Re Application for Bail by Cohrs
[2020] VSC 607
•21 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0170
| IN THE MATTER OF the Bail Act 1977 |
| and |
| IN THE MATTER OF an Application for Bail by Paul COHRS |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 September 2020 |
DATE OF JUDGMENT: | 21 September 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Cohrs |
MEDIUM NEUTRAL CITATION: | [2020] VSC 607 |
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CRIMINAL LAW – Application for bail – Murder – Exceptional circumstances not established – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Self-represented | |
| For the Respondent | Miss M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Paul Cohrs (‘the applicant’). He is self-represented.
The applicant is charged with the murder of his mother, Bette Cohrs-Schulz (‘the deceased’), who was shot dead at her home in Red Cliffs on 30 October 2018. Her death occurred just hours after the applicant is alleged to have fatally shot his brother, Raymond Cohrs (‘R Cohrs’), at a property in Rufus New South Wales (‘NSW’).
Following both incidents, the applicant was located walking through shrub in Rufus and carrying a shotgun. As police approached, he fired the shotgun into his own chest. He was conveyed to Mildura Base Hospital and later the Alfred Hospital in Melbourne for treatment of his injuries. He was arrested by Victoria Police in relation to the deceased’s murder on 6 November 2018 and has been in custody since. A warrant to arrest issued by NSW Police in respect of the murder of R Cohrs, however, this is yet to be served due to his continuing remand in Victoria.
On 22 July 2020, the applicant filed an application for bail in this Court.[1] This matter is next listed in this Court for a directions hearing on 28 September 2020. The original trial date of 13 July 2020 has been vacated and no future trial date has been set.
[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’).
The applicable legislation
For the purposes of the Bail Act 1977 (‘the Act’), murder is a sch 1 offence.[2] It follows that bail must be refused unless the Court is satisfied that exceptional circumstances exist that justify the grant of bail.[3] The applicant bears the burden of discharging this onus.[4] In considering whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those prescribed in s 3AAA.[5]
[2]The Act, sch 1, item 2.
[3]Ibid ss 4AA(1), 4A(1)-(1A).
[4]Ibid s 4A(2).
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[6] 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).[7] 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.[8]
[6]The Act, s 4D(1)(a).
[7]Ibid s 4E(2).
[8]Ibid s 4E(3).
Further, pursuant to s 5AAAA(1), a Court considering a grant of bail must make inquiries of the prosecutor as to whether there is in force a family violence intervention order (‘FVIO’), family violence safety notice or a recognised domestic violence order against the applicant. In the present case, there are no orders of this kind in place.[9] Notwithstanding this, various persons including the applicant’s family members have expressed grave fears for their safety if the applicant were to no longer be on remand.[10] Accordingly, if bail is granted, the respondent intends to immediately seek family violence orders on behalf of the applicant’s family members.[11]
[9]See Affidavit in Opposition, sworn by Jennifer Taylor on 26 August 2020, Exhibit JRT 1 [95] (‘Affidavit in Opposition’).
[10]Ibid [97].
[11]Ibid [98].
Finally, when interpreting the Act, the Court must have regard to the guiding principles in s 1B(1) of the Act.[12]
[12]The Act, s 1B(2).
The alleged offending
In order to properly appreciate the context of the alleged offending, it is necessary to summarise the events leading up to the death of the deceased.
The applicant’s parents started a family business in the Mildura and Red Cliffs areas in the 1970s. The business was managed by the applicant’s father, and each of the applicant and his three siblings worked for the business at various times. After the death of the applicant’s father by suicide in 1984, R Cohrs and the applicant assumed management responsibilities and the family business expanded.
One of family companies owned a property in Rufus in NSW, known as Lake Victoria Station. This property was occupied by the applicant and his wife at the time of the alleged offending. It had historically been understood between the applicant and R Cohrs that the applicant would eventually purchase Lake Victoria Station from the family business.
In 1991, the deceased retired from the day-to-day operations of the family businesses and this responsibility was subsumed by R Cohrs. From 2012, the applicant’s relationship with R Cohrs began to deteriorate in the context of disputes arising from the family businesses. In May 2016, the deceased sent a number of emails to the applicant to the effect that she believed he was responsible for placing the family businesses under financial strain due to his use of business accounts for personal expenditure. The Crown relies on these communications to demonstrate that the applicant knew and believed that the deceased was aligned with R Cohrs with respect to business disputes.
By September 2016, the family disputes had escalated such that R Cohrs commenced civil proceedings in this court, which were ongoing at the time of the alleged offending. The applicant thereafter developed the belief that R Cohrs was involved in their father’s death, and that the deceased had assisted him to cover this up.
In November 2016, the deceased confided in a friend that she feared the applicant may shoot her as a result of the ongoing business dispute. In 2018, she expressed a similar concern to her son-in-law.
In 2018, R Cohrs organised for a number of properties owned by the family businesses, including Lake Victoria Station, to be appraised in preparation for sale to pay off business debts. A real estate agent, Michael Fernandez, was engaged to appraise Lake Victoria Station on 30 October 2018. This arrangement was communicated to the applicant’s lawyer the day prior, who advised R Cohrs’s lawyer that the prospect had caused the applicant distress such that he did not consent to R Cohrs attending the property. The response was that R Cohrs was entitled to attend.
On the afternoon of 29 October 2018, the applicant used his home computer to create a document purported by the Crown to be a suicide note, which outlined his wishes with respect to the division of his assets upon his death.
At 9.55 am on 30 October 2018, pursuant to their arrangement, R Cohrs and Fernandez met at Lake Victoria Station. The applicant arrived at the same time and opened the gate to the property, greeting Fernandez and questioning why he was spending time with a ‘liar and a thief’.
While at the property, the applicant produced a double barrel shotgun It is alleged that he walked towards R Cohrs and discharged the firearm at him twice in quick succession from a distance of approximately 10 feet away. R Cohrs fell to the ground. The applicant momentarily switched his attention to Fernandez, attempting to assure him that he would not hurt him and that R Cohrs ‘deserved it’, had ‘ruined [their] lives’ and was ‘killing [his] wife’. After about a minute, the applicant returned to R Cohrs and allegedly asked him what it was like to feel pain and whether he’d had enough pain. It is alleged that the applicant then shot R Cohrs in the torso and then in the face.
Afterwards, the applicant took Fernandez inside the shearing shed, advising him not to look at the body of R Cohrs, and handcuffed him, informing him that someone would return to get him. The applicant left Lake Victoria Station at approximately 10.15 am. His vehicle was captured on CCTV at various locations consistent with him travelling to the deceased’s house in Red Cliffs.
Between 11.28 am and 11.36 am, it is alleged that the applicant attended the deceased’s house. At the time, the deceased was minding her four year-old great grandson, BC. BC is also the applicant’s grandson. The applicant entered the house armed with the same shotgun and met the deceased in the kitchen. He directed her to take BC to another room. When the deceased return to the kitchen, it is the Crown case that the applicant fatally shot her once to the chest before leaving the house.
Between 11.36 am and 12.20 pm, the applicant’s vehicle was captured at various locations consistent with him travelling between the deceased’s residence and Wentworth in NSW, including a Wentworth service station.
At 12.21 pm, the applicant contacted his son, Karl Cohrs (‘K Cohrs’), and asked him to go to Lake Victoria Station to take care of the applicant’s wife. The applicant reportedly sounded distressed and said that, ‘It’s done, it’s over’.
Between 12.25 pm and 12.26 pm, the applicant attempted to contact both Red Cliffs Police Station and Mildura Police Station. His call was likely met by automated answering services. At 12.27 pm, the applicant contacted ‘000’ and, pretending to be the deceased’s grandson, reported that she had been shot by an unknown person. He did not provide much information but provided the deceased’s address and indicated that someone should get there urgently because there was a young child present.
At 12.28 pm, the applicant contacted his daughter, Kellie Ricardi, and said, ‘I’ve just shot Raymond and I’ve shot my mother’. He told Ricardi not to worry about him and said that he was at peace with what he had done.
At 12.36 pm, the applicant contacted his solicitor’s office and left the following voice message:
Michael, Paul Cohrs, how you going? It appears the court case is over (inaudible). I just shot Raymond dead and I’ve also shot my mother dead. I don’t believe that I’ll live the rest of the day out …
At 1.00 pm, the applicant returned to the shearing shed at Lake Victoria Station. He released Fernandez and informed him that, ‘I’ve been to Mildura. I’ve shot my mother. I’ve seen the kids and I’m going to go and commit suicide.’
The applicant escorted Fernandez to R Cohrs’ vehicle and instructed him to go to the Wentworth Police Station and advise police that he could be found at ‘Lock 7’, located approximately 10 minutes from Lake Victoria Station. Fernandez drove away in R Cohrs’ vehicle as the applicant drove to Lock 7. A suicide note was left at Lock 7 that read, in part, as follows:
I looked into our future and realised Raymond will not stop even if we win. I cannot bear to see my life’s work sold, only you understand the blood sweat and tears I had no family life in fact neglected them for all of this. I made
mumMrs Schulz take Bodie out of the room, she denied any wrong doing.
The note indicated that there was another note in the glovebox of the applicant’s wife’s vehicle. That note was recovered and read, in part, as follows:
I have no regrets in life except for the trust I placed in my mother and my brother Raymond… I cannot sit and watch Raymond at his mothers [sic] direction destroy my wifes [sic] and our family life on a daily basis… I promised my wife that I would not do what my father did… but I do not believe that he committed suicide, the evidence clearly suggests it was raymond [sic] that murdered him, and I believe my mother covered for him.
At 1.07 pm, police attended the deceased’s house and discovered her body on the kitchen floor. The deceased’s great-grandson was present in the house and was taken outside.
At 1.12 pm, Fernandez contacted police to report what he had witnessed.
At around 3.30 pm, police observed the applicant walking through scrub and carrying a shotgun near Lock 7. As they approached, the applicant discharged the shotgun into his own chest. He fell to the ground and police officers immediately administered first aid. The applicant repeatedly stated, ‘I can’t believe I’m not dead’.
When questioned as to what had happened, the applicant responded, ‘I just shot my brother and my mum … [because] they are the most evilist [sic] people in the world’.
On 1 November 2018, a post mortem examination was conducted on the deceased. Her cause of death was determined to be a gunshot injury to the chest.
Between 1 and 7 November 2018, a forensic examination of the applicant’s vehicle located two sets of handcuffs, four shotgun cartridges and a phonebook opened to details of the Red Cliffs Police Station and the Mildura Police Station.
On 6 November 2018, the applicant was arrested at the intensive care unit of the Alfred Hospital. He was deemed unfit for interview due to his physical condition. On 3 January 2019, he declined to participate in a record of interview.
The applicant
The applicant is a 60 year old man. He is the youngest of four siblings to parents who are now both deceased. He is married to Leanne Cohrs and together they have three adult children. Prior to his remand, he was the President of the Mildura branch of the Sport Shooting Association and had nine firearms, including the alleged murder weapon, registered in his name in NSW. The applicant has no criminal history.
The applicant’s contentions
The applicant has prepared and filed two affidavits dated 21 July and 4 September 2020 in support of bail. Those affidavits detail a number of issues that the applicant wishes to bring to the attention of the court in respect of both the criminal prosecution and the ongoing civil proceedings involving his other family members. For the purposes of the present application, the following matters are relied upon in support of a grant of bail:
Inability to prepare defence in custody
A major factor relied on by the applicant is an asserted inability to adequately prepare for the trial of this matter while in custody. The applicant cites a number of grievances with the Office of Public Prosecutions, Victoria Police, Corrections Victoria and Port Phillip Prison (where he is presently remanded), whom he states have not complied with various applications or requests made by him to gain assistance in accessing material, including parts of the brief of evidence, while in custody. It is submitted that these issues significantly impede his ability to not only prepare for his criminal matter but also his ongoing civil and family law proceedings. The applicant has issued a large number of subpoenas, some of which are objected to, which have not yet been dealt with by the court. He raises that Victoria Police have refused to provide him with ‘non-disclosable’ evidence (which appears to be a reference to evidence obtained from the personal computer of the deceased), which he says is relevant to the criminal prosecution in that it undermines the asserted motive for the shooting, being the protracted civil litigation between himself and R Cohrs.[13]
[13]Investigators reviewed this personal computer and determined in their view, that it did not contain material of any evidentiary value. For this reason, that material does not form part of the brief of evidence and so has not been served on the applicant. The applicant has stated his belief that the computer contains evidence undermining the asserted motive for the murder. I note that Justice Hollingworth, at a directions hearing on 3 June 2020, questioned the relevance of such material to either bail or to the criminal proceeding in circumstances where a challenge to the asserted motive put forward by the prosecution would not give rise to a defence to the charge of murder.
Further, he relies on the difficult conditions at Port Phillip Prison under which he is expected to prepare his defence, including that he is unable to discuss case details in private because, as a self-represented litigant, his communications with others do not attract privilege in the same way that communications between himself and a legal representative would. In addition, his access to phone calls and printing resources are restricted by financial limitations imposed by the prison; he has limited access to contemporary legal resources; is unable to email or to scan, reproduce or witness documents; and has experienced delays in mail being received (if it is received at all).
Delay
The applicant has been in custody on remand since November 2018, being more than 22 months by the time his bail application is heard. As it stands, no trial date has been set for this matter. There are a large number of subpoenas that require finalisation before the matter can proceed any further.
It is the applicant’s submission that, while he remains self-represented, the progress of this matter will be delayed due to the aforementioned impediments to his ability to prepare for trial while in custody. He also relies on the delays associated with the current global health crisis, citing Hollingworth J’s decision in Re JK.[14]
[14][2020] VSC 160 (Hollingworth J). Particularly, [33] in which her Honour stated ‘Granting JK bail on the strict conditions that I am going to impose is an acceptable alternative to leaving him in custody for an unknown time, in pandemic conditions.’
Suitable accommodation
The applicant proposes to reside at 13 Garden Court in Mildura if bail is granted. This is the residence of his daughter, Kellie Ricardi.
Health issues
The applicant suffers from a number of health issues, including diabetes, asthma, lung damage and a history of severe bouts of pneumonia. In May 2020, while in custody, the applicant suffered a major heart attack. He attributes that event to the stress of being unable to prepare for a court appearance in the context of oppressive custodial conditions. He further submits that he has been denied necessary ongoing treatment for his cardiac issues while in custody.
COVID-19
It is submitted that the applicant is a high-risk of contracting COVID-19 due to his age and compromised health. The fear of COVID-19 is said to cause the applicant great stress given that he is ‘guaranteed to die’ if the virus enters and spreads throughout the prison system. In addition to the health implications of COVID-19, it is noted that the virus has caused the applicant’s time in custody to be more onerous in that he has restricted out-of-cell time and no access to personal visits (with no indication of when this will resume).
Carer responsibilities
The applicant’s wife has suffered a severe breakdown and requires the applicant’s support to navigate the looming civil litigation which threatens financial ruin and the loss of their family home.
Good character
The applicant has no history of violence. He is said to be a model prisoner and has been entrusted with the role of ‘billet inductee’ to help explain the rules and responsibilities to other inmates and to assist them with problem-solving. The applicant also cites a number of personal achievements as evidence of his good character, including the following:
·being a successful company director, property developer, farmer and conservationist;
·serving on various community committees and providing contributions to rural schools;
·being awarded a lifetime membership of the Victorian Sporting Shooters’ Association of Australia (‘SSAA’) in 1997;
·being awarded a 2000 Commonwealth medal for his contributions to sports;
·working with ‘WARRAKOO’ to employ and mentor young offenders, from 1996 to 2014;
·being a councillor and a Deputy Mayor of Wentworth Shire NSW, between 2012 and 2016; and
·being a director on the international board of ‘FCSA’, from 2016 to 2018.
The respondent’s contentions
The respondent opposes bail on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail. The factors relied on in opposition are set out in the affidavit in opposition sworn 26 August 2020, and a statement prepared by the informant, Detective Senior Constable Damon Abbey, exhibited to the affidavit.
It is submitted that the allegations against the applicant is inherently serious and supported by a strong prosecution case, including several confessions made by the applicant to multiple people. While there is likely to be further delay in the matter proceeding to trial, it is submitted that this is not disproportionate given the charge, the strength of the evidence and the likely significant custodial sentence that would be imposed if the applicant were to be found guilty.
To the extent that the applicant or his wife suffer from health issues, or that his personal circumstances present him with challenges in preparing his defence in custody, it is submitted that these circumstances are not exceptional. It is the respondent’s position that the applicant has access to adequate healthcare in custody and it is noted that his wife has managed in the community without his support.
Further, with respect to the applicant’s difficulties in accessing technology while in custody, all attempts are being made to assist him as far as reasonably possible.
Unacceptable risk
The respondent submits that the applicant is an unacceptable risk of endangering the safety and welfare of any person; committing an offence while on bail; interfering with a witness or otherwise obstructing the course of justice in any matter; and failing to surrender into custody in accordance with the conditions of bail.
The respondent’s concerns for the safety and welfare of a number of persons are addressed as follows.
· Michael Fernandez
Fernandez is a key prosecution witness in the present case and in the homicide of R Cohrs. His evidence is the cornerstone of both cases, given that he witnessed the shooting of R Cohrs and received the applicant’s alleged confession to killing the deceased. Fernandez was himself also falsely imprisoned by the applicant and has since made a claim for compensation that resulted in a $1 million freezing order over the applicant’s assets. The applicant has indicated that he believes the freezing of his assets to be unlawful and part of a greater conspiracy. While the applicant has not specifically nominated Fernandez as being ‘at fault’ for his situation, it is noted that Fernandez is in a position to greatly influence the outcome of the applicant’s criminal matter. To this end it is noted that the alleged offending demonstrates a proclivity on the part of the applicant to eliminate perceived threats in ongoing disputes.
·Leigh Anderson
Anderson was the solicitor acting for R Cohrs in the civil dispute with the applicant at the time of his death. Anderson continues to work in the Mildura area and acts for some of the applicant’s family members in their civil claims against the applicant. The applicant has twice apportioned responsibility to Anderson for the homicides, first in a suicide note and then in a voicemail to his own solicitors. Both the respondent and Anderson hold grave concerns for Anderson’s safety and the safety of his family if the applicant is granted bail.
·Julie Ann Cohrs
Julie Ann is the applicant’s sister. She has previously experienced animosity from the applicant due to her alignment with R Cohrs. This enmity is compounded by the fact that Julie Ann is currently pursuing a compensation claim against the applicant as a result of the homicides.
·Kristy Cohrs
Kristy is the applicant’s daughter. She was previously estranged from the applicant due to her alignment with R Cohrs. In his suicide note, the applicant expressly stated that Kristy should not receive any of his assets. Kristy’s tenuous relationship with the applicant is compounded by the fact that she is currently pursuing a compensation claim against him as a result of the homicides. A claim is also being pursued on behalf of Kristy’s son, BC, who was present in the house at the time the deceased was killed.
·Julie Maree Cohrs
Julie Maree was the wife of R Cohrs. She too is pursuing a compensation claim against the applicant.
The respondent notes that the homicides of R Cohrs and the deceased occurred in the context of financial disputes. There was no history of family violence or forewarning leading up to those homicides. Against this background, the respondent expresses serious concerns that the compensation claims being pursued by the applicant’s family members may place them at significant risk of harm if the applicant were to be granted bail.
This risk is exacerbated by the applicant’s demonstrated access to firearms. At the time of the alleged offending, there were nine firearms registered to his name and he was the President of SSAA in Mildura. He was the founding member of this branch of the SSAA and has significant ties to its members. While the nine registered firearms have been seized, the respondent voices concern that the applicant’s contacts within the SSAA could provide him access to additional firearms. Further, there are reports from a number of sources that the applicant may have a supply of unregistered firearms hidden at Lake Victoria Station.
With respect to interfering with witnesses, the respondent notes that several employees of the Cohrs family businesses have provided statements regarding the pre-existing history of animosity between the applicant and R Cohrs to support the case against the applicant. It is the respondent’s submission that the applicant will attempt to interfere with these witnesses if granted bail, in order to minimise his culpability.
In response to the applicant’s material, the respondent notes the following:
Suitable accommodation
The respondent takes issue with the proposed bail address. Ricardi is a prosecution witness, who has previously provided a statement and a video-recorded re-enactment of the applicant’s confession to her regarding his killing of R Cohrs and the deceased. The respondent expresses concern that the applicant’s presence in Ricardi’s home is likely to influence Ricardi’s evidence.
Further, Ricardi’s address is in close proximity to a number of other witnesses listed in the brief of evidence. It is submitted that the applicant would be highly likely to come into contact with witnesses if he were to be residing with Ricardi.
Accordingly, it is submitted that the proposed address is not suitable.
Health issues
It is submitted that none of the health issues raised by the applicant fall outside the scope of Corrections Victoria’s treatment capabilities. The applicant continues to have access to medical services for treatment of his ongoing health issues as required. With respect to the applicant’s specific complaints about the handling of his major heart attack, it is submitted that the fact that the applicant was revived in custody is evidence of the applicant’s access to effective medical treatment.
COVID-19
It is conceded that some hardships may arise as a result of the measures taken to prevent COVID-19 from entering and spreading throughout the prison system. Attempts are being made to address and mitigate these hardships where possible, as outlined in two affidavits sworn by Jennifer Hosking, Acting Assistant Commissioner of Corrections Victoria.[15]
[15]Affidavit in Opposition, Exhibits JRT 2 and JRT 4.
Ms Hosking deposes that, as at 21 August 2020, there were five active cases of COVID-19 across the entirety of the Victorian prison system. While the specific location of each of these cases is not known, it is submitted that the applicant is in a prison with an established protective quarantine unit and that any person who contracted the virus would be in that unit. In the unfortunate event that the applicant were to contract COVID-19, he would continue to have access to resources to prepare his defence. Further measures to establish quarantine units for transfer prisoners, not just new prisoners, have also been implemented.
It is submitted that the COVID-19 pandemic is only one part of the surrounding circumstances.[16]
[16]Re Tong [2020] VSC 14 (Tinney J)
Carer responsibilities
The applicant’s wife is said to have suffered anguish due to the civil dispute between the applicant and R Cohrs. It is submitted that the applicant’s continued reliance on this cannot be sustained in view of R Cohrs’ death. Further, the respondent notes that the applicant purports to be the only person available to assist his wife with day-to-day tasks and improving her mental health. This assertion is disputed in view of the fact that the applicant’s wife has three adult children that could assist her.
Good character
The respondent does not refute any previous awards received by the applicant or charitable organisations he is said to have been involved in throughout his adult life. However, while these involvements may establish community ties, it is submitted that these ties did not go so far as to prevent him from committing a double-homicide. To the extent that the applicant relies on his lifetime membership at the SSAA, the respondent submits that this only goes to demonstrate his proficiency with firearms which is relevant to the alleged offending.
Access to material
After some delay due to technological incompatibilities, the applicant has been provided with a digital copy of the brief of evidence against him. Other disclosable material requested by the applicant is either awaiting service or awaiting conversion to a suitable format. It is the respondent’s position that much of the material requested by the applicant has no bearing on the criminal case against him and is simply a ‘fishing expedition’ to leverage information for his ongoing civil litigation. It is the respondent’s position that the deceased’s privacy rights would be circumvented if the applicant were to gain unfettered access to her private communications as requested.
Ability to prepare defence in custody
The respondent has gone to extensive efforts to ensure the applicant has access to material in a format that is accessible and appropriate in a custodial setting. It is submitted that any issues raised with respect to access to internet, resources and unmonitored communication are not within the respondent’s control. These matters are addressed in the affidavits of Jennifer Hosking.[17]
[17]Affidavit in Opposition, Exhibits JRT 2 and JRT 4.
Delay
It is noted that the case of Re JK,[18] relied upon by the applicant regarding delay relates to a youthful offender charged with a sch 2 offence. It is submitted that this has limited bearing on the applicant’s circumstances given the material differences in the particulars of each case.
[18][2020] VSC 160 (Hollingworth J).
Conclusions
It is necessary to consider whether exceptional circumstances exist that justify the grant of bail. At the hearing the applicant told me that he was experiencing continuing difficulties in arrangements being made for him to attend hearings. He said that he had difficulties that very morning because when he first enquired he was told that he did not have court. It was eventually clarified but the applicant said that he found such matters very stressful which is understandable. An affidavit has been provided from Port Phillip Prison which does adequately answer what happened on Monday morning. I accept that the applicant certainly perceived that there was to be no court hearing and he was distressed about it. I have taken that into account in his favour. The applicant also told me that he had ongoing problems with access to the library and I will continue to take that up with the authorities. His specific complaint that he had not been able to get access on Sunday appears to be true but I have been informed the library is not open on Sundays.
I am prepared to accept the following matters
· The applicant will have great difficulty in preparing his defence in custody if he is self-represented
· The applicant has significant difficulties with his health and at 60 years of age is in a higher risk category regarding COVID-19
· The applicant’s time in custody is more difficult because of COVID-19
· There will be significant delay in the hearing of the applicant’s trial because of COVID-19 and the fact that he is self-represented
· That the applicant regards himself as the most appropriate person to care for wife who is ill
· Prior to these matters the applicant was a person of exemplary character
In many cases those matters would be sufficient to constitute exceptional circumstances but that is not the end of the matter. Miss M Mahady who appeared for the respondent submitted that I was obliged to have regard to the surrounding circumstances as set out in s3AAA of the Act and in particular (1) (a) (b) (j) and (l)
3AAA Surrounding circumstances
(1)If this Act provides, in relation to a matter, that a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
…
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
…
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
Miss Mahady also relied upon the matters set in the Affidavit of Jennifer Taylor and in particular the report of the informant DSC Abbey. I pointed out that it was the applicant’s decision to represent himself because legal aid was available and I encouraged him to take up that offer.
I am satisfied that this is a particularly strong prosecution case for a very serious example of the crime of murder committed in the near presence of the primary victim’s 4 year old great grandchild, his own grandchild. The child was left in the house with the body of his great grandmother. Murder is a standard sentencing offence for which the standard sentence is 25 years. I would not consider this as a standard offence. The matters in surrounding circumstances which would be favourable to the applicant have been largely covered by the matters I would find in his favour.
The applicant’s submission that he might have the defences of temporary insanity, ‘automaton’ (automatism) or defence of another seem, on the available material, to be quite unrealistic. I explained to the applicant that there is no defence of temporary insanity in Victoria but the defence is that of mental impairment.
I am not satisfied that the applicant has established exceptional circumstances.
If I am wrong about exceptional circumstances I indicate that I am satisfied that the applicant is an unacceptable risk of committing further offences and/or endangering the safety or welfare of any person. The applicant told me that that he would not do anything to jeopardise spending time with his family or the family name and I interpreted that as meaning in part that he did not bear animosity towards those named in the affidavit in opposition to bail. He told me he only wanted to get out on bail and win his civil case from which he would derive sufficient funds to conduct his defence. I am satisfied that the applicant has an unrealistic view of what might be achieved in the civil litigation and the time frame in which it might be achieved. The details of the civil proceedings discussed at the directions hearing before Hollingworth J on 3 June 2020 indicate how complicated the civil proceedings have become. I am satisfied that the applicant might become frustrated with those proceedings and react to that frustration in a way that would be unlawful. In considering unacceptable risk I am also obliged to have regard to surrounding circumstances as set out above and I have done so.
It was raised on the application that the applicant might be subject to arrest on the NSW warrant if he was released on bail here. That matter remains unresolved.
In the circumstances, the application for bail will be refused.
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