Re MJ
[2021] VSC 592
•17 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0226
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by MJ |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2021 |
DATE OF JUDGMENT: | 17 September 2021 |
CASE MAY BE CITED AS: | Re MJ |
MEDIUM NEUTRAL CITATION: | [2021] VSC 592 |
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CRIMINAL LAW — Application for bail — Charge of murder — Alleged offending from 2019 — Strength of the prosecution case — Seriousness of the alleged offending — Limited criminal history — Family support — Family hardship — Employment — Onerous conditions in custody — Delay — Time between alleged offending and arrest — Electronic monitoring — Surety — Exceptional circumstances not established — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E — Cases cited: Re KE [2021] VSC 175; Re Roberts [2020] VSC 793; Roberts v The Queen [2021] VSCA 28; Re Shea [2021] VSC 207; DPP v Jason Ghiller [2000] VSC 435.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Daniel Gurvich QC with Mr Samuel Tovey | Kaczmarek Grigor Lawyers |
| For the Respondent | Ms Catherine Parkes | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by MJ (the ‘applicant’). He applies for bail on a charge of murdering OSD (the ‘deceased’) at [redacted] on 26 April 2019. The applicant was arrested almost two years later on 21 April 2021 and charged the following day by Detective Leading Senior Constable Nicholas Hayes. The applicant filed an application for bail in this Court on 27 August 2021. He has been in custody since his arrest, a period of 4 months and 27 days.
The matter is next listed for a three-day committal hearing at Melbourne Magistrates’ Court, commencing on 1 February 2022 though, like everything else, that may be subject to the effect of the COVID-19 pandemic.
The alleged offending
The prosecution case is that the applicant shot and killed the deceased on the evening of 26 April 2019 in [redacted]. The alleged motivation for him having done so is not entirely clear. The case against the applicant relies on CCTV footage, forensic evidence and statements made to police by an associate of the applicant, implicating the applicant in the murder by relating admissions the applicant is alleged to have made about his involvement.
Circumstances
On 26 April 2019 at 6:39 pm, the deceased arrived with his partner at their apartment located on [redacted]. He left alone shortly after and was last seen by the CCTV at 6:59 pm crossing from the southern to the northern side of [redacted] on foot, in the direction of [redacted] in the vicinity of [redacted].
A number of witnesses report hearing gunshots around 7:40 pm.
At 7:45 pm, a jogger found the deceased’s body on the western side of [redacted]. The jogger called 000. Paramedics attended the scene and pronounced the deceased dead at 8:15 pm. The deceased had sustained four gunshot wounds in total, to his forehead, armpit, lower back and hip. A fired .38 calibre projectile was located under his body, and a further three were recovered from his body during the autopsy. Unsurprisingly, the cause of death was determined to be multiple gunshot injuries.
The day after the shooting, members of the public located the following items which were seized by police:
(a) a .38 calibre revolver (‘firearm 1’) containing six spent cartridges, and a .22 long rifle calibre pistol (‘firearm 2’), both on the ground in [redacted] near to where the deceased’s body was located; and
(b) a white plastic shopping bag located in some bushes between [redacted] and [redacted], which is situated outside the north east corner of [redacted]. The bag contained a black ‘Anko’ brand bum-bag, among other items.
Initial investigation
Police obtained CCTV footage allegedly showing the applicant at approximately 7:55 pm on 26 April 2019, shortly after the shooting, proximate to where the firearms and the white shopping bag were located. He was wearing black clothing and a green cap and carrying a shopping bag containing what appeared to be a backpack. He walked through [redacted] car park in an easterly direction towards [redacted] and removed a pair of black gloves.
On 2 May 2019, police seized a pair of black gloves from that location after reviewing the CCTV footage. The brand of gloves are mainly sold in Europe and are not known to be sold in Australia. Police also identified, based on a receipt located in connection with this matter, that a cash purchase had been made at Kmart in [redacted] on the morning of the shooting. The purchased items allegedly match the recovered bum-bag and other clothing items depicted in the CCTV footage described above. The store is near the applicant’s parents’ residence in [redacted].
Information from an associate
AA was arrested in relation to an unrelated matter on 16 February 2021 and told police that he had personal knowledge that the applicant was responsible for the murder of the deceased.
Between 24 and 27 May 2021, AA gave four statements to police. The relevant aspects of these statements can be summarised as follows:
(a) AS was AA’s long-term friend. He introduced AA into a criminal syndicate run by YD. AA met the applicant through AS, who attended high school with the applicant.
(b) AA saw the police media release relating to the shooting of the deceased, which depicted a person of interest in a green cap. He recognised this person as the applicant.
(c) In late 2020, AA and the applicant met with AS, who showed them both a GPS tracking device. AS gave the device to the applicant.
(d) In another meeting with the applicant and AS, AS showed AA a handgun and said its ‘baby brother’ was used to kill the deceased. The applicant and AS described how the shooting occurred, being that AS had been on the phone to the deceased directing him where to go, whilst the applicant lay in wait for the deceased. The applicant admitted to shooting the deceased and stated after he ‘shot one in his face… the screaming stopped’. There is now some issue as to whether AA stands by that version of events.
(e) In a third meeting with the applicant and AS, AS spoke of ‘paint’ that the deceased and YD were importing from overseas. AS said the deceased had been going to ‘take everything away’ from them. AA told the applicant he recognised him in the CCTV footage. The applicant replied ‘good one, yeah?’.
(f) YD told AA that he was aware of the facts of the deceased’s death. He described the applicant as ‘evil’ and ‘good at his job’.
Arrest
On 21 April 2021, the applicant was arrested at his parents’ residence and charged. A DNA sample was taken and, in exercise of his right, he declined to answer the questions he was asked by police. Police executed search warrants at his parents’ home, his vehicle and his ex-partner’s address in South Australia. They seized SIM cards and a tracking device allegedly similar to that described by AA.
No charges have been filed in relation to any alleged co-offender.
Forensic evidence
The prosecution also rely on forensic and other evidence in support of the case against the applicant.
Ballistics examination matched the four fired projectiles located at the scene and in the deceased’s body to firearm 1. Gunshot residue located on the gloves, the bum-bag and the deceased had the same composition as residue in two of the spent cartridges from firearm 1. Analysis of two groups of fibres collected from the grip of firearm 1, the bum-bag and the gloves provide moderate support that one group of fibres came from the gloves and the second from the same unknown source.
Preliminary DNA analysis indicates the applicant contributed to mixed DNA profiles (of four contributors) sampled from the grip of firearm 1, the handles of the shopping bag located in the bushes and the inside of the right glove located near [redacted].
Analysis of data associated with the applicant’s alleged mobile phone number indicate movements between [redacted] and [redacted] via the applicant’s parents’ home in the early hours of 26 April 2019. The mobile device was situated in the [redacted] area from 7:00 am onwards.
The applicable legislation
The applicant is charged with murder which is a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’).[1] Bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those prescribed in s 3AAA(1) of the Act.[3]
[1]Bail Act 1977 (Vic), schedule 1, item 2.
[2]Ibid, ss 4AA(1), 4A(1A) and 4A(2).
[3]Ibid s 4A(3).
The phrase ‘exceptional circumstances’ is not defined in the Act. It has, however, been the subject of voluminous judicial commentary over the years that has been broadly consistent, though some disagreements still lurk in the detail. More recently, in Re KE, Kaye JA, sitting as a member of the Trial Division of this Court, said:[4]
In essence, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered exceptional.
[4][2021] VSC 175, [50] (Kaye JA).
Respectfully, his Honour’s remarks demonstrate the difficulty of giving meaning to the phrase in the absence of context. In Re Roberts [2020] VSC 793, Beach JA, also sitting as a member of the Trial Division, said:[5]
To establish that the circumstances of the applicant’s case are, in a general sense, ‘exceptional’ is not sufficient, there must be exceptional circumstances that justify the grant of bail.
[5][2020] VSC 793, [20] (Beach JA).
In the subsequent appeal by Roberts against a refusal of his application for bail in Roberts v The Queen, their Honours Maxwell P, Niall and Emerton JJA, after some analysis of the cases, discussed a number of factors commonly relied upon to amount to the threshold of exceptional circumstances, and concluded:[6]
What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending…
It is the perceived need to avert or mitigate such injustice which justifies the grant of bail — provided always that the circumstances can properly be characterised as exceptional.
[6][2021] VSCA 28, [47]-[48] (Maxwell P, Niall and Emerton JJA).
Of course, the need for mitigation of future injustice will often arise from past events but in any event there are degrees of injustice. For example, there is some injustice in any delay of criminal litigation but in the absence of unlimited resources that is an inevitable aspect of the criminal justice system. As the level of delay increases, so the injustice that flows from it magnifies. A significant delay of the order of three years may be strongly argued to be, of itself, an exceptional circumstance. As Incerti J said in Re Shea:[7]
In my view, despite the gravity of the alleged offending and sentence likely to be imposed if the applicant were convicted, it is strongly arguable that a two and a half year delay, let alone three year delay, is one that, in and of itself, amounts to exceptional circumstances justifying bail. As Lasry J said in Re Jiang, ‘a period of pre-trial custody of three years will demonstrate exceptional circumstances in almost every case’.
[7][2021] VSC 207, [58] (Incerti J).
If a significant delay in a given case is coupled with uncertainty (as is now happening because of the effect of the COVID-19 pandemic on the case backlog in the County Court) so that the remand of a prisoner takes on the appearance of an indefinite and unjust pre-trial detention, it is not difficult to conclude, possibly in combination with other factors, that such circumstances are exceptional. However it will always be the particular circumstances of the given case that are important, and there are no generalised rules as to what are and what are not exceptional circumstances. All one can do is endeavour to understand and apply the preceding authorities and apply s 3AAA of the Act.
If the Court is satisfied that exceptional circumstances exist justifying a grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[8] In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[9]
[8]Above n 1, ss 4D(1)(a) and 4E.
[9]Ibid, s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[10]
[10]Above n 1, s 1B(2).
The applicant’s personal circumstances
The applicant is a 35 year old male raised in Victoria. Between 2017 and 2020, he mainly resided in South Australia to support his son who was born in 2017. At the time this application was filed, the applicant’s ex-partner was due to give birth to their second child. She has since given birth on 2 September 2021. The applicant was said to have been providing financial assistance and sharing parenting duties prior to his arrest.
The applicant left school in year 10 and worked in various industries, including as a labourer, landscaper and an unlicensed private investigator.
Further, in 2010, the applicant joined the French Foreign Legion, however was removed for deserting his duties in 2011. He returned to Australia before enlisting in the New Zealand Army in 2013. He sustained a knee injury in 2016, following which he took leave without pay until 2017. He did not return to the army. He received firearms training in both roles.
Criminal history
The applicant has a Victorian criminal history from 2008 comprising findings of guilt for reckless conduct endangering life, as well as dishonesty and driving offences. The applicant was sentenced by way of fines, adjourned undertaking (which he complied with) and an aggregate 6 months’ imprisonment to be served through an Intensive Correction Order. That history does not have a direct relevance to the charge he faces now.
The applicant’s contentions
The applicant’s submissions were in writing and supplemented by oral argument on the hearing of this application. Evidence was also given by the informant, the applicant’s brother and Mr Phillip Schluter on the topic of electronic surveillance.
Strength of the prosecution case
The applicant denies the alleged offending. It was submitted that there are real issues to be tried, noting:
(a) there are no eyewitnesses to the shooting;
(b) the deceased was a prominent criminal figure with extensive domestic and international connections in organised crime. It was submitted that there are likely to have been many persons with animosity towards the deceased at the time of his death;
(c) preliminary DNA reports from items relevant to the investigation reveal profiles of at least four contributors, of which the applicant is said to be one. Given the date on which the DNA would have been contributed to the items cannot be ascertained, it was submitted that – even if the evidence is accepted – there would still be substantial issues to be tried;
(d) the CCTV in question does not clearly identify the applicant as the person depicted;
(e) the Crown case relies heavily on the evidence of AA, whose reliability and credibility will be ‘hotly’ contested. This is put on the basis that AA’s reason for making statements to police was to seek an indemnity from prosecution, and further that some of his assertions – including being shown the murder weapon and the applicant admitting to shooting the deceased in the face – are significantly at odds with the evidence.
In any event, it was submitted that it is not the matter for the Court on this application to determine issues that will ultimately be a matter for a jury, referring to the remarks of Eames J in DPP v Jason Ghiller:[11]
[T]he primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail. A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by jury.
[11][2000] VSC 435, [43] (Eames J).
Accepting there are triable issues, it is too early in the process to come to any conclusion about strength of the case. That will be much clearer after the committal proceedings in February 2022. By then, for example, the nature and effect of the DNA evidence which is presently outstanding will be clearer. Also, the credibility of the witness AA will be better understood.
Criminal history, bail compliance and outstanding matters
The applicant has a limited criminal history and no history of failing to comply with bail orders. He has never been sentenced to an immediate term of imprisonment, and has no prior history involving violence, firearms or other weapons. Further, the applicant has no negative bail history, or any history of failing to comply with court orders, and was not subject to any conditional liberties at the time of the alleged offending. It was submitted that these matters are relevant to the applicant’s ability to comply with bail in the present matter, if bail were granted.
Family support and stable accommodation
The applicant was said to have strong family support and proposes to reside at an apartment rented by his brother at [redacted], if granted bail. On the hearing of the application, the applicant’s brother gave evidence that was renting those premises. He said he has a close relationship with the applicant. He gave evidence that he would supervise the applicant’s compliance with conditions of bail if bail were granted.
Employment
The applicant has been offered full-time employment as a labourer with [redacted] on a trial basis. Two letters from SD, Director, dated 28 June and 23 August 2021, were provided to support this contention. SD states that the applicant’s employment with the company would entail him working for 40 or more hours per week at various locations around Melbourne. SD is aware of the charge against the applicant.
Family hardship
In a letter dated 23 August 2021, the applicant’s former partner, BK, noted that she was due to give birth to the applicant’s second child on 2 September 2021, via a caesarean delivery. She anticipated a long recovery period against a background of significant complications during her pregnancy.
BK also noted in her letter that her and the applicant’s first child, who is almost four years old, is uncomfortable in the care of non-family members and is unable to attend childcare due to severe emotional stress and separation anxiety. Further, he reportedly displays hyperactive tendencies, which BK has been seeking professional advice in relation to. BK states that these tendencies have increased in the applicant’s absence.
For these reasons, BK states that she is in desperate need of the applicant’s assistance to care for her and their two children, particularly while she is recovering from a caesarean section. BK notes that her mother is unable to assist in this capacity, owing to her full-time working responsibilities. It would appear however that BK resides in South Australia and the evidence did not seem to explain how the applicant would be involved in the care of BK or the child if that remained the case.
Delay
It was submitted there is likely to be “inordinate” delay in the matter proceeding to trial. The applicant has been in custody since his arrest on 21 April 2021, with the committal hearing not listed until February 2022. While it is possible that a trial may commence in 2022, it was submitted that realistically it would more likely be 2023 and that the applicant is likely to spend more than two years in custody awaiting trial. It was submitted that outstanding disclosure and anticipated evidentiary argument may aggravate this delay. Notwithstanding that delays of this magnitude have become more common, it was submitted that the delay is not any less inordinate.
Onerous conditions in custody and safety concerns
This period on remand represents the applicant’s first time in custody. He is concerned that he could be subject to revenge or reprisal attacks in custody due to the deceased’s criminal connections, which is submitted to make his remand more burdensome. These concerns were said to be evidenced by the fact that the matter is subject to a proceeding suppression order, made on 13 May 2021. The application for same was made on the basis that public identification of the applicant would create a substantial risk to his safety, principally due to the deceased’s criminal ties. The submissions in support of that application refer to statements made during a press conference by Victoria Police on [redacted] about the extent of the deceased’s connections to people in the higher echelons of organised crime, nationally and internationally.
Further, the applicant has remained on remand at the Melbourne Assessment Prison (‘MAP’) since his arrest, which is an assessment prison and not designed to cater for persons in custody on a long-term basis. The applicant’s placement at MAP was said to be due to the risks posed to his safety if he were to be transferred elsewhere. The applicant submitted that the conditions in custody are more onerous due to limited out of cell time; suspended personal visits; and limited recreational and educational opportunities.
Time since incident and lack of subsequent offending
The shooting occurred in April 2019, and the applicant is not alleged to have offended in the intervening period up to his arrest in April 2021. Further, there is no indication that he attempted to interfere with witnesses in that time.
Electronic monitoring
The applicant proposed to be subject to geographical electronic monitoring, if granted bail. This would be administered and overseen by a private company known as Attenti Australia Pty Ltd (‘Attenti’), at the applicant’s expense of $25,000 per 12 month period. The arrangement would involve a GPS device being fitted to the applicant’s person and components installed in his home, which would transmit data relating to his whereabouts and movements using mobile phone networks. The device would be programmed to assist with the monitoring of specific bail conditions, including a curfew, residence and specified ‘exclusion zones’. The applicant’s movements would be continuously monitored against these parameters, uploading data to the central management system every 30 minutes. In the event of a breach or device failure, the informant (or other nominated person) would automatically be notified. Attenti have assessed the applicant and the proposed residence in [redacted] as suitable for their service.
Surety
The applicant’s father, MC, offers a surety of $400,000 by way of equity in a property at [redacted]. In an affidavit affirmed on 7 September 2021, MC deposed that he was aware of the obligations associated with being a surety, and was willing to offer a surety on behalf of the applicant notwithstanding the seriousness of the allegations against him.
Unacceptable risk
It was submitted that none of the risks alleged by the prosecution are unacceptable, and that, in any event, each of the asserted risks could be managed by bail conditions, including as to residence, curfew, electronic monitoring, regular reporting to police, full-time employment and a substantial surety.
It was submitted that the primary basis for any assertions about risk of endangering the safety and welfare of any person or interfering with a witness would be the statements of AA, whose credibility is in issue. It was submitted that, even taking AA’s evidence at its highest, there are clear issues including a lack of independent corroboration, coupled with AA’s own motivation to lie in order to diminish his own criminal responsibility. Given the applicant has not been before the courts for criminal offending since 2008, it was submitted that the alleged risks are unfounded.
As to alleged flight risk, it was submitted that there is an absence of cogent supporting evidence and that, in any event, there would be numerous practical difficulties in fleeing the jurisdiction. Further, the applicant has ties to the jurisdiction, including his two young children, and his employment and stable accommodation. He has not previously breached a court order.
The respondent’s contentions
The application was opposed on the basis that the applicant had not demonstrated the existence of exceptional circumstances that justified the grant of bail. It was further opposed on the basis that the applicant, if granted bail, would pose an unacceptable risk of endangering the safety and welfare of any person, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with the conditions of bail.
Nature and seriousness of the alleged offending
The offence of murder is obviously of the utmost seriousness. This is reflected in the maximum penalty of life imprisonment. It was submitted by the respondent that the allegations against the applicant demonstrate a particularly serious example of the offence of murder, noting that the deceased was killed ‘execution style’ by multiple gunshots, which occurred in a public place during the early hours of the evening while other people were in the general vicinity. Further, clearly the killing was pre-planned and was motivated by an alleged grievance the applicant and his associates held towards the deceased.
Strength of the prosecution case
The respondent relied on various matters as evidence of the strength of the case against the applicant, including reports from local residents who heard multiple gunshots at the relevant time; CCTV from areas in the vicinity of [redacted] at relevant times, said to depict the movements of the applicant shortly following the deceased’s death; relevant items found within the vicinity of the scene – including firearms – said to be forensically linked to the applicant; telephone records; and various statements of AA, included in which he says that the applicant confessed to him that he killed the deceased.
To the extent that any negative inference may be drawn from AA’s initial reluctance to provide sworn statements to police, the respondent noted that this was due to AA’s genuine fear of reprisals against him and his family in the context of the applicant’s history and his alleged ties to a criminal syndicate. As matters stand, AA has not received an indemnity from prosecution.
Stable accommodation
It was submitted in the respondent’s written submissions filed with the court that the applicant’s proposed residence is unsuitable. At the hearing of the application, Mr Gurvich QC of counsel cross examined the informant Detective Senior Constable Hayes about the applicant’s proposed bail address. Detective Senior Constable Hayes confirmed that there was a lease for the residence currently in existence between the applicant’s brother and the landlord. No submissions were made on behalf of the respondent as to the suitability of the applicant’s proposed bail address at the hearing of the application.
Employment
It was conceded that the applicant has a strong work history, and that he would have access to employment if granted bail.
Delay and likely sentence
It was conceded that there is likely to be a significant delay in the matter progressing to trial, although submitted that any delay would not be inordinate or itself amount to an exceptional circumstance that justified the grant of bail. This is particularly relevant in the lens of the likely sentence the applicant will be facing if convicted. As at the time this bail application was heard, the applicant had spent approximately four and a half months in custody as I have already noted.
Onerous conditions in custody and safety concerns
In response to the applicant’s concerns about his safety in custody arising from the deceased’s criminal connections, it was noted that there is a proceeding suppression order in place prohibiting publication of any information connecting the applicant to these proceedings.
As to the conditions in custody more broadly, while it was conceded that these are more stringent and restrictive at present due to COVID-19, the respondent submitted that this is not confined to persons in custody, with persons in the community are also facing greater restrictions than would otherwise be the case.
In addressing the issue more specifically, the respondent relied on the affidavit of Ms Jennifer Hosking, Assistant Commissioner of the Sentence Management Division at Corrections Victoria, which was sworn on 8 September 2021. The respondent noted from Ms Hosking’s affidavit that the applicant has been able to work and undertake courses whilst in custody at MAP; engage in contact with family members, including regular video calls with his son; and leave his cell and access outside areas for more than eight hours a day, seven days per week, subject to operational lockdowns.
Electronic monitoring
It was submitted that an electronic monitoring device has the potential to be removed by the person wearing it, and allow sufficient time to abscond before police could be notified. It was submitted that the proposed electronic monitoring device would not sufficiently ameliorate risk.
Surety
The respondent did not take issue with the proposed surety.
Unacceptable risk
Endangering the safety and welfare of any person
It was submitted that there would be a significant risk to the safety of AA and his family if the applicant were granted bail. These concerns are emphasised in the context of the applicant’s alleged ties to a criminal syndicate (which AA was previously associated with) and his extensive weaponry training through the French Foreign Legion and the New Zealand Army.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent relied on the same reasons outlined above to submit that the applicant poses an unacceptable risk of interfering with a witness, namely AA, if bail were granted.
Failing to surrender into custody in accordance with the conditions of bail
Notwithstanding that the applicant is willing to surrender his passport, it was submitted that he has the means and motivation to flee the jurisdiction, with particular reference his alleged ties to a criminal syndicate and connections to associates in foreign countries through his time serving with the French Foreign Legion and the New Zealand Army. Further, more locally, it was submitted that the applicant has ties to other states, noting that he was based between Victoria, South Australia and Queensland, in the weeks leading up to his arrest.
Conclusion
The first matter to be resolved is whether the applicant has established the existence of the exceptional circumstances that would justify a grant of bail. Considering s 3AAA of the Act, the first point to make is that obviously the charge of murder is the most serious offence there is. In this case it is alleged the offending was a planned execution of the deceased. There is circumstantial evidence and evidence of admissions. The nature and seriousness of the offence in application such as this is a significant consideration in the exercise of any discretion. I have already said all I can say about the strength of the case. I note that there appears to be some inconsistency in the potential evidence of the witness AA but beyond that there is no other conclusion I can draw at this stage. The strength of the case will be significantly clearer when the committal is held. I add that murder is a standard sentence offence and the standard sentence is 25 years imprisonment. This offending, if proved, may very well be beyond the standard.
The applicant does have a criminal history but it is limited and there is no history of bail offending. I have already set out the applicant’s personal circumstances. As to the delay, I accept that notwithstanding the fact that delays of the order of two years from charge to trial have become more common, the delay is still inordinate. This delay is, of course, not one that will exceed the likely sentence if the applicant is found guilty of murder. In this case, the “best case” scenario is that the applicant’s trial in this Court will take place in term 4 of 2022 or, less acceptably, term 1 2023. It is likely that the delay in this matter will be something short of 2 years. In the particular context of this case, that is a long delay but on its own I would not conclude that it was exceptional circumstance.
One of the factors that is said to be significant is that the applicant is unsafe in custody given the identity of the person he is charged with murdering. It is sufficient to say that prison authorities are well used to dealing with situations like that and can protect the applicant from threats to his safety. In addition there is the issue of the effect of COVID-19 on the daily lives of prisoners. This consideration affects all prisoners. I say that noting that this very day, a case of COVID-19 was reported as having occurred in the Melbourne Assessment Prison. I accept that the applicant has limited access to the types of facilities or programs available to other remand prisoners and is locked for a significant portion of each day. There are also limits on his ability have contact with his family.
The applicant has relied upon electronic monitoring based on the evidence given by Mr Schluter. He gave the following description:
So the device might detect a breach of curfew, of location, of tamper, which ever it is. The device then generates the alert which is communicated to the central monitoring system. The central monitoring system processes that alert and automatically sends it to the officer in charge or to a duty phone. At the same time our 24/7 staffed monitoring centre picks up the alert and triages the alert.
Mr Schluter accepted that the device could be cut off but insisted that such breaches would be immediately automatically reported. This is an arrangement where a private company monitors a person who is required to pay for the privilege and is regarded by the company as the “client”, although Mr Schluter was at pains to emphasise that their obligation was to the Court and to the authorities. I accept that this facility would be of assistance but the fact that such a service is available is not of itself an exceptional circumstance.
As to the prospect of a surety, similar considerations apply. It is a relevant consideration but it is not exceptional of itself.
The mother of the applicant’s children, who lives in South Australia, wants the applicant released on bail so that he can assist with the care of his children. The brother of the applicant gave evidence that, if released, the applicant would reside with him in Melbourne. I don’t understand how those things can both occur.
Taking into account all the judicial explanations of the meaning of “exceptional circumstances”, I am not persuaded that in this case that they have been established. Taking the approach of the Court of Appeal in Roberts, I am not persuaded that the continued remand of the applicant will be productive of a future injustice. Although the applicant’s continued incarceration carries with it several difficulties which I do not underestimate, I do not understand that it is argued on behalf of the applicant that there will be, for example, unusual future hardship and mental distress over and above that.
The application is therefore refused.
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