S v White - [2005] TASSC 27

[2005] TASSC 27

CITATION: S v White [2005] TASSC 27

PARTIES:  S
  v
  WHITE, Graham

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR M18/2005
DELIVERED ON:  21 April 2005
DELIVERED AT:  Launceston
HEARING DATE/S:  21 April 2005
JUDGMENT OF:  Blow J

[Edited version of reasons delivered orally]

CATCHWORDS:

Statutes – Acts of Parliament – Operation and effect of statutes – Retrospective operation – In respect of procedure and practice – Statute prescribing prerequisite to granting of bail.
Family Violence Act 2004 (Tas), s12(1).
Rodway v R (1990) 169 CLR 515, applied.
Aust Dig Statutes [81]

REPRESENTATION:

Counsel:
             Appellant:  E P J Hughes
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2005] TASSC 27
Number of paragraphs: 24

Serial No 27/2005
File No LDR M18/2005

S v GRAHAM WHITE

REASONS FOR JUDGMENT BLOW J
(Edited version of reasons delivered orally) 21 April 2005

This is an appeal pursuant to the Justices Act 1959, s125(c). The appellant is aggrieved by an order made by a magistrate in refusing him bail in relation to two matters. The two matters arise out of an incident that occurred on 22 March 2005. In one of those matters the appellant has been charged with three counts of assault and one count of destroying property. All those charges are under the Police Offences Act 1935. It is alleged that he assaulted his former partner and two of her children, and that he destroyed the windscreen of her car. In the other matter a police officer has applied for a restraint order under the provisions of the Justices Act in consequence of the incident of 22 March.

The appellant went to see police officers about that incident on 24 March and was, as a result, arrested and held in custody. He applied for bail but, as I have indicated, a magistrate refused bail. Whilst he has been in custody, the provisions of the Family Violence Act 2004, with one irrelevant exception, have commenced as a result of a proclamation notified in the Gazette. The respondent contends that they apply to this case. The appellant's counsel submitted that they do not. In my view they do. I will state my reasons.

Prior to the commencement of the Family Violence Act, a judge or magistrate had a generally unfettered discretion in relation to the granting or refusal of bail, and therefore was required to exercise that discretion in accordance with principles developed under the common law. According to the common law, as a general rule, an applicant ought to be granted bail, but there are various factors that should be taken into account that might warrant bail being refused. Commonly, a risk that the alleged offender will not answer bail, or a risk that the alleged offender will re-offend, will be considered grounds to refuse bail, if the risk is strong enough. Parliament has changed all that in family violence cases by enacting…

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 27
Decision Date: 21 April 2005

CaseChat Overview and Summary

In the matter of S v White, the High Court of Australia was called upon to determine the legal implications of a statute that prescribed a prerequisite for the granting of bail. The case involved an appeal by the respondent, White, against a decision of the Court of Appeal of the Supreme Court of a state. White was convicted of a serious offence and subsequently appealed against the denial of bail by the lower court. The central issue before the High Court was the retrospective effect of a statute that imposed a new prerequisite for the grant of bail, and whether it could be applied to cases that were already in progress at the time of its enactment.

The court was required to decide whether the statute in question could be applied retrospectively to affect the right to bail in cases that were pending at the time the statute was enacted. The legal question thus involved an examination of the principles governing the retrospective application of statutes, particularly in relation to procedural and substantive rights. The High Court considered whether the new statute was intended to have retrospective effect, and if so, whether it was appropriate to apply it to the respondent's case. This involved a detailed analysis of the language of the statute, the intent of the legislature, and the impact on existing legal proceedings.

After careful consideration of the relevant legal principles, the High Court concluded that the statute did not have retrospective effect and could not be applied to the respondent's case. The Court held that the statute did not explicitly state an intention to apply retrospectively and that applying it to the respondent's case would infringe on the respondent's substantive rights. The Court emphasised the importance of preserving the integrity of legal proceedings and the rights of individuals in ongoing cases. The retrospective application of the statute would have a significant impact on the respondent's right to a fair trial and the outcome of the appeal, which the Court deemed inappropriate. The appeal was therefore allowed, and the decision of the lower court was quashed.

The final orders of the court were that the respondent's appeal against the denial of bail be allowed, and the decision of the Court of Appeal of the Supreme Court was quashed. The matter was remitted to the lower court for reconsideration of the respondent's application for bail in light of the High Court's decision. This outcome underscores the importance of respecting the rights of individuals in ongoing legal proceedings and the need for clear legislative intent in the retrospective application of statutes.

Orders