Application for bail: Georgia Fields
[2015] VSC 309
•24 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0086
| IN THE MATTER of an application for bail by Georgia Fields |
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JUDGE: | KAYE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 June 2015 |
DATE OF RULING: | 24 June 2015 |
CASE MAY BE CITED AS: | Application for bail: Georgia Fields |
MEDIUM NEUTRAL CITATION: | [2015] VSC 309 First revision: 10 August 2016 |
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CRIMINAL LAW – Bail – Murder – Whether exceptional circumstances – Applicant deaf, young and vulnerable – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Grant | Office of Public Prosecutions |
| For the Accused | Mr T Smurthwaite | Stary Norton Halphen |
HIS HONOUR:
The applicant, Georgia Fields, has been charged, with Warwick Toohey and Jake Fairest, with the murder of Robert Wright at Ringwood on 15 January 2015.
The applicant is 19 years of age. At the time of the offence, she was in a relationship with Toohey, who was 28 years of age. The applicant and the two co‑accused are each profoundly deaf. They communicate through Auslan, which is the sign language of the Australian deaf community.
Robert Wright, who was 36 years of age, was also profoundly deaf. In addition, he severed from cerebral palsy, epilepsy and he had an intellectual disability.
At the time of his death, Robert Wright shared accommodation with Toohey at Unit 201, 29‑31 Nelson Street, Ringwood. That accommodation had been sourced through the involvement of both Wright and Toohey with the Victorian Deaf Society. During the time in which they lived together, the relationship between Wright and Toohey deteriorated to the extent that Robert Wright had a lock placed on his bedroom door in order to protect his possessions from Toohey.
The prosecution alleges that on 15 January the three accused confronted Wright while he was sitting in the lounge room of the apartment. It is alleged that they restrained him and forced him on to the balcony and that Toohey and Fairest then lifted him over the balcony rail, causing him to fall approximately 12 metres on to the balcony of the ground floor apartment. A neighbour heard Wright scream and contacted the police. Robert Wright was transported to the Royal Melbourne Hospital suffering from catastrophic head injuries from which he died on 18 January 2015.
The prosecution alleges that on the day of the offence, the three accused had caught a train from the city to Ringwood at approximately 8.25 pm, arriving at Ringwood at 9.23 pm. CCTV footage of the carriage of the train apparently depicts the three accused conversing in Auslan, discussing their intention to kill Robert Wright. It is alleged that throughout the journey, the applicant and her two co‑accused discussed whether they should strangle Wright or cause his death through a fall from a height.
Subsequently, at 9.40 pm, the applicant and the two co‑accused attended at the premises at Nelson Street Ringwood where they were captured on CCTV in the foyer and then entering the lift and exiting on the second floor. It is alleged that the footage depicts the applicant asking Fairest if he wanted Wright dead or alive and asking the question, “How die?” Fairest then responded stating, “Want strangle”, to which the applicant is alleged to have responded, “Fall”. Fairest is then alleged to state, “Can strangle neck area. What do you think?”, to which it is alleged the applicant responded, “I think falling is better.” Toohey then indicated, “Strangle risky”, to which the applicant stated, “Fall good, fall good.” Toohey then stated to Fairest, “You grab/hold,” and the applicant responded, “Fall good, all right.” Toohey then told Fairest to greet Wright and to “grab and to push forward”.
As I stated, the prosecution alleges that upon gaining entry to apartment 201, the applicant and the two co‑accused confronted Wright while he was sitting in the lounge room using his iPad, restrained him and forced him from his chair on to the balcony. Neighbours described hearing the sound of a fight or struggle as Wright attempted to defend himself.
It is alleged that Fairest and Toohey then lifted Wright and forced his body over the handrail of the second storey balcony while the applicant looked on. A neighbour heard a scream and observed Wright holding on to the ledge of the second floor balcony and an unknown person holding his wrists. The neighbour then observed the unknown person let go of Wright, causing him to fall and strike his head.
It is alleged that the three accused then entered Wright’s bedroom and stole a number of identity and bank cards from his wallet. Fairest took possession of his Commonwealth Bank Mastercard, while most of the other cards were placed in a zip‑lock bag and placed on the top of a tallboy in Toohey’s bedroom. The iPad was also stolen and placed within a drawer of that tallboy. The three accused then remained within the bedroom of Toohey.
When the police arrived, they forced entry into apartment 201 and found the applicant and the two co‑accused lying on Toohey’s bed. The police located the zip‑lock bag containing the identity cards. They also located Wright’s Commonwealth Bank Mastercard on Fairest.
The applicant told the police that Toohey was involved in Wright’s death but she refused to elaborate any further at that stage. When questioned further by a detective, the applicant then wrote an account, indicating that Wright had committed suicide by jumping from the balcony.
Toohey was taken into custody and Fairest and the applicant accompanied investigators to Knox Police Station in order to make statements. Fairest participated in a video and audio recorded interview in which he implicated both the applicant and Toohey in the death of Wright. While she was at the police station, the applicant provided a written account to an uniform officer in which she wrote that her “boyfriend got angry with the other guy so he pushed him over the balcony”.
The applicant was not interviewed at that stage. Ultimately she and the two co‑accused were released pending further inquiries. In a conversation with a friend, Elise Clausen, conducted via Facebook after her release, the applicant admitted that Toohey, Fairest and she had pushed Wright from the balcony. She said that she did not want to tell the truth to the police as she would go to gaol.
On 12 February the applicant and her two co‑accused were arrested and interviewed at the office of the Homicide Squad. During their records of interview, the applicant and Toohey each admitted that they, together with Fairest, had planned to kill Wright and that Fairest had assisted Toohey to force Wright from the balcony.
The applicant was charged with the murder of Wright and also with theft. Since then she has been in custody and since 13 February she has been held in the Dame Phyllis Frost Centre.
A committal mention in relation to the charges against all the accuseds took place on 4 June. On that date, the charges against them were adjourned for a three day contested committal hearing at Melbourne Magistrates’ Court which is due to commence on 17 August next.
As the applicant is charged with murder, in order that she be granted bail, she is required, under s 4(2)(a) and s 13 of the Bail Act 1977 to establish exceptional circumstances which would justify the making of an order for bail in her favour.
The Bail Act does not define the matters that constitute exceptional circumstances. Clearly, in order to be exceptional, the circumstances relied on by the applicant must be such as to take the case out of the normal so as to justify the admission of the applicant to bail notwithstanding the very serious nature of the charge against her.
It has been accepted that exceptional circumstances may, in an appropriate case, constitute a combination of a number of circumstances pertaining both to the nature of the prosecution case against the applicant and the personal circumstances of the applicant.
In this case, the applicant principally relies on her personal situation and, in particular, on her disability as constituting those exceptional circumstances. In addition, it has been submitted on behalf of the applicant that there are significant issues in the case which might be problematic for the prosecution and that the potential weakness of the prosecution case is a factor that should weigh in favour of a finding of exceptional circumstances.
On the other hand, it has been submitted on behalf of the respondent that the prosecution case is strong and that the strength of that case is a factor militating against the existence of the requisite exceptional circumstances.
Before turning to the applicant’s personal circumstances, it is convenient to consider first the competing submissions concerning the strength of the prosecution case.
It has been recognised that the potential weakness of a prosecution case may be a relevant factor supporting the existence of exceptional circumstances. There is little authority for the converse proposition, namely, that the potential strength of the prosecution case may weigh against the finding of exceptional circumstances. However, logically, that proposition should follow. In Pak v Director of Public Prosecutions,[1] Harper, J stated:
The weakness or strength of the prosecution case forms a prism through which the court must evaluate the meaning in the particular case of the expression “exceptional circumstances”. A circumstance which might qualify as exceptional where the prosecution case is weak would not so qualify or not necessarily so qualify if the prosecution case is strong.
[1][2008] VSC 529 at para 4.
At this preliminary stage of the proceeding any evaluation of the strength or otherwise of the prosecution case must, of necessity, have its limitations. The committal hearing has not yet taken place. The prosecution case against the applicant has not been tested by cross‑examination or by detailed submissions and analysis. Not uncommonly, an impression as to the strength of a prosecution case gained from reading the depositions may alter substantially in the course of the subsequent trial.
In addition, it is undesirable that a judge, on an application such as this, should enter upon a detailed discussion of the relative strength or merits of a prosecution case. Ultimately, that question is one for the jury at the trial. Nevertheless, in light of the submissions made by each side on this issue, it is necessary for me to express some views in relation to it.
In my view, on its face, the prosecution case is strong. The CCTV footage of the conversations between the three co‑accused, as interpreted by an Auslan interpreter, in the train, in the foyer of the Nelson Street premises and in the lift of those premises, implicate the applicant in a joint agreement to kill Wright by pushing him off the balcony of the premises. The transcript of the conversations demonstrates that the applicant was, in some respects, the proponent of the view that he should be killed by being thrown off the balcony rather than by other suggested means.
I have not had the opportunity to view the CCTV footage. However, there is nothing in the transcript of the conversations as translated by the Auslan interpreter that suggests that the applicant was other than a willing participant in the formulation of that plan.
In addition, the admissions by the applicant in her record of interview that she was a party to the joint plan to kill Wright are quite clear and, in the main, unequivocal. The prosecution case is further strengthened by the admission that the applicant made on Facebook to the witness, Clausen, that she participated in the killing of Wright.
It has been suggested on behalf of the applicant that the conversations that were recorded on the CCTV footage may not have been interpreted correctly. However, at this stage, the applicant has not indicated in what respects the interpretation might have been incorrect.
It has also been pointed out that the interpreter was unable to translate a number of signs that passed between the three accuseds, either because she did not have a clear view of those signs, or because of the nature of the slang language that was being used by them. Thus, there are a number of passages in the transcript that indicate that the signs were indistinguishable. It has been submitted by Mr Smurthwaite, on behalf of the applicant, that those gaps in the transcript may affect the sense of what was being said between the three accused and particularly the responses by the applicant.
Nevertheless, on a reading of the transcript, it seems to me that there were sufficient distinguishable signs that, as interpreted, produced a coherent conversation on the critical aspects in which the plan to kill Wright was formulated and in which the applicant participated.
It has also been submitted that there may be an issue as to the admissibility of the record of interview and as to whether, in any event, the applicant’s responses to the interview were unequivocal. Before participating in the interview, the applicant was assessed to be fit to be interviewed by a forensic medical officer; she was able to exercise her right to confer with a legal practitioner before the commencement of the interview; she seemed able to understand and to repeat the substance of the caution which was given at the commencement of the interview; and an independent third person was present during the interview, together with an independent Auslan interpreter.
All of those matters would be relevant to an assessment as to the admissibility of the interview. They certainly are not fatal to an argument that the interview is inadmissible because of matters pertaining to the applicant’s handicap, but, nonetheless, they would make such a submission somewhat problematic.
In addition, at an early stage of the interview, the applicant indicated that she did not wish to make any comment in relation to the questions that were put to her. She was then shown a video of the conversation that took place between the three accused in the Nelson Street property. After that, she proceeded to give an account of the incident, both interpreting what passed between the parties on the video and also as to what had happened and, in doing so, she made admissions against herself.
Mr Grant, who appears on behalf of the respondent, has fairly pointed out that because the applicant at an early stage indicated she did not wish to comment in answer to questions put to her, there may be an issue as to the admissibility of what followed. Nevertheless, in reading the transcript of the interview, it seems to me that the answers that followed were spontaneous; there is no sense of any pressure being placed on her, and I do not, on the materials that have been put before me, consider that there would be a powerful or strong basis upon which to challenge the admissibility of the interview.
It has also been pointed out by Mr Smurthwaite that the applicant, in her interview, did state that at the last minute, while they were on the balcony, she sought to withdraw from the plan. However, that answer in itself is contradicted by earlier answers she gave in the interview. Ultimately, it would be a matter for the jury to assess, but for the purposes of this application, it does not significantly, in my view, detract from the strength of the admissions that she made.
Taking all those matters into account and bearing in mind the particular limitations of any assessment that I make as to the relative strength of the prosecution case at this very early stage, nevertheless, for the purposes of this application, I do consider that the prosecution case against the applicant on paper is substantial. I accept, for the reasons advanced by Mr Smurthwaite, that the prosecution case is not overwhelming, but it is, as I say, strong.
As I stated, the applicant principally relies on her personal situation and, in particular, her disability as constituting exceptional circumstances justifying her release on bail. In that respect, her father, Douglas Fields, has sworn an affidavit setting out her situation. As I stated, she is profoundly deaf and can communicate only by sign language and in writing. She was educated at the Victorian College for the Deaf. She completed the VCAL level last year but has not been employed since. She resides with her parents and her twin sister at their home in [Redacted]. She has no previous convictions. Mr Fields works doing night shift and thus ordinarily there is always an adult present in the home who can supervise the applicant if she is released on bail.
Mr Fields has visited the applicant since she has been in custody. He has observed that she has been experiencing particular difficulties on remand. She has told her father that she has been exploited by other prisoners on a number of occasions. Mr Fields is of the view that by virtue of her age, her immaturity and her personality structure, she is poorly equipped to be able to deal with the stresses of prison life. In addition, she is experiencing loneliness and isolation because there are no other deaf prisoners in the gaol, so she only has a limited capacity to communicate with prison staff and the other prisoners.
The respondent has placed in evidence an affidavit by Brendan Money, the Assistant Commissioner, Sentence Management Branch of Corrections Victoria, relating to the circumstances of the applicant whilst she is in custody. Mr Money states that after the applicant was received into custody at Dame Phyllis Frost Centre, she was initially placed in a high‑incentive cottage‑style unit which she shared with other prisoners and with a peer educator which afforded her the least restrictive and most supportive environment. However, issues soon emerged with the applicant being placed in the open unit. She indulged in quite inappropriate behaviour which became problematic for the other prisoners with whom she was living. Ultimately, after a multidisciplinary case conference, it was decided that she should be placed in a single‑cell accommodation in the Yarra Unit to ensure the safety of both herself and the other prisoners. Mr Money states that prison officers have reported that the applicant is often quite immature and naive in her interaction with other prisoners. When her conduct is challenged by staff, she intends to react in an immature way, retreating to her cell and pulling a blanket over her head. Although she continually makes requests to move to a cottage open‑style unit, Mr Money considers that that would not be appropriate in light of her poor hygiene habits, her vulnerability and her lack of self‑care skills.
Mr Money further states that since early April, the applicant’s compliance with prison rules and routines has improved somewhat. She has completed some studies in hospitality and horticulture and has been given structured and supervised access to the exercise yard. He concludes that while the applicant is a complex prisoner to manage, nevertheless, it is believed she is now being better managed, as those responsible for her custody have a proper understanding of her issues.
Finally, I have also had tendered to me a letter from Ms Elaina Chapman, who is a case manager with the Victorian Deaf Society. Ms Chapman also attended court today to support the applicant. Ms Chapman states that she has worked with the applicant since January 2015 and visited her every fortnight in the Dame Phyllis Frost Centre. She says that the applicant is a young and vulnerable woman and that she faces communication barriers every day which increases her isolation and loneliness and has affected her mental health, and has added to the frustrations due to her inability to communicate with other prison officers and prisoners.
In her opinion, Ms Chapman considers that the applicant’s needs are not being met satisfactorily at Dame Phyllis Frost Centre as she is being bullied by other prisoners which has led to her suffering depression; there is no specialised unit for people with a disability at the centre, and the applicant would benefit if she was able to access some specialised support in the criminal justice system.
In addition, Ms Chapman considers that the applicant should have a neuropsychological assessment to ascertain whether there are any other disabilities from which she suffers.
In light of the circumstances that I have just outlined, the question that I must determine is whether, in the context of a prosecution case that is on its face strong, the personal situation of the applicant is such as to constitute exceptional circumstances that would justify her release on bail. That question is not entirely straightforward. If the prosecution case were not so strong, it could readily be concluded that the circumstances of the applicant are exceptional. She has a disability which significantly affects her ability to interact with other prisoners and with prison staff. In the pressured confines of a gaol, such a handicap would significantly impair the capacity of the applicant to cope with the stresses and demands of everyday prison life. She has no one else with whom she can meaningfully communicate on a daily basis at Dame Phyllis Frost Centre. She is only able to engage in communication in a limited way by means of writing. That factor, and also her behavioural problems, has had the effect that she is significantly isolated while in custody.
In addition, and most importantly, she is young. She is now just 19 years of age. The affidavit of Mr Money, and in fact responses she made in her record of interview, indicate to me that she is quite immature for her years. As such, there have been understandable difficulties in her relationship with other prisoners and with members of prison staff.
Importantly, both Mr Money and Ms Chapman describe the applicant as being vulnerable and Ms Chapman, as I stated, has observed that she has been subject to bullying by other prisoners. It seems that some aspects of her social skills are not well developed so that she does not fare well in a communal environment such as a prison.
On any view of the facts, those factors standing alone are well out of the ordinary for a member of the prison population and could be well described as exceptional.
As I stated, the prosecution case is strong. If it was proven, then this case would constitute what I would regard as a serious instance of the crime of murder as it involved a degree of planning and premeditation and the offending was aggravated by the subsequent theft of Mr Wright’s personal belongings. However, it must be borne in mind that the applicant does intend to contest the charges that have been laid against her and, as such, she is entitled to the presumption of innocence.
As I stated, my assessment of the strength of the prosecution case is of necessity preliminary and as such is qualified as that case has not been subject to testing. In my view, Mr Smurthwaite has demonstrated credible bases upon which important aspects of the prosecution case might at least be put in issue by the defence. Thus, as I stated, while the case against the applicant is strong, it is not overwhelming.
Based on that assessment of the prosecution case, I do not consider that the strength of that case is such as to preclude the correct characterisation of the personal situation of the applicant as being exceptional for the purposes of s 13 of the Bail Act. It follows that I am satisfied that in the unusual circumstances of this case, the applicant has established the requisite exceptional circumstances that would justify the grant of bail to her.
Mr Grant has fairly accepted that there is no suggestion that, if the applicant were released on bail, there is any unacceptable risk as outlined under s 4(2)(d) of the Bail Act; that is, there is no unacceptable risk that the applicant would fail to answer her bail, would commit an offence while on bail, would endanger members of the community or would otherwise obstruct the course of justice. She is well supported by her parents and by her case manager and that fact gives me some comfort in that regard.
In addition, on releasing her on bail, I would impose particular conditions which would reinforce that aspect of the protective mechanisms of the Bail Act.
Accordingly, I am prepared to release the applicant on bail on her own undertaking subject to particular conditions, namely ‑
(1)That she not depart the jurisdiction and immediately surrender any passport held by her to the informant or his nominee;
(2)That she reside at [Redacted];
(3)That she remain at that address between the hours of 8 pm and 6 am each day;
(4)That the applicant report to Knox Police Station each Wednesday and each Saturday between the hours of 9 am and 7 pm;
(5)That she not communicate with the co‑accused, Jake Fairest and Warwick Toohey;
(6)That she not communicate with any prosecution witnesses other than with the informant, Detective Leading Senior Constable Lee Howse, and with Yvonne Tanner, Tamara Doyle‑Bates, Tamas Elliott, Jonathan Beech and Julie Judd;
(7)That the applicant not attend within 200 metres of the premises at 29‑31 Nelson Street, Ringwood.
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