Re Scott
[2011] VSC 187
•4 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2011 00046
| IN THE MATTER of an application for Bail: NATHAN SCOTT |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2011 | |
DATE OF JUDGMENT: | 4 May 2011 | |
CASE MAY BE CITED AS: | Bail Application – Nathan Scott | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 187 | First Revision: 9 September 2011 |
---
CRIMINAL LAW – Bail – Charge of murder – Whether exceptional circumstances – Strength of Crown case – Youth of applicant – Potential delay – Whether applicant unacceptable risk.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Roper | Solicitor for Public Prosecutions. |
| For the Applicant | Mr J Desmond | C. Marshall & Associates |
HIS HONOUR:
The applicant, Nathan Scott, has been charged with the murder of Bree McLaren at Shepparton on 18 March 2011. The applicant was arrested and charged with that offence on 21 March. He has been in custody since that date and is currently in the Metropolitan Remand Centre. He applies to this Court for bail.
On the evening of the offence, the applicant was in the company of four other persons, Braydon Thomas, Taisha Scott, Jody Turvey and her sister, Simone Croxford. During the evening, the applicant and his friends had had dinner together to celebrate the applicant’s 19th birthday, which was to take place on the next day. They then drove around the Shepparton area in the applicant’s Holden Commodore motor vehicle. As the other members of the group had been drinking alcohol, Ms Jody Turvey took responsibility for driving the vehicle.
While they were driving, a female friend of the applicant telephoned the applicant and told him that Braydon Thomas’ sister had been casting untrue aspersions on her at a party which she was attending. As a result, Ms Turvey drove the vehicle to the house at which that part was taking place at 52 Gilchrist Street, Shepparton, which was the home of Matthew Ormiston.
Shortly after their arrival an argument occurred between Matthew Ormiston and the applicant. In the course of that argument, Mr Ormiston told the applicant to leave the premises and apparently he head butted the applicant. The two young men were separated and the applicant and his friends then left the premises with Ms Turvey still driving the vehicle.
Shortly after they departed, the applicant prevailed on Ms Turvey to change places with him in the vehicle. Accordingly, Ms Turvey stopped the vehicle and the applicant got into the driver’s seat. He was then observed to be in a very angry frame of mind. He was heard to yell out words to the effect “I’m going to kill that dog”. He then executed a burn out and drove at a fast speed past Mr Ormiston’s house in Gilchrist Street. As he did so, he yelled out words to the effect, “Come on dog, come and get me”. He drove to the next side street and executed a further U-turn, performing another burn out. He then drove at a fast speed on the incorrect side of the road, close to the sides of parked vehicles. As the applicant’s vehicle approached Mr Ormiston’s house, the victim, Bree McLaren, stepped out onto the roadway. The front side of the applicant’s vehicle collided with her, she became airborne and ended up on the nature strip. As a result of that impact she died.
The applicant immediately drove off after the incident and drove down back streets to his aunt’s home at Railway Parade, Shepparton. His parents were contacted and they arrived at those premises shortly afterwards. The applicant’s vehicle was moved to a vacant garage and was wiped down. A discussion occurred, in the course of which Simone Croxford was prevailed upon to take responsibility for driving the vehicle at the time of the fatal collision.
In due course, the Shepparton Police arrived, and Simone Croxford, in accordance with what had been discussed, told the police that she had been driving the vehicle at the time of the accident. As a result, Simone Croxford was taken to the Shepparton Police Station. Braydon Thomas and the applicant also attended there at the request of the police. Both of them told the police Croxford had been driving the vehicle at the time of the collision.
In the meantime, Jody Turvey had spoken to her grandparents as to what Simone Croxford had been planning to do. As a result of that conversation, the police, in due course, were informed that in fact it had been the applicant, and not Croxford, who was driving the vehicle at the time of the fatal collision.
As I stated, the applicant was arrested on 21 March. He was interviewed at the Shepparton Police Complex and in the course of that interview, he mainly provided ‘no comment’ answers. He has been on remand since. A filing hearing took place in Shepparton on 22 March, the proceeding were then adjourned to a committal mention on 26 July. A full hand-up-brief has been ordered to be served by 28 June and it is anticipated that that timetable will be complied with.
As the applicant has been charged with the crime of murder, he is required, under s 4(2)(a) and s 13 of the Bail Act 1977, to establish the existence of exceptional circumstances which would justify the grant to him of bail. If the applicant is able to establish such exceptional circumstances, the court should grant bail unless it is satisfied that the applicant is an unacceptable risk under s 4(2)(d) of the Act.
The prosecution in this case opposes bail on the ground that the applicant has not established the existence of exceptional circumstances. In addition, the prosecution submits that bail should be refused because there is an unacceptable risk that if he were granted bail, the applicant would offend while on bail and there is an unacceptable risk that he would interfere with witnesses or otherwise obstruct the course of justice.
Mr Desmond, who appeared on behalf of the applicant, made detailed and comprehensive submissions on his behalf, relied on eight circumstances, which, he contended, in combination, amounted to exceptional circumstances which would justify the grant of bail to his client. In brief, those circumstances are as follows. First, the applicant is of a young age, just 19 years of age. Secondly, although the applicant has previous convictions, they were all Children’s Court convictions and mainly for driving offences which were of a different nature to that which is alleged here. He has no previous conviction for failing to attend while on bail.
Thirdly, Mr Desmond relied on the fact that there would be some delay before the trial of this proceeding takes place. In that connection, it is expected that the committal proceeding will take place in the second half of this year and that a trial in Shepparton should take place in the middle of 2012. Fourthly, Mr Desmond pointed to the fact that the applicant is currently in the Metropolitan Remand Centre, which is an adult prison and he has not been in custody before. Fifthly, Mr Desmond relied on a report of a forensic psychologist, Ms Michelle Wauchope, who examined the applicant on 18 April 2011. Ms Wauchope’s view is that the applicant has significant mental health issues relating to both an anxiety state and a chronic severe depression. Mr Desmond submitted that it is unlikely that the applicant will be able to receive appropriate medical treatment for his condition while he is in custody.
Sixthly, Mr Desmond submitted that there is evidence that the applicant will receive adequate support from family and friends, and in particular, he pointed to the offer of a friend, Mrs Judith Harbour, that he live at her home in Reservoir while he is on bail.
Seventhly, Mr Desmond submitted that the Crown case is weak and, in particular, he submitted that as it is based on an allegation that the applicant deliberately steering his vehicle towards the victim, there are two witnesses who have given statements that in fact the applicant was driving his vehicle in a straight line at the time of the collision. Eighthly, and finally, Mr Desmond relied on the fact that there is no evidence that since he has been in custody, the applicant has taken any step to interfere with witnesses.
On the other hand, Mr Roper, who appeared for the prosecution, submitted that the circumstances referred to by Mr Desmond do not constitute exceptional circumstances. He further submitted that there is an unacceptable risk that, if granted bail, the applicant would breach bail, and in particular that he would interfere with witnesses. In that connection, Mr Roper pointed firstly to the applicant’s previous convictions and to the report of Ms Wauchope, which indicates that the applicant, because of his background, is prone to indulging in anti-social behaviour.
Secondly, Mr Roper pointed to the fact that at the time at which this offending took place, the applicant was then on bail in respect of very serious fraud charges. The applicant had been charged, with three other persons, with a number of offences arising out of the misuse of some 300 or so sim cards, to defraud Telstra of the sum of $326,000 over a period of some four years. Thirdly, Mr Roper pointed to the evidence that the applicant had prevailed on Simone Croxford to take the blame for driving the vehicle at the time of the fatal collision and he also pointed to evidence that Ms Turvey has been subjected to some intimidation after she told the police that the applicant, and not Simone Croxford, had been driving the vehicle.
The first question, which I must determine, is whether the applicant has established the existence of exceptional circumstances under the Bail Act. That Act does not define what are exceptional circumstances. However, in order to be exceptional, the circumstances relied on by the applicant must be out of the ordinary. It has been accepted that exceptional circumstances may, in a particular case, be constituted by a combination of a number of circumstances. Further, exceptional circumstances may be factors relating to the strength or otherwise of the prosecution case or to the personal circumstances of the applicant, or to both matters in combination.
If exceptional circumstances are established, the second question is whether the applicant would be an unacceptable risk of re-offending or of interfering with witnesses, if he were granted bail. The two questions are, of course, not entirely discrete. Clearly, if it could be concluded that the applicant would not pose a risk of re-offending or of otherwise breaching bail, that factor would weigh in favour of the existence of exceptional circumstances justifying the grant of bail on such a serious charge. Equally, if there was a material risk that the applicant would re-offend or interfere with witnesses, that consideration would militate against the existence of such exceptional circumstances.
In the present case, the youth of the applicant is a factor which is of some importance. This is particularly so since the applicant is now in an adult prison and he has not previously undergone a custodial sentence. Further, there is evidence of the psychologist, Ms Wauchope, which I accept for these purposes, that the applicant has pre-existing psychological problems relating to both anxiety and depression. Thus, any time spent by him in custody awaiting his trial would, I anticipate, be quite difficult for him.
On the other hand, notwithstanding Mr Desmond’s cogent submissions, I am not able at this early stage of the proceeding to conclude that the Crown case against the applicant is weak.
The Crown case on the charge of murder will consist of an allegation that the applicant deliberately drove his vehicle at a person or persons, standing at the edge of the roadway, with the intent to kill or cause really serious injury to that person.
It is clear that that case will be substantially dependent on the evidence of the expert accident reconstruction witness, Senior Constable Mehegan. Ms Mehegan, to whom the informant has spoken, has not yet completed her report. However, the understanding of the informant is that Ms Mehegan will say that there were yaw marks on the roadway leading to the collision over a distance of some seven to ten metres, and leading from the impact, on the basis of which she has formed the conclusion that the vehicle had been deliberately steered by the driver at the victim. That evidence will be given some support by the evidence of two witnesses that when the applicant got into the driver’s seat shortly before the accident, he uttered a threat that he would either get or kill the “dog”, apparently referring to Mr Ormiston. It is also supported by evidence that the applicant was in a particularly angry state of mind as he drove down Gilchrist Street, shortly before his vehicle struck Ms McLaren. In those circumstances, it is not possible at this early stage, even for the limited purpose of a bail application, to assess the Crown case as weak, at least until Ms Mehegan has provided her report and been cross-examined at the committal proceeding. At this stage it is sufficient to note that none of the witnesses who were in the vehicle have described any swerving or deviation by the vehicle shortly before the impact. On the other hand, I do observe that it would appear that Ms Turvey was at that stage the only occupant of the vehicle who was not significantly affected by alcohol. Although the applicant has not previously undergone any sentence of incarceration, he does have a number of relevant previous convictions in the Children’s Court arising out of four previous court appearances in that court. They include a conviction for driving a motor vehicle in a manner dangerous, a number of convictions for other motor vehicle offences, and three previous convictions for offences involving violence. Furthermore, it is relevant that, at the time of the alleged offence in this case, the applicant was on bail for very serious fraud charges. Those factors are relevant not only in relation to determining the risk of the applicant offending if I were to grant him bail, but also in determining the risk of interference by the applicant with witnesses. As I stated, the evidence demonstrates that Simone Croxford was prevailed upon to falsely claim that she was the driver at the time of the fatal collision. There is some conflict in the evidence as to whether she was a willing participant in giving that false account or whether she was coerced and pressured into doing so. In any event and at the very least, it is clear that the applicant was a party to suborning a witness to give false evidence as to a very serious matter. His previous convictions and the fact that the present offence was committed while he was on bail reveals that he does not have any real respect for the processes of the law. That conclusion is reinforced by the report of Ms Wauchope, which is to the effect that because of his unfortunate background the applicant is a person who is prone to re-offending.
In addition, there is evidence that at the least an attempt was made by a member of the applicant’s family to intimidate Ms Turvey, after she had told the police that Simone Croxford was not driving the vehicle at the time of the fatal collision. That matter does not disclose any evidence that the applicant himself intimidated that witness. But in the background of his previous convictions, in light of the circumstance that he was bailed while this offence occurred, and in light of his conduct after the offence, I am driven to the conclusion that there is a realistic risk that the applicant may seek to intimidate witnesses, particularly before the committal proceeding is held in this case, if I were at this stage to grant him bail. If I were to grant the applicant bail, the question would then arise as to where the applicant should reside. For that purpose, the applicant has had filed on his behalf an affidavit of Mrs Judith Harbour, who is the mother of two friends of the applicant. Mrs Harbour lives in Reservoir. She has stated that she is prepared to permit the applicant to live at her address during the time in which he is on bail. However, I observe that Mrs Harbour has only met the applicant twice. I have no doubt that she is sincere in her offer and that she is well intentioned and motivated by making that offer. However, in my view, it is unrealistic to expect that an arrangement such as that proposed by Mrs Harvey would have sufficient prospects of success to give me confidence that the applicant would be able to reside at those premises during the next 12 months. This is particularly so given the evidence of Ms Wauchope as to the emotional and psychological difficulties from which the applicant suffers.
In this connection Mr Desmond submitted to me that the applicant does have support of his family who were in court in large numbers yesterday. However, I note that the applicant’s parents were complicit in the persuasion of Simone Croxford to give a false account that she had been driving the vehicle at the time of the fatal impact. I am not therefore confident that any family support to the applicant would play a positive role in ensuring that he remain compliant with the terms of his bail if he were at this stage released on bail. That observation is again supported by the contents of Ms Wauchope’s report and particularly her description of the family circumstances of the applicant.
The question of the delay in the trial is always a matter of some concern to the court where the applicant is young as in this case. As I stated, it is expected that the committal proceeding will take place in the second half of this year and the trial in the middle of 2012. That delay is regrettable but, unfortunately, it is not exceptional.
Ms Wauchope, does not, as I understand her report say that incarceration has, of itself, at this stage led to any deterioration in the applicant’s psychological state. In fact, I note that she has stated that incarceration for the last two months or so has given him a taste of reality and made the applicant re-evaluate his priorities. She does state that his problems may be exacerbated by incarceration because he may not be able to receive appropriate treatment while in gaol. However, her report does not suggest at this stage that he is in danger of incurring psychological harm which of itself would constitute an exceptional circumstance.
In those circumstances, I am not persuaded that, at this stage of the proceeding, the applicant has established exceptional circumstances justifying bail. In particular, I am not persuaded that I can characterise the Crown case as weak. The applicant does have, as I have stated, a number of previous convictions and the present offence occurred while the applicant was on bail for very serious offences. He was complicit in inducing Simone Croxford into the false account to the police. I am not satisfied that he has a place at which to reside and at which he will receive the appropriate level of support and supervision to enable him to remain out of trouble while he is on bail.
Further, I am not persuaded that the anticipated delay in this case before trial is exceptional or that it is such a length to lead to the conclusion that the circumstances of this case are exceptional. Thus, I am not persuaded that there are exceptional circumstances in this case. In reaching that conclusion, of course, I am expressing my view as the current date, and in due course, circumstances may alter one way or another.
Further, at this stage of the proceeding, I am satisfied that if the applicant were released on bail there would be an unacceptable risk that he would interfere with witnesses. Again, that conclusion may or may not alter later as the case proceeds towards trial.
For the foregoing reasons, and notwithstanding Mr Desmond’s forceful submissions, I refuse the applicant’s application for bail.
3
0
0