Re Borthwick
[2009] VSC 102
•23 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
CRIMINAL DIVISION
No. 1418 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| 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 is to ensure that the person charged appears at his or her trial, does not interfere with witnesses and does not commit offences awaiting trial.[1]
[1]See generally DPP v Cozzi (2005) 12 VR 211, Re application for bail by Tran [2005] VSC 498 and Application for bail by Oldum [2008] VSC 319 and the authorities cited therein.
As the charge is murder, the Bail Act 1977 by s 13(2)(b) provides that bail shall not be granted unless the Court is satisfied that exceptional circumstances exist which justify the making of an Order for bail.
The application for bail was filed in this Court on 4 March 2009. It is supported by an affidavit of the applicant's learned solicitor, Mr Revill, sworn 27 February 2009. In written and oral submissions before me his counsel, Mr Doyle, tended character references marked as Exhibit A as to the applicant and his family and as Exhibit B, a comprehensive psychological report of Dr P.L. Grech of 19 March 2009. Dr Grech was called and gave responsible and helpful evidence to the Court.
In opposition to the application a comprehensive affidavit of Mr A.G. Rooney, learned solicitor, sworn 18 March 2009 has been filed. Exhibited to that affidavit as Exhibit 1 is the report of the informant, Detective Senior Constable Leach of the Homicide Squad dated 16 March 2009, and as Exhibit 2 a copy of the police brief of evidence of 553 pages in length. I have read all of that material and also have viewed the DVD recordings of the Homicide interview of the applicant.
Mr Rose of senior counsel appeared for the respondent and made most helpful submissions to the Court.
The first ground submitted in support of the application is that the prosecution case "is not as strong as it might first seem" (Transcript p.6, line 27) and that the applicant "has a reasonable prospect of being acquitted" (written submissions, paragraph 1(a)). At Committal the strength of the prosecution case will be measured. I can merely examine the papers. Having done so I conclude that the prosecution case is a substantial one. Certainly it is not weak. More than that is inappropriate to say at this stage.
Next, Mr Doyle relied upon a cluster of related matters: the age of the applicant, his lack of prior convictions, the fact that if not granted bail he will be held until trial in an adult prison, and the length of time until the Committal hearing in November 2009 and if committed trial probably in October 2010. None of these grounds of themselves would in my view constitute an exceptional circumstance justifying bail if taken on its own. However subject to two matters I would consider that the combination of those four matters would constitute exceptional circumstances.
The two matters to which I have given further consideration are the question of interference with witnesses and the question of offences by the applicant in relation to this charged offence. I have given careful consideration to whether to refuse bail because of the risk of interference by the applicant, or by persons acting at his instigation, with witnesses. I have also considered the question of the risk of offences by the applicant in relation to this charged offence. I regard both matters as especially serious. There is substantial material in the statement of the informant, Exhibit 1, at pp.14 to 17, to found such concerns. The Court must protect witnesses. The Court must protect potential victims. The Court will punish severely any attempt to pervert the course of justice. In the end, however, I have concluded that the proper course is to grant the application for bail upon strict conditions.
The conditions are first, a substantial monetary surety. I shall discuss with counsel the appropriate quantum.
Second, a residential condition, that the applicant reside with his parents at 387 Ormond Road, Narre Warren South.
Third, a curfew, that the applicant be at those premises daily between 11 pm and 6 am daily, or other hours to be discussed with counsel.
(Unidentified person distressed
If you want to go out, you can go out, you will be looked after by being outside. Just take a moment).
Fourth, a non-interference condition, that the applicant not interfere directly or indirectly with any prosecution witness, including through any third party.
Fifth, a non-contact condition, that the applicant not contact directly or indirectly any prosecution witness except his parents and his brother Shaun. That prohibited contact includes personal contact, written contact, and electronic contact including text, email and telephone contact.
Finally, the usual conditions as to reporting to police and as to passport apply, which I shall discuss with counsel.
The applicant needs to understand this clearly: If he undertakes bail, he is required strictly to observe every condition of his bail. Those conditions are necessary to secure the administration of justice. If he breaks any of those conditions, he will go straight back into custody where he is likely to remain until his trial. He will breach those conditions if he instigates anyone to contact prosecution witnesses on his behalf, or to interfere with prosecution witnesses on his behalf.
It is not an appropriate term of bail - because the applicant has not been found guilty of any offence - that the applicant receive treatment from Dr Grech or Dr Grech's nominee for the applicant's conditions of "symptoms of clinical depression and anxiety" and of "signs of obsessive compulsive tendencies" (transcript at p.21). For the applicant's own sake he should do so. Likewise, he should continue his prescribed antipsychotic and antidepressant drugs.
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