DPP v O'Connor
[2008] VSC 233
•26 June 2008
| IN THE SUPREME COURT OF VICTORIA | ||
| CRIMINAL DIVISION | Not Restricted | |
No. 1700 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL O'CONNOR |
---
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2008 | |
DATE OF JUDGMENT: | 26 June 2008 | |
CASE MAY BE CITED AS: | DPP v O'Connor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 233 | |
---
Bail applications – granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Scheid | Office of Public Prosecutions |
| For the Accused | Mr S Tyrrell | Markotich Lawyers |
-----
HIS HONOUR
I propose to grant bail to Mr O'Connor in both these matters. I grant bail to you in both these matters.
There are two separate applications for bail by the applicant before the Court. The first is an application dated 6 June 2008, and the second is an application dated 24 June 2008 which although interconnected I shall deal with in turn. The two applications relate to separate matters.
By application filed in this court on 6 June 2008, the applicant, Mr Michael O'Connor applies for bail. The affidavit in support of Ms D. Y. Markotich, Australian Lawyer, sworn 6 June 2008, sets out the essential matters which are relied upon in support of that application, together with 15 exhibits to which I shall return. A further affidavit of Ms Markotich sworn 23 June 2008, with four exhibits thereto, was relied upon as further material, and, not insignificantly as I shall come to, Exhibit 1 being the report of Mr Patrick Newton, Psychologist, of 20 June 2008. In opposition to the application was an affidavit of M. S. Raniga, Solicitor, of the Office of Public Prosecutions, sworn 18 June 2008, with exhibits thereto. I have had most helpful submissions, both by Mr Tyrrell, counsel for the applicant, and by Mr Scheid, counsel for the Director.
Before me, it became apparent when the matter was heard on 24 June 2008 that it would be inefficacious unless another matter was also dealt with and thus I heard the argument on that matter as well, on the basis that appropriate documentation was filed, which it then was. Thus I have before me a second application filed
24 June 2008, supported by an affidavit again of Ms Markotich, sworn 24 June 2008, with 11 exhibits. The respondent filed an affidavit by again the same deponent, sworn 25 June 2008, with three exhibits thereto.
As I say, I was most assisted by the submissions of Mr Tyrrell and Mr Scheid on both matters. Their arguments were clear and relevantly directed to the complex factual matters arising in these two cases, and also to relevant principle.
It is inappropriate on a bail application to descend to great particularity as to the factual matters underlying the two applications because of course they are yet to be determined at trial and any comment by the determining judge must be particularly limited because of that circumstance.
In relation to the first application, of 6 June 2008, the charges are serious charges of intentionally cause injury, recklessly causing injury, assault in company and assault by kicking (Informant Constable R Hodge) and are exhibited to the primary affidavit in support as Exhibit 1. They relate to conduct on 26 April 2008 outside a factory in Colchester Road in the Rosebud Industrial Estate, and in company with an older person, Mr Gary Lockman, stepfather of the applicant.
The applicant on those matters applied for bail in the Magistrates' Court at Frankston on 9 May 2008, which application was refused.
The second bail application, made before me by Notice filed on 24 June 2008, relates to events earlier in time. Those events occurred on 19 October 2007 and resulted in charges of aggravated burglary, intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury, recklessly causing injury, assault with a weapon and assault in company (Informant Detective Senior Constable P R Cole). Again, serious charges. On those matters in the Magistrates' Court at Melbourne, her Honour Magistrate Dawes granted the accused bail on 21 January 2008.
The matters laid by Constable Hodge have a contest mention on 16 July 2008 before the Magistrates' Court but which is to be adjourned.
In relation to the Cole matters there was a contested committal hearing before his Honour Magistrate Gurvich on 12 May 2008 wherein the applicant was remanded in custody and directed to be tried at the Melbourne County Court and on 18 July 2008 for a case conference. No application for bail was made on behalf of the applicant at that time, doubtless because of the interface with the other matters. It is anticipated that the trial date will not be available for some 12 months in that matter.
The applicant relies upon a raft of matters helpfully set out in the affidavit of Ms Markotich and are said to be delay; availability of employment; youth; Youth Justice Program; good prospects of rehabilitation; counselling with a clinical psychologist; good bail history, by which I interpolate is meant that the accused has appeared on bail return dates - it does not mean that he has complied with the fundamental obligation of observing the law while on bail; security; parity; and an asserted weakness of the Crown case. Those various matters that are set forth in the affidavit in support from paragraphs 15 to 27. In response to the respondent's affidavit and submission that there is an unacceptable risk, an understandable submission by the respondent in view of the history of the matters. On behalf of the applicant it is submitted that appropriate terms and conditions can meet that said risk.
As I have said, on 23 June 2008 a further affidavit by Ms Markotich was filed in which, significantly as Exhibit 1, a report by Mr Patrick Newton, Psychologist of
20 June 2008 was exhibited together with other supporting material to which I shall come. As I said to counsel during the submissions at the hearing of these matters two days ago, I have read in detail Mr Newton's report, as indeed, I had those of Mr Paul Grech of 20 January 2008 and 9 May 2008, being Exhibit 12 to the first affidavit of Ms Markotich. I was, as I said to counsel, impressed by the analysis and proposals set forth in Mr Newton's report in particular. Further, I am impressed by the report of Ms T Leatham, Adult Court Advice Worker of the Southern Metropolitan Youth Justice Program dated 9 May 2008 (Exhibit 11 to Ms Markotich’s affidavit of 6 June 2008) as to the support work undertaken and there proposed.
I have considerable sympathy for the propositions put on behalf of the respondent set forth in the affidavits in opposition in both matters and helpfully articulated by Mr Sheid before me. I do agree that the charges are serious and that the history of the applicant whilst on bail is far from perfect and in some respects is fraught. It is particularly serious that the second set of offences charged occurred if they did, while the applicant was already on bail on the first set of matters. I further agree with Mr Sheid that this is a show cause situation and that the interplay of all the matters raises serious issues as to whether bail ought be granted.
The second bail application is that of 24 June 2008 which relates to the earlier (October 2007) events and which as I have said, is supported by an affidavit of Ms Markotich of 24 June 2008 with 11 exhibits. That is what has been referred to as the Cole matters. The history is set out in that affidavit reflecting in substance the history set out in the affidavit of 6 June 2008 of Ms Markotich and containing some further material. Again, an affidavit in opposition has been filed, was sworn 25 June 2008 and with exhibits which also in substance rehearses but with further detail the material in the initial matters.
I do not consider any single matter relied upon in support of these two applications of itself shows cause or of itself justifies the granting of bail. Of the matters sought to be relied upon by the applicant, a number I consider are not made out or are at best marginal. I agree with Mr Sheid that the argument as to parity is not persuasive. As I have said, the argument as to the weakness of the Crown case is very difficult to assess at this early juncture. I agree with Mr Sheid that the charges are serious and are to be treated as serious. I further agree with Mr Sheid that the bail history is adverse. Although the applicant has not failed to answer bail, there is a fundamental obligation on bail to observe the law whilst the period of bail applies.
However, there is a cluster of matters which I think combined do show cause and do justify the granting of bail. The primary matter, which as I have said, of itself would not justify bail, is the youth of the applicant. Mr O'Connor was born on 10 August 1988 and is thus not yet 20 years of age, and at the time of the alleged offences was 19 years of age. That is combined with a Youth Justice Program. That data, as to which I was impressed, is set out in Ms Markotich's affidavit and which Mr Tyrrell strongly relied upon orally before me. It is combined with a rehabilitation program and proposal as set forth particularly in the report of the psychologist, Mr Patrick Newton, of 20 June 2008, being Exhibit 1 to the second affidavit of Ms Markotich in the first matter. Further, I have been impressed by the strong family support and personal support provided by adults to the applicant, Mr O'Connor. It is that combination of youth, significant support both professionally and personally, and the inevitable matter of delay which persuades me, together, that this application (a) does discharge the onus under s.4(4)(a) Bail Act 1977 and (b) does justify the granting of bail.
The question of delay is always a difficult one. As I have said, that of itself would not justify the bail; but combined with the cluster of matters, youth, significant support professionally and personally, including the Youth Justice Program and rehabilitation justifies the granting of bail.
I think Mr O'Connor is at a critical time in his own personal development. I think he well understands the seriousness of the situation. I think he well understands the seriousness of the behaviour alleged against him. He now has a chance to take positive steps towards leading a happy and productive adult life; but he has to comply with the law to do so. Mr O’Connor does show distinct prospects of a good adult life. He is old enough to be responsible for his own actions and I hope that he does take advantage of his situation of being granted bail to act positively in his life and not make the mistake of breaching his bail terms or the mistake of breaching the law. Mr O'Connor is at an important point in his personal development where a positive step forward can be taken by him and I hope it is.
For those reasons I will grant the bail in both matters.
The terms and conditions can be discussed between Mr Tyrrell and Mr Scheid but they are essentially the same terms and conditions he has previously been on unless either counsel want to make any further submissions on that. I will make them on the same terms and conditions that we discussed on the last occasion. Starting with you, Mr Tyrrell, the order can be drawn up.
---
0
0
0