Re Frank
[2019] VSC 91
•22 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0006
IN THE MATTER of s 18A of the Bail Act 1977
-and-
IN THE MATTER of an appeal by the Director of Public Prosecutions against an order granting bail to JARROD FRANK
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2019 |
DATE OF JUDGMENT: | 22 February 2019 |
CASE MAY BE CITED AS: | Re Frank |
MEDIUM NEUTRAL CITATION: | [2019] VSC 91 |
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CRIMINAL LAW – Appeal against a grant of bail at committal proceeding – Exceptional circumstances – Finding by a Magistrate after committal - Strength of the prosecution case – Self-defence significant issue – Combination of circumstances – Whether Magistrate’s conclusion “reasonably open” - Bail Act 1997 (Vic) ss 3AAA, 4A, 4E, 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M. C. Fisher | Office of Public Prosecutions |
| For the Respondent | Mr D. Gibson | Victoria Legal Aid |
HIS HONOUR:
This is an appeal pursuant to s 18A of the Bail Act 1977 (Vic) (“the Act”) by the Director of Public Prosecutions (“the Director”) against an order made in the Bendigo Magistrates’ Court on 19 December 2018 granting bail to the respondent, Jarrod Frank.
Introduction
On 4 January 2018, the respondent was arrested and charged with the murder of the deceased, Scott Bury, at Mr Bury’s residence in Bendigo. The altercation that led to the death of Mr Bury occurred on 3 January 2018.
On 19 July 2018, the respondent filed an application for a grant of bail from this Court. That matter was heard by Champion J on 28 August 2018 and, on 6 September 2018, His Honour refused the application for bail.[1]
[1]See Re Frank [2018] VSC 718.
The committal proceeding was conducted on 18 December 2018 in the Bendigo Magistrates’ Court and, as I have already said, the respondent was granted bail on 19 December 2018. The presiding Magistrate was satisfied that exceptional circumstances had been established, and admitted the respondent to bail upon his own undertaking with the following conditions:
1.Report to the Bendigo Police Station each Monday, Wednesday, Friday and Saturday between 6.00am and 9.00pm.
2.Reside at 49 Native Gully Crescent, Eppalock.
3.Surrender any valid passports or any other valid travel documents held within 24 hours of his release to the informant and not apply for any other.
4.Not attend any points of international departure.
5.Not leave Australia.
6.Not leave the State of Victoria.
7.Not contact witnesses for the prosecution other than the informant.
8.Not leave his place of residence between the hours of 8.00 pm and 8.00 am except in the company of his mother or sister.
9.Present at the front door of his residence during curfew hours upon request of any member of the Victoria Police.
10.Comply with the lawful direction of counsellors and treating medical practitioners.
The result was that the respondent spent 11 months in custody before his release on bail. The murder trial for the respondent is listed to commence in this Court on 28 October 2019.
Factual Background
In His Honour’s ruling of 6 September 2018, Champion J summarised the factual circumstances of this case and it is convenient to refer to that summary. His Honour said:
[3] On 3 January 2018, the applicant and a friend, Andrew Lentjes, were walking through the Bendigo CBD when the applicant recognised the deceased. The applicant allegedly approached the deceased and, during the course of conversation, the two men made a bet over the calibre of a German officer’s Luger pistol. The deceased is alleged to have said, ‘I bet $100 that I’m right because I robbed a bank years ago and used a 9mm Luger’. The three men were unable to settle the bet and drove to the deceased’s home at King Street, Bendigo.
[4] The prosecution alleges that at approximately 11.43am at the deceased’s premises, the applicant found details of the Luger on the internet and said to the deceased, ‘here you go bitch, here you go’. The deceased allegedly responded, ‘you have called the wrong bloke bitch in the wrong house’.
[5] The deceased then went to the kitchen and obtained two large kitchen knives which he pretended to sharpen by moving them together in front of his chest in a crossing motion. Mr Lentjes, who was sitting in the kitchen area, states that the situation became threatening. He allegedly told the deceased man to put the knives down, however this was ignored.
[6] The prosecution alleges that the applicant entered the kitchen and the applicant and deceased moved towards each other. The deceased had a knife in each hand and was holding them above his head facing forward. The deceased struck the applicant to the chest with one of the knives causing a wound that was later assessed as being a superficial, horizontal tapering incision/abrasion. Mr Lentjes immediately observed blood coming from the applicant’s chest. He then left the room and went outside.
[7] The altercation between the deceased and the applicant continued, with the applicant allegedly throwing chairs at the deceased and attempting to disarm him. The Crown case is that the applicant was able to take possession of a knife. Allegedly, the applicant stabbed the deceased man to the abdomen and back, and inflicted defensive type injuries to his hands.
[8] From his location outside, Mr Lentjes reported hearing the deceased call out, ‘you’re really fucked now cunt’, before observing the applicant running out of the house and lifting up his shirt to reveal the injury to his chest.
[9] The events that followed in the driveway were captured by a CCTV camera that was located directly across the road. The applicant is observed getting into the driver’s seat of his motor vehicle.
[10] Shortly after, the deceased emerged from the premises with two knives in one hand, and a metal bar in the other. He began kicking at the applicant’s vehicle and attempting to strike the applicant through the window. At this point, the deceased appears to have been acting aggressively and violently towards the applicant. After unsuccessfully attempting to start the vehicle, the applicant got out and began wrestling with the deceased. At this point Mr Lentjes left the scene and walked away.
[11] It is alleged that the applicant and deceased continued to fight for control of one of the knives. The applicant allegedly got hold of a knife and threw it to the ground, before evading the deceased and leaving the scene on foot.
[12] At approximately 12.05pm, the deceased went back inside his home with the knives and the metal pole. At approximately 12.13pm, the deceased exited his home and sought help from his neighbour, stating, ‘help me, help me, I’m dying’.
[13] The neighbour contacted emergency services and the deceased was subsequently transported by ambulance to Bendigo Base Hospital, where he died from a stab wound to the abdomen.
[14] Following the incident, the applicant walked to Bendigo Train Station, put his jumper in a toilet and attempted to use a pay phone. The applicant ran into Mr Lentjes and the two men took a taxi to a hotel in Kangaroo Flat, where they had lunch.
[15] The applicant later showered and got changed at Mr Lentjes’ home, and used the washing machine to clean his clothes. The applicant allegedly informed Mr Lentjes that he was planning to go back to the deceased’s home to collect his vehicle, stating that, ‘hopefully [the deceased] has woken up to himself and will give me the keys back’. Mr Lentjes reports the applicant was otherwise unresponsive when asked about the incident, and he formed the view that the applicant did not want to talk about it.
[16] On 4 January 2018, the applicant was arrested. During a record of interview, he provided an account of events broadly consistent with the case alleged by the prosecution. However, the applicant could not explain the injuries to the deceased’s back or hands, telling investigators that he only stabbed the deceased to the torso. The applicant stated that he stabbed the deceased outside, while the prosecution alleges that he stabbed the deceased inside his home. The applicant maintained that he was acting in self-defence at all times.
[17] It is of note that the prosecution does not suggest that any collusion has occurred between the applicant and Mr Lentjes. It is accepted that both men are ‘witnesses of truth’, save for the applicant’s account of how the injuries were inflicted upon the deceased.[2]
[2]Ibid [3]–[17].
From that summary, the several matters of significance arise:
· The deceased initiated an attack on the accused with two large kitchen knives inside house; inflicting a wound on him;
· The accused attempted to disarm the deceased;
· The accused later ran out of the premises and was pursued by the deceased with two knives and a metal pole, who then attacked the vehicle that the accused had gotten into; and
· The accused and deceased wrestled again with the deceased being the aggressor, but the accused got away and left the scene.
Thus, although His Honour refused the application for bail, self-defence has been the obvious principal issue in this case from the beginning and will be on the trial.
This appeal
The notice of application to appeal against the grant of bail filed by the Director recites the following ground:
That the learned Magistrate erred in granting bail to the respondent in that it was not reasonably open for the learned Magistrate to conclude that the respondent had demonstrated to the Court that he had established that he was entitled to be admitted to bail because of the presence of ‘exceptional circumstances’ pursuant to s 13 of the Bail Act 1977.
I note that it is not contended by the Director that the applicant is an unacceptable risk of any of the matters set out in s 4E of the Act as it now stands.
The Director’s right of appeal under s 18A of the Act was most recently examined by Weinberg JA (sitting as a judge of the Trial Division) in DPP v Molinaro.[3]In that case, His Honour doubted that, on an appeal, s 18A(6) should be construed as a test as to whether the impugned finding of the Magistrate was ‘reasonably open’. However, as the parties in that case had proceeded on that basis and the grounds of appeal were specifically drawn in those terms, he determined the appeal in accordance with that test. Likewise in this case, the ground of appeal is drawn in those terms – i.e. “…that it was not reasonably open to the learned Magistrate to conclude…”[4] that exceptional circumstances had been established.
[3][2017] VSC 624.
[4]See notice of application to appeal filed 14 January 2019.
It is important to note that, in the event that error is found as asserted, a fresh hearing must be conducted in relation to the grant of bail to the respondent, such that s 18A contemplates, as His Honour described it, a two-stage process. The first stage is correction of error and the second stage is, in effect, a hearing de novo.
Exceptional circumstances
In this case, the conclusion the Magistrate reached was that exceptional circumstances had been established by the accused; primarily in connection with the lack of strength of the prosecution case. “Exceptional circumstances” is a phrase of regular application in applications for bail through the criminal justice hierarchy and whether an applicant for bail has succeeded in establishing them. Though not defined by the Bail, s 4A(3) of the Act provides:
In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances.
In turn, “surrounding circumstances” is defined in s 3AAA of the Act.
Thus, although not defining the meaning of the phrase “exceptional circumstances”, the Act contemplates a process discussed in the authorities as to what it means. For example, in R v Chung,[5] I reviewed some aspects of the judicial analysis of the meaning of that phrase:
[5][2015] VSC 487.
[13] The provisions of the Bail Act which apply to the Applicant require a refusal of bail by the Court unless a condition is satisfied, being the existence of exceptional circumstances.
[14] Over many years in this Court there have been a number of rulings on applications for bail where the meaning and effect of that test is considered and dealt with. An obvious challenge in determining such an application is the absence of legislative guidance on the meaning of the phrase “exceptional circumstances”. As Hollingworth J noted in a recent application for bail which is factually related to this application:[6]
[6]Hang Cao v DPP (2015) VSC 198 at para [7].
The [Act] does not specify what considerations may be relevant to establishing exceptional circumstances. It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it “should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.”
[15] Her Honour’s quotation refers to the ruling of Warren J (as she then was) in Whiteside.[7] In that case, after being referred to authority, her Honour adopted the observations of Vincent J in Moloney[8] as follows:
[7](1999) VSC 413.
[8]Unreported 31 October 1990.
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
[16] In Dale v DPP,[9] the Court of Appeal was invited to conclude that the likely delay in that case which would result in pre-trial detention approaching some two years was, on its own and without more, sufficient to constitute an exceptional circumstance which would justify a grant of bail. In response, the Court said:
[9](2009) VSCA 212.
Counsel referred to a number of cases in which it has been said that, although a delay of two years is no longer a rarity, it is nevertheless inordinate and unacceptable and in that sense may be viewed as exceptional. Alternatively, counsel contended, if the delay were not enough in itself to warrant bail, the delay coupled with the appellant’s medical condition and the emotional and financial hardship inflicted on him and his family, were sufficient in total to warrant bail.
Clearly, the delay involved in this case is very substantial, even if not unprecedented in a case of this complexity. What makes it much more significant, however, is that the conditions in which the appellant was imprisoned following his arrest in February have severely affected his mental health.
[17] So, the Court dealt with the matter on the basis of the combined effect of several factors and concluded:[10]
[10]At para [44].
All things considered, we were persuaded that the appellant had established exceptional circumstances. That conclusion was based on the combined effect of:
the anticipated delay in the matter coming on for trial,
the fact that his conditions of incarceration have caused him to suffer moderate to severe depression, which requires treatment; and
the potential loss of the family business.
[18] As Kirby J said in Cabal v United Mexican State:[11]
[11][2001] HCA 42
In the setting of the Act, where the somewhat analogous criterion of special circumstances must be shown, the courts have resisted, correctly in my view, an attempt to segment or compartmentalise the circumstances that will, or will not, meet the statutory standard. An over‑precise or artificially rigid classification of qualifying or insufficient circumstances is not what is called for, any more under the Constitution than under the Act.[12] What is essential is that the Court should consider all the circumstances in their totality.
[12]See Holt v Hogan (No 1) (1993) 44 FCR 572 at 579; Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9 at 12-13 referring to R v Giordano (1982) 31 SASR 241 at 243.
[19] Later in his ruling Kirby J observed:
The purpose of obliging the applicant for bail to demonstrate “special” or “exceptional” circumstances is to focus the attention of the court on the reasons why detention in custody pending surrender is the normal rule. And why something unusual and extraordinary is necessary to depart from that rule.
[20] Consistent with those principles, Mr Dane QC on behalf of the applicant, relied on what he described as a line of authority within the Trial Division of this Court over the last few years.[13] He distilled from those cases factors which might lead to a conclusion that exceptional circumstances had been established on an application for bail where that was required and then referred to several features of this case which he submitted demonstrated that high test had been met by the Applicant.
[13]See Armstrong [2013] VSC 111; Pham [2013] VSC 580; Haver, [2013] VSC 622; Pickersgill [2013] VSC 715; and Rodin [2014] VSC 656.
[21] The factors to which he referred are specifically described by Coldrey J in DPP v Sabino Cozzi.[14] His Honour having agreed with the approach of Vincent J in Moloney and then reviewed several of the cases which subsequently discussed the meaning of “exceptional circumstances”. He noted:
[14][2005] VSC 195.
An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.
[22] Coldrey J went on to refer to a variety of circumstances which had been found in various cases to constitute exceptional circumstances and summarising those to which his Honour referred they included:
·the strength of the Crown case;
·the issue of delay;
·strong family support;
·stable accommodation;
·availability of employment;
·low risk of flight or re-offending;
·lack of prior criminal history; and
·the personal situation of the applicant.
[23] It should be emphasised that this list is not exclusive and obviously other factors might arise in a particular case which will contribute to the conclusion that exceptional circumstances have been established. (Emphasis added)
Thus, exceptional circumstances can be constituted by one circumstance or by a combination of a number of circumstances which might not, on their own, be exceptional. If they are established, that leads to the conclusion that a grant of bail is justified – subject to the acceptability of the risk. That second issue does not arise in this case. If the exceptional circumstances relied upon concern the strength of the prosecution case, as in this case, that may have particular significance. An accurate assessment of the strength of the case is not always possible. That is particularly so in advance of the committal proceedings, as Champion J observed in his ruling. Now, after the committal, it is clear that much of the case that the defence rely upon on the issue of self-defence is not in dispute - particularly the fact that the deceased was the initial and continuing aggressor during the fatal incident. There remain the issues as to where the fatal injuries were inflicted, and that the accused had no pre-existing animus or motive to injure or kill the deceased.
In this case, the Magistrate had no doubt perused the prosecution brief and heard the evidence called in the course of the committal proceedings. In Her Honour’s ruling, she said:
Mr Frank has been committed to stand trial on the charge of murder. The question of his guilt or innocence is to be determined by a jury. The issue of self-defence has been raised on the evidence during the committal, and it will be for the Crown at trial to prove beyond reasonable doubt that Mr Frank did not carry out the conduct in self-defence.
I have read Champion J’s reasons for decision in refusing bail to Mr Frank on 6 September 2018 and I have taken much from those reasons in what follows. Champion J did not however have the benefit of hearing the evidence I have during the committal. He himself, acknowledged at paragraph 44 of his reasons that Mr Frank has clearly raised self-defence, and from what he has discerned from his limited examination of the evidence it appears to be an arguable defence.
The evidence from the forensic scientist, Ms Logan, confirms there is no prosecution evidence which contradicts the proposition asserted by Mr Frank that the injuries occurred outside the house. The blood spatter evidence does not contradict Mr Frank’s version of events. The evidence of Ms Logan was not available to Champion J when the matter of bail was before him. It is evidence which in combination with other evidence heard in this case, in my view, makes more difficult the task of proving beyond reasonable doubt that Mr Frank was not acting in self-defence.
The evidence of Mr Andrew Lentjes about Mr Bury as the aggressor, produced knives and attacked Mr Frank; the CCTV footage depicting Mr Bury continuing to attack – to act aggressively when Mr Frank was attempting to leave in his car; the pair wrestling in the driveway; Mr Frank’s account in his record of interview, of which I have read but have not viewed the DVD; the evidence of Ms O’Bree who had dealings with Mr Bury earlier in the day being irrational and aggressive.
It was the strength of the prosecution case which is most heavily relied upon in support of establishing exceptional circumstances.
Ultimately, the Magistrate came to the view that this was not a strong prosecution case, saying:
I am not satisfied that it is a strong prosecution case. I am of the view that Mr Frank does have a reasonable prospect of acquittal on the charge of murder, having heard and considered evidence in this committal and outlined earlier in these reasons. The issue of delay was not put strongly by Mr Gibson, but it forms part of the surrounding circumstances that I must take into account in determining whether exceptional circumstances exist.
…
As Justice Vincent said in Maloney, when viewed as a whole the circumstances of this case be regarded as exceptional to the extent that taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting Mr Frank to bail in this case is justified.
It was also the position of the prosecution before Her Honour, as it was before me, that the respondent was not a risk of engaging in conduct of the kind contemplated by s 4E(1)(a) of the Act.
Was the finding of the Magistrate reasonably open?
In the affidavit in support of the Director’s appeal, it was asserted that the prosecution case is not made weak only because the defence may have an arguable basis to establish self-defence. This, of course, slightly overlooks where the onus of proof lies because the onus will be on the prosecution to disprove self-defence once raised on behalf of the accused. However, in support of the conclusion they contend for, the prosecution also rely on the following factors:
·The disparity between the serious and extensive injuries to the deceased when compared to those suffered by the respondent;
·The defensive injuries of the deceased as tending to demonstrate an attack perpetrated by the respondent that extended beyond his own defence;
·The respondent’s assertion that he stabbed the deceased only once and was unable to account for the multiple and serious injuries inflicted on the deceased;
·The respondent’s assertion that he disarmed the deceased inside the house and that the stabbing took place in the driveway and not inside the house;
·The stab wound to the deceased’s back; and
·The alleged post-offence conduct of the respondent in attempting to dispose a relevant piece of clothing.
The prosecution also ‘disagrees’ with the findings of the Magistrate that the blood spatter report produced at the committal supports the respondent’s case that the fatal injury he inflicted on the deceased must have occurred outside the house when he says he was acting in self-defence.
The affidavit concludes with a submission that it was ’not reasonably open’ to the Magistrate to conclude that exceptional circumstances had been established.
In addition, I do not understand that there was any evidence before the Magistrate that otherwise indicated that the respondent in this application had some independent motive for wanting to cause harm to, or the death of, the deceased. It seems to me very likely that all of the actions of the accused were precipitated by the attack the deceased man made on him.
The prosecution case will be that the accused got the better of the deceased after he had been attacked by the deceased and then, presumably with murderous intent and with no belief in the need to defend himself from the risk of being killed or really seriously injured, inflicted a fatal wound on the deceased. There was no witness to this and counsel for the Director accepted that this was purely inferential. However, whatever wounds were inflicted on the deceased inside the house (if any), they did not prevent him from pursuing the accused outside the premises. It is outside the premises that the accused contends any fatal wound was inflicted, and at the committal much turned on that issue.
A neighbouring house was fitted with a closed-circuit television camera that recorded the incident, albeit at some distance. I have watched that video. Whatever had happened in the house, the deceased still seemed to be fighting somewhat energetically with the accused outside. That might tend to suggest that, at that stage, he had not been fatally wounded. If he was fatally wounded outside the premises, then this comes nearer to the conclusion of a sustained attack by the deceased on the accused.
On behalf of the respondent, the following features of the evidence were relied upon to support the conclusion that the finding of the Magistrate was reasonably open:
·The eye witness evidence of the witness Lentjes confirms that the deceased initiated the conflict;
·The accused is injured in the fight between them;
·The accused is trying to get away from the deceased while the deceased is armed with two knives and, later outside the house, a metal pole;
·The wounds to the deceased should have bled immediately, but the closed-circuit television does not show bleeding, suggesting that the wounds were inflicted outside the premises rather than in the manner to be inferred by the prosecution;
·The incriminating conduct relied upon by the prosecution encounters the obstacle that, at the time it occurred, the deceased was not dead and the accused could not have believed he was; and
·The blood spatter evidence referred to in prospect by Champion J is neutral on the question of whether the injuries to the deceased were inflicted inside the house or outside.
Conclusion
Having considered the evidentiary material and having heard the submissions of the parties, I reject the submission that the conclusion reached by the Magistrate was not reasonably open on the evidence before her. Clearly, in this forthcoming trial, self-defence will be a very significant issue and I would have thought the obstacles to the prosecution disproving self-defence, and asserting that the accused killed the deceased with murderous intent independently of the confrontation that occurred between them, will be substantial.
In dealing with this appeal, in my opinion, it was open to the Magistrate to conclude that this is a weak prosecution case on the charge of murder. At trial, if the jury are not satisfied that the prosecution has proved beyond reasonable doubt that the accused, at the time that he inflicted the fatal injuries on the deceased, did not believe his actions were necessary to defend himself from the infliction of death or really serious injury, then the verdict will be one of not guilty and there will be no alternative charge to be considered. If the Magistrate considered, as she did, that the accused has a “reasonable prospect of acquittal” on the charge of murder, she was entitled to treat that as an exceptional circumstance - particularly when viewed in combination with the likely delay and the personal circumstances of the respondent.
The Director’s appeal is dismissed.
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