Re Charlton
[2021] VSC 342
•11 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0122
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Paul CHARLTON |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June 2021 |
DATE OF JUDGMENT: | 11 June 2021 |
CASE MAY BE CITED AS: | Re Charlton |
MEDIUM NEUTRAL CITATION: | [2021] VSC 342 |
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CRIMINAL LAW – Bail – Alleged murder of partner – 14 year gap between alleged offence and laying of charge – No criminal offending in the interim –No attempt to flee – No relevant criminal history - Relative strength of prosecution case – Poor mental and physical health of the applicant – Difficult conditions in custody – Likely exacerbation of mental and physical problems – Stable relationship and accommodation – No unacceptable risk posed by applicant – Availability of substantial surety – Exceptional circumstances established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Tittensor SC with Ms A Dixon | Galbally Parker Lawyers |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of a charge he faces of murdering his partner Joanne Howell (‘the deceased’).
In light of the charge with which the applicant stands accused, the exceptional circumstances test applies to this application. This means that the Court must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail.
Procedural history
The offence was allegedly committed on the evening of 21 April 2007. The applicant was arrested and interviewed twice on 22 April 2007. He was released without charge.
In 2011, a coronial inquest was held, at the conclusion of which Coroner Spanos determined that the applicant had contributed to the cause of death of the deceased. The matter was referred to the Director of Public Prosecutions, but no charge was laid at that time.
Following a further police investigation, the applicant was arrested at his home on 6 January 2021. He was interviewed again by police and provided no comment. He was charged with murder and has been in custody since that time.
The matter is next listed for committal mention at Melbourne Magistrates’ Court on 24 June 2021.
Summary of alleged offence
The applicant and the deceased met in July 2006 and formed a relationship. In December 2006, the applicant moved in with the deceased to a unit that she was leasing in Hughesdale. They lived there together until her death on 21 April 2007.
On the prosecution case, in the lead up to 21 April 2007, the relationship between the applicant and deceased had been volatile. On 7 April 2007, an incident occurred in which the deceased sustained a blood nose as a result of physical contact with the applicant. She subsequently gave conflicting accounts to several friends about the incident, with one of the accounts indicating deliberate infliction by the applicant. On 18 April 2007, a further incident occurred in which the applicant allegedly drove recklessly with the deceased in the car (‘the driving incident’), causing her to become upset with him. On the prosecution case, the already troubled relationship between the couple deteriorated rapidly from that point.
On 19 April 2007, the deceased detailed the driving incident to her friend Claire Bamber (‘Bamber’). She informed Bamber that she had asked the applicant to leave the apartment but that he would not listen to her.
That evening, the deceased telephoned her friend Toni Perriman (‘Perriman’) in an upset state. When asked what was wrong, she said, ‘It’s him again, I just need to get out’. Shortly afterwards, the deceased attended at Perriman’s house. She was upset, and said, ‘I can’t live like this anymore’, saying that she could not stand to be in the house with the applicant. She informed Perriman that she had repeatedly asked the applicant to leave but he would not do so.
On the account of the applicant, he and the deceased argued throughout the day on 21 April 2007, with the arguments centering on the driving incident some days earlier.
On the morning of that day, a friend of the deceased named Catherine Tormey (‘Tormey’) visited the deceased at her home. The deceased was visibly upset. She told Tormey that she could not handle the applicant and wanted him out of the house. Tormey observed the applicant and the deceased argue in her presence during the visit. The deceased informed the applicant that he had four weeks to leave the house. The applicant responded with a Nazi-salute type of gesture before leaving the room. The deceased informed Tormey that every time she had told the applicant to leave the house, he had refused to do so. She described him as controlling.
Later that morning, Tormey met with the applicant at another location. She told him that the deceased was serious about wanting him out of the house and offered him a place to stay short-term. Tormey observed the applicant to be upset, but not aggressive or angry.
In a conversation with Tormey that afternoon, the deceased indicated that she had asked the applicant to move his possessions into a spare bedroom. Later still, the deceased informed Tormey that the applicant had, indeed, moved his stuff into the spare room.
On the evening of 21 April 2007, the applicant, on his own account, went grocery shopping and arrived home between 8.15pm to 8.30pm. The deceased had a twenty minute phone conversation with a friend of hers named Howard Williams (‘Williams’) commencing at about 8.00pm. She informed Williams that she had given the applicant 30 days to move out, as she could not live with him anymore and was scared of his anger. Towards the end of the phone call, the deceased mentioned that the applicant had just arrived home.
Upon the applicant’s return, on his own account the couple continued to argue, during which the deceased threw the remote control for the television into the rear courtyard. The applicant stated that he retrieved the remote, but could not find one of the batteries. He stated that he then decided to take the dog for a walk, leaving through the garage, locking the internal door to the garage and taking the garage remote with him.
Between 8.20pm and 9.30pm, several neighbours heard noises coming from the direction of the applicant’s and deceased’s unit, which they variously described as:
· ‘a forceful but dullish thud’;
· ‘a sliding door or cupboard door being pushed too hard against the timber frame when being closed’;
· ‘a sharp noise that produced a heavy sound like something breaking with reasonable force’; and
· ‘a raised female voice believed to be involved in an altercation, at the same time as a sound like a sliding door being slammed’.
At 10.20pm, another neighbour, Jennifer McLennan (‘McLennan’), who lived in the same unit complex, turned into the driveway and her vehicle’s headlights illuminated an area of the park near her side fence. She observed a man standing there. She compiled a FACE image of the man, which is alleged by the prosecution to be ‘strikingly similar’ to the appearance of the applicant on the night. I note that that contention is strongly contested by the applicant, on whose behalf if is asserted that if anything the account of McLennan, who is now deceased, would assist the cause of the defence. The FACE image and a photograph of the applicant taken at about the time of these events were provided to the Court during the application.
At 11.19pm on 21 April 2007, the applicant placed a call to emergency services stating that he had found the deceased covered in blood, not breathing and that he could not detect a pulse. He also said the side door was kicked in. Police and paramedics attended the scene at 11.30pm and the deceased’s body was located inside the front door at the base of the staircase.
The applicant gave two accounts to police at the scene, prior to his arrest, including the following about his movements that evening:
· he left home at 9.20pm to walk the dog and the deceased was upstairs. He came back at 11.30pm via the garage door and the internal door leading from the garage and found the deceased at the base of the stairs, facing upwards. He attempted CPR for five minutes and then called emergency services;
· he had been gone for ‘a bit over an hour, I really don't know, I didn't really take notice of the time; it would have been around 10.00 or 10.30’; and
· the main garage door was closed when he returned home, and he had opened it with the remote. The door from the garage into the house was ‘sort of pushed closed’, and when he went to enter the door, he saw that the frame was broken.
During his second account, the applicant referred to a former partner of the deceased, ‘Mark’, attending the residence in November, at which time the deceased told him to leave. The applicant said the deceased reported to him that Mark had been violent towards her in the past, and that she had taken out a restraining order.
Arrest and interview
The applicant was arrested and first interviewed at 2.00am on 22 April 2007 at the Oakleigh Police Station. In that interview, he recounted details about the couple’s argument that evening, and stated that he left to go for a walk ‘sometime between 9:15 and 9:30…for a bit over an hour’. He also stated that the deceased did not lock him out of the house during their argument. The applicant went into further detail about the incident involving ‘Mark’ noted above, including that ‘apparently he stalks women’.
In his second interview at 1.37pm that same day, the applicant again recounted the details of the couple’s interactions in the lead up to the deceased’s death, and said he ‘went for the walk around half past 9 and got back (inaudible) two hours. Got back about quarter past eleven.’ The applicant mapped out his walk in detail. He also gave an account of locking the internal garage door upon leaving for his walk, and that it was open when he got home and the frame was broken, which he noticed from the garage.
Initial investigation
The initial police investigation included:
· A post mortem examination conducted on the deceased which determined the cause of death to be a head injury and ligature strangulation.
· A forensic medical examination of the applicant which identified small abrasions on two fingers, his right wrist and his upper back, red marks in the left armpit, a red lesion at the left upper thigh and a brownish-yellow bruise on his right upper arm.
· An examination of the scene which identified, among other things, that the internal door leading from the garage into the lounge room exhibited signs of an application of force from the outside of the locked door, causing damage to the door jamb where it engaged the latch. The front doors showed no sign of forced entry and there were no other signs of disturbance at the scene.
· The location of the applicant’s fingerprint on the edge of the architrave and the door upon examination of the broken door frame. No other fingerprints were located in this area.
· A statement from Mark Spiers, the former partner of the deceased, accounting for his movements on the night, which was supported by his housemate.
· Police retracing the route that the applicant indicated he had taken on his walk, which took one hour and twelve minutes to complete.
· An examination of the garage door at the scene which revealed that it remained open for between 47 and 48 seconds before self-closing, and enquiries of the landlord who confirmed that there was only one remote control.
Subsequent investigation
In 2017, items seized during the initial investigation were subject to DNA testing, the results of which are summarised at [110] of the police summary.
In 2020, police commenced a covert investigation into the murder of the deceased, which adduced telephone intercept and listening device material, leading to the arrest of the applicant on 6 January 2021.
This included a recorded conversation between the applicant and a journalist, during which the applicant alleged that the deceased had been involved in drug trafficking which may somehow be connected to her death. He later expressed to his current partner that he had not told police about his alleged drug theory before as he could not prove it. He also recounted believing someone had been in the front flower bed at the unit prior to the deceased’s death, and when he went to check, he observed that the flowers were squashed.
In another recorded conversation with his partner, the applicant recounted the details of his argument with the deceased that night, saying that she threw the television remote outside, and when he went to retrieve it, the deceased locked the door on him, so he walked down through the garage and back into the house through the side door. He went on to say:
And then she basically said I need some space, please take the dog for a walk, and we sat on the couch in the garage for about 5 minutes and talked. She said ‘We'll work this out. I'll call you when I'm ready for you to come back’. So fuck knows that she was doing in that time. For all I know she could have been, could have had someone coming around, to call in and she didn't want me there. She said she'd call me. And she never called me. By about 11'oclock I was starting to get concerned so I went back.
Police reviewed existing evidence. In the photographs, there was no apparent damage to the plants in the flower bed referred to by the applicant, and the couch in the garage that he said they sat on had several items stacked across it.
The applicant was arrested at his home on 6 January 2021, and provided no comment in his police interview.
Personal background and criminal history
The applicant is 66 years of age. He was born in the United Kingdom and migrated to Australia as a child with his family. At the time of his arrest, the applicant resided on his own in Casterton.
The applicant characterised his upbringing as dysfunctional in the context of his mother’s mental health issues, and her directing acts of abuse at him, while his brother was reportedly viewed as the favourite child. The applicant reported moving out of the family home as a teenager and residing with his maternal grandparents.
The applicant achieved a year 9 level of education, and returned to study later in life to complete a computer repair and installation course. The applicant reported that he has been unable to work as a result of mental health issues, and has been in receipt of unemployment benefits for around 13 years.
The applicant has been married twice and has two children to his first wife. He does not maintain contact with his children. The applicant has been with his current partner, Linda Barry, since 2013.
The report of Mathew Staios, a clinical neuropsychologist, exhibited to the affidavit in support, indicated a diagnosis of Adjustment Disorder (with mixed depressed/anxious features). The applicant has apparently had a background of chronic depression. Mr Staios considered the applicant to be in need of treatment for his psychological condition.
Also of note is a serious left leg injury sustained by the applicant as a result of a motor bike accident in 2019. He was admitted as an inpatient to Flinders Medical Centre in South Australia and received surgical intervention for his injuries. The recovery has been problematic, and the applicant still suffers the after-effects and requires further treatment, possibly surgical.
The applicant has one entry on his criminal record in Victoria. He was convicted at the County Court at Melbourne in 2018 for indecent act with a child under 16 and indecent assault. He was sentenced to a total effective sentence of two years and four months’ imprisonment, which was wholly suspended for a period of three years. The date of offending was between 1988 and 1995.
The applicant’s criminal history also includes convictions for driving and dishonesty matters between 1975 and 1983 in Western Australia and New South Wales.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
As already indicated, the exceptional circumstances test applies in this case. The applicant bears the burden in respect of that test. In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[1] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[1]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J in DPP v Muhaidat[2] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[3]
[2][2004] VSC 17.
[3]Ibid [13]; See also Re Sipser [2019] VSC 362 [43]; Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[4]
[4]See, for example, Re Brown [2019] VSC 751 (Lasry J).
Applicant’s submissions
Ms Tittensor SC, who appeared with Ms Dixon for the applicant, relied on a combination of factors in proof of the existence of exceptional circumstances in this case. The factors were as follows:
a. The weakness of the Crown case. Ms Tittensor relied centrally upon this factor, submitting that it would suffice on its own to prove exceptional circumstances, but in any event relying upon it in combination with the other factors. She pointed to cases indicating that where the prosecution case is not a powerful one, that will often weigh heavily in favour of a finding of exceptional circumstances. In respect of the relationship evidence relied on by the prosecution, this should not be given undue weight, Ms Tittensor submitted. The evidence does not disclose a relationship of hatred and enmity, and the only evidence possibly pointing to physical violence by the applicant towards the deceased is not powerful, and may well be excluded. In respect of the opportunity the applicant seemingly had to carry out the crime, there was the opportunity for an unidentified third party to have entered the unit, something which Coroner Spanos found could not be excluded on the evidence. The supposed identification evidence was weak, and may in fact support the theory of third-party involvement. The noises heard by the neighbours were equivocal. The product of the telephone intercepts and listening devices could not rationally affect the assessment of the prosecution case. The passage of time and expected difficulties with memory would provide reasonable explanations for discrepancies in details related by the applicant. Ms Tittensor pointed to the absence of forensic, CCTV, or eye-witness evidence that was inconsistent with the applicant’s account or connected the applicant to the crime. She submitted that the evidence now is not materially different from that which led Coroner Spanos to the view that there were hypotheses consistent with innocence which could not be excluded.
b. The delay from the date of the alleged offending to the present time, and the applicant’s conduct throughout those 14 years. Ms Tittensor advanced this as perhaps the most important factor upon which reliance was placed in proof of exceptional circumstances. She relied on decisions in previous cases[5] which indicate that a long delay between the alleged murder and the decision to lay the charge will often weigh heavily in favour of a finding of exceptional circumstances. This will be especially so when the applicant, as in this case, remained available to cooperate with the authorities in the meantime and did not interfere with witnesses or seek to flee. The applicant was a prime suspect throughout the many years since the events in question. The long period of time which elapsed is highly unusual and arguably exceptional in its own right.
[5]Re Petrov [2019] VSC 705 (Almond J); Re Debresay [2015] VSC 756 (J Dixon J); R v Penny [2015] VSC 155 (T Forrest J).
c. Delay before trial. On current estimates, the trial may be reached in April 2022, but this may be subject to further delay due to the effects of the COVID-19 pandemic. Ms Tittensor submitted that whilst the prospective delay would not be inordinate, it would still be a factor bearing on the proof of exceptional circumstances.
d. The applicant’s health, especially his mental health, and the increased onerousness of his remand. In respect of the health issues, Ms Tittensor relied upon the report of Mr Staios pointing to the psychological difficulties of the applicant and his need for treatment, the exacerbation of his condition due to his experience in custody, the ongoing mobility and pain concerns raised by his physical injury due to the motor bike crash, and the availability of treatment options for both his physical and psychological problems outside custody. Whilst acknowledging that treatment would be available to the applicant in custody, Ms Tittensor submitted that it would not be of the quality and consistency available to him on the outside, where he has consistent treatment options in place to deal with both his psychological and physical issues. Ms Tittensor also emphasised the difficulties confronting the applicant in respect of the above problems due to the onerous conditions of custody he faces, largely as a result of the fact that he is in a protection unit and due to provisions made to avoid the transmission of COVID-19 inside the prison population. Ms Tittensor also made mention of a number of episodes of confusion experienced by the applicant in the context of the difficult and, for him, distressing conditions of remand.
e. The availability of a surety of $215,000. The partner of the applicant offered a substantial surety based on the value of her home in Bruthen, and as she is the person with whom it is proposed that the applicant would live if released on bail, it was significant that her evidence indicated that she is familiar with the role of a surety.
f. Ties to the jurisdiction and the availability of accommodation and community supports. Ms Tittensor noted that whilst still a citizen of the United Kingdom, the applicant is a permanent resident of Australia and has no current passport. He has strong ties to Victoria, most notably in the form of his partner, Ms Barry, with whom he has been in a relationship since 2013, and with whom he would live in his house in Casterton if released on bail. He also has the support of his nephew who has been looking after his home while the applicant has been in custody. He has his own general practitioner in Casterton who has provided care to the applicant for several years.
g. The absence of relevant prior or subsequent criminal history, including offences against the Act.
h. The fact that he does not pose an unacceptable risk, as confirmed by the position of the respondent on that score.
In dealing with the mental condition of the applicant in custody, Ms Tittensor noted that this had impaired the ability of his legal advisors to obtain instructions from him.
In conclusion, Ms Tittensor submitted that the Court should comfortably find that the circumstances of this case are out of the ordinary, and indeed, exceptional. She submitted that in light of the applicant’s current mental health issues, it would be likely that if he remains in custody, there will be a further decline in his mental health. She submitted that there:
would be a real injustice to see him suffering that decline, in circumstances where it’s acknowledged he poses no unacceptable risk and is presumed innocent. Furthermore, his bail in the lead up to his trial for this offence will allow him the best possible chance to participate in his defence and to be able to provide his lawyers with clear and cogent instructions, something that is an issue, as things currently stand.[6]
[6]Transcript 22.
The respondent’s submissions
Ms Harper, for the respondent, made it clear at the outset that the respondent does not assert that the applicant poses an unacceptable risk. She challenged the contention, however, that exceptional circumstances had been established.
In respect of the strength of the prosecution case, Ms Harper commenced by denying that the case is a weak one, and in the end went as far as to submit that whilst not overwhelming, the case is a strong circumstantial case pointing to the guilt of the applicant. She detailed some of the facets of the evidence that would make good that claim.
First of all, the evidence would show that the relationship between the applicant and the deceased had been deteriorating over the days and weeks leading up to the events. She had asked him to leave the house. On his own admission, she had kicked him out of their bedroom that very morning. He was distressed about this position.
Ms Harper submitted that there would have been limited opportunity for a third party to have entered the premises and killed the deceased. She acknowledged that this opportunity was not confined to the 90 seconds or so which it took for the garage door to close after the applicant operated the mechanism before leaving on his walk, but still, it was a matter of a couple of hours only. As Ms Harper put it, there were no alternative offender scenarios open, save for the drug allegation scenario advanced by the applicant as recently as 2020.
There was evidence of a neighbour who heard sounds consistent with being a disturbance at about the time the applicant claimed to have left on his walk.
Ms Harper referred, also, to inconsistencies between the accounts given by the applicant in 2007 and those more recently. Some of these, including the recent claim by the applicant of having been locked out of the premises by the deceased, and the recent claim of a possible drug connection with the death, were significant.
Ms Harper submitted that the evidence had become stronger since the time when the Coroner had reached her views about the case.
In respect of the mental and physical problems of the applicant, Ms Harper submitted that Corrections Victoria is well equipped to provide the necessary care for the applicant.
As for the impact of the COVID-19 pandemic, this is relevant, but not as significant an issue as it was in the past. Amongst other things, the courts are now up and running effectively, albeit at reduced capacity.
The likely delay in the hearing of this case, submitted Ms Harper, is not inordinate, and far from exceptional. In that regard, Ms Harper drew the Court’s attention to the decision of Beach JA in Re Roberts.[7] Furthermore, it was submitted that this is clearly not a case where the applicant would spend more time on remand than he would receive as a sentence.
[7][2020] VSC 793.
Analysis
The two matters relied upon most heavily by Ms Tittensor amongst the constellation of factors pointing to exceptional circumstances were the asserted limited strength of the prosecution case and the long delay between the alleged offence and the present time.
It is neither necessary nor appropriate in the decision on this application for me to descend into great detail in analysis and description of the strength of the prosecution case. Ms Tittensor did not assert that the case is a weak one, and, if I may say so, correctly so. Ms Harper, for her part, did not claim an overwhelmingly strong case. That concession, to my mind, was also appropriate. Ms Tittensor submitted that it is a case with triable issues. I accept that proposition. Ms Harper, in the end, submitted that the case is a strong one.
Ms Tittensor made much of the finding of the learned Coroner as to innocent hypotheses which could not be excluded. I could not find, on my reading of the finding of her Honour, her use of that specific terminology in the paragraphs to which I was referred. At [24], Coroner Spanos stated:
The possibility that an unknown person may have climbed the rear fence and entered the garage through its rear door, and then forced entry into the unit through the connecting door, cannot be entirely excluded.
In respect of the prospect of an unknown person having gained entry through the garage door before it closed, her Honour said, ‘Again, the possibility that an unknown person gained access to the unit in this way, cannot be excluded’.[8]
[8]Coroner’s finding [25].
Insofar as Ms Tittensor sought to rely on the conclusions of Ms Spanos as mentioned, it is only reasonable for me to set out her Honour’s overall conclusion in this regard. She stated:
I do not disregard the phenomenon of coincidence, but I find it highly improbable that on the evening of 21 April 2007, the day when a difficult relationship broke down, at least to the extent that Ms Howell asked Mr Charlton to leave her home in one month and leave her bedroom immediately, an unknown assailant forced his/her way into the unit, inflicted fatal injuries on Ms Howell and left without leaving any sign of struggle or taking anything. Moreover, that he/she did so opportunistically, while Mr Charlton was out walking the dog. On my assessment, the evidence supports a finding that Mr Charlton caused or contributed to Ms Howell’s death.[9]
[9]Ibid [30].
It is of considerable note, of course, that for many years after this finding of the learned Coroner, a murder charge was not brought against the applicant. That surely must say something about the perceived strength of the case in 2011 and in the ensuing years.
I do accept that the case has been strengthened by the evidence which has come to light more recently as a result of statements made by the applicant to various people. I consider, however, that that material would fall short of enhancing the prosecution case to a dramatic degree.
All things considered, I think it is appropriate to act, for present purposes, on the basis that the prosecution case is of at least reasonable strength. The case is by no means a weak one. Nor is it an overwhelming one.
Turning to the second of the main matters relied upon by Ms Tittensor, namely, the long delay between the event in question and the charging of the applicant, this is a very significant matter, as common sense and the authorities would indicate. Many years passed during which the applicant knew, at all times, that he was the main suspect in the eyes of the police. He was always available to the police, and never sought to flee or depart the jurisdiction, although nothing stood in the way of his doing so. In the meantime, whilst he was dealt with for unconnected offending which occurred many years previously, there is nothing to suggest he committed any criminal offences.
The passage of these years, and the applicant’s good conduct in the interim, would go a long way to defusing any concerns that he would pose a risk of reoffending or absconding should bail be granted. No doubt, this would have been an important factor in the very appropriate approach taken by the prosecution in not seeking to agitate the question of unacceptable risk.
In the circumstances, the absence of an unacceptable risk as contemplated by s 4E(1) of the Act is an important matter weighing in the balance when the question of exceptional circumstances is considered.[10]
[10]See, for example, Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).
In the applicant’s case, there are a number of other matters which would make a contribution to his cause where exceptional circumstances are concerned. These include his lack of relevant prior convictions or breaches of the bail laws, the serious mental and physical difficulties from which he suffers, which are highly likely to be further exacerbated by his continued incarceration at this time, the onerous conditions under which he would spend time on remand, the likely future delay, which, whilst not inordinate, is made the more significant by the physical and mental impediments of the applicant and the conditions of his remand, the stable relationship and accommodation to which he would return should he be released on bail, and the availability of a substantial surety.
In Roberts v The Queen,[11] the Court of Appeal conducted a review of bail decisions in exceptional circumstances cases. The Court noted:
What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.[12]
[11][2020] VSCA 793 (Maxwell P, Niall and Emerton JJA).
[12]Ibid [9]-[10].
In this case, having given the matter anxious consideration, I am satisfied that as a result of the combination of matters relied upon by the applicant, exceptional circumstances exist that justify the grant of bail. In the circumstances as I have found them to be, the continued incarceration of the applicant pending his trial would be unjust.
Turning to the second step of the two-step process of bail, I am not satisfied that the applicant poses an unacceptable risk, or indeed, any significant risk, of engaging in any of the conduct contemplated by s 4E(1)(a) of the Act.
Conclusion
For the reasons I have stated, bail will be granted on the conditions I will shortly announce.
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