Director of Public Prosecutions v McKee

[1998] VSC 195

SUPREME COURT OF VICTORIA

PRACTICE COURT

Not Restricted

No. 1587 of 1998

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v.
TRACY JOAN McKEE	Defendant

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 OCTOBER 1998
DATE OF JUDGMENT:	30 OCTOBER 1998
CASE MAY BE CITED AS:	DPP v. McKEE
MEDIA NEUTRAL CITATION:	[1998] VSC 195

---

CATCHWORDS: BAIL ACT 1977, s.13(2) - Murder - Exceptional circumstances - Undue delay - Weakness of Crown case - Power of Magistrates' Court to vary bail in cases of murder.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T. Gyorffy	Office of Public Prosecutions
For the Defendant	Mr. S. Cash	Dan Causovski

HIS HONOUR:

1. This is an appeal by the Director of Public Prosecutions pursuant to the provisions of s.18A of the Bail Act 1977 against the order of the Melbourne Magistrates' Court made on 8 September 1988 whereby the respondent Tracy Joan McKee was granted bail on a charge of murder.

2. The order made by the committing Magistrate was that the respondent be released on bail on her own undertaking with a surety of $50,000 and on the following special conditions.

   1.          That the respondent report to the officer-in-charge of the Bendigo Police Station or his nominee daily between the hours of 6 a.m. and 9 p.m.

   2.          That the respondent reside at 39 Sullivan Street, Inglewood.

   3.          That the respondent notify the informant within 48 hours of any proposed change of address.

   4.          That the respondent not contact any prosecution witness directly or indirectly with the exception of the informant.

   5.          That the respondent not attend any points of international departure.

   6.          That the respondent surrender any passport held by her and not apply for any other passport.

3. It would appear that the respondent was unable to provide a surety of $50,000 and on 9 October made application to a Magistrate other than the committing Magistrate to reduce the amount of the surety. The Magistrate in question acceded to the application and reduced the security required to one of $25,000. It is now argued on behalf of the Director that he had no power to do so.

4. What is said in that connection is that if one has regard to the provisions of s.13(2)(b) of the Bail Act 1977 a person charged with murder can only be released on bail by the Supreme Court, a Judge of the Supreme Court or the Magistrate who commits the person for trial for murder.

5. Section 4(2)(a) of the Act provides that a Court shall refuse bail in the case of a person charged with murder except in accordance with s.13.

6. Court is defined in s.3 of the Act to mean, "court or judge and, in any circumstances where a member of the police force or other person is empowered under the provisions of this Act to grant bail, includes that member or person".

7. Section 13(2)(b) of the Act reads:

   "Bail shall not be granted to a person charged with treason or murder
   unless-

   (b)     in the case of a person charged with murder-

(i)	the Supreme Court;
(ii)	a Judge of the Supreme Court; or
(iii)	the Magistrate who commits the person for trial for murder -

is satisfied that exceptional circumstances exist which justify the
making of such an order."

1. It is said that s.13(2)(b) evinces a clear intention to exclude the Magistrates' Court or County Court from exercising the power to grant bail where the charge is murder. The only exception to the jurisdiction being exercised exclusively by the Supreme Court is that relating to the Magistrate who commits the person for trial. The exception is specific and identifies a person not an institution or a body.

2. It is said the underlying policy behind the exception is that a committing Magistrate having heard the committal proceeding is then fully aware of -

   1.          The nature and seriousness of the offence.

   2.          The character antecedents and background of the accused.

   3.          The strength of the evidence against the accused.

   4.          The history of any previous grants of bail to the accused.

3. For the respondent it is argued that whilst it may well be that only a committing Magistrate has the power to release on bail any person charged with murder, the Magistrates' Court as such has power to vary the amount of any bail fixed. This power, so it is said, is given to the Court by s.18(1) of the Act which so far as is relevant reads:

   "Where a person is detained in custody pending a ... trial for an offence ... and that person having been ... granted bail by a bail justice or the Magistrates' Court, objects to some amount fixed or condition imposed for his discharge from custody he may make application -

   (a)        to the Magistrates' Court; or

   (b)        to the Court to which he would be required to surrender himself under the conditions of the bail -

   for an order ... varying the amount of any bail fixed or condition
   imposed (as the case requires)."

4. In my opinion s.18(1) has no application to a case such as the present. I say that for the reason that the respondent has not been granted bail by a bail justice or the Magistrates' Court but by the Magistrate who committed her for trial.

5. Since the hearing of the appeal counsel for the respondent has, with the consent of the Director, referred me to the decision of Nathan, J. in Heinz v Bux. The decision was delivered on 13 November 1996 and is to be found at p.57 of the series titled Magistrates Cases 1997. In that case His Honour was required to determine whether the Magistrates' Court Act 1989 created a single entity which administratively operated from a number of locations or a number of separate entities operating from different locations. Not surprisingly his Honour held that the Act created one entity, namely, the Magistrates' Court of Victoria which operates from a number of locations.

6. At p.60 His Honour said:

   "The Act does not say, as Bux would suggest, the Court shall sit in self- contained divisions each with its own exclusive territorial or residential jurisdiction. It has not created a series of courts. It has created a single entity which administratively operates from a number of locations, possibly at different times."

7. In my opinion that decision throws little light on the question I am required to determine. Whilst the Magistrate who committed the respondent to stand trial on the charge of murder is an integral part of the Magistrates' Court in that s.(4)(2) of the Magistrates' Court Act provides that the Court consists of the Magistrates and Registrars of the Court, the legislature has chosen to specifically identify him as the only Magistrate who has the power to release on bail a person committed to stand trial on such a charge.

8. The fact that he and the other Magistrates (together with the Registrars) constitute the Magistrates' Court does not empower any other Magistrate to entertain an application to release on bail any person who has been committed to stand trial on a charge of murder or to vary the bail fixed by a committing Magistrate in respect of that person.

9. My conclusion therefore is that if a person who has been committed to stand trial for murder and who has been released on bail by the committing Magistrate wishes to apply to vary the amount of bail fixed, his application to do so must be made to the committing Magistrate or to the Court to which he is required to surrender himself under the conditions of his bail, namely, the Supreme Court. It follows therefore that in my view the order of 9 October 1998 is null and void and at the present time the respondent is unlawfully at large.

10. I turn then to the appeal as such. The circumstances giving rise to the charge of murder brought against the respondent can be summarized as follows:

11. For some time prior to December 1997 the respondent and the deceased who had had been living in a de facto relationship for some nine years were living with two of the respondent's children at 53 Forest Drive, Frankston North. The father of one of the children was a man called McKee with whom the respondent had had a short de facto relationship between late 1990 and early 1991. The deceased was the father of the other child.

12. Both the respondent and the deceased were heroin users and had extensive criminal histories as had the man McKee.

13. On the morning of 5 December 1997 officers of the Department of Human Services with the assistance of police attended at the Forest Drive address and took the two children into the custody of the Department. At the time the deceased was not at home. It is the case for the Crown that the respondent blamed the deceased for what occurred that morning.

14. Later in the morning the respondent went into Frankston. At the time she was drug affected and depressed. Whilst in Frankston the respondent met McKee. McKee took the respondent to where he was living at Langwarrin and resumed a de facto relationship with her.

15. It is alleged by the Crown that on 24 December 1997 the respondent, McKee and a man named Brown went to the premises at Forest Drive to enable the respondent to collect some of her belongings. The respondent went into the house whilst McKee and Brown remained in the car. At the house the respondent was involved in a loud argument with the deceased. It would appear that up to that time McKee had been unaware of the fact that the respondent had been living in a de facto relationship with the deceased up to the time he had met the respondent in Frankston on 5 December, nor was he aware until then that his child was in the custody of the Department. The Crown case is that when he found out about those matters he became very angry.

16. Following the argument, the respondent left the house at Forest Drive and returned with McKee and Brown to Langwarrin. Later that afternoon the respondent made efforts to seek access to the two children on Christmas Day. Her efforts in that regard were unsuccessful.

17. That night the respondent, McKee and Brown returned to the house at Forest Drive. McKee was armed with a .22 pen pistol. The back door of the house was forced by McKee and the three entered the house. McKee confronted the deceased, punched him to the head a number of times then dragged him into the main bedroom where he shot him in the head with the pen gun. Prior to doing so he said to the deceased words to the effect, "Remember me? You're the one who stopped me seeing my son on Christmas Day". The respondent and the two men then left the premises and returned to Langwarrin.

18. Later that night they went back to the house at Forest Drive to get the body of the deceased. It is alleged by the Crown that whilst they were recovering the deceased's body the respondent, believing the deceased may still be alive, stabbed him through the ear in order to kill him. The deceased's body was then taken back to the house at Langwarrin and placed in the garage on the property.

19. In the early hours of 25 December the respondent, McKee and Brown dismembered the body using various items including a machete, angle grinder, knife and saw.

20. Later that day whilst the respondent and McKee were cooking Christmas dinner on the barbecue at the rear of the premises at Langwarrin various parts of the deceased's body were burnt in the barbecue. That evening the respondent was seen in the garage chopping at the head of the deceased with a tomahawk. With each blow she was heard to say words like, "This is for the children. This is for the misery you caused me".

21. Some time later the respondent, McKee and another person named Milbourne took the remaining parts of the deceased's body to a property about 35 kilometres away and disposed of them in a dam on the property.

22. Another matter which a jury may regard as significant in determining what part, if any, the respondent played in the murder of the deceased is the fact that on 18 January 1998 the respondent married McKee.

23. In the Director of Public Prosecutions v. John Victor Morgan, unreported, 15 June 1994, I referred to the principles which I am required to apply in considering an appeal of this nature. At p.3 of my decision I said:

    "In the unreported decision of the Full Court of this Court delivered in the matter of Beljajev & Anor v The Director of Public Prosecutions, on 8 August 1991, the Court had this to say concerning such an appeal:

    'It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made. In other words, the Director is not in our opinion confined to relying upon an error of law as a ground of appeal but may succeed if he shows on any ground, whether of fact or law, the discretion of the primary Judge has miscarried and can persuade the Supreme Court that a different order should have been made.'

    It is not a question therefore of whether I would or would not have granted bail had the original application been made to me. It is a question of whether I am satisfied that the order of the Magistrate was manifestly the wrong order to make in the matter."

24. With those principles in mind I return to the fact in the present case.

25. Before the committing Magistrate counsel for the respondent relied upon two matters in support of his contention that the respondent had demonstrated that exceptional circumstances existed which justified releasing the respondent on bail. In the first place he contended that the delay which had occurred between the date of the respondent's arrest on 26 February 1998 and the delay which will occur before her trial on 7 April 1999, when added together constitute undue delay of such a magnitude as to amount to an exceptional circumstance. In the second place it was argued that the case of murder against the respondent is tenuous at best and that that fact is itself an exceptional circumstance.

26. The committing Magistrate rejected the contention that the delay between the respondent's arrest and trial could be categorised as undue and in my opinion rightly so. This case will come to trial more speedily than most murder trials in this State.

27. It would seem to follow therefore that the committing Magistrate must have taken the view that the Crown case was a weak one and that that amounted to an exceptional circumstance. I should add that the question of delay was not pursued before me by counsel for the respondent, he being content to rely upon the contention that the case against the respondent was a weak one.

28. If that was the basis upon which the committing Magistrate formed the view that the respondent had demonstrated the existence of exceptional circumstances, then in my opinion he fell into error in the matter. I consider that it is well open to a jury to conclude that by the whole behaviour of the respondent from the time at which she, McKee and Brown broke into the premises at Forest Drive on the night of 24 December until the disposal of the body parts of the deceased in the dam some days later she had encouraged McKee to kill the deceased and had assisted to and concurred in his commission of the crime. If a jury accepts the evidence of Brown in relation to the matter, particularly as to the part the respondent played in dismembering and mutilating the deceased's body, it is my view that it would be difficult for it to come to any other finding in relation to the matter, all the more so perhaps when one finds that less than one month later the respondent chose to marry McKee.

29. In my opinion the Crown case, whilst in many respects circumstantial so far as the shooting of the deceased is concerned, is nevertheless a strong one.

30. Further factors which militate against the respondent being released on bail are that she was a heroin addict who has lived on the streets and who has had a bad record of failing to answer bail in relation to relatively minor offences on some six or seven occasions in the past.

31. In my opinion there are no exceptional circumstances in this case justifying the respondent's release on bail. The appeal is allowed.

32. The order of the committing Magistrate made on 8 September 1998 whereby the respondent was granted bail is set aside and the respondent's bail is revoked.

---