Re Harper
[2020] VSC 851
•15 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0338
| IN THE MATTER OF the Bail Act 1977 |
| -and- |
| IN THE MATTER of an application for bail by CANDICE HARPER |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2020 |
DATE OF JUDGMENT: | 15 December 2020 |
CASE MAY BE CITED AS: | Re Harper |
MEDIUM NEUTRAL CITATION: | [2020] VSC 851 |
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CRIMINAL LAW – Bail – Murder – Schedule 1 offence – Exceptional circumstances – Whether unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Patton | SLKQ Lawyers |
| For the Respondent | Mr D Glynn | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Candice Harper, the applicant, aged 44 years,[1] is charged with murder and affray. She seeks bail.
[1]Her date of birth is 22 November 1976.
Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 (‘the Act’). Bail must therefore be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2]
[2]Section 4A of the Act.
Alleged offending
Before considering the merits of the application, it is necessary to summarise the applicant’s offending.
On Saturday, 10 October 2020, the applicant was residing at the Ibis Styles Kingsgate Hotel, 131 King Street, Melbourne
At about 9.35 pm that evening, the applicant was in the company of two males, Benjamin McCartin and Jamie Holt. The three attacked another male, Ricky Rowlands, aged 46 years. (Rowlands and the applicant are former de-facto partners, there being a history of family violence between them.) During the attack, McCartin stabbed Rowlands in the lower back with a knife, causing injuries from which Rowlands very quickly died.
Rowlands was fatally stabbed when on the western side of King Street, Melbourne, immediately south of the intersection with Bourke Street. The attack was captured by high resolution CCTV cameras located at the intersection of King and Bourke Streets. I have viewed the footage. In my view it provides a strong case of murder against the applicant. It is clear that the applicant, McCartin and Holt were jointly involved in a concerted attack on Rowlands, at a time when it must have been obvious to the applicant that McCartin was armed with a knife and intent on using it to cause serious injury to the deceased.
Procedural steps
On 12 October 2020, the applicant was charged with murder and affray. Those charges are listed for committal mention on 15 February 2021.
Evidence in the application
In support of the application for bail, the applicant relied on an affidavit sworn by her solicitor, Sandra Gaunt, on 1 December 2020.
Ms Gaunt deposed that a combination of several factors ‘would establish exceptional circumstances and that any unacceptable risk could be reduced to an acceptable level’. Those factors were: the delay; the availability of drug treatment through ‘CROP’; family support; and the availability of a surety. Ms Gaunt also deposed that the applicant has strong ties to the jurisdiction and has lived in Melbourne her entire life. She has a daughter, and her father and step-mother all reside in Melbourne. Her step-mother is prepared to use the family home to put up a surety of up to $100,000.
The applicant’s father also swore an affidavit on 11 December 2020. He deposed that a surety of $100,000 was available.
As I have indicated, the applicant relied on a ‘CROP’— CISP[3] Remand Outreach Program — report dated 14 December 2020, prepared by ‘Assessment & Referral Practitioner’, Fiona Devlin. It is fair to say, however, that the report provided no concrete proposal for the treatment of the applicant’s drug and mental health problems should she be released on bail.
[3]Court Integrated Services Program.
Jennifer Taylor, a solicitor with the Office of Public Prosecutions, swore an affidavit in response on 11 December 2020. Among other things, in her affidavit Ms Taylor contends that:
· the nature of this offending is particularly serious in that the applicant acted in concert with a number of other co-accused to inflict really serious injury on the deceased;
· the prosecution case is strong, the CCTV footage showing the involvement of all the accused including the applicant in the commission of the offences;
· several members of the deceased’s family, who are also related to the applicant, have concerns for their safety should the applicant be released on bail;
· the applicant is facing charges in relation to an incident of violence which occurred on 4 May 2020;
· the length of delay in finalising the charges is disputed, and, in any event, any potential delay in the matter is not disproportionate given the strength of the evidence, the seriousness of the allegations and the likely sentence should the applicant be found guilty of the offence as charged; and
· in the event that the applicant is found guilty of murder as charged, she is likely to be sentenced to a significant term of imprisonment.
Ms Taylor also deposed that, not only are there no exceptional circumstances justifying the grant of bail, but the applicant presents an unacceptable risk of endangering the safety and welfare of any person; committing an offence while on bail; interfering with a witness or otherwise obstructing the course of justice in any matter; and failing to surrender into custody in accordance with the conditions of bail.
Criminal history
The applicant has a significant and concerning criminal history, commencing in 1996. Her first finding of guilt for a crime of violence was in 2004, for assaulting police. Thereafter she has been convicted of affray (2012); assaulting an emergency worker on duty (2015); recklessly causing injury (2016); and unlawful assault (2016).
Apart from crimes of violence, the applicant has been convicted of a wide variety of offences including: trafficking heroin; theft; obtaining property by deception; handling stolen goods; going equipped to steal; and attempted aggravated burglary.
The applicant has also breached a number of Court orders, including community based orders and community correction orders. She has also failed to answer bail on more than one occasion.
Legislative regime
By virtue s 4AA(1) of the Act, the ‘exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence’. Section 4A(1A) provides that this Court ‘must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail’.
With respect to exceptional circumstances, Beach JA observed in Re Sam:[4]
The Bail Act does not define what are exceptional circumstances. It is trite that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charge against her.[5] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[6]
[4]Re Sam [2017] VSC 91, [22] (citations as in original).
[5]Re John McDonald [2010] VSC 217 [10] (Kaye J, as his Honour then was).
[6]Ibid.
Beach JA also observed in Re Diab:[7]
It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[8] Beale J, citing Kaye J in DPP v Muhaidat,[9] referred to the question of exceptional circumstances in the following terms:[10]
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[11]
[7]Re Diab [2020] VSC 196, [36] (citations as in original).
[8][2019] VSC 81 (‘Reker’).
[9][2004] VSC 17 (‘Muhaidat’).
[10]Reker [2019] VSC 81, [39].
[11]Muhaidat [2004] VSC 17, [13]–[14].
In considering whether to grant bail in a case such as the present, ss 4A and 4D of the Act require the Court as a first step to consider the exceptional circumstances test, and then, as a second step, move to the unacceptable risk test.
At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including the surrounding circumstances in s 3AAA of the Act. Further, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B.
Section 3AAA of the Act spells out surrounding circumstances, so that (so far as relevant) 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;
...
Section 1B provides:
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 account of the presumption of innocence and the right to liberty; …
By s 4A(2) of the Act, the applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. If the Court is satisfied that the applicant has shown exceptional circumstances sufficient to grant bail, then the Court must turn to the unacceptable risk test, which is found in s 4E(1). It requires the Court to refuse bail if the ‘prosecutor’ satisfies the Court[12] that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(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.
[12]Subsection 4E(2).
As I have indicated, in considering whether a relevant risk is unacceptable, by reason of s 4E(3) the Court must also take into account the ‘surrounding circumstances’, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Discussion
In my opinion, the circumstances relied on by the applicant — whether considered alone or in combination — fall a long way short of being exceptional.
No satisfactory material was put before the Court from which the Court could conclude that any delay would be inordinate or disproportionate, given the seriousness of the principal charge faced by the applicant. Indeed, my own assessment of the case of murder against the applicant is that it is very strong, that factor alone strongly militating against any grant of bail.
As to the other matters relied upon, the applicant’s family support and the availability of a surety are far from being ‘right out of the ordinary’; and, as I have said, the CROP report was bereft on any concrete proposal for the applicant’s treatment or supervision that could justify a finding that exceptional circumstances exist.
But even had the circumstances been exceptional, I would still have refused bail. Having regard to the applicant’s prior convictions for drug offences and crimes of violence, and given her previous failures to adhere to Court orders, I consider that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any person; commit an offence while on bail; or fail to surrender into custody in accordance with the conditions of bail.
The application for bail must be refused.
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