Re Lacey (Bail Application)

[2015] VSC 611

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0159  

IN THE MATTER of the Bail Act 1977

and  

IN THE MATTER of an Application for Bail by ANDREW DAVID LACEY

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2015
DATE OF JUDGMENT:	5 November 2015
CASE MAY BE CITED AS:	Re Lacey (Bail Application)
MEDIUM NEUTRAL CITATION:	[2015] VSC 611

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CRIMINAL LAW – Bail – Murder – No exceptional circumstances – bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Stefanovic	Office of Public Prosecutions
For the Accused	Mr A Malik	Victoria Legal Aid

HIS HONOUR:

1. The applicant, who is aged 22 years, is charged with murder. He seeks bail from this Court. By virtue of s 4(2)(a) of the Bail Act1977 the Court must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail. 

1. In my opinion, the applicant has failed to satisfy the burden of demonstrating exceptional circumstances.  Bail must therefore be refused.

1. There is evidence that on 5 July 2015, the applicant and two others went to Garry Coulson’s home.  It seems plain that whilst he was in bed, Mr Coulson was struck a number of times with a baseball bat and was stabbed a number of times.  He died from the injuries he received.

1. After a police investigation, the applicant was charged with aggravated burglary on 3 August 2015.  He was subsequently charged with Mr Coulson’s murder on 22 October 2015.

1. The prosecution contends that a charge of murder might be established in one of three alternative ways. First, it is argued that the applicant and the co-accused entered into an agreement or understanding to attack the deceased, knowing that the attack would be carried out with murderous intent; secondly, it is contended that there was an agreement to, at the least, assault the deceased, it being probable that the attack upon the deceased would be carried out with murderous intent; and, thirdly, it is submitted that there was an agreement between the co-accused to assault the deceased, in circumstances where injuries were to be intentionally inflicted upon the deceased, sufficient for murder to be made out pursuant to s 3A of the Crimes Act 1958.

1. It is unnecessary to describe the circumstances of the alleged offending in any great detail.  There is evidence available, however, from which it might be inferred that the applicant was recruited by a co-accused to go to Mr Coulson’s home and subject him to a form of payback for an antecedent burglary committed by Mr Coulson.  The deceased was attacked by two men, was struck repeatedly with a baseball bat and was stabbed several times.  He suffered injuries from which he died.  Whether or not the evidence is capable of establishing that the applicant was one of the actual attackers, there is evidence that he went to Mr Coulson’s premises so that the deceased could be subjected to an assault, and was present in the near vicinity when Mr Coulson was beaten and stabbed.  Therefore, so it seems to me, there is evidence capable of establishing a charge of murder on one of the alternative bases suggested by the prosecution.

1. The applicant’s counsel relied on six factors to make good the submission that exceptional circumstances exist.  They included:

1.     the strength of the prosecution case, it being contended that it was weak;

2.     the applicant’s co-operation with police;

3.     family support and stable accommodation;

4.     a low risk of flight or of re-offending;

5.     the applicant’s personal situation, including his age, that this is his first time in custody, his abstinence from drugs, and other factors;  and

6.     the availability of a substantial surety.

1. Fleshing out those six factors, counsel also relied on the fact that:

·    the applicant has a limited prior criminal history;

·    he has the support of his parents and siblings;

·    the applicant has a stable residence with his father;

·    he has a good work history;

·    his conduct on bail has been satisfactory, and he has not breached the Bail Act;

·    the applicant has complied with other court orders previously imposed on him;

·    apart from the instant charges, the applicant faces no other charges;

·    the applicant denies any role in the death of Mr Coulson;  and

·    the prosecution alleges that a co-accused is the principal offender. 

1. As I observed in the course of argument, as presently informed I do not consider the prosecution case to be weak.  There is no contest that the applicant — by his own account — was in close proximity when Mr Coulson came by the injuries which led to his death.  It would be open to a jury to conclude that he was there as part of a joint criminal enterprise, or was otherwise complicit in Mr Coulson’s death in the manner alleged by the prosecution.

1. In my view, none of the factors relied upon, alone or in combination, go beyond the kind of circumstances encountered in the ordinary case.  They do not establish the necessary exceptional circumstances.[1]  

   [1]Cf Mokbel v DPP (No 3) (2002) 133 A Crim R 141; DPP v Cozzi (2005) 12 VR 211; Re Kane [2010] VSC 8, [13]–[17]; Dale v DPP [2009] VSCA 212.

1. The application for bail is refused.

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