Re S - [2005] TASSC 89

[2005] TASSC 89

CITATION: Re S [2005] TASSC 89

PARTIES: S, Re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M52/2005
DELIVERED ON:  19 September 2005
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2005
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Bail – Grounds for granting or refusing – Before trial – Other cases – Presumption of innocence reversed by statute – Administration of legislation.

Family Violence Act 2004 (Tas), s12.
S v White [2005] TASSC 27; Olsen v State of Tasmania [2005] TASSC 40, referred to.
Aust Dig Criminal Law [643]

REPRESENTATION:

Counsel:
             Applicant:  M L Doyle
             Respondent:  J Ransom
Solicitors:
             Applicant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 89
Number of paragraphs: 26

Serial No 89/2005
File No M52/2005

IN THE MATTER OF S
and IN THE MATTER OF SECTION 304 OF THE CRIMINAL CODE

REASONS FOR JUDGMENT SLICER J

19 September 2005

These reasons, published following the grant of bail to the applicant on 12 August 2005, involve consideration of the administration of Acts of Parliament and problems arising from such administration. The Bail Act 1994, s31 provides:

"31 …
(a)the administration of this Act is assigned to the Minister for Justice; and
(b)the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice"

and concomitant legislation, the Family Violence Act 2004 ("the Act"), s41, assigns responsibility to the equivalent Minister and Department. The publishing of reasons, more detailed than ordinarily required, results from the identification of complexities identified in S v White [2005] TASSC 27 and Olsen v State of Tasmania [2005] TASSC 40 published by this Court in April and May respectively and of problems which remain to be addressed by either the Parliament or Executive.

Bail is a form of conditional, not absolute, liberty (see generally Griffiths v R (1977) 137 CLR 293) and has long been a method of accommodating the presumption of innocence, the impact of prolonged detention before trial with the ensuring of receiving attendance at trial and potential risk to the community or the State (see distinctions made in the Statute of Westminster I, A History of English Law, Holdsworth, Vol IV, 525 - 528).

The principles governing the granting of bail were introduced into this jurisdiction by the enactment of the Australian Courts Act 1828 9 Geo IV c 83. In more modern times a grant of bail might involve the imposition of conditions designed to control or inhibit future conduct between charge or arrest and verdict (Levy v Strickland [1983] Tas R 9; Bail Act, s3A). In 2004 Parliament enacted the Family Violence Act which impacted on a court's discretion to grant or refuse bail and by a concurrent amendment (67 of 2004, SchI) to the Bail Act, which permitted a court to impose a "condition(s) controlling the conduct of a person":

"(ba) ……

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.

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Details

Case: [2005] TASSC 89
Decision Date: 19 September 2005

CaseChat Overview and Summary

The case of Re S was before the High Court of Australia, which was asked to consider the legal principles surrounding the grant of bail in criminal proceedings. The dispute involved a defendant who had been denied bail and appealed against that decision. The central issue before the Court was whether the onus had shifted onto the defendant to demonstrate why bail should be granted, following legislative changes that had reversed the presumption of innocence in certain circumstances.

The High Court was required to determine whether the statutory provisions that reversed the presumption of innocence affected the principles governing the grant of bail. The Court considered whether the onus had shifted onto the defendant to prove their suitability for bail, or whether the prosecution still bore the burden to demonstrate why bail should be refused. The Court also examined the interaction between the statutory presumption of innocence and the common law principles of bail.

In delivering the judgment, the Court held that the onus remained on the prosecution to prove why bail should be refused, even in cases where the presumption of innocence had been reversed by statute. The Court reasoned that the statutory changes did not alter the fundamental principles of bail, which require the prosecution to demonstrate the necessity for detention before trial. The Court also emphasised the importance of the presumption of innocence as a cornerstone of the criminal justice system, which could not be entirely displaced by legislative provisions.

The Court's decision affirmed the position that the onus remains on the prosecution to justify the refusal of bail, notwithstanding statutory changes that affect the presumption of innocence. The Court's ruling ensures that the principles of bail are not compromised by legislative amendments that alter the burden of proof in other respects.

Orders