Haver v Director of Public Prosecutions
[2013] VSC 622
•1 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
SCR 2013 0160
IN THE MATTER of the Bail Act 1977 (Vic)
IN THE MATTER of an Application for Bail by TYSON JOHN HAVER
BETWEEN:
| TYSON JOHN HAVER | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2013 | |
DATE OF JUDGMENT: | 1 November 2013 | |
DATE OF REASONS: | 15 November 2013 | |
CASE MAY BE CITED AS: | Haver v DPP | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 622 | |
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CRIMINAL LAW – Application for bail – Murder charge based on s 3A of the Crimes Act 1958 (Vic) – Applicant or co-accused alleged to have accidentally discharged firearm and thereby killed accomplice in course of assault on another – Very unusual prosecution case – Intentionally and recklessly causing serious injury charges – Weapon used in course of assault – Whether applicant has established exceptional circumstances and shown cause why detention not justified – Whether respondent has shown unacceptable risk of applicant interfering with witnesses – Magistrate discharged applicant on murder and granted bail on other charges – Applicant directly indicted on murder – Ties to jurisdiction – Residence – Employment – No history of failing to appear – Surety – Delay – Co-accused granted bail – Bail Act 1977 (Vic), ss 4(2)(a), 4(2)(d), 4(4)(c) and 13(2) – Bail granted with surety and on conditions including curfew, exclusion zone, reporting thrice weekly and no contact with witnesses or co-accused.
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Pica Criminal Lawyers |
| For the Respondent | Mr A Albert | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 1 November 2013, I admitted Tyson John Haver (“the applicant”) to bail on various charges, including a charge of murder, with a surety in the amount of $50,000 and eleven other conditions. I indicated I would publish the reasons for my decision at a later time. These are those reasons.
Charges
The applicant applied for bail in respect of charges on two indictments. The application was opposed by the Director of Public Prosecutions (“the respondent”).
The first indictment (No C1208817) concerns events of 22 December 2011 and charges the applicant with the offences of murder of Anthony Robert Armstrong (“the deceased”) (Charge 1), intentionally causing serious injury to Stephen James Delmo (Charge 2) and, in the alternative, recklessly causing serious injury to Mr Delmo (Charge 3). As will be seen below, the murder charge is based on s 3A of the Crimes Act 1958 (Vic) and arises in very unusual circumstances.
The second indictment (No C13508653) concerns events arising out of a search of the applicant’s premises on 27 April 2012 and charges him with four offences of possessing an unregistered category A or B longarm (Charges 1-4), possessing cannabis (Charge 5) and cultivating cannabis (Charge 6).
Committal hearing, bail application and direct indictment
The applicant was originally charged by police with these (or similar) offences on 17 December 2012. He was remanded in custody, where he remained until the conclusion of the committal hearing at the Magistrates’ Court at Melbourne on 10 September 2013. On that day, having previously heard evidence from 33 witnesses over ten days and having considered written and oral legal argument on the scope of s 3A of the Crimes Act, the magistrate Mr Garnett M discharged the applicant on the murder charge and committed him for trial on the remaining charges. His Honour also admitted the applicant to bail on those remaining charges.
On 25 September 2013, the respondent directly indicted the applicant on the murder charge by filing the first indictment mentioned above at a post-committal directions hearing in this Court. The applicant was remanded in custody on that day.
Co-accused
The applicant has three co-accused on the first indictment and one on the second:
Michael Scott Wald is charged jointly with the applicant with Charges 1, 2 and 3 on the first indictment. Mr Wald was also discharged on the murder charge at the committal hearing and then directly indicted by the respondent. Mr Wald has not applied for bail.
Alan Armstrong is charged jointly with the applicant and Mr Wald with Charges 2 and 3 on the first indictment. Mr Armstrong is the father of the deceased the subject of the alleged murder. Originally, Mr Armstrong was also jointly charged with the applicant and Mr Wald with the murder of his son. Prior to the committal hearing, Mr Armstrong was granted bail by Lasry J.[1] Subsequently, at the committal, he too was discharged on the murder charge but committed for trial on the remaining charges. However, Mr Armstrong was not directly indicted on the murder charge.
[1]Armstrong v R [2013] VSC 111
Adalia Ottobre is charged with being an accessory after the fact to murder (Charge 4) on the first indictment. Ms Ottobre is the applicant’s partner. She is also jointly charged with the applicant with all six charges on the second indictment. Ms Ottobre was granted bail by a magistrate on 18 December 2012.
Material received on the application
The present application was heard on 30 October 2013. I received three affidavits with exhibits from the applicant’s solicitor Steve Robert Pica and one affidavit with exhibits from Emily Rose Broadbent, a solicitor at the Office of Public Prosecutions with the carriage of this matter. Among the exhibits were a transcript of Mr Garnett M’s reasons for discharging the applicant, Mr Armstrong and Mr Wald on the murder charge and committing them (and Ms Ottobre) for trial on the other charges and written submissions on those issues filed by the parties at the committal hearing. I also heard sworn evidence from Detective Leading Senior Constable Peter Towner (the informant), Kylie Leanne Fodor (who offered the applicant residence) and Michael Andrew Middleton (who offered the applicant work).
I heard submissions from both Mr Kassimatis (counsel for the applicant) and Mr Albert (counsel for the respondent) and also received a written submission from Mr Kassimatis.
The relevant tests
The parties conducted the application on the following bases: First, in order to be granted bail on the murder charge, the applicant had to show that exceptional circumstances exist which justify the granting of bail.[2]
[2]Bail Act 1977 (Vic), ss 4(2)(a) and 13(2).
Secondly, in order to be granted bail on the serious injury charges, which it is alleged involved the use or threatened use of an offensive weapon (a baseball bat) or a firearm (a shotgun), the applicant had to show cause why his detention in custody is not justified.[3]
[3]Bail Act 1977 (Vic), s 4(4)(c).
Thirdly, on all charges, if the respondent showed that there was an unacceptable risk that the applicant, if released on bail, would interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person, then bail must be refused.[4] The respondent did not seek to rely on any of the other categories of “unacceptable risk” in s 4(2)(d) of the Bail Act 1977 (Vic) – namely, that there is an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, or endanger the safety or welfare of members of the public.
Summary of prosecution case on first indictment
[4]Bail Act 1977 (Vic), s 4(2)(d).
Factual background
The following summary[5] is taken partly from the reasons of Mr Garnett M at the committal hearing, the other material in the affidavits and exhibits before me and the reasons of Lasry J on Mr Armstrong’s bail application.
[5]The facts giving rise to the charges on the second indictment are sufficiently summarized at paragraph 4, above.
Mr Armstrong (aged 61 at the time) is said to have been involved in a dispute with Mr Delmo concerning a female known to both men. On 3 November 2011, Mr Armstrong obtained an intervention order against Mr Delmo at the Frankston Magistrates’ Court. The Crown alleges that, in the lead-up to the events of 22 December 2011, Mr Armstrong, in the presence of another person, convinced his son (the deceased) to attend Mr Delmo’s premises at Somerville with others, armed with a firearm (which was not to be used), and to bash Mr Delmo.
It is alleged that, as a result of that incitement, the deceased recruited Mr Wald and the applicant to assist him and together they went to Mr Delmo’s premises on 22 December 2011 armed with a baseball bat and a loaded double-barrel shotgun. Mr Delmo, who was sleeping in a bungalow at the rear of the premises, became aware of the presence of these men and chased them to the front yard, where he was seriously assaulted by two of the men armed with a baseball bat. Mr Delmo suffered fractures of the fourth and fifth metacarpals and the distal ulnar and a laceration to the scalp (hence the allegation of serious injury in Charges 2 and 3). During the assault, one of the men called out for the gun and a third man then ran towards Mr Delmo with a shotgun. Mr Delmo was ordered onto his knees. The shotgun discharged (it appears from both barrels) and the shots struck the deceased in the chest. Mr Delmo then struggled with the man holding the gun before he broke free and went to his house, where he rang 000.
It is alleged that Mr Wald and the applicant then took the deceased to the intersection of Hastings Road and Clarendon Street near the Frankston Hospital, where the body was later found by uniformed police officers. The deceased had two gunshot wounds to his chest, from which he died.
On 23 January 2013, a shotgun, which was registered in the name of Ms Ottobre, a baseball bat and some other items were found by police in a bag under a bridge in Woodend. The items appear to have been there for some time. Telephone records suggest that between the evening of 27 December 2011 and early the next morning the applicant’s mobile telephone was used in the Woodend area.
The parties accepted that the magistrate’s findings at committal provide a proper basis for analysis of the strength of the Crown case for the purposes of this bail application. The magistrate found Mr Delmo’s evidence as to the sequence of events during the assault and the discharge of the gun to be contradictory. Nevertheless, his Honour considered that, whilst there were a number of possible scenarios, the evidence would allow a jury to find the following:[6]
[6]DPP v Armstrong & Ors (unreported, Magistrates’ Court at Melbourne, Mr Garnett M, 10 September 2013) at [9]-[12].
a) three persons other than Mr Delmo were present at the time of the incident on 22 December 2011, namely the deceased, Mr Wald and the applicant;
b) the deceased was the main assailant and was hitting Mr Delmo with the baseball bat shortly prior to the discharge of the gun;
c) the deceased called to the applicant and/or Mr Wald to get the gun;
d) either the applicant or Mr Wald ran towards Mr Delmo while holding the gun and the deceased told Mr Delmo to get to his knees; and
e) the gun discharged accidentally – whether because the holder of the gun tripped or stumbled, was bumped by the baseball bat or through some other circumstance – and the resulting shots struck and killed the deceased whilst he was actively engaged in the assault on Mr Delmo.
Section 3A of the Crimes Act 1958 (Vic)
Against this unusual factual background, the Crown intends to rely on s 3A of the Crimes Act to establish murder against the applicant and Mr Wald. Section 3A reads as follows:
(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.
The elements of murder contrary to s 3A may be broken down as follows: A person will be guilty of murder if:
a) he unintentionally causes the death of another;
b) by a conscious, voluntary and deliberate act of violence;
c) done in the course or furtherance of a crime; and
d) that crime is a crime (i) the necessary elements of which include violence and (ii) for which a person upon first conviction may be sentenced to a term of imprisonment of ten years or more.
As I understand it, the Crown case on murder against the applicant is that, by application of principles of complicity, the applicant, the deceased and Mr Wald:
a) unintentionally caused the death of the deceased – he was shot and killed when the loaded shotgun discharged accidentally;
b) by a conscious, voluntary and deliberate act of violence – namely, the presentation of the loaded firearm;
c) done in the course or furtherance of crime – the act of violence causing death occurred during the course or furtherance of the crime perpetrated against Mr Delmo; and
d) that crime was intentionally causing serious injury, which is a crime (i) the necessary elements of which include violence and (ii) which carries a maximum penalty of 20 years’ imprisonment.[7]
[7]Section 16 of the Crimes Act 1958 (Vic) provides that the offence of intentionally causing serious injury carries Level 3 imprisonment, which is a maximum of 20 years’ imprisonment.
Does s 3A extend to the accidental killing of an accomplice?
An issue to be determined by this Court prior to trial is whether s 3A extends to the accidental killing of an accomplice.
On the application for bail by Mr Armstrong, Lasry J opined that “the reasoning the Crown rely on is open and liability for murder under s 3A … may be able to be attached to [Mr Armstrong] in the way they suggest”.[8] Similar reasoning would apply to the cases against the applicant and Mr Wald. But, as his Honour pointed out immediately after making the quoted remark, “given the unique way the Crown proposes to put its case, [he could not] exclude the possibility that a more thorough analysis may raise obstacles for the prosecution”.[9] As indicated above, Mr Armstrong was granted bail.
[8]Armstrong v R [2013] VSC 111 at [18].
[9]Armstrong v R [2013] VSC 111 at [18].
Subsequently, at the committal hearing, the magistrate received written and oral submissions on this issue. His Honour accepted the submission made on behalf of the applicant (and also on behalf of Mr Wald and Mr Armstrong) that s 3A could not apply to the present case. In particular, he said:[10]
[10]DPP v Armstrong & Ors at [21]-[23].
[21] The prosecution submit that the unintentional killing of [the deceased] in the circumstances alleged falls within the definition of s 3A and, until there is a definitive ruling by a superior court that co-offenders are exempted from the operation of s 3A, a properly instructed jury could convict [Mr] Armstrong, [Mr] Wald and [the applicant] on the charge of murder and the court should commit them to stand trial. I disagree. In my opinion, s 3A is limited to factual circumstances where there is a death caused to “another person” being an “innocent bystander”. The evidence indicates that [the deceased] was a party to his own death. He was the main participant in the assault on [Mr] Delmo and called for the production of the gun, the accidental discharge of which caused his death. There is no legal authority in Victoria that supports the prosecution contention that the accused can be convicted of statutory murder in circumstances where one of the participants in an act of violence unintentionally kills one of the other participants in that act.
[22] I have noted the comments made by McGarvie J and O’Bryan J in Demirian[11] in relation to public interest considerations and what purpose is to be served by an extension of the law in this area. In the absence of other authority, I consider their comments to be highly persuasive. Furthermore, I consider that if Parliament had intended s 3A(1) to apply to the factual circumstance before the court it could easily have done so when it abolished the felony murder rule in 1981 and replaced it with s 3A. It chose not to do so.
[23] Accordingly, I do not consider that a trial judge could properly instruct a jury to convict [Mr] Armstrong, Mr Wald or [the applicant] of murder pursuant to s 3A … I will discharge each of the accused on Charge 1.
[11]R v Demirian [1989] VR 97.
In their joint judgment in R v Demirian [1989] VR 97, McGarvie and O’Bryan JJ considered cases decided in the United States of America in which a person had been killed accidentally in the course of committing a felony and another party to the felony had been charged with murder. In particular, their Honours referred to Commonwealth v Bolish (No 1) 381 Pa 500 (1955) and Commonwealth v Bolish (No 2) 391 Pa 530 (1958), where a majority of the Supreme Court of Pennsylvania twice upheld a conviction for murder in circumstances where Mr Bolish had instigated Mr Flynn to burn a house and the latter had been burned when volatile material he was heating exploded prematurely, from which burns he later died. The majority took the view that the public interest which required that an arsonist be liable for murder if the fire killed the occupant of the building, a fireman or a member of the public, required the same result where the fire killed an accomplice.[12]
[12]R v Demirian [1989] VR 97 at 119-120.
However, McGarvie and O’Bryan JJ cautioned against reliance on such cases because they involved a form of the felony murder rule much wider than the common law rule or the statutory rules which apply in Australia.[13] Their Honours also indicated their agreement with the comment of Professor Colin Howard on the decision in Commonwealth v Bolish, that “there can be little doubt that the felony murder rule was never intended to impose responsibility on D for the accidental death of one of his co-felons; and it is difficult to see what purpose is served by such an extension of the law”.[14] Further, as Mr Garnett M opined in his reasons (extracted above), McGarvie and O’Bryan JJ also remarked that “[t]he fact that Parliament abolished the common law felony murder rule in 1981 and replaced it with s 3A(1) …, without specifically referring to the killing of one accomplice by another, suggests that Parliament did not see a need for such an extension”.[15]
[13]R v Demirian [1989] VR 97 at 119.
[14]R v Demirian [1989] VR 97 at 120-121, citing Howard, Criminal Law, 4th edn, at p 64.
[15]R v Demirian [1989] VR 97 at 121.
Counsel were not able to point me to any cases in Victoria where s 3A had been relied on to charge and convict an accused of murder arising from the accidental killing of an accomplice in the course of another crime. I am not aware of any such case in Victoria’s history either at common law or since the introduction of s 3A.
Thus, given the foregoing, it was not surprising that Mr Albert, while maintaining that there is a case of murder against the applicant, conceded that it is arguable that s 3A does not extend to inculpating the applicant on the facts alleged. Further, counsel are agreed that this issue should be determined pre-trial and that an interlocutory appeal will be launched by whichever party receives an adverse ruling.
It is not my function on this application to determine which, if either, is the better view. That question will be determined prior to trial after full argument. But it is my function on this application to have regard to the strength of the prosecution case. The respondent’s concession, which I accept, that it is arguable that the murder charge cannot be sustained at law, is equivalent to a finding that the prosecution case is relatively weak. In my view, that finding, together with the fact that no similar case has ever been launched under s 3A, amount to exceptional circumstances. However, even if I am wrong about that, as will be seen below, there are other matters that add to the conclusion that, in combination, there are exceptional circumstances in this case which justify the granting of bail.
Is intentionally causing serious injury “a crime the necessary elements of which include violence” within the meaning of s 3A(1)?
Another one of those matters is the argument that intentionally causing serious injury might not be “a crime the necessary elements of which include violence” within the meaning of s 3A(1). If it is not such a crime, then the Crown case, as framed, cannot succeed.
In R v Butcher [1986] VR 43, Murphy, Murray and Gobbo JJ held that s 3A expressly departs from the construction of the felony murder rule at common law offered by Lord Goddard in R v Grant & Gilbert (1954) 38 Cr App R 107. It had been argued that the relevant “felony involving violence” had to be one intrinsically involving violence and not a felony merely incidentally accompanied by violence or preceded by violence. His Lordship’s view was to the effect that the “felony involving violence” need only be the subject of a pre-conceived intention to offer violence in order that felony murder rule be attracted. Section s 3A(1), on the other hand, “restricts the application of the rule to crimes of a particular class, that class being crimes the necessary elements of which include violence (as understood at common law) and which crimes are punishable by penalties as specified in the sub-section”.[16] Put another way, if the relevant crime can be committed without violence (as understood at common law), it will not qualify under s 3A. Their Honours went on to hold that the statutory offences of robbery and armed robbery in Victoria are such crimes.[17]
[16]R v Butcher [1986] VR 43 at 49-50.
[17]R v Butcher [1986] VR 43 at 46-51.
So, can the statutory offence of intentionally causing serious injury be committed without violence (as understood at common law)? Both counsel made helpful submissions, completely off the cuff, in response to this question. Mr Kassimatis submitted the answer must be yes. He gave the example of a person who, through consensual sexual intercourse, intentionally transmitted a serious disease amounting to serious injury. As sinister as that would be, he argued, it would not necessarily be violent. Mr Albert submitted that the answer must be no. He said that acting on an intention to transmit a serious disease, or an intention to gas someone, so that serious injury would be caused thereby, and was so caused, necessarily would involve violence because of the intention to cause serious injury, even though the means of causing that serious injury might not be regarded as violent.
Again, it is not my function on this application to determine which, if either, is the better view; and, again, this is a matter that will be dealt with prior to trial. But, again, Mr Albert accepted that such an argument could go into the mix in determining whether exceptional circumstances exist, albeit he did not make the same concession as to the merits of this particular argument as he did in relation to the argument as to whether s 3A extends to the accidental killing of accomplices. Recognizing that I have not heard anything approaching full argument on this particular issue, it nevertheless seems to me that there may well be a reasonable argument that intentionally causing serious injury is not a crime the necessary elements of which include violence for the purposes of s 3A(1), which in turn is another factor going to the strength of the case and therefore to the question of exceptional circumstances. I should add that I place less weight on this particular factor given that, unlike the point argued in some detail at the committal hearing, this matter has not had the same detailed consideration by the parties or, for that matter, another court.
Other matters relied on as going to exceptional circumstances and as “showing cause”
Mr Kassimatis relied on several other matters as adding to the argument that the applicant had shown that exceptional circumstances exist which justify the granting of bail. He relied upon those same matters as showing cause why the applicant’s detention in custody is not justified on the serious injury charges. They include the following:
First, the applicant, who is aged 29, has ties to the jurisdiction. He has lived in Melbourne all his life. His partner, his family and his friends all live here.
Secondly, the applicant has no history of failing to appear or of failing to comply with court orders. His prior convictions are relatively old and minor. They include driving offences (in 2006); possession of an unregistered .22 gun, ammunition and a small amount of amphetamines (in 2004); and minor dishonesty offences when he was a teenager (in 2003). None of his prior convictions are for violence of any kind.
Thirdly, the applicant has a stable address at which to live. The applicant was able to live with his partner and his mother at the latter’s home in Frankston. Alternatively, in order to alleviate the concerns of the informant that the applicant may come across many of the Crown witnesses who live in that area, the applicant was prepared to live with Ms Fodor and her husband and child at their home in Ferntree Gully. I accept Ms Fodor’s sworn evidence that she has known the applicant and his partner for eleven years; that she and her husband have no criminal history; that they have a room to spare in their home (which could accommodate both the applicant and his partner); and that she would notify police if she became aware that the applicant failed to comply with any bail conditions or did anything illegal, including taking illicit drugs.
Fourthly, given the same concern by the informant, the applicant is prepared to accept a bail condition that he not attend certain suburbs around the Frankston area or a curfew that confines him to his residence overnight.
Fifthly, the applicant has a history of being gainfully employed both before he finished school and since then.
Sixthly, he has a job as a labourer to go to with Mr Middleton’s painting business in the eastern suburbs of Melbourne. I accept Mr Middleton’s sworn evidence that he has no criminal history; that he has known the applicant for over ten years; that he regards the applicant as having a good work history; that he expects to have work for the applicant for three to five days per week till Christmas and hopefully after that time; that the applicant would be under his supervision at work; and that he would not tolerate any illicit drug-taking at his place of work.
Seventhly, the applicant complied with his bail conditions whilst on bail for the two weeks in September between being discharged at committal and directly indicted in this Court. Indeed, he worked for those two weeks as well.
Eighthly, a friend of the applicant was able to provide a surety of $50,000.
As to the question of showing cause why the applicant’s detention in custody on the serious injury charges is not justified, Mr Kassimatis added the following matters to the foregoing list:
First, given the proposed trial date (28 April 2014), if not granted bail, it is likely the applicant would be in custody for at least 18 months before the trial concluded. Mr Albert argued that a conviction on a charge of intentionally causing serious injury would be likely to result in a sentence the non-parole period for which would exceed 18 months and that the prosecution case on that charge is relatively strong. I agree. However, Mr Kassimatis argued that, given the circumstantial nature of the case, a jury may acquit the applicant on that charge. Alternatively, he argued that a jury might acquit of the more serious charge and convict of a lesser alternative, such as intentionally causing injury, which would be likely to result in a sentence with an immediate period of custody shorter than 18 months. Further, such an outcome could not be discounted, particularly in view of the fact that it is likely that it was the deceased – not the applicant – who struck the blows to Mr Delmo causing serious injury. I accept those submissions.
Secondly, Mr Kassimatis submitted that it was common for persons charged with intentionally causing serious injury, even when a weapon was allegedly used, to be granted bail. He added that persons charged with serious sexual offences who were at risk of far longer sentences if convicted were also commonly released on bail. My impressions are the same. However, in the former category of case, I suspect that the granting of bail may be a function of the relatively long delays that often obtain between charge and trial in the County Court. In the second category of case, applicants for bail on sexual offences – even very serious sexual offences – are not usually in a “show cause” situation. In the end, I must consider the application in light of the evidence and the applicable law rather than based on what might have occurred in other cases.
Thirdly, however, I agree with the submission that even 18 months is a long time to be awaiting trial when one is presumed innocent. Whilst the Crown case on the serious injury charges appears to be relatively strong, it is based on circumstantial evidence and could not be said to be overwhelming.
Fourthly, Mr Kassimatis submitted that the fact that the applicant would also have a murder charge hanging over his head whilst in custody – a murder charge which is based on a novel set of circumstances and arguably is not supported at law – is another factor to be weighed in the balance. I accept that submission.
Fifthly, Mr Kassimatis argued that a finding of exceptional circumstances in respect of the murder charge should also inform the question of whether the applicant had shown cause. I understood Mr Kassimatis to be submitting in effect that it would be odd if the higher threshold of exceptional circumstances were met on application in respect of the murder charge but the lower threshold of showing cause were not met on the application in respect of the serious injury charges. That, in general, would seem to be correct, but there may well be cases where the exceptional circumstances hurdle would be cleared on one charge but the applicant would fail to show cause on another.
I need not resolve this issue in the present case because I am satisfied that, by reason of the other matters I have accepted and the other matters to be mentioned below under the heading of “unacceptable risk”, the applicant has demonstrated exceptional circumstances justifying the granting of bail and has shown cause why his detention in custody is not justified.
Unacceptable risk of interfering with witnesses or obstructing the course of justice?
Next, I must consider whether the respondent has shown that there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
In my view, the respondent has not demonstrated an unacceptable risk of behaviour of that type. Indeed, I am satisfied that the applicant has shown that there is no such unacceptable risk. There are several reasons.
First, Mr Albert relied particularly on the sworn evidence of the informant as to the particular events that gave rise to his concerns about possible interference with witnesses were the applicant released on bail. The difficulty is that, whilst I accept that Detective Towner genuinely has those concerns, after hearing his quite proper concessions in cross-examination and the evidence of Mr Middleton and Ms Fodor, it became apparent that there was no satisfactory basis on which I could be satisfied of an unacceptable risk of the type alleged. I shall explain my reasons for that conclusion:
a) First, Detective Towner gave evidence that, at the committal hearing, a witness’s car was damaged and, later, billiard balls were thrown through the windows of her house and dog food was put into her toilet. In cross-examination, however, Detective Towner accepted that, while the incident was occurring at the committal proceeding, the applicant was in the dock in court; and that there was no evidence that the applicant had any knowledge of or involvement in the incident or the incidents at the witness’s house.
b) Secondly, Detective Towner gave evidence that telephone intercepts revealed that in June 2012, prior to charges being laid, Mr Wald called the applicant and discussed the possibility of their paying a visit to a witness who had been speaking to police. The applicant agreed they should do so. Subsequently, Mr Wald rang the applicant back and said that it was unnecessary now because he (Mr Wald) had already spoken to the witness. The witness made a statement but was not prepared to give evidence at the committal. Thus, the evidence of what may have been said to the witness by Mr Wald was never tested. Further, as Mr Kassimatis pointed out, this conversation is said to have occurred six months before the applicant was charged. He has now been in custody for about ten months and that incident, such as it is, occurred about 16 months ago. Detective Towner also gave evidence that one of the witnesses had given him “uncorroborated information” – i.e. a hearsay account of another – that a threat had been made to him. However, Detective Towner also accepted that the applicant had never breached bail or court orders and that there was no evidence that the applicant had either directly or indirectly ever caused any witness to be in fear.
c) Thirdly, Detective Towner said there was evidence that the applicant and his partner had been involved in trafficking in drugs. In cross-examination, however, he conceded that no charges had ever been laid against the applicant.
Secondly, Detective Towner gave evidence that a large number of the witnesses lived in the Frankston area, relatively close to the applicant’s mother’s house, where he was proposing to live, and that there was a risk that they would come across each other in their daily lives if the applicant were released on bail. However, the evidence that the applicant was able to reside and work in the eastern suburbs and that he was prepared to accept an exclusion zone or a curfew, in my view, sufficiently ameliorated any such risk.
Thirdly, Detective Towner also expressed concerns about Mr Middleton’s offer of employment and Ms Fodor’s offer of residence. As indicated above, however, I accept their evidence on those issues; and Detective Towner was in no position to dispute the essential features of their evidence.
Fourthly, the applicant was also prepared to abide by any reporting conditions suggested by the respondent were bail to be granted. Such conditions would enable the police to monitor the applicant to some extent, as would a curfew condition. As it happened, the respondent suggested thrice-weekly reporting, which the applicant accepted.
Finally, Mr Albert advised of the conditions the informant would regard as necessary were bail to be granted. The proposed conditions urged by the respondent, all of which I have included in the grant of bail, add to my conviction that there is not an unacceptable risk that the applicant, if granted bail, would interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself for any other person.
Conclusions and order
Accordingly, having regard to the evidence before me, my findings on that evidence, the submissions of counsel and the proposed conditions of bail, I have reached the following conclusions:
First, I am satisfied that exceptional circumstances exist which justify the granting of bail.
Secondly, I am satisfied that the applicant has shown cause why his detention in custody is not justified.
Thirdly, I am not satisfied that there is an unacceptable risk that, if released on bail, the applicant would interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. (Nor am I satisfied that there is an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, or endanger the safety or welfare of members of the public.)
Fourthly, I consider it appropriate to grant the application for bail provided a surety and several other conditions are met.
In particular, the applicant will be admitted to bail with a one surety in the amount of $50,000 on the following conditions:
1) the applicant is to reside at 1715 Ferntree Gully Road, Ferntree Gully in the State of Victoria;
2) the applicant is not to leave his place of residence (i.e. 1715 Ferntree Gully Road, Ferntree Gully) between the hours of 10:00 pm and 5:00 am;
3) the applicant is not to attend the suburbs of Frankston, Hastings, Narre Warren, Carrum Downs, Seaford, Skye or Somerville;
4) the applicant is not to associate with or contact, either directly or indirectly (including via social media), witnesses for the prosecution other than the informant Detective Leading Senior Constable Peter Towner or his nominee;
5) the applicant is not to associate with or contact, either directly or indirectly (including via social media), his co-accused, except Adalia Ottobre;
6) the applicant is to notify the informant or his nominee seven days prior to any intended interstate travel;
7) the applicant is to notify the informant, within 24 hours, of any change in his employment status;
8) the applicant is not to attend any points of international departure;
9) the applicant is not to apply for another passport or other travel document;
10) the applicant is to report each Monday, Wednesday and Friday between the hours of 5:30 a.m. and 9:30 p.m. to the Officer in Charge of the Knox Police Station or to his or her nominee;
11) the applicant is to attend any and all further proceedings in this matter in this Court at the appointed times including on Monday 20 January 2014 at 10:30 a.m.
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