Reynolds (a pseudonym) v The King - [2023] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

REYNOLDS (A PSEUDONYM) v THE KING
[2023] SASC 28
Judgment of the Honourable Chief Justice Kourakis
2 March 2023
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - GENERALLY
Application for review of bail.
The applicant is charged with multiple offences including rape, indecent assault and choking in a domestic setting. He was taken into custody on those charges on 27 January 2023. The applicant was refused bail in the Magistrates Court of South Australia and applied for review in this Court of the Magistrate’s decision.
The applicant is a prescribed applicant within the meaning of s 10A(2) of the Bail Act 1985 (SA).
Held:
1. The applicant is granted home detention bail.
2.There are special circumstances justifying the grant of bail. The two year period during which the applicant would remain in custody pending trial, if not granted bail, is a weighty consideration when there is at least some prospect that the charges may either not proceed, or that he may be acquitted of at least some offences.

Bail Act 1985 (SA) s 10A; Criminal Law Consolidation Act 1935 (SA) s 20A; Criminal Procedure Act 1921 (SA) ss 110, 111, 120, referred to.

REYNOLDS (A PSEUDONYM) v THE KING
[2023] SASC 28
Criminal: Application for Review of Bail

KOURAKIS CJ: On 17 February 2023 I granted the applicant, Mr Reynolds, bail on a review of a refusal to grant bail in the Magistrates Court of South Australia which first came before me on 2 February 2023. I now publish my reasons for doing so.
Mr Reynolds was taken into custody on 27 January 2023 on multiple charges, including rape, indecent assault and choking in a domestic setting alleged to have been committed against his then domestic partner, Ms B, on 13 November 2021 (the November 2021 offending). Bail was refused in the Magistrates Court of South Australia on 30 January 2023.
It is sufficient for present purposes to record, by way of summary of the allegations of the November 2021 offending, that Ms B was subjected to violent, terrifying and degrading sexual violence over a protracted period of time in a shed on the residential premises which they were then renting. Ms B alleges that she suffered internal injuries, a chipped tooth and other external injuries. According to Ms B, throughout that time, Mr Reynolds was as ‘high as a kite’. A statement taken from their eight-year-old son provides some supporting evidence in that he speaks of occasions when he heard screams and yelling coming from the shed. He also states that he has seen his mother’s face puffed up with black eyes and reddy pink abrasions to her forehead.
After the November 2021 offending, Mr Reynolds and Ms B continued to live together in the same home until about June 2022. They then became homeless and dependent on friends to house them.
At the time of his arrest Mr Reynolds had been residing at his mother’s home on home detention bail for about a week after having been taken into custody for more recent offending against Ms B. That offending was committed over a period of time on 15 and 16 September 2022 (the September 2022 offending). At the time, Mr Reynolds and Ms B were living in the home of a friend who had offered them shelter. The offences included strangling a person in a domestic setting, aggravated assault causing harm and aggravated causing harm. Ms B presented at the Noarlunga Hospital on 22 September 2022. She provided a statement to the police in respect of that offending on 26 September 2022.
On 4 November 2022 Ms B provided, for the first time, a sworn statement to police in relation to the alleged November 2021 offending.
On 20 December 2022 in the Magistrates Court of South Australia, Mr Reynolds was refused bail on the September 2022 offending. On 20 January 2023, on an application for a review of bail in this Court, a Judge released Mr Reynolds on home detention bail to reside at his mother’s home. On the hearing of the review in this Court, it was known that the police had taken the 4 November 2022 statement from Ms B with respect to the November 2021 offending. That statement had been provided to Mr Reynolds’ solicitors soon thereafter for the purpose of negotiations over bail conditions on the September 2022 offending. However, it was not provided to the Judge who granted bail. I reject the submission that I should place substantial weight on the Judge’s decision to grant Mr Reynolds bail on the September 2022 offending because he was told that Ms B had complained of some earlier offending. In the absence of Ms B’s statement and before any charges had been laid, the Judge could not accord the information he was given much weight at all. Mr Reynolds could have no reasonable expectation that having been granted bail on the September 2022 offending he would be granted bail if, and when, he were taken into custody on the November 2021 offending.
After a Judge of this Court granted bail on the September 2022 offending, the Director of Public Prosecutions (SA) (the Director) also determined to charge Mr Reynolds in respect of the November 2021 offending.
The answer charge date for the September 2022 offending is 5 April 2023. It is likely that Mr Reynolds will be committed for trial on that date, or soon thereafter, but in the ordinary course he would not be arraigned until July 2023 at the earliest. The charge determination/preliminary brief date for the November 2021 offending is 26 June 2023. In the ordinary course, the answer charge hearing would be listed on a date which allows sufficient time for the completion of the committal brief and a period of at least four weeks following the filing of the committal brief.[1] His arraignment would not occur before 12 weeks from the date of the answer charge hearing.[2]
[1] Criminal Procedure Act 1921 (SA) ss 110(2)(c) and 111(1).
[2] Criminal Procedure Act 1921 (SA) s 120.
Mr Reynolds is a prescribed applicant because he is charged with a choking offence contrary to s 20A of the Criminal Law Consolidation Act 1935 (SA). Section 10A of the Bail Act 1985 (SA) provides:.
10A—Presumption against bail in certain cases
(1) Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.
…
(2) In this section —
prescribed applicant means —
…
(d) an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:
…
(i) section 20A;
…
Mr Reynolds denies the allegations in respect of the November 2021 offending. In his defence, he intends to rely on the evidence of the friend with whom he and Ms B were living at the time. She has told police that she witnessed Ms B act violently against Mr Reynolds but never saw Mr Reynolds assault Ms B. That witness has also told police that Ms B has since developed an affectionate relationship with another man and that Ms B told her: ‘I’ve got [Mr Reynolds] locked up. He’s going to be locked up for a very long time’.
At the conclusion of the hearing on 2 February 2023 I indicated that I was not persuaded that there were special circumstances justifying a grant of bail on the face of the allegations and on Mr Reynolds’ foreshadowed defence, for the following reasons:
·it is not uncommon for historical, sexual-violence offences to be disclosed well after the alleged offending when a complainant finally resolves to approach the police;
·the alleged offending includes two separate choking offences within a year;
·the alleged November 2021 offending was serious both in its violence and degradation of Ms B and in that, if true, it exposes the willingness of Mr Reynolds to engage in cruel and violent offending; and
·the circumstance that Ms B had continued to reside and maintain a relationship with Mr Reynolds was an, unfortunately, all too common feature of violently dysfunctional relationships.
In short, the circumstances of their relationship and the offending exemplify the very reasons for the legislative reversal of the presumption to give bail.
Nonetheless, I reserved my position on whether the length of time it would take for the charges to go to trial might establish special circumstances justifying bail. I adjourned the application to Friday, 10 February 2023 so that there might be negotiations between Mr Reynolds’ lawyers and the Director on whether the trial might be expedited.
On 10 February 2023, when the application was called back on, I was informed that if Mr Reynolds were arraigned on that day, his trial was likely to be listed in March 2024. That is a time between listing and trial of some 13 months. I was also informed that the Director would not lay an ex officio information on the November 2021 offending indictment because, even if the matters were brought on quickly in the District Court, there remained a substantial time to trial and because, in any event, the Director wished to await the results of further investigations and in particular medical investigations relevant to the November 2021 offending.
On the face of it, there would appear to be sufficient evidentiary material to warrant an ex officio information with respect to both sets of offending, and it is desirable for the offending to proceed together because of the potential of cross‑admissibility of evidence. Moreover, I suspect the reports on the investigations would still be received soon after the arraignment and well before the trial date. However, all that is a matter for the Director. Mr Reynolds was willing to cooperate in expediting the trial listing by bringing on ex officio information.
Mr Reynolds is therefore unlikely to be tried until early 2025 or about two years from now. That very long period of detention on bail, through no fault of Mr Reynolds, substantially affects the relative weight of the competing considerations in determining whether there are special circumstances justifying bail.
There are a range of reasons for the currently long time between arraignment and the listing of trials in the District Court. Those reasons include the disruption in the timely hearing of matters during the periods of COVID restrictions and lockdowns. In recent years, even before those restrictions, criminal trials have increased in length and complexity in part because of the increasing prevalence of forensic evidence. It takes time for forensic investigations to be completed, alternate experts are often sought out by the defence, and even if a defence expert is not called, the presentation of forensic evidence, and the examination and cross‑examination of the prosecution experts can be time consuming.
For obvious reasons it is undesirable to have criminal charges heard and determined long after the alleged offending. First, the quality of the administration of justice is diminished because of the effects of the passage of time on the testimony of witnesses. Secondly, the period between offending and trial is particularly difficult and stressful for alleged victims. Thirdly, the accused’s life, too, is placed on hold. The disruption to the accused’s life may, if bail is denied, be particularly drastic but home detention bail, too, has its burdens.
If an accused is ultimately convicted of a serious crime or crimes, a long period of detention and/or the burden of home detention may be taken into account, and to some extent subsumed, in the sentence which is imposed. If the trial does not proceed because over the long period of delay the alleged victim or other witnesses cannot be found or do not wish to cooperate, or if the accused is acquitted, there is no remedy for the time needlessly spent in custody.
Fourthly, and on the other hand, if an accused is granted bail and remains on bail for a long period of time between the offending and a jury’s verdict, then victims, witnesses and the community at large may have been placed at risk for an extended period of time.
Finally, the friends, family and acquaintances of the victims and accused, and many in the community more broadly, are unsettled by the commission of serious offences in their midst. The early resolution of the offences goes some way in ameliorating their concerns.
It is plainly undesirable, therefore, to leave charges of major indictable offences unresolved over a two year period. It follows that every person who has a role in the administration of criminal justice has a heavy responsibility to do all that can be done to expedite trials within the constraints of ensuring a fair trial. That obligation commences with police, who must collect and provide evidentiary material as soon as practicable and with prosecutors who must lay charges promptly. Defence lawyers have an ethical obligation to explain the charges and evidentiary material to their clients as soon as is reasonably practicable. If they are too busy to do so quickly, it is their obligation to so inform the accused and to facilitate the transfer of the file to a legal practitioner who can discharge that duty.
It is not necessary and indeed undesirable to work on the assumption that all matters will proceed according to the same template and timeline within the maximum periods of time allowed by legislation and rules of court. Wherever reasonably and fairly possible, preparatory steps for trial should proceed in parallel and within truncated timelines.
The Director and defence counsel together have an obligation to actively explore resolution by way of a modification of the charges and/or an early plea of guilty. If the matter is not resolved in that way, it is their duty to explore ways in which the trial can be shortened and expedited.
Courts as an institution have an obligation to optimise their listing practices. The individual Judges of the Courts have an obligation to recognise the urgency of addressing the presently very long time between arraignment and trial and to act accordingly.
Finally, the Government has an obligation to review and consider the resources which it has made available for the proper administration of justice and to augment those resources where it is reasonably practicable to do so.
Conclusion
I find that there are special circumstances justifying the grant of bail. The two year period in which Mr Reynolds would remain in custody pending trial, if not granted bail, is a very weighty consideration when there is at least some prospect that the charges may either not proceed, or that he may be acquitted of at least some offences.
I acknowledge also that the long period on bail will cause Ms B anxiety and fear. To ameliorate those risks, I have set particularly stringent conditions of bail. Nonetheless, I recognise that, given the length of time before the charges are finally resolved, there is undoubtedly a risk that one or more of the strict bail conditions I have imposed might be breached. However, the only satisfactory solution to the dilemma posed by this application, and too many more like it, is to reduce substantially the time between charge and trial of major indictable offences.