R v Curran
[2010] VSC 622
•14 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0179 of 2010
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by DAVID ALLAN CURRAN
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2010 | |
DATE OF JUDGMENT: | 14 December 2010 | |
CASE MAY BE CITED AS: | R v Curran | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 622 | |
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CRIMINAL LAW – bail application – accused charged with murder – exceptional circumstances –personal family commitments – bail granted – s 13(2) Bail Act 1977
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Slim | Office of Public Prosecutions |
| For the Applicant | Ms P Murphy | Robert Stary Lawyers |
HIS HONOUR:
Mr Curran has been charged with the murder of Vinicio Cervi on 9 March 2009. He has applied for bail. Because he faces a murder charge, s 13(2) of the Bail Act 1977 requires him to satisfy me that exceptional circumstances exist which justify the grant of bail before my discretion to grant bail is enlivened.
Mr Curran was taken into custody on 10 March 2009 and is currently on remand at the Metropolitan Remand Centre. His trial is fixed for 23 May 2011. Mr Curran intends to plead not guilty.
Mr Robert Stary, the solicitor for Mr Curran, has sworn an affidavit of 14 December 2010 in support of the application. The Crown opposes the application and relies on an affidavit sworn on 9 November 2010 by Mr Mark Pitcher, a solicitor within the Office of Public Prosecutions.
Mr Curran is currently 46 years of age. He relies on a combination of factors to establish exceptional circumstances. Primarily he relies on the personal circumstances relating to his 15 year old son Darcy Curran and the need for him to provide personal supervision and guidance for Darcy. He also relies on the offer of employment that has been made to him and the provision of a place to live by his brother.
Mr Curran contends that he is not a flight risk in view of his ties to the jurisdiction, including family and employment considerations. Mr Curran contends there is no evidentiary basis to suggest he would interfere with prosecution witnesses or commit further offences whilst on bail.
PERSONAL CIRCUMSTANCES
The personal circumstances were elaborated on by Mr Curran’s former wife and mother of Darcy, Ms Shackleton. She gave evidence that Mr Curran has, and always has had, a close relationship with his son. She said he was a good dad. Ms Shackleton said that 12 months before the incident the subject of the charge took place, Darcy went to live with his father because he had been a troublesome child and his parents considered that it would be in his interests to do so. Ms Shackleton said that during those 12 months, Darcy lived with his father during the week and would then spend weekends with her. She said that Darcy was doing well and was going to school.
Ms Shackleton says that since Mr Curran's arrest and remand the behaviour of Darcy has changed dramatically, and that he has become angry, violent and aggressive. She said that the anger arose through Darcy missing his father, and the absence of his father being in remand.
Ms Shackleton said that after a time she thought it would be in Darcy's interest to move to Queensland with her and her eight year old daughter from another relationship. That was not a success. Darcy was expelled from his school at Caloundra. The school report is exhibited and establishes that he was violent and aggressive towards other children at the school and that he was expelled.
Ms Shackleton returned to Victoria. Darcy refused to go to school. He was sent to counselling but only attended one session. He has refused to attend any more counselling sessions. He has been in trouble with the police, including allegations of stealing a motor vehicle. He has been violent, aggressive and uncontrollable, and the relationship between him and his mother descended to a point where recently he locked his mother in her bedroom and threatened to kill himself, putting a knife to his own throat and threatened to kill himself. Ms Shackleton said she knocked the knife from his hand. In the last week, Darcy has gone to live with a female friend of Ms Shackleton who has a child but no partner living with her.
Darcy has apparently been visiting his father in remand on a regular basis. Ms Shackleton said, despite advice and encouragement given to him by his father, he still misbehaves. She says that she has lost her son, and lost control over him.
The Crown did not challenge the evidence of Ms Shackleton.
MR CURRAN’S CRIMINAL HISTORY
Mr Curran has, on any view, a dismal and disgraceful criminal history sheet, littered with offences, including serious offences such as aggravated burglary. The best that can be said is that the last conviction seems to have been ten years ago. The offences include a failure to appear for which he was fined $30, and interfering with a witness. On my calculations those offences took place when he was in his early 20s, as young as 22.
His brother, who he proposes to live with, also has prior convictions, the last of which was some 28 years ago.
EXCEPTIONAL CIRCUMSTANCES
The Crown has submitted that no exceptional circumstances have been established by Mr Curran which would enliven my jurisdiction to consider a bail application.
Ms Murphy, for the defence, referred me to a decision of Coldrey J DPP v Cozzi.[1] In that case, Coldrey J considered the meaning of exceptional circumstances as referred to in the Bail Act1977.
[1][2005] VSC 195
Amongst the cases that Coldrey J referred to was Commonwealth Director of Public Prosecutions v Banda,[2] a decision of Beach J. In that matter, His Honour was hearing an appeal from a magistrate who had granted bail to an alleged importer of drugs, where the applicant was required to establish exceptional circumstances to obtain bail. The magistrate had referred to the prior criminal history of the applicant which was minor. Primarily the magistrate focused on the family situation and personal circumstances of the applicant.
[2][2000] VSC 542
The magistrate found that approximately two years earlier the applicant sold his home to enable him to live with his mother and to care for her because of the failing condition of her health. The magistrate found that the applicant had a primary role in caring for his mother and that her capacity to continue to live alone would be severely compromised by the applicant’s continuing incarceration. She further found that he also played a significant role in caring for his surrogate father, who also had serious health problems. Finally, the magistrate found that the applicant provided financial support for his partner who was looking after their intellectually handicapped daughter.
The magistrate noted that the applicant had no history of failing to answer his bail and his brother had offered his home as security up to $100,000. The magistrate referred to the fact that the applicant had work commitments having a strong connection with this State.
Beach J referred to the test that had to be applied by the court in reviewing the magistrate's decision and he noted that the issue was whether he was satisfied that the magistrate's decision was manifestly wrong. Beach J said:
"Having considered the magistrate’s finding in this matter and the factors she took into account in determining that there were exceptional circumstances justifying the respondent’s release on bail, I’m not persuaded that it can be said that the magistrate’s decision was manifestly wrong."[3]
[3]Commonwealth Director of Public Prosecutions v Banda [2000] VSC 542 [14]
Every case turns on its facts but I find that DPP v Cozzi is authority for the proposition that it is not an irrelevant consideration in considering whether there are exceptional circumstances to have regard to the personal family commitments of the applicant.
BAIL GRANTED
Section 13 of the Bail Act 1977 provides that bail shall not be granted to a person charged with murder unless the court is satisfied that exceptional circumstances exist which justify the making of such an order.
I am faced with evidence that a 15 year old boy’s life is disintegrating, such that he may descend into a life of crime and may be lost forever. It is a very difficult case. But on the particular circumstances, and in view of the evidence in relation to Darcy, I find that the applicant has satisfied me that exceptional circumstances do exist which justify the making of an order for bail and therefore my discretion to grant bail is enlivened. I am inclined to exercise that discretion favourably.
BAIL CONDITIONS
Bail is granted on the following terms:
That David Curran be admitted to bail on his own undertaking with one surety in the sum of $370,000 conditioned in the proper form for his appearance as required by law at the Supreme Court of Victoria at Melbourne at a time to be advised by the Office of Public Prosecutions and upon the following special conditions:
1. The said David Curran reside at the address in the order which I will initial and place on the file.
2. The said David Curran report daily to the officer in charge of the police station at Doncaster or his nominee between the hours of 9 a.m. and 9 p.m.
3. The said David Curran not contact directly or indirectly any witness for the prosecution except the informant or his nominee.
4. The said David Curran surrender any passports which he may hold to the informant within 24 hours of being admitted to bail and not apply for another passport. Any such passport not to be returned to David Curran except upon order of this court.
5. The said David Curran not attend any point of international departure during the period of bail.
6. The said David Curran notify the informant within 48 hours if Darcy Curran ceases to live with the accused at the address.
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