Bail application by Harry Dickenson
[2020] VSC 721
•29 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S ECR 2020 0203
| IN THE MATTER OF the Bail Act 1977 |
| -and- |
| IN THE MATTER of an application for bail by Harry Dickenson |
---
JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 October 2020 |
DATE OF JUDGMENT: | 29 October 2020 |
CASE MAY BE CITED AS: | Bail application by Harry Dickenson |
MEDIUM NEUTRAL CITATION: | [2020] VSC 721 |
---
CRIMINAL LAW – Application for bail – Applicant charged with Schedule 1 offence –Murder – Exceptional circumstances – Whether unacceptable risk – Risk addressed by strict conditions – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A and 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Morrissey SC | Ann Valos Criminal Law |
| For the Respondent | Mr J Lewis | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
The applicant, Harry Dickenson, is charged with the offence of murder. The alleged offending took place on 21 December 2019.
As the applicant is accused of committing a Schedule 1 offence under the Bail Act 1977 (Vic),[1] both parties accept that bail must be refused unless the applicant can satisfy this court that exceptional circumstances exist that justify the grant of bail.[2]
[1]Schedule 1, item 2.
[2]Bail Act, s 4A.
B. Procedural history
On 2 January 2020, the applicant was arrested and charged with the offence of murder. The applicant has been on remand since that date and has spent just over 300 days in custody.
An application for examinations pursuant to section 198B of the Criminal Procedure Act 2009 (Vic) was made, and granted, in August 2020. Examinations were undertaken before this court on 15 to 19 October, and on 22 October 2020.[3] The informant was the last witness to be examined. In substance he gave evidence that, subject to some foreshadowed forensic evidence and unless something unforeseen occurred, then the evidence that had been presented to date would be the evidence at trial. Yesterday, a notice of intention to call additional evidence was filed which contained a statement from a forensic officer.
[3]A total of 16 witnesses were examined.
The date estimated for trial is in the first quarter of 2022.
C. The alleged offending
The deceased, Billy Ronald Guest, was shot 3 times on the morning of 21 December 2019 at an address in Grovedale. It is alleged that shortly before the shooting the applicant and the deceased had been involved in a drug deal gone wrong, and that the deceased was attending at the Grovedale address to retrieve his wallet. He is alleged to have been shot at the time he approached the residence. An eyewitness has given evidence that the deceased himself was armed with a sawn-off shot gun at the time. The deceased was able to leave the address, but died soon after.
D. The applicant’s background and criminal history
The applicant is 26 years of age and has a significant criminal history, commencing in 2015. This includes prior convictions or findings of guilt for unlicensed driving, committing an indictable offence whilst on bail, drug possession (including of methamphetamine and heroin), possessing a controlled weapon without excuse, possessing cartridge ammunition without a licence or permit, trafficking gamma hydroxybutyrate (known as GHB), using gamma hydroxybutyrate, dealing with property suspected of being proceeds of crime, trafficking and using methamphetamine, contravening a condition of bail, contravening a community corrections order, possessing an unregistered general category handgun, storing an unlicensed firearm and ammunition in an insecure manner, possessing drugs of dependence, possessing a category B long arm unlicensed firearm, dishonestly receiving stolen goods, possessing ecstasy and possessing a weapon without approval.[4]
[4]A number of these offences have been committed more than once.
At the time of the alleged offence, the applicant was the subject of a community corrections order. This commenced on 6 November 2020 and was imposed for unlicensed driving and committing an indictable offence while on bail.
Since being on remand, the applicant has been the subject of serious threats to his life. In response to this, he has been placed in a cell by himself in a protection unit with a separate private “runout”.
Also while on remand, the applicant has undergone treatment for drug addiction. He participated in a drug and alcohol program being offered at the Metropolitan Remand Centre, and attended all scheduled sessions until the program ceased due to the COVID 19 pandemic. He has been tested for illicit substances, with each result being returned negative. He is presently undertaking a methadone program as part of his treatment.
The applicant has been formally diagnosed with a number of disorders: namely, anxiety disorder involving social anxiety and panic disorder; major depressive disorder; and substance use disorder. He has been receiving treatment from a mental health social worker, Caroline Prince, since October 2018 and, according to her, has established a strong therapeutic relationship with her.
On 21 October 2020, the applicant consulted a senior clinician, Amanda Brown, concerning his substance abuse, anxiety and depression.[5] During the consultation, the applicant reported a long-standing history of depression and anxiety and to having been diagnosed with disorders at the age of 18.
[5]Amanda Brown has had more than 20 years of experience in working in drug and alcohol rehabilitation.
Ms Brown reported that the applicant “suffered profound tolerance, had an inability to desist from taking substances despite recurrent physical complications related in part to his use of them and having suffered symptoms akin to that of a withdrawal process when attempting to abstain”. The report noted that, if the applicant were granted bail, he would be required to engage in ongoing treatment with Ms Brown. She stated that the applicant was fully aware of the requirement to remain drug-free, to provide twice-weekly supervised urine drug screens and to attend weekly counselling sessions. She also stated the applicant was aware the process of recovery would continue for a minimum of 12 months and that the applicant had expressed a commitment to his recovery.
Ms Brown gave an undertaking to the court personally to notify the informant (or his nominee) immediately if the applicant were to fail to attend a counselling session, or if he failed to provide a supervised urine drug screen. Further, she undertook to notify the informant (or his nominee) if any drug screening returned a positive result to an illicit substance. She additionally undertook to give such notification if it appeared to her that the applicant was likely to breach his bail conditions.
E. The applicable legislation
The Bail Act is clear that an accused is entitled to bail.[6] This entitlement however is subject to the requirements set out in the Act.
[6]Section 4.
The overarching guiding principles in section 1B(1) of the Bail Act must be kept in mind. When deciding whether to grant bail or not, the court is bound to consider the following matters:
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
The applicant’s offending falls within Schedule 1 of the Bail Act,[7] and therefore falls within the scope of a 2-step test to determine the grant of bail.[8]
[7]Schedule 1, item 2.
[8]Section 4AA(1).
Accordingly, step 1 (the exceptional circumstances test as set out in s 4A of the Bail Act) requires the applicant to show that exceptional circumstances exist justifying the grant of bail. In considering whether exceptional circumstances exist, the Bail Act requires the court to have regard to the surrounding circumstances,[9] including:[10]
[9]Section 4A(3).
[10]Section 3AAA.
(a) the nature and seriousness of the alleged offending ...;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier bail order;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO[11] made against the accused;
[11]DVO stands for domestic violence order.
(g) the accused's personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused …;
(i) the availability of treatment all our support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail conditions of bail;
(k) the length of time the accused is likely to spend custody bail was refused;
(l) the likely centres to be imposed should the accused found guilty of the offence with which the accused is charged; ...
Exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant, and the strength or weakness of the prosecution case.[12] The exceptional circumstances test has been described as follows:[13]
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.
[12]Re Diab [2020] VSC 196, [36] (Beach JA); Re CT [2018] VSC 559, [65] (Champion J).
[13]Director of Public Prosecutions v Muhaidat [2004] VSC 17 [13]-[14] (Kaye J), quoted in Re Reker [2019] VSC 81 [39] (Beale J).
In other words, the circumstances must be such as to take the case out of the normal and, viewed as a whole, be exceptional to the extent to justify bail, taking into account the very serious nature of the charges to which the test is applicable.[14] The threshold for exceptional circumstances is “high” but “not impossible”.[15]
[14]Re CT [2018] VSC 559, [64] (Champion J), quoting Re Sam [2017] VSC 91, [22] (Beach JA), [66] quoting Armstrong v R [2013] VSC 111, [31] (Lasry J).
[15]Re Reker [2019] VSC 81, [40].
If, on this basis, the court is satisfied that the applicant has shown exceptional circumstances sufficient to grant bail, then the court must turn to step 2 (the unacceptable risk test set out in section 4D of the Bail Act). The burden of proof rests on the prosecution both as to the existence of the risk, and, if it exists, that it is unacceptable. In short, the prosecution must satisfy the court that, if bail were granted, there is an unacceptable risk that the applicant would:[16]
[16]Bail Act, s 4D(2)(a).
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any manner; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
Again, step 2 requires to the court to have regard to the surrounding circumstances.[17]
[17]Bail Act, s 4D(3), s 4E(3).
F. The applicant’s position
The applicant relies on a number of matters to seek to satisfy the court that there are exceptional circumstances justifying the grant of bail. In particular, the applicant points to the weakness of the prosecution case, delay, the harsh prison situation he is experiencing personally and an alleged absence of an unacceptable risk. Reference was also made to the effects of the COVID-19 pandemic, and the existence of excellent supports and a surety. Without being exhaustive, the following matters were raised.
First, the applicant relies upon a number of matters in submitting that the prosecution case is weak, namely: there are no admissions from the applicant; no witness has given evidence that they saw the applicant shoot the deceased; other people were at the scene and, it was submitted, another possible shooter has not been excluded; there was no gunshot residue, bullets, blood or other clues at the location pointing to the applicant; and evidence concerning a firearm found at another location was inconclusive in connecting the applicant with the shooting. In these circumstances, it was submitted that the case that the applicant was the shooter was mere conjecture.
Further, in relation to the strength of prosecution case, there were a number of matters relied upon in submitting that (if it were accepted the applicant was the shooter then) the reasonable possibility of self-defence or the defence of others could not be excluded. These included: the violent reputation and prior criminal history of the deceased; evidence that the deceased was in the possession of a shot gun; the deceased’s stated position that he believed the applicant had stolen his wallet; the deceased's attendance at the Grovedale address with the intention to commit an aggravated burglary; the deceased's ongoing and hostile threats to “run through” and “light up” the dwelling at the address; and the deceased's presentation of a gun towards another at the scene while giving an order to that person and then approaching the dwelling. In short, it was submitted that in these circumstances the reasonable possibility of self-defence or defending others could not be set aside beyond reasonable doubt.
Secondly, the delay of more than 2 years before the trial is scheduled to commence was submitted to be an exceptional circumstance, either on its own or in combination with the other factors relied upon.
Thirdly, it was submitted that the prison conditions currently being experienced by the applicant were unusually harsh. Because of the pandemic, cell time has increased, assistance programs are reduced, visitors are restricted, lockdowns are more frequent and, it was submitted, fear was proliferating. Further, as the applicant is an anxious and somewhat vulnerable person, the effects of no contact visits, and limited time out of his cell or in education was said to have exacerbated the situation. Furthermore, this situation has been heightened by credible threats of retribution.
Fourthly, a surety in an amount of $100,000 was relied upon.
Fifthly, the applicant referred to the programs and supports in place if he were to be granted bail.
In relation to unacceptable risk, 2 witnesses were called: Amanda Brown[18] and the applicant’s aunt. Ms Brown gave evidence of her expertise and professional experience, as well as speaking to her report and the measures that would be put in place if bail were granted. She also confirmed her personal undertakings as set out in her report. The applicant’s aunt gave evidence of her background, her agreement to have the applicant reside at her home, together with the applicant’s mother, and her knowledge of the current situation. She gave an undertaking to the court to notify the informant (or his nominee) immediately if she became aware that the applicant had breached his bail conditions or if she perceived there was any sign of him breaching those conditions.
[18]See fn 5 above.
It was submitted that the risk of flight was negligible in circumstances where: appropriate counselling, drug and family support was in place; where the applicant would have strong links to the community in which he would be located which was far removed from the drug-related community in which he previously resided; a very substantial surety was proffered; the applicant would now be visible to the authorities, stronger conditions were available; and, in the current environment, no realistic flight path was available.
In relation to the history of drug use, it was submitted that any risk of offending or placing the public at risk was acceptable because the applicant would be taken out of the “drug world” in which he was previously enveloped and would be subject to suitable treatment. In these circumstances, a high level of oversight was in place. Further, it was submitted that his “supports” would certainly report him to the police in the event he appeared to drift from the regime put in place. Accordingly, it was submitted that the conditions would ensure any breach would be known to the authorities before any re-entry into the drug milieux and related offending behaviour.
The applicant submitted that any risk that would otherwise be unacceptable could be rendered acceptable by the imposition of bail conditions. There was no resistance to the conditions proposed by the prosecution.[19] Indeed, further conditions were suggested by the applicant to enable police to monitor the applicant’s conduct.
[19]See par 43 below.
It is accepted by the applicant that any such conditions would require him to attend for regular treatment, at least on a weekly basis. It is proposed that weekly sessions occur for dual diagnosis counselling and support. Further, arrangements have been made for referral and engagement with treatment including psychiatry, methadone maintenance, and the provision of additional local drug and alcohol support service.
During the hearing the applicant himself stated that he had agreed to the measures put in place, and that he understood any non-compliance would be reported and would have the consequence of his bail being breached, with incarceration to follow.
G. The prosecution’s position
The application is opposed. In relation to whether there are exceptional circumstances, it was not conceded that they existed, but it was further (quite properly) acknowledged that the prosecution understood that it was open that exceptional circumstances may be found to exist on the facts before the court.
As to the strength of the prosecution’s case, the facts as set out in paragraphs 24 and 25 above were not challenged. However, the prosecution said the other 3 persons present at the time of the shooting had all given statements and that it was its position that it could not be realistically suggested that anyone other than the applicant could have been the shooter. Further, reference was also made to events both before and after the shooting which were contended to implicate the applicant. In relation to the issue of self-defence, it was accepted that there was no strict narrative as to how the shooting occurred, which was said to raise issues for the applicant in putting forward a case of self-defence as well as creating issues for the prosecution. Having stated the prosecution’s position, counsel acknowledged that the issues raised in paragraphs 24 and 25 above were matters of significance.[20]
[20]During the s 198B applications the court was informed that the applicant’s lawyers had written to the director of public prosecutions seeking that the proceeding be discontinued based on the weakness of the prosecution’s case. The court was informed today that the director was still considering her position in relation to whether or not the proceeding should be discontinued and that, although a decision had not been made, there was a prospect that it would be discontinued.
Further, in submitting that the applicant presented an unacceptable risk, each of the 4 categories was referred to.
In relation to endangering the safety and welfare of any person, reference was made to the applicant’s extensive history of drug and firearm involvement. It was contended the applicant had a heavy attraction in relation to firearms and had previously been located by police in the possession of a loaded handgun while affected by drugs. By reason of these matters, it was submitted that there are concerns that both his history and attraction to guns pose a risk to the safety of the community.
As to the risk of the applicant committing an offence while bail, the prosecution referred to the fact that there has been 2 occasions where the applicant has engaged in contravening conduct while on bail, including 1 occasion when he was subject to a community corrections order. The applicant has also contravened community corrections orders on 5 separate occasions. In addition, reference was made to the applicant’s drug dependency and persistent involvement with firearms.
With respect to the risk of interfering with a witness or otherwise obstructing the course of justice in any matter, reference was made to the fact that a key witness statement for the upcoming murder trial had been released and was being circulated both inside and outside prison. This was said to have caused the witness to fear for his safety and that of his family. It was further noted that the day after this witness gave evidence as part of the section 198B examinations, the family home of the witness was subject of a burglary, which was considered to be targeted towards the witness. However, there was no evidence to suggest that the applicant was involved in the release of the witness statement or the burglary.
Finally, in relation to the risk of the applicant failing to surrender into custody, it was noted he had been charged with murder. However other than referring to the prospect of a lengthy prison term, nothing further was raised. It was conceded that the applicant had no prior charges in relation to failing to appear.
Although the prosecution opposed the granting of bail, it was submitted that if appropriate conditions were imposed the risk the applicant posed may be acceptable. It was suggested the following conditions ought to be imposed:
(1) The applicant reside at a specified address.
(2) The applicant report daily to the local police station between the hours of 6 am and 10 pm.
(3) The applicant not leave his place of residence between the hours of 10 pm and 6 am and present at the door of his residence between those hours if requested to do so by Victoria Police.
(4) The applicant not consume any drug of dependence.
(5) The applicant not possess, manufacture or otherwise deal in any way with firearms or firearm accessories and ammunition.
(6) The applicant not attend at the residence of or associate with any person in possession of a firearm, firearm accessories or ammunition.
(7) The applicant attend all appointments and follow all directions of Caroline Prince and Amanda Brown in relation to treatment and rehabilitation programs and services.
(8) The applicant not entered the boundaries of the local government areas of the City of Greater Geelong, the Borough of Queenscliff or the Surf Coast Shire, except for the purposes of attendance at court and related appointments (including medical/mental health), or for the purpose of travelling between locations which are outside those local government areas where the normal travel route requires travel through the boundaries of those local government areas.
(9) The applicant not attempt to locate or communicate with any witness for the prosecution except the informant, or any member of the victim's family, and not cause anyone to do so on his behalf.
(10) The applicant not leave the State of Victoria.
(11) The applicant surrender any passports.
(12) The applicant not attend at any point international departure.
(13) Surety as proposed by the applicant.
H. Analysis
The key factors in this application include the real and substantive issues that have been raised in relation to the weaknesses of the case against the applicant and the very substantial supports that have been put in place if bail were granted. In my view, when these are considered in combination, they amount to exceptional circumstances. Further, the conditions the applicant is currently facing while on remand, the prospect of facing in excess of 2 years of incarceration before trial and a surety of $100,000 only heighten the exceptional circumstances relating to this application.
Further, despite the very chequered background of the applicant, much of it has a very strong connection with his previous ongoing drug use. In the strict regime that has been put in place, any ability to take drugs has effectively been curtailed as any lapse will be almost immediately be detected and will result in bail being breached and the applicant being placed on remand again.
Conditions of bail
For the reasons stated above, bail is granted on the applicant’s own undertaking and on the following conditions.
The Applicant be released on bail on his own undertaking with a surety in the sum of $100,000, with the following conditions attached:
(1) The applicant reside with his maternal Aunt at a nominated address.
(2) The applicant report daily to a nominated police station between the hours of 6 am and 10 pm.
(3) The applicant not leave his place of residence between the hours of 10 pm and 6 am and present at the door of his residence between the aforementioned hours if requested to do so by Victoria Police.
(4) The applicant not consume any drug of dependence.
(5) The applicant not possess, manufacture or otherwise deal in any way with firearms or firearm accessories or ammunition.
(6) The applicant not attend at the residence of or associate with any person in possession of a firearm, firearm accessories or ammunition.
(7) The applicant attend all appointments and follow all lawful directions of Caroline Prince and Amanda Brown in relation to treatment and rehabilitation programs and services.
(8) The applicant not enter the area depicted on the attached map, encompassing the boundaries of the local government areas of the City of Greater Geelong, the Borough of Queenscliff or the Surf Coast Shire, except for the purposes of attendance at court and related appointments (including medical/mental health), or for the purpose of travelling between locations which are outside of those local government areas where the normal travel route requires travel through the boundaries of the aforementioned local government areas.
(9) The applicant not attempt to locate or communicate witness any witness for the prosecution except the informant, or any member of the victim’s family, and not cause anyone to do so on his behalf.
(10) The applicant not leave the State of Victoria.
(11) The applicant surrender any passports.
(12) The applicant not attend at any points of international departure.
(13) The applicant be limited to possessing a single handset and sim card, and provide Victoria Police with the telephone number associated with it.
(14) The applicant notify the informant of any proposed employment, prior to commencing.
(15) The applicant is to attend the Supreme Court of Victoria at 9:30 am on 11 November 2020 before Judicial Registrar Freeman and surrender himself, and thereafter as directed by the court.
4
0