Re KDP
[2009] VSC 416
•21 September 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 1494 of 2009
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| and | |
| IN THE MATTER of an Application for bail by KDP | |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2009 | |
DATE OF RULING: | 21 September 2009 | |
CASE MAY BE CITED AS: | Re KDP | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 416 | |
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CRIMINAL LAW – Application for bail – Unacceptable risk – Imposition of conditions make risk acceptable – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Dunn QC | Galbally & O’Bryan |
| For the Crown | Mr M Regan | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by KDP to whom I will refer as ‘the applicant’. The applicant is charged with a number of offences which are said to have occurred on three separate occasions. The first group of charges consist of two charges of criminal damage, one charge of reckless conduct endangering life and one of reckless conduct endangering serious injury. The second group include a charge of arson and six charges of intentionally causing a bushfire. The third occasion is a charge of incitement.
None of these offences require the applicant to show cause why his detention in custody is not justified under s 4 of the Bail Act. The result is that the applicant is prima facie entitled to a grant of bail unless the Court is satisfied pursuant to s 4(2)(d)(i) that there is an unacceptable risk that if released on bail he would either:
· fail to surrender himself into custody in answer to his bail;
· commit an offence whilst on bail;
· endanger the safety or welfare of members of the public; or
· interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
Under s 4(3) of the Bail Act, in assessing whether the circumstances constitute an unacceptable risk I must have regard to all matters appearing to be relevant and in particular to such of the following considerations as appear to be relevant, that is to say—
(a)the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused person;
(c)the history of any previous grants of bail to the accused person;
(d)the strength of the evidence against the accused person;
(e)the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail.
Circumstances of the offences
I will deal now with the circumstances of the offences alleged.
From approximately July 2007 until around the time of the alleged offending, the applicant was in a relationship with Jessica Ward-Fitzpatrick. The relationship was described as ‘volatile’ by the Crown. It is alleged that in June 2008, Ms Ward‑Fitzpatrick had an affair with another man, Peter Kyle, which was not disclosed to the applicant.
On 10 December 2008, the applicant was apparently informed of the affair by a third party and became enraged. It is alleged that he drove his vehicle to the residence he shared with Ms Ward-Fitzpatrick and her friend, Ms Carly Palmer. Upon arrival at the front door, the applicant armed himself with a hockey stick and is then said to have smashed a plasma screen television belonging to Ms Palmer using the hockey stick. In explanation for his behaviour, the applicant apparently said that he had smashed the television because Ms Palmer had withheld information from him about the affair.
The applicant is alleged to have then left the premises by vehicle and saw Ms Ward-Fitzpatrick walking down the street. He drove up onto the nature strip and braked heavily. Following a verbal altercation, the applicant drove off at high speed down the wrong side of the road. He then saw Ms Ward-Fitzpatrick’s vehicle on the street and drove his vehicle into it at a speed estimated at 130 km/h causing such extensive damage to it that Ms Ward‑Fitzptrick’s car has been deemed a “write off”. Subsequently, police made an application for an intervention order against the applicant in Ms Ward-Fitzpatrick’s favour. This occasion is the basis for two charges of criminal damage and one of reckless conduct endangering serious injury.
It is then alleged that on 28 and 29 January 2009, the applicant lit a number of bushfires in and around Delburn Darlimurla area in Gippsland. Those fires resulted in a ‘super fire’ known as ‘the Delburn complex’ which was eventually extinguished on 5 February 2009, two days prior to the events of 7 February 2009. According to the Crown summary, the fire razed 30 residences, more than 100 other structures, destroyed over 6,000 hectares of privately owned plantation, and seriously injured three people. The fire directly threatened several townships. The cost of the damage is conservatively estimated to be in the order of $20,000,000.00.
The basis of the allegations against the applicant appear to be a large number of sightings of the applicant’s vehicle in the vicinity of each of the points of ignition of the Delburn complex except for the fire at Creamery Road. The applicant’s vehicle, a grey 1983 Toyota HiLux was apparently sighted by witnesses driving around inside police road blocks. The police are said to believe that the person responsible for lighting the fires had local knowledge.
These allegations form the basis of the six charges of intentionally causing a bushfire against the applicant.
The third occasion of offending relates to the difficulties between the applicant and Ms Ward-Fitzpatrick and involves him in a telephone conversation on 3 March 2009 in which he is heard to be inciting a man called Bowman to do physical harm to Mr Kyle. The Crown allege that on that date the applicant incited Mr Bowman to inflict injury on Mr Kyle and over the course of an intercepted telephone call, the applicant promised Mr Bowman and an associate of his, Brenton, the sum of $500 each if they knocked Mr Kyle out and put him in hospital.
In relation to the bushfires, the applicant was arrested by police at 9.55pm on 29 January 2009, presumably as a result of reports made to police regarding the applicant or the allegations about his vehicle’s suspicious behaviour. He was later interviewed at the Churchill Police Station. In that record of interview he denied the allegations he was responsible for the Delburn complex fires. He was subsequently released without charge and his motor vehicle, which had also been seized by police, was returned to him.
The Ignis taskforce was set up to investigate these fires on 5 February 2009.
There could be no doubt that the nature and seriousness of the offences is very significant in this case. The offences are obviously very serious and upon conviction the applicant could expect a significant period of incarceration. There are a number of different acts said to have been committed by him, including those which lead to the catastrophic results in that fire.
In May of 2009 the applicant moved to New South Wales. Whilst he was living in that State, he was contacted by members of Victoria Police. The applicant refused to provide police with his address and informed them that he would not be returning to Victoria, though it appears that he did so not long afterwards. He apparently did not inform police of his return to Victoria.
The police obtained a warrant for the applicant’s arrest on 14 July 2009. On 17 July 2009 the applicant was arrested and charged with the offences I have outlined above. He was remanded into custody pending a filing hearing which was held 20 July 2009 at the Morwell Magistrates’ Court. The applicant made no application for bail at the filing hearing and was remanded in custody to appear at a committal mention on 13 October 2009. It appears that following the filing hearing the applicant changed his mind and made an application for bail. That application was refused by Magistrate Alsop at the Magistrates’ Court at Latrobe Valley on 28 July 2009 on the basis that the applicant posed an unacceptable risk of failing to answer bail. He is currently held at the Metropolitan Remand Centre.
As I said, there can be no question that these offences are extremely serious. As Maxwell P said in Asmar,[1] the applicant is presumed to be innocent of these matters but they are very serious. As Eames J said in Ghiller,[2] my role in dealing with this application is not to determine issues which a jury must decide, nor is it to punish the applicant in advance of a jury verdict.
[1]Re Asmar [2005] VSC 487 at para [25]
[2]Director of Public Prosecutions v Ghiller [2000] VSC 435
As I have already noted, the application for bail is opposed on behalf of the informant on the basis that the applicant would commit offences whilst on bail and endanger the safety and welfare of members of the public.
The onus of establishing that the applicant is an unacceptable risk lies on the informant and in the cause of supporting that conclusion a number of matters are relied upon. Mr Regan, who appeared for the informant, first relied on the strength of the Crown case, particularly that the perpetrator of the bushfire offences was the applicant. He submitted there was substantial evidence, pointing to a multiplicity of sightings of the applicant’s vehicle although there is no purported identification of the applicant himself and no witness whose evidence is in contention, as I understand it, obtained the registration number of the vehicle they saw. The critical piece of evidence to link the vehicle with the applicant is the colour of the vehicle. Mr Regan also relied on the behaviour of the applicant in relation to his girlfriend both prior to the fires and afterwards concerning the allegations of procuring an associate to do physical harm to his girlfriend’s new partner.
In the affidavit of the solicitor Anthony Rooney sworn on 31 August 2009 opposing the application for bail, the statement of Detective Sergeant Brett Kahan is exhibited. In that statement Mr Kahan points out that the applicant relies on identical grounds for his bail application in this court as in his last application before the Latrobe Valley Magistrates’ Court, and has not raised any new circumstances. True as that may be, for an initial application in this Court there is no requirement that fresh grounds be established.
Other matters sought to be established in Mr Kahan’s statement concern a series of circumstances that have arisen since the applicant was charged with these matters. In summary these matters include:
(1)An allegation that the applicant’s mother did not cooperate with the police in their enquiries regarding his vehicle;
(2)the activities of a man named Mr Fleming – an associate of the applicant – who is alleged to have been approaching witnesses and conducting a ‘quasi investigation’ on behalf of the applicant;
(3)an allegation that the applicant’s half-brother, Mr Cruddas, tried to intimidate a member of the police force, Mr McLean, who was part of the investigation team;
(4)threats allegedly made by the mother of the applicant and Mr Cruddas while the investigation into the damage to Ms Ward-Fitzpatrick’s vehicle was occurring;
(5)the attitude adopted by the applicant when in New South Wales and requested to return to Victoria to be spoken to by police.
As Mr Dunn, senior counsel for the applicant pointed out, only the last of these matters involves the applicant himself. The activities of Mr Fleming and Mr Cruddas occurred after the applicant went into custody, although that would not preclude him from condoning what occurred. However, there appears to be no evidence that directly indicates that he encouraged any of their actions. As to the last matter, the unwillingness of the applicant to assist the police at a time where there where was no compulsion on him to do so, does not seem to me to be of significant assistance in resolving the present application. I would be reluctant to conclude that it is evidence suggesting the applicant is a flight risk when, in fact, he did not flee.
Personal Circumstances
I turn to the personal circumstances of the applicant.
KDP is aged 23 years and has prior convictions dating from 2005 to 2007 for offences including burglary, theft, wilfully damaging property and careless driving and, perhaps initially most relevantly, failure to answer bail. The failure to answer bail conviction was in the Korumburra Magistrates’ Court and was part of an aggregate fine for that and two other offences of burglary and theft. I will return shortly to the detail of this matter. The other conviction which has some significance is the charge of wilfully damaging property in April 2006; also at the Korumburra Magistrates’ Court.
Counsel for the applicant submitted that the applicant’s conviction for failure to answer bail was less significant than it might first appear. I was provided with the original charge and summons which was served on the applicant in respect of the offence for which he was to appear. Mr Dunn pointed out that the summons was not marked as it should have been to indicate whether the offence was indictable or summary, and therefore whether or not the applicant was required to appear at the Magistrates’ Court for its hearing. It was submitted that when the applicant did not appear at Korumburra Court, he was contacted at home by local police and arrangements were made for him to attend the court on another occasion, which he apparently did.
Several affidavits were filed before this Court in support of the application. In part they deal with the personal circumstances of the applicant. It appears that his older brother died some years ago. Since he has been in custody for these matters, his father died on 1 September 2009. The applicant was permitted to leave custody to attend the funeral. The applicant’s family otherwise consists of he, his mother and Mr Cruddas. The applicant’s mother has indicated in an affidavit filed in this court on 17 September 2009 that she would provide a surety by way of her interest in real property. Further, it is proposed that were the applicant released he would reside at his mother’s property in Mirboo North.
Other portions of the affidavit material appear to demonstrate that the applicant’s psychological state does not tend towards non-compliance with bail conditions. The material also gives detail of his involvement with his local community. He is supported by a large number of people from that area who know him and have provided written references, several of which attest in detail to his good character.
The Strength of the Prosecution Case
Much of the application made before me concerned the strength of the prosecution case. There would appear to be little doubt that these catastrophic fires were deliberately lit – the question will be: by whom?
The applicant contends that the case is not a strong case, is circumstantial and depends substantially on the identification of the applicant’s vehicle at particular times and in particular locations. Though the witnesses to whom counsel for the respondent referred identify a vehicle to a greater or lesser level of detail, as I understand there is no witness who identifies the applicant himself at the locations where the fires were lit.
In addition, the applicant has made no admissions to police when interviewed, although it was submitted that potentially his denials might have been inconsistent.
To some extent the case against the applicant is circumstantial depending on an inference being drawn that because he was seen in the vicinity of areas where fires began, he was responsible for them being lit. On the one hand in relation to one of the fires, it occurred in an area where he lived. However in relation, for example, to the School Road, Darlimurla fire, the evidence against the applicant is more direct in the sense that a witness appears to have identified the applicant’s vehicle being in a particular location and fire then appearing beside it on several occasions.
Bearing in mind that the applicant himself and the registration details of his vehicle are not specifically identified, and the applicant made no admissions when interviewed, the evidence against him is not overwhelming. Much turns on a correct description by witnesses of the colour of the vehicle. However, as is often the case when the evidence is circumstantial, a quite powerful picture may be able to be assembled. At this stage I would not be prepared to describe the case as weak.
Unacceptable Risk
On behalf of the applicant it was submitted by his counsel that in relation to the offences with which he is charged, the presumption under the Bail Act runs in favour of a grant of bail subject to the unacceptability of the risk. As Redlich J said in Haidy[3], “what must be established [by the respondent] is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all the relevant circumstances, make it unacceptable.”
[3]Haidy v Director of Public Prosecutions [2004] VSC 247.
The character, antecedents, associations, home environment and background of the applicant do at least demonstrate that he has significant support in the community of Mirboo North where he has apparently lived all his life. No doubt they realise that any breach of any of the conditions I am about to impose will result in his immediate imprisonment.
Another of the relevant circumstances is the question of delay in the matter being heard. The applicant has now been in custody since his arrest on 17 July 2009. The committal proceeding will probably not be heard until March of 2010. I am assured the matter is to be contested and will obviously take some weeks. At this stage it is unclear whether this court or the County Court will hear the trial, although it might reasonably be expected to be in this court given the nature and consequences of the offences and the significance of the 2009 bushfires in this State generally. Whatever the situation, I have to proceed on the basis that the trial is unlikely to proceed before 2011. That may mean as much as two years in custody for the applicant before the trial commences.
As Kellam J said in Mokbel[4], the unacceptability of the risk “must be balanced with the likelihood of the allegations against an accused person being brought before a court in the near future.”
[4]Mokbel v Director of Public Prosecutions (2002) 133 A Crim R 141 at 142
The risk of criminal behaviour if bail is granted is very difficult to predict. In Asmar[5] Maxwell P, sitting in the Trial Division, observed that if an applicant was to be denied his freedom for a significant period before the trial is heard, “[o]ne would surely require compelling evidence…” about that likelihood. An example of such compelling evidence can be found in Barbaro[6] where the Court of Appeal confirmed the ruling of Forrest J in upholding an appeal by the DPP against a grant of bail to Barbaro by a Magistrate. In that case there was clear evidence that Barbaro had the incentive, capacity and disposition to take flight. The incentive concerned the strength of the case; the capacity concerned access to unlimited funds and the disposition was supported by evidence of things said by him on that topic in covert recordings. That was a very different circumstance from that which confronts me in this case.
[5]Re Asmar [2005] VSC 487
[6]Barbaro v Cth Director of Public Prosecutions [2009] VSCA 26
Conclusion
On the material available to me I am of the view that with the imposition of conditions, the risk – which clearly exists – can be made an acceptable one. I have therefore decided there should be a grant of bail.
The orders of the Court are that:
The applicant will be admitted to bail on his own undertaking with one surety in the sum of $95,000.00 (ninety five thousand dollars) conditioned in the proper form for his appearance as required by law at the mention of his committal proceeding at the Latrobe Valley Magistrates’ Court of Victoria on 13 October 2009 and thereafter on such dates as he shall be notified and upon the following special conditions:
1.The applicant reside at 2610 Strzlecki Highway, Mirboo North in the State of Victoria.
2.The applicant remain within the premises at 2610 Strzlecki Highway, Mirboo North each day between the hours of 7:00 pm and 7:00 am.
3.That until further order, on any day of Total Fire Ban for the State of Victoria or for the region in which the applicant resides, other than for the purpose of reporting to police as set out in paragraph 5 below, the applicant remain at the premises at 2610 Strzlecki Highway, Mirboo North until that Total Fire Ban is lifted.
4. The applicant give seven days’ notice to the Informant or his nominee of any proposed change of address.
5.The applicant report daily to the Officer‑in‑Charge of the Police Station at Morwell or his/her nominee between the hours of 8.00 a.m. and 6:00 pm.
6.The applicant is to surrender his 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.
7.Other than the Informant, Detective Senior Constable Ewen McLean, the applicant is not to approach or contact directly or indirectly any witness for the prosecution in any of the matters in respect of which he is charged.
8.Except for the purposes of complying with Condition 5 of this Order, the applicant, or any intermediary on his behalf, is not to approach any member of Victoria Police who is in any way connected with the investigation and prosecution of the matters with which he is presently charged.
9.The applicant is to appear before the Latrobe Valley Magistrates’ Court on 13 October 2009.
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