Re Jackson
[2022] VSC 101
•3 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0023
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by Richard JACKSON |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2022 |
DATE OF JUDGEMENT: | 23 February 2022 |
DATE OF REVISED REASONS: | 3 March 2022 |
CASE MAY BE CITED AS: | Re Jackson |
MEDIUM NEUTRAL CITATION: | [2022] VSC 101 |
CRIMINAL LAW — Application for bail — Charge of murder with two co-accused — Charge put on complicity basis — Strength of the prosecution case — Delay — Onerous custodial conditions due to COVID-19 pandemic — Surety proposed — Interfering with witnesses alleged — Exceptional circumstances established — Unacceptable risk not made out — Bail granted — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Georgina Connelly | James Dowlsey & Associates |
| For the Respondent | Jordan Johnston | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Richard Jackson (“the applicant”). On 12 July 2021, he was arrested and charged by Detective Senior Constable Penny Crossley with the murder of Brendon Farrell (“the deceased”). He has been in custody on remand since that date.
There are two co-accused in the matter, Terence Tiumalu, who is also charged with the deceased’s murder, and Robert Haapakoski, who is charged with being an accessory to the deceased’s murder. They are both in custody on remand. The matter is listed for a joint committal hearing on 16 May 2022 in the Melbourne Magistrates’ Court.
The applicant now applies for bail in this Court.
The alleged offending
Background
At the time of the alleged offending the applicant was living in the main residence of 141 Kidds Road in Doveton with Mariellen Duffy and Shane Pretty (“the Doveton property”). The deceased was living in a bungalow at the rear of the property, which he had been renting from the applicant since June of 2020.
In early 2021, the applicant’s 13 year old son was removed from the applicant’s care by the Department of Families, Fairness and Housing (“DFFH”). His son had previously been residing at the Doveton property. The prosecution allege that the applicant blamed the deceased for the removal of his son, due to the deceased’s drug use and criminal activity and that this motivated the applicant to enter an arrangement with Mr Tiumalu to evict and remove the deceased from the Doveton property, leading to the deceased’s death. It is that arrangement that is alleged to be the foundation of the charge of murder against the applicant.
Incident on 31 May 2021
At approximately 11:00am on 31 May 2021 the deceased was with his ex-partner Kristy Mayes in the bungalow at the rear of the Doveton property. He left to use the bathroom in the main residence and, on his way there, was met by co-accused Mr Tiumalu and Mr Tiumalu’s friend, Quinn Letzing.
Mr Tiumalu, Mr Letzing and the deceased conversed briefly in the backyard before attending inside the main residence together where they spoke further. It is alleged that Mr Tiumalu ‘snapped’ during this conversation and began assaulting the deceased, slapping him, and then gripping him by his legs and punching him to the head and face. Mr Letzing began to feel uncomfortable and left in Mr Tiumalu’s car.
Meanwhile, the applicant went inside the deceased’s bungalow and began ransacking it in Ms Mayes’ presence, stating that he was looking for items the deceased had stolen from him.
Mr Tiumalu later entered the bungalow and told the applicant he had ‘done some re-decorating’ and that there was blood everywhere, pointing to some markings on his boot. Ms Mayes, who had heard screaming coming from the main residence earlier, was fearful and got up to leave. Mr Tiumalu told her ‘you’ve seen nothing here’.
At 12:00pm, associates of the applicant, Lisa Attard and Shallon Chilcott, arrived at the main residence and observed the deceased moaning on the kitchen floor in the foetal position while Mr Pretty was mopping up blood. The applicant told Ms Attard that he had ‘shaken hands’ with Mr Tiumalu and had to ‘go along with’ whatever ‘they’ did. Ms Attard asked if they were going to ‘K-I-L-L’ the deceased and the applicant replied, ‘nah we are just going to teach him a lesson’.
At 2:15pm, a close friend of the deceased, Matthew Howlett, arrived at the Doveton property and was told by the applicant the deceased was not home and that he had not seen him for several days. Mr Howlett observed a male of Islander appearance exit the bungalow. It is alleged this male was Mr Tiumalu.
At 4:50pm Mr Tiumalu asked Mr Letzing to bring his car back and instructed him to reverse it into the driveway. When he arrived, it is alleged that Mr Tiumalu carried the deceased to the car, placed him in the rear footwell and got in the driver’s seat. It was Mr Letzing’s observation that the deceased appeared unconscious at that time. He and got into the car with Mr Tiumalu and asked to be taken home. It was Mr Letzing’s evidence that he then observed the deceased to be snoring loudly and quivering.
At 6:47pm the deceased’s mother, Valeria Hellyer, reported the deceased missing to police following several unanswered phone calls to him. At 7:18pm police attended the Doveton property to investigate and were told by the applicant that he had not seen the deceased since the previous day.
At 7:30pm Mr Tiumalu asked co-accused Mr Haapakoski to bring him some fuel at the back of the Cranbourne racecourse. After arriving with the fuel, Mr Haapakoski reportedly saw the deceased in the rear of the car and was told by Mr Tiumalu that he had ‘carked it’.
Post-offence events, investigation and arrests
On 1 June 2021, the deceased’s family attended the Doveton property and were told by the applicant he had not seen the deceased for about five days. The deceased’s mother went to lock the bungalow door to protect the deceased’s belongings. When she did so she observed it to be unusually messy and noticed that a different front door had been fixed to the bungalow from the one she had seen in January 2021.
On 2 June 2021, Ms Mayes told Ms Hellyer about her observations from the bungalow on the day of the alleged assault. Police were contacted and briefly searched the Doveton property, with the applicant’s consent, for the deceased.
On 3 June 2021, police executed a search warrant at the Doveton property and took forensic samples which included a total of 12 blood swabs from the lounge, kitchen, laundry sink and hallway areas. Police observed:
(a) bloodstained shoe prints near the kitchen;
(b) bleach on the walls and floor;
(c) two cricket bats, one bloodstained;
(d) scissors in the kitchen sink; and
(e) a wet mop.
The applicant was arrested and gave a sworn statement saying he last saw the deceased leaving the Doveton property on his bike between 11:0 am and 12:00pm on 31 May 2021. He also participated in a record of interview at that time.
On 11 June 2021 the blood samples taken from the Doveton property were confirmed as a match to the deceased.
On or around 29 June 2021, police began using telephone intercepts to monitor the calls from Mr Tiumalu and the applicant.
On 6 July 2021, police conducted an extensive search of the Cranbourne racecourse area which attracted media attention, and two days later on 8 July 2021 Mr Tiumalu was captured via the telephone intercepts telling his girlfriend that, ‘some things that I did just came on the news’ and ‘I’ll get caught soon’.
On 9 July 2021, police arrested Mr Tiumalu at his home in Hampton Park and conducted a search of it, seizing various items including a pair of bloodied boots, phones, weapons and ammunition, and two DVDs of police interviews labelled “Brendon Hellyer”, which is understood to be an alternate surname used by the deceased. Mr Tiumalu was arrested and remanded in custody. He made a ‘no comment’ record of interview.
Police reviewed Mr Tiumalu’s phone, which revealed:
(a) on 31 May 2021, he sent multiple text messages to Mr Letzing reading, ‘Was wondering if you wanted to come experience a chilled out situation where I’m letting someone know they are getting evicted?’. And then, ‘In Doveton’, and then, ‘Nothing, I’m just going to tell a shit cunt his [sic] being evicted’;
(b) between 31 May and 4 June, he sent a message to Mr Letzing stating, ‘I’ve still got him’. He later contacted Mr Letzing to say that ‘Brendon’ passed away;
(c) his personal TikTok profile, which reads ‘No essay Samoan/Chinese CEO of debt collecting you’re [sic] money back’;
(d) photos and videos of him digging holes in Mr Haapakoski’s backyard between 5 and 15 June, standing over the bloodied and motionless deceased on the floor, gesturing at and kicking him.
On 9 July 2021, the same day as Mr Tiumalu’s arrest, police executed a search warrant at Mr Haapakoski’s home in Noble Park and were directed by him to the backyard where the deceased’s body was located wrapped in carpet inside a canoe that was leaning up against a boat trailer. At the time, police observed that two holes had been dug in the backyard.
Mr Haapakoski was arrested and taken to Melbourne West police station for interview where he made various statements implicating Mr Tiumalu, including that Mr Tiumalu had placed the deceased’s body in his backyard about a month prior and had dug out the holes in the backyard. He stated he was not sure what happened to the deceased except that he stopped breathing, but noted Mr Tiumalu told him the applicant wanted the deceased out because of an issue with his son. The interview was discontinued due to Mr Haapakoski being assessed as unfit to proceed.
On 12 July 2021, the applicant was arrested and during a record of interview said that:
(a) the deceased had been dealing drugs from the Doveton property;
(b) he met Mr Tiumalu for the first and only time on 28 May 2021 and did not have his phone number; and
(c) he last saw the deceased when he was riding away from the Doveton property on 29 May 2021.
The applicant was charged and remanded in custody.
The applicable legislation
The applicant is charged with murder, which is a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’).[1] Bail must be refused unless he can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2] In determining whether exceptional circumstances exist, the Court must take into account the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.[3]
[1]Bail Act 1977 (Vic) (‘the Act’) sch 1, item 2.
[2]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[3]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[4] In determining this, the Court must 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 unacceptable.[5]
[4]Ibid ss 4D(1)(a) and 4E.
[5]Ibid s 4E(3).
Section 5AAAA(1) of the Act requires the Court to make enquiries of the prosecutor as to whether there is in force against the applicant a family violence intervention order, family violence safety matters or a recognised domestic violence order. The material filed on behalf of the respondent has confirmed there are no such orders currently in force against the applicant, though it is noted that the applicant is the named as the affected family member on two such orders. The particulars of these orders are not stated.
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1).[6]
[6]Ibid s 1B(2).
The applicant’s personal circumstances
The applicant is 50 years of age. He is an Australian citizen, born in England. At the age of five, he moved to Australia with his family. He maintains a close relationship with them, including his two siblings who now reside in the United States.
He left school at the age of 16 to work with his father as a removalist. Around the same time, he took up boxing and went on to do so professionally. He retired from boxing around the age of 26 due to various injuries including a detached retina, tinnitus and an acquired brain injury. The applicant has other health issues, having been born with spina bifida and scoliosis, and receives a disability support pension. He was in the process of applying for supports from the National Disability Insurance Scheme prior to his remand.
The applicant has five children, aged between 13 and 29 with four former partners. His two youngest have resided with him at various times, however, one transitioned to residential care due to drug and alcohol concerns and, as detailed in the alleged offending, his youngest child was removed from his care early in 2021.
Criminal history
The applicant has a criminal history including assaults, threats to kill, weapons, dishonesty and property offences, as well as breaches of intervention and community-based orders.
The applicant’s submissions
Ms Connelly, on behalf of the applicant, relied on the following matters, in combination, in support of the application for bail.
Nature and seriousness of the allegations
First, Ms Connelly conceded that murder is the most serious offence that a person can be charged with. However, she noted that the prosecution does not allege that the applicant physically participated in the conduct causing the deceased’s death, but rather that he formed some agreement or arrangement with Mr Tiumalu or intentionally assisted him in relation to the deceased’s murder.
Strength of the prosecution case
Ms Connelly submitted that there is no direct evidence of discussions or interactions between the applicant and the co-accused leading up to the deceased’s death, and in particular, no evidence of an agreement between them to murder the deceased. Further, there is evidence from Mr Letzing that the deceased was still alive after being taken from the Doveton property in Mr Tiumalu’s car.
In written submissions counsel for the applicant effectively relied on the lack of strength of the Crown case alone as establishing exceptional circumstances, notwithstanding the other matters also relied upon. Her argument was that the prosecution case with regard to the charge of murder is “hopelessly flawed” given the applicant did not inflict the fatal injuries.[7] At best, there is some kind of agreement to assault, but nothing that would fulfil the ingredients of a charge of murder, particularly nothing that would establish, on a complicity basis, any form of murderous intent. It appeared to me, on the hearing of the application, that Mr Johnston, who appeared for the respondent, accepted that on the basis of the current evidence, that was so.
[7] Re AM [2020] VSC 569, [57].
Previous bail compliance and outstanding matters
The applicant has no prior convictions for bail-related offending and was not subject to any conditional liberties at the time of the alleged offending.
Stable accommodation, ties to the jurisdiction and family support
The applicant has strong ties to the jurisdiction and is supported by his parents, Shirley and Robert Quigg. It was proposed that he would live with them at [redacted], if bail were granted.
Special vulnerability
The applicant was said to have an acquired brain injury and various health conditions which cause him to be more vulnerable than persons without these conditions. No supporting material was provided to confirm these conditions or their impact on the applicant’s experience of remand.
Delay and likely sentence
Reliance was also placed on the issues of delay and likely sentence. Ms Connelly submitted that there will be a delay of at least 10 months between arrest and the committal hearing, and then a further delay between the committal hearing and trial, should this matter proceed to a trial.[8] It was conceded that a prison sentence is inevitable if the applicant is convicted, but in turn, that depends on what ultimately the applicant is convicted of.
[8] Re Assad [2020] VSC 561 [110].
COVID-19 and onerous conditions of custody
Ms Connelly submitted that the applicant has endured onerous conditions whilst on remand due to COVID-19 related restrictions, including being confined to his cell, restrictions on in-person visits and being permitted only one phone call per day. When the prison has not been in lockdown, the applicant has worked in the kitchen five or six days per week. It is well-known in the experience of this Court that a group of people in the community who suffer significantly as a result of the various COVID-19 measures are prisoners in custody.
Surety
The applicant’s parents are willing to offer a surety of up to $100,000 by way of bank cheque if bail is granted.
Unacceptable risk
Counsel submitted that there is no foundation to argue the applicant poses an unacceptable risk. Ms Connelly conceded that the applicant’s prior criminal history does him no credit, however, she noted that he has no prior convictions for breaching bail. Further, his most recent criminal prior was four and a half years ago, he has not breached an intervention order since 2017 and he has successfully complied with undertakings and Community Corrections Orders in the past.
With respect to the respondent’s assertion that the applicant poses an unacceptable risk of interfering with witnesses, the applicant rejected this argument, stating that there was no suggestion of an attempt to induce witnesses to say anything false or not assist authorities.[9]
[9]The substance of the risk alleged by the respondent in relation to interfering with witnesses is detailed in paragraph [56] of these reasons.
Counsel submitted that any such risk that may exist can be mediated by bail conditions, including the applicant residing at his parents’ address, daily reporting to police, submitting to a curfew, not contacting witnesses, surrendering passports and travel documents, and not leaving the state of Victoria or Australia.
The respondent’s submissions
The respondent opposed bail on the basis that the applicant had not shown exceptional circumstances that justify the grant of bail and otherwise poses an unacceptable risk. On the hearing of the application, Mr Johnston, on behalf of the respondent, did not press that exceptional circumstances had not been made out and made appropriate concessions as to unacceptable risk.
The primary unacceptable risk alleged was the risk of interfering with witnesses.
Criminal history
Mr Johnston relied on the applicant’s relevant prior convictions to argue that he has demonstrated a propensity towards violence. It was submitted, at least in the written material filed with the Court, that the applicant’s criminal history shows a pattern of disregard for court-imposed orders. It was noted that the applicant has previously been listed as the respondent on 11 intervention orders involving former partners, of which there have been numerous breaches, including on 19 May 2010, 25 July 2016 and 24 May 2017. In the course of the hearing of this application, the informant, Detective Senior Constable Penny Crossley, gave evidence of her concerns regarding the release of the applicant on bail by reference to his history, the prospect that he might contact witnesses, bearing in mind the nature of the relationships, and earlier incidents of the applicant breaching court orders.
Additionally, it was noted that the applicant previously admitted to the DFFH that he ‘hog tied’ his youngest son because ‘belting him’ had not worked.
Stable accommodation, ties to the jurisdiction and family support
The respondent noted that whilst the applicant has the support of his family, this support has always been in place, including at the time of the offending. The applicant, the respondent reminded the court, has no other means of supporting himself.
The respondent appeared to rely on the fact that the applicant’s mother has a prior conviction for shop stealing in 1997, but did not express any concerns regarding this, which perhaps begs the question as to why it even needed to be mentioned.
So far as the applicant’s asserted ties to the jurisdiction are concerned, it was noted that the applicant - while an Australian citizen – was born in the United Kingdom and could make an application for a British passport. The respondent did not make any direct submission that the applicant poses an unacceptable risk of flight by failing to surrender into custody in accordance with bail conditions.
Interfering with witnesses
The respondent did raise concerns in relation to the applicant’s parents as having been in contact with one of the witnesses in the matter, Mariellen Duffy. It is alleged that she was asked to sign a statement to the effect that she witnessed the deceased injure his knee on his bike and bleed onto the carpet at the Doveton property. On this basis, as I understand it, the respondent submitted that the applicant and/or his parents are likely to attempt to contact witnesses in the matter, although the respondent did not go so far as to submit that such a risk is unacceptable.
In the course of giving evidence on the hearing on this application, the informant stated that the applicant was also a risk of interacting with possible witnesses with whom he was on friendly terms.
Analysis and conclusion
In the way this application proceeded, it became clear early in the hearing that, at present, there is no evidence at all that would support the basis on which the count of murder is levelled against the applicant. Whatever the arrangements there were between the applicant and Mr Tiumalu, there does not appear to be an evidentiary basis of an arrangement, or even a contemplation by the applicant, that the deceased would be killed or really seriously injured. Mr Johnston, as I earlier said, appeared to accept that.
In my opinion, on that basis alone, without needing to consider any of the other circumstances relied upon by the applicant, the threshold of exceptional circumstances is easily reached.
So far as unacceptable risk is concerned, the assertion that the release of the applicant on bail was unacceptable was barely pressed by the respondent because it is clear that whatever risks are involved in the release of the applicant, and there are, of course, risks in any grant of bail, those risks can be easily ameliorated by the imposition of conditions on this applicant.
I therefore propose to release the applicant on bail on his own undertaking and with a surety. In my view, in the present circumstances, a surety of $10,000 rather than $100,000 is easily adequate for these purposes.
I will make the following orders:
1.The said Richard Jackson (‘the applicant’) be admitted to bail upon his own undertaking with a surety in the amount of $10,000 by Shirley Quigg and Robert Quigg and with the following conditions:
(a)The applicant reside at [redacted];
(b)The applicant not leave his place of residence between the hours of 10:00 pm and 6:00 am unless in the company of one or both of his parents, Shirley and Robert Quigg, or for the purpose of seeking urgent medical assistance;
(c)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the Detective Senior Constable Penny Crossley (‘the informant’) or her nominee, being an authorised member of Victoria Police;
(d)The applicant must notify the informant or her nominee at least 14 days in advance of any proposal to change to his place of residence;
(e)The applicant is to report to the Officer in Charge of the Box Hill Police Station, or their nominee, each Monday, Wednesday and Friday between the hours of 6:00 am and 9:00 pm;
(f)The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant and Suhaida Mutembei, or to have anyone to do so on his behalf;
(g)The applicant is not to possess or use more than one mobile phone;
(h)The applicant is to provide the informant or her nominee with the phone number and any password or PIN of the mobile phone he possesses or uses within 24 hours of first having access to that phone and notify the informant or her nominee of any change of password or PIN of that mobile phone within 24 hours of that change;
(i)The applicant is to produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or her nominee;
(j)The applicant is to provide any password or PIN for the mobile phone he possesses or uses upon the reasonable request of the informant or her nominee;
(k)The applicant not leave the State of Victoria;
(l)The applicant not attend any points of international departure;
(m)The applicant surrender any current passport or travel document in his possession or control to the informant or her nominee within 48 hours of being released on bail;
(n)The applicant is not to apply for any such passport or travel document, whether directly or indirectly, or cause any other person to do so on his behalf;
(o)The applicant is to appear at the Melbourne Magistrates’ Court at 9:30 am on 16 May 2022 for Committal Hearing, and thereafter as directed to do so by that Court.
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