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

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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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 to court to testify against Carrodus.

1. On 29 January, both Brooks and the applicant were arrested.  On 31 January, an application by the applicant for bail was refused by the Magistrates’ Court at Moe.  On 12 April, at the Magistrates’ Court at Moe, another application by him for bail was refused. 

1. As I have said, on 27 April 2005, Kaye J refused a further application for bail by the applicant. In his reasons, Kaye J, whilst recognising that s.4(1) of the Bail Act 1977 prima facie entitled the applicant to bail, concluded that the Court was required pursuant to s.4(2)(d) of the Bail Act to refuse bail because the Court was satisfied that there was an unacceptable risk that the applicant, if released on bail, would interfere with witnesses or otherwise obstruct the course of justice.

1. Kaye J noted that the offences with which the applicant had been charged were, if proven, serious offences showing a blatant disregard by the applicant for the courts and the justice system.[2]  At the time when his Honour handed down his reasons the hand-up brief for the committal proceeding was not available.  Upon the present application it is available and, in my opinion, having read the same in full and, in particular, having read the transcripts of relevant telephone conversations and the statements of witnesses (in particular Graham and Styles), the case against the applicant is a strong one.  However I note that the applicant has made no admissions of guilt and denies having committed these offences.  His counsel sought to put a favourable interpretation upon some of the material to be found in the brief, but it is sufficient to say that less favourable interpretations are definitely open.  It is inappropriate to say more.

   [2][2005] VSC 126 at [17].

1. Mr Sharpley, who appeared as counsel for the applicant, said that there were a number of new facts and circumstances which the Court should take into account.  He referred to the offer of accommodation for the applicant with his sister and brother-in-law in a residence about 4km from Moe, but on the other hand it would seem that the applicant cannot avoid regular visits to Moe where the witnesses reside.  Mr Sharpley referred to the availability of counselling for the applicant’s alcohol problem, a problem which he said was the source of much of the applicant’s offending conduct in the past.  Mr Sharpley referred to the very poor health of the applicant’s mother, a matter which was relied upon in his earlier application for bail.  Mr Sharpley added that the applicant’s de facto wife was pregnant and the applicant’s detention prevented him from providing her with support.

1. Mr Sharpley also referred to delay, a matter about which Kaye J had expressed considerable concern when refusing bail.  In that regard, the applicant’s committal proceeding is now listed for 12 September 2005.

1. I have given consideration to all of the above circumstances including the various matters set out in s.4(3) of the Bail Act.  The alleged offences are serious.  The previous history of the applicant is not an encouraging one despite the support from his family which continues to be available at this time.  The applicant was on parole at the time of the alleged offences and also has a history of failing to meet previous bail orders.  I have already referred to the strength of the case against the applicant.

1. Kaye J considered that if the applicant were released on bail there was an unacceptable risk that the applicant would commit an offence, would endanger the safety or welfare of members of the public and would interfere with witnesses or otherwise obstruct the course of justice.  Kaye J referred to the particular concern of the Crown as being (and it still is) that the applicant, if released, would threaten and intimidate witnesses in the matter in which Carrodus has been charged with the assault of Williams, and that he might also threaten and intimidate the same persons who are also witnesses in relation to the charges which have been brought against the applicant himself.  Kaye J also said that he was not confident that any resolve of the applicant to abide by conditions of bail and not to interfere with any witnesses would “hold and endure”.  I do not think that these matters of concern have in any way been dissipated.

1. In all the circumstances I am satisfied that there remains an unacceptable risk that the applicant would interfere with witnesses or otherwise obstruct the course of justice both in relation to the trial of Carrodus and in relation to the offences alleged against him.  I am not confident that any conditions of bail would adequately protect the witnesses to whom I have referred from the applicant, notwithstanding the new residential arrangements proposed for the applicant.  These crucial considerations have not really changed since his previous application for bail.

1. Accordingly the application is refused.

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