R v Benporath
[2007] VSC 375
•26 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
BAIL APPLICATION
No. 1407 of 2007
IN THE MATTER of the Bail Act 1997
And
IN THE MATTER OF an Application for Bail of SHAUN BENPORATH
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2007 | |
DATE OF JUDGMENT: | 26 September 2007 | |
CASE MAY BE CITED AS: | R v Benporath | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 375 | |
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CRIMINAL LAW - BAIL – Exceptional Circumstances not shown – Unacceptable Risk of Interference with Witnesses – Unacceptable Risk of Further Offending – Circumstantial Crown Case – Delay not Inordinate - Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Langslow | James Dowsley & Associates |
| For the Respondent | Mr P Atkinson | Office of Public Prosecutions |
HER HONOUR:
Shaun Benporath, together with Jamie Sumner, is charged with the murder of Raymond Allen. The trial is listed to commence on 28 March 2008. Mr Benporath applies for bail and must show exceptional circumstances.
Mr Langslow, on behalf of Mr Benporath, submitted that a combination of circumstances here amount compendiously to exceptional circumstances. They are:
1.Mr Benporath's age, being 25;
2.The limited nature of his prior convictions, mostly driving offences and other offences which may be explained by his relative youth and foolishness of youth;
3.The Crown case against Mr Benporath is extremely problematic and relies substantially upon the evidence of Chi Lien whose credit will be challenged;
4.The difficulties in obtaining access to Mr Benporath whilst he is in custody;
5.The case requires considerable preparation because the telephone material is difficult to follow; and
6. Through no fault of the applicant the Court cannot accommodate the trial until 28 March 2008.
The Crown opposes the application contending that exceptional circumstances have not been shown and that there is an unacceptable risk that the applicant will commit further offences, fail to answer bail, and in particular interfere with the witness Chi Lien.
The applicant is 25. He has been before the court since 1999. His prior convictions include, inter alia, failing to answer bail, making a threat to kill, criminal damage, unlawful assault, recklessly causing injury, intentionally damaging property, three counts of theft, two counts of driving whilst disqualified and driving whilst licence suspended and convictions relating to possession and use of cannabis. It is also apparent that at least on two occasions he has committed offences whilst on bail and that he has breached two community‑based orders. This history shows that he has continued to re-offend and has little inclination to abide by the imposition of lawful authority.
The Crown contends that the case against Mr Benporath is a strong circumstantial case based upon the doctrine of extended common purpose. The Crown relies upon: the motive of the applicant's co‑accused to go in search of Mr Allen; the flurry of telephone calls between Sumner and Benporath; the travelling to Shepparton by Sumner and Benporath's statement that he and Sumner arranged to meet and went to meet with Allen, but that Mr Allen failed to attend. Further, the evidence of a witness who saw a man answering the description of Mr Allen, get into a white vehicle; Mr Sumner then travelling to Melbourne and that the phone belonging to Mr Benporath is tracked travelling down the highway in the direction of Melbourne. Mr Lien met with Sumner at Craigieburn and another person, as seen by Mr Lien, was present and Sumner stated to him that another person was in the car.
From late on the night of 25 April, or the early hours of 26 April, there is no further recorded telephone traffic on the Benporath telephone. The Crown also submit that the evidence of Mr Lien is corroborated by the presence of the deceased's blood found in the sedan.
Mr Langslow contends that there is no body, there are no witnesses to the applicant being involved in Mr Allen's death and there is a distinct lack of clarity in the Crown's case against the applicant. True it is that the body of Mr Allen has not been located and there are no eye witnesses as to Mr Benporath's involvement in the death of Mr Allen.
The Crown relies upon circumstantial evidence but that evidence is not as weak as is contended by the applicant, although ultimately it may not be as strong as that contended by the Crown. Certainly the evidence of Mr Lien will be crucial and no doubt it has its inherent inadequacies if it seeks to support a purported identification of the applicant, as it is contended that the description does not match that of Mr Benporath. However, that does not mean the evidence cannot support an inference that it is the applicant who is present with Mr Sumner, when Mr Lien spoke with him at Cragieburn. No doubt because of Mr Lien's role as Mr Sumner's supplier his credit will be under challenge, but his evidence is corroborated by: the finding of the deceased's blood in the sedan; the telephone traffic generally; the location of the telephone as it travelled towards Melbourne at the relevant time and the cessation of traffic on that particular telephone. This is all evidence of sufficient cogency to suggest that the Crown case is not a weak one.
I accept that there may be difficulties in having access to Mr Benporath whilst he is in custody and that it may be an expensive exercise to do so if legal funding for such visits is limited, but it can be no more difficult in this case than it is in others.
The applicant has made a statement saying he was with his co‑accused until 8.30 p.m. or 9.00 p.m. on 25 April 2005 when he was dropped off at his home address. He also states that he lost his mobile telephone on or about Anzac Day. It is difficult to see how these circumstances would require elucidation in multiple conferences.
As to the technical nature of the evidence of the telephone calls, conferences with the applicant will not illuminate those matters and such difficulties should be taken up with the Crown well before the trial.
I accept that it is no fault of the applicant that the trial has been adjourned to 28 March 2008. It is regrettable that counsel were not able to proceed when the trial was first listed for hearing on 9 August 2007 but that delay, such as it is, although significant, is not, in my view, inordinate.
For these reasons I am not satisfied that these circumstances, either individually or in combination, establish that exceptional circumstances exist such as to justify the grant of bail.
As to the unacceptable risk, I reiterate that the applicant has prior convictions for failing to answer bail, although this was explained as an oversight, at a time when he was moving from Melbourne to Shepparton and on two previous occasions he has been in breach of community‑based orders. Thus, in the past, in respect of offences not as serious as this present offence, he has failed to comply with the obligations the courts have imposed upon him. This suggests that the court could not have any confidence, particularly when the stakes are high, as they are here, that the applicant would answer his bail.
As to the risk of committing further offences, it is not disputed that the respondent has committed offences whilst he was living with his sister and brother‑in‑law and thus living with them, as is now proposed, is not likely to act as an incentive to not re-offend especially when he has offended whilst on bail in the past.
The principal concern of the Crown is the risk of interference with the witness Chi Lien. Mr Langslow submitted that as Mr Lien is on the witness protection program any concerns of the Crown are, in his words, “a furphy.” It is neither confirmed nor denied whether Mr Lien is on a witness protection program, however, whether he is or not, he is a crucial witness for the Crown in the case against both Mr Benporath and his co‑accused, Jamie Sumner. If Mr Lien did not give evidence in the case against either of those accused the respective Crown cases would be considerably weakened.
It is proposed that Mrs Sumner, the co‑accused's mother, would act as a surety for Mr Benporath. It appears no one else is able to. The Crown submitted that this suggests the relationship between the Sumner family and Mr Benporath is a strong one and would place Mr Benporath in Mrs Sumner's debt and in these circumstances there is a risk to Mr Lien. Further, as I understand the submission, Mr Laurie Sumner, Mrs Sumner's estranged husband and the father of the co‑accused, Jamie Sumner, has a network through motorcycle gangs which might provide a network to Mr Benporath should he wish to avail himself of it. Mr Langslow submitted that if anyone wished to interfere with Mr Lien they would have the means available to them without having to call upon Mr Benporath.
I am satisfied that there must be a significant relationship between Mrs Sumner and Mr Benporath otherwise she would not offer her unencumbered house as surety to an associate of her son. In these circumstances even if Mr Lien is in the witness protection program and even if others have the means and the motive to interfere with him so does Mr Benporath. He has the motive and stands to gain if Mr Lien does not give evidence as proposed and through his connections with the Sumner family, which must be regarded as significant, he may well have the means.
In those circumstances, I am satisfied that there is an unacceptable risk that the applicant may interfere with witnesses if released on bail.
For the above reasons I am not satisfied that exceptional circumstances have been demonstrated that justify the grant of bail and I am satisfied that the applicant poses an unacceptable risk in the terms of s.4(2)(d) of the Bail Act 1997 and bail is therefore refused.
Yes thank you. Would you remove the prisoner, please.
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