Mrnjaus, Panic & Stevanja v The Queen

[2009] VSC 147

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1426 of 2009
No. 1437 of 2009
No. 1438 of 2009

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by

MLADEN MRNJAUS,
TOMISLAV PANIC and
TOMISLAV STEVANJA

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2009
DATE OF RULING:	3 April 2009
CASE MAY BE CITED AS:	Mrnjaus & Ors v R
MEDIUM NEUTRAL CITATION:	[2009] VSC 147

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CRIMINAL LAW – Application for bail –Applicants charged with murder and attempted murder – The Applicants’ limited role in the incident, lack of or limited prior convictions, youth, family support, and delay amount to exceptional circumstances – All Applicants granted bail.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Mrnjaus	Mr M.E.Dean S.C.	Brendan Wilkinson Barrister & Solicitor
For the Applicant Panic	Mr W. Toohey	Stephen Andrianakis & Associates
For the Applicant Stevanja	Mr J. Hannebery	Hoban Lawyers
For the Respondent	Mr D. Brown	Office of Public Prosecutions

HIS HONOUR:

1. I have decided that it is appropriate to grant bail to each of the applicants.  These are my reasons.

1. Last week I granted bail to Nikola Andreevski and Jovan Orgrizovic.  They are co-accused of the present applicants.  Mladen Mrnjaus, date of birth, 27 November 1988, Tomislav Panic, date of birth, 24 December 1990 and Tomislav Stevanja, date of birth, 27 August 1990, make application for bail.

1. They are each charged with affray, murder and attempted murder.  They were arrested and charged with affray on 10 February 2008.  They were released on bail with conditions.  On 12 March 2009 they were arrested and charged with murder and attempted murder. Consequently, their bail was revoked.

1. The murder and attempted murder charges arose directly out of the affray.  Somewhat unusually, one of the accused, Nathan Smith, has admitted stabbing the victims of both the murder and attempted murder.  It is not alleged that any of the applicants struck either of the victims.  There is an allegation that the applicant, Mrnjaus, attacked the deceased's vehicle but in his interview he told police that he did not come within ten metres of the deceased.

1. All of the applicants were present at the scene and all were aware of the presence of various weapons, including knives and machetes.  They were all armed themselves.  They all knew the purpose of the “expedition” was to engage in a fight with the deceased and others.

1. I observed in the earlier application that there is a basis for alleging murder either as acting in concert, aiding and abetting or extended common purpose.  However, regard will need to be had to what the High Court said in R v Markby[1] and what our Court of Appeal said in R v Lamb & Ors[2] and the analysis of the evidence therein.

   [1] (1978) 140 CLR 108.

   [2] [2008] VSCA 109.

1. I repeat that I accept that the laying of murder charges was appropriate in this case.  The facts of the case, stated briefly, are that a group of young men armed themselves and went off to have a fight with another group at Diggers Rest.  The first group, of which the applicants were part, charged at the other group and fighting ensued in which the deceased was killed and Mr Stephen Thorneycroft was seriously injured.  He is the victim of the attempted murder.

1. On these applications, Mrnjaus' mother, Zdenka Mrnjaus, and Panic's sister, Mariana Cutlesa, gave evidence.  All three applicants had a number of family members present in court to give them support.  That support is impressive.  These young men appear to be clean-cut young men and their involvement in this enterprise seems to be somewhat out of character.

1. Neither of the applicants, Panic nor Stevanja, have any prior convictions and they are each 18 years of age.  They each have employment available to them; Mr Panic to continue his apprenticeship and Mr Stevanja to resume work in the family business. 

1. The applicant, Mrnjaus, has been in trouble twice over the use of flares and once for the theft of them.  These were offences committed in a group and it is a pity he has not learnt a lesson from then.  He was on an adjourned undertaking at the time of these offences.  It was not submitted that he was an unacceptable risk of re-offending, but it has been one of the matters that I have taken into account in deciding whether there are exceptional circumstances.  He has good prospects of employment. 

1. In general, each of the applicants relied upon the following propositions in support of their application for bail.  That the applicants, except for Mr Mrnjaus, have no prior convictions, they all come from steady and reliable backgrounds and they are relatively young.  The applicant, Mrnjaus, is 20 years of age and Panic and Stevanja are 18 years of age.

1. They will all be held in adult custody.  There would be a substantial delay before trial and the applicants submit that the cases against them are relatively weak.

1. I repeat a remark I made last week, and it is this.  The amount of work done by Mr Rooney and Mr Chapman to facilitate these applications is further noted by the court.  I have already dealt with the question of how I regard the strength of the case.

1. I observed in argument that it is unusual to find young men involved in this sort of activity who have no prior convictions or very limited prior convictions, and I regard that feature of the case as very important.

1. Although of some significance in the way that I have expressed, I do not regard Mr Mrnjaus’ prior offending sufficient to distinguish him from either of the other applicants.

1. I repeat what I said on the earlier application about the question of delay, and I quote:

“The question of delay must be considered.  It seems to me that at the very earliest a trial would proceed is July 2010.  That is 15 or 16 months away.  I think that such an expectation, with a number of accused, including one in the Children's Court, is unrealistic.  And I suspect that 18 months to 24 months before trial is more realistic.  In these circumstances I am faced with the probability of young first offenders spending two years or more in adult prison before trial.  That would, as a matter of justice be undesirable and undesirable in community terms.  I have concluded that in all the circumstances of the case, including the limited role played by each of these applicants, their age, their lack of prior convictions and delay amount to exceptional circumstances.”

1. That paragraph has to be read when dealing with the applicant, Mrnjaus, to take into account his limited prior convictions.

1. I am not convinced that there will be any unacceptable risk of answering bail, and such risk as does exist can be satisfactorily ameliorated by the imposition of suitable conditions.

1. I regard it as necessary that a surety be provided in cases as serious as these, and in each case I fix a surety of $30,000.