Re Price (No 2)
[2022] VSC 441
•5 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0361
| IN THE MATTER OF the Bail Act 1977 |
| - and – |
| IN THE MATTER OF an application for bail by Andrew James PRICE |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2022 |
DATE OF ORDER: | 14 July 2022 |
DATE OF REASONS: | 5 August 2022 |
CASE MAY BE CITED AS: | Re Price (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 441 |
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CRIMINAL LAW – Application for bail – Charges of murder and non-prohibited person possess firearm – Exceptional circumstances established – Delay – Applicant diagnosed with leukemia while in custody – Parity with co-accused – Unacceptable risk mitigated by the imposition of bail conditions – Surety – Bail granted – Bail Act 1977 (Vic) ss 1B(2), 4AA(1), 4A(1A), 4A(2), 4A(3), 4D(1)(a), 4E(2), 4E(3), schedule 1, item 2.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh | Marshall Jovanovska Ralph Criminal Lawyers |
| For the Respondent | Ms B Goding | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Andrew James Price. He seeks bail in relation to the charges in two indictments filed in this court. The first indictment, filed on 8 March of this year, contains one charge of murder.[1] The second indictment, filed on 8 March this year also, contains two charges of non-prohibited person possessing unregistered Category A or B longarm.[2]
[1]Contrary to common law.
[2]Contrary to s 6A of the Firearms Act 1996 (Vic).
Mr Price was charged by the informant, Detective Acting Sergeant Bree Blair, on 21 October 2020. He was arrested and remanded in custody. He was committed to stand trial in this court on 6 December 2021. On 19 January 2021 the applicant applied for bail in this court before Coghlan JA and on 3 February 2021 His Honour refused the application.[3]
[3]See Re application for bail by Price [2021] VSC 31 (Coghlan JA).
There are two co-accused in relation to the murder charge. The first is Samantha Guillerme, who was 26 years of age. She was granted bail by Coghlan JA on 16 September 2021.[4] The other co-accused is Jake Brown, who is aged 30. He is presently on remand and has not yet made an application for bail.[5] Both co-accused have some criminal history,[6] and Brown and Guillerme were in a relationship at the time that this offending is alleged to have occurred.
[4]See Re Guillerme [2021] VSC 883 (Coghlan JA).
[5]Mr Brown subsequently filed an application for bail to this Court on 19 July 2022.
[6]Mr Brown’s criminal history includes convictions for reckless conduct endangering serious injury, committing an indictable offence whilst on bail, contravening a family violence intervention order, assault, criminal damage, aggravated cruelty to an animal, drugs and weapons possession, and driving and dishonesty offences. Ms Guillerme’s criminal history includes convictions for trafficking in, possessing and using drugs of dependence, contravening a CCO, and dishonesty offences.
This matter has several dates fixed for hearings before this court, including a hearing on 5 August 2022 for a public interest immunity hearing, and then further directions hearings on 19 August 2022 and 20 March 2023. The trial itself is listed to commence on 1 May 2023 in the Latrobe Valley, though I am informed by Ms Goding, supported by Mr Marsh, that an application is to be made for a change of venue to Melbourne, and that if that application succeeds the matter can be accommodated in the Melbourne list on the same date.
The alleged offending
The circumstances of offending were set out in some detail by Coghlan JA in his ruling of 3 February 2021.[7] In summary, the prosecution case is that Jarrad Lovison was murdered by Guillerme, Brown and the applicant and that that occurred because the applicant was jealous about Mr Lovison’s ongoing contact with his then girlfriend, Angela O'Brien, who was also Mr Lovison’s ex-partner. There were apparently rumours that Mr Lovison and Ms O'Brien continued to maintain a sexual relationship while she was having contact with the applicant.
[7]Re application for bail by Price (n 1), [5]-[29].
The prosecution allegation, in simple terms, is that on the night of 15 to 16 April 2020, Guillerme communicated with Lovison, making an arrangement to meet him under the guise of purchasing drugs. Lovison met with her, who was in fact with the applicant and Brown at the time, according to the prosecution case. He was driven to Moondarra State Park by the three accused where, it is alleged, the applicant or Brown administered or forced Lovison to induce a lethal quantity of gamma-hydroxybutyrate (‘GHB’), intending to kill him or cause him really serious injury. Guillerme remained in the car, believing that Lovison was to ‘have the shit kicked out of him’. It is alleged that his body was left in the park. It is clear from the material that the feasibility of the cause of death occurring in this way will be a matter of contention in the trial.
The three accused then went to the home of Daniel and Theresa Ruddle. Brown said to Ruddle, in the presence of Theresa Ruddle, ‘I've been here all night. You're my alibi’. Brown subsequently disclosed to Mr Ruddle that he and the applicant ‘Got rid of Loveo’. Lovison was reported missing by his parents on 22 April 2020, not having been seen for seven days, and his body was located on 23 May 2020. The post-mortem examination did find the cause of death to be GHB toxicity.
The Crown alleges that prior to the incident there were tensions between the applicant and Mr Lovison, including in October 2019 when Mr Lovison broke the applicant’s arm. The applicant also previously had spoken to Patrick Allan about his dislike for Mr Lovison. Mr Allan states that the applicant said that Brown volunteered to ‘shoot up’ Mr Lovison’s house for the applicant. Mr Allan also states that he had been present for conversations where the applicant and Brown discussed Lovison’s disappearance or death. Allan was also present when Guillerme told the applicant and Brown that she may be able to lure Lovison, as he fancied her.
The applicant had been arrested on 21 October 2020 and search warrants were executed at his properties. Unregistered firearms and ammunition were seized. The applicant made no comment in his interview with police.
Previous applications for bail
In the bail application that occurred in January 2021, Coghlan JA found that exceptional circumstances had been established. His conclusion was primarily based on delay. At the conclusion of his ruling, his Honour, as he often did, left open the opportunity for a further application for bail depending, among other things, on whether the delay became more pronounced. His Honour said his finding ‘should not be viewed by anybody as being locked in stone, and I make it clear that the applicant can apply to this court for bail at any time’.[8]
[8]Re application for bail by Price (n 1), [47].
The applicant was also refused bail by the Magistrate presiding over the committal on 6 December 2021, on the basis of unacceptable risk.
New facts or circumstances
No issue has arisen on this application as to whether or not the applicant is required to establish new facts or circumstances.[9] Had any issue arisen I would have unhesitatingly concluded that new facts and circumstances have been established. The applicant is entitled to make an application in this Court as he thinks is appropriate, and as I have said, Coghlan JA clearly contemplated a further application, depending on what occurred in relation to the delay.
[9]Bail Act 1997 (Vic) (‘the Act’) ss 18(1); 18AA.
The applicant’s personal circumstances
The applicant’s background began in Boolarra. He has one younger brother. His father is a retired civil engineer. His parents also owned and ran a dairy farm in Boolarra and his family remains supportive of him and offer a surety in relation to their farming property. The applicant has an adult daughter living in Queensland and is the sole parent of two teenage sons aged 17 and 13. The mother of the applicant’s two sons has passed away. The children are currently residing on an alternating basis with their paternal and maternal grandparents.
The applicant’s most recent employment was at the Morwell open cut mine for 10 years. The mine closed in 2017 and he received a redundancy payout. At the time of his arrest, he was living at a property he owns in March Street in Newborough and was planning to build a mudbrick house on another property that he owned on Haunted Hills Road.
Criminal history
The applicant does not have a prior criminal history, but he does have subsequent convictions. At the time of his arrest in October 2020, he was on bail in relation to two sets of offending. Those matters resolved on 5 February 2021 at Latrobe Valley Magistrates’ Court. He pleaded guilty to drug possession and driving offences, as well as committing an indictable offence whilst on bail and contravening a conduct condition of bail. He received an aggregate sentence of two months’ imprisonment and his licence to drive a motor vehicle was disqualified for 12 months.
The applicable legislation: two-step test
Exceptional circumstances
Being charged with murder and therefore a Schedule 1 offence,[10] bail must be refused unless exceptional circumstances are established by the applicant that would justify the grant of bail.[11] In considering whether exceptional circumstances exist, the court must take into account the surrounding circumstances, including those in s 3AAA(1) of the Act.[12]
[10]Murder is a Schedule 1 offence within the meaning of Schedule 1, Item 2 of the Act.
[11]Bail Act (n 6), ss 4AA(1); 4A(1A) and 4A(2).
[12]Ibid s 4A(3).
I have enquired of the parties in relation to the issue about whether or not that question has to be rehearsed again on this application. Ms Goding, on behalf of the respondent, quite properly said that she does not have instructions to concede the existence of exceptional circumstances, but does accept that a finding to that effect would be open to me on this application.
It seems to me clear enough that as Coghlan JA found exceptional circumstances in the application that occurred in January of last year, there is nothing raised which would in any way interfere with that conclusion being equally applicable now. Indeed, as Mr Marsh has submitted, if anything, the case for exceptional circumstances being established is stronger. The applicant has now been in custody for not far short of two years and there is another 10 months to go before the trial will be heard. Mr Marsh relied on the period of time the applicant has now been in custody, some 20 months, coupled with his developing medical condition, a form of leukemia with which the applicant has been diagnosed, and the potential difficulties about receiving treatment for that condition from custody.
It is also argued on behalf of the applicant that new evidence casts some doubt on the credibility on some of the Crown witnesses, particularly in relation to Mr Allan. Ms Goding disputes that issue as to whether or not the Crown case against the applicant is weak.
There is also the issue of parity with Ms Guillerme, who is on bail. Ms Guillerme has some prior criminal history. It is argued in the written submissions that the circumstantial case against her is stronger in some respects than in relation to the applicant.
Looking at the material, including the strength of the prosecution case and other matters that have been set out on behalf of the applicant, which include the strength of the prosecution case, the delay and the applicant’s medical issues and special vulnerabilities, I am satisfied that exceptional circumstances continue to exist in relation to this application.
Unacceptable risk
That then brings me to the question of risk. If satisfied that exceptional circumstances exist, bail must nevertheless be refused if the respondent satisfies the court that there is an unacceptable risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act.[13] In applying this limb of the test, the court must again 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.[14]
[13]Ibid ss 4A(4), 4D(1)(a), 4D(2)-(3), 4E(1)-(2).
[14]Ibid s 4E(3).
In essence, Mr Marsh has argued that the risk which clearly exists can be made acceptable by the imposition of a number of bail conditions. A series of conditions are proposed that would reduce the risk of releasing the applicant on bail to that of an acceptable risk.
On behalf of the respondent, Ms Goding has argued that primarily the opposition to bail and the question of risk refers to the risk of the applicant interfering with witnesses. In the course of the application, it was noted that the witnesses in respect of whom he might be tempted to interfere have all given their evidence, and therefore their evidence is on the record and could be placed before a jury virtually, whatever the circumstances.
But that does not cater for the fact that harm might be sought to be done to those witnesses by the applicant simply out of feelings of revenge or general hostility. There is such a risk, and the question is whether or not it can be ameliorated by the imposition of conditions. Ms Goding’s submission is that it cannot be, that there is a strong motivation on the part of the applicant to interfere with witnesses, and that therefore accepting, though she does not in terms, that exceptional circumstances have been established, bail should nonetheless be refused.
Ms Goding is concerned about the proposed address because of the proximity, although it is some distance away, to a number of the witnesses. The respondent noted that the applicant previously committed driving offences whilst residing with his parents, and his mother permitted him to use her vehicle while she knew he was a suspended or disqualified driver. It is also argued that the applicant would potentially have access to firearms, albeit not his own, if he is at large in the community.
The respondent also expressed concern that the applicant would not comply with a condition not to contact his co-accused Brown, noting that they are long-time friends who continued to communicate whilst in custody.
Another issue which arises is the question of the applicant’s known frequent use of drugs. Mr Marsh has suggested that a condition of bail be imposed which requires the applicant to be assessed and treated in relation to those matters. The last thing which does go directly to the question of risk is the issue of a surety. The parents of the applicant have a property which I am told is valued at $990,000. They are prepared to put the whole of that property forward as a surety.
Conclusion
In my opinion, a significant list of conditions will be sufficient to ameliorate the risk of releasing the applicant on bail. Mr Marsh's submission that the applicant has now spent a significant amount of time in custody is of some consequence. This, coupled with his medical needs, being the treatment of the condition with which he has now been diagnosed, is not only a matter of establishing exceptional circumstances but goes directly to the question of risk.
Were the applicant to breach his bail, of course he would be immediately returned to custody. Another consequence would likely be the forfeiture of his parents’ property. I am informed, and it is not in contention, that the applicant has a close relationship with his family, and I would expect that that consequence would be a significant deterrent to him interfering with witnesses or leaving the jurisdiction. I do not think there is a substantial chance of that occurring.
The delay in matters reaching trial is unfortunately all too common as we approach the three-year mark of delay in this case. It is a very long time to be in custody in advance of a finding of guilt, and I have no hesitation in accepting that 20 months’ incarceration for anyone will alter their outlook on their conduct, should they be granted bail and be released into the community.
I also think it appropriate, bearing in mind the ruling of Coghlan JA in Ms Guillerme's matter in September 2021, that there be a degree of parity between Mr Price and Ms Guillerme in relation to their bail. In Bchinnati (No 2), Croucher J observed that ‘in some cases…the grant of bail to one [co-accused] would be a relevant consideration on the application of the other’.[15] Similarly, Justice Gillard said in Abbot that ‘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’.[16]
[15]Bchinnati v DPP (No 2) [2017] VSC 620, [70].
[16]R v Abbott (1997) A Crim R 19 (per Gillard J), [29].
I therefore propose to order that Andrew James Price be admitted to bail on his own undertaking, with a surety in the amount of $900,000 by way of equity in the property belonging to Harry Maxwell Price and Elizabeth May Price, and I will add the following conditions:
(a) The applicant reside at 595 Limonite Road in Boolarra in the state of Victoria (‘place of residence’);
(b) The applicant not leave his place of residence between the hours of 10.00pm and 6.00am each day for the duration of the bail period, unless seeking medical assistance or in the immediate presence of Harry Maxwell Price or Elizabeth May Price;
(c) The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of Detective Acting Sergeant Bree Blair (‘the informant’) or her nominee, being an authorised member of Victoria Police;
(d) The applicant must notify the informant or her nominee at least 14 days in advance of any proposal to change his place of residence;
(e) The applicant is to report to the Officer in Charge of Morwell Police Station, or their nominee, each Monday, Wednesday and Friday between the hours of 8.00am and 6.00pm;
(f) The applicant is to surrender any current passport or travel document in his possession or control to the informant, or her nominee, being an authorised member of Victoria Police, within 48 hours of being released on bail;
(g) The applicant not leave the State of Victoria;
(h) The applicant not attend any points of international departure;
(i) The applicant must not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, or have any other person do so on his behalf;
(j) The applicant must not contact, whether directly or indirectly, his co-accused, namely Jake William Brown or Samantha Grace Guillerme, or have any other person do so on his behalf;
(k) The applicant must not possess, either personally or through another person, or carry, any firearm, as defined under section 3 of the Firearms Act 1996 (Vic);
(l) The applicant not use or possess any drug of dependence as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(m) The applicant must not consume any alcohol;
(n) The applicant provide a sample of his breath or oral fluid for testing upon the reasonable request of the informant or her nominee;
(o) The applicant must attend a comprehensive assessment for alcohol and drug treatment with the Australian Community Support Organisation (‘ACSO’) in Traralgon on 18 July 2022, and thereafter comply with any lawful conditions and treatment plans offered by this service;
(p) The applicant must not drive a motor vehicle;
(q) The applicant is not to attend the areas of Moe and Newborough, excluding driving on the Princes Freeway through those areas;
(r) The applicant is not to possess or use more than one mobile phone;
(s) The applicant is to provide the informant or her nominee with the phone number, IMEI number and any password or Personal Identification Number (“PIN”) of the mobile phone he possesses or uses within 24 hours of first having access to that phone and notify the informant or her nominee, of any change of password or PIN of that mobile phone within 24 hours of that change;
(t) The applicant is to produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or her nominee, being an authorised member of Victoria Police;
(u) The applicant is to appear at the Supreme Court of Victoria at Melbourne at 10:30am on 5 August 2022 for preliminary argument.
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