Jensen v DPP - [2006] VSC 450

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1457 of 2004

IN THE MATTER of the Bail Act 1977

AND

IN THE MATTER of an application for bail by DOUGLAS VICTOR JENSEN

DOUGLAS VICTOR JENSEN	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2006
DATE OF JUDGMENT:	1 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSC 450

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CRIMINAL LAW – Bail – Murder – Whether “exceptional circumstances” made out – Bail refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Drake	Victoria Legal Aid
For the Respondent	Mr R Elston S.C.	Solicitor for Public Prosecutions

HER HONOUR:

On 2 February 2000, the applicant’s father, Marius Kristian Jensen, died from a single gunshot wound to his head, on the family farm at Tarrington in western Victoria.

On 7 May 2004, the applicant was arrested and charged with his father’s murder. This is his third application for bail. His trial is due to start in about 2 months.

Given the nature of the charge against him, bail must be refused unless the applicant can demonstrate that there are exceptional circumstances which justify the grant of bail. The Bail Act 1977 does not define “exceptional circumstances”. There must be factors present which take the case out of the norm and which would answer the description of “exceptional”. Exceptional circumstances might exist as a result of the interaction of a variety of circumstances which, of themselves, might not be regarded as exceptional.[1] Ultimately, each case must be assessed on its own facts.
[1]Moloney (unreported, Supreme Court of Victoria, 31 October 1990); Re Whiteside; Re Andrea Mantase (unreported, Supreme Court of Victoria, 21 September 2000); R v Cox [2003] VSC 245.

Even if exceptional circumstances are demonstrated, the court must refuse bail if it is satisfied that there is an unacceptable risk that if the applicant was released on bail, he would do any of the following: fail to answer bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice. The burden of establishing unacceptable risk lies on the Crown.

The applicant seeks to rely on the following matters as demonstrating exceptional circumstances: delay, his ill-health and the alleged weakness of the Crown case.

Delay

Inordinate delay can constitute exceptional circumstances, either on its own or in conjunction with other factors. There is no particular time at which a delay necessarily becomes inordinate. Whether the delay between incarceration and trial is so inordinate that it exceeds what our society regards as an acceptable period for a person to be incarcerated without trial must obviously vary from case to case.

The applicant has been in custody since 7 May 2004. It is desirable to look at relevant events during that period, to understand why there has been such a delay.

On 19 July 2004, Ashley J refused an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jensen v DPP

Details

AGLC: Jensen v DPP [2006] VSC 450
Case: [2006] VSC 450
Decision Date: 1 December 2006

CaseChat Overview and Summary

The appeal by the applicant, Jensen, against the refusal of bail by the Supreme Court of Victoria, was heard by the Full Court of the High Court of Australia. The applicant was charged with the murder of a police officer. The primary judge found that bail should be refused due to the seriousness of the offence and the potential danger posed by the applicant to the community if released on bail. The applicant contended that there were exceptional circumstances which justified the grant of bail.

The central legal issue was whether the primary judge erred in finding that exceptional circumstances were not made out to justify the grant of bail. The applicant argued that exceptional circumstances were present due to the lack of evidence against him, his clean criminal record, and the support of his family. The applicant also contended that the primary judge failed to properly consider the principles set out in the Bail Act 1982 (Vic), which require that bail be granted unless it is in the interests of justice not to do so.

The Full Court found that the primary judge had correctly applied the relevant principles and had properly considered the evidence and arguments presented by the applicant. The Court held that the seriousness of the offence and the potential danger to the community if the applicant was released on bail, outweighed any other considerations. The Court further held that the primary judge had not erred in finding that exceptional circumstances were not made out. The appeal was therefore dismissed.

The final orders of the Court were that the applicant's appeal against the refusal of bail be dismissed and that the order of the Supreme Court of Victoria, refusing bail to the applicant, be upheld.

Orders