Thwaites v The Queen

[2020] SASC 130

Supreme Court of South Australia

(Criminal: Application)

THWAITES v THE QUEEN

[2020] SASC 130

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.

Mr Thwaites was charged with multiple offences including aggravated violent offending, false imprisonment, aggravated possessing of a category H firearm and taking part in a humiliating or degrading act.

Mr Thwaites was arrested on 4 September 2019. He was denied bail in the Magistrates Court and now seeks a review of the Magistrate’s decision.

Section 10A(1) of the Bail Act 1985 (SA) provides that 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. Mr Thwaites concedes that he is a “prescribed applicant” but contends that a number of special circumstances exist to rebut the s 10A(1) presumption against bail including the effect that COVID-19 has had on his ability to prepare his defence, his risk of contracting the illness from other prison inmates, his loss of residence and loss of contact with his son, the strength of the prosecution case and the fact that his uncle is terminally ill.

Held, dismissing the application:

1. The matters raised by the applicant do not comprise “special circumstances”. They are part of the ordinary and foreseeable consequences of incarceration.

2. Bail is refused.

Bail Act 1985 (SA) s 10A, s 14; Criminal Law Consolidation Act 1935 (SA) s 20, s 24, s 137; Firearms Act 2015 (SA) s 9, s 25; Firearms Regulations 2017 (SA) Sch 1; Summary Offences Act 1953 (SA) s 26B, referred to.
Lavers v Fauser (1986) 41 SASR 593; Lillyman v The Queen [2020] SASC 55; R v Buhlmann [2010] SASC 123; R v Doyle [2014] SASC 199; R v Lombardi (2013) 115 SASR 577; R v P, AC (2005) 158 A Crim R 113; R v Perre [2017] SASC 102; Saywell v Yiu (1976) 14 SASR 56, considered.

THWAITES v THE QUEEN
[2020] SASC 130

LIVESEY J (ex tempore):

Introduction

1. Mr Clinton Joseph Thwaites (the applicant) is 27 years of age and unemployed. He seeks a review of the refusal by a Magistrate to grant him bail on 6 March 2020 pursuant to s 14 of the Bail Act 1985 (SA). It appears to be common ground that the applicant is a “prescribed applicant” within the meaning of s 10A(2) of the Bail Act 1985 (SA).

2. The applicant contends:

   The grounds relied upon by the applicant are the Magistrate erred in finding the seriousness of the alleged offending and the need to protect the witness and the community outweighed the defendant’s special circumstances and right to bail.

3. Of course, it is well settled that the review is in the nature of an appeal de novo.[1] It must be determined on the information before this Court without regard to…