Re Kane
[2010] VSC 8
•22 January 2010
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
No. 1479 of 2009
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| And | |
| IN THE MATTER of an Application for bail by SUZANNE PATRICIA KANE | |
---
JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 December 2009, 18 January 2010 | |
DATE OF RULING: | 22 January 2010 | |
CASE MAY BE CITED AS: | Re Suzanne Patricia Kane | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 8 | |
---
CRIMINAL LAW – Application for bail – Murder – Exceptional Circumstances – Strength of Crown case – Delay – Personal circumstances of applicant – Unacceptable risk not demonstrated – Bail granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr AP Lewis | Grigor Lawyers |
| For the Crown | Mr G Horgan SC with Mr S Cooper | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Suzanne Patricia Kane (“the applicant”) who, with three others, is charged with murder in relation to the death of Desmond Moran. Mr Moran was shot dead in Union Road, Ascot Vale on 15 June 2009. The applicant is also charged with being an accessory after the fact to murder. That was the initial charge against her when she was arrested on 16 June 2009. On 17 June 2009, she made an application for bail at the Melbourne Magistrates’ Court. The Magistrate refused bail on the grounds that there was an unacceptable risk that the applicant would commit a further offence if released on bail and/or that the applicant would endanger the safety or welfare of members of the public if released on bail. On 20 July 2009, the applicant was charged with murder.
Three co-accused have been charged with offences in relation to the murder. They are Judith Moran, Michael Farrugia and the applicant’s de facto husband, Geoffrey Armour.
The result of the charge of murder against the applicant is that she must demonstrate that exceptional circumstances exist in order for me to grant bail, pursuant to s 4(2)(a) of the Bail Act 1977. A bail application was listed before Kaye J in this Court on 4 August 2009. However, at that hearing, Mr Bourke on behalf of the applicant applied to adjourn the application, which was done. The applicant has remained in custody since her arrest in June 2009.
A committal mention was held in the Melbourne Magistrates’ Court on 11 December 2009 and a contested committal for all of those accused is listed to commence on 22 March 2010.
The respondent/informant opposes a grant of bail to the applicant on the basis that the applicant has not demonstrated exceptional circumstances and that, even if she has, there is an unacceptable risk that she would:
(a) commit an offence whilst on bail;
(b) endanger the safety or welfare of members of the public; and
(c) interfere with witnesses or otherwise obstruct the course of justice in relation to herself or any other person.
Mr Jacob Slucki of Grigor Lawyers has affirmed an affidavit dated 26 November 2009 in support of a grant of bail. In his affidavit, Mr Slucki concedes that the applicant has a criminal history. However, it should be noted that her most recent appearance in court was in 1996 and that her prior convictions are for dishonesty offences and possession of drugs. Relevantly, the applicant has no prior convictions for violent offences.
According to Mr Slucki’s affidavit, the applicant was arrested on 16 June 2009 and was remanded in custody. She was charged pursuant to s 325 of the Crimes Act 1958 with being an accessory to the offence of murder alleged to have been committed by Geoffrey Armour and he notes that she has already been in custody for six months and that the additional charge of murder was brought against her on 20 July 2009.
Summary of the case
Judith Moran, one of the applicant’s co-accused, is alleged to have had had a bitter and long-standing dispute with the deceased over money. Mrs Moran apparently believed that she was entitled to more money than she actually received upon the death of her husband and the victim’s brother, Lewis Moran. She apparently thought that she stood to benefit financially from Desmond Moran’s death. Thus it is alleged she hired the applicant and her de facto partner to murder him.
On or about 13 May 2009, Mrs Moran refinanced her home and raised some $400,000. Those funds were then deposited with her accountants who registered a new company on her behalf. Mrs Moran then apparently purchased new vehicles including two Chrysler convertibles and a Land Rover vehicle in the company name. The prosecution allege that one of these vehicles was for the applicant. One of her co-accused, Geoffrey Armour, drove the Land Rover which was used solely by him from then on. The Crown will apparently allege that the applicant and her co-accused had planned the murder and that specifically, the applicant perused the murder scene with two of her co-accused on the date of the offence. She was then alleged to have been dropped off at Mrs Moran’s home. After Desmond Moran was killed, it seems that she is said to have assisted in the concealment of stolen numberplates which are alleged to have been put on the getaway car, clothing alleged to have been worn by the gunman, and loaded guns, one of which has apparently been identified as the murder weapon.
The more specific allegations commence with the assertion that earlier, on 11 June 2009, the applicant was assisting her accomplices to locate Desmond Moran for the purpose of him being shot by Armour. Telephone intercepts for that day demonstrate that there were efforts being made by Judith Moran to locate Armour, and it is alleged that the applicant was present and could be heard in the background discussing Armour’s whereabouts. The identification of her voice is to be made by police who have apparently become familiar with it. At one stage it is alleged that Suzanne Kane said “Well, he must be on the phone” and Judith Moran then said by way of message, “the murder on”. The Crown rely on that as an expression of the arrangement for Desmond Moran to be killed. It is not difficult to imagine what could be said in response to the allegation, bearing in mind that the prosecution rely on other conversations which they suggest are coded. Nonetheless, as Mr Horgan of senior counsel submitted, the words are the words.
Desmond Moran was shot dead at Ascot Vale at about midday on 15 June 2009. The Crown case is that Geoffrey Armour actually fired the shots that caused the death of Mr Moran and that the accused Michael Farrugia was also present at the scene and armed but not firing shots. As I have said, Mrs Moran is alleged to have planned the murder and is said to have driven Armour and Farrugia to the scene. Armour and Farrugia are alleged to have been recorded by closed circuit television around the scene and running from the scene into a Ford Fairlane alleged to have been driven by Judith Moran. It is alleged that this applicant was also involved and assisted the others by conducting surveillance on Mr Moran, as well as assisting in the planning of the murder and the disposal of evidence afterwards.
On the evening of 15 June 2009, the Ford Fairlane which is alleged to have taken Armour and Farrugia to the scene of the killing of the deceased was seen to be driven by Mrs Moran to Brunswick where it is claimed it was “dumped”. She was then intercepted by police on the way back to her home and gloves she was wearing while driving the car were found in some bushes off Brunswick Road.
Exceptional Circumstances
I turn to the question of whether the applicant had established that there are exceptional circumstances pursuant to s 4(2)(a) of the Bail Act 1977. A combination of factors can amount to exceptional circumstances.
In R v Moloney,[1] Vincent J said:
A number of decisions which have been handed down by judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. 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.
[1]Re Moloney, John Denis (Bail Application) [1990] VSC (Unreported, Vincent J, 31 October 1990) 1-2 (hereinafter “Moloney”).
In DPP v Sabino Cozzi,[2] Coldrey J expressed agreement with the approach of Vincent J in Moloney and reviewed several of the cases which subsequently discussed the meaning of “exceptional circumstances”. He noted:
An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.
[2][2005] VSC 195
His Honour went on to refer to a variety of circumstances which had been found in various cases to constitute exceptional circumstances and summarising those to which his Honour referred they included:
· the strength of the Crown case;
· the question of delay;
· strong family support;
· stable accommodation;
· availability of employment;
· low risk of flight or re-offending;
· lack of prior criminal history; and
· the personal situation of the applicant.
As King J noted in R v Griffey:[3]
... it has long been held that it is the combination of circumstances that are of importance and that the combination must be assessed in each individual case.
[3][2006] VSC 86
Mr Slucki submits in his affidavit that exceptional circumstances arise in relation to the applicant by the combination of the following factors:
(a) the strength of the Crown case;
(b) the likely occurrence of delay in the matter proceeding to trial;
(c) there is stable accommodation available in the jurisdiction;
(d) the applicant wishes to be able to care for her two sons [aged 17 and 9 years of age];
(e) there is a substantial surety available ($60,000.00) [which has been reconfirmed by Mr Lewis of counsel on behalf of the applicant this morning];
(f) immediate employment is available;
(g) the applicant is amenable to reporting conditions and is willing to adhere to a curfew if required.
The Crown, on the other hand, assert that exceptional circumstances have not been established. The nature of any delay is submitted to be uncertain and therefore could not be said to be “inordinate”. It is submitted that there is a there is “…a pretty respectable prosecution case at this stage” and it would be premature to say the case was weak.
In my view, among the matters raised there are three pertinent factors - the question of the strength of the case, the potential delay and the particular family circumstances of the applicant.
The Strength of the Case
The affidavit of Mr Slucki on this issue first identifies that there is evidentiary material which has not yet been provided – particularly call charge records (which I assume identify the accused in contact with each other in the lead up to the death of the deceased) and DNA analysis results (which in fact have now been provided). It is common ground that the applicant was not at the scene of the killing and is not said to have assisted in the escape of the offenders who are said to have been present. Mr Slucki relies on the absence of any allegation that the applicant was conducting surveillance on the deceased at the time of the shooting of the deceased. He refers to an allegation that the applicant was trying to locate the deceased three days before the shooting, on 11 June 2009, and asserts that that allegation depends on call charge records which have not been produced. He also claims ambiguity in the telephone intercept material that affects the applicant and notes that there is no evidence at this stage of voice identification.
An affidavit in opposition to a grant of bail was sworn by Anthony Gerard Rooney. Information exhibited to that affidavit reveals that the applicant has been in a de facto relationship with Geoffrey Armour for some years. At the time of the killing of the deceased, she is alleged to have had financial difficulties. Mr Armour returned to Victoria from Western Australia in May 2009. He appears to have arrived before the applicant and was involved with Judith Moran in the purchase of three new vehicles in May 2009. One of those vehicles was registered in the name of the applicant. The applicant arrived in Melbourne on 18 May 2009. On 27 May 2009, the applicant is alleged to have, with Mrs Moran, purchased a mobile phone using a fictitious name and address. It would appear that that phone was used on two occasions to ring the accused man Farrugia on the day before the death of Desmond Moran.
On 11 June 2009, Mrs Moran and the applicant are said to have been in the vicinity of the Flemington Racecourse Tabaret where the deceased habitually had a meal. They were apparently trying to contact Armour. It is during one of these calls that Moran is claimed to have said “murder on” to the applicant during a background conversation. The allegation is that Moran and Kane were locating the deceased so he could be shot by Armour on that day. A conversation between Armour and the applicant on 12 June 2009 is alleged to represent the applicant being told by Armour that it was too dark for him to carry out the shooting.
After the deceased arrived at the café where he was shot at about 11:30 am on 15 June 2009, Armour, Moran and Farrugia, as I have earlier said, were allegedly seen driving past as recorded on CCTV. They returned to Moran’s property at Ormond Road, Ascot Vale. The applicant was at the premises. Moran is alleged to have driven Armour and Farrugia back to the scene in the Ford Fairlane that was bearing stolen registration plates.
When police executed a warrant on the premises at Ormond Road on 15 June 2009, they found a wall safe hidden behind a bookshelf in a bedroom. The safe contained registration plates, firearms, clothing, balaclava and other items. It is alleged that the applicant remained at the Ormond Road address when the shooting occurred and afterwards removed the stolen number plates from the Ford Fairlane; putting the clothing worn by Armour and Farrugia and their firearms into a hidden safe at the premises and placed the stolen registration plates into the safe. As I understand it, there is no direct evidence which would presently support that allegation since it depended on a matching DNA result.
There were said to be discussions between Kane and Armour about what occurred which the Crown will rely on to demonstrate Kane’s knowledge and participation in the events following the killing of the deceased.
Thus, according to the summary prepared by the police, the case against the applicant depends on establishing that she assisted Armour, Farrugia and Moran by conducting surveillance on the deceased, assisting in the planning of the murder and the disposal of evidence after the murder. She not having been present when the offence was committed, the case against her proceeds on the basis that she was part of a joint criminal enterprise being to kill Desmond Moran and that she maintained the necessary state of mind required for the commission of the offence of murder when she entered into the arrangement and never withdrew from the arrangement.
Much of the case against the applicant is to be inferred from the circumstances. Senior counsel for the respondent pointed to the following as summary of the circumstantial case against the applicant which included:
· Judith Moran’s motive for the killing of the deceased;
· The relationship between the applicant and Mrs Moran;
· An earlier attempt on Mr Moran’s life;
· The relationship between the applicant and Armour who is alleged to be the person who shot the deceased and the person who had previously attempted to murder the deceased in March 2009;
· The financial benefits that accrued in the form of motor vehicles;
· The alleged participation of the applicant in the events of 11 June 2009 in trying to locate the deceased and Armour;
· The presence of the applicant at Mrs Moran’s house and the inferences to be drawn from her conduct.
On 18 December 2009, during the course of argument it became apparent that the results of the DNA analysis of various items relevant to these matters would be finalised by the middle of January 2010. I therefore raised the question of whether the matter should be delayed until then so that, to the extent the DNA evidence bore on the strength of the Director’s case against the applicant, I would know what that evidence was. An adjournment was sought by the applicant for that purpose which I granted.
I have now been provided with the details of the evidence. Amongst the large number of items that were tested, extremely strong support was found to link various items to the accused Judith Moran, Geoffrey Armour and Michael Farrugia. No such evidence was identified in relation to the applicant Suzanne Kane.
I am informed by senior counsel for the respondent that the DNA testing of these items will continue but I must deal with this application on the evidence as it stands. To the extent that steps were taken by the applicant to further the alleged joint criminal enterprise by concealing items used by her co-offenders, the evidence is, at this stage, not strong. I respectfully agree with counsel for the respondent that circumstantial cases can be very strong but the reality is that this applicant was not at the scene of the shooting and, as the evidence presently stands, there is no scientific connection between her and any of the items said to have been involved in the commission of the offence. The primary evidence which may implicate her in this crime concerns her presence with Mrs Moran at various relevant times when the prosecution would argue she was assisting Mrs Moran. In turn these allegations will be based on what can be made of various telephone intercepts.
Without going into further detail, I do not consider the case against the applicant on the charge of murder is strong by any means. It may be that different considerations may apply in relation to the original offence of being an accessory after the fact. I accept that the situation will be clearer after the committal proceedings but I must deal with this application now. The absence of direct evidence against the applicant is appropriate to take into account in deciding whether exceptional circumstances have been established.
Delay
The applicant was arrested on 16 June 2009 and, as I have already noted, the committal mention for this matter was held on Friday 11 December 2009. The committal proceedings will be held on 22 March 2010 and is estimated to last three to four weeks. The brief of evidence contains some 170 witnesses and about 700 pages of exhibits including a substantial volume of call charge records. There are about 30 DVDs containing closed circuit television footage with forensic imagery analysis. On behalf of the applicant it was submitted that it is unlikely that there could be a trial of this matter in this Court before the end of 2010. If that were correct, then the earliest commencing date would be February 2011, which would represent 20 months of pre-trial detention with the risk of a longer period approaching two years.
Mr Horgan of senior counsel submitted, however, that a delay of those proportions is by no means certain and that since this is a circumstantial case it should not be assumed that there will be a lengthy cross-examination of witnesses which will lead to a lengthy trial.
This case does seem to me to be relatively complicated for several reasons. First, there are four persons charged with murder. Second, the depositions reveal a combination of proposed evidence including:
· The direct observations by witnesses of the killing of the deceased;
· Evidence of the closed circuit television footage and interpretation of images;
· Telephone intercept material and the analysis of call charge records;
· Evidence of motive on the part of the accused Judith Moran;
· Evidence of the circumstances of a previous attempt to kill the deceased by the accused Armour;
· Evidence of surveillance of the deceased by the accused four days prior to him being murdered;
· Evidence of the various relationships between the participants;
· Evidence of financial reward to Armour and the applicant for their alleged participation;
· Evidence of post-offence conduct including the alleged hiding of items said to have been used in the offence.
No-one has been prepared to offer any more than very broad estimates, and I must also make some estimate which I consider realistically represents the likely pre-trial detention. If the committal proceeding lasts some number of weeks concluding in April 2010, then in order for the trial to be listed for hearing in this Court this year, that trial listing, as opposed to hearings for directions, would need to occur by August or September of 2010. In my opinion, that is extremely unlikely to occur and a more realistic assessment, although still optimistic, is that the matter has a prospect of being listed during the first half of 2011. Such an outcome would result in pre-trial delay of 20 months or more. In my view this is a significant delay when the accused is in custody. On behalf of the respondent, it was submitted that delay was not a factor to which I could have regard. I respectfully disagree.
Personal Circumstances
It is clear that personal and family hardship are not enough in themselves to constitute exceptional circumstances which would warrant a grant of bail. As Gillard J observed in R v Memery:[4]
“Exceptional circumstances” means something more than what normally follows as a result of a person being charged with murder. Hence the fact that an accused person wishes to pursue his career, his job, and look after his family, are all matters that flow from an arrest and are not exceptional. The same may be said of the fact that he can live in a particular house if granted bail and pursue his job. Again these are not exceptional circumstances. Mr Toohey submitted they should be taken into account on the first part of the exercise. In my opinion they are clearly relevant to the unacceptable risk factors but have little to no weight when it comes to a question of what is exceptional circumstances.
[4][2000] VSC 495
However, I consider that one aspect of the applicant’s circumstances may be relevant when considered in combination with the other factors to which I have referred. The applicant is 45 years of age and has spent most of her life in Melbourne though in recent times, has been in Western Australia. She has two sons aged 9 and 17 years. The older boy has been completing Year 12 at school in Western Australia and living with two school friends and their mother. Apparently it is hoped that he will return to Victoria to live if the applicant is granted bail. The younger son is presently being cared for by a family friend in Melbourne. He has no contact with his natural father. Evidence was given regarding the nine year old boy by the witness known as “LS” whose personal identity was not disclosed in the interests of the child concerned. LS is a childcare worker and trained Mothercraft nurse with appropriate qualifications. She has worked in that field for 22 years. She has come to know the applicant’s younger son through that work over a number of years and his friendship with her daughter. LS agreed that she also had a friendship with the applicant. She described the nine year old boy as having a close and normal relationship with his mother prior to her arrest. However, since the applicant’s arrest in June 2009, LS has observed a significant deterioration in the child’s emotional state and mood. He has changed from being positive and active to withdrawn and disinterested and suffering as result of having no continuing contact with his mother, older brother in Western Australia or stepfather who is the accused man Geoffrey Armour. Apparently the boy has recently been given to outbursts of anger.
The witness’s evidence was not the subject of significant challenge and I accept it. Given that the child is now without his mother, brother, father and stepfather it is not surprising that there are significant difficulties. Accepting the Senior Crown Prosecutor’s submission that such matters should be taken into account only in exceptional circumstances, I think this is an exceptional case. Thus, in my view, these matters are relevant to whether the applicant has established exceptional circumstances.
In my view, the applicant has established exceptional circumstances. That conclusion is based on the combined effect of the anticipated delay in the matter coming on for trial, the state of the prosecution case as I understand it and the circumstances of the applicant’s younger child. I express no view on whether any of those matters on their own would amount to exceptional circumstances but in combination they do.
Unacceptable Risk
I turn then to the question of whether or not the respondent has established that the applicant is an unacceptable risk. To support such a conclusion the respondent has relied on the risk of the applicant failing to surrender herself into custody, committing offences while on bail, interfering with witnesses and endangering the safety or welfare of members of the public. The first of those relies on the motivation that anyone charged with murder may have to flee the jurisdiction and, more particularly, applicant’s connection with Western Australia. Despite what is contained in the informant’s affidavit, I pay no attention to what other so-called “organised crime figures” may or may not have done in relation to bail conditions of their own.
As to committing offences whilst on bail, the respondent’s opposition seems to me to be totally dependent upon it being concluded that the applicant is guilty of the offence with which she is charged and can be demonstrated to have concealed or destroyed evidence. As to endangering members of the public, that also depends on a conclusion of guilt of the offence with which she is charged. The applicant has no separate history of breaching bail. She has prior convictions for theft and drug offences, all of which were dealt with in the Magistrates Court. Her most recent previous conviction was in 1996.
The uncontested evidence before me is that the applicant has the prospect of employment and a place to live if released on bail. The person offering her accommodation gave evidence, was not challenged and was a credible witness. Concerns that were justifiably raised by the respondent about that residential address and those residing there have been alleviated.
In my opinion, the respondent has not established that if the applicant was released on bail she would be an unacceptable risk. Most grants of bail involve some risk, but I consider the imposition of conditions can make the risk acceptable.
I therefore propose to grant bail to the applicant in the following terms and conditions:
The applicant be admitted to bail on her own undertaking with one surety in the sum of $60,000.00 (sixty thousand dollars) conditioned in the proper form for her appearance as required by law at the hearing of her committal proceeding at the Magistrates’ Court of Victoria at Melbourne on 22 March 2010 or as otherwise required and upon the following special conditions:
1. The applicant reside at [a nominated address] in the State of Victoria;
2. The applicant must not leave the State of Victoria except with the approval of the informant;
3. The applicant give seven days’ notice to the Informant or her nominee of any proposed change of address;
4. The applicant report daily to the Officer‑in‑Charge of the Police Station at Northcote or his/her nominee between the hours of 6.00 a.m. and 9.00 p.m.;
5. The applicant surrender her passport to the Informant upon being admitted to bail and is not to apply for or possess any other passport or travel document nor attend any point of international departure;
6. Other than the Informant, the applicant is not to approach any witness for the prosecution;
7. The applicant to appear before the Magistrates’ Court of Victoria at Melbourne on 22 March 2010 or such other time and place as she is directed.
8
0
0