S v White [2005] TASSC 27

Family Violence Act 2004 (Tas), s12(1).

Rodway v R [1990] HCA 19; (1990) 169 CLR 515, applied.

Judgment ID Number: [2005] TASSC 27

(Edited version of reasons delivered orally) 21 April 2005

1 This is an appeal pursuant to the Justices Act 1959, s125(c). The appellant is aggrieved by an order made by a magistrate in refusing him bail in relation to two matters. The two matters arise out of an incident that occurred on 22 March 2005. In one of those matters the appellant has been charged with three counts of assault and one count of destroying property. All those charges are under the Police Offences Act 1935. It is alleged that he assaulted his former partner and two of her children, and that he destroyed the windscreen of her car. In the other matter a police officer has applied for a restraint order under the provisions of the Justices Act in consequence of the incident of 22 March.

2 The appellant went to see police officers about that incident on 24 March and was, as a result, arrested and held in custody. He applied for bail but, as I have indicated, a magistrate refused bail. Whilst he has been in custody, the provisions of the Family Violence Act 2004, with one irrelevant exception, have commenced as a result of a proclamation notified in the Gazette. The respondent contends that they apply to this case. The appellant's counsel submitted that they do not. In my view they do. I will state my reasons.

3 Prior to the commencement of the Family Violence Act, a judge or magistrate had a generally unfettered discretion in relation to the granting or refusal of bail, and therefore was required to exercise that discretion in accordance with principles developed under the common law. According to the common law, as a general rule, an applicant ought to be granted bail, but there are various factors that should be taken into account that might warrant bail being refused. Commonly, a risk that the alleged offender will not answer bail, or a risk that the alleged offender will re-offend, will be considered grounds to refuse bail, if the risk is strong enough. Parliament has changed all that in family violence cases by enacting the Family Violence Act, s12.

4 By s12(1) it is provided as follows:

"12 -- (1) A person charged with a family violence offence is not to be granted bail unless a judge, court or police officer is satisfied that release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child."

5 Because one of the charges of assault involves an allegation that the appellant assaulted his former partner, that is, a woman that he had been living with in a marriage-like relationship, that charge is a charge of a family violence offence, and within the scope of s12(1), if it applies.

6 Mr Hughes, for the appellant, submitted that the section does not apply because it does not operate retrospectively. He submitted that, on the hearing of an application or an appeal in relation to bail after the commencement of the Act, but in relation to a charge of an offence alleged to have been committed before the commencement of the Act, the relevant provision of the Act is inapplicable because of the common law presumption against retrospectivity.

7 There certainly is a common law presumption against the retrospective operation of criminal statutes or criminal legislation. However it has limits, and those limits have been the subject of a number of reported cases. The one that I find most useful in the present context is the High Court's decision in Rodway v R [1990] HCA 19; (1990) 169 CLR 515. That case did not concern bail. It concerned amendments relating to the lack of need for corroboration in relation to charges of indecent assault, and to the traditional warning given in relation to the uncorroborated evidence of an indecent assault complainant.

8 I have not been able to find any reported case in relation to legislative amendments relating to the way in which a court should proceed when entertaining an application for bail. However, there are some statements of general principle in the joint judgment of the five judges who constituted the High Court in Rodway that are applicable, in my view. At 518 their Honours said this:

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."

In my view, a statute which prescribes the manner in which a bail application is to be dealt with is another instance.

9 The High Court in Rodway cited with approval a passage in the judgment of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, where his Honour said this:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforce or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed."

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years."

"... the applicant had acquired no right to a particular mode of procedure at his trial, at all events before his trial had commenced. A right to a particular procedure is acquired only when the occasion for the application of that procedure arises."

11 Now here the appellant had a right to apply for bail from the moment he was held in custody, and he had a right to appeal in the event of bail being refused. But, in my view, having regard to the passages that I have quoted, he did not have a right to any particular mode of procedure on the hearing of a bail application, and he did not have a right to have a bail application determined in accordance with the law as it applied on the date of his alleged offences. The Family Violence Act, s12, is a procedural provision. I think the language of that Act necessarily requires it to be interpreted as applying to all bail applications in relation to the sorts of offences that it calls "family violence offences", whether they were committed before the commencement of, or the relevant provision of, that Act or not.

12 It is significant, I think, that the Acts Interpretation Act 1931, s8A, requires an interpretation that promotes the purpose or object of an Act to be preferred to one that does not. Here the evident object or purpose of s12 is to attempt to minimise family violence by detaining in custody those charged with family violence offences, unless the court considering the question of bail, or a police officer considering the question of bail, is satisfied of certain things. That object or purpose would be promoted by adopting a construction that, loosely speaking, might be regarded as retrospective. However, it is not really a question of retrospectivity. The section speaks as to what is to happen in the future as from the time of its commencement. I see no reason why it should be construed so as not to apply to bail applications relating to offences said to have been committed before the commencement of the Act.

13 That being so, the first question, and perhaps the only question, that needs to be considered in a case like this is whether the Court is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child. In the present context, the only person who qualifies as an affected person is the former partner. The definition of "family violence offence" in the Family Violence Act is such that violence inflicted upon a child living in a household is not family violence. But, if someone gets charged with assaulting their spouse or partner, then the safety, wellbeing and interests of a child can become relevant because of the wording of s12(1).

14 There are a number of factors that weigh against the appellant in relation to the question that I have to address as a result of s12(1) being applicable. On the face of the statutory declaration of the former partner and the statement of an alleged eye-witness, the prosecution have a strong case against the appellant in relation to the four charges. They certainly do not have an unloseable case. It is clear that this incident involved a scuffle, and that there are two sides to the story. But there is an eye-witness who in substance corroborates the account of the complainant, and it seems likely that one or both of the children might be called to corroborate her account.

15 This is not just a case involving a physical assault. It is a case involving a threat to kill. However, it was a threat made obviously in the heat of the moment. It is not a case simply involving an assault or assaults using a person's bare hands. It is alleged that a wheelbarrow, a Besser block, and a star picket, I think, were used as weapons.

16 I am required by s12(2)(a) to take into account "any available risk screening or rehabilitation program assessment". There is available a document which has been produced to me, entitled "Tasmania Police Family Violence Risk Assessment Instrument". It appears that a police officer asked the former partner a series of questions and recorded her answers to them. In deciding how much weight I should give to this document, I am very conscious of the fact that it was completed shortly after a disturbing incident by a woman complaining that she had been assaulted by her former partner, with whom she did not wish to live any more. The very nature of this document, therefore, is that it relies for its information on someone who is not objective. Nevertheless, the information in a situation like this has to come from people who are not objective. According to the document, the appellant has an alcohol problem, a drug use problem, and a gambling problem; he either suffers from serious depression or has done in the past; he has at some stage - it does not say when - demonstrated either bizarre or paranoid or delusional behaviour; at some time - it does not say when - he has outlined suicidal fantasies and/or threats, and he has outlined homicidal fantasies and/or threats; he appears very bitter towards the victim, and is very jealous or obsessive about her; and she was terrified of him at the time the document was completed. According to this document and her statutory declaration, the appellant has threatened to kill her and/or her children. According to the document, the violence level in their relationship had escalated, and the relationship had recently broken down.

17 As to what the former partner meant when she said that the violence level in the relationship has escalated, she did not assert that the appellant had assaulted her or the children in the past. She did say in her statutory declaration "I left him about four to five weeks ago as he started to get abusive and violent towards me". I can only assume that what she was talking about was verbal abuse and some sort of violence, perhaps verbal violence or violence towards property, or falling short of assault.

18 Another factor that weighs against the appellant, in my view, is that his mother, the proposed surety, who is not in good health, would be unlikely to be able to get him to change his mind if he were minded to cause trouble to the former partner and/or her children.

19 However, I think there are quite a number of factors that weigh in favour of the appellant, and tend to indicate that he is likely to behave himself if he is granted bail. I have already said that, according to the questions asked of the former partner and the answers recorded, he had not assaulted her or her children prior to the incident on 22 March. Significantly, although she made assertions in relation to his mental health, she did not say that he had a diagnosed mental disorder or illness. Although there is a strong case in relation to the charges of assault, it appears from the application for a restraint order that none of the three alleged victims required medical treatment on the day.

20 I am required by the Family Violence Act, s12(2)(b), to take into account the appellant's demeanour. His behaviour today has been ideal and exemplary. There is nothing to suggest that his demeanour has been unsatisfactory, otherwise than in the context of the relationship with his former partner, at least for many years. I am required by s12(2)(c) to have regard to the result of any available safety audit but there is not one. I am required by s12(2)(d) to have regard to the availability of suitable accommodation for the appellant, his former partner, and the children. He can go to live with his mother, and that seems to be suitable. The former partner and the children, I am told, have accommodation in a shelter, and the address of it is being kept secret from the appellant. I regard all those arrangements as suitable. I am required by s12(2)(e) to have regard to any other matter that I consider relevant. Parliament has required me to take into account everything I think relevant.

21 I take into account the fact that the appellant has a good employment history. That is an indication that he is capable of acting responsibly, and normally does. I take into account the history of prior convictions that has been tendered to me. I think that, in the present context, the history of prior convictions shows more in the appellant's favour than it does against him. He has prior convictions for an offence of disturbing the peace and for offences of being drunk and disorderly, but he does not have any significant convictions for offences involving violence or disorderly conduct, in my view. He has no prior convictions for failing to appear or for breaches of bail conditions, though it is evident that he has been on bail in the past on serious charges. He has been out of trouble since 1997. He is obviously an individual who is capable of controlling himself when he makes the effort to do so.

22 He is 32 years old. He has been in custody now for four weeks. It is proposed that his mother enter into a surety recognisance in the sum of $1,000. Obviously the appellant is well aware that, if I grant him bail and he breaches the conditions of his bail, that can result in his mother losing $1,000 and, if she cannot find the money, in her car being sold by the appropriate officials in order to raise that money. In my view only an extremely foolish or impulsive individual would cause further trouble to the former partner and/or her children whilst on bail in the sort of situation that the appellant will find himself in if I grant bail.

23 Having regard to the limited information that I have as to his prior history, the fact that he has now spent four weeks in custody, the fact that precautions have been taken to prevent him from knowing where to find the former partner and her children, and all the other matters that I have referred to, I am satisfied that the release of the appellant on bail would not be likely to adversely affect the safety, wellbeing and interests of the former partner and her children. I am therefore going to grant bail. I will impose a condition as to a surety recognisance and a residential condition.

24 I make an order for bail requiring the appellant to appear at the Court of Petty Sessions in Launceston at 9.15am on Thursday, 28 April 2005 and at all times and places to which the proceedings on complaint 32743/05 and application 150201/05 may be adjourned subject to the following conditions:

1 Bail is conditional upon [the appellant's mother], entering into a surety recognisance in the sum of $1,000.

2 The appellant is to reside at [his mother's address] during the period of bail.