Re Hewett (Bail Application)

[2015] VSC 606

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0157  

IN THE MATTER of the Bail Act 1977

and  

IN THE MATTER of an Application for Bail by EDWARD HEWETT

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2015
DATE OF JUDGMENT:	4 November 2015
CASE MAY BE CITED AS:	Re Hewett (Bail Application)
MEDIUM NEUTRAL CITATION:	[2015] VSC 606

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CRIMINAL LAW – Bail – Murder – Exceptional circumstances – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P A Stefanovic	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Ms S Pratt	Paul Vale Criminal Law

HIS HONOUR:

1. Edward Hewett, the applicant, aged 22 years, is charged with murder. He seeks bail. By virtue of s 4(2)(a) of the Bail Act1977 the Court must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail. 

1. In my view, the applicant has failed to demonstrate exceptional circumstances.  Bail must be refused.

1. On 5 July 2015, the applicant and two others went to the home of Garry Coulson.  An incident there occurred which caused Mr Coulson’s death.  On the available evidence it seems tolerably clear that Mr Coulson was struck a number of times with a baseball bat whilst in bed, and was stabbed a number of times, thus suffering injuries which caused his death.

1. Following police investigation, on 5 August 2015 the applicant was charged with aggravated burglary.  Later, on 22 October 2015, the applicant was charged with Mr Coulson’s murder.

1. There are alternative ways in which the prosecution presently seeks to establish a case of murder against the applicant. First, the prosecution contends that the applicant and the co-accused entered into an agreement or understanding to attack the deceased, knowing that the attack would be carried with murderous intent. Secondly, and alternatively, the prosecution alleges that there was an agreement to, at the very least, assault the deceased, it being probable that the attack upon the deceased would be carried out with murderous intent. Thirdly, and again in the alternative, the prosecution submits that there was an agreement between the co-accused to assault the deceased, in circumstances where injuries were to be intentionally inflicted upon the deceased, sufficient for murder to be made out pursuant to s 3A of the Crimes Act 1958.

1. I need not recount the circumstances of the alleged offending in detail.  It is enough to observe that there is evidence to suggest that the applicant was recruited by a co-accused to go to Mr Coulson’s home and subject him to retribution for an earlier burglary committed by Mr Coulson.  The deceased was attacked in his bed by two men, was struck repeatedly with a baseball bat, and, so it seems, was stabbed repeatedly, suffering injuries from which he died.  So far as I presently can see, there is evidence capable of satisfying a jury that, whether the applicant was one of the actual attackers or not, he went to Mr Coulson’s premises so that the deceased could be subjected to an assault.  On the current state of the evidence it seems to me, therefore, that a charge of murder against the applicant is open on one of the alternative bases suggested by the prosecution.  Indeed, it is not perspicuous to me that the prosecution case is weak.

1. Apart from the alleged weakness of the prosecution case, the applicant relies on the following combination of factors in an endeavour to establish exceptional circumstances justifying a grant of bail:

·    the applicant has no prior convictions;

·    there will be a substantial delay;

·    the applicant denies any role in the death of Mr Coulson;

·    a co-accused is, according to the prosecution summary, the primary offender;

·    there was a delay of approximately three months before the murder charge was laid, during which time the applicant was on bail without incident;

·    it is not submitted by the prosecution that unacceptable risk could not be addressed with strict conditions of bail;

·    the applicant can provide a significant surety in addition to current bail conditions;

·    the applicant can further provide an address to reside with his mother and grandmother, the address being outside the area where the alleged offence occurred;

·    the applicant’s father is terminally ill with lung cancer;

·    the applicant does not have a negative bail history;

·    the applicant has strong ties to the jurisdiction and has strong family support;

·    there is a realistic prospect that the applicant would be found not guilty of the murder charge;

·    the applicant has not breached his bail since the granting of bail in August;  and

·    there are further conditions of bail that could be imposed since the original grant of bail that could further reduce risk, inclusive of the proposed address and the surety.

1. I was told that a committal hearing could take place in March 2016.  In the ordinary course, I would expect a trial to take place in the second half of the year.  Whether there will be any substantial or undue delay in the charge being resolved is at this stage thus an unknown quantity.[1]  It is not something about which I can speculate.

   [1]Cf Dale v DPP [2009] VSCA 212 (‘Dale’);  Mokbel v DPP (No 3) (2002) 133 A Crim R 141.

1. Further, although it is a matter of pathos that the applicant’s father is terminally ill, there is nothing to suggest that his presence is necessary for the care of his father.

1. In my view, none of the other factors relied upon, alone or in combination, distinguish the circumstances of this case from the kind ordinarily encountered.  They are incapable of establishing the necessary exceptional circumstances.[2]

   [2]Cf Dale [2009] VSCA 212, [44].

1. The application for bail is refused.

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