Director of Public Prosecutions v Kilpatrick
[2018] VCC 2305
•14 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-17-02119
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE KILPATRICK |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 June 2018 |
| DATE OF SENTENCE: | 14 June 2018 |
| CASE MAY BE CITED AS: | DPP v Kilpatrick |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2305 |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Application for bail – Strong Crown case – Applicant’s poor compliance with bail obligations – Unacceptable risk of further offending – Applicant has not shown cause as to why detention no longer justified
Legislation Cited: Bail Act 1977
Judgment: Application for bail refused
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms E. Ramsey | Solicitor for Public Prosecutions |
| For the Accused | Ms H. Bate | VLA |
This is a judgment in respect of a bail application made by Dale Kilpatrick who was remanded in custody on 14th December, after his bail was revoked by the consent of the parties.
It is agreed by the parties that the amendments to the Bail Act do not apply to him, but rather, he comes under the old regime and is in a show cause position-that is, He must show cause as to why his detention in custody is not justified. I understand that the Prosecution also submits that the Applicant poses an unacceptable risk of interfering with witnesses and failing to answer bail.
Mr Kilpatrick is charged with Aggravated Burglary and theft as well as summary charges of assault in company and assault with a weapon. As I understand the situation, the aggravated burglary is put on the basis of an intent to steal and the aggravating circumstances alleged are on the basis a person being present within the complainant’s premises, and also, of the accused having a weapon.
The Applicant denies the allegations and there is a trial listed on 10th September this year.
The application commenced before Her Honour Judge Hannan on 21st May this year and adjourned to 30th May, upon the Defence’s application in order for them to obtain an appointment for drug treatment for the applicant at SECADA. On 21st May, the prosecution called Mr Dalzotto who had recently become the police informant in the matter due to the lack of availability of the original informant. He read the original informant’s summary which was prepared for the purposes of the bail revocation proceeding in December 2017. He updated some aspects of this summary as he went along.
Defence called two witnesses, namely, the accused’s girlfriend, Kate Russell and the applicant’s father, Stephen Ramsay. Defence made a number of submissions following evidence but sought an adjournment in order to obtain an appointment for the accused at SECADA.
On 30th May, Her Honour, Judge Hannan became unavailable and the matter then came before me for determination. It was agreed that the application ought be heard anew by me. After Counsel viewed the recording of the proceedings on 21st May, they each indicated to me that they were content to rely on the evidence placed before Her Honour on the previous occasion, as well as submissions put, save that they agreed that the application for bail was subject to the ‘old law’, whereby the applicant was in a show cause situation. Ms Ramsay indicated that she would file further submissions in order to take account of that evidence and matters which had arisen since that time. I have now received and considered these. I asked the prosecution to provide further written submissions which I have now received and considered. At the hearing on 21st May, Mr Dalzotto gave evidence of his view in respect of the applicant being an unacceptable risk of breaching bail.
Evidence to be relied upon by the Crown
I now turn to the summary of evidence which was given via Mr Dalzotto on 21st May, and which gives rise to the charges. He said, by way of background that the accused and the complainant knew each other as they had been friends for about 7 years, and the accused had previously lived at the complainant’s home for a number of months. However, in April 2016, the complainant had asked the applicant to leave, due to tensions having arisen between them. The applicant moved out, leaving a tanning bed behind, which was being stored in the garage.
At about 4am on 11th June 2016, the applicant and a co-offender, whose identity has not be ascertained, attended the home of the complainant, who was asleep with his girlfriend in the front lounge room of his home.
10.It is alleged that the accused and co-offender knocked loudly at the front door, awakening the complainant and his girlfriend. The complainant yelled out ‘Who is it?’ and the applicant replied ‘It’s Switcher’, which I understand is the nickname that the accused goes by. The accused said that he wanted his tanning bed back, and the complainant told him that in view of the time, he wasn’t going to allow him to retrieve this. It is alleged that the accused continued to ask for the tanning bed and banged on the door more forcefully. The complainant reached for his phone to call the police, and as he did so, he drew back the blinds near the front door. He saw the co-offender with a steel pole. The co-offender then smashed the window and entered the house. The complainant yelled to his girlfriend to go to their bedroom, and the co-offender allegedly attacked the complainant with the steel pole, giving rise to the summary charges. The complainant saw the accused going in through the broken window as the co-offender chased him up the stairs, swinging the steel pole at him. One of the balustrades was damaged in the course of this.
11.The complainant and his girlfriend locked themselves in the bedroom until such time as the accused and the co-offender left the downstairs area. When they came out of the bedroom, the complainant noticed that a number of valuable belongings including two mobile ‘i-phones’ had been stolen, and that the accused’s sunbed was gone. The complainant called the police, as did a neighbour.
12.A steel pole was found on the nature strip.
13.At a time between 6 and 7am that same morning, using the ‘find my iphone’ application, the complainant traced one of his stolen phones to Acacia St, Doveton, which, as I understand the position, is the street where the accused was living with his parents.
14.On 13th September 2016, police executed a search warrant, but did not find any items that had been stolen from the complainant’s home. They found a samurai sword and some pills, giving rise to charges of possess a prohibited weapon (summary) and possess a drug of dependence, respectively.
15.On 14th September 2016, the accused took part in a ROI and said a number of things including the following:
16.He had tried to call the complainant but he hadn’t answered
17.He went to the complainant’s home to get the tanning bed back
18.He had a discussion with the C at the front door.
19.The C told him that he was going to call the police.
20.He had driven to the C’s house alone in a friend’s ute and had put the tanning bed in the back.
21.As he was leaving, he saw a silver or blue Tarago van parked near the C’s address and saw 4 or 5 large males walking in the direction of the C’s house. He did not see any of these with weapons. He then left.
22.According to the summary of prosecution opening, the prosecution will rely on phone records to allege that the accused lied about trying to call the C ahead of his visit, and that this goes to his credibility.
23.When cross-examined, Mr Dalzotto said that he had not had any conversation with the victim in relation to his attitude to bail. He did not dispute that the applicant’s mother was supportive of her son living at the family home when he was originally granted bail but was no longer supportive of him residing with them at the time of the bail revocation proceedings in December. Mr Dalzotto agreed that the applicant had been spoken to in relation to his contact with the witness at the Dandenong Magistrates Court, and that the applicant had denied using any threatening words. He also agreed that he had checked police records in relation to the applicant’s girlfriend, Ms Russell, and there was nothing of concern in respect of her.
Applicant’s history/alleged history in relation to compliance with bail
24.The Applicant has a criminal history dating back to 2007, with 2 charges of failing to answer bail for which he was dealt with on 27th November 2017.
25.He was initially remanded for the matters for which he now seeks bail on 14th September 2016, and was bailed the next day with conditions including the condition that he must not contact witnesses save for the informant, and requiring him to report to his local police station on three prescribed occasions per week.
26.However, he failed to appear at Court for the contested committal hearing on 24th May last year and a warrant was issued for his arrest. He failed to report to police on bail as required on 6 occasions from 31st May 2017 2017 to 19th October 2017.
27.The applicant is alleged to have approached the Complainant on 19th October 2017 at the contested committal hearing, and to have stated the Complainant’s new address, saying that he would be seeing him. When confronted with this allegation that day, the applicant denied it. In any event, the applicant was given a clear warning by the police informant, in the presence of his solicitor that any further breaches of his bail conditions in this regard would not be tolerated. The applicant was told that an application would be made for his bail to be revoked if he breached his bail conditions again.
28.It is alleged that the Applicant approached another prosecution witness on 27th November 2017 at the Dandenong Magistrates Court, and is alleged to have told him that he would not be leaving Court without a flogging, and saying that the witness knew that he didn’t hurt the C. He approached him a second time and stood over the witness in an intimidating fashion, saying that he had a nice phone. This witness felt intimidated and reported the matter to police shortly after the second approach. CCTV footage confirmed that the applicant did approach the witness on two occasions-according to the summary of the original informant which was read aloud by Mr Dalzotto, the applicant is seen to stand over the witness in an aggressive manner on each occasion. It is evident that the applicant accepts that he did approach the witness on these occasions, but denies he was threatening in any way. He has now been charged with breaching bail in respect to this witness, which is yet to be determined. He has not been charged with threatening a witness or attempting to pervert the course of justice.
29.In any event, the applicant consented to his bail being revoked on 14th December last year, and he has been in custody ever since.
Matters relied on in support of bail application
30.In support of his bail application, the applicant relies on evidence given by his girlfriend, Ms Russell and his father Mr Ramsay, evidence of his good behaviour whilst on remand, and evidence of his preparedness to engage in drug treatment and to obtain employment if released on bail.
31.Ms Russell gave evidence that she and the applicant have known each other since primary school and have had an on again/off again relationship over the past ten years. She said that she didn’t want anything to do with him for about three months before he went into custody because of his drug taking and the people he was mixing with. However, about two days before he went into gaol, she saw a change in him which involved a preparedness to take responsibility for his actions. She was then prepared to resume a relationship with the applicant and had been visiting him twice a week whilst he has been on remand and spoke to him on the phone several times a day. She said that she was happy for the applicant to reside with her if he was released on bail and that she would not tolerate drug taking. She did not drink or take drugs, and said that if the applicant resumed drug taking, or breached any other bail conditions, she would call the police immediately.
32.She said that she would support and be in a position to monitor any curfew condition that the Court might impose. While she works in retail during the day from Sunday to Thursday, she would be home each night on those days after finishing work at 6. Ms Russell gave evidence that the applicant had changed his outlook significantly since being on remand, and was now wanting to focus on his family, and to leave his old acquaintances behind. She gave evidence that he also wished to engage with his 10 year old son from another relationship-that all he wanted to do was to be at home with his family, and work. She agreed that the applicant had recently been informed that he might be the father of another child and that if this was shown to be the case, he was eager to be involved in this child’s life too.
33.Ms Russell said that as the applicant had now completed a traffic management course, he had a job lined up and if this didn’t work out, he was hopeful of obtaining a position in this field.
34.I should add that when Mr Dalzotto was giving evidence in chief, he said that he had no concerns about the address that the applicant proposed to live at if granted bail and he had no concerns about the proposal that the applicant reside with Ms Russell.
35.Mr Ramsay, the Applicant’s father gave evidence in a similar vein to Ms Russell insofar as the Applicant’s drug addicted erratic behaviour before being remanded and his dramatic ‘about face’ since being in gaol. He said that he would call the police if his son were to breach his bail conditions, and had told him that he had to face up to what he had done. Mr Ramsay said that he had a zero tolerance of drugs. He spoke of kicking his son out of their home due to his drug affected behaviour, but that his son had now changed completely. Mr Ramsay said that before his son became a drug addict, he had a fairly solid work history. He also praised the applicant’s girlfriend, saying that she was a very good person who would not put up with any poor behaviour by the applicant.
36.Mr Ramsay also gave evidence of an occasion when he and the applicant attended a local social club, and upon seeing the Complainant there, the applicant left immediately as he was conscious of his bail obligations. I am unsure as to when this was, but, obviously, it must have been at a time before his bail was revoked.
37.When making submissions, Ms Ramsay confirmed that the applicant’s drug use had escalated during the last 6 months that he was on bail.
38.In addition to the evidence given by Ms Russell and Mr Ramsay, Defence also relies on the following matters in support of its submission that the applicant has shown cause as to why his detention is not justified and is not an unacceptable risk of breaching his bail obligations:
A. A bundle of references from those working with the applicant whilst he has been on remand which indicate that he is a model prisoner with a good work ethic, leadership skills and a genuine, pro-social change in his outlook.
B. A series of drug screens all of which are clear.
C. Documentation showing he has an appointment with SECADA on19th June 2018 if released.
D. Documentation in relation to employment prospects including appointments arranged by Melbourne City Mission with McLabor and VicForce if he were to be released.39.The applicant submits that in view of the following matters, I ought be satisfied that he has shown cause as to why his detention is not justified, and that he is not an unacceptable risk of breaching bail obligations if he were released:
A. His well evidenced shift in attitude whilst on remand,
B. His strong supports in the community,
C. The offer of stable accommodation by his girlfriend, and her preparedness to call the police if the relationship ends and the applicant can no longer live at her address
D. His father and girlfriend’s preparedness to closely supervise the applicant and to call the police if he breaches bail conditions,
E. His strong employment prospects,
F.His willingness to undergo drug rehabilitation as required by SECADA,G. His willingness to be subject to strict bail conditions
H. His strong wish to engage with his 10 year old child who is suffering in his absence and to take care of another child, Levi, if he is shown to be the father.
H. The salutary experience of incarceration which has helped him to determine to abide by bail requirements in the future.
I. The contrast between his present state and his drug affected state at the time that he is alleged to have threatened witnesses.
J. The contact that he had with the witness at the Dandenong Magistrates Court was a chance meeting rather than the Applicant seeking out any witness. He had been on bail for about 12 months before this alleged incident occurred without any attempt to contact witnesses.K. While the Crown case is not a weak one, it is dependent on the evidence of one eye witness whose credibility will be a central issue at trial. Further, it is submitted that the Crown case for aggravated burglary is problematic as they must prove an intention to steal in circumstances where they say that the applicant went to the Complainant’s premises to recover his own property-that if he is found guilty of a lesser offence, his remand time might well outlast any sentence that he might receive.
Prosecution’s position
40.The bail application is opposed by the prosecution. Toward the end of his evidence, Mr Dalzotto said that the applicant was an unacceptable risk of interfering with witnesses and of failing to appear when required to do so. He later added that he was also an unacceptable risk in terms of fleeing from police, as when police arrested him, he had been kicked out of his mother’s address, was living with a friend and was fleeing from police. He was found in possession of a flick knife at that time.
41.He also gave evidence that he was unable to contact the complainant to ascertain his attitude toward the bail application.
42.The prosecution submits that the applicant has failed to show cause as to why his detention is not justified. Ms Fallar set out the chronology of the proceedings and allegations as to the applicant’s conduct since the alleged offending, arguing that his history of failing to answer bail, his failures to comply with various grants of bail in respect of his trial in September, and his alleged interference with witnesses make him an unacceptable risk of failing to answer bail, of committing an offence whilst on bail and of interfering with witnesses or otherwise obstructing justice.
43.In support of her submissions, Ms Fallar points to considerations to which I must have regard pursuant to s.4 of the Bail Act, namely, the seriousness of the alleged offences, the applicant’s antecedents, the applicant’s poor compliance with bail in the past, and the strength of evidence against the Applicant in respect of the matters at trial.
44.Ms Fallar also submits that delay of three months from now till trial is not inordinate, that any drug counselling or treatment would be voluntary and unsupervised by the Court, and that he only has prospective employment rather than actual employment to go to. Further, she submits that the applicant has had a child to look after for the last ten years but that this did not deter him from taking drugs and allegedly engaging in conduct which is the subject of charges that he now faces. She submits that it is difficult to see how the applicant proposes to be a part of the other child’s life, if he is shown to be the father, as his own affairs are yet to be in order.
45.Ms Fallar submits that despite the best intentions of the applicant’s partner, her relationship with the applicant has not been a stable one and has only recently been rekindled, and if it were to fail, despite the assurances of Ms Russell, the applicant’s position in respect of bail will again be an uncertain one. Ms Fallar submits that despite the good intentions of the applicant’s father, it is not clear as to his level of ability to monitor the applicant if he were to become drug addicted again. She also points to the accused’s past breach of a CCO and his breach of bail conditions. She makes further submissions which relate to the applicant’s drug use and essentially says that in the absence of a residential drug treatment regime, there is no assurance that the applicant will be effectively treated.
46.The attitude of the complainant is another matter which I must consider and which is relied on by the prosecution. The complainant has indicated through the prosecution that he would be unhappy if bail were granted due to concerns about the accused’s alleged offending, his understanding that the accused had breached his bail in the past and that he is aware of the complainant’s current address.
Decision
47.In deciding whether the applicant has shown cause as to why his detention is not justified, and whether he is an unacceptable risk of breaching his bail, I have considered the submissions of each of the parties and the evidence placed before me.
48.Although Ms Ramsay submitted that there is only one eye witness to the accused’s alleged offending, it seems to me that there are potentially two witnesses to it as the complainant’s girlfriend was also present and, as I understand the situation, she recognised the voice of the applicant. She did not demur from her evidence in this regard at the committal hearing. Of course, voice recognition can be a problematic area, but, as presently advised, she would give evidence which also identifies the accused.
49.The Crown also relies on the accused’s admission in the record of interview that he was at the complainant’s premises at about the time of the alleged offending, in search of his sunbed. I have also factored in the tracing to the applicant’s residential street of one of the C’s phones-although, it is unclear whether evidence independently of the C and his girlfriend is to be adduced in relation to the ‘Find my i-phone’ search. As I understand the way in which the Crown puts its case, it relies on phone records to undermine the accused’s credibility in respect of his account to the police, and would argue that the accused’s innocent explanation for his presence at the C’s address at the relevant time ought be put to one side, bearing in mind of course, that there is no onus on the accused to prove anything.
50.The defence to the Crown case is in keeping with the account given in the ROI. Ms Ramsay submits on behalf of the applicant that the only eye witness to the alleged offending is the Complainant whose credibility will be challenged in the context of him apparently having a significant criminal history in respect of drug trafficking and possession-she did not refer to any criminal history in respect of dishonesty offences.
51.In any event, Ms Ramsay conceded that the Crown case is ‘not a weak one’, and in view of the matters to which I have previously referred, even without the C’s girlfriend giving evidence, I am of the view that the prosecution case against the applicant in terms of his identification is fairly strong.
52.The Defence also argues, however, that even if the prosecution could prove that the applicant is the culprit, it will be difficult for them to prove that the accused entered the premises with the intention to steal, as, they say, even on the Crown case, he attended in order to recover his own property. Defence submits that if the applicant were to be found guilty of an offence which is lesser than aggravated burglary, ‘he will have served more time on remand than his ultimate sentence.’ Whilst this might be so, the accused’s intention in attending the C’s premises on the occasion in question, will be a matter for the jury, determined on the basis of the evidence that the jury accepts, and inferences that can be properly drawn. It would be open to the jury to infer that the accused attended the premises with an armed co-offender in order to both recover his property and steal other items of value. Even if the accused were to be found guilty of lesser offences however, it is by no means clear that his sentence would be a lower one than his remand period, if bail were to be denied by me-this argument is somewhat speculative. On balance, I regard the prosecution case as rather strong.
53.The applicant has a concerning history in respect of meeting his bail obligations. He has two prior convictions for failing to answer bail, and I am very concerned about his failures to observe his bail obligations which led to his remand. In particular, his flagrant and brazen breach of his obligation not to contact witnesses, having been expressly warned about this on a previous occasion, is breathtaking. He has now been on remand for about 6 months, and has done a good deal during that time to show that he can obey rules and that he has changed for the better. He is now drug free, which is to his credit, however, these changes have to be seen in the context of him being in a structured and controlled environment- it is potentially another thing for him to be in the community and to maintain his abstinence.
54.He is well supported in the community, but he has always had these supports to look to-in the past, these were not enough to keep him away from drugs and to abide by his bail obligations, to the point where he was told to leave his mother’s address and no notification was given in respect of his new address. It is only three months until the applicant’s trial- in saying this, I do not under estimate that each day in gaol is a long one- but I regard the Crown case as a rather strong one-if proven, the strong likelihood is that the accused would receive a substantial custodial sentence.
55.I have also factored in the complainant’s attitude to bail, to which I have previously referred. However, I make it clear that his attitude is but one matter that I have taken into account, and is by no means decisive of the application on its own.
56.While the offers of Ms Russell and Mr Ramsay are noble ones, I do not believe it to be a satisfactory arrangement for them to be placed in the position of monitoring the applicant, a grown man who has previously been a law unto himself, and to report him to police if he is taking drugs or in breach of his other bail conditions. Further, they cannot be monitoring him all of the time on a daily basis, especially as Ms Russell is working five days a week from 10 to 5.
57.While there is a good body of evidence of the applicant’s changed attitudes whilst in custody, of the willingness of his girlfriend and father to closely monitor him, of his willingness to undertake drug counselling and treatment as required with SECADA, and of his good prospects for employment, in view of the seriousness of the alleged offending, the strength of the crown case, the relatively short delay till trial, and the applicant’s recent and serious history in respect of flouting his bail obligations which have had the potential to derail his trial, I am not satisfied that the applicant has shown cause as to why his detention is no longer justified. Further, in view of his poor compliance with his bail obligations in the recent past, his preparedness to take drugs whilst on bail, and to ignore warnings about approaching witnesses in the context of a fairly strong prosecution case against him, I am of the view that he is an unacceptable risk of committing offences whilst on bail and of interfering with witnesses.
58.In arriving at these conclusions, I make it clear that I have not assumed his guilt in relation to the allegation that he approached the complainant or actually threatened the second witness, but I have factored in that he was expressly warned about approaching witnesses after the first alleged incident and yet only 38 days later, approached another witness twice. I have also factored in his father’s evidence of the occasion where his son avoided contact with the complainant, however, it does not change the fact that he has breached bail on those other occasions, and, in the context of a case against him which is rather strong, I am concerned that there may well be an incentive in the applicant making further contact with witnesses. This is especially the case where he is at risk of resuming drug consumption once he were to leave the structured environment that he is presently in.
59.Therefore, Mr Kilpatrick’s application for bail is refused.
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