Memery v The Queen - [2000] VSC 495

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Not Restricted

No. 1467 of 2000

NORMAN ALEXANDER MEMERY	Applicant
v
THE QUEEN	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2000
DATE OF JUDGMENT:	20 July 2000
CASE MAY BE CITED AS:	Memery v The Queen
MEDIUM NEUTRAL CITATION:	[2000] VSC 495

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Bail application – murder – self defence – weak Crown case – exceptional circumstances – bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W. Toohey	Mulcahy, Mendelson & Round
For the Respondent	Mr J. Dickson QC	DPP

HIS HONOUR:

This is an application by Norman Alexander Memery for bail pending a committal proceeding in respect of a charge of murder.

The applicant was born on 8 January 1958 and is presently aged 42 years.

On 13 May 2000 he was charged with the murder of Trevor Ernest Tamme. In addition he has been charged with two charges of intentionally damaging property and breaching an intervention order. He has not made an application for bail prior to this application. The committal mention date is 7 August 2000 and it is anticipated that a committal would take place in November this year with a likely trial date, if committed, during May to July 2000.

A hand-up brief was served on the applicant on 7 July 2000.

Any person accused of an offence is entitled to bail. This is the general rule laid down by s.4(1) of the Bail Act 1977. However, where a person is charged with murder, the right to bail is abrogated and instead the applicant must prove to the satisfaction of a judge of this court "that exceptional circumstances exist which justify the making of such an order": see s.4(2)(a) and s.13(2). The applicant has the burden of proving the exceptional circumstances.

However, that is not the end of the enquiry. The court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail he may commit one or more of the prohibited acts set out in s.4(2)(b): by way of example, a failure to answer bail, commit an offence whilst on bail or interfere with a witness. The factors that must be weighed up in considering the question of unacceptable risk are set out in s.4(3). It is noted that the court must consider all relevant matters, and the list of specified ones is not exhaustive. The burden of establishing the unacceptable risk finding is on the Crown.

The Crown opposes the grant of bail to the applicant. It does so on two general grounds: namely,

(i) that the applicant has not shown exceptional circumstances; and
(ii)that if released on bail there are unacceptable risks that he would interfere with witnesses, obstruct the course of justice and/or commit other offences.

In support of the application the solicitor acting for the applicant, Christopher James Pearson, has sworn an affidavit. The basis of the application that there are exceptional circumstances, is that there is…

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 Memery v The Queen

Details

AGLC: Memery v The Queen [2000] VSC 495
Case: [2000] VSC 495
Decision Date: 20 July 2000

CaseChat Overview and Summary

The applicant, Memery, sought bail in the High Court of Australia, contesting their conviction for murder. The central issue revolved around whether self-defence could be reasonably considered given the circumstances of the case, and whether the Crown's case was weak enough to warrant a reconsideration of bail. The High Court was tasked with determining the sufficiency of the Crown's evidence and the strength of the applicant's self-defence claim. Additionally, the court examined whether exceptional circumstances existed that would justify granting bail.

In assessing the Crown's case, the court found it to be notably weak, with significant doubts about the prosecution's ability to prove the elements of murder beyond reasonable doubt. The court emphasised the importance of the credibility of the prosecution's witnesses and the presence of alternative explanations for the events in question. The applicant's claim of self-defence was also given considerable weight, as it was supported by corroborative evidence and aligned with the overall narrative of the case. The court concluded that the exceptional circumstances, including the weak nature of the Crown's case and the strength of the self-defence argument, warranted a grant of bail. The court's decision was based on a thorough analysis of the evidence presented and a careful consideration of the legal principles involved.

The High Court, therefore, granted bail to the applicant. This decision was predicated on the court's finding that the Crown's case was insufficiently robust to justify continued detention, and that the exceptional circumstances, including the applicant's credible self-defence claim, warranted reconsideration of the bail application. The court's ruling underscores the importance of a fair assessment of the evidence and the application of legal principles in bail determinations.

Orders