R v Ms

[2024] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v MS

[2024] SASC 21

Reasons for Ruling of the Honourable Justice McIntyre  

13 February 2024

CRIMINAL LAW - PROCEDURE – BAIL

CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL

CRIMINAL LAW - PROCEDURE - BAIL - CONDITIONS

On 7 February 2024 the respondent was granted bail in the Adelaide Magistrates Court. The following day the Director of Public Prosecutions made an application for a review of this decision under s 14(2)(a) of the Bail Act 1985 (SA)(‘the Act’).

The applicant is a prescribed applicant pursuant to s 10A of the Act as he was taken into custody in relation to offences against s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) that involved physical violence or a threat of physical violence. He does not enjoy a presumption in favour of a grant of bail unless he can establish special circumstances.

Held:   The respondent has established special circumstances, but it is not appropriate to grant bail due to the gravity of the alleged offending, the need to protect the complainant and the likelihood of reoffending in particular by committing further breaches of the intervention order.

Bail Act 1985 (SA) ss 10, 10A, 14, referred to.
R v Lombardi [2013] SASC 61; R v Buhlmann [2010] SASC 123; R v Fox [2017] SASC 5; R v Sumner [2020] SASC 231, considered.

R v MS
[2024] SASC 21

Criminal: Application

1. McINTYRE J: On 7 February 2024 the respondent was granted bail in the Adelaide Magistrates Court. The following day the Director of Public Prosecutions (‘DPP’) made an application for a review of this decision under s 14(2)(a) of the Bail Act 1985 (SA)(‘the Act’). A review under s 14(3) provides that I must reconsider the application for release on bail and make the decision that should have been made in the first instance. It is a hearing de novo to be determined on the basis of the material before this court without regard for the manner in which the discretion was exercised in the decision under review. 

2. The applicant is a prescribed applicant pursuant to s 10A of the Act and does not enjoy a presumption in favour of a grant of bail unless he can establish special circumstances. The DPP opposes the grant of bail on any terms. The principal bases for the opposition are the absence of special circumstances, the gravity of the alleged offending, and the risk of reoffending.

3. The prosecution allege that the respondent assaulted his wife on two occasions between 11 March 2023 and 1 April 2023 and that he again assaulted his wife 9 September 2023.  He was arrested and issued with an interim intervention order on 11 September 2023 naming the respondent’s wife as the protected person.  Following this intervention order the respondent was granted police bail. 

4. On 11 November 2023 the respondent allegedly breached the intervention order by committing the offence of rape against the protected person.  On 14 November 2023 the respondent was present in the Magistrates Court in relation to the intervention order.  It is alleged that after this appearance, the respondent again breached the intervention order by attending the protected person’s home while drunk and assaulting her.

5. Following this, the respondent allegedly breached the intervention order on eight occasions between 18 November 2023 and 12 January 2024 by messaging, texting, and calling the protected person including making threats.  On 14 January 2024 it is alleged that he breached the intervention order by following the protected person in his car and by approaching her. 

6. The respondent was arrested on 16 January 2024.  Since then, the respondent remained in custody until he was granted bail on 7 February 2024, however his release from custody was stayed pending the determination of these proceedings.

7. The respondent was granted bail in the Magistrates Court.  A condition of this bail agreement is that he must live at an address in Western Australia, check in at a Western Australian police station daily during business hours, and obey the terms of any active intervention order.  The respondent is living with his guarantor, who is his sister’s husband, and family.  His guarantor also provided a letter of support during the Magistrates Court proceedings.

8. Whilst the respondent contests the alleged offending.  I must take the Crown case at its highest.  I note the material that has been filed in support of the application including an affidavit from the protected person.  If proven, the alleged offending is very serious. 

9. The respondent is a prescribed applicant.  He contends that due to his special circumstances he should be released on bail.  To establish special circumstances the respondent relies on a combination of circumstances.  These are that he has no criminal history, that his move interstate will mitigate any potential risk to the protected person, the family support that he has, the likely period of time on remand, the disruption to his education and the impact of this disruption upon his student visa.

10. In considering whether special circumstances have been established the primary consideration is whether an accused’s circumstances place him outside the contemplated risk to the community generally posed by members of the applicable class of prescribed applicant.[1]  In this case, the alleged offences are serious, repeated and typical.  If proven, the alleged breaches of the intervention order indicate that the respondent poses the precise risk that Parliament was concerned about when it enacted the relevant legislative provision.  Having said this, Sulan J stated in R v Buhlmann:[2]

    There are no words limiting the scope and meaning of special circumstances in s 10A of the Bail Act. They should be given their ordinary meaning. They import a wide and flexible approach in determining whether a [respondent] has established special circumstances. There are a variety of circumstances which will justify concluding a person should be released on bail.

    [1]    R v Lombardi [2013] SASC 61.

    [2] [2010] SASC 123 at [23].

11. I do not consider that the respondent’s lack of criminal history or his family support to be special circumstances.  Further there is no unusual delay in this matter.  Whilst the matter is not yet committed to the District Court it is set for charge determination in April 2024. 

12. The applicant has referred to the decision of Hinton J in the matter of R v Fox.[3]In that decision Hinton J says, and I agree, that addressing the risk of reoffending and conditions that offer protection to the complainant will not ordinarily amount to special circumstances.[4]  However, it is plain that such matters may, in combination with other factors, be capable of amounting to special circumstances.[5] 

    [3]    R v Fox [2017] SASC 5 (‘Fox’).

    [4] Ibid at [40].

    [5]    R v Sumner [2020] SASC 231 (‘Sumner’).

13. Hinton J further states, in the matter of Fox:[6]

    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. Thus Parliament’s approach reflects the response that it conders 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.

    [6]    Fox at [16].

14. The applicant submits that the discontinuation of education is an unexceptional result of offending of the type the respondent is alleged to have committed.  Whilst ordinarily this would be the case, the respondent is in Australia on a student visa, and is required to be enrolled in full time study in order to remain in Australia.  Prior to his arrest, the respondent had enrolled in three courses at the (education provider) which would fulfil the study obligations required by his visa.  These courses appear to be run, at least in part, face to face, and that the campus for these courses are in Victoria.  The respondent says that in the proceedings in the Magistrates Court he was told that he will need to notify the Court of the dates he will be attending in person classes in Victoria and be granted permission before he is to do so.

15. I accept that, as Hinton J said, discontinuation of education is an expected result of alleged offending of this kind and is not in itself a special circumstance.  However, the visa status of the respondent and his study obligations do distinguish the respondent from the ordinary circumstances considered by Hinton J.  If the respondent is not able to study, his visa is at risk as is his ability to remain in Australia.  Accordingly, I accept that the respondent has established special circumstances on that basis. 

16. I now proceed to consider whether it is appropriate to grant bail having regard to the matters set out in s 10 of the Act. The applicant contends that bail ought not be granted due to the gravity of the alleged offending, the likelihood that the respondent would reoffend, in particular, by committing further breaches of the intervention order, and the need to protect the safety and wellbeing of the complainant.

17. The circumstances of the respondent are different to those of the bail applicant in R v Sumner[7] to which I was referred in argument, where Bleby J found special circumstances to exist due to a combination of factors including that the protected person had moved interstate.  However, in that matter the bail applicant remained in South Australia.  He was granted bail on home detention conditions bail including electronic monitoring to ensure compliance with the bail conditions.  In this matter, the protected person remains in South Australia, with the respondent proposing to live interstate.  In those circumstances the court is not able to impose home detention bail conditions or other supervision conditions nor is it possible restrict the respondent’s movements beyond the requirement to report daily to police in Western Australia.  The respondent indicated during the hearing that he had been living interstate from December 2023, up until the week of 16 January 2024.  During this time, it is alleged that he breached the intervention order on eight occasions by use of social media or other electronic means and then, in person, when he returned to South Australia.  Accordingly, residence interstate does not of itself address the likelihood of the respondent committing further breaches of the intervention order. 

    [7]    Sumner.

18. As I have said, the alleged offending is undoubtedly serious it involves repeated breaches of an intervention order, assault and rape.  Moreover, I consider that there is a significant risk that the respondent would, if released without effective supervision, commit further breaches of the intervention order.  Accordingly, whilst I am prepared to conclude that the combination of factors faced by the respondent is capable of amounting to special circumstances, I am not satisfied that it is appropriate to grant bail in these circumstances.