DPP v Waters

[2004] VSC 303

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1470 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
v
JUSTIN NOEL WATERS	Applicant

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JUDGE:	HABERSBERGER J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2004
DATE OF JUDGMENT:	6 August 2004
CASE MAY BE CITED AS:	DPP v Waters
MEDIUM NEUTRAL CITATION:	[2004] VSC 303

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CRIMINAL LAW – Bail – Charge of murder – Exceptional circumstances made out – Bail granted – Section 13(2)(b) of the Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Atkinson	Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr J. Dowsley	Robert Stary and Associates

HIS HONOUR:

1. This is an application for bail by Justin Noel Waters.  Mr Waters has been charged with murder arising out of the death of Christopher James Burke on 3 April 2004.

1. It is sufficient to say of the facts that there was an altercation between Mr Burke and Mr Waters on the No.1 platform at the Mooroolbark railway station.  It would appear that a number of punches were thrown and that the two men whom I have mentioned were wrestling.  Mr Burke was pushed.  He stumbled and fell from the platform on to the tracks and was struck and killed by a train arriving at the station.

1. Mr Waters is 20 years old.  He has no prior convictions.  Prior to his arrest he was working as an apprentice plumber, with about 18 months of his apprenticeship to be completed.  I had tendered before me a letter from his employer, who speaks very highly of Mr Waters's work and his regular attendance at work.  The employer says he is prepared to re-employ Mr Waters if he is granted bail.  There is a second letter from a representative of a company, which apparently provides a considerable amount of work to Mr Waters's employer's business, who also speaks favourably of Mr Waters.

1. There is a permanent address at which Mr Waters could live. 

1. As I have said, Mr Waters has no prior convictions, and the position of the Crown is, in terms of some of the formalities, that he is not a risk of failing to appear if he is granted bail, that there is no concern about Mr Waters re-offending or that he is a danger to witnesses.  In fact, Mr Atkinson, who appeared for the Crown, informed me that the Crown's opposition to the application for bail was formal only, because it is a charge of murder which requires exceptional circumstances to be shown before bail can be granted.  Mr Atkinson also informed me that the Director of Public Prosecutions was cuurently reviewing the charge in this case.

1. The other aspect relied on by Mr Dowsley, who appeared for Mr Waters, as one of a combination of factors, was the time before which a trial, if there is to be one, is to occur.  Mr Waters has already been in custody for some four months.  A preliminary committal hearing has been adjourned for a contested committal hearing on 31 January next year, and it is anticipated that there would not be a trial before about September 2005 at the earliest, which would be a period of some 16 or more months between arrest and trial during which Mr Waters would be in custody if he is not granted bail.

1. Section 13(2)(b) of the Bail Act 1977 provides that bail shall not be granted to a person charged with murder unless I am “satisfied that exceptional circumstances exist which justify the making of such an order”.

1. The matters that I have mentioned, on their own, may well not be regarded as exceptional.  However, judges of this court have previously held that it is appropriate to look at the factors together, and that, on an overall view of all the factors, they can constitute exceptional circumstances.  I refer to the following passage from the decision of Vincent, J. in the matter of Moloney[1], where His Honour observed: 

"A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional.  What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional, to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified."

[1]Unreported, 31 October 1990.

1. That passage has been cited, as I understand it, on a number of occasions with approval by other judges of this court, in particular by Warren, J. (as Her Honour then was) in the matter of Whiteside[2].  In that same decision, Her Honour mentioned, as one of the important factors leading to her decision to grant bail, that the applicant in that case had strong ties to the community, both socially and by way of employment.  Her Honour noted that the applicant if granted bail would be shortly thereafter re-employed by his former employer, and she commented that this was a highly desirable course and it is a factor that weighs in the balance in deciding whether or not exceptional circumstances are made out. 

   [2][1999] VSC 413.

1. The similarity between that case and this is, of course, quite strong, so that the employment situation and the ties with family support are matters that I take into account in favour of Mr Waters' application. 

1. Her Honour in Whiteside then went on to refer to the fact that in that case the informant did not oppose bail, subject to the applicant demonstrating exceptional circumstances, and said that this was another matter to take into account in deciding whether exceptional circumstances are made out. 

1. Again, the similarity with this case is very close.  The lack of real opposition from the Crown is perhaps an even stronger factor in this case because, as I have mentioned, Mr Atkinson has informed the court that it is even a situation where the actual charge is currently being reviewed by the DPP.

1. I have already recited the fact that other considerations that one normally takes into account on a bail application, such as risk of re-offending, risk of flight and danger to witnesses, are not suggested as in any way being likely to occur.

1. Finally, there is the question of delay.  I will not inflict on the parties a recitation of the numerous observations by judges of this court about the problem of delay.  Perhaps it is sufficient for me to say that, notwithstanding that an applicant for bail on a charge of murder has to show exceptional circumstances, the fact that a person who may subsequently be found innocent may be held in custody for a period of some 16 or more months pending trial is most undesirable and does not do our society credit.  The delay factor in a case such as this, given the Crown's attitude, is particularly important.

1. Taking all of those factors into account and looking at them together, I am satisfied that there are exceptional circumstances in this case and that Mr Waters should be granted bail. 

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