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 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].
With those considerations in mind I turn to examine the circumstances which arise here.
The charges on which the respondent was taken into custody on 5 April 2014 are undoubtedly very serious.
The respondent admitted that he had loaded the shotgun and placed it in the passenger seat of the vehicle he was driving. There were three different drugs in the esky in the rear passenger seat, including a commercial quantity of one of those drugs.
The respondent’s antecedent record revealed only minor offending. He is now 27 years old, his partner aged 25 and they have three young children aged under five. A letter from the general medical practitioner of the respondent’s partner was tendered both in the court below and in this review. In that letter the doctor stated that the respondent’s partner has anxiety and depression and has difficulty coping with her life and looking after three small children. He went on to say “her small children misses their father and has behavioural problems like temper tantrum, disobedient, refusing to go to school and sleep and generally defiant towards her”.
It may be accepted that the incarceration of her partner has had an adverse impact on the respondent’s partner and the family generally. However, the incarceration of any alleged offender is always likely to impact adversely on close family members particularly where those family members are dependent on the incarcerated person. This is not to say that the medical condition of the respondent’s partner was not a legitimate matter to weigh in the balance when deciding whether special circumstances existed. However, I consider much more than a general statement made in the brief letter submitted to the Magistrate was required.
To my mind the factors relied on by the Magistrate even in combination were, without more, insufficient to establish that the hardship caused to the respondent’s family was over and above that which would be suffered by any family member on the incarceration of the main breadwinner.
In addition, it appears that the respondent has not worked since coming to South Australia four years ago. Quite how he has supported his family in the time since the family have been in South Australia is something of a mystery. He is most certainly not a young man in the same or similar position as the applicant in Briggs, a decision to which the Magistrate was referred.
In conclusion, I consider that the circumstances in which the respondent was arrested indicate that he can reasonably be regarded as one of those alleged offenders whose release on bail does create a greater risk than many other alleged offenders. The very circumstances in which he was stopped on the night of 5 April 2014 reveal a young man who is prepared to travel about the streets of Adelaide armed with a loaded shotgun and carry three different illicit drugs.
The respondent has so far failed to establish special circumstances. However, I do not want these remarks to be interpreted as implying that the respondent might never be able to establish special circumstances based on his partner’s medical condition and, or, any other relevant circumstances particularly if cogent medical evidence was to be forthcoming.
In the circumstances I allow the application for review and, at this stage, bail is refused.