail unless he establishes the existence of special circumstances justifying his release on bail.

16. Implicitly Parliament considers the offence created by s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), when committed in circumstances involving the use or threat of physical violence, of such gravity that in the event that a person is charged with committing such offence in those circumstances, their liberty must, without the allegation being proved, be immediately denied and their incarceration continued until the charge is withdrawn, determined or special circumstances established. It must be borne in mind that the offender will have allegedly perpetrated or threatened physical violence in the course of acting contrary to a command contained in an order which is intended to protect an identified individual from abuse. Thus Parliament’s approach reflects the response that it considers must be made, the ordinary response, to an alleged act of defiance to a protective order allegedly perpetrated in circumstances involving violence. It is a response that only tolerates release into the community on bail if special circumstances can be established. Such response pays no heed to whether the accused is a flight risk. Its implementation will also, ordinarily, result in the loss of employment, the fracturing of relationships, the discontinuation of education, financial hardship and hardship to dependents.

17. One further point should be made here. Parliament’s response may be accepted as in no small part reflecting the growing awareness in the community of the prevalence of domestic violence. For intervention orders to fulfil their protective purpose, strict compliance must be insisted upon. This approach informs the inclusion of the breach of an intervention order in circumstances of violence within s 10A and explains why specific reference is made to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) in s 10(1)(b)(iv).

18. The Act does not define ‘special circumstances’. In R v Lombardi,[3] Kourakis CJ dealt with this issue comprehensively. He said:[4]

    It can be accepted that the term “special circumstances” cannot be comprehensively or exhaustively defined. The particular circumstances which might qualify as special circumstances may vary over a great range. In my view, that is the point made by Mitchell J in Saywell. However, the term “special circumstances” will ultimately take its meaning and content from the context of the provision in which it appears. It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision.

    In R v Barnett, I surveyed the use of the expressions “special reasons” and “special circumstances” in South Australian statutory provisions.  The survey showed that special reasons or circumstances are those reasons or circumstances that were beyond the contemplation of Parliament.

    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.

    (citations omitted).

    [3] (2013) 115 SASR 577.

    [4]    R v Lombardi (2013) 115 SASR 577 at [22]-[24].

19. In this case the relevant risk contemplated is of further defiance of an order and violence threatened or perpetrated in doing so, hence incapacitation in the form of the refusal of bail is appropriate to prevent the offender further offending and to protect the victim. Thus, special circumstances will only exist where the applicant can demonstrate that he or she does not pose the risk which Parliament had in contemplation in reversing the presumption and in relation to whom the denial of bail would result in consequences beyond the contemplation of Parliament.

20. R v Buhlmann provides a useful example of what may amount to special circumstances.[5] In that case Sulan J held:[6]

    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.

    [5] [2010] SASC 123.

    [6]    R v Buhlmann [2010] SASC 123 at [24].

21. Of this passage the Chief Justice in R v Lombardi observed:[7]

    It will be observed that the circumstances in combination showed that there was very little risk to the alleged victim of the offending and that a refusal of bail would result in a penalty which would far have exceeded the penalty which would be imposed if the applicant in that case was convicted. In my respectful opinion, Sulan J correctly identified in the passage cited above the nature of the special circumstances which Parliament had in mind in enacting s 10A of the Bail Act.

    [7] (2013) 115 SASR 577 at [21].

22. Special circumstances are circumstances not necessarily contemplated as an incident of Parliament’s presumption against bail for a prescribed applicant.

    Mr Fox’s antecedents

23. Mr Fox first came into contact with the criminal justice system in 2000. He has numerous convictions for property and driving related offences. He has six convictions for driving whilst disqualified, six convictions for failing to comply with a bail agreement and on three occasions has been convicted of contravening a restraining order. He also has six convictions for offences of violence and two convictions for breach of bond.

24. Between 2000 and 2011 he had been before the courts every year, and often on more than one occasion. His antecedents reflect a disregard for authority, a want of respect for the property of others, a preparedness to resort to violence, and a frequent disregard for regulations that bind all members of the community and facilitate the peaceful functioning of the community.

25. That said, for five years, between late 2011 and late 2016 he managed to stay out of trouble. I suspect that this coincided with his increased responsibilities as a father of three boys currently aged eight, six and three. I also note that for much of this period he has been employed in a full time capacity by South Coast Cabinets and Joinery. His employer has provided a letter to the Court. Mr Fox is described as a “great employee” whom his employer is happy to have continue work for him if he is granted home detention bail. However, his employer’s business requirements do not permit him to keep Mr Fox’s job open if he is refused bail.

26. Mr Fox’s involvement with the criminal justice system once more appears to have been triggered by the breakdown in his relationship with ML, the mother of his sons. I note the suggestion in the papers that it also coincides with illicit drug use although the suggestion is that that is not necessarily a new thing.

    Submissions

27. The application was called on before me on 22 December 2016. It was opposed by the prosecution.

28. Counsel for the applicant submitted that the following combination of circumstances amounted to special circumstances:

    … first of all, the problems that the prosecution have with their case. The availability of home detention. The availability of a substantial cash surety. Full-time employment or not, if your Honour thinks that that is inappropriate, together with an appropriate guarantor ...

29. The asserted problems with the prosecution case revolved around there being nothing as yet disclosed to Mr Fox to indicate that there was any evidence that he had used his mother’s mobile telephone to send the text message subject of the 3 December 2016 offence. In the declaration that his mother had provided no mention was made of the text message. Further, as to the 7 December offending, it was dependent upon the recollection of Mr Fox’s mother as to the content of the relevant telephone call. In this regard I was advised that Mr Fox’s mother was hospitalised at the time with mental health issues, a fact relied upon as indicative of a lack of reliability and warranting, it was said, a special direction come trial. Lastly, he added that bearing in mind s 21 of the Evidence Act 1929 (SA), it may well transpire that Mr Fox’s mother ultimately seeks to be excused from giving evidence against her son. They continue to enjoy a good relationship.

30. I indicated that I was not satisfied that special circumstances existed. I also indicated that one of the planks in the combination of reasons said to amount to special reasons, home detention, could not be accepted, considering that the premises under consideration were within close proximity of ML’s home. In the wake of that indication an adjournment was sought in order that Mr Fox could attempt to find alternate accommodation.

1. The application resumed on 20 January 2017. A further home detention report had been obtained regarding premises in the metropolitan area, a significant distance from where ML currently lives.

2. The prosecution remained opposed to the application. In the interim, however, the prosecution had done nothing to address the hole in their documented case identified by counsel for Mr Fox. That was surprising, seeing as the strength of the prosecution case was being relied upon as a factor which, with others, constituted special circumstances.

3. On 20 January 2017 counsel for Mr Fox identified the special circumstances as:

   I would say that home detention away from potential contact geographically from the protected person together with cash surety, the availability of guarantors, the absolute restriction on liberty in terms of not working … the issues arising from the strength of the Crown case, in the particular circumstances of this case issues relating to s.21 of the Evidence Act that the Crown witness may avail herself of but also given the parlous state of her mental health whether or not there may be some type of Bromley situation to be investigation further on down the track.

4. Mr Fox’s mother remains in hospital for mental health issues. In the affidavit from Peter Hill to which I have referred, he deposed that on Friday 6 December 2016 Mr Fox received a suicidal message from his mother. Mr Fox was at the home of a friend at the time. When he received the message he immediately returned to the home of his mother. Mr Fox discovered, in proximity of his mother, four empty bottles of vodka and various empty packs of tablets. Mr Fox immediately called 000 for an ambulance. The ambulance transported his mother to Noarlunga Hospital from which she was discharged two days later. She was readmitted to Noarlunga Hospital on 8 December 2016. I know nothing of the nature or severity of her condition. I was told that she remains in hospital. As I have mentioned, Mr Fox enjoys a good relationship with his mother. His father died seven years ago.

5. I reserved my decision.

6. 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

7. 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.

8. 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.

9. 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?

10. I do not think that the fashioning of bail conditions that address Parliament’s concern in creating the presumption against bail in s 10A(1) of the Act amounts to special circumstances. Special circumstances are those not within the implicit contemplation of Parliament’s response in the sense explained above to prescribed applicants. Addressing the risk of offending and conditions that offer protection to the victim will not ordinarily amount to special circumstances. Were it otherwise it would be a matter of an applicant justifying their release on bail rather than having to establish the more onerous special circumstances. Put slightly differently, the command in s 10A(1) is not that an accused is denied bail until the risk that he or she will re-offend is sufficiently ameliorated, the victim sufficiently protected, and his or her attendance at court in future ensured.

11. I have given earnest consideration to the strength of the prosecution case. Some of my concerns have been allayed by the most recent declarations. On a review of bail such as this it will rarely be appropriate for this Court to embark upon a close analysis of the prosecution case as would occur upon the answer the charge date in the Magistrates Court. In reversing the presumption of bail Parliament must be taken to know that the context in which the Act operates includes that matters will make their way through the criminal justice system in the normal way and, in particular, in accordance with the procedure set out in the Summary Procedure Act 1921 (SA). It follows that to succeed on an application such as this, taken at this stage in proceedings, based upon an attack on the strength of the prosecution case as establishing special circumstances, the attack must rise to the level, in effect, of establishing that the prosecution case is irretrievably doomed to fail. That is not this case.

12. 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

13. In my view special circumstances have not been established. The application is refused.