DPP v Morison
[2008] VSC 609
•8 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
CRIMINAL DIVISION
No. 1431 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN LUTTON MORISON |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2008 | |
DATE OF RULING: | 8 December 2008 | |
CASE MAY BE CITED AS: | DPP v Morison | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 609 | |
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Bail application – Murder – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr G Horgan, SC | Office of Public Prosecutions |
| For the Applicant | Mr M Rochford | Simon English |
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Ruling
HIS HONOUR:
This is an application for bail by Mr Stephen Morison, who is charged with murder. The applicant was born on 13 February 1965 and is currently aged 35 years. The application was filed on 17 November 2008 and has been most helpfully and comprehensively presented to the Court by Mr Rochford for the applicant. An affidavit in support of the application by Mr Simon English, learned solicitor of 17 November 2008, is filed before the Court and sets out the material upon which the application is based.
The applicant was arrested on 31 March 2008 and charged with the murder of Samuel Macumber. No application for bail by the applicant has hitherto been made. At the Melbourne Magistrates’ Court on 17 September 2008 the applicant was committed on the charge of murder for trial in this Court. The trial is listed for hearing on 15 April 2009. There is a co-accused, Lorenzo Favata, in circumstances to which I now turn.
The matter has considerable antecedent history. The present co-accused, Mr Lorenzo Favata, as a sole accused has previously been convicted of the murder of which the present applicant is now conjointly charged. Mr Lorenzo Favata was arrested and charged on 17 September 2001 with the murder of Mr Samuel Macumber at Clayton on or about 1 April 1999. The murder committal in relation to Mr Favata as the sole accused occurred in May 2002 and, indeed, at that committal the present applicant, Mr Morison, was called by the prosecution as a witness. Then in the Supreme Court in September 2003, at Mr Favata’s trial as the sole actor or murderer, the applicant was again called as a witness by the prosecution. Mr Favata was convicted of the murder, having been found guilty by the jury. The matter then went to the Court of Appeal in September 2005 and on 21 April 2006, by reasons of directions as to admissibility by the trial judge in relation to consciousness of guilt matters in that trial, the Court ordered a retrial of Mr Favata on the count of murder.
The matter then comes relevant to the present applicant, and that is because of the actions and evidence of Ms Judith Hawthorne. She is the sister-in-law of the applicant. Ms Hawthorne, then aged 37 years, made a statement on 26 October 2007, effectively as follows. She had been involved in de facto relationship with Grant Morison, the brother of the present applicant and they had lived together for some 16 years, and have one child. Mr Morison had a brother, Stephen, the present applicant, and two sisters, Lisa and Kim, Lisa being married to Mr Lorenzo Favata. Ms Hawthorne gave evidence that she attended the trial of Mr Favata; that on about 3 March 2005 Grant Morison had been involved in an assault on the ferry to Tasmania and ended up being in custody, and was sentenced on 7 July 2006 to nine months' imprisonment with a minimum of six; that while he was in custody, she was going to Tasmania regularly and also telephoning him; and that during one of the phone calls, Grant Morison asked her to speak to the present applicant, Stephen, and stated that he, Grant, was in gaol - this was some two months into Grant's sentence - and that she accordingly went around to Stephen in his caravan park where he was living at the Princes Highway in Springvale.
The statement rehearses that she had suspected that Stephen was involved in the murder and she said that she went and spoke to him. According to her statement on 26 October 2007, "Stephen told me that he was the one who knocked on the door and that is why the old guy answered the door and let them in, because he knew Stephen."
She then made a covert recording of a conversation on 27 March 2008 with the applicant, which is reproduced in the depositional material at pp.797 and following. The critical passages appear, commencing at p.799 where the following appears in the transcript: Judith: "Well, you told me that you let Lorenzo in to Sam's house because you did tell me that." Stephen: "Say that? No, I didn't." Judith: "Hey?" Stephen: "I didn't say that." That is a clear denial that he said that to Judith.
Then shortly thereafter he said this, after she persisted, "If you heard me say it, say it. Got nothing to hide. I only said it to shut you up." And then later on the next page, "As I said, I said it to shut you up. I said it to about eight people.” Also: “Only to shut you up like a lot of other people. You and the other person, you weren't the only person I said it to." Then on p.802, Judith: "But you told - you fucking told me that." Stephen: "No, I didn't." Judith: "You fucking told me that, Stephen, you told me that that day, they've got it on record." Stephen: “I don't care what they've got on record. Like I said to you, I only told you to shut you up". And so it proceeds.
If accepted that that was said by the accused, that certainly is evidence upon which a jury properly instructed could find that the accused admitted that he was present at the scene of the murder and that he enabled the entry of Mr Favata to the premises. It is not of course, nor is it asserted by the prosecution to be, an admission that he physically murdered the deceased or even that he was physically in the house proper at the time of the killing. That is not how the prosecution puts the case.
Mr Rochford eloquently has put to me that the witness Ms Hawthorne was demonstrated at the committal to be a wholly unreliable witness and for purposes of this bail application, I proceed upon that basis as put by Mr Rochford. However, it seems to me that the admission, if it is an admission, contained in the recorded statement, is wholly capable of founding the prosecution case against the accused. I do not substantially in this judgment rely upon the false denials or the false alibi which is relied upon by the prosecution, although Mr Horgan has sought to call those in aid. But rather I consider that the recorded admission, which I have referred to, is competent to found the prosecution case before the jury.
I accept what Mr Rochford has said, that there have been viable programs put up for the secure placing of the applicant with his family and that they will ensure, if bail were granted, that he would comply with bail terms. However, I am satisfied that there has been no exceptional circumstances made out, as is required by the Bail Act 1977.
It is certainly - and I agree with Mr Rochford on this - a matter which will properly be litigated before the jury, that there is said to be an inconsistency in the prosecution case from Favata's trial to the present joint trial. It cannot be said that it is an inconsistency that the prosecution now has further material which it says shows that there was a second actor in letting Favata into the premises, because the prosecution does not say any differently from the first trial, namely that Favata was the killer. However, Mr Rochford quite rightly has relied upon a change of analysis by the prosecution if in the first case it was put that Mr Favata killed in a robbery gone wrong because he feared that his voice was recognised, he being in a balaclava, whereas in the next joint trial it is to be put that the applicant facilitated in letting Mr Favata into the premises because the applicant was known to the deceased. That is no doubt a matter which will be actively litigated at the jury trial.
However that may be, I am satisfied that the material contained in particular at p.799 to 803 of the depositional material, being the recorded statements of Ms Hawthorne and Mr Morison, are sufficient to found the prosecution's case and that pursuant to the provisions of the Bail Act 1977, requiring as they do in a charge of murder pursuant to s.4(2)(a) of the Act, that exceptional circumstances exist which justify the grant of bail, that onus has not been discharged by the applicant.
For those reasons I refuse the application.
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