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
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- [2020] SASC 132
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CaseChat Overview and Summary
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: LIVESEY J
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