Hood, Re application for bail
[2001] VSC 424
•26 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1515 of 2001
| IN THE MATTER of an Application for Bail by: RAYMOND JOHN HOOD |
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JUDGE: | McDONALD, J. J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2001 | |
DATE OF JUDGMENT: | 26 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 424 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J. Sutherland | Victorian Legal Aid |
| For the DPP | Mr J.D. McArdle QC | Solicitor for Public Prosecution |
HIS HONOUR:
In these proceedings Raymond John Hood makes application to the court to be granted bail.
On 21 September 2001 Hood was charged with the murder of Daryl John Colley on 21 April 2001. On 21 September 201 Hood appeared before the Magistrates' Court at Melbourne. He was remanded in custody. He has remained in custody since that time and he is presently held in custody at the Melbourne Assessment Centre.
The committal mention herein has been fixed for 11 January 2002. In my view, on the matters put before me it is likely that the committal hearing would take place sometime about the middle of next year and if committed for trial, the trial of the accused would take place toward the end of next year or early the following year.
The applicant was born on 23 February 1971 and is 30 years of age. He is a divorced man. He has two children, a boy seven years of age and a girl six years of age. Before being arrested and charged he had had contact with his two children.
Approximately ten months before the death of the deceased Hood and the deceased commenced to live together in a homosexual partnership. In an affidavit sworn by Hood's solicitor, Catherine Pulbrook, on 16 October 2001 she has deposed that she had been informed and believed that shortly after Hood and the deceased commenced to cohabit together the deceased informed Hood that he suffered from HIV which had caused him to suffer a brain tumour. She has deposed that shortly before his death the deceased told his friends that he intended to commit suicide and a "farewell" gathering party was held. She has deposed that she has been informed and believed that Hood was told, as were his friends, that the deceased intended to take his own life by the ingestion of pills and that he wanted to die with dignity and that on 21 April 2001 following the consumption of Scotch whiskey, wine and benzodiazepine tablets the deceased died.
On 22 April 2001 the applicant notified the police of the death of the deceased. At a later autopsy conducted on the deceased it was concluded that the cause of the death of the deceased was caused by combined drug toxicity. I will return to this matter hereafter.
On 17 September 2001 Hood was interviewed by the police. He was not taken into custody at that time. He was again interviewed on 21 September and it was on that day that he was charged with the murder of the deceased.
By reason of the provisions of s.4(2) and s.13 of the Bail Act, the court is required, before granting bail to a person charged with murder, to be satisfied that exceptional circumstances exist. It is the task of the applicant to so satisfy the court. The onus as to that matter rests with the applicant.
The application of Hood to be granted bail is opposed. In a statement made by a solicitor in the employ of the Director of Public Prosecutions he has stated that he has been informed that when the police attended at the home of the deceased on 22 April 2001 after being called by Hood, he told the police that the deceased had committed suicide, that a note and will were found beside the body of the deceased, that he told them that he lived with the deceased, but that he had been absent from the house and that when he had returned he found the body of the deceased. The solicitor stated that he has been informed that it is alleged against Hood that he was, in fact, in the house at the time of the death of the deceased and that he had by his actions assisted in the death of the deceased. Detective Sergeant Nugent has sworn an affidavit in these proceedings. It is relied on by the Director of Public Prosecutions in these proceedings in opposition to the application for bail.
Detective Sergeant Nugent has deposed that on 22 April 2001 when Sergeant Cockerell attended at the home occupied by the deceased and Hood, that Hood was present and that he told Sergeant Cockerell that he had left the home at about 9.30 p.m. the night before and that when he returned at about 7.45 a.m. that day he found the deceased on a bed. Detective Sergeant Cockerell has further deposed that Hood told Sergeant Cockerell that the deceased had told him that he had HIV and that he had told Hood that he had said that he wanted to go to sleep. Sergeant Cockerell located a suicide note and a will of the deceased and he also located an empty Panadeine packet which would, when full, contain some 100 tablets, but there were ten empty blister packets each which would have contained ten tablets.
Later on 14 May the sister of the deceased, Donna, informed the police that the deceased was a cross-dresser and when dressed as a female he used the name Rosie. She informed the police that the deceased had HIV causing him to suffer tumours of the brain and that on 19 April 2001 he had told her that on the Saturday night following he was going to take tablets which would put him fast asleep. She said that on the evening of the Friday, preceding the death of the deceased, she had attended a "wake" at the home of the deceased which was attended by some 20 people together with the deceased and Hood and that the deceased had told them what he wanted them to do after his death and thanked them for attending.
She again attended at the house on Saturday afternoon and evening with relatives to say goodbye to the deceased. Hood she said was present at that time. She said that at about 7.30 that evening the deceased asked them to leave so the "job could be done." she stated to the police that at about 11.38 that night Hood had telephoned her and said, "don, it's me. He's gone. Your brother's dead".
She has further told the police that the following morning Hood picked her up in order that she may pick up her car which was at the home of the deceased. She has told the police that on that occasion Hood said to her, "It didn't work Don, it didn't work. I had to finish it. I went across to the other side of town to get a red light camera." she said that Hood further said that he had gone through a red light at about 1.30 a.m. that morning to prove that at that time he was on the other side of town.
On 17 September Hood was interviewed by the police and during the course of that interview Hood said that he had lied to the police when he reported the death to them on 22 April and said that he was not home. He told the police the deceased had taken Panadeine tablets, that he had requested Hood to assist him and that the plan was if the tablets did not work, he, Hood, was to suffocate him. He told the police that the tablets did not work, the deceased was taking too long to die and that he covered the deceased's nose and mouth with his hand to suffocate him. Hood gave different responses to questions as to whether or not the deceased had died as a result of those actions.
In conducting further investigations the police have taken statements from a number of witnesses relevant to the matter. I will refer to those shortly. The witness Frank Palomares said that he had a telephone conversation with Hood on 22 April and that Hood told him that he had to "finish her off" and that "I smothered her with a pillow." The witness Peta Andrews has informed the police that in a conversation with Hood after the death of the deceased, Hood told her that it did not work and he had to finish Daryl off. Hood further told her that he had used a pillow. A further witness Mark Porter has informed the police that he had a conversation with Hood about the deceased's death and that Hood had told him, "the drugs weren't enough" and that he had to finish off the job. Further, another witness Norma Collie has informed the police that she had a conversation after the death of the deceased and that Hood had told her, "Mum, it didn't work, I had to finish him off. The bastard fought me too".
A further witness Ahmed Rajab, who is known as Eddie, has informed the police that he had a telephone conversation with Hood after the death of the deceased and that Hood told him, "I'm sorry that I had to do it", and then again on the following Sunday Hood met with him and they had a further conversation in which Hood said to him in that conversation the deceased got dressed and they sat down and the deceased started taking pills and they waited for a while for the pills to work. He said that later Hood said, "I grabbed the pillow, jumped over Daryl, pinned his arms under my knees so he couldn't move. Daryl woke up kicking, punching and screaming and then I jammed the pillow in his face again and then as soon as the candles went out Daryl stopped breathing."
I return to the autopsy and the report of the pathologist. It is reported by the pathologist that at autopsy he found no mucosal injury to the lips, to the tongue or to the gums of the deceased, however he expressed the opinion that such an injury may occur if an airway obstruction occurs due to an external object being placed on or over the mouth of a conscious individual, but if the individual was unconscious or semi-conscious, then such an injury may not occur.
The pathologist concluded that the cause of the death of the deceased was the combined effects of alcohol and benzodiazepine and that would be consistent with causing the death of the deceased which he concluded was due to drug toxicity.
On behalf of the applicant it has been submitted by his counsel that in the circumstances of this case and the material before the court there is an arguable defence open to the applicant that even on the account to which I have referred in summary he did not commit the crime or it is likely to be found that he did not commit the crime of murder, but rather if anything he committed a crime of aiding and abetting another to commit suicide and would be guilty of an offence under s.6B(2)(b) of the Crimes Act. Counsel has argued and submitted to me that on these facts that that would be the more likely outcome of any trial of the applicant. That argument is contested by Mr McArdle on behalf of the Director who has submitted that when one has regard to the facts in this case that are relied on on behalf of the applicant, the events which occurred could not be viewed as the applicant aiding or abetting another person to commit suicide, but rather another person by his act bringing about the death of the deceased. This may be a matter and probably will be a matter necessary to be determined at trial. It is not necessary for me and I do not seek to define at this stage that which is meant by "aiding and abetting" another person to attempt to commit or to commit suicide. It is not necessary for me to do so at this stage.
It has further been submitted on behalf of the applicant that when one has regard to the report of the pathologist, that there is clearly open in this case the question as to whether the actions of the deceased, as I have referred to and which the applicant has described to other persons were the cause or a cause of the death of the deceased. It has been submitted by counsel that when one has regard to these matters and the report of the pathologist, that it may well be that even if it was accepted that the applicant did the things which I have referred to, they were not causative of the death of the deceased. Mr McArdle has quite properly said that that matter would, no doubt, need to be fully investigated at the trial of the applicant. Nevertheless, although that is the case, it would appear in the circumstances of this case that the cause of death of the deceased is an issue and a live issue in these proceedings.
I take into account that latter matter as being a live issue in these proceedings. I have regard to the circumstances leading up to and surrounding the death of the deceased as known at this time and that which I have referred to. I take account of the age of the deceased and that he has no prior criminal history. I take account further that the applicant if released on bail would have a stable environment to live in and that it is probable that he would be able to get work. I am not satisfied in this case that if the applicant was released on bail he would be likely to offend while waiting trial.
I also have concluded that on the material before me it is reasonable to conclude that if the applicant was released on bail he would answer his bail. The fact is that he first spoke to the police on 22 April this year. He was again interviewed on 17 September and he remained in the jurisdiction so as he could be, and as he was, interviewed on 21 April. I take into account each of these matters and I take them into account in combination.
In taking these matters into account in combination I have reached the conclusion that there are exceptional circumstances in this case which warrant me to admit the applicant to bail. However, in admitting the applicant to bail I propose to impose strict conditions which I will articulate further, but which will include that he reside at 61 Isla Avenue, Glenroy and that he give notice to Detective Sergeant Nugent of any intention to change his address 48 hours before doing that; that he report to the officer-in-charge of the Glenroy Police Station on Monday, Wednesday and Friday of each week between 8 a.m. and 8 p.m.; that he not contact any prosecution witness other than Detective Sergeant Nugent; that he surrender his passport; that he not attend any point of international departure during his period of bail and that further there be provided one surety in the sum of $20,000.
Accordingly, I order that the applicant be admitted to bail on his own undertaking with one surety in the sum of $20,000, conditioned in proper form for his appearance required by law at the Magistrates' Court at Melbourne on the 11th day of January 2001 at 10 a.m. and upon the following special conditions:
1.The applicant reside at 61 Isla Avenue, Glenroy and that notice be given by the applicant to Detective Sergeant Nugent of intention of the applicant to change address 48 hours before making any change of address;
2.That the applicant report to the officer-in-charge of the Glenroy Police Station or his or her nominee between the hours of 8 a.m. and 8 p.m. on Monday, Wednesday and Friday of each week;
3.That the applicant not contact directly or indirectly any witness of the prosecution except the informant or his nominee, but I will come back to this matter;
4.That the applicant surrenders any passport which he may hold to the informant within 12 hours of being admitted to bail and not apply for another passport;
5.That the applicant not attend any point of international departure during his period of bail.
I need to come back to the condition that the applicant not contact any witness directly or indirectly. Mr McArdle, in making that order it occurred to me that it may well be said that his mother and father are witnesses.
MR McARDLE: Yes.
HIS HONOUR: I have little doubt that they would have - I don't know whether they are in court. Are they?
MISS SUTHERLAND: His mother is in court, Your Honour.
HIS HONOUR: I would have little doubt that she would know and her husband would well know that they should - if he was to be permitted to have contact with them, that they should not in any way discuss the matter the subject of this prosecution for otherwise it might jeopardise his bail. I wonder in such circumstances should I make provision in that condition to exempt his mother and father.
MR McARDLE: As far as I'm concerned Your Honour should, yes.
HIS HONOUR: I don't consider I will unless I am persuaded. The sister seems to fall in a different category.
MR McARDLE: She does.
HIS HONOUR: The condition I will make as to not contacting any witness is that the applicant not contact directly or indirectly any witness of the prosecution except the informant or his nominee except his mother. Her name is?
MISS SUTHERLAND: Her name is Verity Hood, V-E-R-I-T-Y Hood.
HIS HONOUR: The father?
MISS SUTHERLAND: Robert Hood.
HIS HONOUR: So that clause will read or the condition will read that the applicant not contact directly or indirectly any witness of the prosecution except the informant or his nominee or his mother (Verity Hood) or father (Robert Hood).
MISS SUTHERLAND: Excuse me, Your Honour. Could I just confer with my instructor?
HIS HONOUR: Indeed.
MISS SUTHERLAND: Could my instructor just approach the dock, Your Honour, for some instructions in relation to the matter of his sister? Thank you for that indulgence. My client says his sister has given a statement and she is present in court.
HIS HONOUR: Who has given a statement?
MISS SUTHERLAND: His sister Kim, so that may - - -
HIS HONOUR: We have got Donna. That's the sister.
MISS SUTHERLAND: No, my client's sister.
HIS HONOUR: Not the deceased's sister?
MISS SUTHERLAND: No, so her name is Kim and she is present in court.
HIS HONOUR: Kim Hood. At this stage I will permit him to make contact with his mother and father.
MISS SUTHERLAND: And I'm just wondering if, in fact, Kim, his sister, has made a statement she would also need to be excluded.
HIS HONOUR: It's not necessary to be excluded, it's whether I would exclude.
MISS SUTHERLAND: Indeed, sir. Could those enquiries just be made of my client and indeed the sister?
MR McARDLE: Your Honour, for what it's worth, this investigation hasn't concluded. Further statements are going to be taken. I'm not quite sure if his sister is likely to be a witness or not.
HIS HONOUR: I think at this stage even if it is his sister, and whether she has not made a statement or not, I will permit him to have contact with his mother and father. If it comes to a point of time where he is seeking to have further contact with a family member, his sister or someone like that, then that no doubt would be a matter to be communicated to the informant and if necessary it can be dealt with by the court, but at this stage I will limit the order to what I have done.
MISS SUTHERLAND: Your Honour, I have just been told that she did give a statement. Does that change Your Honour's view?
HIS HONOUR: It doesn't.
MISS SUTHERLAND: Thank you, sir.
HIS HONOUR: Very well. He will be held in custody until the preparation of the order and the preparations necessary as to the surety and no doubt your instructor will assist in relation to that.
MISS SUTHERLAND: Certainly, Your Honour.
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