Re Oberin
[2022] VSC 17
•27 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0056
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by DANIEL OBERIN |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 January 2022 |
DATE OF JUDGMENT: | 27 January 2022 |
CASE MAY BE CITED AS: | Re Oberin |
MEDIUM NEUTRAL CITATION: | [2022] VSC 17 |
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CRIMINAL LAW – Bail – Manslaughter – Schedule 2 offence – Requirement to show compelling reason why detention in custody not justified – Compelling reasons shown – Bail granted – Bail Act 1977, ss 3AAA, 4AA, 4C, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC with Mr M McGrath | Galbally & O’Bryan |
| For the Respondent | Mr P Bourke QC | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Although he was, on 16 April 2021, initially committed for trial on a charge of murder, an indictment filed in the Supreme Court on 1 October 2021 now charges the applicant with manslaughter. His trial is fixed to commence in the Supreme Court sitting at Bendigo on 2 May 2022.
For the purposes of the Bail Act 1977 (‘the Act’), manslaughter is a Schedule 2 offence.[1] Hence, the Act requires this Court to refuse the applicant bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[2] The applicant bears the burden of satisfying the Court as to the existence of a compelling reason.[3] In considering whether a compelling reason exists, the Court is required to take into account the surrounding circumstances.[4]
[1]See Schedule 2, item 2.
[2]See s 4C(1A) of the Act.
[3]See s 4C(2) of the Act.
[4]See s 4C(3) of the Act.
Section 3AAA(1) of the Act sets out surrounding circumstances, so that (so far as relevant) the Court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused—
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g)the accused’s personal circumstances, associations, home environment and background;
…
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
...
And when interpreting the Act, the court is required by s 1B to take into account (among other things) that:
The Parliament recognises 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; …
Significantly, the respondent does not rely on the unacceptable risk test in s 4E(1), which requires the court to refuse bail if the prosecutor satisfies the court[5] that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(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.
[5]Subsection 4E(2).
For the reasons that follow, the applicant has satisfied me that compelling reasons exist that justify the grant of bail.
As I have mentioned, the applicant’s trial is fixed for hearing in the Supreme Court at Bendigo on 2 May 2022. The prosecution intends to try him together with Kevin Johnson (‘Johnson’), who is charged with murder. Charge 1 on the filed indictment charges Johnson with the murder of Matthew Alexander on 13 September 2019; and charge 2 on the indictment charges the applicant with Mr Alexander’s manslaughter.
The prosecution case is outlined in the Amended Summary of Prosecution Opening for Trial (‘Amended Summary’) dated 1 October 2021.[6] In circumstances that I will shortly discuss in a little more detail, the prosecution alleges that Johnson killed Mr Alexander by discharging one round from a sawn-off shotgun into Mr Alexander’s head — causing him to suffer catastrophic fatal injuries — intending to kill him or cause him really serious injury.
[6]See Criminal Procedure Act 2009, s 182(2).
In a case which I consider to be fraught with conceptual and practical difficulties, the prosecution case as disclosed by the Amended Summary is that the applicant is guilty of manslaughter because, together with Johnson, he engaged in an unlawful and dangerous act that caused the death of Mr Alexander. According to the Amended Summary, the prosecution alleges that, pursuant to ss 323(1)(a) and/or (c) of the Crimes Act 1958, the applicant was complicit with Johnson in the acts causing death ‘save for the intentional shooting’ of Mr Alexander by Johnson.
I pause to note that s 323(1) of the Crimes Act 1958 provides that
a person is involved in the commission of an offence if the person —
(a) intentionally assists, encourages or directs the commission of the offence; or
…
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; …
And s 323(3)(a) provides that a person may be involved in the commission of an offence, by act or omission
(a) even if the person is not physically present when the offence, or an element of the offence, is committed; …
Significantly, however, s 324C(1) abolishes ‘the law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence’, and s 324C(2) abolishes the ‘doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose)’.
In short compass, the prosecution case is that the applicant harboured animosity for Mr Alexander because he believed that Mr Alexander was in possession of property stolen from him, and because Mr Alexander had been involved in an affair with the applicant’s former partner. During the evening of Thursday, 12 September 2019, Mr Alexander was at his property in Daltons Bridge working on a car with his friends Cameron Warby (‘Warby’) and Christopher McDonald (‘McDonald’). At about 6.00 am the next morning, Friday, 13 September 2019, the applicant and Johnson arrived at Mr Alexander’s property. Johnson was carrying a sawn-off, side-by-side, double barrelled shotgun.
Upon arrival, the applicant and Johnson approached Mr Alexander, Warby and McDonald, who continued to work on the car. As they approached, Johnson discharged a round from the shotgun into the air, and yelled at the other men to get onto the ground. Warby and McDonald complied. The applicant argued with Mr Alexander, and they engaged in a physical fight.
The applicant then went into a nearby shed and yelled, ‘where is the recording box?’, an apparent reference to the box containing the hard-drive which recorded footage from CCTV cameras located at the property. Mr Alexander replied, ‘It is in the corner’. Shortly afterwards, the applicant exited the shed, demanding to know where the box for the cameras was located. At that point, Johnson struck Mr Alexander with the gun, and Mr Alexander said that the box was ‘under the TV’. The applicant then returned to the shed. He located the unit attached to the underside of a work bench and removed the internal hard-drive.
Whilst the applicant was attending to the hard-drive, Johnson continued to yell at Mr Alexander. Johnson then discharged a round from the shotgun into Mr Alexander’s head. When shot, Mr Alexander was in a position low down against a motor vehicle. Johnson then said, ‘Yeah, I’ve killed him’. He walked back past McDonald, and said he would have to kill Warby and McDonald as well. The applicant then came out of the shed with the hard-drive where he once again joined Johnson, who was repeating over and over, ‘I’ve killed him’. They then left the property, taking the hard-drive and shotgun — save for the forestock which had become detached — with them.
Based on the foregoing, it is difficult to see a viable case of manslaughter against the applicant.
Section 324(1) of the Crimes Act 1958 provides that ‘a person who is involved in the commission‘ of an offence ‘is taken to have committed that offence’. In this case, the applicant will only be so ‘involved’ if his conduct can be brought within one of the two statutory heads of complicity relied upon by the prosecution, found in ss 323(1)(a) and (c). It is abundantly clear, in my view, that the reference to the offence in sub-paragraphs (a) and (c) of s 323(1) must be reference to the offence in which the applicant is alleged to be complicit. Section 324 will only deem the applicant to have committed an offence if he is shown by the prosecution to have been ‘involved in the commission of’ that offence in one or other of the two specified ways. The offence with which Johnson is charged is murder at common law. It is alleged that he intentionally discharged a round from the firearm into Mr Alexander intending to kill him or to cause him really serious injury. Thus, so it presently seems to me, the applicant could only attract criminal liability under ss 323(1)(a) or (c) if he had intentionally assisted, encouraged or directed the commission of the offence of murder, or had entered into an agreement, arrangement or understanding with Johnson to commit the offence of murder.[7] The prosecution does not allege, however, that the applicant is complicit in the specified ways in Mr Alexander’s murder.
[7]See DPP v Hansen (a pseudonym) [2020] VSCA 307 (Maxwell P, Priest and T Forrest JJA).
In determining whether compelling reasons exist which justify the grant of bail, the surrounding circumstances which the Court must consider include the nature and seriousness of the alleged offending, including whether it is a serious example of the offence, and the strength of the prosecution case. As I have said, I have difficulty in discerning a viable case of manslaughter against the applicant. Putting it at its best and very highest, therefore, the prosecution case against the applicant appears to me to be very weak. That is a forceful and convincing reason — one difficult to resist — for concluding that the applicant’s continued detention in custody is not justified.[8]
[8]Re Alsulayhim [2018] VSC 570, [27]–[28] (Beach JA); Re Ceylan [2018] VSC 361, [47] (Beach JA); Rodgers v The Queen [2019] VSCA 214, [44] (Beach, Kaye and Ashley JJA).
The applicant relied on a combination of factors — the difficulties in the prosecution case being the principal factor — for concluding that there were compelling reasons justifying a grant of bail. Other factors relied upon included: the availability of a stable residence; family support; the availability of a substantial surety; the absence of any prior convictions; the applicant’s good work history; delay; the onerous conditions in custody flowing from the COVID-19 pandemic; the possibility of imposing stringent bail conditions; and the absence of any assertion by the prosecution that the applicant poses an unacceptable risk in any of the ways contemplated by s 4E(1) of the Act.
Opposing bail, the respondent submitted in writing that the applicant has not established the requisite compelling reasons. In particular, the respondent relied upon the following factors: the deceased’s parents oppose bail;[9] police oppose bail; the application is made in close proximity to the date fixed for trial; the applicant was central to the precipitation of the violent confrontation that led to Mr Alexander’s death; the prosecution case against the applicant is strong; the applicant provided no assistance to police in locating the firearm or CCTV hard-drive; and the applicant is no mere innocent by-stander. Significantly, however, as I have indicated, the respondent does not assert that the applicant will endanger the safety or welfare of witnesses, or fail to appear in answer to his bail.
[9]I am prepared to assume, without deciding, that the deceased’s parents may be considered victims for the purposes of s 3AAA(1)(j) of the Act. See, in another context, R v Miller [1995] 2 VR 348.
Principally (although not solely) as a result of my appreciation of the weakness of the prosecution case, I am satisfied that compelling reasons exist which justify the grant of bail. I also take into account that the applicant: at age 31 years,[10] has no relevant criminal history; has a long history of stable self-employment as a builder and carpenter; has family support and stable residence, in that he can reside with his brother in Albert Park; has a substantial surety available, provided by his mother; and does not present an unacceptable risk of absconding, interfering with witnesses or committing an offence on bail.
[10]His date of birth is 17 January 1991.
For these reasons, I will grant the applicant bail on his own undertaking with one surety of $10,000, upon conditions that he:
1.appear at the Supreme Court at Bendigo on 2 May 2022, or at such other court location, or upon such other date, as may be directed by a judge or judicial registrar of the Court;
2.reside with his brother James Oberin at 89 Graham Street, Albert Park, and not change residence without prior permission of a judge or judicial registrar of the Court first obtained;
3.for the duration of bail, not leave the residence in Albert Park, any day between the hours of 9.00 pm and 6.00 am (‘the curfew hours’), unless for a medical or other emergency;
4.present himself at the front door of the premises during the curfew hours if and when called upon by a member of Victoria Police to do so;
5.report every Monday, Wednesday and Friday to the Officer-in-Charge of the police station at St Kilda between the hours of 6.00 am and 9.00 pm;
6.forthwith surrender all valid passports (if any) to the Informant and not apply for or possess any other passport or travel document;
7. not attend any point of international departure;
8. not leave the State of Victoria;
9.not contact directly or indirectly, whether personally, by telephone, email, social media or other means, any witness for the prosecution other than the Informant.
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