Smith v The Queen - [2020] SASC 132

Supreme Court of South Australia
(Criminal: Application)
SMITH v THE QUEEN
[2020] SASC 132
Judgment of The Honourable Justice Livesey (ex tempore)
9 July 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of bail decision.
On 4 October 2019 the applicant was charged with trafficking. He was taken into custody and released on bail. A condition of his bail was that he not possess any firearm or ammunition (“the firearms condition”).
On 13 May 2020, whilst the applicant was on bail, he was arrested and taken into custody after a search revealed illicit substances, namely methylamphetamine, cocaine and MDMA (“the drug trafficking offence”). The applicant was refused police bail. Later that day, a search was conducted at his residence which, among other things, revealed ammunition (“the firearms offence”). He was charged on two Informations. The first Information contained the drug trafficking offence and the second Information contained the firearms offence.
At a hearing before a Magistrate in relation to the applicant’s alleged 13 May 2020 offending he was refused bail. He was remanded in custody only on the drug trafficking offence. In this Court, the applicant seeks a review of the decision to refuse him bail.
The Crown contended that the applicant was a “prescribed applicant” who is to be denied bail unless the applicant can establish special circumstances justifying release on bail. A “prescribed applicant” is defined by s 10A(2)(e) to include “an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 3 Division 3 of the Sentencing Act 2017)”.
It was common ground between the parties that the applicant was alleged to have committed a “serious firearm offence” and the debate centred on whether the applicant had been “taken into custody in relation to” that offence. The applicant submitted that he had been “taken into custody in relation to” the drug trafficking offence, not the serious firearms offence, because he was already in custody at the time that charge was laid. As a consequence, the applicant was not a “prescribed applicant” and there was a presumption in favour of bail. The respondent contended that a broad and practical approach should be taken to the words used and the applicant came within the s 10A(2)(e) definition.
Held, dismissing the application for bail:
1. The applicant is not a “prescribed applicant” within the meaning of s 10A(2)(e) of the Bail Act 1985 (SA) because he was not “taken into custody in relation to” a serious firearms offence.
2. Notwithstanding the presumption in favour of bail, bail is refused. The offending is very serious and there is a real prospect that, if released, the applicant may abscond or reoffend.
Bail Act 1985 (SA) s 4, s 10, s 10A, s 11, s 14; Sentencing Act 2017 (SA), s 49, referred to.
Forrest v Huffa [1968] SASR 341; Lavers v Fauser (1986) 41 SASR 593; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; R v Lombardi (2013) 115 SASR 577; Zagar v Wright (1986) 41 SASR 452, considered.

SMITH v THE QUEEN
[2020] SASC 132
LIVESEY J (ex tempore):
Introduction

Mr Trevor William Smith (the applicant) is now 55 years of age. He seeks a review of the refusal by a Magistrate to grant him bail on 14 May 2020 pursuant to s 14 of the Bail Act 1985 (SA).
The applicant relies on the fact that he is not a “prescribed applicant” within the meaning of s 10A of the Bail Act 1985 (SA), that he is gainfully employed, that there is a presumption of innocence and on what is described somewhat loosely as “COVID-19 delays”. It is said that any purported risk he poses to the safety of the community can be alleviated by strict bail conditions, including a condition of home detention.
The Crown disputes the proposition that the applicant is not a “prescribed applicant”.
It is well settled that a bail review is in the nature of an appeal de novo, to be determined on the basis of the information before this Court, without regard to the manner in which the discretion was exercised by the bail authority, substituting whatever decision this Court would have made had it first been hearing the application for bail.[1]
[1] Lavers v Fauser (1986) 41 SASR 593, 595-596 (O’Loughlin J).
The evidence regarding the application
I have had regard to an affidavit affirmed by Mr Jason Winter on 30 June 2020, an affidavit from Ms Angela Yvonne Gransden, the agency COVID-19 Coordinator for the Department of Correctional Services, affirmed 24 June 2020, and I have been provided with a letter dated 2 July 2020 from Mr Craig Wehr, Managing Director of Liftform, the applicant’s employer.
The affidavit evidence discloses relevant prior charges.
On 4 October 2019 the applicant was charged with trafficking in a controlled drug, namely methylamphetamine and MDMA, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). On the same day he was charged with possessing $2,570 in cash, which it is alleged was reasonably suspected of having been obtained by unlawful means.
Police allege that at around 1:44 pm on 4 October 2019 they attended premises under a general search warrant and located a backpack in the possession of the applicant. A search of that backpack disclosed 0.78 grams of MDMA, 2.2 grams of methylamphetamine in a plastic tub, 1.9 grams of methylamphetamine in a plastic resealable bag inside a metal tin and 0.1 grams of methylamphetamine on weight scales, together with numerous clean empty bags and two “tick lists”. The cash was found inside the applicant’s wallet.
A search of the applicant’s phone revealed text messages which suggested that he was engaged in the sale of drugs for cash.
On the same day, the applicant was released on police bail, the conditions of which included agreement to reside at a unit in Klemzig and agreement not to possess any firearm or ammunition imposed by virtue of s 11(1)(a) of the Bail Act 1985 (SA) (the firearms condition).
On 8 November 2019 a Magistrate granted bail in lieu of police bail. A standard-form bail agreement was entered into in the same terms as the police bail, again with the firearms condition.
The subject allegations
The applicant was on bail on 13 May 2020. At about 12:20 pm he was stopped by police in connection with a suspected traffic offence.
After pulling the applicant over, police allege that they saw him reach for a bag in the passenger foot-well of his motor vehicle. He was directed to step away from the vehicle but it is alleged that he again reached for the bag. At that stage the police alleged that the applicant appeared nervous and he is said to have admitted that there may be “some dope in the bag”.
A search of the bag, the applicant and the motor vehicle under the Controlled Substances Act 1984 (SA) is alleged to have revealed 3 grams of what was suspected to be methylamphetamine, 5.08 grams of cocaine, 0.5 grams of MDMA, two blister packs containing eight Oxycodone tablets, one blister pack containing 10 Diazepam tablets, one blister pack containing four dexmethylphenidate tablets, numerous empty resealable bags, scales and two mobile phones. As well, the applicant had $1,500 in his wallet and a driver’s licence in the name of “Kelan Jones”, albeit with the applicant’s photograph. Police allege that these items were reasonably suspected to have been obtained by unlawful means.
The applicant was then arrested and taken to the City Watch House. He was refused police bail.
Later that day a search was undertaken of the applicant’s unit in Klemzig under a general search warrant. During that search police located two police-style rigid-side batons, five OC defensive sprays, a homemade taser, one empty .22 gauge firearm magazine, two rounds of loose firearm ammunition (US 30 calibre) and a large amount of prescription medications.
Police allege that there were no prescriptions for the prescription medications and that they comprised 39 Tramadol tablets, 192 Lyrica tablets, 21 Metronide tablets, 78 Diclofenac Sandoz tablets, 37 Oxycodone tablets, 27 MC Contin tablets, 10 Mirtazapine tablets, 34 Amitriptyline tablets, 12 Zydol tablets, 24 Motuliuni tablets, 10 Aurorix tablets, two Mersyndol tablets, two Neulactil tablets, five Mylan tablets, two Suboxone tablets, two Panadeine Forte tablets and one Endone tablet.
When the matter was called over on 16 June 2020, an application was made for a long adjournment to enable the matter to be listed with the “other major indictable file”. A committal hearing appears to have been listed for 13 October 2020. On 23 June 2020 the summary offences were being negotiated and the matter was adjourned to 28 July 2020.
The subject charges
In addition to the pending charges associated with the October 2019 arrest, following his further arrest on 13 May 2020 the applicant has been charged with the following offences:
1Three counts of trafficking in a controlled drug (methylamphetamine, cocaine and MDMA);
2Unlawful possession ($1,500 in cash and a driver’s licence in the name of Kelan Jones);
3Possess prescription medication (Oxycodone, Diazepam and Dexmethylphenidate);
4Possess dangerous article (homemade taser and five defensive sprays);
5Possess offensive weapon (two police-style rigid batons);
6Possess firearm ammunition (two rounds of US 30 calibre ammunition whilst not being the holder of a firearms licence or permit);
7Fail to comply with bail (being a breach of the 7 April 2020 bail agreement under which by condition 4 the applicant agreed not to possess a firearm, ammunition or any part of a firearm relating to the empty .22 gauge magazine and two rounds US 30 calibre ammunition); and
8Possess prescription medication being the Tramadol, Lyrica, Metronide, Diclofenac Sandoz, Oxycodone, MC Contin, Mirtazapine, Amitriptyline, Zydol, Motuliuni, Aurorix, Mersyndol, Neulactil, Mylan, Suboxone, Panadeine Forte and Endone without any authority or reasonable excuse.
Bail refused by a Magistrate
On 13 May 2020 the applicant was refused police bail. Police submitted that bail should be refused for the following reasons:
2. It is likely that the applicant would abscond if released on bail for the following reasons:
(a)     history of prior breaches of bail:
The Applicant has had 20 convictions against the Bail Act and has been subject to 23 warrants of Apprehension.
…
(d)     any other reason:
The Applicant has 4 matters pending before the Court for similar offending and breach of bail.
3. It is likely that the applicant would offend again if released on bail for the following reasons:
(a)prior offences:
The Applicant has an extensive and varying criminal history incl: Bail(20), Drug(5), Traffic(50), Violence(9), Weapons(3), Firearms(12), Dishonesty(12).
(b)     other reasons that make the applicant likely to re-offend:
The offending on this occasion is similar to that already being assessed by the court.
Police also maintained that the charges were serious and the applicant is a poor candidate for further release on bail because of a poor bail compliance history or attendance at court when bailed or summoned.
At a hearing in the Magistrates Court on 14 May 2020 a Magistrate refused bail, the reasons being:
1Seriousness of alleged offences;
2Defendant allegedly continuing to offend while on bail for similar matters;
3Poor history of bail compliance; and
4Presumption against bail in any form rebutted.
The applicant’s antecedents
The applicant has a five-page list of antecedents dating back to 1984 commencing with possession of Indian hemp and possessing implements for which he was convicted and fined.
In 2003 he received a suspended sentence in connection with dishonesty offences and driving whilst disqualified offences. In 2006 he received a suspended sentence for dishonestly taking property without consent. And in 2011 he received another suspended sentence for being unlawfully on premises and possessing an article to commit an offence.
The applicant received another suspended sentence in 2012 for aggravated assault without a weapon. In 2013 he served 38 days’ imprisonment for two counts of driving whilst disqualified and in 2014 he was given a head sentence of four years and seven months’ imprisonment with a non-parole period of nine months for firearm offences.
In addition I have been given a lengthy warrant history disclosing various failures to attend court dating back to 1991.
The antecedent history and the warrant history include names other than those of the applicant, reflecting variations of his name and date of birth. I was told that this may be due to recording errors made by the police over the years.
The home detention assessments
Prior to the hearing on 2 July 2020 an attempt was made to assess the suitability of the applicant’s premises for home detention bail. Officers from the Department for Correctional Services provided me with a report to the effect that they were not able to gain access. Accordingly, the hearing of this matter was adjourned to 9 July 2020 so that an assessment could proceed.
The results of that assessment dated 9 July 2020 have now been provided. By that assessment the unit at Klemzig was assessed as being suitable. In addition I was told by counsel for the applicant that Ms O’Keefe and Mr Martin and his three children are presently residing at the applicant’s premises so as to assist him. I was also advised that Ms O’Keefe and Mr Martin are prepared to act as guarantors and, if necessary, they will continue to reside with the applicant.
Submissions on this bail review
On the hearing of this review submissions were made by counsel for the applicant and counsel for the Director of Public Prosecutions.
Prescribed applicant?
The first matter to be addressed concerns the submission that the applicant is a “prescribed applicant” with the result that by virtue of s 10A(1) of the Bail Act 1985 (SA) bail is not to be granted unless “the existence of special circumstances justifying the applicant’s release on bail” are demonstrated by the applicant.[2]
[2] See, by way of example, R v Lombardi (2013) 115 SASR 577 (Kourakis CJ); Lillyman v The Queen [2020] SASC 55 (Kourakis CJ) and Butler v The Queen [2020] SASC 74 (Kourakis CJ).
The Crown’s submissions commence with the definition of a “prescribed applicant” in s 10A(2)(e):
prescribed applicant means—
…
(e)an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 3 Division 3 of the Sentencing Act 2017) …
By s 49(1)(e)(i) of the Sentencing Act 2017 (SA) a “serious firearm offence” is an offence under the Firearms Act 2015 (SA) committed while the defendant “is on bail (being bail that was, at the relevant time, subject to the condition imposed by section 11(1)(a) of the Bail Act 1985)”.
Given the firearms condition to which I have referred there is no issue between the parties that the applicant is facing a “serious firearm offence” within the meaning of the Sentencing Act 2017 (SA) and, in consequence, within the meaning of the Bail Act 1985 (SA).
The debate between the parties centred on whether the applicant has been “taken into custody in relation to” that offence.
It was submitted by the Crown that a broad and practical view of those words should be taken. In support of that submission I was referred to transcript of a hearing that took place before Doyle J in the matter of R v Benbolt on 29 May 2020. I was referred in particular to a passage at page 6 of that hearing and the following which was said in the course of argument by his Honour:
I’ve never previously focused on that use of the phrase ‘taken into custody’ but that’s used throughout the definitions in sub-s. (2) of s.10A. It would be curious if [that] was to be taken too literally to mean anything other than ‘is in custody’ or ‘is presently in custody’ in relation to those offences.
Later in that hearing his Honour delivered a ruling in relation to the status of that applicant as a “prescribed applicant”. It is clear from the terms of that ruling that the circumstances of that case are distinguishable, amongst other reasons, because the applicant in that case came within s 10A(2)(ba) of the Bail Act 1985 (SA).
In the circumstances I do not regard the observations made by his Honour, or his Honour’s ruling, as binding upon me.
The applicant has submitted that the ordinary meaning of the words “taken into custody in relation to”, together with the factual circumstances of this case demonstrate that the matter does not come within s 10A(2)(e).
It was emphasised by the applicant that he had been taken into custody in connection with the trafficking offending at around 12:20 pm on 13 May 2020 and that, ultimately, it was this offending which was the subject of the trafficking charge on which the applicant has since been held and remanded from time to time.
The applicant submitted that there were two Informations containing separate charges. The trafficking charge was on the Information AMC-20-598 whereas the serious firearm offence was on the second Information AMC-20-599. Because the applicant was not in custody in connection with the second Information no bail application was being made in connection with it and, in consequence, I was told that that matter is not before me.
The disposition of the bail review
In my view, the Court must approach the proper interpretation of s 10A having regard to the ordinary principles of statutory construction applicable to legislation which is concerned with the liberty of the subject. In North Australian Aboriginal Justice Agency Ltd v Northern Territory the High Court explained:[3]
[3]    North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] (French CJ, Kiefel and Bell JJ).
Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision.[4] Further, the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law.[5] That presumption, which is well established, has been called “a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted”.[6] It is a presumption whose longstanding rationale is that it is highly improbable that parliament would “overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”.[7] Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen:[8]
“[C]urial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.”
It is a principle of construction which is not to be put to one side as of “little assistance” where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written:[9]
“Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill‑considered interference or restriction.”
(Citations in original.)
[4]    Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[5]    Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Australian Crime Commission v Stoddart (2011) 244 CLR 554, [182] (Crennan, Kiefel and Bell JJ) and Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, [30] (French CJ, Crennan and Kiefel JJ).
[6]    Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, [21] (Gleeson CJ). See also K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, [46]-[47] (French CJ) and Australian Crime Commission v Stoddart (2011) 244 CLR 554, [182] (Crennan, Kiefel and Bell JJ).
[7]    Bropho v Western Australia (1990) 171 CLR 1, 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), quoting Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J); Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ) and Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, [21] (Gleeson CJ).
[8]    Coco v The Queen (1994) 179 CLR 427, 437-438 (Mason CJ, Brennan, Gaudron and McHugh JJ).
[9]    T R S Allan, “The Common Law as Constitution: Fundamental Rights and First Principles”, in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia, (Federation Press, 1996) 146, 148.

The question of bail was formerly a matter for the inherent jurisdiction of the Supreme Court, an aspect of “its general power to protect the liberty of the subject”.[10] For many years, the exercise of that jurisdiction has been regulated by iterations of the Bail Act 1985 (SA), a paradigm example of legislation concerning the liberty of the subject. Whether the inherent jurisdiction still exists has been doubted, at least with respect to the applicants described in s 4 of the Bail Act 1985 (SA).[11]
[10] Forrest v Huffa [1968] SASR 341, 342-343 (Bray CJ), relying in part on the writ of habeas corpus and s 17 of the Supreme Court Act1935 (SA). However, it was also held that the inherent jurisdiction did not permit the Supreme Court to vary bail granted by a Magistrate, see Dunstan v Crown Solicitor (SA) (1980) 24 SASR 64 (White J).
[11] Zagar v Wright (1986) 41 SASR 452, 455 (Cox J).
Ordinarily, there is a presumption in favour of the grant of bail under the Bail Act 1985 (SA). That presumption is rendered subject to the matters set out in s 10(1) of the Bail Act 1985 (SA). By contrast, in the case of a “prescribed applicant”, the presumption is against the grant of bail. That presumption is rendered subject to proof of the existence of “special circumstances”.[12]
[12] Bail Act 1985 (SA), s 10A(1).
The categories of “prescribed applicants” in s 10A(2) comprise those whom Parliament has assessed represent a greater risk to the safety of the community than other applicants and who must, in consequence, overcome the presumption against bail by showing “special circumstances”.[13] Whilst it is clearly Parliament’s intention that the statutory presumption in favour of bail be reversed in the case of a “prescribed applicant”, exactly who falls within that class is defined exclusively by reference to the definitions in s 10A(2).
[13] R v Lombardi (2013) 115 SASR 577, [22], [24] (Kourakis CJ).
In broad terms, there appear to be three categories of “prescribed applicant” within s 10A(2). The first category comprises those who are a “suspect” in respect of “serious and organised crime” or “terror”. The second category comprises those applicants who have been “charged” with “an aggravated offence involving physical violence” where there is an alleged contravention of an intervention order “and the offence lay within the range of conduct that the intervention order was designed to prevent”. The first two categories are each ultimately defined by the nature of the charge laid.[14]
[14] See the definitions for each in ss 3A and 3B of the Bail Act1985 (SA).
However, the third and largest category comprises those applicants who are “taken into custody in relation to” various specified offences, including a “serious firearm offence”. In contrast to a serious and organised crime suspect, or a terror suspect, or an applicant charged with an aggravated offence involving physical violence, this third category is defined in part by reference to that which led to the applicant’s loss of liberty. That is, this category is defined not merely by the nature of the charge, but also by whether the applicant’s loss of liberty is attributable to that charge.
The term “taken into custody on a charge of an offence” was used in s 4(a) when the Bail Act 1985 (SA) was first introduced. The term “taken into custody” was also used in s 10(1) of that Act as originally introduced. Section 4(1) now provides:
4—Eligibility for bail
(1)     The following persons are eligible for release on bail under this Act:
(a)     a person who has been taken into custody—
(i)      on a charge of an offence; or
(ii)     in the case of a child—on suspicion of having committed an offence;
(b)     a person who has been convicted of an offence but has not been sentenced for that offence;
(c)     a person who has been convicted of, and sentenced for, an offence but has not exhausted all rights of appeal against the conviction or sentence, or to have it reviewed;
(d)     a person who is appearing before a court for allegedly failing to observe a condition of recognizance;
(e)     a person who appears before a court in answer to a summons (including a person who so appears to be a witness);
(f)     a person who has been arrested on a warrant and is appearing or is to appear before a court as a witness;
(g)     a person arrested on a warrant issued under section 19A;
(ga)   a person who has been arrested without warrant under section 19B;
(h)a person who is no longer a serious and organised crime suspect because of the operation of section 3A(2);
(i)      a person who has ceased to be a terror suspect.
The difference seems to be between those applicants taken into custody on a charge and those who have been arrested for other reasons or who no longer qualify as a serious and organised crime suspect or a terror suspect.
It is not difficult to see why the term “taken into custody on a charge” was used when defining who might qualify as an applicant for bail under the Bail Act 1985 (SA). The right to apply for bail directly follows from the loss of liberty associated with arrest and the fact that a charge has been laid. In context, the charge obviously need not be proved before the right to seek bail arises.[15]
[15] R v Pepper [2018] SASC 184, [9] (Stanley J).
Having said that, it is difficult to see why the same term was used when later defining the category of “prescribed applicants” to which I have referred. It must be recalled that these applicants will already have qualified under s 4, and the issue is whether they are, or are not, to enjoy the presumption in favour of the grant of bail. Nevertheless, the use of the same term for around 35 years does not suggest oversight or error.[16] The use of the term “taken into custody” appears to be deliberate.
[16] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297.
The words “in relation to” are of wide import. The requisite causal connection between the requisite charge and the loss of liberty will be satisfied even where the loss of liberty is not solely attributable to the specified charge:[17]
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the [Act]. What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than coincidental or mere connexion — something in the nature of a relevant relationship — is necessary: see Reg. v. Ross-Jones; Ex parte Green.
(Footnote omitted.)
[17] O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 367 (Dawson J). See also 374 (Toohey and Gaudron JJ) and contra, 364 (Brennan J) and 376 (McHugh J): “[t]he prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters”.
For example, it will be sufficient that the specified charge represents one of a number of charges for which an accused is “taken into custody”, or where the arrest is in relation to offending which is later the subject of a specific charge. Nonetheless, the statutory test requires that it be shown, as a matter of fact, that the accused was “taken into custody in relation to” the specified offence.
The reason for the distinction seems to be that where the loss of liberty has been associated with the offences specified, that applicant is thought to represent a greater risk to the community with the result that the applicant comes within the class against whom there is a presumption against the grant of bail. Having said that, it is hard to see why an applicant arrested and taken into custody on charges other than those specified in s 10A(2) represents any less serious risk where, as in this case, later information supports the laying of charges which do come within s 10A(2). That approach, however, would require a construction that ignores the words used.
One cannot ignore the words actually used. For example, it will not be sufficient to show that the accused could have been, but was not in fact, taken into custody in relation to a specified offence. Likewise, it would not be sufficient to show that the loss of liberty could later be justified by the laying of charges regarding offences specified within s 10A(2) but where the loss of liberty is not attributable to the offending the subject of those later charges. Whilst it may be accepted that whether an applicant is “taken into custody in relation to” a specified offence, as distinct from merely later charged with such an offence, may sometimes be a matter of happenstance, that remains the legislative criterion.
In my opinion, these considerations do not suggest any scope for a broad or practical approach. The principle of legality requires that the ordinary meaning be given to the words actually used by Parliament when construing this category of “prescribed applicant”. Even if there were ambiguity, I must apply the “construction … which involves the least interference with … liberty”.[18] Here, that means the construction that preserves the statutory presumption in favour of bail.
[18] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] French CJ, Kiefel and Bell JJ).
On the facts of this case, I find that the applicant was not “taken into custody in relation to” his serious firearms offence. At the hearing of this matter, there appeared to be no dispute about that. The applicant was taken into custody and remains in custody in connection with a major indictable offence of trafficking in cocaine, methylamphetamine and MDMA.
In these circumstances, I am not satisfied that the applicant is a “prescribed applicant” within the meaning of s 10A(2) of the Bail Act 1985 (SA). That means that the applicant’s application must be considered in the context of a presumption in favour of bail.
The second matter that I must consider is the affidavit from Ms Gransden. She deposes to the various procedures undertaken to both guard against and prepare for the potential for a COVID-19 outbreak in the nine prisons within the South Australian Correctional Services system. I was not furnished with any evidence suggesting that the applicant is at particular risk of COVID-19 and it was not suggested that there is any reason to doubt the evidence of Ms Gransden. However, it was emphasised that the applicant is presently employed and all employment must be regarded as being at particular risk during this pandemic.
I propose to proceed on the basis that, though there is presently a pandemic, the various restrictions applicable in South Australia are progressively being removed and there has been no suggestion of any outbreak in any of the South Australian prisons to date. I also propose to proceed on the basis that the applicant’s employment is particularly precarious at this time.
Thirdly, I must consider the applicant’s personal circumstances. Whilst I have not received any affidavit evidence, I have received a letter from his employer and it is fair to say that his employer, whilst very disappointed about the applicant’s present predicament, remains supportive. In submissions I was told that the applicant had been employed with Liftform since 2017 in the construction industry, working full-time between 7 am and 3 pm each day. How that corresponds to the arrests made on Friday, 4 October 2019 at 1:44 pm and on Wednesday, 13 May 2020 at 12:20 pm was not explained and I need not delay to consider that. I am prepared to accept that, without bail of some sort, the applicant’s employment and continued occupation of his rental property will be in jeopardy.
Fourthly, I must proceed pursuant to s 10(1) of the Bail Act 1985 (SA) on the basis that “subject to this Act” I should “release the applicant on bail” unless I consider that he should not be released having regard to:
(a)    the gravity of the offence in respect of which the applicant has been taken into custody; and
(b)    the likelihood (if any) that the applicant would, if released—
(i)abscond; or
(ii)offend again; or
(iii)interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or
(iv)commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and
(c)    [repealed]
(d)    any need that the applicant may have for physical protection; and
(e)    any medical or other care that the applicant may require; and
(f)     any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and
(g)    any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
Fifthly, I accept that in light of the indication regarding the preparedness of guarantors both to stand as guarantors and to reside with the applicant, there is some measure of protection against the risk of absconding or reoffending. Having said that, in light of the history to which I have referred, I cannot entirely exclude that risk.
Conclusion
In the circumstances of this case I have determined that, in the exercise of my discretion, the application for review should be dismissed and bail should be refused notwithstanding the presumption in favour of bail because:
1The offences are very serious and come soon after earlier, similar offending in October 2019; and
2There is a real prospect that if released, the applicant may abscond or again offend.
I should add that, even if I were of the view that the applicant was a “prescribed applicant”, the circumstances before me are not properly described as “special circumstances” as distinct from the ordinary and foreseeable consequences of having been taken into custody.
The order of the Court is that the application for the review of bail filed on 29 June 2020 is dismissed.