R v Hogan - [2014] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HOGAN
[2014] SASC 117
Judgment of The Honourable Justice Kelly
22 August 2014
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application by the Director of Public Prosecutions to review an order of a Magistrate granting the respondent bail - respondent charged with firearm and drug related offences.
Where respondent's application for bail governed by s 10A of the Bail Act 1985 (SA) - whether the respondent established the existence of special circumstances justifying his release on bail.
Held (allowing the application for review): the respondent failed to establish the existence of special circumstances - bail granted in the Magistrates Court set aside.
Bail Act 1985 (SA) s 10A, referred to.
R v Lombardi (2013) 115 SASR 577; R v Briggs [2014] SASC 62; R v Buhlmann [2010] SASC 123, considered.

R v HOGAN
[2014] SASC 117
Criminal
KELLY J.

The Director of Public Prosecutions has applied for a review of the decision of the Magistrates Court to grant the respondent, Justin Bradi Hogan, bail.
The respondent was taken into custody on 5 April 2014 in respect of charges of aggravated possession of a firearm while not the holder of a firearms licence, possession of a prescribed firearm without identifying characters, and trafficking three controlled drugs namely methylamphetamine, cannabis and 251‑NBOMe. In respect of the latter drug, the respondent was charged with trafficking in a commercial quantity.
Background
At about 9.04pm on 5 April 2014, police officers observed the respondent driving erratically. Upon stopping the vehicle and carrying out certain licence checks and a breath alcohol analysis test, the police located a sawn off single shot .22 rifle lying on the front passenger seat of the vehicle. In the rear passenger seat they found an esky containing a large quantity of the drug 251-NBOMe, methylamphetamine and cannabis.
There is no dispute that in the circumstances s 10A of the Bail Act 1985 (SA) applies and therefore the respondent, being a prescribed person within the meaning of s 10A of the Bail Act 1985 (SA), must establish the existence of special circumstances justifying his release on bail.
The Magistrate after hearing argument found that the respondent had established the existence of special circumstances and granted bail.
Counsel for the parties before this Court, one of whom appeared at the hearing before the Magistrate, advised that the Magistrate took into account the fact that the respondent’s partner is suffering from anxiety and depression with three young children and she is not coping with them. In addition the respondent does not have a bad criminal history and there may be an argument that the search of the motor vehicle by the police officers on the night of 5 April 2014 was unlawful. The Magistrate released the respondent on home detention bail.
On this review the applicant submits that the combination of circumstances relied on by the Magistrate were not sufficient to constitute special circumstances within the meaning…

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 Hogan

Details

AGLC: R v Hogan [2014] SASC 117
Case: [2014] SASC 117
Decision Date: 22 August 2014

CaseChat Overview and Summary

In the matter of R v Hogan, the respondent was detained following charges of aggravated possession of a firearm while not the holder of a firearms licence, possession of a prescribed firearm without identifying characters, and trafficking three controlled drugs, namely methylamphetamine, cannabis, and 251-NBOMe. The respondent was also charged with trafficking in a commercial quantity of the drug 251-NBOMe. The case was brought before the court on an application for review of a decision to grant the respondent bail.

The primary legal issue before the court was whether the Magistrate had correctly determined that the respondent had established the existence of special circumstances that justified his release on bail. The court had to consider whether the circumstances relied upon by the Magistrate were sufficient to constitute special circumstances within the meaning of s 10A of the Bail Act 1985 (SA). The court was required to assess whether the respondent's release on bail would create a relatively greater risk than many other alleged offenders, and whether the release would result in an unintended or unforeseen hardship or injustice.

The court considered the meaning of special circumstances as outlined in previous decisions, particularly those of Kourakis CJ and Sulan J. It noted that while there is no exhaustive definition of the term, special circumstances are those that take the case outside of the scope of the statutory provision. The court also highlighted that the discretion to grant bail applies to those applicants who do not pose the risk that Parliament had in contemplation when reversing the presumption of bail. The court determined that the Magistrate had considered the relevant circumstances, including the respondent's partner's mental health and the potential unlawfulness of the search. However, the court found that the combination of circumstances relied upon by the Magistrate were not sufficient to constitute special circumstances within the meaning of s 10A of the Bail Act 1985 (SA).

The court ultimately concluded that the application for review should be allowed, and the decision to grant the respondent bail should be set aside. The respondent was to be remanded in custody pending the resolution of the charges against him.

Orders

Orders of the court

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Background

Background to the litigation

The respondent was taken into custody on 5 April 2014 in respect of charges of aggravated possession of a firearm while not the holder of a firearms licence, possession of a prescribed firearm without identifying characters, and trafficking three controlled drugs namely methylamphetamine, cannabis and 251‑NBOMe. In respect of the latter drug, the respondent was charged with trafficking in a commercial quantity.Background At about 9.04pm on 5 April 2014, police officers observed the respondent driving erratically. Upon stopping the vehicle and carrying out certain licence checks and a breath alcohol analysis test, the police located a sawn off single shot .22 rifle lying on the front passenger seat of the vehicle. In the rear passenger seat they found an esky containing a large quantity of the drug 251-NBOMe, methylamphetamine and cannabis. There is no dispute that in the circumstances s 10A of the Bail Act 1985 (SA) applies and therefore the respondent, being a prescribed person within the meaning of s 10A of the Bail Act 1985 (SA), must establish the existence of special circumstances justifying his release on bail. The Magistrate after hearing argument found that the respondent had established the existence of special circumstances and granted bail. Counsel for the parties before this Court, one of whom appeared at the hearing before the Magistrate, advised that the Magistrate took into account the fact that the respondent’s partner is suffering from anxiety and depression with three young children and she is not coping with them. In addition the respondent does not have a bad criminal history and there may be an argument that the search of the motor vehicle by the police officers on the night of 5 April 2014 was unlawful. The Magistrate released the respondent on home detention bail. On this review the applicant submits that the combination of circumstances relied on by the Magistrate were not sufficient to constitute special circumstances within the meaning of s 10A of the Bail Act 1985 (SA). Discussion The meaning of special circumstances in the context of s 10A of the Bail Act 1985 (SA) has been discussed in a number of other applications for review of bail to this Court. I was referred to R v Buhlmann,[1] R v Lombardi,[2] and R v Briggs.[3] I proceed on the basis that the observations of Kourakis CJ and Sulan J in those decisions distil the legal principles to be applied when considering whether an applicant has established special circumstances. [1] [2010] SASC 123.[2] (2013) 115 SASR 577.[3] [2014] SASC 62. As both Kourakis CJ and Sulan J observed there is no comprehensive or exhaustive definition of “special circumstances”. They are “wide, comprehensive, and flexible words, … and no Court can or ought to lay down an exhaustive definition of them”.[4][4] R v Buhlmann [2010] SASC 123 at [21] per Sulan J quoting Mitchell J in Saywell v Yiu (1976) 14 SASR 56. Nevertheless, as Kourakis CJ noted in Lombardi, ultimately the term “special circumstances” takes its meaning and content in the context of the legislation in which it appears. It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision. As Kourakis CJ went on to observe:[5]… 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.[5] R v Lombardi (2013) 115 SASR 577 at [24].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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