MacDonald v Director of Public Prosecutions

[2004] VSC 431

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1507 of 2004

IN THE MATTER of an application for bail by CLAIRE MacDONALD

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JUDGE:	Morris J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2004
DATE OF JUDGMENT:	22 October 2004
CASE MAY BE CITED AS:	MacDonald v DPP
MEDIUM NEUTRAL CITATION:	[2004] VSC 431

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Atkinson
For the Applicant	Ms N Gobbo

HIS HONOUR:

1. This is an application on behalf of Claire MacDonald for bail.  The applicant was charged with murder on 30 September 2004.  It is alleged that on that day she shot her husband, Warren John MacDonald. 

1. On 2 October 2004 the applicant was interviewed and made admissions in relation to the shooting.  On 2 October 2004 the applicant was remanded in custody, and on 4 October 2004 at the Magistrates' Court at Melbourne she was further remanded in custody to appear at a committal mention at the Magistrates' Court at Melbourne on 21 January 2005.  The date for the service of the brief is 10 December 2004.

1. The circumstances relating to the events with which the applicant has been charged are set out in a statement of Detective Senior Constable Joseph Gerard O'Connor dated 20 October 2004, which is exhibited to an affidavit lodged on behalf of the Crown in relation to the present application.

1. Section 4(2)(a) of the Bail Act, provides that a court shall refuse bail in the case of a person charged with murder, except in accordance with s.13.  Section 13 in turn provides that bail shall not be granted to a person charged with murder unless this court is satisfied that exceptional circumstances exist which justify the making of such an order.  I will return to that question.

1. Section 4(2)(d) of the Bail Act also provides that a court shall refuse bail if the court is satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender himself into custody in answer to his 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 whether in relation to himself or any other person.  This Act was written in 1977 before gender neutral language was used in legislation.

1. The Crown has submitted to me that if I am satisfied that exceptional circumstances exist, it does not submit that there would be an unacceptable risk that if the applicant is released on bail any of the matters set out in s.4(2)(d) of the Bail Act would apply.  Hence, the real question for me to consider is whether or not there are exceptional circumstances in this case.  If there are exceptional circumstances, then it would follow that bail should be granted.

1. The meaning of the expression "exceptional circumstances" has been considered by this Court on many occasions.  For example, it has been said that there must be some unusual or uncommon circumstance surrounding the case before the Court is justified in releasing a person on bail when they are charged with an offence such as murder.  But I agree with decisions of this Court which are to the effect that it is dangerous to seek to define what is meant by "exceptional circumstances".  The very nature of the expression as used in the Bail Act is such that a definition of the expression is likely to close the circumstances which make bail appropriate, when the intention of the legislation was to keep the range of relevant matters open, albeit the need for the circumstances to be exceptional.

1. I do think, though, that the matter is better approached by looking at all the circumstances and then making an assessment whether, having regard to all those circumstances, the circumstances are exceptional.  To look at each circumstance separately and then identify whether that circumstance is exceptional, and then seek to make a conclusion on that basis, is to fail to have regard to the reality that circumstances must be assessed as a whole. 

1. Further, in my opinion, the matters referred to in s.4(2)(d) of the Bail Act, that is, matters relating to unacceptable risk, are also relevant to the question of exceptional circumstances.  Hence, in this case, a starting point might be that there is an acceptable risk that if the applicant is released on bail she will answer bail, she will not commit offences whilst on bail, she will not endanger the safety or welfare of members of the public and will not interfere with witnesses or otherwise seek to obstruct justice.  Although a starting point, that, of course, is not sufficient. 

1. A further factor that is relevant is that the Crown does not actively oppose bail.  That is a further factor that is relevant, but, neither in itself nor added to the factors concerning acceptable risk, is it sufficient to demonstrate exceptional circumstances.

1. The applicant relies upon evidence set out in an affidavit of Daniela Iovanovska sworn 15 October 2004.  That affidavit is supported by letters from teachers of the Alexandra Primary School which offer support to the applicant and attest to her caring, gentle and co-operative nature in her life as part of the school community.  The affidavit is also supported by a report by Dr Jeffrey E. Cummins, a consulting clinical and forensic psychologist.  That report sets out background information about the applicant, the deceased and the family of those persons.

1. For the purposes of this application, and only for those purposes, I make the following findings.  The applicant and the deceased were married for 17 years.  During that period they had five children, who are now aged between nine years of age and two-and-a-half years of age.  They lived on a rural property at Acheron and have lived there for 15 years.  They lived in a small dwelling whilst building a larger dwelling.  The small dwelling basically had a living space of about 45 square metres at the ground floor and a bedroom of, I take it, similar area above, in which all the family members slept. 

1. There is evidence that, during the period that the applicant was married to the deceased, and increasingly during the latter part of that relationship, the deceased acted in a controlling way;  that from time to time he engaged in aggressive or even violent conduct in relation to the children and the applicant, both in relation to sexual conduct as well as general conduct.  It does appear that there is a prospect that some form of defence might be raised in relation to the charge of murder, such as a defence of provocation.  The matter I have set out go into the mix when it comes to assessing whether there are exceptional circumstances, combined with the other matters I have already referred to in relation to the Crown's attitude and the existence of an acceptable risk. 

1. In addition to that, there remains the fact, which I regard as relevant, that there are five children who need to be looked after.  They have been deprived of their father and, if bail is not granted, then, pending the trial of this matter, they will also be deprived of their mother.  Those children are presently living with the parents of the applicant.  Those parents are in their late sixties and have health problems that are common enough at that stage of life.  That is a further factor that goes into the mix. 

1. The current advice I am given as to the committal hearing of the matter is that it is likely to be in late May 2005.  That is a substantial time from now, particularly in the life of a two-and-a-half-year-old. 

1. The applicant has no prior convictions.  That is a further relevant factor.

1. Further, and relevantly, the family of both the applicant and the deceased, I am told, support the Court granting bail.  I can understand why they have formed that view, and I regard that as a relevant matter. 

1. Taking all those factors into account, I am satisfied that there are exceptional circumstances.  Hence, I will grant bail.