The King v Welsh
[2023] SASC 152
•23 October 2023
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2023 an application for review of the Magistrate's decision by the Director of Public Prosecutions was allowed and bail was revoked by this Court.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 152Criminal: 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 11 September 2023 Mr Welsh was arrested for breaching that bail condition when C was found in his home (the breach bail offending). The police interviewed C whilst Mr Welsh was held in custody on that charge. Subsequently at 6.49 pm Mr Welsh was arrested for offences, including administering a drug to C and for the rape of, and unlawful sexual intercourse with, C (the sexual offending).
Section 10A of the Bail Act relevantly provides:
(1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.
…
(2) In this section—
prescribed applicant means—
…
(f)an applicant taken into custody in relation to both—
(i)a serious drug offence (within the meaning of section 34 of the Controlled Substances Act 1984); and
(ii)a serious offence against the person (within the meaning of section 74EA of the Summary Offences Act 1953); or
…
On the application for review of the grant of bail, the Director maintained, and Mr Welsh accepted, that the offences of administering a drug, rape and unlawful sexual intercourse for which Mr Welsh was arrested at 6.49 pm, are prescribed offences for the purposes of s 10A(2)(f) of the Bail Act.
Counsel for Mr Welsh submitted, however, that, having been apprehended at 2.23 pm on the breach bail offending, Mr Welsh was not again taken into custody, within the meaning of that term in s 10A of the Bail Act, when he was apprehended at 6.49 pm on the drug and sexual offending. For the reasons which follow the premise is a false one.
I commence by making two observations about context.
The first concerns the practical operation of the Bail Act. Acceptance of the premise would have curious consequences which Parliament is unlikely taken to have intended. This very case illustrates one of them. It is not uncommon for police to make an initial arrest on a charge for the offence which the offender is first observed to be committing (commonly referred to as a holding offence) but, after completing more thorough investigations, to subsequently arrest the offender for additional more serious offences, one, or more, of which might be for an offence which is prescribed by s 10A(2) of the Bail Act. It would be a capricious and arbitrary result if the reversal of the presumption of bail effected by s 10A of the Bail Act depended on whether the investigations first revealed an offence which rendered the arrested person a prescribed applicant, or one which did not.
The second concerns the statutory coherence of the Bail Act. As we shall see, if Mr Welsh’s premise is accepted, a person arrested on additional offences after an initial apprehension would not be eligible to be released on bail in respect of the subsequent offences under s 4 of the Bail Act, unless the phrase ‘taken into custody’ bears a different meaning in that section than it does in s 10A(2) of the Bail Act.
Fortunately, on a proper construction of the section those peculiarities are avoided because a person is ‘taken into custody’ on each occasion on which he or she is arrested on an offence.
An arrest is the restraining of the liberty of a person in respect of an alleged offence in order to ensure that he or she appears before a court to answer the charge.[1] Bail is the release of an arrested person from the custody of law officers into the custody of sureties who are bound to produce that person to answer the charge, or in more modern times, the person’s release on a recognisance to appear to answer the charge.[2]
[1] Jowitt’s Dictionary of English Law (2nd ed, 1977) ‘arrest’ 135.
[2] Jowitt’s Dictionary of English Law (2nd ed, 1977) ‘bail’ 173.
The nature of bail was described in the 36th edition of Archbold in this way: ‘Bail are sureties taken by a person and duly authorised, for the appearance of an accused person at a certain day and place, to answer and be justified by law’.[3] The very nature of a grant of bail is, therefore, to answer a particular charge or charges.
[3] TR Fitzwalter Butler & Marston Garsia, Archbold: Pleading, Evidence & Practice in Criminal Cases 36th ed (Sweet & Maxwell, 1966), [201].
From an early period, the holder of the common law office of Sheriff was empowered with a wide discretion to take, or refuse bail, in respect of persons in his custody. In 1274 the Statute of Westminster I regulated that discretion by prescribing those charged offences in respect of which bail was not available and those on which, it was not. By the Statute Edward III C2 the power to grant bail was conferred on justices and later in 1487, by the statute of 3 Henry VII C3, it was provided that the power to grant bail should be exercised by no less than two justices. Nonetheless it has always been the case that the granting of bail is in respect of each charge on which a person is arrested and taken into custody.[4]
[4] William Holdsworth, A History of English Law IV (Methuen & Co, 1924) 525-527.
Section 4(1)(a)(i) of the Bail Act 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
…
It is to be noted that s 4(1)(a) renders eligible for bail all persons taken into custody on a charge of an offence. In its context, s 4(1)(a)(i) of the Bail Act, is not limited to a person against whom an Information has been laid. The word ‘charged’ is used more broadly to refer to the offence alleged by the arresting officer. There is no statutory provision making a person charged with offences, in respect of which they are arrested whilst already in custody, eligible for bail. The absence of any such provision has the consequence to which I earlier referred if the expression ‘taken into custody’ is given the same restricted meaning in s 4(1)(a)(i) of the Bail Act which, Mr Welsh contends, the phrase must bear in s 10A(2) of the Bail Act.[5] Accordingly, if, as Mr Welsh contends, he was not taken into custody on the later charges, because he was in custody on the first charge, he was not eligible for release on bail at all unless the phrase ‘taken into custody’ is given different meanings in s 10A and s 4 of the Bail Act.[6]
[5] It should also be noted that s 4(1)(e) of the Bail Act renders a person who appears on a summons eligible for release on bail. Such a person is not in custody before appearing in answer to a summons. To say, as s 4(1) does, that such a person may be released on bail appears odd on a first reading. However, it is explicable in that a defendant who is before a court is subject to such orders as the court may make to secure the defendant’s future attendance, including excusing the defendant from the obligation to remain under the control of the court until the matter of complaint is determined by releasing the defendant on bail on a recognisance to appear at a future date.
[6] See Zagar v Wright (1986) 41 SASR 452, at 455 per Cox J, observing that the Bail Act appeared to provide a complete code for those persons falling within its scope.
Only in exceptional cases should Parliament be taken to have used the same phrase to mean quite different things in the same statute. This is plainly not such a case. The expression ‘taken into custody’ is used in s 10A of the Bail Act precisely because its purpose is to identify the subclass of persons who have been taken into custody, and are therefore eligible for bail, but who do not enjoy the presumption of bail enacted by s 10 of the Bail Act. Section 10A of the Bail Act places the onus on that subclass of persons taken into custody on a charge of a prescribed offence to establish special circumstances justifying their release on bail.
That construction is supported by a consideration of the statutory provisions regulating the arrest of persons. Section 75 of the Summary Offences Act 1953 (SA) (the SO Act) provides that a police officer may, without any warrant other than that given by the SO Act apprehend any person who is found committing, or whom the officer has reasonable cause to suspect of having committed, or being about to commit, an offence.
It is a requirement of the common law for a lawful arrest that the arresting officer must, in so far as is reasonably practicable, communicate to the person apprehended the fact of the arrest and the offence for which the person is being arrested. The criterion for eligibility for bail in s 4(1)(a) of the Bail Act – a person who has been taken into custody on a charge of an offence – therefore assumes an apprehension in accordance with s 75 of the SO Act and with that common law requirement.
Section 78 of the SO Act prescribes how a person so arrested must be dealt with:
78—Person apprehended without warrant—how dealt with
(1)Subject to this section, a person who is apprehended without warrant must, as soon as reasonably practicable, be delivered into the custody of—
(a)the police officer in charge of the nearest custodial police station; or
(b)a police officer at a designated police facility.
…
Section 78 is clearly premised on the legal status of the apprehended (arrested) person being that of a person in the custody of the police officer who makes the arrest. On compliance with the arresting officer’s duty, under s 78 of the SO Act, the custody of the arrested person is transferred to the officer in charge of the nearest custodial police station. Importantly, s 78(1) of the SO Act operates, on its terms, on each occasion on which a person is apprehended without warrant. It follows that on each such occasion that person is taken into custody. The Bail Act must be read coherently with s 78 of the SO Act.
The charging of a person, in the narrower, and more strictly correct sense of that term, occurs when an Information is laid in a court with jurisdiction to adjudicate on the Information. That charge is commonly laid after a person’s arrest unless an officer has decided to report the offence so that a summons to appear in court might be issued.
Section 49 of the Criminal Procedure Act 1921 (SA) (the CP Act) provides:
49—Information
(1) Where a person is suspected of having committed a summary offence, an information may be laid in the Magistrates Court in accordance with the rules charging that person with the offence.
(2) An information may be laid by the informant personally or by a legal practitioner or other person duly authorised to lay the information on the informant's behalf.
(3) If the information is laid orally, it must be reduced to writing.
(4) An information charging a person with summary offences only need not be laid on oath unless—
(a)some Special Act requires the information to be laid on oath; or
(b)a warrant for the arrest of the defendant is to be issued.
(5) An information must be filed in the Magistrates Court as soon as practicable after it is laid.
It is in that way that a person arrested by Police, but not granted bail by the officer in charge of the nearest custodial police station, may apply for bail in the Magistrates Court when the Information first comes before a Magistrate.
I acknowledge that there is contrary authority to the conclusion I have reached. In Smith v The Queen[7], Livesey J (as his Honour then was) held that a person was not a prescribed applicant if arrested for an offence of this kind, specified by s 10A of the Bail Act after he or she had already been taken into custody on another offence. Livesey J commented on the use of the phrase ‘taken into custody’ in both ss 4 and 10A and the Bail Act as follows:[8]
[50]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.[9]
[51]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.[10] The use of the term “taken into custody” appears to be deliberate.
[7] Smith v The Queen [2020] SASC 132.
[8] At [50]-[51].
[9] R v Pepper [2018] SASC 184 at [50]-[51], [9] (Stanley J).
[10] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297.
The explanation for the deliberate use of the phrase ‘taken into custody on a charge’ is, in my respectful view, that which I have ventured in [17] above.
In the following passages from the judgment in Smith:[11]
[54]The reason for the distinction [between those cases in respect of which there is a presumption for bail and those in respect of which special circumstance must be established] 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.
[55]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.
[11] Smith v The Queen [2020] SASC 132 at [54]-[55].
Livesey J acknowledged the arbitrariness of a construction which would leave the status of an arrested person as a prescribed applicant dependent on the order on which he or she was apprehended for offences, one of which was prescribed for the purposes of s 10A of the Bail Act.
For the reasons I have given, that consideration weighs heavily against construing s 10A of the Bail Act in a way which arbitrarily abrogates the presumption for bail depending on the timing of the arrests. That construction does not ignore the words ‘taken into custody’; on the contrary it gives them a meaning which allows the Bail Act a coherent and rational operation.
Livesey J’s reasons for his conclusion that for the purposes of s 10A of the Bail Act, a person is only taken into custody once, were as follows:[12]
[56]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”.[13] Here, that means the construction that preserves the statutory presumption in favour of bail.
[57]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.
[12] Smith v The Queen [2020] SASC 132 at [56].
[13] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] French CJ, Kiefel and Bell JJ).
The principle of legality is one of many interpretative tools which are applied in the judicial construction of statutory provisions. It does not demand that the ordinary meaning be given to a statutory provision; indeed, on occasion it may require a reading down of the ordinary meaning of the statutory text. Nor does it mandate the resolution of ambiguity in favour of the liberty of the subject. The principle of legality is one, albeit an important one, of the common law rules of statutory construction. In the proper construction of the words ‘taken into custody’ in s 10A of the Bail Act weight must also be given to:
·the use of the same expression in s 4 of the Bail Act, and the arbitrary consequences of giving different meaning to the same expression when used in different sections of the same Act;
·the common law concept of an apprehension or arrest for an offence;
·the nature of bail;
·the need to read s 78 of the SO Act on the one hand and ss 4 and 10A of the Bail Act coherently.
For the above reasons, I conclude that a person is taken into custody for the purposes of s 10A of the Bail Act on each occasion on which he or she is apprehended by a police officer on suspicion of having committed an offence.
5
0