R v Penny

[2015] VSC 155

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0035

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by ROBERT PENNY

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2015
DATE OF RULING:	13 April 2015
CASE MAY BE CITED AS:	R v Penny
MEDIUM NEUTRAL CITATION:	[2015] VSC 155

---

CRIMINAL LAW – Application for Bail – Murder – Exceptional circumstances – Significant time since alleged offending – Applicant elderly and in poor health – Bail granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Stary	Robert Stary Lawyers
For the Respondent	Mr M Regan	OPP

HIS HONOUR:

1. It is alleged by the prosecution that in May 1991, Robert Penny attended at a hairdressing salon in Portland where his then wife Margaret Penny was having colour put in her hair by Claire Acocks, an employee at the salon. 

1. The prosecution allege that Mr Penny murdered both women by stabbing them with a sharp implement.  It alleges that he then turned off the lights of the building and locked the front door. 

1. No charges were laid in 1991 and no charges have been laid until today.

1. In recent times the investigation has been revived and the prosecution rely largely on statements said to have been made by Mr Penny 24 years ago to various relatives.  In substance, the prosecution allege that Mr Penny demonstrated in those statements knowledge that only the person guilty of the offence of murder could know.  It is impossible to say at this early stage whether this is a strong or weak prosecution case.  It is certainly entirely circumstantial.

1. Until such time as the witnesses have been tested as to the reliability and accuracy of their memories of that distant event, any sensible evaluation of the strength of the prosecution case cannot be made.

1. Mr Penny, when interviewed, denied any involvement and, as I understand it, a partial DNA sample found on an item at the crime scene does not match Mr Penny's DNA.

1. A burden rests on those charged with murder to demonstrate that exceptional circumstances exist which justify a grant of bail.  Exceptional circumstances can be demonstrated by individual factors or a combination of factors.  It follows that the default position where an applicant is charged with murder is that bail be refused.  If exceptional circumstances are demonstrated by the applicant, then, in the absence of the applicant presenting an unacceptable risk of absconding or committing further offences, bail will be granted. 

1. In this case the prosecution do not point to any unacceptable risk although they accept that the applicant remains burdened with demonstrating exceptional circumstances. 

1. The offences charged are of the utmost gravity and, in my view, the circumstances would need to be demonstrated to be truly exceptional in order for me to consider granting bail.

1. After proper consideration I consider that the circumstances relied upon by the applicant do, in fact, meet that high threshold:

1.The applicant is 83 years old.  He has, I understand, remained visible and accessible throughout the period of investigation which spans nearly a quarter of a century.  He is currently in a permanent relationship.

2.I accept that the applicant's health is precarious.  He suffers from diabetes, oesophageal varices, emphysema, cirrhosis of the liver and vascular disease.  He takes a variety of medications.

3.A trial would not be heard for at least 12 months and perhaps longer.

4.The applicant has no prior convictions.

5.Given his age and health, in my view the applicant does not present as any real risk of flight, committing further offences whilst on bail, or interfering with prosecution witnesses.  I am fortified in that conclusion by the evidence of the informant which agrees with that assessment.  Nevertheless, I shall impose conditions that can operate to minimise what risks remain.

1. In the circumstances, I am satisfied that the applicant has demonstrated exceptional circumstances and that I ought to release him on bail.  The conditions that I propose are as follows:

1.The applicant is to attend the Melbourne Magistrates' Court on 6 July 2015 at 10am.

2.He is to reside at unit 1, 957 Dandenong Road, Malvern East, Victoria, and not to change his place of residence without further order of the Court.

3.He is to surrender any passports or travel documents which he may hold to the informant prior to being admitted to bail and not apply for another passport or travel document.

4.He is not to attend any port, airport or point of international departure.

5.He is not to leave Victoria.

6.He is not to leave Australia.

7.He is not to contact directly or indirectly any witnesses for the prosecution other than the informant.