Re application for bail by Oakley
[2021] VSC 183
•19 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0034
IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an application for bail by Cameron OAKLEY
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2020 |
DATE OF JUDGMENT: | 19 April 2021 |
CASE MAY BE CITED AS: | Re application for bail by Oakley |
MEDIUM NEUTRAL CITATION: | [2021] VSC 183 |
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CRIMINAL LAW – Murder - Application for bail refused – Exceptional circumstances not established.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Emma Turnbull Lawyers |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 6 August 2019, Cameron Oakley (‘the applicant’) was arrested and charged with the murder of Lachlan Hutchins (‘the deceased’). He has been remanded in custody since that date.
On 4 March 2020, the applicant was committed to stand trial in this Court. The trial was originally listed to commence on 19 October 2020, but has since been adjourned to 26 April 2021 in light of COVID-19 restrictions.
On 13 October 2020, the matter came before me as an application for bail.[1] The applicant has not previously applied for bail in this matter. I refused the application and indicated that I would provide my reasons. These are those reasons.
[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
Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 (‘the Act’).[2] It follows that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[3] In determining whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’ outlined in s 3AAA of the Act.[4]
[2]Bail Act 1977 (Vic) (‘the Act’) sch 1, item 2.
[3]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[4]Ibid s 4A(3).
A significant issue at the trial of this matter will be whether the applicant can establish the defence of self-defence and, if established, whether the prosecution would then be unable to disprove self-defence beyond reasonable doubt. If successful, the applicant will be acquitted of murder, although a charge of manslaughter may be open. This Court has previously held that if, on a proper analysis of the evidence, there is a good prospect of a verdict less than murder, such a finding is capable of meeting the threshold of exceptional circumstances justifying the grant of bail.[5]
[5]Memery v The Queen [2000] VSC 495.
More recently, the Court of Appeal in El Nasher v Director of Public Prosecutions[6] held that a combination of delay, onerous custodial conditions, and the relative weakness of the prosecution case may, when considered with all relevant circumstances, compel the conclusion that exceptional circumstances have been established.
[6][2020] VSCA 144 [42] (Priest, T Forrest and Weinberg JJA).
If satisfied that exceptional circumstances exist, the Court must apply the ‘unacceptable risk test’.[7] That is, bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[8] In considering whether any relevant risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[9]
[7]Ibid s 4D(1)(a).
[8]Ibid s 4E(2).
[9]Ibid s 4E(3).
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[10]
[10]Ibid s 1B(2).
The alleged offending
By way of background, the applicant and the deceased both lived in the Portland area, east of Warrnambool, and had known one another for a number of years. There existed between them a mutual animosity. The applicant had a brief relationship with the deceased’s partner years prior, although it is not suggested that their difficulties arose from jealousy regarding that relationship.
The evidence is that the relationship between the two men became further strained in the months leading up to the offending, evidenced by two incidents involving confrontations between the pair. In the first incident, which occurred some two to three months’ prior to the alleged murder, the deceased allegedly threw a soft drink bottle at the applicant’s car after spotting him driving towards him in the carpark of a local Woolworths, which lead to a physical altercation between the two in which the deceased punched the applicant at least once. The applicant alleges that the deceased threatened to kill him in front of his child. The applicant then retrieved a wrench or other tool from his car and chased the deceased with it for a short time before returning to his car and driving away.
In a further incident on 29 July 2019, the applicant drove past the deceased and his partner and motioned with his hand in a way that mimicked pointing and shooting a gun at the deceased. The pair exchanged a number of abusive and threatening Facebook messages following this incident, which culminated in an agreement to meet up for a fight at the end of Pile Court, Portland nearby to the deceased’s residence, in the early hours of the following morning.
The deceased and the applicant attended Pile Court with other witnesses, who observed the applicant in possession of a large kitchen knife, while the deceased was also reportedly armed with a vacuum cleaner pole and a knife. The pair reportedly goaded each other until the situation was diffused by the deceased’s partner. Later that afternoon, the applicant allegedly sent a text message to his friend, Cameron Hawkins, stating, ‘I told him I’m gunna stab him lol not one word. Hand on blade Nd all’.
On the evening of 5 August 2019, the deceased, his partner and their friend, Colin Parker, drove to a local V-line bus stop to collect the father of the deceased’s partner. At approximately 11.45pm, the group travelled together in Parker’s vehicle to a Woolworths carpark facing Henty Street, Portland.
Around the same time, the applicant was returning home from an evening spent with a friend. He drove along Henty Street and parked his car, a distinctive purple Ford XR6 sedan, in an Aldi parking lot near the entrance to some public toilets. He allegedly exited his vehicle carrying a knife in his left hand before placing it in his pocket. He is depicted on CCTV footage entering the male toilets at 12.17am.
Meanwhile, the V-line bus was running late and the deceased was still present in Parker’s car. Within moments of the applicant entering the male toilets, the deceased stated, ‘stuff this. I’m going to the toilet’. He proceeded to exit Parker’s vehicle and crossed Henty Street, walking towards the public toilets.
The deceased is captured on CCTV footage walking towards the toilets before pausing in front of the applicant’s car, which was parked outside. He can be seen to then walk to the entrance of the toilets and wait outside the door. At 12.19am, the applicant can be seen exiting the toilets while concealing the knife in his right hand. CCTV footage depicts the applicant walking straight towards the deceased, before the two engage in a physical altercation. The deceased can be seen to raise his fist and move to punch the applicant, who retaliates and, using a knife raised in his right hand, stabs the deceased five times to the body and neck as they continue to struggle, while pulling him by his collar of his shirt with the left hand.
Afterwards, the deceased is depicted stumbling backwards with his shirt covering his face before removing it and running back towards Parker’s car. The applicant can be seen getting into his car and driving away.
As he reached Parker’s car, the deceased yelled that he had been stabbed and was immediately driven to the Portland Hospital for treatment. Despite resuscitation attempts, he was pronounced dead at 1.38am. A post-mortem examination determined his cause of death to be ‘sharp force injuries to the chest, abdomen and neck’. At least one of those injuries penetrated his right lung and heart. The deceased was found to have methylamphetamine and cannabis in his system at the time of death.
Following the altercation, the applicant drove to his home and parked his car at the rear of his property, out of view of the public. He used an angle grinder to cut the knife into smaller pieces which he then threw into a scrap yard located next door. He then showered before sending a number of text messages to associates in which he made admissions to the conduct, including, ‘I fuckin stabbed Lachy…like 6 times’, ‘I think he’s alive’, and ‘if you don’t hear from me you know why’. Later that morning, he turned his phone off and handed it to his friend, Cameron Hawkins, stating that he did not want anyone messaging him.
The applicant was arrested later that day at his partner’s residence, having made himself known to police. During his record of interview, he stated that he and the deceased had a natural dislike for each other and that he had the knife in his pocket because he had used it earlier in the day but that he kept it on him at all times after the deceased had pulled a knife on him during the incident at Pile Court. He stated that he had heard someone outside the toilets but did not want to believe that it was the deceased, although he later stated he could hear the deceased’s voice.
The applicant initially stated that he pulled the knife out of his pocket when the deceased came at him and that he observed the deceased to be in possession of a steak knife on his right hip. When confronted with CCTV footage of the incident, which demonstrates the knife being held by the applicant as he left the toilet block, he stated:
I knew [the deceased] was out there. I could hear his voice. I knew it. I didn’t want to fuckin’ go out there because I knew what was gunna happen. Yeah, I pulled [the knife] out ‘cause I knew that he was out there’.
He stated that he thought the deceased was going to kill him and that he had no intention to kill the deceased himself. He admitted to destroying the knife and stated that he had thrown his mobile phone into the sea that morning because he was scared. The applicant stated that he sustained a sore cheek as a result of the fight.
In addition to the CCTV footage and the applicant’s record of interview, the prosecution seek to rely on a recorded Arunta prison call between the applicant and his partner on 30 August 2019, in which he allegedly discussed aspects of the offending. As evidence of the applicant’s state of mind following the stabbing of the deceased, the prosecution will also seek to rely on post-offence conduct, including fleeing the scene, hiding his vehicle from view, destroying the knife, handing his phone over to Hawkins, telling police that he threw it into the sea, and purported lies told during his interview. That evidence is likely to be subject to pre-trial rulings as to admissibility.
The applicant
The applicant is 27 years old and is the father of three children aged between four and 11. He has lived in the Portland and Warrnambool area his entire life, most recently in a flat with his partner and two friends, situated at the front of his mother and step-father’s Portland truck depot. He was unemployed prior to the alleged offending, but has a history of employment in various labour roles.
The applicant has a history of cannabis use. A psychological assessment undertaken whilst on remand diagnosed him with symptoms of complex post-traumatic stress disorder (‘PTSD’), anxiety and depression. A further psychological report authored by consultant psychologist, Ian Mackinnon, dated 6 October 2020 expresses the opinion that the applicant’s PTSD appears to have been precipitated by childhood experiences of sexual, physical and emotional abuse. He is currently treated with antidepressant medication, the type and dosage of which is not stated.
The applicant has a criminal history commencing in 2009 when he was 16 years old. It includes findings of guilt and convictions for intentionally causing injury, assault, making threats to kill, reckless conduct endangering serious injury, criminal damage and dishonesty and driving offences. The applicant’s record also discloses findings of guilt for breaching a probation order and a youth supervision order in 2010 and 2011 respectively, convictions for failing to answer bail in 2014 and contravening a suspended sentence order in 2015, and multiple convictions for contravening family violence intervention and personal safety orders between 2015 and 2017.
The applicant’s contentions
The applicant relies upon the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail:
Strength of the prosecution case
The applicant concedes that the alleged offending is serious. However, he submits that there is a significant prospect of acquittal on the basis of self-defence. He contends that this defence is supported by the CCTV footage which depicts the deceased lying in wait for the applicant outside the public toilets, evidencing the deceased’s intention to assault the applicant. He states that self-defence is also consistent with answers given by the applicant in his record of interview, including his explanation of the history of confrontations between the pair, which involved threats and the use of weapons, and statements concerning his apparent fear of the deceased at the time of the alleged offending, including that ‘he charged at me, like, he come at me and I didn't know what else to do’ and ‘I thought he was gunna kill me. I thought I was gunna fuckin' die’.
While it is acknowledged that it will be for a jury to determine whether the applicant’s response to the deceased’s attack was reasonable and necessary, the applicant submits that there is no certainty that he will be convicted of murder, or of any offence. He submits that the possibility of a complete acquittal is a significant consideration on the present application.
Delay
The trial was originally listed to commence on 19 October 2020, but was adjourned to 26 April 2021 as part of the Court’s response to COVID-19. The applicant submits that it is unclear whether the trial will be able to proceed on that date. He contends that the matter is now attended by delay through no fault of his own and submits that this is a relevant consideration on the present application. Notwithstanding this delay, the applicant concedes that he faces a significant term of imprisonment if found guilty.
Onerous conditions of custody and special vulnerability
The applicant is currently in custody at the Metropolitan Remand Centre. He submits that he has experienced onerous conditions of remand since the suspension of personal visits in March 2020 in response to COVID-19.
In addition to his diagnosis of PTSD, the applicant has previously suffered from spontaneous pneumothorax, being a condition causing an accumulation of air in the space between the lungs and the chest cavity that can result in the partial or complete collapse of a lung. He was admitted to hospital with this condition in October 2018.[11] The applicant fears that this diagnosis may render him more vulnerable to contracting COVID-19 should the virus enter his place of custody.
[11]See Portland District Health Discharge Summary – Affidavit in Support, Exhibit AL-3.
Accommodation and employment
If granted bail, the applicant proposes to reside with his father, Mervyn John Oakley, at 5/1 Marungi Street, Shepparton. He submits that the location of his proposed residence is particularly relevant as he will be removed from the setting of his previous criminal activity. He notes that conditions of bail may also be imposed restricting his movements to the Shepparton area.
Further, the applicant is able to work with his father at Vadpak Transport in Shepparton. He was previously employed by the company as a general yard manager from 2012 to 2015, where he was responsible for maintaining vehicles and supporting warehouse operations. A letter from the director of Vadpak Transport, David Damianopoulos confirms that the applicant will be offered a minimum of 16 hours of work per week if granted bail.
Availability of treatment and bail support services
While on remand, the applicant has engaged with psychological support offered through Forensicare’s Mobile Forensic Mental Health Service aimed at addressing his symptoms of complex PTSD, anxiety and depression. The applicant submits that gains made through that counselling can be consolidated through community supervision and supports administered by the Court Integrated Services Program (‘CISP’).
A CISP report dated 9 October 2020 recommends the applicant for community referral only, without ongoing case management. Those referrals comprise drug and alcohol treatment through the Australian Community Support Organisation as well as a contact number for telephone support, an appointment for a mental health consultation on Friday 16 October 2020 at 11am at the Family Medical Centre in Shepparton and contact details for further psychological support and offence-specific counselling.
Further, the psychological report of Mr Mackinnon opines that the applicant appears highly motivated to comply with any conditions of bail and intends to obtain a mental health care plan and continue taking his antidepressant medication in the event bail is granted. It is noted that Mr Mackinnon suggests a condition prohibiting the applicant’s attendance at licensed venues if granted bail.
Criminal history and compliance with earlier grants of bail
The applicant concedes that his criminal history is relevant to the Court’s assessment of risk, which includes numerous breaches of court orders. He notes, however, that he has only one prior conviction for failing to answer bail in 2014 and submits that he has an otherwise demonstrated history of complying with bail when imposed.
Surety
The applicant’s grandmother, Janet Wilson, is willing to offer surety by way of a $250,000 cash deposit. The surety represents part of Ms Wilson’s life savings and she acknowledges the possibility that she may lose that money should the applicant breach his bail conditions.[12]
[12]See affidavit of Janet Wilson affirmed on an unknown date and filed with the Court on 25 September 2020.
Unacceptable risk
The applicant submits that any perceived risk can be addressed by way of conditions including static residence, curfew and reporting obligations, requirements that he possess only one mobile phone, surrender his passport and remain within Victoria, and prohibitions on his attendance at any international points of departure and any contact with witnesses for the prosecution.
The respondent’s contentions
The respondent opposes the application on the basis that the applicant has not demonstrated exceptional circumstances justifying the grant of bail. Bail is also opposed on the basis of an unacceptable risk that the applicant would endanger the safety or welfare of any person, commit an offence while on bail or fail to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s submissions regarding the strength of the prosecution case, the respondent does not concede that the applicant has a significant prospect of acquittal. The respondent maintains that the case against the applicant is strong, having regard to the CCTV footage of the offending and evidence relating to post-offence conduct. The respondent further contends that this case is a serious example of murder, with the victim having been stabbed numerous times in a public place while unarmed.
With respect to delay, the respondent acknowledges that the trial has been delayed by approximately six months. The respondent notes that the new trial date of 26 April 2021 is, however, just over one year from the date on which the applicant was committed to stand trial.
The respondent further acknowledges that personal visits have been suspended by Corrections Victoria in response to COVID-19, but notes that contact with friends and family is still available via Skype and phone. The respondent advises further that case management, education and entertainment programs are still available in Victorian prisons. Citing Brown v The Queen,[13] the respondent submits that the extent to which the impact of COVID-19 may be taken into account is a matter to be resolved on the particular facts of any individual case.
[13][2020] VSCA 60, [48] (Priest and Weinberg JJA).
The respondent also highlights concerns with the applicant’s proposal to reside with his father in the event bail is granted, noting that his father has prior convictions for assault.
The respondent also relies on a report authored by the Informant in this matter. In that report, the Informant advises that there are currently no active cases of COVID-19 within Victoria’s prisons. The Informant submits that the applicant’s concerns regarding COVID-19 and his previous hospital admission for spontaneous pneumothorax is inconsistent with his actions in asking police for cigarettes whilst in custody and admitting to smoking cannabis following the alleged offending.
The Informant also notes inconsistencies in the applicant’s reported work history with proposed employer Vadpak Transport between 2012 and 2015, noting that he was recorded as living in the Portland and Warrnambool area during this period and was involved in the commission of various offences in that area, despite allegedly working in the Shepparton area some 479 kilometres away. In addition, the Informant notes that the applicant was serving a term of imprisonment during the relevant period from November 2014 to July 2015.
With respect to any proposed geographical restriction on the applicant’s movement if granted bail, the Informant submits that his offending history is not restricted to any one particular location.
As to the availability of treatment in the community, the Informant submits that no documentation has been provided to the Court indicating that his mental health has been negatively impacted as a result of his remand or that necessary treatment cannot be provided to the applicant while in custody.
Unacceptable risk
The respondent contends that the applicant is an unacceptable risk of endangering the safety or welfare of any person, noting that he is charged with a very serious violent offence involving the use of a weapon and has a criminal history featuring numerous violent offences against multiple victims. The Informant notes further that the applicant was sentenced to seven days’ imprisonment in relation to a historical assault following his arrest in the present matter, and highlights further concerns about his previous use and possession of knives and his involvement in offending from the age of 16 resulting in numerous periods spent in custody. The Informant contends that this history demonstrates the applicant’s propensity for violence and continued pattern of offending after release from custody. On the basis of the foregoing, the respondent submits that the applicant poses an unacceptable risk of committing further offences involving violence and the use of weapons if released on bail.
Finally, in relation to the risk that the applicant may fail to surrender into custody in accordance with the conditions of bail, the respondent notes the applicant’s prior conviction for failing to answer bail and numerous failures to comply with court orders, particularly family violence intervention orders. To this, the Informant adds that the applicant has failed to comply with conditions of bail beyond his single conviction in 2014, noting that he failed to appear in August 2014 causing a bench warrant to be issued for his arrest, following which he proceeded to engage in a series of further family violence offences which amounted to breaches of his then active bail conditions.
The respondent submits that there are no conditions of bail capable of rendering these risks acceptable.
Ruling
I am not satisfied that the matters put on behalf of the applicant do amount to exceptional circumstances. In particular, I do not regard the prosecution case as weak. It will be for a jury to decide what they make of the material, particularly the CCTV. I have also considered the question of delay in conjunction with the present difficulties for proceedings because of the COVID 19 pandemic.
I accept the impact of those matters but many of the COVID 19 restrictions are likely to be relaxed in the near future. I do not anticipate that the delay in this case will be particularly out of the ordinary.
I make it clear that if there are changes in either the date of trial or the situation of COVID-19 in the prison system, I would be prepared to revisit the matter.
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