R v Young

[2006] NSWSC 1499

CITATION:	R v Young [2006] NSWSC 1499
HEARING DATE(S):	28 April 2006
JUDGMENT DATE :	28 April 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	Conditional bail granted.
CATCHWORDS:	BAIL - charge of murder - s.9C Bail Act 1978 applicable - bail not to be granted unless exceptional circumstances justify grant of bail - nature and application of exceptional circumstances test - exceptional circumstances demonstrated - conditional bail granted
LEGISLATION CITED:	Bail Act 1978
CASES CITED:	R v Cable (1947) 63 WN 267 R v Watson (1948) 64 WN 100 R v Zvonaric (1967) 1 Petty Sessions Review 77 (Moffitt J, 3 November 1967) R v Tapueluelu (Dowd J, 5 January 2004, unreported) R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402
PARTIES:	Reubin Gary Young (Applicant) Regina (Crown)
FILE NUMBER(S):	SC 2006/832
COUNSEL:	Mr P Byrne SC (Applicant) Ms A Zeid (Crown)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

28 April 2006

2006/832 Regina v Reubin Gary Young

JUDGMENT (video link to Metropolitan Remand Centre)

1 JOHNSON J: The applicant, Reubin Gary Young seeks bail in this Court. Mr Young is charged with murder, failing to stop and assist after a vehicle impact causing death, and driving with the high range prescribed concentration of alcohol in his blood. He is to next appear before the Newcastle Local Court on 24 May 2006 for mention only.

2 Because of the murder charge, bail is not to be granted to the applicant unless the Court is satisfied that exceptional circumstances justify the grant of bail: s.9C Bail Act 1978.

The Applicant

3 The applicant is twenty-two years of age. Until the time of his arrest, he lived with his parents, his sister and his brother at Eleebana, near Newcastle.

4 The applicant is employed as an electrical apprentice by Eraring Energy, and has worked in that capacity since January 2003. He is in the fourth year of his apprenticeship. The applicant has no prior criminal history and there is evidence before the Court that he is otherwise a person of good character. Documentary evidence has been tendered for the applicant (and not challenged by the Crown) from Vincent Fallins, a person with a close and longstanding association with the Applicant’s family. Mr Fallins speaks highly of him and expresses some shock at the present circumstances surrounding the applicant.

5 The police statement of facts states that the applicant appears to be part of a law abiding and respectable family. The applicant’s father gave evidence before me and all the evidence on the application supports the conclusion expressed by the police themselves with respect to the applicant’s family.

The Alleged Offences

6 The events that bring this application before the Court and which have placed the applicant in prison since mid March this year arise from the tragic, indeed disastrous, events of the evening of 17 March 2006. On that night, the applicant and a number of his friends attended the Cambridge Hotel at Newcastle West to listen to bands that were playing there. The applicant drove to the premises. He consumed a quantity of alcohol whilst there. It is apparent that the quantity was substantial, because his blood alcohol concentration later that evening was .185.

7 During the course of the evening, an argument developed between the applicant and his group of friends on the one hand, and another group of persons at the hotel. The second group of persons included the deceased, Darren McWhinney. It is not suggested that the deceased and the applicant had any prior history of association. Indeed, it appears that the two men were, until this night, complete strangers.

8 The material placed before me on the application includes a statement of facts and statements of two persons who were witnesses to the events of that night, Matthew David Nicol and Nathan Jones. They were friends of the applicant who had accompanied him to the Cambridge Hotel on this night.

9 Detailed submissions have been made by both Mr Byrne SC, for the applicant, and by the Crown with respect to the factual matters emerging from the documents in evidence before me. This, of course, is a bail application. The complete Crown brief has not been served. I am informed that it will be served by 12 May 2006. The function which I am exercising, of course, is not one of a Magistrate presiding at committal proceedings, let alone a trial judge at trial.

10 It is not necessary for the purpose of this application to recite the detailed and, to some extent, varying accounts of what occurred. It appears that the deceased, Mr McWhinney, was removed from the hotel by security staff. It seems that there was at the time when the applicant left the hotel, continuing hostility between the applicant and the deceased. The statement of facts placed before me by the Crown contains a number of factual matters which are not directly supported by the statements of Mr Nicol and Mr Jones. No doubt the source for some of the factual matters referred to in the statement of facts is other persons who were able to cast light on what occurred.

11 The Crown case alleges that the applicant entered the driving seat of his vehicle and accelerated quickly and loudly. His friends, Mr Nicol and Mr Jones, were expecting to travel away with him but were left in the street. Having entered the vehicle and gone behind the driver’s wheel and started it, the applicant moved it forward in the direction of the persons with whom there had been an altercation inside the hotel. The Crown alleges that the applicant accelerated the vehicle swerving at a person named McDonald, who jumped out of the way, and that the applicant then swerved the vehicle in the direction of the deceased and drove straight at him and that the front of the four wheel drive vehicle (which was fitted with a metal bull bar) struck the deceased who was standing on the footpath. It is alleged that the vehicle skidded across the bitumen footpath with the deceased underneath and that the vehicle continued across the footpath until it struck the front of small business premises, causing the large front window to shatter and some of the brick border to smash. It is alleged that the applicant attempted to reverse the vehicle, however initially was unable to do so, due to the wheels spinning with the deceased still caught underneath the vehicle. Eventually, the applicant managed to reverse the vehicle off the victim and the footpath and drove off north along Denison Street before turning into Hunter Street.

12 A police vehicle was in the vicinity and observed the applicant driving his vehicle. According to the police statement of facts, the applicant’s vehicle was stopped a short distance down Hunter Street. Police asked him if his vehicle had been involved in an accident, which he initially denied. The applicant stated his friends were back in Denison Street involved in a fight, and police should see to that matter. He was subjected to a roadside breath test and in due course was arrested, taken to the police station, and produced a reading of .185. After a period of time during which he was allowed to sober up, he sought legal advice and declined to participate in an interview. He was then charged with these matters.

Submissions on Bail Application

13 The Crown submits that bail should be refused, that the applicant has failed to demonstrate exceptional circumstances and that the seriousness of the charges against him constitute a significant incentive for him not to appear to answer bail. The most serious charge of murder carries a maximum penalty of imprisonment for life, with a standard non parole period of twenty years for an offence of this class.

14 Mr Byrne SC submits that there are exceptional circumstances in this case. He submits that exceptional circumstances can arise by a combination of factors and that there is such a combination in this case. Firstly, it is said that an examination of the factual allegations against the applicant demonstrates that there are features of this case that allow a view to be formed, even at this stage, that it is not a very strong Crown case for murder. Secondly, it is submitted that there are strong subjective aspects surrounding the applicant including a good employment history, no prior criminal record, good family ties and that he is a person of otherwise good character who will, in all other respects, find favour with the Court on the question of bail. Thirdly, it is submitted that the applicant does not pose any threat to the community. This was one disastrous evening that produced these consequences, but that there is nothing in the applicant’s prior history to suggest the risk of repetition of such conduct if granted bail.

Section 9C Bail Act 1978

15 Section 9C Bail Act 1978 was inserted in the Act in 2003. At common law prior to 1978, there was a principle that restricted the grant of bail in murder cases to those involving special or exceptional circumstances: R v Cable (1947) 63 WN 267; R v Watson (1948) 64 WN 100; R v Zvonaric (1967) 1 Petty Sessions Review 77 (Moffitt J, 3 November 1967); Donovan, “The Law of Bail”, 1981, paragraphs 9.4, 32.3. That principle was not imported into the Bail Act in 1978, but in 2003, the current test was inserted.

16 Mr Byrne SC has taken me to the 2003 second reading speech in which Mr Gaudry, Parliamentary Secretary, explained some of the reasoning behind the enactment of s.9C. In so far as the concept of exceptional circumstances is concerned (and this term appears in both s.9C and s.9D which relates to serious personal violence offences), Mr Gaudry said (Hansard, Legislative Assembly, 30 May 2003):

“Exceptional circumstances will be left to the Court to decide on an individual case by case basis. However, as a general guide it might include cases involving a battered wife or a strong self-defence case or a weak prosecution case. It might also include a case in which the defendant is in urgent need of medical attention, or who has an intellectual disability or when the Court is satisfied the offender poses no further threat to the victim or the community.”

It is the last mentioned concept (posing no further threat to the community) which Mr Byrne SC emphasises in this case.

17 The Crown has referred me to R v Tapueluelu (Dowd J, 5 January 2004, unreported) in which his Honour expressed the view that the test of exceptional circumstances sets an onus on the applicant of a very high order, and requires something more than special circumstances or mere circumstances.

18 The concept of exceptional circumstances is, of course, not defined in the Bail Act 1978. It is a term that is used, from time to time, in statutes to place limits upon the exercise of various powers: cf R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402 at paragraph 12. It is helpful, however, to refer to the ordinary meaning of the word “exceptional” in the Macquarie Dictionary:

“Forming an exception or unusual instance; unusual; extraordinary.”

19 Section 9C does not constitute a prohibition on granting bail in cases of murder. Cases of alleged murder, of course, can vary considerably. It is no doubt for that reason that in the second reading speech, emphasis was placed upon the need for a case-by-case examination. The context in which the term “exceptional circumstances” is used is relevant to the construction of the term. The statutory context in which the term “exceptional circumstances” appears in s.9C involves the existence of a murder charge against the applicant. Elsewhere in the Bail Act, in s.30AA, the term “special or exceptional circumstances” is used in the context of an applicant who has been convicted of an offence on indictment and is appealing to the Court of Criminal Appeal. That difference in statutory context is not insignificant involving, as it does, bail determinations at different points along the path of the criminal justice process.

20 It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail.

21 An assessment of the strength of the Crown case at this stage is not without its difficulties. On the material before me, there is no doubt that it was the actions of the applicant which caused the death of the deceased. The issue here will be the state of mind of the applicant at the time. Section 9C of course applies only to murder - it does not apply to manslaughter, let alone culpable driving causing death. The elements of murder include the requirement for an intention to kill or cause grievous bodily harm or reckless indifference to human life.

22 On the factual material before me today, there are significant issues and arguments capable of being advanced both in favour of the Crown case and against it, with respect to the mental element of murder in this case. I emphasise that I am not sitting as a Magistrate determining committal proceedings, or as a trial judge, but I have been asked, and am required to give, some consideration and assessment to the nature of the prosecution case.

23 Mr Byrne SC has emphasised that cases of murder involving a motor vehicle are rare and that is undoubtedly the case. The Crown here, of course, alleges that the applicant used a motor vehicle as a weapon against the deceased. Whether that is so is a matter for future resolution. The Crown submits that there was a conscious and deliberate effort on the part of the applicant to use the vehicle as a weapon against Mr McWhinney, and that there was, as a result of the denial of the applicant to police that he had been involved in an accident, evidence of consciousness of guilt. However, it does seem to me to be significant that, at the same time, the applicant said to police that his friends were back in Denison Street involved in a fight and that police should see to that matter. On the Crown case, of course, that comment was made by someone who had, a short time before, intentionally or with reckless indifference to human life, run over the deceased.

24 It does seem to me that there are some unusual features in this case, unusual features in the nature of the charge itself, and unusual features surrounding the applicant himself. I am satisfied that the applicant poses no further threat to the community at this time. In my opinion, the applicant has satisfied the test of exceptional circumstances in s.9C Bail Act 1978.

Other Factors Relevant to Bail Determination

25 It is then necessary to consider other factors relevant to the grant of bail, including the factors under s.32 of the Act. In my view, those factors substantially favour the applicant. He is in good employment, he lives with a family who has had no prior adverse contact with the criminal law. He has ties to the community. His father is prepared to use the house in which they have lived for more than twenty years as security for bail. The evidence is that there is an equity in that house exceeding $400,000. There is evidence that Mr Fallins is prepared to assist in a type of supervisory function with respect to bail.

26 My conclusion that the applicant poses no further threat to the community at this time, will be fortified by the imposition of conditions on bail which I propose to set. Accordingly, I am satisfied that bail should be granted in this case.

Conditions of Bail

27 That brings me to the question of conditions of bail. I grant bail in respect to the offences of murder, failing to stop and assist after vehicle impact causing death, and driving with the high range prescribed concentration of alcohol upon the following conditions that:

(i) the applicant enters in an agreement to observe, and in fact observes, the following requirements as to his conduct while at liberty on bail:


(a) the applicant appear at Newcastle Local Court on 24 May 2006 and from time to time thereafter as required;

(b) he reports to the officer in charge of police at Belmont Police Station daily between the hours of 8am and 8pm;

(c) he resides at [xxx], Eleebana;

(d) he enters into an agreement, without security, to forfeit the sum of $5,000 if he fails to comply with his bail undertaking;

(e) one acceptable person enters into an agreement to forfeit the sum of $250,000 if the applicant fails to comply with his bail undertaking. Such agreement is to be secured by the giving of security in any form acceptable to the justice before whom the agreement is entered. Gary Phillip Young of [xxx], Eleebana is such an acceptable person;

(f) the applicant stays away from all international points of arrival or departure from the Commonwealth of Australia;

(g) the applicant not apply for any passport or travel documents during the currency of bail;

(h) the applicant not enter any licensed premises;

(i) the applicant not depart from the premises at [xxx], Eleebana between the hours of 10.00 pm and 4.30 am each day, unless accompanied by his mother or his father;

(j) throughout the period of his liberty on bail, the applicant be of good behaviour in all respects;

(k) the applicant not approach directly or indirectly Nathan Jones, Matthew David Nicol, or any other witness likely to be called by the prosecution except through his legal representatives;

(l) the applicant not drive a motor vehicle on a public street or occupy the driver’s seat of a motor vehicle.


(ii) Upon default in any one of the conditions imposed, bail now granted will be deemed to have been revoked and the applicant may thereupon be arrested by any police officer and thereafter dealt with according to law.

(iii) The necessary formalities may be completed by any justice.

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