Re CD
[2017] VSC 721
•28 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0236
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by CD |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2017 |
DATE OF JUDGMENT: | 28 November 2017 |
CASE MAY BE CITED AS: | Re CD |
MEDIUM NEUTRAL CITATION: | [2017] VSC 721 |
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CRIMINAL LAW – Bail – Murder – Requirement to show ‘exceptional circumstances’ – Whether exceptional circumstances made out – Whether unacceptable risk of failing to answer bail – Whether unacceptable risk of further offending – Whether unacceptable risk of endangering safety or welfare of members of the public - Exceptional circumstances not shown – Unacceptable risk of failing to answer bail – Unacceptable risk of further offending – Unacceptable risk of endangering safety or welfare of members of the public - Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B F Kissane QC with Mr D P Hannan | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D A Dann QC with Dr M J Gumbleton | Melinda Walker |
HIS HONOUR:
On 23 June 2016, the applicant was charged with the murder of one HM. At the time he was charged with HM’s murder, the applicant was in custody, serving a sentence that had been imposed upon him on 27 February 2012. On the day he was charged with HM’s murder, the applicant was due to be released on parole on 5 July 2016. After he was charged with the murder of HM, the order granting the applicant parole was revoked. The applicant has remained in custody since being charged with HM’s murder.
On 10 October 2017, the applicant filed an application for bail. Because the applicant is charged with murder, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist which justify the making of a bail order.[1]
[1]Section 13(2) of the Bail Act 1977 (‘the Act’).
The grounds on which bail is sought
In his notice of intention to make application for bail, the applicant identifies the grounds upon which bail is sought as including:
(a) the circumstances in which the applicant came to be charged with murder ‘are themselves exceptional and give rise to a fundamental difficulty associated with the prosecution case’;
(b) there will be significant delay before the applicant can face trial;
(c) the applicant has been in custody since 2009;
(d) the applicant has been held in onerous conditions throughout most of his time in custody since 2009;
(e) the applicant’s time in custody was made even more onerous on account of the murder of his father while he was in custody;
(f) given the period of time the applicant has spent in custody since 2009, the applicant does not present with any drug or alcohol issues;
(g) the applicant has strong familial ties to the jurisdiction.
(h) the applicant has strong support within the community;
(i) the applicant has a static and stable residence available;
(j) the applicant has a ‘substantial surety’ available; and
(k) the applicant is willing to abide by any conditions of bail that are deemed appropriate.
Applicant’s background
The applicant is 38 years of age. The applicant’s parents migrated from Lebanon to Australia and had five children including the applicant.
The applicant was raised in the Brooklyn area. He married in 2009, and he and his wife have an eight year old son.
On 5 April 2005, the applicant’s brother MD was involved in an incident with police, at his home, in which he was shot and killed. On 13 August 2010, the applicant’s father was killed by an unknown individual at the family home.
In August 2007, the applicant was sentenced in the County Court to a total effective sentence of five years and two months’ imprisonment for offences including criminal damage, cultivating a narcotic plant, handling stolen goods, theft, attempting to obtain a financial advantage by deception, being a prohibited person in possession of an unregistered firearm and reckless conduct endangering life. A non-parole period of three years and six months was fixed.[2]
[2]R v [CD] [2007] VCC 1047.
On 30 September 2008, the applicant was released on parole. At that time, he had one year, seven months and 29 days to be served on parole. On 28 September 2009, a year later, and while still on parole, the applicant was arrested and remanded in relation to charges that included recklessly causing serious injury, false imprisonment, making a threat to kill and armed robbery (‘the 2009 charges’). On 21 October 2009, the applicant’s parole was cancelled and he commenced to serve the unexpired part of the sentence imposed in August 2007.
In August 2011, following a trial, the applicant was found guilty of the 2009 charges. On 27 February 2012, following a plea hearing, the applicant was sentenced to five years and nine months’ imprisonment, with a non-parole period of three years and nine months.[3]
[3]DPP v [CD] (Unreported, County Court of Victoria, Judge Mullaly, 27 February 2012).
On 10 May 2016, the applicant was granted parole with respect to the sentence imposed in February 2012. As I have already noted, the applicant was due for release on 5 July 2016, but his release on parole was revoked when he was charged with HM’s murder. Thus, the applicant has been continuously in custody since 28 September 2009.[4]
[4]Cf ground (c) in the applicant’s notice of intention to make application for bail.
Applicant’s evidence and contentions
The applicant’s application for bail was supported by an affidavit sworn by the applicant’s solicitor, Ms Melinda Walker. While relying upon a combination of circumstances, described in the affidavit, as showing the existence of exceptional circumstances, Ms Walker deposed:
It [is] submitted that the circumstances in which the applicant came to be charged with murder are themselves exceptional and give rise to a fundamental difficulty associated with the prosecution case.
In summary, the circumstances said by Ms Walker to give rise to a ‘fundamental difficulty with the prosecution case’ were as follows. HM was shot and killed on 20 June 2009. On 21 June 2009, AK made a written statement in which he admitted that he, acting alone, shot and killed HM. Subsequently, on a number of other occasions, AK admitted to police that he shot and killed HM. AK was charged with the murder of HM. Notwithstanding AK’s various confessions, ultimately AK retracted his confessions and pleaded not guilty, at trial, to the murder of HM. In 2011, AK was acquitted of HM’s murder.
In her affidavit, Ms Walker identifies, as a significant problem for the prosecution of the applicant, ‘the fact that another person [AK] has repeatedly confessed to killing [HM] and that the prosecution went to one jury on the basis that they should be satisfied beyond reasonable doubt that another person killed [HM]’. In argument this morning, senior counsel for the applicant, in a careful and detailed submission, contended that when the material is properly analysed it can be seen that there is a firm impediment to conviction in this case.
As to delay, the applicant submitted that there has been, and is, significant delay associated with his case. He was charged on 23 June 2016; a committal was first listed for 4–6 April 2017; the committal had to be adjourned for the provision of further material to the defence; the committal recommenced on 2 October 2017; AK did not answer his summons to reappear on the resumption of the committal, an arrest warrant has been issued and AK’s whereabouts were unknown for a time;[5] and the committal has again been adjourned until 24 January 2018. Ms Walker also deposes that a trial with an estimate of six weeks’ duration is unlikely to be listed for hearing before October 2018.
[5]Ms Walker’s affidavit refers to difficulties with additional witnesses. While I will take into account all of those matters, it is not necessary to rehearse those matters in these reasons.
The applicant submitted that, in combination, all of the matters identified in his notice of intention to make application for bail, some of which are amplified in Ms Walker’s affidavit, including the matters described above, constitute exceptional circumstances justifying a grant of bail.
Finally, it was submitted that there was no unacceptable risk in this case that could not be appropriately ameliorated by the imposition of strict bail conditions.
Respondent’s evidence and contentions
The respondent filed an affidavit in opposition to the application for bail sworn by a solicitor of the Office of Public Prosecutions. This affidavit exhibits a number of documents, including a copy of the police brief summary, a copy of the applicant’s criminal history and a copy of a statement prepared by the informant.
The respondent opposes bail, submitting that the applicant has not made out exceptional circumstances which might justify the grant of bail. Additionally, the respondent submitted that bail should not be granted because there is an unacceptable risk that if released on bail the applicant would fail to surrender himself into custody and to answer bail, an unacceptable risk that he would commit an offence while on bail, an unacceptable risk that he would endanger the safety or welfare of members of the public, and an unacceptable risk that he would interfere with witnesses or otherwise obstruct the course of justice.[6]
[6]Cf s 4(2)(d)(i) of the Act.
The summary of evidence exhibited to the OPP solicitor’s affidavit describes the case against the applicant in some detail. In reliance upon that material, the respondent, while accepting that the present case is an unusual one, contended that the applicant’s characterisation of the prosecution case as having ‘severe difficulties’ should not be accepted. The respondent submitted that the strength of the Crown case was not properly to be described as so weak as to constitute exceptional circumstances (either on its own or in combination with the other matters relied upon by the applicant).
As to the risks it was asserted that the applicant would pose, if released on bail, the respondent made reference to the applicant’s criminal history, and specifically to offences committed between 1999 and 2009. It was noted that the applicant had prior convictions for failing to answer bail in 2000 and 2004, convictions for breaching suspended sentences in 2002 and 2007 and a conviction for failing to comply with a community based order.
As to the specific risk the applicant is said to be of endangering the safety and welfare of members of the public, if he is released on bail, the respondent pointed to the applicant’s prior convictions for armed robbery, being a prohibited person possessing an unregistered firearm, recklessly causing serious injury, false imprisonment, making a threat to kill, reckless conduct endangering life, unlawful assault and threatening to inflict serious injury.
Analysis
While the Act requires an applicant charged with murder to satisfy the Court that exceptional circumstances exist which justify a grant of bail, the Act does not define what are exceptional circumstances. It is trite however that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charge against him. Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[7]
[7]Jensen v DPP [2006] VSC 450 [40]; Re John McDonald [2010] VSC 217 [23]; Re Sam [2017] VSC 91 [22].
The short answer to the applicant’s application for bail is that, in my view, none of the circumstances relied upon by the applicant (either alone or in combination) constitute exceptional circumstances. It is not appropriate, on this application, for me to express any firm or concluded view about the strength or otherwise of the prosecution case. I have not seen the witnesses and have not had the benefit of seeing what effect cross-examination might or might not have in relation to evidence that might be regarded as critical. Undoubtedly, there is an element of complexity associated with the Crown case against the applicant. Moreover, the case against the applicant is not made easier by the fact that the Crown originally went to a jury on the basis that a person other than the applicant was the person who shot HM – although, as the material discloses, the Crown has an explanation for this circumstance that is capable of being accepted by a jury if and when the issue becomes live at trial.[8]
[8]See for example para 3 of the informant’s summary exhibited to the OPP solicitor’s affidavit and the informant’s statement.
Ultimately, on the material tendered on this bail application, and notwithstanding the able argument of senior counsel for the applicant, all that can be said on this application is that this is a case that may or may not succeed at trial against the applicant.
I turn now to the issue of delay. The delay asserted by the applicant in this case cannot be described as exceptional. On the applicant’s own material, it would seem that there could be a trial in October 2018.[9]
[9]See generally DPP (Cth) v Barbaro (2009) 20 VR 717, 726–728 [33]–[41]; Re Application for Bail by MO [2017] VSC 557 [6], [19], [21]; Re Casale [2017] VSC 568 [24]–[25].
As to the applicant’s other grounds upon which he contends that there are exceptional circumstances, none of these alone constitute exceptional circumstances. Nor do they add sufficiently to the grounds concerning the strength of the Crown case and delay to constitute exceptional circumstances. Exceptional circumstances not having been established, the application for bail must be refused.
In any event, even if exceptional circumstances were made out, there is considerable force in, and I accept, the respondent’s contentions that the applicant, if released on bail, would pose an unacceptable risk of failing to surrender himself into custody and to answer bail. The applicant has prior convictions for failing to answer bail and prior convictions for breaching court orders. Nothing in his history engenders any confidence that the applicant might comply with the requirements of bail or necessary conditions that might be imposed upon him if bail were to be granted.
Additionally, in my view, it cannot be gainsaid that the applicant, if released on bail, would (on past history) pose an unacceptable risk of further offending and/or endangering the safety or welfare of members of the public. The unacceptability of these risks provide an additional basis upon which bail must be refused.
Conclusion
The applicant’s application for bail must be refused.
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