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:

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

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

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.

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

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.

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.

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

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.

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.

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.

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…

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 Carroll v Queen

Details

AGLC: Carroll v Queen [2001] VSC 180
Case: [2001] VSC 180
Decision Date: 6 June 2001

CaseChat Overview and Summary

The parties involved in this case were Carroll, the applicant, and the Queen, the respondent. The applicant was facing a charge of murder and applied for bail. The central issue in this appeal was whether the primary judge had erred in refusing the applicant's bail application. The applicant contended that the primary judge had failed to consider whether the Crown's case was weak, in addition to the other considerations set out in s 16A(2) of the Bail Act. The applicant also argued that the primary judge had erred in not taking into account the exceptional circumstances of his case in deciding whether to grant bail.

The court found that the primary judge had not failed to consider the strength or weakness of the Crown's case as an independent consideration. Instead, the primary judge had considered the strength of the Crown's case as part of the overall assessment of the risk factors. The court also found that the primary judge had not erred in not taking into account the exceptional circumstances of the applicant's case. The court held that the primary judge had considered the exceptional circumstances of the applicant's case, but had concluded that they did not outweigh the risk factors. The court ultimately upheld the decision of the primary judge and refused the applicant's bail application.

The court found that the primary judge had not erred in refusing the applicant's bail application. The court held that the primary judge had considered all relevant factors and had made a reasoned decision based on the evidence before him. The court also held that the primary judge had not erred in concluding that the risk factors outweighed the exceptional circumstances of the applicant's case. The court ultimately upheld the decision of the primary judge and refused the applicant's bail application. The final orders of the court were that the applicant's bail application be refused.

Orders