Andreevski v The Queen

[2009] VSC 115

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1422 of 2009

No. 1423 of 2009

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by NIKOLA ANDREEVSKI and JOVAN OGRIZOVIC

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2009
DATE OF RULING:	27 March 2009
CASE MAY BE CITED AS:	Andreevski & Anor v R
MEDIUM NEUTRAL CITATION:	[2009] VSC 115

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Criminal Law – Application for bail – Applicants charged with murder and attempted murder – The Applicants’ limited role in the incident, lack of prior convictions, youth, family support and delay amount to exceptional circumstances – Both Applicants granted bail.

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APPEARANCES:	Counsel	Solicitors
For the ApplicantAndreevski	Mr R. Stary	Robert Stary & Associates
For the Applicant Ogrizovic	Ms D. Caruso	Robert Stary & Associates
For the Respondent	Mr D. Brown	Office of Public Prosecutions

HIS HONOUR:

1. Nikola Andreevski and Jovan Ogrizovic have been charged with the murder of Nathan Roberts-Nunan and the attempted murder of Stephen Thorneycroft at Diggers Rest Recreational Reserve on 8 February 2009.  They have also been charged with affray at the same place on the same date.

1. The applicants were each originally charged with that offence and admitted to bail.  Andreevski had been arrested on 8 February 2009 and Ogrizovic was arrested on 10 February 2009.  Both of the applicants have admitted going to, and being present, during an affray in which the deceased was killed and Mr Thorneycroft seriously injured.

1. The applicant Andreevski has denied any direct involvement in the inflicting of any injury but has accepted that he did know that weapons, including knives, had been taken to the fight.  The applicant Ogrizovic took a baseball bat with him and used it to strike the deceased, who, he said, was armed with a club lock.  I doubt that this could be an occasion of self-defence for either of these young men.

1. On 12 March 2009 both applicants and others were charged with murder and attempted murder.  Their bail on the charge of affray was revoked.  They make application to this court for bail.

1. Andreevski was represented by his solicitor, Mr Robert Stary and Ogrizovic was represented by his solicitor, Ms Diana Caruso.  Each of the solicitors had provided an affidavit on behalf of their respective clients.  The respondent was represented by Mr Daryl Brown, Crown prosecutor and affidavits sworn by his instructor, Mr Anthony Rooney, were filed.  Bail was opposed on the basis that exceptional circumstances were not made out and the informant, Detective Senior Constable Chapman, had expressed concern that each of the applicants would not answer his bail, if it were to be granted.

1. Pursuant to s 13(2)(b) of the Bail Act 1977 the applicants must each demonstrate that exceptional circumstances exist which justify in making an order for bail.  In each case the matters relied upon are: 

(1) The applicants have no prior convictions;

(2) They come from steady and reliable backgrounds;

(3) They are relatively young - the applicant Andreevski was born on 30 August 1988 and is 20 years of age, the applicant Ogrizovic was born on 10 May 1990 and is 18 years of age;

(4) They both would be held in adult custody;

(5) There would be a substantial delay before trial; and

(6) The applicant Andreevski submits that the case against him is weak.

1. The amount of work done by Mr Rooney and Mr Chapman to facilitate this application is noted by the court.  Detective Senior Constable Chapman has provided a detailed and helpful statement which sets out the circumstances of the case.  I do not think a realistic challenge could be made to the appropriateness of charging each of these young men with murder.  Whether at the end of the day other charges such as manslaughter loom large on the horizon, is a matter for the future.  I do not comment on the strength of the Crown case except to say I do not regard them as weak but certainly less strong in the case of Andreevski.

1. I did observe in argument that it was unusual to find young men involved in this sort of activity who have no prior convictions and I regard that feature of the case as very important.

1. I heard from Andreevski's father and Ogrizovic's mother.  They both impress me with the support that they will give their sons.  The applicant Andreevski has the additional benefit that his family have been able to find him work. He has been in continuous employment since leaving school.  The applicant Ogrizovic, being somewhat younger and still looking for work.

1. The question of delay must be considered.  It seems to me that the very earliest a trial would proceed is July 2010.  That is 15 or 16 months away.  I think that such an expectation with a number of accused, including one in the Children's Court, is unrealistic, and I suspect that 18 months to 24 months before trial is more realistic.  In these circumstances I am faced with the probability of young first offenders spending two years or more in an adult prison before trial.  That would as a matter of justice be undesirable, and undesirable in community terms.  I have concluded that in all, the features of the case, including the limited role played by each of these applicants, their age, their lack of prior convictions and delay, amount to exceptional circumstances.

1. I am not convinced that there will be an unacceptable risk of answering bail, and such risk as does exist can be satisfactorily ameliorated by the imposition of suitable conditions.  I regard it as necessary that a surety be provided in cases as serious as these, and in each case I have fix a surety of $30,000.

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