R v Quinn No. Sccrm-03-298

R v QUINN
[2004] SASC 41
Bail Review

SULAN J: The applicant, Patrick Quinn, has sought review of a refusal by a magistrate at Christies Beach Magistrates Court, to grant him bail. The applicant is charged with aggravated robbery with an offensive weapon alleged to have occurred on 19 August 2003 at Huntfield Heights.
On 16 and 23 September 2003, the applicant applied for bail with home detention conditions. The Director of Public Prosecutions opposed the applications. Bail was refused. The applicant appeared again in the Magistrates Court on 28 October 2003. The Director of Public Prosecutions would not agree to the ordering of a home detention bail report. The magistrate refused to order such a report without the consent of the Crown and stated that he was bound by a decision of this Court in R v Duke, in which a judge determined that home detention bail could only be granted upon application or with the consent of the Crown.[1] He concluded that if the Crown opposed bail on home detention conditions, then the bail authority had no discretion to grant bail.I will return to that decision later in these reasons. At the bail review before me, both counsel sought written reasons. It was contended that the magistrate was in error in refusing home detention bail on the basis that he had no discretion to grant bail on home detention if the Crown opposed it.
[1][1999] SASC 431
Crown case
The Crown case is that at about 6.30 p.m. on Tuesday, 19 August 2003, the applicant entered the Huntfield Heights Pharmacy on Honeypot Road, Huntfield Heights, armed with a knife. He threatened staff before decamping with a quantity of prescription drugs. He was followed by the owner of the pharmacy and other members of the public. The offender was described by various witnesses.
The police attended the scene and conducted a search of the area. An old red coloured Toyota sedan was located nearby. The registration number of this vehicle was WNF-349. It appeared that the rear number plate had been altered. The vehicle is registered in the applicant’s name. While the police were at the scene the applicant walked past. He was stopped. Whilst he was being spoken to, the applicant dropped a plastic bag on the ground, the contents of which were prescription drugs, identical to those taken from the pharmacy. It is the Crown case that the applicant was in possession of three packets of morphine sulphate, a painkiller named Contin, and another unopened packet of painkiller called Kanapol. It was submitted by the Director of Public Prosecutions that the batch numbers of those medications matched the inventory of some of the drugs that had been taken.
The applicant was arrested. A search of the applicant’s home address was conducted, and clothing, shoes and knives were seized.
The Crown opposed bail. It was submitted that there is a real risk the applicant will abscond and re-offend. It was put by the Crown that the applicant’s house is unsuitable for home detention. [Text suppressed.]
The defence case
Counsel for the applicant submitted that the applicant is a good candidate for bail. [Text suppressed.] Since 1998 he has lived in a stable relationship. There are two young children of that relationship. In 1999 the applicant obtained employment with Ceilings and Wall Contractors Pty Ltd and has been a permanent employee for the past four years. His employer has indicated that if the applicant is released on bail, he is able to return to work. The applicant submits that he is the main source of income for his family. If he remains in custody, his wife is unable to meet the mortgage payments and the house in which they live will have to be sold.
The applicant denies the offending. The applicant submits that another person may have committed the armed robbery. This person was staying at the applicant’s house at the time and had access to the applicant’s car. It was submitted that this person returned to the applicant’s house on Tuesday, 19 August 2003 and departed hastily, having explained to the applicant where he had left the car. The man handed the applicant a small quantity of drugs. Counsel for the applicant submitted that the identification of this person was raised at the very first bail application before a magistrate on 20 August 2003. Notes of the magistrate confirm that this person was identified in open court.
The applicant submits that the magistrate should have ordered a home detention report on 28 October 2003. It was argued that one of the problems that the applicant faced in the Magistrates Court was that the magistrate considered himself bound by the decision in R v Duke in which the Court determined that a bail authority cannot grant home detention bail if the Crown is opposed to the release of the applicant on home detention bail. Counsel for the applicant argued that the magistrate was in error in interpreting the Crown to mean the Director of Public Prosecutions. The Director of Public Prosecutions submitted that insofar as the magistrate had refused the application on the basis that he had no discretion to grant bail once it was opposed by the Crown, that was an error. The Director of Public Prosecutions sought to clarify the decision in Duke’s case, as it was argued that magistrates were interpreting it in an inconsistent way.
Section 11(3) of the Bail Act 1985 (SA)
Section 11 of the Bail Act provides:
“(1)Subject to this section, a bail authority may impose one or more of the conditions referred to in subsection (2).
(2)The conditions that may be imposed in relation to the grant of bail are as follows:
……
(a) that the applicant agree –
(i)to reside at a specified address; or
(ia)to reside at a specified address and to remain at that place of residence while on bail, not leaving it except for one of the following purposes;
(A)remunerated employment; or
(B)necessary medical or dental treatment for the applicant; or
(C)averting or minimising a serious risk of death or injury (whether to the applicant or some other person); or
(D)any other purpose approved of by a community corrections officer; or
……
(iii)to be under the supervision of a community corrections officer and to obey the lawful directions of the officer; or
……
(3) A bail authority should not impose a condition under subsection (2)(a)(ia) or (iii) except on the application, or with the consent, of the Crown.”
The magistrate, in refusing bail, took the view that he could not grant bail on home detention as this was not consented to by the prosecution. In concluding that he could not impose a condition for home detention and a condition for supervision by an officer of the Department of Corrections Services, the magistrate relied on a decision of this Court in R v Duke. The judge in that case said:
“It seems to me, pursuant to s 11(2a) of the Bail Act, that I cannot impose a condition for home detention or a condition for supervision by an officer of the Department of Correctional Services without the consent of the Crown. The Crown has not given its consider in this case so that if I was minded to grant bail it has to be without the conditions of home detention and supervision.”[2]
……
“Having regard to the Crown’s opposition to home detention, it is not permissible for me to impose a condition of home detention and in those circumstances I must impose other bail conditions.”[3]
[2] Ibid at para 6
[3] Ibid at para 15
In R v Cooke, Gray J considered the scope of s 11(3) of the Bail Act.[4] He considered the question of whether the word ‘should’ in s 11(3) obliges a bail authority not to impose a condition specified in s 11(2)(ia), other than on application or with the consent of the Crown, or whether the subsection provides the bail authority with a discretion.
[4] [2003] SASC 403
In considering whether the bail authority has a discretion and whether the words in s 11(3) are mandatory or discretionary, Gray J referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[5]
[5] (1998) 194 CLR 355 at 381-2
Gray J referred to the second reading speech. The Minister made it clear that the reason for including s 11(3) was to ensure that the requirement of supervision by a community corrections officer or a requirement imposing home detention would only be available as a condition of bail if the Department of Correctional Services had the resources to undertake such supervision or to monitor home detention. Gray J said:
“The purpose of the Bail Act was to invest bail authorities with a wide discretion with respect to the grant of bail. The legislature identified in section 10 the relevant factors to be considered. Section 11 provides for conditions of bail. Section 11(3) placed a fetter on the discretion to impose a condition of home detention. The concern of the legislature related to the availability of resources to enable effective supervision(18). Plainly this would be a relevant factor for the court to consider. However in this case there is no suggested difficulty in the monitoring of home detention bail.
Having regard to the scheme of the Act, it is apparent that the legislature did not intend to provide any veto power in the Crown with respect to home detention bail. In these circumstances it is appropriate to read the word ‘should’ as imposing a discretion. A bail authority in the exercise of discretion will have regard to the ability of the State to properly monitor home detention bail when considering the imposition of such a condition.”[6]
[6] [2003] SASC 403 at pp 7-8
I agree with Gray J. I conclude that the magistrate erred in concluding that once the Crown had opposed the application for a home detention condition he had no discretion to consider the imposition of such a condition. The magistrate could have ordered a home detention report. If it had been reported that the Department of Correctional Services did not have sufficient resources to monitor the applicant’s compliance with a home detention condition then, pursuant to s 11(3), the discretion to grant bail on that condition should not be exercised.
If the resources were available, then it was a matter for the magistrate to consider all relevant factors in determining whether to grant bail. In failing to do so, the magistrate fell into error.
Conclusion
Section 10(1) of the Act provides:
“(1) Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to –
(a)the gravity of the offence in respect of which the applicant has been taken into custody;
(b)the likelihood (if any) that the applicant would, if released –
(i)abscond
(ii)offend again;
(iii) interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;
(c)(Repealed)
(d)any need that the applicant may have for physical protection;
(e)any medical or other care that the applicant may require;
(f) any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;
(g)any other relevant matter,
the bail authority considers that the applicant should not be released on bail.”
The primary contention of the Crown was that there is a real risk that the applicant will abscond or offend again.
The applicant is in a stable relationship and there are two young children of that union. He has employment available to him. He lives in a house which he has purchased, and if he is unable to meet the payments on the mortgage, it will fall into arrears and the home will have to be sold. [Text suppressed.] I am not satisfied that he is likely to offend if granted bail. He is also unlikely to abscond, given his current family commitments. The Bail Enquiry (Home Curfew) Report is that home curfew conditions are considered to be appropriate for the applicant to reside at 579 Brodie Road, Huntfield Heights, South Australia, that being his usual place of residence.
I am satisfied that bail on the following conditions should be granted, and I order, as follows:
1.That the applicant will not leave the State for any reason except as allowed under the Bail Act 1985.
2(a)That the applicant will reside at 579 Brodie Road, Huntfield Heights, and not absent himself from that address except for the purpose of remunerated employment, any necessary medical or dental treatment, to minimise risk of serious injury or death, whether to himself or some other person, for any other purpose approved by a community corrections officer of the Department for Correctional Services.
(b)That the applicant will obey all the lawful instructions of any community corrections officer designated to supervise him on home detention.
(c)That the applicant will wear an electronic transmitter and comply with the rules of electronic monitoring.
(d)That the applicant will not consume alcohol or any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosages and he will submit to any breath test or urine analysis as directed by my community corrections officer.
(e)That immediately upon his release, the applicant will travel to the address described above and upon arrival he will contact the Home Detention Unit of the Department for Correctional Services by telephone 8411 7669.
(f)That the applicant will forfeit to the Crown the sum of $1000 if he fails to comply with a term or condition of this bail agreement.
(g)That, in addition to the above conditions, there be two persons in the sum of $1000 each who agree to act as guarantors in respect of the bail agreement.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1[1999] SASC 431
2 Ibid at para 6
3 Ibid at para 15
4 [2003] SASC 403
5 (1998) 194 CLR 355 at 381-2
6 [2003] SASC 403 at pp 7-8

[2004] SASC 41

20 February 2004