R v KOOYMAN - [2016] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v KOOYMAN
[2016] SASC 200
Reasons for Decision of The Honourable Justice Stanley
22 December 2016
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION - SPECIAL OR EXCEPTIONAL CIRCUMSTANCES - GENERALLY
This is an application for review of a bail decision.
The applicant is charged with the following offences: traffic in a commercial quantity of a commercial drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA); possess a class H firearm without a licence (aggravated) contrary to s 11(1) and s 11(7b) of the Firearms Act 1977 (SA); possess an unregistered firearm contrary to s 23(1) of the Firearms Act 1977 (SA); fail to store ammunition separately from a firearm contrary to regulation 41(1) and regulation 61 of the Firearms Regulations 2008 (SA); theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA); breach of bail contrary to s 17 of the Bail Act 1985 (SA) (three counts); and breach of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The applicant was arrested on 24 September 2016 after a vehicle driven by him and registered in his name was searched by police. Located in the vehicle was a re-sealable plastic bag containing 229 grams of methamphetamine. Police also located a loaded .22 calibre handgun, a laptop, numerous mobile phones, $300 in cash, scales, camera accessories and USB devices. Those items were seized. The applicant allegedly breached bail by being in possession of a firearm. The applicant allegedly breached an intervention order by being in the presence of Christie Halls and in possession of a firearm. She is a protected person and also the co-accused. The applicant denied knowledge of the methamphetamine found in the vehicle. He told police he believed the intervention order had been modified so as to allow him to contact Ms Halls, who was his partner.
The applicant was refused bail on 26 September 2016. On 28 October 2016, he made a further application for bail. The Magistrate refused to grant bail, given the seriousness of the allegations and because he was not satisfied there had been a relevant or sufficient change in the circumstances since the previous refusal of bail.
The Director opposes any grant of bail.
Held, per Stanley J:
1. The applicant has failed to establish the existence of special circumstances justifying his release on bail (at [24]).
2. Dismiss the application for review of the decision of the bail authority (at [25]).
Controlled Substances Act 1984 (SA) s 32(2); Firearms Act 1977 (SA) s 11(1), s 11(7b), s 23(1); Firearms Regulations 2008 (SA) reg 41(1), reg 61; Criminal Law Consolidation Act 1935 (SA) s 134(1); Bail Act 1985 (SA) s 10A, s 17; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2), referred to.
R v Lombardi (2013) 115 SASR 577; R v S, D

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 KOOYMAN

Details

AGLC: R v KOOYMAN [2016] SASC 200
Case: [2016] SASC 200
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the case of R v Kooyman, the applicant sought a review of the decision of the bail authority, which had refused to grant him bail. The applicant argued that there were special circumstances justifying his release on bail, particularly given that his co-accused had been granted bail. The matter was heard in the Supreme Court of South Australia. The court was required to determine whether the applicant had established the existence of special circumstances that would justify granting him bail despite the provisions of s 10A of the Bail Act, which reverses the presumption of bail for certain categories of alleged offenders.

The court considered the applicant's arguments and submissions, particularly in light of the reasons provided in the unreported case of R v S, D. The court noted that while the applicant had a lengthy criminal history, including previous breaches of bail, the lack of parity between the applicant and his co-accused did not necessarily establish special circumstances. The court further observed that the applicant had not provided sufficient material to demonstrate the relevant facts concerning his co-accused, particularly her antecedents and compliance with bail conditions. The court emphasised that the onus was on the applicant to persuade the court that special circumstances existed justifying his release on bail, a burden he had not met.

The court dismissed the application for review of the bail authority's decision. It concluded that the applicant had not established special circumstances that would take his case outside the scope of the statutory provision. The court reiterated that s 10A of the Bail Act reverses the presumption of bail for certain categories of alleged offenders and applies the discretion to grant bail to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The court found that the applicant's circumstances did not meet the criteria for special circumstances, and therefore the decision of the bail authority to refuse bail was upheld.

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

I have considered the submission of the applicant based on the reasons in R v S, D[3] that there would be a lack of parity in refusing the applicant bail where his co-accused has been granted bail. I am not persuaded that this is a matter which establishes special circumstances. In any event, the premise for the submission depends upon true parity existing between the applicant and his co-accused. Given the applicant’s extensive criminal antecedents including, in particular, previous breaches of bail, it is not clear that there would be a lack of parity in refusing the applicant bail. No material has been put before me to establish the relevant facts concerning the co-accused and, in particular, her antecedents and previous compliance with bail conditions, if relevant. It is to be remembered that this is a matter to be decided in accordance with s 10A. There is no presumption in favour of bail. It is the applicant who must persuade the court that special circumstances exist justifying his release on bail. He has not done so. [3] Unreported, Supreme Court of South Australia, Nicholson J delivered 3 May 2013. Conclusion I would dismiss the application for review of the decision of the bail authority.

Ratio Decidendi

Legal Principle Established

In R v Lombardi,[1] Kourakis CJ considered the meaning of the expression “special circumstances” in s 10A. He said:[2]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.[Footnotes omitted.][1] (2013) 115 SASR 577.[2] (2013) 115 SASR 577 at 583 - 584.Consideration In my view the applicant has failed to establish the existence of special circumstances in this case. The critical consideration must be whether the applicant’s circumstances place him outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicants. The circumstances of the alleged offending will therefore be very important. In this case the alleged circumstance of the offending are typical of the class of serious firearm offenders prescribed by s 10A(2)(e) of the Bail Act. The firearm was a loaded handgun concealed in a compartment under the armrest. Located in the same place was 229 grams of methylamphetamine. Generally speaking the applicant’s personal circumstances weigh against a finding that special circumstances exist. As I have noted, his criminal offending history is lengthy and fairly extensive. It includes a drug offence involving methylamphetamine, albeit from 2000, but a more recent driving offence this year for driving a motor vehicle with methylamphetamine in fluid or blood. There are also firearms offences and, significantly, a number of offences of failing to comply with bail conditions. In this regard I note that the charges the applicant now faces must be viewed against a background where at the time of his apprehension he was subject to two bail agreements that he not possess a firearm, ammunition or any part of a firearm.