Garcia & Anor v The Queen
[2009] VSC 149
•17 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1439 of 2009
No. 1440 of 2009
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by
JOHN GARCIA, and
JC
---
JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2009 | |
DATE OF RULING: | 17 April 2009 | |
CASE MAY BE CITED AS: | Garcia & Anor v R | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 149 | |
---
CRIMINAL LAW – Application for bail –Applicants charged with murder and attempted murder – The Applicants’ limited role in the incident, lack of prior convictions, youth, family support, and delay amount to exceptional circumstances – Both Applicants granted bail.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant Garcia | Mr P. Clarebrough | Clarebrough Pica |
| For the Applicant JC | Mr D. Dann | Tony Hannebery Lawyers |
| For the Respondent | Mr D. Brown | Office of Public Prosecutions |
HIS HONOUR:
I have decided that it is appropriate to grant bail to each of the applicants. These are my reasons.
In the last two or three weeks I have granted bail to Nikola Andreevski, Jovan Ogrizovic, Mladen Mrnjaus, Tomislav Panic and Tomislav Stevanja, in relation to similar, if not identical charges. JC and John Garcia, who are two of the other participants in the melee that led to the death of Nathan Roberts-Nunan, and the attempted murder of Stephen Thorneycroft, now make application for bail. They were each charged with affray, murder and attempted murder.
Garcia was arrested and charged with affray on 10 February 2008. He was released on bail with conditions. On the 12th May 2009, both applicants were arrested and charged with murder and attempted murder. In relation to the applicant Garcia, his bail was revoked. At that stage the police had intended to proceed against the applicant JC on summons but once the decision was made to lay murder charges he was then arrested and charged with murder, attempted murder and affray. The murder and attempted murder charges arose directly out of the affray. Somewhat unusually, one of the accused Nathan Smith, has admitted stabbing the victims of both the murder and attempted murder.
It is alleged that JC struck the deceased’s vehicle with a machete and at that time, managed to cut his own fingers. Although the applicant Garcia was present during the affray, he was not armed and claims to have not taken any active part in the attack on the two victims, except being part of the group. Both of the applicants were present at the scene and knew of the presence of various weapons including knives and machetes. They both knew the purpose of the expedition was to engage in a fight with the deceased and others, but neither of them were organisers of the event.
I have observed in earlier applications, and in discussion today, that there is a basis for alleging murder either as acting in concert, aiding and abetting, or on the basis of extended common purpose. However, regard will need to be had to what the High Court said in R v Markby[1] and what the Court of Appeal of this State said in R v Lamb & Ors[2] in the analysis of the evidence in each of those cases. I repeat that I accept that the laying of murder charges was appropriate in this case.
[1] (1978) 140 CLR at p.108.
[2] (2008) VSCA 109.
The facts of the case, stated briefly, are that a group of young men armed themselves and went off to have a fight with another group at Diggers Rest. The first group, of which the applicants were part, charged at the other group and fighting ensued in which the deceased was killed and Mr Stephen Thorneycroft seriously injured. Both applicants have had family present in court to give them support; the support is impressive.
As I have observed in relation to the whole of this group, these young men appear to be clean-cut young men and their involvement in this enterprise seems to be somewhat out of character. Very few of any of these applicants have had any prior convictions and such prior convictions as there are, are not very relevant. Neither of the applicants Garcia or JC have any prior convictions. They are 20 years of age and 15 years of age respectively.
The applicant, Garcia, had been making various attempts to prepare himself for employment prior to his arrest and wants to pursue those opportunities for employment. The applicant, JC, wants to return to Year 10 at school, and the court is hopeful that he would be able to take up that opportunity.
In general, each of the applicants relied upon the following propositions in support of their application for bail: the applicants have no prior convictions. They both come from steady and reliable backgrounds. The applicant, Garcia, is relatively young and the applicant, JC, is very young. Garcia would be held in adult custody and JC would be held in a youth justice centre. There would be a substantial delay before trial and the applicants submit that the cases against them are relatively weak.
I repeat again the remark I have made on two previous occasions, and it is this: the amount of work done by Mr Rooney and Mr Chapman to facilitate these applications is further noted by the Court. The cases themselves will have to be tested, but they cannot be said to be weak.
I observed in argument on another occasion that it is unusual to find young men involved in this sort of activity who have no prior convictions, and I regard that feature of the case as very important.
I repeat what I said on the earlier applications I heard in relation to this group of men and I quote:
“The question of delay must be considered. It seems to me that at the very earliest a trial would proceed is July 2010. That is 15 or 16 months away. I think that such an expectation, with a number of accused, including one in the Children's Court, is unrealistic. And I suspect that 18 months to 24 months before trial is more realistic. In these circumstances I am faced with the probability of young first offenders spending two years or more in adult prison before trial. That would, as a matter of justice be undesirable and undesirable in community terms. I have concluded that in all the circumstances of the case, including the limited role played by each of these applicants, their age, their lack of prior convictions and delay amount to exceptional circumstances.”
That paragraph can readily be repeated, but the very young age of the applicant, JC, is a particularly important consideration in his case, and my reference to being held in adult prison would need, with reference to him, to be modified to being held in a Youth Justice Centre. I am not convinced that there will be unacceptable risks of answering bail, and such risk, if it does exist, can be satisfactorily ameliorated by the imposition of suitable conditions.
I regard it necessary that a surety be provided in cases as serious as this, and in the case of the applicant, Garcia, I fix a surety in the sum of $20,000 and in relation to the applicant, JC, I fix a surety in the sum of $10,000.
0
0
0