Re application for bail by Price
[2021] VSC 31
•3 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0380
| IN THE MATTER OF the Bail Act 1977 |
| v |
| IN THE MATTER OF an application for bail by Andrew James PRICE |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 January 2021 and 27 January 2021 |
DATE OF ORDER: | 27 January 2021 |
DATE OF REASONS: | 3 February 2021 |
CASE MAY BE CITED AS: | Re application for bail by Price |
MEDIUM NEUTRAL CITATION: | [2021] VSC 31 |
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CRIMINAL LAW – Application for bail – Murder – Exception circumstances established – Unacceptable risk – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McMahon SC with Ms F Fox | C Marshall & Associates |
| For the Respondent | Mr M Gibson QC | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 19 January 2021, and again on 27 January 2021, the matter came before me as an application for bail.[1] 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’).
Introduction
On 21 October 2020, Andrew Price (‘the applicant’) was arrested and charged with murder and two counts of possessing an unregistered category A or B longarm. It is the prosecution case that the applicant conspired with co-accused Jake Brown and Samantha Guillerme to lure Jarrad Lovison (‘the deceased’) to an isolated location on 16 April 2020 where he was forced, threatened or tricked into ingesting a large quantity of gamma-hydroxybutyrate (‘GHB’), causing his death.
The applicant has been remanded in custody since his arrest and has not previously applied for bail. The matter is next listed for mention in the Latrobe Valley Magistrates’ Court on 3 February 2021. A committal mention is listed for hearing in that Court on 4 March 2021.
The applicant is currently subject to undertakings of bail in two separate matters. On 12 November 2019, he was charged with drug possession and driving offences and released on bail (‘the Informant Schefman matter’).[2] On 22 April 2020, the applicant was charged with a number of offences including reckless conduct endangering serious injury, trafficking in a drug of dependence and bail offences (‘the Informant Wursthorn matter’).[3] He was released on police bail the same day. Both outstanding matters return to the Latrobe Valley Magistrates’ Court for plea on 5 February 2021.[4]
[2]The applicant was charged with two counts of possessing a drug of dependence (methylamphetamine and 1,4-butanediol), driving at a dangerous speed, driving whilst authorisation suspended and using an unregistered motor vehicle on 12 November 2019. He made full admissions to the offending in his record of interview.
[3]In total, 16 charges were laid against the applicant on that date for offences alleged to have been committed on 14 and 22 April 2020, namely, reckless conduct endangering serious injury, exceeding the speed limit by 45km/h or more, two counts of dangerous driving, unlicensed driving, trafficking in a drug of dependence (methylamphetamine), possessing a drug of dependence (methylamphetamine), two counts of dealing with property suspected of being the proceeds of crime, possessing a prohibited weapon (a taser), two counts of committing an indictable offence whilst on bail, contravening a conduct condition of bail, failing to stop on police direction, destruction of evidence, and using an unregistered motor vehicle.
[4]The Affidavit in Support filed on 24 December 2020 states that the prosecution has agreed to withdraw charges of reckless conduct endangering serious injury, trafficking in a drug of dependence (methylamphetamine), possessing a drug of dependence (methylamphetamine), and one count of dealing with property suspected of being the proceeds of crime in the Informant Wursthorn matter. The Further Affidavit in Support filed on 22 January 2021 states that the prosecution has since agreed to withdraw the charge of destruction of evidence. The applicant has indicated that he will plead guilty to all other charges in the Informant Wursthorn matter.
The alleged offending
By way of background, the deceased had been in an on-off relationship with Angela O’Brien for approximately 12 years before the couple broke up in April 2019. Soon after, Ms O’Brien commenced a relationship with the applicant. Despite this, Ms O’Brien continued to maintain an intimate relationship with the deceased. The applicant became aware of this fact in late 2019, and he and the deceased grew increasingly hostile towards one another. During this period, it is said that the deceased would regularly send text messages to the applicant detailing his sexual activity with Ms O’Brien. The pair engaged in physical altercations, including an incident in October 2019 in which the applicant sustained a broken arm. On other occasions, the deceased slashed the tyres on the applicant’s vehicle and is suspected to have burnt down a shed at his Newborough residence.
It is the prosecution case that amidst these growing tensions, the applicant offered money and property to others, including Brett Anchesci and Patrick Alan, in exchange for the murder of the deceased. The applicant’s close friend, Jake Brown, and Mr Brown’s girlfriend, Samantha Guillerme, allegedly agreed to assist him. It is alleged that Ms Guillerme knew that the deceased had a sexual interest in her, and further, that the deceased was unaware of her relationship with the applicant and Mr Brown. She allegedly offered to lure the deceased to a location where the applicant and Mr Brown could then kidnap and murder him.
It is Mr Alan’s evidence that the applicant repeatedly discussed the idea of killing the deceased and disposing of the body while in Mr Alan’s and Mr Brown’s presence, shared his knowledge of the deceased’s routines with Mr Alan, stated that the deceased was causing issues in his relationship with ‘Ange’ and tried to convince Mr Alan to dislike the deceased as much as he did. Mr Alan states that the applicant variously offered him $50,000, his motorbike and a ‘Hummer’ vehicle to kill the deceased, which he declined. He was aware that the applicant had also discussed the matter with Mr Brown and that both men had access to firearms. Mr Alan stated that he was also present during conversations between the applicant and both co-accused that are described in the statement of Mr Anchesci.
In his statements to police, Mr Anchesci recalls conversations in which the applicant offered to pay $20,000 or $50,000 to have the deceased killed and, in particular, a conversation in early 2020 at the applicant’s Haunted Hills property in which Ms Guillerme stated to the applicant and Mr Brown that she could lure the deceased somewhere, but could not recall her intention for so offering.
During the evening of 15 April 2020, Ms Guillerme commenced a conversation with the deceased through the social media platform, Snapchat. Their conversation was flirtatious and they talked about the deceased obtaining drugs from Ms Guillerme. Unbeknownst to the deceased, she was in contact with Mr Brown during this conversation, who in turn, was in contact with the applicant.
At approximately 1.50am on 16 April 2020, Mr Brown collected Ms Guillerme from Trafalgar and drove her to Moe. It is alleged that the applicant was also a passenger in the car. Ms Guillerme maintained contact with the deceased during their trip via text messages and phone calls and provided directions to meet him at an isolated location on Moe-Walhalla Road, Newborough.
It is alleged that the deceased rode his mountain bike (dark green, Felt brand) to that location and arrived at approximately 3.30am, at which time the applicant and Mr Brown threatened or forced him into Mr Brown’s Holden Commodore. Ms Guillerme allegedly drove the three men to the Moondarra State Park. It is at that location the prosecution alleges that the deceased was forced, threatened or tricked into ingesting a large quantity of GHB, causing his death.
The applicant and co-accused then left, taking the deceased’s bike with them. A bike substantially matching the description of the deceased’s bike was observed by witness Peter Grealy on 18 April 2020 on the corner of Becks Bridge Road and Adam View Court, Tanjil South. Mr Grealy was aware that police were looking out for the bike in connection with the deceased’s disappearance. That afternoon, he observed a white station wagon attend the area and collect the bike. Another witness, Stacey Baldwin, provided CCTV footage showing a white station wagon travelling past her residence on Becks Bridge Road at a time consistent with Mr Grealy’s observations of the bike being collected by the same vehicle. The bike has not been recovered.
The deceased was not heard from after 16 April 2020. A missing persons investigation was commenced. Enquiries revealed that his phone had ceased operating at approximately 3.30am on 16 April 2020. Ms Guillerme was the last person to communicate with him.
Investigators sought to obtain an account from Ms Guillerme, who initially refused to provide a statement. She denied having known the deceased or having had recent contact with him. She did not allow police to view her mobile phone.
On 7 May 2020, Ms Guillerme provided a statement to police in which she admitted to knowing the deceased and his parents. She admitted communicating with him via Snapchat, text and calls between 15 April and the early hours of 16 April to arrange a meeting to sell him cannabis. She stated that she and a friend met the deceased on Moe-Walhalla Road where she provided him cannabis in exchange for $30. She described him as appearing under the influence of GHB at that time and said she last saw him sitting on his bike and looking at his mobile phone. She and her friend then returned to Trafalgar via Willow Grove.
Ms Guillerme refused to name her friend and would not give her phone to investigators. Instead, she provided what appeared to be incomplete records of Snapchat conversations with the deceased. Investigators later obtained stored communications from the deceased’s phone showing the complete conversation, the content of which differed significantly from the account provided by Ms Guillerme.
On 15 May 2020, detectives from the missing persons squad executed a search warrant at Ms Guillerme’s Trafalgar residence. During that search, police located and seized items including a handwritten note, a mobile phone, and approximately 100ml of GHB and small quantities of cannabis and psilocybin. The handwritten note contained what investigators believe were rehearsed answers to questions that Ms Guillerme anticipated may be asked of her when making her statement. Her phone was subsequently analysed, revealing that it had been in the vicinity of the Moondarra State Park at the time of the alleged offending.
On 23 May 2020, investigators, together with the Victoria Police Search and Rescue Squad, conducted a search of the Moondarra State Park. The deceased’s partially decomposed body was discovered in a forested area of the park. He was wearing the same clothing that he was last observed wearing on 15 April, which was now ripped and bloodied, and was holding a small bong in his right hand. His bike and mobile phone were not located. An autopsy established that the deceased had died as a result of GHB toxicity. The prosecution asserts that the deceased was a recreational drug user and would not have voluntarily ingested such a large amount of GHB as was found in his body.
Further evidence was obtained via listening devices, telephone intercepts and witness statements. A conversation between Ms Guillerme and Mr Brown was captured on 9 October 2020 in which Ms Guillerme is alleged to have expressed concern about how much information had been obtained by police. The pair reassured each other that investigators would lack sufficient proof as long as they remained silent, and discussed disrupting the investigation. They also allegedly discussed concerns as to the lack of attention being paid to the applicant.
It is alleged that the applicant became concerned about the police investigation during this period and arranged to meet Mr Brown to discuss the matter on several occasions.
Ms Guillerme was arrested and interviewed on 20 October 2020. She provided a ‘no comment’ record of interview and was subsequently charged with the deceased’s murder and remanded in custody.
On 21 October 2020, search warrants were executed at the applicant’s residence at 21 March Street, Newborough, his rural property at lot 1, 106 Haunted Hills Road, Newborough, and at each of the residences of Mr Brown, Ms O’Brien and Mr Brown’s friend, Danial Ruddell. Police located and seized firearms and ammunition from the applicant’s Haunted Hills Road property, and a pair of night vision goggles from his March Street address.
The applicant, Mr Brown, Ms O’Brien and Mr Ruddell were each arrested and interviewed in relation to the deceased’s murder.
The applicant provided a ‘no comment’ record of interview and was charged with the deceased’s murder and possessing unregistered firearms. He was remanded in custody the same day.
In his record of interview, Mr Brown stated that he did not know anything about the murder and had been home on the evening of 15 April 2020 and the morning of 16 April 2020. He was charged with the deceased’s murder and remanded in custody.
During her interview, Ms O’Brien informed police of her previous relationship with the deceased and her current relationship with the applicant, but denied any knowledge of or involvement in the deceased’s murder. She stated that she would make a statement at a later time.
Mr Ruddell told investigators that Mr Brown arrived at his house in the early hours of one morning in April 2020 and woke him up, stating, ‘you’re my alibi’. He said Mr Brown later disclosed to him that he and the applicant had ‘got rid of’ the deceased and that Ms Guillerme had driven the car. Mr Ruddell provided two written statements in which he set out his conversations with Mr Brown about the murder. It is his evidence that Mr Brown told him that the deceased ‘deserved what he got’ and when asked by Mr Ruddell ‘you and Pricey?’, Mr Brown said ‘yep and [Ms Guillerme] was driving the car’, but was unable to hear anything as she had earphones with loud music on. Ms O’Brien and Mr Ruddell were both released pending further investigation. Both Mr Ruddell and Ms O’Brien have made statements to police and will be witnesses for the prosecution.
Both co-accused remain on remand.[5] Ms Guillerme made a previous application for bail in this Court which was withdrawn at the hearing before me on 8 December 2020.
[5]It is noted that Mr Brown has a criminal history including convictions for reckless conduct endangering serious injury, committing an indictable offence whilst on bail, contravening a family violence intervention order, assault, criminal damage, aggravated cruelty to an animal, drugs and weapons possession, and driving and dishonesty offences. Ms Guillerme has a criminal history commencing in 2015 which includes convictions for trafficking in, possessing and using drugs of dependence, contravening a CCO, and dishonesty offences.
The hand-up brief was served on 2 December 2020, although disclosure of some evidence, including transcription of telephone intercepts and listening device evidence, forensic analysis of exhibits, and review of seized phone and laptop material, remains outstanding.[6]
[6]A statement of the informant in this matter, Detective Senior Constable Bree Blair, dated 21 January 2021, provides the current timeframe of when such evidence is expected to be available. Notably, some evidence is not expected to be available for some four to 12 months.
The applicant
The applicant is 47 years old. Prior to his remand, he was residing at 21 March Street, Newborough, with his two sons, aged 12 and 15. He is the sole parent of both children, his wife having passed away from breast cancer in 2016. His sons are currently in the care of the applicant’s parents and an aunt. The applicant also has an adult daughter who resides in Queensland.
The applicant was raised in Boolarra and attended Mirboo North Secondary College until the end of year 11. After that time he held employment in a variety of fields, including screen printing, mining, dairy farming, and occupational health and safety. He was most recently employed at the Morwell open cut mine where he was responsible for driving dredges. He worked there for over 10 years and received a substantial redundancy payment upon closure of the mine in 2018. He used part of his redundancy payment to purchase the property at lot 1, 106 Haunted Hills Road, Newborough, where he was engaged in work to build a house at the time of his arrest.
The applicant has a history of substance abuse and reports having engaged in regular methylamphetamine use for periods in 2019. He states that he was not a regular user of illicit substances in the period prior to his remand.
The applicant has no criminal history. As stated, in addition to the present matter, the applicant also faces charges in the outstanding matters charged by Informants Schefman and Wursthorn.
The applicable legislation
Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 (‘the Act’).[7] It follows that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[8] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed in s 3AAA(1) of the Act.[9]
[7]Bail Act 1977 (Vic) (‘the Act’) sch 1, item 2.
[8]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[9]Ibid s 4A(3).
In order to establish exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[10] Exceptional circumstances may be demonstrated by reason of a single exceptional circumstance, or through a combination of factors, including personal factors relating to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[11]
[10]Re CT [2018] VSC 559, [64] (Champion J), citing with approval Re Sam [2017] VSC 91, [22] (Beach JA).
[11]Re CT [2018] VSC 559, [65], citing with approval Re Fairest [2015] VSC 375, [17]-[18], [22] (Weinberg JA).
If satisfied that exceptional circumstances exist, the Court must apply the ‘unacceptable risk test’.[12] 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.[13] 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.[14]
[12]The Act, s 4D(1)(a).
[13]Ibid s 4E(2).
[14]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.[15]
[15]Ibid s 1B(2).
Analysis
In relation to the question of delay, a further statement was provided by the informant, Detective Senior Constable Bree Blair, dated 21 January 2021. It seems to me that the question of when all of the material might be reasonably made available to the accused is a difficult one and I do not attach to any blame to Ms Blair over that. She is operating in quite difficult circumstances and there is a strong likelihood that at least the transcript of some of the listening device material might not be available much before at least the middle of the year and perhaps later. It is a twofold exercise, because by implication, it seems that some of the listening device material obtained is not of high quality and that material will need to be enhanced before it is transcribed and that will lengthen the process in which the material might be obtained.
I am satisfied in this case that exceptional circumstances have been made out, by a combination of factors, but principally relating to the question of delay. It leaves then consideration of whether it has been demonstrated on behalf of the respondent that the applicant is an unacceptable risk of failing to answer bail, or committing offences whilst on bail, or endangering the welfare of members of the public, if released on bail.
It has been submitted on behalf of the applicant that in addition to showing exceptional circumstances, the applicant could not be shown to be an unacceptable risk. In particular it was submitted that if released on bail, he would go into a 90 day residential rehabilitation program with DayHab Addition Treatment Centre and at the end of the 90 days that he reside with his parents or with DayHab. Any concern about the lack of registration of DayHab has been satisfactorily dealt with in the affidavit of Cameron Marshall, dated 21 January 2021. Similarly, matters generally relating to the availability of a surety have been satisfactorily dealt with.
From material provided in the course of this application, it is clear that the applicant could reside with his parents and that in residing with his parents, he could be gainfully employed. His parents have also indicated a preparedness to supervise the applicant and provide a surety of up to $850,000. That strikes me as being a better circumstance than the previous arrangement, by which he would have returned to his earlier address. Mr Justin Vincent of DayHab indicated that arrangement would be satisfactory.
It was submitted on behalf of the prosecution that there were a series of features which would make the applicant an unacceptable risk, based on both the nature of the charge of murder and the outstanding matters indicating his propensity for violence and his access to weapons and firearms. It was also submitted that there was an overlay for that, which related to evidence of his apparently frequent use of drugs and some evidence of offending whilst on bail and failing to obey the conditions when he was released on bail.
The other significant matter relied upon by the respondent is a submission that the applicant is an unacceptable risk of interfering with witnesses. This relates to an alleged incident on 26 April 2020, when the applicant and his co-accused Brown are said to have attended Patrick Alan's home, Alan being the principal witness against the applicant, and that the two men attempted to gain access to Alan’s property while Brown was in possession of a firearm and that, it is said, constitutes evidence that the applicant is willing to interfere with witnesses in this matter. It follows that the informant has said that she regards there being a risk of Alan being interfered with if the applicant was released on bail. The other and final matter is the fact that it is alleged that the applicant managed to electronically wipe material from his mobile phone, after it had been seized by police, after the execution of a search warrant at his address on 22 April 2020. Those April dates are in the context of the alleged offending which is said to have occurred on or about 16 April 2020, being the date at which the victim of the alleged murder disappeared.
We are, however, faced with the proposition that the applicant has been charged with a particularly serious offence of murder and I am obliged to take that into account in having regard to both the question of exceptional circumstances and unacceptable risk. I do not find that the prosecution case is weak, but I am satisfied that there are matters of substance that will need to be raised by the applicant in relation to the nature of the case and that it is quite difficult, as matters stand, to assess what the actual strength of the Crown case might be.
Although the applicant has some outstanding criminal matters, the fact of the matter is, he is a person with no prior convictions. As opposed to that, his recent performance on bail has been less than satisfactory and it is accepted that I could draw the reasonable inference that that lack of satisfactory performance on bail was a direct result of his addiction to drugs of dependence. In support of his application, it is submitted that he could be supported in relation to dealing with that addiction by going into a residential course for 90 days and thereafter, a program of some sort of supervision be worked out for him, either by him going to live with his parents, or by him living at supervised accommodation conducted by DayHab.
The case against the applicant consists of effectively the evidence of two civilian witnesses, both of whom are known to him. As the matter stands, I am satisfied that there is an unacceptable risk, in particular because of the visit by Mr Brown and the applicant to Mr Alan's premises, that the applicant might interfere with witnesses and in those circumstances, bail will be refused.
I must say this; if all these things are matters to be balanced, if the delays in this case become even more significant than they exist at the present time, it might be that the only appropriate and just way the applicant's position can be dealt with is by the grant of bail, irrespective of what other risks might be observed. So the observations I make are observations that I make at the relatively early stage of these proceedings. They should not be viewed by anybody as being locked in stone and I make it clear that the applicant can apply to this Court for bail at any time.
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