COLIN CROOK v R [2026] SASC 17

Applicant: COLIN CROOK Counsel: MR A FORNARINO - Solicitor: OLD PORT CHAMBERS Respondent: R Counsel: MS A SHATTOCK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 23/12/2025, 24/12/2025 File No/s: SCCRM-25-051605 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v CROOK [2026] SASC 17 Reasons for Decision of the Honourable Justice McDonald 17 February 2026 CRIMINAL LAW - PROCEDURE - BAIL - JURISDICTION OF SUPREME COURT - GENERALLY CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL This is an application to review the decision of a Magistrate under s 14(2)(a) of the Bail Act 1985 (SA). The decision the subject of review is the decision of the Magistrate on 8 December 2025 to decline to release the applicant on bail and instead remand him in custody. The key issue was that the applicant was not the subject of a bail agreement at the time of the decision, although the Notice of Review identified the bail decision as the ‘revocation of bail’. The power under which the Magistrate remanded the applicant in custody was unclear. However, the Warrant of Remand outlined details of the basis on which the applicant was to be taken into custody, being under a number of legislative powers, but none of which applied to the applicant’s circumstances. The applicant maintained that the Magistrate had no power to remand him in custody because the matter was proceeding by information and summons, he was not on bail, and there had been no prior remand in custody on that information. The applicant submitted that he should be granted bail on the basis that he attended court when required, and through no fault of his own, submissions could not proceed in his lawyer’s absence. The Director maintained that the Magistrate had the power to take the applicant into custody despite the warrant not providing any lawful or legitimate basis to do so. Held: 1. It was open to the Magistrate to require the applicant to enter into a bail agreement at any stage of the proceedings, including at a time subsequent to the entry of the guilty pleas. 2. It is appropriate that the applicant be granted bail until he is due to be sentenced. -- 1 of 11 -- 3. If the Magistrate possessed the power to remand the applicant in custody, this was not identified. 4. Care should be taken to ensure there is an accurate record of the basis upon which a bail authority directs that a person be taken into custody. Bail Act 1985 (SA) ss 4(1)(b), 14(2)(a), 14(3), 17(1); Motor Vehicles Act 1959 (SA) s 91(5a); Road Traffic Act 1961 (SA) s 47BA(1)(a); Criminal Law Consolidation Act 1935 (SA) s 86A(1); Magistrates Court Act 1991 (SA) ss 9(1)(b), 9(1)(c), 9(3), s 9(7); Criminal Procedure Act 1921 (SA) ss 59(2), 104(a), 104(b)(i), referred to. Ex parte Rundle; Ex parte Carteledge (1982) 30 SASR 282, distinguished. Ex parte Burke (1982) 30 SASR 278, not followed. Police v Nissen (2014) 120 SASR 50; Police v Chilton (2014) 120 SASR 32; Police v Cadd (1997) 69 SASR 150, considered. -- 2 of 11 -- R v CROOK [2026] SASC 17 Criminal: Application McDONALD J. 1 On 24 December 2025 I granted an application made by Colin Crook to be released on bail. I indicated that I would provide my reasons subsequently. These are the reasons. 2 Mr Crook made an application for the review of a decision of a Magistrate to remand him in custody on 8 December 2025 pursuant to s 14(2)(a) of the Bail Act 1985 (SA). Although the Notice of Review identifies the relevant bail decision as the “revocation of bail”, there was in fact no revocation of bail as Mr Crook was not the subject of a bail agreement. 3 For reasons that I will come to, the effect of the order sought by Mr Crook is that the decision of the Magistrate to decline to release him on bail and instead remand him in custody, be the subject of review. Background 4 On 30 April 2024, Mr Crook pleaded guilty to two counts of failing to comply with a bail agreement. The breaches involved Mr Crook failing to attend at supervision appointments with Community Corrections officers. Mr Crook is yet to be sentenced for those offences. 5 On 14 May 2025, Mr Crook was reported for the offences of driving disqualified1 and driving with a prescribed drug in his oral fluid/blood.2 The prescribed drug was methylamphetamine. As the drive disqualified offence was a subsequent offence, the maximum penalty is three years imprisonment. 6 The circumstances of this offending were that on 14 May 2025, a uniformed mobile police patrol stopped Mr Crook as he was travelling on the Salisbury Highway. Checks on Mr Crook’s driver’s licence established that he had been disqualified from driving between 24 December 2024 and 23 December 2025. The period of disqualification was imposed as a consequence of his conviction on 24 December 2024 for the offence of driving a motor vehicle without consent.3 On that same date, Mr Crook was also sentenced to six months, two weeks and one day imprisonment for this offence as well as the offence of driving disqualified,4 and 11 counts of failing to comply with a bail agreement.5 1 Motor Vehicles Act 1959 (SA) s 91(5a). 2 Road Traffic Act 1961 (SA) s 47BA(1)(a). 3 Criminal Law Consolidation Act 1935 (SA) s 86A(1). 4 Motor Vehicles Act 1959 (SA) s 91(5a). 5 Bail Act 1985 (SA) s 17(1). -- 3 of 11 -- [2026] SASC 17 McDonald J 2 7 When pulled over, Mr Crook was required to provide a sample of oral fluid. He did so. An analysis of that fluid determined that it contained the prescribed drug methylamphetamine. 8 The offences committed on 14 May 2025 were in breach of the good behaviour bond imposed on 24 December 2024. 9 Mr Crook was first summonsed to appear before the Elizabeth Magistrates Court on 11 August 2025. On that occasion, Mr Crook was unrepresented, although he advised the Court that he proposed to retain Mr Richards as his legal representative. The matter was adjourned to enable Mr Crook an opportunity to secure that representation. 10 There were further adjournments on 9 September and 10 October 2025. On 10 November 2025, Mr Crook entered pleas of guilty to the 14 May 2025 offences. There is no record of any convictions being recorded upon the entry of the pleas. 11 It would seem that by this time that there were two breaches of the good behaviour bond that were being alleged. One application was being brought by the police in relation to the further offending and a second was being made by Correctional Services, although the basis of that application was unclear.6 12 Mr Fornarino appeared for Mr Crook on this occasion and advised the Magistrate that although it was likely that the breaches of the bond would be admitted, he required time to obtain further instructions. The Magistrate granted the application for the adjournment however indicated that whilst she would not remand Mr Crook in custody that day, it was likely that he would be taken into custody at the next hearing. The matter was adjourned until 8 December 2025. 13 I have received an affidavit from Mr Fornarino in relation to the events of 8 December 2025. In that affidavit Mr Fornarino deposed that by that date he had not yet had an opportunity to review the breach of bond files. On the morning of 8 December 2025, Mr Fornarino was unwell and although he attempted to communicate this information to the Court, through administrative error that did not occur. This was through no fault of Mr Crook. He was expecting that his lawyer would be in attendance. 14 It was Mr Fornarino’s submission in this Court that there were significant mitigating circumstances surrounding Mr Crook’s offending and some issues that required exploration in relation to at least one of the breach of bond allegations, before the matter proceeded to submissions. 15 When the matter was called on, Mr Crook, who appeared unrepresented, admitted to both breaches of the good behaviour bond. There is no endorsement 6 I was advised from the bar table that this was likely to be a further failure to attend at appointments at community corrections, although there was no evidence to that effect. -- 4 of 11 -- [2026] SASC 17 McDonald J 3 on the record to suggest that at that time the Magistrate revoked the suspended sentence bond. 16 As foreshadowed by the Magistrate, Mr Crook was remanded in custody. The bail review proceedings 17 On 22 December 2025, Mr Crook filed a notice of review of the decision of the Magistrate. As mentioned previously, the decision said to be under review was the ‘revocation of bail’.7 There had not however been a decision (nor the power) to revoke bail as Mr Crook had never been the subject of a bail agreement in relation to these charges. 18 At the outset of the bail review proceedings Mr Fornarino made a preliminary submission that the Magistrate had no power to remand Mr Crook in custody on the basis that “the matter was proceeding by information and summons; [Mr Crook] was not on bail; and there had been no prior remand in custody on that information”.8 19 The power under which the Magistrate remanded Mr Crook in custody is unclear from the certificate of record which simply reads “The defendant’s liberty is cancelled, and is remanded in custody”. The “Warrant of remand or mandate” (‘the warrant’) signed by the Magistrate and directed to the Sheriff, the police and the Department for Correctional Services does however include details of the purported basis on which Mr Crook was to be taken into custody and detained. It reads: The Court is satisfied that the Defendant should be remanded in custody pursuant to section 104(a) or section 104(b)(i) of the Criminal Procedure Act 1921, section 9(3) or 9(7) of the Magistrates Court Act 1991, or section 59(2) of the Criminal Procedure Act 1921. 20 None of these sections apply to Mr Crook’s circumstances. 21 Section 9 of the Magistrates Court Act 1991 (SA) sets out the criminal jurisdiction of the Magistrates Court. The relevant sections referred to in the warrant are s 9(3) and s 9(7). Section 9(3) provides: (3) If the Court, constituted otherwise than by a Magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before the Court constituted of a Magistrate. This section does not apply as it was in fact a Magistrate presiding over the proceedings. 7 FDN 1, Notice of Review – Bail Review. 8 FDN 4, Affidavit of Aaron James Fornarino made on 22 December 2025. -- 5 of 11 -- [2026] SASC 17 McDonald J 4 22 Section 9(7) of the Magistrates Court Act 1991 (SA) provides: (7) If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the defendant to appear for sentence before a superior court. This section enables the Court to refer an accused to a superior court for sentence in circumstances in which the appropriate sentence exceeds the powers of a Magistrate. In such a situation, an accused may be remanded in custody. This section has no application to Mr Crook’s circumstances. 23 The relevant sections identified in the Criminal Procedure Act 1921 (SA) are s 59(2) and s 104(a) or s 104(b)(i). 24 Section 59(2) of the Criminal Procedure Act 1921 (SA) relates to circumstances in which a defendant has been arrested and brought before the court on a warrant; that includes circumstances in which they have failed to attend in response to a summons. It provides: (2) If it is not practicable to deal immediately with the matter for which the defendant has been brought before the Magistrates Court, the Magistrates Court may remand the defendant in custody, or on bail, to appear before the Magistrates Court at a time and place fixed in the order for remand. 25 There has been no suggestion that Mr Crook failed to attend in response to a summons or that a warrant was issued for his arrest. 26 Sections 104(a) and 104(b)(i) fall within “Division 2 – Pre-committal hearings”. These sections relate to securing the attendance of a defendant at court in circumstances in which an information has been laid charging an indictable offence. 27 Section 104(a) applies to circumstances in which a defendant is already in custody, and s 104(b)(i) provides a means to bring a defendant who is not in custody before the court. 28 Again, neither of these sections encompass Mr Crook’s circumstances. 29 As is apparent, none of the provisions relied upon in the warrant as creating the authority for Mr Crook to be taken into custody and detained, relate to his circumstances. 30 I have been advised that the warrant is a standardised document that is prepopulated and, consequently, the Magistrate had no input into the entry of the various sections of the relevant acts. That is, however, no answer to the fact that the document that purports to set out the basis for the curtailment of Mr Crook’s liberty, fails to do so. -- 6 of 11 -- [2026] SASC 17 McDonald J 5 31 The Director accepted that the warrant did not provide a lawful or legitimate basis for taking Mr Crook into custody, however maintained that the Magistrate had power to do so. Ms Shattock, who appeared for the Director, stepped me through the route by which it was said to have been open to the Magistrate to remand Mr Crook in custody. 32 It was contended by the Director that the power of a Magistrate to hear and determine a charge of a summary offence or a minor indictable offence9 necessarily extends to the imposition of a sentence for those classes of offences. 33 It was the Director’s submission that on 10 November 2025, by pleading guilty, Mr Crook admitted to a second contumacious offence of driving disqualified for which he was liable to a sentence of imprisonment for up to three years.10 It therefore follows that upon the Magistrate being satisfied of Mr Crook’s guilt by virtue of his guilty pleas on 10 November 2025, the Magistrate’s power to sentence Mr Crook was enlivened. 34 None of this is controversial or in dispute. 35 It is at this point that the line of reasoning employed by the Director becomes more contentious. It was submitted that the inference can be drawn from the events of 9 September and 8 December 2025, that the Magistrate had formed and expressed an intention to impose an immediate custodial sentence. Although there is no record that the Magistrate expressed that this was her intention, the inference can be drawn that she proposed to adopt this course on the basis that she remanded Mr Crook in custody, the contumacious nature of the driving offence, Mr Crook’s offending history and the relevant sentencing standards set out in the authorities. 36 It was the Director’s submission that by remanding Mr Crook in custody the Magistrate was in effect requiring him to commence serving a sentence of imprisonment with the length of the sentence to be determined at a future date. Ms Shattock summarised the Director’s argument in the following terms:11 In short, the combination of the defendant’s guilty pleas amounting to a finding of guilt, the operations of s.53 and then the jurisdiction conferred on the magistrate by ss.9(1)(b) and (c) of the Magistrates Court Act operated in unison with the effect of vesting Magistrate Pandya with the necessary power to remand the defendant in custody. 37 In support of this position the Director relied on the decisions of Cox J in Ex parte Burke12 and Ex parte Rundle; Ex parte Cartledge.13 Although each of these authorities relates to the power of this Court to grant bail to a defendant subsequent to the entry of a guilty plea and prior to sentence in the Magistrates Court, it was 9 Magistrates Court Act 1991 (SA) s 9(1)(b) and s 9(1)(c). 10 Police v Nissen (2014) 120 SASR 50; Police v Chilton (2014) 120 SASR 32; Police v Cadd (1997) 69 SASR 150. 11 T7. 12 (1982) 30 SASR 278. 13 (1982) 30 SASR 282. -- 7 of 11 -- [2026] SASC 17 McDonald J 6 submitted that between them they supported the Director’s contention that it was open to the Magistrate to remand Mr Crook in custody, awaiting sentencing submissions. 38 In both Ex parte Burke and Ex parte Rundle; Ex parte Cartledge, the defendants had pleaded guilty to offences in a court of summary jurisdiction. They had been refused bail and were remanded in custody pending sentencing submissions. Each sought a review of that decision in this Court. 39 Two initial observations should be made about these authorities. The first is that there is no reference in the judgments as to the means by which each of these defendants had come before the court and secondly, and more importantly, an entirely different legislative regime was in place at that time. The only legislation under consideration in both judgments was the Justices Act 1921 (SA), which was to become the Summary Procedure Act 1921 (SA). Both legislation have since been repealed and have become the Criminal Procedure Act 1921 (SA). 40 Nevertheless, given the Director has sought to place reliance on them, I propose to say something about these decisions. 41 In Ex parte Burke, the defendant had pleaded guilty to a number of summary offences and had been remanded in custody, without a conviction being recorded for a presentence report to be ordered. He had made an application for bail and the application had been refused. 42 When the matter came before Cox J for review, the prosecution challenged the jurisdiction of this Court to grant bail in these circumstances. It was therefore necessary for Cox J to examine the statutory jurisdiction (under the Justices Act 1921 (SA)) and the inherent jurisdiction of the Supreme Court in such cases. 43 In particular, the analysis focused on what amounted to a conviction and the impact that had on the jurisdiction of this Court. 44 That analysis is of no relevance or assistance to the issues to be determined on this bail review. Given the introduction of the Bail Act 1985 (SA), there is no dispute that this Court has jurisdiction to grant bail in the present circumstances. 45 In Ex parte Rundle; Ex parte Cartledge both defendants had also pleaded guilty, and had been remanded in custody, without a conviction being recorded, to enable a presentence report to be obtained. Each had been refused bail in the lower court. The same issue arose as to whether, in those circumstances, this Court had jurisdiction to grant an application for bail. After giving further consideration to the authorities, Cox J arrived at the same view that he had in Ex parte Burke, finding that such a power existed. In coming to that view, Cox J made the -- 8 of 11 -- [2026] SASC 17 McDonald J 7 following observations upon which the Director relied in the application currently before this Court. His Honour said:14 No one questions the power or propriety of a special magistrate, who wishes to take time to consider what sentence he should impose, to remand a defendant accordingly. He may want to obtain a pre-sentence report, or to have some other step taken or inquiries made, or simply to think about the matter. He may remand the defendant in custody or release him on his recognizance, with or without sureties, to appear for sentence on the appointed day. All this is undisputed. 46 The difficulty with the Director’s reliance on this passage is that there is no suggestion that judicial consideration was given to the issue. The legality of the remand was not in issue before Cox J. It may well be that in the context of the issues in those proceedings there was no dispute between the parties, however nothing was said about the basis upon, or the power under which, those defendants were taken into custody. Further, in the context of an entirely different legislative regime, it would be a stretch indeed to suggest that this observation by Cox J lends support to the position taken by the Director on this application. 47 There is an additional difficulty with the argument made by the Director and that is that it requires that an inference be drawn that at the time of remanding Mr Crook in custody, the Magistrate had already made a decision to sentence him to a term of imprisonment, that is in advance of, and absent hearing counsel’s submissions. Such an approach would be contrary to the judicial duty of the Magistrate and would amount to a denial of procedural fairness. I am not prepared to drawn an inference that the Magistrate adopted such an approach. 48 In his submissions Mr Fornarino maintained that the Magistrate had no power to remand Mr Crook in custody and made the submission that his “liberty was lost by an assumption rather than by the exercise of a lawful power”.15 Whilst a significant portion of his submission focussed on the issue of whether or not Mr Crook had been unlawfully detained, Mr Fornarino accepted that it was not part of the function of this Court on a bail review to make such a determination. 49 It was Mr Fornarino’s submission that Mr Crook should be granted bail on the basis that he had attended court when required, and it was through no fault of his own that submissions could not proceed given his lawyer’s absence. Consideration 50 I commence with the observation that it is not the role of this Court on an application for a review of a decision of a bail authority to make findings about the lawfulness of the original order made by the Magistrate. Section 14 of the Bail Act 1985 (SA) stipulates that on a bail review “the reviewing authority will reconsider the application for release on bail and may make any decision on that 14 Ex parte Rundle; Ex parte Cartledge (1982) 30 SASR 282 at 286. 15 T10. -- 9 of 11 -- [2026] SASC 17 McDonald J 8 application that should, in the opinion of the reviewing authority, have been made in the first instance”.16 51 Section 4 of the Bail Act 1985 (SA) sets out those who are eligible for release on bail. It relevantly includes: 4—Eligibility for bail 1) The following persons are eligible for release on bail under this Act: … (b) a person who has been convicted of an offence but has not been sentenced for that offence; … (e) a person who appears before a court in answer to a summons (including a person who so appears as a witness); … 52 As discussed it would appear from the record of outcome that although Mr Crook has pleaded guilty, he has not yet been convicted, nor has the suspended sentence bond been revoked. It would seem that s 4(1)(b) has no application. 53 Mr Crook did, however, appear before the Magistrates Court in answer to a summons. It was therefore open to the Magistrate to require Mr Crook to enter into a bail agreement at any stage of the proceedings, including at a time subsequent to the entry of the guilty pleas. To have done so in the circumstances of this case, would have been the fair and appropriate course. There was, and is, no suggestion that there was a basis to find that there was a likelihood that Mr Crook would abscond or reoffend if granted bail. To the contrary, he had attended when required absent any bail conditions. 54 The Director did not oppose Mr Crook being granted bail on the basis that it was conceded that there was an unfairness in the Magistrate declining to do so when Mr Crook had engaged legal representation and the practitioner was not present at the hearing. 55 In all of the circumstances, I have determined that it is appropriate that Mr Crook be granted bail until such time that he is due to be sentenced. In coming to that decision, I arrive at no concluded view about whether the Magistrate had the power to remand Mr Crook in custody. Although no lawful basis to have done so has been identified, submissions on this application were made under considerable time constraints on 23 and 24 December 2025, which did not allow for full submissions or consideration of the issue. 16 Bail Act 1985 (SA) s 14(3). -- 10 of 11 -- [2026] SASC 17 McDonald J 9 56 I however make the observation that if there is such a power, it was not identified in the warrant of remand. Given the significance of the deprivation of a defendant’s liberty under such a warrant, care should be taken to ensure that there is an accurate record of the basis upon which a bail authority directs that a person be taken into custody. -- 11 of 11 --