Re O'Shea
[2019] VSC 791
•2 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0236
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by BRIAN O’SHEA |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2019 |
DATE OF JUDGMENT: | 2 December 2019 |
CASE MAY BE CITED AS: | Re O’Shea |
MEDIUM NEUTRAL CITATION: | [2019] VSC 791 |
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CRIMINAL LAW – Bail – Applicant charged with Schedule 1 offence – Requirement to show exceptional circumstances exist that justify grant of bail – Whether exceptional circumstances shown – Whether an unacceptable risk – Parity – Exceptional circumstances established – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4A, 4AA, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Stary Norton Halphen Lawyers |
| For the Respondent | Ms S Borg | Office of Public Prosecutions |
HER HONOUR:
On 25 July 2019, Brian O’Shea (‘the applicant’) was arrested and charged with the murder of Cindy Crossthwaite (‘the deceased’). It is the prosecution case that the deceased’s estranged husband, Emil Petrov (‘the co-accused’), murdered the deceased at her Melton South residence on the morning of 20 June 2007. The prosecution alleges that the applicant was involved in the commission of the offence by means of procuring a firearm for the co-accused, knowing that it would be used to murder the deceased.
The applicant has been in custody since his arrest. The matter is next listed for a five day contested committal hearing on 18 May 2020 at the Melbourne Magistrates’ Court. Pursuant to s 13(2) of the Bail Act 1977 (Vic) (‘the Act’), only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder. As the applicant’s matter has not yet reached committal stage in the Magistrates’ Court, no previous application for bail has been made.
By notice dated 1 November 2019, the applicant seeks a grant of bail in this Court. As the applicant is charged with murder, bail must be refused unless he can satisfy the Court that exceptional circumstances exist which justify the grant of bail.[1]
[1]Bail Act 1977 sch 1, item 2 (‘Bail Act’).
The co-accused, who was arrested and charged with the murder of the deceased on 17 July 2019, was granted bail by this Court on 23 October 2019.[2]
[2]Re Petrov [2019] VSC 705.
The respondent opposes bail on the basis that the applicant has failed to demonstrate the existence of exceptional circumstances, and additionally, is an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice in any matter.
The alleged offending
By way of background, at the time of the alleged offending, the applicant was 37 years of age and owned a fencing business, ‘O’Shea Fencing’ with his brother, Laurie O’Shea. The applicant is a long-time friend of the co-accused, having met him sometime in the 1980s when the pair worked together at ‘Ferro Chemicals’ in Footscray.
At the time of her death, the deceased was 41 years of age and resided in Melton South with her three young children. The deceased had commenced a relationship with the co-accused in 1989 and married him in 1996. During the course of their marriage, the couple had two children and resided together in Melton. They separated in 2005, following which time the pair were involved in Family Court proceedings in relation to the custody of their two children and a number of properties purchased throughout their marriage. These proceedings were not finalised at the time of the deceased’s death.
Between the time of the couple’s separation in 2005 and the deceased’s death in 2007, the deceased became increasingly concerned for her safety following a string of threats allegedly made by the co-accused, including that he would kill her if she ever divorced him. The deceased successfully sought an intervention order against the co-accused in December 2005, prohibiting him from making contact with her, except by prior arrangement or court order, and limiting contact between the co-accused and their children. The deceased then moved with her children to Rosebud to commence a new relationship, which resulted in the birth of her third child. She subsequently returned to Melton in January 2007 after that relationship ended.
It is alleged that in the period approximately three months prior to her death, the deceased continued to express her fear that ‘it was only a matter of time’ before the co-accused killed her, and that he would do so before any property settlement could be finalised.[3] She actively sought to prevent the applicant from identifying her new residence in Melton South. Despite these attempts, it is alleged the co-accused became aware of her new address.
[3]Further Affidavit of Sarah Elise Margaret Condon in support of application, affirmed 4 November 2019, Exhibit SC-1, 21.
In the period approximately one month prior to her death, the applicant, together with his sister, Mayo O’Shea, are alleged to have begun following the deceased on behalf of the co-accused. During this period, the applicant’s brother, Laurie O’Shea, alleges that the applicant drove him to an address at Rae Street, Melton, and stated that the co-accused and his parents were going to ‘give’ the applicant the house for ‘helping’ the co-accused. The applicant told his brother that the deceased had previously lived at the address, but now lived at another house ‘further up off Station Road’.[4]
[4]Ibid 125.
Approximately one week later, the applicant is alleged to have driven his brother to a service station in or around Maribyrnong to ‘meet somebody’.[5] Laurie O’Shea alleges that he observed the applicant return to the car with a plastic shopping bag which appeared to contain a handgun. Laurie O’Shea alleges the applicant informed him that the co-accused had given him $3,000 to purchase the handgun and was planning to ‘get rid of’ the deceased.[6] Laurie O’Shea alleges that the applicant stated that the deceased would be killed ‘within the next couple of days’.[7]
[5]Ibid.
[6]Ibid 126.
[7]Ibid.
In the weeks following, the applicant is alleged to have informed Laurie O’Shea that he had to ‘get rid of’ the deceased’s dog because it would not stop barking.[8] Around this time, the deceased’s dog is alleged to have gone missing. On or around 19 June 2007, the applicant is alleged to have informed Laurie O’Shea that he would not be at work for the ‘next couple of days’ as he would have to ‘keep a low profile’ as he anticipated that police would be checking his phone contact with the co-accused.[9] Laurie O’Shea states that the applicant did not attend work on 20 June 2007.
[8]Ibid.
[9]Ibid.
At approximately 4.00pm on 20 June 2007, the deceased’s father attended his daughter’s residence in Melton South in response to concerns raised about her whereabouts. Upon his arrival, he discovered her body covered by a blanket on the lounge room floor. A small piece of a broken handgun grip was located on her right hip. An autopsy determined that she died as a result of a gunshot wound to the head and compressive neck injury.
Laurie O’Shea alleges that he heard a report on the radio regarding an incident in Melton, following which time his cousin, Barry Mercieca, confirmed that the deceased had been murdered. In the days following, it is alleged the applicant told Laurie O’Shea that the co-accused had attended at the deceased’s address on the morning of 20 June 2007 and got inside the house ‘using the gun’, after which time he hit the deceased with the butt of the handgun and ‘got Cindy’.[10] Laurie O’Shea alleges the applicant informed him that the co-accused had initially disposed of the handgun in some paddocks near the Melton Weir, but that the pair later retrieved it out of concern it would be discovered.
[10]Ibid 127.
The co-accused was arrested and interviewed in connection with the murder on 20 June 2007, and the applicant was interviewed four days later. Both were released without charge.
Approximately a decade later, on 8 July 2017, Laurie O’Shea provided a statement to police in relation to the alleged involvement of the applicant and co-accused in the deceased’s murder. On 6 October 2017, the homicide squad released a $1 million reward appealing for public assistance with their investigation. During this time, a warrant was issued to intercept the co-accused’s phone and phone records of the applicant and co-accused were obtained, which showed a total of 89 phone contacts between the pair during the period 23 May 2007 to 20 June 2007.
On 1 November 2017, police arrested and interviewed the applicant in relation to the deceased’s murder, during which time he denied any involvement, stating that he was in Melton doing a fencing job on 20 June 2007. He was subsequently released.
On 17 July 2019, the co-accused was arrested and conveyed to the City West Police Complex where he gave a no comment record of interview. He was charged with one count of murder and remanded into custody.
On 25 July 2019, the applicant was again arrested and conveyed to the City West Police Complex for interview. He stated that he was at work in Melton with his brother, Laurie O’Shea, on the day of the murder, and denied purchasing a firearm on behalf of the co-accused. At the conclusion of the interview, he was charged with one count of murder and remanded into custody.
In a statement dated 19 August 2019, Laurie O’Shea confirmed that the applicant was not at work ‘for a few days’ around the time the deceased was killed.[11]
[11]Ibid 130.
The applicant
The applicant is 50 years old. Prior to being on remand, he resided in Taylors Lakes with his fiancé, Wendy Korney, and his step-daughter. The applicant has two children from a previous relationship from whom he is estranged.
The applicant has a prior criminal history which includes convictions and findings of guilt for two counts of breach of an intervention order (2002), two counts of using a telecommunications service to menace (2002), indecent assault (2002), criminal damage (2000), and theft (1987).[12]
[12]Affidavit of Sarah Elise Margaret Condon in support of application, affirmed 1 November 2019, Exhibit SC-2.
The current remand period represents the applicant’s first time in custody.
The applicable legislation
Pursuant to s 4AA(1) of the Act, the ‘exceptional circumstances test’ applies to the decision of whether to grant bail to a person accused of a Schedule 1 offence. In the present matter, the applicant is charged with the Schedule 1 offence of murder.[13] Consequently, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[14] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[15]
[13] Bail Act sch 1, item 2.
[14]Ibid s 4A(1A).
[15]Ibid s 4A(2).
In considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’ outlined in s 3AAA(1) of the Act.[16]
[16]Ibid s 4A(3).
In order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’,[17] notwithstanding the very serious nature of the charge.[18] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[19]
[17]Re CT [2018] VSC 559 [64] (Champion J), citing with approval Re Sam [2017] VSC 91 [22] (Beach JA).
[18]Armstrong v R [2013] VSC 111 [31] (Lasry J), quoting Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1.
[19]Re CT [2018] VSC 559 [65] (Champion J), citing with approval Re Fairest [2015] VSC 375 [17]–[18], [22] (Weinberg JA).
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, s 4D(1)(a) of the Act then requires the Court to apply the ‘unacceptable risk test’. In accordance with s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
The prosecutor bears the burden of satisfying the Court as to the existence of an unacceptable risk.[20]
[20]Bail Act s 4E(2).
In applying the unacceptable risk test, the Court must again consider the surrounding circumstances contained in s 3AAA(1) of the Act,[21] and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[22]
[21]Ibid s 4E(3)(a).
[22]Ibid s 4E(3)(b).
When interpreting the Act, the Court is required by s 1B to take into account, inter alia, that –
(1) The Parliament recognizes the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Parity
Of relevance to this matter is the principle of parity as it applies to applications for bail by co-accused. In Director of Public Prosecutions (Cth) v Abbott,[23] Gillard J held that parity was relevant to the existence of exceptional circumstances and the inquiry concerning unacceptable risk. His Honour explained the application of the principle to applications for bail by co-accused as follows:
[23](1997) 97 A Crim R 19, cited with approval in Re Wilson [2006] VSC 178 [18]–[19] (Hargrave J); Gray v DPP (Vic) [2008] VSC 4 [15] (Bongiorno J); Bchinnati v DPP (Vic) (No 2) [2017] VSC 620 [69]–[70] (Croucher J); Re Saputra [2017] VSC 433 [15] (Lasry J).
In my opinion the principle can apply but it must be established that things are equal as between the co-offenders …
… for a bail application the principle can be stated - where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail applications may be dealt with differently.
In my opinion a manifestly wrong decision to grant bail could not be used as a basis for the application of the parity principle in another bail application.[24]
[24]DPP (Cth) v Abbott (1997) 97 A Crim R 19, 29.
In considering the requirement to establish that ‘things are equal’ as between co-offenders, Gillard J expressed the view that ‘it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant’.[25] In Bchinnati v Director of Public Prosecutions (Vic) (No 2),[26] Croucher J stated of the application of the parity principle to bail applications, ‘[i]n some cases, however, the circumstances of two accused are sufficiently similar that, if bail had been granted to one, it would be wrong to refuse bail to the other, or at least the grant of bail to one would be a relevant consideration on the application of the other’.[27] In that case, Croucher J found that it would be ‘wholly unfair’ to deny bail to the applicant in circumstances where the co-accused was granted bail for what his Honour regarded as ‘related but comparatively far more serious allegations of the same type’.[28]
[25]Ibid.
[26][2017] VSC 620.
[27]Ibid [70] (citations omitted).
[28]Ibid [73].
The applicant’s contentions
The applicant relies on a combination of factors to demonstrate the existence of exceptional circumstances. In particular the applicant relies upon two factors; first, the 12 year delay from the offence date to the date of the applicant’s arrest; and second, the nature and strength of the prosecution’s case. While the applicant relies primarily on these two factors, he also submits that there are other relevant factors, as set out below.
Delay
It was submitted that the delay of 12 years from the date of the alleged offence to the date of the applicant’s arrest was significant, and in that period, the applicant remained in the community and offence free.
Weakness of the prosecution case
The applicant concedes that the nature of the allegations against him are serious. However, he submits that the prosecution case is deficient in a number of significant areas, such that when viewed as a whole, the case against him is weak. The applicant relies on the following factors in support of this contention:
(a) there is no forensic evidence linking the applicant to the deceased’s murder;
(b) there are no eye-witness accounts of the murder, or identification evidence relating to the applicant at or anywhere near the scene of the murder;
(c) there is no electronic evidence linking the applicant to the murder or relied upon by the prosecution (such as cell tower evidence or data extracted from text messages or computers);
(d) no weapons have been recovered by police;
(e) there is no CCTV evidence inculpating the applicant in any way;
(f) the shift in the case against the applicant arose after Laurie O’Shea provided two statements a decade after the alleged offending, despite purporting to have knowledge of the offending in 2007;
(g) the only evidence relating to the applicant are the two statements provided by Laurie O’Shea dated 8 July 2017 and 19 August 2019. The applicant submits that in the circumstances of the ‘longstanding animosity’ held by Laurie O’Shea towards the applicant, coupled with the significant delay in the provision of his witness statements, the credibility of Laurie O’Shea will be squarely in issue at trial;
(h) police officers arrested and interviewed the applicant’s sister, Mayo O’Shea, who provided an exculpatory account denying any involvement of herself and the applicant in the alleged offending; and
(i) despite a thorough investigation conducted in 2007, and the applicant having been interviewed in November 2017, he was not charged with any offence until 25 July 2019.
The applicant has been granted leave to cross-examine a number of witnesses at the contested committal hearing on 18 May 2020.
Suitable accommodation and ties to the jurisdiction
The applicant has stable accommodation available to him at Taylors Lakes with his fiancé, Wendy Korney, and his step-daughter. The applicant and Ms Korney have been in a long-term relationship for six years. He submits that both Ms Korney and her daughter are of good character, are supportive of his application for bail, and are prepared to assist him to comply with any bail conditions that may be imposed.[29] The applicant also enjoys the support of his extended family, with his sister offering to provide surety in the amount of $260,000.
[29]See Affidavit of Wendy Korney in support of application, affirmed 31 October 2019 [34].
Prior to his remand, the applicant was the sole income earner for his immediate family. Ms Korney had been due to recommence work around the time of the applicant’s arrest, having suffered a leg injury in December 2016. However, the applicant submits that since his remand, Ms Korney has been too distressed to resume working, such that she is struggling to support herself and her daughter financially. In addition, both Ms Korney and her daughter have experienced anxiety since the applicant’s remand, with Ms Korney having been prescribed medication for anxiety and depression.[30] The applicant submits that he holds significant concern for the well-being of his partner and step-daughter.
[30]Ibid [25]–[27].
Employment
If granted bail, the applicant intends to resume full-time work within his fencing business, ‘Brian’s Fencing’.[31]
[31]Ibid Exhibit WK-1.
Criminal history
The applicant submits that he has a dated criminal history, with most of his prior offending occurring during a discrete period between 2000 and 2002. His most recent conviction is dated 2 October 2002, which predates the alleged offending by five years. The applicant has no further convictions post-2002 and no outstanding criminal matters. There are no current intervention orders or family violence safety notices in place against him. He submits that he has no negative history with respect to bail and was fully compliant with a community based order imposed for a period of three months in October 2002.
Vulnerability
The applicant has a diagnosis of osteoarthritis of the hip which causes him significant pain. Prior to his remand, he was on a waiting list for hip replacement surgery, which was scheduled to take place in August 2019.[32] The applicant’s remand meant that he had to forfeit this opportunity. Corrections Victoria have not been able to confirm a date for his surgery to take place.[33]
[32]Affidavit of Sarah Elise Margaret Condon in support of application, affirmed 1 November 2019, Exhibit SC-4.
[33]Further Affidavit of Sarah Elise Margaret Condon in support of application, affirmed 28 November 2019 [5]–[6].
In addition, the present remand period is the applicant’s first time in custody. The applicant contends that he is also vulnerable for this reason. This submission was accepted by Magistrate Maxted in the filing hearing conducted on 27 July 2019.[34]
[34]Affidavit of Sarah Elise Margaret Condon in support of application, affirmed 1 November 2019, Exhibit SC-1, Exhibit SC-4 [12].
Delay
The matter is next listed for a five day contested committal hearing at the Melbourne Magistrates’ Court on 18 May 2020. The applicant anticipates that a trial will be listed in the first half of 2021. If bail is refused, the applicant could spend close to two years on remand.
The applicant concedes that if found guilty, imprisonment is the only available sentence open to the Court, however, he contends that there are ‘very real and live issues to be determined by a jury’ in the matter.[35]
[35]Ibid [67](k).
Surety
The applicant’s sister, Irene Toczynski, is willing to provide surety in the amount of $260,000 on a property located in Brighton, Tasmania.[36]
[36]Ibid, Exhibit SC-3.
Unacceptable risk
Noting the respondent’s position in relation to unacceptable risk, the applicant contends that his risk of interfering with a witness or otherwise obstructing the course of justice in any matter is not supported by the evidence. He submits that he has no prior convictions relating to this conduct, and further, that there are no allegations he has interfered with any prosecution witness in this matter, despite being put on notice in respect of the investigation against him as early as 1 November 2017. The applicant contends that this may be contrasted with the bail application of the co-accused, where the prosecution there adduced evidence of attempted interference.
In addition, the applicant submits that he is not a risk of failing to surrender into custody in accordance with the conditions of bail, having only left Australia to travel overseas on holiday once since 2007. He further submits that he has a demonstrable history of appearing at court to answer charges.
The respondent’s contentions
The respondent opposes bail on the basis that the applicant has failed to demonstrate exceptional circumstances, and further, that he poses an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice in any matter.
The respondent makes the following submissions in response to the applicant’s contentions in support of bail.
Weakness of the prosecution case
The respondent concedes that there is no forensic, identification, or CCTV evidence linking the applicant to the scene of the murder. However, the respondent states that it is not the prosecution case that the applicant was at the scene on the day of the murder, rather, it contends that the applicant provided the murder weapon to the co-accused, knowing it would be used to cause the deceased’s death. The respondent submits that it relies on Laurie O’Shea’s eye witness account of the applicant purchasing a firearm on behalf of the co-accused. The respondent submits that the prosecution’s case is strong, and in fact, stronger than the case against the co-accused, given that the applicant was a close confidante of the co-accused and was therefore in a prime position to hear what he was saying and doing at the time.
Further, the respondent agrees that the applicant’s brother, Laurie O’Shea, did not come forward with information about the applicant’s alleged involvement in the murder until 2017. It is for this reason the respondent contends the thorough investigation conducted in 2007 did not lead to the arrest of the applicant at that time. While the respondent concedes that Laurie O’Shea’s evidence is crucial to its case against the applicant, it also relies on other evidence, including phone records and crime scene evidence that corroborates Laurie O’Shea’s account. The respondent disagrees that Laurie O’Shea holds ‘longstanding animosity’ towards the applicant. It concedes that the pair had a falling out some years ago, but submits that this does not impact Laurie O’Shea’s credibility as a witness. The respondent contends that Laurie O’Shea has no prior convictions and provides an explanation in his statement as to why it took him a number of years to come forward with his information about the applicant’s alleged involvement in the murder.
The respondent also contends that telephone records of the applicant contradict his version of events that he had not spoken to the co-accused in the three days leading up to the alleged offending. It concedes that police have not recovered any weapons used in the murder.
Suitable accommodation and ties to the jurisdiction
The respondent does not dispute that if granted bail, the applicant may return to his residence at Taylors Lakes with his fiancé and her daughter. However, the respondent notes that Ms Korney and her daughter had only moved to the address approximately two weeks before his arrest, the couple having lived apart for 12 months during a period of separation.
Further, while the respondent does not disagree with the applicant’s submissions on the financial and emotional hardship experienced by Ms Korney and her daughter as a result of his remand, the respondent contends that this hardship does not appear to be any greater than that experienced by the families of other accused in similar circumstances.
Criminal History
With respect to the applicant’s criminal history, the respondent notes that his prior convictions during the period 2000–2002 all relate to his former de-facto partner and her children. The offending conduct during this period includes throwing a brick through the front window of his ex-partner’s residence, indecently assaulting his 10 year old step-daughter,[37] and leaving voicemails threatening to seriously injure his ex-partner. His convictions for breach of an intervention order relate to the applicant attending at his ex-partner’s home and phoning her in contravention of the family violence intervention order in place at that time. The respondent submits that the applicant’s breach of intervention order convictions demonstrate his propensity to breach court orders.
[37]Affidavit of Kylie van den Akker in opposition to application, sworn 15 November 2019, Exhibit KAV-1.
The respondent concedes that the applicant has not been charged with any offending since his alleged involvement in the deceased’s murder in 2007. Notwithstanding this, the respondent provides details of six previous intervention orders issued against the applicant, including interim and final intervention orders made in 2014 and 2015 which name his brother, Ross O’Shea, as the protected person.[38]
[38]Ibid, Exhibit KAV-2.
Delay
In relation to the applicant’s submissions on the delay in the matter proceeding to trial, the respondent submits that the applicant was charged on 25 July 2019, following which a brief of evidence was completed and served by the due date. The matter then proceeded to committal mention on 9 October 2019, during which a committal hearing was listed for the next available date on 18 May 2020. On this basis, the respondent submits that the delays in this matter have been minimal and have not been caused by either party. Further, the respondent also submits that the delay in between the date of the alleged offence and the date of his arrest was, in fact, due to the applicant attempting to ‘avoid prosecution’ by going ‘underground’ or ‘under the radar’.[39]
[39]Transcript of Proceedings, Re O’Shea (Supreme Court of Victoria, S ECR 2019 0236, Zammit J, 28 November 2019) 29.20–30.10 (‘T’).
Unacceptable risk
Finally, the respondent agrees that the applicant does not pose a risk of failing to surrender into custody in accordance with the conditions of bail. However, the respondent submits that it has concerns the applicant may attempt to interfere with the main witness against him, Laurie O’Shea. It contends that the applicant is aware of Laurie O’Shea’s home address and the places that he frequents socially. The respondent advises that Laurie O’Shea has informed investigators that he holds concerns for his safety and that of his family should the applicant be granted bail. On this basis, the respondent submits that the applicant poses an unacceptable risk.
Discussion
Exceptional circumstances
In order to be ‘exceptional’, circumstances ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[40] This is a high hurdle for a bail applicant.
[40]Re Sam [2017] VSC 91 [22] (Beach JA).
Based on a combination of matters and the evidence before me, I am satisfied that the applicant has shown exceptional circumstances exist that justify the grant of bail. In particular I am influenced by the significant lapse of time between the alleged murder and the laying of the charges. The applicant outlined a chronology that shows he applicant was first interviewed on 24 June 2007 and was released without charge. Approximately a decade later, on 8 July 2017, Laurie O’Shea provided a statement to the police in relation to the alleged involvement of the applicant on the deceased’s murder. On 1 November 2017, the police arrested and interviewed the applicant in relation to the deceased’s murder, during which time he denied any involvement . He was subsequently released. On 25 July, the applicant was again arrested. He gave an interview and again denied purchasing a firearm on behalf of the co-accused . He was then charged with one count of murder and remanded in custody.
Over the 12 years the applicant was aware that the police regarded him as suspect along with the co-accused, but he remained available to cooperate with the police. There is no suggestion he committed any offences in the 12 years.
The applicant is 50 years old and has a limited prior criminal history dating from July 1987 to October 2002. There has been no offending subsequent to 2002, nor after the alleged offending in 2007 for which the applicant is presently remanded. While the nature of the applicant’s criminal history is serious, it is dated and is of limited significance to the current application. I note that the applicant conceded that in 2002 he breached court orders. As a countervailing weight, the applicant has no outstanding criminal matters, has a demonstrable history of appearing at Court to answer charges, and has no prior criminal history of failing to comply with bail conditions. Additionally, he fully complied with the community based order imposed for three months from October 2002.
The applicant’s sister is willing to provide a significant surety in the amount of $260,000, which should provide incentive for the applicant to comply with his bail conditions.
Self-evidently the alleged offending is of the most serious kind. However, the applicant contends that the prosecution’s case suffers from fundamental difficulties, including that there are also no physical exhibits or forensic evidence linking the applicant to the offending.
I do not propose to evaluate the strength of the Crown case, save to say there are real issues to be tried before a jury. As Almond J said in Re Petrov,[41] the bail decision relating to the co-accused:
At this stage, the evidence has not been tested at a committal hearing, and ultimately the evidentiary matters will be an issue for the trial judge. One cannot assume that the trial judge will rule adversely to the prosecution on all the evidentiary matters; however, it is noteworthy that there are no physical exhibits or forensic evidence linking the applicant to the offending.[42]
The above observations of his Honour are applicable in the current hearing. The matter is contested and a contested committal hearing will be held on 18 May 2020, with cross-examination granted in respect of four witnesses.
[41][2019] VSC 705.
[42]Ibid [44].
Further, the prosecution’s case relies on the evidence of the applicant’s brother, who did not make a statement to the police until 2017, 10 years after the alleged murder. The applicant and his brother are estranged.
In relation to the co-accused’s case, Almond J said that while the prosecution’s case ‘is not an overwhelming case, it is not open to conclude that it is a weak case’.[43] Equally, for the reasons set out earlier, the prosecution’s case against the applicant cannot be said to be overwhelming, nor can it be said to be weak.
[43]Ibid.
While the personal circumstances of the co-accused differ to the applicant’s circumstances, they both put evidence before the Court about the delay from the offence date to the date when they were charged, delay in the matter being determined and hardship to themselves and others if bail is not granted.
There will be an expected delay of at least 18 to 24 months between the applicant’s arrest in July 2019 and trial. While this period does not of itself amount to an inordinate delay, there has been a very lengthy period of time between the date of the alleged offence and the date upon which the applicant was charged (amounting to approximately 12 years), during which the applicant has not been found guilty of any criminal offence, which weighs in favour of the application.
In respect of the respondent’s submission that the delay is due in part to the applicant’s attempts to avoid prosecution, I reject this submission. There is no evidence to suggest that the applicant went ‘underground’ or ‘under the radar’. Quite to the contrary, the applicant was interviewed by police on 24 June 2007, four days after the offence, and made a statement.
If bail is refused, the applicant is likely to spend until early 2021 remanded and awaiting trial in the Supreme Court, in a matter where there are live issues to be determined by a jury. Clearly, if the applicant is found guilty of the charge, imprisonment is the only available sentence open to the Court.
The applicant is in custody for the first time. I accept that the applicant is vulnerable by reason of having osteoarthritis of the hip, which he was due to have surgically replaced in August 2019 prior to being remanded in custody. At this stage, on the evidence before the Court, it seems likely that there will be a delay in surgery taking place whilst the applicant is remanded.
The applicant has the ongoing support of his immediate and extended family, and if granted bail, is able to return to stable accommodation with his fiancé and his step-daughter. Upon release on bail, the applicant has reasonable prospects of employment the fencing industry.
Of relevance to the contentions made by the applicant in this matter, this Court has previously held that hardship imposed on an applicant’s family by virtue of their time spent on remand may not in itself rise to the threshold of an exceptional circumstance.[44] Nonetheless, it is a factor relevant here that, when considered in combination with other circumstances, point in favour of granting bail. The applicant was the sole income earner prior to his remand, providing for his fiancé and step-daughter. The applicant’s fiancé has become too distressed to resume work since the applicant’s remand. She is currently in receipt of Centrelink payments and is struggling to support herself financially. Consequently, I accept that if granted bail the applicant will reside in the family home, will resume work, and will be in a positon to financially support his fiancé and step-daughter.
[44]Re Martinow [2019] VSC 118 [7] (Beale J); see also Re Reker [2019] VSC 81 [39] (Beale J), quoting DPP v Muhaidat [2004] VSC 17 [13]–[14] (Kaye J); Re Sipser [2019] VSC 362 [43], [47] (Beach JA).
Another factor of relevance in this matter is the principle of parity as it applies to applications for bail by the co-accused. In this case, the circumstances of the co-accused are sufficiently similar, such that the grant of bail to the co-accused is a relevant consideration in the current application. In this case, I consider it would be wholly unfair to deny bail to the applicant in circumstances where the co-accused was granted bail, and where there have been allegations of the co-accused interfering with witnesses.
Overall, I am satisfied that in this case, the circumstances are right out of the ordinary and meet the threshold for exceptional circumstances. That is to say, I am satisfied that exceptional circumstances exist that justify the grant of bail.
Unacceptable risk and conditions
Accordingly, it is now necessary for me to proceed to consider whether the respondent has established that there would be an unacceptable risk that the applicant would, if released on bail, materially interfere with a witness or otherwise obstruct the course of justice in any other manner.
The respondent submits that Laurie O’Shea, the applicant’s brother and a witness for the prosecution, has said he is concerned for his safety and the safety of his family if the applicant were granted bail. However, there have been no allegations that the applicant has interfered with witnesses in relation to this matter. This is despite the applicant having been put on notice by Victoria Police in respect of the investigation of him on 1 November 2017, during the first record of interview. I note that the applicant has no prior convictions relating to interfering with witnesses. The mere assertion of a concern is not enough to establish that the applicant is an unacceptable risk. The respondent’s assertions lack any evidentiary foundation.
In the circumstances, I am not satisfied that the risk of the applicant interfering with a witness or otherwise obstructing the course of justice is an unacceptable risk. Further, in my view, with the imposition of stringent conditions (including a condition prohibiting contact with any prosecution witness), any risk posed by the applicant can be ameliorated to an acceptable level.
Conclusion
Accordingly, I will grant bail on the applicant’s own undertaking, with one surety in the amount of $260,000, on the following conditions:
(a) he attend the Melbourne Magistrates Court on 18 May 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody;
(b) he reside at the specified address, and not change that address without the leave of the Court;
(c) he remain at those premises between the hours of 11:00pm and 5:00am each day for the duration of bail;
(d) he present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e) he report each Monday, Wednesday and Friday to the officer in charge of the Keilor Downs Police Station, or his or her nominee, between the hours of 9:00am and 6:00pm;
(f) he not contact, directly or indirectly, the co-accused, Emil Petrov, for the duration of the bail period;
(g) he not contact, directly or indirectly, any witness of the prosecution, except for the informant and his brother-in-law, Walter Toczynski;
(h) he not leave the State of Victoria;
(i) he surrender any passport he may have to the informant within 24 hours of being released on bail; and
(j) he not attend any points of international departure.