DPP v Farquharson (Ruling no 2)

[2007] VSC 456

IN THE SUPREME COURT OF VICTORIA

CRIMINAL DIVISION

No. 1419  of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 2

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	17 August 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 456

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Criminal law and procedure – murder – bail – revocation of bail upon arraignment at commencement of jury trial – general principle of applicability henceforth.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Rapke QC Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr P Morrissey Mr C Mylonas	Victoria Legal Aid

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HIS HONOUR:

1. I have had the benefit of eloquent submissions from Mr Morrissey leading counsel for the accused in an application for continuation of bail of the accused during the trial.  I have also re-read the report of Mr G.P. Roberts, social worker, of 16 August 2007, Exhibit 1 on the application. 

1. I consider that next Monday, the date on which the jury is empanelled to hear this trial, the bail of the accused should be revoked and he then be in custody during the trial. 

1. The accused, Mr Farquharson, comes before the Court on three counts of murder of his children, respectively Jai aged 10 years, Tyler aged 7 years and Bailey aged 2 years.  Each of the children drowned in a dam off the Princes Highway, 7 kilometres east of Winchelsea, on Father’s Day 2005 when the accused’s Holden Commodore sedan left the Highway and sank in the dam.  The accused escaped from the vehicle;  his children did not.  The prosecution says the accused deliberately drove his vehicle into the dam to murder his children;  the accused told police he had a coughing fit and blacked out.  The accused was on 14 December 2005 charged with the three counts of murder.  On 30 December 2005 he was in this Court granted bail on terms.  He has complied with those terms and has been on bail now for some 20 months.

1. I consider there are three circumstances which warrant revocation of the accused’s bail upon arraignment.

1. First, these are most serious charges and there is a substantial case against the accused.  I say no more than that.

1. Second, Mr Rapke rightly has identified the psychological pressure that will be involved in this trial upon the accused, which is relevant in a Janus-like way.  One is in fairness to the accused not to add further pressure to him by his being in custody during the trial.  But, facing the other way, is the psychological circumstance that there will be substantial psychological pressure on the accused, who is in a position of some psychological vulnerability, as is evident from Mr Roberts' report.  That second aspect is highly relevant on the question of the integrity of the court process during the trial to ensure that the accused is present for his own trial.

1. I have every sympathy for what Mr Morrissey has submitted.  The sort of matters Mr Morrissey rightly has submitted have traditionally been regarded as of central importance and they remain so;  the accused has no relevant prior convictions and has fulfilled the conditions of bail for 20 months pre-trial;  but there is the consideration which Mr Rapke has articulated which I have just stated.

1. The third consideration is that in the last two years two accused persons have decamped during trials in this Court.  The first accused person who decamped, in February 2006, I think properly could be regarded as an exceptional case because of the context there apparently existing, and I say no more about that.  But then in June this year it happened again in a more standard case.  There is a vast investment in a Supreme Court jury murder trial administratively, financially, personally and not least the emotional investment of persons affected by the trial and not limited to the accused, and pressure upon witnesses.  I regret to say after nearly 20 years of ensuring that accused persons remain on bail as long as possible during a trial, that beneficent course needs reconsideration by reason of events in the last two years.  I take those unhappy events into account as an exercise of responsibility.  Speaking for myself only, I consider that hereafter the normal practice should be that bail of accused persons cease upon arraignment at trial.  There may be exceptions to that practice, for example for accused persons of tender years;  and each case must be judged on its merits.  However I consider that, as a matter of responsibility, the basal practice should now change.

1. For those reasons I shall revoke the bail of the accused when the jury is empanelled on Monday.