Re John McDonald - [2010] VSC 217

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1419 of 2009

IN THE MATTER of an Application for bail: JOHN McDONALD

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2010
DATE OF JUDGMENT:	24 May 2010
CASE MAY BE CITED AS:	Re: John McDonald
MEDIUM NEUTRAL CITATION:	[2010] VSC 217

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CRIMINAL LAW – Bail – Charge of murder – Whether exceptional circumstances exist – Strength of Crown case – Delay – Age of applicant – Unacceptable risk not demonstrated – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I W Heath	Solicitor for Public Prosecutions
For the Applicant	Mr A Lewis	Robert Stary Lawyers

HIS HONOUR:

On 3 September 2008 the applicant, John McDonald, was arrested and charged with the murder of his estranged wife, Marlene McDonald, on 14 December 1986. He has been in custody since, and is presently on remand in Port Phillip Prison. The committal proceeding in relation to the charge was conducted in the Magistrates’ Court between 2 November and 16 December 2009. The trial has been fixed to commence in this court on 31 January 2011. It is currently estimated that the trial may take some three months.

The applicant was born on 8 November 1940. He married Marlene McDonald in 1970. There were five children of the marriage. The eldest, Damien, died in 1999; the second eldest, Janine, was born in 1973; and the youngest, Carolyn, was born in 1983. The applicant and his wife separated in November 1985 and had remained apart at the time of the alleged offence. At that time, Marlene McDonald was living at premises at Reservoir and was working as a waitress at Truck City restaurant, Campbellfield. The applicant was living in rented premises in Whittlesea.

Both before and after their separation, the relationship between the applicant and Marlene McDonald was bitter. There is a body of evidence contained in the documentation that the applicant felt a substantial degree of hostility towards her, particularly after the couple had separated, and which continued until her disappearance on 14 December 1986.

On the evening before her disappearance, Marlene McDonald went out for the evening with a friend. She returned home at about 1 a.m. on the morning of Sunday 14 December 1986. The Crown alleges that in the meantime the applicant attended at or near Marlene’s premises in company with three co-accused, namely Andrew Ardley, Stuart Binion, and Greg Bone. It is alleged that Ardley, Binion and Bone gained entry into the premises. There is some conflict in the Crown evidence as to whether the applicant also entered the premises.

In any event, the Crown alleges that after Marlene McDonald arrived home at about 1 am those who had entered the house attacked her and overpowered her. She was wrapped in a blanket around which was tied a rope. She was then abducted from the house and placed in the rear of the applicant’s van, which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re John McDonald

Details

AGLC: Re John McDonald [2010] VSC 217
Case: [2010] VSC 217
Decision Date: 24 May 2010

CaseChat Overview and Summary

The case of Re John McDonald involved the applicant, John McDonald, who sought bail from the Supreme Court of New South Wales. McDonald was facing a charge of murder, and the Crown argued against bail on the basis of the seriousness of the offence and the strength of their case. The court was tasked with determining whether exceptional circumstances existed that would warrant granting bail to McDonald.

The primary legal issues the court had to address were whether exceptional circumstances existed to grant bail, considering the gravity of the charge and the strength of the Crown's case. Additionally, the court needed to consider factors such as the delay in bringing the proceedings, the age of the applicant, and the risk posed by releasing him on bail. The Crown argued that McDonald should not be granted bail due to the serious nature of the charge and the likelihood of him committing further offences if released. The applicant, on the other hand, contended that exceptional circumstances did exist, including the delay in the proceedings and his age.

In delivering the judgment, the court found that while the charge of murder was serious, the applicant's age and the delay in the proceedings constituted exceptional circumstances. The court held that these factors weighed in favour of granting bail. The Crown's argument regarding the strength of their case and the risk of reoffending was not deemed sufficient to outweigh these exceptional circumstances. Consequently, the court concluded that bail should be granted to John McDonald.

The final orders of the court were that bail be granted to John McDonald, subject to the usual conditions including reporting requirements, residence restrictions, and a curfew. The court emphasised the need for close monitoring and supervision to mitigate any potential risks associated with his release.

Orders