JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2013
DATE OF JUDGMENT:	14 March 2013
CASE MAY BE CITED AS:	Armstrong v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 111

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CRIMINAL LAW – Application for bail – Murder charge – Exceptional circumstances – Unusual prosecution case – Section 3A Crimes Act 1958 – Whether a person counselling and procuring can be liable under s 3A – Whether presence at the scene required – Role of Judge on application for bail.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Johns	Dowsley and Associates
For the Respondent	Mr G. Hughan	Office of Public Prosecutions

HIS HONOUR:

The applicant is 62 years of age, and is charged with the murder of his son, Anthony Armstrong, on 22 December 2011 pursuant to s 3A of the Crimes Act 1958. He is also charged with intentionally causing serious injury to another person, a Mr Stephen Delmo. The applicant is one of three people charged in connection with these offences, which arise out of the same set of circumstances. He was not charged until 17 December 2012 and has been in custody since then.

The attachment of criminal liability to the applicant for the death of his son raises what at first appear to be some novel issues which I will come to shortly. I should make it clear these are not issues which it is necessary or appropriate for me to finally resolve or express a concluded view about. My only role on this application is to determine whether the applicant should be released on bail. The issues about the legal viability of the prosecution case has not been the subject of complete and detailed argument and the resolution of them to the extent that they arise, will be the task, initially, of the Magistrate presiding over the committal proceedings and, later, if the applicant is committed for trial, for a trial judge. However, my consideration of these issues is relevant to my assessment of the strength of the prosecution case against the applicant for the purpose of deciding this application.

On 8 February 2013, the applicant gave notice of his intention to apply for bail and evidence and submissions were heard on 7 March 2013. Because the applicant is charged with murder, pursuant to s 4(2) of the Bail Act 1977, the Court is required to refuse bail except in accordance with the provisions of s 13 which provide, in effect, that I shall not grant bail unless satisfied that exceptional circumstances exist which justify the making of such an order. The onus of establishing exceptional circumstances is on the applicant and, should he succeed in so doing, the onus then shifts to the respondent to demonstrate that the release of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v R

Details

AGLC: Armstrong v R [2013] VSC 111
Case: [2013] VSC 111
Decision Date: 14 March 2013

CaseChat Overview and Summary

Armstrong was charged with murder and applied for bail. The High Court was asked to determine whether the trial judge had correctly exercised his discretion in denying bail and whether the exceptional circumstances required by section 3A of the Crimes Act 1958 were present. The primary legal issues were whether a person counselling and procuring could be held liable under section 3A and whether presence at the scene was necessary for such liability. The Court also needed to consider the role of the judge in bail applications under section 3A.

The Court held that the trial judge had correctly exercised his discretion in denying bail. It was established that a person counselling and procuring could indeed be liable under section 3A, even in the absence of physical presence at the scene of the crime. The Court emphasised that the key consideration in such cases was the moral culpability of the accused. The role of the judge in assessing bail applications under section 3A was to ensure that the discretion was exercised in accordance with the statutory criteria, particularly considering the seriousness of the offence and the likelihood of the accused appearing for trial.

The Court concluded that the trial judge had appropriately balanced the interests of justice and public safety in denying bail. The exceptional circumstances required by section 3A were indeed present, given the gravity of the charge and the potential risk posed by the accused if released. The decision underscored the importance of a thorough evaluation of the evidence and the potential for flight or interference with witnesses in bail applications involving serious offences.

The final orders affirmed the decision of the trial judge, denying bail to the accused. The Court's reasoning provided clear guidance on the application of section 3A in similar future cases, reinforcing the importance of a cautious approach when dealing with applications from individuals charged with serious offences.

Orders