Re Hooper
[2021] VSC 476
•9 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0175
| IN THE MATTER of the Bail Act 1977 (Vic) |
| v |
| IN THE MATTER of an Application for Bail by Jana HOOPER |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2021 |
DATE OF JUDGMENT: | 9 August 2021 |
CASE MAY BE CITED AS: | Re Hooper (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 476 |
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CRIMINAL LAW - Bail – Planned murder of husband of applicant by group of offenders – In retribution against victim due to suspected sexual abuse of children – Second application for bail – New facts and circumstances conceded by prosecution – Long delay – Difficult conditions in custody due to implications of COVID-19 pandemic – Significance of Aboriginality of applicant – Applicant the mother of seven children who also identify as Aboriginal - Strong family, cultural and community supports - Limited prior convictions – Exceptional circumstances established – No unacceptable risk - Bail granted – Bail Act 1977 ss 1B, 3AAA, 3A, 4, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McMahon SC with Ms A Dixon | Law & Advocacy Centre for Women |
| For the Respondent | Mr R Gibson QC with Ms B Golding | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Jana Hooper, the applicant, applies for bail for the second time in respect of charges she faces of murder, aggravated home invasion, kidnapping, false imprisonment and intentionally causing injury.
The parties agree that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of committing two Schedule 1 offences, namely, murder and aggravated home invasion.[1]
[1]Bail Act 1977 (Vic), ss 3, 4A(1A), 4AA(1) and Schedule 1, items 2 and 4.
The respondent opposes a grant of bail on the basis that exceptional circumstances have not been made out, and on the additional basis that even if exceptional circumstances have been established, the applicant poses an unacceptable risk of interfering with witnesses, namely the applicant’s children.
Procedural history
The applicant has been in custody since her arrest for these offences on 4 April 2019.
The previous application for bail proceeded before me on 9 April 2020. The application for bail was founded on a combination of matters relied upon in proof of exceptional circumstances. Most important amongst those were the asserted weakness of the prosecution case, the likely delay as it was put at that time of the order of three years between arrest and trial, and the fact that there was no assertion by the prosecution during the application that the applicant posed an unacceptable risk of any of the matters set out in s 4E of the Act.
On 15 April 2020, I refused bail because I was not satisfied that exceptional circumstances had been established.[2]
[2]Re Hooper [2020] VSC 179R (‘Re Hooper’).
At the time of the initial bail application, the matter was listed to proceed to a committal hearing on 17 August 2020. The delays brought about by the COVID-19 pandemic, however, had the real potential to substantially delay the hearing of the committal and the listing of the trial.
At a special mention held in the Magistrates’ Court on 30 July 2020, the applicant and all of her co-accused consented to proceeding via a straight hand-up brief to this Court utilising the fast-track procedure. The committal date was vacated.
Between 21 and 25 September and 23 and 27 November 2020, hearings pursuant to s 198B of the Criminal Procedure Act 2009 were conducted before Champion J. Further s 198B hearings were conducted before me between 19 and 21 April 2021.
On 22 April 2021, a directions hearing was conducted by Judicial Registrar Freeman. Orders were made for the filing of the summary of prosecution opening and other documents by the prosecution by 20 August 2021, and defence responses on behalf of the respective accused by 22 October 2021. A further directions hearing was schedule for 4 November 2021.
Prior to the commencement of the current bail application, I explored with Judicial Registrar Freeman the likely date for the hearing of the trial. There are a number of unknowns in respect of the trial. These include the likely venue of the trial, whether or not any applications for separate trials will be made on behalf of the respective accused, how many trials will be necessary, and the order in which such trials would be held. In addition, there is the matter of the ongoing disruption to the criminal justice system brought about by the COVID-19 pandemic.
As best as can be determined at this time, the earliest the trial of the applicant would be able to proceed would be late in Term 1 next year. It is more likely not to proceed until Term 2, and indeed, there could be no assurance that even that time frame would be able to be met in view of the considerable complexity of the overall prosecution.
Co-accused bail status
There are six co-accused in addition to the applicant. Two of them have already been sentenced to terms of imprisonment. None of the remaining accused has made an application for bail.
Summary of alleged offending
The prosecution case is summarised in some detail in Re Hooper. It is not necessary to repeat that summary here. Suffice to say that in simple terms, the prosecution case is that the applicant was a party to the kidnapping, torture, and murder of her husband, Bradley Lyons (‘the deceased’), by the co-accused between 2 and 3 December 2018. In the alternative, if she was not a party to the murder, she was complicit in a plan to kidnap and assault her husband, and was aware that it was probable that he would be murdered. On the prosecution case, the motivation for the applicant’s instigation of the crimes was her hatred for the deceased in light of her belief that he had sexually abused one or more of her daughters and in addition, that he was being unfaithful to her.
The applicant
The applicant is 37 years of age. She grew up in Lakes Entrance and was primarily raised by her mother, Debbie Saunders, and stepfather, Graham Saunders, with whom she remains close. Her biological father, who suffered from alcoholism, committed suicide when she was six years old. He was an Aboriginal man who was disconnected from his family.
The applicant has seven children aged between 7 and 19 years old, four of whom have been diagnosed as being on the autism spectrum. She also has a grandchild aged 2, the child of her oldest daughter, and her second oldest daughter is expecting a child. The applicant and the deceased were married in 2011, with three of her children fathered by him.
Prior to remand, the applicant was the full-time carer of her children and grandchild. Since her incarceration, four of her children and her grandchild have lived with the applicant’s brother, Clinton Hooper, at the applicant’s Department of Housing property in Lakes Entrance. Her second oldest child lives with a family friend in Metung. One of her daughters lives with the applicant’s mother and step father in Lakes Entrance. Another lives with her aunt in Hastings.
Although there is nothing to indicate that the children are receiving anything less than appropriate and loving care at the respective locations where they live, one of the important matters relied upon in the bail application was the contention that they have experienced significant distress and upheaval as a result of the current allegations and the arrest and incarceration of the applicant.
The applicant has a history of cannabis, methamphetamine and alcohol abuse.
The applicant has a limited criminal history spanning 2006 to 2017, comprising convictions for violence and street offences. She has no history of failing to answer bail or committing indictable offences whilst on bail.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
As already indicated, the exceptional circumstances test applies in this case. The applicant bears the burden in respect of that test. In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[3] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J in DPP v Muhaidat[4] stated the relevant principle as follows:
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.[5]
[4][2004] VSC 17 (‘Muhaidat’).
[5]Ibid [13]; See also Re Sipser [2019] VSC 362 [43]; Re Brent Reker, Tara Egglestone and Pierce Williams [2019] VSC 81 [39] (‘Re Reker’).
It should be noted that something more than the proof of the existence of exceptional circumstances is required before an applicant for bail can surpass the high hurdle represented by the exceptional circumstances test. As Beach JA said in Re Roberts,[6] in the course of refusing an application for bail where the conviction of the applicant for murder had been set aside due to police impropriety:
[T]he miscarriage of justice found by the Court of Appeal, which resulted in the quashing of his convictions, constitutes a rare and highly unusual circumstance. One may even attach the epithet ‘exceptional’ to those circumstances.
That said, in my view, the matters relied upon by the applicant in support of his application for bail do not, either individually or collectively, amount to exceptional circumstances ‘that justify the grant of bail’. To establish that the circumstances of the applicant’s case are, in a general sense, ‘exceptional’ is not sufficient, there must be exceptional circumstances that justify the grant of bail.[7]
[6][2020] VSC 793.
[7]Ibid [19]–[20] (emphasis in original).
The Court of Appeal in Roberts v The Queen[8] later held the approach of Beach JA to be correct. In doing so, the Court noted what had been said by Vincent J in Re Bail Application by Moloney: [9]
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.[10]
[8][2021] VSCA 28.
[9]Unreported, Supreme Court of Victoria, 31 October 1990.
[10]Ibid.
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[11]
[11]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The applicant’s submissions
Mr McMahon SC, who appears with Ms Dixon for the applicant, relies on a combination of the following factors to demonstrate the existence of exceptional circumstances that justify the grant of bail:
a) Delay. Mr McMahon submitted that the likely delay of at least three years between the alleged offending and the commencement of the trial would be sufficient on its own to amount to exceptional circumstances but made it clear that he relied on it not in isolation, but in combination with the other matters. On any view, he submitted that the question of delay should weigh very heavily in the balance.
b) The impact of continued incarceration on the mental health of the applicant, particularly in light of the impacts of COVID-19, including the limitation on her capacity to see her children. The prison records of the applicant were provided as an exhibit to the affidavit in support. As Mr McMahon put it, these showed regular, ongoing engagement with the health services within the prison, a constant struggle with sadness and grief, episodes of depression, and the use of prescription medication to deal with her problems. In spite of the claim of a deleterious effect of ongoing incarceration, Mr McMahon at one point said, of the material, that it showed ‘a grief-stricken woman slowly improving her situation in a prison medically’.[12] On the other hand, he submitted that the notes showed a worsening of her condition, and indicated that she received treatment by a number of different individuals, including psychiatric nurses and psychologists.
[12]Transcript 23.
c) The impact of continued incarceration on her relationship with her children and on their wellbeing. The Court received letters from a number of the applicant’s children in support of the contention that, notwithstanding the fact that the children are all receiving adequate care from family members, they are greatly affected by her incarceration and desperately want her home with them. Mr McMahon submitted that the letters constitute powerful testament to the struggles of all family members involved. He pointed in particular to the fact that a number of the children have special needs on account of their being on the autism spectrum. The children are obviously affected by the murder of the deceased, and although aware that she has been accused of responsibility, desperately want her home. The second oldest daughter is pregnant. Furthermore, the children all identify as members of the Aboriginal community. The continued incarceration of their mother contributes to the cycle of incarceration and separation so common in that community. In such circumstances, he submitted, where incarceration can be avoided, it should be, as made clear by the Court of Appeal in HA (a pseudonym) v The Queen.[13] As an additional but subsidiary aspect of the submission concerning the children, Mr McMahon pointed out the enormous burden placed on those now caring for the children.
[13][2021] VSCA 64 (Maxwell P and Kaye JA) (‘HA’).
d) The applicant’s Aboriginality and the desire of Parliament and the courts to give weight to the implications arising from the detention of Aboriginal people. Mr McMahon referred to section s 3A of the Act, the decision of HA and the contents of the affidavit in support by Jillian Prior in support of the contention that the Aboriginality of the applicant is an important matter where bail is concerned in this case. In explanation for the denial by the applicant in the police interviews of Aboriginal or Torres Strait Islander descent, it was indicated that the applicant was fearful that she would be treated poorly if police knew she was an Aboriginal person. As for why the applicant’s Aboriginality was not relied upon by her in the first application before me, nothing was said. It is apparent that for some reason she did not inform her then lawyers of the fact. Mr McMahon acknowledged that the applicant ‘has had a variable connection to her heritage’.[14] As an adult in particular, she ‘has had ongoing, varying involvement with local Aboriginal community’.[15] All of the applicant’s children identify as Aboriginal, and their fathers were Aboriginal men. Since her incarceration, it was submitted that the applicant has connected much more strongly with her Aboriginal identity ‘and found great comfort, stability and support in doing so’.[16] Mr McMahon submitted that s 3A of the Act represents, inter alia, ‘a recognition of the historical disadvantage of Aboriginal people and the reality of increased incarceration, increased separation of children from their parents, from their mothers, from their homes, and so on’.[17] Mr McMahon referred to Royal Commission reports on the matter of Aboriginal disadvantage and vulnerability. He described the applicant as ‘almost an archetype of that disadvantage’.[18] A number of examples of the involvement of the applicant and her family in Aboriginal culture were set out in the affidavit and other material. Mr McMahon noted that many of the organisations which are providing assistance to the applicant, and would help her should she be released on bail, are Aboriginal organisations. Mr McMahon distinguished this case from the sort of case considered by Beale J in Re Reker[19] in which it was pointed out that the applicant’s Aboriginality should not overwhelm other considerations in the application. In that case, it was submitted, the Aboriginality was unimportant. Not so in this case where it is very significant.
[14]Affidavit in support [22].
[15]Ibid.
[16]Ibid.
[17]Transcript 32.
[18]Ibid 33.
[19][2019] VSC 81 [69].
e) The availability of accommodation, namely, the family home with her children. Whilst at the previous application, there was some uncertainty about whether the current public housing of the applicant would continue to be available to her, that question has been resolved, and indeed, her brother has been permitted to reside at the premises while the applicant has been incarcerated. Should she be released on bail, it is anticipated that she would live at her former home with all of her children. In the circumstances of trauma following the murder of the deceased, it was submitted that it would be very likely that the applicant and the children would all greatly benefit from the mutual support they offer each other. Amongst other things, a letter from the applicant’s sister exhibited to the affidavit was relied upon in support of this contention.
f) The availability of strong and significant cultural and community supports. The details of the supports on offer to the applicant were set out in the affidavit in support. These include the services of WestCASA, the Australian Community Support Organisation (‘ACSO’), and The Torch. It was also noted that in custody, the applicant has attended meetings of AA and NA.[20] WestCASA has a trauma service located within Dame Phyllis Frost Centre. A report from WestCASA indicates that having been proactive in self-referring to the service, and having spent time on a waiting list, the applicant had attended no fewer than 39 counselling sessions up to April 2021. According to the report, she has demonstrated motivation to work on her past issues involving trauma, and is committed to her healing. Mr McMahon also detailed the services provided in the past and available to the applicant in future from the other organisations. In respect of ACSO, a report from the organisation indicates that they have been working with the applicant in custody to identify her needs. Upon her release she would be referred to the office in Gippsland for intake and assessment. An appointment with the Lakes Entrance Aboriginal Health Association has been organised with a view to a mental health plan being prepared. A reintegration plan has been prepared for her release, and upon her release, she would be provided with assertive outreach for three months. In addition to all of the above, Mr McMahon emphasised the expertise of his instructors in being able to provide a range of services and support for women in trouble. Their involvement would enable the necessary connections to be made swiftly and reliably. Mr McMahon submitted that the Court:
[20]Alcoholics Anonymous and Narcotics Anonymous respectively.
was being presented with…a significant, coherent, well thought out , mutually supportive package for our client to provide all of the assurance that could possibly be done, that granting bail to our client would not be a mistake.[21]
[21]Transcript 37.
g) The applicant’s ties to the jurisdiction.
h) The applicant’s very limited criminal history, including her lack of breach of bail offences. On this score, Mr McMahon noted, as is the case, that the applicant has not been put forward by the prosecution as posing an unacceptable risk of reoffending.
i) The extremely powerful motives operating on the applicant to comply with all bail conditions, no matter how strict, so as to remain with her children. Mr McMahon submitted that this matter speaks for itself. In respect of the concern expressed by the informant in his report of the risk of the children being exposed to drug and alcohol abuse, that risk was conceded, but should be viewed as being low in light of all of the counselling the applicant has received over her time in custody, all the supports available to her in the community should she be released, and the availability of strict bail conditions. On the latter score, Mr McMahon specifically submitted that the imposition of a condition requiring abstinence from not only illegal drugs, but alcohol, would be appropriate and desirable. If bailed, the applicant would recommence attendance at meetings of AA and NA.
j) The strength of the Crown case. On this matter, it is perhaps sufficient to set out what was said on the point in the defence outline of submissions:
The brief is unusually voluminous, with layers of evidentiary legal difficulties. Questions of admissibility, and separate trials, loom large. Although the evidence is strong for [the applicant’s] presence at the time of the kidnap, beyond that there is likely to be much in issue. Reasonable minds will differ on how strong the case for murder is. For these purposes, we do not argue it is weak, nor concede that [it] is strong. It is indisputably legally complex and difficult.[22]
[22]Outline of submissions [28].
Mr McMahon emphasised the requirement of the Court to consider all of the surrounding circumstances. Amongst those emphasised to be of importance was the fact of the impact of the COVID-19 pandemic on the conditions in which the applicant has been held, and will be held for an indeterminate period into the future should bail be refused. Aside from the impact on her ability to receive visits from her children in the flesh, the pandemic in other respects has imposed a very serious burden upon her.
Another matter relied upon in proof of the existence of exceptional circumstances was the asserted absence of an unacceptable risk in this case, about which I will say more shortly. Mr McMahon submitted that that factor begins to weigh heavily in the mix as a result of the delays which have occurred in this case.
Mr McMahon submitted that it is unusual in a bail application for such a large number of factors pointing to exceptional circumstances to be relied upon. He submitted that the combination of factors in this case well and truly satisfies the test.
On the question of unacceptable risk, Mr McMahon submitted that the risk relied on of interfering with witnesses was not a real risk at all. The practical reality is that the applicant has been in continuous or at least very regular contact with her children who are the witnesses in question. Furthermore, they have been living with family members of hers who are also witnesses. There is nothing to suggest that the applicant has applied pressure on the children to change their evidence. Furthermore there is nothing to indicate they would even know how to help her should they want to do so. The children have given evidence in the s 198B hearings, meaning that their evidence is very much more secure than it was at the time of the previous bail application. All-in-all, Mr McMahon submitted that there is not an unacceptable risk that the applicant would interfere with the witnesses.
In conclusion, Mr McMahon submitted:
The needs of the family, the desire of the mother to be with her children, the fantastic package of resources that are put together, the presumption of innocence, the willingness of the legislation…in its guiding principles to allow for bail, the fact that exceptional circumstances can be anticipated…and then the added factor of the requirement to recognise the reality of the history of the vulnerability of Aboriginal people and the desire for them not to be incarcerated if that can be avoided. And all of that adds up…to a strong case for finding the exceptional circumstances and tailoring appropriate bail conditions.[23]
[23]Transcript 49.
The respondent’s submissions
Mr R Gibson QC,[24] who appeared with Ms Goding for the respondent, relied upon a written outline of submissions and oral submissions before me in resisting the grant of bail. He began by emphasising the very high test for bail. As he put it, many of the matters relied upon by the applicant, including those concerning the hardship to the applicant and her children consequent upon their separation were no more than the sort of ordinary circumstances mentioned by Kaye J in the passage cited above from Muhaidat. They are not exceptional. They are simply an ordinary component of someone being in custody. Mr Gibson did not submit, however, that those matters should not be taken into account in a consideration of the surrounding circumstances, but it was a matter of the degree to which such matters could have an impact. In this regard, he pointed out that the children, far from being in some institutional environment or the like, or even with foster parents, are living with family members, and many of them in their actual home.
[24]Mr M Gibson QC appeared for the respondent in the first bail application.
Mr Gibson submitted that the question of delay should be examined in the applicable circumstances. I should not look at it in terms of a perfect world where everyone can be tried within weeks or months of being charged. This is a very complex case involving five co-accused. Complicity is relied upon. There is significant post offence conduct. There are numerous child witnesses. There are over 15,000 pages of depositions. There will be substantial pre-trial argument. The delay, acknowledged by Mr Gibson to be likely to be of the order of three years, is undeniably significant, but must be seen in the context of the nature of the case. In this respect, he referred to the decision of Beach JA in Re Casale[25] and distinguished the position in this case from that in Re Application for Bail by Biba.[26] Mr Gibson submitted, in light of the applicant’s reliance on what has been said in other cases about lengths of time which may amount to exceptional circumstances of themselves, that it is ‘not a mathematical equation, that if delay reaches a certain point, then ipso facto exceptional circumstances are established that justify the grant of bail’.[27] Mr Gibson also pointed out that the time spent on remand will not exceed the sentence that could reasonably be expected to be imposed should the applicant be found guilty of the alleged murder, or even of the lesser offending only.
[25] ` [2017] VSC 568.
[26][2020] VSC 536.
[27]Transcript 58.
In respect of the matter of the strength of the prosecution case, Mr Gibson submitted that this is not a ‘distraction’, as had been contended by the applicant. A weak prosecution case is often regarded as a significant factor which may strongly advance an argument in favour of the grant of bail. Even accepting the applicant’s submission that the case is neither weak nor strong, this would mean that a weak Crown case cannot be called in aid in the application.
In any event, Mr Gibson contended that the case is actually a strong one. Numerous pieces of evidence, both direct and circumstantial, inculpate the applicant in the crime of murder.
Turning to the Aboriginality of the applicant, whilst not challenging that the applicant’s connection with her heritage is a legitimate and strong one, and not mere window dressing, Mr Gibson submitted that ‘her linkage with Aboriginal heritage is something that has waxed and waned over time’[28] and the connection ‘has been rekindled or re-enlivened since [the applicant] has been in custody’.[29] She cannot be said to be well integrated into the Aboriginal community with firmly established indigenous roots. Furthermore, should bail be refused, any linkage with her children and their culture would be unlikely to be disrupted as the children all identify as being Aboriginal.
[28]Transcript 59.
[29]Ibid 62.
Mr Gibson accepted in his submissions that the Court is required to have regard to s 3A of the Act and the principles discussed by the Court of Appeal in HA. He submitted, however, that the degree of the indigenous linkage and the intensity of it is relevant to the extent that the principles would have an impact.
Mr Gibson, acknowledging the regrettable fact of indigenous over representation in custody, submitted that in the bail application, ‘that’s not a factor that…should propel the court to grant bail’.[30] That is more a matter of social policy, he submitted.
[30]Ibid 64.
In respect of the reliance upon the supposed decline in the applicant’s mental health, Mr Gibson submitted that far from there being such a decline, in fact, compared to her previous dysfunctional, chaotic and drug-taking circumstances, the applicant has made significant improvements in her mental health by taking advantage of the many opportunities offered to her while in custody.
Mr Gibson accepted that there are strong and significant community supports on offer to the applicant should she be granted bail, that her prior convictions are not very significant, and that, as is the case with many people released on bail, she would have powerful reasons to comply.
On the question of unacceptable risk, Mr Gibson acknowledged that the applicant has had time whilst in custody to potentially influence the witnesses, but the risk of such influence would be greatly magnified should she be back in the family home with them, particularly bearing in mind their desire to have her with them and not found guilty of the crimes with which she is charged. The motivation of the applicant to seek to influence the children cannot be equated to the much lesser motivation possibly felt by her brother and mother. As to the proposition relied upon by the applicant that other provisions in the Evidence Act 2008 would enable the Crown to seek to secure accurate evidence from the witnesses should they change their tune, Mr Gibson made the point that the prosecution would be best served by witnesses maintaining the truth as per their VAREs.
On the matter of the current status of the evidence, Mr Gibson indicated that there is no evidence indicating that the applicant has, either herself or through another, sought to influence her children in what they would say.
On the changed position of the prosecution between the two bail applications on the question of unacceptable risk, Mr Gibson pointed out, quite correctly, that different counsel are entitled to evaluate the material differently. Further to that, there has been somewhat of a change in the position, by virtue of the fact that the witnesses have now given evidence in the s 198B hearings. The value of their evidence has thereby increased and there is more to be lost should they be interfered with.
Mr Gibson accepted that there are cases which come before the Court where the unacceptable risk factors would be far more compelling that those before the Court in this application. Notwithstanding this, Mr Gibson maintained that the risk of the applicant interfering with witnesses is unacceptable and cannot be ameliorated by conditions.
Analysis
Dealing first with a preliminary matter, accepting without deciding that the applicant was required to show that new facts and circumstances have arisen since bail was refused by me last year as a precondition to the application proceeding,[31] there is no question that that is so, as was conceded by the prosecution.
[31]The Act, s 18AA.
I make the observation at the outset that it is clear to my mind that the application for bail mounted on this occasion was of substantially enhanced force by virtue of events which have transpired in the interim and new matters relied upon, including, centrally, the Aboriginality of the applicant, a matter of which the Court, and it seems, the applicant’s legal representatives, had no knowledge at the time of the first application.
Some things, of course, have not changed. I indicated on the previous occasion that on the prosecution case, the main crime with which the applicant is charged is a heartless and premeditated murder that sits towards the upper end of the range of seriousness. As for the strength of the case, on the previous occasion, I rejected a contention that is no longer relied upon, namely, that the Crown case on the murder is a weak one. I did not reach a conclusion then that the case is necessarily strong, and nor do I now. There is much which needs to unfold before the true strength or otherwise of the prosecution case can be seen. It is clear enough now, however, that while not weak, neither is the case an overwhelming one. Were it so, then no matter what other matters were called in aid in proof of exceptional circumstances, the applicant would be on very shaky ground in this application.
To my mind, the Aboriginal heritage of the applicant is a matter of great importance in the application. In HA, the Court of Appeal in an appeal concerning the refusal of a grant of bail to an intellectually disabled Aboriginal child, stated:
Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[32]
[32][2021] VSCA 64, [58]-[59].
It is regrettable that the Aboriginal status of the applicant was seemingly not known to the legal representatives of the applicant, or the Court, sooner than it was. Having said that, the material currently before the Court, the legitimacy of which has not been challenged, clearly shows that notwithstanding the inconsistent engagement of the applicant with her culture in the past, the period of her incarceration has permitted, if not brought about, a rekindling of that connection. The indications are that should she be released on bail, that connection, which would be to the undeniable benefit of herself and her children, may well be able to be substantially strengthened to the long-term advantage of her whole family, and her place in the indigenous community may serve to increase her prospects of successfully complying with bail.
I take into account in the overall application, as I am required by law to do, the considerations in s 3A of the Act, and when considering the surrounding circumstances as is required of me in connection with both steps in the two-step process of bail, I have regard to the special vulnerability of the applicant by virtue of her Aboriginal heritage.[33] In the circumstances of the application, and notwithstanding the fact that the applicant’s connection with her heritage has not been consistently strong over the years, her Aboriginality is a very important matter in this application.
[33]Section 3AAA(1)(h) of the Act.
Turning to the matter of the likely delay in this case, which is expected to be of the order of three years, I make the observation that the anticipated delay now is of the same order as that contemplated at the time of the previous application, in spite of the fact that things have in some respects changed substantially. Previously, there was a long delay anticipated in the matter coming on for committal, with the prospect of the committal being further delayed due to COVID-19. As things transpired, a committal was not necessary, and the case found its way into this Court expeditiously. Unfortunately, the continuing uncertainty in the criminal justice system brought about by the pandemic, which has been very well illustrated in the period of time between the hearing of the bail application and the handing down of the decision by the movement of Victoria into yet another state of lockdown, as well as the considerable complexity of this case and the number of accused involved, raise the real prospect that the applicant’s trial may not even proceed in the first half of next year.
On any view, that is a very substantial and unfortunate delay, made all the more so by the onerous conditions under which the applicant has been held in custody for much of that time.
I do not accept, however, that a delay even of the length anticipated in this case, would mean as a matter of course that exceptional circumstances would be made out. On that score, I accept the submission of Mr Gibson for the respondent, noting, of course, that Mr McMahon did not seek to rely on delay in isolation. The question of whether exceptional circumstances have been established is not to be governed by some sort of mathematical equation whereby, in the event of a delay of a certain length, the hurdle will be surpassed. Under the provisions of the Act requiring the surrounding circumstances to be taken into account, that is not how things work. Having said that, the delay in this case is a very important matter going into the mix.
A number of the other matters on the list of factors relied upon by Mr McMahon in proof of exceptional circumstances are also of some importance. In particular, I have regard to the desirability if possible of the applicant being reunited with her children, and the availability of very strong and extensive cultural and practical support for her in the community should she be released on bail. There is a good deal of material indicating the significant steps the applicant has taken since her incarceration to turn her life around from the chaotic and troubling lifestyle she was living beforehand. If these changes are genuine and can be maintained, there is a real prospect not only of the applicant being reunited with her children, but of the future prospects of the family being enhanced.
One of the matters relied upon by the applicant in support of the existence of exceptional circumstances is the asserted absence of an unacceptable risk of any of the eventualities contemplated by s 4E(1) of the Act. Of course, the question of unacceptable risk is a matter which would require further consideration by the Court should the applicant succeed in clearing the first hurdle in this application. There is no question, however, that the absence of risk is a matter which could weigh in the mix where exceptional circumstances are concerned.[34] The parties are at odds as to how the risk posed by the applicant should be evaluated.
[34]See, for example, Re Gloury-Hyde [2018] VSC 393, [30].
The position of the Crown at the two bail applications has varied. At the first application, it was accepted by the respondent that the applicant did not pose an unacceptable risk, and that I should take that fact into account when considering the issue of exceptional circumstances. Before me, Mr Gibson contended that there is an unacceptable risk of the applicant interfering with witnesses. There can be no criticism of this change of position by the prosecution, and none is intended.
Having considered the matter, whilst there must, as Mr McMahon acknowledged, be some risk of the applicant seeking to influence her children, and therefore interfering with them as witnesses, for the reasons advanced by Mr McMahon, I do not consider the risk to be a significant one. There is no evidence that in the long period of time since the applicant was charged, she has sought to influence her children. They have now committed themselves to evidence on oath in the s 198B hearings, so it may be considered that the applicant would have less to gain now by any attempt to have them change their evidence than would have previously been the case. Such risk as exists could perhaps be minimised even further by the imposition of the condition proposed in this regard by Mr Gibson.
I act on the basis, therefore, that there is no significant risk that the applicant would engage in any of the conduct envisaged by s 4E of the Act, and that this is a matter to weigh in the mix when the question of exceptional circumstances is being considered.
In El Nasher v DPP,[35] the Court of Appeal, albeit in the context of the question of unacceptable risk, noted:
There are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.[36]
[35][2020] VSCA 144.
[36]Ibid [51].
In deciding whether the applicant has discharged the heavy burden resting upon her of proving that exceptional circumstances exist in this case that justify the grant of bail, I have carefully considered all of the surrounding circumstances of this case as I find them to be. Having done so, I am satisfied that the applicant has discharged the burden.
I am then required to consider whether or not the respondent has discharged the burden of proving that there is an unacceptable risk that the applicant would interfere with a witness in this case. Consistent with what I have already said, I am not satisfied that any risk posed by the applicant in this regard is an unacceptable one.
Conclusion
For the reasons I have stated, I am prepared to grant bail to the applicant, on conditions I will shortly spell out.
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