Smith v The Queen

Case [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

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Smith v The Queen [2020] SASC 132
Case
[2020] SASC 132
Decision Date

CaseChat Overview and Summary

In the case of Smith v The Queen, the applicant, Mr Smith, sought a review of his bail conditions following an arrest and subsequent charges of drug trafficking and possession of cash suspected of being obtained by unlawful means. The matter was heard by the Supreme Court of South Australia, with the primary concern being the revocation of the applicant's bail.

The court was tasked with determining whether the applicant, who had been previously charged with similar offences and was currently on bail, should have his bail revoked or varied in light of new allegations. The legal issues included whether the seriousness of the new charges and the risk of reoffending justified the revocation of bail, as well as the consideration of the applicant's likelihood of absconding or reoffending if released.

The court reviewed the evidence presented, which included the applicant's prior criminal history, the nature of the new charges, and the circumstances surrounding the recent arrest. The court emphasised that the review of bail is a de novo process, where the decision is made afresh based on the current evidence. In this instance, the court found that the applicant's history of drug-related offences and the serious nature of the new charges, coupled with the potential risk of reoffending or absconding, warranted the revocation of bail. The court concluded that despite the presence of guarantors willing to reside with the applicant, the risk of reoffending was too significant to warrant continued bail.

The final orders of the court were that the application for the review of bail filed on 29 June 2020 was dismissed, and the applicant's bail was revoked. The court found that the applicant's likelihood of absconding or reoffending, along with the seriousness of the new charges, justified the decision to refuse bail.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

LIVESEY J
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.

Ratio Decidendi

Legal Principle Established

Established by: LIVESEY J

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