R v Hayes

[2018] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v HAYES

[2018] SASC 114

Reasons for Ruling of The Honourable Justice Kelly

9 August 2018

CRIMINAL LAW - PROCEDURE - BAIL - JURISDICTION OF SUPREME COURT

Application by the DPP to review an order of a decision of a Magistrate granting bail to the respondent. The respondent is an aboriginal man charged with a number of offences including an offence of intentionally causing harm aggravated by the fact that the alleged victim is his former partner and an offence of contravening an intervention order. These charged offences make him a prescribed applicant within the meaning of s10A(2)(ba) Bail Act 1985. As a prescribed applicant, the respondent must establish the existence of special circumstances justifying his release on bail pursuant to s10A(1) Bail Act 1985.

Held: Special circumstances justifying release on bail demonstrated including that the alleged victim of the charged offences no longer resides in the jurisdiction, the likely trial date will not be for some time and a recent report that Aboriginal and Torres Strait Islander people are highly over-represented in the remand population. 

Bail Act 1985 Sections 14, 10 and 10A, referred to.
Lombardi v The Queen [2013] SASC 61[22], considered.

R v HAYES
[2018] SASC 114

Criminal:  Application for Bail

KELLY J:

1. The Director of Public Prosecutions brings this application under Section 14 of the Bail Act 1985 (SA) (“the Act”) for the review of a decision of a bail authority on 3 July 2018 granting bail to the respondent, Peter Hayes.

2. The respondent is a 37 year old Aboriginal man who was born in Alice Springs.  His mother is from the Santa Theresa Mission and his father from the Stirling Community.  He has lived in South Australia for a number of years.

3. The respondent has been in custody since the date of his arrest on 26 June 2018 when he was arrested on a number of charges, including an offence of intentionally causing harm aggravated by the fact that the alleged victim is his former partner and an offence of contravening an intervention order made on 21 July 2016 in the Adelaide Magistrates Court. 

4. Each of the offences for which the respondent is currently charged were allegedly committed on 15 May 2018. 

5. The circumstances in which the allegations are made are that on 15 May 2018 at the residence of his former partner the respondent during an access visit to the son of he and his former partner assaulted his former partner before leaving the residence.  The circumstances of aggravation are that the alleged victim is the ex-partner and further that the respondent used a weapon, namely a coffee mug, to inflict injuries to the head and face of the victim. 

6. The allegations, if proved, will amount to a breach of a suspended sentence imposed in the Adelaide Magistrates Court on 29 August 2017 for an offence of assault, which was committed on 14 November 2015. The allegations, if proved, will also amount to a breach of an intervention order made in the Adelaide Magistrates Court on 23 November 2016. The protected person is the ex-partner of the respondent. By virtue of that fact pursuant to s10A(2)(ba) of the Act the respondent is a prescribed applicant.

7. The Director of Public Prosecutions upon the application for review contends that bail should not be granted due to the risk of re-offending and in any event a simple bail should not have been granted as it provides insufficient protection to the protected person, namely the respondent’s ex-partner. The fact that the respondent is a prescribed applicant within the meaning of s.10A of the Act has the consequence that bail may not be granted unless and until the respondent establishes special circumstances.

8. I was informed that in the Magistrates Court the Magistrate appears to have accepted the fact that the respondent claims to have an alibi for the offending amounts to a special circumstance.  If that was in fact the basis for the finding of special circumstances then I would respectfully disagree that that circumstance could amount to special circumstances.  However, there are other considerations in respect of this respondent which in combination I consider may amount to special circumstances.

9. The respondent has a criminal history for offences of violence and dishonesty.  It is a history which is depressingly familiar for a man of his background.

10. I bear in mind that the recent Australian Law Reform Commission Report Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander People[1] has reported that Aboriginal and Torres Strait Islander people have continued to be over-represented in the remand population by a factor of 11.  In the same report, the opening chapter, which deals with bail applications, records as follows:

    [1]        Australian Law Reform Commission Report No. 133 (2017).

    The impact on Aboriginal and Torres Strait Islander people

    5.19 Stakeholders to this Inquiry raised concerns about the effect that remand rates had on Aboriginal and Torres Strait Islander incarceration rates. For example, the Australian Lawyers for Human Rights (ALHR) observed that ‘bail and remand processes significantly contribute to the unnecessary imprisonment of Aboriginal and Torres Strait Islander people’, while the NSW Bar Association considered bail law reform to be one of the most ‘important areas requiring attention in order to reduce the incarceration rates of Aboriginal and Torres Strait Islander people’.

    5.20 There has been a general upsurge in remand populations nationwide, and this has been especially pronounced for the Aboriginal and Torres Strait Islander prisoner population.

    5.21 In 2016, the national Aboriginal and Torres Strait Islander remand prisoner population accounted for 30% (3,221) of Aboriginal and Torres Strait Islander prisoners, which amounted to 27% of all prisoners held on remand. By June 2017, 33% (3735) of the national Aboriginal and Torres Strait Islander prisoner population were in prison held on remand.

    5.22 Aboriginal and Torres Strait Islander peoples have continued to be overrepresented on remand by a factor of over 11 compared to non-to appear to answer bail.

    5.23 In 2016, Aboriginal and Torres Strait Islander people were most likely to be held on remand when accused of offences categorised as ‘acts intended to cause injury’ (42% of the Aboriginal and Torres Strait Islander remand population); ‘unlawful entry with intent’ (13%); and sexual assault (7%). The category of ‘acts intended to cause injury’ is broadly defined and can include low-level instances of offending. For example, 33% of Aboriginal and Torres Strait Islander peoples held on remand for ‘acts intended to cause injury’ were charged with a serious assault not resulting in injury and 12% for common assault. This is not to say that all Aboriginal and Torres Strait Islander people held on remand for ‘acts intended to cause injury’ were held for low-level offending: 54% in this category were held on remand for charges of serious assault resulting in injury.

    (footnotes omitted)

11. In Lombardi v The Queen[2] Kourakis CJ explained the meaning of special circumstances within s10A of the Act. 

    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.[3]

    [2]        2013 SASC 61.

    [3]        Lombardi v The Queen [2013] SASC 61 [22].

12. I do not understand s 10A(1) of the Act as providing a prescribed applicant with a right to bail in the event that special circumstances are established. Ordinarily, it may be expected that if special circumstances are established, then a grant of bail may follow but upon special circumstances being established, in my view it remains open to the bail authority to refuse bail if nonetheless, having regard in particular to the gravity of the offending, the likelihood that the prescribed applicant will re-offend, the likelihood that the prescribed applicant will interfere with a witness or evidence and the likelihood that he or she will abscond, the bail authority considers that bail should not be granted.

13. Returning now to the circumstances of the current matter.  The Director’s application for review first came before me on Thursday, 5 July 2018 after a Magistrate released the respondent on simple bail two days earlier.

14. The respondent has been in custody since 26 June 2018.  He has, as I remarked earlier, a depressingly familiar criminal history for a person of his background.  It is common ground that he has a history of alcohol misuse and abuse and has reported at least one instance of intent to commit suicide. 

15. On the first date the matter came before me on 5 July 2018 the Director opposed all forms of bail, basically due to safety concerns for the protected person (the former partner) and due to the respondent’s history of non-compliance with various court orders. 

16. In the meantime however, the alleged victim has apparently returned to the Northern Territory and no longer resides in this jurisdiction.  That is one major concern of the Director that has therefore receded. 

17. Two further court ordered reports to assess the suitability of various addresses were ordered.  Once again, the results of these reports is also depressingly familiar.  One residence was observed to contain eight occupants, all highly intoxicated.  At least two of the residents were so intoxicated they could barely stand upright and were not able to speak to the Correctional Services Officers who attended to assess the residence.  Another residence was found to be unoccupied by anyone who knew the respondent.  At still another residence no calls made by the departmental officers were ever returned.  Eventually, however, family members were located and their residence has been assessed as suitable for the respondent to live until such time as the criminal matters can be sorted out. In this respect the Director informed me today that the complainant having returned to the Northern Territory is no longer wishing to pursue the matter.  Nevertheless, the allegations of offending which involve her are sufficiently serious for the Director to continue to press on and therefore the respondent’s outstanding matters will not be resolved any time soon.

18. All of these circumstances lead me to the conclusion that there are in the case of this respondent special circumstances, notwithstanding that he is a prescribed applicant.  Not only that, but the overall circumstances, including the likely trial date which will not be for some time, lead me to the conclusion that it is appropriate to grant the respondent bail on conditions of strict home detention.  In the circumstances, the Director did not oppose that order and accordingly the respondent was released on conditions of home detention bail, including a condition that he not assault, harass, threaten or intimidate the protected person during the term of the bail agreement.