Re Johnson
[2023] VSC 333
•2 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0082
IN THE MATTER of the Bail Act 1977
- and -
IN THE MATTER of an Application for Bail by STEVEN JOHNSON
BETWEEN:
| STEVEN JOHNSON | Applicant |
| - and - | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 May 2023 |
DATE OF JUDGMENT: | 2 June 2023 |
DATE OF REASONS: | 15 June 2023 |
CASE MAY BE CITED AS: | Re Johnson |
MEDIUM NEUTRAL CITATION: | [2023] VSC 333 |
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CRIMINAL LAW — Application for bail — Charge of murder — Minor criminal history — Weak prosecution case— Special vulnerability — Former police officer — Onerous conditions in custody — Health issues — Exceptional circumstances satisfied — Risk of interfering with witness — Risk of obstructing the course of justice — Risk can be managed by GPS monitoring device and strict conditions — Unacceptable risk not established — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | P Doyle SC A Roodenburg | Gallant Law |
| For the Respondent | M Gibson KC | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Steven Johnson [‘the applicant’]. He is 71 years old and in custody for the first time. He seeks bail in relation to one charge of murder, alleged to have occurred on 13 June 2006.
He was arrested on, and has remained in custody since, 22 November 2022.
This is his first application for bail. The matter is next listed on 16 June 2023 in the Warrnambool Magistrates’ Court for committal mention.
The application
The application for bail is supported by an affidavit dated 1 May 2023 affirmed by the applicant’s solicitor, Matthew Senia, attached to which there are a series of exhibits, including:
(a) a copy of the 73‑page detailed Victoria Police Summary of Facts;
(b) a medical report dated 21 April 2023 authored by Dr Phillip Hall, medical practitioner from the Lyndoch Medical Hub;
(c) a Victoria Police criminal history report relating to Glenn Fenwick; and
(d) a copy of the third instalment of a 2022–2023 rate notice relating to the applicant’s residential property in Wangoom [‘the Wangoom property’].
In response to the application, the respondent filed an affidavit in response prepared by Chloe Eckersley, an Australian Legal Practitioner employed by the Office of Public Prosecutions, dated 9 May 2023, also attaching a series of exhibits including for relevant purposes:
(a) a sentence/remand report relating to the applicant;
(b) an informant’s report authored by Detective Senior Constable Alicia Reivers of the Missing Persons Squad;
(c) a series of police statements;
(d) a 120‑page non‑arrest DVD recording of a police interview with the applicant;
(e) transcripts of audio listing device conversations including with the co‑accused and another person, as well as a conversation between the applicant and the co‑accused; and
(f) the applicant’s criminal history.
The written materials provided to the court in this matter were supplemented by oral argument by both parties during the hearing of the application.
The prosecution case
It is the prosecution case that Christopher Jarvis was murdered by the applicant and Glenn Fenwick [‘the co‑accused’], in the context of tensions between the applicant and Mr Jarvis over unpaid rent. The applicant was Mr Jarvis’ landlord at the time of the alleged murder.
Mr Jarvis and his partner had rented a house in Wangoon (near Warrnambool), which was on the applicant’s Wangoom property and neighboured the applicant’s residence. In the four months leading up to the alleged offending, the applicant and Mr Jarvis had been involved in a dispute over outstanding rent. The applicant had lodged an application with the Victorian Civil and Administrative Tribunal [‘VCAT’] to have Mr Jarvis vacate the address, with the application listed for hearing on 14 June 2006, the day following the alleged murder of the deceased.
It is alleged that the applicant asked the co‑accused to help him confront Mr Jarvis in the early hours of 13 June 2006. The prosecution case is that on that morning, the applicant and the co‑accused murdered Mr Jarvis in the driveway of his home by hitting him to the back of the head with an imitation firearm, pinning him to the ground, and then striking him on the head with a baseball bat. It is alleged that the applicant buried Mr Jarvis’ body in Framlingham Forest, using Mr Jarvis’ vehicle to transport his body there. It is further alleged that the applicant then drove Mr Jarvis’ vehicle to sand dunes near Thunder Point Lookout, before setting it alight. The applicant is alleged to have then returned to Mr Jarvis’ address and graded the driveway with a tractor in order to remove evidence.
Mr Jarvis’ body has not been located. DNA testing has been conducted in relation to a baseball bat found in Mr Jarvis’ burnt‑out vehicle. The results of that testing indicated that the DNA of neither the applicant nor the co‑accused was present on the bat.
The prosecution case relies, in part, upon admissions made by the co‑accused. These admissions include those made to a covert operative on 11 and 15 November 2022, the co‑accused’s formal police interview upon arrest on 22 November 2022, and comments made by the co‑accused to another prisoner between 25 and 28 November 2022.
However, the prosecution also relies on other pieces of circumstantial evidence. This includes the alleged existence of a financial motive for the murder, evidence of the applicant using a tractor to grade the driveway where the murder is said to have occurred, inconsistent statements to police by the applicant and the applicant’s communications with the co‑accused following his conversations with police. Further, an imitation firearm was seized from the applicant’s address during the execution of a search warrant on 22 November 2022. The applicant stated that the imitation firearm had appeared inside his front gate the previous day, and that someone had put it there to set him up. It is the prosecution case that this is the same firearm that was used during the murder of Mr Jarvis on 13 June 2006.
The applicant has consistently denied any involvement in the death of Mr Jarvis.
The co‑accused, who was 43 years old at the time of the alleged offence, is currently remanded in custody, and has not made an application for bail.
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 (Vic) [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[1] Section 1B provides:
[1]Bail Act 1977 (Vic), s 1B(2).
(1)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; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
As the applicant is charged with a Schedule 1 offence within the meaning of the Act,[2] bail must be refused unless he can satisfy this court that exceptional circumstances exist that justify the grant of bail.[3] In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[4]
[2]Ibid sch 1, item 2.
[3]Ibid ss 4AA(1), 4A(1)–(2).
[4]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the court must then apply the unacceptable risk test.[5] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that this risk is an unacceptable one.[6] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances in section 3AAA(1) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[5]Ibid ss 4A(4), 4D(1)(a).
[6]Ibid s 4E(1)–(2).
[7]Ibid s 4E(3).
The applicant relies on a combination of circumstances to satisfy the exceptional circumstances test. It is well understood that he is entitled to do so. It is also well understood that whilst one factor alone might not satisfy the test, a combination of a number of factors may act together for the court to reach a state of satisfaction.
The applicant’s personal circumstances
The applicant is 71 years old. He has four older siblings. His father was in the military, and his mother worked as a legal secretary.
The applicant has three adult children with his wife, Ms Johnson, with whom he has a longstanding marriage. She remains supportive of him.
Between the ages of 18 and 33 years old, the applicant worked as a police officer, gaining the rank of Sergeant. Over this period, the applicant volunteered at the Country Fire Authority, which involved attending and coordinating teams during bushfire events, including the Ash Wednesday fires in 1983. He has also volunteered with a local land care group, planting thousands of trees with persons subject to community orders.
In 1985, the applicant was discharged from the police force on medical grounds, after being diagnosed with post‑traumatic stress disorder [‘PTSD’].
The following year, the applicant moved to Wangoom and in 1986 purchased the Wangoom property. The applicant and his wife operated a dairy farm at that location until 2001. The applicant built a house on the property, and he and his wife have remained living at this address until the applicant’s arrest in 2022. After the conclusion of their dairy farm business, the applicant pursued a business as a wood merchant collecting firewood from the Framlingham Forest for a few years. Altogether, the applicant has lived on his property for over three decades.
Criminal history
The applicant has a single prior conviction. In 1989, he was convicted of assault causing injury for which he was made subject to an adjourned undertaking.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Surrounding circumstances
Strength of the prosecution case
The applicant characterises the prosecution case against him as weak. In particular, he takes issue with the prosecution’s reliance on the disclosures, or admissions, made by the co‑accused to a covert operative, and anything he may have said in statements to police.
The applicant submits that these disclosures:
(a) are unreliable, highlighting that the co‑accused has provided multiple and varied accounts over the years, that his account of where Mr Jarvis’ body is allegedly located has yielded no results, and that the co‑accused has prior convictions for assault, deception and dishonesty offences;
(b) are inadmissible against him (the applicant) pursuant to section 83 of the Evidence Act 2008 (Vic) (which governs the exclusion of evidence of admissions as against third parties);[8]
(c) are inadmissible against him pursuant to section 87(1)(c) of the Evidence Act 2008 (Vic) (which governs admissions made with authority), on the basis that, prima facie, they were not made in furtherance of a particular common purpose; and
(d) ought to be excluded pursuant to section 137 of the Evidence Act 2008 (Vic) (which deals with the exclusion of prejudicial evidence in criminal proceedings),[9] on the basis that they are unreliable, inconsistent, and not otherwise supported or substantiated by any other evidence in the hand‑up brief.
[8]Section 83(1) adopts the common law position that an admission by an accused person cannot be used as evidence against a co‑accused. Section 83(2) provides an exception to this general rule by providing that an admission by an accused is admissible in relation to the co-accused where the co‑accused consents to the admissibility of this evidence. The applicant states that he will not consent to the admissions of the co‑accused being used pursuant to this section.
[9]Section 137 provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The applicant submits that, in the absence of this arguably inadmissible material, the remaining evidence is equivocal at best for the prosecution. On the other hand, he submits that there is evidence to support his innocence, namely that he had elected to resolve his rental dispute with Mr Jarvis through lawful means via an application to VCAT, and that he therefore stood to gain nothing from killing Mr Jarvis. In submissions, Senior Counsel for the applicant described the prosecution case as “very weak” when viewed in light of the “rigorous” standard of proof applied in criminal cases, namely that a jury would need to be satisfied beyond reasonable doubt of the applicant’s guilt before it could reach a verdict of guilty on the charge of murder.
Criminal history
The applicant highlights that his criminal history is very limited.
Family support and stable accommodation
The applicant proposes to return to his home address at the Wangoom property, if granted bail. Prior to his arrest and remand, he had been living at that address with his wife for 36 years. It is noted that there is no mortgage attached to the house, and that the applicant and his wife have full equity in the Wangoom property.
Special vulnerability
The applicant submits that he is vulnerable due to his advanced age, poor health, previous employment as a police officer, and the fact that this is his first time in custody.
As above, the applicant has provided a letter authored by Dr Phillip Hall dated 21 April 2023, which details that he suffers from a number of medical conditions, including: chronic back and neck pain (arising from a workplace injury in 2009), high cholesterol, high blood pressure, depression, type 2 diabetes, obstructive sleep apnoea, gastro‑oesophageal reflux disease and arthritis.[10] Many of these conditions require the applicant to take medication on a regular basis.
[10]Dr Hall also reports that the applicant underwent gastric bypass surgery in 2021, and is currently awaiting hiatus hernia repair. The applicant submits that he has previously undergone coronary bypass surgery. In the letter dated 21 April 2023, Dr Hall states that there is no reference to this in the applicant’s medical notes, however that because these records are incomplete, he can neither confirm this event nor exclude it from having occurred.
The applicant submits that he is not receiving proper medical treatment in custody, and that his medication is not provided to him on a regular basis. He states that he has made a phone complaint to the Government Health Services Commission in relation to this.
Delay
The applicant has been in custody since 22 November 2022. As at the date of the bail application, he will have been in custody for almost six months.
The matter was listed for committal mention at the Warrnambool Magistrates’ Court on 21 April 2023. That hearing was adjourned to 16 June 2023 to enable the prosecution to obtain the results of DNA forensic testing, which later excluded the applicant and the co‑accused as contributors to the relevant DNA profiles.
The applicant submits that a committal hearing may or may not be reached in 2023, and that a trial is unlikely to be reached before the end of 2024. The applicant contends that delay is therefore a strong factor in favour of bail when viewed in conjunction with what was submitted to be clear weaknesses in the prosecution case and his personal vulnerabilities.
Onerous conditions in custody
The applicant states that he has served 38 days in lockdown as at 1 May 2023. He submits that he has been placed in lockdown due to the following circumstances.
First, on 29 November 2022, whilst at the Melbourne Remand Centre, the applicant was approached and threatened at knifepoint by two inmates who attempted to steal his wedding ring. For his own safety, the applicant was subsequently transferred to another unit and placed in a 23‑hour lockdown.
Second, the applicant states that he then became aware that his previous employment as a police officer had been disclosed to other prisoners, and that this has left him in constant fear for his safety.
Third, on 26 December 2022, the applicant was transferred to Port Phillip Prison. Soon after, he was infected with COVID‑19 and placed in quarantine for 15 days.
Surety
The applicant’s wife, Ms Johnson, offers a surety via available equity in the Wangoom property. The property is 1.79 hectares, which the proposed surety and the applicant own as joint proprietors.
The Wangoom property is valued at $1,890,000, as shown by a recent rates notice in respect of the property. The applicant proposes that the maximum surety amount offered be the full value of the property. However, as the property is jointly held by the applicant and Ms Johnson, it is likely to be the case that no more than half of the available equity in the property should be accepted by the court as a surety amount, should the applicant be granted bail.
Unacceptable risk
Turning to the question of unacceptable risk, the applicant contends that he does not pose an unacceptable risk within the meaning of section 4E(1)(a) of the Act.
As to the respondent’s submission that there is an unacceptable risk that he will interfere with witnesses,[11] the applicant contends this submission is misconceived. While it is not denied that the applicant has spoken to the co‑accused and expressed a desire to contact Ben Knight, the applicant points out that the co‑accused was not a witness in his trial at the time. He submits he contacted the co‑accused because the co‑accused was a friend and, further, because the co‑accused’s name was included in a list of Mr Jarvis’ phone contacts that the applicant had been provided with. The applicant allegedly wanted an explanation for this. The applicant’s counsel submitted that this behaviour was entirely consistent with the behaviour of an innocent man.
[11]See paragraphs 65–66 below.
Further, in relation to Mr Knight, the applicant contends that he wanted to contact Mr Knight simply because he knew some police officers had spoken to Mr Knight soon after Mr Jarvis’ disappearance and wanted to identify who these officers were. In this sense, it is claimed that the applicant was (and is) only interested in talking to the police officers, not Mr Knight himself. The applicant also points out that Mr Knight was not a witness at the time he expressed a desire to contact him and that, regardless, Mr Knight’s evidence is uncontroversial.
Finally, in relation to the risk that the applicant would attend Framlingham Forest for the purpose of interfering with Mr Jarvis’ body, counsel for the applicant stated there was no admissible evidence tying the applicant or Mr Jarvis’ body to Framlingham Forest. Further, it is submitted that there is “no realistic prospect” that the applicant would visit Framlingham Forest, as it would be against his interests to do so.
However, in the event the court finds there is an unacceptable risk, the applicant submits that it can be moderated to an acceptable level by the imposition of conditions of bail. The applicant did not provide a suggested list of conditions to the court, but orally indicated that conditions could include a prohibition on contacting the co‑accused and witnesses for the prosecution.
In relation to the respondent’s submission that the applicant could be fitted with a GPS monitoring device,[12] counsel for the applicant strongly opposed the imposition of such a condition. It was contended that the device would cost the applicant around $25,000 per year and would provide minimal benefit, as there was no realistic prospect the applicant would go near Framlingham Forest. Nonetheless, counsel for the applicant conceded that if the installation of a GPS monitoring device would make the difference between the applicant getting bail or being remanded, the applicant would be willing to submit to such a condition.
[12]See paragraph 68 below.
The day prior to the delivery of this ruling, the court received an affidavit dated 1 June 2023 from Philipp Schluter, an employee of Allied Universal Electronic Monitoring Australia Pty Ltd [‘the Company’]. The court also heard oral evidence from Mr Schluter. The effect of Mr Schluter’s evidence was that:
(a) the Company’s electronic monitoring technology can be used to monitor individuals released on bail;
(b) the GPS monitoring device is installed on the monitored person at the prison or remand centre (at the time of the person’s release), or at the curfew location (after the person’s release), as per the stipulated bail conditions;
(c) the device transmits data about the person’s locations and movements to the Company, who in turn provides information to the designated police officer in charge of the matter;
(d) the GPS monitoring device can be programmed with “inclusion zones”, being areas the monitored person must remain in, and also “exclusion zones”;
(e) the cost of the system including installation, commissioning, and 24/7 monitoring for a 12‑month period is $25,000, exclusive of GST and is non‑refundable; and
(f) the Wangoom property proposed by the applicant as a condition of bail has been checked and the proposed address has full coverage and the Company’s system has full capability to monitor the applicant at this location.
The respondent’s contentions
The application for bail is opposed on the basis that:
(a) the applicant cannot demonstrate exceptional circumstances; and
(b) the applicant is an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice.
In response to the applicant’s contentions, the respondent relies on the following matters.
Nature and seriousness of the alleged offending
The respondent submits that the alleged offending is objectively serious, highlighting that it involves:
(a) the charge of murder, which carries a maximum penalty of life imprisonment;
(b) an offence committed in company;
(c) elaborate post‑offence conduct designed to conceal the crime; and
(d) an allegation of murder against a former senior member of Victoria Police.
Strength of the prosecution case
As to the admissibility of the co‑accused’s alleged admissions, counsel for the respondent acknowledged at the hearing of this application that it was likely the admissions were inadmissible against the applicant. The respondent therefore conceded that when assessing the strength of the prosecution case, the court should not have regard to any alleged admissions or statements of the co‑accused, made in the absence of the applicant, which may arguably have the tendency to implicate the applicant in the commission of the alleged offence.
Despite the above concession regarding any admissions or statements of the co‑accused, the respondent maintains that the prosecution has an arguable case. It submits that, beyond any disclosures made by the co‑accused, there is a substantial body of circumstantial evidence against the applicant, including:
(a) a clear financial motive, with the respondent noting that Mr Jarvis owed the applicant rental arrears; that Mr Jarvis disappeared just one day prior to the listing of the VCAT dispute concerning the rental arrears; and that several witnesses describe the applicant as being obsessive about money. Further, in response to the applicant’s submission that he stood to gain nothing from Mr Jarvis’ death, the respondent highlights that Mr Jarvis had made a cross‑claim in VCAT against the applicant, and that this cross‑claim was dismissed as a result of Mr Jarvis’ non‑appearance and alleged disappearance;
(b) the applicant using a tractor to grade the driveway at Mr Jarvis’ residence, at 9:00am on the morning of the alleged offending. The respondent submits that the applicant’s explanation for this — that he did it to wake Mr Jarvis so he could tell him that police found his car burnt out — is implausible, as police did not contact the registered owners until after 10:00am;
(c) the applicant’s immediate attendance at the co‑accused’s residence following his non‑arrest police interview on 8 November 2022. Covert recording devices captured the applicant telling the co‑accused that “shit’s hit the fan” and stating that he was worried. The respondent characterises these statements as “admissions to wrongdoing”; and
(d) the applicant having proffered several different scenarios to police as to what may have happened to Mr Jarvis, which the respondent submits were attempts to mislead investigators and distance himself from the alleged offending.
The respondent acknowledges that the applicant has made no admissions in relation to the offending alleged against him.
Criminal history
The respondent notes that the applicant has a prior criminal history.
Family support and stable accommodation
The respondent accepts the applicant has family support and stable accommodation available to him.
Complainants’ views on bail
The respondent has consulted the family of Mr Jarvis. The family have indicated that their lives have been destroyed by Mr Jarvis’ disappearance, and alleged death. It is stated that their suffering is exacerbated by the fact that his body has not been found.
Mr Jarvis’ family are strongly opposed to bail. They reside in Warrnambool (which is approximately 10 minutes’ drive from the applicant’s proposed residence), and are concerned and upset by the possibility that they may encounter the applicant in the community.
Delay and likely sentence
The respondent agrees with the likely timeline to trial anticipated by the applicant.
The respondent concedes that the applicant will experience a further period on remand while awaiting trial. Nevertheless, it is submitted that any potential delay is not disproportionate to the ultimate sentence the applicant is likely to receive, should he be found guilty of the charged offence of murder.
COVID‑19 and onerous conditions in custody
The respondent requested information from Corrections Victoria regarding any safety concerns relating to the applicant. A letter dated 12 May 2023 and authored by Ms Jenny Hosking, the Assistant Commissioner of the Sentence Management Division of the Department of Justice and Community Safety, was provided to the court.
In her letter, Ms Hosking confirmed that the applicant had been identified as a former police officer by fellow prisoners and that he had been separated from other prisoners for his safety. The respondent conceded that these concerns for the applicant’s safety were a “factor in the mix” for the court to consider when determining whether exceptional circumstances exist. However, counsel for the respondent submitted during the hearing that remanding a former police officer was not a unique circumstance and that prison authorities had plans in place to manage the applicant’s safety.
Unacceptable risk
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submits that the applicant presents an unacceptable risk of interfering with witnesses, as well as prosecution evidence.
First, it submits there is an unacceptable risk that the applicant will contact the co‑accused and persuade him to resile from statements he has previously made to witnesses that inculpate the applicant in the murder of Mr Jarvis. The respondent submits that, prior to the commencement of the committal mention at Warrnambool Magistrates’ Court on 21 April 2023, the applicant stated to the co‑accused over Webex that, “you gotta tell them you’re dreaming”, before his sound was muted. However, when the court enquired about the evidence of this exchange, the informant confirmed that there was no recording of it and that she had not made a formal statement about the conversation.
Second, the respondent alleges there is an unacceptable risk the applicant will contact witnesses for the prosecution. The respondent contends that during a phone call to his wife from prison on 6 December 2022, the applicant stated “I need to get hold of Ben Knight. I got a call from a policeman at Thunder Point about the car. The police spoke to Ben first.” Mr Knight is a witness for the prosecution, whose evidence is relevant to the timing of when the applicant was notified of the car fire, and his explanation for grading the driveway.
Third, the respondent submits there is an unacceptable risk that the applicant will tamper with evidence, and in particular the remains of Mr Jarvis which are yet to be recovered by police. The respondent states that the applicant has extensive knowledge of the area due to his previous wood merchant business, and that he possesses the requisite tools, machinery and know‑how to complete this task.
Bail conditions
Nevertheless, should the court be minded to grant the applicant bail, the respondent seeks bail conditions requiring the applicant to:
(a) attend at Warrnambool Magistrates’ Court for committal hearing on 16 June 2023;
(b) reside at the Wangoom property;
(c) report to the officer in charge at Warrnambool Police Station every Monday, Wednesday and Friday between 9:00am and 9:00pm;
(d) not be within two kilometres of Framlingham Forest, Victoria;
(e) be fitted with a GPS monitoring device at least until the end of 2023, which is when the prosecution expects to have completed its search of Framlingham Forest;
(f) give surety of the title to the Wangoom property;
(g) not contact any witnesses for the prosecution, save for the informant;
(h) not leave the state of Victoria;
(i) not attend any international points of departure; and
(j) surrender all passports.
Analysis and conclusions
Introduction
As noted above,[13] because the applicant has been charged with the Schedule 1 offence of murder, he bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail.
[13]See paragraphs 15–18 above.
If he succeeds in doing so, the onus then falls on the prosecution to satisfy the court that:
(a) there is a risk that the applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk, that cannot be mitigated by the imposition of any bail conditions.
In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the applicant’s surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
The applicant puts forward multiple factors that were argued in combination to constitute exceptional circumstances.
Both parties advanced detailed submissions regarding the strength of the prosecution case. It should reasonably be accepted that, absent the co‑accused’s admissions and statements potentially implicating the applicant, the prosecution case becomes more difficult to make out. However, there is a body of circumstantial evidence that is argued by the prosecution of being capable of implicating the applicant in having committed a serious offence against Mr Jarvis, namely his alleged murder, and disappearance.
Ultimately, the strengths and weaknesses of the circumstantial prosecution case will be more fully examined at a committal and then potentially, final conclusions made at trial. It is not the role of this court to make a detailed evaluation of the weight of the evidence either way, as well as competing arguments, at this stage. The outcome of the case might well depend on a series of inferences to be drawn about various facts and circumstances. The more pertinent enquiry at this stage is whether, taken at its highest at this point, the prosecution case might be regarded as strong or weak. In my opinion, assessing the evidence as best I can, and keeping firmly in mind the matter is put forward as a circumstantial case involving an allegation of murder where a body has not yet been located, it cannot be said that the prosecution case appears to be so inherently weak to the point where it is foredoomed to fail.
In concluding the above, I note the submission made for the applicant that, when properly assessed, the prosecution case is weak. I also note the competing submission, by way of an appropriate and fair concession by counsel for the prosecution at this stage, that the case is “not a strong case”, albeit that it is argued “there are pieces of circumstantial evidence upon which a jury can convict”. Of these pieces of evidence, not including the evidence potentially inadmissible before a committal court or jury, the case is argued to be equivocal at best by the applicant. In making the overall assessment about these matters, I have also considered the possible impact of section 8(1)(e) of the Act which provides that the bail decision maker may receive and take into account any evidence which the bail decision maker considers credible or trustworthy in the circumstances. Even if the correct interpretation of this provision allowed for this court to have regard to the statements and admissions of the co‑accused as against the applicant’s interests, I have taken the view in this case, that in all the circumstances, including the not insignificant criminal history of the co‑accused, that it is appropriate to treat this person’s statements with caution, and to decline to have regard to them for current purposes. This approach is consistent with the submissions advanced by both parties.
Of course the respondent’s submission that the offence alleged is objectively extremely serious is correctly made. It is alleged that the applicant committed murder in company, followed by elaborate, deceptive and evasive conduct after the offence to conceal the crime and avoid detection. Such circumstances normally weigh in favour of keeping an applicant on remand, making it more difficult to demonstrate the existence of exceptional circumstances.
As to the applicant’s personal circumstances, I accept that he has a limited criminal history comprising of one matter. In my opinion this is of minimal relevance, being an assault that occurred 34 years ago and for which the applicant received a good behaviour bond. Significantly, the applicant has no adverse bail history, or history of non‑compliance with court orders, being matters which commonly weigh against a grant of bail.
Turning to the applicant’s contention that he suffers from a special vulnerability, the Act requires the court to consider:[14]
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 …
[14]The Act, s 3AAA(1)(h).
In my opinion, it is apparent from this drafting that “special vulnerability” is to be interpreted broadly, taking into account such things as the applicant’s age, heritage, physical health, mental health and other factors that the court, in its discretion, thinks are relevant.
On the material before me, a number of the factors enumerated in the Act are enlivened. The applicant is 71 years old and suffers from various chronic physical health conditions. The fact that the applicant alleges he has not received proper medical treatment, including a failure by prison staff to regularly deliver his medication to him, is of some concern (although it is difficult to make further conclusions about this allegation at this point). Further, it is apparent that the applicant is suffering from PTSD, anxiety and depression that, when combined with his physical ailments, render him significantly vulnerable.
I also consider that, in addition to his somewhat advanced age and ill‑health, including compromise to his physical capacity, the applicant’s previous employment as a police officer renders him vulnerable to intimidation or harassment from other inmates within the prison system. The physical risk to him is apparent from the fact that the applicant has already been attacked. Further, there is evidence before the court that his former employment has been disclosed to other prisoners, resulting in the applicant experiencing legitimate fear for his safety. Previous decisions of this court have recognised that, in circumstances where an applicant has been the target of an attack in prison, a “special vulnerability” may exist.[15] Thus, taking into account all of these personal circumstances, I consider that the applicant has a significant special vulnerability that weighs in favour of finding that exceptional circumstances exist.
[15]See, for example, Re LD [2019] VSC 457, [33]–[35] (Priest JA).
Having discussed the matters above, I then turn to the issue of delay. Should the applicant not receive a grant of bail, the factors discussed immediately above assume particular significance if they are to be endured over a significant period of time. It is common ground between the parties that it is unlikely the matter will proceed to trial before the end of 2024, which is likely to be some 18 to 20 months from now. The respondent estimates that the matter may take up to 24 months to resolve. I accept that this is a lengthy time for the applicant to be on remand, especially given his vulnerability. However, this factor should be moderated somewhat by the fact that the length of time the applicant would spend on remand would be exponentially outweighed by any custodial term if the applicant is convicted. At the same time there are clearly some significant factors, as above, which must be considered in combination, and which together weigh in favour of a grant of bail in this case.
Further, it is evident that some onerous conditions have been experienced by the applicant in custody during the last five and a half months. The applicant has submitted that, after being attacked by fellow inmates, he was transferred to another unit for his own safety and placed in a 23‑hour lockdown. He was placed in quarantine for another 15 days after he subsequently contracted COVID-19. Yet, for reasons not entirely clear to this court, he has spent 38 days in lockdown to date, which is roughly one fifth of his total time on remand custody so far. I consider that these conditions, when combined with the prospect of delay and the applicant’s vulnerabilities, also support a finding that exceptional circumstances exist.
I must note, and accept, the respondent’s submissions that family members of Mr Jarvis strongly oppose bail. The chance of encountering the applicant in the community of Warrnambool is clearly a distressing prospect for them. However, I am of the opinion that this factor should be the subject of some moderated consideration. The applicant has lived at the Wangoom property for 16 years after the date of the alleged offence, and there has been no suggestion from the respondent that Mr Jarvis’ family members had contact with the applicant during that period. It is also conceded by the respondent that the proposed address is a stable one, given it is the applicant’s home of more than three decades. I therefore consider the proposed bail address to be sufficient and further note that the applicant has family support at that address in the form of his wife, Ms Johnson.
As to the question of a surety, I note that the applicant has offered a substantial surety equivalent to half of the equity in a property that is presently worth $1,890,000.
In the event, and taking into account all of these matters I have discussed, and weighing them together, I am therefore satisfied that the applicant has shown that exceptional circumstances exist to justify the grant of bail.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Having concluded that the exceptional circumstances test has been satisfied, that is nevertheless not the end of the matter. There must be consideration as to whether the respondent has satisfied the court that the applicant represents an unacceptable risk as defined by the Act. In considering this issue the court must also take into account surrounding circumstances, which I have done.
The respondent alleges that, if the applicant was to be bailed, there is an unacceptable risk that he will either interfere with prosecution witnesses (for example, by contacting the co‑accused or Mr Knight), or tamper with evidence (namely, the remains of Mr Jarvis). In support of this contention, the respondent has provided evidence of statements made by the applicant that demonstrate such an intention.
The applicant rejects this. He points out that that the co‑accused is not a witness giving evidence against him, and further, that Mr Knight is giving uncontroversial evidence and was not a prosecution witness at the time the applicant expressed a desire to contact him. Consequently, he contends there is no unacceptable risk that he will interfere with prosecution witnesses.
On the other hand, the respondent submits that in respect of the co‑accused, it is of limited relevance that he is not presently a witness in the case. It is submitted that statements made by the co‑accused are nevertheless of importance to the investigation into the disappearance of Mr Jarvis. In that context, it is pointed out that the applicant appears to have made attempts to convince the co‑accused to resile from past statements.
It must be remembered that the “unacceptable risk” test is cast in broader terms than just interfering with witnesses — an unacceptable risk may also be shown if there is evidence the accused will “otherwise obstruct the course of justice in any matter”. Attempting to convince the co‑accused to resile from his previous statements would no doubt obstruct the course of justice. Moreover, the applicant’s conduct in respect of the co‑accused reflects a general willingness to influence persons involved in the case.
Further, in respect of Mr Knight, I am unable to accept that his evidence will be entirely uncontroversial. The prosecution have stated that Mr Knight’s evidence is “relevant to the timing of when the applicant was notified of the car fire”. This timing is important as it is may show the applicant gave a false statement to police. Furthermore, while I accept that there is no evidence the applicant has actually contacted Mr Knight, he has stated an intention to do so. Finally, the fact that Mr Knight was not a prosecution witness at the time is immaterial. The applicant is a former police officer, and no doubt aware of the usual process of investigating a criminal offence. It is likely he would have known Mr Knight would be called as a witness, and that speaking to him would risk obstructing the course of justice.
The applicant has to some extent addressed the asserted risk that he will tamper with evidence, namely the body of Mr Jarvis, should he be granted bail. It is the prosecution case that, having killed Mr Jarvis, the applicant disposed of his body, and knows the location of the body, the discovery of which would be instrumental to the prosecution case, not the least of which would be establishing affirmatively that Mr Jarvis is in fact, deceased, being a necessary element to prove for a charge of murder to succeed. Furthermore, there is always the possibility that the finding of Mr Jarvis’ remains might also provide forensic evidence of the applicant’s involvement in his death.
In response, the applicant submitted that he would not visit Framlingham Forest because to do so would “not be an intelligent thing to do”, as it would supply the prosecution with evidence. Such a submission does not take into account the fact that the prosecution cannot, without the assistance of a GPS monitoring device, monitor the location of the applicant at all times. This concern is heightened by the fact that the applicant lives only a short distance from Framlingham Forest and the allegation that he possesses the machinery and knowledge required to move a body.
On all the evidence available, I am satisfied that the prosecution have demonstrated there is a risk that the applicant will interfere with a witness, or otherwise obstruct the course of justice. In all the circumstances of his age, background, and connections to family and place, I do not consider there is an appreciable risk that the applicant will take flight from the jurisdiction and fail to appear for the future proceedings in these matters.
However, that is still not the end of the matter. It now falls to the court to consider whether it can impose bail conditions that would moderate such risks to a point where it is not unacceptable. In this respect, the respondent submitted that no bail conditions could sufficiently mitigate the risk. Nevertheless, in the alternative, it provided a list of proposed conditions. In contrast, the applicant submitted that the imposition of bail conditions could ameliorate any unacceptable risk, but did not provide a list of appropriate conditions.
I consider the conditions put forward, in their totality, to be capable of ameliorating risk to an acceptable level. In particular, evidence has been placed before the court as to the possible use of a GPS monitoring device in order to monitor the applicant’s physical movements. In the circumstances of the evidence that the body of the deceased is located within the Framlingham Forest area, and an asserted risk that the applicant knows where the body may be located and may be tempted to take steps to interfere with it, I consider that in this case it is appropriate to be certain where the applicant is and where he might travel to during the period of bail or until the police have finalised their investigations on this issue.
In respect of this issue, I note that there is evidence before the court that the applicant has contacted some persons concerned in the case, the applicant’s explanations for which I do not find particularly convincing. Further, he is alleged to have tampered with the alleged crime scene by engaging in the grading of the driveway.
In these circumstances, I am satisfied that it is necessary to make it a condition of bail that a suitable GPS monitoring device be fitted to the applicant’s body. In coming to this conclusion, I have weighed carefully the fact that the use of such a device significantly intrudes on the applicant's liberty, and I have also taken into account the possible financial cost to the applicant.
At the same time I am acutely aware that, given the applicant’s age, any eventual sentence would be of immense significance to the remaining years of his life, such that he could possibly serve the rest of his life in prison.
Having considered the arguments on both sides, and the draft conditions provided by the respondent, I am of the view that the risk that otherwise might be unacceptable can be moderated to an acceptable level by the imposition of strict bail conditions. The applicant has also provided a substantial surety in the form of the property on which he lives, which he stands to forfeit should he breach these conditions.
Conclusion
Accordingly, bail will be granted to the applicant in the following terms, (including the ordering of a substantial surety in the sum of $500,000) on the conditions that he:
(a) attend at Warrnambool Magistrates’ Court for committal hearing on 16 June 2023 and any further dates ordered by the court;
(b) reside at the Wangoom property, and not reside elsewhere unless permission is granted by this court, or a committal court;
(c) remain at the above address from 9:00pm to 6:00am, except in cases of medical emergency;
(d) report to the officer in charge at Warrnambool Police Station every Monday, Wednesday and Friday between 9:00am and 9:00pm;
(e) not attend, and not cause any other person to attend, within the exclusion zone for Framlingham Forest (to be defined in the orders);
(f) be fitted with a GPS monitoring device immediately upon release from custody, which shall remain on the applicant until 31 December 2023 (inclusive). The applicant must not remove or interfere with the GPS monitoring device in any way;
(g) not contact directly or indirectly any witnesses for the prosecution except for the informant and the applicant’s wife, Ms Johnson;
(h) not contact directly or indirectly, by any means whatsoever, the co‑accused, or cause any other person to contact directly or indirectly the co‑accused;
(i) not leave the state of Victoria;
(j) not attend any international points of departure; and
(k) surrender all passports within 24 hours of release and not apply for another.
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