Carroll v Queen

[2001] VSC 180

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1444 of 2001

ASHLEY DOUGLAS CARROLL	Applicant
v.
THE QUEEN	Respondent

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 MAY 2001
DATE OF JUDGMENT:	6 JUNE 2001
CASE MAY BE CITED AS:	CARROLL v. THE QUEEN
MEDIUM NEUTRAL CITATION:	[2001] VSC 180

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CATCHWORDS:          Bail application – Murder – Self-defence – Strength or weakness of Crown case – No exceptional circumstances – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. M. Bourke	Galbally & O'Bryan
For the Respondent	Mr. C. Ryan	Acting Solicitor for Public Prosecutions

HIS HONOUR:

1. I have before me an application for bail by Ashley Douglas Carroll.

1. On 7 September 2000 the applicant and a co-accused named Eaves were arrested by police and charged with the murder of Peter Nicola.

1. On 28 March 2001 the applicant and Eaves were committed for trial in this Court by order of the Melbourne Magistrates' Court.  As things presently stand they are to appear at a directions hearing on 17 July 2001.  In the ordinary course of events they will face trial towards the end of this year or early in 2002.

1. The circumstances leading to the death of the deceased may be summarised as follows.

1. In June 1999 the applicant and Eaves commenced to live together at premises in Cranbourne.  At the request of a man named Noble they commenced to cultivate cannabis in a bedroom in the house.  Noble also introduced them to the deceased.

1. The evidence given at the inquest was to the effect that the deceased was a violent person and was known to carry firearms.  He had a number of prior convictions for serious criminal offences including armed robbery, drug trafficking and being in possession of firearms.

1. The deceased was then aged almost 40, the applicant and Eaves were each aged about 20.

1. It was the deceased who obtained the necessary equipment for the three men to grow the cannabis.  In all some three different crops of cannabis were planted between June 1999 and July 2000.

1. On 8 July the deceased removed the cannabis then growing in the bedroom and the equipment from the house to enable the owner of the premises to make an inspection of them.  He later refused to give the applicant and Eaves any share of the proceeds of the sale of the cannabis.

1. On the night of either 3 or 4 August 2000 the deceased visited the premises.  The applicant and Eaves again demanded a share of the proceeds from the sale of the cannabis.  The deceased refused their requests.  He then walked over to a bag he had with him and which was on the floor as if to get something out of the bag.

1. It is the case for the applicant that he feared that the deceased was about to remove a pistol from the bag.  That fear was based on the fact that on an earlier occasion when the deceased had left a bag at the premises the applicant and Eaves had searched the bag and had found a .45 calibre semi automatic pistol in it.

1. As the deceased leant over the bag Eaves walked up behind the deceased with the leg of a table he had removed from the table, and struck the deceased over the head with it causing the deceased to fall face down on to the floor.  Eaves continued to strike the deceased numerous times to the top of the head with the table leg.  As he was doing that the applicant picked up an iron bar and started to strike the deceased on the torso region of his body.

1. The deceased lay motionless on the floor but making moaning and gurgling noises.  One of the two men then wrapped the upper body of the deceased in a blanket and tied electrical cable around the head and neck region until the deceased was silent.

1. Either later that night or the following day the two men cut the clothing from the deceased's body, wrapped his body in blankets and plastic bags, and placed it in the boot of the deceased's motor car.  They then killed the deceased's dog, which was in the backyard of the premises and placed its body in the boot of the car.

1. The applicant then drove the vehicle to the Tarra Bulga National Park.  Eaves accompanied him in the passenger seat.

1. At the park they buried the body of the deceased in a shallow grave and disposed of the body of the dog.

1. Some weeks later the applicant and Eaves became aware of the fact that the police were seeking them in relation to the disappearance of the deceased.  After seeking legal advice, they surrendered themselves to the police on the evening of 7 September 2000.

1. The applicant supplied investigators with a previously prepared three page handwritten statement and on the advice of his solicitor effectively refused to answer any further questions.

1. During interviews of Eaves, Eaves told the police of his involvement in the deceased's death.

1. On 8 September 2000 Eaves directed the police to the Tarra Bulga National Park where the body of the deceased was exhumed from the grave.

1. The handwritten statement handed by the applicant to the police reads:

"I, Ashley Carroll of 12 Bundjil Court, Cranbourne want to say that I wish to tell the police about the circumstances of the death of Peter Nicola.

I have been to see my solicitors because of the death and because I wanted to tell the police about it.  My solicitors have told me that I don't have to answer any questions but had recommended that I tell the police what happened and so Peter Nicola's body can be located.

Jay Eaves and I have known Peter Nicola for a period of 10 months.  He told us that he had been in trouble with the police a lot and he told Jay that he had shot somebody in the past.  Over the past few months we have become very afraid of him.

He had left some things at our house including a bag.  When he wasn't there we looked in the bag and found a gun.  This made us feel uneasy.  This is the gun that was later taken from my friend by the Cranbourne Police.

On the day of the incident he came to our house and an argument developed.  We knew that he had a gun in his bag and were very afraid that he may use it.  As the argument got more heated he went for the bag and a fight developed.  We thought that he was going for his gun so I picked up a bar as a means of preventing him getting to the gun in the bag.  I was very frightened.

I can't say how many times I struck him as I was really frightened and afraid of what he might do to us.  I can remember him making noises and that really scared me.  I never intended to kill him.

We panicked and left the house and didn't know what to do.  He had told us that he had some very tough friends and associates.

We realised that we should have gone to the police then.  Later we went back to the house, he was dead, so we wrapped him in a blanket and took him in his car in the bush near the Yarram area.

I have told my solicitors that I will take them and the police up to Yarram to try and find where we buried him.

ASHLEY CARROLL 7/9/00"

1. The final matter to note concerning the death of the deceased is that it is the opinion of the forensic pathologist who examined the deceased's body after it was located by the police that the deceased died from head injuries with multiple scalp lacerations, comminuted skull fracture and probable diffuse brain injury;  that it was unlikely that the injuries inflicted to the lower body of the deceased were the cause of his death.

1. In contending that the case against the applicant is weak, counsel for the applicant relied upon the following matters.

1.It was Eaves who first struck the deceased a blow to the head.  On the evidence as it presently stands the blow or blows struck by the applicant were to the lower body of the deceased.

2.        Death was caused by the head injury not the blow or blows to the lower body.

3.In his handwritten statement the applicant has squarely raised self-defence.  This is significant in view of the deceased's prior record, propensity for violence and known possession of a hand gun.

4.The applicant and Eaves were much younger than the deceased and could not be categorised in the same criminal class as the deceased.

5.Nothing in the forensic evidence conflicts with the applicant's statement that he acted in self-defence nor with the applicant's account of what occurred.

6.        The situation may have been that the applicant only struck the deceased once.

7.There was no premeditation or preconceived plan on the part of the applicant and Eaves to kill or seriously injure the deceased.

8.The later concealment of the body should not be found to demonstrate a consciousness of guilt.  It was done more in panic and from fear that accomplices of the deceased may retaliate against the applicant and Eaves if they found out what had occurred.

1. I am not persuaded that those matters whether considered singly or in combination demonstrate that the Crown case against the applicant is weak.

1. The undisputed fact is that the deceased met a violent death at the hands of the applicant and Eaves and that following his death the applicant and Eaves did everything they could to conceal the body of the deceased and the fact that they had caused his death.

1. I have little doubt that all the arguments advanced before me will be advanced before the jury during the course of the trial.  It will ultimately be for the jury to determine what weight should be attached to them.

1. In my opinion there is nothing else in this case which could be said to constitute exceptional circumstances and the application for bail, therefore, must be refused.

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