Re Ford
[2021] VSC 519
•23 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0172
| IN THE MATTER of the Bail Act 1977 | |
| - and – | |
| IN THE MATTER of an Application for Bail by Jacob Ford | Applicant |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2021 |
DATE OF JUDGMENT: | 23 August 2021 |
CASE MAY BE CITED AS: | Re Ford |
MEDIUM NEUTRAL CITATION: | [2021] VSC 519 |
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CRIMINAL LAW – Application for bail – Accused charged with murder – Whether exceptional circumstances exist justifying the grant of bail – Whether accused an unacceptable risk – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pearson | Adrian Paull Criminal Lawyers |
| For the Respondent | Ms C Parkes | Office of Public Prosecutions |
HER HONOUR:
By application dated 8 July 2021 the applicant seeks a grant of bail with respect to a charge of murder.
The matter is listed for contested committal on 23 November 2021.
Summary of alleged offending
Ms Kobie Parfitt, the deceased, lived in Hickman Street, Ballarat (‘deceased’s home’). She was last seen on 28 April 2020. Her remains were located by police in a mineshaft in Snake Valley on 22 December 2020.
The prosecution case is that the applicant, Brendon Prestage, Renee Reynolds and Shannon Jeffrey were at the deceased’s home on 28 April 2020 pursuant to a joint plan. Jeffrey assaulted the deceased, resulting in her death. The applicant, Reynolds and Prestage then assisted Jeffrey to dispose of the deceased’s body.
Background
In November 2019 Jeffrey moved some of her belongings into the deceased’s home. She also stored other items in a shipping container on the property.
Jeffrey was later arrested at the deceased’s home and taken into custody for an unrelated matter. Between January and April 2020, whilst in custody, Jeffrey had numerous telephone calls in which she told various people, including the deceased, that she believed that the deceased was a ‘dog’. She said that the deceased had sold some of her belongings, had ‘lagged’ to the police and lied about it.
Jeffrey was released from prison on 17 April 2020. The day before, during a telephone call to a friend, Jeffrey stated that she was going to attend the deceased’s home and ‘fucking go off [her] head’.
24 to 26 April 2020
In the early hours of 24 April 2020 the deceased was at home, alone. She sent a text message to her former partner stating that she had been warned that ‘Shan’ was behind something that had been planned and that she needed to ‘get out of this house asap’. The deceased sent similar text messages over the next days. She also made arrangements to move out of her home.
On 26 April 2020 Reynolds, a friend of the deceased, arrived at the deceased’s home.
27 April 2020
The applicant drove Jeffrey and another person, William Blackall, to the rear of the deceased’s home in the early hours of the morning. The deceased and Reynolds were present. Jeffrey and the applicant entered the house by the rear stairs while Blackall remained in the applicant’s car. The applicant and Jeffrey began filling up bags with the deceased’s belongings. Jeffrey also took the deceased’s mobile phone.
Blackall became impatient at waiting and also entered the deceased’s home. He observed the deceased sitting in a chair with a blanket around her. She told him that she knew that this day was coming and was petrified. Blackall then assisted the applicant and Jeffrey with bagging the deceased’s belongings and loading them into the applicant’s vehicle.
Before the applicant, Jeffrey and Blackall left, Jeffrey hit the deceased, causing a bloodied nose. They then travelled in the applicant’s car to a paddock in Sebastopol and met with Prestage, who arrived in his own vehicle.
Reynolds remained with the deceased overnight.
At 8.19am the deceased used Reynolds’s mobile telephone to leave a voice mail for her former partner saying ‘… it’s me, can you call Renee’s phone please. There’s been some shit that’s happened. I don’t have my phone.’
At some point during the day, Reynolds drove the deceased to her own residence to provide a safe place to rest. Both the deceased and Reynolds continued to attempt to contact the deceased’s former partner. In one message left by the deceased she stated ‘I’m going to end up dead if U don’t help me.’
28 April 2020
On the morning of 28 April 2020, the deceased and Reynolds discussed the situation with Jeffrey in an attempt to resolve it. Reynolds then travelled alone to the deceased’s home to meet Jeffrey, leaving her daughter and the deceased at her own residence. Upon her return, Reynolds arranged for her daughter to be minded whilst she drove the deceased to the deceased’s home.
Upon arrival, Reynolds went inside. The deceased remained in Reynold’s car. A neighbour, Rhiannon Smith, approached the deceased. Ms Smith observed the deceased to be shaking. The deceased asked Ms Smith to call the police as there were people in her house taking her belongings.
The applicant, being Ms Smith’s cousin, came out of the deceased’s home and stood by the car. The applicant told the deceased that she was going to go inside. The deceased stated that she was not and wanted Reynolds. Ms Smith observed the deceased to be frightened by the presence of the applicant. She invited the deceased into her own house.
Shortly thereafter the applicant knocked on Ms Smith’s door. He was invited inside. He spoke with the deceased before they all went outside for a cigarette.
Jeffrey arrived in the street and approached Ms Smith. The deceased returned inside Ms Smith’s house. Ms Smith asked Jeffrey and the applicant what was happening. The applicant stated that they were collecting the deceased’s property because she had sold off Jeffrey’s belongings and that Jeffrey also wanted to know why the deceased had spoken to the police about her. Ms Smith sought reassurance that the deceased would not be harmed. The applicant and Jeffrey said that they just wanted to talk to the deceased.
Ms Smith went inside and spoke with the deceased. The deceased came outside and sat in the passenger seat of Reynolds’ car. Reynolds entered the driver’s seat. The applicant opened the gates to the deceased’s home. Reynolds drove the car into the backyard.
The deceased got out of the car in the presence of the applicant, Jeffrey, Prestage and Reynolds. Jeffrey immediately started an argument about her grievances before assaulting the deceased, resulting in her death.
At about 9.00pm the applicant, Jeffrey and Prestage took the deceased’s body to Snake Valley, about 30 kilometres from Ballarat, in Prestage’s vehicle. After spending several hours searching for a location to dispose of the deceased, they threw her body to the bottom of a deep mineshaft. Prestage’s vehicle has not been located by police.
Discovery and examination of deceased’s remains
Police commenced a search in Snake Valley for the deceased’s body on 14 December 2020. The search area was identified through analysis of Prestage’s mobile telephone, which he had turned on and kept with him when the body was discarded. The deceased’s remains were found in a deep mineshaft on 22 December 2020. The deceased’s body was fully wrapped in bedclothes and plastic, including a plastic bag around the head. Another doona and dirt had been placed on top.
The remains were identified as belonging to the deceased through DNA analysis. The post mortem examination was conducted on 23 December 2020. The pathologist could not ascertain the cause of death. The autopsy report notes advanced decomposition, most prominent about the head and neck. There was no conclusive evidence of injury sustained in life, although the report notes that subtle injuries may not be apparent with significant decomposition. A forensic odontologist considered fractured nasal bones to have occurred post mortem. A forensic radiologist could not ascertain whether fractures to thoracic vertebrae five to seven occurred pre or post mortem. There was no evidence of natural disease sufficient to cause death within the limitations of the examination due to decomposition.
Arrest of applicant and co-accused
Prestage and Jeffrey were charged with murder on 29 December 2020 and 29 January 2021, respectively. Both gave no comment records of interview.
The applicant, whilst in custody for unrelated matters, agreed to speak to police on 25 November 2020. He stated that he barely knew the deceased. He denied ever attending the deceased’s home. When interviewed again on 12 February 2021, the applicant provided no comment. He was charged with murder that day.
Reynolds participated in a recorded conversation with the police on 2 December 2020. On 23 December 2020, she was interviewed and provided an account of the events, as well as a written statement. She was charged with murder on 18 February 2021.
Legal Considerations
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[1] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Bail Act 1977 (‘Act’).
[1]The applicant is accused of committing a Schedule 1 offence.
The meaning of exceptional circumstances is well known. The circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If exceptional circumstances are shown satisfactorily, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one. In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[2]
[2]The Act, s 4E(3).
I am to apply and interpret the Act having regard to the guiding principles delineated in s 1B(1).
Applicant’s personal circumstances
The applicant is 35 years of age. He was schooled in Ballarat to Year 9 level. At the age of about 15 years he commenced working in the field of carpet and vinyl floor laying. The applicant worked for a decade with the firm at which he completed his apprenticeship.[3] He then owned his own business for many years.
[3]A character reference authored by a representative of that company annexed to the affidavit in support of the application was later withdrawn as its author was unaware of the purpose for which it was being used.
The applicant’s father is a Cook Islander. His mother is an Aboriginal Australian.[4] They are both aged in their sixties. They are separated, but on good terms. He is the fourth child in a sib-ship of six. He is supported by his brothers and sisters. One of his sisters offers her Bacchus Marsh home as a bail residence for the applicant. Another offers a cash surety in the sum of $15,000. His older brother offers him employment in his commercial construction company to be supervised by the youngest brother, who works as a foreman in that enterprise. The applicant’s father is also employed by the company.
[4]Counsel for the applicant did not make any submission with respect to s 3A of the Act.
The applicant has four children from two previous relationships. The youngest lives with the applicant’s youngest sister. Two of the eldest three live with their maternal grandmother, while the third lives with his/her mother.
Applicant’s criminal history
Between 2003 and 2018 the applicant was, on six occasions, found guilty of offences resulting in the imposition of fines. This included a conviction in 2018 of failing to answer bail.
In February 2020 he was convicted of recklessly causing injury, contravening a conduct condition of bail and committing an indictable offence whilst on bail. He was sentenced to an aggregate one month term of imprisonment and a Community Correction Order (‘CCO’) for 18 months.
In March 2020 the applicant was convicted of burglary, theft, intentionally destroying property, possessing a controlled weapon without excuse and various driving offences. He was sentenced to a CCO for 18 months.
In March 2021 the applicant was convicted of various Road Safety Act 1958 offences and possessing a controlled weapon without excuse. He was also found to have contravened both CCOs and was resentenced for the original offences. The applicant was sentenced to an aggregate term of imprisonment of four months, a fine and a 12 month adjourned undertaking.
The applicant also has a prior history for criminal damage in Western Australia.
Applicant’s materials and contentions
The applicant relies upon the affidavit of Ms Hollie Lyons, solicitor, affirmed 8 July 2021 and the affidavit of Ms Jasmine Ford, affirmed 17 August 2021. The applicant called viva voce evidence from two of the applicant’s sisters, Ms Ford and Ms Michelle Brown.
Ms Ford stated that she was close to the applicant and had ongoing contact with him by means of video and telephone calls. She has had custody of his youngest child for six months. The applicant has not seen that child, now 17 months old, since he was six months old. Ms Ford said that if the applicant was granted bail to live with Ms Brown, the distance between her home and that of Ms Brown was about a half hour drive. She said that she understood the obligations of a surety. She was willing to offer $15,000, a significant sum for her, because she trusted her brother. She stated that she was willing to ensure, as far as she could, that the applicant attend court and stated that she would notify police of any breach of bail as she became aware of it. In cross-examination Ms Ford stated that she was aware of the extent of the applicant’s criminal history, including his breach of bail and breach of CCO convictions.
Ms Brown stated that she lived in a rented three bedroom house in Bacchus Marsh with her 16 year old son and seven year old daughter. Her daughter slept at night in her room, so there was one bedroom spare. She said that she was prepared to have the applicant live with her if he was granted bail. She said that she had not been in direct contact with the applicant much since his remand, but that family messages were passed through Ms Ford. Ms Brown stated if a curfew was imposed as a condition of bail, she would do what she could to ensure the applicant complied with it. Further, she stated that she would notify police of any breach of bail as she became aware of it.
A number of grounds are argued to combine to produce exceptional circumstances.
First, it is submitted that while the charge of murder is, by its nature very serious, the alleged role of the applicant in the offending has ‘few, if any, features of aggravation.’ And, further, that the prosecution case against the applicant is ‘tenuous’ or ‘non-existent’.
In this respect, the applicant noted the following:
(a)While there is a body of evidence to suggest that the deceased was killed on 28 April 2020, that is not clearly established on the evidence.
(b)The presence of the applicant at the deceased’s home on 28 April 2020 is established by the statements of Ms Smith and her boyfriend, Stephen Ballinger. He is seen by them at the deceased’s home. Ms Smith states that at 1.48pm that day she spoke with the applicant’s partner, who stated that she had the applicant’s telephone. (By implication the applicant was not with his partner at that time). However, Ms Smith and Mr Ballinger were not present at the deceased’s home at the time of the killing. Further, there are no statements in the hand up brief from any witness who states that the applicant was present at the time of the killing.
(c)There are no statements in the hand up brief that state that the applicant did anything to wrap the deceased’s body or move it to the mineshaft. To the extent that there is evidence from analysis of Prestage’s phone that he was in the Snake Valley area between about 9.00pm on 28 April 2020 to the early hours of the following day, there is no evidence that the applicant was with him.
(d)The pathology report does not impact upon the strength of the case against the applicant.
(e)The statement of Grant William Kelly does not detail admissions allegedly made by the applicant.[5]
(f)The applicant’s DNA was not found on any item used to wrap the deceased’s body.
(g)Mr Blackall does not state that he was with the applicant and Jeffrey on 27 April 2020. He only states that he met with the applicant and Jeffrey sometime after Jeffrey’s release from custody (being 17 April 2020). His evidence is on that occasion he went to the deceased’s home and the applicant, Jeffrey and Reynolds were present, as was the deceased. Personal items apparently belonging to the deceased were loaded onto the applicant’s vehicle. His description of the deceased as being ‘petrified’ was a general observation rather than a direct observation of her interactions with the applicant.
(h)The 25 November 2020 denial by the applicant that he had ever attended the deceased’s home will ‘almost certainly’ be inadmissible by police failure to comply with s 464B(1)(a)(i) of the Crimes Act 1958 (‘Crimes Act’). Further, the prosecution has not served any notice under s 19 of the Jury Directions Act 2015.
[5]Cf Affidavit in Response to an Application for Bail, affirmed 9 August 2021 by Laura Stevenson, [7].
Second, the applicant has significant ties to the jurisdiction, particularly with respect to accommodation and employment. He has family support and the offer of a surety.
Third, the impact of the COVID-19 pandemic on remand conditions is relied upon as a ‘background feature’.
The applicant further submits that he is not an unacceptable risk of the s 4E(1)(a) factors.
The applicant accepts that the incident in which Mr Kelly was threatened with a firearm because he had made a statement, merely days after that statement had been served on the applicant and co-accused, is of concern. Nonetheless it is not relevant to risk posed by the applicant as Mr Kelly’s statement does not inculpate the applicant. There is no evidence of the applicant contacting the person suspected of that offending. Further, the relevance of the family connection between the suspect and the applicant is mere conjecture.
Although the applicant acknowledges that the alleged conduct occurred when he was subject to two CCOs and that he has prior convictions for offences against the Act, he submits that the risk he poses is not unacceptable. With respect to the conviction for failing to answer bail, the applicant states that this was as a result of his lawyers confusing the return date. When the mistake became apparent, he presented himself to police and was again released on bail.
As already noted, the applicant offers a cash surety in the sum of $15,000. He also proposes a static residence, a daily reporting condition and a curfew.
Respondent’s materials and contentions
The respondent relies upon the affidavit of Ms Laura Stevenson, solicitor, affirmed 9 August 2021 to oppose bail.
The respondent submits that the applicant has failed to demonstrate exceptional circumstances.
As to the strength of the Crown case, the respondent submits that it is a reasonable circumstantial case against the applicant. The following matters were highlighted:
(a)The Crown case is that the applicant (and other co-accused) entered into an agreement, arrangement or understanding with Jeffrey and each other to commit the offence of murder or to commit another offence in circumstances where the applicant was aware that it was probable that the offence of murder would be committed in the course of carrying out the other offence.[6]
[6]Crimes Act 1958, s 323(1)(c) and (d).
(b)The deceased was killed at her home address on 28 April 2020 and her body dumped by Jeffrey, Prestage and the applicant in the Snake Valley mineshaft sometime between 9.00pm that day and the early hours of the following morning.
(c)Jeffrey had a significant grievance with the deceased arising from her belief that the deceased had ‘lagged’ on her to the police and also sold some of her possessions. The applicant had known Jeffrey for twenty years and demonstrated in the lead up to 28 April 2020 that he was willing to participate in the plan to redress the grievance.
(i)On 27 April 2020 Mr Blackall observed the applicant, in the company of Jeffrey, take the possessions of the deceased from her home, place them in his car and store them in a shed at another property. (It is unclear on the evidence before me whether the applicant observed, as Mr Blackall did, Jeffrey hit the deceased and cause a bloodied nose). On that day Mr Blackall received telephone calls from the applicant’s father, sister and partner asking where the applicant was.
(ii)On 28 April 2020 the applicant told Ms Smith that the deceased’s possessions were being collected because she had sold items belonging to Jeffrey and that the deceased had ‘screwed over a lot of people’.
(d)Ms Smith is a childhood friend of Jeffrey. She is also the applicant’s cousin and the neighbour of the deceased. She observed people come and go from the deceased’s house. One of them was the applicant.
(e)On 28 April 2020 Ms Smith spoke to the deceased who asked her to call the police because she was in fear for her life. Specifically, she feared being placed in the boot of the car. This conversation took place after she had been brought to her house by Reynolds and while Reynolds, Jeffrey and the applicant were inside the deceased’s house.
(f)When the applicant later approached the deceased, Ms Smith observed her to be scared of him.
(g)During the afternoon of 28 April 2020 Ms Smith sent the applicant a message using Facebook Messenger. The applicant’s partner replied that she had his telephone. The Crown alleges that the applicant left his telephone at home to conceal his whereabouts.
(h)The recorded interview of 25 November 2020 was held prior to the discovery of the deceased’s remains. The applicant was cautioned and informed that police wished to speak to him about the whereabouts of the deceased. That questioning was done with the consent of the applicant and under s 41 of the Corrections Act 1986 (‘Corrections Act’). The prosecution alleged that during that interview the applicant told a number of lies which will, at trial, be argued to amount to incriminating conduct.[7] These are:
(i)The applicant denied ever attending the deceased’s home.
(ii)The applicant was unsure of the last time he saw the deceased.
(iii)The applicant found it hard to say whether he had seen the deceased in 2020.
(iv)The applicant could not say where he had last seen the deceased.
(v)The applicant did not know that the deceased was missing.
(vi)The applicant denied knowing Reynolds and Prestage.
(vii)The applicant did not have a mobile telephone at the relevant time.
[7]Jury Directions Act 2015, s 20.
The respondent submits that murder is, by its nature, a serious offence and that the particular offending in this matter involved pre-planning. Further, family support and the offer of employment are not exceptional. The respondent states that the deceased’s family members were opposed to the grant of bail.
The respondent further submits that the respondent poses an unacceptable risk of all of the s 4E(1)(a) Act factors.
With respect to risk endangering the safety or welfare of any person and interfering with a witness or otherwise obstructing the course of justice, the prosecution refers to the armed threat to Mr Kelly within days of his statement being served on the applicant and his co-accused, and the family connection between the suspect in that matter and the applicant.
With respect to the risk of committing an indictable offence whilst on bail and failing to surrender into custody in accordance with the conditions of bail, the respondent refers to the applicant’s history of breaching court orders.
Consideration
The major consideration with respect to the issue of exceptional circumstances is the strength of the prosecution case.
The applicant referred to three authorities in which an applicant for bail, charged with murder, was found to have demonstrated exceptional circumstances because the applicant was found to have ‘good prospects’ of a jury not being satisfied by the Crown beyond reasonable doubt that he did not act in self-defence,[8] in part because it was arguable that the Crown could not exclude the reasonable possibility that someone else had shot the deceased or, if the applicant had shot the deceased he was not acting in self-defence[9] and in part because the issue of murderous intent and self-defence were ‘live in a proper sense’.[10]
[8]Memery v The Queen [2000] VSC 495, [47] (Gillard J).
[9]Bail Application by Harry Dickenson [2020] VSC 721, [24]-[25] (Elliott J). His Honour found at [44] that exceptional circumstances had arisen from the combination of the ‘real and substantive issues’ raised in relation to the weakness of the Crown case together with the ‘very substantial supports’ put in place for the applicant.
[10]Re Application for Bail by Wilson [2021] VSC 22, [47] (Coghlan JA). His Honour found at [48] that exceptional circumstances had arisen from the combination of the ‘finely judged’ issues with the Crown case together with delay and the circumstances of detention due to COVID-19.
As a matter of principle, it is beyond doubt that the weakness of the prosecution case may, alone or in combination, be sufficient for an applicant for bail to discharge the burden in demonstrating exceptional circumstances. Each case must turn on its own facts.
Here, there are a number of issues to consider.
First, a reasonable jury might well accept that Mr Blackall accompanied the applicant and Jeffrey to the deceased’s home on 27 April 2020, even though he does not specifically nominate that date. The recorded messages and text messages from the deceased to her ex-partner about ‘some shit that’s happened’ and her fears of ending up dead were sent on that date.
Second, a reasonable jury might well accept that the deceased died on 28 April 2020. She was last seen on that date and Prestage’s mobile telephone places him in Snake Valley that same night. He is also alleged to have made an admission about dumping the deceased’s body to Mr Kelly.
Third, there is evidence to place the applicant (and Jeffrey) at the deceased’s house on 28 April 2020 at a time when Reynolds brought the deceased there, the deceased asked Ms Smith to call the police, and she was last seen alive. The applicant opened the gate to the property to allow Reynolds to drive the deceased into the back yard.
Fourth, there is no evidence of how the deceased was killed.
Fifth, there is no direct evidence as to who was present when the deceased was killed.
Sixth, there is no evidence that the applicant assisted in the disposal of the deceased’s body down the mineshaft. When pressed as to how the Crown put that matter, counsel for the respondent stated that it would be a significant task for Jeffrey to dispose of the body alone and she would have needed the assistance of Prestage (whose telephone places him in Snake Valley) and the applicant. The autopsy report notes that the deceased’s body weighed 49 kilograms and was 166 cm in height, with a Body Mass Index of 17.8. She was slight. Even if Jeffrey needed help to dispose of the body (affected by the changes of death) by two men, that does not prove that one of them was the applicant.[11] That said, participation in the disposal of the body was not a necessary step subsequent to participation in murder.
[11]The strength or otherwise of the Crown case against Jeffrey and Prestage is not a matter here considered.
Seventh, it is not ‘almost certain’ that the applicant’s answers to police on 25 November 2020 would be excluded at trial. While s 41 of the Corrections Act does not oust s 464B of the Crimes Act,[12] the procedure in s 464B(1) of the Crimes Act by which an investigating official may apply to a magistrate to have a person who is in prison and reasonably suspected of having committed an offence delivered into his or her custody for the purposes of question is not the only method by which an investigating official may question such a person. Section 464B(11) allows for the questioning of such a person if that person has given informed consent. On the material before me I could not conclude that the applicant did give informed consent.[13]
[12]Subsection 41(6) of the Corrections Act states: Nothing in this section applies to any questioning or investigation by a police officer in accordance with an order made under section 464B(5), or any questioning conducted by consent under section 464B(11), of the Crimes Act 1958.
[13]Crimes Act, s 464B(13).
Assuming, for the purposes of this application, the applicant’s answers to be admissible, it will be a matter for the trial judge to determine, on the basis of the evidence as a whole, whether they are reasonably capable of being viewed by the jury as evidence of incriminating conduct of murder.
Considering all of these matters, I do not accept the applicant’s characterisation of the Crown case as being ‘non-existent’ or ‘tenuous’. Jeffrey’s issues with the deceased were not settled by the removal of the deceased’s property on 27 April 2020. Whatever further settlement was required went beyond the removal of more property from the deceased’s home. It required the presence of the deceased on 28 April 2020 at her home. The applicant participated first in the removal of the property and then in ensuring the presence of the deceased in her gated back yard.
While there are triable issues in the Crown case against the applicant as to the existence and nature of the agreement, arrangement or understanding he is alleged to have entered into with his co-accused, I am not persuaded that the prosecution case is so weak as to amount to exceptional circumstances.
Nor am I persuaded that the strength of the prosecution case in combination with the applicant’s ties to the jurisdiction, offer of accommodation and offer of work amount to exceptional circumstances.
It is therefore unnecessary to consider the question of whether the applicant poses an unacceptable risk of the s 4E(1)(a) Act factors. However, I note that given his criminal history and his prior disregard for both conditions of bail and CCOs, I would not have been persuaded that the $15,000 surety and available residence were sufficient to ameliorate the risk he poses.
Conclusion
Bail is refused.
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