Re an application for bail by Murray
[2014] VSC 249
•27 May 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
PRACTICE COURT
S CR 2014 0054
IN THE MATTER of the Bail Act 1977
- and -
IN THE MATTER of an application by MICHAEL JAMES MURRAY
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JUDGE: | GARDE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2014 | |
DATE OF JUDGMENT: | 27 May 2014 | |
CASE MAY BE CITED AS: | Re an application for bail by Murray | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 249 | |
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CRIMINAL LAW – Bail – Applicant on bail for an indictable offence – Alleged to have committed further offences while on bail – Whether bail should be granted – Applicant required to show cause – Whether unacceptable risks posed by applicant – Delay to trial – Bail conditions – Surety – Not to seek to contact or associate with members of a motorcycle club – Bail Act 1977 (Vic) ss 4(4) and 13.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Dunn QC with Mr W Toohey | Mr P Dwyer |
| For the Director of Public Prosecutions | Mr W Stougiannos | Ms K Richter, Office of Public Prosecutions |
HIS HONOUR:[1]
Introduction
[1]This is a revised version of the reasons for decision given orally on 27 May 2014.
The applicant, Michael Murray, is currently on remand at the Melbourne Assessment Prison. He was arrested on 19 February 2014 at his residence in Lysterfield South.
He was charged with a number of offences and released on bail to appear at the Melbourne Magistrates’ Court on 30 June 2014.
The charges alleged against the applicant on 19 February 2014 include three charges of possessing a drug of dependence, namely testosterone, testosterone propionate and human growth hormone; one charge of processing an unregistered Category C or D long arm and two magazines; and three charges of possessing ammunition without a licence. The ammunition found at the applicant’s home consisted of 17 rounds of 12 gauge cartridge ammunition, 38 rounds of 357 magnum revolver ammunition and 12 rounds of nine millimetre cartridge ammunition. The sum of $89,000 was also seized.
On 19 February 2014, the applicant was granted bail on his own undertaking. The conditions of bail were that he reside at his residence, that he report to the officer‑in‑charge of the Endeavour Hills police station every Monday between 6am and 9pm, that he notify the informant if intending to leave the State of Victoria and that he not leave Australia.
On 18 March 2014, the applicant was arrested and charged with the offences of threatening to kill and unlawful assault at Rowville on 26 June 2012. This related to an incident in Ferntree Gully Road and Stud Road, Scoresby, where the applicant, driving a Mercedes wagon registered in his wife’s name, is alleged to have abused the driver of another car, sought to reach inside the driver’s side window and threatened to kill the driver of the other car. The driver of the other car was allegedly put in fear for his own safety and drove off.
On 21 March 2014, police executed a further search warrant at the applicant’s residence. On the same day he was charged with attempting to pervert the course of justice at Narre Warren South between 23 February 2014 and 20 March 2014. This related to what is alleged to be an attempt by the applicant to have another person, known as Alick Williams, give a false statement or confession to police regarding the possession of explosives seized by police from a property at Narre Warren South on 19 February 2014.
It is alleged that the applicant, who was the Victorian commander of the Comanchero Motorcycle Club, arranged for a club member, Robbie Morando, to hold an aluminium box containing explosives. Subsequently it is alleged that the applicant and Morando asked Williams to go to a park. It is alleged that while at the park, Williams was asked by the applicant and Morando “to take the fall for this” and say that he had put the explosives in Morando’s garage.
On the following day, it is said that the applicant told Williams, again in the park, that he, Williams, should put his hand up for this, also promising legal representation for Williams.
In addition to the charge of attempting to pervert the course of justice, the applicant was, on 21 March 2014, charged with possessing a drug of dependence, namely testosterone, and possessing ammunition without a licence. The steroids and ammunition were found at the applicant’s residence.
On the same day, six long arms and three hand guns were found at premises in Dewhurst. This property is a 40‑acre property owned by the applicant’s wife. A house on the property is occupied. It is part of the police case that the six long arms were recently stolen from Bayswater.
Bail applications
There are three co‑accused, namely Mr Roberto Morando, Mr Almir Dzafic and Ms Nicole Stewart. Two of the co‑accused have obtained bail. One co‑accused remains on remand with the applicant.
On 8 April 2014, the applicant applied for bail at the Melbourne Magistrates’ Court before Her Honour Magistrate Cameron. Her Honour refused bail principally on the basis that the applicant was an unacceptable risk of re‑offending or interfering with witnesses.
The applicant has a criminal record with a finding of guilt for affray at common law in 2007 and employing unlicensed crowd controllers in 2003.
Need for applicant to show cause
This is a case where the Court is required to refuse bail unless the applicant shows cause why his detention in custody is not justified under s 4(4) of the Bail Act 1977 (‘the Bail Act’). The applicant has been charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence.[2]
[2]See s 4(4)(a) of the Bail Act.
In the matter of an application for bail by Fred Joseph Asmar,[3] Maxwell P considered the principles which apply to such an application. His Honour distilled a number of propositions from the provisions of ss 4 and 13 of the Bail Act:[4]
[3][2005] VSC 487.
[4]Ibid [5]-[15] (footnotes omitted).
Section 4 of the Act is headed “Accused person held in custody entitled to bail”. The attractive simplicity of this statement is, however, not borne out by the complicated provisions of s.4. The entitlement to bail contained in the opening words of s.4(1) is so hedged about with qualifications, with different tests and different onuses according to the class of offence involved, that the “scheme” of the provisions is difficult to discern. (In its recently-published Consultation Paper – Review of the Bail Act, the Victorian Law Reform Commission notes that in its consultations “the most frequently raised problem... was section 4”. The Commission is considering whether the Bail Act should be rewritten).
The following propositions can, I think, be distilled from the provisions of s.4 (and of s.13, which is incorporated by reference in s.4(2)(a)):
1.If the accused person is in custody pursuant to the sentence of a court for some other cause, bail may be granted but only on condition that the person not be released on bail before he or she is entitled to be released under a parole order.
2.In the case of a person charged with treason or murder, or with drug offences of the kind referred to in s.4(2)(aa), bail must be refused unless the Court is satisfied that exceptional circumstances exist which justify a grant of bail.
3.Bail must be refused if the Court is satisfied that there is an unacceptable risk that the accused person if released on bail would:
•fail to surrender himself or herself into custody in answer to his or her bail;
•commit an offence whilst on bail;
•endanger the safety or welfare of members of the public; or
•interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or herself or any other person.
4.In the case of a person charged with an offence referred to in s.4(4), bail must be refused unless the accused person shows cause why his or her detention in custody is not justified.
It is the inter-relationship of propositions 3 and 4 which requires consideration on the present application. More accurately, the question is how the “unacceptable risk” provisions of s.4(2)(d) relate to the “show cause” provisions of s.4(4). On this question, the applicant and the Crown were united in submitting that the correct approach was that set out by Gillard, J. in DPP v Harika.
In Harika, the applicant was charged with armed robbery. Paragraph 4(4)(c) was therefore applicable. It followed, as his Honour said, that the applicant for bail assumed the burden of establishing that his detention in custody was not justified. His Honour continued:
“However, that is not the end of the inquiry. If he establishes cause, the Court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail, he may commit one or more of the prohibited acts set out in s.4(2)(d). ... The factors that must be weighed in considering the question of unacceptable risk are set out in s.4(3). It is noted that the Court must consider all relevant matters, and the list of specified ones is not exhaustive...
The burden of establishing unacceptable risk lies upon the Crown.
The two inquiries can overlap, in the sense that the unacceptable risk factors have to be weighed, when considering whether the applicant for bail has shown cause.
The Act does not define what is meant by the phrase ‘shows cause why his detention in custody is not justified.’ It is trite to observe that all relevant circumstances must be weighed, leading to the conclusion that the detention in custody is not justified.”
On this analysis, as encapsulated in the Director’s submission in the present case –
“there is a two step process which requires the Court to consider the respective burdens imposed by the two subsections [s.4(4) and s.4(2)(d)]”.
In this process, so it is said, the applicant for bail must first “show cause why his detention in custody is not justified”. That is the first step. Once cause is shown, the Court then moves to the second step, that is, to decide whether there is unacceptable risk as defined by s.4(2)(d). On that issue, the prosecution bears the onus.
With great respect to his Honour, and to counsel who have sought in the present case to uphold the approach, I do not think this analysis is correct. As I read the Act, s.4(4) is a provision which governs – exhaustively – applications for bail by persons charged with offences to which the subsection applies. Subparagraph 4(2)(d) has no application of its own force though, as I explain below, the “unacceptable risk” analysis must still be undertaken.
In my view, the question – the only question – for the Court on an application to which s.4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified?”
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. (The contrast with the two-step approach which is required in an “exceptional circumstances” case is considered below).
This does not mean that the “unacceptable risk” issues identified by s.4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s.4(2)(d) and in s.5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s.4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
There may, of course, be additional considerations which, in a particular case, might be said to justify the person’s continued detention. But the four nominated risks must, as it seems to me, be at the forefront of the Court’s consideration of the justification for the person’s detention. Put another way, I do not see how the Court could be satisfied – as s.4(4) requires it to be – that the accused person’s detention in custody was not justified, unless the Court was satisfied that there was no unacceptable risk on any of the four grounds.
It follows that if, having considered the four risk issues, the Court is satisfied that the continued detention is not justified, there is no occasion for s.4(2)(d) to come into play. This is precisely because the matters with which s.4(2)(d) is concerned will have already been fully considered in deciding the s.4(4) question. There is no work for s.4(2)(d) to do.
This is, in substance, the approach which Eames, J. adopted in DPP v Ghiller, a case decided before Gillard, J.’s decision in Harika. Ghiller was also a “show cause” case under s.4(4) of the Act. His Honour said:
“Even when an applicant for bail must show cause – that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail – the primary question relevant to the grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail.”
Submissions by the Direction of Public Prosecutions and the applicant
The Director of Public Prosecutions opposes the grant of bail on four grounds. The Director says that:
a) the offences for which the applicant now seeks bail are the same as the offences for which the applicant previously received bail;
b) there is an unacceptable risk that the applicant, if released on bail, will interfere with witnesses;
c) there is an unacceptable risk that the applicant, if released on bail, would commit further offences; and
d) there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of members of the public.
The applicant has filed two affidavits, each sworn by his solicitor, setting out the basis on which bail is sought.
In relation to the firearms charges, the applicant contends that the evidence is insufficient to sustain the charges. It is said that:
a) the firearms were alleged to have been found on a 40‑acre property owned by the applicant’s wife. The residence on the property was occupied by another person. There is no special security on the semi-rural property;
b) the informant is unable to provide any evidence that the applicant attended the property in recent times, particularly after 15 March 2014 when the firearms were stolen; and
c) the firearms have not yet been tested for any forensic evidence linking the applicant to the firearms.
As to the charges of perverting the course of justice, the applicant contends that:
a) the conversations relied on by the informant against the applicant were not recorded;
b) the investigating police have not found any evidence of a prepared statement to be adopted by Williams;
c) the subsequent purported discussions between Williams and the co‑accused, which were taped, are inadmissible as hearsay against the applicant.; and
d) the witness, Williams, has prior criminal convictions for dishonesty offences.
The applicant also relies on a number of other factors:
a) the applicant resides with his wife, Debbie, and five‑year‑old daughter, Brooke, at the family residence. The couple have had a relationship for ten years;
b) both Debbie and Brooke suffer from coeliac disease. Brooke’s condition is serious. Her diet requires constant supervision;
c) the applicant and his wife conduct a gymnasium business known as Nitro Gym at Hallam and a tattoo business. They employ approximately 10 staff;
d) the applicant has a limited criminal history; and
e) the applicant is able to provide a surety in the sum of $1 million in the form of residential properties owned by a friend, Graham Ritchie.
The applicant relies on a number of reasons under s 4(4) of the Bail Act to establish that he has shown cause why he should be released on bail. There will be a delay of at least three months until the date of the applicant’s contested committal hearing. There will be a further delay of at least 12 months from the date of the committal hearing until the applicant faces trial in the County Court of Victoria. It is unlikely that the applicant will receive a trial date until mid- to late-2015 at the earliest.
As to whether the applicant constitutes an unacceptable risk under s 4(2)(d)(i) of the Bail Act, the applicant submitted that:
a) while there are two co‑accused on bail, there have not been any attempts to contact any prosecution witnesses and in particular the witness, Williams;
b) the applicant has stable accommodation with his wife;
c) the applicant has strong ties to the jurisdiction with all family members living within the jurisdiction. The applicant is an Australian citizen;
d) the applicant is able to provide a surety to the court in the form of properties owned by a friend in the sum of $1 million;
e) the applicant does not have a lengthy criminal history and has demonstrated that he is able to abide by a suspended sentence;
f) although the applicant was on bail at the time of the alleged offences, the charges for which he was on bail, it is contended, were relatively minor and he was released on bail from the police station. The applicant has now spent almost two months in custody;
g) the applicant does not have any prior convictions for failing to appear whilst on bail;
h) the applicant is willing to report to police as directed by the Court;
i) the prosecution case cannot be described as overwhelming;
j) while there will be a lengthy delay before the matter proceeds to trial, the Court has the power to impose any conditions deemed appropriate; and
k) the applicant is willing to abide by any condition imposed by the Court.
Mr Stougiannos of Counsel, who appeared for the Director of Public Prosecutions, drew attention to the maximum penalty of 25 years for the offence of perverting the course of justice. He submitted that the applicant had had two meetings with Williams. He drew attention to the telephone records of numerous conversations by the applicant with the co‑accused and with members of the Comancheros Motorcycle Club. He referred to the covert recording of some conversations, although not those between the applicant and Williams. He said that the Crown case was that the applicant was acting in concert with the other co‑accused.
In relation to the charges arising from the raid on the Dewhurst property on 21 March 2014, he said that the Crown had a reasonable case to make out. He referred to the discovery of firearms and hand guns as well as steroids and large sums of cash amounting to $89,000 with further evidence of a cash sum of $105,000. He said that there was a connection between the various participants and that it could be traced to the applicant. No rental or leasing documents for the Dewhurst property have been found.
Telephone records show that the applicant had been in the vicinity of the Dewhurst property over the period following the theft of some of the guns. He drew attention to photographs of the applicant, of Comancheros club clothing and weaponry found during the raid on 21 March 2014. There was also documentation found which connected the applicant to the Dewhurst property. The weapons burgled from Bayswater were found in plastic bags buried in the dam. The property was used for farming purposes. He contended that the Crown had a reasonably strong case, that trial with persons in custody had priority over other trials and that time spent in remand would be deducted from any sentence imposed. He contended that any sentence imposed would be substantially more than 12 months. He said that the informant had serious concerns about the applicant re‑offending or interfering with witnesses.
Evidence
Evidence was given by Detective Leading Senior Constable O’Brien. He referred to the applicant as the State Commander for Victoria of the Comancheros Motorcycle Club, stating that the applicant resided at the property at Dewhurst between 2005 and 2007, having subsequently lived at the property at Lysterfield South for about seven years.
He said that the occupant of the residence at Dewhurst was Naomi Evans, a staff member of the Nitro Gym.
Forensic analysis of the guns and items seized was yet to be completed. However, a number of items connecting the applicant with the Dewhurst property had been found during the raid on 21 March 2014.
Senior Constable O’Brien said that the whereabouts of the witness, Williams, was not known to the applicant. He acknowledged that the applicant had previously served out a suspended sentence and had presented himself on a previous occasion as required by conditions of bail. He did not consider the applicant to be a significant flight risk.
Decision
In a number of recent bail applications, Judges of this Court have been faced with a dilemma similar to that which arises in this case. On the one hand, the applicant faces a lengthy period on remand, here until June 2015 at the earliest. On the other hand, there are risks as highlighted by the submissions of Counsel for the Director of Public Prosecutions.
In DPP (Cth) v Barbaro,[5] the Court of Appeal held that there would be circumstances where the actual or anticipated delay before trial was of such a magnitude that risks which would, in other circumstances, be regarded as unacceptable, may properly be viewed as acceptable.[6]
[5](2009) 20 VR 717.
[6]Ibid 726-8 [33]-[41].
In Woods v DPP, Bell J said that:[7]
On its own, unreasonable or inordinate delay can constitute exceptional circumstances; in combination with other considerations, any delay can do so.
[7][2014] VSC 1 [39].
In Re Hewat, Rush J found that:[8]
Whilst the charges are indeed serious and if convicted would likely result in the applicant being sentenced to a term of imprisonment, it is my opinion the significant delay [to trial] tips the scales in favour of granting bail.
[8][2014] VSC 240 [17].
So it is in my view in this case. The significant delay to trial of 12‑18 months tips the scale in favour of granting bail, albeit bail only on the most stringent conditions.
I have come to the conclusion, having regard to the delay to trial, that the accused has shown cause why his detention in custody is not justified and he should be released on bail subject to a very substantial surety of $1 million and special conditions which I will shortly outline.
The offer by the applicant to provide a surety of $1 million and the other conditions that will be imposed will very substantially reduce the risk that the applicant will contravene his bail conditions or re‑offend. I wish to make it very clear to the applicant that if he contravenes the bail conditions, or offends again, he will be re‑arrested. He will then spend the next 12‑18 months in gaol awaiting trial.
If he desires to stay out of gaol, it is critical that he adhere to the bail conditions and not re‑offend. In the main, the bail conditions were offered by Mr Dunn, QC, who appeared on behalf of the applicant.
Order granting bail
In the circumstances, I will make an order granting bail.
It is ordered that the applicant be admitted to bail on his undertaking with one surety in the sum of $1 million on the following conditions:
(1)The applicant will surrender himself into custody at the time and place of his hearing or trial and will not depart without leave of the Court, and if leave is given, will return at the time specified by the Court and again surrender himself into custody.
(2)The applicant is to reside at his residence at Lysterfield South.
(3)The applicant is not to change his place of residence.
(4)The applicant is to remain at his residential address between the hours of 9:00pm to 6:00am seven days a week.
(5)The applicant is to report daily between the hours of 6:00am and 9:00pm to the officer in charge of the Narre Warren Police Station or his or her nominee.
(6)The applicant will report to the officer in charge of the Narre Warren Police Station or his or her nominee during the curfew hours of 9pm to 1am if so requested.[9]
(7)The applicant is not to leave the State of Victoria.
(8)The applicant is not to attend any port, airport or international point of departure from the State of Victoria.
(9)The applicant is to surrender any passport held by him and is not to apply for another passport.
(10)The applicant is not to contact or seek to contact or associate with any member of the Comancheros Motorcycle Club.
(11)The applicant is not to permit members of the Comancheros Motorcycle Club to attend the Nitro Gymnasium in Hallam.
(12)The applicant is not to have any contact with or seek to contact any witnesses for the prosecution whether directly or indirectly except for the informant.
(13)The applicant is not to contact or associate with any of the co-accused namely Roberto Morando, Almir Dzafic and Nicole Stewart.
[9]Following the pronouncement of the orders made, it was indicated that an application would be made to modify this condition so that the applicant need only present himself, at his front door, during the curfew hours if so requested by police.
These are the special conditions of bail that will be imposed and must be adhered to. It will take some time for the necessary court orders, the surety and paperwork to be completed so that the applicant can be physically released on bail.