R v Pepper - [2018] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v PEPPER
[2018] SASC 184
Reasons for Decision of The Honourable Justice Stanley
4 December 2018
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application to review an order of a Magistrate refusing the applicant bail. The applicant was charged with firearm and drug related offences.
Whether the application was governed by s 10A of the Bail Act 1985 (SA). Whether the applicant had established the existence of special circumstances justifying his release on bail. Whether the length of time the applicant was likely to remain in custody on remand if bail was not granted was so oppressive that special circumstances could be found to exist.
Held (dismissing the application):
1. The application is governed by s 10A of the Bail Act 1985 (SA).
2. Section 10A(2)(e) of the Bail Act 1985 (SA) is not confined to apply only to persons taken into custody who have been found guilty of a serious firearm offence. It also applies to those who are alleged to have committed a serious firearm offence while on bail.
3. The applicant has not established the existence of special circumstances justifying his release on bail.
4. While the categories of circumstances which constitute “special circumstances” are not closed, the test of whether special circumstances exist is not satisfied where it is suggested some doubt attends whether an individual meets the statutory definition of a prescribed applicant.
5. The problem of delay as a result of the adoption of the new procedures in Part 5, Division 2 of the Criminal Procedure Act 1921 (SA) is a general rather than a special circumstance.
6. There may come a time when delay becomes so oppressive that special circumstances could be found to exist. That stage has not been reached yet in this case.
Firearms Act 2015 (SA) s 9, s 32, s 35; Bail Act 1985 (SA) s 10, s 10A, s 11; Sentencing Act 2017 (SA) 49; Criminal Procedure Act 1921 (SA), referred to.
R v Cekic (2014) 244 A Crim R 462; R v Tamas [2017] SASC 12, distinguished.
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; R v Lombardi (2013) 115 SASR 557, discussed.

R v PEPPER
[2018] SASC 184
Reasons for Decision
STANLEY J.
Introduction

This is an application for review of a bail decision. A magistrate refused the applicant bail on 22 August 2018. On 15 November 2018, I dismissed the application for review. I did so on the basis that I was satisfied the applicant is a prescribed applicant and that special circumstances had not been established. I indicated at the time that I would provide further reasons in due course. These are those reasons.
The applicant was charged with aggravated possession of a category H firearm contrary to s 9 of the Firearms Act 2015 (SA) (the Firearms Act), contravention of a provision of the Code of Practice of the Firearms Regulations 2017 (SA) contrary to s 35 of the Firearms Act (two counts), possession of ammunition while not being the holder of a firearms licence or a permit granted by the Registrar under s 32 of the Firearms Act, possession of $45,100 cash which was reasonably suspected of having been stolen or obtained by unlawful means contrary to s 41 of the Summary Offences Act 1953 (SA), possession of a prescription drug, not being a drug of dependence, without proper prescription contrary to s 18(2) of the Controlled Substances Act 1984 (SA), contravention of a term or condition of a bail agreement entered into by the applicant on 6 August 2018 (two counts), refusal without reasonable excuse to answer questions relating to a firearm contrary to s 55(5) of the Firearms Act. The charges of contravening a bail agreement related to the applicant’s possession of a firearm.
The applicant has been in custody in relation to these charges since 19 August 2018. He has been remanded to appear in court next on 23 January 2019.
Before me, counsel for the applicant, Mr Abbott QC, applied for bail on home detention conditions. He submitted that the applicant was not a prescribed applicant and, accordingly, there was a presumption in favour of bail, pursuant to s 10 of the Bail Act 1985 (SA) (the Act). In the alternative, he submitted that, if the applicant was a prescribed applicant, then special circumstances existed justifying the grant of bail on strict home detention conditions, a suitable residence for home detention being available, together with the applicant being in a position to put forward guarantors who were able to offer a cash surety.
Is the applicant a prescribed applicant?
Before me, the position of the Director of Public Prosecutions (the Director) changed in relation to the basis upon which the Director submitted the applicant was a prescribed applicant for the purposes of s 10A of the Act. Initially, the Director submitted that the applicant was a prescribed applicant because, in accordance with s 10A(2)(e) of the Act, he had been taken into custody in relation to a serious firearm offence (within the meaning Part 3, Division 3 of the Sentencing Act 2017 (SA)) (the Sentencing Act), namely, that he had been taken into custody for an offence under the Firearms Act, involving the use or carriage of a category H firearm. Subsequently, the Director abandoned that submission and submitted that the applicant was a prescribed applicant, pursuant to s 10A(2)(e), on the basis that he was taken into custody in relation to a serious firearm offence, namely, an offence under the Firearms Act, committed while he was on bail and subject to a condition imposed by s 11(1)(a) of the Act, namely, a condition prohibiting him from possessing a firearm, ammunition, or any part of a firearm. That submission was based on the definition of “serious firearm offence”, found in s 49(1)(e)(i) of the Sentencing Act.
Mr Abbott submitted that the applicant was not a prescribed applicant because he is merely charged with a breach of bail conditions by reason of being in possession of a firearm while on bail. He submitted s 49(1)(e)(i) provides that a serious firearm offence is an offence under the Firearms Act committed while the defendant is on bail. He submitted that, for the definition of “prescribed applicant” in s 10A of the Act to be established, it is necessary that the applicant had been found guilty of the offence of breaching a bail condition by reason of being in possession of a firearm.
I do not accept that submission.
The statutory test enshrined in s 10A(2)(e) of the Act is that, in order to qualify as a prescribed applicant, an applicant must be taken into custody in relation to a serious firearm offence (within the meaning of Part 3, Division 3 of the Sentencing Act). The provision is to be construed in accordance with its text, context and purpose.
The textual analysis emphasises that the relevant act in relation to whether a person is a prescribed applicant for the purposes of bail is that the person has been taken into custody and that the person has been taken into custody in relation to a serious firearm offence. The reference to the applicant being “taken into custody” suggests that this occurs prior to the trial of a charge. The expression “in relation to”, is an expression of broad import.[1] It requires no more than a relationship, whether direct or indirect, between two subject matters.[2] That is satisfied by a person being taken into custody on a charge of a serious firearm offence. That construction is not encumbered by the reference in s 49(1)(e) of the Sentencing Act to a firearm offence committed while the defendant is on bail. It must be recognised that, while the definition of a prescribed applicant in s 10A(2)(e) incorporates the definition of “serious firearm offence” in s 49 of the Sentencing Act, the work to be performed by that definition in s 49 of the Sentencing Act is different from the work the definition is to perform in s 10A of the Act. Section 49 is found in Part 3, Division 3 of the Sentencing Act. Part 3, Division 3 imposes a particular statutory regime for the sentencing of a serious firearm offender for a serious firearm offence. It can be seen that the work to be performed by s 49 is part of a regime that only applies to a person who has been found guilty of a serious firearm offence. By contrast, s 10A(2)(e) of the Act is concerned with whether a person is a prescribed applicant for the purpose of an application for bail. Overwhelmingly, that provision will apply to a person who has been taken into custody and charged, but not yet tried for a serious firearm offence. The construction for which Mr Abbott contends is contrary to the context of s 10A. Section 10A(c), (d), (e) and (f) would be rendered substantially ineffective if the definition of a prescribed applicant in those placita is limited to applicants who have been convicted of the offences prescribed in those placita. To construe the provision as being confined to circumstances where a person has been taken into custody in relation to having been found guilty of a serious firearm offence, would be contrary to the purpose of the Act, which is concerned predominantly, although not exclusively, with applications for bail on the part of persons who have been charged with a criminal offence, but not yet tried or found guilty. The purpose of s 10A is to protect the community from applicants for bail who pose a relatively greater risk to the public’s safety. That purpose would be substantially frustrated if s 10A(2)(c), (d), (e) and (f) were narrowly construed in the way contended for by Mr Abbott.
[1] O’Grady v Northern Queensland Co Ltd [1990] HCA 16 at [19]-[21], (1990) 169 CLR 356 at 374.
[2] O’Grady v Northern Queensland Co Ltd [1990] HCA 16 at [22], (1990) 169 CLR 356 at 376.
Section 10A(2)(e) is not confined to apply only to persons taken into custody who have been found guilty of a serious firearm offence. It also applies to those who are alleged to have committed a serious firearm offence while on bail.
I am satisfied that the applicant was taken into custody in relation to a serious firearm offence, namely, a contravention of s 49(1)(e)(i) of the Sentencing Act. The applicant was taken into custody, inter alia, on a charge of having breached a condition of his bail by being in possession of a firearm. Accordingly, the applicant was a prescribed applicant.
It followed that the applicant was not to be granted bail unless he established the existence of special circumstances justifying his release.
Do special circumstances exist in this case?
Mr Abbott submitted that there were two bases upon which the Court should find special circumstances existed in this case. The first was the complexity of the law in determining whether the applicant was a prescribed applicant. The second was the length of time the applicant was likely to remain in custody on remand if bail was not granted.
In R v Lombardi,[3] Kourakis CJ considered the meaning of special circumstances in s 10A. He said:[4]
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.
...
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.
[3] [2013] SASC 61, (2013) 115 SASR 557.
[4] [2013] SASC 61 at [22] and [24], (2013) 115 SASR 557 at 583-584.
I do not accept Mr Abbott’s first submission. In my view, the submission fails on two grounds. First, I do not accept the underlying premise that the question whether this applicant is a prescribed applicant is attended by the statutory complexity which Mr Abbott contends. Second, even if I took the contrary view, I do not consider that constitutes special circumstances, either in isolation or in combination with the other matter relied upon by Mr Abbott. It finds no support in the reasons of the Chief Justice in Lombardi. As I have explained earlier in these reasons, s 10A is concerned with the relatively greater risk particular applicants for bail pose to the safety of the community. While the categories of circumstances which constitute “special circumstances” are not closed, the test of whether special circumstances exist is not satisfied where it is suggested some doubt attends whether an individual meets the statutory definition of a prescribed applicant. They either do or they do not.
In relation to the second submission, Mr Abbott submitted that, under the provisions of the Criminal Procedure Act 1921 (SA) (the Criminal Procedure Act), a preliminary brief has to be served four weeks before the answer charge date faced by the applicant. In this case, the answer charge date is 23 January 2019. He contends this is the earliest possible date on which a committal could occur and an arraignment can only take place 12 weeks thereafter. He submitted that, in those circumstances, the earliest date on which the applicant could be arraigned and, therefore, a date fixed for his trial, would be April 2019. In those circumstances, he submitted that it was unlikely that the matter would come to trial before July or August 2020. By that time, if bail was not granted, the applicant would have been in custody for a period approaching two years. He submitted that perhaps this would be a longer time in custody than he would be sentenced to if he pleaded guilty now.
Mr Abbott sought to rely upon statements of this Court in R v Cekic,[5] and R v Tamas.[6] Cekic and Tamas concerned applicants who were determined to be serious and organised crime suspects. They were subject to the specific regime established by s 3A of the Act. At that time, s 3A(2) provided that a determination by a bail authority that a person is a serious and organised crime suspect ceased to apply after six months if, at that time, the person had not been tried, or was not on trial, for the offence and the trial of the offence was not subject to a determination of the Supreme or District Court under s 275(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Section 275(3) at that time provided for the making of rules to expedite proceedings concerning serious and organised crime suspects. It provided that the trial of a suspect was to commence within six months after the making of the determination unless the determination ceased to apply or the Court determined that it was not reasonably practicable for the Court to deal with the matter within that period, or that exceptional circumstances existed that justified the matter being set down for trial at a later date.
[5] [2014] SASC 132, (2014) 244 A Crim R 462.
[6] [2017] SASC 12.
In Cekic¸ Kelly J held that special circumstances in the Act is wide enough to encompass a circumstance not contemplated by the legislature, namely, that prescribed applicants would be detained in custody, pending a trial that should have taken place in six months but would not take place for a period of nearly two years from the date of incarceration.[7]
[7] [2014] SASC 132 at [43], (2014) A Crim R 462 at 471.
In Tamas, Blue J said:[8]
In considering whether special circumstances are established, it is relevant to take into account the fact that the original serious and organised crime suspect determination has expired and the matter did not reach trial within the requisite six months during the operation of that determination. It is relevant to take into account that this state of affairs is the result of the prosecuting authorities not having taken sufficient steps to expedite the preparation and service of declarations and an expedited committal hearing. These matters in themselves do not result in a conclusion that special circumstances justify the grant of bail, but they are important matters to be taken into account.
[Footnotes omitted.]
[8] [2017] SASC 12 at [57].
Blue J found special circumstances existed on the basis of the respondent’s lack of any relevant prior convictions at the age of 30; the fact that his wife and three young children were dependent on him; his prospects of obtaining remunerative employment; the relatively low gravity of the offending compared to other offending involving the same crimes; the prospect that, if convicted, he might otherwise spend more time in custody than if he had been convicted and sentenced at an earlier time in accordance with s 3A(2); the assessment of Blue J that the risk to the victim was low; and the fact that the prosecuting authorities failed to take sufficient steps to expedite the preparation and service of declarations and an expedited committal hearing with a view to a trial being listed some two months prior to the application for bail being decided.
I do not accept Mr Abbott’s second submission.
The approach taken in Cekic and Tamas was informed by the specific provisions of s 3A of the Act (as it then was). This matter falls to be considered against the background of the statutory regime to which s 3A does not apply.
Part 5, Division 2 of the Criminal Procedure Act deals with the pre‑committal procedure applicable in the Magistrates Court when an information is laid charging an accused with an indictable offence or offences. Part 5, Division 3 deals with the procedure applicable to the committal. In combination, Division 2 and 3 speak of four appearances; a first and second appearance, a committal appearance and an answer charge hearing. It may be that, as a matter proceeds to the answer charge hearing, more appearances are necessary. Equally, it may be that only three occur, with the committal appearance doubling as the second appearance.
In this case, when the magistrate adjourned the applicant’s matter to 23 January 2019, presumably he did so in purported compliance with s 105(5) and s 106(1)(d) after being advised how long it would take for forensic evidence to be available. Section 105(5) provides:
The Magistrates Court must, on adjourning the defendant's first appearance before the Court in relation to the charge, appoint a time and place for the defendant's second appearance before the Court in relation to the charge, having regard to any information provided by the prosecution as to the likely length of time the prosecution requires in order to obtain witness statements and other material prior to the next appearance (subject to any requirements applying under section 106).
Section 106(1)(d) provides:
(d) the Magistrates Court must, in adjourning the proceedings under section 105(5)—
(i)    have regard to information provided by the prosecution as to the witness statements and other material to be obtained for the purposes of completion of the preliminary brief and the time within which it is expected that the preliminary brief can be completed; and
(ii)    ensure that the adjournment is for a period that—
(A)    allows sufficient time for the completion of the preliminary brief; and
(B)allows an additional period of not less than 4 weeks for the Director of Public Prosecutions to consider the preliminary brief and make a charge determination;

Section 105(5) and s 106(1)(d) leave to the discretion of the magistrate the question of when a defendant’s second appearance is fixed, subject to it not being less than four weeks, and allowing sufficient time for the completion of the preliminary brief. It can be seen the Court is not bound to appoint a time and place for the defendant’s second appearance that accords with the estimate provided by the prosecution. The Court is bound to allow sufficient time to prepare the preliminary brief, but what is sufficient is for the Court to determine in all the circumstances, which include having regard to the information provided by the prosecutor. Obviously, the Court must consider the implications of any decision it makes for the police or the Forensic Science Centre, but the Court is also concerned with other interests, including those of the defendant and the administration of justice generally. I consider that Parliament has deliberately left the question of time to the Court in order that it may ensure that its processes are not abused and do not become an instrument of oppression.
In my view, Parliament has contemplated that a matter will remain in the Magistrates Court for the time necessary for the steps prescribed to be undertaken. However, I do not consider that the Parliament necessarily contemplated any particular period of time for those steps to occur. At the end of the day, time is ultimately within the control of the Magistrates Court, which can expect that the Executive will, taking into account all obligations it must discharge, allocate its resources in a manner that contributes as best it reasonably can to the efficient administration of justice.
Furthermore, if a defendant pleads not guilty on the answer the charge date and the Court is of the opinion the evidence is sufficient to put him or her on trial for the offence charged, he or she will be committed for trial. The arraignment in the higher court cannot take place for a minimum of 12 weeks. Once arraigned, the length of time to trial is a matter for the trial court.
In this matter, the answer the charge date is listed for 23 January 2019. The prosecution has indicated that, before that date, the only significant outstanding evidence in relation to this matter, being DNA evidence, has been expedited and will be available on 12 January 2019. Accordingly, there is a real possibility that the Court could consider whether the applicant should be committed to stand trial on that occasion. If that occurs, he could be arraigned in April 2019. I understand that the time between arraignment and trial in the District Court is falling. It is currently under nine months. Adopting a conservative approach, there is a realistic prospect that the applicant’s matter could go to trial before the end of next year. While that would be some time in excess of 12 months since he was taken into custody, I do not consider that this establishes special circumstances.
The problem of delay as a result of the adoption of the new procedures in Part 5, Division 2 of the Criminal Procedure Act is a general rather than a special circumstance. By way of contrast, Cekic and Tamas are cases where, if bail was not granted, the applicants would have been in custody for periods much longer than contemplated by the statutory regime imposed on serious and organised crime suspects. I accept that, in accordance with Cekic and Tamas, there may come a time when delay becomes so oppressive that special circumstances could be found to exist. That stage has not been reached yet in this case.
For these reasons, I dismissed the application.