R v Beljajev
[2006] VSC 259
•17 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
BAIL APPLICATION
No. 01590 of 2005
IN THE MATTER of the Bail Act 1997
And
IN THE MATTER OF an Application for Bail of BORIS BELJAJEV
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 17 February 2006 | |
CASE MAY BE CITED AS: | In the matter of Boris Beljajev | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 259 | |
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Criminal Law – bail – application for bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J McArdle (21/12/05) | Solicitor for Public Prosecutions |
| For the Accused | Mr R Richter QC with Mr T Kassimatas | T Magazis |
HER HONOUR:
The applicant is charged with one count of murder. The murder is alleged to have occurred on 15 June 2005. The applicant was not charged until 2 November 2005.
The applicant was spoken to in the evening of the day of the murder by the police, as the applicant and the deceased had previously been allegedly involved in business together. At that time the applicant stated what he had been doing that morning and what he had been wearing, and further, that he had not seen or spoken to the deceased for some months prior. The applicant was not at that stage a suspect.
On the morning of 25 June the police arrested the applicant and executed a search warrant. The applicant was released from custody that day without any charges being laid. The applicant's passport had been seized, and that was returned to him when he was released.
The police had attended again at the applicant's home on 21 October 2005, but the applicant was overseas at the time. Upon being informed of the police attendance the applicant apparently contacted the informant through his solicitors to indicate that he was overseas on business, that he would return shortly and would make himself available for any further interview if the police so required. The applicant subsequently returned to Australia and was arrested on 2 November 2005 and charged.
The deceased, Alex Ristic, was killed on 15 June 2005, as a result of a stab wound inflicted whilst he was in the street in Sycamore Grove, Balaclava.
The deceased had numerous prior convictions relating to dishonesty and drug matters. The accused and the deceased man had an involvement previously when both were charged as co-offenders in relation to drug importation charges and related matters in about February of 1989.
The deceased ultimately made a statement and agreed to give evidence for the Crown against the applicant in respect of those matters. The deceased subsequently refused to give evidence in accordance with the statement that he had made, which statement implicated the applicant in drug offences.
The circumstances of the murder are that the deceased and the accused man were allegedly involved in some dealings relating to stolen property, in which the allegations are that the deceased passed onto the accused man some stolen jewellery in May of 2005.
There is evidence, the Crown say, of considerable phone contact between the accused and the deceased over the intervening time. Such contact was utilizing phones obtained by the accused man in fictitious names.
Both the deceased and the applicant flew to Perth at different times, but at times that overlapped, and whilst there they had contact, or at least attempted contact, the Crown say, on a number of occasions, all of this occurred in the weeks leading up to the murder.
The deceased man flew back to Melbourne from Perth on 14 June 2005, and on that evening informed his wife that the applicant wanted $5000 from him. He also told her that he was going to meet the accused man the next day and that he was not going to give him the money he had requested.
The movements of both the applicant and the deceased on the day are important, but it is not necessary for me to document most of those movements in this particular application. It is sufficient to state that various witnesses and electronic devices, such as mobile phone records and video records, place the applicant and the deceased man at various locations during the morning of 15 June.
The more important details are, at 12.10 p.m. a man similar to the description of the applicant, and wearing a trench coat, but not identified by the witness in any formal identification procedure, was seen in the vicinity of Grosvenor Street, Balaclava. That person was with another male and produced a knife at that time after a verbal altercation involving a witness.
At 12.24 p.m. the deceased rang a mobile phone linked to the applicant and the call lasted one minute and 12 seconds. At that stage the deceased had collected his mother and she was with him in his motor vehicle at the time of the call. After the call the deceased told her that he had to meet a man called Boris and a man called Kissa. The deceased dropped his mother off shortly thereafter and arranged to pick her up again in a short time.
The telephone call charge records indicate that both the applicant and the deceased were in the Balaclava area at the time of that call.
There was no use of the phone by the deceased thereafter and he did not come back to pick up his mother.
At about 12.40 p.m. there was a verbal altercation between the deceased and a man that the Crown allege was the applicant. That person pulled a knife and stabbed the deceased once in the stomach. The descriptions
given are consistent with the general appearance of the accused, and how the Crown allege he was dressed that day. But it must be noted that despite attempts by the police to do so there was no formal identification by any person, of the accused, as the person who was arguing with the deceased in Sycamore Grove.
The deceased man, although conscious, did not identify the person who stabbed him. Thus, one can say quite clearly, that the case against the applicant is a circumstantial case. There is a lot more detail in respect of the matters that I have outlined, but that material is, as I have said, the crux of the case. The other matters that the Crown rely upon are two so-called false denials to police officers on the night of the murder. At 11.40 that same evening, that is the evening of the killing, as outlined earlier, the police attended at the applicant's home in Grosvenor Street, Balaclava. Asked about his movements and his clothing; together with his contact with the deceased in recent times.
The applicant allegedly denied that he had spoken to Ristic either by phone or in person in months. He also described to the police what he was wearing on that day, and produced that clothing. The police subsequently obtained a video tape of what the applicant was wearing that day when he attended at Cabrini Hospital. That attendance was approximately two hours before the killing. In that video he was shown to be wearing a light coloured trench coat and different pants to what he told and produced to the police. The Crown rely upon those statements as being lies, evidence of consciousness of guilt. The defence have submitted that this is a weak circumstantial case at best, and that the lies, if they be established as lies, are capable of many explanations and could not be used by a jury as evidence of consciousness of guilt of this crime. That, ultimately, will be a matter, firstly for the trial judge and, secondly, for the jury to determine, and not matters that are capable of being determined on the material before me.
It is my view, having read the material contained in Exhibit MA2, exhibited to the affidavit of Matthew Francis Anderson sworn 9 December 2004, which exhibit are the statements of the various witnesses, that this case is neither as strong as the Crown stated nor as weak as the defence submit. It is a circumstantial case and it will depend upon the credibility and accuracy of a number of the witnesses. This is a case that, in my view, will be assisted by the evidence produced during a committal proceeding. It will enable all parties to make arguments ultimately, based on the tested evidence of the various witnesses. I do not accept the submission put forward by the defence that this is an inherently weak case which has no real prospect of conviction.
Whilst that was one of the grounds that the defence relied upon, it was only one, and they submit that the combination of circumstances of Mr Beljajev's extraordinary legal history; of lengthy trials, grants of bail, revoking of bailing, and subsequent acquittals is another relevant factor in the determination of this application. I agree that the applicant has had possibly the most complicated history of bail of anyone charged with criminal matters in Victorian's history. The saga of the Beljajev trials has reached almost the level of folk lore amongst those who practice in the criminal law. The problem in relation to the submissions made by Mr Richter, one of Her Majesty's counsel, in respect of those matters is that one cannot say he is owed bail because he was kept in custody for a lengthy period of time on matters of which he ultimately acquitted. The previous history of the applicant, as it has been extensively outlined before me in submissions and documentary form, relates to all aspects; the refusal to grant bail initially, the granting of bail, the revocation of bail, the regranting of bail, over a ten year period. All of those bail matters related to a series of drug matters of which the applicant was ultimately acquitted.
That history demonstrates that the applicant is a person who had complied in the past with stringent bail conditions over lengthy periods of time and therefore may not be an unacceptable risk in respect of concerns relating to his answering of bail. But in this case, of course, the applicant must demonstrate that there are exceptional circumstances, before bail could be granted. The issue of whether he would attend upon his bail is something you would consider after the establishment of exceptional circumstances.
The fact that someone has been detained in custody on previous charges, of which he is acquitted, does not demonstrate exceptional circumstances. There is no doubt that persons who are remanded in custody for substantial periods of time, and ultimately acquitted of the matters charged, may have a sense of grievance as to the fairness of their detention. There is no system in place for compensation for the time lost, relationships damaged or income foregone. As someone who has practiced in the criminal law previously I am aware that clients often feel very aggrieved at what has occurred, and wonder why the last time they have been in custody cannot be used as a credit in respect of a crime that may happen in the future. Whilst I can comprehend why a person may feel aggrieved about the time spent in custody on matters on which they are ultimately acquitted, that sense of grievance can and does have no application to the issue of bail.
It is my view that the only relevance of the applicant's legal history over that time is a demonstration of his ability to adhere to the conditions of bail. That by itself would not be an exceptional circumstance. The issue is whether that, together with the other factors to which I shall refer, combine to demonstrate exceptional circumstances.
Another factor that the applicant relies upon is the situation of his health. In the affidavit of Theo Magazis, sworn 1 December 2005, at paragraph 13, there is reference to his health issues in the following terms: "The applicant is of relatively poor health, suffering from a number of medical conditions. The applicant has been suffering from depression and anxiety and has been prescribed Zoloft by Dr Escal Goldberg. He has also been prescribed Lipitor for raised cholesterol and has had a history of migrainous headaches. Furthermore, the applicant has been referred to Dr Peter Ryan for tennis elbow, for which he was receiving steroid treatment. The applicant has also been suffering from chronic prostates, and although he was prescribed a course of antibiotics, the pain and discomfort continued. The above conditions make the applicant's time in custody more onerous and difficult than would otherwise be the case. The applicant has been attending Dr Goldberg approximately every six to eight weeks and was last seen on 12 October 2005."
The applicant tendered an undated report from Dr Goldberg, which is Exhibit 2 on the application, and that generally supported the contents of the affidavit. From the reading of that report it would appear quite clearly that stress and anxiety and depression are the major causes of his problem, including those of a physical nature, with the exception of the tennis elbow. There is no indication of when the depression, anxiety or stress commenced. The applicant was able to continue to travel overseas in pursuit of his work and it appeared up until the time of his arrest he continued most aspects of his life in a normal manner.
Whilst accepting that he has the problems that are referred to in the report, none of them are problems that are not capable of being treated properly and appropriately whilst in custody. None of the illnesses are in any way life threatening and may be not much more than the product of aging that occurs to all of us in our society.
The issues relating to stress, anxiety and depression are not surprising. It would be most unusual for someone who is a suspect for murder and then arrested and charged with the commission of that murder not to be stressed or anxious. Whilst I do not know how long he has been suffering from those conditions, it means that I am unable to assess whether it is a reactionary condition or an ongoing condition related to other factors in his life.
The applicant is also concerned, and understandably so, about the loss of contact with his child and his partner and the effects upon his business. His business is a difficult issue as it seems quite amorphous. I have no tax returns, no details as to the income. Although Mr Richter explained it as the buying and selling of gems and jewellery overseas, the financial records of the applicant do not elucidate the matter at all. The financial records appear to indicate that the applicant is in significant debt and that he spent significant amounts of money on gambling.
Mr Richter conceded that whilst the records demonstrate the debt, that is because whilst in custody he has been unable to clear the debts. It was said that his business was cyclical, with the applicant using his credit to the maximum for buying purposes and then clearing all the debt when he sold the goods, and the cycle starting over again. I have some real doubt as to the business that is being operated by the applicant and would need significantly more information provided before it would form part of the totality of exceptional circumstances.
I accept that he will be deprived of contact with his wife and son but once again there is nothing exceptional about those matters, as remand has that effect upon all of those who are remanded.
At this stage when I combine all of the circumstances referred to earlier, I am unconvinced that the applicant has made out exceptional circumstances but I do agree that if he had, he had demonstrated that a failure to appear would be most unlikely.
I have not addressed the other aspect upon which the Crown relied, being a fear that he may interfere with witnesses, as it was in my view unnecessary to do so at this stage.
In relation to the aspect of potential delay, at this stage it really is too early to ascertain with any accuracy as a trial could be heard within 12 to 18 months, depending upon the date of committal hearing. Equally, the matter may appear in an entirely different light as to the strength, or lack thereof, post-committal, and that may be a better time for a court to make an assessment of the bail issue. At this stage I am unable to say that the trial will be so delayed as to make the time delay a significant issue sufficient to create exceptional circumstances.
Accordingly, in my view this is a matter that would be better dealt with post-committal in terms of an assessment of the application for bail. At this time I refuse the application.
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