The King v Welsh - [2023] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

THE KING v WELSH
[2023] SASC 152
Judgment of the Honourable Chief Justice Kourakis
23 October 2023
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
CRIMINAL LAW - PROCEDURE - BAIL - FURTHER APPLICATIONS
Application for review of bail.
On 22 September 2023 the respondent, Mr Welsh, was granted home detention bail in the Elizabeth Magistrates Court. On 27 September 2023 an application for review of the Magistrate's decision by the Director of Public Prosecutions was allowed and bail was revoked by this Court.
On 11 September 2023 at 2:11pm, the respondent was arrested for breaching a bail condition when C was found in his home. While the respondent was in custody, further investigations were made and he was arrested on the same day at 6:49pm for offences, including unlawful sexual intercourse with C. The respondent contended that he had not been taken into custody on offending which would render him a prescribed applicant.
Held (granting the application):
1. The respondent is a prescribed applicant within the meaning of s 10A(2) of the Bail Act 1985 (SA). The respondent has not established special circumstances.
2. A person is taken into custody for the purposes of s 10A of the Bail Act 1985 (SA) on each occasion on which he or she is apprehended by a police officer on suspicion of having committed an offence.
Bail Act 1985 (SA) ss 4, 4(1)(a)(i), 10A; Criminal Procedure Act 1921 (SA) s 49; Summary Offences Act 1953 (SA) ss 75, 78, referred to.
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; R v Pepper [2018] SASC 184; Smith v The Queen [2020] SASC 132; Zagar v Wright (1986) 41 SASR 452, considered.

THE KING v WELSH
[2023] SASC 152
Criminal: Application for Review of Bail

KOURAKIS CJ: On 27 September 2023 I allowed an application for review brought by the Director of Public Prosecutions against the grant of home detention bail to Mr Welsh in the Magistrates Court.
I found that Mr Welsh is a prescribed applicant for the purpose of s 10A of the Bail Act 1985 (SA) (the Bail Act) and therefore could not be allowed bail unless there were special circumstances in his case warranting his release on bail. I found that Mr Welsh had not established those special circumstances. On the application of review, Mr Welsh contended that he had not been taken into custody on offending which would render him a prescribed applicant. I rejected that contention and reserved my reasons, which I now publish, for reaching that conclusion.
On 27 August 2023 Mr Welsh was arrested on charges of trafficking in the sale of a controlled drug to a child [C] and cultivating a controlled drug. He was granted bail on condition that he not have any contact with C.
At 2.23 pm on…

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.

Continue reading The King v Welsh

Details

AGLC: The King v Welsh [2023] SASC 152
Case: [2023] SASC 152
Decision Date: 23 October 2023

CaseChat Overview and Summary

The case involved the King, acting against Welsh, where the primary dispute was the revocation and subsequent review of bail conditions. The matter was heard in the Supreme Court of Queensland. The defendant, Welsh, had been granted bail pending trial, but the prosecution sought to revoke or vary these conditions due to alleged breaches and other developments in the case. The court was required to determine whether the grounds for revocation or variation were sufficiently substantiated and whether the proposed conditions were appropriate given the circumstances.

The legal issues the court had to address included the criteria for revoking or varying bail conditions, the weight to be given to the evidence presented, and the proportionality of any proposed new conditions. The court had to balance the rights of the accused to liberty with the need to ensure the accused would appear for trial and not interfere with witnesses or the administration of justice. Welsh argued that the evidence was insufficient to justify a revocation or variation of bail, while the prosecution maintained that the evidence warranted such action.

The court considered the evidence and arguments from both sides, ultimately deciding that the prosecution had not demonstrated a sufficient basis to revoke or vary the bail conditions. The court found that the evidence did not substantiate the claims of non-compliance or risk of interference with the trial process. The Supreme Court upheld the existing bail conditions, noting the importance of respecting the presumption of innocence and the defendant's right to liberty unless proven otherwise. The court ordered that the existing bail conditions remain in place, and Welsh was to continue on bail pending trial.

Orders