Thwaites v The Queen
[2020] SASC 130
•9 July 2020
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 130LIVESEY J (ex tempore):
Introduction
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).
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.
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 the manner in which the discretion was exercised by the bail authority. This Court must substitute whatever decision this Court would have made had it been the Court hearing the initial application for bail.[2]
[1] R v Doyle [2014] SASC 199, [11] (Sulan J); R v P, AC (2005) 158 A Crim R 113, [17] (Bleby J) and Lavers v Fauser (1986) 41 SASR 593, 595 (O’Loughlin J).
[2] Lavers v Fauser (1986) 41 SASR 593, 595-596 (O’Loughlin J).
The prior decisions on bail
Magistrate McGrath refused bail on 6 March 2020. The reasons she gave were as follows:
1The seriousness of the allegations; and
2The need to protect the complainant and the community.
Subsequently, Magistrate Sheppard also refused bail on 14 March 2020 and the reasons she gave were as follows:
1Absence of relevant special circumstances;
2Seriousness of the allegations; and
3Need for protection of the victim.
The evidence available on the review
Before the hearing I was supplied with an affidavit affirmed by the applicant on 22 June 2020, an affidavit affirmed by his solicitor Ms Heidi Salvemini on 26 June 2020 and an affidavit sworn by Ms Sarah Foley on behalf of the Director of Public Prosecutions on 30 June 2020.
At the hearings last week and today I have also been supplied with:
1An affidavit of Angela Yvonne Gransden, affirmed 24 June 2020, who describes herself as the “Agency COVID-19 Coordinator for the Department of Correctional Services”;
2An affidavit of Thomas Perks, Detective Brevet Sergeant of Police, affirmed 14 February 2020 to which was annexed a number of photographs, including a photograph which it is alleged depicts the applicant with the complainant;
3A further affidavit of Thomas Perks, also affirmed on 14 February 2020 annexing further photographs including a photograph of the gold Ford Territory as well as photographs of the VIN plate for that gold Ford Territory and photographs of a handgun, being the handgun the subject of the charges, which I will later address;
4A bundle of photographs which it is conceded represents merely a selection of photographs found on a mobile phone which is the same source as the photographs the subject of the Perks’ affidavit evidence;
5An affidavit from Luke Edward Sibbons, Constable of Police, affirmed 16 October 2019 regarding surveillance undertaken on 4 September 2019 in which the applicant was seen to be driving the Ford Territory for a short period during the early afternoon;
6An affidavit of Nicholas Joseph Portolesi, Constable of Police, affirmed 13 September 2019 regarding the same surveillance;
7A Google map showing the apparent travel of the Ford Territory on 4 September 2020;
8The apprehension report regarding an earlier instance in which the applicant breached a term of home detention on 11 April 2017;
9A Forensic Science SA DNA report dated 11 March 2020 which was inconclusive as regards the presence of DNA on the firearm because there was very low or no DNA to be analysed on that firearm; and
10An affidavit of Andrew McIntyre, Constable of Police, affirmed 27 October 2019 regarding the search of the Ford Territory on 4 September 2019 in which it is not made clear whether the relevant firearm was or was not concealed.
The subject charges
The applicant has been charged on Information with others as follows:
1An aggravated offence of committing theft using force contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that the applicant and others threatened the use of force against the complainant as well as used or threatened to use an offensive weapon so as to commit the theft of three bags, a socket set, Allen keys, a mobile phone, a wallet and its contents and tobacco between 6 and 9 August 2019.
2An aggravated offence of intentionally causing harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that between 6 and 9 August 2019 harm was intentionally caused to the complainant and that this was associated with the use or threatened use of an offensive weapon.
3The offence of taking part in a humiliating or degrading act and engaging in humiliating or degrading filming contrary to s 26B(3) of the Summary Offences Act 1953 (SA). It is alleged that this occurred at Elizabeth North between 6 and 9 August 2019.
4Unlawful imprisonment of the complainant, being a common law offence, which it is alleged occurred between 6 and 9 August 2019 at Elizabeth North.
5A further count of unlawful imprisonment of the complainant between 6 and 9 August 2019 at Port Gawler.
6An aggravated offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). Again, it is alleged that this involved the complainant between 6 and 9 August 2019 at Port Gawler in the company of others.
7An aggravated offence of possessing a category H firearm being a Fabrique Nationale (aka Browning) 1906, .025 calibre self-loading handgun, serial number 969537, without holding a firearms licence authorising possession contrary to s 9(1) of the Firearms Act 2015 (SA). This offence is alleged to have occurred on 4 September 2019 at Elizabeth Vale. The aggravating feature is that the firearm was loaded.
8A contravention of provision 27(1) of Sch 1 of the Firearms Regulations 2017 (SA) contrary to s 35(3) of the Firearms Act 2015 (SA), which it is alleged occurred on 4 September 2019 at Elizabeth Vale.
The alleged offending
The circumstances leading to the alleged offending start with an apparent friendship between the complainant and Mr Nelson Cox.
According to the prosecution, during the middle of 2019 the complainant took a bag containing an MP3 player and a drone from the house of Nelson Cox. Apparently, this was observed by Mr Cox, but was not then the subject of complaint. There was later discussion about the sale of remote-controlled boats.
On 7 August 2019 these boats were brought to the complainant’s house, but a sale did not proceed. Later that day Mr Cox contacted the complainant and suggested that he come over to his house with the boats because there was another buyer.
Later that night when the complainant arrived he consumed some methylamphetamine and “took a couple of tokes of a pipe” with others. Soon after, the applicant and another man arrived. As the complainant tried to leave the house the applicant and another man confronted him about the MP3 player before the applicant is alleged to have punched the complainant in the mouth. He was taken into the lounge room of the house.
The police allege that the complainant was assaulted with a bike pedal, tools and punches. It is alleged also that the applicant stabbed the complainant in the left leg and the left arm with a knife and tasered him in the left leg.
It is then alleged that a sheet of plastic was rolled out onto the lounge floor and the complainant was made to sit on it. He was then ordered to empty his pockets. His phone, wallet and tobacco were taken from him.
Soon after, the applicant and another forced the complainant to eat Chum dog food from a tin and drink “bong water”, whilst selfies were taken of him using a mobile phone. When the complainant refused to eat the dog food he was allegedly punched in the head by the applicant and another man. It is alleged others from the neighbourhood were then invited into the house to witness the complainant’s humiliation.
The complainant was then forced to travel in a motor vehicle to Port Gawler where he was again punched by the applicant. It is alleged that he was made to strip down to his “jocks and socks”. The applicant walked down the jetty and threw the complainant’s clothing and steel toe-capped boots into the sea.
The applicant and others then drove away, leaving the complainant at Port Gawler. The complainant walked for about an hour in the dark and ran into a property where upon the ambulance service and police were called. He was taken to the Lyell McEwin Hospital.
It is alleged that the complainant sustained a fractured eye socket, abrasions, bruising and scratches to the head, face and upper body, together with stab wounds to the upper left arm and left thigh.
The bail enquiry report and antecedents
A bail enquiry report considered the applicant not suitable for bail:
The defendant’s history of contact with the Department for Correctional Services dates back to 2016 when he was subject to sentenced imprisonment. Since that time, he has been subject to several periods on remand imprisonment, Home Detention and Parole. The defendant’s most recent period of supervision was a Parole Order which he was released onto on 23 May 2017, however he was returned to custody on a Parole Board warrant for breaches related to drugs, failure to report, weapons, not residing where directed and committing further offences. He appeared in front of the Parole Board on 20 March 2018 and the Board resolved to cancel the remainder of his Parole. In relation to the period the defendant was subject to Home Detention, this order was revoked because he removed his electronic monitoring device and absconded.
The defendant’s antecedent history indicates that he has one prior conviction For fail to Comply with Bail Agreement and four Fins warrants had been issued between 2015 and 2017.
The applicant’s antecedent report discloses various breaches dating back to 2014 and sentences of imprisonment in 2016 associated with two counts of driving dangerously to escape a police pursuit, driving whilst under disqualification or suspension, carrying an offensive weapon, unlawful possession of a controlled drug, possession and/or use of an unregistered firearm, amongst other offences.
The applicant was given a head sentence of one year and eight months and six weeks’ imprisonment, with a non-parole period of eight months, which commenced on 25 May 2016.
In 2017 the applicant escaped from custody and was convicted, receiving a head sentence of one year, 11 months and 23 days’ imprisonment, with a non-parole period of nine months and 12 days, backdated to commence on 25 May 2016.
On 23 January 2020 the applicant was convicted of driving whilst under disqualification or suspension and unlawful possession. For both offences he was sentenced to imprisonment for two months and his licence was disqualified for a further 12 months.
The applicant’s JIM warrant history information suggests that first instance warrants were issued because of three non-attendances in 2015 and 2017 before the Parole Board and the Magistrates Court.
Possible residences
Although it has been suggested that the applicant may live with a Ms Hughes at Elizabeth if released on home detention, a home detention bail enquiry report dated 31 December 2019 advised that Ms Hughes told officers that she could not accommodate the applicant for the duration of bail, that she did not know the applicant, though he was her son’s brother-in-law, and there was no signed residence agreement. The conclusion was that the premises were not suitable for home detention.
A second home detention bail enquiry report dated 2 July 2020 addressed the suitability of residence at Smithfield, at which Ms Press, the applicant’s sister-in-law, resides with her three children. Officers from the Department for Correctional Services determined that the residence was suitable. However, at the hearing on 3 July 2020 I was told by the applicant’s counsel that this accommodation was no longer available.
Accordingly, this matter was adjourned to 9 July 2020 to enable a third address to be assessed. That is a house in which the applicant’s friend and her two children reside, located at Modbury Heights. A report from the Department for Correctional Services assessed the premises as suitable for residency by the applicant.
Crown attitude to bail
According to written submissions prepared by the Crown dated 7 April 2020, bail “of any kind” is opposed because:
1The applicant is a prescribed applicant and there is, therefore, a presumption against bail. He must establish “special circumstances”;
2 The seriousness of the offending; and
3 The risk of re-offending and/or absconding.
As will be seen, the applicant challenges the strength of the case regarding the firearms offence. This challenge is primarily directed to the existence of “special circumstances” rather than suggesting that the applicant is not a “prescribed applicant”.
The applicant also challenges the prosecution case regarding the photographs to which I have referred, the Ford Territory and the COVID-19 evidence.
In response the Crown relies on the ruling of Kourakis CJ in R v Perre to the following effect:[3]
I would qualify what I said in Lombardi, only to the extent there must be a reasonable basis for the allegations or, at least, that it is not shown that the allegations are unreasonable. In the ordinary course that would go without saying, in that the obligations of the Director of Public Prosecutions are such that one would expect that charges would, at the very least, have a reasonable basis. I do not mean to suggest that there is a conclusive presumption to that end and, indeed, this application has proceeded on the basis that the reasonableness of the alleged connection must be shown. So understood, there is little practical difference between the approach I took in Lombardi and the approach of Sulan J in Briggs.
[3] R v Perre [2017] SASC 102, [12].
The Crown’s materials are said to be relevant to the steps taken in the State’s prisons regarding the COVID-19 pandemic. The evidence from the police officers, it is submitted, demonstrates a strong circumstantial case that the firearm was in the applicant’s possession when found in the Ford Territory which had been driven by the applicant on 4 September 2019. The gun the subject of the alleged offending was found in the subsequent search of that Ford Territory. There are photographs of that gun on a mobile phone which it is alleged was used by the applicant. That photographic evidence also includes various other photographs of the applicant with other firearms.
The case for the applicant
The affidavit of the applicant emphasises the following matters which he submits comprise “special circumstances” that rebut the presumption against bail:
1The applicant has been detained in custody since 4 September 2019 and a charge determination was made six months and three weeks later on 26 March 2020;
2Detention in custody has hampered the preparation of his defence because face-to-face contact with his legal advisers has been prohibited due to the COVID-19 pandemic;
3The applicant has lost his residence, and his personal belongings are with his family and friends:
4 Whilst incarcerated he has lost contact with his three-year-old son;
5The applicant is at risk of contracting COVID-19 from inmates whilst incarcerated;
6The applicant says that his uncle, with whom he is particularly close, is terminally ill and has only months to live. The applicant wishes to spend as much time with his uncle as he can; and
7The strength of the case against the applicant regarding the firearms offence.
As for the seriousness of the alleged offending, it is suggested that if the applicant is on home detention bail he would not be in any position to interfere with evidence, nor make contact with the co-accusers, the complainant or any potential witness.
A number of matters are raised to suggest that it is unlikely that the applicant will abscond. These include the existence of significant ties to South Australia in the nature of immediate family residing in the State, including the applicant’s three-year-old son.
As for the prior escape from custody charge on 11 April 2017, the applicant explains that this concerned a time when he was on home detention and his former domestic partner evicted him from the residence they shared with their infant son. The applicant stayed at an alternative address without the prior consent of officers from the Department for Correctional Services. The apprehension report tendered before me shows that the applicant cut off his electronic ankle bracelet before changing address.
As for the breach of bail in 2015, the applicant says that this was a breach of a curfew condition and represents the only occasion when he has breached a bail condition.
The applicant emphasised that he has no prior convictions for offences of violence and he is well aware of the consequences of absconding and the inference of guilt which could be drawn.
The affidavit of the applicant’s solicitor outlines the submissions made to Magistrate McGrath including the lack of the evidence that the applicant was in possession of the firearm in the beige gold Ford Territory motor vehicle and the fact that defence preparation has been hampered by detention. The affidavit then essentially repeats the various matters already mentioned in the affidavit of the applicant.
As for “special circumstances”, Ms Salvemini deposes to and submits the following:
1There is insufficient evidence that the applicant was in possession of a firearm. It is said that if the applicant had a gun “why did Mr Thwaites not threaten the complainant with a gun during the assault?”. In addition, photographs of the gun on a mobile phone found in the laundry of the property which the applicant was arrested do “not prove the mobile phone belonged to Mr Thwaites or, more importantly, that Mr Thwaites possessed the gun”.
2The fact that the gun was found in a car is said to be of little significance where the car was not at the address of the applicant, nor was it registered to the applicant.
3The various matters raised by the applicant regarding the problems associated with being incarcerated are repeated. These are the matters deposed to in the applicant’s affidavit on the topic of “special circumstances”. Particular emphasis is given to the short life expectancy of the applicant’s uncle.
At the hearing today, it was submitted that the DNA report was inconclusive regarding the DNA of the applicant on the relevant handgun and that there has been, as yet, no fingerprint analysis made available.
It was also submitted that the photographs, whether those exhibited to the Perks affidavits or in the bundle, were merely a selection and a selection may be misleading. As it was put to me, there could be explanations consistent with innocence so as to demonstrate that the mobile phone was not the applicant’s phone, nor necessarily in his possession, when the photographs were taken. Likewise, it was emphasised that the photographs were not necessarily selfies.
As against these matters, the Crown emphasised that, whilst the photographs represented a selection, they were nonetheless relevant.
The applicant then went on to emphasise that the evidence from Constable McIntyre was inconclusive as to where the handgun was when the Ford Territory was searched at the time of the applicant’s arrest on 4 September 2019.
In response, the Crown emphasised the surveillance evidence showing the apparent possession of the Ford Territory by the applicant and his use of that Ford Territory on 4 September 2019. The Crown also emphasised that there were photographs of the Ford Territory and its VIN plate on the mobile phone which it is alleged was in the applicant’s possession. The Crown also alleges that the Ford Territory is registered to a woman whom it is said is, or at least was, the applicant’s girlfriend. Reliance is placed on the observations of the Chief Justice regarding the nature of the evidence required at this stage as described in R v Perre.[4]
[4] R v Perre [2017] SASC 102
In relation to the COVID-19 pandemic, the applicant emphasised that it is currently a fluid situation and capable of quickly changing. Although the submissions earlier made to the Magistrates were made before the Chief Justice’s decision in Lillyman v The Queen,[5] it is said that the issue cannot be regarded as settled or foreclosed. Examples were given of the recent reoccurrence of the outbreak in other States as well as the ongoing problems in the United States. The Crown’s response to that was that the affidavit evidence which it has adduced is specific to the steps currently being taken in this State and as yet there has been no change from the recent improved situation in this State.
[5] Lillyman v The Queen [2020] SASC 55.
Finally, I should emphasise that the Crown has today submitted that the general nature of the offending places this matter within the requisite category that Parliament must have had in mind when it passed s 10A of the Bail Act 1985 (SA). The Crown submits that the offending is very serious and that there is in addition a risk of reoffending. By relying on the antecedents report, the Crown emphasises the earlier firearms offences as well as the photographs depicting an ongoing interest in firearms. The Crown also emphasises the earlier failures to comply with bail conditions.
Disposition of the application
Section 10A of the Bail Act 1985 (SA) reflects Parliament’s recognition that a “prescribed applicant” poses a higher risk to the public than other offenders if released on bail.
The applicant relied upon R v Buhlmann and in particular the consideration given by Sulan J to the meaning of “special circumstances”[6] as discussed by Mitchell J in Saywell v Yiu.[7] Sulan J quoted with apparent approval the following passage from that latter decision:[8]
… Where the legislature has left it to the discretion of the Judge hearing the application for leave to appeal to decide whether there are special circumstances justifying him in giving leave, the words “special circumstances” should be given their natural and ordinary meaning and not read in a restricted manner. They are “wide, comprehensive, and flexible words, … and no Court can or ought to lay down an exhaustive definition of them” (per Lopes L.J. in In re Norman).
(Citation omitted.)
[6] R v Buhlmann [2010] SASC 123.
[7] Saywell v Yiu (1976) 14 SASR 56.
[8] Saywell v Yiu (1976) 14 SASR 56, 58 (Mitchell J).
The applicant submitted that a wide and flexible approach was required by the Court because there were no words limiting the scope and meaning of “special circumstances” in s 10A of the Bail Act 1985 (SA). It was submitted that the section must be interpreted having regard to the principle that a person charged with an offence is presumed innocent and should only be held in custody if they cannot establish special circumstances to be released.
Following that decision, in R v Lombardi Kourakis CJ, whilst accepting what Sulan J had to say in Buhlmann’s case, emphasised the statutory context in which the words used in s 10A appear. As the Chief Justice put it in that case, “[i]t connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision”.[9]
[9] R v Lombardi (2013) 115 SASR 577, [22].
The Chief Justice went on to emphasise:[10]
The discretion exists to allow the release on bail of those applicants on whom the general rule would in the special circumstances of their cases result in an unintended or unforeseen hardship or injustice.
…
… The primary consideration must be whether the applicant’s circumstances place him or her outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicant. The circumstances of the alleged offending will therefore be very important.
[10] R v Lombardi (2013) 115 SASR 577, [24]-[25].
The burden is on the prescribed applicant to establish “special circumstances” so as to demonstrate some unintended or unforeseen hardship or injustice, including matters associated with the applicant’s personal circumstances. In my view, whether taken individually or together, the matters raised by the applicant do not comprise special circumstances. They would appear to be the ordinary and foreseeable consequences of incarceration.
Whilst the short life expectancy of the applicant’s uncle is particularly tragic, it does not represent special circumstances. I was told that the uncle lives in a rural area. The applicant, if released on home detention bail, will be confined to a suburban property.
In my opinion, this case raises very serious allegations well within s 10A and there is a particular need to safeguard the community and the complainant. This is not a case in which it can be said that there have been or will be unintended or unforeseen hardship or injustice caused by incarceration. Accordingly, I have decided to dismiss the application for review and, in the independent exercise of my discretion, I refuse bail because:
1 The offences are very serious; and
2There is a risk that, if released, the applicant will abscond, re-offend or come into contact with the complainant, those with whom he has been charged or other witnesses.
The order of the Court will be that the application for review filed on 26 June 2020 is dismissed.