R v Anderson

[2020] NSWDC 799

District Court

New South Wales

Medium Neutral Citation:	R v Anderson [2020] NSWDC 799
Hearing dates:	18-19 November 2020
Date of orders:	19 November 2020
Decision date:	19 November 2020
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Detention application successful. Bail revoked.
Catchwords:	CRIME – BAIL – Detention Application – Charge of Manslaughter – Accused granted bail on 7 May 2020 because of COVID-19 on very strict conditions – Bail breached by Accused leaving his home at Wardell and going to Ballina in the middle of the night and being in the vicinity of a material Crown witness who feared intimidation – Joint trial to be heard at Lismore on 15 March 2021 – Detention application successful – Bail revoked.
Category:	Principal judgment
Parties:	Crown – Regina Defendant - Justin Anderson
Representation:	Crown - C. Magni (DPP) Defendant – T. Randall (Randall Legal)
File Number(s):	2018/00200106
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is a detention application. The accused, Justin Anderson, has been charged with the manslaughter of Aaron Marks, an offence alleged to have occurred on 13 May 2018. The deceased died on 16 May 2018, whilst in hospital.

2. I am told that the accused was arrested for this crime on 28 June 2018. He was in custody until he was granted bail by this Court here at Lismore, on 7 May 2020. The bail conditions were varied on 17 July 2020, by Yehia SC DCJ. In essence, the accused is required to reside at his mother’s dwelling house, at a property now known as 5# Gubay Road, Wardell. That property is on lot [redacted], deposited plan [redacted] and is owned by the Jali Local Aboriginal Land Council. The essence of the requirement to reside there was an attempt, in essence, to place the accused in permanent home detention, with provisions for him to report to the police at Wardell every Monday, Wednesday and Friday and for him to leave his place of abode, only when accompanied by his father or mother, in order to attend any, for example, a medical appointment.

3. The evidence before me establishes, on the balance of probabilities, that the bail condition was breached. Exhibit C is an audio recording of two 000 calls, made by Neville Ferguson, on 13 November 2020. The first call was made at 12:37am and the second call was made at 1:31am. Mr Neville Ferguson is a material witness.

4. The Crown case summary says this of his involvement in the manslaughter case:

“Neville Ferguson provided a statement, dated 1 October 2019, wherein he stated that he recalls the accused and Ricky (Ferguson) going out in the white Commodore, just on dark one evening, after a phone call from Brad Presbury [co-accused]. He stated that he spoke to them later when they returned about 10.30 or 11pm that night and the accused was crying and said ‘I hit old mate once. I’m not sure if he’s dead’. He went on to state, at [9] ‘Over the following weeks I saw Justin a bit. He was running around hiding everywhere and very worried about what had happened. He thought the police were going to get him. I think it was about the week before he was arrested. I can’t remember the exact conversation but Justin told me that the guy he hit had tried to buy ice from Brad at the pub, but he thought that he was a copper, so Brad ripped him. Then the guy took Brad’s friend’s licence. When they went to get the licence back, Justin thought the guy was going to hit Brad, so Justin hit him’. The witness details his contact with the co-accused at [10].”

Mr Neville Ferguson is clearly a material witness and clearly someone who is known to the accused.

5. The import of Mr Ferguson’s first 000 call is that he had seen Justin Anderson in the vicinity of his house, at Swift Street, Ballina, in company with two other males. The witness alleged that the accused and his companions “tried to mob him”. I infer that by that he meant that they sought to intimidate him. In answer to specific questions, Mr Ferguson said that there had been no physical confrontation, that is personal, any assault or battery or the like. Ferguson saw the accused in his vicinity, on the corner of Kerr and Swift Street or near that intersection. Just south of that intersection, as one travels down Kerr Street, in a southerly direction, is a large playing field or oval. The witness said that he was a witness in the current proceedings and he had fears for his safety. One of the conditions of bail was a requirement not to go near or contact or try to go near or contact the co-accused, that is Presbury or any Crown witness.

6. The first call made to 000 was made according to CAD records at 12:37am. The second 000 call was made according to the same records at 1:31am. Police dispatched a patrol car to patrol the area of Mr Ferguson’s home at 12:20:55am. They appear to have stopped their patrolling at 12:57:26am.

7. Mr Ferguson’s second call was made because he asked if police could do another external check, to make sure that the accused was not anywhere near his home. Following upon that at 1.40am, Mr Ferguson was briefly interviewed by Leading Senior Constable Alexander, where he repeated his assertion that he had seen Justin Anderson, in the company of two other males, near his home, near the corner of Kerr Street and Swift Street, Ballina and that the accused was wearing black, long pants and red running shoes. He said that nothing was said to him but he clearly was apprehensive about their presence near his residence. The interaction between Leading Senior Constable Alexander and Mr Ferguson was captured on the body worn camera of Leading Senior Constable Alexander. That has been played to me and is part of exhibit C.

8. The accused’s telephone records have been put before me. Where the accused resides, with his mother, near Wardell, has nearby a mobile phone tower, named Buckombil. According to exhibit A, that tower services the Wardell township and its surrounds. Most of the mobile telephone calls made by the accused were taken up by the Buckombil mobile telephone tower. The records of the accused’s service, commencing on 3 November 2020 and extending to 16 November 2020, are part of exhibit A.

9. On the early morning of 13 November 2020, there is a record that at 12:09am, the accused’s mobile telephone service was connected to the telephone tower, on the Ramada Hotel in Ballina. Calls made later, at 12:09am and a call made at 12:10am and a call made at 12:18am, were taken by a mobile telephone tower in the Ballina Central Business District. Further calls were made from the accused’s service at 1:02am and 1:14am and were picked up by the Ramada Inn tower at Ballina. The next calls made were both to the Ballina Police Station. Each was made at 1:57am and each was taken up by the Buckombil telephone tower. It is likely that at 1:57am, the accused’s mobile telephone service was back at the premises at 5* Gubay Road, Wardell.

10. That evidence suggests strongly that in the early hours of 13 November 2020, the accused was in Ballina. It has been submitted that anyone else could have used the accused’s telephone number but if the accused’s telephone was bailed to anybody other than the accused, such person could have given evidence of the fact. No such evidence has been called.

11. Furthermore, the police did attend upon Gubay Road, Wardell and the accused could not be found by the police to be there. COPS event E147751901, a copy of which is part of exhibit A contains this matter:

“Police attended 5# Gubay Road, Wardell and spoke to the occupier, Roberts. Roberts allowed police entry, however, Anderson was not located.

Police checked the remaining three houses, the house directly across the road and the one next door to 5*, no persons could be raised. Police spoke to an occupant of the fourth house, who stated Anderson was not there.”

12. Exhibit C contains body worn camera images, exposed on Leading Senior Constable Alexander’s body worn camera, at 1:14, in which one can observe the police entering Mr Roberts’ house and his searching the rooms and no one being found there. The description, which I have just quoted, contains this matter:

“At 1.58am, Anderson contacted Ballina Police Station, on [his] mobile … he stated when police attended he was out the back in the toilet of 5# Gubay Road.”

As I said, his phone calls made at 1:57am, were received by the police station, at Ballina and were intercepted by the Buckombil mobile telephone tower. That strongly suggests that when the accused got home, he was told by Mr Robert’s, his mother’s partner, that the police were looking for him and that caused the accused to telephone the police to, in some way, provide an alibi as to why he could not be found, when the police attended 5# Gubay Road, Wardell.

13. I am persuaded, on the balance of probabilities, that the offender did breach his bail conditions and that led a material Crown witness, Mr Neville Ferguson, to fear intimidation. Since, on the evidence before me, there had been interaction in the past between Neville Ferguson and the accused, the accused must have known where Mr Ferguson lived, being in that vicinity was likely to frighten him and put him in fear of being suborned.

14. What has been proven, on the balance of probabilities, indicates that there is a concern that the accused, if released from custody, will interfere with witnesses involved in the trial, which is due to commence on 15 March 2021 here at Lismore. That is a joint trial with a Bradley Presbury. I am assured that a joint trial can be conducted, even if the present COVID-19 restrictions continue to apply in March next year.

15. As the trial date approaches, it is likely that there will be more anxiety on the part of all concerned in the trial, both the accused and relevant Crown witnesses. There is a concern about the security of the witnesses. I had thought of trying to strengthen the current bail requirements but nothing comes to my mind, which would alleviate the problem, which the evidence before me establishes rose in the early hours of 13 November this year.

16. Accordingly, the detention application is successful and the accused’s bail is revoked. He will remain in custody until further order. A copy of exhibit 4 and of exhibit 5 are to be given to the Corrective Services officers, who currently accompany the accused and are to be given by them to the gaol to which the offender is to be taken from this courthouse.

17. I direct the registrar to endorse, on the warrant, the fact that there are fears held for the personal safety and mental health of the accused.

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Decision last updated: 11 January 2021