R v Simpas
[2006] VSC 180
•8 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1455 of 2006
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an Application for Bail by Kristofer SIMPAS
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 MAY 2006 | |
DATE OF RULING: | 8 MAY 2006 | |
CASE MAY BE CITED AS: | R v KRISTOFER SIMPAS | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 180 | |
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BAIL – Applicant charged with murder - Whether exceptional circumstances have been established – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Cosgriff | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr P. Chadwick | Lewenberg & Lewenberg |
HIS HONOUR:
This is an application for bail by an applicant who has been charged with murder. In those circumstances the application must be refused unless the court is satisfied that exceptional circumstances exist which justify the making of the order or, in other words, the granting of the application.
The death of the deceased, Morgan Morgan, which gives rise to the charge of murder, occurred on the night of Friday, 24 March 2006, or in the early morning of the following day, Saturday, 25 March. The circumstances, as the Crown puts them, are set out in Exhibit PA1 to the affidavit of Peter John Andrew Atkinson, sworn on 3 May 2006 in opposition to the application.
The Crown case is that the applicant, in company with other men of about his age, (he was born on 17 February 1987) traveled from the northern suburbs into the city, where at one point not far from the Yarra they came upon a number of persons drinking from cans near a car. One of the number with which the applicant was associated, (the person who is now his co-accused) approached one of those by the car and, according to the police, asked for a can. That request having been refused, hostility between the two groups then arose. It was, with tragic consequences, to be pursued for some time thereafter.
If the police version of events is accepted, the inference is open that the group of which the applicant was a member, and possibly both groups, were spoiling for a fight. If so, they got what they wanted. The hostilities culminated in an affray shortly before 2.00 a.m. on Saturday morning, during which weapons were produced. These included bottles which had been deliberately broken for the purpose. In such circumstances, they are a savage instrument whether of aggression or defence. During the affray, a member of the group to which the applicant’s group was opposed, Morgan Morgan, was so badly injured, by having a broken bottle thrust into his neck, that he died shortly thereafter.
The Crown case is that it was the applicant who wielded the bottle that struck the fatal blow, although there is, on the police case, evidence that another smashed bottle was used by the co-accused; and that also caused injuries to the deceased.
In opposing the application, the Crown points to s.13 of the Bail Act. The applicant having been charged with murder, that section precludes the application being granted unless the court is satisfied that exceptional circumstances justify the applicant being released on bail. According to the Crown, no such exceptional circumstances apply in this case. The Crown also submits that there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses or otherwise endanger the safety or welfare of members of the public.
In an able and helpful submission on the applicant’s behalf, Mr Chadwick pointed to the applicant’s youth (he being 19 years of age) and his slight build and youthful appearance. These, Mr Chadwick suggested, might render the applicant particularly vulnerable in an adult prison to bullying or sexual physical harm. Mr Chadwick also relied upon (a) what he said was the weakness of the Crown case, and (b) the delay which, in the ordinary course, will follow between the present application and any committal proceedings, and then, if the applicant is committed, between the committal and the trial. In this part of his submission, Mr Chadwick raised the prospect that the DNA evidence, which may turn out to be important in the outcome of the case, will not be ready for presentation to a court for some six months from today, or possible somewhat longer.
I do not accept that the Crown case is, on what the police say they presently know, a weak one. On the contrary, the Crown relies on presently available evidence of the applicant’s presence at the scene, that he deliberately smashed a bottle, and that he later struck the deceased with that bottle. Although that evidence is untested and incomplete, it is in my opinion impossible to now properly characterise the Crown case as weak.
On the other hand, I accept that the DNA evidence is not likely to be available before October, and maybe for some time beyond that, and that accordingly it is unlikely that a committal will take place until the last few months of this year or perhaps early in 2007. That being so, it is likely that a trial will not take place until sometime into 2007 or possibly even 2008. Delay of that unfortunate magnitude appears to be likely.
Mr Chadwick also pointed to the circumstances in which, since he gave himself up to police on the Sunday following the incidents which give rise to the present charge, the applicant has thus far been held. The applicant has been incarcerated in the Metropolitan Custody Centre, which on no view could be said to be ideal circumstances for the extended incarceration of anybody, let alone someone of relatively tender years, and then in a police lock-up in circumstances where, as I am informed, not only were there the usual comings and goings at all times of the day and night, but the lights were left continuously on, and I take it, although I do not think it was stated expressly, that this made sleep difficult.
The applicant also put, through his counsel, that were bail to be granted, he would reside with his uncle, who I accept is a person of good character and who would, if advised of any breach of the bail conditions, bring such breach to the attention of the authorities.
I also, for the purposes of the application, accept that if the application were granted, the applicant would be able to continue with his apprenticeship as a motor mechanic with a firm in Preston. That would involve him travelling from his uncle's home, assuming that residence there were a condition of bail, to work at Preston and therefore across a considerable portion of the metropolitan area. When in Preston, the applicant would presumably be in physical proximity with at least some of those with whom he associated before these events and some of whom may be witnesses in the trial. The temptation for those persons to seek to make contact with the applicant, or he with them, would in those circumstances be strong.
The likelihood of such contact is perhaps strengthened by the evidence presently before me that, in something just under a fortnight before the events which gave rise to the current charge, the applicant was with a group of youths who attacked a café owner or operator in Clifton Hill and caused damage to those premises and to the person operating them.
There is no evidence before me that the applicant was directly involved in either an assault on the operator or in causing damage to the café; but I think I must take into account the material suggesting that the applicant has on two occasions in March this year been associated with youths who have acted in a way which is absolutely to be condemned and which is of grave threat to the good order of society and, more particularly, to citizens, some entirely innocent, who are caught up in this kind of behaviour.
The temptation for witnesses to tell stories, or give accounts, of these kinds of activities which are designed to meet a particular end rather than provide the truth is very strong; and the temptation to join in the concoction of false evidence likewise, as a matter of reality, is very strong. I therefore do take into account, when considering this application, the very real temptation which, it seems to me, will fall upon the applicant were he to work in Preston and be geographically proximate to others who were or were said to be involved in the incident which gave rise to his being charged with murder.
More particularly, however, it seems to me that the only circumstances that can in this case properly be said to be exceptional are only potentially so. The first is the possibility of the applicant being subjected to inappropriate attention while being in custody. He has not been subject to any such inappropriate attention to date, and that is a matter of some comfort; but I remain concerned that, were he to continue in custody, he not suffer any ill-treatment. Should he so suffer, especially if there is a threat that this will continue, an exceptional circumstance might arise.
The second circumstance is the likely delay between today, the committal, and any subsequent trial. It is most unfortunate that the system cannot do better than hold out the prospect of a trial by the second half of next year. Should it become apparent that the trial, if there is one, will not proceed until after a significantly greater delay, then an exceptional circumstance might be held to have arisen.
The third circumstance is the strength of the Crown case. Forensic evidence not yet to hand or not yet fully assessed, such as fingerprint evidence, security camera film, and DNA evidence, might have a dramatic effect (either way) on the strength of the evidence for the prosecution.
The result of my consideration of the various factors which have been put before me in the helpful arguments from both Mr Cosgriff and Mr Chadwick is therefore that this case does not now raise that exceptional circumstance or those exceptional circumstances about which I must be satisfied before I can grant the application. On the other hand, circumstances can change. Were there any evidence that the applicant were subjected to inappropriate attention while in custody, a fresh application might be justified. Likewise, were it hereafter to appear that the delays between this application and ultimate trial were beyond those which in the situation then prevailing seemed reasonable. Again, should the forensic evidence indicate that the Crown case was significantly weaker than presently appears, the applicant might on a fresh application be able to demonstrate such a change in circumstances as to bring the new circumstances into the “exceptional” category. Of course, however, it is not for me to forecast the result of a fresh application if made. That is for the future.
At present there is, in my opinion, no exceptional circumstance such as would justify my acceding to this application in accordance with the duty imposed upon me by s.13 of the Bail Act. As I said, that consideration is, to an extent, reinforced by the possibility which may amount to probability that, were bail granted, the temptation to engage in associations with persons likely to be called as witnesses in this case would be very difficult for the applicant to resist and also difficult, in some cases at least, for the authorities to detect.
For those reasons, the application is refused.
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