Re Dunne
[2009] VSC 148
•17 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1412 of 2009
IN THE MATTER of the Bail Act 1997
and
IN THE MATTER of an Application for Bail
| THE QUEEN |
| v |
| BILLY’ LEE DUNNE |
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JUDGE: | KING J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 February 2009 | |
DATE OF JUDGMENT: | 17 April 2009 | |
CASE MAY BE CITED AS: | Dunne v The Queen | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 148 | |
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Criminal Law – Bail application – Exceptional circumstances – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Flynn | Solicitor for the Office of Public Prosecution |
| For the Accused | Mr P. Morrissey | J. Dawsley & Associates |
HER HONOUR:
This is an application by Billy’Lee Dunne for bail pending a committal proceedings in respect of a charge of murder.
The murder is alleged to have occurred when the deceased died on 29 October 2008. The incident relating to the offence is alleged to have occurred on 23 October 2008.
The applicant is aged 21 years having been born on 23 July 1987. There is a co‑offender charged, being Paul Bahnert, who is charged with assisting an offender, the applicant Billy Lee Dunne.
The deceased man was Jessie Repia, a New Zealand native, who was aged 20, having been born on 17 May 1988, and the father of two children.
The circumstances of the alleged offending are that on Wednesday 27 October 2008 the deceased had been in the Frankston area for some time at different licensed venues, the last being the Robin Hood Tavern in Nepean Highway, Frankston. The applicant Dunne and the co-accused Bahnert also attended at the Robin Hood Tavern arriving there at approximately 11.40 pm that night. The deceased and the applicant both drank at that hotel over a number of hours. The applicant and the deceased also used ecstasy during that time, it is believed that neither the deceased nor the applicant knew each other.
At approximately 3.00 am the Robin Hood Tavern closed and all patrons, including the deceased and the applicant, left the premises at that time. The deceased went to a witness’ house where he watched TV and continued to drink. The applicant left the premises with the alleged co-offender Bahnert and three females being Renee Cannon, Mia Philogene and Elishia Blackburn and they were on the way to the premises of Bahnert. They stopped at a BP service station arriving at approximately 4.25 am to purchase some goods, whilst at approximately 4.35 am the deceased, together with persons by the name of Bree Saunders, Bronwyn Wallace and Oliver Norman, drove into the same BP service station. They were looking to buy cannabis.
Saunders walked over to the applicant and asked to buy some cannabis. The applicant told Saunders that he could sell her some cannabis. The deceased got out of the car and followed Saunders and they spoke to each other, during this conversation the deceased told the applicant to shut up. The applicant is then alleged to have said words similar to “Fuck him, telling me to shut up, who does he think he is”. Saunders is alleged to have told the applicant not to worry because the deceased was “just pissed”. A few moments later the applicant and Saunders walked back to Saunders’ car, with the applicant getting in the back seat, in the centre position. At this time Wallace got out of the vehicle in which the applicant was seated and walked over to where the deceased was talking to Cannon, Philogene and Blackburn, the deceased told those persons that he was going to bash the applicant Dunne. During this period Saunders drove out of the service station and stopped on the Nepean Highway where the deceased and Wallace got back into the car. The deceased sat behind the driver’s seat and Wallace behind the passenger seat, meaning either side of the applicant. Philogene and Blackburn also walked up to the car and informed the applicant what the deceased had said and they tried to get the applicant out of Saunder’s car but he dismissed what was said and stayed in the car. Saunders then drove towards the alleged co-offender Bahnert’s home.
During their relatively short drive back, the deceased and the applicant argued with each other again. Saunders and Wallace told them both to shut up. The applicant informed Saunders where to stop the car which was near the premises of Bahnert approximately 30 metres away from Bahnert’s driveway. The applicant then got out of the car and went inside to get cannabis.
At that stage, the co-offender Bahnert was already in the premises. Whilst inside the premises the applicant received a phone call from Cannon who allegedly again warned him that the deceased said he was going to bash him. The applicant picked up approximately 3 grams of cannabis and a large hunting knife and then left the premises and went back to where Saunders was parked. Bahnert also left the premises at that same stage.
The applicant went to the front passenger seat and gave the cannabis to Norman. It is alleged by some witnesses that after handing over the cannabis, the applicant looked in through the back passenger side door which was open, and made a comment to the deceased similar to “You still want to have a go, come on why don’t you get out of the car”.
It is alleged that the deceased got out of the car and walked up to the applicant. They grabbed hold of each other, a form of grappling took place, no punches were thrown and then the applicant raised the knife back and above his head and stabbed the deceased to the left side of the chest. The applicant then stepped back. Wallace got out of the car and came to the assistance of the deceased. It is alleged that the applicant then stepped forward and raised the knife again as if to stab the deceased and Wallace had positioned herself between them.
The deceased was placed into the car and Saunders drove straight to Frankston Hospital arrived there at 5.01 am.
The applicant and Bahnert went back to Bahnert’s flat, where he told the applicant to stay outside, strip off his clothes and he went inside and got some spare clothes for the applicant. He took possession of the applicant’s clothing, cooking oil and a roll of toilet paper and walked to the Kananook Creek walking track which runs along the rear of his flat, where he doused the clothes in toilet paper and the oil and set fire to them before returning home.
At approximately 5.30 am Bahnert returned to the Kananook Creek walking track and helped to put out the fire and once he had left the area the applicant Dunne is alleged to have retrieved the knife from the ashes and thrown it into the creek.
The deceased was, meanwhile, transferred to the Alfred Hospital, where he underwent surgery having suffered life threatening internal injuries, was placed in an induced coma and on 28 October 2008 life support was switched off and on 29 October 2008 died.
On the morning of 23 October the accused Bahnert and the applicant Dunne contacted staff at the Robin Hood Tavern in an attempt to have CCTV footage from both 22 October and 23 October destroyed. There appears to be on the CCTV footage from the Robin Hood Tavern indications that the deceased and the applicant and the deceased and Bahnert at some stage had contact and potentially unpleasant or agitated discussions but in respect of each of those matters there appears to be a shaking of hands before they continue on their way. There is also CCTV footage from the BP service station.
A search was conducted of the Kananook Creek area and its banks but the hunting knife was not located. Searches were made to locate the persons involved and witnesses and ultimately on 24 October the applicant attended the Frankston Police Station. After telephone conversations with investigators he participated in a record of interview which was videotaped.
During the interview the applicant outlined various things that had occurred at the Robin Hood Tavern including some name calling. He also outlined the requests made by Saunders to purchase cannabis from him and the warning that threats had been against him by the deceased. During his interview, the accused indicated to the police that he was warned that the deceased was going to stick him, meaning, as he understood it, that the deceased wanted to stab the applicant. Whilst in the car he said the deceased was saying things to him and he got the impression that the deceased was in fact looking for a fight. He said he told him to shut up.
The applicant also told the police that whilst he was inside Bahnert’s flat, that Renee Cannon rang him on his phone and told him that the deceased was going to stick him. He said that he armed himself with the hunting knife because of this phone call and he concealed it down the front of his pants before exiting the flat.
The applicant’s version in the record of interview of the incident is that when he went back to the car and handed over the cannabis, the deceased got out of the car and came towards him. He said he started to back away and he showed the deceased the knife to try to stop him advancing. He said that despite this, the deceased continued coming towards him and made what he described as a sudden movement, which he demonstrated during the record of interview as a jerking forward of the head and shoulders. The applicant said because of this he pulled the knife from his pants and pushed it towards the deceased. He demonstrated this, indicating he was holding a knife at his stomach level and moved his hand forward at that level and that the knife went into the deceased all the way to the handle. He agreed he then went back to Bahnert’s flat where he gave Bahnert his clothes to be burnt.
On 26 October 2008 the accused Bahnert was interviewed at Frankston Police Station and made a no comment interview. Subsequently, on 3 November, the accused Bahnert participated in a video link recorded interview. He indicated hostilities had occurred at the hotel, the Robin Hood Tavern but he left and went home. He was woken by a phone call from the applicant asking if there was any cannabis he could sell. He said he then fell asleep again. He said he was woken by the applicant when he came into the flat to get the cannabis. He said he heard the applicant on the phone to Renee Cannon and he believed that the applicant picked up a knife at the flat.
He said that he followed the applicant up the driveway which was some distance away. He said when he got to the footpath the applicant was already at the car. He said he saw the deceased get out of the car and walk towards the applicant. He said he saw the applicant walk backwards away from the deceased with his hands up. He said the deceased closed on the applicant and he then saw the applicant throw a punch at the deceased and he heard a thud. He then confirmed what actions he took after the incident.
In subsequent statements, two of the witnesses indicated that after the applicant had left the car to get the cannabis the deceased man had produced a small knife, (which is in the possession of the police currently, and for which there are not yet any DNA results available) and that one of the witnesses took that knife from him and believed she dropped it into her handbag prior to the applicant coming back to the car.
The applicant at no stage in his record of interview indicated that he saw the deceased in possession of a knife, a matter that one may expect would be mentioned if he saw or acted upon the presence of such an item.
In respect of the application, the basis of the application is that the applicant has by a combination of circumstances demonstrated that exceptional circumstances exist in this case. The factors relied upon to demonstrate that totality are:
a) that the applicant is a young man aged 21
b) that the case against him as to the murder is weak, in terms of him raising the issue of self defence, and the crown having to demonstrate that he does not have good prospects that his defence will be upheld either by way of a verdict acquittal or manslaughter.
c) that there will be delay and that he has a good network of support that is realistic and tailored to him.
d) and that in combination, those factors establish exceptional circumstances.
Counsel relied particularly on the decision of his Honour Justice Gillard in the case of Memery v The Queen[1] in paragraph 31 wherein his Honour stated:
It has been recognized by this court that a weak Crown case may constitute exceptional circumstances. If a defence of self-defence is raised by the accused then he has the evidentiary burden of establishing the basis for it. Once he does establish the basis for it then the ultimate burden rests upon the Crown to exclude the defence. There may be varying degrees of self-defence in that, if it has substance, the effect may either be an acquittal or a verdict of manslaughter. The outcome often depends upon the amount of force used at the time.
But more particularly Mr Morrissey relied upon paragraph 43:
The question here is whether there is sufficient evidence at this stage to satisfy this court that the applicant has good prospects that his defence of self-defence will be upheld by the jury with the result of either an acquittal or at worst a verdict of manslaughter.
[1][2000] VSC 495.
The Crown case on the way it is presented at this stage has the appearance of a strong Crown case. The defence submit, however, that when one looks at the statements of two witnesses in particular, being Bronwyn Wallace and Bree Saunders, in respect of their second statement they are not witnesses who could be regarded as credible or reliable witnesses for the Crown, and they are the persons upon whom a large part of the Crown case depends.
The criticism relates to the fact that neither of them mentioned in their first statement to the police that the deceased man had a knife in his possession at any stage. Both agree that they omitted any reference to the knife and gave an explanation for that omission in their second statement. The criticisms that Mr Morrissey makes are matters that are, in my view, not capable of assessment at this stage. The explanations they have given to the police are potentially reasonable explanations and it is a matter that will need to be established via cross-examination and examination-in-chief as to the credit worthiness of these witnesses. It is not something that can, in my view, be assessed at this stage.
Whilst Mr Morrisey has made a number of detailed criticisms, and referred to the statements at some length, it is my view, that the evidential situation is not one that is similar to the decision to which I was referred, being a bail decision I made in the matter of Dianne Faye Griffey[2]. In that case an early application was made for bail, some 3-4 weeks after the applicant had been charged, on the basis that the circumstantial case against the applicant was extremely weak. There was significant merit in the application and a circumstantial case of similar strength could have been made against the applicants’ son, and accordingly I held that it was a weak crown case.
[2]
Here, in my opinion, what remains is a fairly substantial Crown case with eye witnesses, behaviour after the event which is consistent with post-offence conduct demonstrating implied admissions, a failure to mention, in his interview with police, any knife or the production of any knife by the deceased man, prior to the applicant obtaining a large hunting knife and conflicting versions of how the events came to take place, in respect of whether the deceased got out of the car of his own volition or got out of the car as a result of being challenged to continue fighting by the applicant. They are very important issues in respect of the matter of self-defence.
Whilst I agree that self-defence has been raised by the applicant in his video record of interview, it does not appear to me at this stage to satisfy even what his Honour Justice Gillard said was the test to be applied, that is, “does the applicant have good prospects that his defence of self-defence will be upheld by the jury”. That is an argument that may have some merit if, after the committal proceedings, it has been established that these are not credible witnesses or reliable witnesses or witnesses upon whom no jury properly instructed would act. Accordingly, my view at this stage is that the Crown case is not a weak case and is in fact reasonably strong.
As to the other matter of his age, whilst the applicant is young, that by itself certainly does not justify any grant of bail. As to the aspect of delay, I am not satisfied that there will be any form of inordinate delay in respect of this matter, as once committal has occurred, the delay in having a trial heard in the Supreme Court is now quite short.
Another factor relevant to my decision is that on 20 February 2008, some eight months prior to this incident, the applicant was sentenced by his Honour Judge Gullucci to a sentence of 15 months’ imprisonment wholly suspended for 3 years. That matter again related to an assault and he was sentenced for one count of affray and one count of intentionally causing injury and his Honour stated at paragraphs 23 - 26:
23.In my view you have good prospects of rehabilitation. It is to your credit that despite your deprived and dysfunctional family background you have achieved full time employment, you do not have a long list of convictions and have family support. Your counsel has not told me anything of your history of alcohol use or abuse. However, it is clear to me that on this occasion you had consumed significant amounts of beer before becoming involved in this affray and assault on the victim Gates.
24.I make it clear to you that I do not regard your alcohol intake as some form of mitigating factor. In my view the amount of alcohol you consumed before you became involved in these offences is an aggravating factor of your criminal conduct.
25.Specific deterrence is a proper matter for the court to consider in your circumstances. The sentence of the court must be one that deters you from offending in a similar manner again in the future. There is no law that you cannot go out and consume alcohol but there is a law that when you go out and consume alcohol to a large degree and then commit criminal offences.
26.General deterrence is a significant matter in the circumstances of this case. Young men who are fuelled by alcohol and who then inflict gratuitous violence on other groups of young people going about their ordinary business must be made aware that the courts will denounce such criminal conduct and impose terms of imprisonment to be immediately served unless there are exceptional or unusual circumstances.
In relation to the circumstances that are proposed, the only difference that I can see between when you were released on a suspended sentence by his Honour Judge Gullucci and now, is that you have the support of Mr Simon Stadly, a post-release case worker from the Brosnan Centre who is prepared to assist you in accessing services in relation to drug and alcohol rehabilitation, together with education and employment skills. They are matters that I have to say should have been assessed and dealt with at the time of your receiving a suspended sentence. You were given, at that stage, a significant opportunity to do something in terms of rehabilitating your life, and you were certainly made aware that alcohol and the abuse of alcohol was a matter that you needed to be extremely careful about in the future. Your behaviour on this night, in terms of consumption of alcohol and possibly illicit drugs causes me concern, especially so soon after being spared a significant immediate gaol term, and whilst still being on a fully suspended sentence. At this stage, I am not satisfied that even if you had demonstrated exceptional circumstances, with the totality of the material put forward, that I would have considered you anything other than an unacceptable risk of further offending if released on bail. Accordingly I find that exceptional circumstances have not been demonstrated and bail is refused.
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