Re Frank
[2018] VSC 718
•6 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0192
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Jarrod FRANK | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 August 2018 |
DATE OF JUDGMENT: | 6 September 2018 |
CASE MAY BE CITED AS: | Re Frank |
MEDIUM NEUTRAL CITATION: | [2018] VSC 718 |
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CRIMINAL LAW – Application for bail – Charge of murder – Exceptional circumstances – Strength of prosecution case – Self-defence – Delay – Personal circumstances – Bail refused – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. Gibson | Victoria Legal Aid |
| For the Respondent | Mr M. Fisher | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 4 January 2018, the applicant was arrested and charged with the murder of Scott Bury (‘the deceased’). The charge relates to events alleged to have occurred on 3 January 2018, when a physical altercation took place between the applicant and the deceased at the deceased’s home. The applicant has been in custody since his arrest. The matter is listed for special mention on 8 November 2018 and a contested committal hearing on 18 and 19 December 2018 at the Bendigo Magistrates’ Court.
The applicant has no other outstanding matters and has not previously made an application for bail. On 19 July 2018, he filed an application for a grant of bail from this Court. The application is supported by an affidavit from his solicitor, Jacqueline Hession, sworn 23 July 2018.
The alleged offending
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.
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’.
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.
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.
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.
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.
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.
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.
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.
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’.
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.
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.
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.
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.
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.
The applicant’s background
The applicant is 41 years of age and is single, with no dependents. He grew up in the Bendigo area and has been employed in various manual labouring jobs throughout his working life. He was unemployed at the time of the alleged offending.
The applicant has a criminal history spanning from 1993 to 2014, including offences relating to dishonesty, weapons, drugs and driving. Apart from one prior conviction for intentionally damaging property in 2004, he has no convictions for serious violence. Relevantly, the applicant also has a history of breaching court orders, including breaching a Community Based Order in 2002 and a Suspended Sentence Order in 2004.
Applicable legislation
As the application for bail was filed on 19 July 2018, Authorised Version No. 140 of the Bail Act 1977 (‘the Act’) applies. Section 4A(1) of the Act provides that the Court must refuse bail where a person is accused of a Schedule 1 offence unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant is charged with murder, a Schedule 1 offence.[1]
[1]Bail Act 1977 sch 1 item 2.
Pursuant to s 4A(2) of the Act, the applicant bears the burden of satisfying the Court that exceptional circumstances exist.
Pursuant to s 4A(3) of the Act, in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. In respect of surrounding circumstances, s 3AAA of the Act provides that the Court must take into account all the circumstances that are relevant to the matter including, but not limited to, the following:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail in relation to a Schedule 1 offence, s 4A(4) then requires the Court to apply the ‘unacceptable risk test’.
Pursuant to s 4E(1) of the Act, the Court must refuse bail if the prosecutor satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail;
When applying the unacceptable risk test, the Court must again consider the ’surrounding circumstances’,[2] and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[3]
[2]Bail Act 1977 s 4E(3)(a).
[3]Ibid s 4E(3)(b).
Further, when interpreting the Act, the Court is required by s 1B of the Act to take into account, inter alia, that:
(1)The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking into account the presumption of innocence and the right to liberty;
…
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Finally, if the Court grants bail for a person accused of a Schedule 1 offence, the Court must include in the order a statement of reasons for granting bail.[4]
[4]Ibid s 12(3A)(a).
The applicant’s contentions
The applicant’s primary submission as to exceptional circumstances is the alleged weakness of the prosecution case. It was submitted the prosecution faces difficulties in excluding the defence of self-defence beyond reasonable doubt, given that:
·the deceased initiated the confrontation and attacked the applicant with a knife, inflicting a wound to his chest;
·the deceased was violent and aggressive, as described by Mr Lentjes and depicted on CCTV footage; and
·the applicant attempted to leave the scene in circumstances where the deceased man appeared to want to continue the fight.
It was also submitted that the applicant has stable, static accommodation at a property in Strathfieldsaye, which he co-owns with his mother who resides next door. The applicant has employment of an administrative nature available to him at a yoga studio owned by his mother and sister in Bendigo, should bail be granted.
The applicant’s mother, Kehry Frank, gave evidence before me, confirming the availability of accommodation and her ongoing support of the applicant. Mrs Frank acknowledged that she had taken out a Family Violence Intervention Order against the applicant on 3 October 2017, but applied and succeeded in having that order revoked on 26 June 2018. She gave evidence that the order was taken out because she was concerned about the applicant’s mental health, following episodes of him hearing voices and talking to people who were not there. Mrs Frank said that the applicant had not shown signs of violence to her and that she had taken the order out due to police advice. She gave evidence that her son’s health appeared significantly improved since being remanded in custody.
It was further submitted on the applicant’s behalf, that he has been assessed by CISP as suitable to receive supervision whilst on bail. A copy of the report dated 4 September 2018 recommends community referral for support within the local community, as management by the CISP team is not available in the area in which he would reside. Further, CISP could arrange ongoing treatment of an apparent drug addiction issue, a mental health care plan and referral for psychological intervention.
The applicant also relied upon:
·the applicant’s lack of significant and relevant prior convictions; and
·the delay associated with his case, as the applicant was charged on 3 January 2018, and the committal is listed on 18 and 19 December 2018.
As to the issue of whether the applicant is an unacceptable risk should bail be granted, the applicant submits that any risk can be ameliorated by the imposition of appropriate bail conditions.
The respondent’s contentions
The respondent strenuously opposes bail, submitting that the applicant has not demonstrated exceptional circumstances that justify the grant of bail.
In response to the applicant’s affidavit in support, the respondent acknowledges that self-defence is raised on the evidence, but argues that the case should not be regarded as weak. The respondent submitted that the question of guilt or innocence should be determined by a jury. In support of its argument, the respondent points to:
·the disparity between the serious and extensive injuries to the deceased when compared to those suffered by the applicant;
·the defensive injuries of the deceased as tending to demonstrate an attack perpetrated by the applicant that extended beyond his own defence;
·the applicant’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 applicant’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 applicant in attempting to dispose of a relevant piece of clothing.
The respondent also submits that the matter has so far progressed without undue delay.
Notably, the respondent acknowledges that should exceptional circumstances be shown, the applicant would not then be regarded as an unacceptable risk of any of the matters set out at s 4E(1) of the Act. The respondent has not highlighted any specific concerns relating to risk factors should the applicant be released on bail.
Discussion
Exceptional circumstances
The Act does not define what may amount to exceptional circumstances. It is well established that ’in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal so as to justify the admission of the applicant to bail’.[5] It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances “is a high one”’.[6] That said, it is not an impossible standard to reach.
[5]Re Sam [2017] VSC 91 [22] (‘Re Sam’).
[6]Armstrong v R [2013] VSC 111 [31], citing Whiteside [1999] VSC 413.
It is well accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors, including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant.[7] Frequently, matters involving the nature of the Crown case concern the strength or weakness of the case; that there may be undue delay in bringing the matter to trial; or any unusual features of the alleged offending or the investigation, which might make the circumstances exceptional.[8]
[7]Re Fairest [2015] VSC 375 [17]–[18].
[8]Ibid [22].
As stated by Lasry J in Armstrong v R, in assessing whether exceptional circumstances have been made out:
The formulation that is most often referred to is that of Vincent J in Moloney in which his Honour observed:
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.[9]
[9]Armstrong v R [2013] VSC 111 [31].
Strength of the prosecution case
The account of what occurred inside the house after Mr Lentje’s departure comes from the applicant’s taped interview with police. He asserted that the injuries that were inflicted on the deceased occurred shortly after both men had left the house and further fought in the driveway area. Those events were captured on CCTV, and in part, were witnessed by Mr Lentjes.
I am able to make a limited assessment of the facts. It would appear that the deceased became very aggressive inside the house, and carried an initial attack on the applicant with a knife. A jury will need to determine whether the Crown can prove the applicant was not acting in self-defence. The jury will have evidence of the very significant disparity between the extensive injuries suffered by the deceased, compared to the relatively minor injuries suffered by the applicant. Further, there will be evidence of the disrupted scene inside the house, as depicted in a series of photographs. This includes a very significant and extensive amount of bloodstains and blood spatters. A jury will also be able to assess the events that occurred in the driveway by reason of the CCTV footage.
In my opinion, it cannot be concluded that the case against the applicant is a weak one. Furthermore, there is forensic evidence yet to be completed that may add to the strength of the prosecution case.
The applicant has clearly raised self-defence and, from what I have been able to discern from my limited examination of the evidence, it appears to be an arguable defence. As a result, I cannot conclude he does not have a reasonable prospect of being acquitted on the charge of murder. As was the case in Re Sam, it ’is not an open and shut case’.[10] Much will depend on what, if anything, the prosecution can prove occurred inside the house between the two men fighting, when no other witnesses were present.
[10][2017] VSC 91 [24].
The strength of the Crown case will likely be clearer after the committal hearing in December 2018. It is not my role at this stage to make findings on the weight of the evidence, and the likely success or otherwise of the prosecution case.
Delay
The applicant conceded that an argument of delay could not be put strongly, as it will not extend beyond that which is normal in these sorts of cases. Any delay cannot be described as undue.
Personal circumstances
As to the applicant’s family circumstances, it is to be acknowledged that he has accommodation available and his mother is supportive. I have had regard to Mrs Frank’s evidence given before me. Further, the applicant has some community supports available, as set out in the most recent CISP report. Whilst his criminal history lacks particular relevance in the context of the present charge, the applicant does have a criminal history spanning from 1993 to 2014. I note that he has no matters otherwise outstanding, and has breached no orders relating to this alleged offending.
Conclusions
In Re Sam, the applicant submitted that the prosecution case on the charge of murder was ‘very weak’.[11] Beach JA disagreed, and concluded that the case was a circumstantial one that was not unusually strong nor unusually weak. Whilst his Honour concluded that the applicant had a reasonable prospect of being acquitted, the delay was not exceptional, and the remaining matters relied on by that applicant, both alone or in combination, did not amount to exceptional circumstances.[12] His Honour refused the application for bail.
[11]Ibid [17].
[12]Ibid [24]–[27].
In Re CD, a case also concerning a charge of murder, it was submitted that the prosecution case suffered from a ‘fundamental difficulty’.[13] Beach JA concluded that all that could be said after a limited assessment of the prosecution case was that ’this is a case that may or may not succeed against the applicant’.[14] His Honour refused the application, concluding that none of the remaining factors constituted exceptional circumstance alone or in combination.[15]
[13][2017] VSC 721 [11].
[14]Ibid [24].
[15]Ibid [25]–[28].
In the cases of Armstrong v R[16] and Re Kane,[17] Lasry J allowed applications for bail in cases of murder. In Armstrong v R, his Honour concluded that the prosecution case was complex and unusual, possessed aspects of significant delay, and there were personal circumstances of the alleged offender which were significant. His Honour concluded that the case could not be described as strong.[18] In Re Kane, his Honour concluded that the case for murder was not strong, there was a significant delay expected, and the applicant had personal circumstances which included young children to care for.[19] In both cases there were personal characteristics that were of significance to the decision to grant bail.
[16][2013] VSC 111.
[17][2010] VSC 8.
[18]Armstrong v R [2013] VSC 111 [25].
[19][2010] VSC 8 [31]-[40].
While it can be said that the applicant in the present matter has an arguable defence as previously outlined, the case against him cannot reasonably be described as weak. It also cannot be said that there is undue delay beyond the normal limits. Furthermore, matters personal to the applicant’s situation, including the availability of a static residence, community assistance, and his lack of relevant prior history, do not satisfy me that the exceptional circumstances test is satisfied.
In reaching the conclusion that the applicant has not met the exceptional circumstances test, I have taken into account all the relevant surrounding circumstances as set out in s 3AAA of the Act.
Overall, I am not satisfied that the applicant has shown that the circumstances relied on, either alone or in combination, amount to exceptional circumstances that justify a grant of bail.
Accordingly I refuse the application for bail.
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