Re Application for Bail by Baker
[2020] VSC 460
•28 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0161
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Andrew BAKER | |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2020 |
DATE OF ORDERS: | 23 July 2020 |
DATE OF REASONS: | 28 July 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Baker |
MEDIUM NEUTRAL CITATION: | [2020] VSC 460 |
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CRIMIMAL LAW – Application for bail – Exceptional circumstances not established – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Thomas | Tait Lawyers |
| For the Respondent | Mr P Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 23 July 2020 I refused an application for bail by Andrew Baker (‘the applicant’). I indicated that I would provide my reasons which follow.
The applicant is charged with the murder of his former partner, Sarah Gatt, whose badly decomposed body was found by police in the bathtub of her Kensington home on 3 January 2018.
The applicant was charged on 15 December 2019, following a protracted investigation into the circumstances of Ms Gatt’s death. He has been in custody since his arrest. On 10 July 2020, he filed an application for bail in this Court.[1] This matter is next listed in the Melbourne Magistrates’ Court for a committal mention on 3 August 2020.[2]
[1]Only this Court, or a court committing a person for trial, can grant bail to a person accused of murder. See the Bail Act 1977, s 13(2) (‘the Act’).
[2]The committal mention has previously been adjourned twice to allow the applicant’s solicitors and counsel additional time to review the hand-up brief.
At the time of the alleged murder, said to have occurred between 19 and 23 April 2017, the applicant was subject to a full no-contact Family Violence Intervention Order (‘FVIO’) naming Ms Gatt as the protected person. He was also on bail for charges arising from two separate family violence incidents where Ms Gatt was the complainant.[3] Those charges were dismissed on 7 January 2019 following Ms Gatt’s death.[4]
[3]Particularly, he was charged with trespass, unlawful assault and contravening a FVIO intending to cause harm or fear in the first matter. In the second, he was charged with false imprisonment (common law), making a threat to kill, intentionally causing injury, recklessly causing injury, unlawful assault and contravening a FVIO.
[4]Until recently, the applicant was also facing Commonwealth charges with respect to his continued receipt of Ms Gatt’s Centrelink payments in the 10 months following her death. These charges were withdrawn on 10 July 2020.
The applicable legislation
For the purposes of the Bail Act 1977 (‘the Act’), murder is a Schedule 1 offence.[5] It follows that bail must be refused unless the Court is satisfied that exceptional circumstances exist that justify the grant of bail.[6] The applicant bears the burden of discharging this onus.[7] In considering whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those prescribed in s 3AAA.[8]
[5]The Act, Schedule 1, item 2.
[6]Ibid ss 4AA(1), 4A(1)-(1A).
[7]Ibid s 4A(2).
[8]Ibid s 4A(3).
In the present matter, the applicant relied primarily on an asserted weakness of the prosecution case against him to demonstrate exceptional circumstances. As stated by Kaye J (as his Honour then was) in Re John McDonald,[9] involving an application for bail by a person accused of murder and in which principal reliance was placed on weaknesses in the prosecution case:
The Bail Act does not define what are exceptional circumstances. It is trite that in order to be exceptional the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail notwithstanding the very serious nature of the charge against him. It has been accepted that exceptional circumstances may in an appropriate case consist of a combination of circumstances both to the nature of the prosecution case against the applicant and the personal circumstances of the applicant.[10]
…
It is accepted in a number of cases that where it can be demonstrated that the applicant has good prospects of being acquitted at trial, such a factor may in an appropriate case constitute exceptional circumstances, or combine with other relevant factors to constitute exceptional circumstances.[11]
[9][2010] VSC 217.
[10]Ibid [10], cited with approval in Re Sam [2017] VSC 91 [22] (Beach JA).
[11]Ibid [12].
If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[12] In doing so, the Court must refuse bail if satisfied by the respondent that there is an unacceptable risk of the kind set out in s 4E(1)(a).[13] In considering unacceptable risk, the Court must again have regard to the surrounding circumstances in s 3AAA and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[14]
[12]The Act, s 4D(1)(a).
[13]Ibid s 4E(2).
[14]Ibid s 4E(3).
Further, pursuant to s 5AAA(1), a Court considering a grant of bail must make inquiries of the respondent as to whether there is in force a FVIO, Family Violence Safety Notice (‘FVSN’), or recognised domestic violence order against the applicant. Notwithstanding the nature of the present alleged offending or the imposition of previous FVIOs against the applicant, the respondent has confirmed that the applicant is not currently subject to any FVIOs or FVSNs.
Finally, when interpreting the Act, the Court must have regard to the guiding principles in s 1B(1) of the Act.[15]
[15]The Act, s 1B(2).
The alleged offending
By way of background, the applicant was in a relationship with Ms Gatt intermittently in the years preceding her death. They were both drug users, and their relationship was volatile. As stated, there were allegations of family violence, both charged and uncharged, on the part of the applicant against Ms Gatt throughout the relationship.
At the time of her death, Ms Gatt was a 39 year old mother of four children (none of whom were in her care). In addition to her on-off relationship with the applicant, she had commenced a relationship with Leona Rei-Paku (‘Rei-Paku’) in the year prior to her death. That relationship also appears to have involved family violence.
Ms Gatt commenced using illicit substances at the age of 16, a habit that persisted up until her death. After having her first child at the age of 22, she lived transiently for a number of years before accessing stable accommodation at 2/57 Lambeth Street, Kensington, through the Department of Health and Human Services (‘DHHS’) in 2009. She remained at this residence until her death. Both Ms Gatt and the applicant were in receipt of Centrelink benefits.
Ms Gatt was last seen alive by Rei-Paku and members of Victoria Police on the morning of 19 April 2017, following an incident in which the two women claimed that a third person had stolen Ms Gatt’s house keys and sexually assaulted Ms Gatt.
On 3 January 2018, police attended Ms Gatt’s home to serve a witness summons in an unrelated matter. They entered through the unlocked front door and were met by a distinct odour that led them to discover Ms Gatt’s deceased body protruding from underneath a blanket in the bathtub. The extent of decay was such that Ms Gatt’s cause of death, thought to have occurred some eight months earlier, remains undetermined.
An investigation into the circumstances of Ms Gatt’s death was commenced following discovery of her body, utilising investigative methods that included the use of covert operatives and surveillance devices. During the course of the investigation, both the applicant and Rei-Paku, in addition to a number of other persons, admitted to having entered Ms Gatt’s home and observed her deceased body in the bathtub during the course of the intervening months. However, no other persons have yet been charged in relation to this matter.
As indicated, Ms Gatt’s cause of death could not be determined by a post-mortem examination due to the severity of decomposition to her body. However, it is the Crown case that the following matters, inter alia, support an inference that violence was involved in Ms Gatt’s death:
·her pants and underwear were pulled down to her ankles;
·she had a cord wrapped around her torso and legs;
·her body was positioned on top of a shower curtain that appeared to have been forcefully removed from its hanger, as evidenced by the broken shower rings in the bathtub;
·the bathroom window was broken and a number of items were out of place, including the bar from the towel rack which was located on the ground outside the broken window; and
·her blood was located on the floor directly below the broken window, and in a blood spatter pattern located in the hallway.
Insofar as the applicant is alleged to have been the perpetrator of the asserted violence that resulted in Ms Gatt’s death, the respondent relies on, inter alia, the following matters as forming part of a circumstantial case against the applicant:
·on 25 June 2015, Ms Gatt applied to have her Centrelink payments deposited into the applicant’s bank account as her payment nominee. The applicant continued to receive and spend these payments up until February 2018, some 10 months after Ms Gatt’s death, which is said to indicate that he knew that Ms Gatt would not be returning to collect her payments;
·the applicant ceased making contact with Ms Gatt’s phone from 20 April 2017, the day after she was last seen alive. He had been in regular contact with Ms Gatt prior to this date, specifically, on 155 occasions between 1 January 2017 and 20 April 2017;
·the applicant wrote and sent a number of letters to Ms Gatt following her death in what is alleged to have been a ruse to make it seem that he believed Ms Gatt was still alive;
·on 4 May 2017, the applicant falsely advised the Ozanam Community Centre that Ms Gatt was in a psychiatric ward. This falsehood was repeated by the applicant to a number of different agencies and associates thereafter;
·from 28 June 2017, one of the applicant’s associates commenced sending him text messages purporting to be Ms Gatt. The applicant relied on his communications with this phone number, which continued up until January 2018, as evidence that he believed that Ms Gatt was alive and in a psychiatric ward. Notwithstanding this, it is noted that the applicant had already been advising people that Ms Gatt was in a psychiatric ward more than a month before this exchange commenced. Further, during a conversation recorded by a listening device on 16 March 2018, the applicant admitted to knowing that it was an associate sending him these messages and not Ms Gatt.
·in August 2017, the applicant took several associates to Ms Gatt’s residence to show them a deceased body in the bathtub. The applicant has since made inconsistent statements about whether he knew or believed that this was Ms Gatt’s body (in any event, the discovery of this body was not reported to police);
·during interviews with police, the applicant demonstrated detailed knowledge of the crime scene. He also provided theories as to the cause of the broken window and the hallway blood splatter. After observing the blood splatter, the applicant opined that Ms Gatt was likely to have been kicked to the side of the head while on her hands and knees. Relevantly, this is fairly consistent with expert forensic analysis that suggests the blood splatter occurred while Ms Gatt was on ‘all fours’, seated or bending over.
·the applicant made a significant number of inconsistent statements throughout the course of the investigation, including in relation to alternative suspects, the crime scene and Ms Gatt’s whereabouts and his last sighting of her.
The applicant
The applicant is a 53 year old man. He has a longstanding addiction to heroin, spanning over 32 years. Both of his parents are said to be deceased,[16] and he has no contact with any of his four siblings. Notwithstanding claims that the applicant worked as a tattoo artist and at an abattoir, there is little evidence of him having any employment history and it is of note that the applicant has been receiving Centrelink benefits since 1997. For several months prior to his arrest, the applicant was residing in a unit in Reservoir through the Sacred Heart Mission. Prior to this, he was living transiently. The applicant is said to have a number of mental health issues that are not particularised or supported by evidence, and reports engaging in self-harm while in custody.
[16]See Affidavit in Opposition to an Application for Bail of April Watson affirmed 20 July 2020, Exhibit AMW2 9 (‘Affidavit in Opposition’). Cf Affidavit in Support of Application for Bail of Brett Tait affirmed 10 July 2020, [13].
Criminal history
The applicant has a criminal history spanning between 1983 and 2019, predominantly involving offences relating to dishonesty, driving and drug use and possession. His criminal record also includes four counts of failing to answer bail[17] and two counts of failing to comply with a community based order.
[17]Notwithstanding that the informant’s report sets out five occasions on which the applicant is alleged to have failed to answer bail between 2016 and 2019, this offence is only recorded four times on applicant’s criminal record in 2004, 2014 and 2019 (two counts). Cf Affidavit in Opposition, Exhibits AMW1 and AMW2, 7.
The applicant’s contentions
The applicant submitted that exceptional circumstances are established based entirely on what are said to be the significant weaknesses of the Crown case, in that:
·the case against the applicant is entirely circumstantial;
·Ms Gatt’s cause of death is undetermined, and, therefore, it cannot be established that violence or foul-play were involved (let alone violence or foul-play at the hands of the applicant);
·Ms Gatt’s time of death is unknown;
·notwithstanding a protracted investigation involving covert operatives, at most the Crown can only establish that:
o the applicant was at Ms Gatt’s home at a time after she is thought to have been deceased;
o the applicant — a drug addict with mental health issues — made inconsistent statements to police over the course of an extended investigation; and
o the applicant — who had been receiving Ms Gatt’s Centrelink payments long before she disappeared — continued to receive those payments after she disappeared without notifying Centrelink.
In addressing the surrounding circumstances more broadly, the applicant relies on the following:
(a)Criminal history
It was submitted that the applicant’s criminal history is limited, largely dated, and not relevant given that it mostly involves dishonesty and drug offences. While the applicant has a history of failing to answer bail, it was submitted that any future risk of this occurring could be mitigated by appropriate conditions of bail.
(b)Accommodation
It was submitted that accommodation services cannot procure accommodation for the applicant unless he has a confirmed release date, and, therefore, no immediate accommodation options can be proposed on behalf of the applicant. To this end, it was submitted that the applicant’s current lack of accommodation should not be an obstacle to the grant of bail, particularly in view of what are said to be the profound weaknesses of the case (and also noting that the applicant’s previous accommodation was only forfeited in the context of his remand in the current matter). However, if a lack of accommodation were to be the only obstacle to a grant of bail, it was submitted that the application should be adjourned to a future date so that suitable accommodation can be obtained with a known release date in mind.
(c)Delay
It was submitted that the applicant is likely to experience longer delays than would ordinarily be expected due to the impact of the current health crisis on the justice system.
(d)Vulnerabilities and proposed treatment
The applicant is said to have a history of mental health issues and has been self-harming while in custody.
The respondent’s contentions
The respondent opposed bail on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail, and, additionally, that he is an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.
The respondent relied on the applicant’s history of failing to answer bail and refers to the applicant’s transient lifestyle, noting that this has historically made it very difficult for police to locate him. This issue is exacerbated by the fact that no accommodation options are currently proposed by the applicant. Further, it was noted that reporting obligations have been suspended due to the current health crisis and that compliance checks have proved to be more difficult in the current climate due to strained resources. For these reasons, it was submitted that no conditions of bail could be imposed to ameliorate the risk of the applicant failing to answer bail to an acceptable level.
In addressing the surrounding circumstances, the respondent submitted that the offence of murder is the most serious offence known to the law. This is reflected in the maximum available penalty of life imprisonment, which expresses the condemnation with which the legislature and the community regard the offence.
The respondent contended that the present case is a serious example of the offence of murder, in that Ms Gatt is said to have been killed in her own home by the applicant — a former domestic partner — in circumstances indicative of violence and against a background of extensive family violence. Further, the applicant was the respondent to a FVIO and several active family violence proceedings at the time of Ms Gatt’s death.
In response to the applicant’s submissions regarding the strength of the Crown case, it was contended that the applicant’s summation of the case is oversimplified and selective and did not have regard to the case in its entirety. The respondent disputed that the case against the applicant can be characterised as ‘significantly weak’ and submitted that the evidence in combination forms a strong circumstantial case against the applicant.
With respect to the submissions regarding the applicant’s poor health, the respondent noted that the applicant has a history of misleading others when it comes to his health (including propagating unsubstantiated claims that he had a diagnosis of cancer). Notwithstanding the respondent’s inquires, no independent medical evidence has been obtained to support these claims.
While the respondent conceded that there may be some delay in this matter, it was submitted that any timeframe for delay would only be speculative given that the committal hearing has not yet occurred. Moreover, it was submitted that any potential delay would not be disproportionate given the seriousness of the allegations against the applicant and the likely sentence that would be imposed if he were to be found guilty of Ms Gatt’s murder.
Conclusions
It is clear, and it was accepted by Ms Sarah Thomas, who appeared for the applicant, that the principal argument in support of establishing exceptional circumstances was that the prosecution case is weak or perhaps very weak and I have set out above the matters generally relied upon in that regard.
Although the question of delay was relevant it could not be said that the committal would not proceed in November although that might become more clear at the next mention on 3 August 2020.
Detective Senior Constable Eppingstall from the Homicide Squad gave evidence on the application. He was taken through a number of relevant features of the 105 page summary he had prepared for the brief.
It seems fair to say that the case against the applicant is a circumstantial one. It was conceded by Det Sen Cons Eppingstall that some features of the case are stronger than others.
The most significant matters appear to be that:
·the relationship between the deceased and the applicant was a difficult one marked by incidents of violence;
·the applicant continued to receive the deceased’s Centrelink benefits after her disappearance;
·the applicant had said that he paid those benefits to Rei-Paku;
·it could be reasonably established that the deceased was not living in her home after late April 2017;
·the applicant asserted that the deceased was in the Royal Melbourne Hospital with no contact permitted for 8 months;
·the applicant (and others) discovered the body of the deceased in about August 2017 and the applicant (and others) did nothing to inform the authorities;
·that the applicant asserted that the body was not that of the deceased but later conceded that he knew that it was her;
·that it was open to conclude that the applicant and the ‘witness’ Guiseppe Riggio had concocted a number of SMS exchanges to make it appear that the deceased was still alive; and
·the applicant had given a series of different scenarios of the deceased’s disappearance.
Ms Thomas put on the applicant’s behalf that there were a number of competing hypotheses as in relation to much of material so that it would be very difficult for the prosecution to make out the case beyond reasonable doubt.
Ms Thomas, accepted in argument, that unless I was satisfied that it was a weak case the applicant could not make out exceptional circumstances.
Ms Thomas placed some reliance upon the fact that cause of death could not be established. There are however some features of the case which could enable a jury to conclude that the only explanation for the rather complex post-offence conduct was that the applicant had murdered the deceased. Again, that is a matter for future consideration and analysis.
When I made it clear that I did not regard this as a weak case Ms Thomas did not press the matter further. I dismissed the application and said that I would publish my reasons.
Two other matters should be noted. I indicated to Ms Thomas that it might be that in the future delay could be more significant. In an extreme case delay of itself might constitute ‘exceptional’ circumstances.
During the evidence of the Informant the applicant chose to remove himself from the place where he was connected to the hearing by Webex and to disconnect the session. After speaking briefly to Ms Thomas about it I decided to complete the hearing. It is not necessary for an applicant to be present during a bail hearing.
Another difficulty arises in that the applicant is effectively homeless. He lost his accommodation when he went into custody. He has been offered through the Court Integrated Services Program (‘CISP’) four nights’ accommodation at a hotel in Coburg. That would be unsatisfactory because it is not possible to say that he would in that four day period be able to obtain more long-term accommodation. He and his advisors are faced with the difficulty that the accommodation services will only deal with persons in the position of the applicant if there is a date which is certain as to when the accommodation might be required. It follows that in any future applications the matter might need to be managed in stages so that accommodation can be arranged. I should not be taken to have prejudged the matter. The respondent maintains strong opposition to bail on the basis that the applicant is an unacceptable risk, in particular, of failing to answer bail, which I have not yet considered.
Under the circumstances I was not satisfied that exceptional circumstances had been made out and the application was dismissed.
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