O'Hea, Bail application - [2005] VSC 314

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1447 of 2005

IN THE MATTER OF THE BAIL ACT 1977

- and –

IN THE MATTER OF AN APPLICATION FOR BAIL BY FERGUS O’HEA

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2005
DATE OF JUDGMENT:	11 August 2005
CASE MAY BE CITED AS:	IMO Bail application by O’Hea
MEDIUM NEUTRAL CITATION:	[2005] VSC 314

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BAIL – unacceptable risk of interfering with witnesses.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Sharpley	Robert Davis
For the Defendant	Mr A McKenna	Acting Solicitor for Public Prosecutions for the State of Victoria

HIS HONOUR:

This is an application for bail pending a committal hearing. A previous application was refused by Kaye J on 27 April 2005.[1] The applicant, Fergus O’Hea, was charged on 29 January 2005 with two counts of intimidating a witness, two counts of harassing a witness and one count of conspiracy to pervert the course of justice. The offences of intimidating and harassing witnesses are alleged to have occurred on 28 January. Terrence Carrodus and Naomi Brooks are also charged with the same count of conspiracy.
[1] See IMO bail application O’Hea [2005] VSC 126.

The background to the matter is as follows. On 18 April 2004, Carrodus was arrested as a result of an alleged assault upon one Phillip Williams. As a result of that alleged assault, Williams sustained life-threatening injuries. Apparently he was so badly injured that he is unable to function independently and it has been necessary to have a guardianship order made in respect of him. Carrodus was remanded in custody. His trial is now listed for 19 September 2005 – but it seems that there is no certainty about this date.

Naomi Brooks is the de facto wife of Carrodus and the applicant is a very close friend of Carrodus. Three of the proposed witnesses in the trial of Carrodus are Peter Wyntjus, Julie Graham (a partner or former partner of Wyntjus) and Christopher Styles.

It is alleged that on 28 January 2005 Carrodus telephoned Brooks from prison and asked Brooks to get the applicant to approach key prosecution witnesses, including Wyntjus, in an endeavour to deter them from appearing at his trial or giving evidence against him. Brooks then passed on Carrodus’s request, whereupon the applicant visited Wyntjus’s residence where he spoke to Julie Graham. Wyntjus was not home at the time.

It is alleged that in that conversation the applicant made statements which led and were intended to lead Graham to fear that Wyntjus would come to harm if he attended court for Carrodus’s trial and that damage might also be caused to property at or in her residence. Later that evening, the applicant and Brooks went to a rodeo in Trafalgar. It is then alleged that Brooks saw Styles there and that Brooks identified Styles to the applicant, who made statements to Styles intended to induce him not to go…

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 O'Hea, Bail application

Details

AGLC: O'Hea, Bail application [2005] VSC 314
Case: [2005] VSC 314
Decision Date: 11 August 2005

CaseChat Overview and Summary

The matter before the court was an application for bail by the accused, O'Hea, who was facing charges related to serious criminal activity. The prosecution opposed the bail application on the grounds that the accused presented an unacceptable risk of interfering with witnesses if released on bail. The case was heard in the Supreme Court of Victoria.

The central legal issue the court had to address was whether the accused's release on bail would result in an unacceptable risk of interfering with witnesses, thus justifying the denial of bail. This involved examining the nature and severity of the charges, the accused's criminal history, and any evidence suggesting that the accused might interfere with witnesses.

The court found that the charges against O'Hea were of a serious nature, and there was a real possibility that he could interfere with witnesses if released on bail. This was based on the potential for the accused to exert influence over individuals involved in the case, given his criminal background and the circumstances surrounding the alleged offences. The court concluded that the risk of witness interference was indeed unacceptable, and therefore denied the application for bail. The court further emphasised that the gravity of the charges and the potential for witness intimidation were significant factors in reaching this decision.

Orders