Re Scott
[2011] VSC 674
•14 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0094 of 2011
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by NATHAN SCOTT
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 20119 | |
DATE OF RULING: | 14 November 2011 | |
CASE MAY BE CITED AS: | Re Scott | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 674 | Amended 17 January 2012 |
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CRIMINAL LAW – Bail – Charge of murder – Whether new facts and circumstances - Whether exceptional circumstances – Strength of Crown case – Youth of applicant – Whether applicant unacceptable risk of interfering with witnesses.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Ristivojevic | C Marshall & Associates |
| For the Respondent | Mr Roper | Office of Public Prosecutions |
HIS HONOUR:
The applicant, Nathan Scott is charged with murder. He has been in custody since 18 March 2011, and he turned 19 two days before that. On 4 May 2011 the applicant was refused bail by my brother, Justice Kaye having failed to demonstrate exceptional circumstances. His Honour was of the view that at that time the applicant was an unacceptable risk of interfering with witnesses.[1]
[1]Re Scott [2011] VSC 187.
At Paragraphs 29 and 30 of his reasons his Honour remarked that his conclusions were as at May 2011 and that circumstances may alter as the matter proceeds towards trial, which may cause the question of bail to be revisited.
New facts and circumstances
A threshold question that must be determined in the applicant's favour before I can reconsider the issue of bail, is whether the applicant has demonstrated that new facts and circumstances have arisen since the refusal of bail in May of this year. New facts and/or circumstances must be material. In Mokbel v. DPP[2] Justice Gillard said:
In my view the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required.[3]
A little further on his Honour said:
Clearly not every new fact or circumstance will fall into this category.[4]
[2][2002] VSC 127.
[3]Ibid [39].
[4]Ibid [40].
In this case the applicant relies on changes or developments in a number of areas in attempting to meet the onus cast upon him to demonstrate new facts and circumstances. In short, they are these:
(a) Since the earlier application the hand-up brief has been served. It is submitted by the applicant that it discloses evidence that materially impacts upon the assessment of the strength of the Crown case made by Justice Kaye;
(b)The applicant has a three year old daughter currently in care with a family in Nathalia. Access visits to the Melbourne Remand Centre are extremely onerous for the child, involving as they do, an 8 to 12 hour round trip; and
(c)The applicant has significantly more support available now if he were released than was available in May 2011.
It is necessary to review the Crown case in a little detail in order to assess the first of these grounds. The Crown case is essentially that the applicant, in a state of high anger, steered his speeding car deliberately at the deceased and away from its natural path down the carriageway. The prosecution assert that the trajectory of the car and various witnesses observations of the applicant's demeanour, actions and words give rise to an inference that the applicant's intention was to kill or cause serious injury to the deceased.
A witness describes the accused saying “I’ll kill the dog” a short time prior to the fatal impact. I should say that it is not the Crown case that this was a reference to the deceased, but rather a reference to another man, Mr Ormiston, with whom the applicant had argued. At paragraphs 22 and 23 of his judgment, Justice Kaye set out the material that was then before him that related to the strength of the Crown case. Its strength was derived in part from the anticipated evidence of Senior Constable Mehegan, that there were yaw marks on the roadway leading to the collision of 7-10 metres in length, and leading from the impact. On that basis she formed the conclusion that the vehicle had been deliberately steered by the driver at the victim.
As I have observed, since the earlier application the hand-up brief has been served. It is apparent that the impact is to the front right corner of the applicant's vehicle and continues down the right side of that vehicle. Senior Constable Mehegan describes the impact with the pedestrian as a side swipe, and opines that the deceased was approximately 2.45 metres from the northern bitumen kerb of Gilchrist Street. I should say that Gilchrist Street, which is the accident scene, travels east-west, and the applicant is alleged to have been travelling west.
It does not appear that Justice Kaye had information about the movements of the deceased, or about the speed of the applicant's vehicle at or just before impact. The brief discloses Ms Mehegan's opinion that the vehicle’s speed at the time of impact was 64.5 kilometres per hour.
A number of witnesses offer some as yet untested evidence about the deceased's movement immediately prior to impact. As in every fast moving situation, their accounts vary. For example the evidence of Jodie Turvey is this:
As we got near the driveway a lady stepped out and I heard a loud bang.[5]
[5]See p 126 of the hand up brief.
Braydon Thomas, who, like Ms Turvey was a passenger in the vehicle driven by the applicant and may have been affected by alcohol on the evening, said:
As we got closer to the party he seemed to slow down slightly because Chloe walked out onto the road roughly less than a metre and held up her hand, signalling him to stop. She stepped back out of the path of Nathan's car because he was too close to the two cars parked on either side of the driveway. As Chloe moved back of the way, Bree McLaren ran out onto the road, roughly a metre or so past one of the parked cars, holding up her middle finger at Nathan. Nathan swerved slightly to his left to try to avoid her but the front quarter panel of his car hit her. I didn't see what happened to her after that. It was a loud thud.[6]
Other accounts vary as to the time spent by the deceased on the roadway before impact.[7] There seems to be a body of evidence, however, to the effect that at some time shortly prior to impact the deceased walked onto the roadway from the kerb.
[6]See p 147 of the hand-up brief.
[7]See for example Jamie Clarke at p 122 of the hand up brief; cf Scott Pearce, p 203 of the hand up brief.
After some consideration I am of the view that the assessed speed of the vehicle, the area of impact to the car and the evidence about the movements of the deceased are material facts that impact upon the assessment of the strength of the Crown case on the charge of murder.
I shall return to the aspect of the strength of the Crown case later in these reasons when I come to consider the issue of exceptional circumstances. It is sufficient to say for present purposes that I accept that the applicant has demonstrated new facts and circumstances that are relevant to the issue of bail and justify this Court re-considering the question afresh.
It is unnecessary therefore to consider the applicant's access hardship, although I doubt given that his daughter is in care, that it is sufficiently material to the question of bail to constitute a new fact or circumstance. Similarly, the applicant's proposed accommodation with the H family in Reservoir was canvassed in the previous application, although it does seem that there is significantly more external support available to the applicant now than appeared before Justice Kaye.
Exceptional circumstances
Having established new facts and circumstances, the onus rests with the applicant to demonstrate exceptional circumstances.[8] Where murder is charged, bail shall not be granted unless the court considering the application is satisfied that exceptional circumstances exist which justify the making of such an order. The Act does not define the term ”exceptional circumstances”, however there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional. Exceptional circumstances may be constituted by a single circumstance, or by a combination of circumstances, and include the personal circumstances of the applicant and the strength or otherwise of the Crown case.
[8]See s 4(2)(a) and s 13(2) of the Bail Act 1977 (Vic) (“the Act”).
In this case I have concluded that the applicant has demonstrated exceptional circumstances from the following combination of circumstances.
(A)The applicant is extremely young. He is 19 and he has been imprisoned in adult gaol for the last eight months. Recently he was transferred to the maximum security Barwon Prison for a time, for purely logistical reasons. His youth is an important factor in my assessment of this aspect of this application. Barwon Prison is no place for a 19 year old on remand and with only Children's Court prior convictions.
(B)The applicant has accommodation available to him in Reservoir with the H family. Mrs H gave evidence before me and I was impressed with her candour and her determination to assist the applicant. She is a widow who has adult children living with her at home, together with a grandchild. As I say, I was impressed by her determination to supervise the applicant on a tight rein and by the undertaking she gave to contact the informant should she become aware of any breach of proposed bail conditions.
(C)I expressed during the hearing of the application my view of the strength of the Crown case. On the charge of murder I am of the view that the prosecution case is not overwhelming by any means. As yet the evidence is untested, however, there are a number of witnesses who say that the applicant swerved to the right before impact and there are yaw marks which support such a proposition. Whether a swerve back to the left commenced before, at the time of, or after impact is less clear-cut. Suffice it to say that I consider that there is a realistic prospect that the inference of an intention to kill or cause really serious injury would not be drawn by a jury. In my view on the facts as they currently stand, it may well be open for a jury to conclude that the applicant's conduct constituted the crime of manslaughter rather than murder.
I stress that this is an opinion formed from the papers alone and for the purposes of assessing this aspect of this bail application. Things may change.
On this aspect I should also mention the evidence that will be led at trial that the applicant endeavoured, with others, to suborn a passenger in his vehicle to accept blame for this collision. The prosecution will rely upon it at trial as post-offence conduct demonstrating consciousness of guilt of the crime charged.
For my part I am unable to see how this evidence could amount to an implied admission to the crime of murder as opposed to, for instance, manslaughter. I should also say that I have no real reservations about the strength of the case against the applicant on the statutory alternative charge for manslaughter.
(D)There is also the matter of delay. As I have said the applicant was charged with murder in May 2011. His committal will be heard in mid-January 2012 and if there is to be a trial it will be heard in or around mid-2012. The delay will be in the range of 15 to 18 months. By itself this is not an inordinate delay and alone it, in my view, would not constitute exceptional circumstances. However, I am prepared to give it some modest weight in the combination of factors the applicant relies upon, due to his youth and the fact that if he is not bailed he will spend the rest of his time on remand in an adult prison.
Unacceptable risk of interfering with witnesses or committing further offences
Finally, I must consider whether the applicant is an unacceptable risk of interfering with witnesses or committing further offences if released on bail, and this aspect has caused me some anxious consideration. The onus rests upon the prosecution to demonstrate one of these unacceptable risks.
The applicant has a number of Children's Court prior convictions, mostly for traffic matters, including driving in a manner dangerous. At the time of the alleged commission of these offences he was on bail to the Children's Court for fraud.
As I have observed, on the face of the material provided, he was complicit in suborning a passenger in the vehicle to falsely accept blame for the incident. Were I hearing this application at the time of, or soon after he was charged I would have had little difficulty concluding that the applicant was indeed an unacceptable risk of re-offending or, as his Honour Kaye J found, interfering with witnesses.
The eight months the applicant has spent on remand has enabled him to re-establish a little credit in this regard. He has made no attempt to contact witnesses or otherwise interfere with the course of justice in that time, although as Mr Roper correctly observed, his calls from the Remand Centre are monitored.
I accept that the applicant has sought and received support whilst in custody from a project run by the YMCA entitled the Bridge Project. Over nine weeks he completed what is known as a Community Connection Program and Work Readiness Training Program. Such was his enthusiasm for this program that he asked and was accepted back into it again to repeat the course.
Mr Luke Egan, the Education Director with the project, in a reference prepared for this application, speaks guardedly but highly of the applicant. I quote:
From the start of the program Nathan displayed the utmost respect towards me and the program content.
…
After graduating from the program Nathan approached me to see if he could do the course again as he got so much out of it the first time and again was a very positive participant.
…
As Education Director of the project I would not hesitate in getting Nathan involved in our project. I am told and accept that, if the applicant were to be released on bail, he has an appointment tomorrow morning with the Bridge project and will be accepted into the next phase of their program, which is for external students. This involves mentoring young people from the Youth Justice system back into the community, and it is to be hoped, into the work force.
It is apparent that the applicant has had emotional and some substance abuse problems. His forensic psychologist, Dr Michelle Wauchope, prepared a report which was tendered on the application by way of affidavit. The applicant suffers from chronic severe depression and moderate anxiety. These are problems which I consider need professional intervention, and if bail is to be granted I will impose a condition that he seek and receive treatment from Youth Northern Outreach Team (also known as YNOT). I understand their services are available to direct people to treatment for psychological and substance abuse problems if necessary.
Every grant of bail is a risk, and it is not the law that risk must be eliminated before bail can be granted. If, however the risk is demonstrated by the prosecution to be unacceptable then it is my duty to refuse bail. Courts are entitled to impose conditions to bail, perhaps stringent conditions in order to reduce risk, if possible, to an acceptable level.
In the circumstances that I have outlined, I consider the imposition of reasonably onerous conditions can reduce the risk to what I consider to be an acceptable level. I propose to grant bail on the applicant's own undertaking and on the following conditions:
(1) That he reside with Mrs H and her family at a prescribed address in Reservoir.
(2) That he remain at and not leave a prescribed address in Reservoir between the hours of 10.00pm and 6.00am.
(3)That he not contact directly or indirectly any prosecution witness except the informant.
(4)That he report every Monday, Wednesday and Friday to the Reservoir Police Station.
(5)That he not attend within 30 kilometres of the Shepparton GPO, save for court attendances.
(6)That he seek and receive treatment from Youth Projects -Youth Northern Outreach Team (YNOT).
(7)That he attend on 15 November 2011 at 11.00 am at YMCA Bridge project, 570 Lygon Street, Carlton and engage with that organisation as directed by them.
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