McNamara v Director of Public Prosecutions
[2020] VSC 844
•22 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0284
| IN THE MATTER of an application for bail | |
| Between: | |
| MARK WAYNE McNAMARA | Applicant |
| -and- | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING & ORDERS: | 14 December 2020 |
DATE OF PUBLICATION OF REASONS: | 22 December 2020 |
CASE MAY BE CITED AS: | McNamara v DPP |
MEDIUM NEUTRAL CITATION: | [2020] VSC 844 |
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CRIMINAL LAW — Bail application — Aboriginal man, 59, charged with manslaughter of co-resident, 63, of rooming house — After excessive drinking session, verbal argument erupted — Deceased refused to leave applicant’s room — Applicant punched deceased to face — Deceased spat blood at applicant — Applicant punched deceased to face again — Deceased suffered fractured nose, facial bruising and heavy bleeding — After treatment and some delay, applicant called triple-zero — After arrival, police left deceased sitting in chair, untreated, for some time — Deceased had difficulty breathing and lost consciousness — Despite attempts to revive by police, fire and ambulance officers, deceased died at scene — Cause of death described as “aspiration of blood complicating blunt force injuries to the face, in the setting of alcohol intoxication and hepatic cirrhosis” — Post mortem alcohol concentration in blood and vitreous humour of 0.47 and 0.57 g/100 mL respectively — Whether compelling reason justifying grant of bail — No assertion of unacceptable risk — No prior convictions for violence — Fresh accommodation with friend — Counselling and health services arranged — Delay — Deceased’s family not opposed to bail — Whether arguable defence relating to causation — Bail granted on own undertaking, with conditions — Bail Act 1977 (Vic), ss 1B, 3AAA, 3A, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms E Clark | Victorian Aboriginal Legal Service |
| For the Respondent | Mr G Hayward | A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Overview
On 31 July 2020, Mark McNamara was charged with the manslaughter of Alexander Dreher. He was also charged with alternative offences of intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury and recklessly causing injury to Mr Dreher.
He now applies to this Court for bail. This is his first such application.
The only contested issue on the application, which was heard last week (on 14 December), was whether Mr McNamara had established a compelling reason justifying bail. I was satisfied that, by a combination of matters, that threshold had been reached. There was no assertion of “unacceptable risk” (and correctly so). Accordingly, I granted bail on Mr McNamara’s own undertaking, with conditions.
I deferred publication of my written reasons until a later date. These are those reasons.
Alleged offending and history of proceedings
Alleged offending
I shall commence with a summary of the alleged offending and then turn to other steps in the proceedings thus far.
Mr McNamara, who is now aged 59, is an Aboriginal man. Mr Dreher, who was 63, was born in Germany. Both had been tenants of the same rooming house in Hawthorn East since 2016. Mr McNamara described their relationship as “like brothers”. Both were heavy drinkers.
It is alleged that, at about 9:30 a.m. on 31 July 2020, Mr McNamara invited Mr Dreher to his room for a drink. This was a common occurrence. Mr McNamara gave Mr Dreher a five-litre cask of wine, which he had bought for him at his request. Mr McNamara drank beer instead. They drank, chatted and listened to music throughout the day.
At about 3:15 p.m. (although the time is not clear), in the course of what had been a very long session, a verbal altercation erupted between the men. Each man was seated in a chair. Mr McNamara stood up and demanded that Mr Dreher leave his room, but he refused. While Mr Dreher remained seated, Mr McNamara grabbed him by the shirt with his left hand and punched him to the face with his right fist, causing him to bleed. Mr Dreher then spat blood in Mr McNamara’s face. Mr McNamara responded by punching him to the face again. Mr Dreher, who was still sitting in the armchair, was bleeding heavily from the nose and face.
About half an hour later, at 3:47 p.m., Mr McNamara rang triple-zero and requested an ambulance. He told the operator that he and another male had been drinking in his room and that he had belted the other male. The operator gave instructions to assist with Mr Dreher’s bleeding. Mr McNamara said that Mr Dreher was having difficulty breathing.
At 3:48 p.m., police received a report of an assault requiring an ambulance at the address of the rooming house. The report was updated with “caller is offender – have been drinking alcohol with PT and then caller hit PT – INJ to face, nose is bleeding”.
Police arrived at the rooming house at about 3:56 p.m. After they knocked a second time, Mr McNamara answered and showed the police to his room. Mr Dreher was sitting in an armchair. At some point, Mr McNamara was arrested and taken outside.
Mr Dreher told police that his name was Alex and that he could still breathe. He had blood coming from his mouth and his nose, and a black eye too. One police officer observed, “It appeared that the blood wasn’t pouring out anymore but there was a pool of congealed blood on his chest and underneath his neck.”
At 4:20 p.m., however, police updated Police Communications to the effect that Mr Dreher was breathing but not conscious.
At 4:23 p.m., police found that Mr Dreher was no longer breathing, and moved him from the armchair to the floor, where they commenced chest compressions.
At 4:32 p.m., Fire Rescue members arrived and took over providing first aid.
At 4:34 p.m., Ambulance members arrived.
At 4:38 p.m., Mr Dreher was pronounced dead.
Police interview and initial charges
Mr McNamara was taken to Melbourne West Police Station. He was photographed and assessed, by a forensic medical officer, as fit for interview. During the interview, Mr McNamara made admissions to assaulting Mr Dreher. Among other things, he said:
We were just grogging on - - - fuckin’ having a great time and he’s just turned around and he’s just sorta fuckin’ said something, you know, like, “Fuckin’ go and get fucked. Fuck, fuck, fuck you,” and all this, going off his head. I just went crack, “Now fuckin’ shut up.” … I just grabbed him, picked him up like that and went fuckin’ bang and hit him twice.
Mr McNamara said he waited about half an hour before he rang for an ambulance. He said he did not know what to do.[1]
[1]There is evidence of other admissions that Mr McNamara allegedly made at the scene, but it is unnecessary to include that evidence in this summary. Unless those admissions were preceded by a caution and, even if they were, given Mr McNamara’s state of intoxication, it is difficult to see how they would be admissible. Perhaps if they were put to him and confirmed in the later formal recorded interview, they may be admissible.
Mr McNamara was charged with the lesser offences mentioned earlier and remanded in custody.
Autopsy report
On 1 August, forensic pathologist Dr Gregory Young performed an autopsy on Mr Dreher. Before turning to his medical findings, I note two other aspects of his report.
First, according to notes of Ambulance Victoria, the triple-zero call was received at 3:44 p.m. An ambulance was dispatched (“non-urgent”) at 4:21 p.m. and was en route at 4:24 p.m. The criticality was changed to “time critical” at 4:27 p.m. The ambulance arrived at the scene at 4:30 p.m. and paramedics were with Mr Dreher by 4:32 p.m. (It will be apparent that some of these times differ from those contained in the foregoing summary.) Assessment of the airway showed “partial obstruction”, with a “blood-soiled airway” and “audible noises when compressions being performed”.
Secondly, Dr Young was provided with access to some body camera footage from police. An edited version of his summary of events disclosed in the footage, together with the time-stamps, is as follows:
02:02:Police knock on window; groaning sound is heard.
02:35:Police enter [accused’s] room. Deceased sitting on couch. Accused present.
05:22:Deceased states name is Alex.
06:30:Deceased asked if he can still breathe, to which he replies he can.
08:00:Police officer states deceased is struggling to breathe.
13:49:Deceased still talking.
15:14:Deceased heard groaning.
15:59:Police lean deceased forward over towel to clear blood from mouth.
17:31:Police office states deceased cannot talk as there is “blood in his throat”.
23:00:Deceased heard gurgling.
23:20:Police officer states deceased is not conscious, but is breathing.
25:45:Deceased does not appear to be responding.
26:10:Police drag deceased onto floor and lay him on his back.
26:30:CPR is commenced by police.
34:28:Paramedics enter room and continue CPR.
40:21:CPR is ceased.
Dr Young summarised his autopsy findings in this way:
(1)Blunt force injuries to the centre to left side of the face, including:
(a)fractures to the nasal bones; bruising to the nose;
(b)left periorbital haematoma;
(c)deep bruising over the left side of the jaw, lips and chin.
(2)Blood in the airways and within the lower lobes of the lungs.
(3)Cirrhosis, steatosis and chronic hepatitis in the liver.
(4)Pulmonary emphysema.
(5)Abrasion to chest and rib fractures consistent with CPR.
(6)Alcohol concentration 0.47 g/11 mL in blood and 0.57 g/100 mL in vitreous humour.
Dr Young described the cause of death as “aspiration of blood complicating blunt force injuries to the face, in the setting of alcohol intoxication and hepatic cirrhosis”.
He concluded:
This man’s death is ultimately due to respiratory arrest because of aspiration of blood from the facial injuries. The bleeding risk has been increased due to the presence of hepatic cirrhosis, and the respiratory compromise has been exacerbated by the alcohol intoxication.
Manslaughter charge added
On 20 October, Mr McNamara was charged additionally with manslaughter.
Committal for trial
On 28 October, Mr McNamara accepted committal to this Court for trial without a contested committal hearing.
Proposed cross-examination of witnesses
On 4 December, he was granted leave by the Judicial Registrar, pursuant to s 198B of the Criminal Procedure Act 2009 (Vic), to cross-examine some of the witnesses at a pre-trial hearing on 21 April 2021.
Trial not listed yet
The trial proper is not yet listed. Both parties agreed that the matter is unlikely to be reached until the end of 2021 or early in 2022.
The applicable tests for bail
Compelling reason
There is no dispute that, because manslaughter is a Schedule 2 offence, bail must be refused unless I am satisfied by Mr McNamara that a compelling reason exists that justifies the grant of bail.[2]
[2]See ss 4AA(3) and 4C, and item 2 of Schedule 2, of the Bail Act 1977 (Vic). The same test applies to one of the injury offences charged — namely, intentionally causing serious injury, contrary to s 16 of the Crimes Act 1958 (Vic) (see item 6 of Schedule 2 of the Bail Act).
In considering whether a compelling reason exists, I must take into account the surrounding circumstances.[3] Such circumstances are those that are relevant and include, but are not limited to, the following:[4]
[3]See s 4C(3) of the Bail Act 1977 (Vic).
[4]See ss 3 and 3AAA(1) of the Bail Act 1977 (Vic) (I have excluded references to charges for terrorism offences and related considerations).
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused (i) was on bail for another offence; or (ii) was subject to a summons to answer to a charge for another offence; or (iii) was at large awaiting trial for another offence; or (iv) was released under a parole order; or (v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)whether there is in force a family violence intervention order or the like made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused; and
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged.
Unacceptable risk
It is also accepted that, if I am satisfied of the existence of a compelling reason justifying bail, I still must refuse bail if I am satisfied by the Director of Public Prosecutions that there is an unacceptable risk that, if bailed, Mr McNamara would commit an offence, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender himself into custody in accordance with the conditions of bail.[5]
[5]See ss 4A(4), 4C(4) and (2) and 4E(1)(a)(ii)-(iv) and (b) and (2) of the Bail Act 1977 (Vic).
As indicated earlier, however, Mr Hayward, who appeared for the Director, made it clear that no unacceptable risk is alleged in this case. In my view, that was an appropriate concession to make. On the evidence before me, I am not satisfied that any such unacceptable risk exists in this case.
Accordingly, I shall confine my further consideration of this application to the question whether compelling reasons exist justifying a grant of bail.
The parties’ contentions on compelling reasons
Applicant
Ms Clark, who appeared for Mr McNamara, submitted that I should be satisfied that several matters, taken in combination, amounted to compelling reasons justifying bail. As the application developed, I understood counsel to rely on the following matters:
(a) available defences on the manslaughter charge, especially with respect to causation (and, in particular, whether the police officers’ alleged failure to treat Mr Dreher adequately or at all in the period following their arrival at the scene amounted to a break in the chain of causation of death);
(b) significant delay between charge and trial — estimated to be at sixteen to twenty months;
(c) the fact that this is Mr McNamara’s first time in custody, his Aboriginality (and the importance of s 3A of the Bail Act 1977 (Vic)) and the restrictions in prison resulting from the COVID-19 pandemic;
(d) an absence of any relevant criminal history;
(e) the availability of fresh accommodation with a long-time friend who will not tolerate alcohol consumption in her home;
(f) the availability of culturally appropriate supports through the Victorian Aboriginal Health Service, including assessment for medical, psychological treatment, and drug and alcohol support;
(g) the lack of opposition to bail by Mr Dreher’s sister;
(h) the absence of any unacceptable risks of the kind spelt out in the Bail Act; and
(i) the utility in allowing Mr McNamara the opportunity to reform whilst in the community, which in turn would be relevant if he were convicted of manslaughter or one of the lesser offences charged.
The Director
Mr Hayward accepted that all of the foregoing matters were relevant to an assessment of whether a compelling reason exists to justify a grant of bail. His submission, however, was effectively twofold.
First, he submitted that, whatever may be said of the police conduct at the scene, it is strongly arguable that Mr McNamara’s assault upon Mr Dreher still amounts to a substantial and operative cause of death.
Secondly, he submitted that, when taken together, the matters relied on did not reach the threshold of compelling reasons in any event.
Discussion
Introduction
As indicated in the overview to these reasons, I am satisfied that, despite the gravity of the offending and the likely sentence to be imposed if Mr McNamara were to be convicted, the matters relied on by Ms Clark, in combination, nevertheless amount to compelling reasons justifying a grant of bail.
Gravity of alleged offending and likely sentence if convicted
There was no dispute that manslaughter is in general a serious offence, although its gravity can vary enormously. It was accepted by Ms Clark that, if convicted, the sentence imposed on Mr McNamara would be measured in years and that, despite the delay until trial, the non-parole period would exceed any such delay by a substantial margin.
Strength of prosecution case; defences available
Applicant’s submission
Ms Clark indicated that it is intended to take this matter to trial. The principal defence to be pursued concerns whether the police officers’ alleged failure to treat Mr Dreher adequately or at all in the period following their arrival at the scene amounted to a break in the chain of causation of death. It appears that the summary of the body camera footage provided by Dr Young makes it clear that no meaningful treatment was administered by the police to Mr Dreher for about 24 minutes after their arrival. It was only when he was noticed to be unconscious and not breathing that CPR was commenced.
In Ms Clark’s submission, in circumstances where the pathologist has opined that Mr Dreher’s death “is ultimately due to respiratory arrest because of aspiration of blood from the facial injuries”, and it was obvious that he was struggling to breathe, there was a duty on the police to act promptly to assist him to breathe and thereby to save his life. While Mr McNamara’s actions in assaulting him were the cause of the bleeding, the police inaction arguably was so extreme as to break the chain of causation such that it could not be said that the original assault was a substantial and operative cause of death.
The Director’s submission
Mr Hayward submitted that, when regard is had to the usual directions of law given to juries on causation, it is difficult to see how the alleged inaction of the police could amount to a novus actus interveniens or otherwise deny a finding that the assault was a substantial and operative cause of death.
Conclusions
While there is a good deal of force in Mr Hayward’s submission, it must be remembered that causation is essentially a question of fact for a jury.
And, as it happens, I can see how a jury might take a sympathetic view of Mr McNamara’s case, not just on causation, but in general.[6] Here was a man who had asked his guest to leave his room when he became belligerent. He continued to be abusive and refused to leave. To have punched him to the face may have been unlawful, but might not be regarded by a jury as the most extreme of reactions. Similarly, when Mr Dreher then spat blood in Mr McNamara’s face, a jury might not think that a second blow to the face was all that extreme. Then, in a panic, it seems that Mr McNamara delayed in calling triple-zero, but still did so and also sought to tend to Mr Dreher in the meantime. When the police came, Mr McNamara was taken from the room, so he could assist no more. Yet, for about 24 minutes, as Mr Dreher appears to have been deteriorating further, police appeared to do nothing, or so the argument goes, and yet, if they did, Mr Dreher might be alive. Further still, as the Ambulance notes revealed by Dr Young show, there appears to have been a troubling delay in dispatching the ambulance and, even then, it took additional time to change from “non-urgent” to “time critical”. A jury might regard Mr Dreher to be a little unlucky — and therefore consider it unfair to convict Mr McNamara of manslaughter.
[6]Other points were discussed on the application, including unlawfulness and dangerousness, the potential application of s 4A of the Crimes Act 1958 (Vic) and the potential application of s 9C of the Sentencing Act 1991 (Vic). But it is unnecessary to say any more about those matters for the purposes of this judgment.
Of course, an equally persuasive argument might be put for the Director along the lines pressed, and properly so, by Mr Hayward on this application. It is simple: Mr McNamara’s blows remained a substantial and operative cause of Mr Dreher’s death, and they were unlawful and dangerous.
In the end, however, since I can see a rather good argument to be put to a jury in favour of acquittal, I think that this is an important factor informing the question whether a compelling reason exists to justify bail. I do not say that the Director’s case is weak. Nor do I say it is strong. Instead, all I say is that I can see a viable defence that has a reasonable to good chance of success before a jury.
Delay, Aboriginality, first time in custody, pandemic restrictions
As indicated earlier, Mr Hayward accepted that all other matters urged by Ms Clark were capable of going to the question of compelling reasons, but submitted that, even in combination with the availability of an arguable defence, they did not reach that threshold.
Nevertheless, I think it is important to discuss, albeit briefly, some of those other matters. I accept the parties’ estimates of a delay of sixteen to twenty months between arrest and trial. I also accept Ms Clark’s submission to the effect that, when regard is had to Mr McNamara’s Aboriginality (and the injunction in s 3A), the restrictions under which Victorian prisoners generally have laboured until only very recently, the fact that the current prison restrictions are still onerous, and the uncertainty and feelings of vulnerability that even those lesser restrictions bring, then a delay of the order estimated in the present case (or even part thereof) becomes a much more onerous period in custody than ordinarily would be the case.
The unknown consideration, however, is just how long this current level of restrictive conditions will be in place. The outlook has become brighter in recent times. Community transmission of the virus in Victoria has been non-existent in the last eight weeks and the prospect of an effective and widely available vaccine at some time next year seems bright. Of course, there may be setbacks too. The recent outbreak in Sydney proves that. In those circumstances, I think the most I can say is that it appears likely that there will be at least this intermediate level of restrictions for a good while yet, which is likely to be a substantial proportion of the delay before trial in this case.
Other matters
The other matters relied on by Ms Clark are also important in the compelling reasons calculus. In particular, when considered in combination with the foregoing matters, the following matters give me a good deal of confidence that Mr McNamara will perform well on bail and that the matters urged do all add up to compelling reasons to grant bail. To repeat, those other matters are:
(a) an absence of any relevant criminal history;
(b) the availability of fresh accommodation with a long-time friend who will not tolerate alcohol consumption in her home;
(c) the availability of culturally appropriate supports through the Victorian Aboriginal Health Service, including assessment for medical, psychological treatment, and drug and alcohol support;
(d) the lack of opposition to bail by Mr Dreher’s sister;
(e) the absence of any unacceptable risks of the kind spelt out in the Bail Act; and
(f) the utility in allowing Mr McNamara the opportunity to reform whilst in the community, which in turn would be relevant if he were convicted of manslaughter or one of the lesser offences charged.
Conclusion on compelling reasons
For all of these reasons, I am satisfied that there are compelling reasons justifying a grant of bail to Mr McNamara.
I should add that I am also satisfied that this outcome is consistent with the guiding principles set out in s 1B of the Bail Act. In particular, granting bail is consistent with maximising community safety, because there is no unacceptable risk alleged against Mr McNamara. Further, it is hoped that his time on bail will assist in his rehabilitation so that, in the event that he were convicted of manslaughter or one of the lesser offences charged, his prospects of successfully reintegrating into the community after sentence would be improved. Further, granting bail gives proper recognition to the presumption of innocence and the right to liberty, and also promotes fairness, transparency and consistency in bail decision-making. This is because it ensures that Mr McNamara is not held in custody pending trial when there are so many reasons that, in combination, make bail a compelling outcome and where, in my view, applicants in similar positions would be granted bail.
Conclusion and order
Accordingly, for the foregoing reasons, I granted the application for bail.
I ordered that Mr McNamara be admitted to bail upon his own undertaking, with the following conditions:
(a) Mr McNamara is to reside at […], Victoria.
(b) Mr McNamara is not to leave the State of Victoria.
(c) Mr McNamara:
(i) is to attend an appointment in person or via telehealth at the Victorian Aboriginal Health Service (“VAHS”) and follow all lawful recommendations for treatment; and
(ii) through his solicitors, on a monthly basis, is to advise the informant or her nominee as to the rehabilitative programmes in which he is engaged via or with VAHS or any other service provider.
(d) Mr McNamara is not to contact any witnesses for the prosecution other than the informant or her nominee.
(e) Mr McNamara is to appear in this Court on 12 April 2021 at 10:30 a.m. and thereafter as directed by the Court.
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