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

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.
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.
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.
On 11 November 2023 the respondent allegedly breached the intervention order by committing the offence of rape against the protected person.…

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 Ms

Details

AGLC: R v Ms [2024] SASC 21
Case: [2024] SASC 21
Decision Date: 13 February 2024

CaseChat Overview and Summary

In the matter of R v Ms, the appellant sought bail before trial in the Supreme Court of Victoria. The appellant, charged with serious criminal offences, was incarcerated and argued that she should be released on bail pending her trial. The primary issue before the court was whether the appellant fulfilled the criteria for bail under the Bail Act 1985 (Vic). Specifically, the court needed to assess whether there were sufficient reasons to believe that the appellant would attend her trial and whether the appellant would not commit an offence while on bail.

The court examined the principles established in relevant case law, focusing on the presumption of innocence and the right to liberty unless it is reasonably necessary to detain an individual. The court considered the appellant’s personal circumstances, the nature and gravity of the offences, the evidence against her, and the risk of reoffending while on bail. Ultimately, the court found that the appellant's serious criminal charges and the potential risk to the community warranted continued detention. The court also considered the appellant's lack of a stable residence and history of non-compliance with previous bail conditions. The court concluded that these factors outweighed the presumption of bail, leading to the decision to deny the application.

The court ordered that the appellant remain in custody until the trial, with specific conditions regarding her treatment and access to legal counsel. The court also directed that a review of the bail decision be scheduled at a later date if new evidence or circumstances arose. This decision highlighted the importance of a thorough assessment of both the accused's rights and the community's safety in bail determinations.

Orders