Re Borthwick - [2009] VSC 102

IN THE SUPREME COURT OF VICTORIA

Not Restricted

CRIMINAL DIVISION

No. 1418 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

LEON BORTHWICK

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2009
DATE OF JUDGMENT:	23 March 2009
CASE MAY BE CITED AS:	DPP v Borthwick
MEDIUM NEUTRAL CITATION	[2009] VSC 102

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Bail – murder – accused 19 years of age – issue as to interference with witnesses – considerations applicable – bail granted on strict terms.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Doyle	Revill and Papa Lawyers
For the Director of Public Prosecutions	Mr P Rose SC	Office of Public Prosecutions

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HIS HONOUR:

The applicant, Leon Borthwick, now aged 19 years, has applied to this Court for bail. The applicant is charged with the murder of Mark Christian Zimmer at Narre Warren early on Sunday 16 November 2008.

The death of the deceased was caused by the driving of a motor vehicle by the applicant. The prosecution says that the driving at the deceased was deliberate by the applicant who was using the vehicle as a lethal weapon. The applicant says that the collision with the deceased was accidental. The deceased was 19 years of age at the time of his death, he having been born on 4 March 1989.

Present in Court both on Friday and today are the deceased's loving and supportive family who have been grievously afflicted by his death. Present on Friday and now also are the applicant's family.

Following the fatal incident the applicant was interviewed by investigating police, first by Detective Senior Constable Fox of the Greater Dandenong CIU commencing at 6.48 am on that Sunday, 16 November 2008 at the Dandenong Police Station and then by Detective Senior Constable Leach of the Homicide Squad that day at the Homicide Squad offices and building in Melbourne. At question 665 of that interview the applicant was informed he was to be charged with murder which then he was. The interview concluded at question 703 at 4.45 pm that afternoon.

The applicant has been in custody since at time. This is his first application for bail. A committal mention date is fixed for 6 April 2009. There are numerous witnesses and the proofs in the matter are quite extensive. It is likely that a committal hearing will be held in about November 2009. If the applicant is committed for trial it is likely that the trial will be heard in this Court in about October 2010. The applicant is being held in an adult prison, he having been born on 19 March 1990 and being 18 years and eight months of age at the time of the offence alleged, and now having just turned 19 years of age. He has no criminal convictions.

The purpose of pre-trial bail or custody is not to punish the person charged. That is because they have not yet been found to have committed an offence. The purpose of pre-trial bail or custody…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Borthwick

Details

AGLC: Re Borthwick [2009] VSC 102
Case: [2009] VSC 102
Decision Date: 23 March 2009

CaseChat Overview and Summary

In the case of Re Borthwick, the respondent, a 19-year-old accused of murder, sought bail. The dispute before the court involved the consideration of whether the respondent should be granted bail, taking into account the seriousness of the offence, the risk of interference with witnesses, and other relevant factors. The matter was heard in the Court of Appeal, which had the responsibility of reviewing the decision of the lower court.

The legal issues before the court centred on the balance between the presumption of innocence and the gravity of the offence, as well as the potential for the respondent to interfere with witnesses if granted bail. The court had to determine whether the risk of witness interference outweighed the respondent's right to liberty and if the terms of bail could sufficiently mitigate such risks. Additionally, the court considered the principle that a younger accused might be more amenable to supervision and rehabilitation.

The court, after careful consideration of the evidence and submissions, concluded that the risk of witness interference could be sufficiently managed through strict bail conditions. These conditions included stringent reporting requirements, electronic monitoring, and restrictions on contact with potential witnesses. The court determined that the strict terms of bail would adequately safeguard the integrity of the proceedings while allowing the respondent to prepare for their defence. Ultimately, the court granted bail on the strict terms outlined, recognising the respondent's right to a fair trial and the need to prevent undue prejudice to the case.

Orders